FEDERAL COURT OF AUSTRALIA

Agapis v Plumbers Licensing Board [2013] FCA 1221

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The applicant is to pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

background

1    The Water Services Licensing Act 1995 (WA) (the Act) regulates the licensing of plumbers in Western Australia. Section 59 and s 59B of the Act establish the respondent as the authority concerned with and responsible for the licensing and regulation of plumbers in Western Australia. Plumbers are also regulated by the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 (WA) (the Regulations). The Regulations are made pursuant to s 59J and s 61 of the Act.

2    Regulation 9(1) requires every plumber to have a licence or permit issued by the respondent which authorises them to carry out work. It is an offence to contravene this regulation. Regulation 11 identifies the classes of licences and permits that the respondent may issue. Relevantly, this includes a plumbing contractor’s licence. A plumbing contractor’s licence authorises the holder to carry out various types of plumbing work. A person undertaking such work without a licence would contravene reg 9 of the Regulations.

3    On 3 March 2011, the applicant held a contractor license for plumbing, roof plumbing, draining, gasfitting and LP gasfitting in New South Wales, under the Home Building Act 1989 (NSW). On that date, the applicant applied to the respondent for a plumbing contractor’s licence pursuant to s 19 of the Mutual Recognition Act 1992 (Cth), which applies in Western Australia by reason of the Mutual Recognition (Western Australia) Act 2010.

4    By the operation of s 17(2) of the Mutual Recognition Act 1992, reg 17(1) of the Regulations applied to the applicant’s application for a plumbing contractor’s licence to work in Western Australia. This regulation required an applicant for the licence to be a fit and proper person.

5    The application form for the plumbing contractor’s licence completed by the applicant required the applicant to disclose whether he had been convicted or found guilty of any offence; and whether there were any charges pending against him. The applicant answered each question “No”. The answers were false because the applicant had been convicted of four offences in New South Wales and also the applicant was then facing charges of aggravated burglary and common assault in Western Australia. The applicant was subsequently convicted of burglary in the District Court of Western Australia and sentenced to a term of one year and three months imprisonment suspended for two years.

6    By a letter dated 28 April 2011, the respondent advised the applicant that his application for a plumbing contractor’s licence had been refused. The letter stated that on 27 April 2011, “the Board resolved that you are not a fit and proper person to hold a plumbing contractor’s licence” due “to inaccurate and insufficient information” having been provided to the Board in respect of that requirement.

7    On 15 June 2012, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) to set aside the decision of the respondent. The decision of the respondent can be reviewed by the Tribunal pursuant to s 34 of the Mutual Recognition Act 1992.

8    On 28 March 2013, Senior Member Penglis affirmed the respondent’s decision to refuse to issue the applicant a plumbing contractor’s licence, concluding that the applicant was not a “fit and proper person” to hold the licence for which he had applied (Agapis v Plumbers Licensing Board [2013] AATA 187).

appeal to the federal court

9    On 17 April 2013, the applicant appealed to this Court. The application was made pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), which permits an appeal to this Court from the Tribunal on a question of law.

10    The applicant’s notice of appeal raised the following question of law:

1.    The Administrative Appeals Tribunal failed to comply with decisions of the High Court of Australia which are binding on the Courts, Judges and people of every State of the Commonwealth of Australia, reference Lipohar v R [1999] HCA 65 (paragraphs 50-54) and this Tribunal sat in judgment of me and carried out a judicial function contrary to the Commonwealth of Australia Constitution Act, reference Lane v Morrison [2009] HCA 29.

11    On 5 June 2013, the applicant filed a notice of constitutional matter.

12    In an affidavit dated 21 October 2013, the applicant annexed letters from the Commonwealth Attorney-General and the State’s Attorneys-General advising that they do not wish to intervene in this proceeding.

13    Each of the parties has filed lengthy submissions and, as I foreshadowed, I have, accordingly, determined this application on the papers.

14    In the case of TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, Gummow J observed in relation to an appeal under s 44 of the AAT Act on a question of law:

The existence of a question of law is…not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself: FCT v Brixius (1987) 87 ATC 4963 at 4967.

15    In the case of HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291 (HBF), the Full Court (Spender, Branson and Siopis JJ) at [6] observed:

…the grounds required to be specified in the notice of appeal are not grounds of appeal; they are the grounds upon which the appellant will argue that the answers for which it contends to the questions of law entitle it to the relief which it seeks. It is not possible, as the applicant sought to do in this case, to extend the subject matter of the appeal beyond the specified questions of law by itemising, under the heading “Grounds”, a series of alleged errors (some being errors of law, some being errors of fact and some being errors of mixed law and fact) in the reasons for decision of the Tribunal.

16    Under the heading “Grounds relied on” in his notice of appeal, the applicant included a number of allegations and assertions which travelled beyond the scope of the question of law as formulated by the applicant and set out in [10] above. Accordingly, the applicant fell into the vice which was identified by the Full Court in HBF.

Has the applicant formulated a question of law?

17    It is necessary as a precondition to the exercise of the jurisdiction, to be satisfied that there be a properly formulated question of law or questions of law. If there is, then the scope of the appeal is confined to the determination of the question of law or questions of law formulated. If there is not, then the Court cannot exercise jurisdiction under s 44(1) of the AAT Act.

18    As mentioned, the question of law formulated by the applicant is set out at [10] above. The applicant is a litigant in person and, accordingly, the question is not formulated with the precision which one might expect from a skilled legal practitioner. However, it is possible to discern that the question of law the applicant wishes determined, is whether the Parliament has acted beyond its legislative power by purporting to confer judicial power upon a body which is not a court constituted under Ch III of the Constitution, with the consequence that the Tribunal’s decision is invalid.

19    In my view, there is a question of law which is appropriate to enliven the jurisdiction of this Court.

What is the answer to the question of law?

20    The question of law posed by the applicant is answered in the negative.

21    This is because this question has been considered and determined by the Full Court (Bowen CJ, Smithers and Deane JJ) in the case of Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, in a manner adverse to the applicant’s contention.

22    In that case, the Full Court considered a contention that the conferral upon the Tribunal of quasi-judicial functions was beyond the legislative competence of the Parliament because it thereby purported to confer part of the judicial power of the Commonwealth upon a Tribunal that was not a court constituted pursuant to Ch III of the Constitution.

23    The Full Court rejected the argument. At 584, the Full Court observed:

The general functions conferred upon the Tribunal are plainly administrative in character…Neither the fact that the Tribunal possesses certain procedural powers ordinarily enjoyed by courts nor the fact that the Tribunal is authorized to decide questions of law arising in the proceedings before it means that, in performing these administrative functions, it is exercising judicial power. (Footnotes omitted.)

24    The applicant relied, in his formulation of the question of law, upon the case of Lane v Morrison (2009) 239 CLR 230. However, that case dealt with the conferral of powers upon the Australian Military Court and provides no assistance in answering the question of law which was formulated by the applicant.

25    As mentioned, the allegations and assertions included under the heading of “Grounds relied on” insofar as they can be understood, travel beyond the scope of the question of law and, therefore, do not fall for consideration.

26    It follows that the applicant’s appeal is dismissed.

27    However, I will, for the sake of completeness, refer to a complaint which was made by the applicant, which was the subject of an interlocutory skirmish between the applicant and the respondent.

28    This was the applicant’s contention that the respondent had not demonstrated that there was a statutory basis for requiring the applicant to have a plumbing contractor’s licence issued under the Act and Regulations in order to carry out plumbing contractor’s work in Western Australia. In my view, there is plainly a statutory basis for requiring the applicant to have such a licence in order to carry out plumbing contractor’s work in Western Australia. The relevant statutory provisions are comprised by ss 59, 59B, 59J and 61 of the Act and regs 9, 11 and 12 of the Regulations. There is no substance in the applicant’s complaint.

29    As I mentioned, the applicant’s appeal is dismissed with costs.

Associate:

Dated:    18 November 2013