Daggecen v Victorian Building Authority (Review and Regulation) [2023] VCAT 1262

1. Under s 187 of the Building Act 1993, the decision of the respondent of 26 April 2022 to refuse to grant the applicant registration in the class of Domestic Builder (Unlimited), is affirmed.

1. This is a review of a decision of 26 April 2022 refusing to grant the applicant, Ms Daggecen, registration in the class of Domestic Builder (Unlimited) (DB-U). It is brought under ss 186 and 187 of the Building Act 1993 (the Act).
2. That decision was an internal review (the Internal Review Decision) under ss 185-185C of the Act, of the original decision by the respondent (the VBA). That had been made under s 171 of the Act on 23 March 2022. It also rejected the application (the Original Decision).
3. In December 2018, Ms Daggecen completed a Diploma of Building & Construction (Building) from the Centre for Advanced Studies in Building & Construction Management. It is common ground that this satisfies the first of the two limbs of the legislative requirements, being the academic requirement, set out in s 171(1) of the Act, and regulation 258 of the Building Regulations 2018 (the Regulations).
4. The issue for the Tribunal to determine is whether or not Ms Daggecen satisfies the second limb of the legislative requirements, that is, the 'practical experience' requirement.
5. Clause 31 of Schedule 9 to the Regulations prescribes the practical component of the qualifications required for registration as a DB-U as 'at least 3 years of practical experience'.
6. The term 'practical experience' is not defined, save that under reg 258, it:

(a) includes compliance with any supervision requirements during the obtaining of that experience; and

(b) must have been obtained in the 7 years before the application for registration was made.

1. The VBA interprets the legislation as requiring practical experience in the relevant class for which registration sought. It assesses an applicant's practical experience by conducting a one hour 'Plan Based Exercise' (PBE), which is in the nature of a written test or exam, and by conducting an interview (Interview).
2. In our view, that is an appropriate approach to the assessment of whether the level of 'practical experience' required under the legislation had been attained.
3. Ms Daggecen undertook both a PBE and an Interview, with a VBA assessor, on 21 March 2022. The PBE went for a little over 70 minutes and the Interview for a little over two hours. We received a copy of the PBE documentation, showing both the answers provided by Ms Daggecen, and the marks awarded by the assessor. This comprised 10 pages of questions, plus five pages of plans.
4. Ms Daggecen's performance in the PBE was described in the Internal Review Decision as follows:

The plan-based exercise tested your ability to apply the National Construction Code and Australian Standards AS 1684.4 and AS 2870. The pass mark for the plan-based exercise is 70%. You received 33 marks out of 77, or 49%.[1]

Broken down by topic, your scores were:

(a) gutters and downpipes - 4 marks out of 4

(b) smoke alarms - 2 marks out of 6

(c) masonry - 8 marks out of 8

(d) general - 6 marks out of 14

(e) roof construction - 1 mark out of 12

(f) timber framing - 6 marks out of 14

(g) conventional raft slab design - 6 marks out of 9

(h) timber wall bracing - 0 marks out of 10.

Obviously, your score was below the 70% pass mark, and by a considerable margin. You scored well in some topics, but there were others where you performed poorly. You appear not to have had time to attempt the questions on timber wall bracing, but you would not have achieved the 70% pass mark even if you had answered all of those questions correctly.

Your score in the plan-based exercise raises concerns about the level of your knowledge and experience. It would form sufficient basis on its own for refusing to grant your application for registration. In your case, it reinforces the conclusion arising from your answers in the discussion of projects.[2]

1. Turning to the Interview. The VBA's assessor used a template document entitled 'Knowledge and Experience Assessment Report' (KEA Report). This identified six 'Areas of Experience' appropriate for a DB-U registration. Below the heading for each of those areas of experience, one or more sub-components were listed. The Areas of Experience, and the number of such sub-components (in brackets) are as follows:

1. Apply for a building permit for the work (2)

2. Enter into and administer appropriate contracts and insurances (6)

3. Produce cost estimates and apply business financial management skills (2)

4. Coordinate on-site construction works (3)

5. Ensure works are planned and conducted safely (1)

6. Domestic building work that you carried out (41).

1. The Original decision of 23 March 2022 described the areas where Ms Daggecen's knowledge and experience were found not to have been demonstrated as follows:

• [Area of Experience 2] You did not demonstrate appropriate knowledge and experience in the following aspects of entering into and administering appropriate contracts and insurances:

o Completion of handover including certificates of compliance,

o Managing the building work from start to finish.

• [Area of Experience 3] You failed to demonstrate satisfactory knowledge and experience in the following aspect of producing cost estimates and applying business financial management skills:

o Preparing cost estimates and quotations for project/part of project.

• [Area of Experience 4] You did not demonstrate sufficient knowledge and experience in the following aspects of co-ordinating onsite construction works:

o Developing and monitoring progress schedules for the work,

o Providing on-site day to day supervision of the project,

• [Area of Experience 6] You did not demonstrate sufficient knowledge and experience managing, carrying out or arranging the following critical elements of domestic building work.

Pre-Base Work:

o Interpreting architectural plans, drawings and specifications,

o Interpreting engineering designs, plans, drawings and specifications,

o Establishing the construction site,

o Provided protection works for the adjoining property,

o Arranging services (power /sewer /stormwater/ gas/ telecoms),

o Excavation/site levelling.

Base Work:

o Construction of concrete raft slabs,

o Construction of formwork for concrete slabs,

o Selecting installation of steel reinforcements,

o Installation of damp-proofing.

Framework:

o Construction of sub-floor framing,

o Construction of wall framing - stick build,

o Construction of wall framing - prefabricated,

o Construction of fire rated party walls.

Lock-Up Work:

o Installation of roof tiles,

o Installation of roof sheeting,

o Internal/external services rough-in

Final Work:

o Selecting and installation of waterproofing,

o Installation of tiling - wall and floor,

o Completed fixings - architraves/ skirting/ doors/ hardware.

Please be aware that the above points are examples only, provided to enable you to understand some of the key concerns held by the VBA in relation to your level of knowledge and experience.

1. As part of her contention that she does in fact satisfy the requirement for practical experience, Ms Daggecen also contended that the PBE and Interview were conducted in a manner which was unfair to her.
2. In particular, she:
   • Complained she was required to produce a set of unmarked A3 drawings. That is, she was not allowed to bring in drawings containing her own annotations with her to the assessment.
   • Questioned the qualifications of the assessor.
   • Said that the diploma she had completed 'bypassed' the topic of 'drawings'. ..... And it was her understanding that was not a skill required to attain DB-U registration, as others had achieved this without that knowledge.
   • Submitted she was discriminated against as a woman, noting that her assessment Interview ran for much longer than others'.
3. Our task is not to conduct a review of the legality of the Original Decision or the Internal Review Decision. Only the Supreme Court can conduct such 'judicial review'. Our task is to make a decision on the application for registration as a DB-U afresh. To the extent we state in various places below that we endorse, or agree with, the conclusions of the assessor, or of the internal reviewer, what we are saying is that as a matter of exercise of our own independent judgement, we have come to the same conclusion on that particular point.
4. However, to the extent we rely on the information obtained from the PBE and the Interview, we have considered whether or not that information is sufficiently reliable, to form part of the basis for our decision.
5. A Tribunal Book was prepared by the VBA. This included documentation relation to Ms Daggecen's application, the Original Decision, the Internal Review Decision, the application for review by VCAT, associated correspondence, and pre-hearing submissions from the parties.
6. Oral evidence was given by Ms Daggecen, and by her referee, Mr Balikel. He is registered as a DB-U. In conducting this review, we have had regard to that evidence, as well as the PBE, the audio recording of the Interview on 21 March 2022, the KEA Report prepared by the assessor, the post-hearing submissions from the parties, and all the material in the Tribunal Book.
7. Following the hearing, the parties were given the opportunity to file further submissions in writing. First, Ms Daggecen provided her Submissions, dated 22 May 2023, then the VBA provided its Final Submissions, on 12 July 2023. Ms Daggecen then had the opportunity to file her final submissions (by 26 July 2023). Despite being followed up by the Tribunal twice in September 2023, she did not provide any final submission.
8. For the reasons stated below, we are satisfied that Ms Daggecen does not have the requisite level of practical experience to be registered as a DB-U, and so we have determined that the Internal Review Decision is affirmed.

Registration as a Domestic Builder (Unlimited)

1. The VBA website summarises the role of a DB-U as follows:

A person registered in the class of Domestic Builder (Unlimited) is responsible for carrying out, or managing or arranging the carrying out of all components of domestic building work for the construction, renovation, improvement or maintenance of a home (class 1, 2, and 4 buildings, and associated class 10 buildings).

1. A critical role of a DB-U is supervising the carrying out of all construction work, ensuring compliance with the Act, and the Regulations made under it, the National Construction Code, Australian Standards and local authority requirements.
2. In contrast, a Project Manager (Domestic) (PM-D) is responsible for managing or arranging the carrying out of domestic building work by a registered DB-U or a relevant limited class domestic builder. A PM-D cannot carry out the work themselves. Nor can they engage an unregistered builder to carry out the building work (as a DB-U can).
3. Another critical aspect of the DB-U role is that they are permitted to construct Class 2 buildings. These are buildings containing two or more sole-occupancy units, such as apartment complexes. There is no limit as to the number of the apartments, the size of any complex, or building height a DB-U may construct. Hence, a person registered as a BD-U must have the ability to construct any Class 2 building , even if they intend to restrict their practise to a limited category of dwellings.
4. Of the 30 different classes of registered builders in Victoria, DB-U is the 'highest'. It is the only one which is unlimited. It carries with it authority to undertake all components of domestic building work. And it carries with it the greatest level of professional responsibility.

1. It appears Ms Daggecen's engagement in building stemmed from her involvement in her husband's concrete delivery business. Her husband is Mr Balikel's brother in law.[3]
2. Mr Balikel said Ms Daggecen began working for him in the office in 2016 or 2017. She had an aptitude for finding cost-effective tradespeople. She started to attend on site, and found she enjoyed it. She completed her diploma in July 2011.[4]
3. Ms Daggecen said she wants registration as a DB-U in order to carry out her own projects, commencing with a demolition and construction of two townhouses on a property she owns. It was clear from Mr Balikel's evidence, on the other hand, that he envisages her taking on a much greater role in his business, as he seeks to reduce his own involvement in it to some degree.
4. In her application, Ms Daggecen nominated five projects she had worked on between November 2017 and November 2021 (the date of the application).[5] Four of these were completed projects. She stated she had spent 10 hours per week onsite at each of those projects. The fifth, in Sunshine, was ongoing, and she said she had spent 20 hours per week on that from September 2020 to November 2021.
5. One project was a single story dwelling, two involved 2 dwellings, one involved 9 dwellings and the final one, the Sunshine project, 12 dwellings.
6. For four of the projects, Mr Balikel was stated to be the relevant registered practitioner (DB-U) carrying out the project. For one, two double storey townhouses at 12 Rogerson Rd, Avondale Heights, the nominated building practitioner (DB-U) was Mr Selajdin Ajrendini. Mr Ajrendini, referred to as 'Sam', was described as primarily a real estate agent, but a registered builder as well (DB-U). He has a close and long-standing relationship with Mr Balikel, who uses an office provided by Mr Ajrendini. It emerged that the client for that project was in fact Mr Ajrendini's daughter, although all contact by Ms Daggecen was with Mr Ajrendini, rather than his daughter.
7. Ms Daggecen was required to nominate three of these projects in her application form, to demonstrate her experience. One of these was Rogerson Road. The application form provided boxes to be ticked for relevant components of the building work, to indicate whether Ms Daggecen 'Managed', 'Carried out' or 'Assisted'[6] particular sub-components of the work. In every case where boxes were ticked for these three projects, Ms Daggecen ticked the 'Managed' box. As we find below, in doing so, Ms Daggecen was in fact significantly overstating her role in that project.

1. We deal with the evidence given by Ms Daggecen in the course of our analysis of the particular relevant topics below. We comment generally, however, that Ms Daggecen's answers in the VCAT hearing, like those in the Interview, were in many instances unclear, and incomplete.
2. On some occasions, the questioning, and giving of answers, was done through a Turkish interpreter. Ms Daggecen indicated at the outset that given the stress associated with the hearing, the presence of the interpreter gave her confidence that if something arose during the hearing that she didn't understand, she could fall back on seeking the interpreter's assistance. Mostly, questions and answers were given in English. We were satisfied Ms Daggecen understood the questions asked, and was not prevented from answering them from any lack of English language skills. When required, questions were repeated or re-phrased, and further opportunity was given to attempt to clarify answers, and on some occasions, the services of the interpreter were utilised.

1. It is convenient to set out the VBA's Final Submission in relation to the PBE (including footnotes):

21. Having regard to the applicant's results in the plan-based exercise (even considered alone), the Tribunal ought not be satisfied that the applicant has three years' practical experience to be registered in the unlimited class of registration sought.

22. The applicant's overall mark of 43% in the plan-based exercise falls well short of the VBA's pass-mark of 70%.

23. Further, the applicant's results for critical aspects of domestic building work (2/6 for smoke alarms, 1/12 for roof construction, 6/14 for timber framing) significant[ly] militate against the conclusion that the Tribunal should be satisfied (as required by s 171(1)(a)(i) of the Act) that the applicant has three years of relevant practical experience. That is, the Tribunal ought not be satisfied that the applicant has obtained the requisite breadth of practical experience to be registered in the class of domestic builder (unlimited). Had she done so, she would have fared better on the plan-based exercise.

24. On the VBA's understanding, the applicant only contends that two errors were made by the VBA's assessor when marking the applicant's plan-based exercise. The applicant's submissions in this respect were made at hearing; her post-hearing submissions do not assert any error in the marking of the plan-based exercise. At hearing, the applicant addressed two elements of the plan-based exercise.

24.1 First, the applicant contended that the assessor ought not to have given her a score of 0/10 for the roof drawing exercise.[7] In the VBA's submission, the mark allocated to the applicant for this exercise was appropriate given the applicant's clear errors with respect to the roof/ drawing exercise. In the alternative, even if the applicant is correct and she should be given some marks for her answer, the overall result would not change. The applicant has not specified the mark she submits that she should be given, although she apparently accepts some errors in her answer. On that basis, and assuming the applicant was given 5/10 marks for her answers here (contrary to the VBA's primary submission), her total score on the plan-based exercise would only improve to be 38 from a possible 77 marks (49%), still well short of the required 70%.

24.2 Second, the applicant apparently contended that the assessor ought to have given her some marks, rather than no marks, for her response on the question requiring her to draw the appropriate location of smoke alarms.[8] The applicant complains that she was given no marks (from a total of three possible marks) when, in her submission, her answer was "not that bad, actually".[9] That submission is misconceived. That the applicant erroneously considers her answer in this regard was "not that bad" might be considered by the Tribunal to be a further indication of a lack of relevant experience. The applicant mis-placed the smoke detectors she did include on drawing 2, and only included two smoke detectors when three were required. Alternatively, in this respect, even if the applicant were given full marks for this question, she would still not have reached the 70% grade required to satisfactorily complete the plan-based exercise.

25. The applicant also apparently impugns the VBA's approach of requiring her to undertake a plan-based exercise at all, and of the breadth of matters assessed. In her VCAT application (TB 309) the applicant apparently complains about the matters assessed, stating: "As I have a diploma in building and construction, I did not focus my study on drawings with the knowledge the diploma bypasses the drawings." Similar contentions were advanced by the applicant in her post-hearing submission. These complaints are misconceived: the unlimited category of registration sought by the applicant requires a broad-range of experience, which can only be tested by canvassing many of the broad-range of matters relevant to domestic building work.

26. Further, the applicant's complaints of general unfairness are misconceived when regard is had to the fact that the audio-recording and plan-based exercise show that the applicant was given additional time to complete the plan-based exercise over and above the specified 5 minutes reading and 55 minutes completion time stipulated on the first page of the plan-based exercise. That is, to the extent that the applicant was treated differently to others, an advantage was conferred upon her, not a disadvantage.

1. Following the completion of the hearing, Ms Daggecen was given the opportunity to provide written submissions concerning the PBE as follows:

Plan Based Exercise- The applicant's submissions are to identify those questions in the PBE where she contends she was unfairly marked down, and for each, what mark she contends she should have received, and why.

1. As noted by the VBA in its final submissions concerning the PBE above, Ms Daggecen did not address the PBE in her post-hearing written submissions.
2. With regard to the submissions about the PBE made orally by Ms Daggecen concerning the roof drawing exercise, and the smoke alarms, we agree with what is put in the Final Submissions of the VBA.
3. More generally, we comment that the ability to read building drawings, which is what was being tested by the PBE, is a fundamental skill required of a DB-U. The drawings specify how a building is to be built, what the dimensions are, the materials to be used, as well as many other things. If the topic of reading drawings was not covered in the course that she had undertaken, then that it is a skill she needed to acquire while gaining experience as a builder.
4. Also, from a regulatory point of view, a DB-U has the responsibility of ensuring that works are carried out strictly in accordance with the 'Approved Plans' which form part of a building permit. If there is any deviation or omission from the Approved Plans during the construction, which has not been approved by the Relevant Building Surveyor (RBS) by the issuance of an Amended Building Permit, then the building will be non-compliant. The ability to be able to properly read and understand drawings is obviously essential for this purpose.
5. We are particularly concerned about Ms Daggecen's very low scores in the PBE on critical topics, such as 2/6 for smoke alarms, 1/12 for roof construction, and 6/14 for timber framing. These are fundamental aspects of building construction, including in relation to human safety.
6. With regard to the manner in which the PBE was conducted, the recording indicates the assessor was polite and helpful. Of course, for most of the time, Ms Daggecen was left alone to complete the questions. The assessor did however, check in with her as appropriate.
7. With regard to the time allowed to Ms Daggecen, we note in excess of 70 minutes was allowed. That is, she was allowed at least an additional 10 minutes over the standard 60 minutes allocated to candidates. Hence, we reject the suggestion that Ms Daggecen was unfairly treated in that regard.
8. We find that Ms Daggecen was fairly marked in the PBE. We are satisfied that the information obtained from the PBE is properly able to be relied on by us in conducting this review.
9. We agree with the conclusion that Ms Daggecen's performance in the PBE was unsatisfactory. Her score in the PBE was well below the required pass mark of 70%. Further, given the critical gaps in her knowledge of matters covered by the PBE which came to light in the hearing, we agree with the conclusion in the Internal Review Decision that this alone would justify the refusal to register her as a DB-U.

1. We now turn to the second component of the assessment, the Interview.
2. In summary, for the reasons set out below, first, we are satisfied the Interview was properly and fairly conducted, and the KEA Report is a fair reflection of her answers. And second, that her performance in the Interview was unsatisfactory.
3. A review of the audio of the Interview demonstrates that the assessor was polite, patient, helpful and consistently neutral in his tone. If anything, he erred at times on the side of giving prompts to Ms Daggecen, to help her to answer the questions.
4. The requirement that she produce unmarked drawings of the three of her projects she had nominated for the purpose of the assessment was appropriate. The fact that candidates are allowed to utilise plans for projects they are, or should be, familiar with, obviously assists them. For them to be able to go further than this, and bring along copies of plans with their own handwritten supplementary notes, would undermine the process of properly assessing a candidate's knowledge, as opposed to their ability merely to regurgitate pre-prepared responses.
5. The Internal Review Decision said:[10]

I must also address your claim of discrimination. From the recording and from reviewing the documents relating to your application, I do not detect anything to suggest that you were treated differently to any other applicant, whether male or female. I comment below on the inclusion of the plan-based exercise in your assessment and the fact that your referee was not contacted. In terms of the discussion of your projects, I do not doubt that it was tiring for you. I accept that it is likely to have been stressful, as any assessment process normally is. While it is apparent from the recording that you became upset about 30 minutes before the end of the interview, the assessor did ask you whether you wanted to proceed and you agreed to continue. The number of topics covered by an assessor, the number of questions asked and the precise nature of those questions will vary according to many circumstances. In your case, they did not depart in any significant way from the normal range.

Finally, in relation to your claim that the assessor had prejudged the outcome, I can see no basis for this claim from the material before me. Nor do I question the assessor's ability to undertake assessments of this kind.

1. We agree with those comments. Additionally, with regard to any concerns Ms Daggecen might still have about the qualifications of the assessor, as explained, in this VCAT hearing, we are re-making the decision afresh ourselves. This review is our decision, being our assessment of Ms Daggecen's level of practical experience, not that of the assessor, nor that of the internal reviewer.
2. In the light of the above matters, we are satisfied that the Interview comprises a proper basis (together with the PBE) for an assessment of Ms Daggecen's 'practical experience'.
3. Turning to the outcome of the Interview, we find, for the reasons below, and consistent with the KEA Report, and the Internal Review Decision, Ms Daggecen was not able to answer too many questions on topics which are fundamental to the knowledge and skill-set of a DB-U.
4. Although in a few minor instances, we are prepared to find that Ms Daggecen may have demonstrated a greater level of knowledge and experience than she was credited for in the KEA Report, that has a negligible impact on the outcome overall.
5. Hence, in on this additional basis (that is, on the basis of the Interview, in addition to the outcome of the PBE), we find that Ms Daggecen does not satisfy the 'practical experience' component of the statutory requirements.
6. It is important to bear in mind that the questions Ms Daggecen was asked during the Interview were based upon the three projects she had specified in her application, being projects she said she had managed, particularly Rogerson Road Project. Thus, it would be expected she would have had technical knowledge of the plans, and construction details and process undertaken.
7. From our review of the recording of the Interview, aside from a few exceptions, such as her answers about masonry work and retaining walls, most of Ms Daggecen's responses were rambling, incomplete, contained irrelevant information and were not given with any confidence. The assessor was constantly prompting her towards the topic which the question related to.

Specific findings made in the Internal Review Decision relied on by the VBA

1. The VBA referred to the specific findings in the Internal Review Decision at [39]-[42] and submitted these findings should be endorsed. We agree. In our view, they properly capture the essence of the situation in relation to Ms Daggecen's level of practical ability. Those paragraphs state:

For most steps, the assessor was satisfied that you had sufficient direct experience or had demonstrated an adequate understanding. However, a number of your responses raised concerns about your level of knowledge and experience across the full spectrum of domestic building work. I do not propose to set out all of them, but will provide a few specific examples:

(a) You said that a works protection notice relates to demolition work. You referred (correctly) to Forms 6-9. However, the need for protection of an adjoining property is not limited to demolition work: see the definition of "protection work" in section 3(1) of the Act.

(b) You were not able to accurately describe how power was provided to a kitchen island bench for the Lansdowne Road project.

(c) You could not say what "UB" or "PFC" stood for in engineering drawings. (They stand for "universal beam" and "parallel flange channel" beams.)

(d) When asked where damp-proofing would be installed, you referred (correctly) to the rebate. You did not mention that damp-proofing would also be required above windows and doors.

In addition, many of your answers were vague or incomplete. From the recording of your interview, this seemed to be more than hesitancy in relation to technical terms or expressions. It suggested that you have not had the amount of experience that allows you to generalise about what is involved at certain stages of construction, or the matters to which you should pay particular attention to ensure the building work is compliant.

While some of these issues might be considered minor in isolation, in combination they present a picture of significant gaps in your knowledge and experience. In light of the unlimited nature of the domestic building work authorised by registration in the class of domestic builder (unlimited) (see paragraph 28 above)[11], these gaps are too great to overlook and lead to the conclusion that you do not satisfy the experience component of the prescribed qualification.

In response to some other matters raised in your application for internal review:

(a) It is appropriate that applicants only be allowed to refer to clear copies of drawings. This promotes the objectivity of the assessment process. In any event, it is not clear to me that you would have been assisted in answering any specific questions by referring to the types of highlighting and notes that you mentioned in your grounds for internal review.

(b) In many cases, the assessor did repeat his questions. From the recording, he was clearly concerned to ensure you had fully understood what he had asked. I do not consider this to have disadvantaged you, although it did increase the length of the assessment.

(c) Objectively, the number of plumbing and electrical questions was not high.

1. None of these findings were addressed in Ms Daggecen's submissions filed after the hearing. We agree with the findings of the Internal Review decision set out in the above passage.

1. We turn now to Ms Daggecen's oral evidence at VCAT. Member Clampett asked a number of technical and legislative questions pertinent to the role of a DB-U. Ms Daggecen's answers reflected insufficient knowledge and experience. This reinforced her lack of practical experience in a number of fundamental areas. Her responses in relation to the matters set out in the following paragraphs are a cause for concern.
2. Ms Daggecen has an insufficient appreciation of the extent to which, as a DB-U, she would have hands on responsibility for supervising tradespersons. In this hearing, as in her Interview, she made statements to the effect that she did not get involved in checking the work of tradespersons. Rather, she trusted them to do their job properly. For example, she said, 'I don't get involved with the framing'.[12] She also gave evidence to the effect that she could rely on the building surveyor to pick up any non-compliances. The difficulty with that response is of course that it is the responsibility of the DB-U to ensure construction of a compliant building.
3. Ms Daggecen did say later in her evidence that she does check their work, but that was in effect after prompting, and the effect of her evidence overall was that there are tasks which she does not have sufficient knowledge and experience of, in order to supervise those tradespersons effectively.
4. Ms Daggecen also has an insufficient ability to provide such supervision of tradespersons. A DB-U is assumed to have a high level of knowledge about the work of the tradespersons, because tradespersons do not need to be registered when working under a DB-U.
5. These matters are illustrated by the fact that Ms Daggecen did not demonstrate knowledge or experience in relation to what steps she is required to take in the situation where a tradesperson has done work which does not comply with the approved plans. That is, generally, the DB-U would require the work to be rectified on the spot. Alternatively, it would be necessary to go back to the RBS, to submit a new set of plans, and seek to have them stamped, as the new building permit. She did not articulate those things in her evidence.
6. Also, in giving her answer on this topic, Ms Daggecen demonstrated confusion between town planning permits and building permits.
7. Ms Daggecen demonstrated a lack of understanding of the role of the RBS as having the statutory responsibility of being the independent regulatory checker in relation to domestic building work. Her evidence indicated she was not aware that if a dispute arose with an RBS, and the builder sought to sack them, this could not be done without the approval of the VBA (see s 81 of the Act).[13]
8. Ms Daggecen used the expression 'we' in discussing her involvement. This is consistent with the other evidence suggesting that she was not in fact carrying out the role of manager on the Rogerson St project, but rather, something less. Indeed, from her responses overall, it is not clear that Mr Balikel was managing it either. That is not satisfactory. However the key point for present purposes is that we were not satisfied that Ms Daggecen was truly carrying out the role of managing the project- as she claimed to have done. Her application in effect overstated the experience she had gained on this project.
9. Ms Daggecen does not have an accurate understanding of the level of responsibility which comes with registration as a DB-U more generally. She said her understanding was that she would be limited to double-story dwellings. That is not the case. A DB-U is able to construct a wide range of buildings, including standalone dwellings, and apartment complexes. Each type has its own specific regulatory and construction technical requirements. Class 2 buildings, depending on the fire protection requirements may well require an approval from the Fire Commissioner (Building Regulations 2018 - Part 4 - Building permits - Division 3 - Report or consent of reporting authorities - Part 30 Prescribed reporting authorities). Technical construction matters need to be considered, such as: site setbacks, different structural load requirements as a building rises in height. Fire protection requirements differ significantly between Class 1 (Domestic Dwellings) and Class 2. Class 2 fire protection requirements differ significantly when rising above two storeys in height, then again rising above three storeys in height and again above 25 metres in height.
10. This lack of understanding perhaps explains to some extent Ms Daggecen's belief that she has the necessary practical experience to be a DB-U: her present intention is only to construct domestic buildings in a fairly narrow range of building types from those which a DB-U is entitled to build.
11. Ms Daggecen was asked questions in the VCAT hearing about a few specific topics arising from the Interview. One was about the installation and positioning of stack pipes. This was a topic on which she had been unable to respond satisfactorily in the Interview. Disappointingly, she was still not able to respond properly to such questions in the VCAT hearing. Nor did her post-hearing submission take the matter any further.
12. From the audio of the Interview, it is apparent that Ms Daggecen was unsure what a stack pipe was or where it is situated. The assessor was pointing out that the stack pipe is a critical matter, and even went as far as prompting her a number of times. For example, he asked: 'In a double story house how do you get the wastewater downstairs?'. She was also unable to identify the stack pipe on the plans.
13. In her post-hearing submissions on this topic, Ms Daggecen said simply: 'Ask lots of time repeatedly, In framework, drainage, connection of pipes'. This obviously does not provide any further information as to why she contends she answered the question satisfactorily.
14. Finally, although this point is not of the same level of significance, we also note that Ms Daggecen was unaware that fire walls in multi-dwelling developments could be penetrated if the proper fire protection sealing was followed. In our view, this is indicative of a practitioner whose experience is quite 'thin'.

Ms Daggecen's post-hearing written submissions about the Interview

1. Ms Daggecen took issue with the assessment of her performance in the Interview. However, at the hearing she was not in a position to argue this with reference to the detailed findings set out in the KEA in relation to the six Areas of Experience. She was given an opportunity to specify these in written submissions.
2. In reviewing the audio recording of the Interview, as noted, her answers to particular questions frequently consisted of a grab-bag of considerations, expressed in very tentative terms, some relevant and responsive to the question, and some not. The effect of what she said in the Interview was that while she has knowledge and experience of some matters, there are significant fundamental aspects of the role of a DB-U where it is lacking.
3. An example of this is her response in relation to the shower. She articulated the obvious proposition that waterproofing is required, but she did not go on to articulate any further detail about that, such as we would expect a DB-U candidate to be able to do. She did not, for example, refer to the fall to floor waste, detail of complying waterproof substrates, position of waterstop or waterproof sealing of penetrations.
4. For the reasons which follow, save for a few minor instances, Ms Daggecen's post-hearing submissions do not persuade us that the adverse assessments made in the KEA Report were wrong.
5. In those submissions, Ms Daggecen listed, in the form of a table, a number of topics in relation to which she said she had been wrongly assessed as 'does not meet requirement'.
6. However, her submission in each case comprised merely a short, shorthand quote of what she had said in the Interview, without going on to explain the basis on which she contends that particular assessment was wrong.
7. The table in Ms Daggecen's post-hearing submissions contained 20 entries. These were not numbered, but she assigned a letter 'A' - 'M' to most of them, for the purposes of cross-referral to the KEA Report. We deal with her responses according to the letters 'A' - 'M' assigned by her.
8. The first five entries in her table were marked 'A'. The 'Topic' (in bold), and 'Answer Given' as set out in the table, marked 'A', are as follows:
   • 'Drainage Plumber'-

1. These submissions by Ms Daggecen appear to relate to topics under Area of Experience 4, (Co-ordination of on-site works) and 6 (Domestic Building work that you carried out'- in the sub-category of 'Pre-Base Work').
2. Concerning her response in relation to the stack pipe, this was inadequate, as described above.
3. Concerning the supply of power to the kitchen island bench, this too has been dealt with above, with the response being inadequate.
4. Concerning the shower, as mentioned above, Ms Daggecen's answers as revealed on the audio recording of the Interview did not comprise properly responsive answers to the questions asked. And post-hearing submissions in the above form do not cause us to alter that conclusion.
5. The same applies, for similar reasons, to the remaining two of the above five items marked 'A' by her (relating to drainage and the vanity powder room).
6. Additionally, for several early items in the KEA Report, concerning preparation of costs estimates and monitoring work schedules, Ms Daggecen simply asserted 'answer is correct'. (No particular letters were assigned to those notations.)
7. With regard to these, the audio of the Interview indicates a lack of awareness of things which could go wrong on a project, which a DB-U must be able to anticipate, and deal with, such as delays, cost overruns. There was no apparent awareness of requirements for things such as insurance, protection of adjoining property, the need to obtain the assistance of a quantity surveyor on occasion, the need to clarify costings issues with the client or the contract dispute process.
8. B Protection works for adjoining property - Ms Daggecen's post-hearing submission concerning protection works stated only: '"Building Surveyor says you can demolish the house" This is Form 9'.
9. This is a matter which was referred to in the Internal Review Decision, at paragraph 39(a). On reviewing the audio, it is quite clear that Ms Daggecen believes the requirement of protection works, and the need for RBS approval, only applies when one demolishes a house. That is incorrect.
10. An understanding of the requirements concerning protection of adjoining property during construction is critical. If protection works are not undertaken correctly, there can be significant damage to adjoining properties or dangerous earth movement during construction. This can give rise to extremely costly and disruptive legal disputes in relation to rectification of damage caused.
11. C Site Cut- In her post-hearing submission, Ms Daggecen said that in the Interview, she mentioned the need to 'check the plans including engineering' and said 'land surveyor involved as well'. It appears from the audio of the Interview that Ms Daggecen was marked down for not being able to refer to the particular relevant notation on the plans for one of her three nominated projects, when asked how to determine whether site cut is required.
12. While we cannot see the relevance of the land surveyor to this question, it might be that her reference to an engineering report was intended to be to a soil report, which would be relevant. Given these doubts, out of fairness to Ms Daggecen, we are prepared to give her the benefit of the doubt in this case, and accept that she at least partially responded to the question correctly.
13. D Raft Slab- Ms Daggecen contended in her post-hearing submission that she gave a long answer, and that all the answers she gave were correct, and that the assessor cut her off.
14. On review, it is clear that what the assessor was asking was, 'What would the RBS be looking for?' The most important thing here is to have checked the depth of the slab (or of stump holes for a house on stumps). Ms Daggecen said she did mention depth. That is correct, however, it was only after prompting.
15. E and F- Formwork for concrete slabs and steel reinforcements (trench mesh)- The KEA Report does not indicate the reasons why Ms Daggecen's answers on these topics were deemed unsatisfactory. We accept that her responses did contain some relevant and correct information. The exception to this is that she incorrectly stated that the minimum overlap required for trench mesh is 200mm. In fact, the National Construction Code, Table 3.2.3.1 states that the minimum overlap for trench mesh reinforcement is 500mm.
16. Ms Daggecen's answer in relation to a subsequent question relating to 'bar chair spacing' was, however, correct.
17. G Damp Proofing- As already indicated, we agree with the conclusion of the Internal Review Decision at paragraph 39(d) that her answer was correct in identifying the rebate, but she did not mention the windows and doors. So her answer was half right.
18. H Sub-floor- In her post-hearing submission, Ms Daggecen said she correctly referred to the 'Timber Flooring Book'. A review of the audio confirms she did refer to the applicable Australian Standard. However, this was only after a great deal of prompting.
19. Additional response after H on Ms Daggecen's table- Ms Daggecen said:

It's not helpful at all, I feel it's getting harder and harder

To many relatives get license and it's not that hard, it didn't take 3 hours. I feel like I'm here to fail"

I said "I feel like I'm not here to pass. I feel like because I'm woman it's getting harder"

I said " It's stressfull I got thing mixed up. I miss understand somethings".

1. As stated, the Tribunal has listened to the audio of the Interview in full, and analysed it in detail. And as we have indicated, we do not accept that it was conducted unfairly. It forms a proper basis for our assessment. If anything, Ms Daggecen was given additional consideration. The statement 'I'm not interested' is clearly taken out of context in the above submission by Ms Daggecen. The assessor was responding to her comment that other relatives did not have such a tough time getting a licence and that a previous interview had been conducted differently. The assessor replied that he was trying to give her every opportunity and was 'not interested in the previous interview', he was 'not rushing her" and that she 'had plenty of time'.
2. I Wall Framing- In her post-hearing submission, Ms Daggecen simply said: 'Gave answer of which project was stick built and which job is prefab also gave answer on information required on manufacturer'. Once again, this response does not provide any detail as to why she contends she got the answer right or why the assessor was wrong to determine that her answer was inadequate.
3. The audio relating to the part of the KEA Report which Ms Daggecen marked 'I' includes a crucial question she was asked about 'the maximum allowable overhang of a bottom plate'. On the audio there is silence for several minutes and rustling of paper as she is trying to seek an answer, and further prompting by the assessor, until the assessor finally says, 'We have to move on'. The assessor on the KEA noted 'Max plate overhang- Unsure'. Clearly, this response by Ms Daggecen was unsatisfactory.
4. Also, in relation to information to be provided to the manufacturer, the KEA Report relevantly says: 'Did not identify the requirement to provide window schedule and provide ceiling heights, manufacturers sign off sheet'.
5. Upon reviewing the audio of the Interview, it is clear Ms Daggecen failed to identify those items when asked. But later on, she realised she had not answered this question properly, and said, in effect, that she should have referred to the windows and sliding doors, and whether they are double or single glazed. So she did provide some response to the question relating to what information is to be provided to the manufacturer. However, her response was vague, and a full answer to the question would have included more information, such as notes for the builder in relation to construction, the materials to be used to construct the windows and the location and dimension of windows.
6. J and K- Roofing and Roughing In- We accept that amongst the things said in response to questions on these topics, Ms Daggecen correctly identified some items which need to be completed before the roofer commences work, and some of the tasks required as part of roughing in. But again, they were delivered tentatively, amongst a lot of other responses which were misguided, or not relevant to the question asked. These are basic questions, and it would be expected a candidate for DB-U would be able to 'reel off' the answers to these without hesitation.
7. L and M- Waterproofing and tiling in wet areas- Ms Daggecen's answers on these topics contained some correct information, and she appeared to understand the basic principles concerning waterproofing, but again, her answers were given in generalities. She did not provide detail, such as to demonstrate that she would be able to supervise tradespersons effectively. For example, she did not refer to the sealing of the join between the wall and the floor. Waterproofing is, of course, an area where the consequences of defective work can be disastrous.

1. We comment that although it is no longer the case that DB-Us are required to have come up through the ranks of apprenticeship, there is nevertheless a level of experience and understanding of each of the disciplines of work carried out by the various trades which they supervise is required. This is in part because a DB-U is not required to utilise registered trades. The regulatory framework allows that because it assumes a high level of knowledge and experience on the part of the DB-Us who are supervising them.
2. During the hearing, surprisingly, it was apparent Ms Daggecen was not familiar with the Tribunal Book. She was vague about having received it, and arrangements were made for another copy to be sent to her after the Zoom hearing commenced. The Tribunal Book had been prepared seven months before the hearing. It contains the key documents relevant to the hearing, including the VBA's written submissions summarising the case against her, dated 10 October 2022. This, in the context of the character of her answers generally, further undermines confidence that she would bring the necessary attention to detail to her work as a DB-U.
3. We acknowledge that Ms Daggecen was able to answer a number of questions by the assessor, and by the Tribunal, correctly. However, the number of questions she could not answer, and the importance of the matters covered by them, indicates she falls well short of the level of experience equating to three years.

Incorrect statements in application documentation

1. Aside from the insufficient level of practical experience and knowledge which was revealed by her evidence as described above, there is a second aspect of the evidence given by Ms Deggecen which runs adversely to her case. That arises from the overstatement in her application form for DB-U registration of her role in the Rogerson Road project.
2. In giving her oral evidence, Ms Daggecen indicated in relation to the Rogerson Road project that:
   • Mr Ajredini obtained the building approvals required, although Ms Daggecen said she helped him to obtain the documentation for the building permit. She conceded in cross-examination that: 'I may have made a mistake with respect to marking the correct boxes' [in her application to the VBA for a DB-U].[14]
   • Mr Ajredini did the cost estimates.
   • Mr Ajredini arranged the services.
   • She said she was 'kind of' involved in the demolition: Mr Ajredini did the demolition, but she went on site to observe the process of demolition because she was learning at that point.[15]
3. Yet on her DB-U application form, Ms Daggecen stated that she 'Managed' the processes of determining whether building approvals were required, obtaining such approvals, prepared and administered contracts, prepared costs estimates, established the construction site and undertook demolition works.
4. That is, she falsely over-stated her role when completing her application form.
5. The evidence suggests that in her application form, Ms Daggecen overstated her role in relation to other aspects as well. For example, we note that on her application form, for the Area of Experience 'Interpreted engineering designs, drawings and specifications', Ms Daggecen ticked the box for 'Managed' for that topic, for each of the three projects she nominated. Yet her results in the PBE, and unsatisfactory answers to questions relating to this in the Interview, give rise to concerns that she thereby overstated her role in that regard as well. It is essential that the person managing a project have that skill, as they may well be the only person on site during construction who has.
6. These matters serve both to reinforce her lack of sufficient practical experience, and to detract from her credibility.

1. Aside from herself, the other witness who gave evidence for Ms Daggecen was Mr Balikel. He gave oral evidence only.
2. Mr Balikel signed a Technical Referee Report dated 18 October 2021 in support of Ms Daggecen's application.[16]
3. Clearly, Mr Balikel is Ms Daggecen's main mentor. As noted, he said in effect, that he would like Ms Daggecen to take on a greater role in his building business in the future, to enable him to devote a bit more time to holidays and his family. He said neither of his daughters had shown any interest in the business, and he trusts Ms Daggecen. He is impressed by her motivation, which has become apparent to him in supervising her on four of the five projects where he was listed as the applicable registered building practitioner on her application form.
4. Mr Balikel's Technical Referee Report form contained incorrect information about the Rogerson Road project. It wrongly asserted that he had supervised Ms Daggecen for that project. Also, in relation to various components of the building work, the form wrongly asserted that he had supervised her, when, as he openly stated in his evidence, those particular components had in fact been carried out by Mr Ajredini.
5. In his evidence, Mr Balikel stated emphatically and in colourful language, that he had only minimal involvement in that project. He said he was not the builder for that project. He described having had nothing to do with obtaining the building approvals, nor with the contract signed between the builder, and the client (Mr Ajrendini's daughter) nor with the demolition. He described his role as going on site, dealing with trades, getting quotes, and using his accounts with suppliers to obtain any extra materials required such as bricks or tiles, since Mr Ajredini did not have his own accounts with such suppliers. He also said he met the daughter for colour selection purposes and helped with carrying material inside when required.[17]
6. In terms of his involvement with tradespersons, Mr Balikel referred to opening the door to let them in.[18]
7. When it was put to him that his role on Rogerson Road was really as building manager, he said 'not even that'. He agreed that the work he did was such that it could probably have been done by a person not holding registration. In summary, he described the work he did, some of which he delegated to Ms Deggecen, as 'bugger all'.[19]
8. Hence, the fact that Mr Ajredini had determined the requirement for a building permit and obtained the building and other approvals required (these being the first two building components for which responses were required in the form) meant that when Mr Balikel ticked the box indicating that Ms Daggecen had 'Managed' those processes, that was an incorrect statement.
9. Also, similarly to the application form completed by Ms Daggecen, the only boxes ticked by Mr Balikel on his Technical Referee Report were those for 'Managed'. The alternative boxes for 'Assisted' or 'Carried out' for the various listed sub-components were never ticked.
10. In summary, the way Mr Balikel completed the Technical Referee Report was misleading, in two ways. First, he wrongly asserted that he had supervised Ms Daggecen on the Rogerson Road project, and on each of the numerous work components where he had ticked a box. And second, it wrongly stated that she had 'Managed' certain aspects, where these tasks had in fact been done in full by Mr Ajredini.
11. While he openly said that Mr Ajredini carried out those and other components of the work (without Ms Daggecen being involved), the credibility of his evidence was not enhanced by his failure to acknowledge frankly in evidence that the boxes were wrongly ticked.
12. As the VBA pointed out, Mr Balikel signed the declaration at the foot of the form that the information he provided was true and correct to the best of his knowledge. And the form states it is an offence to give false or misleading information.
13. While we do not find that Mr Balikel was dishonest, and we do not reject his evidence wholesale, the above circumstances undermine the credibility of his evidence to some extent.
14. Hence the position in relation to Rogerson Road is quite unsatisfactory: no technical referee report was submitted by Mr Mr Ajredini, the DB-U responsible for the project. Rather, such a report was signed by Mr Balikel, yet he had minimal involvement in the project, and did not in fact supervise Ms Daggecen. So his technical referee report is false to that extent. As the VBA submitted in its Final Submission, this casts doubt on the validity of the inclusion of this project as one of the three nominated by her as being a project which contribute to her having satisfied the requirements for practical experience (from which she indicated she gained 720 hours of experience).
15. What gives rise to even further concern is that Ms Daggecen said in her evidence that she had 'much the same role in relation to the two other projects', [nominated by her, being the Cairnlea and Sunshine projects]. That is, the true value of the experience she gained on all three of her nominated projects comes into question. Her poor performance in the PBE and Interview is consistent with this concern.

1. The VBA made an additional submission, to the effect that the projects nominated by her do not amount to three years' relevant practical experience:[20]

Ms Daggecen's The applicant relied in her application on five building projects, carried out over several years, in support of her claim to have three years' relevant practical experience. The applicant set out, in respect of each project, the duration of each project and her onsite hours each week. Presuming the applicant worked without any breaks on those projects, the total hours worked on each project (as claimed by the applicant) can be calculated as follows:

• 66 Bollingbroke Street: 640 hours (being 10 hours per week for 64 weeks);
• 12 Rogerson Road: 720 hours (being 10 hours per week for 72 weeks);
• 12-14 George Street: 1140 hours (being 20 hours per week for 57 weeks);
• 17 Lansdowne Road: 1020 hours (being 10 hours per week for 102 weeks); and
• 9 Richards Court: 760 hours (being 10 hours per week for 76 weeks).

That is, the applicant's claimed practical experience was for a total of 4,280 hours. This is some 1,480 hours short of three-years full time experience (being 5,760 hours, calculated as 40 hours per week for 48 weeks per year, a total of 1,920 hours per year and 5,760 hours for three years). While the applicant said at hearing that she did additional relevant work , no particulars of that work have been provided.

On this basis alone, the Tribunal may conclude that (even presuming the work claimed was relevant practical work) that it is not satisfied that the applicant has three years' relevant practical experience.

1. We accept this submission. We find that Ms Daggecen does not have the required minimum three years' practical experience on this additional basis. Despite the order which provided for submissions to be filed after the hearing including this issue (order 6 of 11 May 2023) it was not addressed by Ms Daggecen in her post-hearing submissions. In any event, the analysis in the VBA's submission set out above is reasonable, and we agree with it. Further, this once again dovetails with her poor performance in the PBE and Interview.

1. As noted above, it appears Ms Daggecen, and those associated with her proposed future building activities, may have in mind a business model involving undertaking only a limited range of types of developments, which she feels she has sufficient experience to be able to carry out. However, she has applied for the 'highest' category of registration; 'Domestic Builder- Unlimited'.
2. In light of the above findings, we have no hesitation in finding that Ms Daggecen lacks the required level of practical experience to be licensed as a DB-U. That is the primary reason for our decision. She lacks the depth and breadth of experience to ensure the quality and safety of buildings the range of buildings which registration as a DB-U would entitle her to construct.
3. We affirm the decision to refuse to register Ms Daggecen as a DB-U.

[1] In fact this equates to a mark of 43%. The 49% figure appears to refer to the 33 marks out of 66 marks' worth of questions which Ms Daggecen actually attempted.

[5] Ms Daggecen submitted an application dated 14 October 2021. However, she was required to resubmit her application as she had not provided sufficient identity verification documentation. Her resubmitted application was dated 19 November 2021.

[6] The third option, for "Carried out' was only given for the sub-components for Area of Experience 6 (being the one which relates to actually carrying out the physical building work).

[7] See the applicant's oral submissions, transcript pp 67 - 69. The relevant question in the plan-based exercise is question 18 (on page 7 of 10) which in turn refers to drawing no. 4 of 5.

[8] See the applicant's oral submissions, transcript , p 70. The relevant question in the plan-based exercise is question 3 (on page 3 of 10) which in turn refers to drawing no. 2 of 5.

[11] This is a reference to a DB-U being authorised to carry out all components of domestic building work, and therefore needing to have commensurate proficiency.

[16] At TB 159-164. Mr Balikel also completed an earlier Technical Referee Report, dated 12 October 2021 (TB 25-29), accompanying the original application by Ms Daggecen. But as noted, that application had to be re-done, including the Technical Referee Report.

[20] VBA's Final Submissions, [39]-[41].