Kassem v Commissioner of Fair Trading

BACKGROUND

1. The applicant held a contractor licence to do kitchen, bathroom, laundry and renovation work.
2. On 8 January 2014, he applied to the Commissioner for a variation to his licence. His application stated that the category for which the application for variation was being made was general building work.
3. The applicant stated on his application form that he had had just over two years' experience working for John Bouchahine of HCM Building Pty Ltd building residential units. He also stated that he had been working for Radwan Turkmani of Developcraft Pty Ltd since October 2012 (which was, at the time of the application, a period of three months).
4. Mr Turkmani completed a form on 6 January 2014 stating that the applicant had been a supervisor on a site in Pendle Hill for the construction of two attached villas and two attached townhouses, for a period of three months, and that the building work was ongoing. He ticked a box indicating that the applicant was a sub-contractor.
5. Mr Bouchahine completed a form on 7 January 2014 stating that the applicant had carried out the following work as a sub-contractor at a site in Marrickville: "demolish & excavate site, erection of 3 storey building for 13 residential units". Mr Bouchahine described the applicant's roles and responsibilities at the building site as being "foreman & supervisor from start to finish. Fulfil OHS requirements. Purchase supplies, manage sub-contractors. Ensure BCA requirements are met."
6. On 18 February 2014, an officer of NSW Fair Trading contacted Mr Turkmani by telephone. After speaking to Mr Turkmani, the officer was satisfied that the applicant had gained building experience on the Pendle Hill site for approximately three months.
7. On the same date, the officer contacted Mr Bouchahine. Mr Bouchahine confirmed that the applicant was not being paid by him to do the work, but that the applicant's companies owned the site and they contracted Mr Bouchahine to be the builder on the site. Mr Bouchahine informed the Fair Trading officer that the construction stage at the Marrickville site lasted just over twelve months, but if you included the DA, all the certificates, fencing up the site and so on, the job went for over two years.
8. The NSW Fair Trading officer was not satisfied that the applicant had the necessary experience at the Marrickville site, as the applicant was effectively contracting the builder on his own site.
9. On 24 February 2014, a NSW Fair Trading officer wrote to the applicant advising him that his application to vary his licence had been refused. The applicant's application was assessed by applying the terms of an instrument made by the Commissioner for Fair Trading pursuant to clause 28(1) of the Home Building Regulation 2004 on 3 July 2013, entitled "Qualification Requirements for an Endorsed Contractor Licence or Supervisor Certificate for General Building Work" ("Instrument"). The Instrument states, relevantly, that the Commissioner considers the possession of experience specified in the Instrument to be necessary for an applicant for the issue of a Licence or Certificate.
10. The experience specified in the Instrument, applicable to the applicant, is "at least two years' relevant industry experience in a wide range of building construction work".
11. One of the reasons for the refusal of the applicant's application was that the Marrickville site was owned by two companies of which the applicant was the sole director. As the applicant was not an employee or subcontractor, the NSW Fair Trading officer concluded that he was not "lawfully engaged" within the meaning of the Instrument. Further, the officer expressed the view that construction only went on for just over twelve months, not for two years as stated in the applicant's application.
12. The NSW Fair Trading officer concluded that the applicant had not demonstrated that he had been employed or lawfully engaged by holders of a contractor licence and/or that he had sufficient experience in supervising residential building construction work to satisfy the experiential requirement for the issuing of an endorsed contractor licence in general building work.
13. The applicant requested an internal review of the refusal decision and, on 3 June 2014, an internal review officer confirmed the original decision to refuse the application.
14. On 2 July 2014, the applicant applied to this Tribunal for a review of the Commissioner's decision.
15. On 29 September 2014, a hearing was held in this matter. At the hearing, I raised the question of whether the Instrument applied at all, given that the applicant had not stated in his application that he was applying for an endorsement of his contractor licence to show that it is the equivalent of a supervisor certificate.
16. Clause 26(1)(b) of the Home Building Regulation 2004 provided that it was necessary to comply with cl 28(1) "if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate". Clause 28(1)(b) provided that the Director-General must be satisfied, before a certificate is issued, that the applicant "has had experience of such a kind and for such a period, as the Director-General considers would enable the applicant to do, or to supervise, the work for which the certificate is required". The "Director-General" was defined as the Commissioner for Fair Trading (Home Building Act 1989, s 3(1)). The Instrument set out the circumstances in which the Commissioner would be satisfied of the relevant matters.
17. At the end of the hearing, the Tribunal directed the parties to file and serve further submissions on the following questions: Whether a contractor licence may be issued whereby the holder is subject to supervision; Whether the Instrument applies to all applications for a contractor licence to do general building work or whether it does not apply to applications which are within cl 26(1)(a) but which are not within cl 26(1)(b) of the Home Building Regulation 2004; If there is a category of contractor licence to which the Instrument does not apply, what criteria apply to the determination of that category of application.
18. The parties' submissions were received by 24 November 2014. The matter was then reserved.
19. On 15 January 2015, amendments were made to the Home Building Act 1989 (NSW) by the Home Building Amendment Act 2014 (NSW). On the same date, the Home Building Regulation 2004 (NSW) was repealed and the Home Building Regulation 2014 (NSW) commenced.
20. The Tribunal then requested and received further submissions from the parties about the effect of those legislative changes.

Evidence at hearing

1. The applicant gave evidence at the hearing. He said that he had been on site for two years completing the job at Marrickville. He said that, after the construction had finished, there had been other things to take care of, such as landscaping and smoke alarms.
2. The applicant said that Mr Bouchahine paid the applicant $1200 plus GST per week, which was deducted from Mr Bouchahine's bill. The applicant also said that he claimed the GST.
3. The applicant was cross examined by Mr Coss for the respondent. Under cross examination, the applicant agreed that he worked as a subcontractor for Mr Bouchahine and that he was paid in progress payments. He said that Mr Bouchahine did not pay him sick leave or superannuation. The applicant denied, however, that he told Mr Bouchahine what to do because it was effectively the applicant's land; he said he listened to Mr Bouchahine.
4. The applicant said that his work for Mr Bouchahine included supervising contractors in the various stages of construction work. He said that Mr Bouchahine supervised him.
5. The applicant gave evidence that he was still working for Mr Turkmani as a full-time subcontractor. The jobs he did for Mr Turkmani included marking the frame for a new building, reading plans, ordering materials and checking the work of subcontractors. He said that he met regularly with Mr Turkmani to discuss the work he was doing and that Mr Turkmani supervised him.
6. The applicant gave evidence that one of the jobs he was doing for Mr Turkmani was complete and that he was also working on another three jobs which were not yet complete. One of these jobs involved the construction of the duplex at Pendle Hill with a villa at the back and another involved the construction of a block of eleven units at St Mary's.

Submissions made at hearing

1. Mr Coss, for the respondent, submitted that the applicant did not have sufficiently wide experience in terms of the Instrument. Mr Coss said that the applicant had not done any carpentry or bricklaying; rather, his role was limited to activities such as marking the slab, examining the plan, coordinating subcontractors and coordination on site.
2. Mr Coss also said that the applicant was not entitled to work as a subcontractor; under section 12(c) of the Home Building Act 1989, it was unlawful to do residential building work except, relevantly, as an employee. Mr Coss submitted that the applicant had not been "lawfully engaged" within the meaning of the Instrument by Mr Bouchahine or by Mr Turkmani.
3. The applicant submitted that he knew how to do the relevant work. He said that if he did not know how to do it, he would not have got a certificate from TAFE. The applicant said that he had over two years' building experience and that he had also had experience with the person he described as a "private trainer".

WHETHER LEGISLATION IN FORCE BEFORE 15 JANUARY 2015 APPLIES

1. The Tribunal is required to make the correct and preferable decision having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law (Administrative Decisions Review Act 1997, s 63(1)). This generally requires the Tribunal to make a decision on the material before it at the time it makes its decision (see Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409; Mattar v Roads and Maritime Services [2012] NSWADT 274 at [10]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286).
2. In Foley v Commissioner of Police [2005] NSWADT 12 at [5], Hennessy DP summarised the relevant principles as follows: At common law, a tribunal conducting a merits review must apply the law in force when it considers the matter, unless the decision involves a consideration of accrued rights and liabilities at an anterior date: Re Smith and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 374; Re Costello and Secretary, Dept of Transport (1979) 2 ALD 934; Commonwealth of Australia v Esber [1991] FCA 223; (1991) 101 ALR 35.
3. The respondent submitted that the Home Building Amendment Act 2014 has no effect, and that the application is to be determined under the Home Building Act 1989 as it stood prior to the January 2015 amendments, due to the operation of savings and transitional provisions. The applicant submitted that the amendments "should not have an effect on the final decision made by the Tribunal".
4. Item 121(2)(a) of Sch 4 to the Home Building Act 1989 provides that an amendment made by the Home Building Amendment Act 2014 does not apply to or in respect of proceedings commenced in a court or tribunal before the commencement of the amendment.
5. I am satisfied that, as the respondent submits, these proceedings are to be determined by applying the provisions of the Home Building Act 1989 as it stood prior to the amendments made by the Home Building Amendment Act 2014.
6. The respondent also submitted that the application was not affected by the Home Building Regulation 2014. No explanation was provided for adopting this position.
7. Item 121 of Sch 4 to the Home Building Act 1989 does not have the effect of continuing the operation of the Home Building Regulation 2004 in respect of these proceedings. That is because the making of the Home Building Regulation 2014 is not an "an amendment made by the" Home Building Amendment Act 2014 within item 121.
8. Clause 75(2) of the Home Building Regulation 2014 provides that any act, matter or thing that, immediately before the repeal of the Home Building Regulation 2004, had effect under that Regulation continues to have effect under the Home Building Regulation 2014. There are no other savings and transitional provisions in the Home Building Regulation 2014.
9. Clause 75(2) does not, in my view, have the effect that the provisions of the Home Building Regulation 2004 are continued in respect of the present proceedings. The provisions applicable to the applicant's application to vary his licence are not an "act, matter or thing" that "had effect" under the Home Building Regulation 2004.
10. It is necessary, in addition, to consider the effect of s 30(1) of the Interpretation Act 1987 (NSW), which provides for the effect of the repeal of a statutory rule. A "statutory rule" includes a regulation made by the Governor: Interpretation Act 1987, s 21(1), such as the Home Building Regulation 2014. Section 30(1) of the Interpretation Act 1987 provides: 30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not: (a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.
11. The repeal of a statutory rule does not affect the operation of any savings or transitional provision contained in the statutory rule: Interpretation Act 1987, s 30(2)(d).
12. Section 5(2) of the Interpretation Act 1987 relevantly provides that that Act applies to an instrument except in so far as the contrary intention appears in the instrument concerned. The inclusion of cl 75(2) in the Home Building Regulation 2014 does not evince an intention to generally exclude the operation of s 30 of the Interpretation Act 1987. Accordingly, s 30 of the Interpretation Act 1987 applies.
13. Section 30(1) of the Interpretation Act 1987 was considered by Judicial Member Molony (as he then was) in Esber v Commissioner of Police, NSW Police Force [2009] NSWADT 208, in the context of an application to review a decision to revoke the applicant's firearms licence, and in Duncan v Commissioner of Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 121 ("Duncan"), in the context of an application for review of a decision to refuse to grant a real estate agent's licence. I respectfully adopt Judicial Member Molony's analysis of the relevant legal principles in Duncan at [17]-[35].
14. One situation in which s 30 of the Interpretation Act 1987 could have the effect of applying the Home Building Regulation 2004 to the present application is if the applicant had an accrued "right" or "privilege" under that regulation (see Interpretation Act 1987, s 30(1)(c)). An analysis of the provisions of the Home Building Regulation 2004 is necessary to determine whether the applicant had an accrued right to have his application for variation of his licence considered under that regulation. Where the legislative scheme does not leave any discretion to the administrator (here, the Tribunal) to determine whether a decision is to be made in the applicant's favour, the applicant will have an "accrued right" for the purposes of s 30(1) of the Interpretation Act 1987 (see Duncan at [23]-[33] and the cases there cited). Where, on the other hand, the decision is at least partly discretionary, no rights will accrue.
15. The respondent contends that cl 26(1)(b) and cl 28(1) of the Home Building Regulation 2004 apply to the applicant's application. I will assume for present purposes that they do.
16. Clause 26(1) of the Home Building Regulation 2004 provides: 26 Additional requirements for obtaining contractor licences (1) Before a contractor licence is issued, the Director-General must be satisfied that: (a) the applicant has, or proposes to have, such numbers of nominated supervisors for the contractor licence as the Director-General considers are needed to ensure that all work for which the contractor licence is required will be done or supervised by qualified individuals, and (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) complies with the requirements prescribed by clause 28 (1), 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.
17. Clause 28(1) of the Home Building Regulation 2004 is made pursuant to s 20(1) of the Home Building Act 1989, which provides that: 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.
18. Clause 28(1) of the Home Building Regulation 2004 provides: 28 Additional requirements for obtaining certificates (1) Before a certificate is issued, the Director-General must be satisfied that the applicant: (a) has such qualifications or has passed such examinations or practical tests, or both, as the Director-General 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 Director-General 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.
19. The provisions of clauses 26(1) and 28(1) appear on their face to confer a discretion, because they refer to the Director-General's consideration of the kind and duration of experience necessary, and the Director-General's determination of qualifications and examinations.
20. The Commissioner made an instrument pursuant to cl 28(1) of the Home Building Regulation 2004 on 3 July 2013, entitled "Qualification Requirements for an Endorsed Contractor Licence or Supervisor Certificate for General Building Work" ("Instrument"). The Instrument states, relevantly, that the Commissioner considers the possession of experience specified in the Instrument to be necessary for an applicant for the issue of a Licence or Certificate.
21. Notwithstanding that the Instrument, which was made pursuant to cl 28(1) of the Home Building Regulation 2004, was routinely applied to applications under the Home Building Regulation 2004 by the Commissioner's delegates before its repeal, the Commissioner retained a discretion under cl 28 to determine that different qualifications were necessary in a particular case or that different experience was required in a particular case. This is apparent from the terms of that clause. Further, if the Instrument were to be applied inflexibly, as if the Commissioner did not retain any discretion, that would be an invalid exercise of power: see, for example, NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277, Gleeson CJ at [24]; Re Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634 (AAT), Brennan J at 640.
22. Accordingly, as the Commissioner retained a discretion as to whether to grant the applicant's application for variation of his licence, the applicant does not have accrued rights under the Home Building Regulation 2004.
23. Even if I am wrong about my conclusion that the Commissioner has a discretion under the Home Building Regulation 2004, it is still the case that the applicant does not have an accrued right because, under s 20(1)(a) of the Home Building Act 1989, the Commissioner must refuse an application if he or she is not satisfied that the applicant is a fit and proper person to hold a contractor licence. The determination of whether someone is "fit and proper" involves the exercise of discretion: Duncan at [33].
24. The word "privilege" in s 30(1) of the Interpretation Act 1987 captures interests which are not as strong as rights, but the applicant's expectation that his application would be determined under the Home Building Regulation 2004 cannot properly be described as a "privilege". Nor can the requirement that the application be assessed in accordance with those provisions properly be described as a liability.
25. Section 30(1)(b) of the Interpretation Act 1987 provides, relevantly, that a repeal of a statutory rule does not affect the previous operation of the statutory rule or anything duly suffered, done or commenced under the statutory rule. This does not assist, as the applicant's application was not "done" or "commenced" under the Home Building Regulation 2004, but was rather commenced under the Home Building Act 1989.
26. For these reasons, I conclude that the Home Building Regulation 2004 does not apply to my determination of these proceedings. This creates the anomalous and presumably unintended consequence that the application is to be determined under the Home Building Act 1989, as it stood prior to 15 January 2015, and the Home Building Regulation 2014.
27. It is also necessary to consider the effect of another savings and transitional provision, item 143 of Sch 4 to the Home Building Act 1989, as amended by the Home Building Amendment Act 2014, which provides as follows: An amendment made by the amending Act that imposes a requirement that was a requirement of the regulations before the amendment commenced extends to any contract or other matter to which the requirement was subject under the regulations immediately before the commencement of the amendment.
28. It could be argued that this has the effect of requiring the Tribunal to apply, in the present proceedings, provisions in the Home Building Act 1989, as amended, which impose requirements previously contained in the Home Building Regulation 2004. However, item 143 of Sch 4 must be read with the other savings provision referred to above, item 121 of Sch 4, to the effect that the amendments do not apply to proceedings commenced before the amendments took effect. Item 121 is a more specific provision and, in my view, it prevails.

APPLICATION OF RELEVANT LEGISLATION

1. In the remainder of these reasons, all references to the Home Building Act 1989 are to that Act as it stood prior to the amendments made by the Home Building Amendment Act 2014.
2. Section 19(1) of the Home Building Act 1989 provides that the Director-General may grant contractor licences for the purposes of that Act.
3. There is provision for "amending" a contractor licence. Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW) is applied to and in respect of a contractor licence by s 19(2) of the Home Building Act 1989. Due to interacting provisions in both Acts, an application for the amendment of a licence may be made to the relevant licensing authority by the licensee (Licensing and Registration (Uniform Procedures) Act 2002, s 7; Home Building Act 1989, s 19(3)(a)).
4. These provisions authorised the applicant's application for a variation of his existing contractor licence. At the time of his application, that licence authorised him to do kitchen, bathroom, laundry and renovation work as described in the Home Building Regulation 2004 (see Home Building Act 1989, s 21(1)(a); Home Building Regulation 2004, cl 46(1)(ac) and 50, Sch 5). He sought to amend that licence to authorise him to do general building work (Home Building Regulation 2004, cl 46(1)(a)). The term "general building work" is not defined or described in the Home Building Regulation 2004.
5. As mentioned above, s 20(2) of the Home Building Act 1989 provides that 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. By s 20(3)(a), the Director General must refuse an application for a contractor licence if he or she is not satisfied that any such requirement would be met were the contractor licence to be issued.
6. The Home Building Regulation 2014 does not make provision for the Commissioner 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. There are no other requirements in the Home Building Regulation 2014 which are relevant to the respondent's exercise of discretion in determining whether to grant the applicant's application for a variation of his licence.
7. The Home Building Regulation 2014 does, however, provide that one of categories of residential building work in which a person may hold a licence or supervisor certificate is "general building work" (cl 13(a)(ii)).
8. The application, then, falls to be determined under s 20 of the Home Building Act 1989. The respondent has not contended that the applicant is not a fit and proper person, that he is mentally incapacitated or that he is disqualified from holding a licence. Accordingly, the refusal criteria in s 20(1) do not apply. Section 20(2) and (3) do not apply, for reasons given above.
9. Section 20(6) provides that "the Director-General may refuse an application for a contractor licence if the Director-General is of the opinion that it is in the public interest to do so on" certain grounds. The respondent did not contend that any of those grounds applied.
10. The question then arises as to whether the Commissioner retains a residual discretion to refuse an application, if none of the refusal grounds applies. In my view, the Commissioner does not. The intention of the section is that any "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" are to be the subject of regulations. Where there is no such regulation, it follows that, if none of the refusal grounds applies, the Commissioner is required to grant the application.
11. It remains to be considered, however, whether the applicant is in fact a "fit and proper" person to hold a licence. Fitness and propriety involves honesty, knowledge and ability: Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156; Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6). The respondent, through the application of the criteria in a statutory instrument, effectively questioned his knowledge and ability.
12. The question of whether the applicant is a fit and proper person was not the subject of submissions in the Tribunal as it was assumed by both parties that the Instrument applied. Nor was the evidence focused upon the applicant's honesty, knowledge or ability. Rather, the parties addressed the question of whether the applicant met the criteria in the Instrument.
13. In the circumstances, the appropriate order to make is to set aside the respondent's decision and remit the matter for reconsideration by the respondent in accordance with the law, as elucidated in these reasons, and the directions set out below, pursuant to s 63(3)(d) of the Administrative Decisions Review Act 1997 (NSW).
14. The Tribunal notes that the expiry date of the licence which the applicant applied to vary (that is, licence No 25520C) is not in evidence. It is possible that it has expired since he made his application. If it has expired and has not been renewed, it is doubtful that the respondent has power to vary it. If, however, it has expired but has been renewed, it may be possible for the respondent to treat the application for variation as an application to vary the renewed licence. These issues were not the subject of submissions and I make no determination about them.
15. The directions I make pursuant to s 63(3)(d) of the Administrative Decisions Review Act 1997 are as follows: The respondent is to consider whether the applicant's licence, which the applicant sought to vary, has expired; If the respondent considers, having regard to the status of the applicant's licence, that the respondent does not have power to vary it, the respondent is to write to the applicant within two weeks of the date of these reasons to inform him of that; If the respondent considers, having regard to the status of the applicant's licence, that the respondent still has power to vary it, the respondent is to write to the applicant within two weeks of the date of these reasons asking the applicant to provide any additional material (both factual and in the nature of submissions) addressing the question of whether he is a fit and proper person to hold a contractor licence in the category of general building work; After providing the applicant with a reasonable opportunity to provide additional material, and considering any additional material received, the respondent is to determine the applicant's application according to law.
16. Given my conclusion that the Home Building Regulation 2004 no longer applies to the determination of the applicant's application, it is not necessary for me to resolve the questions I asked the parties to address in the form of written submissions immediately after the hearing, which are set out at paragraph 19 above. 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: 10 April 2015