Hosseini v Commissioner for Fair Trading

Applicable law

1. The HBA 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].
2. The Tribunal has jurisdiction to review the Respondent's decision under the HBA, section 9 of the Administrative Decisions Review Act 1997 (NSW) ("the ADR Act") and section 30 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act").
3. The Tribunal stands in the shoes of the Secretary and has the same powers as the Secretary for the purposes of this review.
4. Section 9 of the ADR Act provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction under section 83B(1) of the HBA in relation to: 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.
5. Section 63(1) of the ADR Act provides that in determining an application for a review of a reviewable decision, the Tribunal 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. It makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: see McDonald v Director General of Social Security (1984) 1 FCR 354 at [357].
6. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material so as to either confirm the original decision, vary it, or set it aside and substitute another. It was said in Drake v Minister for Immigration and Ethnic Affairs (1979) NSW 2 ALD 60 at [77] (albeit in another context) that "[the] duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made."
7. Under section 38(2) of the NCAT Act, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
8. The standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. The Tribunal must decide what the correct and preferable decision is having regard to any relevant factual material. There is no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at paragraphs [28] - [34]. However, as Principal Member Britton observed in BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at paragraph [17]: … However, a practical or "forensic" burden can arise from the material presented. A party who asserts a fact has a responsibility to prove that fact: Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303; Holbrook and Australian Postal Commission (1983) 5 ALN N46.
9. Section 20(1)(a1) of the HBA states the Secretary must refuse an application for a contractor licence if not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33C.
10. Section 20(2) of the HBA states that the Secretary may, 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.
11. Section 33C(1)(b)(i) of the HBA states that a contractor licence must not be issued unless the Secretary is satisfied that the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate, satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant.
12. Section 33D(1)(b) of the HBA specifies that a supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant 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.
13. Section 25(2) of the HBA states that the Secretary may, 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 supervisor or tradesperson certificate.
14. On 15 December 2022, the Commissioner for Fair Trading signed an Instrument that sets out, pursuant to sections 20(2) and 25(2) of the HBA, the qualifications and experience or additional standards or other requirements required to be held or met by an applicant for the issue of an endorsed contractor licence or qualified supervisor certificate in the category of general building work.
15. Section 25(4) of the HBA provides: (4) A decision of the Secretary relating to - (a) the specification of qualifications and experience, or additional standards or other requirements under subsection (2), or (b) the setting of standards or selecting of examinations or tests under subsection (3), cannot be reviewed by the Tribunal in an application for an administrative review made under this or any other Act.
16. In Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112 ("Kalkan"), the Appeal Panel stated at paragraph [36]: By cl 159 of Sch 4 of the Home Building Act, the Instrument is deemed to be validly made and to be valid from the date it was published ...
17. The Appeal Panel in Kalkan stated at paragraphs [33] and [34]: 33. As a consequence of the amendment made to s 20(2) of the Home Building Act, the Secretary may "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". Section 20(3) of the Home Building Act provides that the Secretary must refuse an application for a contractor licence if the Secretary is not satisfied that "any such requirement" being a requirement contained in a gazetted notice, "would be met were the contractor licence to be issued". The expression "any such requirement" in s 20(3) of the Home Building Act refers back to the immediately preceding provision, s 20(2) of that Act specifically, "the requirements specified in any notice published in the Gazette". 34. The Instrument is a "notice published in the Gazette", which specifies "qualifications and experience … required to be held or met by an applicant for a contractor licence". It follows that if the Tribunal was required to apply the version of the Home Building Act in force from 5 July 2021, ss 20(2) and 20(3) in combination would require the Tribunal to refuse to grant a contractor licence to Mr Kalkan because he did not meet the experience requirement stipulated by the Instrument.
18. Having regard to the decision in Kalkan and section 20(5) of the HBA, I am satisfied that in this application I am required to give effect to, and cannot review, the experience criteria specified in the Instrument. The relevant Instrument for the purposes of these proceedings is that dated 15 December 2022.
19. The Instrument provides that the experience requirement for general building work is 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.
20. The experience must be gained as: 1. an employee of; or 2. a holder of a supervisor certificate and as nominated supervisor for the contractor licence held by; or 3. a holder of an endorsed contractor licence contracted to; or 4. a holder of a supervisor certificate in the capacity of a nominated supervisor for a contractor licence held by an individual, partnership or corporation contracted to; 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 doing the work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the Work and this is verified in the relevant application form; and
• paid in accordance with law for the Work which the applicant carried out.

1. The Applicant has not held a supervisor certificate or endorsed contractor licence in the category of full general building work.
2. The Respondent accepts that the Applicant has the relevant qualifications. 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 to be eligible for the issuing of the contractor licence.
3. The Instrument requires that the Applicant, during the relevant period, was supervised and directed, in the doing of the class of residential building work in which he claims experience was gained, by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the work.
4. A contractor licence allows the holder to contract and advertise to do work. An endorsed contractor licence is issued to individuals who apply for a contractor licence and who also have the qualifications and experience needed to be a qualified supervisor. Endorsed contractor licence cards have 'contractor licence (Q)' printed on them to show they are also equivalent to a qualified supervisor certificate. A qualified supervisor certificate allows the holder to supervise and do the work described on the certificate. A nominated qualified supervisor is an individual who holds an endorsed contractor licence and/or qualified supervisor certificate.
5. The Respondent requires that referees who have supervised an applicant complete a form titled "Referee's Statement". The form includes the following information: The person providing this statement must have: • held a Qualified Supervisor Certificate or Individual Contractor Licence (Q) issued by NSW Fair Trading during the period of time of the stated experience. The holder of a company or partnership licence cannot provide a referee statement, • held that Certificate or Licence (Q) in the category of General Work Builder (Builder) during the period of time of the stated experience. • supervised and directed the applicant carrying out the work that Is the subject of this referee statement
6. It is not in dispute that the Applicant was an employee of the holder of a relevant contractor licence. An issue for determination arises as to whether the Applicant's work was supervised by a person who was: the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the Work.
7. The approach to be taken by the Tribunal in assessing an applicant's experience has been considered in a number of matters before the Tribunal. In Briggs v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 175, Senior Member Scahill noted at paragraph [111]: The Instrument does not describe the level of supervision necessary. However, the Tribunal draws an inference from the objects of the Act that the aim of the supervision is to ensure that Mr Briggs was instructed in what to do; that he was observed to do it and corrected if necessary.
8. In Salis v Commissioner for Fair Trading [2023] NSWCATOD 188 Senior Member McAteer stated: 58 I note that the case of Locking v Department of Finances and Services [2013] NSW ADT 239 is often relied upon in respect of detailing both the breath and nature of experience (including supervisory experience). In Locking the Administrative Decisions Tribunal (ADT) observed at [17]: 17. This experience in carpentry and joinery work is not the equivalent of "a wide range of building construction work" as required by the Instrument. Carpentry and joinery work is a sub-category of building. It is only one aspect of the work required to be done in order to complete the construction of a residential dwelling. 18. A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling. Additionally a builder must be able to determine that all trades have complied with all standards and requirements. There are many gaps in Mr Locking's trade supervisory experience and therefore his understanding of certain trades. Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing. 59 At [53] of the case of Wood v Commissioner for Fair Trading [2022] NSWCATOD 114, the Tribunal observed that whilst an applicant cannot self verify they can provide evidence to some extent about their experience. 53. Reference was made to the case of Vitogiannis v Commissioner for Fair Trading, Department of Customer Service [2020] NSWCATOD 157 where the Tribunal observed that an applicant cannot verify their own work but can assist the Tribunal in forming a view as to the nature and scope of the experience. Their evidence must be read in conjunction with other evidence supporting the referee statements such as the evidence of unqualified (as in not holding a contractor licence) witnesses who observed the work, and photographs and other material which may assist in clarifying the experience referred to often in limited terms in the Referee Statements. At [35] and [36] of Vitogiannis the Tribunal observed: 35. The Respondent sought to diminish the value of the references referred to at [31] on the basis that they had not provided a formal "Referee's Statement" as Mr Ede had, and each individual referee did not hold an endorsed contractor licence or qualified supervisor certificate in residential building work and therefore could not confirm the Applicant's experience. I agree that they cannot verify the Applicant's experience as a whole in accordance with the Instrument, but disagree that their references do not assist with the assessment of the Applicant's competency for the licence. The Instrument requires a formal Referee's Statement, which was provided by Mr Ede. Each of the additional references (as identified at [31]) individually supports various parts of the Applicant's evidence of his experience, which is useful to the Tribunal in verifying the Applicant's experience at the relevant sites as outlined in Mr Ede's Referee Statement and for the periods claimed by the Applicant. The additional references are also useful in supporting the Applicant's evidence and Mr Ede's endorsement that the Applicant is sufficiently knowledgeable and capable to supervise the wide range of trades involved in building and construction of residential dwellings. 36. The Applicant's oral and written evidence of his roles and responsibilities at each of the 6 nominated sites was supported by photographic evidence and the Referee's Statement dated 18 March 2020. They were also supported by the additional references from Mr Ede and the other tradespersons he worked with at those sites as identified above at [31]. I accept the Applicant's evidence and give it significant weight. I also accept Mr Ede's Referee's Statement and additional reference provided, and give it significant weight. In that context I consider the additional references to be corroborative of the Applicant's evidence and afford them reasonable weight. 60 I note that whilst the referees must attest to the nature of the work performed under their supervision, in determining whether a person has a wide range of experience in residential building work the Tribunal can look to other sources of information before it, as referred to in Shoobridge v Commissioner of Fair Trading [2015] NSWCATOD 42, at [69]: 69. The respondent submitted that Mr Shoobridge could not verify the experience he gained while working for Mr Kerr, and that the only evidence from Mr Kerr could provide the necessary evidence of practical experience. 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. … 71 ... The Tribunal can clearly make findings of fact which can be assessed on the available evidence in an ordinary manner. The Tribunal is only required to apply the words in the section and the instrument and give them their ordinary meaning and sit the available evidence against them. 72 In a merits review the Tribunal effectively is said to 'stands in the shoes' of the administrator or regulator (in this case the Commissioner of Fair Trading) and makes the correct and preferable decision having regard to the evidence and material before it. … 79 As the Tribunal observed in Wood at [93] : …. 96. As a result, an applicant is only required to possess sufficient experience gained in a manner where they were supervised and directed to do the work by a qualified person to ensure the quality of the work. The Tribunal (or delegate of the Commissioner) must be satisfied that they possess sufficient experience for which the licence authorises for them to contract with consumers to do the work.

The Evidence

1. As stated, the original decision determined that the Applicant did not satisfy the legislative requirement of attaining two years' relevant industry experience in a wide range of building construction work. The decision considered the Applicant's experience gained at a number of building sites: 1. 162-166 Victoria Road, Drummoyne ("the Drummoyne site"); 2. 39 Abbotsford Parade, Abbotsford ("the Abbotsford site"); 3. 15-19 Crown Street, Wollongong ("the Wollongong site"); and 4. 47 Hynds Rd, Box Hill ("the Box Hill site").
2. The decision determined that the Applicant lacked the required experience, and the application was refused under section 33C(1)(b)(i) and section 33D(1)(b) of the HBA.
3. The Applicant applied for an Internal Review of the decision. As part of that process, he provided further material relevant to the review.
4. The internal review considered the Applicant's material but did not accept the findings of the original decision in regard to acceptance of the Applicant's.

The Drummoyne site

1. The Applicant has provided referee statements from Mr Fabian Martino and Mr Ray Moriana. Mr Martino was the nominated supervisor of Bradfield Building Group from 27 July 2015. Mr Moriana was the nominated supervisor from 30 June 2017. The Applicant was working at the Drummoyne site between 14 March 2016 and 1 September 2017.
2. Mr Martino's referee statement states that he is the holder of Qualified Supervisor Certificate/Licence and that he supervised the Applicant's work at the Drummoyne site. His referee statement described the work that the Applicant undertook under his supervision as planning, managing, coordinating and doing the following:

• site office Administration
• safety walks
• induction
• inspection
• test plan and work health safety licensing and insurance check
• design and contract reviews including banking report and recording site progress
• anchorage of walls
• footings handrail installations
• form working and steel working and concrete pours for columns slabs and stairs
• pre-pour check slab and column concrete laying
• dincel wall installation
• handling delivery of materials
• checking material specs
• car park works including wall seepage
• roller door installation to car park
• civil works asphalt on Victoria Road
• security system
• plumbing and electrical Works including gas fitting
• steel frame stud installation for plasterboard walls and roofs
• air conditioning works
• scaffolding
• hebel and precast wall installation
• structural element insulating and sealing joints plus glass roller doors balustrades to balcony including timber decking
• wardrobes, timber flooring, carpeting, tiling
• kitchens and bathroom installations from start to finish
• footings
• internal doors
• fire rated external doors
• door framing and window installation
• roofing works to building and the overhead protection roof on Victoria Road including steel beams framing structure and insulation and waterproofing of overhead roofing
• waterproofing roof and installation of air conditioning units
• steel beam installation for overhead protection
• rendering and painting to external walls
• retaining walls
• landscaping and fencing
• security system for the building
• lift insulation
• painting internal walls
• water taps water pressure
• light and power switches, switchboard, smoke alarm
• concrete slump testing and curing
• demolition brickworks
• glass and glazing
• day to day site and waste management
• record keeping and photo of day to day activities
• consultant walks where advice and certification is required
• excavation
• insulation
• trades management

1. Mr Moriana's referee statement states that while the Applicant was employed to work on the Drummoyne site he undertook a wide range of building work. His referee statement described the work that the Applicant undertook under his supervision as "building and site supervision".
2. Mr Moriana's referee statement also states that while the Applicant was employed to work on the Abbotsford site he undertook "tiling, gyprocking, painting, timber decking, door installation, defect rectifications on site, took over from another building to complete the dwelling". At Murray Street Pyrmont, the Applicant under took work of the same type.
3. Mr Moriana's referee statement also states that while the Applicant was employed to work on the site at 205 Campbelltown Road Denham Court he undertook work of "site establishment, soil compaction, drilling and installation of piers, slab steel installation, pipe and electrical conduits and installation, slab pours, removing and altering bricks for staircase building".
4. The Instrument requires that the Applicant must establish that he has obtained two years' relevant industry experience, but it does not specify the actual amount of time that an applicant must establish that they worked over the two year period. There is no indication of whether the two year period takes account of an industry shut-down period, annual leave, public holidays etc. For the purposes of this calculation, I will consider whether the Applicant's experience extends over a total period of two years.
5. The Applicant gave evidence that he worked 60 hour weeks. There is no evidence before me in regard to the hours he was required to work under the terms of his employment. Regardless of the number of hours that the Applicant actually worked, for example whether he worked a 38 hour week or a 60 hour week, no greater allowance can be made for the extra hours worked in any particular week. However, I note that the requirement for two years' relevant industry experience is a minimum requirement. The longer hours can be taken into account for the purpose of considering the breadth of the Applicant's experience.
6. I am satisfied that the work that the Applicant undertook at the Drummoyne site was experience gained for the purposes of the Instrument. Mr Moriana's referee statement confirms the date range of 14 March 2016 to 1 September 2017. The work undertaken at Denham Court, Pyrmont and Abbotsford was undertaken within this date range. No additional time can be allowed for that work but it can be taken into account as evidence of the breadth of work that the Applicant has undertaken.
7. A statement dated 23 October 2023 from Mr Moriana stated: I can confirm that Amir Hosseini's experience at Drummoyne would not have been affected by works carried out by him at Pyrmont and Denham Court. I agree the allocation was at Drummoyne 100% of the time and he was only used at Pyrmont and Denham Court as required and when not required by the Drummoyne project.
8. The Applicant also gave evidence in regard to his workload which was consistent with the information provided by Mr Moriana's statement. That evidence has not been challenged.

The Wollongong site

1. The Applicant has provided referee statements from Mr Alan Aziz and Mr Dany David in relation to the Applicant's work at the Wollongong site. Mr Aziz was the nominated supervisor for the contractor, Australian First Construction Group Pty Ltd. The Applicant was employed by Australian First Construction Group Pty Ltd and working at the Wollongong site between 27 February 2023 and 2 June 2023. Amended referee statements from Mr David and Mr Aziz extended the period to 13 June 2023. The Applicant provided evidence in support of and explaining the amendments. That evidence has not been challenged. The Applicant submits that a period of 3 months and 17 days should be accepted for this experience.
2. Mr David identified the project at the Wollongong site as construction of a 13 storey residential flat building and the work undertaken by the Applicant as: "oversee all engineering aspects of the job; manage contractors and labour; ITP processes and WHS on site, including inductions, safety walks, reviewing SWMS; material quantities and ordering; liaise with consultants and suppliers".
3. Mr Aziz identified the work undertaken by the Applicant as: "oversee engineering aspects of the site; managing site personnel and day-to-day; survey - electrical - form work - concrete - precast - crane crew - plumbing -brickwork - steel fixing - labour - scaffold; ITP process and WH&S; managing on site, including induction; safety walks and reviewing SWMS; material quantities and ordering; liaise with consultant and suppliers".
4. I am satisfied that the work that the Applicant undertook at the Wollongong site was experience gained for the purposes of the Instrument. In my view, 3 months and 17 days should be accepted as experience gained at the Wollongong site.

The Box Hill site

1. The Applicant has provided referee statements from Mr Tariq Isaac and Mr Raj Mohan in relation to the Applicant's work at the Box Hill site. Mr Mohan was the nominated supervisor for the contractor, Universal Property Group Pty Ltd. The Applicant was employed by Universal Property Group Pty Ltd. He originally provided the statement from Mr Isaac and it was not accepted by the Respondent because Mr Isaac was not the nominated supervisor. This oversight was addressed by the statement from Mr Mohan who was the nominated supervisor.
2. It is not in dispute that the Applicant was working at the Box Hill site between 25 October 2022 and 25 January 2023 - a period of 2 months and 25 days. The Applicant gave evidence that the shut-down period was limited to 4 days. In my view, no provision needs to be made for a shut-down period that incorporated public holidays.
3. I am satisfied that as the nominated supervisor Mr Mohan had ultimate responsibility for supervision of the Applicant's work and this is sufficient supervision for the purposes of the Instrument.
4. Mr Isaac identified the nature of the Box Hill project as residential townhouses and apartments and the work undertaken by the Applicant at the Box Hill site as: "6 days a week management of multiple trades; carpentry and window installation; defects and roof installation; tiling; concreting; assisting with CC and development application for other projects; planning and budgeting".
5. Mr Mohan identified the work undertaken by the Applicant at the Box Hill site as: "carpentry; plastering; gyprocking; plumbing; general concreting; air conditioning; electrical and Lighting; waterproofing; wall and floor tiling; bricklaying; fencing; landscaping; wardrobe; glazing; joinery; painting; splashback; plastering; door locks; hot water; floor levelling; kitchen, bathroom, fence installation; bathroom vanity cabinets; staircase".
6. I am satisfied that the work that the Applicant undertook at the Box Hill site was experience gained for the purposes of the Instrument. In my view, 2 months and 25 days should be accepted as experience gained at the Box Hill site.

Period of experience accepted

1. For the purposes of this application I accept that the Applicant has gained the following experience:

• 2 months and 25 days at the Box Hill site
• 3 months and 17 days at the Wollongong site
• 1 year, 5 months, 18 days at the Drummoyne site.

1. This totals 22 months and 60 days. 60 days equates to eight 7-day weeks and therefore, the total time accepted is 24 months.
2. In the circumstances, I am satisfied that the Applicant has gained a minimum of two years' relevant industry experience, where the majority of that experience was obtained within 10 years of the date the application is made.
3. The question then arises as to whether the relevant industry experience is in a wide range of building construction work.
4. I have set out above the nature of the work that the Applicant has undertaken at each of the sites. In the circumstances I am satisfied that his experience is in a wide range of building construction work for the purposes of the Instrument.
5. It follows that the Applicant has satisfied the experience criteria for the licence that he is seeking. As there is no other basis on which the application should be refused, the correct and preferable decision is that the Respondent's decision should be set aside. In its place, the decision should be made that the application is granted.

Order 1. The decision by the Commissioner for Fair Trading to refuse an application by Amir Ali Hosseini for an individual contractor licence in the area of general building work under the Home Building Act 1989 is set aside. 2. In substitution for the Commissioner for Fair Trading's decision, the application by Amir Ali Hosseini for an individual contractor licence is granted.

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: 05 March 2024