Ngo v Commissioner for Fair Trading, Department of Finance, Services and Innovation

NCAT Occupational|2019-04-26|Before: Dr J

REASONS FOR DECISION

Mr Ngo applied for a review of a decision to refuse to grant him a supervisor certificate under the Home Building Act 1989. Mr Ngo is a civil engineer who has been working in the building industry for thirty years, primarily overseas, and who has been project manager or project director for a number of multi-million dollar construction projects.
The respondent ("the Commissioner") refused Mr Ngo's application because Mr Ngo did not satisfy the requirements of a policy which is widely known as "the Instrument." The Instrument requires an applicant to demonstrate that he or she has gained two years relevant industry experience in a wide range of building construction work. It requires this experience to be gained as, amongst other things, an employee of the holder of a contractor licence issued in New South Wales whilst being supervised by the holder of that licence.
In the circumstances of this case, I have found that rigid adherence to the Instrument produces an unjust decision. I am satisfied that Mr Ngo has had experience of such a kind and for such a period as would enable him to do, or to supervise, the work for which the supervisor certificate is required.
Accordingly, I have decided to set aside the Commissioner's decision and, in substitution for that decision, have decided that Mr Ngo should be granted a supervisor certificate.

Legal and policy framework

The Commissioner is empowered to grant supervisor certificates by s 24(1)(b) of the Home Building Act.
The authority conferred by a supervisor certificate is set out in s 27(1) of the Home Building Act. That subsection provides: "(1) A supervisor certificate authorises its holder to do (and to supervise) the following: (a) any residential building work that is described in the certificate when it is issued (being work of a category or categories prescribed by the regulations), (b) any specialist work that is described in the certificate when it is issued (being work of a category or categories prescribed by the regulations)."
The Commissioner must refuse an application for a supervisor certificate if, relevantly, he or she is not satisfied as to the matters of which he or she is required to be satisfied by sections 33B and 33D of the Home Building Act (Home Building Act, s 25(1)(a1)).
In Mr Ngo's case, the Commissioner was satisfied of the matters set out in s 33B. The Commissioner was also satisfied (by the time of the hearing) that Mr Ngo had such qualifications or had passed such examinations or practical tests, or both, as was necessary to enable him to do, or to supervise, the work for which the certificate is required, within s 33D(1)(a).
However, the Commissioner considered that Mr Ngo had not had experience of such a kind and for such a period as would enable him to do, or to supervise, the work for which the certificate is required, within s 33D(1)(b) of the Home Building Act. In these circumstances, there was no need for the Commissioner to address s 33D(1)(c) of the Home Building Act, which requires the Commissioner to be satisfied, before issuing a supervisor certificate, that the applicant is capable of doing or supervising work for which the certificate is required.
In determining that Mr Ngo did not have the requisite experience for the purposes of s 33D(1)(b), the Commissioner relied upon a document headed "Instrument - Qualification Requirements for an endorsed contractor licence or supervisor certificate for general building work" dated 31 March 2017 ("the Instrument"). This sets out the kind of experience and the period of experience which the Commissioner generally considers would enable an applicant to do, or to supervise, the work for which a supervisor certificate is required.
The Instrument relevantly provided that the Commissioner determined that "pursuant to s 33D(1)(b) of the Act, the possession of experience of such a kind and for such a period, necessary for an applicant for the issue of a Licence or Certificate to be as follows: … the possession of experience specified in Column 2 of Table A opposite the relevant matter in Column 1."
Mr Ngo had the qualifications set out in column 1 of clause 3 in Table A. The experience the Instrument required him to have is set out in column 2 of clause 3, which relevantly provided as follows: "At least two years' relevant industry Experience in a wide range of building construction work, where the majority of that Experience was obtained within 10 years of the date on which the application is made."
The Instrument defined "Experience" as follows: "'Experience' means experience gained by the applicant as: an employee of; or a holder of a supervisor certificate and as a nominated supervisor for the contractor licence held by; or a holder of an endorsed contractor licence contracted to; or a holder of a supervisor certificate in the capacity of a nominated supervisor for a contractor licence held by an individual, partnership or corporation contracted to; or the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained ("the Work"), where the applicant, during the relevant period, was: supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the Work, and this is verified in the Relevant Application Form; and received Remuneration in accordance with law for the Work which the applicant carried out; or a holder of a supervisor certificate in the category of full general building work or an endorsed contractor licence in the category of full general building work, held continuously for a minimum period of 2 years within 10 years from the date the application is made."
The term "Relevant Application Form" is defined in the Instrument to mean "the relevant application form for the Licence or Certificate that is being applied for, which is published on the NSW Fair Trading website, including the required attachments to that form." The relevant form required the applicant to provide a referee's statement from a person who held a qualified supervisor certificate or individual contractor licence in the category of General Work Builder issued by NSW Fair Trading during the time of the stated experience and who supervised and directed the applicant carrying out the work the subject of the referee statement.
As the Commissioner accepted, the Instrument is not binding on the Tribunal: Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 at [39]; Cooper v Commissioner for Fair Trading [2017] NSWCATAD 242 at [9]; Briggs v Commissioner for Fair Trading Department of Finance, Services and Innovation [2018] NSWCATOD 175 at [12]; Carrigan v NSW Fair Trading [2018] NSWCATOD 60 at [30]; Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 at [31].
The Instrument is not an "instrument" in the sense of being delegated legislation made under an Act, but is rather a policy (Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 at [38]; Carrigan v NSW Fair Trading [2018] NSWCATOD 60 at [32]; Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 at [31]).
The Tribunal may have regard to a policy such as the Instrument (not being "Government policy" -- that is, a policy adopted by the Cabinet, a Minister or the Premier), "except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case" (Administrative Decisions Review Act 1997, s 64(4); Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 at [39]; Carrigan v NSW Fair Trading [2018] NSWCATOD 60 at [32]; Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 at [32]).
It is to be noted that the Tribunal is not required by s 64(4) of the Administrative Decisions Review Act to have regard to a policy such as the Instrument (cf Briggs v Commissioner for Fair Trading Department of Finance, Services and Innovation [2018] NSWCATOD 175 at [14]). It is permitted to do so if the policy is not contrary to Government policy and if doing so does not produce an unjust decision. Generally, it is desirable for the Tribunal to have regard to a lawful policy, and to apply it, if it does not produce an unjust decision, so as to promote consistency in decision-making (see Re Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640). It was not argued in this case that the Instrument is not a lawful policy.

Material on which parties relied

Mr Ngo provided documentary evidence about his work history including references from various colleagues and former colleagues (discussed below) and photographs of the completed developments he had worked on. He also provided a resume and a project brief for the Palm Heights project. He included a statement made by him addressing some of the concerns of NSW Fair Trading, a further statement to demonstrate his understanding of the Building Code of Australia and the role and responsibility of a supervisor and principal certifying authority and a personal mission statement.
The Commissioner filed documents under s 58 of the Administrative Decisions Review Act which included documents provided by Mr Ngo, such as his application, his academic record and degrees, references, his application for internal review and documents provided in support, and the original decision and internal review decision.

Should the Tribunal apply the Instrument in the circumstances of this case?

The main dispute between the parties concerned the question of whether Mr Ngo has had experience of such a kind and for such a period as would enable him to do, or to supervise, the work for which the qualified supervisor certificate is required, within s 33D(1)(b) of the Home Building Act. A subsidiary issue (the issue on which the Commissioner focused) is whether the Tribunal should find that Mr Ngo does not have the requisite experience because he does not satisfy the requirements of the Instrument.
The Commissioner's legal representative, Ms Kumar, said at the hearing that the Commissioner was prepared to accept the truth of the matters put in evidence by Mr Ngo. That is, she did not challenge Mr Ngo's account of his work history. However, she said that this experience was not sufficient for the grant of a supervisor certificate for the following reasons.
Ms Kumar submitted that the Instrument was a sound policy which should guide the Tribunal. As indicated above, the Instrument requires an applicant to demonstrate at least two years' relevant industry experience (as defined) in a wide range of building construction work where the majority of the experience was obtained within ten years of the application. Ms Kumar submitted that those already licensed in the industry have been assessed on the basis of the satisfying the minimum requirements set out in the Instrument and that a departure from these requirements would not be in the public interest.
Ms Kumar submitted that Mr Ngo did not satisfy the experience requirement under the Instrument because the majority of his experience was obtained whilst employed in high rise or mixed development builds undertaken in Vietnam and much of it was obtained more than ten years ago. Ms Kumar submitted that the duties Mr Ngo carried out related mainly to architectural and engineering works. Further, none of the references provided by Mr Ngo indicate that his referees are licensed builders or holders of any authorities under the Home Building Act. The Commissioner's position is that they are therefore not acceptable as referees and that the referees relied upon should be licensed under the Home Building Act. Ms Kumar also submitted that some of the references were well beyond the ten-year period acceptable under the Instrument.
The Commissioner submitted, in summary, that the work carried out by Mr Ngo was related to his capacity as a qualified engineer and project manager on large scale high-rise development. It was submitted that none of those roles would be considered to include the duties or roles and responsibilities of a residential builder under the Home Building Act.
The Commissioner's submission that "a departure from the requirements set out in the Instrument would not be in the public interest" is, on its face, inconsistent with the principle that an administrator must not apply a policy inflexibly. There was nothing in the Commissioner's submissions to indicate that the Commissioner would be prepared to depart from the policy in an appropriate case. On the contrary, the Commissioner said that it would not be in the public interest to set a "precedent" where applicants may satisfy experience requirements without demonstrating verifiable references produced by licensed persons who have closely and consistently supervised an applicant's work. The repeated use of the word "requirements" in the original refusal decision, the internal review decision and the Commissioner's written submissions suggest that the Commissioner is applying the Instrument as if it were a law.
The internal reviewer "determined that Mr Ngo has decided to exempt himself from following the guidance of the Instrument in favour of submitting documents that he considers would satisfy the issue of a building authority in NSW." The internal review commented: "It is reasonable to expect that if an individual chooses to apply in NSW for an authority in accordance with the Act that the individual's application is assessed in accordance with the guidelines as outlined in the Instrument. It is imperative that Fair Trading follows the direction provided by the Instrument as it supports Fair trading to make a sensible, thorough and equitable determination for all applicants who apply for a building authority in NSW."
There are no "experience requirements" in the Act as such; the "requirements" of the Instrument (more aptly, guidelines) are part of a policy designed to help the Commissioner, and the Commissioner's delegates, determine whether a person has the experience which would enable him or her to do, or to supervise, the work for which the qualified supervisor certificate is required. It is not "imperative" that Fair Trading follows the "direction provided by the Instrument" in all cases; rather, whilst the Instrument may provide useful guidance, it is unlawful to apply the Instrument inflexibly, as if it had the status of a law.
I commented in Whitehouse (at [57]) that: "…the Tribunal is not entitled to apply the Instrument inflexibly (that is, as a fixed, determinative rule). This would be an error of law (see NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; 77 ALJR 1263; [2003] HCA 35, Gleeson CJ at [24]; Adultshop.Com Ltd v Members of the Classification Review Board [2007] FCA 1871 at [110] and authorities there cited; King v Minister for Immigration and Border Protection [2014] FCA 766 at [22]). Further, the legislature has provided for the way in which the Tribunal is to deal with policy in s 64 of the Administrative Decisions Review Act, and the Tribunal is bound by those provisions."
As McCallum J observed in Davison v Commissioner for Corrective Services [2011] NSWSC 699 at [36], a discretionary power "must be exercised on each occasion in the light of the circumstances at that time" (citing R v Secretary of State for the Home Department; Ex parte Venables [1998] AC 407 at 496-497 and ID, PF and DV v Director General, Dept of Juvenile Justice [2008] NSWSC 966; (2008) 73 NSWLR 158 at [284]). The Instrument may guide the exercise of the statutory power, but the statutory question should remain the focus.
The Commissioner relied upon White v Department of Fair Trading [2018] NSWCATAD 231 to support the submission that the Tribunal should apply the Instrument in this case. In White's case (at [16]), the Tribunal cited Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 at [39], where I referred to s 64(4) of the Administrative Decisions Review Act. As indicated above, s 64(4) provides that the Tribunal may have regard to a policy (such as the Instrument) "except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case." The Tribunal in White commented (at [17]) that it was "not satisfied that the policy for a referee to be able to verify building experience in accordance with the relevant codes and standards is contrary to law or the policy or produces an unjust decision in the circumstances of this case."
It was not argued in these proceedings that the policy that a referee verify building experience is contrary to law. In the circumstances of this case, however, I consider that the policy produces an unjust decision. That is because Mr Ngo spent the last ten years working overseas, where he was (unsurprisingly) not supervised by any person holding a qualified supervisor certificate or individual contractor licence issued by NSW Fair Trading. The question I have to decide under s 33D(1)(b) of the Home Building Act is whether Mr Ngo "has had experience of such a kind and for such a period as the [Tribunal] considers would enable the applicant to do, or to supervise, the work for which the certificate is required." Whilst references from persons holding a supervisor certificate or licence issued under the Home Building Act would certainly assist me to reach that state of satisfaction, I consider that, where an individual has been working overseas, it is appropriate for the Tribunal to consider other relevant evidence to determine whether this requirement is met.
The Commissioner referred to Zada v Director-General, Department of Finance & Services, NSW Fair Trading [2014] NSWCATOD 16 at [36]-[37] where Senior Member Frost made some comments about the meaning of "employee" in the Instrument. The Senior Member said that, in distinguishing an employee from an independent contractor, supervision and direction are often relevant to the enquiry.
The purpose of the Commissioner's reference to this passage is not explained in the Commissioner's written submissions. It could possibly be to reinforce the Commissioner's contentions that it is necessary for a worker to be closely supervised by the holder of an authority under the Home Building Act to reach the requisite level of "experience" (as defined in the Instrument), and that Mr Ngo's referees cannot demonstrate the type of supervision required.
It greatly assists the Tribunal, in determining whether an applicant has sufficient experience to do or supervise the relevant work, to have evidence from persons who have closely supervised the applicant. However, strictly applying the policy in the Instrument in this case in respect to references from supervisors would produce an unjust decision (as the Tribunal found it would in similar circumstances in Carrigan v NSW Fair Trading [2018] NSWCATOD 60 at [35]). That is because, due to his extensive experience and seniority, Mr Ngo has effectively been working without close supervision overseas. The Tribunal has considered references from people who have supervised the applicant when determining whether it is satisfied that he has the requisite experience for s 33D(1)(b), even though the strict requirements of the Instrument in respect to supervision have not been met.
The Commissioner also relied upon Locking v Department of Finance and Services [2013] NSWADT 239 to support the submission that the Tribunal should apply the Instrument. In that case, Deputy President Hennessy (as she then was) commented (at [17]) that the applicant's experience in carpentry and joinery work was not the equivalent of "a wide range of building construction work" as required by the Instrument. She observed (at [18]) that there were many gaps in the applicant's trade supervisory experience and therefore his understanding of certain trades.
It should be noted that Locking was decided before the Home Building Amendment Act 2014 (NSW), which inserted the current s 33D into the Home Building Act. At the time Locking was decided, the Tribunal had accepted the Commissioner's position, in a number of decisions, that s 20(2) of the Home Building Act, read with cl 26(1) and 28(1) of the Home Building Regulation 2004 (now repealed), provided authority for the making of an instrument in similar terms to the Instrument (see discussion in Whitehouse at [32] to [34]). Locking is nevertheless relevant in that it explains what is meant by "a wide range of building construction work" for the purposes of this part of the policy.
I consider that it is appropriate to apply the policy that an applicant have experience (in the ordinary sense of the word) in "a wide range of building construction work" in the circumstances of this case. A broad range of experience is necessary for an applicant to be able to do, or to supervise, the work for which a supervisor certificate is required (within s 33D(1)(b)). This is, in Mr Ngo's case, "residential building work" (Home Building Act, s 27(1)(a)). "Residential building work" is defined in cl 2(1) of Sch 1 to the Home Building Act to mean: "any work involved in, or involved in co-ordinating or supervising any work involved in: (a) the construction of a dwelling, or (b) the making of alterations or additions to a dwelling, or (c) the repairing, renovation, decoration or protective treatment of a dwelling."
Another issue is whether I should depart from the policy that an applicant demonstrate "Experience" as defined in the Instrument. Mr Ngo does not have such experience (within paragraphs (b) to (e) of the definition of "Experience") because he has not held an authority under the Home Building Act. Nor does he have experience within paragraph (a) of the definition of "Experience" because he has not gained experience within the last ten years as an employee of the holder of a contractor licence issued in New South Wales. This is explicable, at least in part, in that his experience has mainly been obtained overseas.
The policy that an applicant demonstrate "Experience" (as defined) would produce an unjust decision in the circumstances of this case, given Mr Ngo's extensive experience outside of New South Wales (see Jones v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 142 ("Jones") at [61]). I decline to apply it.
The Instrument also requires an applicant to demonstrate that the majority of his or her two years of relevant industry experience was obtained within ten years of the date of the application. Whilst an applicant's most recent experience will often be of the greatest relevance, it is not always just to require the majority of an applicant's experience to be obtained in the last ten years, particularly where an applicant has an atypical work history, as in this case. Here, Mr Ngo gained some relevant experience in New South Wales during and immediately following the completion of his degree (more than ten years ago), then took up a range of different employment opportunities overseas. I consider that the fairest approach is to consider his work experience as a whole.

Would Mr Ngo's experience enable him to do or supervise the relevant work?

As indicated above, the Commissioner does not dispute that Mr Ngo performed the work referred to in his resume and summarised above. References are therefore not needed to confirm this, but are useful in terms of what they can say about the nature of Mr Ngo's experience and his capacity to do or supervise residential building work.

Experience in New South Wales between 1986 and 1994

The work experience Mr Ngo gained at university is significant, because he was working in New South Wales and gained familiarity with various tasks on building sites during this time. His evidence, which I accept, is that this experience included setting out brickwork, checking levels and setting out formwork for the builder. His work as a civil design engineer after graduation was not direct building experience of the kind required by the Instrument, but it gave him exposure to the requirements for large scale building projects in this State.
Some of this experience was gained over thirty years ago, and some between twenty-five and thirty years ago. I have taken its lack of recency into account. However, it provided a foundation for Mr Ngo's understanding of the construction industry and for his subsequent work in that industry.

Ocean Place Development - 1995 to 2003

Mr Ngo worked full-time on site on the Ocean Place development in Vietnam as the Client's Project Engineer and Architect's site representative during the construction of the Sheraton Hotel and Towers in Vietnam from 1995 to 2003. The building comprised a hotel and serviced apartments.
Mr Ngo described his role as project engineer as being to oversee the project to make sure everything was done as per the drawings and specifications. He said he was required to be on the job site checking all the works by the contractor. He signed off on an inspection form on a daily basis. He said that his role was similar to that of a principal certifying authority in New South Wales. When asked more about what he did in cross examination, he said that, for example, if he was required to check reinforcement, he would check the delivery document of the premixed concrete to make sure it was the right grade before the pour was done. I accept Mr Ngo's evidence about his role.
Mr Ngo provided a number of references about his work on the Ocean Place development between 1995 and 2003.
Ms Ben Ng, the Deputy General Director of Ocean Place Joint Venture Company Ltd, gave Mr Ngo a recent reference testifying to this experience and stating that his contribution to the building project was invaluable. Ms Ng also stated that the project was designed to the highest international standards and to the strict 5-star specifications required by the operator, Sheraton.
Mr Ngo conceded in cross examination that Ms Ng was not a "technical person." Her reference is useful, however, in that it confirms that the project was designed to high international standards. Whilst her opinion that Mr Ngo's contribution was "invaluable" is not based upon technical expertise, I nevertheless give it some weight, as she is a very senior person working on the project.
Mr Ngo has also provided the Tribunal with a reference dated 1997 from Mr Vincent Goh, Project Manager, Goodland Ltd, Vietnam. Goodland Ltd was the project manager for the Ocean Place development. This reference stated: "Charles has been involved in this prestigious project since the commencement having gone through the foundation stage (bored piling & diaphragm walling), earthwork & basement works to the current stages of rc superstructure by post-tensioning and the associated architectural works. We found him very responsible, trustworthy, enthusiastic and hardworking willing to do more than his share of duties & responsibilities."
Mr Ngo said that Mr Goh was his "boss on-site" and had completed a building degree in Malaysia. Mr Goh was thus Mr Ngo's supervisor (in the ordinary sense of the word) and had relevant technical qualifications. His reference is useful in that it explains the types of work Mr Ngo was involved in from 1995 to 1997 and indicates, from the perspective of a builder overseeing a large-scale, complex project, that Mr Ngo was doing his job well.
Rod Skeggs and John Tanny provided references for Mr Ngo in March 2001 and June 2002 respectively, in relation to his work on the Ocean Place development, using the then-current form for referees under the Home Building Act. Mr Ngo explained that, at that time, he had intended to apply for a building licence, but that his work had taken him around the world, so he had not submitted the application.
Mr Skeggs was the Transfield Site Manager for the Ocean Place Project. Mr Ngo accepted that Mr Skeggs was not his supervisor; rather, Mr Ngo signed off on Mr Skeggs' work. However, Mr Skeggs' reference is useful in that it states that Mr Ngo carried out the following work between October 1996 and March 2001: "Oct 96 - Oct 97: STRUCTURAL ENGINEERING: - overseeing, including structural checking of propping, formwork, reo fixing and concrete quality prior signing-off for pouring of 60,000 m3 (over 65,000 m2 floor space) high-grade ready mix concrete (Foundation Rafts & Pilecaps, Columns, Liftcores, conventional beam / slab & post-tensioned slabs by Austress-Freyssinet). Aug 97 - Aug 98: ARCHITECTURAL WORKS: - co-ordination, overseeing and quality checking of brickwork (25 storeys), alum doors, windows & tempered glass walls (over 430 nos), timber doors + ironmongeries (over 570 doors), internal & external waterproofing (over 180 bathrooms + roof), floor & wall tiling, false ceilings (framing, sheeting, embellishment + finishing), internal & external painting, sanitary wares, fittings & accessories… Aug 98 - June 99: INTERIOR DESIGN WORKS:- co-ordination, overseeing and quality checking of ID joineries (built-in wardrobes, wall units, lift lobby pilasters & wall panels). June 99 - Oct 99: PROJECT CLOSE-OUT:- listing of outstanding and defective works for Contractors' action. Completion documents review and finalisation (position: Project Engineer). Jan 01 - Mar 01: HOTEL OPERATION'S PREPARATION WORKS:- Defect liability period's rectification works and checking/signing-off, documentation of Loose furniture (bed, divan, drapery, white goods, FF&E …) for procurement and installation prior to handing over to Operator."
Mr Tanny was the Associate Director of RSP Architects, Planners and Engineers and held a Bachelor of Science (Architecture) and a Bachelor of Architecture (Honours) from the University of New South Wales. Mr Tanny was the Architect or site superintendent of the Ocean Place development. Mr Ngo described him as the "captain of the ship." Mr Ngo reported to Mr Tanny and described him as his supervisor. Mr Ngo said that Mr Tanny relied upon Mr Ngo to be his "eyes and ears on-site." I accept Mr Ngo's evidence about his role and that of Mr Tanny.
Mr Tanny described Mr Ngo's duties between January 1997 and January 2002 in a similar (although not identical) way to Mr Skeggs. Key differences include that he described Mr Ngo's structural engineering experience between October 1996 and October 1997 as involving "direct supervision and quality control of all reinforced concrete works". He also recorded that, between October 1999 and December 2000, Mr Ngo reported directly to the Architect (that is, to Mr Tanny) on matters concerning outstanding defects and rectification progress prior to the Architect's issuance of the Certificate of Practical Completion. He stated that Mr Ngo had "consistently exhibited a thorough knowledge of Engineering principles and the ability to apply them in a practical sense" and described his input to the project as "invaluable."
Ms Kumar submitted, in written submissions filed before the hearing, that the details about Mr Ngo's work experience in Mr Skeggs and Mr Tanny's references were "identical" and that this called into question their authenticity. She put questions about this to Mr Ngo at the hearing. Mr Ngo said that he typed both references but discussed the references with each of them and made changes where suggested.
The references of Mr Skeggs and Mr Tanny are very similar, but are not identical. I am satisfied that Mr Ngo prepared them, as he said, but that each referee independently verified the reference before signing it. The differences between the two references support this evidence and this explanation was not challenged in cross examination. The references describe the work Mr Ngo undertook and, if his description of this was accurate, it is to be expected that neither referee would ask him to change it.
The references of Mr Skeggs and Mr Tanny confirm the nature of the work Mr Ngo undertook whilst working on the Ocean Place development. Mr Tanny's opinions that Mr Ngo applied engineering skills in a practical sense and made an invaluable contribution to the project are of assistance in determining whether he has the requisite experience to do and supervise the work for which the supervisor certificate is required. I give significant weight to Mr Tanny's reference, given his expertise, experience and seniority.
The references in relation to the Ocean Place development demonstrate that Mr Ngo oversaw and checked a wide range of building work from the beginning to the end of this project (although not in the capacity of a builder and he did not physically do the work). He checked and supervised formwork, concrete quality, reinforced concrete works, brickwork, windows and walls, waterproofing, tiling, false ceilings, painting, sanitary wares and joineries. He also listed outstanding and defective works and reported and signed off on rectification works.

Sun Wah Group - 2007 to 2017

As a project manager at Sun Wah Group, Mr Ngo was responsible for design management for projects in Cambodia, applying Australian design principles and standards. He was also responsible for contract and project management for various projects involving townhouses, shophouses and cultural centre buildings in Vietnam and Cambodia.
From 2013 to September 2017, Mr Ngo was the design and construction manager, Baywater Company, Sunwah Pearl residential units development, consisting of two basements, five podium floors and three blocks of high-rise 45 to 50-storey apartment towers. This was a US$150 million project.

Palm City project - October 2017 onwards

Mr Pannir Chelvam, Mr Ngo's current supervisor, provided a reference for him in relation to his work on the Palm City project. Mr Ngo informed the Tribunal that Mr Chelvam is an engineer. His title is Head Project Manager. Under cross examination, Mr Ngo explained that a project manager must have an engineering or architecture degree, and twenty or more years of building experience. This evidence was not challenged and the Tribunal accepts it.
Mr Chelvam explained in his reference that the Palm City development has a site area of 30 hectares with low and high-rise residential construction including 135 three-storey townhouses. He stated that, as Project Director, Mr Ngo is responsible for overseeing and management of project managers, construction managers, QA/QC engineers, design consultants and contractors for the delivery of the projects through all phases of design, permitting and construction to completion.
Mr Chelvam set out in his reference Mr Ngo's many areas of responsibility. These included, in the implementation phase of the project, the following: "Implementation: Handles all coordination works with the consultants, architects, engineers, construction managers and all other specialized trades. Operates with minimal supervision as the principal project representative. Prepares contracts, notices to proceed, and other contractual documents to the construction managers. Monitor progress and provide financial control. Ensure project is completed within budgets and schedules, business objectives and design guidelines. Verify progress payment for processing by Accounting Department."
Mr Chelvam's opinion was that Mr Ngo "can effectively manage and deliver complex construction projects because he has very strong and proven experience in a diverse project environment."
Mr Ngo's evidence as to his role on the Palm City development was that he was monitoring and signing off works to certify that they had been done properly and correctly by contractors. He said his job was to go on-site to see the work although he did not physically do the works. As the project director, he had project managers and engineers working under his supervision. He was the most senior person on the job site. I accept this evidence, which was not challenged.

Consideration

Mr Ngo has been responsible for supervising the construction of many large-scale projects involving residential and non-residential buildings. Many if not most of them are projects in which very high construction standards were applied (such as the Sheraton Hotel project). Some of these construction projects, such as the building of the townhouses he worked on in Cambodia (whilst working for the Sun Wah Group) and the townhouses at Palm City development (which form part of his current work), involve similar work to that for which a supervisor certificate is required.
To the extent that Mr Ngo worked on non-residential construction projects, this nevertheless "provided experience and required the application of skills, expertise, and knowledge that are equally relevant to both commercial and residential construction" (Shoobridge v Commissioner for Fair Trading [2015] NSWCATOD 42 ("Shoobridge") at [52]). I respectfully agree with Senior Member Molony's opinion that "whether experience gained on any building site is relevant industry experience is a question of fact to be determined in each case" (Shoobridge at [53]). In this case, I consider that all of Mr Ngo's experience set out in his resume and summarised above is relevant and I take all of it into account.
Mr Ngo submitted that he has spent many years on building sites, personally checking construction work to ensure that it was done correctly and that this was the kind of experience he needed to supervise contractors as the holder of a supervisor certificate. He also said that, as the holder of a supervisor certificate, he would have to conduct his business in full compliance with regulations and other requirements and standards and that he had many years' experience of doing this. He submitted further that his engineering experience had given him the ability to read and interpret plans, drawings and specifications, to understand the importance of such documents and to make sure the required specifications were complied with.
I accept those submissions.
Ms Kumar submitted that Mr Ngo's references did not demonstrate that he had been involved in a wide range of building work. I disagree. I consider that the references and the other oral and documentary evidence establish that Mr Ngo has had experience in a very wide range of building work.
I am satisfied that Mr Ngo has had experience of such a kind and for such a period as would enable him to supervise, the work for which the supervisor certificate is required.

Does Mr Ngo have experience enabling him to do the work for which the supervisor certificate is required?

The question of whether Mr Ngo has had the requisite experience to do the work for which the supervisor certificate is required is more finely balanced. This is because, whilst Mr Ngo has had extensive experience supervising residential building works, he has not had the equivalent amount of experience doing such works.
I do not consider that the state of satisfaction required by s 33D(1)(b) requires an applicant to demonstrate that he or she has physically done all or most of the trades identified by Deputy President Hennessy in Locking. This has not been the Tribunal's approach in the past.
In Jones, Senior Member Robertson noted the likelihood "that any trade contractor will gain experience mostly in their own particular trade" (at [79]) and considered that an applicant needed to demonstrate "sufficient project supervision involving sufficient other trades and sufficient interaction with certifiers to satisfy the requirements of s 33D(1)(b)" (at [78]). It is implicit in this decision that experience supervising a trade may indicate that an applicant can also do the relevant work which he or she has supervised for the purposes of s 33D(1)(b). This is also implicit in Locking, where Deputy President Hennessy observed that a builder "must be able to supervise all of the trades required to complete any type of dwelling" (my emphasis).
The focus on supervision makes sense, as the legislature could not have intended that an applicant would have to demonstrate that he or she had personally undertaken all or most of the tasks of flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing before he or she could obtain a supervisor certificate. Experience supervising tasks may, at least in some circumstances, sufficiently demonstrate that a person can perform those tasks.
When asked questions about his ability to do the required works in cross examination, Mr Ngo's evidence was that he knew how to do "the main processes." He said that he knew how to do the setting out for footings or a concrete slab, and he knew to refer to the engineers' design standards or other design requirements. He said he also knew how to read specifications and requirements for reinforcement bars, for the width and depth of ground beams and for setting out. Mr Ngo then described to the Tribunal how he would construct a timber frame house, including how he would deal with choosing timber sizes and obtaining frames, then roofing, waterproofing and insulation.
Ms Kumar asked Mr Ngo whether he had ever performed any of the tasks involved in residential building. He said that he had directly supervised the construction of his own house in 2007 in Malaysia.
Ms Kumar relied upon the decision of Jones at [58] and [86] for the proposition that an applicant cannot verify his or her own experience. Ms Kumar said that, for this reason, Mr Ngo's experience as an owner-builder and his other experience which was not verified by an appropriate referee, should not be considered.
In Jones's case it was argued by the Commissioner that "an applicant alone cannot verify their own experience," in reliance on Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 ("Limberis") at [38] and Shoobridge at [69] (see Jones at [58]).
In Limberis, the Tribunal accepted that an applicant alone could not verify his or her experience, because otherwise the system would be open to abuse (at [38]). However, in that case, the "only evidence … before the Tribunal about the work carried out by Mr Limberis [was] that given by him" (at [38]). This is a very different case, where there are many referees who have provided details about the tasks Mr Ngo carried out on a variety of building projects.
In Shoobridge, the Tribunal, constituted by Senior Member Molony, made the following comments (at [69]): "While I agree with the respondent that direct evidence from the supervisor is the best evidence of relevant practical experience, I do not accept that the only evidence which can demonstrate such experience is evidence from the supervisor. I do agree that an applicant alone cannot verify his own experience."
I should note that this is not a case in which an applicant is seeking to verify all of his own experience without any evidence from others.
The Tribunal's task is to consider the statutory question of whether the Tribunal is satisfied that the applicant "has had experience of such a kind and for such a period as the [Tribunal] considers would enable the applicant to do, or to supervise, the work for which the certificate is required" (Home Building Act, s 33D(1)(b)). It must do so in the context of conducting an administrative review under the Administrative Decisions Review Act. Its task under that Act is "to decide what the correct and preferable decision is having regard to the material then before it, including … any relevant factual material" and "any applicable written or unwritten law" (Administrative Decisions Review Act, s 63(1)).
To adopt a principle that the Tribunal may never accept an applicant's evidence about his or her own experience, where that evidence is uncorroborated, would be to put an unwarranted gloss on both statutes. It would mean that a Tribunal could never be satisfied that an applicant has had the necessary experience under s 33D(1)(b) of the Home Building Act unless the applicant provided corroboration for every part of that experience which the Tribunal proposed to take into account. It would also preclude the Tribunal, having regard to sworn oral evidence (the relevant factual material before it) from reaching a state of satisfaction that an applicant had the relevant experience for the purposes of s 33D(1)(b), unless there was also corroborative material for every aspect of the experience.
That is not a lawful approach to the application of s 33D(1) of the Home Building Act or s 63 of the Administrative Decisions Review Act. The Tribunal's decisions about the need for corroborative evidence make the obvious point that, in the absence of some kind of independent evidence about what an applicant has done, the Tribunal would generally be unlikely to be able to reach the state of satisfaction required by s 33D(1) of the Home Building Act. However, it would be wrong to treat those decisions as laying down an inflexible rule which must be applied in every case and to every part of an applicant's claimed experience.
In Chahine v Commissioner for Fair Trading [2016] NSWCATOD 63 ("Chahine") at [58]-[59], Senior Member McAteer made the following comments about the difficulties which often surround the evidence provided in an application form by an applicant and his or her referees: "58 In my view many of the problems of this application arise from the commonly apparent limitations of the information that referee's and others provide on the official forms. Often there is paucity of cogent information in respect of the data provided by applicants and their referees in populating the fields in these forms. In addition in some matters the forms appear to be completed in a rudimentary manner, with the writer being careful not to exceed the available space in the allotted box or area to write in a response. Further, the experienced tradespersons who personally complete these forms, whilst having been certified themselves in the past, sometimes seem hesitant and vague respondents to the questions sought by Fair Trading about their nominees. Why this situation arises is a matter of considerable discussion in these cases. 59 These observations are made only to illustrate that in many instances (successful or otherwise), once the matter is before the Tribunal, where evidence is provided in sworn form, often assisted by the drafting of legal practitioners, matters become much clearer. 60 The applicant addressed many of the deficiencies and matters that were clearly lacking in his applications to the respondent. These matters were addressed by the applicant's evidence in chief and cross-examination as well as his affidavit evidence. As observed earlier neither party sought to provide evidence from a referee or other witness to test material submitted by the applicant."
The Senior Member went on (at [61]) to reject the proposition that an applicant is always required to provide corroborating evidence of his or her experience: "61 In addition, whilst the respondent takes the understandable view that applicant cannot self attest or verify their responses in the application process, I note that in the absence of evidence to rebut an applicant's proposition, there is no such lawful impediment on the Tribunal. In any event, to disregard such material in the absence of any clear basis in the proceedings would be dangerous."
I respectfully adopt the Senior Member's comments in Chahine. They are consistent with Senior Member Molony's recognition in Shoobridge that direct evidence from a supervisor is not the only evidence which may demonstrate relevant experience and consistent with Senior Member Robertson's view in Jones (at [63]) that an applicant may confirm and add details about his or her own experience to the evidence given by others.
I accept Mr Ngo's evidence that he directly supervised the construction of his own home in 2007. This evidence was not challenged in cross examination. I also accept the evidence Mr Ngo has given about other work experience which has not been verified, particularly given that he has provided referees' reports attesting to significant parts of his experience including his current work and given that his resume discloses a steady career progression. I take all of this experience into account when determining whether Mr Ngo has had such experience as would enable him to do the work for which the supervisor certificate is required.
Having regard to Mr Ngo's experience working on building sites in New South Wales during his university degree and directly afterwards, his experience constructing his own home, and his many years of working on building sites overseeing or supervising the work of others, I am satisfied that Mr Ngo's experience enables him to do the work for which the supervisor certificate is required.

Is Mr Ngo capable of doing or supervising work for which the certificate is required?

A supervisor certificate must not be issued unless the Tribunal is satisfied that the applicant is capable of doing or supervising work for which the certificate is required (s 33D(1)(c)).
The Commissioner did not focus on s 33D(1)(c) and did not submit that Mr Ngo was not so capable.
Having regard to the evidence of Mr Ngo's extensive experience doing and overseeing or supervising such work and similar work, I find that he is extremely capable of doing and supervising the work for which a supervisor certificate is required.

Orders

For the reasons given above, I make the following orders: 1. The respondent's decision to refuse to grant the applicant a supervisor certificate under the Home Building Act 1989 is set aside. 2. In substitution for that decision, the Tribunal decides to grant the applicant a supervisor certificate. 3. The respondent is to effect the grant of a supervisor certificate to the applicant within 7 days of the publication of these reasons.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 03 July 2019

Home Building Amendment Act 2014(NSW)

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Judgment (15 paragraphs)

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