Edrees v Commissioner for Fair Trading

[2021] NSWCATAD 32

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Edrees v Commissioner for Fair Trading [2021] NSWCATAD 32

Hearing dates:

16 December 2019, 2 June and 10 July 2020

Date of orders:

16 February 2021

Decision date:

16 February 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

N S Isenberg RFD, Senior Member

Decision:

(1)   The decision under review is set aside.

(2) In substitution for that decision, the Tribunal grants the applicant an individual endorsed contractor licence in the category “general building work” under the Home Building Act 1989 (NSW)

(3)   The Respondent is to effect the grant of the individual endorsed contractor licence to the Applicant within 14 days of publication of these reasons.

Catchwords:

MERITS REVIEW – building and construction – home building - Home Building Act 1989 - experience – working overseas - Instrument.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Home Building Act 1989 (NSW)

Licensing and Registration (Uniform Procedures) Act 2002 (NSW)

Cases Cited:

Briggs v Commissioner for Fair Trading Department of Finance, Services and Innovation [2018] NSWCATOD 175

Commissioner of Fair Trading, Office of Finance and Services, NSW Fair Trading v Kassem [2015] NSWCATAP 173

Ngo v Commissioner of Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATOD 103

Shoobridge v Commissioner for Fair Trading [2015] NSWCATOD 42

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Ramy Mohamed Ahmed Mohamed Edrees (Applicant)
Commissioner for Fair Trading (Respondent)

Representation:

Solicitors:
Nexus Law Group (Applicant)
Department of Customer Service (Respondent)

File Number(s):

2019/00221645

Reasons for decision

Background

1. The parties substantially agree (including in their respective submissions, the Applicant at [6]-[10] in AS and the Respondent at [2.1]-[2.6] in RS) that the background to the dispute is as follows:

1. On 18 April 2019, the Applicant (from time to time referred to as Mr Edrees) lodged with the Respondent an application for an individual contractor licence (Q) in the category “general building work” under the Home Building Act 1989 (NSW) (HB Act) (R1 at [6] – [11] and attachments.)

2. On 23 May 2019 the Respondent emailed to Mr Edrees a notice purportedly pursuant to s 14 of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW) (LRUP) (the s14 Notice) requiring Mr Edrees to provide certain information using an enclosed referee statement form, informing Mr Edrees that “incomplete statement forms cannot be considered” and “failure to comply with the requirements of the notice within 14 days may result in refusal of the application without dealing with it any further”: RS [131] – [132].

3. On 26 June 2019 the Respondent refused the application, purportedly in accordance with ss14(1) and 14(3) of LRUP for failing to provide information specified in the s 14 Notice (R1/182-185) (Decision).

4. On 17 July 2019 the Applicant lodged an application dated 12 July 2019 for administrative review of the Decision (Application) with the Tribunal.

5. On 20 August 2019 the Tribunal, by consent, held that the s14 Notice was invalid, held there was a deemed refusal 28 days after the application was made and remitted the application to the Respondent for reconsideration.

6. On 1 October 2019, the Respondent notified the Applicant the internal review of the application had been finalised and the Decision affirmed: (R2/9-10) (Review) The Review stated if the Applicant was dissatisfied he was entitled to seek a review by the Tribunal.

2. The Respondent stated the Application is for an individual endorsed contractor licence [Tribunal’s emphasis] in the category “general building work” under the Home Building Act 1989 (NSW) (HB Act): RS/2.1. This is not disputed by the Applicant and it was on that basis that the hearing proceeded. Accordingly, I find that the Application is for an “individual endorsed contractor licence” in the said work category.

Material before the Tribunal

The Respondent’s material

3. The Respondent relied on:

1. Documents filed and served pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) (R1) on 20 August 2019; (s 58 documents).

2. Respondent’s additional documents filed and served 29 October 2019 (R2);

3. Documents tabbed ‘1’ ‘2’ and ‘3’ attached to the Respondent’s submissions dated 11 December 2019 (R3), namely::

1. Instrument dated 13 March 2017 relating to qualification requirements for an endorsed contractor licence or supervisor certificate for general building work (Instrument);

2. Record from the public register relating to Contractor Licence Number 213915C issued to Tricom Engineering Group Pty Ltd; and

3. Emails exchanged between Mr N Pratt and Mr C Lee dated 17 September 2019 and 24 September 2019.

4. Written submissions dated and filed 31 August 2020 (RS); and

5. oral submissions by Ms S Robosa, solicitor who represented the Respondent throughout the hearing.

4. References to written submissions or claims by the Respondent are to paragraphs of RS unless stated to the contrary.

The Applicant’s material

5. The Applicant relied on:

1. The Application.

I observe that the Application responded to the Decision not the subsequent Review, which relied on different grounds for rejecting the application to the Respondent. It is appropriate that Mr Edrees’ grounds in these proceedings refer to the reasons given by the Respondent in the Review and the Respondent’s varied arguments made during the hearing and in RS, rather than the earlier Decision.

2. Exhibit A1 comprising a bundle of documents in two main parts, commencing with an unnumbered 3 page statement by Mr Edrees dated 6 September 2019, followed by 21 further unnumbered pages, then followed by the s 58 documents of 188 pages: (A1).

3. Exhibit A2 comprising a 3 page statement by Mr Edrees dated 12 November 2019 together with pages numbered 4 to 85 described in the statement as Annexures A to G: (A2).

4. Exhibit A3 comprising a 5 page affidavit made by Mr Edrees on 7 July 2020 other than paragraphs 5, 6, 13 and that part of 14 from “I was often” to “initiative”, which Mr Edrees withdrew (A3).

5. Written submissions dated 17 August 2020 (AS) and written submissions in reply dated 7 September 2020 (ASR), and

6. oral submissions by Mr K Keane, solicitor who represented Mr Edrees throughout the hearing.

6. References to written submissions or claims by the Applicant are to paragraphs of AS unless stated to the contrary.

Additional material

7. Both parties filed submissions with the Tribunal prior to the end of the hearing. All such submissions were consolidated into submissions AS, ASR and RS, which were prepared by the parties and filed with the Tribunal and provided to the other party after transcripts of the hearing became available to the parties after the hearing.

8. The hearing occurred on 3 separate days over a period of 7 months. The transcripts and hearing dates are identified as T1 (for 16 December 2019), T2 (for 2 June 2020) and T3 (for 10 July 2020). The transcripts were used by both parties in preparing their submissions and the Tribunal has also used the transcripts in relation to its consideration of the issues in dispute and preparation of these reasons.

9. For simplicity I have, where practical, adopted the Applicant’s shorthand method of:

1. referring to the location of extracts or references, drawn from exhibits or submissions, by reference to their abbreviation, page numbers and paragraph numbers, for example R1/3/25(b); and

2. referring to the location of extracts drawn from transcripts by reference to their abbreviation, page numbers and line numbers, for example T2/25/5-20.

General jurisdiction of the Tribunal

10. The Tribunal was established by the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). The CAT Act’s objects include enabling the Tribunal to review and determine appeals against decisions made by certain persons and bodies; enabling the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible; and ensuring that the Tribunal’s processes are open and transparent: ss 3(b)(ii) and (iii), 3(d) and 3(f).

11. Section 28 of the CAT Act provides “The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.”

Jurisdiction of the Tribunal in these proceedings

12. There is no dispute that the Tribunal is empowered to review the Review (s 83B(1) of the HB Act and ss 9 and 55 of the ADR Act). Section 63 of the ADR Act requires the Tribunal, in determining an application concerning an administratively reviewable decision such as the Review, to decide what the correct and preferable decision is having regard to the material then before it including any relevant factual material and any applicable written or unwritten law, and authorises the Tribunal to affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision the Tribunal is to make a decision in substitution for that decision or remit the matter for reconsideration by the administrator who made the decision.

Home building legislative scheme

13. The HB Act is part of the legislative scheme which regulates aspects of the home building industry in New South Wales (Building Work). The scheme is concerned to provide consumer protection including regulating the issue, cancellation and suspension of contractor licences, supervisors’ certificates and trades persons’ certificates in the industry, Commissioner of Fair Trading, Office of Finance and Services, NSW Fair Trading v Kassem [2015] NSWCATAP 173 at [9] and [10].

14. References to legislation in these reasons are to provisions of the HB Act unless stated to the contrary.

The Applicant’s submissions

15. Mr Edrees made submissions as to “The Legal Requirements” from [13] to [16] including:

1. The primary issue is the Respondent claims that the Applicant does not have the required experience. The application was refused in accordance with s 33D(1)(b) of the HB Act.

2. The Secretary issued critical guidelines concerning relevant experience in the Instrument and also relied on a Referee Statement Form which he described in some detail at [17] – [19].

3. Mr Edrees has a wide range of experience in overseas roles which fulfil the requirements for experience: AS/21.

The Respondent’s submissions .

16. The Review affirmed the Decision rejecting the application.

17. The reviewer referred to guidance from the Instrument “which provides a standard”, sets out circumstances in which “Experience will not be considered satisfactory”: R2/15; and stated at R2/16/14 “Work experience gained in another country is not considered as relevant building construction experience for the purposes of gaining a building authority in NSW” without providing any authority for that assertion. The Review sets out other reasons (not relevant at this time) at R2/16-17.

18. In RS the Respondent relied on the ADR Act s 64(4); HB Act ss 19, 20, 33C(1)(b)(i) and 33D(1)(a) and (b), and Schedule 1; LRUP s 12; and the Instrument under the headings “The Legislative Framework” and “The Instrument and its application by the Tribunal”

Legislation details

Administrative Decisions Review Act 1997 (NSW)

19. Section 64(4) of the ADR Act relevantly provides:

64 Application of Government policy

(1)   In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the administratively reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.

(1)   The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter.

(1)   The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate.

(1)   In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may have regard to any other policy 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.

(1)   In this section: "Government policy" means a policy adopted by:

(a)   the Cabinet, or

(b)   the Premier or any other Minister.

Home Building Act 1989(NSW)

20. Relevantly, HB Act ss 12, 19, 20, 33C and 33D, and Schedule 1 provide:

12 Unlicensed work

An individual must not do any residential building work, or specialist work, except—

(a)   as, or as a member of a partnership or an officer of a corporation that is, the holder of a contractor licence authorising its holder to contract to do that work, or

… or

(c)   as an employee of the holder of such a contractor licence or permit.

…

Part 3 Licences and certificates

19 Application to contractor licences of Licensing and Registration (Uniform Procedures) Act2002

(1)   The Secretary may grant contractor licences for the purposes of this Act.

(2) Part 2 (other than section 10) of the Licensing and Registration (Uniform Procedures) Act 2002 (the applied Act) applies to and in respect of a contractor licence, subject to the modifications and limitations prescribed by or under this Act.

(3)   …

(4)

   Subject to this section, the regulations may make provision for or with respect to such matters concerning a contractor licence as are relevant to the operation of Part 2 of the applied Act.

…

20   Issue of contractor licences

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 …and 33C, or

…

(1A)   Without limiting subsection (1) (a), in determining whether an applicant is a fit and proper person to hold a licence the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity.

…

33C Additional requirements for obtaining contractor licences

(1)   A contractor licence must not be issued unless the Secretary is satisfied that—

…

(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, …

…

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.

…

Schedule 1

Secretary means …    the Commissioner for Fair Trading, Department of Finance, Services and Innovation … or [in default] … the Secretary of the Department of Finance, Services and Innovation.

Issues before the Tribunal

21. There is no dispute that the proceedings were conducted on the basis that the application was for the issue to Mr Edrees of an individual endorsed contractor licence in the category “General Building Work”.

22. The Applicant submitted at [39] that the Commissioner refused the application because Mr Edrees’ experience was mainly gained overseas; his referees were not licenced builders who had supervised his work; and in relation to his NSW experience, he did not have a reference and had not worked on a building site.

23. The Applicant submitted, at [13], that the primary issue is that the Respondent claims that the Applicant does not have the required experience and the Respondent properly refused the Application pursuant to s 33D(1)(b) of the HB Act. Further the Applicant stated:

15.   The Act provides that the Secretary may issue guidelines relating to the experience requirement for a general building work licence. The guidelines critical to this application are those issued by way of [the Instrument].

16.   The Instrument refers to section 33D (1)(b) as the clause on which the experience requirements are founded, and the Secretary has provided a definition of experience as follows:

“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 contracted licence held by; or

c.   a holder of an endorsed contract 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; or

•   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, this is verified in the Relevant Application Form; and

•   received Remuneration in accordance with the law for the Work which the applicant carried out; or

e.   a holder of a supervisor certificate in the category of full general building work or an endorsed contractor licence in the category of full general building work, held continuously for minimum period of two years within ten years from the date the application is made.”

24. The Respondent did not dispute the accuracy of the above submissions.

25. Each of ‘qualifications’, ‘fit and proper’, ‘experience’ and ‘capability’ is dealt with below.

Qualifications

26. In A1 Mr Edrees stated at [3] and [4] his qualifications included a B.Sc. in construction engineering with specialization in constriction project management from the American University in Cairo, June 2000; Certificate IV in Building and Construction (Building) CPC40110 from Institute of Training in March 2018; Diploma of Building and Construction (Building) CPC50210 from Frontier Training & Technology, June 2018 and was a member of Engineers Australia.

27. The Respondent accepted in the Review at R2/16/11 and at RS [1.1] that Mr Edrees had satisfied the relevant qualification requirements.

28. Accordingly, Mr Edrees’ qualifications are not in dispute.

Fit and Proper

29. On the second hearing day, in response to my question as to whether either party had any administrative matters they wished to raise. Ms Robosa said the Respondent wished to raise the issue of information and evidence provided by Mr Edrees in light of evidence provided by Mr Pratt. She said there was an issue as to whether Mr Edrees provided accurate information in support of his Application and as a corollary “there is an issue of whether or not he is therefore a fit and proper person to hold the licence …”: T2/5/30-40.

30. I informed Ms Robosa that I was aware of the issue. However, I was not at that time dealing with substantive points, only with administrative matters.

31. I have in these reasons dealt with Mr Edrees’ evidence, aspects of information he provided to the Respondent, and apparently conflicting evidence provided by Mr Pratt.

32. Electronic searches of both parties’ written submissions before the Tribunal, and of the hearing transcripts included only one reference to the phrase “fit and proper”, that referred to at T2/5/30-40.

29. It appears to me, that after initially raising the fit and proper issue and claiming it was relevant, the Respondent chose not to further challenge Mr Edrees’ fitness or propriety to hold a contractor licence, nor his repute, character, honesty or integrity. In the circumstances and having regard to my other findings (and, excusing the double negative), I do not find that I am not satisfied that Mr Edrees is a fit and proper person to hold a contractor licence.

Experience

Basis of relevant experience – the parties’ submissions

34. As noted above, Mr Edrees submitted at [13] the primary issue is that the Respondent claimed that the Applicant does not have the required experience.

35. He agreed at [86] that he “had not done all of the trades on site, that is, he has not picked up tools”. However, he said that was not a necessary requirement for the Application. Mr Edrees submitted the primary requirement was that he had “the ability to supervise the trades and … a sufficient knowledge of those trades to be able to undertake the supervision adequately” [87] and, in summary, at [81] he “has the skills and ability to competently manage the construction of residential building work as required in the [HB Act]”.

36. The Respondent submitted Mr Edrees “… failed to provide acceptable references to enable the Tribunal to assess requisite experience based on his overseas employment.” [8.9] and in his work in New South Wales “… He directly reported to, and was supervised by, Mr Gowen, the Project Manager” [9.5] but ” … did not provide a statement or reference from Mr Gower, nor did he summon Mr Gower to give evidence in these proceedings” [9.7]. the Respondent also submitted Mr Edrees provided references from sub-contractors and former employees engaged by Duffy Kennedy all of whom were unqualified to provide a reference and “They provided inaccurate information and overstated the roles, duties, or responsibilities of the Applicant.” [T2/24-47].

Basis of relevant experience – the Tribunal’s consideration

37. Mr Edrees submitted (AS [21] – [62]) he had substantial relevant experience both overseas from 2008 to 2017 and within New South Wales, in 2017 and 2018. He provided references / reports, job descriptions, statements of his duties and responsibilities from both overseas employers and his NSW employer as well as work colleagues.

38. The Respondent submitted Mr Edrees had not demonstrated the requisite experience in that he had not used an ‘approved’ form issued by the Respondent for his NSW experience; his references were not from direct supervisors who held appropriate licences issued by the Respondent; persons holding titles or designations such as “Director” or “Civil Engineer“ had not described or provided details of their own technical qualifications, skills, duties and responsibilities; the assessment by of a Victorian State Government entity that Mr Edrees had over 6 years’ suitable overseas experience in the occupation of “Construction Project Manager” for “migration purposes” should not be taken into account because “The relevant [occupational] registration authority may have different or additional requirements for registration”; and the Respondent’s requirement for practical experience in a wide range of building construction relates to building work on site in accordance with the Building Code of Australia and any relevant site on which Mr Edrees worked must have been located within Australia.

39. I deal firstly with the parties’ evidence and submissions in relation to each overseas building site on, or for each overseas employer which, Mr Edrees submitted he worked, and then his claimed experience in NSW.

Mr Edrees’ overseas experience

MZ and Partners (MZP)

40. Mr Edrees’ evidence at [5.b] in A1 is he was engaged from April 2014 to February 2017 by MZP as project manager “managing 4 high rise buildings (Hotels and hotel apartments)” in Doha, Qatar.

41. Mr Keane informed the Tribunal (T2/11/30-44) that Mr Edrees’ evidence that he managed the construction of 4 high rise buildings was corroborated at the fourth unnumbered page of A1. That page is a document on MZP letterhead headed “TO WHOM IT MAY CONCERN” over the signature of Mr Yousef Hayek, Project Management & Supervision Dept Director. The document contains a detailed list of some 20 “Duties Performed” by Mr Edrees for MZP, in relation to a construction project, from 21 March 2014 to the document’s date of issue, October 2014.

42. Ms Robosa informed the Tribunal (T2/11/44-46) that there was no documentary evidence to the contrary of the Applicant’s evidence.

43. Notwithstanding Ms Robosa’s oral representation to the Tribunal, the Respondent submitted at [8.3] that Mr Hayek’s “undated reference” provided, other than for Mr Hayek’s designation as “Project Management & Supervision Dept Director”, no description or details of Mr Hayek’s qualifications, technical skills, duties or responsibilities; no information as to how Mr Hayek’s work was related to the Applicant’s responsibilities; that Mr Hayek had not supervised Mr Edrees in carrying out his listed tasks; and Mr Hayek is “unable to attest to the Applicant’s technical skills and abilities”.

44. I observe that several of the Respondent’s above submissions as to facts are not supported by any evidence before the Tribunal. These include:

1. the ‘undated’ reference’ refers to a document which states “Date of Issue: October 2014”. This may not refer to a particular day in that month, but it is not otherwise undated.

2. at [8.8] in RS, the Respondent referred to several excerpts from Senior Member Lucy’s decision in Ngo v Commissioner of Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATOD 103 (Ngo). These excerpts included reference to certain persons whose references of Mr Ngo were accepted by the Tribunal. The Respondent described those people as being “of seniority and/or who supervised [Mr Ngo] in carrying “ out the work in which experience was gained overseas”. One such person whose reference was accepted was “the Deputy General Director of Ocean Place Joint Venture Company Ltd, a very senior person working on the project ( see paragraphs [3], [64]).”

Paragraph [3] in Ngo makes no reference to any director or other officer, however described. On the other hand paragraph [64] states:

Mr Ngo conceded in cross examination that Ms Ng was not a “technical person.” Her reference is useful, however, in that it confirms that the project was designed to high international standards. Whilst her opinion that Mr Ngo’s contribution was “invaluable” is not based upon technical expertise, I nevertheless give it some weight, as she is a very senior person working on the project.

45. I accept the Respondent’s submission to the extent that there is a lack of specificity as to Mr Hayek’s technical skills or qualifications and his direct role in relation to Mr Edrees’ work for MZP. However, Mr Hayek’s unchallenged designation is director of MZP’s “Project Management & Supervision Department”. To that extent I find it reasonable to presume that he has adequate skills and experience to conduct himself in that role and provide the reference in evidence as to Mr Edrees’ duties.

46. There is no evidence to support the Respondent’s submission that Mr Hayek did not supervise Mr Edrees in carrying out his listed tasks nor is there any evidence before the Tribunal to the effect that Mr Hayek as director of a project supervision department was “unable to attest to the Applicant’s technical skills and abilities” to at least some extent. I reject both submissions.

47. I note that Mr Edrees’ evidence regarding MZP was unchallenged and there was no evidence to support the Respondent’s challenge to the validity of Mr Hayek’s reference.

48. Mr Edrees gave oral evidence to the Tribunal and was cross-examined regarding certain issues.

49. The Respondent did not cross-examine Mr Edrees as to his work for MZP nor his contact with Mr Hayek nor Mr Hayek’s role in relation to Mr Edrees’ work. There is no evidence that the Respondent made contact with nor made any effort to contact MZP nor Mr Hayek to clarify what work if any Mr Edrees carried out at any time for MZP, nor details of Mr Hayek’s qualifications or work he carried out in relation to Mr Edrees’ work. Nor is there any evidence that the Respondent contacted Mr Edrees to request that he obtain such information.

50. In the circumstances I give Mr Hayek’s reference some weight even though the MZP document does not identify the nature of any building under construction as a hotel or having any residential use.

51. Mr Hayek’s reference stated Mr Edrees’ “duties performed” were “from start to finish”. The reference was issued in October 2014 not February 2017 which Mr Edrees’ stated was the end of his involvement in the MZP project. Cross-examination may have led to an explanation of this apparent discrepancy. However, there was no cross-examination.

52. I find that without evidence to the contrary and without cross-examination it is more likely than not that the project involved the construction of 4 high rise residential hotels, in accordance with Mr Edrees’ statement in A1, and Mr Edrees carried out substantial work relevant to his Application for some 3 years. Mr Edrees’ unchallenged evidence is to this extent, uncorroborated.

53. The Respondent referred at [5.11] to Senior Member Scahill not taking into account a reference for an applicant for a building licence in Briggs v Commissioner for Fair Trading Department of Finance, Services and Innovation [2018] NSWCATOD 175 (Briggs). The Respondent referred to an excerpt at [118] from the decision which found “   It is clear that it is not possible for an applicant to verify their own competence themselves. This underlines the importance of the role of a supervisor who is a competent practitioner.” and at [116] the “purpose of the references is to attest to Mr Briggs’ technical abilities”.

54. The Senior Member, with respect, made the strong point that in cases such as:

“… Limberis at [38]; Grewal v Commissioner for Fair Trading [2014] NSWCATOD 101; Shoobridge v Commissioner for Fair Trading [2015] NSWCATOD 42; Trengrove v Commissioner for NSW Fair Trading, Department of Finance and Services [2015] NSWCATOD 131 ” it has been “held that an applicant alone cannot verify their own experience; otherwise the system would be open to abuse”.

55. That principle does not state that an applicant cannot corroborate third-party evidence of their own experience nor that they cannot provide evidence which is itself corroborated.

56. However I do not find, that there is necessarily a positive nexus between a supervisor who is an employer and holds a relevant licence and the quality of the supervision / training provided without considering the facts in each case. The statutory test requires the applicant to have “experience of such a kind and for such a period as the Secretary (in this matter the Tribunal) considers would enable the applicant to do, or to supervise, the work for which the certificate is required”. I find that this requires an analysis of the relevant experience on a case by case basis.

57. Indeed, the Respondent submitted at [8.2] “ … the Applicant is unable to verify his own competence and that experience, where there is no acceptable corroborative evidence cannot be taken into account.” I take the submission to mean that the Respondent does not object to the Tribunal receiving evidence as to the Applicant’s experience from the Applicant providing there is corroboration by a third party.

58. Senior Member Lucy considered this issue further in Ngo. The Senior Member said:

95   In Jones’s case it was argued by the Commissioner that “an applicant alone cannot verify their own experience,” in reliance on Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 (“Limberis”) at [38] and Shoobridge at [69] (see Jones at [58]).

96   In Limberis, the Tribunal accepted that an applicant alone could not verify his or her experience, because otherwise the system would be open to abuse (at [38]). However, in that case, the “only evidence … before the Tribunal about the work carried out by Mr Limberis [was] that given by him” (at [38]). This is a very different case, where there are many referees who have provided details about the tasks Mr Ngo carried out on a variety of building projects.

97   In Shoobridge, the Tribunal, constituted by Senior Member Molony, made the following comments (at [69]):

“While I agree with the respondent that direct evidence from the supervisor is the best evidence of relevant practical experience, I do not accept that the only evidence which can demonstrate such experience is evidence from the supervisor. I do agree that an applicant alone cannot verify his own experience.”

98   I should note that this is not a case in which an applicant is seeking to verify all of his own experience without any evidence from others.

99 The Tribunal’s task is to consider the statutory question of whether the Tribunal is satisfied that the applicant “has had experience of such a kind and for such a period as the [Tribunal] considers would enable the applicant to do, or to supervise, the work for which the certificate is required” (Home Building Act, s 33D(1)(b)). It must do so in the context of conducting an administrative review under the Administrative Decisions Review Act. Its task under that Act is “to decide what the correct and preferable decision is having regard to the material then before it, including … any relevant factual material” and “any applicable written or unwritten law” (Administrative Decisions Review Act, s 63(1)).

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.

101 That is not a lawful approach to the application of s 33D(1) of the Home Building Act or s 63 of the Administrative Decisions Review Act. The Tribunal’s decisions about the need for corroborative evidence make the obvious point that, in the absence of some kind of independent evidence about what an applicant has done, the Tribunal would generally be unlikely to be able to reach the state of satisfaction required by s 33D(1) of the Home Building Act. However, it would be wrong to treat those decisions as laying down an inflexible rule which must be applied in every case and to every part of an applicant’s claimed experience.

59. With respect I agree with the Senior Member’s reasoning rather than only accepting evidence by way of a statement from a person merely because that person holds a licence issued by the Respondent, or any other agency, and irrespective of circumstances or sworn evidence before the Tribunal.

Private Engineering Office (PEO)

60. The Applicant’s evidence includes a 2 page statutory declaration on the 12^th and 13^th pages of A1. The declaration was made 21 November 2015 by Mr Yousef Mahommed Yousef Ba-Tuq, civil engineer, working at PEO. The declaration states Mr Edrees was employed full time by PEO from 21 July 2012 to 17 March 2014 on (one or more) project(s) and specifically refers to construction of a hotel. The declaration sets out Mr Edrees’ duties in some detail. The majority of those duties are not dissimilar to the essential duties and responsibilities in the Duffy Kennedy Position Description for Contracts Administrator at page 82 in A2 to which reference is made below.

61. Mr Edrees’ statement at [5c] in A1 is to the effect that he worked as a projects manager for PEO from July 2012 to March 2014 managing several projects namely “villas, palaces, hotels, military and residential”.

62. I find it more likely than not that some, perhaps many, of these projects, , were, having regard to their general descriptions, residential in nature. However, Mr Edrees’ statement provides no details as to the period during which he was employed by PEO in relation to residential, instead of other, construction activities. To that extent, his description of the experience gained during the period potentially conflicts with the benefit he might have otherwise obtained from Mr Ba-Tuq’s evidence.

63. The 5^th to 11^th pages of A1 appear to comprise a “special employment contract” between Mr Edrees and PEO. Each page of the document is in either 2 or 4 columns. The columns on the left hand side of each page are in English and article 17 on the last pages states that the other language, presumably in the other columns, is Arabic. That article also states that in the event of a discrepancy between the two versions the Arabic text shall prevail.

64. The Respondent did not cross-examine Mr Edrees as to his work for PEO nor his contact with Mr Ba-Tuq nor Mr Ba-Tuq’s role in relation to Mr Edrees’ work. There is no evidence that the Respondent made contact with nor made any effort to contact PEO or Mr Ba-Tuq to clarify what work if any Mr Edrees carried out at any time for PEO nor details of Mr Ba-Tuq’s qualifications or work he carried out in relation to Mr Edrees’ work. Nor is there any evidence that the Respondent contacted Mr Edrees to request that he obtain such information.

65. There being no evidence to the contrary, I find on the balance of probability that from 21 July 2012 to 17 March 2014 Mr Edrees was employed full time by PEO carrying out construction work and that for an indeterminate period between those dates, a substantial part of that work was residential in nature.

Emirates Belbadi Contracting Co Ltd (EBC)

66. Mr Edrees submitted at [25] - [26] that he worked as project manager for EBC from 18 June 2011 to 27 April 2012 on hotel and villa projects. He relied on an employment contract [at R1/14-15] (sic) and submitted his roles and responsibilities are verified in a statement dated 19 September 2015 at A1/16-17.

67. At [8.4] the Respondent referred to the decision in Briggs where a reference from a Human Resources advisor of Multiplex Australia was not taken into account, and submitted:

“… In line with the principle that the purpose of the references is to attest to an applicant’s technical abilities, the Respondent submits that the Tribunal should not take into account …

Letter from Ali M. Ali, Designation Administration Manager, Emirates Belbadi Contracting Co. Ltd … dated 19 September 2015, regarding the Applicant’s duties while employed with [EBC] in United Arab Emirates (A1, pp.16-17

68. Mr Edrees’ submitted in reply (ASR [15.c]) that his referee was the EBC Administration Manager “an overseers role” who verified he performed:

“… 15 roles and responsibilities all of which are consistent with the skills and abilities required to meet the criteria for a general building licence including “Overall project management” (A1/16);

69. Many of the “duties performed“ or “roles and responsibilities” in Mr Ali’s reference are not dissimilar to the essential duties and responsibilities in the Duffy Kennedy Position Description for Contracts Administrator at page 82 in A2 to which reference is made below.

70. Mr Edrees stated at [5.d] in A1, his work for EBC took place from January 2011 to June 2012. Working for the builder, he managed “the trades onsite for a hotel and villas project”. His responsibilities comprised conduct tendering; procurement; manage design-build process; manage resources and manage changes and value engineering on site.

71. Mr Ali’s reference substantially corroborates Mr Edrees’ statement as to his responsibilities. Mr Ali’s designation as “Administration Manager” does not include any details as to his technical skills, nor the extent to which he supervised Mr Edrees. However, the reference, on its face, provides substantial details as to technical work, including supervision, performed by Mr Edrees.

69. The Respondent did not cross-examine Mr Edrees as to his work for EBC nor his contact with Mr Ali nor Mr Ali’s role in relation to Mr Edrees’ work. There is no evidence that the Respondent made contact with nor made any effort to contact EBC nor Mr Ali to clarify. what work if any Mr Edrees carried out at any time for EBC nor details of Mr Ali’s qualifications or work he carried out in relation to Mr Edrees’ work. Nor is there any evidence that the Respondent contacted Mr Edrees to request that he obtain such information.

70. The Respondent provided no evidence to dispute Mr Edrees’ submissions or evidence. Rather the Respondent relied on a “principle” that the purpose of a reference is to attest to an applicant’s technical abilities. That may be the case. However, I am not aware of any binding authority to support that “principle”. I take note that occupational references may be provided for many reasons and technical skills is only one of such reasons.

71. In circumstances where Mr Edrees is seeking occupational registration a reference from a person with relevant proven technical skills is likely to carry more weight than a reference from a person without such skills. In my opinion, that does not mean that a reference from an unlicensed person who is a responsible eye-witness as to what that person saw should be disregarded out of hand.

72. Exhibit A1 includes at the 14^th and 15^th pages a document with 2 columns on each page. The left hand column is in the English language and the right hand column is not in English. It may well be that the right column is an accurate translation of the English in the left column. However, there is no direct evidence to that effect.

73. Certain numbers and a date appear in the right column which match numbers and a date in corresponding locations in the left column. The document refers to itself as a contract made 31-05-2011 between EBC Co. L.L.C (EBC) and Mr Edrees. Pursuant to the contract Mr Edrees was engaged by EBC from the date the contract was made for an unlimited period to work as a civil engineer.

74. At the 16^th and 17^th unnumbered pages of A1 is what appears to be a document by which EBC “clarifies” that Mr Edrees worked with it full time as a project manager in United Arab Emirates from 18 June 2011 to 27 April 2012. The document sets out 17 duties performed by Mr Edrees for EBC. The document refers to one or more projects in respect of which Mr Edrees worked as project manager including coordinating with project developers for detailed designs; consulting owners and other construction professionals in relation to site activities; analysing contract documents to define requirements, objectives, and assessment of construction methods; planning, monitoring and controlling variations to project scope of work; holding and coordinating subcontractors’ meetings prior to subcontractors commencing work; taking necessary corrective and “preventive” actions to control project disciplines: and delegating duties to personnel who report to him while [retaining] such responsibilities himself. The document, dated 19 September 2015, was signed by Mr Ali as Administration Manager for EBC.

75. As there is no evidence to the contrary of what appear to be business documents, and as Mr Edrees was not cross-examined on the point nor requested to contact EBC or Mr Ali to provide corroborating evidence including details of Mr Ali’s qualifications, I find it is more likely than not that Mr Edrees was employed full time as a construction project manager on hotel and villa projects by EBC from 18 June 2011 to 27 April 2012 performing the duties referred to in Mr Ali’s ‘clarification’ document.

Gustav Pegel and Sohn

79. Mr Edrees submitted at [27] that he worked for Gustav Pegel and Sohn L.L.C. (GPS) as Project Manager from 24 July 2008 to 20 January 2011 on a hotel project. He supports this with:

1. His statement in A1 at [5.e] which refers to working for the builder on site managing all trades and subcontracts for a hotel project and lists his responsibilities as:

1-   Lead the procurement committee as the project was cost plus a fee

2-   Proactively monitor the progress onsite

3-   Prepare and review the invoices and claims

4-   Coordinate between ID, FF&E, Mechanical, Electrical and Hydraulic subcontractors

5-   Review and monitor the programme.

2. A signed unlimited period contract, (A1/18-19) (with a 6 month probation period) between Mr Edrees and GPS made 24-07-2008 whereby the latter engages Mr Edrees as “Project Manager”. The form and printed portion of the contract in the English language appears identical to that of the contract dated 31-05-2011 made by Mr Edrees with EBC referred to above. I make no findings in relation to the non-English language portion and note that no evidence of translation was before the Tribunal. Other than matters such as dates, names (other than Mr Edrees), contract number, place of signing and amounts to be paid, the contract is identical to that made between Mr Edrees and EBC referred to above.

3. Under the letterhead of GPS, signed by Mr Anthony Abi-Hanna, (Human Resources Manager) dated 19 September 2015 is a certification that Mr Edrees worked with GPS as a Project Manager from 24 July 2008 to January 2011 on a full time basis. The document sets out duties performed by Mr Edrees as follows:

•   Liaising with clients, Project Managers. Consultants and Subcontractors towards analyzing project requirements and construction planning.

•   Working with the whole construction team towards understanding project proposals, tenders and bids.

•   Organizing the production teams. developing objectives. setting goals and assigning their individual responsibilities.

•   Project accounting functions including managing the budget, minimizing exposure to risk in the project and guiding cost controllers.

•   Studying and illustrating detailed designs and plans as per architectural principles and project requirements.

•   Reviewing method statements to further monitor site progress and ensure that the international regulations and standards are being implement and followed accordingly

•   Handling all project related issues such as; manpower resources, the needed construction materials, schedule of delivery. machines and equipment to monitor site progress.

•   Communicating with Engineers. Architects, Contractors and other building professionals to ensure construction activities are well coordinated.

•   Managing the NEC contract (Cost Plus). working with property owners and developers of the projects. Reviewing and directing planners to complete the projects as per time and budget.

•   Supervising site safety regulations and work activities as per standards, quality control measures and costs

•   Reviewing drawings, submittals. transmittals. RFIs, ITRs, MARs, SDs, DCRs and the likes to ensure readiness during clients. evaluation and inspection of local authorities

80. The Respondent provided no evidence contradicting Mr Edrees’ evidence. Rather the Respondent relied substantially on Briggs and the Instrument. I note that at [110] Senior Member Scahill found, after noting the decision in Whitehouse:

… The Tribunal is satisfied that the requirements set out in the Instrument are appropriate and sound and ought to be followed by the Tribunal in determining the correct and preferable decision …

81. The Respondent did not cross-examine Mr Edrees as to his work for GPS nor his contact with Mr Abi-Hanna nor Mr Abi-Hanna’s role in relation to Mr Edrees’ work. There is no evidence that the Respondent contacted nor made any effort to contact GPS or Mr Abi-Hanna to clarify what work if any Mr Edrees carried out at any time for GPS nor details of Mr Abi-Hanna’s qualifications or work he carried out in relation to Mr Edrees’ work. Nor is there any evidence that the Respondent contacted Mr Edrees to request that he obtain such information.

82. I accept that a human resources manager such as Mr Abi-Hanna may not have the technical skills of an engineer or a qualified builder. However, I do not find that such a manager would not be at least generally aware of the skill sets needed to employ a professionally qualified person in a technical role.

83. There being no evidence to the contrary I accept Mr Edrees’ evidence and find on the balance of probability that the correct and preferable decision of the Tribunal is that Mr Edrees carried out the work set out in his statement for the period July 2008 to January 2011 on a hotel project and performed the duties certified to by Mr Abi-Hanna.

84. Having regard to my findings in the immediately preceding paragraph, I find, in relation to Mr Edrees’ claimed work with GPS, that rigid compliance by the Tribunal with the requirements of the Instrument is likely to produce an unjust decision.

Other work overseas

85. Mr Edrees’ statement in A1 at [5.f, 5.g and 5.h] referred respectively to his work:

1. in N. Africa as project manager with Actuant from February 2006 to June 2008;

2. in Egypt as Project Manager with RLR from March 2002 to January 2006; and

3. in Egypt as Project Engineer with Seghers from June 2000 to February 2002.

86. During the second hearing day, Mr Keane informed the Tribunal that other than Mr Edrees’ above statement in A1, the Applicant had no documentary evidence supporting Mr Edrees’ statement referred to in the immediately preceding paragraph. Ms Robosa informed the Tribunal that the Respondent had no evidence to the contrary of the statement. It may well be that Mr Edrees carried out relevant work as referred to in [5.f, 5.g and 5.h]. However, having regard to my other findings in these reasons, I have not relied on the statements in those paragraphs in making the orders referred to at the end of these reasons.

Skilled Migration Assessment

87. At R1/34-36 is a report containing the results of an occupational skills assessment prepared by Vetassess for migration purposes. Vetassess is a Victorian State Government entity listed on the Australian Government Australian Business Register with ABN 74 802 942 886, known since 1 July 2014 as Bendigo Kangan Institute (ABN Lookup).

88. Mr Edrees submitted at [34] – [35] that he was assessed for immigration to Australia in the occupation of Construction Project Manager.

89. The report refers to Mr Edrees’ skilled employment as Project Manager from 07/2009 to 01/2011 by Gustav Pegel and Sohn L.L.C. United Arab Emitares (UAE), from 01/2011 to 04/2012 by Emirates Belbadi Contracting Co. Ltd, UAE, and from 07/2012 to 03/2014 by Private Engineering Office, Qatar; and from 03/2014 to 11/2015 as Consultant Representative / Project Manager by MZP W.L.L. Qatar. The report provides a positive assessment of 6.3 years relevant experience at an appropriate skill level and states “only employment with sufficient supporting evidence has been considered”.

90. The report, dated 29 February 2016, was signed by Dr Mamta Chauhan, Manager, Skills Recognition,- General Occupations, of Vetassess.

91. To the best of my recollection, Mr Edrees was not cross-examined in relation to the Vetassess assessment or report nor was any other evidence from or concerning Vetassess provided to the Tribunal during the hearing.

92. The Respondent submitted at [8.5], VETASSESS included the following notes to the report:

“...The assessment of a person’s suitability for employment, membership of a professional body, or further study is a matter for the relevant authorities in Australia to determine. It is important to note that to work in some occupations in Australia requires registration with the relevant Australian registration authority for that occupation. The above skills assessment is not an assessment for occupational registration. The relevant registration authority may have different or additional requirements for registration.”.

93. The Respondent further submitted at [8.6] that for the purposes of these proceedings “… the assessment conducted by VETASSESS should not be taken into account …” and “ … the Respondent, as the regulator for issuing authorities under the [HB Act], has determined the necessary qualification and experience requirements.”

94. I acknowledge the note to the report and confirm that, in these proceedings, the Tribunal acts in the place of the Respondent. To the extent that the determination by the Respondent of “the necessary qualification and experience requirements” (Tribunal’s emphasis) is in the Instrument, same are part of a policy of the Respondent to which the Tribunal may have regard, but which is not binding on the Tribunal. The Respondent has already conceded that Mr Edrees holds all necessary relevant qualifications.

95. I acknowledge that Vetassess does not purport to override the role of government agencies charged with occupational registration powers. I take into account the Respondent’s submission at [8.6]. However I also take into account the report’s assessment of relevant experience. With no evidence to the contrary and without any relevant cross-examination of Mr Edrees, I find that it would be unjust not to take the assessment into account.

Mr Edrees’ NSW work experience

96. There is no dispute that Mr Edrees was employed by a company within the Duffy Kennedy group to carry out work as ‘Contracts Administrator’ in relation to a high rise residential construction project known as the Palisade Project (Palisade);

97. The Respondent submitted:

8.8 i   “Mr Edrees commenced working at Duffy Kennedy Payroll Pty Ltd (Duffy Kennedy), … on 23 February 2017 as a Contract Administrator …”

…

9.6    Mr Pratt’s evidence is supported by the following documents:

•   Employee Performance Review Self Evaluation for the review period 2017-2018 signed by Kim Gower, Project Manager, dated 29 June 2018 (A2, pp.70-74, 81) (Self Evaluation);

•   Employee Performance Review for the review period 2017-2018 signed by Kim Gower, dated 12 July 2018 (A2, pp.75-79) (Employee Performance Evaluation);

•   Project Team Requirements KPI for “CA Requirements” and “CA Finance Requirements” printed on 18 April 2018 – Document Owner Project Manager Kim Gower (A2, pp. 80-81); (Contracts Administrator KPIs) and

•   Position Description of Contracts Administrator who reports to the Project Manager (A2, pp. 82-83).(Position Description)

9.7    It is evident from the above documents that the Applicant reported to Kim Gower, who supervised, evaluated and reviewed the Applicant’s performance of his work at the Palisade Project. However, the Applicant did not provide a statement or reference from Mr Gower, nor did he summon Mr Gower to give evidence in these proceedings.

98. I refer to the Self Evaluation, Employee Performance Evaluation, Contracts Administrator KPIs and Position Description documents as the Duffy Kennedy / Mr Edrees Employment Records.

99. The Respondent submitted:

“... On the available evidence as discussed in paragraphs [9] and [10] below, the Respondent submits that the Tribunal cannot be satisfied that the Applicant has demonstrated an extensive relevant experience which would qualify him to be granted a licence in the category of general building work …”: [8.8 i];

“ Mr Pratt was the Construction Manager who led the construction team for this project and Mr Kim Gower was the Project Manager, “the ultimate person” who directly reported to Mr Pratt. …”: [9.2];

“The Applicant, as the Contract Administrator, worked under the administration team. He directly reported to, and was supervised by, Mr Gower, the Project Manager. (T1, p.93, paragraphs [40] – [45]; p.94, paragraphs [5] – [10]). Mr Pratt did not directly supervise the Applicant and described “his supervisory responsibility” as an “overarching one” as he testified: “The contract administrator goes to the project manager and the project manager comes to me ... “: [9.5];

“ … The Applicant’s description of the Palisade Project (see paragraph [7.3] above and R1, p.59) was corroborated by Mr Nathan Pratt who described the Palisade as Duffy Kennedy’s “largest project at the time” and a “$70 million project” …” :[9.1].

100. The Respondent repeated at [7.3] the following excerpt from Mr Edrees’ statement at [5] in Exhibit A:

“... the development involved the construction of 2 x 8 storey residential apartment buildings comprising 72 x 1 bedroom, 109 x 2 bedroom, and 16 x 3 bedroom apartments (197 in total). Of the 197 apartments, 60 have been provided as adaptable dwellings.”.

101. The Respondent’s reference to R1, page 59 includes the above details of Palisades as well as further details such as provision for 305 car parking spaces for residents and visitors, storage cages, lift access, a swimming pool, landscaped gardens and barbecues.

102. There is no dispute that:

1. There is no dispute that the Duffy Kennedy / Mr Edrees Employment Records were substantially created by Duffy Kennedy (other than input from Mr Edrees described below including completing some schedules, and signing, dating and writing his name where indicated).

2. Mr Gower, the project manager at Palisade Project for much of the time that Mr Edrees worked on the project, completed certain schedules and signed, dated and wrote his name where indicated; and

3. the documents related to Mr Edrees’ employment as Contracts Administrator for the Palisade Project of Duffy Kennedy.

Self Evaluation

103. The Self Evaluation document for the 2017-2018 period dated 29 June 2018, signed by both Mr Edrees and Mr Gower on 12 July 2018, is headed Employee Performance Review Self Evaluation. The document states the performance review purpose “is to facilitate constructive discussion between the employee and manager in order to clarify performance objectives, provide feedback about the employee’s performance with respect to skills and behaviours and provide a framework for identifying the employee’s development plans”.

104. Self Evaluation provides 5 rating categories ranging from “Exceptional” through “Highly Effective”, “Competent” and “Inconsistent” to “Unsatisfactory”.

105. “Highly Effective” is described as “Performance consistently meets and frequently exceeds position requirements” while “Competent” is defined as “Performance consistently meets position requirements. Employee may exceed expectations in some aspects of their work, but the higher level of performance is not consistent.”

106. Self Evaluation’s first evaluation outlines three “Major Areas of Responsibility”. Those areas and the ratings given by both Mr Edrees and Mr Gower are:

1   “Prepare the project requirements“ - Mr Edrees and Mr Gower’s ratings are both “Competent ”.

1   “Draft and prepare POs and agreements for manager review and approval” - Mr Edrees and Mr Gower’s ratings are both “Highly Effective”.

1   “Review and assess the subcontractors (sic) submission and invoices” - Mr Edrees and Mr Gower’s ratings are both “Highly Effective”.

107. The second evaluation is described as “Performance Competencies (Skills and Behaviours)”. This consists of 12 separate performance areas many of which are relatively generic although some are more informative in their relevance for these proceedings when one considers Mr Edrees’ relevant KPIs and essential duties and responsibilities in “Position Description” referred to below. The 12 competencies and brief descriptors are:

PERFORMANCE COMPETENCIES (Skills and Behaviours)

1.   Job Knowledge: Aware of current responsibilities; possesses skills and technical knowledge to perform job competently; continually identifies ways to enhance skills and improve knowledge.

2.   Job Safety: Understands and practices company safety policies; participates and contributes to safety meetings; correctly and promptly reports all incidents, unsafe equipment or conditions.

3.   Organisational Skills: Adept at planning, organising and prioritising workload; uses work time productively in order to meet deadlines.

4.   Reliability: Takes personal responsibility for job performance and delivers on commitments. Adheres to designated start time and lunch period; completes tasks in a thorough, accurate and timely manner.

5.   Initiative: Generates ideas for improvement and proactively improves work methods and procedures to achieve greater efficiency.

6.   Communication Skills: Communicates effectively (written and spoken) and influences others in order to meet organisational or project goals; clearly articulates and shares ideas and information.

7.   Teamwork: Maintains productive relationships with co-workers and subordinates.   Shares information and resources with others to promote positive and collaborative working relationships.

8.   Problem Solving/Decision Making: Identifies and analyses problems; formulates alternative solutions. Demonstrates sound judgement to make good decisions; follows up to ensure problems are resolved; identifies future problems and implements preventative action.

9.   Cost Control: Plans ahead to save time and money; effectively uses and keeps track of materials; minimises waste and stays within established budgets.

10.   Work Standards: Sets and maintains high performance standards; handles multiple responsibilities in an effective manner and comfortably delegates where appropriate. Uses standard check systems to ensure accuracy of work; monitors process, progress and results.

11.   Interpersonal Skills: Establishes and maintains harmonious and effective relationships with superiors, colleagues and suppliers and gains their trust and respect. Relates well to all kinds of people.

12.   Resilience: Able to withstand on-going pressure; adapts to changing priorities and demands.   Deals with difficult situations while maintaining performance.

108. Mr Gower’s rating evaluation for Mr Edrees’ performance of the 12 competencies for the review period was 5 ratings of “Competent” and 7 ratings of “Highly Effective”.

109. The summary comment in the overall assessment in the Employee Performance Evaluation was “Highly Effective” in relation to the descriptor “Meet the role requirements.”.

Employee Performance evaluation

110. This document altered the three primary responsibilities to:

1.   Manage Subcontractor are (sic) subcontract requirements throughout the construction phase.

2.   Ensure all procurement items are engaged delivered and tracked in a timely matter (sic).

3.   Manage and deliver key performance indicators.

111. Mr Edrees was rated “Competent” for each responsibility.

112. The Employee Performance Evaluation used the same 12 performance competencies as in the Self Evaluation and on this occasion Mr Edrees was rated “Competent” for 6 competencies and “Highly Effective” for the other six. The Overall Assessment was “Ramy shows destination (sic) and commitment throughout each day.” The Overall Rating showed a typed or printed “C” for “Competent” and a handwritten “H” for “Highly Effective”. I am not aware of any evidence as to who altered the typed “C” to the handwritten “H”.

Contracts Administrator KPIs

113. The third document is headed “Project Team Requirements KPI” and has a list of requirements under the headings “CA Requirements” and “CA Finance Requirements”.

114. The preamble to the document refers to key items which the Project team is prompted to consider when completing a task for each project site in the context of “Day and weekly requirements”.

115. The required items for the CA include:

• Weather details; EOT Issued on the day of Incident

• Monitor and follow up due quotations each day

• Communicate with the Site Manage (sic) for Procurement requirements and when they are due on site

• PO Issued on the day on acceptances

• Activities on site Delays on site; NOTES;

• PCG Report updated on the required date

• Detailed Subcontract scope of works

• Ensure Procore folder are (sic) up to date with all appropriate documentation when it is presented to the Project team

• Monitor QA Inspection before Payments are made

• Monitor Delivery of materials and Doucet (sic) before payment is made

• Ensure meeting minutes are completed and issued on the same day

• Contracting Cycle Length Efficiency is crucial to improving profit margins

• Coordination of drawing and specification Project documentation to all stakeholders

• Schedule adherence addition to receiving quality goods and services from every contractual relationship, timeframes must be established for deliverables, and timeliness should be monitored

• Consistent Quality Contracting relationships that add value are those that involve parties who perform promptly and do so exactly as stipulated by the contract.

116. The CA Finance Requirements – to the extent that they may be relevant to these proceedings, include:

• Ensure all Subcontract and PO obligation are performance (sic).

• Conduct Site progress claim walks to monitor subcontractor progress claim [sic]

• Ensure all subcontractors and suppliers compliance information is on Procore and compliant

• Ensure Subcontractors are providing the required certification throughout the project and file accordingly

• Ensure all associated procurement items are on site ready for due dates

• Ensure relationships are maintained with all project teams and stakeholders

117. Page 81 of A2 states the “Document Owner” of “Project Team Requirements KPI” is Mr Gower and the document’s “Adoption Date” is 10 June 2018.

Position Description

118. The document headed “Position Description” at A2/82-83 includes the following headings:

Title:      Contracts Administrator       Status:    Full-time

Location:   Office and On Site         Reports To:   Project Manager

119. The document includes the following:

Job Summary

This role is responsible for the procurement of consultant and sub-contractor services and financial activities with a focus on cash flow, profit maximisations, variations, reporting and administration.

Reporting Relationships

This position reports to the Project Manager. Direct reports include the Cadet assigned to the project. The Contract Administrator works closely with the Site Manager for each project.

Work Environment and Special Conditions

…. This position may require frequent travel and work across building sites (Tribunal emphasis) and after hours.

Essential Duties and Responsibilities

1.   Prepare tender documentation required for the procurement of sub-contractors including tender and pricing schedules, scope of works, comparative tender analysis and recommendations

2.   Manage the tender process, vetting and recommending tenders and engaging sub-contractors

3.   Ensure the site management team are aware of the project's scope of works and inclusions in tender packages

4.   Develop and monitor the procurement programme to ensure the project is delivered on time and within budget

5.   Work with the Project Manager in managing all sub-contractors and suppliers performance, ensuring all work in (sic) carried out in accordance with the program specifications and drawings (Tribunal emphasis)

6.   Assess all incoming claims and make appropriate recommendations and arrangements for payment

7.   Prepare cost forecasts, monitor financial status and prepare cash flow statements

8.   Provide input for financial reports and progress claims to senior management team

9.   Foster and maintain strong relationships with clients, sub-contractors, suppliers and consultants (Tribunal emphasis)

Other Responsibilities

1.   Assist senior management with other tasks as required

2.   Undertake other general duties to ensure project delivery and client satisfaction

Qualifications and Experience

Essential

1.   Solid experience working as a Contracts Administrator or Quantity Surveyor on mid to large scale building projects

2.   Relevant tertiary qualifications in Building, Construction Management, Civil Engineering, Quantity Surveying or similar

…

5.   A working knowledge of major building trades [Tribunal emphasis]

6.   Experience in tender processes and trade procurement

7.   Financial understanding and knowledge of construction costs

8.   Exceptional negotiation and influencing skills

9.   Highly developed organisational and time management skills

10.   Effective team player with leadership abilities

Desirable

1. Working knowledge of Microsoft Office applications and planning software”

120. There is no dispute that Mr Gower did not provide a formal reference, in the usual form required by the Respondent, for Mr Edrees. The Respondent also submitted at [9.7] that Mr Edrees did not summons Mr Gower to give evidence in the proceedings.

121. The Respondent was fully aware of Mr Gower’s documented evaluation of Mr Edrees’ work at Palisade Project and submitted the Duffy Kennedy / Mr Edrees Employment Records at [9.6] and [9.7] in RS was evidence that Mr Edrees “reported to Kim Gower, who supervised, evaluated and reviewed the Applicant’s performance of his work at the Palisade Project”. However, the Respondent, for reasons best known to itself, declined to refer to the substantive contents of the Duffy Kennedy / Mr Edrees Employment Records which provided detailed evidence of Mr Edrees’ duties and responsibilities at the Palisade Project and provided a very positive evaluation by Mr Gower of the quality of Mr Edrees’ work throughout the 21017 – 2018 period.

122. There is no evidence that the Respondent made any attempt to contact Mr Gower regarding his evaluation of Mr Edrees’ work nor that the Respondent referred to or took cognisance of that evaluation or the contents of the Duffy Kennedy / Mr Edrees Employment Records in its submissions. Instead, the Respondent focussed on oral evidence from Mr Pratt a senior officer of the Duffy Kennedy group and, according to Mr Pratt, the person to whom Mr Gower reported. It is my recollection that Mr Pratt was examined for some time by the Respondent. Some questions were asked concerning work performed by Mr Edrees at Palisade Project. My recollection is that other than detailed in these reasons, no questions were asked concerning Mr Gower’s positive evaluation of Mr Edrees’ work.

123. With respect, a consideration of the contents of the Duffy Kennedy / Mr Edrees Employment Records confirms that Mr Edrees reported to Mr Gower and, I find that Mr Gower’s positive comments concerning Mr Edrees’ quality of work at Palisade Project is relevant to determining the experience Mr Edrees gained in his time with Duffy Kennedy. It would be unjust not to have regard to those comments in determining Mr Edrees’ application.

Mr Pratt’s evidence

124. Mr Pratt’s evidence is that he is a licenced builder holding a qualified supervisors certificate under the HB Act and for some years has been a senior officer in one of more of the companies within the Duffy Kennedy group. He was the only witness called by the Respondent in these proceedings.

125. Mr Pratt said while the Palisade Project construction was underway he was involved in six other projects for the Duffy Kennedy group. The Palisade Project was the group’s largest project.

126. Mr Edrees started work with Duffy Kennedy in February or March 2017 as an employee of one of the group companies and resigned from the group in October / November 2019. When he started with the group Mr Edrees was the contract administrator for the Palisade Project situated at Miranda. Mr Pratt was asked for details of Mr Edrees’ duties and responsibilities. He said at T1/ p 96 / 36 to p. 97 / 9:

So his role and responsibilities reported directly to the project manager and they included drafting up sub-contract agreements, prior to that, tendering out for the scopes of what is required on the project, to get the tenders from the relevant subcontractors, then that would morph into evaluate or preparing evaluation to present to the project managers so that they could, you know, evaluate the appropriate subcontract, depending what trade it is and then that would then convert into the drafting up the subcontract agreement for – again, all this would be presented to the project managers at certain stages for approval and then, depending on the … they would present it to myself for formal execution of a subtract agreement.

Day to day on the construction site … once a subcontract has been executed, they would be – his roles were to supervise and assess the instrument finds relations to that subcontract agreement, so progress claims, any submissions of extension of times, variations, defects notices, any performance issues that site may have that – within the sites would – the site manager would request of a subcontractor, ie, it might be behind on a – on one part of the job and that – all that administrative stuff that goes on. I mean – and then preparations of client-related requirements that … contractor did … particular one. Obviously, we had fortnightly minutes that we had to produce from meetings. We had – our PCG reports which was monthly that we had to - -

127. Ms Robosa showed Mr Pratt the Duffy Kennedy Self Evaluation document, asked him to read page 71 which related to Primary Responsibilities and asked him whether the three matters listed were Mr Edrees’ responsibilities as the contract administrator. Mr Pratt said the document was a proforma document, the responsibilities were generally done by the project manager and Mr Edrees had many additional responsibilities. It appeared to Mr Pratt that Mr Gower was focussing on those three areas for evaluation.

128. Mr Pratt was then shown pages 80-81. I note those pages set out contract administrator requirements and contract administration finance requirements which are set out above. When asked about items which refer to “on-site” events, Mr Pratt said the events occurred on-site but Mr Edrees was informed by the on-site team as to what had occurred and he recorded events while situated off-site in the office.

129. Ms Robosa then took Mr Pratt to the second dot point on page 80 which stated “Conduct Site progress claim walks to monitor subcontractor progress claim.” Mr Pratt said the contract administrator’s role involved in the administrative function. The project team goes on site and does a walk with the site manager.

130. Ms Robosa asked whether the 6^th dot point on page 81 “ensure all associated procurement items are onsite ready for due dates” meant the contract administrator “had to go onsite to check”? Mr Pratt answered “No”.

Mr Edrees’ Position Description at Palisades

131. Mr Edrees’ position description as Contracts Administrator for Palisades is at A2/82-83 (Position Description). Ms Robosa described these pages as including “sets of essential duties and responsibilities”. Those sets are included above as part of Duffy Kennedy / Mr Edrees Employment Records in these reasons.

2.   Manage the tender process, vetting and recommending tenders and engaging sub-contractors.

5.   Work ”with the Project Manager in managing all sub-contractors and suppliers performance, ensuring all work in (sic) carried out in accordance with program specifications and drawings”.

Working on-site

132. The Respondent relied heavily on evidence from Mr Pratt as to Mr Edrees’ role in the Palisades project.

133. Mr Pratt’s evidence included (in response to an email request from the Respondent for information concerning Mr Edrees’ employment and duties for Duffy Kennedy in the Respondent’s internal review of Mr Edrees’ application for a building licence) an email to the Respondent on 24 September 2019 stating Mr Edrees’ role at Palisades was “solely based in our head office as a contracts administrator and did not involve any on-site building work or supervision”: R3 Tab 3.

134. Mr Pratt’s evidence in cross-examination at T2/75/20-45 was to the effect that no employees of “Duffy Kennedy” reported to Mr Edrees. Mr Pratt referred to “the junior contract administrator and the cadet” and said they were working hand in hand and if they didn’t report for work or needed to be disciplined or weren’t doing their role, the project manager would communicate with them. He did not give evidence as to who they reported to in the course of their day to day work. I gained the impression that Mr Pratt sought to avoid identifying that person or position. He did state that the cadet “would have been a liaison between Mr Edrees and the site guys”.

135. Mr Pratt’s evidence seemed to me to be focussed on avoiding identifying the person to whom the junior contract administrator and cadet reported to in the course of their day to day work on the Palisades project as it may have led to an acknowledgement that, in the Palisades project, Mr Edrees’ work included supervision. Mr Pratt’s answers also avoided dealing with the express statement in the Contract Administrator’s Position Description under the subheading “Reporting Relationships” to the effect that ”Direct reports [of the Contract Administrator] include the Cadet assigned to the project.”

The Instrument

The Applicant’s submissions in relation to the Instrument

136. The Applicant submitted:

40. The Commissioner relied on the Instrument for its interpretation of the criteria for assessing an application and a departure from the requirements set out in the Instrument would not be in the public interest [40].

41.   Senior Member Lucy [in Ngo] found that rigid adherence to the Instrument produces an unjust decision [3] and said:

“Whilst references from persons holding a supervisors certificate or licence issued under the Home Building Act would certainly assist me to reach that state of satisfaction, I consider that, where an individual has been working overseas, it is appropriate for the Tribunal to consider other relevant evidence to determine whether this requirement is met” [47].

42.   The Member considered:

43. “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 the case” [53].

44.   The Senior Member found that Mr Ngo’s experience met the requirements of the legislation and overturned the Commissioners refusal.

…

82.   In the matter of Tange v NSW Fair Trading [2013 NSWADT201], Judicial Member Montgomery states at paragraph 57 in relation to acceptable experience that:

“it is not in dispute that the applicant has not constructed a house from start to finish however in my view that is not conclusive of the issue as noted the Act is a consumer protection Act. Skill, knowledge and ability are the significant factors.”

83.   Judicial Member Montgomery is confirming the intent of the Act and Instrument is an assessment of the facts on their merits and whether that experience shows that the applicant has the relevant skill, knowledge and ability to undertake residential building work.

84.   The evidence is that the Applicant has more than adequately verified he has the acceptable skills, knowledge and ability to undertake residential building work in that he has demonstrated that he has more than two years’ experience required in work that requires the skills, knowledge and ability as that in residential building work and covers a wide range of construction work and supervision and coordination of a wide range of trades.

…

91.   There is no legislative or Instrument requirement that the experience be limited to ‘onsite’ experience.

92.   The total period of the Applicants submitted experience is 25 months with Duffy Kennedy and 6 years and 3 months overseas experience. This more than covers the required 24 months.

93.   On balance therefore the Applicant submits that his role as Contract Administrator provides the type and range of experienced required for a builders licence.

94.   If it is found that the Contract Administration role does not provide sufficient experience then the Applicant submits that its overseas experience combined with the Contract Administration experience provides sufficient experience.

95.   Mr Pratt supports this finding in his oral evidence. When asked whether the combination of the role of Contract Administrator and Project Manager would provide the relevant experience required for a builders licence, he answered “Yes” (T2/63/10-15).

The Respondent submitted, in relation to the Instrument

4.   THE INSTRUMENT AND ITS APPLICATION BY THE TRIBUNAL

4.1   When the Applicant lodged [the Application], the instrument … was in force (R3, Tab ‘1’). …

4.2 Pursuant to s.33D(1)(b) of the HBA, the Respondent has set out in the Instrument what [the Respondent] determined as the appropriate qualifications, the nature and period of experience to enable an applicant to carry out and supervise general building work.

4.3 In Carrigan1, Principal Member R C Titterton accepted the following principles as enunciated by Senior Member Lucy in Whitehouse:

1)   the Instrument is not binding on the Tribunal;

2) the proper characterisation of the Instrument is that it is a policy, but not “Government policy” as that term is defined in ss 50 and 64(1) and of the Administrative Decisions Review Act 1997 (NSW) (ADR Act);

3)   the Tribunal is only required to give effect to “Government policy” [as defined];

4)   the Tribunal “may have regard to any other policy 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”3; and

5)   the Tribunal must not apply the Instrument inflexibly (that is, as a fixed, determinative rule), as this would be an error of law.

4.4 The Instrument falls under the terms “any other policy applied by the administrator” referred to in section 64(4) of the ADR Act …

4.5 In Ngo, Senior Member J Lucy stated at [33]:

“[33] It is to be noted that the Tribunal is not required by s 64(4) of the Administrative Decisions Review Act to have regard to a policy such as the Instrument (cf Briggs v Cmr for Fair Trading Department of Finance, Services and Innovation [2018] NSWCATOD 175 at [14]). It is permitted to do so if the policy is not contrary to Government policy and if doing so does not produce an unjust decision. Generally, it is desirable for the Tribunal to have regard to a lawful policy, and to apply it, if it does not produce an unjust decision, so as to promote consistency in decision-making (see Re Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 ).....” (emphasis added)

4.6   The Instrument is not contrary to Government policy or to law. In Briggs, the Tribunal applied the Instrument and Senior Member Scahill stated at [107] – [110]:

“[107] The Second Reading Speech to the HBA set out that the main objectives of the HBA are “to promote and protect the interests of owners and purchasers of dwellings and to set standards for competence within the industry”.

[108] The Tribunal observed in Thukral v Cmr of Fair Trading [2006] NSWADT 356, that the Act has many functions, and focuses on consumer protection

The [Act] is essentially a consumer protection Act which regulates residential building work in NSW. It provides for the licensing and regulation of those engaged in residential building work, and makes provision as to their competence, fitness and solvency, and their discipline. By issuing contractor licenses and certificates, the Commissioner represents to members of the public that the contractor meets the fitness, competency and solvency requirements of the Act and is authorised to do the work specified in his or her licence.

[109]   The Tribunal approaches its findings keeping in mind that granting of a licence is a representation that Mr Briggs has the competence to undertake the work of a building contractor.

[110]   The Tribunal notes the findings in the matter of Whitehouse. The Tribunal is satisfied that the requirements set out in the Instrument are appropriate and sound and ought to be followed by the Tribunal in determining the correct and preferable decision.” (emphasis added)

4.7    In … Price, the Tribunal had regard to the Instrument. Under the heading “Should the Tribunal depart from the Instrument’s provisions?”, Senior Member Scahill enunciated the following principles at paragraphs [64] – [65] and [68] – [69]:

“64 Generally, the Tribunal stands in the shoes of the original decisionmaker when reviewing a decision. This means the Tribunal must apply the same legislation that bound the original decisionmaker. The Tribunal has held though that the Instrument is not binding on the Tribunal: Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 at [39]; Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 at [31]. …

65   The Tribunal must not apply the Instrument inflexibly.

…

68   The Home Building Act 1989 is concerned with consumer protection. For the Tribunal to depart from the terms of the Instrument the Tribunal would need assurance that the Applicant had the skills necessary to undertake or supervise the building of a home.” (emphasis added)

4.8   Another case in which the Instrument was followed and which related to the issue of experience was Limberis. Senior Member K Ransome relevantly stated at [33]:

“33. The policy requires an applicant for the licence to have two years’ experience in a wide range of building construction work, the majority of which was obtained in the 10 years preceding` the application for the licence. Mr Limberis has not argued that this aspect of the policy should be departed from by the Tribunal and I see no reason to do so. The requirement that an applicant for the licence should have current relevant experience is a sensible one.” (emphasis added)

5.   THE EXPERIENCE REQUIRED PURSUANT TO THE INSTRUMENT

5.1   The Instrument provides that, for a contractor licence to be issued, an applicant must demonstrate:

a)   a minimum of two years’ relevant industry experience;

b)   in a wide-range of building construction work;

c)   where the majority of that experience was obtained within 10 years of the date on which the application was made.

(R3, Tab1, pp. 1 & 4).

5.2 The Instrument defines “experience” as follows:

““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 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 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

•   received Remuneration in accordance with law for the Work which the applicant carried out;

.... ” (emphasis added) (R3, Tab 1, p.2))   a holder of an endorsed contractor licence contracted to; or

5.3   In line with this policy, the relevant Application and Referee’s Statement Forms specifically require:

(i)   Referees’ statements from licensed supervisors covering the minimum required period of practical experience must accompany the application (p.8).

(ii)   The referees must meet the following requirements (R1, p.21):

•   held a current endorsed contractor licence (Q) or a qualified supervisor certificate during the dates claimed on the Referee's Statement Form and accompanying 'Applicant's On Site Building Experience” forms;

•   held the category of General Building Work (Builder's licence) during the dates claimed in the Referee's Statement Form and any accompanying 'Applicant's On Site Building Experience' forms;

•   supervised work on site during the dates claimed in the Referee's Statement Form and any accompanying 'Applicant's On Site Building Experience' forms.

(iii)   Experience must be based on the time spent on “site as per each of the 'Applicant's On Site Building Experience' Forms”.

(iv)   2 years full time equivalent from on-site based experience. The total period of time spent on-site must equal at least 2 years full time.

Should the Tribunal apply the Instrument in the circumstances of this case?

137. In Ngo the Tribunal said:

36 The main dispute between the parties concerned the question of whether Mr Ngo has had experience of such a kind and for such a period as would enable him to do, or to supervise, the work for which the qualified supervisor certificate is required, within s 33D(1)(b) of the Home Building Act. A subsidiary issue (the issue on which the Commissioner focused) is whether the Tribunal should find that Mr Ngo does not have the requisite experience because he does not satisfy the requirements of the Instrument.

…

41   The Commissioner’s submission that “a departure from the requirements set out in the Instrument would not be in the public interest” is, on its face, inconsistent with the principle that an administrator must not apply a policy inflexibly. There was nothing in the Commissioner’s submissions to indicate that the Commissioner would be prepared to depart from the policy in an appropriate case. On the contrary, the Commissioner said that it would not be in the public interest to set a “precedent” where applicants may satisfy experience requirements without demonstrating verifiable references produced by licensed persons who have closely and consistently supervised an applicant’s work. The repeated use of the word “requirements” in the original refusal decision, the internal review decision and the Commissioner’s written submissions suggest that the Commissioner is applying the Instrument as if it were a law.

…

44   I commented in Whitehouse (at [57]) that:

“…the Tribunal is not entitled to apply the Instrument inflexibly (that is, as a fixed, determinative rule). This would be an error of law (see NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; 77 ALJR 1263; [2003] HCA 35, Gleeson CJ at [24]; Adultshop.Com Ltd v Members of the Classification Review Board [2007] FCA 1871 at [110] and authorities there cited; King v Minister for Immigration and Border Protection [2014] FCA 766 at [22]). Further, the legislature has provided for the way in which the Tribunal is to deal with policy in s 64 of the Administrative Decisions Review Act, and the Tribunal is bound by those provisions.”

45 As McCallum J observed in Davison v Commissioner for Corrective Services [2011] NSWSC 699 at [36], a discretionary power “must be exercised on each occasion in the light of the circumstances at that time” (citing R v Secretary of State for the Home Department; Ex parte Venables [1998] AC 407 at 496–497 and ID, PF and DV v Director General, Dept of Juvenile Justice [2008] NSWSC 966; (2008) 73 NSWLR 158 at [284]). The Instrument may guide the exercise of the statutory power, but the statutory question should remain the focus.

47 … In the circumstances of this case … I consider that the policy produces an unjust decision. That is because Mr Ngo spent the last ten years working overseas, where he was (unsurprisingly) not supervised by any person holding a qualified supervisor certificate or individual contractor licence issued by NSW Fair Trading. The question I have to decide under s 33D(1)(b) of the Home Building Act is whether Mr Ngo “has had experience of such a kind and for such a period as the [Tribunal] considers would enable the applicant to do, or to supervise, the work for which the certificate is required.” … I consider that, where an individual has been working overseas, it is appropriate for the Tribunal to consider other relevant evidence to determine whether this requirement is met.

…

50 It greatly assists the Tribunal, in determining whether an applicant has sufficient experience to do or supervise the relevant work, to have evidence from persons who have closely supervised the applicant. However, strictly applying the policy in the Instrument in this case in respect to references from supervisors would produce an unjust decision (as the Tribunal found it would in similar circumstances in Carrigan v NSW Fair Trading [2018] NSWCATOD 60 at [35]). That is because, due to his extensive experience and seniority, Mr Ngo has effectively been working without close supervision overseas. …

…

52 It should be noted that Locking was decided before the Home Building Amendment Act 2014 (NSW), which inserted the current s 33D into the Home Building Act. At the time Locking was decided, the Tribunal had accepted the Commissioner’s position, in a number of decisions, that s 20(2) of the Home Building Act, read with cl 26(1) and 28(1) of the Home Building Regulation 2004 (now repealed), provided authority for the making of an instrument in similar terms to the Instrument (see discussion in Whitehouse at [32] to [34]). Locking is nevertheless relevant in that it explains what is meant by “a wide range of building construction work” for the purposes of this part of the policy.

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.”

54 Another issue is whether I should depart from the policy that an applicant demonstrate “Experience” as defined in the Instrument. Mr Ngo does not have such experience (within paragraphs (b) to (e) of the definition of “Experience”) because he has not held an authority under the Home Building Act. Nor does he have experience within paragraph (a) of the definition of “Experience” because he has not gained experience within the last ten years as an employee of the holder of a contractor licence issued in New South Wales. This is explicable, at least in part, in that his experience has mainly been obtained overseas.

55 The policy that an applicant demonstrate “Experience” (as defined) would produce an unjust decision in the circumstances of this case, given Mr Ngo’s extensive experience outside of New South Wales (see Jones v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 142 (“Jones”) at [61]). I decline to apply it.

Capability of doing or supervising relevant work

138. Is Mr Edrees capable of doing or supervising work for which the licence is required?

139. Section (s 33D(1)(c) requires that a supervisor certificate must not be issued unless the Tribunal is satisfied that the applicant is capable of doing or supervising work for which the certificate is required..

140. Having regard to the evidence of Mr Edrees’ extensive experience overseeing or supervising such work and similar work, I find that he is capable of supervising the work for which the licence he applied for is required.

141. I observe that in Ngo the extensive work that the applicant performed on non-residential construction projects was taken into consideration as being relevant experience: [at [83] and with regard to Senior Member Moloney’s reasoning in Shoobridge v Commissioner for Fair Trading [2015] NSWCATOD 42 (Shoobridge).

142. Having regard to the extensive experience Mr Edrees gained in residential construction I find that his experience in non-residential construction would have been complementary to his residential experience for the purpose of the Application..

Lack of approved reference from employer

143. Mr Edrees was cross-examined in relation to his letter at pages 2 to 3 of the s 58 documents and a discussion Mr Edrees said took place between Gavin Duffy, Mr Pratt and himself.

144. The letter, dated 15 April 2019, was from Mr Edrees to NSW Fair Trading enclosing his application to Fair Trading for a building licence and provided an explanation as to why Mr Edrees was unable to obtain a reference from Mr Pratt. Described as “the construction manager of Duffy Kennedy Pty Ltd”

145. The letter included:

I have enclosed all the relevant documents however, I was not able to obtain a formal referee statement from Nathan Pratt the construction manager of Duffy Kennedy Pty Ltd.

I approached Nathan Pratt, who is a licenced builder to verify my work and initially he agreed to do that, however the director, Gavin Duffy, instructed him not to do that and told me he would not verify my experience due to the fact that I might start a building company in competition.

I completed over two years of work on the site with a view to obtaining the experience for a building licence. I am left in the unfortunate situation of not being able to provide the referee statements however. I have provided six statements from tradespeople and a licenced builder who observed the work I undertook on site during the period required for my experience.

I request that these statements be considered.

146. In cross-examination, recorded at T3/82-85, Mr Edrees was referred to part of his statement at A2/2 "I want the licence to be able to complete my own home". Mr Edrees confirmed the statement. He was then asked “So you want, you applied for the licence with Fair Trading to be able to construct your own home, is that correct?” Mr Edrees said “No it’s not.”

147. Mr Edrees said it was part of his discussion with Gavin Duffy and Mr Pratt.

148. The transcript shows at T3/83:

Mr Edrees:   this is part what I, what I told Gavin, that “Gavin, I need, I need the licence, I want to start with my own home.”

This is what happened, this is what I said. But no, I don't want only the licence to build my own home, or I would have applied for owner's builder

149. Mr Edrees was then referred to his letter of 15 April 2019 and the paragraph commencing “I approached Nathan”.

150. The transcript continued on page 84 with:

MS ROBOSA: Yeah. You indicated that Mr Pratt would not verify your experience because you might start a building company competition?

MR EDREES: Yes.

MS ROBOSA: Now, I put to you that your recollection is incorrect.

MR EDREES: I've based my recollection based on what he said in the discussion, that Gavin told me that, exactly: “Ramy, you don’t know the very second morning you will have the licence you will be a builder like myself.”.

151. The transcript continued on page 85:

MS ROBOSA: So I put to you that as, as a substantial company, a building company like Duffy - Duffy Kennedy could not have been threatened by competition if you would just be starting a building company.

MR EDREES: So I don't know why Gavin told you that, but this is what was said.

152. The transcript continued with references to documents enclosed with the letter to Fair Trading

Witnesses statements

153. Mr Edrees submitted:

Witness Statements

54   The Applicant has filed a number of reference statements that verify the Applicants experience at the Palisade, they include:

(a)   Statement of Michael Fadel (R1/38) who holds NSW builders licence 191367C;

(b)   Statement of Deepak Parmar 5 April 2019 (R1/41);

(c)   Statement of Majid Elm Ashharawi 5 April 2019 (R1/42), Mr Ashhawari also verified orally that he saw the Applicant perform the roles identified in his statement (T1/62¬62/1-10);

(d)   Statement of Daniel Lopez (R1/43);

(e)   Statement of Toufic Helou (R1/44); and

(f)   Statement of Wing Choi Yung (R1/45)

55.   All of the referees verify they observed the Applicant undertake roles identical to the roles identified in the Referee Statement Form above at 19..

56.   Mr Fadel, the licenced builder has verified that he observed the Applicant in the following roles:

(a)   Prepare the scope of work;

(b)   Prepare the subcontract agreement;

(c)   Review progress claims submitted;

(d)   Attend the design meetings;

(e)   Reviewed the shop drawings and the as built drawings;

(f)   Checked the work to be in accordance to BCA and AS;

(g)   Supervised work on site;

(h)   Applying structural principles;

(i)   Issuing defects reports; monitor progress on site.

57.   Mr Fadel had previously provided a ‘Referee testimonial’ on 6 March 2018 (A2/31-32) where he verified the Applicant had for a period of 1 year undertaken the following activities:

(a)   Apply building codes and standards to the construction process for low rise building projects

(b)   Manage occupational health and safety in the building and construction workplace

(c)   Select and prepare a construction contract

(d)   Identify and produce estimated costs for building and construction projects

(e)   Produce labour and material schedules for ordering

(f)   Select, procure and store construction materials for low rise projects

(g)   Plan building or construction work

(h)   Conduct on-site supervision of building and construction projects

(i)   Apply legal requirements to building and construction projects

(j)   Apply structural principles to residential low rise constructions

(k)   Apply structural principles to commercial low rise constructions

(l)   Read and interpret plans and specifications

(m)   Manage small business finances

(n)   Apply site surveys and set-out procedures to building and construction projects

(o)   Resolve business disputes

(p)   Establish legal and risk management requirements of small business.

154. I have not verified the reference at [55] to the “Referee Statement Form”. However I comment as follows:

1. Mr Fadel stated he witnessed Mr Edrees work on the Palisade Project from 1/3/2017 until present (I note the statement is undated). Mr Fadel stated he “was working at the site all of this period. Ramy was and still working for the builder of the project. My company was subcontracted to carry out the Electrical package in the job. Ramy had several roles on the project mentioned above. To list a few …,” Mr Fadel then listed the roles referred to at AS [56] above.

2. Mr Parmar stated he worked as a contracts administrator for Duffy Kennedy from July 2018 to February 2019 and witnessed Mr Edrees performed the following tasks at the Palisade Project: direct trades and supervise work in 9 identified trades; assess invoices; quality inspections for 7 trades, two of which were not referred to previously; monitor the work programme and write contracts.

3. Mr Ashharawi stated on 5 April 2019 he then worked as a project manager and previously as a contracts administrator for Duffy Kennedy from December 2016 to June 2018. He knew Mr Edrees previously when they worked in the same project in Dubai in 2009. He stated Mr Edrees was the contract administrator for the Palisade Project. While at the site he saw Mr Edrees carry out work including preparing the scope of work for all trades on site; review and assessed invoices from subcontractors; prepared the main claim for the client; drafted all contract agreements for the project; issued all purchase orders to suppliers; supervised 5 named trades; checked drawings received; coordinated activities on site; checked work quality; and assigned tasks to trades. Mr Ashharawi.also stated Mr Edrees was on the project throughout its life cycle, from DA to practical completion.

4. Mr Lopez’s statement was undated. He said he currently worked as a contracts administrator for Duffy Kennedy from 05/02/2018 to 01/04/2019. He saw Mr Edrees carry out work on the project at the address of the Palisade Project including preparing a scope of work; monitor and supervise work on site by subcontractors in 9 trades; check work completed and do assessment; quality control and quality assurance, programme activities and trades and prepare contracts.

5. Mr Helou’s statement was undated. He described himself as an electrical contractor with licence number 213915C and was giving his statement for Mr Edrees regarding his work in the Palisade Project from 09/09/17 to 03/02/2019. He first met Mr Edrees in March 2017. Mr Helou is still working at the Project and Mr Edrees is still working for the builder of the Project. He saw Mr Edrees carry out several tasks including attending every trades meeting; issued observations and list of defects; supervising work on site; assessing for monthly claims; coordinating work; planning tasks; reviewing shop drawings; and as built drawings; checking work to accordance standards; and monitoring pro9gress on site..

6. Mr Wing Choi Yung’s stated he made his statement for Mr Edrees. His trade is plaster-boarder licence number 2040 680108. Mr Yung had the plaster-board supply and installation contract for the Palisade Project. Mr Edrees handled the project and carried out “many tasks on the job from August 2017” until the date of Mr Yung’s undated statement. Mr Yung saw Mr Edrees review invoices; issue variations and extensions of time; supervise the work for his trade and other trades; progress meeting weekly (sic); write and send contracts; monitor progress on site; apply and check compliance with the BCA and AS; read drawings and check and manage OHS&E. Mr Edrees started the project and was working there to the date of the statement.

7. Each referee other than Mr Fadel provided his contact details on his statement and expressly stated he saw Mr Edrees carry out the tasks referred to in his statement.

155. In relation to Mr Fadel:

1. the Respondent submitted at [5(ii)d] Mr Edrees provided in AS at pages 31-32 a referee testimonial of Mr Edrees from Mr Fadel and at [5.(ii).f] an email dated 22 October 2019.

2. The 22 October email is from Mr Fadel to Mr Edrees and was copied to each of Mr Pratt and Mr Duffy. The email states:

I would like you to withdraw my referee letter that we have provided you in the past as I was not aware that you were going to use it for a builders license, the reason why we have given you this reference letter is that we have worked together on site and you were the contractor's administrator on the project at Miranda palisade working for Duffy Kennedy.

3. Mr Pratt’s evidence to the Tribunal at T2/ 23 ff was that Mr Fadel’s company (Tricom) was an electrical subcontractor to the Palisade Project, Mr Edrees would be involved in the contract with Tricom and there would be direct contact between Mr Edrees and the subcontractor. He said Mr Fadel was not the day to day on-site person who was there every day and Mr Edrees was not based on site. Mr Pratt also said:

1. Mr Edrees did not prepare subcontract work as the subcontract agreement was already prepared.

2. Mr Edrees reviewed progress claims.

3. He was not certain if Mr Edrees attended all site meetings as he (Mr Pratt) did not attend all such meetings.

4. He was uncertain if Mr Edrees reviewed shop drawings and as-built drawings.

5. He knew Mr Edrees did not check that works were in accordance with the BTA and AS because Mr Edrees worked for him.

6. Mr Edrees was directly responsible to Mr Pratt at the beginning of the design job until Mr Gower was engaged.

7. He knew that Mr Edrees did not supervise work on site because he was office based and there was a site manager and two general foremen and leading hands and other employees on site. Mr Edrees had not been employed for that scope.

8. If Mr Edrees had checked that work was done in accordance with BTA and AS, he (Mr Pratt) would have disciplined him because that work is outside his scope.

9. Mr Edrees would have issued defect reports but Mr Pratt is not aware as to whether Mr Edrees did that in regard to electrical work.

4. In re-examination Mr Edrees was asked about him not requiring Mr Fadel to attend the hearing as a witness and whether there was a reason for that situation.

5. Mr Edrees replied at T3/123 that he had Mr Fadel’s statement and apparently Mr Fadel was under certain pressure to withdraw the statement which was why he copied the email to Mr Duffy and Mr Pratt. Mr Edrees did not speak with Mr Fadel after receiving that email because he had been relying on him to be a witness. “But I think he made the decision that his business relationship with Duffy Kennedy is more valuable than (indistinct) working over that. So I think this was the situation. That's why I didn't call him as a, as a witness.

6. Ms Robosa then conducted further cross-examination as follows (at T3/124):

MS ROBOSA: Just one point, Senior Member, in relation to the - to Mr Fadel. So you mentioned that he was under pressure. Did he indicate to that to you, or is it just your impression?

MR EDREES: He did.

MS ROBOSA: It - he - so he did indicate that specifically to you?

MR EDREES: Yes.

MS ROBOSA: Nothing further, Senior Member.

156. In relation to Mr Parmar:

1. The Respondent submitted at 9.8(b) “While the statement indicated that he “used to work as a Contracts Administrator for Duffy Kennedy”, Mr Pratt testified that “he was never employed as a contract administrator” and that he joined Duffy Kennedy initially on an internship and then to cadetship. (T2, p. 28, paragraphs [20] – [25]).”

2. The Respondent’s submission is based on Mr Pratt’s oral evidence at T2/28 to the effect that Mr Pramar ” … at the period of time he was never employed as a contract administrator ...” (Tribunal emphasis)

3. Mr Pratt informed the Tribunal that Mr Parmar was a link between onsite for 60% of his time and 40% in the office where Mr Edrees worked.

157. In relation to Mr Ashharawi:

1. The Respondent’s submission at [9.8(c)]

Majd Elm Ashharawi. He used to work as contract administrator at Duffy Kennedy, also provided a Statement (R1, p.42) and gave evidence in these proceedings. Mr Ashharawi testified that when the Applicant joined Duffy Kennedy, he handed over the Palisade project to the Applicant and that he “moved on to work on a job in Mascot and then another job...” (T1, p.51, paragraph [15]). Mr Pratt testified that Mr Ashharawi was “a support person ... for administration purposes” at the early contracting negotiations stage for the Palisade project when work on site had not started. He then “was employed as a contract administrator working on a previous project....in Mascot, .... and at the same time he was then allocated to a project at Jannali, which he worked on full-time”; and that “at no stage did he work on Palisade project on site” (T2, pp. 29-30, paragraph [45]; p. 36, paragraph [30]).

and at [9.9(iv)]:

(iv)   Mr Ashharawi stated that he saw the Applicant “doing” the tasks listed in his statement. However, he and Mr Pratt testified that when the Applicant joined Duffy Kennedy, Mr Ashharawi handed over the Palisade Project to the Applicant and then worked at projects in Mascot and Jannali. As they worked on different projects located at different sites, it’s not plausible for Mr Ashhawari to attest to the performance of the Applicant’s work in particular what he claimed in items 6 and 11, viz., “Supervised different trades on site: Excavation, plumbing, carpentry, roofing, concreting” and “Assigned tasks to different trades” (p.42).

2. are based on Mr Pratt’s oral evidence at T1/51. Mr Pratt informed the Tribunal at T2/36:

“we didn't start on this site [Palisade Project] until around 25 April 2017, and so the first part is I'm not aware of any time that Majid worked on the Palisade project. He definitely didn't work under any employment arrangement he had with Duffy Kennedy - or Duffy Kennedy Constructions.

and at T2/37:

Mr Ashhawari’s ‘transition was from Mascot to - the project team from Mascot went straight to the Jannali project….Majid wasn't based on the Jannali site at that time straightaway, either, because we hadn't set the site up to have full-time crew on there, so - because it involved the demolition of an existing tavern and a building

3. Mr Ashhawari’s evidence to the Tribunal included:

1. he worked for GPS from 2009 to May or June 2011 as a civil engineer and site manager. He worked with Mr Edrees at International Airport Central Hotel project for the whole of his employment with GPS.

2. At T2/56 Mr Edrees joined Duffy Kennedy in February 2017 and Mr Ashhawari left the Palisade Project near the end of March 2017. T2/56.There was a transition / handover.

3. Mr Edrees drafted the initial list of his work and Mr Ashhawari made changes regarding what he observed.

4. at times he saw Mr Edrees talking to tradies on site. He wasn’t part of the conversation.

5. “… on my involvement with the Palisade even though I was working on another job, the Palisade job was next to our head office and then we often go to the Palisade CAs to observe and you know, what’s going on our construction sites. So I did see Ramy …[T1/72]

6. he was predominantly on site at both Jannali and Mascot (Palisade Project). [T1/73]

7. at Mascot the office is more or less 5 minutes’ walk from the site.

158. In cross-examination Mr Ashhawari said he saw Mr Edrees attend to items 1 and 2 in his task list. I observe that Ms Robosa then moved from questioning Mr Ashhawari as to the listed tasks he said he had seen.

159. Ms Robosa asked about the 14 pages of contract administrator tasks. Mr Ashhawari said this was a new document which was not at Duffy Kennedy when he worked there.

160. Mr Ashhawari confirmed his list is what he saw Mr Edrees do – T1/61.

161. The transcript records around T1/68 Ms Robosa asked several questions as to what physical work e.g. carpentry Mr Ashhawari saw Mr Edrees carry out.

162. In relation to Mr Lopez the Respondent submitted at [9.8(d)]:

1. Daniel W. Lopez (R1, p.43). He indicated that he worked as a Contract Administrator for Duffy Kennedy from 5 February 2018 to 1 April 2019. Mr Pratt testified that Mr Lopez was “a junior contract administrator” who worked directly under the contract administrator (T2, p.40, para. [45] and p.41, para. [5])

2. … He was generally working directly under the contract administrator and the project manager, reported to the project manager of the project, which he did …

163. In relation to Mr Edrees Mr Pratt said at RS [10.5]:

MR PRATT: Mister – yes. Mr Edrees was based in the office full-time. He did not work from site. So that he worked from the office. Mr Edrees would have attended site to, as I said, program meeting, a – you know, a – yes, if, for example, Daniel Lopez or a    or somebody was away and he needed to get a document from site, he would attend. They’re free to attend site, but they are not based on site. So in Mr Edrees’ case, just to clarify, he did not work from site. He worked from the office, but he was involved in a site-based project as part of a team, if you know what I mean. So I think, just to clarify, I would have said or if I didn’t say – if I wasn’t clear, that’s my fault. He was not a site-based – a worker.

164. In relation to Mr Edrees, Mr Pratt’s evidence distinguishes between working on site and working from the office. I find there is no relevant distinction to the extent that even if Mr Edrees was based in the head office, if he was carrying out tasks on site pertaining to his job then I find that he was working on site.

165. The transcript shows Mr Pratt saying in evidence :

: …. performing work on site is not what Mr Edrees did. Attending site, he did. .... “ (T2, p.45, paragraph [15] – [25])

Chairing trade meetings, no, that’s not a contract administrator’s role, nor would he have ever done so … T1/118:

and at page 119

He may at one particular time or somewhere along the line – meaning that there would have been in excess of 150, 160 trade meetings, I would suspect, maybe longer – he would be in those meetings, because he would have expected to do minutes, but maybe Dina Lopez or one of the cadets actually did the minutes in trades meetings. It would have been dictated by what the project manager and the site manager wanted. They would have been the two people that – I would never have had both my project manager and my site manager off at the same time to not chair a trade meeting. It would have been cancelled and moved to a new date. It wouldn’t have been put in the charge of a contract – or Ramy as a contract administrator. No chance.

166. The Respondent made no substantive submission in RS nor was any relevant reference made concerning either Mr Helou or Mr Yung in the transcripts...

167. In cross-examination Mr Edrees said he typed referees’ statements after discussing the contents with each referee. He said at T3/115-116 in relation to the referees and their statements:

… they are not the same. Some of them are my colleagues, some of them are my subcontractors, and for example my, my colleagues witnessed me doing some things, and my subcontractors witnessed me doing another thing, and so on. So yes, I, I typed it, it's, it's not a copy/paste for across all the statements. It's based on each one.

Decision

168. Having regard to the overall evidence before me and my above findings, the correct and preferable decision of the Tribunal is to set aside the decision of the Respondent and grant the Applicant the licence he applied for.

Orders

I make the following orders:

(1)   The decision under review is set aside.

(2) In substitution for that decision, the Tribunal grants the applicant an individual endorsed contractor licence in the category “general building work” under the Home Building Act 1989 (NSW)

(3)   The Respondent is to effect the grant of the individual endorsed contractor licence to the Applicant within 14 days of publication of these reasons.

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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

Decision last updated: 16 February 2021