Lovich v Commissioner for Fair Trading

NCAT Appeal Panel|2015-05-11

reason for decision

Mr Wayne Lovich has worked in the building industry in Australia and New Zealand for close to 50 years. In January 2014, he lodged an application for a contractor licence in the category of "general building work" under the Home Building Act 1989 (NSW) ("the Act"). In a decision made in July 2014, a delegate of the Commissioner for Fair Trading ("the Commissioner") refused to grant that application on the ground that Mr Lovich had failed to demonstrate that he satisfied the "experience requirement", namely, "at least two years relevant experience in a wide range of building construction work" ("the original decision"). That requirement was contained in a disallowable instrument, entitled "Qualification Requirements for an Endorsed Contractor Licence or Supervisor Certificate for General Building Work" made by the Commissioner on 3 July 2013 ("the 2013 Instrument").
Mr Lovich applied to the New South Wales Civil and Administrative Tribunal ("NCAT") for review of the original decision. In a decision made on 17 October 2014, the Tribunal affirmed the original decision. Mr Lovich now appeals against that decision.
At hearing Mr Lovich relied on two grounds of appeal : 1. First, as a consequence of the repeal of the Home Building Regulation 2004 ("the 2004 Regulation") on 15 January 2015, the 2013 Instrument which was made under that Regulation no longer applied to his application for a contractor licence 2. Second, in the alternative, that the Tribunal misapplied the 2013 Instrument by, in effect, imposing a mandatory requirement that he demonstrate experience in "new building work".
In support of the first ground, Mr Lovich relied on the decision in Kassem v Commissioner of Fair Trading [2015] NSWCATOD 29 which had been handed down shortly before the hearing of this appeal. At their request we gave the parties leave to make written submissions about the correctness or otherwise of Kassem. At a directions hearing held on 11 September 2015, Mr Lovich advised that following the decision of the Appeal Panel (differently constituted) in Commissioner of Fair Trading, Office of Finance and Services, NSW Fair Trading v Kassem [2015] NSWCATAP 173 to overturn Kassem, he had abandoned the first ground of appeal.

Statutory framework

Unless otherwise stated in these Reasons all references to "the Act" are to the version of the Act at the time the decision under appeal was made, that is, the version in place immediately prior to the introduction of the Home Building Amendment Act 2014 (NSW) in 15 January 2015.
Under the Act, the respondent - the Commissioner (previously the Director - General) - is responsible for the licensing of persons who "do" or "supervise" "home building work". The Director-General may grant contractor licences for the purposes of the Act (s 19(1) of the Act). 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 (s 20(2) of the Act)). The Director-General must refuse an application for a contractor licence if not satisfied that any such requirement would be met were the contractor licence to be issued (s 20(3) of the Act).
Regulation 28 of the 2004 Regulation provides: 28 Additional requirements for obtaining certificates (1) Before a certificate is issued, the Director-General must be satisfied that the applicant: … (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, …
Made under the 2004 Regulation, the 2013 Instrument relevantly states that the Commissioner considers the possession of experience specified in the Instrument to be necessary for an applicant for the issue of a Licence. The experience specified in the Instrument, applicable to the applicant, was "at least two years' relevant industry experience in a wide range of building construction work" ("the experience requirement").

The decision under appeal

The Tribunal found that Mr Lovich had not demonstrated that he satisfied the experience requirement. In oral reasons given on 17 October 2014 the Tribunal stated: The point Mr Lovich sought to make … was that whilst you may not have been engaged in new building work you have nonetheless experienced in undertaking a range of renovations and repairs that mean you necessarily have an understanding of the structural requirements that are applicable to new building work. It is however clear that you do not have experience in actually undertaking new building work, in contracting for new building work, applying for DA's or in managing the progress of such works from start to go over a period of many months. In my view you cannot demonstrate two years' experience in a wide range of building work that is required by the standard. …. I cannot accept that somebody who has no experience in managing the progress of a new construction from whoa to go, doing the paperwork for a new construction from whoa to go, dealing with DA application in everything that is associated from whoa to go can demonstrate a wide range of building construction work such as to entitle them to a full contractor licence…

Submissions

Mr Lovich submits that the Tribunal erred by construing the 2013 Instrument to, in effect, mandate that a person applying for a contractor licence under the Act must demonstrate experience in new building work. He argues that the Tribunal gave the phrase "a wide range of building construction work", a narrow meaning which he asserts was inconsistent with the approach taken by the Tribunal in Tange v NSW Fair Trading [2013] NSWADT 201. In that decision the Tribunal held at [57] that the applicant satisfied the "experience requirement" for a contractor licence notwithstanding that he had not "constructed a house from start to finish".
The Commissioner disagrees. He contends that the Tribunal was entitled to take into account Mr Lovich's lack of experience in dealing with matters relating to the administration of building contracts and involvement in new building work, citing in support, Locking v Department of Finance and Services [2013] NSWADT 23 at [19].

Consideration

The phrase "a wide range of building construction work" is not defined in the Act, the 2004 Regulations or the 2013 Instrument. In interpreting that phrase the Tribunal was required to take into account the subject matter, scope or purpose of the Instrument and the relevant legislation.
The decision the subject of the appeal was given orally and ex tempore and must be read with that in mind. In our opinion, a fair reading of the decision does not support the proposition that the Tribunal interpreted the Instrument as in effect mandating that the relevant construction industry experience must include the construction of new buildings. We think that this misinterprets the gravamen of the decision.
In our view, the concerns that the Member expressed were reasonable and were not related exclusively to new buildings as such but construction work generally. The adjective "new" was in some respects superfluous. Interpreting the decision in its context, we think that the Member meant to convey that building contractors must have relevant experience that included not only the exercise of basic construction skills but the relevant administrative skills required in the construction industry.
In deciding whether Mr Lovich had demonstrated experience in "a wide range of building construction work" the Tribunal was required to have regard to the nature and type of construction work undertaken by Mr Lovich. Mr Lovich's experience, or lack of it, in "new" building work was not an irrelevant or impermissible consideration to the question the Tribunal was required to answer, namely whether he was able to demonstrate at least two years relevant experience in a wide range of building construction work. There are many types of building work of which "new" building work is but one. Self-evidently this type of building work represents a significant part of the construction industry. The Tribunal was entitled to have regard to Mr Lovich's experience in this area.
The argument made by Mr Lovich is in effect an attack on the weight given by the Tribunal to his lack of experience in "new" building work. No error of law is demonstrated.

Leave to appeal on other grounds

Mr Lovich seeks leave to appeal on "any other grounds" under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"). In addition he seeks permission to adduce "fresh evidence" under s 80(3)(b) in the form of affidavits prepared by himself and Mr Colin Metz, Mr Lovich's referee in his initiating application for a contractor licence.
We understand Mr Lovich to contend that the matter ought to be reheard and "fresh evidence" admitted because he was unrepresented in the original proceedings and was unaware that the evidence he relied on i in relation to his New Zealand building experience was irrelevant to the issue of whether he had satisfied the experience requirement. Further, he contends that had he been legally represented in making his initiating application and in the proceedings before the Tribunal, he would have been better able to put his case.
The Commissioner opposes leave to appeal being granted on "any other grounds" and the admission of "fresh evidence".
None of the circumstances identified in Collins v Urban [2014] NSWCATAP 17 at [84] that might warrant the granting of leave to appeal apply in this appeal. This matter does not raise an issue of principle; a question of public importance or matters of administration or policy which might have general application. Nor does it involve an injustice which is reasonably clear or a factual error that was unreasonably arrived at and clearly mistaken. Neither did the Tribunal go about the fact-finding process in such an unorthodox manner nor in such a way that it was likely to produce an unfair result.
Given our decision that the Tribunal did not err in its approach to the application of the experience requirement, there would be no useful purpose in considering the matter afresh, even if the purported fresh evidence were to be to be admitted.
The application to appeal on other grounds is refused.

Orders 1. Leave to appeal is refused. 2. The appeal is dismissed.

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: 24 September 2015

Home Building Amendment Act 2014(NSW)

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (3)

Cases Cited (3)