Iuliano v Commissioner for Fair Trading

Background

1. The applicant held a contractor licence in the category of concreting.
2. The applicant applied on 26 November 2014 to vary his contractor licence. He indicated on the form that he was applying for a qualified supervisor certificate and a licence in the category of general building work.
3. He annexed to his application referee's statement forms completed by Walter Lane. These indicated that the applicant had gained experience as a contractor to Mr Lane.
4. At the time of the applicant's application, an instrument made by the Commissioner ("Instrument") provided that the possession of at least two years' relevant industry experience in a wide range of building construction work was necessary for an applicant for the issue of a licence. The Instrument defined "experience" as follows: 1. " 'Experience' means experience gained by the applicant as: 2. an employee of; or 3. a person otherwise lawfully engaged by, 4. 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 during the relevant period, the applicant was: 5. supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the Work; and 6. financially remunerated for the Work; …"
5. On 2 February 2015, NSW Fair Trading wrote to the applicant, noting that Mr Lane had not indicated whether the applicant was a full time or part time subcontractor, and requesting further referee's statement forms.
6. On 9 March 2015, the applicant provided to NSW Fair Trading a further referee's statement and reference from Danny Vujic.
7. On 27 May 2015, an officer of NSW Fair Trading rang Mr Lane, who confirmed that the applicant had worked for him on four sites referred to on the form, for the equivalent of 6 to 12 months full time.
8. On 28 May 2015, a delegate of the respondent wrote to the applicant to inform him of the delegate's decision to refuse the applicant's application for a variation to his licence. The reason given was that he had insufficient building construction experience (as required by the Instrument).
9. The delegate reported in the reasons for decision that Mr Lane had said that the applicant's experience was primarily in concreting and setting out work, and determined that this did not constitute a wide range of building construction experience. The delegate also reported that Mr Lane had advised that the applicant had gained a wide range of building experience while managing building works at his own houses as an owner builder, but the delegate expressed the view that owner builder experience is not acceptable for the purposes of the Instrument.
10. In relation to the referee forms completed by Mr Vujic, the delegate noted that the experience gained at both sites mentioned on the forms was not acceptable as the work was carried out under owner builder permits issued to the applicant. The delegate also noted that Mr Vujic had indicated in a letter that the applicant had worked for him at additional sites, but said that Fair Trading was unable to consider any experience that was not claimed on a fully completed referee statement form.
11. The applicant applied for internal review of the delegate's decision to refuse his application. The internal review officer came to the same decision as the delegate, for substantially the same reasons.
12. On 4 September 2015, the applicant applied to this Tribunal for an administrative review, under the Administrative Decisions Review Act 1997 (NSW), of the decision to refuse his application, pursuant to s 83B of the Act. The application was made within 28 days of the internal review decision so is within time: see Administrative Decisions Review Act, s 55(2); Civil and Administrative Tribunal Rules 2014 (NSW), r 24(3)(b) and (4)(a).

Evidence

1. When the matter was first listed for hearing, the applicant produced a reference from Gerard Ferrer stating that the applicant had been employed as "a sub-contract concreter" with his organisation from 1999 to 2014. The applicant also produced a folder containing plans and photographs of houses he had constructed, including as an owner builder. He produced additional references from Damien Waring-Flood, a civil engineer with whom he had worked, and Mr Vujic.
2. The hearing was adjourned to give the respondent time to consider the new material and to allow both parties to file further evidence and submissions.
3. In the interim, the applicant filed further references from three engineers and from Graham Murray, a builder who said his company had employed the applicant as a building contractor to complete a number of named projects. When the hearing resumed, the applicant also sought to rely upon a letter from Len Blakeney, the State Regional Manager of the Master Builders Association of NSW, who commented that the applicant would be an ideal candidate for a NSW residential builders licence as he has supervised all facets of home building over an extensive time frame.
4. When the hearing resumed, the applicant gave oral evidence. This included evidence of building five homes as an owner builder. He said that every home he built had passed every local government requirement and he had obtained an occupation certificate in respect of each house. The applicant also gave evidence that he had had a concreting business for the past 27 years.
5. Mr Murray gave evidence for the applicant. He said he had known the applicant for 18 years and used his company extensively during this period. He said that the applicant was a very good formwork carpenter and built exceptional frames. He gave evidence that the applicant had a range of experience doing carpentry formwork and concreting and that the applicant knows how to take a level and set out jobs. He said that all the homes he had seen the applicant build were fantastic.
6. Towards the end of the hearing, I noted that Mr Vujic's reference referred to the applicant working on several sites, but that this evidence had not been considered by the Commissioner because Mr Vujic had not completed a referee statement in relation to those sites. I suggested that the applicant make enquiries to see if Mr Vujic was available and willing to give evidence by telephone. The respondent did not object to this course. After a short adjournment, the Tribunal contacted Mr Vujic and he gave sworn evidence by telephone.
7. Mr Vujic's evidence was that the applicant had worked for him on the following sites: 1. for at least six months assisting with the building of a 3 storey house in Imperial Close, Floraville. The work included laying the slab and doing the footings and the frames and trusses. 2. for about 10 and a half months assisting with building works at the East Maitland Bowling Club. The work he did there included fit out work, demolition, rebuilding, putting in a new timber ceiling and supervising plumbing and electrical work. 3. for at least a year assisting with building the Macquarie Hills Church. The applicant's work there included assisting with steel stud framework, cladding and the renovation of the building. 4. for fifteen months as an employee of Mr Vujic, assisting him to build 5 units at Kings Road, New Lambton. Mr Vujic said that the applicant mostly did the "carpentry side of things" there and that he supervised the applicant. 5. for two and a half months assisting with attic renovations at a house in Rothbury Close, Elleebana. His work there included helping with the frames and trusses, assisting in installing a new floor, setting out where the bath and vanity were to go, building the framework and supervising plumbers and electricians. 6. for 4-5 months full time equivalent (over a 12-15 month period) at a house in Merewether. His work included assisting with major renovations and supervising plumbers and electricians.
8. Mr Vujic also said that the applicant had supervised plumbers and electricians in all of the above sites.

Applicable legislation

1. The applicant lodged his application prior to the commencement of the Home Building Amendment Act 2014 and the Home Building Regulation 2014 ("2014 Regulation"). The Home Building Amendment Act 2014 and the 2014 Regulation came into force on 15 January 2015. On the same day, the Home Building Regulation 2004 ("2004 Regulation") was repealed.
2. It was held in Commissioner of Fair Trading, Office of Finance and Services, NSW Fair Trading v Kassem [2015] NSWCATAP 173 that: 1. ss 33C and 33D of the Act, as amended by the Home Building Amendment Act 2014, apply to applications made before 15 January 2015 (at [33]); and 2. the Instrument (made by the Commissioner in 2013) continues to have effect even though the 2004 Regulation pursuant to which it was made has been repealed under the 2014 Regulation (at [34]).
3. Section 33C(1)(b) of the Act provides: "33C Additional requirements for obtaining contractor licences (1) A contractor licence must not be issued unless the Secretary is satisfied that: … (b) the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate: (i) satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant, and (ii) is not disqualified from holding a supervisor certificate or a supervisor certificate of a particular kind, and (iii) is not the holder of a supervisor certificate that is suspended."
4. Section 33D(1) of the Act provides: "33D Additional requirements for obtaining supervisor and tradesperson certificates (1) A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant: (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."

Consideration

1. The applicant is applying to vary the category of his licence to general building work and for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate. This means that, by operation of s 33C(1)(b)(i) of the Act, s 33D applies to his application.
2. There is no dispute that the applicant "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" within s 33D(1)(a) of the Act. Nor is there any dispute, as I understand it, that the applicant "is capable of doing or supervising work for which the certificate is required" within s 33D(1)(c) of the Act. The evidence establishes that the applicant has satisfied both criteria.
3. The main issue in the proceedings is whether 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" within s 33D(1)(b) of the Act.
4. As the respondent submitted, work as an owner builder and work on commercial sites (such as the East Maitland Bowling Club and Macquarie Hills Church) is not "experience" within the meaning of the Instrument. However, I am satisfied that the applicant gained relevant industry experience (as that term is defined in the Instrument) in a wide range of building construction work at the following sites and for the following periods, working for Mr Vujic: 1. Imperial Close, Floraville - 6 months; 2. Kings Road, New Lambton - 15 months; 3. Rothbury Close, Elleebana - 2.5 months; 4. Merewether - 4-5 months.
5. This amounts to more than two years' relevant industry experience (as that term is defined in the instrument) in a wide range of building construction work.
6. While it is not necessary to do so, I would also be prepared to count some of the experience the applicant gained with Mr Lane over the estimated period of 6-12 months. Although the Fair Trading officer who rang Mr Lane said that Mr Lane reported that the work was mostly concreting and setting out work, Mr Lane has also indicated on the referee form that the work included supervision and carpentry. Whilst this would not be enough on its own to constitute a wide range of building construction work, it may be taken into account in conjunction with the other work undertaken by the applicant.
7. For the reasons given above, I am satisfied of the matters set out in s 33C(1) of the Act. Accordingly, the correct and preferable decision is to set aside the respondent's decision and, in substitution for that decision, to make a decision to grant the applicant's application for a variation of his contractor licence (Administrative Decisions Review Act, s 63(1) and (3)(c)).

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: 01 March 2016