This is an appeal from a decision of this Tribunal given on 13 March 2014 (A Scahill, Senior Member). The Tribunal affirmed the Respondent's decision to refuse the appellant's application for a qualified supervisor certificate under s24 of the Home Building Act 1989 (the Act).
Sections 24 and 25 of the Act provide:
24 Application to tradesperson and supervisor certificates of Licensing and Registration (Uniform Procedures) Act 2002
(1) The Chief Executive may grant the following certificates for the purposes of this Act:
(a) tradesperson certificates,
(b) supervisor certificates.
(2) Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 (the applied Act) applies to and in respect of a tradesperson certificate or supervisor certificate, subject to the modifications and limitations prescribed by or under this Act.
(3) For the purpose of applying Part 2 of the applied Act to a tradesperson certificate or supervisor certificate:
(a) the certificate may be amended under that Act, and
(b) the references to 2 weeks, 4 weeks and 8 weeks in section 9 (1) (a), (b) and (c) of that Act are each to be read as references to 6 weeks, and
(c) an application for restoration of a licence under section 10 of that Act may not be made more than 3 months after the date on which the licence expires, and
(d) the reference to 14 days in section 24 (1) of that Act (as to the period within which changed particulars must be notified) is to be read as a reference to 7 days.
(4) An application for a tradesperson certificate or supervisor certificate may be made only by an individual, and not by a corporation, partnership or other association.
(5) Subject to this section, the regulations may make provision for or with respect to such matters concerning a tradesperson certificate or supervisor certificate as are relevant to the operation of Part 2 of the applied Act.
25 Issue of certificates
(1) The Chief Executive must refuse an application for a supervisor or tradesperson certificate if:
(a) the Chief Executive is not satisfied that the applicant is a fit and proper person to hold such a certificate, or
(a1) the Chief Executive is not satisfied as to the matters of which the Chief Executive is required to be satisfied by sections 33B and 33D, or
(b) the applicant is a mentally incapacitated person, or
(c) the applicant is disqualified by this Act or the regulations from holding such a certificate, or
(d) the Chief Executive considers that a close associate of the applicant who would not be a fit and proper person to hold an authority exercises a significant influence over the applicant or the operation and management of the applicant's business.
(1A) Without limiting subsection (1) (a), in determining whether an applicant is a fit and proper person to hold a certificate the Chief Executive is to consider whether the applicant is of good repute, having regard to character, honesty and integrity.
(2) The regulations may specify or provide for the Chief Executive to determine additional qualifications that must be held or other requirements that must be met before any supervisor or tradesperson certificate is issued or before such a certificate of a particular kind is issued.
(3) The Chief Executive must refuse an application for a supervisor or tradesperson certificate:
(a) if the Chief Executive is not satisfied that any such requirement would be met were the certificate to be issued, or
(b) if the applicant has not completed, at a standard acceptable to the Chief Executive, any relevant examination or practical test (or both) conducted or nominated by the Chief Executive and required by the Chief Executive to be completed by the applicant.
(4) A decision of the Chief Executive relating to:
(a) the determining of qualifications or other requirements under subsection (2), or
(b) the setting of standards or selecting of examinations or tests under subsection (3), cannot be reviewed by the Tribunal in an application for an administrative review made under this or any other Act.
At relevant times the Home Building Regulation 2004 was in force. Clauses 26 and 28 of that Regulation are relevant to this case :
26 Additional requirements for obtaining contractor licences
(1) Before a contractor licence is issued, the Director-General must be satisfied that:
(a) the applicant has, or proposes to have, such numbers of nominated supervisors for the contractor licence as the Director-General considers are needed to ensure that all work for which the contractor licence is required will be done or supervised by qualified individuals, and
(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) complies with the requirements prescribed by clause 28 (1), and
(ii) is not disqualified from holding a supervisor certificate or a supervisor certificate of a particular kind, and
(iii) is not the holder of a supervisor certificate that is suspended.
(2) Despite clause 25 (1) (a) (xii), the Director-General may issue a contractor licence if:
(a) the licence authorises its holder to do residential building work or specialist work of the kind prescribed by clause 46 (clause 46 (1) (a) and (b) excepted) but not of any other kind, and
(b) the Director-General is of the opinion that:
(i) there is no evident risk to the public that the applicant will be unable to complete building contracts entered into in the future for the doing of residential building work or specialist work of that kind, or both, and
(ii) the relevant person concerned took all reasonable steps to avoid the bankruptcy, liquidation or appointment of a controller or administrator, and
(c) the licence is subject to a condition that the holder not do work:
(i) if the contract price exceeds $20,000 (inclusive of GST), or (ii) if the contract price is not known - where the reasonable cost of the labour and materials involved in the work exceeds $20,000 (inclusive of GST).
(3) Despite clause 25 (1) (a) (xiii), the Director-General may issue a contractor licence if the Director-General is of the opinion that:
(a) there is no evident risk to the public that the applicant will be unable to complete building contracts entered into in the future for the doing of residential building work or specialist work of that kind, or both, and
(b) the relevant person concerned took all reasonable steps to avoid the bankruptcy, liquidation or appointment of a controller or administrator.
(3A) A contractor licence issued under subclause (3) may be issued subject to any of the following conditions:
(a) that the licence authorises its holder to do residential building work or specialist work of the kind prescribed by clause 46 (clause 46 (1) (a) and (b) excepted) but not of any other kind,
(b) that the holder of the licence not do work:
(i) if the contract price exceeds $20,000 (inclusive of GST), or
(ii) if the contract price is not known - where the reasonable cost of the labour and materials involved in the work exceeds $20,000 (inclusive of GST).
(4) An individual may be a nominated supervisor for a contractor licence only if the individual:
(a) holds an endorsed contractor licence or a supervisor certificate that authorises its holder to supervise some or all of the work done under contracts for which the contractor licence applied for or held is required, and
(b) is, or is proposed by the applicant or holder to be, an employee of, or a member of the partnership or director of the corporation that is, the applicant or holder, and
(c) made a consent declaration that is lodged with the Director-General and has not been revoked.
(5) In subclause (4) (b), employee means an employee who is required, by the terms of employment, to work for his or her employer otherwise than on a casual or temporary basis.
(6) Subject to subclause (7), an individual cannot be the nominated supervisor for more than one contractor licence unless the Director-General:
(a) is satisfied that special circumstances exist that will ensure that the individual, either alone or in conjunction with one or more other nominated supervisors, will supervise all work done under contracts for which each contractor licence is required, and
(b) gives written permission.
(7) The holder of an endorsed contractor licence does not require the Director-General's permission to become the nominated supervisor for only one other contractor licence.
(8) The Director-General may, by order, exempt an applicant from a requirement in relation to nominated supervisors if the Director-General is satisfied that there are special circumstances that warrant it.
28 Additional requirements for obtaining certificates
(1) Before a certificate is issued, the Director-General must be satisfied that the applicant:
(a) has such qualifications or has passed such examinations or practical tests, or both, as the Director-General 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 Director-General considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and
(c) is capable of doing or supervising work for which the certificate is required.
(2) Despite clause 25 (1) (a) (xii) and (xiii), the Director-General may issue a qualified supervisor certificate if the Director-General is satisfied that the relevant person took all reasonable steps to avoid the bankruptcy, winding up or appointment of a controller or administrator.
For the purposes of clause 28 the respondent, as it appears, from time to time published an instrument indicating the qualifications and experience necessary to be demonstrated by an Applicant for a Licence or Certificate. The instrument relevant to this case contained, in the first of two columns, a list of Qualifications or Examinations deemed by the respondent to be a necessary prerequisite. It is common ground that the appellant, at all times, possessed the appropriate educational qualifications.
The second column under the heading "Experience" stated 'at least 2 years relevant industry experience in a wide range of building construction work'. Whether the appellant possesses such experience is the matter to be determined in this case the Tribunal below having found that he did not. The matter is complicated by the fact that much of the experience relied on by the appellant was under the supervision of a registered architect. Since 2 May 2013, an architect is not a person acceptable for that purpose but when the application was made on 27 March 2013, an architect was so acceptable.
The Tribunal below (with respect, correctly in our view) approached its task as follows:
12 The ADT's approach to dealing with this kind of review was set out by the Tribunal in the matter of Tange v NSW Fair Trading [2013] NSWADT 201 at paragraphs 47-51 - set out below.
13 Section 63 of the ADT Act provides that in determining an application for review the Tribunal 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 restricted to a consideration of the material that was before the Respondent, 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 179; (1979) 46 FLR 409.
14 A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.
15 The Tribunal is able to take account of evidence that was not before the decision maker but is bound by the standards set in the Instrument.
Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The respondent refused the appellant's application on 21 June 2013. He expressed himself as not satisfied that the appellant had "two years acceptable relevant industry experience". Moreover he declined to accept that there had been the requisite supervisory relationship between the appellant and architect Mr Garry Stanley upon whose reference the appellant relied.
At the hearing below the appellant relied on work performed for varying periods under the supervision of Mr Stanley, a licenced builder Mr Frizoli and a second licenced builder Mr Mirko Naidofski.
In relation to Mr Stanley, the appellant claimed that he had worked with him from 15 January 2007 to December 2012, well over the 2 year period stipulated. Mr Naidofski attested to the fact that he employed the appellant part time from 1 January 2003 to February 2015. Mr Frizoli being deceased there was no verification of the appellant's claim to have worked for him.
At the hearing before us, the appellant sought to adduce fresh evidence pursuant to s80(3) of the Civil and Administrative Tribunal Act 2013. We granted such leave on the basis that it tended to clarify the material before the Tribunal below. In the absence of such clarification we considered that the appellant potentially suffered a significant injustice particularly by being deprived, for reasons stated above, of the opportunity in a fresh application to rely upon his period of service under the supervision of Mr Stanley.
Apart from admitting material relating to the work performed for Mr Stanley we also admitted, in the interests of justice, an affidavit of Mirko Naidofski sworn 23 October 2014 which we reproduce in full:
1 I am a trade instructor. I currently hold a site supervsiors licence under the Home Building Act.
2 At the time I was supervising Simon Ullrich as a builder I was the holder of a Contractors licence.
3 I am unaware of any endorsements on my licence or my supervisors licence. I am unaware of any complaints made about works I have undertaken as a supervisor or builder.
4 I was during the period January 2003 to February 2005 engaged (sic) Mr Ullrich to work for Albert Frosili as a leading hand and carpenter. He was engaged to actively do trade works in the area of carpenter, including some general building works
5 I directly supervised his works and was responsible for tha acceptance of the same..
6 I do not have access to the records of Mr Frosili however my recollections are that he worked for us for three to four days a week for a period of two years.
7 I was supervising his works as I was aware that he was unlicenced.
8 He was required to supervise and attend to all trades and skilled and unskilled labour required for the construction of residential buildings.
9 Each of these jobs where I supervised him were in NSW and subject to the Home Building Act and the Building Code of Australia and the conditions of the development consent.
10 I have provided a reference which I believe to be true as to his work and do not have any reservations in endorsing him as a builder.
As to the fresh evidence received from Mr Stanley it included his affidavit sworn 16 October 2014 which we also reproduce in full:
1 I am an architect, registered as such in NSW and my registration number is 5389.
2 I engaged Simon Ullrich as a builder to supervise the trades over the period of 5 years.
3 I directly supervised his works as he was a subcontractor.
4 My records show that he was employed for an average period of 44 weeks per year.
5 I was supervising his works as I was aware that he was unlicenced.
6 He was required to supervise and attend to all trades and skilled and unskilled (sic) required for the construction of residential buildings.
7 Each of these jobs where I supervised him were in NSW and subject to the Home Building Act and the Building Code of Australia and the conditions of the development consent.
Also admitted into evidence before us, as Exhibit A, was a formal statement (bearing the logo of the respondent) as to the appellant's residential building experience completed by Mr Stanley on 27 August 2014. The statement related to residential building work carried out by the appellant at a terrace house owned by Mr Stanley in Paddington.
According to Mr Stanley the appellant worked on the house during 7 separate periods, totalling 578 hours or (based on a 38 hour week) 15.3 weeks.
Mr Stanley gave oral evidence and was cross-examined by Mr Maynard who appeared for the respondent. While it seemed to be conceded that Mr Stanley closely supervised the work on his own home it was suggested that such supervision did not on the occasions when the appellant contracted with property owners to perform work where Mr Stanley's role was that of supervising architect. Mr Stanley said that he attended the other sites "when needed 3-4 hours per week".
In respect of his own house, Mr Stanley said that a storey was removed and rebuilt. He described the work as "very complex".
In Exhibit A, Mr Stanley gave his opinion as to the knowledge and experience of the appellant:
2. I certify that the applicant has demonstrated a level of knowledge and experience in a wide range of building work which would allow him/her to competently perform the roles and responsibility of a licensed builder. This includes and is not limited to:
Applying building codes and standards to the construction process in accordance with the Building Code of Australia.
Dealing effectively with Sub-contractors, consumers and other parties
Reading and interpreting plans and specifications
Planning building or construction projects and work
Organising site surveys and set-out procedures to building and construction projects.
Applying structural principles to residential constructions
Conducting on-site supervision of building and construction projects
Applying legal requirements to building and construction projects
Managing occupational health and safety in a building and construction workplace.
In its reasons, the Tribunal below dealt with the material it had before it emanating from Mr Stanley and Mr Naidofski in the following way:
59 The Tribunal finds that Mr Stanley did not employ nor engage the Applicant as a subcontractor. Mr Stanley stated that he did not supervise the Applicant in the carrying out of his work. Accordingly the Applicant's work with Mr Stanley does not qualify to be considered as experience as set out by the relevant instrument.
60 Mr Naidofski has not been available to assist the Tribunal to calculate the full-time equivalent of the Applicant's part-time employment with him between January 2003 and February 2005.
In light of the fresh material before us and particularly the oral evidence of Mr Stanley (whom we regard as an impressive witness doing his best to assist the Tribunal) we respectfully take a different view from that recorded by the Tribunal. In saying this we do not discount all together, the appellant's own evidence of his work for Mr Frisoli and others during a very lengthy period of work in the home building industry. It is not a requirement of the statutory regime that all previous experience relied upon must be independently corroborated. Mr Stanley's high opinion of his knowledge and skill seems to provide general support for the appellant's evidence.
As it seems to us, the evidence, taken as a whole, does establish that the appellant meets the requirement that he has had at least two years' relevant experience in a wide range of building construction work. In our opinion, the Tribunal erred in finding to the contrary albeit without the benefit of the additional material before us.
The appeal should be allowed and the certificate applied for by the appellant should be granted. It will follow that the corporate license applied for by Takahe Enterprises Pty Ltd should also be granted.
[2]
ORDERS
1. Appeal allowed
2. Order that a Qualified Supervisor Certificate in the category of "General Building Work" be granted to the appellant.
3. Order that a contractor's licence be issued to Takahe Enterprises Pty Ltd.
4. No order as to costs
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
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Decision last updated: 07 May 2015