Wall v Commissioner for Fair Trading

Material before the Tribunal

1. The Commissioner relied on documents filed under s. 58 of the Administrative Decisions Review Act 1997 ('ADR Act'). Mr Nicoletti, solicitor representing the Commissioner, also made oral submissions.
2. The Applicant relied on a bundle of material filed 15 February 2017, including: 1. Letter to the Respondent dated 13 February 2017 2. List of Building Industry Course Completions; 3. List of Building Industry Site and Construction Supervision Experience; 4. Reference letter from Tony Edwards, Acting General Manager, Sydney Region, NSW Public Works, dated 6 September 2016; 5. Request for Internal Review letter dated 2 September 2016; 6. Completed NSW Fair Trading forms titled "Applicant's On Site Building Experience" and "Referee's Statement" dated 10 February 2017, 6 September 2016, 9 September 2016; 7. Position description for Project Manager, NSW Services Technology and Administration, for NSW Public Works dated 23 August 2010; 8. TAFE Certificate for completion of Building Foreman and Clerk of Works Post Trade Course, dated 31 December 1986; 9. TAFE Academic Transcript dated 6 March 1987; 10. Pictures from central Coast storm damage works project; 11. Project Cost and Billings from Central Coast storm damage works project; 12. Project cost and billings from "Bathroom Program" 13. Project management documents from Central Coast storm damage works project involving local public schools; 14. Project management documents from NSW Public Works projects including forecast cost worksheets; 15. Various certificates of achievement and recognition within the building industry and work health safety issues; 16. Residential building plans; 17. Reference from Mike Doherty, Client Group Manager, NSW Public Works, dated 23 March 1995; 18. Reference from Principal, Middle Harbour School, dated 2 May 1997; 19. Reference from Stewart House, dated 1 February 1996; 20. Letter from Shire President, dated 28 March 1991;
3. The Applicant also relied on a Statutory Declaration from Glen Balneaves dated 23 February 2017, including three additional NSW Fair Trading forms titled "Applicant's on Site Building Experience dated 23 February 2017", his Application, and oral evidence and submissions made during the hearing.

Jurisdiction of the Tribunal

1. The Tribunal is empowered to review the refusal of the Licence Application (s 83B(1) of the Act and s 55 of the ADR Act). Section 63 of the ADR Act requires the Tribunal, in determining an application concerning an administratively reviewable decision, to decide what the correct and preferable decision is having regard to the material then before it (including material not previously available to or considered by the administrator) and any applicable written or unwritten law, and authorises the Tribunal to affirm, vary or set aside the administratively reviewable decision. The Tribunal makes its own decision in place of that of NSW Fair Trading and there is no presumption that the decision of NSW Fair Trading is correct. (see McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357.)
2. If the Tribunal sets aside that decision the Tribunal is to either make a decision in substitution for that decision or remit the matter for reconsideration by the administrator who made the decision.
3. Section 64(4) of the ADR Act states: In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may have regard to any other applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.

The applicable qualification and experience requirements

1. The Act sets out the licensing requirements in relation to the home building industry in New South Wales.
2. Section 20 of the Act states that an application for a contractor licence must be refused if the Secretary is not satisfied as to the matter of which the Secretary is required to be satisfied by ss 33B and 33C: 20 Issue of contractor licences (1) The Secretary must refuse an application for a contractor licence if: (a) the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence, or (a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33C, or … (2) The regulations may fix or provide for the Secretary to determine additional standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued. …
3. Relevantly, s 33C refers to a requirement to satisfy s 33D: 33C Additional requirements for obtaining contractor licences (1) A contractor licence must not be issued unless the Secretary is satisfied that: (a) the applicant has, or proposes to have, such numbers of nominated supervisors for the contractor licence as the Secretary 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) satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant, and … (6) 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 Secretary and has not been revoked. (7) In subsection (6) (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. … (10) The Secretary may, by order, exempt an applicant from a requirement in relation to nominated supervisors if the Secretary is satisfied that there are special circumstances that warrant it.
4. Section 33D states: 33D Additional requirements for obtaining supervisor and tradesperson certificates (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 (c) is capable of doing or supervising work for which the certificate is required. …
5. The Secretary's determination referred to in S 33D(1)(a) is submitted by the Commissioner to be manifested in the Commissioner's Instrument dated 22 April 2016.

Issues for the Tribunal

1. The Applicant's evidence, which was not contested, included that: He had been employed by the Department of Public Works for over 34 years. He had progressed to the position of 9/10 District Manager of the Construction Services Group within the department, overseeing maintenance contracts and construction of new buildings and contracts throughout New South Wales. He implemented, maintained and advised his staff of the requirements and administration of the relevant building codes in relation to many facets of building work, similar and/or equal to residential construction; He oversaw 55 staff; He had completed training in procurement, contracts, project and construction management; He had managed and/or overseen new school constructions, major renovations and additions, and had also managed and procured the clean up and repair of storm damage to: all schools from the 2007 storms near Newcastle, the 2009 Blacktown storms, and the Central Coast storm damage from 2015. He also managed a Land and Housing Program involving the removal and installation of bathrooms to 68 properties in accordance with residential building codes.
2. It was conceded at hearing that the Applicant had completed at least two years of residential building experience, whilst engaged by the Department of Public Works.
3. The issue was that there was no one available to complete a "referee statement" form from the Department of Public Works, because the Department of Public Works is not licensed under the Act, nor is it required to be licensed for residential building work, nor are its employees required to be licensed to carry out their duties, despite working to the relevant Codes. This was further compounded by the sale of the Department of Public Works Construction Services Group in 2016.
4. When faced with this issue, the Applicant obtained signed referee statement forms from Glen Balneaves, whom he had worked for on an occasional and ad-hoc basis over the years, and created referee statement forms for his experience with the Department of Public Works. The latter were not accepted by the Commissioner because they were not technically acceptable, since they were not signed by someone with a contractor licence.
5. The former, being the referee statements signed by Glen Balneaves, were rejected by the Commissioner for two reasons - they firstly deemed that the dates worked by Mr Wall did not amount to the requisite two year minimum, and secondly deemed that he was an unlicensed subcontractor and therefore the experience was ineligible.
6. On the evidence, I agree that Mr Wall's work experience with Mr Balneaves falls short of the required two year minimum period. At hearing, evidence was taken from Mr Wall as to exactly how many days of the periods described in the referee statements were worked by him. Taking that evidence at its highest, and accrediting time for overlapping projects, it doesn't equate to two years. Nor could it, in circumstances where he only ceased working for the NSW Department of Public Works in late 2016.
7. In the case of Locking v Department of Finance and Services [2013] NSWADT 239, the Administrative Decisions Tribunal considered a case whereby the issue of relevant industry experience in a wide range of building construction work was one of the issues examined. In her decision, Deputy President Hennessy observed that ... experience in carpentry and joinery work is not the equivalent of "a wide range of building construction work" as required by the Instrument. 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. ...Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing... 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.
8. In my view, and as was rightfully conceded by the Commissioner, Mr Wall's experience with the Department of Public Works would amount to more than two years' residential building work experience, and would satisfy the concept of "relevant industry experience in a wide range of building construction work" described in Locking.
9. Despite this concession by the Commissioner, and an acknowledgement at hearing that there would be minimal risk involved in Mr Wall holding a contractor licence, the Commissioner maintained its decision to reject Mr Wall's application, on the basis that the requirements contained in the Commissioner's Instrument were not met.

Issues with the Commissioner's Instrument

1. The Commissioner submitted that the Instrument was reproduced on its publicly accessible website, a copy of which was provided in the s 58 documents as follows: Approved qualifications and experience The current qualification and experience requirements, outlined below, commenced on 22 April 2016. If you have previously held a licence in the prescribed class of 'building' and you reapply for an endorsed contractor licence or qualified supervisors certificate within 2 years of the former licence's expiry, your previous licence or qualified supervisors certificate will be accepted in lieu of the current qualification requirements. No additional evidence of practical experience is required to be supplied with the application. All other applicants must submit acceptable evidence of practical experience and qualifications as outlined below. Practical experience requirements Applicants must show at least 2 years relevant industry experience in a wide range of building construction work where the majority of the experience was obtained within 10 years of the date on which the application is made. "Experience" means experience gained by the applicant as: a) an employee of, or b) a holder of a 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 supervisor certificate in the capacity of a nominated supervisor for a contractor licence held by an individual, partnership or corporation contracted to, the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained ("the Work"), where the applicant, during the relevant period, was: supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the Work, and this is verified in the Relevant Application Form; and remunerated with money in accordance with law for the Work which the applicant carried out; NOTE TO APPLICANTS: Applicants must provide their experience on relevant application forms which is the approved 'Referee Statement' form along with as many 'Applicant's Residential Building Experience' forms required to demonstrate the minimum of 2 years full-time equivalent relevant building experience. The requirement for practical experience in a wide range of building construction work may include but is not limited to: experience that demonstrates the ability or capacity to competently manage the construction of residential building work on site in accordance with the Building Code of Australia, including dealing effectively with sub-contractors, consumers and other parties. Relevant experience to meet the 2 year requirement may be obtained over an extended period depending on an applicant's circumstances. Applicants must be aware that the experience that will be assessed by Fair Trading is in respect of the work performed on sites to a 2-year full-time equivalent under the supervision of a fully licensed builder (as detailed in the approved qualifications and experience above). The majority of the sites must be for periods of time within 10 years of the application date to ensure the applicant meets the current requirements. Fair Trading will assess individual sites and will determine if the work performed is relevant and meets the requirements. When calculating two years' site-based experience, overlapping sites can be considered but will be assessed as the one period of time. To enable assessment of their total experience, the application should be lodged with complete information regarding all of the applicant's relevant industry experience in a wide range of building construction work. This may include as many Referee's Statement Forms and as many job sites required to reflect the full extent of the applicant's experience. Experience predominantly in singular trade work will not meet the experience requirements. Applicants should demonstrate experience across all stages of construction to satisfy that they have the capacity to do, coordinate and supervise general building work in the construction of a residential dwelling. Experience as an Owner Builder or for the holder of an Owner Builder Permit is not acceptable to meet the requirements for an endorsed licence or certificate as a Builder. The referee must have held a Qualified Supervisor Certificate or Individual Contractor Licence (Q) in the class of General Building Work issued by NSW Fair Trading during the period of time of the stated experience. Failure to provide all relevant site based experience in a wide range of building construction work may result in the application being refused on initial assessment if the information provided does not demonstrate the necessary industry experience.
2. A copy of the actual Instrument was not provided to the Tribunal until it was specifically requested by the Tribunal after this decision was reserved. It does not appear to have been provided to Mr Wall. It is entirely unsatisfactory for the Commissioner to not have provided a copy of the relevant Instrument to Mr Wall when rejecting his application initially or on internal review, as the wording of the Instrument was critical to both the initial decision and the review decision. It is also clearly "relevant to the determination of the application by the Tribunal" and therefore should have been provided to the Tribunal pursuant to s 58 of the ADR Act.
3. The Instrument states: Home Building Act 1989 Section 330(1) INSTRUMENT Qualification requirements for an endorsed contractor licence or supervisor certificate for general building work I, Rod Stowe, Commissioner for Fair Trading, Department of Finance, Services and Innovation, as the "Secretary" under the Home Building Act 1989: determine the possession of qualifications or the passing of examinations; and consider the possession of experience, necessary for an applicant for the issue of a Licence or Certificate to be as follows: where the application is made on or after the date on which this Instrument is signed ("the Commencement Date"): the possession of qualifications or the passing of examinations specified in Column 1 of Table A to Schedule 1; and the possession of experience specified in Column 2 of Table A opposite the relevant matter in Column 1; where the application is made before the Commencement Date: the possession of qualifications or the passing of examinations; and (b) the possession of experience, specified in the instrument dealing with the same matters as this Instrument which was in force at the time the relevant application was made. Dated this 22nd day of April 2016 Rod Stowe Commissioner for Fair Trading Department of Finance, Services and Innovation
4. There then follow seven pages of "explanatory notes" and "Schedules", which relevantly included the following: Explanatory note The Commissioner for Fair Trading, Department of Finance, Services and Innovation is at the date of this instrument the "Secretary" under the Home Building Act 1989 and the Home Building Regulation 2014. See paragraph (a) of the definition of "Secretary" in clause 1(1) of Schedule 1 to the Home Building Act 1989. Interpretation In this Instrument: … "Experience" means experience gained by the applicant as: (a) an employee of; or (b) a holder of a 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 supervisor certificate in the capacity of a nominated supervisor for a contractor licence held by an individual, partnership or corporation contracted to, the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained ("the Work"), where the applicant, during the relevant period, was: • supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the Work, and this is verified in the Relevant Application Form; and • remunerated with money in accordance with law for the Work which the applicant carried out; "Relevant Application Form" means 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); Schedule 1 Table A Column 2: Experience: At least two years' relevant industry Experience in a wide range of building construction work, where the majority of that Experience was obtained within 10 years of the date on which the application is made.
5. The first half of the reproduced statement at paragraph 29 above reflects, to a large extent, the terms of the Instrument relevant to the issues for determination in these proceedings. However, the second half of the reproduced statement, commencing "Note to Applicants", was not part of the Instrument. The Tribunal could not consider this a "policy" of the Respondent on the basis that pursuant to s64(4) of the ADR Act, it produces an unjust decision for the Applicant in these circumstances. It may provide some guidance to those applicants wishing to apply to the Commissioner for a licence, but cannot be considered reflective of the eligibility requirements under the Act.
6. The distinction is important because it was the Commissioner's submission that the Applicant's failure to appropriately or correctly complete the "Referee's Statement" forms was a basis for it rejecting the application.
7. In this respect, the Tribunal was faced with similar issues to those addressed in Watts v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2017] NSWCATOD 60 where Senior Member Isenberg noted: One of the grounds stated in the initial decision was that certain information was "not on an approved Referee's Statement Form". …. I find that both the initial decision and the review decision's requirement that certain information must be on an approved Referee's Statement has no legal justification and those decisions, in that respect are invalid. The relevant requirement, as set out in the Commissioner's own Instrument, relates not to the use of the particular form, but to the provision of relevant experiential information in "areas required by the [form] current at the date of the application" It may well be that officers of Fair Trading regard the use of the Referee's Statement as best practice and that its use assists their work. However, the Commissioner is well aware, having been informed on numerous occasions by this Tribunal and the Administrative Decisions Tribunal, that there is no legal requirement for the Referee's Statement to be used by an applicant in support of an application for an occupational license or authority under the Act. The repeated insistence on such use by the Fair Trading officers and the need for that insistence to be repeatedly addressed by the Tribunal does not assist the "just, quick and cheap resolution of the real issues" in relevant matters before the Tribunal nor does it evidence compliance by the Commissioner with his duty to co-operate with the Tribunal pursuant to the requirements of s 36 of the Civil and Administrative Tribunal Act 2013.
8. I agree with Senior Member Isenberg's concerns with respect to the Commissioner's continued insistence and reliance on these referee statements being unnecessary to the requirements of the Act and contrary to its duties to the Tribunal pursuant to s 36 of the Civil and Administrative Tribunal Act 2013. Further, it is contrary to s 80(1) of the Interpretation Act 1987 to require strict compliance with such a form.
9. Mr Wall's explanation as to why he was unable to obtain the specified Referee Statement from his former employer, the Department of Public Works, is in all accounts reasonable and I accept it. His evidence established, and the Commissioner conceded, that he holds the requisite qualifications for the granting of a contractor licence, has extensive relevant practical experience, and poses no identifiable risks to consumers or public safety as identified in the Act.
10. The additional difficulty faced by Mr Wall in this matter is that his employer, from which he gained his requisite experience in residential building work, was not technically required to be licensed under the Act and its officers were, therefore, generally not licensed. This was submitted by Mr Wall to be an absurdity resulting from the terms of the Instrument in its operation which only anticipated applicants who had gained experience with private building works, and ignored those who worked in the public sector.
11. In Plaintiff M47/2012 v Director General of Security (2012) 86 ALJR 1372; [2012] HCA 46, Chief Justice French, as he then was, expressed the classic principle of the validity of delegated legislation at [54] as follows: … Even without that "expressed constraint" delegated legislation cannot be repugnant to the Act which confers the power to make it. Repugnancy or inconsistency may be manifested in various ways. An important consideration in judging inconsistency for present purposes is "the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned." A grant of power to make regulations in terms conferred by s 504 does not authorise regulations which will "extend the scope or general operation of the enactment but [are] strictly ancillary." In considering whether there has been a valid exercise of the regulation-making power "[t]he true nature and purpose of the power must be determined".
12. I agree with Mr Wall's submission that the Commissioner's Instrument creates an absurdity or at the very least an incongruity. The Act as expressed at s 33D provides the Secretary with an ability to specify the qualifications, experience and capabilities necessary to fulfil the objects of the Act, and to do or supervise "the work for which the certificate is required". There is nothing before me which suggests that obtaining appropriate experience through the public sector should intentionally or unintentionally exclude a licence applicant under the Act. To the extent that the Commissioner's Instrument restricts the Act's operation to this effect there would be an inconsistency and it would be repugnant to the Act. The Commissioner's Instrument, or at least those parts which were repugnant to the Act, would therefore be invalid.
13. In the circumstances, with specific reference to his extensive relevant practical work experience with the Department of Public Works, and where it has been conceded by the Commissioner that Mr Wall's experience and qualifications are sufficient, I consider the correct and preferable decision is to grant Mr Wall the licence for which he has applied.

orders 1. The decision under review is set aside. 2. In substitution for the decision under review, Mr Wall is granted an Individual Contractor Licence for the category of General Building under the Home Building Act 1989. 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: 17 May 2017