Scopelliti v Secretary, Department of Customer Service [2025] NSWCATOD 105;

1. On or about 16 May 2024, the Applicant completed and lodged an application for a General Building Work licence under the Act. As at this time, the Applicant was the holder of a tradesperson's licence in the category of carpentry and construction. The Applicant was self-employed and was the Director of his own carpentry business.
2. In support of the application, the Applicant included two NSW Fair Trading Referee Statement forms. One form was signed by Mr Trevor Pearson.
3. The other form identified Mr Patrick Houston as the Applicant's supervisor. The form relating to Applicant's experience under Mr Houston's supervision was not signed and the field requiring the name of the person completing the form was left blank.
4. The Applicant also provided two statements with his application. The first being an unsworn statement setting out his work experience under Mr Houston and explaining that Mr Houston had died prior to signing the application. He also set out his experience since becoming the director of his company in the field of carpentry. The second statement was a statutory declaration also setting out his work experience under Mr Houston's supervision between 2011 and 2017 and verifying the matters as stated in his application about his experience as being true and correct.
5. On 23 July 2024, the Respondent informed the Applicant that the Department could not accept experience gained under the supervision of Mr Pearson and Mr Houston. The Department invited the Applicant to provide additional work references and clarification around the experience gained with Mr Pearson.
6. On 8 August 2024, the Respondent refused the application.
7. On 27 August 2024, the Applicant sought an internal review of the refusal decision.
8. On 10 September 2024, the refusal decision was affirmed by the Respondent on the following basis, according to the Respondent:

(1) The Respondent identified a discrepancy in a building site address provided by Mr Pearson and DA approval details. The Applicant did not provide any further information that would allow the Respondent to assess or consider the experience obtained under Mr Pearson's supervision.

(2) The experience gained under the supervision of Mr Houston had not been verified and the Respondent cannot accept the evidence provided by the Applicant himself.

Legislation, the Instrument and the application process

1. The provisions related to the power to grant or refuse a contract licence is found in Part 3 of the Act.
2. Section 20 of the Act relevantly provides that:

(1) The Secretary must refuse an application for a contractor licence if--

...

(a2) the Secretary, after considering evidence supplied by the applicant, is not satisfied as to the matters of which the Secretary is required to be satisfied by section 33C, or

...

(2) The Secretary may, by notice published in the Gazette, specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a contractor licence.

(3) The Secretary must refuse an application for a contractor licence if--

(a) the Secretary is not satisfied that any such requirement would be met were the contractor licence to be issued, or

...

(5) A decision of the Secretary relating to the specification of qualifications and experience, or additional standards or other requirements under subsection (2) cannot be reviewed by the Tribunal in an application for an administrative review made under this or any other Act.

...

1. Section 12 of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW) is also applicable and relevantly states:

12 Procedure for making applications

(1) An application may be made in writing or by means of electronic communication.

...

(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.

...

1. The Instrument was published in the NSW Government Gazette and is dated 23 December 2022. The Instrument was signed by the Commissioner of Fair Trading on 15 December 2022. It expressly identifies that it is made pursuant to section 20(2) (and section 25(2)) of the Applicant and contains qualifications, experience or additional standards or other requirements required to be held or met by an applicant for an endorsed contractor licence.
2. The Instrument contains tables including Table A that lists the qualifications and examinations in Column 1 that are required and the corresponding "Experience" in Column 2. As noted above, there is no dispute that the Applicant is qualified.
3. The "Experience" required of the Applicant with respect to his application and in consideration of his existing qualifications is:

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 was made.

1. "Experience" is defined in the Instrument as follows:

"Experience" means experience gained by the applicant as:

(a) an employee of: or

(b) a holder of a qualified supervisor certificate and as a nominated supervisor for the contractor licence held by; or

(c) a holder of an endorsed contractor licence contracted to; or

(d) a holder of a qualified 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 qualified 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

(e) a holder of a qualified 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. [Emphasis added]

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 (Note - Applications are to be made in accordance with section 12 of the Licensing and Registration (Uniform Procedures) Act 2002).

1. The relevant application form was entitled "Application form-individual". There is no dispute that the Applicant utilised this form to make his application.
2. The application form required details of the Applicant's employment and experience history in Part 8 but did not require a declaration or signature of from any other person other than the Applicant. Under Part 8 it states that referee statements from licensed supervisors must accompany the application in certain circumstances.
3. As noted above, such referee statements did accompany the application. Attached to the referee statements is an Onsite Building Experience Form. Each referee statement provided for a space for the referee to sign. In signing the statement, the referee confirmed the following:

I confirm that this and the accompanying 'Applicant's On Site Building Experience' form(s) cover ALL the building sites where I have supervised the applicant in respect of a wide range of building construction work. I understand that Fair Trading may not accept any additional work claimed by the applicant that was under my supervision that is not included in this or any accompanying 'Applicant's On Site Building Experience' form(s) [Underlined emphasis added]

1. With respect to the referee statement attributable to the work undertaken with Mr Houston, the statement is unsigned because he had died prior to being able to sign it.
2. With respect to the referee statement of Mr Pearson, attached was a letter from the Hills Shire Council to Zhinar Architects giving details of the development references in the referee statement. Each referee statement stated:

In accordance with section 12 of the Licensing and Registration (Uniform Procedures) Act 2002 this referee statement document and any supporting attachments are part of the application form submitted by the application making application for an authority under the Home Building Act 1989.

1. Additional attachments to the application included a checklist which was filled out by the Applicant. At the end of the checklist it states:

All information submitted by the applicant (including the application form, the checklist and any other supporting documents) will be assessed by Fair Trading in processing the application. [Emphasis added]

(1) Certificate IV in Building and Constructions dated 14 August 2024 and Record of Results of the Applicant

(2) Additional Details Form 2 with attachment being a letter from Applicant dated 20 January 2024 and a statutory declaration of the Applicant dated 23 August 2019.

1. The Additional Details Form 2 states at the bottom of the first page:

In accordance with section 12 of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW) this additional details form and any supporting attachments are part of the application form submitted by the applicant making application for an authority under the Home Building Act 1989. [Emphasis added]

1. The letter, which I accept as a statement of the Applicant, that was attached to the Additional Details Form 2 states:

To Fair Trading NSW

Hello my name is Domenic Scopelliti. I am writing to outline the details behind my re application for builders license in nsw.

In 2019 I submitted an application which was, after much back and forth, declined due to a technicality that seemed to have no simple or fair resolution.

I am a qualified carpenter. Lic no: 245694c

Most of my supervised experience came working under the builder Patrick Houston of the company "Attic and Roof Conversions". I was employed by them from 2011 through to 2017.

His builders lic no: 34561

Unfortunately my old boss Patrick was diagnosed with cancer and passed away years ago.

This meant that he was unable to sign off on the referees statement forms that accompany my application.

During my time at "Attic and Roof Conversions", I supervised many projects and completed a vast range of carpentry and construction works dealing with all trades relating to building. We constructed many projects over the years that I worked under him.

Since 2017 I have been Directing my own carpentry company trading as Toneco Projects.

I have been successful in business these 6-7 years with hundreds of happy clients and not a single bad review to our name. I take great pride in Toneco Projects flawless reputation and set out to provide the highest quality service to all of our clients.

Our team of 4 have completed many quality carpentry projects over the years.

I have also successfully trained an apprentice from start to finish, Ryan Harrigan and he has completed his tafe works with outstanding results and about to become a fully licensed carpenter under my employment.

Additionally we have completed my own owner builder licensed project for a secondary dwelling at address 49 Drummond st, south Windsor. Permit no: 463603p

I believe that I have well and truly exceeded by many years the supervised onsite experience component of the builders licence application, but due to a technicality with the referee's signature and my boss Patrick being deceased I have previously been declined and I ask that my application be reviewed.

Since the last application I have also added to my onsite supervised experience.

I will attach the original statutory declaration along with my new application.

Thankyou for your time and understanding with this unique matter.

Signed [the Applicant]

1. The statutory declaration of the Applicant that was witnessed by a justice of the peace states:

The details in the "'Applicants on site experience" forms are true and due to my former boss and licenced supervisor (Referee) having passed away and the business closing down, I have filled out the forms myself.

Patrick Houston was my supervisor, Employer and Lic No: 34561. During my employment from 2011 to early 2017, I carried out a broad spectrum of building and construction with a special focus on 2nd storey additions. The company was in operation since the id 80's and employed many other carpenters.

I have completed cert 3 and 4 currently own my own carpentry business and employ 1 x apprentice.

Sections 33C and 33D

1. In addition, the Respondent relied upon sections 33C and 33D of the Act because of the reference in section 20(1)(a2) of the Act. Section 33C(1)(b)(i) of the Act relevantly provides:

(1) A contractor licence must not be issued unless the Secretary is satisfied that -

...

(b) the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate -

(i) satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant, and

....

1. Section 33D(1) of the Act provides:

(1) A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant -

(a) has such qualifications or has passed such examinations or practical tests, or both, as the Secretary determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required, and

(b) has had experience of such a kind and for such a period as the Secretary considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and

I is capable of doing or supervising work for which the certificate is required. [Emphasis added]

1. The Respondent submitted that because of section 33D(1)(b) the Applicant must ensure compliance with the experience required by the Instrument to satisfy the Secretary for the purposes of that section. I accept that section 33D requires the Secretary to be satisfied of the Applicant's experience and this would require compliance with the Instrument, however the necessity of requiring compliance with the Instrument is primarily created by section 20(2) of the Act and while reference to sections 33C and 33D is not incorrect in the current circumstances, such reliance does not add anything additional to the compliance requirements that would otherwise apply in this situation as they are required under section 20(2).

1. As stated on the Applicant's administrative review application, the Applicant contended that:

The decision is unfair as absence of a signature due to death is outside of my control and should be treated fairly.

1. The Applicant's written submissions which were received by the Tribunal on 22 April 2025 stated:

I am currently 33 years old. I began my apprenticeship at the age of 16 and have been working on job sites ever since. After completing my apprenticeship in four years, I immediately obtained my carpentry licence and have been a qualified tradesman for over 13 years.

I have never held any other occupation, nor have I ever been unemployed. Over the years, I have worked on a vast range of building projects and have developed a wide variety of building and construction knowledge and experience.

I have successfully run my own carpentry business for over seven years-Toneco Projects-servicing hundreds of clients without a single complaint against my name or business.

I've trained several apprentices over the years. Ryan Harrigan, now a qualified tradesman at Toneco, has been with me since he was 15 years old and completed his entire apprenticeship under my guidance.

I have also built a secondary dwelling on one of my investment properties under an owner-builder licence, completing all carpentry work to a high standard while directly managing and supervising licensed trades for electrical and plumbing works. Critical stage inspections were conducted throughout the build and passed without any issues.

I currently have a new apprentice, Mitch, starting with Toneco, and I intend to employ more staff as my business continues to grow. I believe that being granted this licence will allow me to positively contribute to the construction industry-through high-quality work and by creating jobs and apprenticeship opportunities for other young Australians.

I, too, am a young Australian striving to build a better future for myself and others, and I believe I have far exceeded the experience requirements necessary to obtain a NSW builder's licence.

1. By way of oral submission, the Applicant contended that:

(1) in reality, he has "blown the experience" requirement out of the water as he has at least six years experience.

(2) With respect to his experience with Mr Houston, the Applicant stated he was fully involved in the whole process from foundation to the ridge caps, plastering, plumbing, electrical, all services and trades and supervised and managed the whole process and the objective evidence supported that.

(3) In circumstances where the referee has passed away, it should be accepted that verification can be achieved where the objective evidence is that the experience has been obtained.

(4) the objective evidence included the statements of Mr Joel Hanney, Mr Alex Stritt and the statements of various customers as well as the Applicant's tax records that evidence his work history and that he was employed by "Attic and Roof Conversions".

(5) As for the photographs, the Applicant disputed that they only evidenced carpentry work but rather, was consistent with the wide range and diverse work he has done including to construct an entire dwelling under an owner-builder permit. The Applicant also submitted that the photographs were a further objective means to show the quality of the work completed by him further supporting that he had gained the experience and thereby verifying that experience.

1. During cross-examination, the Applicant gave evidence that:

(1) His employee when working for Mr Houston was "Attic and Roof Constructions" which was a trading name of PJ Houston Constructions an a company controlled and operated by Mr Houston.

(2) He was employed by "Attic and Roof Constructions" from 2011 to 2017.

(3) In his employment, he would supervise at least eight to ten carpenters, lots of labourers, apprentices, sub-contractors.

(4) The focus of the business was second storey additions, renovations and new builds.

(5) The selection of the jobs in the reference attributed to Mr Houston was not because of any particular reason but those particular jobs came to mind.

(6) When the Applicant was taken to a particular in Mosman that was listed in his application, and was asked who was responsible for reading the plans, the Applicant gave evidence that it was Mr Houston was the builder and had meetings with the customer but as a tradesman, the Applicant read the plans out carry out the works.

(7) When asked about the reference to installing the structural floor, the Applicant explained that as lead carpenter, the flooring was a crucial thing on a second storey job and one of the most important features. This was because, you had to get the roof and the sub-frame in and you also had to liaise with every trade because the services run through the floor.

(8) When asked about the reference to "managing electrical and plumbing rough-in's", the Applicant explained this was not a reference to the Applicant undertaking electrical or plumbing work as he was not allowed to do that work but it was a reference to supervising that work and organising it to happen.

(9) The Applicant confirmed that his skills would allow him to build an entire house. His words were "Yes, absolutely". His confidence at this was because of the skills he had "gained over the last 13 years".

(10) The Applicant described feeling fully confident and fully experienced and referred to building a dwelling under owner-builder permits and it having passed Council. He described being involved in every trade because while a brick layer does not need to know what the electrician is doing, a carpenter is connected to every service.

1. I find that the Applicant presented as a truthful witness the attempted to assist the Tribunal. I accept his evidence.
2. In terms of the documentary evidence relied upon by the Applicant:

(1) The Applicant relied upon is tax returns from 2011 to 2016 which states that "Attic and Roof Conversions" was his employer with an ABN of 92942480307.

(2) Copies of pages from Service NSW listing Mr Houston as the licensee and director of P J Houston Pty Ltd and identifying him as a qualified supervisor.

(3) Copy of a listing from Hi pages which is a website where consumers can connect with tradespeople and builders. The page lists "Attic and Roof Conversions Master Builders" with the contact person being "Patick Houston".

(4) Photographs of the dwelling built "from ground up" under an owners builders permit as well as an apartment renovation which show extensive work of a diverse nature

(5) A statement signed by Mr Joel Hanney, Licensed Carpenter and Director of Urban Skylights & Attic Storage Solutions Pty Ltd who states:

I have worked alongside Domonic Scopelliti as a licensed carpenter for over five years on a variety of residential renovation and extension projects across Sydney.

During this time, we were both employed under the supervision of the late Patrick Houston (Builder's Licence No. Q12171), a respected builder who sadly passed away shortly after Domenic completed his period of experience. I worked closely with both Patrick and Domenic throughout this time, and I can confidently verify the significant hands-on experience Domenic gained on-site.

Domenic played an active role in all stages of our projects, which included:

• Coordinating and managing the delivery and organisation of building materials Liaising effectively with subcontractors and trades to ensure smooth workflow Communicating directly with clients to understand and meet their expectations Overseeing daily site operations, including time management and quality control

• Resolving issues as they arose and ensuring all work complied with building codes and safety regulations

His reliability, technical skills, and willingness to take on responsibility were evident from the outset. Over time, Domenic grew into a leadership role on-site and was trusted with key project decisions and client communication. His professional conduct and workmanship have always reflected a high standard.

Since our time working under Patrick, Domenic and I have each gone on to build successful and thriving businesses in our own right. We've continued to collaborate on projects over the years, and I have no doubt that Domenic gaining his builder's licence will be a great asset to the community. He is dedicated to quality, takes pride in his work, and will continue to deliver much-needed, high-standard building services.

As a licensed carpenter (Licence No. 224511C) and director of Urban Skylights & Attic Storage Solutions Pty Ltd, I am confident that Domenic has the practical knowledge, capability, and integrity required to hold a builder's licence and carry out works independently.

If you require any further information, I am more than happy to assist. You can reach me directly on ... or at .....

(6) A statement from Mr Alex Stritt, Director of Stritt Design and Construction and member of the Council of the Master Builders' Association if NSW who states:

I am a registered Building Designer and Licenced Builder, owner and director of Stritt Design and Construction Pty Ltd.

We have designed and built quality homes in Sydney for the past 26 years. I currently sit on the Council of the Master Builders Association NSW and have been a past President of the Master Builders Association Manly Warringah Division.

I have known Domenic for many years and have utilised his services for building works on the Northern Beaches including pool house renovations, remedial works throughout a two-storey home in Newport and structural balcony repairs in Avalon Beach.

I have supervised his work directly on these projects and as a licenced builder of 26 years, I deem Domenic's skills and industry knowledge to be substantial and more than adequate to obtain a builder's licence. Domenic has proven himself to be dedicated, professional and reliable at all times.

I wish Domenic every success in his future endeavours.

(7) Statements from Mr Stephen Flegg, Senior Portfolio Manager at AMP, Mr Joshua Dale, Partner of law firm Carroll & O'Dea Lawyers, Mr Campbell Smyth, CEO of Resi; Dr Mistry and Mr Richard Read in respect of a Strata Plan who each attest to the Applicant's range of skills on several significant projects, superior workmanship and their support of him acquiring a builder's licence. Mr Read also states he has retained the Applicant's services from at least 2015 to 2025 and gives evidence of the Applicant having worked under the supervision of Mr Houston:

I originally met Domenic when I engaged attic and roof conversions for some works at my house when he was employed as a carpenter working under Patrick Houston licensed builder.

1. The Respondent took the Tribunal through the legislation, the Instrument and the application lodged by the Applicant. The Respondent drew the Tribunal's attention to the need for verification of the work experience in the application form by virtue of the definition of "Experience" in the Instrument.
2. The Respondent accepted that if the work experience with Mr Houston could be verified, it would meet the criteria for relevant work experience of two years within the last 10 years but the issue in these proceedings was the absence of that verification. With respect to how the experience can be verified, the Respondent submitted that the Instrument is clear and unequivocal consistent with section 12 of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW) and the verification is the completion of the application form and the signing of the form by the referee and in so doing making the declaration.
3. The Respondent submitted that while the Applicant has provided documentation that substantiates that he was employed by "Attic and Roof Conversions" from 2011 to 2016 which is the business name that appears in the Applicant's application and letter attached to his application, there is presently no evidence that conclusively demonstrates the relationship between "Attic and Roof Conversions" and Mr Houston. This is despite, the Applicant relying on evidence from the listing on "Hi-Pages" website to demonstrate the link.
4. With respect to what the Respondent described as "the customer reviews" relied upon by the Applicant, the Respondent submitted that these were incapable of providing verification and disputed that it evidenced a "broad range" of building and construction work. Likewise, the Respondent disputed that the photographs relied upon by the Applicant evidenced this diversity and only depicted "carpentry work".
5. With respect to Mr Alex Strit's and Mr Joel Hanley's letters, the Respondent submitted that because it was not provided in the correct form (i.e. the Referee Statement form and the requisite On Site Building Experience Form), it could not verify the matters as required by the Instrument. The Respondent added that Mr Hanley never held a licence in the category of general building in any case.
6. Alternately, the Respondent submitted that the Applicant's own evidence of his practical work experience cannot be accepted and in the absence of any further material to allow verification. To consider such evidence would undermine the objectives of the Act. In this respect to the Respondent relied upon Briggs v Commissioner of Fair Trading Department of Finance, Services and Innovation [2018] NSWCATOD 175 ("Briggs") which held:

It is clear that it is not possible for an applicant to verify their own competence themselves. This underlines the importance of the role of a supervisor who is a competent practitioner. The Tribunal does not consider that it is necessary for a referee to be the holder of a licence currently to provide this evidence.

1. The Respondent also relied upon Limberis v Commissioner of Fair Trading [2017] NSWCATOD 128 at [38] ("Limberis") for the proposition that an Applicant cannot verify their own experience.
2. The Respondent concluded that experience that cannot be verified, for whatever reason, cannot be "Experience" for the purposes of the Instrument and therefore cannot satisfy the Tribunal of the necessary criteria to grant the licence. That while the Tribunal may sympathise with the Applicant, it cannot result in it purporting to exercise jurisdiction that it does not have.
3. In addition to the section 58 bundle which included the Applicant's application to the Respondent and accompanying documents, subsequent correspondence and the decisions of the Respondent, the Respondent relied upon written submissions filed 22 January 2025 and 9 May 2025.

(1) the Applicant has met the qualification requirements.

(2) if the work experience with Mr Houston could be verified, it would meet the criteria for relevant work experience of two years within the last 10 years. This was expressly conceded in the Respondent's written submissions filed 22 January 2025 on [36].

(3) the controversy regarding experience gained under the supervision of Mr Pearson need not be resolved, as the Applicant confirmed that reliance is not placed on this experience.

1. The issue before the Tribunal is limited to whether the Applicant can satisfy the practical work experience requirements as required by the Instrument. Specifically, can it be found that the Applicant's experience is "verified" for the purposes of the instrument given that Mr Houston has not signed the application due to his death or is otherwise verified by virtue of the documents relied upon by the Applicant?
2. First. I accept, as submitted by the Respondent that it is settled law that the Tribunal cannot review (and is bound to give effect to) the requirements of the Instrument. I accept as submitted by the Respondent that in order to verify the experience, as per the Instrument, the "Relevant Application Form" must be utilised and submitted. But, I also find that in this case, the various applications forms that were required of the Applicant to be submitted were submitted.
3. The next question is, was there sufficient information in the "Relevant Application Form" as submitted by the Applicant to find that his experience had been verified?
4. In this respect, I find that the Respondent's interpretation of the meaning and effect of the Instrument and specifically, what is required to "verify" the experience undertaken is too restrictive because of the following reasons.
5. The "Relevant Application Form" as referenced in the definition of Experience is not limited to the pieces of paper that form part of the document entitled "Application Form -Individual" but include the additional documents that are required such as the "Referee's Statements" and the "Additional Details Form 2". Those documents are required by the Respondent for such an application.
6. However, as extracted above, the "Application" also includes any supporting documents as expressly stated in the "Additional Details Form 2" and extracted at paragraph 30 which refers to the inclusion of such supporting documents as being in accordance with section 12 of the Licensing and Registration (Uniform Procedures) Act 2002. That these additional documents form part of "Application" is repeated in the Checklist document as extracted at paragraph 28 and the form of Referee Statement as extracted at paragraph 27.
7. This was accepted by the Respondent's representative during the hearing when it was put to him by the Tribunal.
8. This means that the letter of 20 January 2024, that I have treated as the Applicant's statement, (as extracted at paragraph 31) and the statutory declaration of the Applicant (as extracted at paragraph 32) are part of the Application.
9. However, I further find that the documents relied upon by the Applicant in these proceedings are also "additional supporting documents" and form part of the Application. This finding is consistent with the role of the Tribunal in "stepping into the shoes" of the original decision maker and reviewing the decision with regard to any relevant material before it at the time of the review as opposed to limiting itself to what was before the original decision-maker. To find otherwise would limit the Tribunal's consideration to what was before the original decision-maker and it is uncontroversial that this is wrong.
10. This supports that whether the experience is "verified" is a question of fact based upon the entire Application which includes all supporting documents and based on the circumstances. It is not a question of form.
11. In the current circumstances, the referee has died and cannot sign on the "dotted line". However, given the findings above, the absence of a signature on the Referee Form does not automatically equate to non-verification as verification is a question of fact to be determined in the circumstances. This approach is entirely consistent with the historical jurisprudential notion that procedural rules are intended to be the handmaiden of justice, not its master. It is also consistent with:

(1) section 12 of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW) because it acknowledges that an application must contain such information as is required by the relevant application form or as is otherwise required by or under the relevant licensing legislation. The latter alternative acknowledging that the criteria to be fulfilled is a matter of fact as opposed to strict compliance; and

(2) the Onsite Building Experience Form which uses the word "may" in the following context (as extracted at paragraph 25) which leaves the "door open" for the operation of a discretion to accept information that is not in strict compliance with the prescribed form:

I understand that Fair Trading may not accept any additional work claimed by the applicant that was under my supervision that is not included in this or any accompanying 'Applicant's On Site Building Experience' form(s). [Emphasis added]

1. I find that in considering the totality of the Application which includes the additional documents as attached to it as well as the documents before this Tribunal that the Applicant's experience with Mr Houston has been verified because of the following:

(1) the Respondent's concession that if the work experience with Mr Houston could be verified, it would meet the criteria for relevant work experience of two years within the last 10 years.

(2) the statement of the Applicant dated 20 January 2024 and the Applicant's statutory declaration, the substance of which was not challenged.

(3) the Applicant's oral evidence in cross-examination which verified and supported the written evidence and submissions of the Applicant.

(4) the Applicant's tax returns from 2011 to 2016 evidencing that he was employed by Attic and Roof Conversions which he gave evidence was a company controlled by Mr Houston and by which he was supervised by Mr Houston. I do not accept the Respondent's late contention that there is no connection as between Mr Houston and Attic and Roof Conversions because first, it is inherent in the concession noted at (1) above that this is true but, in any case, the Applicant has also relied upon the "hi-page" listing which evidences this connection as well as the statement of Mr Read as described above.

(5) the statement of Mr Hanney who observed the work of the Applicant under the supervision of Mr Houston for five years which was unchallenged.

(6) the statement of Mr Stritt, which was also unchallenged, who is a registered building designer and licensed builder and sits on the Council of Master Builders Association NSW and been a past President of the Master Builders Association Manly Warringah Division who states that he has supervised the Applicant's work directly on projects on the Northern Beaches including pool house renovations, remedial works throughout a two-storey home in Newport and structural balcony repairs in Avalon Beach.

(7) the statements from Mr Flegg, Mr Dale, Mr Smyth, Dr Mistry and Mr Read which were unchallenged. While I do not accept this evidence as amounting to a verification of a qualified supervisor, the description of the Applicant's capability is consistent with the Applicant having acquired the relevant "Experience" under a qualified supervisor and therefore supports that the necessary experience has been obtained.

1. Lastly, I accept that an Applicant cannot verify their own experience consistent with the decisions of Briggs and Limberis but I do not accept that the Application that is before me is limited to the Applicant's verification. Rather, and as decided above, "verification" is a question of fact to be resolved by virtue of the totality of the Application. In this case, I am satisfied that the experience of the Applicant has been verified consistent with the Instrument.

(1) The Decision under review is set aside.

(2) The Applicant's contractor licence is to be varied to include the category of general building work under the Home Building Act 1989 (NSW).

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.