Vallelonga and Builders' Registration Board of Western Australia [2005] WASAT 327 (12 December 2005)

Vallelonga and Builders' Registration Board of Western Australia [2005] WASAT 327 (12 December 2005) - WASAT 2005 case summary — Zoe

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1 On 18 July 2005 the Builders' Registration Board of Western Australia issued a notice of decision cancelling the registration of Mr Vallelonga as a builder under the Builders' Registration Act 1939 (WA) following its earlier finding on 15 June 2005 that he was guilty of fraudulent conduct in relation to three building projects.

2 When the Board made this decision it immediately annulled the cancellation in respect of a number of building projects to enable Mr Vallelonga to complete them. The Board also fined Mr Vallelonga and ordered him to pay the costs of the proceedings before the Board.

3 The proceedings before the Board had been commenced in mid-2003 and as of 1 January 2005, when the State Administrative Tribunal Act 2004 (WA) and the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) setting up the State Administrative Tribunal came into operation, were partly heard but not determined by the Board.

4 After the Board's decision was handed down, Mr Vallelonga made an application to the Tribunal to review the Board's decision. The Tribunal upheld the submission of the Board that it did not have jurisdiction to determine the application because the disciplinary proceedings commenced by the Board against Mr Vallelonga in 2003 remained in the Board's jurisdiction following the commencement of the State Administrative Tribunal, as provided for by s 167(4)(c) of the State Administrative Tribunal Act 2004. The proper course was for Mr Vallelonga to appeal to the District Court under s 14 of the Builders' Registration Act 1939 as it stood before its recent amendment by the State Administrative Tribunal legislation.

5 The Tribunal rejected submissions made on behalf of Mr Vallelonga that he had the right to seek review of the Board's decision under s 13(2) or s 14 of the Builders' Registration Act 1939 as it currently applies since the recent amendments.

6 The Tribunal also expressed the opinion that the Board retains the power to consider the reinstatement of registrations cancelled or surpected bya the Board prior to the recent amendments to the Builders' Registration Act 1939 by the State Administrative Tribunal legislation.

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12 By notice dated 12 February 2003, the Board gave Mr Vallelonga notice of its intention to hold a full inquiry in relation to allegations set out in the notice, pursuant to s 13(3)(b) of the Builders' Registration Act 1939 (WA) (BR Act), as it then applied. The particulars of the allegations included allegations of fraudulent or misleading conduct in respect of a number of building projects.

13 On 9 and 10 September 2003 the Board held an inquiry into the allegations and received evidence. At the conclusion of the hearing on 10 September 2003 the Board reserved its decision.

14 Between 10 September 2003 and 15 June 2005 - a period of some 21 months - the Board failed to make a determination in the matter. On 15 June 2005 the Board convened again and handed down its determination, although it did not then provide any reasons for decision. A transcript of the hearing on 15 June 2005 shows that the Board found that Mr Vallelonga "should be found guilty of fraudulent conduct" in relation to three jobs. The Board then indicated it would hear from counsel for Mr Vallelonga "as to what action we should take". On 15 and 16 June 2005 the Board received submissions on this issue.

15 On 18 July 2005, the chairman of the Board signed the "Notice of Decision" of the Board which is the subject of the present application. The decision states that the Board resolved that Mr Vallelonga "be found guilty of fraudulent conduct as alleged in paragraphs 1-1.4, 2-2.4 and 3-3.4 of the notice of inquiry dated 12 February 2003". The Board ordered that the registration of Mr Vallelonga be cancelled. However the Board immediately annulled the cancellation in a number of respects to permit Mr Vallelonga to complete certain building projects. The Board also fined Mr Vallelonga and ordered that he pay the costs of the inquiry.

16 Then, on 8 November 2005 Mr Vallelonga, through his solicitors, lodged an application for review of the Board's decision in this Tribunal, purportedly under s 13(2) of the BR Act which provides that:

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22 What in fact appears to have happened in this case is that at all material times the Builders' Registration Board remained apprised of the inquiry it commenced in 2003 into the conduct of the applicant.

23 Section 167(4)(c) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides that on the day on which jurisdiction is conferred on the Tribunal - which was 1 January 2005 in the case of matters arising under the BR Act - if the former adjudicator continues to exist, any devolved matter that has been partly or fully heard before, or not determined by, the former adjudicator is to continue to be dealt with and determined by the former adjudicator unless it is transferred to the Tribunal under subsection (5) in which case it continues before the Tribunal.

24 A "devolved matter" is defined by s 167(1) of the SAT Act to be a matter that is of a kind that is substantially similar to a kind of matter that could, before jurisdiction was conferred on the Tribunal, be dealt with by another tribunal court, body or person (the former adjudicator) and after that jurisdiction is conferred on the Tribunal, no longer comes within the jurisdiction of the former adjudicator except under this section.

25 Prior to 1 January 2005, cancellation of a builders' registration for fraud or on other grounds under the BR Act was within the power of the Board under s 13 of the Act. Following the amendment to the BR Act by the Conferral of Jurisdiction Act the Tribunal has that same power vested in it by s 13 as amended. The Board is now empowered to make an allegation to the Tribunal that there is proper cause for disciplinary action. However, the Board retains the power to deal with registration applications and related issues: s 8 BR Act.

26 In this case because the disciplinary inquiry had been commenced and partly heard by the Board, but not determined by the Board prior to 1 January 2005, the Board was empowered to continue to deal with the matter and determine it, unless the matter was transferred to the Tribunal under subsection (5) of s 167 of the SAT Act.

27 Section 167(5) of the SAT Act provides that a former adjudicator may decide to transfer a matter to the Tribunal. In this case, the Board did not transfer the matter. The subsection also provides that the former adjudicator is required to transfer a matter to the Tribunal if the matter cannot be or is unlikely to be determined within a period of six months after 1 January 2005, or the President directs that the matter be transferred. In this case the President did not so direct. What happened, on the face of it, is that the Board considered it could determine the matter within a period of six months after the transfer date.

28 In these circumstances, I find that the disciplinary inquiry commenced by the Board in 2003 remained partly heard and not determined by the Board as of 1 January 2005 and so remained within the jurisdiction of the Board at all material times pursuant to s 167(4)(c) of the SAT Act. As a result, the Board was empowered to deal with the matter as it did when it issued its "Notice of Decision" on 18 July 2005. Accordingly, the matter has never been transferred to the Tribunal.

29 Section 167(7) of the SAT Act further provides that if -

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Vallelonga and Builders' Registration Board of Western Australia [2005] WASAT 327 (12 December 2005)