Lloyd v Faraone [1989] WAR 154

Marconi's Wireless Telegraph Co Ltd v Commonwealth (No 3) [1913] HCA 23; (1913) 16 CLR 384

McBride v Sandland (No 2) [1918] HCA 59; (1918) 25 CLR 369

Moylan v Nutrasweet Co [2000] NSWCA 337

Scarborough's v Lew's Junction Stores Pty Ltd [1963] VicRp 20; [1963] VR 129

Wilson v Church (No 2) (1879) 12 Ch D 454

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.

7 On 8 November 2005 the applicant (Mr Vallelonga), through his solicitors, made an application to the Tribunal for the review of a decision of the Builders' Registration Board of Western Australia dated 18 July 2005 cancelling his registration as a builder.

8 Mr Vallelonga sought an order that the decision of the Board be reversed or set aside, that the registration of the applicant as a builder be reinstated and that the Board pay his costs.

9 On the same date, Mr Vallelonga also made an interim application in which he sought a stay of the Board's decision and related orders.

10 The application and the interim application came before the Tribunal at a directions hearing on 15 November 2005. The Tribunal then ordered that the directions hearing be adjourned to 22 November 2005 and that the applicant file and serve documents on which it intended to rely in relation to the interim application together with an outline of submissions by 17 November 2005. The Board was required to file any responding material and an outline of submissions by 21 November 2005.

11 On 22 November 2005, when the matter came before the Tribunal again, the Board raised the preliminary issue whether the Tribunal had jurisdiction to entertain the applicant's application for review and the Tribunal heard argument on this issue. I then ruled that the application be dismissed for want of jurisdiction in the Tribunal. What follows is a statement of my reasons for this decision.

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:

"(2) On the application of the Board or the builder whose registration is suspended or has been cancelled, the State Administrative Tribunal may order that the suspension of a registration is terminated or a registration that has been cancelled be reinstated."

17 Section 13(3) of the BR Act provides that an application for the termination of a suspension or the reinstatement of a registration that was cancelled cannot be made before the expiry of a period of three months after the day on which the registration was suspended or cancelled.

18 In argument before me counsel for the applicant also relied on s 14(1) of the BR Act as supporting the applicant's right to have the Board's decision reviewed. Section 14(1) provides that a person aggrieved by a "reviewable decision" of the Board in relation to that person may apply to the Tribunal for a review of the decision. Section 14(2) says that "a reviewable decision" means a decision of the Board (a) refusing or suspending registration; or (b) granting registration on a condition or conditions.

19 Counsel for the Board contends that s 13(2) of the BR Act does not apply in the circumstances of the decision of the Board presently impugned by the applicant, and only applies to a decision of the State Administrative Tribunal made under s 13(1) of the BR Act as it applies since it was amended by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) (Conferral of Jurisdiction Act).

20 Counsel for the Board further contends that s 14(2) of the BR Act is not relevant in this particular case because a decision of the Board cancelling the registration of the applicant is not one of the decisions falling within the definition of "reviewable decisions" in s 14(2).

21 I consider these arguments of counsel for the Board to be essentially correct.

The transfer of jurisdiction of matters from former adjudicator to the State Administrative Tribunal

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 -

"(a) any matter is determined by the former adjudicator under subsection (4)(c); and

(b) the determination would have been appealable had the law in force immediately before the transfer day continued to apply,

an appeal against that determination may be made and dealt with as if that law had continued to apply."

30 This means that when the Board finally made its decision on 18 July 2005, Mr Vallelonga had the same right to appeal against the Board's determination as he had under the BR Act prior to its recent amendment by the Conferral of Jurisdiction Act. At all material times Mr Vallelonga had the right to appeal against the determination of the Board dated 18 July 2005 to the District Court pursuant to s 14 of the Builders' Registration Act 1939 as it applied prior to the recent amendment.

31 I was informed by counsel for the Board that the Board would not oppose any extension of time application to appeal that Mr Vallelonga may require if he were now to appeal to the District Court.

Proper interpretation of the current s 13(2) of the Builders' Registration Act 1939

32 I have referred already to the terms of s 13(2) of the Builders' Registration Act 1939 as it currently applies.

33 Counsel for Mr Vallelonga suggested that that section should be given a literal interpretation so that the Tribunal may order that the cancelled registration be reinstated.

34 The difficulty with that argument is that s 13(2) must be interpreted having regard to the context in which s 13(2) appears in s 13 of the BR Act as a whole. By s 12D of the BR Act a proceeding for disciplinary action may be commenced in the State Administrative Tribunal upon an allegation being made by the Board. Under s 13(1) of the BR Act, the Tribunal has a wide array of disciplinary powers including the power to cancel a builder's registration. In that context, the Board or a builder may at an appropriate juncture, but not before the expiry of three months from the time of the Tribunal's cancellation decision as provided by s 13(3), apply to have that cancellation removed and the registration reinstated.

35 As a result, s 13(2) of the BR Act as it currently applies only gives a builder the right to apply to have his or her cancelled registration reinstated where the State Administrative Tribunal made the earlier cancellation order. Section 13(2) effectively gives the State Administrative Tribunal a power to reinstate registrations it has cancelled. It is not intended to provide a power in the Tribunal to review decisions to cancel registrations made by the Board under the BR Act as it stood before the recent amendments.

36 Similarly, the submission of counsel for Mr Vallelonga that Mr Vallelonga may seek review of the Board's decision under s 14(1) of the BR Act as it now applies cannot be accepted. Section 14(1) now provides that a person aggrieved by a reviewable decision of the Board in relation to that person may apply to the Tribunal for a review of the decision. Section 14(2) defines a "reviewable decision" to mean a decision of the Board -

(b) granting registration on a condition or conditions."

37 The decision of the Board cancelling registration on the 18 July 2005 is not a decision "refusing registration" or "suspending registration". Nor do I consider it to be a decision "granting registration on a condition or conditions". The fact that the Board's order immediately annulled the cancellation in respect of specified building projects does not turn the Board's decision into a "registration on conditions". Section 14 is intended to give a person affected by the exercise of a power the Board has under the BR Act as amended by the Conferral of Jurisdiction Act, to seek review in the Tribunal. This case is not such a case.

38 I note in passing that the Registrar of the Board, when notifying the applicant of the decision made, informed the applicant that he had the right to appeal to this Tribunal under s 14 of the Builders' Registration Act 1939. However, that information was plainly provided as a result of a misunderstanding of the true operation of the Act.

39 Finally, I should note that, while only this Tribunal has the power under s 13(2) as it now applies to reinstate registrations the Tribunal has suspended or cancelled, I consider that the Board retains the power to reinstate a registration the Board cancelled or suspended prior to recent amendments to the BR Act (or as a result of the Board retaining jurisdiction under s 167(4)(c) of the SAT Act). This follows from the terms of s 37(1) of the Interpretation Act 1984 (WA) - which has the effect of preserving a person's substantive rights where an Act is amended or repealed - and s 13(2) of the BR Act as it applied before the SAT amendments - which gave the Board the reinstatement power.

40 For these reasons above the Tribunal ordered that:

I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUSTICE M L BARKER, PRESIDENT