Doumit v Commissioner for Fair Trading, Office of Fair Trading

[2008] NSWADT 138

CITATION:	Doumit v Commissioner for Fair Trading, Office of Fair Trading [2008] NSWADT 138
DIVISION:	General Division
PARTIES:	APPLICANT Basil Doumit RESPONDENT Commissioner for Fair Trading, Office of Fair Trading
FILE NUMBER:	073341
HEARING DATES:	8 February 2008
SUBMISSIONS CLOSED:	8 February 2008
DATE OF DECISION:	14 May 2008
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Home Building Act - home builder - issue of contractor licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decision Tribunal Act 1997 Home Building Act 1989 Home Building Regulation 2004
CASES CITED:	Commonwealth and Baume (1905) 2 CLR 405 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
REPRESENTATION:	APPLICANT In person RESPONDENT P Bourke, solicitor
ORDERS:	1. The decision of the Commissioner to refuse Mr Doumit’s application for a contractor licence is set aside 2. The application is remitted to the Commissioner for reconsideration in accordance with these reasons.

Introduction

1 Basil Doumit holds a Bachelor of Engineering (Civil Engineering) - Honours Class II, Division 1 - from the University of Sydney. It was awarded to him on 9 May 2003. In the course of his university studies Mr Doumit successfully completed, among other things, core units in structural engineering, a third year elective in Structural Analysis, and fourth year electives in Structural Dynamics, Bridge Engineering, Finite Element methods, Steel Structures 2 and Concrete Structures 2.

2 According to Professor Kim Rasmussen, the Head of the School of Engineering, when Mr Doumit commenced his studies the School did not run specialty streams. It has since introduced specialty streams including a stream, which leads to the granting of a bachelors degree in Civil Engineering (Structural). To qualify for that degree students must graduate with an average of 65 of above, and undertake one elective third year unit and three elective fourth year units in structural engineering. In a letter dated 23 October 2007 Professor Rasmussen wrote that:

“In summary, Mr Doumit’s Bachelor of Engineering degree from the University of Sydney specialised in the area of structural engineering and would have qualified for a designated stream in structural engineering under today’s regulation.”
3 Since his graduation Mr Doumit says he has worked as a structural engineer in the construction industry.

4 On 23 August 2007 Mr Doumit applied to the Office of Fair Trading for an individual contractor licence under the Home Building Act 1989. On 13 September 2007 a delegate of the Commissioner refused Mr Doumit’s application on two grounds. First, that his degree in Civil Engineering “is not an acceptable qualification unless it is accompanied by a Certificate IV in Building.” Secondly, that he had not provided acceptable reference verifying two years relevant industry experience.

5 On 1 October Mr Doumit wrote requesting a review of that decision. In that letter he asserted that an examination of the subjects he had studied while at University showed his degree is one in structural engineering. In so doing he referred to the subjects he had studied and the present faculty handbook, which, among other things, sets out the requirements for the granting of a bachelor’s degree in Civil Engineering (Structural). He also enclosed further evidence of his practical experience.

6 At the same time he requested assistance from the School of Civil Engineering, which resulted in Professor Rasmussen’s letter. When that letter was received, he forwarded it to the OFT with a detailed transcript of his academic record provided by the University.

7 On 31 October 2007 a delegate completed the internal review. This time Mr Doumit’s evidence of two years relevant practical experience was accepted. The decision to refuse his application for a contractor licence was affirmed on the basis that Mr Doumit had not attained a qualification in structural engineering, and had not provided a copy of a formal qualification in structural engineering. The internal review officer commented that:

“A letter from the Head of the School of Civil Engineering is not attaining a qualification ins structural engineering.”
8 On 19 November 2007 Mr Doumit lodged an application in this Tribunal seeking to review the decision of the Commissioner to refuse his application for a contractor licence. Section 63 of the Administrative Decision Tribunal Act 1997 says 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 constrained to have regard only to the material that was before the Commissioner, 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) 46 FLR 409.

Issue

9 The issue before the Tribunal is whether or not Mr Doumit satisfies the requirements of the standards for a buildings contractors licence required by the Commissioner. That standard requires that an applicant have:

“At least two years relevant industry experience in a wide range of building and construction work PLUS attainment of any one of the following qualifications or examinations:

1. Certificate IV in Building (3477) conducted by a Registered Training Organisation PLUS either a Carpentry, Carpentry & Joinery or Bricklaying Trade Course from TAFE or a Registered Training Organisation or hold a current Carpentry, Carpentry & Joinery or Bricklaying contractor licence or supervisor certificate.

2. Diploma in Building (3475) conducted by a Registered Training Organisation including TAFE.

3. Advanced Diploma in Building (3471) conducted by Registered Training Organisation including TAFE.

4. Certificate IV in Building Studies (1261) from TAFE AND either - a Carpentry, Carpentry & Joinery or Bricklaying Trade Course from TAFE or a Registered Training Organisation hold a current Carpentry, Carpentry & Joinery or Bricklaying contractor licence or supervisor certificate.

5. Diploma in Building Studies (1262) from TAFE.

6. Advanced Diploma in Building Studies (1263) from TAFE.

7. Advanced Diploma in Structural Engineering (6443) from TAFE.

8. Degree, Diploma or Advanced Diploma in Building, Construction, Construction Management, Construction Economics, Applied Science (Building), Structural Engineering or Quantity Surveying from an Australian University.

9. Certificate of Registration as an Architect under the Architects Act 2003.

10. A degree in Civil Engineering or Architecture from and Australian University PLUS Certificate IV in Building (3477 or TAFE Course 1261).

10 It is agreed that Mr Doumit satisfies the practical experience requirements.

Consideration

11 Section 20(2) of the Home Building Act 1989 provides that the regulations may fix or provide for the Commissioner to determine standards or other requirements that must be met before any contractor licence is issued. Section 20(5) of the Act provides that a decision of the Commissioner relating to the determining of qualifications or other requirements under sub-section (2) cannot be reviewed by the Tribunal in an application for review.

12 Clause 26(1)(b)(ii) of the Home Building Regulation 2004 reads:

"Before a contractor licence is issued, the [Commissioner] must be satisfied that the applicant, if also applying for an endorsement of the contractor licence to show that it is equivalent of a supervisor certificate complies with the requirements prescribed by clause 28(1)."
13 Clause 28(1) in turn provides:
“Before a certificate is issued, the [Commissioner] must be satisfied that the applicant:
(a) has such qualifications or has passed such examinations or practical tests, or both, as the [Commissioner] determined 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 [Commissioner] 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."

14 The standard established by the Commissioner is that set out is paragraph 9. The Commissioner submits that as Mr Doumit holds a Degree in Civil Engineering, but does not hold a Certificate IV in Building as required by point 10 of the standard, he does not satisfy the standard. Mr Doumit submits that despite the title given to his degree it is in fact a degree qualification in structural engineering and that he therefore meets the requirements of the standard.

15 The letter from Professor Kim Rasmussen establishes that if Mr Doumit had undertaken when the University of Sydney offered a degree in Civil Engineering (Structural), the subjects he studied and was examined on, together with the passes he obtained, would have resulted in him being eligible for the award of that degree. In the course of the hearing I asked Ms Bourke who appeared for the Commissioner why I should not conclude that the degree Mr Doumit holds is the equivalent of a degree in structural engineering from an Australian University, which satisfies the requirements of point 8 of the standard. Ms Bourke replied that the standard makes no allowance for equivalents, and cannot be satisfied by the holding of an equivalent qualification. She did not dispute, however, that if Mr Doumit’s degree was one in Civil Engineering (Structural) he would satisfy the standard.

16 In conducting a review of a decision relating to the application of the standards determined by the Commissioner under section 20(2) the Tribunal does not have the power to review the standard itself. The issue is simply whether Mr Doumit satisfies the standard.

17 It is to be noted that if Mr Doumit held a Bachelor of Civil Engineering (Structural) the Commissioner says he would satisfy the standard, despite the fact that his qualification is not called a degree in “Structural Engineering”. The Commissioner thus acknowledges a degree of flexibility in the implementation of the standard, in that the title of a degree held by applicants does not have to exactly correspond to that specified in the standard. The holder of a degree in Civil Engineering (Structural) has successfully undertaken the same course of studies as that completed by Mr Doumit. He has a degree in Civil Engineering in which he majored in structural engineering studies. While the name given to his degree is different to that required by the standard, the substance of the studies he undertook are the same. I accept that his qualification satisfies the standard. For that reason alone I think that the Commissioner’s should be set aside.

18 Further, it is to be noted that the standard requires the “attainment” of “qualifications or examinations” in one of the ten specified requirements. Each of those requirements specifies a qualification or series of qualifications, which the applicant for a licence is required to have attained. They do not specify examinations, although each qualification requires that those studying for them satisfy the course requirements of the qualification. In the case of degrees in Civil Engineering and Civil Engineering (Structural) from the University of Sydney those requirements are satisfied by the attainment of passes to the necessary standards in examinations conducted by the University.

19 The Macquarie Dictionary Online defines the word “attainment” thus:

“ noun 1. the act of attaining. 2. something attained; a personal acquirement”

“Attain” is defined as:

“verb (t) 1. to reach, achieve, or accomplish by continued effort: to attain one's ends. 2. to come to or arrive at in due course: to attain the opposite shore.--phrase 3. attain to, to arrive at; succeed in reaching or obtaining.

20 The use of the word “examinations” in the standard is somewhat problematical because none of the ten specified requirements refer to an examination. Rather the standard refers to qualifications, in which one must pass examinations in order to attain. Despite this, in interpreting the standard, the word “examinations” cannot be ignored, and must be given some meaning or effect; see Commonwealth and Baume (1905) 2 CLR 405 and the cases cited in Pearce and Geddes, Statutory Interpretation in Australia , 6th Edition, Butterworth’s at 2.22. In the context of the standard it is my view that the use of the word “examinations” indicates an intention that the standard can be satisfied by the attainment of passes at examinations in the subjects, and at the level, required for the award of the qualifications mentioned, as well as by the attainment of those qualifications. This is consistent with the object of the standards in fixing a required level of qualification and education for applicants for contractor licences. It also gives meaning to the word “examinations” which otherwise has no apparent operation.

21 The evidence establishes that Mr Doumit has attained passes, to the requisite level, in examinations for all the subjects necessary for him to be entitled to be awarded a bachelor’s degree from the University of Sydney in the Civil Engineering (Structural). Because the University did not offer that specialist degree when Mr Doumit enrolled in the School of Engineering he was not awarded that degree, but was awarded a degree in Civil Engineering. I am satisfied that Mr Doumit has attained passes in those subject at the required level for the award of bachelor’s degree in Civil Engineering (Structural) form the University of Sydney. He therefore meets the requirements of the standard.

22 As a result I intend to set aside the decision by the Commissioner to refuse Mr Doumit’s application for a licence and remit the application to the Commissioner for reconsideration in accordance with these reasons.

Orders

The Tribunal makes the following orders:

1. The decision of the Commissioner to refuse Mr Doumit’s application for a contractor licence is set aside

2. The application is remitted to the Commissioner for reconsideration in accordance with these reasons.