Hamdan v Commissioner for Fair Trading

Background

1. On 5 October 2012, the applicant applied to vary his contractor licence in the class "Carpentry" to include the class "Builder." In his variation application, the applicant claimed 13 years' experience with an employer, Strategy Constructions Pty Ltd ("Strategy Constructions").
2. Peter Bieri of Strategy Constructions declared in a referee statement, annexed to the application, that the applicant had been a full-time employee between 1999 and 2012. In another letter, dated 2 September 2012 and addressed "to whom it may concern," Mr Bieri said that the applicant had worked for him since 1999 doing "all types of carpentry and other building work."
3. The applicant was issued with a variation to his contractor licence in the class of Building on 30 November 2012.
4. In August 2014, a delegate of the Commissioner wrote to Strategy Constructions, informing it that NSW Fair Trading was conducting an investigation into the applicant's application for a contractor's licence and requiring it to produce documents and information pursuant to s 127 of the Home Building Act.
5. Peter Bieri responded in September 2014, indicating that the applicant was "employed as a sub contractor only" and that the applicant's company was AB Formworks Pty Ltd ("AB Formworks"). Mr Bieri also described the applicant's role as mainly being to do formwork, and also to do timber framing. Mr Bieri added that the applicant "would also spend a lot of his rain affected days learning the details of how to construct and build a project from start to finish." Mr Bieri produced some invoices sent to "BPP Investment NSW Pty Ltd" by AB Formworks in 2010. These indicated that the applicant had completed formwork, steel fixing and slab installation.
6. On 19 December 2014, a delegate of the Commissioner cancelled the applicant's contractor licence pursuant to s 43(1) of the Home Building Act. The delegate cancelled the licence on the ground that it was issued because of a misrepresentation or that it was issued in error.
7. The reasons for the cancellation decision stated that, at the time of lodging his application form for a variation to his licence, the applicant would have been aware that Mr Bieri's referee statement contained incorrect information in relation to him being an employee and would also have been aware that he did not have two years' relevant experience in a wide range of building construction work. Those reasons also stated that the applicant is not a fit and proper person with the values of honesty, integrity and character to be the holder of a contractor licence.
8. The reasons referred to the applicant's failure to disclose that he had previously been a director or a company holding a licence which had been cancelled and which had been the subject of a winding up order. Fair Trading had been aware of this since November 2012 and had corresponded with the applicant about this in that month before issuing him with the varied licence.
9. The delegate concluded that the applicant's application would have been refused had Fair Trading been aware that the applicant was not a bona fide employee during the period of employment or had it been aware that the applicant's experience was limited to formwork, steel fixing and slab installation.
10. On 29 December 2014, the applicant sought restoration of the licence pursuant to s 43(2) of the Home Building Act. On 31 March 2015, the Commissioner refused to restore the applicant's licence.
11. Following the lodgement of an internal review application to which the Commissioner did not respond, on 29 June 2015 the applicant applied to the Tribunal for a review of the Commissioner's deemed refusal to restore his licence.
12. In an earlier decision, a differently constituted Tribunal found that it has jurisdiction to review a decision of the Commissioner to refuse an application for the restoration of an authority and that it has jurisdiction to review the Commissioner's decision to refuse the applicant's application for restoration of his contractor licence (Hamdan v Commissioner for Fair Trading [2015] NSWCATOD 114).

Hearing

1. Two days prior to the hearing, the Commissioner put the applicant on notice that the Commissioner proposed to submit that the applicant was not a fit and proper person to hold a building licence on the basis that the applicant entered into contracts to carry out residential building work through AB Formworks, a company that did not hold a building licence. Mr Maynard, for the Commissioner, submitted that Mr Hamdan had permitted the company to contract to do unlicensed residential building work and had represented that it was prepared to do such work in breach of ss 4 and 5 of the Home Building Act.
2. At the hearing, the applicant gave evidence in person and Mr Bieri gave evidence by telephone. Their evidence was primarily directed to the applicant's experience in the building industry. They both gave evidence that the applicant or his company had mainly been engaged by Mr Bieri's company or his brother's company to do formwork, but that he had also carried out a wide range of building tasks on sites on which Mr Bieri was working or associated with, as well as a few other sites.
3. The applicant relied upon a document entitled "Schedule of Wide Range of Building Construction Work Performed by [the applicant] whilst Engaged by the Bieri Brothers." This had been prepared by the applicant's lawyer, at least partly on the basis of information provided by Mr Bieri. It set out the sites on which the applicant had worked from 2000 to 2013 in association with Mr Bieri or his brother, and another site in which he had worked in 2013-14. It also set out the type of work the applicant performed at each site.
4. Mr Bieri gave oral evidence as to the work performed by the applicant at each site. At some sites (such as a site on which the applicant worked in 2007-2008), Mr Bieri said the applicant "helped for free" to gain experience. Mr Bieri also gave evidence that his brother took the applicant "under his wing," knowing the applicant wanted to become a builder. In relation to the project on which the applicant worked in 2012 to 2013, Mr Bieri said that this was his brother's job, that Mr Bieri was not at the site all the time and that the applicant had an interest in the project.
5. Under cross examination, Mr Bieri said that he was unaware whether the applicant was an employee in the early days, but that "later on" he had been a subcontractor. He gave evidence as to the periods of time at various sites which he estimated that the applicant spent on formwork, and the amount of time spent on other building work.
6. The applicant gave evidence that English was his second language and that he had difficulty understanding written English. He said he relied upon other people to fill out forms (such as the application forms for his contractor licence) and that he signed them after the form had been explained to him. He also gave evidence that, since 2014, he had engaged a business manager who ensured he complied with legal requirements relating to building licences. She had been assisting him informally since 2010.
7. The applicant explained that he had not got a licence for AB Formworks because, although he had applied for one at Fair Trading, the application had been refused. He said they did not tell him what had happened. He said that his company "Worldwide Formwork" had a licence to do formwork in 2005, but it was taken away when that company went into liquidation. He explained that this had occurred because his ex-wife had not paid the insurers. The applicant also said he had tried to get a licence in his own name in 2008 but this had been rejected. He gave evidence that he believed that if he did work for a builder he did not need a licence, but that if he worked for himself he needed a licence. He also said that he thought that subcontractors did not need a licence for their company.
8. The applicant then gave evidence as to the proportion of time, or the amount of time, he estimated that he had spent on non-formwork activities at each building site on the prepared schedule.

Parties' submissions

1. The parties made oral submissions at the hearing and also filed written submissions after the hearing. At the hearing, I raised with the parties the question of the relevant principles governing the restoration of a licence which has been cancelled under s 43(1) of the Home Building Act. Mr Maynard, for the Commissioner, said at the hearing that, when considering an application for restoration of an authority under s 43(2), the Tribunal is entitled to consider an applicant's fitness and experience as they appear today, and that it should consider the restoration application as if the applicant were applying for a new licence. In written submissions, the Commissioner submitted that s 43 "should be the starting point" for the Tribunal and that ss 20 and 40 of the Home Building Act also applied to its consideration of a restoration application such as the applicant's.
2. The applicant's representative, Mrs Bard, did not specify in her submissions which provisions the applicant claimed applied. I note that the submissions of both parties canvassed a range of matters (such as whether the applicant was a fit and proper person) which would not be immediately relevant unless s 20 was enlivened. Notwithstanding my comments at the hearing to the effect that s 43(2) may be determinative of an application for restoration of a licence which has been cancelled under s 43(1), both parties proceeded without specifically addressing whether there were grounds for satisfaction of the matters set out in s 43(2).
3. At the hearing, Mr Maynard, for the Commissioner, indicated that the Commissioner was relying upon two circumstances in support of the decision not to restore the applicant's licence: the applicant's lack of experience in a wide range of building construction work (as required by an instrument made by the Commissioner) and the circumstance that a company of which the applicant was a director engaged in residential building work without a licence. Mr Maynard said that the Commissioner no longer relied upon certain factors which had been relied upon to cancel the licence, being: 1. at the time of lodging the application form, the applicant would have been aware that Mr Bieri's referee statement contained incorrect information with relation to his being a bona fide employee paid during the period of employment; 2. the applicant was not a bona fide employee during the relevant period of employment; and 3. the applicant did not disclose in his application for a licence and variation application that he was a director of a company where the licence had been cancelled due to the company having been placed in administration.
4. Mr Maynard submitted that the applicant had not satisfied the requirement of having appropriate experience to hold a building licence. He said that the evidence that Mr Bieri had supervised the applicant in building work should not be accepted because this differed from his earlier statement to an officer of Fair Trading that he had "seen" the applicant perform building work.
5. Mr Maynard also submitted that the applicant was not a fit and proper person to hold a contractor licence. This was because the applicant's company, AB Formworks, carried out residential building work at various sites without a licence, in breach of the Home Building Act. He submitted that another reason why the applicant was not fit and proper was that, on the applicant's own admission, he did not have the ability, through his limited English skills, to ensure that his contracting activity is legal.
6. The applicant's representative, Mrs Bard, submitted that Mr Bieri's evidence confirmed that the applicant was supervised by Mr Bieri in various kinds of work at a variety of sites. This work included formwork, waterproofing, roofing, excavation work, footings and piling, concreting, installing flashings, steel fixing, assisting in bricklaying and timber flooring. The applicant submitted that Mr Bieri's evidence established that the time the applicant spent on non-formwork duties since 1999 was 3 years and 3 months, in excess of the two years required by the Commissioner's instrument.
7. The applicant admitted that he entered into contracts to carry out residential building work through AB Formworks, a company which did not hold a building licence. However, Mrs Bard said that the Commissioner is not entitled to rely on this as a reason to object to the restoration of the licence because it was not relied upon by the Commissioner in cancelling the licence. In the alternative, the applicant submitted that he was a fit and proper person to hold a licence and made submissions which sought to explain why he did not understand that his company was required to hold a licence to perform residential building work.

Applicable version of legislation

1. The Home Building Amendment Act 2014 (NSW) made amendments to the Home Building Act, including to ss 20 and 40, which commenced on 15 January 2015 ("2015 amendments"). That date is after the applicant's application for restoration of his licence but before his application to the Tribunal for review.
2. The Home Building Act contains savings and transitional provisions consequential upon the 2015 amendments. Clause 121 of Schedule 4 to that Act relevantly provides: "121 General operation of amendments (1) Except as otherwise provided by this Part or the regulations, an amendment made by the amending Act extends to: … (e) an application for a licence or certificate that is pending on the commencement of the amendment. (2) However, an amendment made by the amending Act does not apply to or in respect of: (a) proceedings commenced in a court or tribunal before the commencement of the amendment (whether or not the proceedings were finally determined before that commencement), or…"
3. Clauses 126 and 138 of Sch 4 to the Home Building Act relevantly provide: "126 Issue of licences and certificates An amendment of section 20 or 25 by the amending Act does not apply to an application for a contractor licence or a supervisor or tradesperson certificate made before the commencement of the amendment. … 138 Grounds for refusal of authority (1) A ground under a provision of this Act for refusing the issue, renewal or restoration of an authority that was not a ground for that refusal before the commencement of the provision (whether the ground was under this Act or a regulation under this Act) does not apply to an application for the issue, renewal or restoration of an authority made before the commencement of the provision, and does not apply to an authority issued, renewed or restored before that commencement until the first renewal of the authority after that commencement."
4. The amendments to s 20 of the Home Building Act do not apply, in my view, to the applicant's application for restoration of his licence. This is because, when cl 126 of Sch 4 is read with s 40(1) of the Home Building Act, the "application for a contractor licence" referred to in cl 126 extends to an application for restoration of a contractor licence and the applicant's application was made before the 2015 amendments took effect. Further, to the extent that the amended s 20 or s 40 provides grounds for refusing the restoration of an authority that were not available before the amendments, those grounds do not apply to the applicant by operation of cl 138 of Sch 4.
5. Otherwise, in my view, the 2015 amendments apply to the applicant's application for restoration of his licence (Home Building Act, s 40(1), Sch 4, cl 121(1)(e)).

Relevant legislation

1. Unless otherwise indicated, the provisions of legislation which are set out below are as currently in force.
2. Section 19 of the Home Building Act provides: "19 Application to contractor licences of Licensing and Registration (Uniform Procedures) Act 2002 (1) The Secretary may grant contractor licences for the purposes of this Act. (2) Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 (the applied Act) applies to and in respect of a contractor licence, subject to the modifications and limitations prescribed by or under this Act. (3) For the purpose of applying Part 2 of the applied Act to a contractor licence: (a) the licence may be amended under that Act, and (b) the references to 2 weeks, 4 weeks and 8 weeks in section 9 (1) (a), (b) and (c) of that Act are each to be read as references to 6 weeks, and (c) an application for restoration of a licence under section 10 of that Act may not be made more than 3 months after the date on which the licence expires, and (d) the reference to 14 days in section 24 (1) of that Act (as to the period within which changed particulars must be notified) is to be read as a reference to 7 days. (4) Subject to this section, the regulations may make provision for or with respect to such matters concerning a contractor licence as are relevant to the operation of Part 2 of the applied Act."
3. Section 10 of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW) provides: "10 Applications for restoration of licences (1) An application for the restoration of a licence may be made to the relevant licensing authority by the licensee at any time after the licence expires or is cancelled. (2) If in the case of a fixed-term licence the relevant licensing legislation provides for the issuing of licences for varying terms, the application must specify the term of licence sought by the applicant."
4. Section 18(1) of the Licensing and Registration (Uniform Procedures) Act provides: "18 Decision on applications (1) A licensing authority may make either of the following decisions with respect to an application: (a) a decision to grant the application, either unconditionally or subject to such conditions as are authorised or required by the relevant licensing legislation, (b) a decision to refuse the application."
5. A "licensing authority" is defined to mean "the person or body that, under the relevant licensing legislation, is authorised to grant a licence" and "an application" is defined to include an application for restoration of a licence (Licensing and Registration (Uniform Procedures) Act, s 4).
6. Section 20 of the Home Building Act provides: "20 Issue of contractor licences (1) The Secretary must refuse an application for a contractor licence if: (a) the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence, or (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 (b) the applicant is a mentally incapacitated person, or (c) the applicant is disqualified by this Act or the regulations from holding a contractor licence, or (d) the Secretary considers that a close associate of the applicant who would not be a fit and proper person to hold an authority exercises a significant influence over the applicant or the operation and management of the applicant's business. Note. Under section 6 of the applied Act (within the meaning of section 19) an application for the grant of a contractor licence may be made by any individual aged 18 years or more, by any partnership or other association whose members are all individuals aged 18 years or more or by any corporation. (1A) Without limiting subsection (1) (a), in determining whether an applicant is a fit and proper person to hold a licence the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity. (2) The regulations may fix or provide for the Secretary to determine additional standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued. (3) The Secretary must refuse an application for a contractor licence if: (a) the Secretary is not satisfied that any such requirement would be met were the contractor licence to be issued, or (b) the Secretary is not satisfied with the applicant's proposed arrangements for supervision of the work which the contractor licence will authorise the applicant to contract to do, or (c) the Secretary is not satisfied that the applicant has complied or is able to comply with any requirements of Part 6 or any requirements of the regulations relating to insurance applicable to the doing of work of a kind proposed to be authorised by the contractor licence. (4) (Repealed) (5) A decision of the Secretary relating to determining standards or other requirements under subsection (2) cannot be reviewed by the Tribunal in an application for an administrative review made under this or any other Act. (6) Without limiting this section, the Secretary may refuse an application for a contractor licence if the Secretary is of the opinion that it is in the public interest to do so on any of the following grounds: (a) an employee or proposed employee of the applicant is disqualified from holding a contractor licence, has had an application for an authority refused on a ground relating to his or her character, honesty or integrity or has had an authority cancelled or suspended on any disciplinary ground, (b) there are reasonable grounds to believe that the application has been made with the intention of avoiding disclosure of any relevant past misconduct of the applicant or a close associate of the applicant. (c) (Repealed)"
7. Section 40 of the Home Building Act provides: "40 Renewal or restoration of authorities (1) The provisions of this Act and the regulations that apply in respect of the issue of an authority also apply to the renewal or restoration of an authority (as if the renewal or restoration of an authority were the issue of the authority). (2) The Secretary may also refuse an application for renewal or restoration of an authority if: (a) the authority is surrendered or cancelled before it is due to expire, or (b) the authority is a provisional authority. (3) The Secretary may approve further education courses, or other training, that must be completed by specified persons before an application for renewal or restoration of an authority can be accepted. (4) The Secretary may refuse an application for renewal or restoration of an authority if the Secretary is not satisfied that, in the period since the authority was most recently issued, renewed or restored: (a) the applicant, or (b) in the case of an applicant that is a corporation, the directors of that corporation or any class of persons specified by the Secretary, or (c) in the case of an applicant that is a partnership, each partner or any class of persons specified by the Secretary, or (d) an employee of the applicant, has undertaken or completed, for at least as many hours as are required by the Secretary, the further education course or courses, or other training, approved by the Secretary for the purposes of this section. (5) The Secretary may also refuse an application for restoration of an authority if the Secretary is not satisfied that: (a) in a case where the applicant failed to apply for renewal before the authority expired - the failure to apply for renewal of the authority before it expired was due to inadvertence, or (b) it is just and equitable to restore the authority. (6) The Secretary may, under subsection (5), refuse an application for restoration if: (a) the Secretary requests the applicant or a nominee of the applicant to appear at a reasonable time and place to be examined concerning the merits of the application, and (b) the applicant or nominee fails to so attend or fails to answer any question put (whether or not at such an examination) by or on behalf of the Secretary and reasonably related to ascertaining the merits of the application."
8. Section 43 of the Home Building Act provides: "43 Cancellation because of fraud etc (1) The Secretary may, by serving on the holder of the authority a written notice setting out the reason for the cancellation, cancel an authority if: (a) the authority was issued, renewed or restored because of a misrepresentation (whether fraudulent or not), or (b) the authority was issued, renewed or restored in error (whether as a result of such a misrepresentation or not). (2) The Secretary may, by a further notice served on the holder of an authority cancelled under this section, retrospectively restore the authority if the Secretary is satisfied: (a) that the error concerned has been rectified, and (b) that the holder acted in good faith."
9. Section 83B(1) of the Home Building Act provides: "83B Administrative reviews by Tribunal (1) An applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Secretary relating to the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision."
10. In November 2012, when the applicant's contractor licence in the class of Building was issued, s 20(2) of the Home Building Act provided: "The regulations may fix or provide for the Director-General to determine additional standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued."
11. By cl 26(1)(b)(i) and 28(1) of the Home Building Regulation 2004 (NSW), as those provisions stood in October and November 2012, the applicant was required to satisfy criteria set out in an instrument issued by the Director-General (that is, the Commissioner) before being issued with a contractor licence in the class of Building if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate.

Application for restoration

1. The applicant's application for restoration of his licence was expressed to be made pursuant to s 43(2) of the Home Building Act. That subsection does not make provision for a person to apply for the restoration of a licence. Rather, it empowers the Secretary (that is, the Commissioner) to retrospectively restore an authority which has been cancelled under s 43(1).
2. There is a question, which was not explored by either party, as to whether a person is entitled to apply for restoration of an authority pursuant to s 10(1) of the Licensing and Registration (Uniform Procedures) Act, as applied by s 19(2) of the Home Building Act, where the authority in question was cancelled pursuant to s 43(1) of the Home Building Act. On one view, s 43(2) confers on the Commissioner an own-motion power to restore a licence cancelled under s 43(1) and an application for restoration of an authority may only be made in the case of other cancellation decisions (which may then be dealt with by the Commissioner pursuant to s 40). However, no submission to this effect was put by the Commissioner and the Tribunal held in Hamdan v Commissioner for Fair Trading [2015] NSWCATOD 114 that the Tribunal has jurisdiction to review the Commissioner's decision to refuse the applicant's application for restoration of his authority. Accordingly, I have assumed, for the purposes of this decision, that an application for restoration of an authority cancelled under s 43(1) of the Home Building Act may be made (and, in the applicant's case, has been made), pursuant to s 10(1) of the Licensing and Registration (Uniform Procedures) Act.
3. It is then necessary to consider the relevant powers the Commissioner is exercising when determining an application for restoration of an authority which has been cancelled under s 43(1). On one construction of the Act, a licence which has been cancelled under s 43(1) may be restored only if the Commissioner (and the Tribunal standing in the Commissioner's shoes) is satisfied of the matters set out in s 43(2). On another, once an application for restoration has been made, the relevant considerations and applicable provisions are those set out in s 40. On a third view, both provisions apply.
4. This question has added importance in that it determines the nature of the decision under review. If a decision to restore a licence which has been cancelled under s 43(1) may only be made under s 43(2), the decision under review in these proceedings is a deemed refusal decision made pursuant to s 43(2) of the Home Building Act. If, on the other hand, the Commissioner has power under s 40 to refuse an application to restore a licence which has been cancelled under s 43(1) (and, implicitly, to grant such an application), then it is arguable that the deemed refusal decision was made under s 40. Alternatively, the decision may be one made pursuant to s 18(1)(b) of the Licensing and Registration (Uniform Procedures) Act, as applied by s 19(2) of the Home Building Act.
5. The parties did not address the question of whether s 43(2) limits the matters to which the Commissioner may have regard when determining an application for restoration of a licence which has been cancelled under s 43(1) or deal in any detail with the construction of s 43. Nor did they identify the provision under which the decision under review was made.
6. Section 43 is to be understood in the context of the Home Building Act as a whole and, in particular, in the context of other provisions relating to the cancellation and restoration of licences. Accordingly, it is helpful to review these provisions in order to arrive at the proper construction of s 43.
7. The Commissioner has several powers to cancel an authority under the Home Building Act. The Commissioner is required to cancel a contractor licence that authorises its holder to contract to do residential building work or specialist work, or both, in the circumstances set out in s 22(1) of the Home Building Act. These include that the holder has become bankrupt and that the Commissioner would be required to refuse an application for a contractor licence. The Commissioner may also cancel a licence as a form of disciplinary action (see Home Building Act, s 62(f)). As already indicated, the provision for cancellation of an authority in s 43(1) applies where an authority was issued on the basis of a misrepresentation or where it was issued in error.
8. The only provision for applying for restoration of a licence cancelled under the Home Building Act is made in s 10(1) of the Licensing and Registration (Uniform Procedures) Act, as applied by s 19(2) of the Home Building Act.
9. Since the 2015 amendments, s 40(1) of the Home Building Act has provided that the provisions of that Act that apply in respect of the issue of an authority also apply to the restoration of an authority (as if the restoration of an authority were the issue of the authority). Prior to 15 January 2015, s 40 provided for all the circumstances in which the Commissioner was required to refuse an application to restore an authority or had a discretion to refuse such an application. The effect of the amended s 40(1) is that s 20 of the Home Building Act, which provides for circumstances in which the Commissioner must or may refuse an application for a contractor licence, applies to an application for restoration of such a licence made after the 2015 amendments.
10. Further grounds on which the Commissioner may refuse an application to restore an authority are set out in s 40(2) to (6) of the Home Building Act and include that the authority is surrendered or cancelled before it is due to expire (s 40(2)(a)).
11. The Commissioner's power to grant or refuse to grant an application to restore an authority is found in s 18(1) of the Licensing and Registration (Uniform Procedures) Act, as applied by s 19(2) of the Home Building Act.
12. Section 43(2) of the Home Building Act is a specific provision, dealing with the Commissioner's powers to restore an authority which has been cancelled because it was issued on the basis of a misrepresentation or issued in error. Unlike the other provisions authorising the Commissioner to restore a licence, s 43(2) specifically authorises retrospective restoration.
13. There is, in my view, a conflict between the criteria for restoring a licence set out in s 43(2) of the Home Building Act and the broad power to restore a licence in s 18(1) of the Licensing and Registration (Uniform Procedures) Act, read with s 40 of the Home Building Act. On its face, s 43(2) allows the Commissioner to restore a licence if satisfied of two matters. Section 18(1) of the Licensing and Registration (Uniform Procedures) Act confers an apparently unfettered discretion to restore a licence, which is subject to the circumstances in which the Commissioner must or may refuse an application for restoration, as set out in ss 20 and 40 of the Home Building Act (see s 19(2) of the Home Building Act which applies the Licensing and Registration (Uniform Procedures) Act subject to the modifications and limitations prescribed by or under the Home Building Act). At the time of the applicant's restoration application, the discretion to restore in s 18(1) of the Licensing and Registration (Uniform Procedures) Act was subject only to the refusal grounds set out in s 40 of the Home Building Act.
14. It is a general principle of statutory interpretation that general provisions do not override specific ones. In The Ombudsman v Laughton (2005) 64 NSWLR 114, Spigelman CJ said at [19]: "The maxim of statutory construction generalia specialibus non derogant reflects an underlying principle that a legislature, which has created a detailed regime for regulating a particular matter, intends that regime to operate in accordance with its complete terms. Where any conflict arises with the general words of another provision, the very generality of the words of which indicates that the legislature is not able to identify or even anticipate every circumstance in which it may apply, the legislature is taken not to have intended to impinge upon its own comprehensive regime of a specific character."
15. The principle that special provisions prevail over general provisions also applies where they appear within one statute (see, for example, Smith v R (1994) 181 CLR 338 at 348). In Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7, Gavan Duffy CJ and Dixon J observed that when the legislature "gives a special power [to a court], subject to limitations and qualifications, surely it must be understood to mean that the Court shall not exercise an unqualified power to do the same thing. When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."
16. In my view, having regard to the authorities referred to above and the scheme of the Home Building Act as a whole, the intention of the legislature, when enacting s 43(2) of the Home Building Act, was to provide for the only circumstances in which the Commissioner is entitled to restore an authority which has been cancelled under s 43(1). That is, the Commissioner may only restore such an authority if satisfied that the error relied upon to cancel the authority has been rectified and that the holder of the authority acted in good faith. It may be (although it is not necessary to decide this), that the Commissioner, when considering whether to restore a licence cancelled under s 43(1), is also bound by the provisions prohibiting restoration of a licence in circumstances set out in s 20 (when read with s 40(1)) and, at the time of the applicant's application, that the Commissioner was bound by the provisions prohibiting restoration of a licence in circumstances which were then set out in s 40(1) and (2A).
17. This construction of s 43 is consistent with the apparent purpose of the provision, which is to allow cancellation of authorities issued due to an error (whether or not arising from fraud) and to allow their restoration only where the error has been rectified and the former licence holder has acted in good faith. The more general powers of restoration are not concerned with this particular circumstance and may be employed where, for example, a licence is cancelled because there has not been a nominated supervisor for over 30 days or as a result of the licence holder failing to maintain professional indemnity insurance (see Home Building Act, s 22(1)(a) and (h)). The fact that the Commissioner is empowered to refuse an application for restoration under s 40(2)(a) if "the authority is surrendered or cancelled before it is due to expire" suggests that the factors set out in s 40 are not generally intended to apply to licences cancelled under s 43(1) or, if they are, this is only after the Commissioner is satisfied of the matters set out in s 43(2).
18. This process of reasoning also leads me to the conclusion that the decision under review is a deemed decision to refuse to restore the applicant's licence made pursuant to s 43(2), because this was the only power available to the Commissioner in respect of the restoration of the applicant's licence. The relevant power is not the broad power to restore a licence found in s 18(1) of the Licensing and Registration (Uniform Procedures) Act, but rather the power in s 43(2) which applies to the specific circumstances in which the licence sought to be restored was cancelled under s 43(1).

Whether licence should be restored

1. The Tribunal's function, in reviewing the Commissioner's decision not to restore the applicant's licence, is to decide what the correct and preferable decision is having regard to the material before it (Administrative Decisions Review Act 1997 (NSW), s 63(1)).
2. As discussed above, the power in s 43(2) of the Home Building Act to restore a licence cancelled under s 43(1) depends upon the Tribunal being satisfied that "the error concerned has been rectified". The "error concerned," referred to in s 43(2), is the error the Commissioner relied upon when cancelling the licence pursuant to s 43(1). The Tribunal has no jurisdiction to review the cancellation decision and thus no jurisdiction to determine whether the authority was, in fact, issued, renewed or restored in error within s 43(1).
3. The relevant "errors" identified by the Commissioner's delegate when cancelling the applicant's licence were that, contrary to information provided by the applicant and relied upon by the Commissioner: 1. the applicant was not a bona fide employee during the period of employment provided on the application form; and 2. the applicant's experience was limited to formwork, steel fixing and slab installation and he did not have a wide range of building experience.
4. The context in which these errors are relevant is that an instrument issued by the Commissioner set out the required experience for the applicant to obtain the varied licence when he applied for it in 2012 (see cl 26(1)(b)(i) and 28(1) of the Home Building Regulation 2004). This instrument is not in evidence but the reasons for the cancellation decision, which are in evidence, summarised its effect as follows: "The signed instrument at the time of determining the application required an applicant to demonstrate at least two (2) years relevant industry experience in a wide range of building construction work. 'Experience' means experience gained by the applicant as a bona fide employee who has been paid during the relevant period of employment in accordance with an award or enterprise agreement but excludes experience gained as an employee of: (a) The holder of an Owner-Builder Permit; or (b) A company wholly owned by an individual or individuals being or including the applicant and which owned land on which the applicant did owner-builder work as, or for, the holder of an Owner-Builder Permit."
5. As indicated earlier, Mr Maynard, for the Commissioner, submitted at the hearing that the Commissioner was no longer relying upon the fact that the applicant's application form (misleadingly) indicated that he was a bona fide employee. However, Mr Maynard also made clear that the Commissioner's position was that the applicant did not have sufficient experience as defined by the instrument, being experience gained whilst being supervised and directed by a licensee. It appears that the Commissioner's submission is that the applicant must satisfy the requirements of the applicable instrument, but that the Commissioner does not submit that the Tribunal should take into account any misrepresentation made that the applicant was a bona fide employee.
6. Mr Maynard said that the Commissioner was prepared to rely upon an instrument in force at the time of the cancellation decision, rather than a more stringent instrument which came into force afterwards. However, when considering whether an error has been rectified, this requires a consideration of the instrument in force at the time the variation application was granted. This is because the "error" occurring when the authority was issued (see s 43(1)) takes its character from the application of the criteria in force at the time of the decision to issue the authority.
7. The applicant's case is, essentially, that the alleged error concerning his building experience is not in fact an error. His case is that he in fact had a wide range of building experience and that his experience was not limited to formwork, steel fixing and slab installation.
8. As the parties both accept, the Tribunal does not have jurisdiction to review a cancellation decision made under s 43(1) (see Home Building Act, s 83B). In determining whether the error or errors which formed the basis of the cancellation decision has or have been rectified, for the purposes of reviewing a decision made pursuant to s 43(2), the Tribunal is not entitled to inquire into the question of whether there was in fact an error or errors. Rather, the Tribunal must assume that the errors identified by the Commissioner were in fact errors and then inquire into whether they have been rectified.
9. There is nothing in the evidence which persuades me that the applicant's lack of a wide range of building construction experience (as defined by the instrument) has been rectified. The applicant has not done sufficient work since the time of the grant of the licence, as an employee, to broaden his experience in the building industry or to gain the relevant experience. After he was granted a licence in the class of Builder on 30 November 2012, the applicant's evidence is that he worked at a town house at Auburn but also that he invested in the project. To the extent that he did work other than formwork, he had a financial interest in this project and there is no evidence that he was lawfully engaged by or an employee of the holder of a contractor licence, as required by the instrument. There is no evidence that the work done pursuant to the applicant's contractor licence in 2013 and 2014 was done as a bona fide employee who has been paid (applying the terms of the instrument in force in late 2012) or as an employee of the holder of a contractor licence, or as a person lawfully engaged by the holder of a contractor licence (applying the terms of the instrument in force at the time of the cancellation decision). Accordingly, I am not persuaded this work satisfies the requirements of either instrument. In any event, there is little evidence as to the performance of the work in 2013 and 2014, other than Mr Bieri's evidence that he had visited a building site at which the work was done and that it appeared that waterproofing, brickwork and flashings were all correct.
10. I am not satisfied that this evidence establishes that the applicant has rectified his lack of a wide experience in the building industry by completing work which satisfies the definition of "experience" in any applicable instrument since the grant of his contractor licence in the class of building. I have formed this view having regard to the definition of "experience" in the instrument in force at the time of the restoration application, which requires the experience to have been obtained as a bona fide employee and under supervision, and also having regard to the instrument in force at the time of the cancellation decision, which requires the experience to have been gained as an employee of or a person otherwise lawfully engaged by the holder of a contractor licence.
11. In light of this conclusion, I am not satisfied that one of the errors concerned, being the error as to the width of the applicant's building experience, has been rectified within s 40(2)(a) of the Home Building Act. It follows that I am not required to consider whether the other error (as to the applicant's status as a bona fide employee) has been rectified or whether the applicant acted in good faith. However, I note that, because the Tribunal must form a state of satisfaction as to whether the error concerned has been rectified before restoring an authority which has been cancelled under s 43(1), the Commissioner's lack of reliance upon the misrepresentation as to the applicant being a "bona fide employee" would not preclude the Tribunal from considering whether or not this error has been rectified, were it necessary to do so.
12. As I have not formed a state of satisfaction empowering me to restore the applicant's licence under s 43(2) of the Home Building Act, I affirm the Commissioner's deemed decision not to restore the applicant's licence pursuant to that provision.

Conclusion if broader inquiry is authorised

1. If I am wrong and the Tribunal is not required to have regard to the matters in s 43(2) when determining the applicant's application for restoration of his licence, but may instead determine the application pursuant to s 18(1) of the Licensing and Registration (Uniform Procedures) Act, taking into account the provisions of s 40 of the Home Building Act, then I would be inclined to make the same decision, subject to hearing from the applicant on the matters referred to below. My reasons, briefly, are as follows.
2. The evidence of Mr Bieri as to the building work the applicant carried out, other than formwork, was vague and changed over time. Mr Bieri appeared, when giving oral evidence, to guess the amount of time the applicant spent on non-formwork duties at various sites and I have no confidence in the accuracy of the time estimates he gave. Similarly, I was not persuaded that the applicant's time estimates were accurate. They were not consistent with Mr Bieri's time estimates and, as the Commissioner submitted, they were likely to be self-serving. Further, the invoices provided by the applicant's company which are in evidence give no indication that he carried out any work other than formwork, steel fixing and slab installation.
3. The language Mr Bieri used in a telephone conversation with a Fair Trading Officer on 19 November 2015, and the report Mr Bieri gave of the applicant's work, contained important differences from the evidence he gave in the Tribunal. Mr Bieri said that the applicant "did the formworking mainly and some other stuff" in jobs for Mr Bieri and his brother. He said that the applicant "saw a wide range of work when he was on the building sites" of Mr Bieri or his brother (but did not say that he undertook a wide range of work). Mr Bieri also told the Fair Trading offier that he "felt he could sign off that [the applicant] had the experience, as [the applicant] has been around for many years."
4. Whilst I accept the applicant carried out some general building work over a number of years in association with Mr Bieri, I am not persuaded by Mr Bieri's evidence or that of the applicant that this work, when taken together, amounted to more than two years of wide ranging experience, even accepting that formwork may be counted towards some of that experience. Nor do I accept that the work was supervised by Mr Bieri or his brother in the role of employer. Rather, the work was undertaken by the applicant, at least in part, in an unlawful capacity, either for a company which did not hold a licence, or without a licence permitting him to do general building work. Whilst Mr Bieri may have given the applicant some assistance in building tasks, and his brother may also have taken on a mentoring role, I find that their roles were not as supervisor as contemplated by the relevant instruments.
5. A ground under the Home Building Act for refusing the restoration of an authority that was not a ground for that refusal before the 2015 amendments does not apply to the applicant's application for restoration of his licence (Home Building Act, Sch 4, cl 138). This means that I am not entitled to rely upon the ground in s 20(1)(a1) of the Home Building Act (taken with s 40(1)), relating to non-compliance with the relevant instrument (see s 33C(1)(b)(i), referred to in s 20(1)(a1) and s 33D, referred to in s 33C(1)(b)(i)).
6. Before the 2015 amendments took effect, the grounds for refusal included that the Director-General is not satisfied that the applicant is a fit and proper person to hold the authority, that the authority is cancelled before it is due to expire and that the Director-General is not satisfied that it is just and equitable to restore the authority (Home Building Act (as it stood in late 2014), s 40(1)(a), (2)(b) and (3)(b)). These grounds for refusal continue to apply following the 2015 amendments (see current version of Home Building Act, s 20(1)(a) taken with s 40(1), s 40(2) and s 40(5)(b)).
7. I have considered whether the applicant is a fit and proper person to hold an authority. As he has admitted, the applicant has carried out building work unlawfully and has been the director of a company which has carried out building work without a licence. It is clear that the applicant has, at least in the past, had little understanding of the requirements of the Home Building Act as they apply to him. He has also signed application forms containing significant misrepresentations. On the other hand, the Commissioner does not rely on many of these misrepresentations, and I am satisfied that the applicant's lack of compliance with the law was largely due to his inability to read English and to his lack of understanding of the legal distinction between an employee and a sub-contractor.
8. This does not totally excuse the misrepresentations he made. As a person who could not adequately read written English, he had a responsibility to ensure that everything on the application forms was read to him and was correct before signing it. If in doubt, he should have spoken to an officer of Fair Trading and asked for assistance with the forms. He could also have sought assistance in respect to licensing requirements. His evidence that his application and that of his company for a building licence were refused, or that he did not hear anything after submitting them, and that he then did nothing further, indicates a degree of recklessness about compliance with the requirements of working in the home building industry.
9. I am satisfied that the applicant's engagement of a business manager is likely to overcome the difficulties he had in the past in understanding and complying with legal requirements relating to his licence or his need to have a licence. The Commissioner submitted that, whilst the appointment of a business manager will assist, the public and the Tribunal must have confidence in the ability of the applicant himself to carry out legally the work, especially given that a business manager may leave at any time. Whilst there is a prospect that a business manager may cease to work for the applicant, I accept the applicant's submission that he now understands that he requires administration assistance be it the current manager or a replacement manager. I am also persuaded that he has a better understanding of the legal requirements which apply to him and will endeavour to comply with them in the future.
10. Although the matter is finely balanced, I am not satisfied that the applicant is not a fit and proper person to hold a contractor licence, having regard to the circumstance that his non-compliance with the law was largely due to his lack of understanding of written English and that he now understands the necessity to engage someone to help him comply with legal requirements.
11. I would instead be inclined to find that his licence should not be restored either on the ground that the licence was cancelled before it expired or on the ground that it would not be just and equitable to restore the authority. Neither ground was put to the applicant and, as a matter of procedural fairness, this would need to be done if a decision were to be made on either ground. However, my provisional views are as follows.
12. In respect of the ground that the licence was cancelled before it expired, it would, in my provisional view, undermine the purpose of cancellation under s 43(1) if an applicant could have an authority restored notwithstanding that the errors relied upon by the Commissioner had not be rectified except, possibly, in exceptional circumstances. For this reason, I would be inclined to the view that the licence should not be restored, having been cancelled before its expiry.
13. In respect of the ground that it is not just and equitable to restore the licence, my provisional view is that it would not be just and equitable to restore the licence in circumstances where the applicant does not now nor has ever met the criteria for the grant of a contractor licence. This is because he was not a "bona fide employee" as required by the instrument in force at the time of his variation application and did not have a wide range of building experience (as defined) at this time. Subject to hearing from the applicant on this point, it would appear to be unjust for the licence to be restored in circumstances where other people, who provided correct information on their application forms at the same time, would have been refused a licence.

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: 20 January 2016