Consideration
97 The respondent Registrar's objection to competency on the basis of delay the applicant relying on the AD(JR) Act is not to the whole of the proceedings as that objection does not relate to the claim under s 39B of the Judiciary Act. In the circumstances, where the amendment was and is proposed to cure a possible defect in the jurisdictional basis of the application and where the Registrar does not contend that the proceedings do not involve a matter arising under any laws made by the Parliament within the meaning of s 39B(1A)(c) of the Judiciary Act, being either or both of the Mutual Recognition Act and the AAT Act, and in light of what follows, I would grant the applicant an extension of time under the AD(JR) Act and dismiss the respondent Registrar's objection to competency. I will consider later in these reasons, at [148] below, whether the Court should withhold relief either under s 39B of the Judiciary Act or under s 16 of the AD(JR) Act on a discretionary basis by reason of the delay.
98 The application for judicial review was filed in this Court on 29 September 2019 and served on 11 October 2019. Between 29 January 2019 and 5 April 2019 it appears that no response was made by the respondent Registrar to the decision of the Tribunal despite a number of communications on behalf of the applicant. The applicant also complained to the ACT Ombudsman, who decided on 23 May 2019 that an investigation was not warranted and resolved to close the applicant's complaint. The applicant took issue with this conclusion by email dated 27 May 2019. Despite events which occurred after the applicant was notified of the Registrar's decision, I give greater weight to the fact that the decision was communicated to the applicant on 5 April 2019, a statement of reasons was provided by the Registrar on 11 April 2019 and these proceedings were not commenced until 29 September 2019.
99 At the first case management hearing, on 29 October 2019, the legal representative of the respondent submitted that the Registrar had granted the applicant a licence subsequent to the Tribunal's decision. Attempts were then made by the lawyer for the applicant to obtain from the Registrar confirmation that a licence had been issued. There was an ambiguity between a decision to grant the licence and the grant or issue of the licence.
100 No doubt there was an unexplained delay on the part of the applicant in seeking to rely on the AD(JR) Act between, at the latest, May 2019 and late September 2019 but no such issue was raised in the case management hearings and there is no suggestion of prejudice to the Registrar arising from the delay. As to the proposed amendment to add a claim under the AD(JR) Act, I indicated on 1 November 2019, in the course of the second case management hearing, that if the Registrar wanted to oppose the amendment to add a claim under s 7 of the AD(JR) Act then the applicant was to be notified no later than 15 November 2019, with any dispute about it being dealt with the final hearing. An email from my associate to the parties dated 19 November 2019 repeated what I had then said. No such notification was made by, or after, 15 November 2019 until the objection to competency was filed on 6 December 2019.
101 I also take into account in granting the applicant an extension of time and dismissing the objection to competency that the issue between the parties is a significant one in terms of the administration of the ACT Construction Occupations (Licensing) Act and Construction Occupations (Licensing) Regulation in light of the Mutual Recognition Act and the Declaration.
102 Further, there would seem to be no barrier to the applicant making a fresh application for registration in the ACT under the Mutual Recognition Act.
103 Another preliminary point, this point being raised by the applicant, may be shortly disposed of. This is the question of the non-issue of the licence and the fact that the decision was framed by the Registrar as an "offer": see [59] above.
104 In my opinion, although describing a decision to issue a licence under s 19 of the ACT Construction Occupations (Licensing) Act as an offer seems strange, and potentially misleading if understood as an offer to enter into a contract or as indicating that registration is discretionary, there is no separate point arising from the non-issue of the licence. This is because: the "offer" related only to the payment of the relevant fee; the licence did not issue because the applicant did not pay the prescribed fee (which by s 40 of the Mutual Recognition Act could be imposed, provided it was not greater than applicable fees apart from Part 3 of that Act); and the applicant did not pay the prescribed fee because he took the view that the Registrar's decision to issue the licence contained one or more legal errors, being the errors litigated in the present proceeding. In my opinion, the substance of the proceeding is that question, being whether the Registrar's decision contained one or more legal errors, and it is to that question I now turn.
105 In my opinion, contrary to the submissions on behalf of the applicant, the proper construction of the decision of the Tribunal is that it was limited to the question whether the registration of the applicant should or should not be refused. That was the matter before it, review having been sought of the Registrar's refusal to register the applicant. The Tribunal did not go further, given what was said in the Declaration. Having set aside the decision under review to refuse to register the applicant, the Tribunal limited itself to directing that the respondent Registrar give effect to the Declaration. I do not accept the applicant's submission that [31] of the Tribunal's reasons, which I have set out at [23] above, should be taken to determine the question of conditions. This is made clear by the immediately preceding paragraph of the Tribunal's reasons where it explained that the decision under review was not a decision regarding the interpretation of any conditions placed on a registration as, at that time, the registration had been refused.
106 I find that the Registrar purported to give effect to the Declaration.
107 The question then arises whether the decision of the respondent Registrar is contrary to the Declaration. This issue was raised by proposed declarations 2 and 3 in the applicant's further amended originating application: "and in those terms only without further condition, modification, clarification or annotation".
108 In relation to the condition the Registrar decided to impose, being "only valid for work as a nominee", the applicant accepted in oral submissions that that condition was valid. In my opinion, for the following reasons, the applicant was correct to do so.
109 Section 21 of the Construction Occupations (Licensing) Act provides that the regulations may prescribe conditions on licences and when conditions on licences (whether imposed under the regulations or by the Registrar) take effect.
110 Section 20(5) of the Mutual Recognition Act provides a source of power to impose conditions on registration, subject to Part 3 of that Act which includes ss 29, 30 and 32(4). Subject to the Declaration, by s 29(2) also conditions may be imposed on registration under Part 3 so as to achieve equivalence between occupations in different States.
111 The Declaration, in declaring the equivalence of the relevant Queensland and ACT occupations, may be understood as contemplating a licence condition when it uses the words "[o]nly valid for work as a nominee". Such an understanding of the Declaration accords with the absence from the Construction Occupations (Licensing) Regulation of any reference to a licence which in terms is only valid for work as a nominee (but see reg 24(2) concerning bankrupt licensees). It also accords with the contemplation in the operative provision at cl 6 of the Declaration (see [16] above) that the Schedule may indicate "conditions, limitations or restrictions" in respect of the equivalent occupation in the second jurisdiction. It is not clear from the language of cl 6 whether what is there contemplated is that the declared equivalence of the two occupations is subject to such conditions, limitations or restrictions, or that the equivalent occupation in the second jurisdiction is one which may be carried on by a person granted a registration subject to such conditions, limitations or restrictions. Both constructions of cl 6 appear to be open. The resolution of that ambiguity is of no moment in the present case, as on either view s 20(5) would enable the Registrar to impose a condition that the licence is valid only for work as a nominee. That follows from the Registrar's duty under s 32 of the Mutual Recognition Act, to which s 20(5) is made subject by s 20(6), to give effect to the Declaration, and the fact such a condition could be considered "necessary to achieve equivalence of occupations" as declared by the Declaration. It also follows from the terms of s 29 that, subject to any relevant declarations in force, conditions may be imposed on registration under Part 3 so as to achieve equivalence between occupations in different States.
112 In the present case, in my opinion, the condition stated on the licence is not inconsistent with the Declaration, Row 11 of Schedule 25, and indeed the relevant terms of the Declaration are directed to achieve equivalence between occupations in Queensland and in the ACT.
113 The applicant relies on Dimitrijevich and Commissioner for Fair Trading (NSW) [2019] AATA 182, where the Tribunal said:
22. Clause 6 of the Declaration states that the occupations are equivalent if they appear in the Schedule, and sets out that the conditions, limitations or restrictions are those specified in the Schedule. A plain reading of this clause is that conditions, limitations or restrictions that apply to all those who hold a particular licence in the first jurisdiction will be specified in the Schedule.
23. The Commissioner submits that cl 7 of the Schedule allows for the imposition of additional conditions on the applicant's licence. Clause 7 allows a person whose ability to practise a profession is subject to individual conditions, limitations or restrictions in the first jurisdiction, to have the same conditions imposed in the second jurisdiction. It does not allow conditions that were not in effect in the first state to be imposed on a licence in the second state.
24. For example, if an individual person has had a restricted licence in one state following disciplinary proceedings against that person, it would allow the same conditions to be placed on the licence in the second state. It does not allow for a local registration authority to conduct a new assessment of whether the occupations are equivalent and impose additional conditions according to that assessment.
25. The applicant does not have any additional conditions imposed on his Queensland licence, and it follows he cannot have additional conditions imposed on the licence in New South Wales.
114 For the reasons I have given, I disagree with this reasoning in so far as it is to the effect that only matters in the form of express conditions in the Declaration may be the subject of conditions in the second jurisdiction and that conditions, limitations or restrictions that apply to all those who hold a particular licence in the first jurisdiction will be specified in the Schedule. I also, with respect, disagree with this reasoning in so far as it is to the effect that only additional conditions imposed on a licence in the first jurisdiction may be imposed on the licence in the second jurisdiction. Indeed, the present is not such a case.
115 In my view, there is no invalidity in the present case in the Registrar deciding to include the condition on the licence.
116 The next matter is whether or not the Registrar's decision to include the following annotations to appear on the applicant's licence is valid, including as reflecting the entitlement under the Mutual Recognition Act and the Declaration:
• the holder is not authorised to provide building services in any licence class;
• the holder is authorised to supervise building services that are provided for or on behalf of the partnership or corporation by individuals who hold a licence in the appropriate class for those construction services;
• the holder is required to ensure that those building services comply with the Construction Occupations (Licencing) (sic) Act 2004 and related operational Acts
117 The Registrar has not sought to impose the annotations as conditions.
118 The first question then becomes whether the three annotations may lawfully be included in the licence as "information".
119 There appears to be no basis in the Mutual Recognition Act for annotations to a licence.
120 As to ACT legislation, which by reason of s 17(2) is unaffected by the mutual recognition principle to the extent the conditions there set out are satisfied, as I have already indicated, reg 6 of the Construction Occupations (Licensing) Regulation provides:
6 Information required on licence - Act, s 23 (2)
(1) In addition to the information required by the Act, section 23 (2), the following information must be included on a licence:
(a) any endorsement relating to the licence;
(b) the period for which the licence is issued in relation to each construction occupation and class of construction occupation;
(c) if the licensee is a partnership -
(i) the name of each partner; and
(ii) if a partner is a corporation - the partner's ACN (if any);
(d) if the licensee is a corporation - its ACN (if any);
(e) whether the licence is subject to conditions and, if it is, which construction occupation or class of construction occupation the conditions apply to.
(2) A licence condition may, but need not, be included on the licence.
121 The information that this regulation requires to be included on the licence does not include the subject matter of the Registrar's annotations in the present case. Further, apart from reg 6(2) there seems to be no regulation which allows other information to be included on the licence as provided for by s 23(2) of the Construction Occupations (Licensing) Act: see [48] above.
122 I conclude that there is no statutory basis in the ACT legislation for the annotations. The information which is required and, indeed, permitted to be included on a licence is the subject of express statutory provision, which does not cover the annotations, and the decision to include them on the licence is, therefore, not authorised by the statutory regime. In light of the matter being the subject of express provision in the Construction Occupations (Licensing) Act, I do not accept the oral submission on behalf of the Registrar, made by reference to s 196 of the Legislation Act 2001 (ACT), that there remains to him an incidental power to include on a licence other information which he thinks would be useful.
123 Subject to discretionary matters, this means that the applicant succeeds in his application for judicial review of the Registrar's decision: the annotations were not permitted to be included on the licence and the decision should be set aside. It was not suggested that the annotations were immaterial to the decision. The applicant is entitled to a licence without those annotations appearing on it.
124 The applicant submitted that the accuracy of the annotations did not arise on his present application for judicial review and involved speculative future eventualities that may or may not happen. The applicant also referred to certain activities being proscribed and subject to criminal penalties so as to make it inappropriate for the Court to intervene on the present application for judicial review. Subject to one matter, I accept these submissions. The one matter is the Registrar's submission that because the annotations were an accurate statement of the law relief should be withheld as a matter of discretion, to which I now turn.
125 This submission by the Registrar necessarily proceeded on the assumption that I would find, as I have done, that the decision to include on the licence the three annotations was not authorised by the statutory regime. I am not presently persuaded of the correctness of the minor premise underlying the submissions, which is that the annotations accurately state how the legislation would apply to a licensee in the position of the applicant in all circumstances, for the reasons set out below. For these reasons, I would not withhold relief on this discretionary basis. It is therefore unnecessary for me to decide upon the correctness of the major premise underlying the Registrar's submission, which is that the accuracy of the annotations would provide sufficient reason for refusing relief in circumstances where the decision to include them on the licence involved the Registrar exceeding his statutory authority, and I do not express a view on that matter.
126 It was submitted by the Registrar that the three annotations set out accurately what it is the applicant would be entitled to do in the ACT under the licence, and applicable conditions, in accordance with the Declaration, Row 11, Column H in Schedule 25 "Mutual recognition matrix - Builders (update 2006 matrix)", under the heading "ACT":
Builders Licence Class A
BCA - All classes
Only valid for work as a nominee
127 The term "construction service" is defined in s 6(2) of the Construction Occupations (Licensing) Act as the doing or supervision of work in a construction occupation. By s 7, the term "construction occupation" includes "builder". By s 8(1) a "builder" is stated to mean an entity that provides, has provided or proposes to provide a building service. By s 8(2) a "building service" is the doing or supervising of building work.
128 By s 28(6) of the Construction Occupations (Licensing) Act, an individual is eligible to be appointed by a corporation or partnership as a nominee if the individual:
(a) is eligible under the regulations to be appointed as a nominee; and
(b) is licensed in the construction occupation and occupation class (if any) appropriate for each of the construction services for which the individual is to be responsible; and
(c) agrees in writing to the appointment.
By s 31(1), a nominee of a licensed corporation or partnership has the following functions:
(a) to supervise the construction services of the corporation or partnership for which the nominee is responsible (the relevant construction service);
(b) to ensure that the relevant construction services comply with this Act and the operational Acts.
129 By reg 19 of the Construction Occupations (Licensing) Regulation:
19 Eligibility to be nominee - Act, s 28 (6)
An individual is eligible to be a nominee of a corporation or partnership if -
(a) for a corporation - the individual is a director or employee of the corporation; and
(b) for a partnership - the individual -
(i) is a partner; or
(ii) is the nominee of a corporation that is a partner in the partnership; and
(c) the individual is licensed in a construction occupation that the corporation or partnership is licensed in or applying to be licensed in; and
(d) the individual is otherwise able to exercise the functions of a nominee on a daily basis; and
Examples
1 The individual is not able to exercise the functions of a nominee on a daily basis if the licensee is the nominee for another corporation that has no other nominees and is doing a lot of construction work.
2 The individual is reasonably able exercise the functions of a nominee if the nominee is available to attend locations where the construction services the nominee will be responsible for supervising are being carried out.
Note An example is part of the regulation, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(e) for a construction occupation divided into classes - either -
(i) the individual is licensed in the same class as, or a class that allows the exercising of the same functions as, the class the corporation or partnership is licensed in or applying to be licensed in; or
(ii) the corporation or partnership has a nominee mentioned in subparagraph (i); and
(f) the individual's licence is not subject to 1 or more of the following conditions (however described):
(i) that the individual must not be a nominee for a stated period, and the period in question is within the stated period;
(ii) that the individual must not supervise trainees or licensees;
(iii) that the individual must be supervised by someone else.
Note For functions of nominees, see the Act, s 31.
130 Against that legislative background, I consider each annotation separately to indicate why I am not presently persuaded that they accurately state how the legislation would apply to a licensee in the position of the applicant in all circumstances.
131 The first annotation is that the holder is not authorised to provide building services in any licence class.
132 It may be recalled that by s 17(2) of the Mutual Recognition Act, the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in, here, the ACT, so long as those laws apply equally to all persons carrying on or seeking to carry on the occupation under the law of the ACT and are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
133 Also, s 20 of the Mutual Recognition Act provides that a person who lodges a notice under s 19 is entitled to be registered in the equivalent occupation as if the law of, in this case, the ACT that deals with registration expressly provided that the registration in, in this case, Queensland is a sufficient ground of entitlement to registration.
134 Understood in this context, it cannot have been intended that the Declaration confer a licence on a person in the position of the applicant which does not enable them to become a nominee or provide building supervision services without separately obtaining a licence in the ACT. At the very least, the phrases "Builders Licence", "Class A" and "valid for work as a nominee" contemplate that the Registrar would licence a relevant applicant as a builder, in the licence class "class A" (see Construction Occupations (Licensing) Regulation, Sch 1, Part 1.3), to provide building services extending at least to what is inherent in the role of a "nominee" of a corporation or partnership as outlined in s 31(1)(a) of the Construction Occupations (Licensing) Act, namely, "to supervise … construction services". To adapt the terminology of the definition of "building services", a licence condition or limitation that the holder not "do", as opposed to "supervise", building work would be consistent with this understanding of the Declaration, but such a condition would not of itself prevent the appointment of the holder, as a person licensed in a construction occupation and a construction occupation class, as the nominee of a company or partnership in respect of that occupation and class.
135 It follows, in my opinion, that the first annotation appears impermissibly to detract from the content of the entitlement to registration conferred by s 17(1)(a) and to carry on the equivalent occupation conferred by s 17(1)(b) by stating that the holder is not authorised to provide building services (which as defined in the Construction Occupations (Licensing) Act includes supervision of building work) in any licence class. It seems to me that if there is a problem of the kind feared by the Registrar then the solution lies elsewhere.
136 First, as I have said, that the applicant not "do", as opposed to supervise, building work is consistent with a proper construction of the Declaration. If it is feared that a company or partnership for which the applicant may at some unknown point in the future be appointed a nominee may seek to obtain a licence to "do" building work, or which enables building work to be carried out without the involvement of any person licensed to "do" that work, that situation (which is not the subject of any evidence before me) may be dealt with as it arises under the ordinary licensing process for the company. The licences of companies are not covered by the Declaration: see [17] above. For instance, and depending on the circumstances, the Registrar may be able to meet that situation with conditions on the company or partnership's licence that, for building services provided by the company or partnership and supervised by the applicant, building work be done by builders licensed to do that work.
137 Second, if any difficulty persists, that difficulty is ultimately with the form of the Declaration and the stated equivalence of the occupation requiring a "Builder - Open Licence - Site Supervisor Grade" and the occupation requiring a "Builders Licence Class A BCA - All classes only valid for work as a nominee". This is because the general principle in s 29(1) of the Mutual Recognition Act as to occupations taken to be equivalent "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)" has effect subject to any relevant declarations in force under Division 4 (see s 29(3)) and because, as I have said, the Registrar is required by s 32(4) to give effect to the Declaration. In effect, the Declaration excludes whatever may otherwise have been the evaluative role of the Registrar in assessing the equivalence of the two relevant occupations in this case. The problem, if it exists, may be fixed by amendment of the Declaration under s 32(3) by the Ministers who made it.
138 The second annotation is that the holder is authorised to supervise building services that are provided for or on behalf of the partnership or corporation by individuals who hold a licence in the appropriate class for those construction services.
139 Section 31(1)(a) of the Construction Occupations (Licensing) Act provides that a nominee (of a licensed corporation or partnership) has as one of the nominee's functions to supervise the construction services of the corporation or partnership for which the nominee is responsible.
140 One possible defect in the second annotation is that, unlike the third annotation, it does not use the language of "required" to supervise, although by s 31(2) of the Construction Occupations (Licensing) Act the nominee commits an offence if the nominee fails to adequately supervise the relevant construction services.
141 A second possible defect is that the second annotation, by using the expression "by individuals who hold a licence in the appropriate class for those construction services", purports to add an unwarranted gloss to the terms of s 31 of the Construction Occupations (Licensing) Act. The expression would seem to be consequential on, and cover the same ground as, the first annotation.
142 A third possible defect is that the second annotation does not seem to take into account the provisions of reg 35 of the Construction Occupations (Licensing) Regulation. This regulation contains a provision to the effect that, leaving aside trainees, building services may be provided by an individual without a licence if done under the supervision of a licensed individual, or the nominee of a licensed corporation or partnership, authorised by the licensed to provide the service.
143 In my view, the substance of the second annotation would be more accurate, so far as it goes, if it read: "the holder is authorised to supervise building services that are provided for or on behalf of the partnership or corporation."
144 The third annotation is that the holder is required to ensure that the building services mentioned in the second annotation comply with the Construction Occupations (Licensing) Act and related operational Acts set out in s 16.
145 Section 31(1)(b) of the Construction Occupations (Licensing) Act provides that a nominee (of a licensed corporation or partnership) has as one of the nominee's functions: "to ensure that the relevant construction services comply with this Act and the operational Acts." By s 31(2)(b), the nominee commits an offence if the nominee fails to ensure that the relevant construction services, being the construction services of the corporation or partnership for which the nominee is responsible as defined in s 31(1)(a), so comply.
146 It follows, in my view, that the third annotation, considered by itself and apart from any difficulties that may arise from the use of the term "those building services" which use refers back to the second annotation, appears accurately to state the effect of the Construction Occupations (Licensing) Act.
147 The respondent Registrar put forward three other discretionary arguments, being delay, the existence of an alternative remedy and lack of utility.
148 As to delay, I take into account what I have found to be the unexplained delay in commencing the proceedings. I do not accept the submission on behalf of the applicant that there was a failure to make a decision, the failure was ongoing, so it was not appropriate or possible to attempt to tether the application to any particular timeframe where the decision that was required to be made had not been made. In my opinion there was a decision made by the Registrar even though the applicant disagreed with it and considered it to be legally flawed. I also take into account that there is no prejudice to the Registrar claimed to flow from that delay. Although important, neither of these factors, unexplained delay and absence of prejudice to a respondent, dictates a particular conclusion since the overarching consideration is the interests of justice: see, albeit under a different statutory regime, Comcare v A'Hearn [1993] FCA 498; 45 FCR 441 at 444. I take into account that the issue between the parties is a significant one in terms of the administration of the ACT Construction Occupations (Licensing) Act and the Construction Occupations (Licensing) Regulation in light of the Mutual Recognition Act and the Declaration. As I have said above in relation to the Registrar's objection to competency, I also take into account that there would seem to be no barrier to the applicant making a fresh application for registration in the ACT under the Mutual Recognition Act. I do not withhold relief on the basis of delay in the commencement of the proceedings. Taking into account the matters set out above and the merits of the substantive application, I am satisfied that it is proper to grant the relief sought.
149 As to the existence of an alternative remedy, the issue under s 10(2)(b)(ii) of the AD(JR) Act is whether adequate provision is made by any law other than that Act under which the applicant is entitled to seek a review "by another tribunal, authority or person, of that decision…". The word "review" is widely defined in s 10(3). As I have said, there is also the discretion under s 16 of that Act and the remedies under s 39B of the Judiciary Act are themselves discretionary.
150 As illustrated by Kamha v Australian Prudential Regulation Authority [2005] FCA 480; 146 FCR 24 at [17] and [40]-[41], where the facts are not in dispute and a discrete question of statutory construction is involved it may be convenient and preferable for the Court to determine that question. Otherwise the result may be that the Tribunal determines that question of statutory construction and then the matter would return to this Court on a question of law under s 44 of the AAT Act.
151 There is a possible point of distinction which is that under s 31 of the Mutual Recognition Act the Tribunal, on a review, may specify or describe conditions that will achieve equivalence. But the question then becomes, under s 30(2), whether a declaration made by the Tribunal and a declaration made by Ministers are inconsistent, in which case the ministerial declaration prevails. As explained in Lawrence v Coal Mining Qualifications Board (NSW) [2004] FCA 37; 38 AAR 470 at [41] per RD Nicholson J, "[t]he regime of declarations established by s 32 exists independently of the regime of declarations resulting from enquiry by the Tribunal established by s 31. The making of a Ministerial declaration pursuant to s 32 renders otiose the same issue of equivalence arising in s 31." At [40] RD Nicholson J said: "When a Ministerial declaration is made there is no purpose in a tribunal acting pursuant to s 31 to carry out a review on the issue of equivalence."
152 The Tribunal therefore needs to construe the Declaration, a legislative instrument, thus giving rise to a question of law. Although the Tribunal may form a view about such a question in the course of its review, it is only a court that can finally determine it.
153 In the present circumstances, I would not exercise the Court's discretion to withhold relief on the basis that provision is made by the AAT Act under which the applicant is entitled to seek a review.
154 As to lack of utility, taken separately from the Registrar's point which I have already considered as to the accuracy of the annotations, the applicant lodged a written notice under s 19 of the Mutual Recognition Act seeking registration for the equivalent occupation in accordance with the mutual recognition principle. By s 20, having lodged a notice under s 19 with the Registrar, the applicant became entitled to be registered in the equivalent occupation. In my opinion, the applicant does not have to go further in the present proceeding so as to show by evidence that he has an intention to exercise the rights flowing from registration in the ACT.
155 In relation to costs, I am not persuaded that there is any basis for the applicant's application for costs on an indemnity basis. The Registrar purported to give effect to the decision of the Tribunal and the course that he took was not, in my opinion, foreclosed by or inconsistent with the decision of the Tribunal.