JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (REGISTRATION) ACT 2011(WA)
CITATION: ZUBAC and BUILDING SERVICES BOARD [2018] WASAT 110
MEMBER: MS D QUINLAN (MEMBER)
MR RJ KERSHAW (SESSIONAL MEMBER)
MR S WALLACE (SESSIONAL MEMBER)
HEARD: 3 OCTOBER 2018
DELIVERED : 24 OCTOBER 2018
FILE NO/S: VR 45 of 2018
BETWEEN: ANTE ZUBAC
Applicant
AND
BUILDING SERVICES BOARD
Respondent
Catchwords:
Building Services Board - Refusal of registration - Building service practitioner - Building service contractor - Architect - Set 2 pathway for registration - Whether experience satisfies as supervising building construction
Legislation:
Architects Act 2004 (WA)
Building Act 2011 (WA), s 3
Building Services (Registration) Act 2011 (WA), s 17, s 17(1), s 17(1)(b), s 17(1)(c), s 18, s 18(1), s 18(1)(d), s 21(2), s 64(2)
Building Services (Registration) Regulations 2011 (WA), reg 12, reg 16(1)
State Administrative Tribunal Act 2004 (WA), s 27, s 31, s 31(2), s 31(3)
Result:
Review allowed and registration granted
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr J Derby |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Department of Mines Industry Regulation and Safety |
Case(s) referred to in decision(s):
Danze and Builders' Registration Board of Western Australia [2008] WASAT 10
Director General of Department of Transport v McKenzie [2016] WASCA 147
Genovese and Building Services Board [2012] WASAT 244
Reitsema and Building Services Board [2013] WASAT 132
Thorp and Builders' Registration Board of Western Australia [2007] WASAT 157
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 3 April 2018, Mr Ante Zubac (the applicant) lodged an application with the Tribunal seeking a review of the decision of the Building Services Board (Board) on 13 March 2018 to refuse his application for registration as a building service practitioner (Set 2) and building service contractor (individual) pursuant to s 17 and s 18 of the Building Services (Registration) Act 2011 (WA) (BSR Act).
The basis of the Board's refusal was that the Board was not satisfied that the applicant had demonstrated the prescribed experience for an equivalent period of five years full-time in supervising building construction.
The applicant seeks a review in the Tribunal of that decision pursuant to s 64(2) of the BSR Act.
Pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), and an invitation from the Tribunal for the Board to reconsider its decision, on 20 August 2018 the Board reconsidered its earlier decision of 13 March 2018 and resolved to affirm its decision under s 31(2) of the SAT Act to refuse his application for registration as a building service practitioner and building service contractor. Since the Board affirmed and did not vary or set aside its decision of 13 March 2018, s 31(3) does not operate in these proceedings, therefore the decision under review by the Tribunal remains the decision of the Board on 13 March 2018.
Section 27 of the SAT Act details the nature of review proceedings in the Tribunal. Review proceedings are not appeal proceedings and no appealable error need…
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- AGLC
- ZUBAC and BUILDING SERVICES BOARD [2018] WASAT 110
- Case
- [2018] WASAT 110
- Decision Date
CaseChat Overview and Summary
The court considered the principles of statutory interpretation and the reasoning from previous cases, such as Danze and Reitsema, to determine whether the applicant's experience could be considered equivalent to the statutory requirement. The court found that the applicant had a considerable proportion of the requisite experience, but it was not enough to reach the full five years of full-time equivalent experience. The court also found that a discount should be applied for management. However, the court found that the experience was not outdated, and the applicant's work as an architect on behalf of a client should not be discounted. The court concluded that the applicant's experience was sufficient to meet the statutory requirement, and he should be registered as a building services practitioner.
The court's decision was based on the principles of statutory interpretation and the reasoning from previous cases. The court found that the applicant's experience was equivalent to the statutory requirement, and he should be registered as a building services practitioner. The Board's submission that the applicant's experience was outdated and should be discounted was rejected. The court's decision provides clarity on the requirements for registration as a building services practitioner and the weight that should be given to relevant experience.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Similarly, the Tribunal in these proceedings is assisted and informed by the reasoning in Danze and Builders' Registration Board of Western Australia [2008] WASAT 10 at [33], that the benefit of particular experience in a particular trade which falls within the scope of the meaning of 'building work', whilst not sufficient to guarantee competency in building generally, when coupled with formal qualifications and training can together satisfy the Tribunal of competence in building generally. Again applying the principles of statutory interpretation enunciated above, as well as being assisted and informed by the reasoning in Reitsema and Building Services Board [2013] WASAT 132 (Reitsema and BSB) at [25], the Tribunal considers that the lesser period of five years required experience for the managing or supervising of 'building construction' as opposed to the seven years for 'building work' recognises the value and importance of pure building construction experience more highly than building work experience in determining the registration of a building service practitioner. The Board concedes that the applicant has the relevant qualifications as required by the Set 2 pathway in that he holds a registration as an architect under the Architects Act. The Board also concedes that, if the Tribunal takes the view that the applicant has the requisite Set 2 pathway experience and, therefore, he must be registered as a building services practitioner, that there is no impediment to the applicant also being registered as a building services contractor. The primary submission of the Board is that the evidence presented by the applicant should be considered to be insufficient to satisfy the Tribunal that he has at least five years full-time equivalent experience in supervising building construction. The Board conceded in oral closing submissions that the applicant has a considerable proportion of the requisite experience at Tempo-Vranica (36½ months), but not a sufficient time period to reach the 5 years full-time equivalent of supervising building construction and that a considerable discount should be applied for management. A secondary submission by the Board is that the Tribunal should also discount the experience of the applicant at Tempo-Vranica on the basis that his experience is outdated, from around 30 years ago, and in another regulatory environment. The Board submits that this secondary discount is allowed under the 'fit and proper' requirement in s 17(1)(c) of the BSR Act. The Board submits that the applicant's time working as an architect on behalf of a client in both New York and Western Australia should not be counted in any way toward the requisite Set 2 pathway experience of supervising building construction. The Board submits that the requisite Set 2 pathway experience can only be counted if an applicant works for and on behalf of a builder who has the legal obligation to certify compliance of the building work (for instance, building work done in accordance with the building permit).