Commissioner for Fair Trading (NSW) v PCBQ

THE COURT ORDERS BY CONSENT THAT:

1. The appeal be allowed.
2. The case be remitted to the Administrative Appeals Tribunal for decision according to law.
3. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

STEWART J: 1 This is an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal (AAT): PCBQ and Commissioner for Fair Trading (NSW) [2021] AATA 1436. The parties agree that the decision of the Tribunal is infected by error on a question of law as contemplated by s 44(1) and, by consent, seek orders setting aside the decision and remitting the matter to the Tribunal to be decided again. 2 As the parties acknowledge, when consent orders are sought in such circumstances, it is necessary that the Court itself addresses and is satisfied of the basis upon which its order is to be made, and that the error is identified for the Tribunal: Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; 100 FCR 323 at [9]-[15] per French J; Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; 174 FCR 574 at [13]-[15] per Downes, Greenwood and Tracey JJ. The parties have identified what they say is the error of the Tribunal. For the reasons that follow, they are correct. 3 On 17 February 2020, the respondent in this appeal applied by notice to the appellant, the Commissioner of Fair Trading (NSW) (Commissioner), to transfer his Victorian Building Practitioner licence in the category "Builder, class of domestic builder (limited) carpentry" to be registered in NSW as an individual contractor licence in the category of builder under the Mutual Recognition Act 1992 (Cth) (MRA). On 18 March 2020, the Commissioner refused to grant the registration applied for. On review, the Tribunal decided that the respondent was entitled to registration pursuant to s 21(4) of the MRA, which provides that a person is entitled to registration immediately if the local registration authority (in this case, the Commissioner) neither grants registration nor postpones the grant of registration within a period of one month after a notice is lodged. On the basis that the Commissioner's decision was one day outside the requisite period, the Tribunal set aside the Commissioner's decision and remitted the matter to the Commissioner with the direction that the respondent "be issued a NSW individual contractor's licence in the category of Builder consistent with his application of 17 February 2020". 4 The Tribunal decided (at [42]) that having found that the respondent was entitled to registration by operation of s 21(4) of the MRA, it was not required to determine whether the occupation for which the applicant was licenced in Victoria is substantially equivalent to the occupation for which he applied to be licenced in NSW. Accordingly, the Tribunal did not consider whether it was appropriate to impose conditions on the registration to achieve equivalence between licenced occupations as contemplated by 20(5) of the MRA. 5 Where it is found that an applicant is entitled to registration pursuant to s 21(4) of MRA, the registration authority's failure to respond within time which gives the entitlement to registration does not prevent the imposition of conditions on the relevant certificate in order to achieve equivalence in licenced occupations; rather, to impose conditions is to merely give effect to the entitlement: Board of Examiners under the Mines Safety & Inspection Act 1994 (WA) v Lawrence [2000] FCA 900; 100 FCR 255 at [44]-[45] per French J, [111] per Lee J and [146] per Carr J (albeit in dissent as to the result). 6 It was explained in Lawrence (at [65], per French J) that the objective of mutual recognition is to allow the legal entitlement to carry on an occupation in one State to be recognised and the like legal entitlement for an equivalent occupation conferred in the second State. Also (at [68] per French J and [146] per Carr J), the occupation in respect of which registration is sought in the second State must be an equivalent occupation to that for which the applicant is registered in the first State. Equivalence is tested pursuant to s 29(1) of the MRA by determining whether the activities authorised to be carried out under each registration are substantially the same whether or not that result is achieved by means of the imposition of conditions. 7 It was also explained in Lawrence (at [111], per Lee J) that implicit in the failure of the registration authority to register an applicant was a refusal to decide what conditions, if any, were to be imposed on the registration. Review of that decision required the Tribunal to decide, in lieu of the registration authority, whether conditions were to be imposed on the registration, inter alia, for the purpose of achieving equivalence between the occupation for which registration was sought in the second State and the occupation for which the applicant was registered in the first State. That must be so because the authority would otherwise be required by s 21(4) to grant a registration in accordance with the application even if the licence applied for in the second State bears no equivalence to the licence held in the first State. That would defeat the mutual recognition principle. The entitlement under s 21(4) is to registration of a licence for an equivalent occupation, not to registration of the licence reflected in the application regardless of equivalence of occupations. 8 The Commissioner's refusal to grant registration, and impose conditions on that registration pursuant to s 20(5) of MRA, is a reviewable decision under s 34 of the MRA and, thus, s 25 of the AAT Act. In exercising the powers and discretions conferred on the Commissioner for the purposes of review under s 43(1) of the AAT Act, the Tribunal made an error on a question of law by failing to consider whether to impose conditions on the respondent's registration pursuant to s 20(5) of the MRA. The effect of imposing conditions pursuant to s 20(5) of MRA would have been to give effect to registration "in the equivalent occupation" as contemplated by s 20(1) and the general principles articulated in s 29 of the MRA: Lawrence at [70] per French J and [146] per Carr J. 9 For those reasons, I am satisfied to order by consent that the appeal be allowed and the case be remitted to the Tribunal for decision according to law, in particular by consideration of whether appropriate conditions ought to be applied to the respondent's licence under s 20(5) with reference to s 29 of the MRA. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.