Cooper v Commissioner for Fair Trading - [2017] NSWCATAD 242

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Cooper v Commissioner for Fair Trading [2017] NSWCATAD 242
Hearing dates: 12 April 2017
Date of orders: 08 August 2017
Decision date: 08 August 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: D Dinnen, Senior Member
Decision:
(1) The respondent’s decision to refuse the applicant’s application for a Qualified Supervisor Certificate is set aside.
(2) In substitution for that decision, the Tribunal decides that the Respondent is to issue the applicant with a Qualified Supervisor Certificate within 28 days of the date of this decision.
Catchwords: ADMINISTRATIVE REVIEW - Home Building Act 1989 - Application for qualified supervisor certificate – application of Instrument – Whether the Tribunal is satisfied that the applicant has the requisite qualifications and experience to be a supervisor
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Home Building Act 1989
Cases Cited: Wall v Commissioner for Fair Trading [2017] NSWCATOD 76
Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108
Category: Principal judgment
Parties: Wayne Cooper (Applicant)
Commissioner for Fair Trading (Respondent)
Representation: Wayne Cooper(Applicant in person)
Legal Services Fair Trading (Respondent)

File Number(s): 2016/00386107

REASONS FOR DECISION

On 21 September 2016 Wayne Cooper (“the Applicant”) applied to the Commissioner for Fair Trading (“the Respondent”) for a qualified supervisor certificate in the category of general building work under the Home Building Act 1989 (“the Act”). On 30 September 2016 the Respondent refused the application and on 23 November 2016 affirmed its decision on internal review, on the basis that the Applicant had “not met the relevant qualification requirements for the issue of a supervisor certificate for general building work”.
The Applicant previously held an individual contractor licence in the category of general building work for the period 20 August 1992 to 25 May 2005. He was also the holder of a qualified supervisor certificate in the category of general building work for the period 15 November 2004 to 15 November 2010.
The Applicant submitted a NSW TAFE Certificate – Civil Engineering Construction Carpentry Trade Course dated 31 December 1979, a transcript for 14 subjects completed as part of a Building Supervision Advanced Certificate Course through TAFE in 1991 and 1992, evidence of other training courses completed, references and referee statements as evidence to support his application.

Jurisdiction

The Tribunal has jurisdiction to review the Commissioner’s refusal of applicant’s application for a contractor licence under s 83B(1) of the Act, s 9 of the Administrative Decisions Review Act 1997 (NSW) and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW).

Relevant legislative provisions

Section 24(1)(b) of the Act specifies that the Secretary may grant supervisor certificates for the purposes of the Act.
Section 25(1)(a1) of the Act specifies that the Secretary must refuse an application for a supervisor or tradesperson certificate if the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33D of the Act.
Section 33D(1)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWCATAD 242
Decision Date: 08 August 2017

CaseChat Overview and Summary

In the matter of Cooper v Commissioner for Fair Trading, the applicant sought a review of the respondent’s decision to refuse their application for a Qualified Supervisor Certificate under the Home Building Act 1989. The dispute was heard and determined by the Civil and Administrative Tribunal of New South Wales. The primary issue before the Tribunal was whether the respondent was correct in their decision that the applicant did not possess the requisite qualifications and experience to be a supervisor. This involved an examination of the application of the relevant Instrument in the context of the applicant’s background.

The Tribunal carefully reviewed the evidence presented regarding the applicant’s qualifications and experience. It was noted that the respondent had applied a strict interpretation of the Instrument, which may have overlooked certain qualifications and experience of the applicant that were relevant to the role of a supervisor. The Tribunal found that the respondent’s decision was not in accordance with the statutory requirements, as it failed to consider all pertinent aspects of the applicant’s background. As such, the Tribunal concluded that the applicant did indeed meet the qualifications and experience necessary to be a qualified supervisor.

Consequently, the Tribunal ordered that the respondent’s decision to refuse the application for a Qualified Supervisor Certificate be set aside. In its place, the Tribunal directed that the respondent must issue the applicant with a Qualified Supervisor Certificate within 28 days from the date of the Tribunal’s decision. This ruling underscores the importance of a comprehensive and fair assessment of an applicant's qualifications and experience when determining their eligibility for such a certificate.

Orders

Orders of the court

(1) The respondent’s decision to refuse the applicant’s application for a Qualified Supervisor Certificate is set aside.

(2) In substitution for that decision, the Tribunal decides that the Respondent is to issue the applicant with a Qualified Supervisor Certificate within 28 days of the date of this decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Cooper v Commissioner for Fair Trading [2017] NSWCATAD 242
Hearing dates:	12 April 2017
Date of orders:	08 August 2017
Decision date:	08 August 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	(1) The respondent’s decision to refuse the applicant’s application for a Qualified Supervisor Certificate is set aside. (2) In substitution for that decision, the Tribunal decides that the Respondent is to issue the applicant with a Qualified Supervisor Certificate within 28 days of the date of this decision.
Catchwords:	ADMINISTRATIVE REVIEW - Home Building Act 1989 - Application for qualified supervisor certificate – application of Instrument – Whether the Tribunal is satisfied that the applicant has the requisite qualifications and experience to be a supervisor
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Home Building Act 1989
Cases Cited:	Wall v Commissioner for Fair Trading [2017] NSWCATOD 76 Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108
Category:	Principal judgment
Parties:	Wayne Cooper (Applicant) Commissioner for Fair Trading (Respondent)
Representation:	Wayne Cooper(Applicant in person) Legal Services Fair Trading (Respondent)
File Number(s):	2016/00386107