Cooper v Commissioner for Fair Trading

Judgment (6 paragraphs)

[1]

REASONS FOR DECISION

On 21 September 2016 Wayne Cooper ("the Applicant") applied to the Commissioner for Fair Trading ("the Respondent") for a qualified supervisor certificate in the category of general building work under the Home Building Act 1989 ("the Act"). On 30 September 2016 the Respondent refused the application and on 23 November 2016 affirmed its decision on internal review, on the basis that the Applicant had "not met the relevant qualification requirements for the issue of a supervisor certificate for general building work".
The Applicant previously held an individual contractor licence in the category of general building work for the period 20 August 1992 to 25 May 2005. He was also the holder of a qualified supervisor certificate in the category of general building work for the period 15 November 2004 to 15 November 2010.
The Applicant submitted a NSW TAFE Certificate - Civil Engineering Construction Carpentry Trade Course dated 31 December 1979, a transcript for 14 subjects completed as part of a Building Supervision Advanced Certificate Course through TAFE in 1991 and 1992, evidence of other training courses completed, references and referee statements as evidence to support his application.

[2]

Jurisdiction

The Tribunal has jurisdiction to review the Commissioner's refusal of applicant's application for a contractor licence under s 83B(1) of the Act, s 9 of the Administrative Decisions Review Act 1997 (NSW) and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW).

Consideration

According to the Respondent, the Applicant's qualifications did not conform to those listed in a purported Instrument dated 22 April 2016, said to be made by the Respondent under the Act. The Respondent took a technical approach to the Instrument, submitting that there was no flexibility or discretion available where the specific qualifications identified in the Instrument were not obtained. In those circumstances, it was not disputed that the Applicant did not fulfil the qualification requirements specified in the Instrument, as the Applicant was one subject short of completing the Advanced Certificate in Building Supervision from TAFE in 1991-1992.
I invited the Respondent to provide additional submissions after the close of hearing on the application of the Instrument, which I have considered. Senior Member Lucy in Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 at [20] to [39] identified the Instrument to be a "government policy" in the context of the Tribunal's consideration and determination on the basis of similar submissions from the Respondent, and I adopt the same reasoning in these proceedings. At [39], Senior Member Lucy summarised the application of the Instrument as a government policy: On balance, I find that the proper characterisation of the Instrument is that it is a policy. The Tribunal is required to give effect to "Government policy", except in certain circumstances, the term "Government policy" being defined to mean a policy adopted by the Cabinet, a Minister or the Premier (Administrative Decisions Review Act, s 64(1) and (5)). There is no evidence that the Instrument has been adopted by the Cabinet, a Minister or the Premier. It purports to have been made by the respondent and I accept that that is the case. The Tribunal "may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case" (Administrative Decisions Review Act, s 64(4)). I consider that this provision applies to me in my application of the policy expressed in the Instrument.
The Applicant submitted that the Respondent's inflexible requirements expressed in the Instrument "appear to assume all people applying for a building licence are transitioning from a trade role into a qualified supervisor or Builder licence". This is demonstrated, for example, by the strict requirements expressed for the completion of "referee statements" on specified forms, and the listing of specific degrees or trade certificates as the only acceptable qualifications. As discussed in Wall v Commissioner for Fair Trading [2017] NSWCATOD 76 at [29] to [36], the Respondent's continued insistence on strict compliance and reliance on these referee statements is unnecessary to the requirements of the Act and contrary to its duties to the Tribunal pursuant to s 36 of the Civil and Administrative Tribunal Act 2013.
I agree in the circumstances that the Respondent is applying unnecessarily inflexible requirements to the process of obtaining a licence under the Act. As noted in Wall at [33], the Instrument "may provide some guidance to those applicants wishing to apply to the Commissioner for a licence, but cannot be considered reflective of the eligibility requirements under the Act." As expressed in Whitehouse, applying the Instrument inflexibly or allowing it to take precedence over the provisions of the Act would be an error of law. Taking the Instrument into consideration as government policy therefore necessarily provides for flexibility in its application.
Sections 24(1)(b), 25 and 33D of the Act provide the criteria for the Secretary to grant a supervisor certificate under the Act. On the basis that section 33D refers to "additional requirements", the primary criteria for the issuing of certificates under the Act are as set out in sections 24 and 25, being relevantly that the applicant for a certificate needs to be "a fit and proper person", determinable on the basis of "whether the applicant is of good repute, having regard to character, honesty and integrity" (section 25(1A) of the Act). Section 25(2) then refers to the Regulations for additional qualifications or requirements, however no such regulations are validly in force. The Respondent submitted that s25(2) should be read as referring to the Instrument; however for the reasons discussed in Whitehouse I reject that submission. Section 25(1)(a1) refers to the requirements in sections 33B and 33D. Relevantly, section 33D contains the additional requirements that the Secretary be satisfied of the applicant's ability through relevant qualifications, tests and experience, and capability.
The Respondent did not address the Applicant's qualifications, experience or capability except by reference to the unfulfilled requirements of the Instrument. The Applicant, however, has provided evidence of his qualifications, experience, capability, fitness and propriety which I consider in determining the Applicant's application in accordance with the Act.
The evidence establishes that the applicant previously held a Carpentry Trade licence, Qualified Supervisor Licence and Builder's Licence which lapsed in 2010. He had previously managed his own building company, been a fulltime employed supervisor in a residential aged care construction, and consulted in the industry, and was continuously and actively employed in the housing industry in a construction supervision role for the past 27 years.
In the period between 2011 and 2015, the Applicant was employed as Project Development Officer for Warrigal Care. This included responsibility for major renovations on residential care homes and construction of retirement villages, with specific involvement in design and consultation with stake holders, project management, contractor management, financial management, and Work Health and Safety compliance. The relevance of the period 2011 to 2015 is that, had the Applicant reapplied for his licences within 2 years of their expiry in 2010, he would not have had to comply with the new requirements for specific qualifications as expressed in the Instrument, as it stated: If you have previously held a licence in the prescribed class of 'building' and you apply for a new licence within 2 years of the former licence's expiry, your previous licence will be accepted in lieu of the current qualification requirements.
His previously acceptable qualifications under the Act, obtained decades previously did not cease to exist because he didn't renew his licence in a specific time frame, while he continued to be engaged in the industry. They just stopped being acceptable to the Respondent pursuant to the strict application of the Instrument. There is no evidence to suggest that his failure to complete a specified course in 1992 now disables him from being an adequate supervisor for the work covered by a qualified supervisor certificate under the Act.
The applicant provided evidence in the form of several reference letters and referee statements of his positive reputation, experience, expertise, competence and integrity, and active role in the construction industry over the previous decades.
On the evidence before me, I am satisfied that the Applicant: 1. Is a fit and proper person within the meaning of the Act; 2. Has the necessary qualifications and has passed the necessary examinations and practical tests to enable him to do or supervise the work for which the certificate is required; 3. has had relevant and extensive experience over the past 27 years which enables him to do or supervise the work for which the certificate is required; and 4. is capable of doing or supervising work for which the certificate is required.
Accordingly, I believe the correct and preferable decision is to issue the Applicant with a Qualified Supervisor Certificate.

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Judgment (6 paragraphs)

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