Lee v Commissioner for Fair Trading

Background

1. Mr Lee applied for registration in three prescribed classes: as a professional engineer - mechanical, as a design practitioner - mechanical and as a design practitioner - fire systems (mechanical smoke).
2. The Commissioner made the refusal decision on 27 September 2023. The Commissioner conducted an internal review of the decision at Mr Lee's request and on 10 November 2023 the Commissioner affirmed the decision.
3. Mr Lee had previously been granted registration under the DBP Act, in part, on the basis of a certificate of competency issued by Engineers Australia following his successful completion of a competency assessment process. The certificate of competency was revoked by Engineers Australia after it and the Commissioner decided the certificate had been issued in error on a changing interpretation of the statutory requirements, eventually determining the registration pathway taken was only for overseas engineers. That registration was cancelled also on 27 September 2023 but is not the decision subject to this review.
4. For registration to be granted, Mr Lee must demonstrate that he holds particular qualifications, skills, knowledge and experience. It is agreed he has the requisite qualifications, skills and knowledge. At issue is whether he meets the experience requirements to be granted the registration he seeks.

Registration

1. Section 43 of the DBP Act allows a person to apply for registration. Classes of registration may be set out in the Design and Building Practitioners Regulation 2021 (the Regulation): see s 43 DBP Act. Schedule 1 to the Regulation sets out and describes classes of registration. Requirements for registration are to be set out in the Regulation (s 47 DBP Act).
2. Under s 45 of the DBP Act the Commissioner may grant or refuse an application for registration. There are several powers to impose conditions on registration: ss 49 - 51 DBP Act.

Standard pathway

1. Schedule 2 to the Regulation sets out requirements for registration, relevantly providing: 2 Qualifications, experience, knowledge and skills required for grant of registration (1) For the purposes of sections 47(2) and 107(2)(a) of the Act, the provisions of this Schedule specify the minimum qualifications, experience, knowledge and skills required to be granted registration in the classes set out in this Schedule in relation to a practitioner.
2. Relevant definitions provided in cl 1 of Schedule 2 to the Regulation include: recent, in relation to a requirement for a person to have 5 years practical experience, means 5 years, or equivalent part-time, experience within the last 10 years, including at least 2 years practical experience relating to work carried out in Australia by the person. relevant, in relation to the practical experience requirement for a particular class of registration, means the following - … (b1) for a design practitioner in another class - (i) experience relevant to the preparation of a regulated design involving a class 2, 3, 9a or 9c building, or (ii) experience relevant to the provision of a compliance declaration involving a class 2, 3, 9a or 9c building, … (d) for a professional engineer - the carrying out of professional engineering work in a particular prescribed area of engineering involving a class 2, 3, 9a or 9c building.
3. Clause 26 of Schedule 2 to the Regulation provides the experience requirement for a professional engineer class to be: 26 Experience - all classes of professional engineer Must have 5 years recent relevant practical experience.
4. Further, for the relevant design practitioner classes the experience requirement provided in cl 4 of Schedule 2 to the Regulation is: 4 Experience - all other classes of design practitioner (1) Must have 5 years recent relevant practical experience.

Alternative pathways

1. Clause 3 of Schedule 2 to the Regulation provides for three relevant alternative pathways to registration: 3 Secretary may grant registration in other certain circumstances For the purposes of sections 47(2) and 107(2)(a) of the Act, the Secretary may, despite the provisions of this Schedule, grant registration in a class of registration as a practitioner to a person if the Secretary is satisfied that - (a) the person's qualifications, experience, knowledge and skills are at least equivalent to the qualifications, experience, knowledge and skills specified for that class, or … (c) for registration as a professional engineer - (i) the person has the knowledge, skills and experience specified for the class of registration, and (ii) the person has successfully completed a competency assessment, and (iii) the person has a qualification in engineering that was conferred by a university or a tertiary institution before the establishment of the Washington Accord, and (iv) the qualification has been assessed as being suitable by the person or body that conducted the competency assessment, or (d) for registration as a professional engineer - (i) the person has the qualifications, knowledge and skills specified for the class of registration in this Schedule, and (ii) the person has at least 5 years, or equivalent part-time, practical experience overseas, or overseas and in Australia, within the last 10 years involving a building similar to a class 2, 3, 9a or 9c building, and (iii) the person has successfully completed a competency assessment
2. Clause 97 of the Regulation is a further alternative registration pathway for professional engineers and some design practitioners not relevant to this matter. Instead of satisfying Schedule 2 to the Regulation cl 97 provides: (2) The person may, instead of meeting the qualifications and experience requirements specified in Schedule 2 for a particular class of registration, satisfy the Secretary of the following - (a) the person has the knowledge and skills specified for the class of registration in Schedule 2, (b) the person has at least 10 years, or equivalent part-time, practical experience within the last 15 years that - (i) must include at least 2 years of work carried out in Australia, and … (iii) for a professional engineer - must involve the carrying out of professional engineering work in a particular prescribed area of engineering for a class 2, 3, 9a or 9c building, (c) the person has successfully completed a competency assessment, (d) for registration as a professional engineer in a particular class of registration - (i) the person has a qualification relevant to that class of registration, and (ii) the qualification have been assessed as being suitable by the person or body that conducted the competency assessment. (3) This clause is not available to a person unless - (a) the Secretary has made a competency assessment available, or (b) the Secretary has approved a body to conduct the competency assessment.

Professional engineering work

1. Sections 31 and 32 of the DPB Act require professional engineering work to be carried out by professional engineers and describes what that work is and is not, as well as providing an offence for performing the work without the requisite registration. Section 31 of the DBP Act also provides for a regulation making power to further limit what professional engineering work is. Clause 14(1) of the Regulation relevantly provides: For the Act, section 31(2)(b), engineering work is not professional engineering work unless the work is carried out directly in relation to the design or construction of a building, or part of a building, that is - (a) a class 2 building, or (b) a class 3 building, or (c) a class 9c building.

Material before the Tribunal

1. Mr Lee provided a bundle of documents (exhibit A4) containing letters of reference and his current certificate of registration as a building certifier. He filed two written submissions (exhibits A2 and A3). He also attended the hearing, gave oral evidence and made oral submissions. The application for review attaching the internal review of the Commissioner was also before the Tribunal (exhibit A1).
2. The Commissioner provided a bundle of material filed under s 58 of the Administrative Decisions Review Act 1997 (exhibit R1), as well as two written submissions (exhibits R2 and R3) and oral submissions at the hearing.

Applicant's case

1. Mr Lee concedes that he does not meet the experience requirements for the standard registration pathway. He contends that the work he had performed, as evidenced by the material he provided and evidence he gave to the Tribunal, demonstrates he has relevant experience to satisfy alternative pathways for registration under the Regulation.

Respondent's case

1. The Commissioner contends that Mr Lee does not satisfy the relevant experience requirements that are necessary for registration, because Mr Lee only has five months of relevant experience instead of the 60 months (five years) required by cl 4 and cl 26 of Schedule 2 to the Regulation. The Commissioner is also of the view that Mr Lee does not satisfy any alternative pathway for registration under the Regulation.
2. The Commissioner also submitted that Mr Lee seeks to verify his own experience, citing Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 where (at [38]) a number of authorities were discussed, and as such Mr Lee has not provided sufficient evidence of his experience.

Jurisdiction

1. The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the Administrative Decisions Review Act 1997 (the ADR Act). Section 63 of the DBP Act provides that applications may be made to the Tribunal for administrative review of a decision to refuse registration. The Tribunal has jurisdiction to hear and determine this application for review.

Administrative Review

1. When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. In conducting a review, the Tribunal is not restricted to consideration of the material that was before the Commissioner but may have regard to any relevant material before the Tribunal at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.
2. The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act.
3. The Tribunal is required to base its findings of fact on logically probative material: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62 and 68; and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]-[8], [15]-[17].

Consideration

1. The intention behind the legislative structure of the DBP Act has been set out and discussed in Alzaaim v Commissioner for Fair Trading [2022] NSWCATOD 139 and Mourad v Commissioner for Fair Trading [2024] NSWCATOD 5. In essence the intention is to improve the quality and compliance of design documentation and to strengthen accountability across the NSW building and construction industry particularly by establishing a new registration scheme for design practitioners and professional engineers who work on class 2 buildings.

Work history, skills, knowledge and qualifications

1. Mr Lee is registered under the Building and Development Certifiers Act 2018 as a certifier in the class of Electrical Mechanical. He holds relevant qualifications and has an extensive work history as an engineer on many projects over the past two decades. His skills, knowledge and qualifications are not at issue.
2. The Commissioner referred the Tribunal to Limberis and the line of cases it discussed such as Shoobridge v Commissioner of Fair Trading [2015] NSWCATOD 42 that relate to the issue of unsupervised contractor licences under the Home Building Act 1989 contending that Mr Lee was seeking to verify his own experience which has been held to be not appropriate.
3. Mr Lee is not seeking to inappropriately verify his own experience. This is not an analogous matter to those cases cited because this is a different statutory scheme and there is no supervision certification requirement in Schedule 2 to the Regulation. On the basis of the material provided to it, the Commissioner has already accepted Mr Lee has the relevant skills, knowledge and qualifications to be registered and also has five months of relevant experience. Further, Mr Lee's qualifications are not in issue and he has provided an extensive resume as well as letters of reference from highly qualified professionals that relevantly speak to his extensive skills, knowledge and experience as an engineer and project manager.
4. On the material before the Tribunal, of particular relevance is Mr Lee's recent work history on the following projects: 1. Westmead Hospital - work on a class 9a building. This has been accepted by the Commissioner as providing 5 months relevant experience. 2. Sydney Football Stadium - work on a class 11 or 9b building. Mr Lee issued the certificate of compliance for this work. 3. 3 Parramatta Square - work on a class 5 or 7 building. Mr Lee issued the certificate of compliance for this work. 4. University of New South Wales Biological Science Project - work on a class 8 building.
5. Further, Mr Lee has provided letters of reference from: 1. Mr Robert Marinelli, Managing Director of Philip Chun, a registered certifier and fire safety consultant. Mr Marinelli's letter extensively discusses the requirements and complexity of various classes of building in relation to mechanical engineering design and Mr Marinelli's knowledge of Mr Lee's work, knowledge and experience. 2. Mr Michael Potts, Director BM+G, a registered certifier. Mr Pott's letter addresses Mr Lee's responsibilities for design and certification of the mechanical and life safety services on the Sydney Football Stadium project, contending the design and coordination would be more rigorous than those of the prescribed classes of buildings. 3. Mr Flavian Vallance, an experienced registered professional engineer and design practitioner. Mr Vallance has a long professional association with Mr Lee and describes Mr Lee's more recent experience as being 'technically more demanding' than classes 2 and 3.

Professional engineering work

1. The Commissioner referred the Tribunal to ss 31 and 32 of the DPB Act containing a definition of 'professional engineering work', a term used in the Regulation. Those provisions establish a definition and relate to what work engineers can and cannot do as professional engineers as well as create an offence, with cl 14(1) of the Regulation limiting that work to fewer classes of buildings than cl 97 or Schedule 2 to the Regulation permit to be taken into account in determining the experience requirements for registration.
2. The Commissioner noted the misalignment of classes within the Regulation between cl 14 (which goes to a definition) and several other clauses - cl 97, and cl 1 and cl 3(a) of Schedule 2 that use the defined term yet reference a further class which is challenging to resolve. For the purposes of this review I assume cl 14 is not intended to limit the relevant classes of buildings clearly prescribed in cl 97 and variously in Schedule 2 to the Regulation, namely classes 2, 3, 9a and 9c: see Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574; 116 ALR 54 at 63.

Pathways

1. There are a number of pathways available for the relevant professional engineer and design practitioner classes for which Mr Lee seeks registration.
2. It is agreed Mr Lee does not satisfy the experience required under the standard pathway of cl 4 and cl 26 of Schedule 2 to the Regulation because he does not have five years experience working on the relevant prescribed classes of buildings (classes 2, 3, 9a and 9c). It is agreed he has at least five months experience but not the required five years.
3. There are four more alternative pathways for registration to consider: 1. Clause 97 of the Regulation; 2. Clause 3(a) of Schedule 2 to the Regulation; 3. Clause 3(c) of Schedule 2 to the Regulation; and 4. Clause 3(d) of Schedule 2 to the Regulation;

Clause 97 of the Regulation

1. The pathway under cl 97 of the Regulation applies only to the professional engineer class of registration Mr Lee seeks and requires the person to have certain qualifications (cl 97(a) and (d)), certain prescribed experience (cl 97(b)), as well as successfully completed a competency assessment (cl 97(c)). I agree with the Commissioner that each of the four criteria identified in cl 97(a) - (d) of the Regulation must be satisfied before registration may be granted given the structure of the provision. Mr Lee no longer holds a certificate of competency and at least on that basis this pathway is not available to him in this review.

Clauses 3(c) and 3(d) of Schedule 2 to the Regulation

1. The pathways under cl 3(c) and 3(d) of Schedule 2 to the Regulation apply only to the professional engineer class of registration Mr Lee seeks. Clause 3(c) provides for alternative qualifications to be considered. Clause 3(d) provides for alternative experience on similar classes buildings to be considered. I accept the submission of the Commissioner that the cl 3(d) pathway is intended to provide an alternative pathway for those who have experience overseas across essentially the same class of buildings that may not be labelled with the same identifying class in other jurisdictions. The test in cl 3(d) is whether the experience involves buildings that are 'similar to' the prescribed classes.
2. Both pathways require a person to have certain knowledge and to have successfully completed a competency assessment (cl 3(c)(ii) and 3(d)(iii)). Mr Lee no longer holds a certificate of competency and at least on that basis these pathways are not available to him in this review.

Clause 3(a) of Schedule 2 to the Regulation

1. The registration pathway provided by cl 3(a) of Schedule 2 to the Regulation is discretionary and involves a test of equivalence: the person's qualifications, experience, knowledge and skills are at least equivalent to the qualifications, experience, knowledge and skills specified for that class, or…(emphasis added)
2. Having already satisfied the qualifications, skills and knowledge requirements, the key issue for this pathway is to determine whether Mr Lee's experience is 'at least equivalent' to the experience specified for the classes of registration he seeks. For those classes of registration, the experience requirement is five years 'recent relevant' practical experience (cl 4 and cl 26 of Schedule 2 to the Regulation). The experience therefore must be at least equivalent to (applying cl 1, cl 4 and cl 26 of Schedule 2 to the Regulation): 1. five years experience within the last 10 years, including at least two years specified work in Australia; 1. in preparation of a regulated design or relevant provision of a compliance declaration for a design practitioner, or 2. in certain prescribed professional engineering work for a professional engineer, 1. involving a class 2, 3, 9a or 9c building.
3. Clause 3(a) prescribes a different test to clause 3(d) described above (at [37]) because cl 3(a) uses a different test in a different form of words - 'is at least equivalent to' as opposed to 'a building similar to'. A provision such as cl 3(a) provides a discretionary pathway for those professionals who do not strictly satisfy particular criteria but are still considered to be capable of performing the relevant work provided they satisfy the equivalence test.
4. The Commissioner contends there is no potential for equivalence between the work performed on the classes of buildings prescribed (classes 2, 3, 9a and 9c) and those classes of building Mr Lee has experience of (such as classes 5, 7, 8, 9b and 11) because the classes of building Mr Lee has worked across are not in fact the prescribed classes of classes 2, 3, 9a and 9c. If this was the correct interpretation of cl 3(a), that subclause would effectively be redundant because the standard pathway of either cl 4 or cl 26 would already be satisfied. The Regulation provides a discretionary pathway in cl 3(a) that must be given work to do.
5. The Commissioner has considered the equivalence of Mr Lee's experience only by direct reference to the classes of buildings already prescribed (that is, if the experience is not in those prescribed classes of classes 2, 3, 9a and 9c it is not equivalent): see the refusal decision reasons exhibit R1 p 37 at [1.17] - [1.18], and the internal review reasons at p 55 of exhibit R1 (and exhibit R1 p 33 at [1.23] for context). In doing so, the Commissioner has asked the wrong question.
6. The Commissioner has not looked behind the classes of buildings to consider the equivalence of the experience, that is, the Commissioner has not compared the actual work performed by Mr Lee, his experience, and considered whether that experience is 'at least equivalent to' work that would be performed in the prescribed classes, a consideration the equivalence test of cl 3(a) of the Schedule 2 to the Regulation requires.
7. In his evidence, Mr Lee explained the specific similar characteristics in the classes of buildings prescribed, namely that class 2, 3, 9a or 9c buildings are buildings where people sleep which may set those specific classes apart from other classes.
8. However, the evidence of Mr Lee and the unchallenged evidence of Mr Lee's highly qualified and knowledgeable referees, is that for the particular type of work undertaken by Mr Lee, his experience, the complexity and requirements of much of the work performed by Mr Lee, on the projects he has been responsible for and issued compliance certificates for, is higher and more technically demanding than the experience required for the prescribed classes of buildings within the relevant registration classes of professional engineer and design practitioner.
9. Further, on the material before the Tribunal, the evidence is that in relation to the relevant type of work performed by Mr Lee, the Building Code of Australia and the Australian Standards are very similar if not the same.
10. In all the circumstances and on the material before the Tribunal I am satisfied Mr Lee's experience is at least equivalent to the experience prescribed as a requirement for registration under cl 3(a) of Schedule 2 to the Regulation in the classes of professional engineer and design practitioner for which Mr Lee seeks registration.
11. Therefore the correct and preferable decision is that Mr Lee be granted registration in the classes of professional engineer and design practitioner for which he seeks registration.

Order 1. The decision under review is set aside. 2. Registration as a professional engineer - mechanical, as a design practitioner - mechanical, and as a design practitioner - fire systems (mechanical smoke) under the Design and Building Professionals Act 2020 is to be granted to the Applicant.

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: 17 June 2024