Hawcroft v Building Commission NSW [2024] NSWCATOD 60 | Case summary

NCAT Occupational|2024-04-29

Introduction

James-Thomas Hawcroft applied for a variation to his contractor licence to remove a condition from his licence. The reason Mr Hawcroft applied for the variation was so that he could do building work in New South Wales in his own right without the need to have a nominated qualified supervisor.
The Building Commission NSW refused that application on 2 November 2023 because the Commissioner was not satisfied Mr Hawcroft had demonstrated he had the required relevant qualifications and experience to be granted the variation. Mr Hawcroft has sought review of that decision.

Background

The Commission made its decision on 2 November 2023. It conducted an internal review of the decision at Mr Hawcroft's request and on 1 December 2023 the Commission affirmed its decision.
Mr Hawcroft holds a contractor licence under the Home Building Act 1989 in the category of general building containing a condition "BCA Class 1a & 10 only". He also holds a Diploma in Building and Construction Management CPC50308 from the Canberra Institute of Technology.
Mr Hawcroft operates primarily in the Australian Capital Territory and his New South Wales licence was issued in 2021 under the Mutual Recognition (New South Wales) Act 1992.
For a licence variation to be issued, Mr Hawcroft must demonstrate that he holds particular qualifications and has a minimum of two years relevant supervised industry experience in a wide range of building construction work.

Relevant Legislation and Instrument

Section 20(1) of the Act relevantly provides that the Secretary must refuse an application for a contractor licence if not satisfied as to the matters specified in ss 33B and 33C of the Act.
Section 33C(1)(b)(i) of the Act provides that the Secretary cannot issue a contractor licence equivalent to a supervisor certificate unless satisfied the requirements in s 33D of the Act are met.
Section 33D(1) provides: A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant - (a) has such qualifications or has passed such examinations or practical tests, or both, as the Secretary determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required, and (b) has had experience of such a kind and for such a period as the 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.
Section 20(2) of the Act permits the Secretary to, by notice published in the Gazette, specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a contractor licence.
The Commissioner of Fair Trading signed an Instrument on 15 December 2022 which relevantly provides: 1. pursuant to section 20(2) of the Act, the qualifications and experience or additional standards or other requirements required to be held or met by the applicant for an endorsed contractor license; and 2. pursuant to section 25(2) of the Act, the qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a qualified supervisor or tradesperson certificate to be as follows: (a) where the application is received by the Secretary on or after the date on which this Instrument is signed ("the Commencement Date"): (i) the possession of qualifications or the passing of examinations specified in Column 1 of Table A to Schedule 1; and (ii) the possession of experience specified in Column 2 of Table A opposite the relevant matter in Column 1;…
The Instrument contains Table A that prescribes qualifications (Column 1) and experience (Column 2) an applicant must hold or meet, as well as Tables B and C that specify units of competency that must appear in academic transcripts for relevant qualifications. The Instrument also contains a definition of "experience", which relevantly provides: "Experience" means experience gained by the applicant as: (a) an employee of; or .. the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained ("the Work"), where the applicant, during the relevant period, was: supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or qualified supervisor certificate authorising its holder to supervise the Work, and this is verified in the Relevant Application Form; and received Remuneration in accordance with law for the Work which the applicant carried out; or …
Section 20(5) of the Act provides that a decision of the Secretary relating to the specification of qualifications and experience, or additional standards or other requirements under s 20(2) cannot be reviewed by this Tribunal in an application for an administrative review.

Material before the Tribunal

Mr Hawcroft provided a bundle of documents containing construction and other plans, certificates of title, occupation certificates and development approvals for various projects he has conducted via his business. He also provided a reference from a former client. He filed written submissions. He also attended the hearing and gave evidence and made oral submissions.
The Commission provided a bundle of material filed under s 58 of the Administrative Decisions Review Act 1997, including Mr Hawcroft's Diploma academic transcript, as well as written and oral submissions.

Applicant's case

Mr Hawcroft concedes that the Diploma he holds is not equivalent to any of the qualifications listed in Column 1 of Table A in the Instrument. He contends that the work he had performed, as evidenced by the bundle of documents he provided demonstrates he has experience in the subject matter required by the qualifications.
Mr Hawcroft submits that the issue of certificates of occupancy for projects conducted by his business is evidence he has the relevant experience, by carrying out those projects, to be granted a licence variation.

Respondent's case

The Commission contends that Mr Hawcroft does not hold the relevant qualifications required by the Instrument because the Diploma he holds does not satisfy Column 1 of Table A.
Further, the Commission submitted that Mr Hawcroft has not been able to satisfy the requirements in Column 2 of Table A to the Instrument. This is because he seeks to verify his own experience and has not provided evidence he was supervised and directed in any work by a relevantly qualified supervisor or that he was an employee of a relevantly licenced supervisor citing Hale v Commissioner of Fair Trading [2015] NSWCATOD 1 and Shoobridge v Commissioner of Fair Trading [2015] NSWCATOD 42 as discussed in Edwards v Commissioner for Fair Trading [2022] NSWCATOD 40.

Consideration

The Instrument, as extracted at [10] above, requires both the qualification requirements specified in Column 1 and the skills requirements specified in Column 2 to be met before a licence variation can be issued.

Qualifications

The Diploma Mr Hawcroft holds is not one of the listed qualifications in Column 1 of the Instrument. Nor do the subjects listed in the academic transcript for the Diploma match all of the necessary units of competency specified in Tables B or C in the Instrument. I therefore cannot be satisfied the qualification requirements of Column 1 of the Instrument are met.
Mr Hawcroft essentially seeks a discretion to be exercised where one does not exist. Under cl 159 of Sch 4 to the Act, the Instrument is deemed to be validly made from the date it was published. It is not for the Tribunal to review the terms of the Instrument due to s 20(5) of the Act: see Commissioner of Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112.
Given the requirements of Column 1 of the Instrument are not satisfied, consequently neither are the requirements to issue a licence variation under ss 33D(1), 33C nor s 20 of the Act satisfied. Therefore the decision under review must be affirmed.

Skills

For completeness I will also consider the requirements of Column 2 of the Instrument in relation to skills and experience.
Mr Hawcroft conducts his own business and is not supervised in his work by another licensee.
There is no evidence before me of relevant supervision in relation to work performed by Mr Hawcroft, whether from a licenced supervisor or otherwise, nor of remuneration paid to Mr Hawcroft, as required by the definition of "experience" in the Instrument.
I can give no weight to the client reference provided because it is more in the nature of a personal reference.
Apart from the client reference, all the evidence is solely provided from Mr Hawcroft.
In Shoobridge, Senior Member Molony stated (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.
In Edwards, Senior Member Montgomery stated (at [56]): If the Applicant is correct, he may well have the experience that would enable him to do, or to supervise, the work that would be authorised by the licence that he is seeking. However, to allow an applicant to obtain a licence solely on their own evidence that they have that experience would effectively render the consumer protection purposes of the HBA ineffectual.
As a result, it is not possible for an applicant to verify their own experience within this statutory scheme, as Mr Hawcroft seeks to do.
On the material before me, I am unable to be satisfied Mr Hawcroft meets the requirements of Column 2 of the Instrument and, it follows, the requirements of s 33D(1) of the Act and then ss 33C and 20 of the Act are not met.
Therefore the Commission's decision to refuse the application for the licence variation should be affirmed.

Order 1. The decision under review is affirmed.

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: 09 May 2024

Hawcroft v Building Commission NSW

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Judgment (11 paragraphs)

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Cases Cited (4)