Marino v Building Commission NSW

Material before the Tribunal

1. Mr Marino filed two written submissions and five affidavits, two from Mr Marino and one each from Mr Marino's mother, aunt and his uncle who is an experienced plumber and licence holder. All those witnesses were cross examined by the Commission at the hearing.
2. The Commission provided a bundle of material filed under s 58 of the Administrative Decisions Review Act 1997 (the ADR Act), as well as written submissions, an affidavit of Ms K Beashel an officer of the Commission and a copy of the relevant Instrument. The Commission also provided written submissions in opening at the hearing.
3. Both parties made oral submissions at the hearing. In order to ensure natural justice, in part as a result of procedural issues discussed below (at [32]), the Tribunal made orders permitting the parties to provide further written submissions after the two-day hearing, which were also before the Tribunal in this review.

Applicant's case

1. Mr Marino contends that the work he has performed, as evidenced by the material he provided and evidence he gave to the Tribunal, demonstrates he has relevant supervised experience across the subject matter required to be issued a licence.

Respondent's case

1. The Commission submits that Mr Marino has not been able to satisfy the requirements in the Instrument because, as a result of the death of his father, he is unable to provide a signed referee statement from his nominated qualified supervisor.
2. The Commission also contends Mr Marino seeks to verify his own experience and has not provided sufficient evidence outside of family members that he was supervised and directed in any work by a relevantly qualified supervisor or that he was an employee of a relevantly licenced supervisor.
3. At the hearing, on short notice to Mr Marino, the Commission made further submissions inviting the Tribunal to vary the decision on the basis Mr Marino is not a fit and proper person to hold a licence and conducted cross examination of witnesses on that basis.

Jurisdiction

1. The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the ADR Act. Section 83B of the HB Act provides that applications may be made to the Tribunal for administrative review of a decision to refuse a licence application. 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 Commission 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]. The standard of proof applying in this review is the balance of probabilities. There is no burden or onus of proof on either party: see Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28]-[34].

Hearing procedure

1. Given the late raising of the issue of fit and proper by the Commission; also that the Commission's decision was the decision under review; and taking into account ss 36 and 38 of the Civil and Administrative Tribunal Act 2013 (the CAT Act), the Tribunal determined the appropriate procedure for the hearing was for the Commission to present its case first, in order for Mr Marino to understand the case he needed to meet.

Correction of parties' citation of caselaw

1. At an early stage of the hearing, in relation to a key issue for consideration, the status of the Instrument, the Tribunal noted the citation of various decisions in the written submissions of Mr Marino, as well as the Commission's opening submission that it did not take issue with the caselaw "quoted and relied upon by the applicant" and cited two further decisions (exhibit R5 at [11]-[13]).
2. All the caselaw cited by the parties was outdated following a change in the legislation and the Tribunal drew the attention of the parties to the decision of the Appeal Panel in Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112 (Kalkan). It is unfortunate the Commission in submissions did not correct the misapprehension of Mr Marino as to the correct caselaw, which should have been within the Commission's knowledge, regarding the effect of s 20(5) of the HB Act in the Commission's first two written submissions, so as not to lead the Tribunal into error.

Applicant's history

1. Since leaving school Mr Marino worked for and with his father, Mr Antonio Marino, in a family plumbing business where his mother Mrs Rita Marino also provided support with bookkeeping and other administration work under a number of structures for over 20 years. Mr Marino successfully completed his apprenticeship in December 2002. His father relevantly held an appropriate supervisor's licence over the relevant time. Mr Antonio Marino died suddenly and unexpectedly in late March 2023. The work of the family business has never been subject to any complaint or regulatory action.
2. In early June 2023 Mr Marino made his first application for a licence under the HB Act. Attached to that application were several documents including a document entitled "referee's statement plumbing, draining & gasfitting work for individual contractor licence (Q)/qualified supervisor certificate" containing, in essence, a reference from Mr Errol Alley, a contractor licence holder that Mr Marino had completed 34 months of relevant experience across all the categories of work required for the relevant licence.
3. In October 2023 in response the Commission requested Mr Marino provide a statement for a licensed plumber who could attest to a minimum of two years post apprentice relevant experience using a particular form, suggesting Mr Antonio Marino.
4. Mr Marino then provided an updated form to the Commission outlining his plumbing experience working for the various entities of his family business.

Referees

1. Mr Marino provided reference letters from: 1. Mr George Habkouck, a real estate agent who attested Mr Marino and his father provided plumbing maintenance to properties he managed between 2012-2016; 2. Mr Joseph Andreacchio, a licensed electrician who knew Mr Antonio Marino for over 55 years and had observed Mr Marino working with his father for various plumbing and other work over a number of properties; 3. Ms Melinda Buono, an administration manager. She had observed Mr Marino and his father performing plumbing work at her commercial premises since 1998; 4. Mr Nicola Morelli, a retired licence holder who has known Mr Marino since 1999. He attested Mr Marino has extensive knowledge of all areas of plumbing, an exceptional work ethic and works well with other trades; and 5. Mr Peter Seamons, a licensed builder who detailed work Mr Marino and his father had performed on residential and commercial properties between 2012-2016. He noted all work performed was compliant and certified and stated Mr Marino is an extremely competent plumber.
2. Mr Marino's uncle, Mr Domenico Marino, a licenced plumber, drainer and gasfitter had his own business since the mid 1980s. Over many years in professional settings he observed Mr Marino working under the supervision of his father performing work to a high standard. Mr Domenic Marino also engaged the services of the family business of Mr Marino and his father for work on his own properties, where Mr Marino worked under the supervision of his father. These engagements and the nature of the supervision were confirmed by the evidence of Mrs Rosie Marino, the wife of Mr Domenico Marino and Mrs Rita Marino, Mr Marino's mother.
3. Given this extensive external evidence, the submission and citation of cases by the Commission regarding verification by self of experience not being appropriate is not relevant to this review because Mr Marino is not seeking to verify his own experience.

Is Mr Marino a fit and proper person to hold a licence?

1. The expression 'fit and proper' has often been considered by this Tribunal and in other jurisdictions. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at p 156-7 the High Court said: The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.
2. Further, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the question was whether the holder of a commercial broadcasting licence under the Broadcasting Act 1942 (Cth) continued to be a "fit and proper person" to be the holder of such a licence. Toohey and Gaudron JJ discussed the meaning of fit and proper person (at p 380): The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
3. Their Honours went on to say (at p 388): The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
4. Mason CJ (with whom Brennan and Deane JJ agreed) held that the concept of fit and proper person should not be construed narrowly and stated at (pp 348-349): Some indication of the breadth of the content of the concept may also be gathered from the fact that it is a purpose of the Act to ensure that commercial broadcasting is conducted in the interest of the public. A commercial broadcasting licence is a valuable privilege which confers on the licensee a capacity to influence public opinion and public values. For this reason, if for no other, a licensee has a responsibility to exercise the power conferred by the licence with due regard to proper standards of conduct and a responsibility not to abuse the privilege it enjoys.
5. It is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake: AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82].
6. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said (at p 76): In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
7. Under the licencing regime established by the HB Act the licence holder not only needs the prescribed skills, qualifications and knowledge to undertake the work, they also need to be a person in whom a homeowner can have confidence. For a plumber this is particularly the case as they will often have access, that may be unsupervised, to a person's home.
8. A significant amount of time during the hearing and in final written submissions focussed on the issue of whether Mr Marino is a fit and proper person to hold a licence. The Commission conducted extensive cross examination of Mr Marino and his family members relevant to that issue.
9. I am not satisfied there are any grounds to justify a finding, as the Commission seeks, that Mr Marino is not a fit and proper person to hold a licence under the HB Act.
10. On the material before the Tribunal, I am not satisfied anything untoward occurred between late March 2023 when Mr Marino's father died and August 2023 when his plumbing business engaged a relevant supervisor. Mr Marino's evidence, which I accept, is that he relied on friends and fellow contractors to supervise work where appropriate in order to meet the immediate needs of clients during a tumultuous time of grief for his family. I note a qualified supervisor joined the business in August 2023, which was some time before the Commission responded in October 2023 to Mr Marino's early June 2023 application.
11. I find Mr Marino to be a witness of credit. He answered questions openly and candidly. He emphasised his skills were in plumbing, not paperwork and that he trusted those with expertise, such as his accountant in relation to business structures. He understood the need for work to occur under appropriate supervision at all times and maintained that always occurred in his family business.
12. Further, consistent with all the witnesses and referee's evidence, I am satisfied Mr Marino performed plumbing and other relevant work under the supervision of his father for over two decades until his father's untimely death in March 2023. On the material before the Tribunal, I am also not satisfied Mr Marino performed any unlicenced or unsupervised work at any time.
13. Therefore, in all the circumstances, I find Mr Marino to be a fit and proper person for the purposes of the HB Act.
14. The Commission asked the Tribunal to consider making serious character findings against Mr Marino, on the basis of his own documents, with no supporting evidence or investigation and at short notice to Mr Marino. Moreover the written submissions of the Commission filed prior to the hearing only addressed statutory interpretation issues, not the issue of fit and proper. In my view, those are not the actions of a model litigant under Premier's Memorandum M2016-03, Model Litigant Policy for Civil Litigation and Guiding Principles for Civil Claims for Child Abuse in the context of Tribunal proceedings.

What, if any, experience does the Instrument prescribe?

1. The effect of s 20(5) of the HB Act is that the Tribunal cannot look beyond an instrument in determining qualification and experience requirements for licences under the HB Act: see Kalkan. It follows the first step the Tribunal needs to perform is to determine what the relevant instrument prescribes before it can assess whether an applicant has demonstrated the relevant experience.
2. As set out above (at [12]), the Instrument states it prescribes: …the possession of qualifications or the passing of examinations or practical tests, or both, and the possession of experience of such a kind and for such a period, as specified in the applicable Tables in the Instrument to be necessary for an applicant for the issue of a supervisor or tradesperson certificate and contractor licence in the following categories…[emphasis added]
3. However, the Instrument does not make any reference to columns and rows in the tables, or explain the relevance of the tables to the Instrument and therefore does not provide any further direction as to how any prescription is to be applied. This can be contrasted with an instrument for building contractor licences made under the HB Act on 15 December 2022, which relevantly provides: 1. pursuant to section 20(2) of the Act, the qualifications and experience or additional standards or other requirements required to be held or met by the applicant for an endorsed contractor license; and 2. pursuant to section 25(2) of the Act, the qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a qualified supervisor or tradesperson certificate to be as follows: … (i) the possession of qualifications or the passing of examinations specified in Column 1 of Table A to Schedule 1; and (ii) the possession of experience specified in Column 2 of Table A opposite the relevant matter in Column 1;…
4. There is also no guidance provided in the Instrument as to what "superseded qualifications", a term not defined in either the HB Act or the Instrument, might be.
5. Given the lack of guidance and specificity within the Instrument, I cannot be satisfied the Instrument prescribes any particular experience for Mr Marino to satisfy in order to be issued with the licence he seeks, for the qualifications he holds.
6. In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151 Mason and Wilson JJ commented (at p 320): The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction. The rules, as D. C. Pearce says in Statutory Interpretation, p. 14, are no more than rules of common sense, designed to achieve this object.
7. It is not appropriate to take a more expansive approach to interpretation of the Instrument in this review, given the Instrument is to be applied inflexibly by operation of s 20(5) of the HB Act. The requirements of the Instrument must be absolutely clear if there can be no departure from them.
8. Therefore the correct and preferable decision is to set aside the decision under review and issue Mr Marino with a contractor licence for plumbing and related work under the HB Act because there are no prescribed experience requirements under the Instrument for Mr Marino to satisfy.

Alternative consideration assuming Instrument prescribes requirements applying to Mr Marino

1. If I am wrong in my application of statutory interpretation to the Instrument, I will also consider an alternative interpretation of the Instrument that assumes Column 3 of Table 4 prescribes relevant experience for Mr Marino to satisfy given his qualifications were obtained over two decades ago and could be considered "superseded".
2. In that case the Tribunal needs to be satisfied Mr Marino has: 1. at least six years' general Plumbing, Draining, Gas fitting and LP Gas fitting experience and two years' post apprenticeship general Plumbing, Draining, Gas fitting and LP Gas fitting experience. 2. Such experience is to be: 3. experience lawfully gained (whether during or after completion of an Apprenticeship); 4. in Australia; 5. as a bona fide employee; 6. who has been paid in accordance with an award or enterprise agreement; 7. and all of the above is verified in the "Relevant Application Form", in this case on the relevant referee's statement form for a superseded qualification.

Further statutory interpretation issue of the Instrument raised by Applicant

1. Mr Marino seeks to raise issues with the drafting of the Instrument including seeking to differentiate the drafting within the Instrument because of inconsistencies in the capitalisation of the word "Experience" as opposed to "experience" relying on reference to commentary about subordinate legislation.
2. The Instrument is not subordinate legislation and is instead made under an Act. The Instrument is therefore an instrument within the definition in s 3 of the Interpretation Act 1987 (the Interpretation Act). Consequently s 6 of the Interpretation Act is relevant: 6 Definitions to be read in context Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except in so far as the context or subject-matter otherwise indicates or requires.
3. Therefore the definition of "experience" is intended to apply to the word "experience" wherever it applies in the Instrument, regardless of capitalisation.

Has Mr Marino demonstrated relevant experience in accordance with the assumed requirements of the Instrument?

Range and supervision of experience

1. On the material before the Tribunal, particularly on the basis of the consistent evidence of the letters of reference and witnesses, I am satisfied Mr Marino has relevant experience across all the prescribed categories necessary for the licence he seeks, namely sanitary plumbing, water plumbing, draining, gasfitting, liquified petroleum gasfitting, and advanced liquified petroleum gasfitting.
2. On the basis of the material before the Tribunal I am also satisfied Mr Marino has demonstrated he has the relevant experience to be granted a licence and that he was supervised by his father, an appropriately qualified person while he obtained that experience.

Was Mr Marino an employee and was he appropriately paid?

1. On the material before the Tribunal, particularly on the consistent evidence of Mr Marino and Mrs Rita Marino, I am satisfied Mr Marino was an employee of his family business and he was appropriately paid. I note over a period of 25 years and under several business structures, many different award provisions would have applied to Mr Marino's employment by his family business and I am satisfied on what was before me Mr Marino was paid appropriate lawful wages for his employment in Australia during the period he was subject to his father's supervision.

Can Mr Marino's experience only be verified by Mr Marino's deceased father?

1. The next issue for consideration is whether anything other than a form signed by the relevant supervisor can demonstrate relevant supervised experience under the Instrument.
2. If the Instrument prescribed the relevant experience could only be verified by providing the signature of the person who conducted the supervision, then Mr Marino would have no avenue to prove supervision following the death of his father by operation of s 20(5) of the HB Act. The requirement for the actual supervisor to sign off on the relevant experience is contained within a form referenced by the Instrument.
3. The Commission's consistent position as evidenced by its internal response that Mr Marino "nothing can do about applicants experience, should have listened to his father and got his licence previously" (p 305 exhibit R1) is that immediately Mr Marino could not provide his father's signature, Mr Marino could never satisfy the Commission as to his supervised experience.
4. A further relevant provision of the Interpretation Act is s 80: 80 Compliance with forms (1) If a form is prescribed by, or approved under, an Act or statutory rule, strict compliance with the form is not necessary but substantial compliance is sufficient. (2) If a form prescribed by, or approved under, an Act or instrument requires the form to be completed in a specified manner, or requires specified information to be included in, attached to or furnished with the form, the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to or furnished with it, that information.
5. That provision should be considered along with the requirements of s 12(4) of the Licensing and Registration Uniform Procedures Act 2002 referenced in the definition of "Relevant Application Form" in the Instrument that provides: (4) If made in writing, an application - (a) must contain such information as is required by the relevant application form or as is otherwise required by or under the relevant licensing legislation, and (b) must be signed - (i) by the applicant, and (ii) in the case of an application for the transfer of a licence, by the proposed transferee, and (c) must be lodged with, or sent to, the relevant licensing authority.
6. Given the above two statutory provisions, I do not think it significant that the title of the form Mr Marino provided was incorrect, as Mr Marino submitted, the Commission never provided the correctly titled form to him. It is the content of a form that matters and the evidence supplied by Mr Marino is far more extensive than a two page form.
7. I am satisfied Mr Marino provided a form in writing, signed and then lodged with the Commission with sufficient information to demonstrate his relevant supervised experience; and, that he substantially complied with the appropriate form, and that substantial compliance in this case is sufficient: see ALDI Foods Pty Ltd v Shop Distributive and Allied Employees Association (2018) 278 IR 261 at [24]-[25], Fittler v New South Wales Electoral Commission (No. 2) [2008] NSWADT 116 at [90], MZAIC v Minister for Immigration and Border Protection (2016) 237 FCR 156 at [50]-[51], Roads And Maritime Services v Desane Properties Pty Ltd [2018] NSWCA 196 at [225]-[232].
8. Therefore, I am satisfied Mr Marino has demonstrated the relevant supervised experience required by the Instrument to be issued a licence.

Conclusion

1. On two separate bases I have found Mr Marino satisfies the requirements to be granted a licence. The first on the basis the Instrument does not prescribe requirements with sufficient certainty for Mr Marino to satisfy. The second, in the alternative in the event I am found to be wrong as to statutory interpretation, on the basis that Mr Marino has demonstrated he has the relevant supervised experience in the relevant categories to be issued the licence he seeks, having substantially complied with the relevant form.
2. Therefore, the correct and preferable decision is that the decision under review be set aside and instead Mr Marino be granted the contractor licence he applied for under the HB Act.
3. Mr Marino has also made an application for the costs of the proceedings. I have made provision for submissions in relation to costs in my orders.

Orders 1. The decision under review is set aside. 2. The Applicant is to be granted the relevant plumbing, draining, gas fitting and liquid petroleum gas fitting contractor licence under the Home Building Act 1989. 3. The Respondent is to provide to the Applicant and the Tribunal, any submissions and documents they intend to rely on in relation to the costs application on or before 4pm on 16 July 2024. 4. The Applicant is to provide to the Respondent and the Tribunal, any submissions and documents they intend to rely on in response to the costs application by 4pm on 23 July 2024. 5. Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013, parties are to include in their written submissions whether a hearing in relation to the costs application can be dispensed with.

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

Amendments 10 July 2024 - Applicant's representative name Di Lizia F G 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 July 2024