Forth v Commissioner for Consumer Affairs No. Dcaat-00-362

FORTH V COMMISSIONER FOR CONSUMER AFFAIRS

[2000] SADC 142

1................ JUDGE BURLEY......... This is an appeal from a decision of the Commissioner for Consumer Affairs (the Commissioner). By application dated 15 March 2000 the appellant (Mr Forth) applied to the Commissioner for a building work contractor licence and for registration as a building work supervisor. The application was made pursuant to the provisions of the Building Work Contractors Act 1995 (the Act). This appeal is not concerned with the application for a contractor’s licence because the Commissioner has not as yet made any decision in relation to that aspect of Mr Forth’s application. However, during the course of the hearing of the appeal the Commissioner indicated through his counsel that, subject to certain conditions, the appropriate licence could be granted to Mr Forth under the provisions of the Act. That licence is of little use to him without being registered as a supervisor. It is apparent from the application that Mr Forth wishes to conduct a business as a sole trader and as such he must not only hold the relevant contractor’s licence but also he must obtain the appropriate registration as a supervisor.

Section 13(1) of the Act provides for registration of a supervisor with conditions. It is that type of registration which Mr Forth has sought. The type of work which he wishes to be able to supervise has been described in paragraph A of Section 2 of the application as “fencing, paving” and “general repairs”. There is a different description in an earlier part of the application but this was not pursued during the hearing of the appeal.
The Commissioner dealt with the application and declined to grant the necessary registration. Mr Forth has appealed to this Court pursuant to Section 17(1) of the Act. Section 17(5) of the Act provides:-
“(5) Except as determined by the District Court, an appeal is to be conducted by way of a fresh hearing and for that purpose the Court may receive evidence given orally or, if the Court determines, by affidavit.
(6) The District Court may, on the hearing of an appeal—
(a).... affirm the decision appealed against or rescind the decision and substitute a decision that the Court thinks appropriate; and
(b)... make any other order that the case requires (including an order for costs).”
The Commissioner gave reasons for his decision to refuse the application for registration. Those reasons are as follows:-
“This is an application by Michael John FORTH for a registration as a Building Work Supervisor subject to conditions limiting the work that may be supervised under the authority of the registration to specified building work limited to brick paving, general repair, fencing of brush, timber and steel and erection of shade houses under the Building Work Contractors Act, 1995 (‘the Act’).
Section 9 of the Act provides:
‘Entitlement to be registered
(1)... A natural person is entitled to be granted a licence if -
(a).... the qualifications and experience required by regulation for the kind of work that the person would be authorised to supervise by the registration; or
(b)... subject to the regulations, qualifications and experience that the Commissioner considers appropriate having regard to the kind of work that the person would be authorised to supervise by the registration.’
On 5 April 2000 and on 16 June 2000 the applicant was interviewed by the Project Officer - Building, Office of Consumer and Business Affairs for the purpose of assessing his supervision and technical knowledge and experience applicable to the registration sought. Site inspections were also conducted to view and assess work undertaken by the applicant, and a referee was contacted, to assist in the assessment. The applicant was unable to identify work that did not comply with industry standards and in fact he had erected with non-compliance. The applicant did not demonstrate sufficient knowledge of the technical and statutory requirements and his obligations.
By virtue of section 16 of the Act, I am satisfied that the applicant does not meet the performance criteria as specified in Schedule 2, Part B of the Act’s Regulations and is therefore not entitled to be granted the building work supervisors registration.
The application is refused.”
At the hearing of the appeal Mr Forth was unrepresented and the Commissioner was represented by counsel, Mr A Parkinson. At the hearing various documents were admitted by consent. In addition, Mr Forth gave evidence in support of the appeal and the Commissioner called Mr Cammisa, an assessment officer, and a Mr Endemann, a building inspector employed by the City of Port Lincoln.
Mr Forth’s application was assessed by Mr Cammisa and a copy of his assessment was tendered in evidence (Exhibit D3). He said in that report:-
“Applicant has claimed that he has been involved in the Building Industry for over 40 yrs, performing fencing, post & rail and brush and good neighbour; Paving (Brick) and other construction. He claimed that he had performed fencing for the S.A.H.T. Applicant held a licence from 1996 to 1998 until it was cancelled due to non lodgement of A.R. Applicant was interviewed on two occasions on 5/4/00 and 16/6/00. Where site discussions were conducted with the applicant relating to the procedure and standard of the work demonstrated. Applicant was unable to identify work which did not comply with Industry standards and in fact which he erected with non compliance. I viewed a number of sites which the Applicant directed me to see and discuss concerning his skills & technical knowledge acquired through experience. I note Mr. Clarke’s reference and my discussion with him on 16/6/00 and advised that I had viewed that site and the brush fencing at South Point Drive, Pt. Lincoln, and some purported galvanised fencing for S.A.H.T. I also viewed paving at Spencer St. Tumby Bay and other sites in Tumby Bay and Lipson: photos were taken of two sites where work does not comply and is not of an acceptable standard.”
Mr Cammisa recommended to the Commissioner that the application for registration be refused. He stated in his report:-
“Applicant does not meet criteria pursuant to Section 16(2) of the Act; Part B Building Work Supervisors Registration performance criteria.”
I think that Mr Cammisa was in fact referring to Section 16(b) of the Act which provides:-
“16. A natural person is entitled to be registered if the person has –
...
(b).... subject to the regulations, qualifications and experience that the Commissioner considers appropriate having regard to the kind of work that the person would be authorised to supervise by the registration.”
Regulations under the Building Work Contractors Act 1995 (GG 23 May 1996 at 2547) deal with the registration of building work supervisors. Regulation 12(2) provides that “a natural person must have qualifications or experience, or qualifications and experience, such that the person meets the performance criteria set out in Part B of Schedule 2 to the satisfaction of the Commissioner in relation to that kind of work”.
There are three units to Part B of the Second Schedule. They are:-
1...... Building Work Management - applying the principles of building work management in relation to the supervision of a building site.
2...... Building Technology - applying the principles of building technology to on-site building work.
3...... Legislative requirements - applying a detailed knowledge of legislative requirements in respect of on-site building work.
It is by reference to these criteria that the application of Mr Forth for registration must be judged. The appeal proceeded as a fresh hearing of the application. I take Section 17(5) of the Act to mean that if a fresh hearing takes place, the Court may substitute its own view for that of the Commissioner in light of the evidence and submissions then before the Court. In other words, the Court is not restricted to determining whether or not there was manifest error on the part of the Commissioner which in turn led to a wrong exercise of the discretion to grant or withhold the relevant registration. In order to determine this appeal I must decide whether or not on the evidence and submissions before me on the hearing of the appeal, Mr Forth has demonstrated that he has fulfilled the criteria as set out in Part B of the Second Schedule to the Regulations. To that extent, I must determine whether or not Mr Forth has the appropriate building knowledge and skill to supervise brick paving and fencing whether constructed of brush, timber or steel. I equate supervision with the performance of the work because it is by this means that the provisions of the Act ensure that satisfactory work standards are attained by the sole trader contractor who, in effect, supervises his or her own work. The same point may be put another way: if Mr Forth carries out the building work himself, he must, in his capacity as supervisor, have the necessary training, knowledge and skills to perform the work to a satisfactory standard; if he employs workers and supervises their work, he must have the required knowledge, training and experience.
In his application, and in the evidence he gave at the hearing, Mr Forth could only assert that he came within the criteria set out in Part B of the Second Schedule to the Regulations. These criteria are set out as part of the application.
In order to provide proof of what he has asserted in his application, Mr Forth informed Mr Cammisa of various building work which he had performed. The work performed was brick paving and fencing.
During the course of evidence Mr Parkinson put a number of photographs to Mr Forth. These were numbered 1 to 13. They consist of photographs of brush fencing (1-3), paving (4-5), additional paving (6-8), brush fencing (9-10), construction work in progress (11) and a gate (12-13). I do not take into account photographs 4 and 5 because there is no admission that the paving work shown thereon was performed by Mr Forth, nor do I take into account photographs 9 and 10 for the same reason. Photograph 11 lends nothing to the argument for and against Mr Forth.
The other photographs are, in my view, evidence of deficient building work relating to fencing, paving and gates. I accept the evidence of Mr Cammisa that the plaintiff has constructed brush fences without providing adequate supporting wires and with insufficient numbers of vertical support posts. The paving shown in photographs 6, 7 and 8 appears to have major defects in that the surface is uneven which would lead to ponding of rainwater. There is a lack of sufficient waterproof membrane between the edges of the paving and adjoining brick walls so as to prevent rising damp in the wall. It is not sufficient for Mr Forth to explain these deficiencies by saying that they were later corrected. The fact is that the work was performed in the first instance in an unsatisfactory manner.
The photographs of the gate also show substandard work. The corrugated iron fixed to the frame of the gate has been installed upside down so that the sharp edge of the corrugated iron is exposed. That could easily lead to anyone stumbling against the gate cutting themselves. The capping on top of the gate has also been installed in a substandard manner. Whilst I accept that the paving work and gates were installed at premises owned by Mr Forth’s sister-in-law, the substandard nature of the work remains to be considered.
Mr Endemann gave evidence of brick paving completed by Mr Forth. The paving was installed around a swimming pool at a private residence at Port Lincoln. The owners complained to the Council and Mr Endemann attended with Mr Forth at the site. Mr Endemann found that the work was generally of a poor standard. There were hollows and depressions in the surface and the abutting edges of adjacent pavers were not level so that trip hazards were created. He also found evidence of attempted repair work which was in itself unsatisfactory.
Having considered the evidence of Mr Forth and the evidence given by the witnesses for the Commissioner, I have come to the view that a sufficient proportion of the work inspected by Mr Cammisa prior to filing his report to the Commissioner was substandard and as such demonstrated on the part of Mr Forth a lack of either sufficient knowledge or skill to perform paving and fence construction work to a satisfactory standard. Although I think Mr Forth is capable of understanding specifications provided by, for example, paving brick manufacturers in relation to the laying of paving, he cannot or does not adhere to those standards so that the end result is a poorly finished brick paving.
There is very little in the way of published standards in relation to brush fencing, but I accept that such work performed by Mr Forth as inspected by Mr Cammisa showed a poor finish and a lack of structural strength. Mr Cammisa’s evidence is supported by the evidence of Mr Endemann, although I place less weight on his evidence because much of what was said by Mr Endemann was not put to Mr Forth during cross-examination.
In all the circumstances I am not satisfied that Mr Forth satisfies all of the criteria set out in Part B to Schedule 2 under the Regulations, in particular Building Technology. His work demonstrates a failure to select and apply building principles and methods, relating to an appraisal of site conditions and to erection and construction techniques. Whilst I do not suggest that all of the criteria set out in Part B need to be fulfilled in every case of an application for registration, there are to be identified from Part B of the Schedule various criteria crucial to the proper performance of the work in respect of which registration is sought. The criteria that I have identified are, in my view, essential to the proper performance of the work in respect of which the appellant seeks registration.
For the above reasons I think the Commissioner was correct in refusing the application. Accordingly, the appeal must be dismissed.

[2000] SADC 142

1 December 2000