Sillitoe v Commissioner for Fair Trading

Background

1. Mr Sillitoe has worked in the building industry for approximately 45 years. He commenced work as an apprentice carpenter in 1975 working for his first employer Alex Finlayson from 1976 until 1981. He then worked for a building company Owen and Fiveash from 1981- 1983 and again from 1986 - 1989. Mr Sillitoe was employed for a number of years with Beralla Homes. Mr Sillitoe subcontracted to Errol Steinhardt (a builder) from 1992 - 1997 with short stints subcontracting to Acer Engineering and Blue Vista Pty Ltd in the period 2016 to early 2019. He subcontracted part time for short periods in 2019 to his previous employer Owen and Fiveash (now called Owen and Fiveash Partner Pty Ltd). Mr Sillitoe subcontracted to Christopher Mammen from late 2019 until April 2021. Some of this period was impacted to a minor extent by the Covid 19 lockdown provisions
2. It was not in dispute that Mr Sillitoe had a lengthy period of work and experience in the building industry, predominantly including the residential home building industry. The Commissioner now contends on Administrative Review that Mr Sillitoe's experience does not meet the specific requirements as set out in the Home Building Instrument, (the HB Instrument), and that much of Mr Sillitoe's claimed experience cannot be counted due to the circumstances in which it was gained being outside the specific requirements of the HB Instrument.

Jurisdiction

1. The Refusal Notice was issued under the provisions of s 14 (3) of the Licensing and Registration (Uniform Procedures) Act 2002. As a result of that action it was open to Mr Sillitoe to lodge an administrative review with the Tribunal under the provisions of s 83B of the HB Act.
2. The HB Act provides: 83B Administrative reviews by Tribunal (1) An applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Secretary relating to the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (Emphasis added)
3. The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
4. The Tribunal has jurisdiction under the HB Act as noted at [11] above.
5. As noted from the section above, an application under s 83B of the HB Act is an administrative review. The Tribunal's function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

What issues do these proceedings raise for determination?

1. On my assessment the issues are as set out by the Commissioner's representative:

• Whether the Tribunal can be satisfied that Mr Sillitoe has demonstrated experience in a 'wide range of building construction work';
• Whether the Tribunal can be satisfied that the experience Mr Sillitoe has gained is 'relevant industry experience', and
• Whether the Tribunal can be satisfied that Mr Sillitoe was 'supervised and directed in the doing of the work by the holder of an endorsed contractor licence or supervisor certificate authorising the holder to supervise the work'.

Applicant's written evidence

• Exhibit 'A-1': Application for Review, Affidavit of A R Sillitoe 22 November 2021, Affidavit of G R Sillitoe 29 November 2021.
• Exhibit 'A-2': Affidavit of A R Sillitoe sworn 27 January 2022 annexing earlier Affidavits and Referee Statements.
• Exhibit 'A-3' Tax Invoices for work performed and itemised by applicant.

Respondent's written evidence

• Exhibit 'R-1' Documents filed under s 58 ADR Act
• Exhibit 'R-2' Copy of Instrument and Table under s 33D of the HB Act dated 31 March 2017.
• Exhibit 'R-3' Result of Fair Trading Licence searches for: C Mammen, G Sillitoe and Bluevista.

1. Both parties were legally represented and provided detailed written submissions and made oral submissions at hearing.
2. Mr A Sillitoe (the applicant), Mr G Sillitoe Mr C Mammen, Mr A Finlayson and Mr E Steinhardt gave evidence on behalf of Mr Sillitoe and were subject to cross-examination at hearing.

The applicant's case

1. Mr Sillitoe's case is that he possesses in excess of two years' experience whilst lawfully engaged and supervised by a holder of the requisite licence, such experience being in a broad or wide range of building work. In support of this proposition the following matters were submitted by his representative.
2. The affidavit of Gary Sillitoe affirmed 29 November 2021 sets out the following range of work performed by Mr Sillitoe: 1. Erection of new frames (premade and made on site) 2. Erection of trusses (premade and made on site) 3. Construction of roofs - iron and Colourbond 4. Installing gutters 5. Installing eaves 6. Installing facia 7. Installation of windows and flashings 8. Site set out 9. Boxing of slabs 10. Concreter pours and finishing 11. Reading plans 12. Demolition work 13. Internal fit outs - doors, door furniture, architraves, skirtings, kitchen manufacture and installation of cabinetry 14. Boxing and laying of concrete paths and driveways 15. Dealing with customers and Council inspectors.
3. The witness observed this work (submitted as representing a broad range of building construction work) during the period 1981-1983 and 1986-1988 after which the witness went and worked elsewhere. This work was supported by the witness as the relevant supervisor was since deceased.
4. The referee statements of Christopher Mammen provide evidence of 19 months experience of Mr Sillitoe working with and under the direction of this builder in the period October 2019 to November 2021 (non continuous periods).
5. The evidence of the other witnesses also verified and built upon the evidence of Mr Sillitoe's experience and skill in the period prior to the last 10 years. In respect of the timeframe Mr Sillitoe submitted that the evidence demonstrates that he completed 265 days in the last 10 years working under the supervision of Mr Mammen, and also completed 20 working days working for Owen and Fiveash relevantly supervised. This work totals 285 days and it was submitted involved a wide range of building construction work. Further it was submitted that 285 exceeds the number of full time working days in any one calendar year. As a year has 365 days, and accounting for weekends (104 days) and NSW Public holidays - nine days), there are only approximately 252 full time working days per annum. Mr Sillitoe submitted that his 285 days in the last 10 years exceed the 'majority of time' test being 50.1% of two years, with the balance made up from the experience lawfully gained in his 18 years prior experience.

The Commissioner's case

1. The Commissioner submitted that the evidence adduced at hearing could not satisfy the Tribunal that Mr Sillitoe has experience in a wide range of building construction work. The Commissioner submitted that many of Mr Sillitoe's witnesses who gave evidence at hearing were either not credible or sought to inflate the import of their evidence or embellish it.
2. The Commissioner took issue with attempts by Mr Sillitoe to have unqualified witnesses (such as ones who did not hold a supervisor certificate at the relevant time) verify work performed under the supervision of another.
3. Further issues were raised with the scope and calibre of the work performed by Mr Sillitoe with submissions that it did not meet the criteria of a wide range of building construction work.

Alan Sillitoe's evidence

1. Mr Sillitoe gave evidence on day one and was recalled on day two. He was subject to cross-examination. He was asked questions as to the work he did with each builder, namely: Work with Alec Finlayson - Construction of roofing, iron roofing, colourbond as an apprentice, working with other carpenters. Mr Sillitoe said that the work would have involved learning to do the roofing and flashings. He would also have helped plumbers install gutters by doing the line markings on the fascia, putting the brackets on. Mr Sillitoe agreed that this work was not carpentry work but that it was work involved with building a house.
2. Mr Sillitoe gave evidence about gyprocking and helping gyprockers, He denied the proposition put by the Commissioner that he was 'more of a labourer' and said that he 'marked, measured, cut, glued and nailed' the gyprock into place.
3. Mr Sillitoe confirmed that some of the work he performed involved the reading of plans, and waterproofing wet areas. He did this work for Mr Finlayson under his supervision.
4. When employed at Owen and Fiveash Mr Sillitoe gave the following overview of the work. He said that his work as a carpenter entailed being given plans and would set up and set out a house. He would work with others and set it out, dig footings, place the steel, pour the concrete, supervise the bricklayers to get the foundations up while it was a concrete slab or a timber floor. He said that they would do the whole job to completion, which would include: frames, trusses, fascia, eaves, windows, and help the gyprockers. Mr Sillitoe said that they 'would do the whole job right through to finish'.
5. In respect of his work with Berala Homes Mr Sillitoe gave evidence that he did carpentry as his core work but also did waterproofing and worked with bricklayers on site. Whilst he did not lay bricks his evidence was that he would do the setting out for the bricklayers and ensure that everything was correct. He said that the work he did with the bricklayers, included bonds RLs (Relative Levels), and gauges (keeping the course at the same height at corners). Mr Sillitoe estimated that he would have done this work at 18 home sites over the three years with that employer.
6. In respect of his work for Mr Erol Steinhardt Mr Sillitoe's evidence confirmed that he: set out the perimeter of the building, which included putting in pegs, putting in profiles and setting string lines up, prepared for the laying of the slabs, which included boxing, placing sand or sand fill, the digging of footings inside the slab, and placing the plastic steel chairs (which elevate the reo) ready for concreting.
7. Mr Sillitoe gave the following evidence concerning supervising trades during the Steinhardt engagement. He said that he would supervise what the tiler would require when they came on site, and make sure that all the work complied with the plans for the other trades such as electrical. He said that he would go through with the electrician where the power outlets and the light fittings and everything else had to go. He would set out for the plumber in respect of pipe and tap outlets, checking that what the plumber had stipulated would work inside such as where the taps actually had to go for showers and the bathtubs.
8. Mr Sillitoe did not agree with the proposition that he was coordinating rather than supervising trades.
9. In respect of work for Blue Vista Pty Limited Mr Sillitoe confirmed he worked for this company and mainly performed carpentry work. In respect of Acer Engineering Mr Sillitoe also confirmed that he did not do carpentry but did installation of structural steel on a residential unit block.
10. Mr Sillitoe confirmed he spent 265 working days on carrying out building work as a sub-contractor to Christopher Mammen in respect of the 141 Brown Street and 22 Bishop Street job sites. When questioned about the days claimed on his Application, Mr Sillitoe admitted he was mistaken after an analysis of the invoices issued to Mr Mammen.
11. In respect to the percentage of work carried out by him at 141 Brown Street, Mr Sillitoe said that it comprised: Carpentry - 50%, Bricklaying - 2%, Excavation - 5%, Fencing - 1%, Concrete slabs and footings 10 - 15%, Glazing/windows - 2%, Plumbing/painting - 2%, Roofing - nil, Stonemasonry - nil, Structural landscaping, decks, stairs, ramps - 10%, Underpinning / piering - nil, Tiling - 1%, Waterproofing - 2%, Wet plastering - nil, Dry plastering - 15%.
12. The Tribunal asked a number of question of Mr Sillitoe concerning his specific duties in his claimed experience (s 38 NCAT Act). In respect of plumbing work Mr Sillitoe confirmed that under supervision he had performed the digging of trenches and the measuring, cutting and laying of pipes.
13. In respect of electrical work Mr Sillitoe said that he set out the position of power points and set out the kitchens in order to determine the position of the power points and light switches. In respect of roofing, he confirmed that he performed steel roofing under supervision. The Tribunal questioned of Mr Sillitoe about the types of methods that he used during his career (tools / techniques) including whether his work involved the need to assess levels. He said that he started using water levels but now used laser levels to gauge levels. He was proficient in steelwork construction including drilling steel.
14. In respect of his lengthy experience Mr Sillitoe confirmed that he worked on new builds, renovation work, repair work and extension work.

Christopher Mammon's evidence

1. Mr Mammen gave evidence on Day 1 and Day 2 of the Hearing. His evidence related to confirming the Applicant's time and experience in the 10 year period prior to the lodgement of the Application.
2. Mr Mammen, said Mr Sillitoe acted as a Site Foreman in the event that Mr Mammen was not on site and confirmed that Mr Sillitoe did more than carpentry work.
3. Mr Mammen, confirmed that in addition to general carpentry work, Mr Sillitoe carried out other work under his direction or under the direction of trades that Mr Mammen employed as subcontractors in the following areas: concreting work, preparing formwork, pouring concrete, under his instruction as well as roofing work, metal roofing under his instruction.
4. Mr Mammen confirmed that Mr Sillitoe was proficient in the use of laser levelling equipment.
5. An issue arose during Mr Mammen's evidence around possible breaches of the Home Building Act with work on sites occurring without supervision. Mr Sillitoe's representative submitted that the evidence established that Mr Sillitoe did supervise the trades albeit on instructions from Mr Mammen. At the very lowest it was submitted that some of the evidence indicated that Mr Sillitoe coordinated the trades.
6. Mr Mammen did not retract from the statement in his referee report as regards to supervision of all trades. He said that Mr Sillitoe 'would be saying those instructions after I had instructed him' and that Mr Sillitoe 'would ring me and ask for instructions'.
7. In respect to the roofing, Mr Mammen confirmed that Mr Sillitoe did roofing work, being the installation of the metal roof sheeting, associated flashings, guttering and things his own licence would allow him to do.
8. Mr Mammen conceded that the word "supervised" could be described as "assisted with". In this regard Mr Mammen listed building works including: -placement of reinforcement steel, preparation of footings, concrete pours, actual concrete pours in respect to tile capping (1 metre wide, 15 metres long and 500mm deep), steel placement in sub-floor slab and sun deck, wall framing, floor joists, roof trusses, outside waterproofing, fascia and stormwater gutters, fixing roofing.
9. In cross-examination of Mr Mammen was asked to provide an estimate of the type of work carried out by Mr Sillitoe at 141 Brown Street. Mr Mammen answered that the percentages of the work involved carpentry and joinery - 85%, bricklaying - nil, decoration - nil, dry plastering - 5%, excavating - 2%, fencing and gates - 2%, concreting - 5%, glazing and windows, including carpentry -1%, kitchen and bathroom - nil, welding fabrication - 1%, roof plumbing - 5%, stonemasonry - nil, structural landscaping nil, swimming pool - n/a, underpinning - nil, tiling: nil and plastering and rendering - n/a. In giving this evidence Mr Mammen stated that that Mr Sillitoe was very experienced.
10. When asked about an earlier remark that Mr Mammen had said he would let Mr Sillitoe build a house for him and how he came to that conclusion Mr Mammen said this was based on his view that as Mr Sillitoe was a little bit older than him, he had been building for longer and that the quality of his work is more than adequate.

Mr Finlayson's evidence

1. Mr Finlayson gave evidence in part relayed by his wife. Mr Finlayson is of advanced age and had great difficulty hearing the questions put to him and these were relayed by his wife in the earshot of the parties.
2. Mr Finlayson confirmed that Mr Sillitoe worked for him in 1976 to 1981. He said Mr Sillitoe was a very good apprentice and that he did other building work other than just carpentry work. He said that there were things like concreting or that type of thing, but he would've had the whole area on the building site.
3. Mrs Finlayson was asked to covey whether Mr Finlayson agreed the work described in the Affidavit of Mr Sillitoe reflected the work that he did for Mr Finlayson while he worked there. The Tribunal was told that Mr Finlayson agreed that it did. Mr Finlayson described the role of carpenters on a building site in the following manner. He said that: 'the work was more than carpentry work', and that 'what was ever required on a job the carpenters did'.

Gary Sillitoe's evidence

1. This witness confirmed he witnessed the work carried out by the Applicant described in the Affidavit sworn 29 November 2021 [Exhibit A1].
2. Mr Sillitoe's representative submitted that there was confusion from Gary Sillitoe about the number of days that Mr Sillitoe worked for Owen & Fiveash Pty Ltd on two building sites. The time stated on Mr Sillitoe's referee statement amounted to 27 calendar days not 30 in total. However it was submitted that it would be extremely likely that the Applicant worked at both sites on the same day, and that there are 20 working days during this period.
3. Mr Gary Sillitoe confirmed that his brother was an experienced person that should have obtained his builder's licence many years ago.

Mr Erol Steinhardt's evidence

1. Mr Steinhardt referred to the circumstances existing in the Armidale area at the time Mr Sillitoe worked for him in 1992 to 1997. It was submitted that the evidence shows that carpenters did work outside their licenced area as compared to present times. This provided the Applicant with experience most new builders obtaining licences today will never experience.
2. Mr Steinhardt confirmed that he and his trades did every facet of home building work and that they did not bring in subcontractors (other than for plumbing and electrical if no internal tradespersons). They did not subcontract out for concreters and did the work 'in house'.

Mr Sillitoe's submissions

1. An issue arose during the hearing that there was a period in the time claimed where Mr Sillitoe had failed to renew his licence, and was in effect working unlicensed. Mr Sillitoe submitted that this should not count against him that the five (5) month period should not be deducted because:

• The Applicant was under a misapprehension that New South Wales Fair Trading did not require him to lodge a formal Application due to the COVID.
• The Applicant during this period performed works under the supervision of Mr Mammen, a licenced building contractor.
• Section 13 of the Home Building Act 1989 - as previously interpreted by the Tribunal.

1. Mr Sillitoe submitted that in the case of Edwards v Commission of Fair Trading [2022] NSWCATOD 40 'Edwards', addresses s 13 HB Act. Senior Member Montgomery referred at [17] to the case of Shoobridge v Commissioner of Fair Trading . [2015] NSWCATOD 42. 17. In Shoobridge v Commissioner of Fair Trading [2015] NSWCATOD 42 Senior Member Molony commented on the views expressed in Hale. He stated at paragraphs [19] - [20]: 19. In my opinion s 13 of the Home Building Act 1989 clearly contemplates unqualified (and therefore unlicensed) individuals doing residential building work under the supervision or direction of the holder of an endorsed contractor licence or supervisor certificate. The extract Senior Member Isenberg quoted from the Explanatory Memorandum for the Bill provides clear evidence of a legislative intention that the individuals who carry out the work must either be appropriately licenced or supervised by someone who holds an appropriate licence. While I agree that s 12 and s 4 on their face appear to prohibit all unlicensed residential building work (with the exception of employees only), such an interpretation is inconsistent with the clear words of s 13(1). In reading the Act as whole it should be construed so as to give each provision meaning. The conclusion reached in Hale in my view is compelling. I note that it has been subsequently followed by the same member in Sollazzo v Commissioner of Fair Trading [2015] NSWCATOD 20' 20. I therefore consider that relevant experience by a person who is engaged and paid as a subcontractor, which experience is gained under the supervision of a person who is the holder of an endorsed contract or a supervisor certificate, is experience gained by a person who is "lawfully engaged" for the purpose of the standard.
2. Mr Sillitoe submitted that he met the experience requirements of the Instrument. He submitted that the evidence supports his work in the early days as an employee and after obtaining his licence as a subcontractor. At all times he worked under the supervision of a licenced building contractor, holding an endorsed contractor's licence in the category of Full General Building Work. The licenced builders had held those licences in excess of two (2) years.
3. Further Mr Sillitoe submitted that he met the 'wide range of building construction work' criteria in that: The Applicant has been fortunate to actually carrying out work outside his licenced category. Further, he has experienced changes in the building industry that provide him with knowledge not currently available to builders going through the licencing process in recent years. Despite the discussion over "supervision" it is clear from the evidence that the Applicant did supervise the trades albeit after clarification with Mr Mammen. One could conclude that Mr Sillitoe has been involved in actual supervision from the time he became a partner in the 1980's. The experience set out in the written evidence of the Applicant and his referees supplemented by oral evidence in chief and cross-examination. The experience is set out and is also in the Applicant's Submissions in Reply from the Tribunal. The experience was gained while constructing new homes, renovations, extension and repair work. (pgs 14 and 15 App's submissions).
4. Mr Sillitoe submitted that he had complied with the 50.1% work experience requirement in the last 10 years. He submitted that the appropriate period was therefore the period 5 April 2012 to 4 April 2022 being the last day of Hearing.
5. Mr Sillitoe submitted that he was required to give evidence over the two days of the hearing, with evidence being heard as to the period undertaken by the Applicant in undertaking residential building work under the supervision of a licenced builder. He submitted that there were two licenced builders relied upon to support this evidence and the fact that he worked at least 50.01% in that period. The invoices support a period of 265 working days [Exhibit A3] coupled with the 20 days experience working for Owen and Fiveash Pty Ltd. (285 days total). Further invoices received in April 2022 verified this time.
6. Mr Sillitoe noted the issue raised about having his work and experience verified by some witnesses who were not his nominated / authorised supervisors. Reference was again made to the case of Edwards, where it was submitted the Tribunal was faced with the fact that Mr Edwards tendered evidence as to his own experience without proper verification.
7. However, Mr Sillitoe submitted that there have been numerous cases decided that support the fact that an Applicant is not precluded from providing evidence of their own experience, however, that experience should be corroborated by third party referees. Reference was made to the case of Edrees v Commissioner of Fair Trading 2021 [NSW] CATAD 32 where Senior Member Isenberg refers to this requirement and refers to other Decisions in the Tribunal confirming such, being: (i) NGO v Commissioner of Fair Trading - Department of Finance, Services and Innovation [2019] NSW CATOD 103 and (ii) Shoobridge v Commissioner of Fair Trading [2015] NSW CATOD 42. Mr Sillitoe submitted that those precedents did not apply to his circumstances because he was not verifying his own work, merely providing detail in answer to questions in cross-examination. He provided corroboration of the work from witnesses. In the case of Edwards such evidence was not provided and that applicant failed in their Review Application as a result.
8. In closing submissions Mr Sillitoe noted that the real issue concerned whether he possessed experience in a wide range of building construction work. This issue was central but was also lifted from an identical position of the Commissioner, in that this was the issue to decide.
9. Mr Sillitoe submitted that his experience with Owen and Fiveash is corroborated by the evidence of Gary Sillitoe (as both Mr Owen and Mr Fiveash are deceased) and that there was no prohibition on the Tribunal taking into account third party evidence when determining evidence to support a claim of experience, as distinct from experience whilst working under a supervisor who was a nominated referee.
10. Mr Sillitoe submitted and provided evidence that he worked under the supervision of Mr Owen Fiveash and that Gary Sillitoe as a lead carpenter on site observed his brother (the applicant) working under the direction and supervision of Mr Fiveash. Reference was made again to the observations of the Tribunal in Endrees at [58] referring to referring to Ngo (at [100]). 100 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.
11. In the current matter Mr Sillitoe submitted that there was ample oral evidence available to have regard to concerning his breadth of experience, notwithstanding that it was uncorroborated by the person directing the work. The witness evidence of Gary Sillitoe carries some weight and to a lesser extent the Tribunal also applies some weight to Mr Sillitoe's own evidence.
12. In closing Mr Sillitoe submitted that he had established that: (i) He has been in the building industry for some 46 years. (ii) He has undertaking building construction work to build a house from start to finish. (iii) He has supervised trades or coordinated trades in the building and construction process under the supervision of a licenced builder or a licenced contractor. (iv) He has displayed a good understanding of various building techniques and processes put to him by the Senior Member during the Hearing. (v) He has had, due to the length of time in the industry, a wide knowledge of building and construction processes not available to builders that have obtained their licences in recent years. (vi) He is a good tradesman, having a carpenter/joiner licence since 1989. It is submitted that such trade provides a sound basis for Applicants wishing to obtain a builder's licence as it is the core trade in the building of new homes, renovations, extensions and repairs. (vii) He is highly regarded by his referees.

Commissioner's submissions

1. Some of the Commissioner's submissions prior to and during the evidence have been referred to above. The Commissioner made extensive submissions about the application of the Instrument and referred to a line of cases prior to recent amendments. The Commissioner made submissions about the import of the 5 July 2021 amendments to the HB Act. Reference was made to the amendment to s 20 which it was submitted gave the Instrument legislative force. 20 Issue of contractor licences (1).. (1A). (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.
2. Similarly, s 25 was also amended in respect of Supervisor certificates: 25 Issue of certificates (1). (1A). (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 supervisor or tradesperson certificate.
3. Reference was made to the central question concerning a wide range of building construction work with references to Ngo and the case of Price v Commissioner for Fair Trading [2020] NSWCATOD 93. In Ngo the Tribunal observed the term to mean (at [53]): 53. 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."
4. In the case of Price the Tribunal observed the following about the central issue of the breadth of experience at [61] and [70]: 61. In Locking v Department of Finance and Services [2013] NSWADT 239 at [17-19] Deputy President Hennessey stated when referring to Mr Locking's stated experience as a carpenter: 17. This experience in carpentry and joinery work is not the equivalent of "a wide range of building construction work" as required by the Instrument. Carpentry and joinery work is a sub-category of building. It is only one aspect of the work required to be done in order to complete the construction of a residential dwelling. 18. A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling. Additionally, a builder must be able to determine that all trades have complied with all standards and requirements. There are many gaps in Mr Locking's trade supervisory experience and therefore his understanding of certain trades. Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing. 19. A building contractor is also able to contract with the public, and must therefore be able to negotiate a contract, quote for a project and co-ordinate the trades to be able to complete the project on time and within budget. He or she must also be able to negotiate and discuss the jobs with council and private certifiers to ensure that the work is passed fit when appropriate. 70. Mr Price argued that his 37 years in the building industry provided sufficient experience for him to obtain a builders licence. He held a builders licence between 2002 to 2009 and has held other licences in the building industry. He argued that he is familiar with the building code and the standards. He contended that a carpenter is able to supervise all of the trades and is experienced in all the fundamental structural principles. He stated that he had supervised other tradespersons. Mr Buttigieg stated that this occurred when he himself left a site to pick something up. Mr Price argued that the principles attached to building or renovating a bathroom or kitchen are the same as those in relation to other aspects of building a house. However, the Tribunal notes that the Instrument focuses on demonstration of the Applicant's experience in work. That is the evidence needs to show that the Applicant has had experience in undertaking the kind of work expected of the contractor. This is not the same as understanding the principles. In this respect, the Tribunal notes there are different principles that apply in the areas of plumbing, tiling, waterproofing, carpentry and painting. Each of these callings has its own applicable skills.
5. As noted above the Commissioner took issue with the quality of some of the evidence adduced at hearing. Other than an issue where Mr Mammen was directed to evidence which might constitute evidence of non-compliance with aspects of the HB Act, submissions were also made about the evidence of other witnesses (including Mr Sillitoe) generally.
6. Significant submissions were made that the evidence (in written form) only really made out a claim for carpentry work, rather than a wide range of building construction work. Following the hearing the Commissioner's submissions addressed apparent deficiencies in the evidence such as references to 'helping plumbers' and 'helping roofers'.
7. Other submissions were made applying the rules of evidence in a strict manner, where the elderly witness (Finlayson) was given some latitude concerning leading questions in the main due to his poor hearing. The Commissioner submitted not that this was in any way unfair but that the evidence should be given little or no weight as a result.
8. Further criticisms were made about the quality of Mr Sillitoe's evidence during cross-examination and during inquiry by the Tribunal. The focus seemed to be drilling down into the detail of the answers to determine the exact, specific and step by step actual work that Mr Sillitoe performed to address the 'wide range of building construction work'.
9. The Commissioner submitted that Mr Finlayson's evidence should be given no weight, and that Gary Sillitoe's evidence should carry low weight because it was affected by 'blind endorsement' of the applicant's work. Queries were made about technical aspects of Mr Steinhardt's evidence, such as whose words were in the written form and as such the evidence is unreliable. The other evidence from the witnesses and job sites did not, in the Commissioner's view, meet the criteria of a 'wide range of building construction work'.

Consideration

1. This matter was heard over two days whereby most of the hearing involved adducing evidence from a significant number of witnesses. The Commissioner took issue on a number of occasions with some of the evidence and in written submissions prior to the hearing identified that Mr Sillitoe's work was not wide ranging enough. In submissions after hearing the Commissioner focussed in detail on the calibre of the evidence.
2. I have some issue with this interpretation of the evidence and material and observed the evidence as illustrating a somewhat different position.
3. All of the witnesses (including Mr Sillitoe) where tradespersons who had worked for their careers in the residential construction industry predominantly. Many of the witnesses would be described as builders. They were not expert witnesses. As is central in these licence application reviews the trade of carpentry (or carpenter and joiner) is often the central pathway to obtaining a supervisors certificate to work as a building under the HB Act. Whilst at times individual trades (not carpentry) such as tiling or roofing do seek to become builders, the usual course is through the carpentry pathway. Other trades go on to obtain contractor licences in the main, but not exclusively, such as plumbers, electricians, painters, tilers, gyprockers / plasterers, roofers etc.
4. This position may change and may well be changing, but the position outlined above has arisen, from my observation due to the former licencing systems that predate the HB Act and where carpenters went on to do what was historically referred to as a 'Clerk of Works'. These days there are many different pathways to becoming a builder than when Mr Sillitoe commenced his carpentry apprenticeship in the 1970's. Carpentry and joinery was considered the central trade in a residential building scenario.
5. The paragraphs above are not intended to be a statement of the law, merely a statement of the residential building environment during the first half at least of Mr Sillitoe's career. They are outlined to illustrate that carpentry involves more than merely working with wood in construction. As the evidence of many of the witnesses indicated, carpenters were and to some extent still are expected to do work that does not pose a safety risk (such as electrical, plumbing and roof tiling) as the lead trade on site, including as required, labouring.
6. In the conduct of the hearing and the cross-examination in particular, the Commissioner did not appear to appreciate the basis or reason for this evidence arising from Mr Sillitoe's lengthy work as a fully qualified carpenter.
7. The above comment is not a criticism of how the Commissioner chose to run their case but is meant to illustrate that there appeared to be a lack of context and a proper understanding of the basis of much of the evidence. When noting that an applicant usually only has one or two qualified referees fill in a three-page form settling out in bullet form the nature of the experience gained and type of work performed, the detail is usually quite brief but must be sufficient for the Department to make a ruling. This is in addition to setting out the verifiable information such as dates, sites etc. and how an applicant was engaged.
8. I find that these proceedings have examined Mr Sillitoe's level of experience in far greater detail than any referee statement on a proscribed form could.
9. Having heard the evidence and examined it closely I do no share the Commissioner's concerns about Mr Sillitoe not meeting the criteria for the Licence based on his experience in a wide range of building construction work. I agree with Mr Sillitoe's submissions that the evidence demonstrates that he does possess the relevant experience.
10. In my view he answered the Tribunal's questions satisfactorily and did not embellish his answers. If anything, it appeared that the Commissioner was at times having some difficulty in understanding aspects of the industry as illustrated by an exchange on day one of cross-examination concerning setting out the brickwork for bricklayers. Whilst both parties have obtained and had the benefit of the relevant portions of the Transcript in preparing their submissions, the Transcript does not in my view illustrate that the builders gave their evidence of work and arrangements on sites other than in a candid and straightforward manner having regard to the fact that they are all tradespersons speaking in general term their own language about their trade.
11. If anything, the approach taken by the Commissioner in cross-examination and some of the written submissions were overly critical and (understandably) absent specific knowledge about industry matters. This situation may have arisen because the licencing arm of the Department ceased to be involved in the matter following the statutory Refusal Notice.
12. As noted above these observations are not criticisms but are set out to explain possible reasons as to why I viewed the evidence in an apparently different light to the Commissioner, as set out in their submissions.
13. As this is a hearing afresh, it is open to the Tribunal to make fresh findings on the totality of the evidence and material before it. As noted, the limitations of the transcript are not a substitute for the Tribunal's own observations and scrutiny of the import of evidence at the time it was given.
14. In conclusion I find that the evidence is sufficient to establish that Mr Sillitoe has experience in a wide range of residential building work. Whilst he would be more proficient in some areas outside his qualifications than others due to less time performing those roles, in my view the evidence is sufficient to satisfy the requirement in the instrument and as a result the HB Act. Mr Sillitoe's experience is lengthy and detailed. His immediate difficulty in my view was meeting the majority in the last 10 years requirement for gaining experience under the Instrument.
15. Unlike some of the cases referred to by the Commissioner, Mr Sillitoe has a broad range of experience over many years. He is not as is the case in some of the examples referred to by the Commissioner, a contractor who holds a discrete qualification (such as a tiler) who then purports to have obtained a wide range of building experience by reference to work that he did under the supervision and direction of appropriate licence holders.
16. Unlike the case of Locking (Locking v Department of Finance and Services [2013] NSWADT 239) referred to at [74] above in the context of the discussion in Price Mr Sillitoe's evidence demonstrates a broad range of experience. Overall he was referred to by qualified witnesses as being able to construct a dwelling from site set out to lock up. In Locking at [18] - [19] the Administrative Decisions Tribunal (ADT) sets out the issue. 18. A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling. Additionally, a builder must be able to determine that all trades have complied with all standards and requirements. There are many gaps in Mr Locking's trade supervisory experience and therefore his understanding of certain trades. Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing. 19. A building contractor is also able to contract with the public, and must therefore be able to negotiate a contract, quote for a project and co-ordinate the trades to be able to complete the project on time and within budget. He or she must also be able to negotiate and discuss the jobs with council and private certifiers to ensure that the work is passed fit when appropriate.
17. In my view the evidence demonstrates that Mr Sillitoe's knowledge and experience is well beyond that as discussed concerning the claimant in Locking albeit Mr Sillitoe's core trade is also carpentry.
18. In respect of the period where Mr Sillitoe's licence had recently lapsed for a short period as set out at [58] and [59] above, I agree with his submissions that this should not impact on his application. As he set out in submissions concerning s 13 of the HB Act, and caselaw, the fact that a person is not at the time qualified or holding the relevant licence to do the work, does not prevent them doing some work under supervision. The case of Edwards addresses this at [19]: 19. In my opinion s 13 of the Home Building Act 1989 clearly contemplates unqualified (and therefore unlicensed) individuals doing residential building work under the supervision or direction of the holder of an endorsed contractor licence or supervisor certificate. The extract Senior Member Isenberg quoted from the Explanatory Memorandum for the Bill provides clear evidence of a legislative intention that the individuals who carry out the work must either be appropriately licenced or supervised by someone who holds an appropriate licence. While I agree that s 12 and s 4 on their face appear to prohibit all unlicensed residential building work (with the exception of employees only), such an interpretation is inconsistent with the clear words of s 13(1). In reading the Act as whole it should be construed so as to give each provision meaning. The conclusion reached in Hale in my view is compelling. I note that it has been subsequently followed by the same member in Sollazzo v Commissioner of Fair Trading [2015] NSWCATOD 20'
19. Likewise, the submission of the Commissioner that the negotiation, contractual and liaising abilities are insufficient to be granted the licence is in my view not supported by the evidence. On day two Mr Sillitoe gave ample evidence about the ability to read plans and liaise with other trades. It was clear that he had done this for many years from his evidence. In respect of dealing with clients directly whilst this was limited, that was because ordinarily the supervisor / contractor licence holder who made the contract with the customer would usually perform this role. This is an administrative aspect of building and includes approvals, quantity surveying and negotiating changes to the job and work arounds with the client.
20. I am satisfied because of the evidence about how matters would be delegated to him under supervision, that Mr Sillitoe possesses sufficient expertise and more importantly experience in this important area referred to at [98] to meet the requirements of the Instrument.
21. In respect of the Instrument and its applicability to these proceedings I accept that the current instrument and the provisions of s 20 (2) and 25(2) of the HB Act apply consistent with the Appeal Panel reasoning in the case of Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112.
22. Mr Sillitoe has the relevant qualifications to hold the licence, noting that this was never in dispute in the proceedings, and I so find. I also find that he has met the requirement of two years experience and that the majority of that experience was obtained in the last 10 years. In addition I find that the experience is in a wide range of building construction work. Mr Sillitoe gave evidence, as did his witnesses, that he carried out work or supervised / coordinated trades who did the work, and that at all times he was lawfully engaged (including the period here his licence had lapsed for a short while).

Conclusion

1. For the reasons set out above, the Commissioner's statutory refusal of the licence under s 14 (3) of the Licensing and Registration (Uniform Procedures) Act 2002 will need to be set aside so that a contractor licence in the category of general building work may issue.

Orders 1. The decision of the Respondent under s 14 (3) of the Licensing and Registration (Uniform Procedures) Act 2002 dated 6 September 2021 is set aside. 2. The Respondent is to grant the Applicant a variation to his licence - specifically an Individual Contractor Licence in the area of General Building Work within 28 days of the publication of these reasons for decision.

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: 28 October 2022