Yousefi and Victorian Building Authority - [2018] AATA 3542

Yousefi and Victorian Building Authority [2018] AATA 3542 (19 September 2018)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2017/7203
GENERAL DIVISION  )
Re: Joseph Yousefi
Applicant

And: Victorian Building Authority
Respondent
DIRECTION
TRIBUNAL:               Senior Member Dr M Evans
DATE OF CORRIGENDUM:   25 September 2018
PLACE:                     Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.

Paragraph [29] should be changed to read:
“No such Ministerial declaration has been made with respect to building surveyors”.

The first sentence of paragraph [43] should be changed to read:
“At the present time, no such declaration has been made by the Tribunal with respect to building surveyors”.

....................................[sgd]...............................
Senior Member

Division:GENERAL DIVISION
File Number: 2017/7203
Re:Joseph Yousefi
APPLICANT

AndVictorian Building Authority
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:19 September 2018
Place:Perth

The Reviewable Decision of the Respondent dated 16 November 2017 is affirmed.
.........................[sgd]...............................................
Senior Member Dr M Evans
CATCHWORDS
MUTUAL RECOGNITION – application of Mutual Recognition Act 1992 (Cth) – registration of building surveyor – application of mutual recognition principles –substantial equivalence of occupations – Applicant a registered building surveyor in Western Australia – refusal of registration in Victoria – whether activities of building surveyor in Western Australia substantially the same as those of a building surveyor in Victoria under respective registrations – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 25(1), s 43
Building Act 1993 (Vic), s 19, s 19(1)(b), s 19(1)(c), s 24, s 38, s 41, s 43, s 106
Building Act 2011 (WA), s 19, s 19(3), s 19(4), s 20, s 20(1)(c), s 56, s 57, s 58(1),
s 58(1)(b), s 58(1)(c), s 76, s 77, s 78, s 79, s 80, s 110, s 112, s 144
Building Services (Registration) Act 2011 (WA), s 17, s 18
Mutual Recognition Act 1992 (Cth), s 3, s 4(1), s 16, s 17, s 19(1), s 20, s 21, s 23,
s 23(1)(c), s 24, s 28, s 29, s 29(1), s 31, s 31(2), s 32, s 34
Mutual Recognition (Victoria) Act 1998 (Vic)
Mutual Recognition (Western Australia) Act 2010 (WA)
Planning and Environment Act1987 (Vic)
CASES
Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 62 ALD 535
Cleary and Nurses’ Board of the Northern Territory [1996] AATA 171
Re Turner and Registrar, Supreme Court of Queensland and Others (No 2) (2003) 76 ALD 462
Rowe and New South Wales Police Service (1997) 47 ALD 442
Sande v Registrar, Supreme Court of Queensland and Another (1996) 40 ALD 1
SECONDARY MATERIALS
Building Interim Regulations 2017 (Vic), Schedule 7
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA),
r 4A(1)
Building Services (Registration) Regulations 2011 (WA), r 28A, r 28D
National Construction Code 2016, Australian Building Codes Board
REASONS FOR DECISION
Senior Member Dr M Evans
19 September 2018

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Yousefi and Victorian Building Authority and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] AATA 3542
Decision Date: 19 September 2018

CaseChat Overview and Summary

This matter concerned an application by Mr Yousefi to the Administrative Appeals Tribunal for a review of a decision by the Victorian Building Authority. The Authority had refused Mr Yousefi's application for registration as a building surveyor in Victoria, on the grounds that his existing registrations as a building surveyor in Western Australia were not substantially equivalent to the Victorian registration, and that equivalence could not be achieved by imposing conditions.

The Tribunal was required to determine whether Mr Yousefi's Western Australian registrations were collectively equivalent to the Victorian registration sought, pursuant to section 23(1)(c) of the Mutual Recognition Act 1992 (Cth). If not, the Tribunal also had to consider whether equivalence could be achieved through the imposition of conditions, in accordance with section 29 of the Act. The assessment of equivalence under the Mutual Recognition Act was to be a technical exercise focused on the activities authorised by each registration, rather than Mr Yousefi's personal work history, experience, competencies, or skills.

The Tribunal noted that section 29 of the Mutual Recognition Act outlines a five-step process for determining occupational equivalence. This involves identifying the occupation and authorised activities in the first state, then identifying an equivalent occupation and its authorised activities in the second state, and finally comparing these activities to determine if they are substantially the same, considering whether conditions could achieve equivalence. The Tribunal also noted that Ministerial declarations under section 32 of the Act could establish equivalence, but no such declaration had been made concerning quantity surveyors. Despite the Tribunal suggesting an adjournment to allow Mr Yousefi to pursue a merit-based application based on his experience, he elected to proceed with the review under the Mutual Recognition Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 16 November 2017, the Respondent refused the Applicant’s application for registration (the Reviewable Decision) (T6). His application was refused on the basis that his Western Australian registrations were not equivalent to the Victorian registration sought, pursuant to s 23(1)(c) of the Mutual Recognition Act, and that equivalence could not be achieved by the imposition of conditions (T7). On 6 December 2017, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the Reviewable Decision (T1).ISSUES The issue that requires determination by the Tribunal, is whether, pursuant to s 23(1)(c) of the Mutual Recognition Act (and applying the general principles in s 29(1) of the Mutual Recognition Act), the Applicant’s Western Australian registrations are collectively equivalent to the registration he has applied for in Victoria, and if not, whether equivalence can be achieved by the imposition of conditions. THE NATURE OF THE CURRENT REVIEW It was correctly noted by the Respondent in its Statement of Facts, Issues and Contentions (Exhibit R2, para [30]-[31]), that the determination of this application under the Mutual Recognition Act by the Tribunal, does not involve a consideration of the Applicant’s work history, experience, competencies and skills as a building surveyor. Rather, an assessment of equivalence is a somewhat technical exercise which evaluates whether the activities undertaken under each registration are substantially the same. The Tribunal explained this to the Applicant at the hearing, and he indicated that he understood that the matter would proceed on that basis. The Tribunal notes that one of the contentions raised by the Respondent at the hearing was the issuing of permits under the Victorian and Western Australian legislative regimes, and that the Applicant had prior experience in Western Australia issuing similar permits prior to 2012 before the legislation was amended. Consequently, an option for the Applicant to pursue to achieve his objective of registration with the Respondent was to make a merit-based application for registration with the Respondent, based on his work experience. The Tribunal suggested an adjournment to allow the Applicant to pursue this merit-based option, however the Applicant wanted to proceed with the hearing, and for the Tribunal to determine his application based on the Mutual Recognition Act. MATERIAL BEFORE THE TRIBUNAL This application was heard by the Tribunal on 12 July 2018. The Applicant was self-represented and appeared in person with Mr Ali Newman, also a registered building surveyor in Western Australia, as his support person. Both the Applicant and Mr Newman made submissions to the Tribunal, and as is often the case with self-represented Applicants, some of these submissions consisted of evidence. The Respondent was represented by legal counsel, Mr Nicholas Van Hattem of Francis Burt Chambers. No other witnesses were called by the parties, and the Tribunal did not have the benefit of any expert evidence before it, either at the hearing, or in the written materials.

Ratio Decidendi

Legal Principle Established

Section 29 of Division 4 of Part 3 of the Mutual Recognition Act relevantly provides: (1)An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions). (2)Conditions may be imposed on registration under this Part so as to achieve equivalence between occupations in different States. (3)This section has effect subject to any relevant declarations in force under this Division.(Emphasis added.) In Western Australia, the applicable legislation under which building surveying practitioners and contractors are registered is the Building Services (Registration) Act 2011 (WA) (BSRA), s 17 and 18. In Victoria, the applicable legislation under which registration is sought is the Building Act 1993 (Vic) (the Victorian Building Act), specifically s 169. Pursuant to s 32 of the Mutual Recognition Act, Ministers can make a declaration that specified occupations are equivalent. These declarations are also published in the Gazette. Section 32 of the Mutual Recognition Act provides:(1)A Minister from each of 2 or more States may jointly declare, by notice in the Gazette, that specified occupations are equivalent, and may specify or describe conditions that will achieve equivalence. (2)The declaration may be amended or rescinded in the same way. (3)The declaration has effect only in relation to the States concerned. (4)The appropriate local registration authority is to give effect to the declaration. No such Ministerial declaration has been made with respect to quantity surveyors. In Rowe and New South Wales Police Service (1997) 47 ALD 442 (Rowe), at para [12], Deputy President Forgie explained the steps that the Tribunal should apply when considering the substantial equivalence of occupations under s 29 of the Mutual Recognition Act:It is clear from this section that there are, in practical terms, five distinct steps to be undertaken in determining the equivalence of occupations. The first is to identify the occupation for which the person is registered in the first state or territory. This is followed by the identification of the activities authorised to be carried out under that registration. The third step is to identify an occupation in the second state or territory for which a person may be registered and the fourth to ascertain the activities authorised to be carried out under that registration. A comparison is then made between the activities authorised to be carried out under each of the registrations to determine whether those activities are substantially the same. That is the fifth step. Part of that fifth step is to consider whether conditions should be imposed on registration to achieve equivalence between those occupations. These steps were summarised by Deputy President Purvis in Re Turner and Registrar, Supreme Court of Queensland and Others (No 2) (2003) 76 ALD 462 (Turner) at [28]:In order that the relevant ‘substantial equivalence of occupation’ … may be ascertained a number of distinct steps of inquiry have to be undertaken namely:(1)identify the occupation for which the person is registered in the first state or territory;(2)identify the activities authorised to be carried out under that registration;(3)identify an occupation in the second state or territory for which a person may be registered;(4)ascertain the activities authorised to be carried out under that registration;(5)a comparison is then made between the activities authorised to be carried out under each of the registrations to determine whether those activities are substantially the same and recognise whether conditions should be imposed on registration to achieve equivalence between those occupations.