The applicant contended that the respondent is a building work contractor or a building consultant pursuant to ss 3 and 20 of the BWC Act. Consequentially, the applicant contended that the respondent is required to be licensed and was subject to disciplinary action under the BWC Act. The applicant's contentions were made on the basis that the respondent carries on the business of performing building work or gives advice in respect of building work, in that it provides advice in relation to home support modifications, prepares drawings, assists in obtaining quotes from contractors, and furnishes reports.

The respondent submitted that it is a firm of occupational therapists and is neither a building work contractor nor a building work consultant as defined in the BWC Act and therefore, the Act does not apply to it.

• The respondent was not a building work contractor under the BWC Act. The respondent making recommendations, organising quotes, and assisting in obtaining NDIS funding did not constitute the performance of building work as contemplated by the BWC Act.
• The respondent was not a building work consultant under the BWC Act. The respondent might, as part of its work, comment on whether building work achieves the functional aims of the recommendations that the occupational therapist made. That is not the same thing as carrying on business as a building consultant who writes reports setting out whether the building work complies with the relevant statutory warranties, regulatory requirements or requirements of the Building Code.
• Parliament did not intend that an occupational therapist who is regulated under the National Law and subject to that disciplinary regime, to also be subject to disciplinary sanction under the BWC Act that is concerned with regulation of the building industry rather than conduct of health professionals.

Building Work Contractors - Complaints against building work contractors - Complaint by consumer - Proper cause for disciplinary action - Acting unlawfully, improperly, negligently, or unfairly in the course of conducting the business of the contractor - Application dismissed

Building Work Contractors Act 1995 ss 3, 6, 20, 21, 58, 59

National Disability Insurance Scheme Act 2013 (Cth) s 73E

Duncan v Bert Farina Constructions Pty Ltd [2024] SASCA 67

Woolworths Group Limited v Jackermis [2023] SASCA 31

Ms K Fitzgerald with Ms M Eaton, Gilchrist Connell, appeared for the respondent

1. The respondent is a corporation that carries on the business of providing services of occupational therapy.
2. A director, Timoth Gransbury, is a registered occupational therapist.
3. The applicant has brought disciplinary proceedings against the respondent.
4. Occupational therapy is a 'health profession' as defined in the Health Practitioner Regulation National Law ('National Law'). The National Law is contained in Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010.
5. National Boards may refer disciplinary proceedings against a health practitioner for hearing before the Tribunal.
6. The applicant is not a National Board.
7. These proceedings are not brought under the National Law.
8. Instead, these are disciplinary proceedings brought under the Building Work Contractors Act 1995 ('BWC Act').
9. I have listed the matter for a preliminary determination as to whether the disciplinary provisions of the BWC Act have application to a firm of occupational therapists.
10. The applicant contends that the respondent either carries on business as a building work contractor, and therefore should be licenced under the BWC Act, or alternatively falls within the definition of a building consultant under the BWC Act and is thereby able to be the subject of disciplinary action under the BWC Act. The respondent contends that it is a firm of occupational therapists and is neither a building work contractor nor a building work consultant as defined.
11. The preliminary hearing involved a combination of affidavit evidence, oral evidence, receipt of documentary evidence, written submissions and oral submissions. The preliminary hearing did not descend into the detail as to whether the allegations which are said to amount to cause for disciplinary action in fact so amount. Rather, the focus of the preliminary hearing was on what work the respondent does, what kind of work was done in relation to the applicant, and whether the nature of the work is such that the disciplinary provisions of the BWC Act are enlivened.
12. For the reasons that follow I find that the respondent is neither a building work contractor nor a building consultant as defined by the BWC Act.

1. Section 3 of the BWC Act provides for a number of definitions. I have underlined the particular parts of the definition that are important to the applicant's argument.

"building work contractor" means - > > (a) a person who carries on the business of performing building work for others; > > or

(b) a person who carries on the business of performing building work with a view to the sale or letting (whether by lease, licence or other agreement) of land or buildings improved as a result of the building work;

"building" includes a wall or structure and part of a building or structure;

"building work" means -

(a) the whole or part of the work of constructing, erecting, underpinning, altering, repairing, improving, adding to or demolishing a building; or

(b) the whole or part of the work of excavating or filling a site for work referred to in paragraph (a); or

(c) work of a class prescribed by regulation;

"perform", in relation to building work, includes -

(a) cause building work to be performed; or

(b) organise or arrange for the performance of building work;

1. The applicant places emphasis on the words 'organise or arrange for the performance of building work' in relation to the definition of 'perform'.
2. Section 6 of the BWC Act contains an obligation on a building work contractor to be licenced. Subsection (1) provides:

(a) carry on business as a building work contractor except as authorised by a licence under this Part; or

(b) advertise or otherwise hold himself or herself out as being entitled to carry on business as a building work contractor unless authorised to carry on business as such a contractor by a licence under this Part.

1. One of the applicant's contentions is that the respondent organises or arranges for the performance of building work, in that the respondent provides advice as to what modifications a person with a disability should have for their home; proceeds to prepare drawings; assists to obtain funding under the National Disability Insurance Scheme ('NDIS'); and helps obtain quotations from and introductions to building work contractors for the performance of that work. In this case the respondent introduced the applicant to a contractor called Dave's Bathrooms. The applicant complains about the quality of work performed by Dave's Bathrooms, and asserts amongst other things that contracts prepared did not comply with the requirements of the BWC Act. For present purposes the point of the argument is that by carrying on a business which is said to include organising or arranging for the performance of building work, the applicant says that this leads to the requirement to be licenced under the BWC Act, and the failure to hold that licence amounts to a breach of the BWC Act thereby amounting to unlawful behaviour justifying disciplinary action.
2. Part 4 of the BWC Act deals with disciplinary proceedings.
3. Section 20 contains a number of definitions that apply in respect of Part 4.
4. These include:

"building work contractor" includes - > > (a) a former building work contractor; and

(b) a person licensed as a building work contractor, whether or not carrying on business as a building work contractor; and

(c) a person formerly licensed as a building work contractor under this Act or as a builder under the repealed Act;

"building consultant" means a person (other than a registered architect) who carries on the business of giving advice or furnishing reports in respect of domestic building work (whether being work already performed, work in progress or work that may be required in the future), and includes a former building consultant;

1. The definition, for the purposes of Part 4, of building work contractor is suggestive of someone who used to be a building work contractor, currently holds a builder's licence or used to hold a licence as a building work contractor. That would seem unlikely to include the respondent as a firm of occupational therapists.
2. The definition of a building consultant is a matter I return to later in these reasons. For present purposes, the applicant's proposition is that by giving advice as to what modifications should be made to a house to accommodate a person with a disability, the respondent is carrying on the business of a building consultant.
3. It was not alleged that the respondent is a building work supervisor. For completeness, I note the definition in s 20 of a building work supervisor is:

"building work supervisor" includes - > > (a) a former building work supervisor; and

(b) a person registered as a building work supervisor whether or not acting as a building work supervisor; and

(c) a person formerly registered as a building work supervisor under this Act or the repealed Act;

1. The respondent is not and never has been registered as a building work supervisor. Nor does it supervise the carrying out of building work.
2. Section 21 of the Act provides that:

21 - Cause for disciplinary action > > (1) There is proper cause for disciplinary action against a building work contractor if -

(a) licensing of the contractor was improperly obtained; or

(b) the contractor has acted contrary to an assurance accepted by the Commissioner under the Fair Trading Act 1987; or

(c) the contractor or another person has acted contrary to this Act or otherwise unlawfully, or improperly, negligently or unfairly, in the course of conducting, or being employed or otherwise engaged in, the business of the contractor; or

(d) the contractor has failed to comply with an order made by a court under Part 5; or

(e) events have occurred such that the contractor would not be entitled to be licensed as a building work contractor if the contractor were to apply for a licence.

(2) There is proper cause for disciplinary action against a building work supervisor if -

(a) registration of the supervisor was improperly obtained; or

(b) the supervisor has acted unlawfully, improperly, negligently or unfairly in the course of acting as a building work supervisor.

(3) There is proper cause for disciplinary action against a building consultant if -

(a) the consultant has acted contrary to an assurance accepted by the Commissioner under the Fair Trading Act 1987; or

(b) the consultant has acted unlawfully, improperly, negligently or unfairly in the course of acting as a building consultant.

(4) Disciplinary action may be taken against each director of a body corporate that is a building work contractor or building consultant if there is proper cause for disciplinary action against the body corporate.

(5) Disciplinary action may not be taken against a person in relation to the act or default of another if that person could not reasonably be expected to have prevented the act or default.

(6) This section applies in relation to conduct occurring before or after the commencement of this section.

1. The applicant's complaint focuses on the respondent being alleged to have acted unlawfully, improperly, negligently or unfairly in the course of acting as either a building contractor or a building consultant. Amongst other things, the applicant alleges that the respondent traded without a building licence, the Dave's Bathroom's contract did not comply with the statutory requirements for building contracts, and that the purported charging of variations to the contract amounted to some kind of NDIS fraud of which the respondent was complicit by 'subcontracting to Dave's Bathrooms' and providing a letter of support for Dave's Bathrooms when there was a dispute about non-payment by the applicant of Dave's Bathrooms' invoice. The applicant says the respondent committed a criminal offence by telling the NDIS that the work was compliant when the applicant said it was not.
2. If the respondent is not a building work contractor or a building consultant, then the proceedings cannot succeed and should be dismissed.
3. The respondent submits that the proceedings should be so dismissed on the basis that the BWC Act does not apply to it.
4. The applicant also sought to rely on s 59(1) of the BWC Act:

(1) In proceedings in respect of an offence against this Act, if it is proved that a person performed building work for another for fee or reward, the person is, unless the contrary is proved, to be taken to have been carrying on business as a building work contractor.

1. Section 59 is not of assistance to this matter. There are a number of provisions of the BWC Act the contravention of which constitute an offence. Proceedings for an offence under s 58 cannot be commenced except by the Commissioner, an authorised officer under the Fair Trading Act 1987 or a person who has the consent of the Minister to commence the prosecution (none of which apply to the applicant). Disciplinary proceedings under Part 4 are not the same thing as a prosecution for an offence under s 58. Section 59 accordingly has no application to this matter. In any event the onus would still be on the applicant to prove that the respondent 'performed building work'.
2. For the purposes of the preliminary argument the facts are largely non contentious. The respondent reserved its position as to whether documents tendered without objection on the preliminary argument might be objected to at a final hearing on the merits.
3. The applicant is a person requiring assistance with speech, mobility, and personal care due to Motor Neurone Disease. He was assisted by his wife in these proceedings who was articulate and both caring and passionate in her support of her husband. On the basis of a medical report from Associate Professor Kneebone of 1 October 2024 and a series of questions asked at an earlier directions hearing, the Tribunal was satisfied that notwithstanding the evidence of a degree of cognitive difficulty, that the applicant had sufficient capacity to make decisions, understood the risks of proceeding with this matter, did not require a litigation guardian to be appointed, and that it was appropriate that his wife be permitted to assist him in presenting his case. Nonetheless it is to be born in mind that the applicant has a degree of vulnerability.
4. The NDIS has a website, which amongst other things contains information relevant to registration. Some of that appears on the webpage, and some parts of the webpage has links to pdf documents to download. The applicant cut and pasted parts of the website into an email. I have gone to the full website to make sure the references are complete and accurate. The applicants draw attention to the following.
5. The registration process for the NDIS requires a provider to choose a 'registration group'. The application form requires the specification of registration groups or classes of support that are being applied for.
6. In the case of the respondent, the respondent is registered under the NDIS. Its status is "approved".
7. There are no conditions on the registration.
8. The registration is for the groups:

1. Part of the website has a link to a pdf document called "Provider Registration Guide to Suitability". Part of that document describes Home and Vehicle Modification Groups.
2. Group 0111 is "Home Modification Design and Construction (Home Modification).
3. It states:

This registration group, incorporates design and subsequent changes to the participants home. Home modification design and construction includes installation of equipment or changes to building structures, fixture, or fittings to enable participants to live as independently as possible or to live safely at home.

4. Group 0111 contains a list of professions. In addition to builders, architects, electricians are, amongst other things, Occupational Therapists and Rehabilitation Engineers. Under the box "additional guidance" it says:

Experience and understanding of concepts and limitations of AS1428 and other disability access standards and their application in accordance with a persons needs and specifications of plans. Must hold current license or registration in the relevant State or Territory.

1. The list of professions relevant to registration group 0111 is set out as:
   • Architect
   • Builder
   • Building Inspector/Works Assessor
   • Building Surveyor
   • Building Work Supervisor
   • Building Work Project Manager
   • Carpenter/Joiner
   • Electrician
   • Plumber/Gas Fitter/Drainer
   • Tiler
   • Occupational Therapist
   • Rehabilitation Engineer
2. Under the heading "Professional Qualifications" the guide states:

Some supports must be delivered by people with specific qualifications, experience or licensing. Some professions (e.g., those regulated under AHPRA) also require registration or certification independent of any requirements relating to disability services. The table below outlines a list of professions and the usual expectation about qualifications or credentialing, for registration purposes. For example, where the profession is listed as "Physiotherapist", the provider is declaring as part of the registration process that they are a qualified and AHPRA registered Physiotherapist. Some states and territories will also require professions to meet other additional requirements for some registration groups. You can find further information in the relevant state or territory section in this guide. You can contact provider.registration@NDIS.gov.au for advice about qualifications or experience not listed. > > The following health professions are regulated and must hold current AHPRA registration:

• Registered Nurse
• Podiatrist
• Occupational Therapist
• Psychologist
• Physiotherapist

The following professions must meet the registration or certification requirements of the relevant State or Territory:

• Architect
• Builder
• Build Inspector/Works Assessor
• Building Surveyor
• Building Work Supervisor
• Building Work Project Manager
• Carpenter/Joiner
• Electrician
• Plumber/Gas Fitter/Drainer
• Tiler
• Mechanic
• Teacher

Professional qualifications or membership (all qualifications and memberships must be current) > > Profession name - Professional qualifications or membership (all qualifications and memberships must be current) > > Audiologist - Audiology Australia accredited Audiologist or Audiologist member of AC_Aud_ equivalent > > Dietitian - Accredited Practising Dietitian with the Dietitians Association of Australia > > Orthoptist - Registration with the Australian Orthoptic Board > > Orthotist - Membership with the Australian Orthotic Prosthetic Association and/or recognition by a state/territory orthotic program as a qualified orthotic practitioner > > Pedorthist - Registration with the Australian Register of Pedorthists > > Prosthetist - Membership with the Australian Orthotic Prosthetic Association and/or recognition by a state/territory prosthetic program as a qualified prosthetic practitioner > > Speech Pathologist - Practicing membership with Speech Pathology Australia > > Audiometrist - Membership with the Hearing Aid Audiometrist Society of Australia or audiometrist member of AC_Aud_ equivalent > > Art Therapist - Membership with the Australia New Zealand Arts Therapy Association (ANZATA) Developmental Educator - Full membership of Developmental Educators Australia Inc (DEAI) > > Exercise Physiologist - Accredited exercise physiologist with Exercise and Sports Science Australia (ESSA) > > Interpreter/Translator - Certified or Recognised Practising Interpreter or Translator with the National Accreditation Authority for Translators and Interpreters Ltd (NAATI) > > Music Therapist - Active "Registered Music Therapist" with the Australian Music Therapy Association > > Social Worker - Membership with Australian Association of Social Workers Rehabilitation Counsellor - Membership with the Australian Society of Rehabilitation Counsellors Inc or equivalent > > Welfare Worker - Membership with the Australian Community Workers Association or equivalent > > Counsellor - Membership with the Australian Counselling Association or equivalent > > Personal Trainer - Personal training qualification, Certificate III, IV or Diploma in Fitness or equivalent > > Accountant/Book-keeper - membership with ATMA, AAT, CBK, ACCA, ABAL, CPA, ICB, IPA or CAANZ or equivalent > > Rehabilitation Engineer - Chartered Professional Membership with Engineers Australia > > Aboriginal Health Worker - Registration with the Aboriginal and Torres Strait Islander Health Practice Board of Australia.

1. The applicant says the requirement to hold a licence or registration in respect of home modifications must mean that a profession registered in the category of home modifications must hold a building work contractors licence.
2. I do not agree. The document refers to health professions having to hold current AHPRA registrations, and other professions having registration or certification requirements under State Law. Whether or not a professional with a licence relevant to their profession also has to have a builders' licence will depend on exactly what work they are doing.
3. The part of the guide relating to home modifications contemplates an occupational therapist being a relevant profession - occupational therapists hold registration under the National Law. It also refers to architects. In South Australia there is an Architectural Practice Board pursuant to which architectural businesses are registered. Rehabilitation Engineers are referred to, and their requirement relates to registration membership with Engineers Australia. A Rehabilitation Engineer is defined on that bodies' website as:

A rehabilitation engineer is a professional engineer applying informed theory and practice, including specialised knowledge and application of technologies, to safeguard and improve the quality of life of people who use, or would benefit from, AT, often in collaboration with a multidisciplinary team > > (AT stands for Assisted Technology).

4. Rehabilitation Engineers do, amongst other things related to posture, mobility, clinical movement, brain computer interfaces, mobility aids, "home accessibility", "work site modifications".
5. Thus if architects are not registered under the BWC Act, engineers are not registered under the BWC Act, and occupational therapists are not registered under the BWC Act in relation to the usual work they do, then the NDIS registration requirement in the website box is more likely to refer to having registration to practice in the particular profession as opposed to a requirement to be registered under the BWC Act. Supporting that inference is the table I summarised above. Also supporting that inference would be the fact that the NDIS did approve the respondent's registration as an NDIS support provider which I infer was without requiring proof of the holding of a builder's licence.
6. Section 73E of the National Disability Insurance Scheme Act 2013 (Cth) ('NDIS Act') provides that the Commissioner may only register a person as a registered NDIS provider if certain criteria are satisfied. One of those criteria is that the Commissioner is satisfied that the applicant is suitable to provide supports or services to people with disabilities, and is satisfied that the key personnel are suitable.
7. The NDIS Quality and Safeguards Commission website has an audit and verification process attached with applications and renewal of applications. In relation to registration group 0111 the audit requirement is described as 'verification'.
8. Having regard to the fact that the respondent is registered as an NDIS provider I infer that the Commissioner was satisfied that the relevant criteria for registration were met.
9. The NDIS website discusses home modifications.

Home modifications are custom-built changes to a participant's home to help them access and use areas of their home. > > Home modifications can be minor changes or they can be more complex. > > Minor home modifications are home modifications that don't change the structural parts of the home or cost more than $20,000. They have 2 categories:

• Category A minor home modifications cost under $10,000.

• Category B minor home modifications cost between $10,000 and $20,000, or they involve minor modifications to a bathroom floor. These are funded using a set NDIS budget based on current market costs in MMM1 locations using the Modified Monash Model (MMM).

Complex home modifications usually need building approvals or permissions, and certification of work such as plumbing and electrical works. They may involve highly complex or technical works, or impact several areas of a participant's home. > > Home modification (HM) assessments > > The NDIA needs sufficient evidence to decide which home modification supports are reasonable and necessary to include in a participant's plan. > > Plans include funding for a home modification assessment and should also include advice on the scope of the home modification to be assessed (for example, improved access to the bathroom). > > Home modifications assessors > > A home modifications assessor is an occupational therapist with skills to provide detailed and complex home modifications assessments. > > The NDIA expects that a home modifications assessor required for Category B minor home modifications and complex home modifications should demonstrate:

• Professional qualifications and meet the registration requirements as an occupational therapist
• A good understanding of the scope and purpose of the NDIS, particularly as it relates to the goals and use of supports in a participant's plan to achieve agreed outcomes
• Successful completion of post graduate education and/or training specifically on the assessment, specification and implementation of complex home modifications that may include at least one of the following:
  • Occupational Therapy Australia peer reviewed education and/or training on Complex Home Modification
  • Associate Member or above of the Association of Consultants in Access Australia (ACAA) - professional credential
  • Successful completion of Nationally Recognised Training modules CPPACC4020 and CPPACC5016
  • Employment at Senior Clinician level specifically responsible for Complex Home Modification assessment.
  • NDIS registered providers who successfully completed NDIA-authorised training in Complex Home Modification assessment during the trial phase of the NDIS prior to 30 June 2016.

1. The website then goes on to provide links for guidance for home modifications assessors.
2. There are also separate links for guidance for "builders and designers".
3. For both home modification "assessors" and "builders and designers" the guidance documents cross reference AS 1428 which deals with design for access and disabilities.
4. Other NDIS information on the website describes the process of funding home modifications. It has a section relating to permits and approvals:

States and territories have different rules about building approvals and permissions and when you need a building contract. You and your builder are responsible for making sure you have the right approvals and permissions for your building works. > > You'll need to check your local council requirements for your home modifications. Most local councils will have information on their website or you can call them. > > We'll tell you if you need to give us written confirmation that you have the appropriate building approvals and certifications. We might need this before we can make certain payments to you or the provider. You'll need the necessary certifications for the completed work before we can pay or approve the final stage payment for home modifications. > > Minor home modifications may also need trade certifications, such as an electrical certificate of compliance. Or plumbing certification for changes that affect the 'wet seal', such as modifications to a bathroom floor or lower walls. > > You are responsible for making sure your home modifications meet the legal and administrative requirements. Your building works project manager can help you check your home modification complies with the required standards. > > What are your responsibilities for contracts? > > You, or the homeowner, will sign the building contract and enter into a legal agreement with your builder. We are not a party in this contract or involved in this agreement. > > Your commitments are the same as if you were paying for the work with your own money. This includes making sure you or your providers comply with any local authority regulations for the modifications.

1. In relation to the topic of adding to home modifications there is this reference to the role of the occupational therapist:

Your occupational therapist or home modification assessor needs to approve any changes to your recommended supports. They need to check the modifications will still meet your needs.

1. There is also this explanation of the difference between the role of the occupational therapist and the role of the builder:

Home modification assessors > > Home modification assessors are occupational therapists who are qualified to recommend more detailed home modifications supports. They will review your functional needs and goals in your home. > > Your home modification assessor will recommend the specific home modification supports you need and explain how they relate to your disability and goals. You should make sure your assessor understands what you want the home modification to achieve. > > They can also help identify if you'll need additional supports while your modifications get done, like hire facilities or temporary accommodation. > > Your home modification assessor may work with a building construction practitioner. They will work together to complete the home modification assessment report and submit this to us. We have assessment templates on our website. > > Your home modification assessor should be independent from your builder. > > When your home modification is complete, your home modification assessor may review your NDIS funded home modification supports. For complex home modifications they will do another assessment with you after you've been using your new supports. This is to make sure the home modification meets your disability support needs. > > Builders > > Builders construct your home modifications. Builders are responsible for meeting all legal and administrative requirements, like the National Construction Code and Australian Standards. They are responsible for making sure the building site is safe when home modification works are underway, and for fixing their work if they get it wrong. > > You should have a service agreement with your builder. Or you can use a building contract if your state or territory building authority requires one. The service agreement or building contract details what modifications will be done and how much they will cost. > > It should outline which providers are responsible for the work, and how and when your modifications will be completed. The service agreement or building contract should also outline:

• - what the builder is responsible for
• - what you are responsible for
• - who will be liable if things go wrong
• - how risks will be managed.

If you have complex home modifications, it's best they are managed by only one builder. This is important when your home is a building site. It means one builder will manage all the trades in your home and is responsible for safety requirements. It's also usually better value for money. > > A building works project manager can help you check your contract and arrangements with your builder. > > Building construction practitioners > > Building construction practitioners have building knowledge and expertise to:

• - give advice on the design and cost of home modifications
• - outline the scope of work
• - provide drawings so builders can give quotes on the works.

They could be an architect, engineer, builder, or other building related practitioner. They should be independent from any of the builders who provide quotes for your job. > > A building construction practitioner will work closely with you and your home modification assessor to help plan the home modification. They will make sure the home modification supports recommended by your assessor are possible in your home. They will also work out how the modifications can be done in the most effective way. > > Your building construction practitioner will review your property and home. They will give information to support the home modification assessment. They will also identify if any preliminary works by building specialists like engineers, surveyors or architects, are needed to help plan your modifications. > > You can ask your building construction practitioner to also be your building works project manager if they have the right skills and if we have funded this. > > You can ask your building construction practitioner to help you check builder credentials and get builder quotes. > > Building works project managers > > If you have a very complex home modification, we'll include funding for a building works project manager. This could be because the work is high risk, or if you need extra help to manage the home modification. > > Your building works project manager is independent from your builder. They can help you understand your building contract and communicate with your builder. > > ... > > [The document goes on to also refer to Independent Building Certifiers] > > Other building professionals > > Some complex home modifications may need building professionals with special skills, like engineers, surveyors, or other building experts. We can only fund these services if they meet the NDIS funding criteria. > > Your building construction practitioner will identify if a building professional is needed to help plan your home modification, or during or after construction. > > If we don't fund a building professional, you can choose to pay for this based on your individual needs. > > In some cases, NDIS funded home modifications may be part of your larger building project. You'll need to decide whether to hire professionals with special skills to manage the risks involved in your own building project. We'll only fund building professionals related to the NDIS funded building works. We don't provide funding related to your private works.

1. Thus, in the field of home modifications, the NDIS scheme contemplates multiple professionals potentially being involved. The role of the occupational therapist in recommending what supports are required is different to the role of, say an engineer, architect or project manager, and that in turn is different to the role of the builder who actually organises and performs the building work. I note that in oral evidence Mr Gransbury, by reference to that document, said he performed the role of 'home modification assessor'.
2. My conclusion that the registration process is such that the NDIS needs to be satisfied that the person applying for registration holds appropriate professional qualifications, and what those qualifications are will turn on the work they do. What the NDIS registration process requires is not determinative of whether the respondent had to hold a builder's licence under South Australian legislation to do the work they did. Whether they did or did not need to hold a licence falls for determination on whether the BWC Act requires them to hold a licence, not what the applicant's interpretation of the NDIS registration process requirements are. The NDIS clearly distinguishes between the role of the occupational therapist and the role of the builder. That there is a registration category of 'home modification' which an occupational therapist can be registered in does not mean that the occupational therapist is a builder or holds themselves out as a builder - indeed as I set out below in this matter the respondent was not the builder - the builder was Dave's Bathrooms.
3. The applicant says that the respondent advertises itself as a builder and points to the respondent's website, where details about Mr Gransbury record that:

He has a passion for rehabilitation, assessing and prescribing complex home modifications and is one of a small number of therapists in the state with specialist NDIS training to complete major home modifications.

4. The applicant says that this is Mr Gransbury advertising himself out as being entitled to carry on business as a building work contractor. The first part of the quotation suggests that he assesses and prescribes complex home modifications (which is a different thing from performing building work). The second part refers to NDIS training to complete major home modifications. I set out below the details of that training course. The words 'complete major home modifications' might in isolation be suggestive of performing building work. But there is a danger in drawing too big an inference words from an isolated section of the website. I have had a look at the website page as a whole which explains that the respondent is a firm of occupational therapists and have formed the view that no reasonable person would draw the inference from the website that the respondent is holding itself out as being entitled to carry on business as a building work contractor. The extract comes from a page entitled 'Your therapists at Abilities OT'.
5. The applicant refers to a letter from the respondent's solicitor dated 2 August 2024 to Mr and Mrs Dunne which states in part, "We refer to a series of complaints you have raised with our client regarding its involvement in recommending home modifications and building works that followed," and says that is an admission that the respondent is a building consultant within the meaning of the Act.
6. There is no dispute that the respondent does provide recommendations about what modifications should be made to houses for people with disabilities. I return to this topic below when I address the question of whether the respondent is a building consultant for the purposes of the BWC Act. The email referred to is not a binding admission that the requirements of the section of the BWC Act are made out. It was a letter asking for all correspondence about the complaint to be directed to the solicitors for the respondent rather than the respondent directly.
7. The correct process is to look at the facts of what the respondent does in its business and what it did on this occasion. I expand on those facts before returning to the argument of the applicant that the respondent advertises that it does building work.
8. Mr Gransbury sets out in his affidavit that he is a registered occupational therapist with AHPRA registration.
9. He says that the respondent provides occupational therapy services. Part of the work that the respondent does is in the area of home modifications.
10. In oral evidence Mr Gransbury described his work in relation to home modifications as follows:

A complex home modification assessment involves myself making an appointment with a particular client. I will then attend the home of that particular client. We will talk through their background. It might be their disability or particular illness that they have. We will talk through and given my registration as an occupational therapist, I have an understanding of their disability. I then will talk through what their future goals are, whether it be they wish to remain in their house until they pass away, or as their condition may continue to degenerate. I then make a series of recommendations based on that person, based on their home environment and based on what they choose to do and their goals. And, then come up with a series of recommendations and put that into a report.

1. Mr Gransbury has completed a training therapy course for the NDIA - Advanced Practice and Application of Home Modifications over two days in 2016.
2. Details of the course are set out in the book of documents. The course description included:

Many NDIS participants report difficulty managing everyday activities in their homes. For some, this is due to poor technique, for others - a lack of equipment or minor home modifications such a simple ramps and rails. For a limited view, there may be a need for complex home modifications: those requiring structural changes to the dwelling. > > Whilst any Occupational Therapist is able to prescribe simple home modifications for National Disability Insurance Scheme (NDIS) participants, the National Disability Insurance Agency (NDIA) has introduced a process where the prescription of complex home modifications is limited to expert Occupational Therapists. These therapists review the participants functional performance and thoroughly investigate all options to assist them to access and use essential areas of their home prior to the prescription of complex modifications. Participants have a choice of these OT's from a list in each region, and are assured that these therapists are experts in this practice area and have been trained in working with the NDIA i.e., considering all alternatives, understanding reasonable necessary and providing the justification documentation required. > > This two-day training package has been designed in collaboration with the NDIA day to address the specific challenges and issues that have been identified for occupational therapists who wish to assess participants with complex home modification requirements and develop concert plans for NDIS participants ...

1. Mr Gransbury deposed that the respondent does not carry on the business of building, construction or building consultancy. He says he has no builder's licence, nor does the respondent, but says there is no need to have one as no building work is performed. In oral evidence he said he knew a lot of occupational therapists, but did not know of an occupational therapist that held a builder's licence.
2. In oral evidence he said he did not have training or any kind of building work qualification. He does not have a 'huge amount' of familiarity with the Building Code of Australia. He said he might make recommendations about what work is required, but not about how the work should be done:

I certainly don't tell them how to do it. So, from an occupational therapist perspective our expertise comes from function. So we have an understanding of their medical condition, we understand how that is going to change over time, how it may evolve. We then work alongside those builders to say: yes, we need to widen it to this point because we need to have a wheelchair fit through it. But, that is certainly where it finishes.

So I do reference the Australian Standard as AS1428.1. So, I will within my report and certainly within those diagrams, I have always drawn up the ramp. So I use specific software to allow me to do that and that is purely based so that I can give the builder a really clear understanding of what needs to happen. I don't tell them how to actually construct it. I just tell them it needs to be a certain length. It may need to be longer than the Australian Standards as well, depending on their function and their disability. So, I can stray from it, based on their actual clinical function and their predicted future function.

4. AS1428.1 is a standard that relates to disability access.
5. He might say what items are needed to be built in a bathroom, but not how to build them:

I have no idea about where plumbing goes and everything like that. Quite often, with those complex modifications we're talking about removing walls. Because the average standard house is fairly small. So, more often that not, I'm recommending walls be removed, but I'm not getting to the level of detail as far as relocating plumbing or electrical work because I don't have the knowledge about that.

6. He said that if a builder raised difficulties with what he recommended, then he would follow the builder's advice and amend his recommendations accordingly.
7. In oral evidence he described how he arranged NDIS funding:

So, in relation to NDIS funding, that particular report you're referring to, which has got the recommendations based on all the photographs and things like that, the NDIS have an assessment template that we fill out that provides a bit more about the medical background and what our recommendations are. So that basically the NDIS can look at the application form and form their judgment about the extent of the home modifications, which is outlined in that second document with the photos, that they can make a decision as to how much or how little funding they will contribute to that person's application.

8. He referred to the NDIS Service Agreement entered between the respondent and the applicant. It had a commencement date of November 2022. Its terms included:

The NDIS and this Service Agreement > > This Service Agreement is made for the purpose of providing supports under the Participant's National Disability Insurance Scheme (NDIS) plan. > > The Parties agree that this Service Agreement is made in the context of the NDIS, which is a scheme that aims to: > > • support the independence and social and economic participation of people with disability, and > > • enable people with a disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports. > > Schedule of supports > > The Provider agrees to provide the Participant occupational therapy assessment and intervention. > > .... > > [under the heading of consents]: > > I consent to having an Occupational Therapy assessment and intervention undertaken of my function and/or home environment. I understand that this is being done to provide recommendations and advice regarding my ongoing safety and independence. > > I consent to having photographs taken of my home in order to improve the accuracy of possible recommendations if indicated.

1. The schedule of supports is attached to the agreement and includes - an initial assessment; investigations; preparation of a report; NDIS paperwork and follow up.
2. Mr Gransbury said that on 12 December 2022 he, on behalf of the respondent, did a complex home modification assessment with the applicant in his home. He said that the purpose of the assessment was to assess how the applicant functions within his home, and whether he requires any further support/modifications to the home to improve his current and future functional independence. The assessment findings are finalised in a report entitled "Home Modifications Form" dated 22 December 2022.
3. The 22 December document includes the following recommendations:

80.1 Installation of automated swing dates to enable independent wheelchair access into and out of the front access;

80.2 Installation of a retrofitted automatic door opener;

80.3 Changes to the lounge access to enable wheelchair access including removing an existing doorway, widening the opening and replacing with a new door, relocating light switch.

80.4 Changes to the bathroom and toilet areas: removing a lined cupboard; adding an external sliding door and widen bathroom; remove walls between toilet bathroom shower bath and existing vanity; changes to alcove; retiling; regrading of floor to provide stepless entry and sufficient fall back to shower waste; new basin; L shaped rail in shower alcove; supply and install bidet; handheld shower hose on sliding rail; mixer tap with extension handle in shower alcove; angles rail on left side of toilet; install mirror above vanity.

1. As part of the assessment process Mr Gransbury completed a home modification diagram which was submitted to the NDIS for funding approval for the applicant.
2. The modification form shows a diagram with the floor plan showing certain things in red which appear to relate to access points for various rooms, and a series of photographs with annotations such as - in relation to the photo of the sliding doors, 'side access to become only access into home'; on a photo of a door yellow arrows suggesting that the door be widened and power point consequently relocated.
3. The assessment document filled in includes the following:

Mr Gareth Dunne is a 51 year old male who resides with his wife and three children in the own home in the regional township of Roseworthy, South Australia. > > Gareth received a diagnosis a Motor Neuron Disease (MND) in June 2022 following noticing reduced strength in his left knee. MND is a rapidly progressing neurological disease that affects the motor neurons. > > Gareth has been informed by his neurologist that he has a life expectancy of approximately 2 years. > > Gareth currently presents with the following physical impairments:

• - bilateral leg weakness (right worse than left)
• - feelings of heaviness of limbs and lack of control
• - reduced endurance
• - stiffness in both hands - Gareth reports these 'lock up'
• - twitching and cramps in hand, back and feet.
• - Atrophy (muscle wasting) of the hips
• - Voice changes - slight raspy/hoarse voice

Gareth has co-existing conditions of asthma and anxiety. > > The nature of MND means that Gareth's mobility and independence will progressively worsen and he will require total assistance in all aspects of his life. > > Gareth is well supported at home by his family. It is Gareth and his families' wish that he resides at home throughout this journey of MND.

1. The document then sets out the applicant's goals. It then sets out detailed findings from the functional assessment. These go to current status, and expected future level of independence. I don't set that out in full, but it refers to the future independence requiring wheelchair dependence, and hoist transfers being necessary for bed chair toilet and car. The assessment spans several pages.
2. It then makes a series of recommendations, and explains why they are necessary by reference to clinical evidence, addressing the relevant NDIS criteria. By way of example, in relation to front access, the current situation of two step entry is identified; the cost of a ramp is estimated at $10K to $15K but the ramp is not recommended because of the cost and the ability to make an alternative recommendation. Again, this part of the report is very detailed and explains precisely what was recommended and why from an occupational therapist's viewpoint, having regard to the NDIS criteria about what will and will not be funded. The recommendations are about what modifications are suggested rather than telling the builder how from a building or engineering point of the view the builder is to carry out the work.
3. The report then shows the recommendations are reviewed by a Building Construction Professional - here, David Martin.
4. To assist with the process of obtaining NDIS funding he suggested that David Martin and Welcome Home Enterprises provide quotations for the home modification works. These were then submitted to the NDIS.
5. The NDIS then determined the level of funding and selected the builder to undertake the complex home modification works. In oral evidence the applicant said it was the NDIS' decision to go with David Martin, and that was largely to do with him having better availability than the alternative person who quoted.
6. Mr Gransbury said he did not 'subcontract' the builder. He expected the builder would have entered into a written contract with the applicants. He said that if this did not happen, it was nothing to do with him.
7. Mr Gransbury said that the type of NDIS funding the applicant obtained was 'self-managed', where the applicant received funds from the NDIS to pay Mr Martin. In the events that happened, Mr Martin was not paid. Ultimately Mr Martin has brought proceedings in the Magistrates Court of South Australia, and the applicant in turn has brought separate disciplinary proceedings against Mr Martin which are separately before the Tribunal.
8. The tax invoices rendered by the respondent include the following work:
   • - Initial assessment completed at client's home
   • - Travel
   • - Minor home mods drawing and seeking quote
   • - Review Tryex website for ramps and ease of purchase and email communication with client
   • - Email to Home Care Equipment seeking quote for toilet surround
   • - Forwarding quote from Garry Cindy re rail installation
   • - Reviewing quote for rail installation
   • - OT major home mods review
   • - Review and saving of Hiline Hardware quote
   • - Email to Hi-Line requesting adjustment of quote
   • - Liaising with Autoslide re sliding door
   • - Forwarding Hi-Line hardware quote for consideration/action
   • - Major home mods submitted to builders x 2 for quoting
   • - Liaising re final mods
   • - OT review with Builder
   • - Liaison re vehicle mods
   • - Arranging ECU quote
   • - Joint visit with builder 2
   • - Commence CHM forms for major modification recommendation
   • - CHM report continued following quotes being received
   • - CHM report
   • - Finalising home mods documentation
9. By email of 17 July 2023 the NDIS asked Mr Gransbury a number of questions about what had been recommended. They include asking Mr Gransbury "to confirm with a building construction professional whether the shower is compliant with Australian Standard 3740", and his response after checking with the builder. There are numerous questions in that email where the NDIS asks questions seeking Mr Gransbury's opinion from an occupational therapists perspective, and then asking him to check with a building construction professional on other aspects. This suggests that Mr Gransbury's role was as on occupational therapist, not a building work contractor.
10. The documentation and evidence of Mr Gransbury shows that the respondent made recommendations; organised quotes; helped obtain NDIS funding, but does not show that the respondent actually performed the building work or organised the building work - that was done by the builder. The applicant appears to equate the arranging of the quote with the arranging of the building work. I do not consider the organising of a quote for a builder to do recommended work is the same thing as performing building work within the meaning of the BWC Act.
11. On 27 February 2024 the respondent wrote to the NDIS about the applicant and provided information that the applicant had issues with the width of the basin and height of shower curtain. The respondent said:

These specific items were discussed in a home visit on Wednesday the 31st of January 2024 whereby Kate and Gareth were both consenting to the 500mm wide wall hung basin alongside the position of other fittings. > > Following completion of all works, Kate communicated via SMS that that she was wanting the above issues rectified (despite previously communicating verbal consent). A further home visit was then completed on Monday the 19th of February to their home however neither of them was able to or wished to be present, and therefore OT, Dave's bathrooms' owner (Dave) and employee (Kurt) were the only one's present. A review of Kate and Gareth's outstanding issues were reviewed and discussed but due to the owners not being present. > > OT reviewed both the basin and curtain rail height, and they both comply with AS1428.1. Discussion occurred on site about how to rectify the situation but given Gareth or Kate were not present, an email outlining potential further actions was sent to Kate & Gareth on Monday the 19th of February 2024 at 3:02pm. This included information that the shower curtain height and vanity meet the Australian Standard requirement. > > They were advised and acknowledged that any additional tile height (required to enable greater height of shower curtain) would need to be self-funded. > > Since this email, Kate has not been willing to engage in further conversation regarding OT's reply to reach an outcome where all parties are satisfied. At no stage throughout the entire build process did Kate raise any issues with me as the OT. > > I have reviewed the completed home modifications and feel the work has been completed to a high standard. > > The work is clinically appropriate for Gareth current and future needs, and I support full payment of Dave's bathrooms outstanding invoices. > > Please note that the original recommendations, and minor adjustments to the scope of works have been made in consultation with the following documents, and the completed modifications also adheres to all of the below documents. > > 1) NDIS Complex Home Modifications Operational Guidelines Dated 09 August 2022 > > 2) Australian Standard 1428 Design for Access and Mobility Part 1 (General) (AS 1428.1) > > 3) NDIS Home Modifications - Guidance for Builders and Assessors > > 4) The reasonable and necessary criteria outlined in National Disability Insurance Agency Act 2013, section34(1)(a)-(f) 2013.

1. On 28 February 2024 the respondent wrote to Dave's Bathrooms in the following terms:

I am writing to provide clear evidence to the invoice that will be submitted for payment to Kate & Gareth Dunne who self-manage Gareth's NDIS plan. > > Mr Gareth Dunne is a 51-year-old Male who resides with his wife, Kate and children in their own home in Roseworthy, SA. Gareth has a primary diagnosis of Motor Neuron Disease, which affects mobility and ability to perform activities of daily living. > > I have been providing OT services until recently for Mr Gareth Dunne. > > As all parties have discussed throughout the journey there are items that have unexpectedly come up that were not included in your original quote/scope of works and thus we have requested that the family fund these out of a different budget line. > > I am placing this request with consideration of the NDIS reasonable and necessary principles (Section 34 of the National Disability Insurance Scheme Act 2013)

• Must be related to a participant's disability, goals and aspirations.
• Will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation.
• Should represent value for money.
• Must be likely to be effective and work for the participant.
• Should consider support given to you by other government services, your family, carers, networks and the community.
• That it should not be covered by alternative funding bodies.

The following items are clinically recommended outside of the major home modifications scope of works: > > 1) Supply and fitting of an RPZ valve. > > Note that the plumber initially stated that the RPZ valve was not required but when you went to purchase it, the supplier stated that it was essential. > > 2) Supply and fitting of a towel rail and towel hook. > > 3) Widening of both bathroom door and opening between lounge and dining room > > It was noted in the original scope that the following recommendation was made: > > Add external sliding door (to match existing) and widen into bathroom to 850mm. During the quoting phase, it was noted that the current opening would achieve this width and thus did not require widening. During an additional home visit once the bathroom and external walls had been partially demolished, it was noted that the opening would not be sufficient and widening of the this entrance was essential. All parties also agreed that a 920mm hinged door would be supplied and fitted. I understand that supply and fitting has been included in the initial quote but there would be a small additional charge to widen the door and make good. > > It should also be noted that this Tax Invoice has been modified since sending it to the Dunne's with the removal of the rails as these should have been in the original cost.

1. Mr Gransbury said he did not supervise the building works. He did not 'certify' the works. He said his role was to ensure that Mr Dunne's current and future function would allow him to continue to live within his own home safely and easily and that would be achieved by "making sure that the modifications that the builder made would be appropriate for him. So, the doorways were wide enough, the shower big enough, so that as his condition deteriorated he would be able to continue to live safely there".
2. There were some text messages explained which show that Mr Gransbury attended on site to discuss issues with either Mr and Mrs Dunne or certain tradies. He said that he was trying to ensure that Mr and Mrs Dunne were happy with the modifications. He explained that he sent the letters referred to above to Mr Martin following complaints being made by Mr Martin that he had not been paid. He expected that Mr Martin might provide that letter to the NDIS and that might facilitate Mr Martin getting paid. Part of the applicant's complaint is that the reference to extra work is some kind of fraud on the NDIS.
3. Mr Gransbury said he did not do any physical work on the applicant's property. All of that work was done through the builder.
4. Based on the evidence summarised above I conclude that the respondent:

99.1 Carries on business as a firm of occupational therapists.

99.3 Does not organise the performance of building work in the sense contemplated by the BWC Act. It does arrange quotes from a builder so that the builder in turn organises and supervises the building work.

99.4 Was not a building work contractor as defined by the BWC Act.

99.5 Does not hold itself out or advertise that it was entitled to carry on business as a building work contractor, but rather does hold itself out as a firm that can provide services where an occupational therapist will make recommendations about what building work is recommended from an occupational therapist's perspective.

99.6 Was not required to hold a building work contractor's licence.

1. The next question is whether the respondent was a "building consultant".
2. That question is a little more difficult to answer.
3. As set out earlier, the definition of a building consultant is a person (other than a registered architect) who carries on the business of giving advice or furnishing reports in respect of domestic building work (whether being work already performed, work in progress or work that may be required in the future), and includes a former building consultant.
4. The respondent, at one level, does give advice or furnish reports that concern domestic building work. That advice is given from the perspective of an occupational therapist. The question is whether the intention of Parliament, as expressed in s 20, is to extend the operation of disciplinary proceedings under the BWC Act to such an occupational therapist where the role of an occupational therapist is otherwise not regulated under the BWC Act but is regulated under the National Law, and where the types of reports they prepare relate to what modifications are clinically recommended as opposed to whether the building work is or will be compliant with the contract drawings, specifications, statutory warranties, building codes or other regulatory requirements from a technical or qualitative perspective.
5. The role of a Court (or Tribunal) is to construe, by the application of accepted canons of construction, the intention of the legislature through the words used in a statute.
6. A starting point is often the "literal approach". In more recent times however, the approach has been for the courts to ascertain the intention of the legislature through the object or purpose underlying the legislation and to ascertain the meaning of the words in light of that object or purpose. Such an approach consequently allows the court far more latitude in departing from the literal or grammatical meaning and extends to any situation where the literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy that may be discerned from those provisions. However, a Court or Tribunal must not refuse a construction merely because it results in an inconvenient result, or produces anomalies, or because the Court or Tribunal disapproves of the provision or considers it unreasonable.
7. There have been several recent cases in the Court of Appeal of South Australia which have summarised the principles applicable to statutory construction. One example is Woolworths Group Limited v Jackermis [2023] SASCA 31 where the Court said:

[25] The applicable principles are well understood. In any exercise of statutory interpretation, it is necessary to start with the language of the provisions. Those provisions must be construed in the context of the language of the statute as a whole. In Project Blue Sky Inc v Australian Broadcasting Authority, the plurality explained that the primary object of statutory construction: > > ... is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Cmr for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. > > [26] The Court is to give the words used the meaning that the legislature is taken to have intended them to have. That will ordinarily correspond with the grammatical meaning of the section. However, the context, the consequences of a particular construction and the purpose of the statute may sometimes require a non-literal interpretation to be adopted. Further, absent an examination of context and purpose, a literal interpretation may be impossible, or meaningless. > > [27] Having said that, as the appellant emphasised, considerations of context and purpose do not amount to an invitation to rewrite the legislation. As French CJ and Hayne J said in Certain Lloyds Underwriters v Cross: > > The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. > > [28] To that end, as the plurality said in In Taylor v Owners - Strata Plan 11564: > > The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills gaps disclosed in legislation or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature". > > (Footnotes omitted)

8. In Duncan v Bert Farina Constructions Pty Ltd [2024] SASCA 67 the Court of Appeal said:

[39] The fundamental task of the Court in construing legislation is, of course, to give the words used in the relevant provisions the meaning that the legislature is taken to have intended. > > [40] The contemporary approach to this task is conveniently summarised in the following passage from the reasons of Kiefel CJ, Gordon and Nettle JJ in SZTAL v Minister for Immigration & Border Protection: > > The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. > > [41] Similarly, in CIC Insurance Ltd v Bankstown Football Club Ltd, Brennan CJ, Dawson, Toohey and Gummow JJ emphasised that context in its widest sense and statutory purpose are to be considered from the outset, and not only when an ambiguity might be thought to arise on the text. This may include consideration of matters such as the existing state of the law, and the mischief which the legislation was intended to remedy. > > [42] In the case of South Australian statutes, s 14 of the Legislation Interpretation Act 2021 (SA) expressly provides that the interpretation that best achieves the purpose or object of the Act (even if not expressly stated in the Act) is to be preferred to any other interpretation. > > [43] Any inconvenience or improbability in the result of a construction may indicate a meaning other than the literal meaning of the relevant provision. Whether a particular construction assists or interferes with the coherent operation of the relevant legislation scheme may also be a relevant consideration. > > [44] At the same time, contextual and purposive indications may not be used to rewrite the legislation; the meaning derived must be consistent with the language in fact used in the relevant legislation. Further, the purpose must be one which may be discerned from the legislation itself, read in the context of any relevant extrinsic material. Legislation must not be construed on the basis of some a priori assumption as to the statutory purpose, or as to the desirable reach or operation of the relevant provision. > > [45] In SZTAL v Minister for Immigration & Border Protection, Gageler J described the task as one involving "constructional choice" between the competing meanings that may be available: > > The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from "a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural", in which case the choice "turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies" > > (Footnotes omitted)

9. The context within which the phrase "building consultant" appears includes the following.
10. Part 2 of the BWC Act deals with the licencing of building work contractors. For the reasons set out earlier the respondent is not a building work contractor.
11. Part 3 of the BWC Act deals with the registration of building work supervisors. The applicant did not argue that the respondent was a building work supervisor within the meaning of the BWC Act (though it did suggest that aspects of the work performed involved an element of supervision). The respondent was not a building work supervisor and did not supervise the performance of the building work. At its highest the respondent attended some meetings to discuss home modifications from a functional perspective, but not a building perspective.
12. Part 5 of the Act regulates building work contracts, provides for statutory warranties, and has provisions relating to building indemnity insurance.
13. Divisions 1 to 6 of Part 5 operate in various ways to ensure minimum standards in the allocation of contractual risk between builders and house owners. None of that is relevant to an occupational therapist.
14. The provisions of Division 1, amongst other things, impose various requirements in relation to the formalities and content of domestic building contracts, including the determination and specification of the price and payment terms. Division 2 contains the statutory warranties the subject of the underlying proceeding. Divisions 3 (insurance), 4 (termination) and 6 (harsh and unconscionable terms) provide other protections.
15. Division 5 gives the Court (not this Tribunal) certain powers in respect of domestic building work.
16. Nothing in the Act regulates the role of an occupational therapist.
17. It would be surprising, and indeed incoherent, in those circumstances, where an occupational therapist is regulated under the National Law, and subject to the disciplinary regime established by the National Law, to consider that Parliament intended an occupational therapist to be subject to disciplinary sanction under the BWC Act. The intention of the BWC Act is to regulate conduct in the building industry rather than to regulate the conduct of health professionals whose conduct is governed by the National Law.
18. I do concede that the words "in respect of" at face value are potentially words of wide import.
19. However, reading the phrase, as a whole, which refers to someone who "carries on the business of giving advice or furnishing reports in respect of domestic building work" leads to a conclusion that the intention of "in respect of" does not have a meaning at large that might connote that any report about anything to do with a building makes a person a building consultant.
20. I consider that a building consultant typically will have a background in building work or construction, and will, in their report, be addressing technical, structural and regulatory aspects of buildings. This will include addressing questions such as:

119.1 Whether the work is or will be in compliance with building codes and regulations such that it is structurally sound, compliant and properly implemented.

119.2 Whether the work is or will be done in accordance with the contract.

119.3 Whether the building work has or will be performed in a way that complies with statutory warranties, and this focuses on issues to do with design, quality and compliance rather than simply functional needs.

1. An occupational therapist on the other hand will typically assess an individual's physical, cognitive and emotional needs to help them perform physical daily activities safely and independently. In the context of home modification that will include working out the functional needs of the individual, the making of recommendations to support independence such as grab rails, ramps, or accessible bathrooms. It will include considerations about ergonomics, safety and individual health conditions. It may involve collaboration with a builder, or building professional, but the occupational therapist themselves is not responsible for ensuring the structural adequacy of the work or to assess building compliance.
2. The examples given in this case illustrate the point. The respondent might utilise the Australian Standards relating to disability access and make recommendations in accordance with that standard. That leads to the respondent making recommendations about whether the client needs a ramp, wider doorways or a particular kind of shower for safe mobility and independence. But that is not the same thing a building consultant would advise on. The building consultant might determine how a ramp would be constructed to meet the building codes, what needs to be done to ensure the structural integrity of the wider doors, or how the waterproofing, plumbing and tiling should be done to implement the suggested changed to the bathroom. The consultant might advise whether the work carried out to achieve the functional aims complies with the terms of the building contract or meets the statutory warranties.
3. In the context of this case, the 27 February 2024 letter summarised above illustrates the distinction between reporting on matters from an OT perspective, and getting input from the building professional and matters to do with whether the work is compliant from a builder's perspective.
4. Another way of looking at it is to ask these questions. What business does the respondent carry on? Answer - it is a firm of health care professionals, carrying on the business of occupational therapy. Does it furnish reports on domestic building work? Answer, it provides reports about the functional needs of individuals, which may include reports about what home modifications are recommended to meet those needs, but not about the construction or quality of building work from the perspective of someone with building expertise. It does not evaluate workmanship, code compliance or structural issues (though it might consider compliance with the Australian Standard dealing with disability access from a functional perspective). It does not certify building compliance. It does not engage in construction related decision making. Its reports relate to client needs rather than building standards. Does the respondent have technical construction knowledge or qualifications? Answer, no, its staff have training in occupational therapy which relates to health and rehabilitation not construction. It might make recommendations, but these are clinical in nature and not technical assessments of construction work. The reports relate to the needs of the person rather than the technical assessment of the construction work.
5. I find that the respondent carries on business as a firm of occupational therapists and does not carry on business of giving advice or furnishing reports in respect of domestic building work. That is so even though part of the work of the respondent relates to recommendations about home modification supports. That is not the same thing however as recommending how the building work is to be done or whether it has been done properly. The respondent might, as part of its work, comment on whether the building work achieves the functional aims of the recommendations that the occupational therapist made. That is not the same thing as carrying on business as a building consultant who writes reports setting out whether the building work complies with the relevant statutory warranties, regulatory requirements or requirements of the Building Code.
6. I accordingly find that the respondent is not a building consultant for the purposes of s 20 of the BWC Act.
7. I accordingly find that the disciplinary provisions of the BWC Act do not apply to the respondent.
8. The applicant's claim must accordingly be dismissed.
9. I note that the respondent's written submissions intimate that it intends to seek an order for costs. If the respondent wishes to make such an application, then it should provide written submission in support of that application within 14 days, and the applicant may provide written submissions in opposition to that application within a further 14 days after receipt of the applicant's submissions and the Tribunal will make its decision on costs on the papers.

1. The complaint against the respondent will be dismissed.