Egan v Commissioner for Fair Trading, Department Of Customer Service

Background

1. The Applicant has worked in the residential building industry for over 25 years. He is the holder of a contractor licence in the category of carpenter. His application sought a variation of his contractor licence from carpenter to the category of "General Building Work".
2. The Respondent refused to grant the licence on the basis that the Applicant had failed to satisfy the delegate that he had the wide range of practical experience required for the issue of the licence. This decision was based on the view that to be issued with a building licence the Applicant needed to satisfy the requirement of having attained acceptable relevant industry experience in a wide range of building construction work.
3. The decision was affirmed on internal review and the Applicant has applied to the Tribunal for external review.

Applicable legislation and principles.

1. The Tribunal was established by the Civil and Administrative Tribunal Act 2013. Section 28 of that Act provides that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation. The Tribunal's jurisdiction in regard to this application is pursuant to section 83B(1) of the Act and sections 9 and 55 of the Administrative Decisions Review Act 1997 ("the ADR Act"). Section 63 of the ADR Act requires the Tribunal, in determining an application concerning an administratively reviewable decision, to decide what the correct and preferable decision is having regard to the material then before it including any relevant factual material and any applicable written or unwritten law. It authorises the Tribunal to affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision the Tribunal is to make a decision in substitution for that decision or remit the matter for reconsideration by the administrator who made the decision.
2. The Act is part of the legislative scheme which regulates aspects of the home building industry in New South Wales. The scheme is concerned to provide consumer protection including regulating the issue, cancellation and suspension of contractor licences, supervisors' certificates and trades persons' certificates in the industry: Commissioner of Fair Trading, Office of Finance and Services, NSW Fair Trading v Kassem [2015] NSWCATAP 173 at paragraphs [9] and [10].
3. Section 20(1) of the Act states": 20 Issue of contractor licences (1) The Secretary must refuse an application for a contractor licence if - … (a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33C, or ...
4. Section 33B of the Act provides for general requirements to be satisfied before an authority can be issued. For example, an applicant must not be disqualified from holding the authority; has not been the subject of an unreasonable number of complaints; is not subject to an order of the Tribunal and is not the subject of financial concerns such as bankruptcy, winding up or appointment of a controller or administrator.
5. No issues have been raised in regard to the requirements set out in section 33B of the Act. However, the Respondent relies on sections 33C(1)(b)(i) and 33D(1)(b) & (c) of the Act which provide: 33C Additional requirements for obtaining contractor licences (1) A contractor licence must not be issued unless the Secretary 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 a supervisor certificate to the applicant, and ...
6. Section 33D(1) of the Act specifies: 33D Additional requirements for obtaining supervisor and tradesperson certificates (1) A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant - … (b) has had experience of such a kind and for such a period as the Secretary 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. …
7. Section 64 of the ADR Act provides: 64 Application of Government policy (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the administratively reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case. (2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter. (3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate. (4) In determining an application for an administrative review under this Act of an administratively reviewable decision, 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. (5) In this section: Government policy means a policy adopted by: (a) the Cabinet, or (b) the Premier or any other Minister, that is to be applied in the exercise of discretionary powers by administrators.
8. The Tribunal stands in the shoes of the Secretary and has the same powers as the Secretary for the purposes of this review. Accordingly it is necessary that the Tribunal determines whether or not the Applicant has had experience of such a kind and for such a period as would enable him to do, or to supervise, the work.
9. The Respondent relies on an Instrument dated March 2017 relating to qualification requirements for an endorsed contractor licence or supervisor certificate for general building work ("the Instrument"). The Instrument provides guidance on the experience requirements for the purposes of section 33D(1)(b) of the Act.
10. The Instrument provides that an applicant needs to show at least two years relevant industry experience in a wide range of building construction work, where the majority of that experience was obtained within 10 years of the date the application is made.
11. I recently considered the Instrument in McGowen v Commissioner of Fair Trading [2021] NSWCATAD 46 where I discussed the approach adopted by the Tribunal in other matters.
12. In Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 Senior Member Ransome stated at paragraph [33]: The [Instrument] requires an applicant for the licence to have two years' experience in a wide range of building construction work, the majority of which was obtained in the 10 years preceding the application for the licence. Mr Limberis has not argued that this aspect of the [Instrument] should be departed from by the Tribunal and I see no reason to do so. The requirement that an applicant for the licence should have current relevant experience is a sensible one.
13. However, it has been held that the Tribunal is not bound to apply the Instrument and the Tribunal has discretion in regard to whether or not it should declined to apply the Instrument in a particular matter.
14. The application of the Instrument has been considered in a number of decisions in this Tribunal. Most recently it was considered by Senior Member Isenberg in Edrees v Commissioner for Fair Trading [2021] NSWCATAD 32 where he discussed a number of those decisions. At paragraphs [53] - [59] he stated: 53 The Respondent referred at [5.11] to Senior Member Scahill not taking into account a reference for an applicant for a building licence in Briggs v Commissioner for Fair Trading Department of Finance, Services and Innovation [2018] NSWCATOD 175 (Briggs). The Respondent referred to an excerpt at [118] from the decision which found "… It is clear that it is not possible for an applicant to verify their own competence themselves. This underlines the importance of the role of a supervisor who is a competent practitioner." and at [116] the "purpose of the references is to attest to Mr Briggs' technical abilities". 54 The Senior Member, with respect, made the strong point that in cases such as: "… Limberis at [38]; Grewal v Commissioner for Fair Trading [2014] NSWCATOD 101; Shoobridge v Commissioner for Fair Trading [2015] NSWCATOD 42; Trengrove v Commissioner for NSW Fair Trading, Department of Finance and Services [2015] NSWCATOD 131 " it has been "held that an applicant alone cannot verify their own experience; otherwise the system would be open to abuse". 55 That principle does not state that an applicant cannot corroborate third-party evidence of their own experience nor that they cannot provide evidence which is itself corroborated. 56 However I do not find, that there is necessarily a positive nexus between a supervisor who is an employer and holds a relevant licence and the quality of the supervision / training provided without considering the facts in each case. The statutory test requires the applicant to have "experience of such a kind and for such a period as the Secretary (in this matter the Tribunal) considers would enable the applicant to do, or to supervise, the work for which the certificate is required". I find that this requires an analysis of the relevant experience on a case by case basis. 57 Indeed, the Respondent submitted at [8.2] " … the Applicant is unable to verify his own competence and that experience, where there is no acceptable corroborative evidence cannot be taken into account." I take the submission to mean that the Respondent does not object to the Tribunal receiving evidence as to the Applicant's experience from the Applicant providing there is corroboration by a third party. 58 Senior Member Lucy considered this issue further in Ngo. The Senior Member said: 95 In Jones's case it was argued by the Commissioner that "an applicant alone cannot verify their own experience," in reliance on Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 ("Limberis") at [38] and Shoobridge at [69] (see Jones at [58]). 96 In Limberis, the Tribunal accepted that an applicant alone could not verify his or her experience, because otherwise the system would be open to abuse (at [38]). However, in that case, the "only evidence … before the Tribunal about the work carried out by Mr Limberis [was] that given by him" (at [38]). This is a very different case, where there are many referees who have provided details about the tasks Mr Ngo carried out on a variety of building projects. 97 In Shoobridge, the Tribunal, constituted by Senior Member Molony, made the following comments (at [69]): "While I agree with the respondent that direct evidence from the supervisor is the best evidence of relevant practical experience, I do not accept that the only evidence which can demonstrate such experience is evidence from the supervisor. I do agree that an applicant alone cannot verify his own experience." 98 I should note that this is not a case in which an applicant is seeking to verify all of his own experience without any evidence from others. 99 The Tribunal's task is to consider the statutory question of whether the Tribunal is satisfied that the applicant "has had experience of such a kind and for such a period as the [Tribunal] considers would enable the applicant to do, or to supervise, the work for which the certificate is required" (Home Building Act, s 33D(1)(b)). It must do so in the context of conducting an administrative review under the Administrative Decisions Review Act. Its task under that Act is "to decide what the correct and preferable decision is having regard to the material then before it, including … any relevant factual material" and "any applicable written or unwritten law" (Administrative Decisions Review Act, s 63(1)). 100 To adopt a principle that the Tribunal may never accept an applicant's evidence about his or her own experience, where that evidence is uncorroborated, would be to put an unwarranted gloss on both statutes. It would mean that a Tribunal could never be satisfied that an applicant has had the necessary experience under s 33D(1)(b) of the Home Building Act unless the applicant provided corroboration for every part of that experience which the Tribunal proposed to take into account. It would also preclude the Tribunal, having regard to sworn oral evidence (the relevant factual material before it) from reaching a state of satisfaction that an applicant had the relevant experience for the purposes of s 33D(1)(b), unless there was also corroborative material for every aspect of the experience. 101 That is not a lawful approach to the application of s 33D(1) of the Home Building Act or s 63 of the Administrative Decisions Review Act. The Tribunal's decisions about the need for corroborative evidence make the obvious point that, in the absence of some kind of independent evidence about what an applicant has done, the Tribunal would generally be unlikely to be able to reach the state of satisfaction required by s 33D(1) of the Home Building Act. However, it would be wrong to treat those decisions as laying down an inflexible rule which must be applied in every case and to every part of an applicant's claimed experience. 59 With respect I agree with the Senior Member's reasoning rather than only accepting evidence by way of a statement from a person merely because that person holds a licence issued by the Respondent, or any other agency, and irrespective of circumstances or sworn evidence before the Tribunal.
15. There are no experience requirements prescribed by the Act. In McGowen v Commissioner of Fair Trading, the Applicant submitted that the Instrument is part of a policy designed to help the Commissioner, and the Commissioner's delegates, determine whether a person has the experience which would enable him or her to do, or to supervise, the work for which the qualified supervisor certificate is required. He further submits that the Instrument is more aptly described as guidelines and that it is unlawful to apply the Instrument inflexibly, as if it had the status of a law. I generally agreed with that submission. I stated at paragraphs [45] - [49]: 45. I agree with the Respondent that it is necessary that an applicant for a licence under the Act must show relevant industry experience in a wide range of building construction work. The Tribunal should not grant a licence unless it is satisfied that the Applicant has the knowledge and ability that would allow him to be held out to the public as a person who can perform the work that is authorised by the licence. 46. The Instrument provides a useful guide to the level of experience that would allow the Tribunal to be confident that the Applicant's knowledge and ability is sufficient for that purpose. However, compliance with the Instrument is not a legislative requirement. 47. I agree with the views expressed by the Tribunal in the decisions that have been cited above. The Tribunal is not bound by the terms of the Instrument and the Tribunal should not apply the Instrument inflexibly if to do so would result in an injustice. It is necessary to consider the relevant experience on a case by case basis. 48. I agree that an applicant is able to corroborate third-party evidence of their own experience or they can provide evidence which is itself corroborated. 49. In my view, the totality of his experience should be taken into account. This includes both commercial and residential building work. Skills that are developed in commercial building work are equally applicable to residential building work and that experience should be taken into account. I am also satisfied that experience that the Applicant gained outside the 10 year period provided for by the Instrument should be taken into account where that experience has provided a foundation for the work that was carried out more recently. In my view, this is a matter in which an injustice would result if the Instrument were applied inflexibly as it would not allow valuable experience to be taken into account.
16. In summary, the Tribunal has accepted that: 1. the proper characterisation of the Instrument is that it is a policy, but not "Government policy" as that term is defined in section 64 of the ADR Act; 2. the Tribunal is only required to give effect to "Government policy"; 3. the Instrument is not binding on the Tribunal; 4. 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"; and 5. the Tribunal must not apply the Instrument inflexibly (that is, as a fixed, determinative rule), as this would be an error of law.

Material before the Tribunal

1. The Respondent relies on a bundle of documents filed and served pursuant to section 58 of the ADR Act; a copy of the Instrument, written submissions and oral submissions by its solicitor, Ms Robosa.
2. The Applicant relies on his own evidence and the evidence of Mr Paul Chick and Mr Stuart Harman who attended the hearing, gave evidence and was cross-examined. The Applicant also relies on a number of references which address the work that he has undertaken in the industry. The Applicant's solicitor, Mr Keane, provided submissions in support of the Applicant's case.

The evidence

1. The Applicant gave evidence that he has worked in the building industry for over 25 years. It does not appear to be in dispute that from 2005 to 2008 the Applicant was employed by a licenced builder, Mike Mayhew of BCPD Pty Ltd ("BCPD") in the role of foreman and project manager. However, Mr Mayhew refused to provide a reference in support of the application.
2. In correspondence with the Respondent the Applicant stated: I commenced work with builder Mike Mayhew of BCPD P/L. Mike immediately took me on full time and I quickly progressed to foreman and then later to the position of project manager. I worked for him for 36 months. As project manager, I managed up to three high end renovation projects at a time and managed a full team of carpenters and labourers. I was with BCPD P/L for three years and during this time Mike and I had a great working relationship. Unfortunately, we had a disagreement regarding his methods and fair workplace practices. This resulted in my unfair dismissal in 2008. I took him to court and was awarded a modest payout. When I contacted Mike and asked him to fill out the referee statement for my builder's licence application he refused. I was disappointed as I valued the experience I had at BCPD P/L and everything I learnt from Mike, and I hoped that our professional disagreement would not have resulted in personal animosity. Unfortunately, this was not the case and he refused to fill out my referee statement. While I am unable to procure the referee forms from Mike, I can demonstrate my employment by BCPD P/L through bank records and letters from three clients whose projects I successfully managed during my employment (attached). The length of time I was employed by Mike, as well as my progression in the company and the testimonials from clients (some of whom I have done further work for], demonstrate that I was an excellent and skilled employee.
3. The Applicant's evidence before the Tribunal was consistent with this statement.

Mr Paul Chick

1. The Applicant's evidence is supported by that of Mr Chick who was also employed by BCPD. Mr Chick provided an undated written reference in which he wrote: I have known Jamie Egan for 25 years. In that time Jamie worked for me on numerous projects as a carpenter. Doing many tasks on the renovations and additions I was doing under my building licence. In 2006, I went to work for the builder Jamie was working for. Jamie was the site foreman/project manager on various projects where extensive renovations and additions were being done. Jamie managed the crew, trades and clients in a professional manner. I have no reservations in recommending Jamie in his pursuit for a builders licence.
2. In a letter to the Respondent in September 2020 Mr Chick identified that he had worked with BCPD on sites at Leichhardt and Cammeray in 2006 and in Woolwich and Greenwich in 2007 - 2008. On those sites the Applicant had been the foreman and project manager. The sites were all large renovations and additions to houses. He observed the Applicant supervising trade work from the commencement of the projects to the ends of the projects. He also observed the Applicant liaising with the builder, the owners and other professionals, such as certifiers, who were involved in the projects.
3. In his evidence before the Tribunal Mr Chick said that he had worked with BCPD for about 10 years. When he commenced with BCPD at a site in Leichhardt he was engaged as a carpenter builder on a partially completed project. The Applicant was the site foreman and organised the job. The Applicant moved from job to job making sure that the work was being carried out. Mr Chick took instructions from the Applicant. He worked with the Applicant for several years.

Mr Stuart Harman

1. Mr Harman provided a written reference in June 2020 in which he stated that he had worked with the Applicant on a property in Petersham. The project involved refurbishment and extensions to an 1880's federation style home. The project was from April 2018 to February 2019 and involved work to the value of in excess of $600,000.
2. Mr Harman has worked in the design, development and construction industry for over 30 years both as a Director of a major Sydney architectural practice and more recently for an international property company. His wife was an owner-builder for the project but the Applicant carried out the functions of builder on the site on a day to day basis. He did carpentry work and organised the other tradespeople on the site.
3. Mr Harman stated that the Applicant did an excellent job given the extent of work and complexity of the project and in particular the challenges of working with the fabric of an old existing dwelling and with limited works access. He stated that the Applicant had a very good grasp of the work to be done and he clearly understood the architectural and engineering documents. He was able to suggest alternative ways of solving problems and successfully liaised with the structural engineer to resolve on site complexities that arose, particularly regarding the existing roof structure.
4. He said that the Applicant organised quotes for associated trades, checked and recommended payment of invoices, managed the sequencing of the works and supervised trades on site on a day to day basis. He said that the Applicant had a high-quality group of tradespeople that he regularly worked with and that those people clearly respected the Applicant's ability and opinions.
5. Mr Harman stated the view that the Applicant is trustworthy, hardworking and good at what he does. He would not hesitate to engage him for another project.
6. In his evidence before the Tribunal Mr Harman stated that the Applicant had supervised all the trades on the project. He had supervised concreting, slab installation, electrical and plumbing work.
7. In regard to the Applicant's management of the sequencing of the works Mr Harman stated that he was present on-site and the Applicant coordinated the work, organised materials and made sure that construction was properly sequenced.

Other references

1. In addition, the Applicant has provided a number of references from trade or professionals. These include:

Anna Power of Studio Ester

1. Ms Power is an architect who worked with the Applicant on an extensive renovation project at Malvern Avenue Croydon from April to September 2017. She stated that the Applicant carried out the work for the clients, managed the certification process and coordination of all the trades. His work also included detailed "marrying in" of new to old and managing the client's expectations.

LGC Technology Pty Ltd

1. Mr Andrew McNeill is a Director of LGC Technology Pty Ltd. He has been a licenced Electrical Contractor since 2004 and has been engaged by the Applicant to undertake electrical work on numerous projects. He has worked with the Applicant on various sites including home extensions, new builds, renovations and reconstructions. He identified several projects on which they had both worked over a period of around 20 years. These include 1. September 2009 - Denison Street, Bondi Junction 2. August 2013 - Bennet Street, Bondi 3. September 2017 - Cook Street, Glebe 4. June 2017 - Malvern Ave, Croydon 5. June 2018 - The Avenue, Petersham
2. Mr McNeill stated that many of the projects were large residential renovations and additions, and involved work from the ground up to completion, including all the groundworks such as footings and concreting right through to the completion of the project. Many involved constructing wet areas such as kitchens and bathrooms.
3. He stated that the Applicant has multiple skills that range from converting a client's loose ideas into a concept design, advising on relevant building materials, project managing the various trades onsite (e.g. plumbers, tilers, roofers, electricians), purchasing materials, and of course constructing the building.
4. He stated the view that the Applicant excels at formulating an overall project plan, working within the client's allocated budget, keeping the client informed along the way and keeping to a clear timeline that has been agreed in advance. He considers that as a builder, the Applicant's workmanship is outstanding. He is meticulous about both the quality of his work and ensuring the materials that he uses for the job are fit for purpose.
5. On all the jobs, he observed that the owners were very happy with the workmanship and the final product. He has personally referred clients to the Applicant when they have been seeking a builder.
6. He highly recommends the Applicant's knowledge of building, expertise in construction and project management. In Mr McNeill's opinion, the Applicant has skills and abilities as good as, or better than any builder he has met while undertaking his trade.

Luke Windress

1. Mr Windress is a plumbing contractor who has known the Applicant in a professional capacity. He worked with the Applicant from June 2017 to December 2018 and was engaged to undertake the plumbing work on numerous projects. These included projects at Malvern Avenue, Croydon and The Avenue, Petersham.
2. Mr Windress stated that these projects were large renovations and additions, and involved work from the ground up to completion, including all the groundworks such as footings and concreting right through to the completion of the project. The majority of the works involved wet areas such as kitchens and bathrooms.
3. Mr Windress stated that he had also been involved in various other small jobs with the Applicant such as Bishop Avenue, West Pennant Hills, Paling St, Lilyfield and Hutchinson St, St Peters.
4. He stated that he was always impressed with the Applicant's efficiency and professionalism in managing building sites and regarded him highly in his role of site manager/builder.

Other references

1. The experience discussed in the references referred to above has been verified by further references provided by some owners of properties on which the Applicant worked. These include references provided by the owners of properties at: 1. Eastwood Avenue Culburra Beach in relation to work carried out in 2015; 2. Cook St Glebe in relation to work carried out in 2016; 3. Malvern Avenue, Croydon in relation to work carried out in 2017; and 4. The Avenue Petersham in relation to work carried out from April 2018 to February 2019.
2. Each of the owners indicated their satisfaction with the work that the Applicant had carried out and recommended him as a highly skilled professional.

Other project experience

1. In addition to the projects referred to, the Applicant has given evidence of other work which he has undertaken. He outlined the nature of the project undertaken, the work undertaken and the roles and responsibilities that he performed in relation to the project. For example, in relation to the project undertaken at Eastwood Avenue Culburra Beach, he provided the following summary: Job description: Construction of a four-bedroom, two story house with open plan second story verandahs on three sides. Build included the demolition of pre-existing single story, two-bedroom asbestos clad dwelling. Construction of new building included a full structural steel frame on concrete footings. Lower story construction included kitchen, bathroom, open plan living/dining area and four bedrooms with deck access to three bedrooms. Construction included internal glass stairwell to second story open plan living room with glass doors on three sides accessing covered verandah. Second story has raised turret style roof with high light lovers and second bathroom. The wall cladding and exposed timbers were done in recycled hardwood. Large rain water bladder installed under floor. Heat pump HWS. Internal wood fire box on lower story with flue travelling through second story room for upstairs heating. Outdoor shower. Storage under house. Roles and responsibilities: Supervise and perform demolition of pre-existing dwelling Organize and supervise the safe removal of asbestos by accredited company Set out footings and levels for prefabricated steel Liaise with engineer for steel fabrication Supervise steel installation Supervise and work on wall, floor, and deck framing Construct roof framing and colour bond roofing Co-ordinate and schedule electrician, plumber, tiler, gyprockers, painters Co-ordinate and schedule installation of kitchen, doors and windows Schedule critical stage inspections Calculate material quantities and organize deliveries Read and interpret plans Liaise with client Time management and planning Apply building codes and standards to the construction process in accordance with the building code of Australia Manage OHS requirements Resolve building issues Liaise with client Schedule critical stage inspections Planning and time management Apply building codes and standards to the construction process in accordance with the building code of Australia Manage OHS requirements
2. In relation to that project, one of the owners' reference stated: In 2015 Sue and I engaged Jamie to demolish an existing small fibro house and garage on our land at Culburra, and build a new house on that property. The new house comprised two storeys, with four bedrooms, two bathrooms and a large entertaining area upstairs. As the house was built primarily on sand, the construction was complex and involved extensive engineering and steelwork. Jamie originally designed the house, then engaged draftspeople who prepared the plans for Council. James liaised with the draftspeople, engineers and Council throughout the build and liaised and engaged all of the tradespeople required. The result is an absolutely beautiful house ... Jamie is a meticulous tradesman with an eye for detail. His work is thorough, professional and of an extremely high standard. I have absolutely no hesitation in supporting his Application for a Builder's Licence.
3. The Applicant attended the hearing and was cross-examined. Respondent has not challenged any of the material provided and did not require the authors for cross-examination.
4. The Respondent does not contend that there are other reasons that should result in the refusal of the application. Accordingly, if the Applicant is able to establish that he has the requisite experience, he should be granted the licence that he is seeking.

Consideration

1. As I noted in McGowen v Commissioner of Fair Trading, I agree that it is necessary that an applicant for a licence under the Act must show relevant industry experience in a wide range of building construction work. The Tribunal should not grant a licence unless it is satisfied that the Applicant has the knowledge and ability that would allow him to be held out to the public as a person who can perform the work that is authorised by the licence.
2. In this matter, I accept the evidence which has been provided in support of the Applicant's case. In my view, this is a matter in which an injustice would result if the Instrument were applied inflexibly as it would not allow valuable experience to be taken into account. It is a stark example of an application in which an applicant who has undertaken work and gained valuable experience is unable to comply with the requirements of the Instrument because a former supervisor, who was in a position to provide evidence of the Applicant's experience, refused to do so. If the Instrument were applied inflexibly, the Tribunal could never be satisfied that the Applicant has the necessary experience.
3. In the absence of evidence from Mike Mayhew of BCPD P/L, the Applicant has obtained the best available evidence to provide corroboration of his own evidence. In my view, the evidence provided on the Applicant's behalf, both directly and by way of references, demonstrates that Applicant has the required experience across a wide range of building and construction work.
4. I am also satisfied that the Applicant has been working in the industry in recent years and that he has at least two years relevant industry experience within 10 years of the date the application is made.
5. I have no doubt that the Applicant has the knowledge and ability to perform the work that is authorised by the licence. I am satisfied that he has had experience of such a kind and for such a period as would enable him to do, or to supervise that work. That being the case, the licence should be granted.
6. Accordingly, it is my view that the correct and preferable decision is to set aside the Respondent's decision to refuse to grant the Applicant's licence application and in its place make the order that the licence is granted.

Order 1. The decision under review is set aside. 2. In substitution for that decision, the Tribunal grants the Applicant's application for a variation to his existing contractor licence to include general building work under the Home Building Act 1989.

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: 16 July 2021