The respondent, Mr Mohammed Kassem, held a building contractor licence which permitted him to do kitchen, bathroom and laundry renovations until 27 January 2014. On or about 30 December 2013, Mr Kassem applied to the Commissioner of Fair Trading (the Commissioner) under the Home Building Act 1989 (NSW) (the Act), for variation of that licence to an endorsed licence to do general building work.
Mr Kassem's existing licence was renewed on or about 8 January 2014.
On 24 February 2014, the delegate of the Commissioner refused to vary Mr Kassem's licence on the ground that he did not satisfy the qualification requirements for the type of licence sought. In particular, the Commissioner decided that Mr Kassem had not satisfied the training and experience requirements set out in regs.26 and 28 of the Home Building Regulation 2004 (the 2004 Regulation) and the disallowable instrument made pursuant to reg.28 on 3 July 2013 by the Director-General of NSW Fair Trading (the 2013 Instrument), which lists approved courses of study and experience capable of satisfying the qualification requirements of regs.26 and 28. Following an internal review by the Commissioner which came to the same conclusion on 3 June 2014, Mr Kassem sought in the Tribunal on 2 July 2014, a review of the Commissioner's decision. The Tribunal conducted an oral hearing of the application on 29 September 2014 and delivered its reasons for decision on 10 April 2015.
The orders made by the Tribunal were as follows:
"The respondent's decision is set aside and the matter is remitted for reconsideration by the respondent in accordance with the law and the following directions:
1.The respondent is to consider whether the applicant's licence No 25520C, which the applicant sought to vary, has expired;
2. If the respondent considers, having regard to the status of the applicant's licence, that the respondent does not have power to vary it, the respondent is to write to the applicant within two weeks of the date of these reasons to inform him of that.
3. If the respondent considers, having regard to the status of the applicant's licence, that the respondent still has power to vary it, the respondent is to write to the applicant within two weeks of the date of these reasons asking the applicant to provide any additional material (both factual and in the nature of submissions) addressing the question of whether he is a fit and proper person to hold a contractor licence in the category of general building work;
4. After providing the applicant with a reasonable opportunity to provide additional material, and considering any additional material received, the respondent is to determine the applicant's application according to law."
That decision was published on 10 April 2015 - Kassem v Commissioner of Fair Trading [2015] NSWCATOD29. On 8 May 2015 the Commissioner appealed against that decision and later submitted to the Appeal Panel that the Tribunal decided that:
1. no qualification requirements applied to the licence application at all (see pars [57] and [59]) and
2. if the licence application could not be refused on any other ground, it must be granted (see par [67]).
The Commissioner also submitted that in making those two decisions described in par 5 above, the Tribunal failed to:
1. properly construe item 121 of schedule 4 of the Amended Act, and its relationship with item 143;
2. consider whether item 143 of schedule 4 of the Amended Act required the application of s.33C and 33D of the Amended Act to the licence application (Tribunal Decision pars [58] - [59]); and
3. consider whether the 2013 Instrument was an "act, matter or thing" having "effect" under the 2004 Regulation prior to 15 January 2015, for the purposes of clause 75 (2) of the 2014 Regulations (Tribunal decision pars [39] - [40]).
Those five submissions related to the Commissioner's first five grounds of appeal which were as follows:
1. The Tribunal erred in finding it unnecessary to apply any standards of education and experience to the respondent's application for an endorsed contractor licence under s.20 of the Home Building Act 1989 (NSW) ("the Act"). That finding failed:
1. to consider the protective purpose of the licensing scheme set out in Part 3 of the Act, and
2. to conform with the intention of the legislature expressed in the scheme of transitional provisions set out in the Act and the Home Building Regulations 2014 ("the 2014 Regulations") consequent upon the passage of the Home Building Amendment Act 2014 (NSW).
1. The Tribunal erred in finding that the requirements set out in reg. 26 and 28 of the Home Building Regulations 2004 ("the Regulations") did not apply to the assessment of the respondent's application for an endorsed contractor license: Decision [57] & [67].
2. The Tribunal erred in finding that item 121 of Schedule 4 of the Act prevailed over item 143 because it is a "more specific" provision. Decision [59].
3. The Tribunal erred in its implicit finding that the Instrument made pursuant to reg. 28 of the 2004 Regulations on 12 July 2013 ("the 2013 Instrument") did not apply to the assessment of the respondent's application for an endorsed contractor license.
4. Alternatively, the Tribunal failed to consider whether the 2013 Instrument was effective pursuant to either reg.28 of the 2004 Regulations (by virtue of reg. 75 (2) of the 2014 Regulations), or s. 20 (2) of the Act.
The Commissioner's further three grounds of appeal were as follows:
1. The Tribunal erred in its construction of s.20 (2) of the Act by finding that that section confers a power or discretion to impose different qualification requirements for individual applications (Tribunal decision par [52]);
2. The Tribunal erred in finding that s.30 (1) (b) of the Interpretation Act 1987 (NSW) did not apply because the applicant had not accrued a relevant right or interest (Tribunal decision par [56]);
3. The Tribunal erred in applying a common law definition of "fitness" in its construction of s.20 (1) and (1A) of the Act (Tribunal decision par [70]).
On 15 January 2015, the Home Building Amendment Act 2014 (NSW) (the Amendment Act) came into operation. The relevant law to be applied by the Tribunal in its determination of the application was therefore critical to the Tribunal's decision.
[2]
Background
In his second reading speech for the Home Building Amendment Bill 2014, the Minister referred to the Bill providing consumers with adequate protection. He stated that it was essential that consumers are adequately protected from risks associated with such a big investment as building a home or undertaking major renovations. He also said that there were more than fifty changes contained in the Bill that will ensure appropriate levels of consumer protection are maintained and, where appropriate, enhanced.
In the Explanatory Notes to that Bill it was stated that the object of the Bill was to amend the Home Building Act 1989, to deal with a number of matters which included the following: providing for consistent consideration of all licensing and certification decisions and consolidating licensing and certification provisions currently spread across the Act and regulations; consolidating permit provisions currently spread across the Act and regulations; and dealing with savings and transitional matters. It was also stated that schedule 1 amends Part 3 of the Act (dealing with the issue, cancellation and suspension of contractor licences, supervisor certificates, trades persons certificates and owner-builder permits) in a number of ways including by transferring from the regulations to the Act provisions dealing with the grounds on which a person is disqualified from applying for or holding a contractor licence, supervisor certificate and trades person certificate and amending those provisions as therein set out.
Sub-section 20 (2) of the Act has at all relevant times provided that:
The Regulations may fix or provide for the Director-General [now the Chief Executive] to determine additional standards or other requirements that must be met before a contractor licence is issued or before a contractor licence of a particular kind is issued.
Sub-section 20 (1) (a1) of the Amended Act contains the new provision :
1. The Chief Executive must refuse an application for a contractor licence if:
2. (a1) the Chief Executive is not satisfied as to the matters of which the Chief Executive is required to be satisfied by sections …… 33C.
The Chief Executive of the Commission made an instrument dated 5 January 2015 pursuant to s33D of the Amended Act, which sets out the qualifications and experience required for the issue of licences and certificates authorising a person to supervise building works.
The two last-mentioned matters do not apply in the present case but are relied upon by the Commissioner because so it is submitted, they demonstrate consistency of legislative purpose both before and after the 2014 amendments to the Act: to impose detailed qualification requirements on applicants; and to make satisfaction of those requirements mandatory to the Commissioner's exercise of power to grant a licence.
[3]
The transitional provisions
The transitional provisions for the Amending Act are set out in Schedule 4 particularly Part 20 of the Amending Act, and in reg.75 of the 2014 regulations.
The heading of Schedule 4 is as follows: Schedule 4 Savings and Transitional Provisions.
Schedule 4 relevantly provides:
2 Regulations
1. The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act and any Act that amends this Act …..
The heading of Part 11 of the Home Building Regulation 2014 is as follows: Part 11 Repeals savings and transitional provisions. Regulation 75 is in that Part 11 as follows:
75 Repeal and savings consequent on that appeal
1. The Home Building Regulation 2004 is repealed
2. Any act, matter or thing that, immediately before the repeal of the Home Building Regulation 2004 had effect under that Regulation continues to have effect under this Regulation.
.....
The heading for Part 20 of Schedule 4 of the Act is in this form: Part 20 Provisions consequent on enactment of the Home Building Amendment Act 2014.
Part 20 of Schedule 4 of the Act relevantly provides:
119 Definitions
In this Part:
….
amendment of a provision includes:
substitution or omission of the provision, and
in the case of a new provision, the insertion of that provision.
120 Application of Part
This Part prevails to the extent of any inconsistency with any other provision of this Schedule.
Regulations made under clause 2 of this Schedule have effect despite any provision of this Part.
121 General operation of amendments
Except as otherwise provided by this Part or the regulations, an amendment made by the amending Act extends to:
…
(e) an application for a licence or certificate that is pending on the commencement of the amendment.
(2) However, an amendment made by the amending Act does not apply to or in respect of:
(a) proceedings in a court or tribunal before the commencement of the amendment (whether or not the proceedings were finally determined before that commencement, …..
143 Provisions of regulations transferred to Act
An amendment made by the amending Act that imposes a requirement that was a requirement of the regulations before the amendment commenced extends to any contract or other matter to which the requirement was subject under the regulations immediately before the commencement of the amendment.
[4]
Instruments
It is now appropriate to refer in more detail to the two instruments referred to in pars 3 and 13 above.
Part of the way the statutory licensing scheme has operated, has been for the Chief Executive to sign an instrument pursuant to regulation 28 (1) of the 2004 Regulations and a later instrument pursuant to s.33 D (1) of the Amended Act.
The 2004 Regulations relevantly provided that:
Additional requirements for obtaining contractor licences
(1)Before a contractor licence is issued, the Director-General must be satisfied that:
……
(b)the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate:
(i)complies with the requirements prescribed by clause 28 (1), and …
…..
28 Additional requirements for obtaining certificates
(1)Before a certificate is issued, the Director-General must be satisfied that the applicant:
(a)has such qualifications or has passed such examinations or practical tests, or both, as the Director-General determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required, and
(b)has had experience of such a kind and for such a period, as the Director-General considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and
(c)is capable of doing or supervising work for which the certificate is required.
The Amended Act now relevantly provides that:
33C Additional requirements for obtaining contractor licences
(1)A contractor licence must not be issued unless the Chief Executive is satisfied that:
….
(b)the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate:
(i)Satisfies the requirements of section 33D for the issue of the supervisor certificate to the applicant, and …
….
33D Additional requirements for obtaining supervisor and tradesperson licences
(1)A supervisor or tradesperson certificate must not be issued unless the Chief Executive is satisfied that the applicant:
(a)has such qualifications or has passed such examinations or practical tests, or both, as the Chief Executive determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required, and
(b)has had experience of such a kind and for such a period as the Chief Executive considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and
(c)is capable of doing or supervising work for which the certificate is required.
On 3 July 2013, pursuant to regulation 28 (1), the Chief Executive signed an instrument in which he determined the possession of qualifications or the passing of examinations specified in Column 1 of Table A to the Schedule to the instrument and considered the possession of experience specified in Column 2 of Table A opposite the relevant matter in Column 1, to be necessary for an applicant for the issue of a licence or certificate.
The qualification requirements in regulations 26 and 28 of the 2004 Regulations, are now set out in ss33C and 33D of the Amended Act, in virtually similar terms.
On 5 January 2015, pursuant to section 33D of the Act, the Chief Executive signed an instrument in which he determined the possession of qualifications or the passing of examinations and considered the possession of experience necessary for an applicant for the issue of a licence or a certificate to be as follows:
1. where the application was made on or after the date on which the instrument was signed (5 January 2015), the possession of qualifications or the passing of examinations specified in Column 1 of Table A to Schedule 1 and the possession of experience specified in Column 2 of Table A opposite the relevant matter in Column 1 and
2. where the application was made before 5 January 2015, the possession of qualifications or the passing of examinations and the possession of experience, specified in the instrument dealing with the same matters "as this Instrument which was in force at the time the relevant application was made."
[5]
Consideration
One of the changes to the statutory licensing scheme made by the Home Building Amendment Act 2014, was to transfer from the regulations to the Act, the provisions dealing with the grounds on which a person was disqualified from applying for or holding a contractor licence, supervisor certificate and trades person certificate (Explanatory Notes, Home Building Amendment Bill 2014 - page 4.) The relevant regulations were regulations 26 and 28 of the 2004 Regulation. That Regulation was repealed and the Home Building Act amended by the addition of ss 33C and 33D which were in almost identical terms to regulations 26 and 28.
Sections 33C and 33D are amendments made by the Amending Act and they impose a requirement that was a requirement of the regulations (regulations 26 and 28) before the amendment commenced. As a result the amendments (ss 33C and 33D) extend to a licence application (which is "other matter") which was the subject of the requirement under the regulations immediately before the commencement of the amendment. Thus item 143 makes provision for the application of qualification requirements to all pre-amendment licence applications.
The Tribunal decided that item 121 of Schedule 4 of the amended Act "is a more specific provision" and therefore prevailed over item 143 (Decision [59]).
That construction however has the unintended and anomalous consequence implicitly acknowledged by the Tribunal at par [57] that no qualification provisions would apply to pre-amendment applications before the Tribunal. That construction is contrary to the intended purpose of the licensing scheme and the 2014 amendments to it.
Item 121 is clearly of a more general nature. The heading says so expressly. On the other hand item 143 is specific and specifically deals with the provisions of regulations transferred to the Act - which is a reference to regulations 26 and 28. See par 29 above.
Paragraph 57 of the Tribunal member's reasons is as follows:
"For these reasons, I conclude that the Home Building Regulation 2004 does not apply to my determination of these proceedings. This creates the anomalous and presumably unintended consequence that the application is to be determined under the Home Building Act 1989, as it stood prior to 15 January 2015, and the "Home Building Regulation 2014".
We are unable to agree with that conclusion for the reasons set out above. Item 143 means that s 33C and 33D of the Amended Act, apply to applications made before 15 January 2015, even if they are before the Tribunal and notwithstanding item 121 (2) (a).
The Tribunal member does not appear to have considered whether reg. 75 (2) of the 2014 Regulation was relevant to the question whether the 3 July 2013 Instrument continued to have effect. In our view the 2013 Instrument falls within the description of an "act, matter or thing" having "effect" under the 2004 Regulation before the repeal of the 2004 Regulation. It thus comes within reg. 75 (2). In our view the instrument continued to have effect even though the 2004 Regulation pursuant to which it was made, has been repealed under the 2014 Regulation.
The 2015 Instrument distinguishes between licence applications made before and after 5 January 2015 and provides that the qualification requirement relevant to applications made before its commencement are those "specified in the instrument dealing with the same matters as this Instrument which was in force at the time the relevant application was made" (cl. 2(b) 2015 Instrument).
We are of the view that taken together, items 121 and 143 of Schedule 4 of the Amended Act and reg. 75 (2) of the 2014 Regulation extend the qualification requirements of the pre-amendment licensing scheme to applications made prior to the commencement of the Amending Act, including those before the Tribunal.
We are therefore of the opinion that the Tribunal member erred in coming to the conclusions in pars 57 and 67 of her reasons for decision. We are also of the view that the Tribunal member erred in her implicit finding that the Instrument made pursuant to reg. 28 of the 2004 Regulation on 12 July 2013, did not apply to the assessment of the respondent's application for an endorsed contractor licence.
We are of the view that there is a grammatical error in item 143. The words in that item do not make sense. We are also of the view that it is clear what item 143 was intending to achieve namely: (i) an amendment made by the Amending Act, (ii) that imposed a requirement that was a requirement of the regulations before the amendment commenced; (iii) extends to any contract or other matter which was the subject of the requirement under the regulations immediately before the commencement of the amendment. In other words there should be a continuation of the requirement under the Amending Act.
We are of the view that with item 143 there has been a plain case of a drafting mistake. The power to correct obvious drafting errors is available to a court or tribunal where a court or tribunal is abundantly sure of three matters:
1. the intended purpose of the statute or provision in question;
2. that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and
3. the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed." (Inco Europe v First Choice Distribution [2000] 1 WLR 586 at 592D - G, referred to with approval by the High Court in Minister for Immigration and Citizenship v SZJGV 238 CLR 642 at 652 per French CJ and Bell J and in Taylor v Owners-Strata Plan No.11564 [2014] 88 ALJR 473 at 483 per French CJ, Crennan and Bell JJ).
We are of the view that item 143 was intended to state and should be construed as stating the following:
"An amendment made by the amending Act that imposes a requirement that was a requirement of the regulations before the amendment commenced extends to any contract or matter ['to' deleted] which was the subject of the requirement ['was subject' deleted] under the regulations immediately before the commencement of the amendment."
It follows from the above that we are of the view that the orders and directions made and given by the Tribunal member on 10 April 2015 should be set aside. In those circumstances, it is unnecessary for us to consider grounds of appeal 6 - 8 and we do not do so.
[6]
Orders
Attached to the appellant's notice of appeal is a document setting out orders which it is said the Appeal panel should make. At the moment the Appeal panel is not satisfied that all of the proposed orders are in fact orders or that they are orders that the Appeal panel should make. The Appeal panel will grant leave to the parties to make written submissions on the orders and directions which are now made and on whether any further orders or directions should be made or given.
The Appeal panel makes the following orders and directions:
1. The appeal is allowed.
2. The orders and directions made by the Tribunal member on 10 April 2015 are set aside.
3. If the parties or either of them wish to make submissions as to the form of the above orders and as to whether any further orders should be made, then written submissions should be filed and served by the parties within 14 days. Any submissions in reply should be filed and served within 10 days after service of any initial submissions. If any submissions are made then they will be dealt with by the Appeal panel on the papers unless the parties request an oral hearing.
[7]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 18 August 2015
Parties
Applicant/Plaintiff:
Commissioner of Fair Trading, Office of Finance and Services, NSW Fair Trading