Kocoski v Department of Services, Technology and Administration

[2011] NSWADT 135

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Kocoski v Department of Services, Technology and Administration [2011] NSWADT 135
Hearing dates:	6 May 2011
Decision date:	08 June 2011
Before:	Judicial Member Huntsman
Decision:	The decision is affirmed
Catchwords:	Contractor licence as builder; whether Applicant possesses experience of a kind and for such a period, as would enable the Applicant to do, or supervise, the work for which the certificate is required; relevant industry experience in a wide range of building construction work.
Legislation Cited:	Home Building Act 1989 Home Building Regulation 2004
Cases Cited:	Thukral v Commissioner of Fair Trading [2006] NSWADT 356
Category:	Principal judgment
Parties:	Applicant - Nicholas Kocoski Respondent - Department of Services, Technology and Administration
Representation:	Applicant - in person Respondent - Legal Services, New South Wales Department of Fair Trading
File Number(s):	113043

REASONS

Background

1. This is an application for review of a decision by the Director General, Department of Services, Technology and Administration, New South Wales Fair Trading (the Respondent) to refuse the application by Mr Nicholas Kocoski (the Applicant) for a contractor licence, category of building. The Applicant applied for the contractor licence on 3 September 2010 and on 3 December 2010 the Respondent refused the application. On 18 January 2011 the Applicant requested review of this decision and an internal review decision, affirming the original decision, was made by the Respondent on 25 January 2011. The Applicant now requests review of the decision by the Tribunal. The statement of reasons issued by the Respondent indicates that the primary reason that the Applicant's application for a contractor licence was refused was that the Respondent found that the Applicant did not possess the necessary industry experience required under relevant provisions of the Home Building Act 1989 (the Act) and the Home Building Regulation 2004 (the Regulation).

1. Relevant background includes that the Applicant had previously applied for a contractor licence which had been refused by the Respondent. This prior application was made on 9 December 2008 and was refused by the Respondent on 6 February 2009. This prior application was subject to internal review, and to an application by the Applicant to the Tribunal for review. On 13 October 2009 the Applicant withdrew his appeal from the Tribunal in order to address the issue of his educational qualifications. A fresh application, which is the subject of the current review proceedings, was subsequently lodged with the Respondent, by the Applicant, on 3 September 2010. As discussed further below, in his application the Applicant maintains that the Respondent previously accepted his referees as to his relevant industry experience, in relation to an application for his contractor licence.

The Applicant's case

1. The Applicant presented his case in written and oral form at the hearing. Written evidence, and written submissions, were provided, the Applicant also gave oral evidence at the hearing as did a witness, the Applicant's brother, Mr Michael Kocaski. The written evidence included the Applicant's application for review, (and annexures thereto, including attachments A to L); further written material filed by the Applicant on 8 April 2011; and a written submission in response to the Respondent documents, lodged with the Tribunal on 28 April 2011. Attached to the written submissions were further documents including owner builder permits and final occupation certificates for residential building work, and photographs of a building site. The Applicant also provided a printout from the Department of Fair Trading website, in relation to the requirement for practical experience in a wide range of building construction work. The Applicant included in his written material a typed transcript of a directions hearing held on 30 October 2009 at the Tribunal, by telephone conference, for previous proceedings relating to his prior application for a contractor licence.

1. The Applicant's written material included statutory declarations from a licensed plumber drainer and gas fitter, a licensed electrician, and Mr Michael Kocoski, his brother. In addition to his reference letter from Mr Ian Hayes submitted with the application, the Applicant provided an additional reference from Mr Kokankosci.

1. The Applicant's case is essentially that he satisfies the requirement for a contractor licence, being two years relevant industry experience, on the basis of work which he undertook, which included supervision of the residential building sites at three properties: in respect of one of the properties the Applicant was the owner builder; and for the other two properties his brother was the owner builder. The Applicant also submits that his experience as a project manager at the Roads and Traffic Authority (RTA) is relevant experience.

1. The Applicant and his brother, Mr Michael Kokoski, gave sworn oral evidence to the Tribunal at the hearing, and provided considerable detail about building work undertaken at three properties. This building work was full house construction of one house where the Applicant was owner builder, and full construction of two other houses where the Applicant's brother, Mr Michael Kocaski, was owner builder. Copies of owner builder permits relating to the properties were provided by the Applicant, as were copies of various inspection certificates, relating to certifiers inspections of those properties. The Applicant's case is that he worked on these three properties in the following periods - an owner builder permit was issued (to Mr Michael Kocacski) in relation to the Medlow Bath property on 22 June 2004 and an occupation certificate was issued on 6 February 2006. An owner builder permit was issued (to the Applicant) for the second property at Wentworth falls on 14 September 2007 and an occupation certificate was issued on 21 July 2008. For the third property, at Katoomba, an owner builder permit was issued to Mr Michael Kocoski on 3 July 2009 and an occupation certificate was issued on 10 August 2010. The Applicant states in relation to all three properties, in his written material, that he worked on the properties full-time, and that the relevant period of experience is from the issuing of the owner builder permit to the issuing of the occupation certificate. He states however that he carried out much work prior to the issuing of the owner builder permits, in terms of preparing architectural site plans, environmental impact statements, cost estimates for the proposed dwellings, and submission of development application.

1. The Applicant detailed in the written statements and in his oral evidence at the hearing, the building tasks which he undertook and/or supervised during the construction of the three residences. He states that whilst his brother was the owner builder in relation to two of the residences, the Applicant was the project manager because of his greater building experience. He states that the statutory declarations which he provided from the plumber and the electrician confirm that he was on site and supervising the work. He said all the residential building work was built to the required Code, and the council inspections approved the work. In his written submission he states that the total experience gained in the construction of the three residential houses, was three years and seven months, and that he therefore satisfies clause 28 of the Home Building Regulation 2004.

1. The Applicant was cross examined by the Respondent's representative about his evidence that he worked on the three building sites on a full-time basis. He agreed that the owner builder permit for the first property was issued in June 2004 and that at the commencement of the work he was 18 years of age. He agreed he commenced tertiary studies which was three days a week as a full-time student. The Applicant stated that not all days at TAFE work full days although he did undertake two days at TAFE which were full-time and one day was a half day. It was put to him that the owner builder permit was issued to his younger brother and he was asked who was running the building site. The Applicant stated that both of them were running the building site, noting that it was the family home, and he added that sometimes his father was also on site. In respect of the first property he was asked whether his brother, who was owner builder, engaged a licence contractor to supervise, and the Applicant responded that Mr Hayes was a licensed engineer. When asked who best fitted the description of head contractor the Applicant responded that he did, because he ordered all the materials. He said that his brother also assisted. However, he was in charge because he had the training and experience. It was put to him by the Respondent's representatives that he was 18 years of age at that time and he was asked how he had obtained relevant experience. The Applicant responded that he had helped on the construction of his father's home when he was still at school. He agreed however that he was not a full-time employee of his father, and that his father did not have the builder's licence. He did note that his father it is a qualified trades person, in plumbing. He said his brother, Mr Michael Kocaski, did not work on his father's home as he was busy at that time so he did not obtain experience at that time. The Applicant stated that he started full-time employment with the RTA in 2006 and remains in full-time employment at the RTA.

1. In relation to the second property, the owner builder permit was issued to the Applicant. He engaged Mr Hayes as engineer because it was a difficult build, the property was classed in the highest wind category in New South Wales, and there were challenges. Mr Hayes was retained as engineer and advised the Applicant. Whilst he was engaged as engineer, the Applicant maintained that Mr Hayes supervised the work, telling him what to do. In relation to the third property, an owner builder permit was issued to the Applicant's brother in 2009. The Applicant states the head contractor was the Applicant although his brother, Mr Michael Kocoski, was also on site a lot of the time. The Applicant coordinated subcontractors and ordered materials. The Respondent's representative put to the Applicant that from July 2009 to August 2010, the period of building work at the third property, he was employed full-time by the RTA as project manager, and the Respondent queried how he could be working full-time at the building site. The Applicant stated that he was on site every afternoon and if he was not on site, his brother would be on site, or his father would be on site. The Applicant also stated that whilst he was working full-time at the RTA he did use all his leave and holidays and public holidays to work at the building sites.

1. The Applicant states that his experience as a project manager with the RTA is relevant experience - in this role, for the last five years, as a civil and construction engineer, he has been required to manage projects which include inspecting footings for various structures. He said in the role of project manager for the RTA he communicates with the community, seeking feedback from community members and responding to that feedback. He is a member of the Institute of Engineers and is bound by professional ethics. He is also a member of the Institute of Public Works Engineering. He takes his professional ethical duties seriously. Under cross examination by the Respondent's representatives the Applicant agreed that most of the work which he had undertaken at the RTA related to projects such as road widening, building footpaths or road bridges, and he maintained that the materials used in a bridge, being concrete and steel, raised similar construction issues to residential dwellings. He agreed under cross examination that he had not been involved, during his work with the RTA, in building any residential dwellings, nor indeed any habitable building structures, nor structures such as warehouses or sheds. The Applicant states that in his position with the RTA he comments on development applications which involve habitable dwellings where the RTA may have an interest.

1. Mr Michael Kocoski gave detailed oral evidence at the hearing. He described the building and supervision tasks undertaken by the Applicant in relation to each of the three properties in considerable detail, all of that detail will not be repeated in these written reasons for decision. Mr Michael Kocoski was clear in his evidence that the Applicant undertook building work himself, as well as supervising work at the three building sites. Mr Michael Kocoski stated that he engaged Mr Ian Hayes to certify foundations and footings at the first building site where Mr Michael Kocoski was owner builder (the first of the three properties). He stated that Mr Hayes was then "on board" for the next two properties. Mr Michael Kocoski stated that in relation to the third property, where Mr Michael Kocoski was owner builder and where he now resides, considerable work was undertaken by the Applicant prior to building work commencing, in terms of the development application and site plan. He stated all work was in accordance with the Building Code of Australia. As a surveyor, Mr Michael Kocoski has liaised with various other trades in his usual work, and stated that this role was performed by the Applicant on the building sites. Under cross examination by the Respondent's representative, Mr Michael Kocoski agreed that, as owner builder permit holder, he can carry out work and is obliged to contract with a qualified contractor to do things which he cannot do himself. Mr Michael Kocoski stated that all those he contracted with were licensed. The Respondent's representative noted that Mr Michael Kocoski had stated in his evidence that his brother had undertaken much building work including installation of roof trusses, building frames, preparation of footings and installation of subfloors, and it was put that all of that work could not be legally undertaken without a licence. Mr Michael Kocoski stated that his brother helped him do those things. He was further questioned whether he was doing the work as owner builder, or whether the Applicant was supervising and doing the work, and he maintained that the Applicant was helping him, as owner builder, to do the work. When it was put to Mr Michael Kocoski that his evidence was that the Applicant was head contractor, and responsible for supervising the site, he stated that he, and not the Applicant, was ultimately responsible because he held the owner builder permit. The Respondent's representative put to Mr Michael Kocoski that the Applicant had given evidence that he was responsible for the building work at the site including supervising subcontractors, and Mr Michael Kocoski responded that he did not feel confident to project manage so he engaged his brother to project manage, and the Applicant was responsible for organising the project to make sure it ran smoothly and conformed with the Code. When asked whether he conducted the work as owner builder, Mr Michael Kocoski responded "in relation to the Act, yes, in relation to practicalities, no". He added that if he was not on site, that role fell to the Applicant. He was referred to his statutory declaration which was in evidence in the proceedings, wherein he states that he engaged his brother to project manage and to perform building work. Given that his brother is not licenced to perform building work, the Respondent's representative asked Mr Michael Kocoski if he wished to change his evidence. Mr Michael Kocoski stated "I would put it that I was the owner builder, it was our home, he [the Applicant] was morally responsible to make sure it ran well". He was asked whether he engaged, on a contract basis, anyone else to manage the overall project and he said he did not do so.

1. The Applicant also relies on his submission, set out in his written material and supported orally during the hearing, that the Respondent had previously accepted his reference from Mr Hayes and the Respondent had previously indicated that his experience was acceptable. The submissions made by the Applicant are further discussed below.

The Respondent's case

1. The Respondent's case was set out in written material filed with the Tribunal as required by s58 of the Administrative Decisions Tribunal Act, and the Respondent relied on further written submissions. Oral submissions were also made by the Respondent's representative during the hearing. In the statement of reasons for the internal review decision the Respondent acknowledges the background relating to the prior application, by the Applicant, for a contractor licence, which was refused by the Respondent. On that occasion, 6 February 2009, the Respondent refused the application on two primary grounds, being, that the Applicant had not provided evidence of holding one of the listed acceptable qualifications to satisfy the requirements for the issue of the licence; and, secondly, references submitted were not from persons who were acceptable to write a reference. On internal review on 6 April 2009 the original refusal decision was affirmed. The Respondent notes that the Applicant then applied for review by the Tribunal and that on 13 October 2009 the Applicant withdrew his application from the Tribunal, amongst other issues, to obtain qualifications within four months. On 3 September 2010, the Applicant lodged a fresh application for the contractor license in the category of building, and it is this fresh application which is the subject of the current proceedings. On this occasion the Applicant's educational qualifications were accepted as meeting the qualification requirements as determined by the Director General. However, the Respondent determined that the references submitted with the application were not acceptable, and on this basis, on 3 December 2010, refused the application. The internal review decision details the reasons that the original decision was affirmed on internal review. The Applicant's claim that the Respondent had previously accepted his references as part of the previous appeal is acknowledged, but not accepted as established in fact; however, the Respondent states that it is the current application and material supported in relation to the current application which is the subject of the decision. The Respondent's submissions are further discussed below.

Legal Considerations

1. Section 4 of the Home Building Act 1989 provides that a person must not contract to do any residential building work, or any specialist work, except as, or on behalf of, an individual, partnership or corporation, that is the holder of a contractor licence authorising its holder to contract to do that work. Residential building work is defined in section 3 of the Act:

"residential building work" means 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.

It includes work declared by the regulations to be roof plumbing work or specialist work done in connection with a dwelling and work concerned in installing a prescribed fixture or apparatus in a dwelling (or in adding to, altering or repairing any such installation).

It does not include work that is declared by the regulations to be excluded from this definition

Section 12 of the Act provides that 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

(b) as the holder of an owner-builder permit authorising its holder to do that work, or

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

Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case

1. Section 20 of the Act provides for issue of contractor licences:

(1) The Director-General must reject an application for a contractor licence if:

(a) the Director-General is not satisfied that the Applicant is a fit and proper person to hold a contractor licence, or

(b) the Applicant is a mentally incapacitated person, or

(c) the Applicant is disqualified by this Act or the regulations from holding a contractor licence.

Note: Under section 6 of the applied Act (within the meaning of section 19) an application for the grant of a contractor licence may be made by any individual aged 18 years or more, by any partnership or other association whose members are all individuals aged 18 years or more or by any corporation.

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

(2) The regulations may fix or provide for the Director-General to determine additional standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued.

(3) The Director-General must reject an application for a contractor licence if:

(a) the Director-General is not satisfied that any such requirement would be met were the contractor licence to be issued, or

(b) the Director-General is not satisfied with the Applicant's proposed arrangements for supervision of the work which the contractor licence will authorise the Applicant to contract to do, or

(c) the Director-General is not satisfied that the Applicant has complied or is able to comply with any requirements of Part 6 or any requirements of the regulations relating to insurance applicable to the doing of work of a kind proposed to be authorised by the contractor licence.

(5) A decision of the Director-General relating to determining standards or other requirements under subsection (2) cannot be reviewed by the Administrative Decisions Tribunal in an application for review made under this or any other Act.

(6) Without limiting this section, the Director-General may reject an application for a contractor licence if the Director-General is of the opinion that it is in the public interest to do so on any of the following grounds:

(a) an employee or proposed employee of the Applicant is disqualified from holding a contractor licence, has had an application for an authority rejected on a ground relating to his or her character, honesty or integrity or has had an authority cancelled or suspended on any disciplinary ground,

(b) there are reasonable grounds to believe that the application has been made with the intention of avoiding disclosure of any relevant past misconduct of the Applicant or a close associate of the Applicant,

(c) the Director-General considers that a close associate of the Applicant who would not be a fit and proper person to hold a contractor licence exercises a significant influence over the Applicant or the operation and management of the Applicant's business.

1. Section 26 of the Act provides that if a contractor licence is issued to an Applicant who the Commissioner considers is qualified to hold a supervisor certificate, the Commissioner may, instead of issuing such a certificate, endorse the contractor licence to show that it is equivalent to such a certificate.

1. Clause 26 (1)(b)(i) of the Home Building Regulation 2004 states that before a contractor licence is issued, the Commissioner must be satisfied that the Applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate, amongst other criteria, complies with the requirements prescribed by clause 28(1):

28 Additional requirements for obtaining certificates

(1) Before a certificate is issued, the Director-General must be satisfied that the Applicant:

(a) has such qualifications or has passed such examinations or practical tests, or both, as the Director-General 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 Director-General 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.

(2) Despite clause 25 (1) (a) (xii) and (xiii), the Director-General may issue a qualified supervisor certificate if the Director-General is satisfied that the relevant person took all reasonable steps to avoid the bankruptcy, winding up or appointment of a controller or administrator.

1. The current standards and other requirements determined by the Director-General in regards to the qualifications, examinations and experience requirements, for an endorsed licence or supervisor certificate to do or to supervise building work, are set out in an Instrument dated 12 August 2010. That instrument sets out educational requirements and qualifications, and also the requirement that an Applicant possess "at least two years relevant industry experience in a wide range of building construction work"

1. This case raises issues relating to the status of owner builders within the industry and the applicable law and regulatory scheme. It is therefore useful to examine provisions of the Act relating to owner builders. A review of the legislation indicates that a distinction is drawn between owner builders and those who hold a contractor licence. This distinction is evident from the definitions in s3 of the Act:

"authority" means the following:

(a) a contractor licence (whether or not an endorsed contractor licence),

(b) a supervisor or tradesperson certificate,

(c) an owner-builder permit.

"contractor licence" means a contractor licence referred to in section 4 or 5.

1. Other provisions of the Act also draw a distinction between owner builders and those who hold a contractor licence, and set out the requirements for owner builder permits, and the work which may be undertaken by an owner builder.

Section 29(1) In this Division:

"owner-builder work" means residential building work:

(a) the reasonable market cost of the labour and materials involved in which exceeds the prescribed amount, and

(b) that relates to a single dwelling-house or a dual occupancy:

(i) that may not be carried out on the land concerned except with development consent under Part 4 of the Environmental Planning and Assessment Act 1979 , or

(ii) that is complying development within the meaning of that Act.

(2) If land is owned by a company that is wholly owned by individuals, the land is to be taken (for the purposes of this Division) to be owned by those individuals.

(3) In this Division, a reference to an owner of land includes a reference to a person who has a prescribed interest in the land.

Section 32 -Authority conferred by owner-builder permits

(1) An owner-builder permit authorises its holder to do such residential building work as is described in the permit on the land specified in the permit.

(2) The authority conferred by an owner-builder permit:

(a) is subject to the conditions applicable to the permit for the time being, and

(b) may, on the application of the holder of the permit, be varied by an order of the Director-General set out in a notice served on the holder of the permit.

Section 31 Issue of owner-builder permits

(2) The Director-General must reject an application for an owner-builder permit if the Director-General is not satisfied:

(a) that the applicant is an individual of or above the age of 18 years, or

(b) that the applicant owns the land concerned, whether or not together with another or other individuals, or

(c) that the single dwelling-house or one of the dwellings comprising the dual occupancy concerned will be occupied as the residence (being, in the case of a dual occupancy, the principal residence) of the applicant after the work authorised by the permit is done, or

(d) that the applicant has completed any applicable education course or training approved by the Director-General for the purposes of this section.

(3) The Director-General must reject an application for an owner-builder permit if the applicant was, during the 5 years (or, if the regulations prescribe another period, during the other period) occurring immediately before the application was lodged, issued with another owner-builder permit (or an owner-builder permit under the Builders Licensing Act 1971 ), unless the Director-General is satisfied:

(a) that the application and the other permit both relate to the same land and to related owner-builder work, or

(b) that special circumstances exist.

1. The Act clearly sets up a regulatory scheme whereby residential building work is to be undertaken by those authorised, under the legislation, to undertake the work. There are distinctions in the Act between owner builders and contractor licence holders in relation to unlicensed work, and unlicensed contracting, and specific provisions relating to the holder of an owner builder permit in relation to unlicensed contracting:

Section 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

(b) as the holder of an owner-builder permit authorising its holder to do that work, or

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

Section4 Unlicensed contracting

(1) A person must not contract to do:

(a) any residential building work, or

(b) any specialist work,

except as or on behalf of an individual, partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work

32AA Unlicensed contracting

(1) The holder of an owner-builder permit must not contract with another person for that person to do any residential building work (or any part of the work) for the holder unless the person is the holder of a contractor licence to do work of that kind.

Maximum penalty: 200 penalty units.

(2) The holder of an owner-builder permit is not guilty of an offence under this section if the holder establishes that the holder did all that could reasonably be required to prevent the contravention of this section.

Section 27 and 28 of the Act provide for authority conferred by certificates and contractor licences, and section 32 of the Act provides for authority conferred by owner builder permits. Throughout the Act there is a distinction made between the authority conferred by a contractor licence and the authority conferred by an owner builder permit. Clause 9 of the Regulation provides for exclusion of certain work from the definition of residential building work, and the only part of that clause that may be relevant to the current proceedings, on the evidence presented, is clause 9(1)(g):

9 Definition of "residential building work"-certain work excluded

(1) For the purposes of the definition of "residential building work" in section 3 (1) of the Act, the following is declared to be excluded from that definition: ....

(g) the supervision only of residential building work:

(i) by a person registered as an architect under the Architects Act 1921 or the Architects Act 2003 , or

(ii) by a person supervising owner-builder work for no reward or other consideration, or

(iii) by any other person, if all the residential building work is being done or supervised by the holder of a contractor licence authorising its holder to contract to do that work

1. As discussed further below the Applicant's evidence is that as well as supervising the building work at the two properties where his brother held the owner builder permit, he also undertook various tasks that were building work As such the exclusion provided for in clause 9(g) (for supervision only) would appear not to apply.

1. Section 63 of the Administrative Decision Tribunal Act 1997 ("the ADT Act") provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

1. A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.

1. Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

The parties' submissions

1. The Applicant's case is detailed in the section above in these Reasons for Decision however the Applicant made additional submissions as follows. The Applicant referred to clause 28 of the Home Building Regulation 2004 (the Regulation) and to the provision of that clause that the Director-General must be satisfied that the Applicant has had experience... for such a period... The Applicant notes that "such a period" in clause 28 refers to two years relevant industry experience. He relies on his experience at the three properties, as detailed above. He also notes his evidence includes a letter from a building supply company which illustrates he was purchasing building materials for the subject property, and the statutory declarations from the plumber, electrician, and his brother, Mr Michael Kocoski, and states these three statutory declarations support his building experience as the tradesmen had worked on two of the and can verify the duties carried out by the Applicant. He states that in conjunction with the reference letter by Mr Hayes of 2 September 2009 he has also provided an additional reference from Mr Kocankoski who, he submits, verified his building experience and provides a professional recommendation regarding the Applicant's suitability to gain a licence in building. He also enclosed photographic evidence to demonstrate his building experience at the three subject properties, which illustrate his active and constant involvement in the construction process. He refers to two engineers reports which he submitted for two of the properties, which demonstrate the compliance of his work with the Building Code of Australia. He refers also to his employment as an engineer with the RTA and that his duties include project management of large-scale State funded construction projects. He says he applies the same project management skills in any project he manages, particularly residential building projects. He refers to documents which he has submitted about past projects which he has project managed for the RTA up to the value of $1.1 million. He submits that the building experience he has gained since 2004 is demonstrated in the construction of the three residential dwellings, his employment with the RTA, and references from licence builders and qualified tradesmen. He submits he has demonstrated that he satisfies clause 28 of the Home Building Regulation 2004 and therefore he should be issued a contractor licence. He refers to a Department of Fair Trading website which discusses building licensing requirements, which he submitted into evidence, and to the wording on the website - "the requirement for practical experience in a wide range of building construction work may include but is not limited to: experience that demonstrates the ability or capacity to competently project manage residential building work in accordance with the Building Code of Australia, including dealing effectively with subcontractors, consumers and other parties ".

1. The Respondent provided submissions. The Respondent accepts that the Applicant obtained confirmation from TAFE, in August 2010, of his qualification equivalence, and the application the subject of the current review proceedings, was lodged with the Respondent on 3 September 2010. The Respondent submits that the relevant instrument under clause 28 is dated 12 August 2010. The Respondent accepts that the course undertaken by the Applicant, which is said to be equivalent, does appear in schedule 4 of that instrument. Accordingly, the Respondent accepts the qualification component of the application is satisfied. The Respondent submits that the Applicant does not satisfy the experience component of his application. The Respondent submits that the reference from Mr Hayes does not indicate the level of supervision of work. The only work mentioned by Mr Hayes in his letter of September 2009, is the construction of foundations and footings for a house at Wentworth falls in 2006, and there is no mention of any other work aside from work done in 2006. The Respondent further submits that the dates provided by Mr Hayes do not correlate with those provided by the Applicant in his form [however, the Applicant concedes this in his written submission and provided a corrected date on behalf of Mr Hayes, the correction is not provided by Mr Hayes himself]. The Respondent contends that the first property, where the owner builder permit was provided to Mr Michael Kocoski, which was purchased in July 2003 and sold in October 2006, cannot be considered for the purposes of assessing experience, as it is unclear in what capacity the Applicant worked on the site and what work he actually performed. In relation to the third property there is no referee statement, in the Respondent's submission, attesting to the supervision of the Applicant and that cannot be taken into account. In oral submissions the Respondent also submitted that, for two of the properties, the evidence of the Applicant indicates that the Applicant was performing unsupervised building work at two residential dwellings where he was working alongside his brother who was the owner builder. In relation to the property where the Applicant was owner builder, he was not supervised or employed by a builder in working on that property, and the Respondent submits that working as an owner builder cannot be said to be relevant industry experience. In the written submission of the Respondent a number of submissions were made in relation to dates, and a number of those matters were addressed by the Applicant, and will be discussed by the Tribunal in making findings, below in these reasons for decision. The Respondent submits that the Applicant has not established, through the provision of adequate referee statements, that he has gained a minimum of two years industry experience in a wide range of building construction work.

The issue of the prior application and prior Tribunal proceedings

1. The Applicant states that his qualifications were previously accepted by the Respondent - in relation to review proceedings at the Tribunal for his prior application for a contractor license. He relies on a transcript of proceedings at the Tribunal - in a transcript the Applicant is recorded as asking "I would like to know if that reference has been accepted or not?" And the response by the representative for the Respondent is "we lawyers have an expression without prejudice, which means I can answer you, but subject to us thoroughly looking at that document and giving you a definite answer, but without prejudice, I'm told by the officer who has looked at that referee statement that it will be sufficient and the only issue which still needs confirmed, that's my understanding, and the only issue is you getting the TAFE evidence." The Respondent submits that the legal representative explained his comments, about the sufficiency of the reference, were "without prejudice" and therefore not binding. The Respondent further submits that, in any case, the matter currently before the Tribunal is a fresh application, and the Tribunal needs to assess the application on its merits against the criteria set out under the Act, Regulation and associated instruments. For his part the Applicant relies on the transcript as indicating that the only outstanding issue was his qualifications, which he has now addressed and which have been accepted by the Respondent. The Applicant also relies on an e-mail communication with another officer of the Respondent as further support for his view that the reference was previously accepted (being an e-mail to the Applicant of 14 October 2010).

1. The Tribunal understands the Applicant's frustration over this issue because the focus, at the time that he withdrew his application for review of the previous decision to refuse his previous application for a contractor licence, was the need to address the area of his qualifications, the focus was not on his references at that time. As it appears to have been accepted by the parties at that time that the Applicant's qualifications were not clearly accepted, the issue of his qualifications did need to be addressed. The Tribunal agrees with the submission of the Respondent that the transcript of the Tribunal proceedings does indicate a "without prejudice" comment by the Respondent's representative, which means that the comment was indicated to not be a statement on which the Applicant could rely. In any event, the Tribunal finds that the decision under review is the decision to refuse the Applicant's application of 3 September 2010, and the Tribunal must make the best and preferable decision, according to applicable law and according to the evidence, in relation to the review of the Respondent's decision to refuse the application of 3 September 2010. Therefore the Tribunal must, on review of the decision, make the best and preferable decision, having regard to current evidence about the references and whether the Applicant has satisfied the current legal requirements - the Tribunal is not bound by findings made by the Respondent in relation to a previous application. Further, it is not clear to the Tribunal, as discussed above, that the Respondent did accept the reference at that time. On the current review, the Tribunal must make findings in relation to the current application and decision under review, according to the applicable law and the evidence before the Tribunal.

Discussion of law and evidence and the Tribunal's findings

1. The Tribunal is satisfied that the legal provisions, as set out above, require that an Applicant for a contractor license (builder) must satisfy the Respondent that the Applicant has "at least two years relevant industry experience in a wide range of building construction work." Both parties at the hearing focused their evidence and submissions on addressing this issue.

1. The Tribunal finds that the Applicant undertook work on three properties, on one of the three properties he did so in the capacity of owner builder; on the other two properties he did so in conjunction with his brother, Mr Michael Kocoski, who was the authorised owner builder. The Tribunal finds that while working on these properties the Applicant was for the majority of time enrolled as a full-time TAFE student, or was engaged in full-time work as an employee of the RTA. The Applicant maintained in his evidence that although he was officially a full-time student for some of the relevant period and also a full-time employee of the RTA in the relevant period, he could also be considered as full-time employed in the building construction work of the three residential properties in the relevant periods of that construction work. He noted that he spent all of his time after work and on annual leave and during public holidays on the building work, in the relevant periods. The Tribunal has difficulty accepting the Applicant's evidence that he performed full-time building work during periods when he was employed full-time at the RTA, noting that his office was located in Parramatta necessitating travel time on top of employed hours. However, given the Tribunal is findings below, this issue is not determinative.

1. The Applicant must satisfy the requirement that he has at least two years relevant industry experience in a wide range of building construction work. The Respondent submits that ordinarily this would be employment under supervision of a qualified builder working in the industry on a wide range of building projects. The Respondent submits that time spent by the Applicant as an owner builder, working on his own house under an owner builder permit, would not suffice. The Respondent further submits that the time spent by the Applicant working on the two properties where his brother, Mr Michael Kocoski, was the authorised owner builder, would not suffice. The Respondent submits that permitting an owner builder to carry out residential building work (in the limited way that it is provided for under the Act) is an exception to the general licensing framework imposed by the Act. The Respondent submits that working under the supervision of an owner builder, or as an owner builder, would not amount to relevant industry experience in a wide range of building construction work. For his part, the Applicant relies on the various tasks that he undertook, the fact that Mr Hayes was in a supervisory role of some aspects of the work, his experience as a project manager, his experience in supervising contractors and tradespeople and project managing the building work at the three residential properties, and says this suffices for the required experience.

1. In relation to the Applicant's case the Tribunal finds it follows. Mr Hayes evidence is that he supervised the Applicant in the construction of foundations and footings during 2006 for a house at Wentworth falls where the Applicant "carried out or commissioned and controlled all trades." Mr Hayes goes on to state that the Applicant is familiar with the Building Code of Australia requirements, amongst other standard building code requirements. He notes he supports the Applicant in his application for a building licence. In the referee's statement, building work, form completed, Mr Hayes nominated that the period of work was supervision of owner/builder January 2006 to October 2007 and October 2008 to May 2009. In the form/referee statement Mr Hayes says that he supervised the Applicant carrying out a wide range of building work in the period 19 January 2006 to 9 October 2007 and 10 October 2008 to 31 May 2009. However, in the more detailed letter of 2 September 2009 Mr Hayes does not detail a wide range of building work but refers to supervising the construction of foundations and footings. Further, the Applicant's documents indicate that the period when he had an owner builder permit and undertook work on Tablelands Road, Wentworth Falls, was between 14 September 2007 and 21 July 2008. The total periods referred to by Mr Hayes in his referee statement are outside of the period of owner builder work undertaken by the Applicant. Mr Hayes refers in his referee statement/form to supervising the Applicant, as an owner builder, and this was only the situation during the period when the Applicant was working as an owner builder (14 September 2007 to 21 July 2008). In 2006 the Applicant, on the evidence in the Applicant's case, was project managing work on a property where his brother was the authorised owner builder. The Tribunal is not satisfied, on the evidence presented, that during that period of work on his brother's house the Applicant was supervised on an ongoing basis by Mr Hayes. It was clear that Mr Hayes was engaged as engineer for various parts of the work, however it was not clear to the Tribunal that the Mr Hayes was supervising all work on an ongoing basis at the first property where Mr Michael Kocaski was owner builder, or even that he supervised all work at the property where the Applicant was owner builder. The Applicant states that he was responsible for the building work at his brother's house. In his evidence to the Tribunal, the Applicant's brother clearly indicated that he was responsible, as the owner builder, and as such there was a conflict in the evidence in the Applicant's case between the Applicant's evidence and that of his brother. Given the conflict in the evidence, the evidence as to the Applicants' building work experience at his brother's house is unclear. Given the unclear evidence of Mr Hayes - he supplies different dates and clearly states he supervised the Applicant as owner builder, but Mr Hayes dates do not clearly relate to the dates that the Applicant undertook work as an owner builder, then the Tribunal cannot accept that the reference by Mr Hayes establishes that the Applicant has at least two years relevant industry experience in a wide range of building construction work. Further, the Applicant's evidence as to the actual supervision provided by Mr Hayes was unclear during the hearing, he states Mr Hayes was available in a supervisory and /or advisory capacity however does not detail Mr Hayes inspecting his work to ensure its quality, and did not give evidence that the Applicant worked under the direct supervision of Mr Hayes in relation to various building tasks. Further, given that the Applicant was not undertaking work as an owner builder in 2006, and given Mr Hayes statement on the referee form that he supervised the applicant's work undertaken as an owner builder, then the tribunal finds that it is not established that work during 2006 by the Applicant was supervised by Mr Hayes. At its highest, Mr Hayes statement can only be accepted as evidence that he supervised the Applicant as owner builder during the period that the Applicant had the owner builder permit, being 14 September 2007 until 21 July 2008 and this is not a two-year period. Mr Hayes letter of 2 September 2009 does not provide further clarification to assist the Applicant, as it refers primarily to supervision of construction of foundations and footings and not to a wide range of work tasks/experience in a wide range of building construction work.

1. On the same basis the Tribunal does not accept that Mr Hayes supervised the Applicant as an owner builder for any period after July 2008, because at that time the Applicant was not owner builder, but was working alongside his brother who was the owner builder on the third property.

1. The Tribunal has had regard to the additional references provided by the Applicant in support of his case. The references by the electrician and plumber are to the effect that they witnessed the Applicant working at two of the properties carrying out building works. They witnessed this while performing their individual roles as a plumber and an electrician. The Tribunal does not consider these references can evidence, in the manner of a supervising builder, as to the Applicant's industry experience for a contractor licence as a builder. They are general references to the effect that they have witnessed the Applicant at the two properties undertaking certain work: the plumber specifically states that the Applicant understands the construction process in relation to installation of plumbing and drainage work, however, his reference cannot extend to other building work, nor to a wide range of building work. In relation to the reference by Mr Kocankoski, who is a licenced builder who recommends the Applicant, whilst the reference states that the building experience gained by the Applicant over the past six years is more than adequate, because the Applicant is more than capable to construct a sound and quality residential home, Mr Kocankoski does not detail his knowledge of the Applicant's work. Mr Kocankoski states that his knowledge of the Applicant's work is that he witnessed the Applicant, on site, at the properties carrying out a wide range of building tasks - he does not indicate the length of time that he witnessed the Applicant conducting work, nor that he inspected the quality of the Applicant's work in his role as a builder, or otherwise supervised the work. He does state that the Applicant has been able to assist him in relation to the terms of relevant codes within the Building Code of Australia. The Tribunal, whilst finding that the writers of the references are supportive of the Applicant, does not find that the references provide evidence which allows the Tribunal to conclude that the Applicant has at least two years relevant industry experience in a wide range of building construction work.

1. The Tribunal is required to consider the meaning of "industry experience".

1. The Macquarie Dictionary defines "industry" as:

industry

1 noun (plural industries) 1.a particular branch of trade or manufacture: the steel industry.

2. any large-scale business activity: the tourist industry.

3. manufacture or trade as a whole: the growth of industry in underdeveloped countries.

4. the ownership and management of companies, factories, etc.: friction between labour and industry.

5. systematic work or labour.

6. assiduous activity at any work or task:

1. The Macquarie Dictionary defines "experience" as:

Experience

noun 1. a particular instance of personally encountering or undergoing something: a strange experience.

2. the process or fact of personally observing, encountering, or undergoing something: business experience.

3. the observing, encountering, or undergoing of things generally as they occur in the course of time: to learn from experience; the range of human experience.

4. knowledge or practical wisdom gained from what one has observed, encountered, or undergone: men of experience.

5. Philosophy the totality of the cognitions given by perception; all that is perceived, understood, and remembered.

-verb (t) (experienced, experiencing)

6. to have experience of; meet with; undergo; feel:

7. to learn by experience. [Middle English, from Old French, from Latin experientia trial, proof, knowledge]

1. The Tribunal considers that the reference to "industry experience" is a reference to experience in the relevant industry, in this case the industry of home building, or the industry which provides residential building work. That industry is regulated in NSW by the Act and Regulation which provides for licencing of those who do residential building work, including builders and those who carry out and supervise residential building work. Experience is a process of the Applicant personally undergoing the experience, through observing and encountering, of the industry. The Tribunal considers that the term "industry experience" in the context within which it used, for the purpose of assessing eligibility to be granted a contractor licence as a builder under the Act which regulates residential building work, means experience within the home building industry. This means observing or encountering through personal experience, the industry. Two years of such experience is required, not a brief transient encounter with the industry. A requirement for two years relevant industry experience, would thus require relevant experience working within the industry with those licenced to do such work - that is, experience gained while working with recognised industry providers of residential building services such as licenced contractors/builders.

1. An owner builder is a person working on their own house and in the Tribunal's view this is different to working within the industry. The Tribunal's view is supported by a reading of the legislation. As set out above a clear distinction is drawn throughout the Act and the Regulation between those who hold a contractor licence and are authorised to do residential building work pursuant to the contractor licence; and those who are authorised pursuant to an owner builder permit. Further, it is clear that the availability of an owner builder permit is an exception to the framework which is set up by the Act and the Regulation, that those who provide residential building work are to be licensed. Some of those legal provisions are set out above in these Reasons for Decision. That the category of owner builder is meant to be an exception to the licensing scheme imposed by the legislation is also indicated by the fact that the legislation does not permit a further owner builder permit to be issued to a person who has held an owner builder permit within the preceding five years (refer section 31(3) above). This clearly indicates that there are limitations on the authority to build pursuant to owner builder permits, the intention is that such permits are issued to homeowners working on their own home, and this should not be a serial situation where an owner builder works on one property after another. For these reasons the Tribunal is of the view that experience gained whilst working as an owner builder, or as a family member working alongside an owner builder, would not ordinarily be considered industry experience.

1. It is clear from the requirements of the Act and Regulations, and the relevant instrument of August 2010, that a successful applicant for a contractor license, builder, is required to have gained two years relevant industry experience in a wide range of building work. Residential building work includes undertaking work subject to a contract between the builder and homeowner to ensure timely completion of work, and also includes residential building work on multi- dwelling sites. The Applicant's contractor experience consists of being an owner builder at his own home, and working alongside his brother at two properties when his brother was an owner builder. The Tribunal finds that this does not equate to relevant industry experience in a wide range of building construction work, and, as discussed above, the legislation treats owner builders as its own category, with separate provisions to those that apply to the rest of the industry . Working as an owner builder, the Applicant's work was not supervised on an ongoing basis by a qualified industry builder, supervision from which he could learn skills and directly and personally experience the industry. Rather, the only quality control for a large part of the Applicant's work was the final inspection certification process. This does not equate, in the Tribunal's view, to ongoing supervision of the Applicant whereby the Applicant could personally gain relevant industry experience in a wide range of building construction work. As discussed above, owner builders are an exception to the regulatory scheme which applies to the trades and professions engaged in the home building industry which undertake residential building work. The Tribunal does not consider, for reasons discussed above, that an applicant's experience as a home builder would ordinarily satisfy a requirement that the applicant possess relevant industry experience in a wide range of building construction work.

1. The Tribunal considers that a consumer would want to know that a builder with whom they contract, who is licensed by the relevant authority, has had relevant industry experience, gaining skills from working within the industry. That a builder has such experience is what the grant of the contractor license declares to consumers. A consumer of home building services, would expect a building contractor to have relevant industry experience in a wide range of building construction work.

1. In this context it is relevant to consider that the decision under review was made pursuant to the regulatory framework imposed by the Home Building Act 1989. As was observed by the Tribunal in the case of Thukral v Commissioner of Fair Trading [2006] NSWADT 356 the Act has many functions, and focuses on consumer protection:

The Home Building Act 1989 is essentially a consumer protection Act which regulates residential building work in NSW. It provides for the licensing and regulation of those engaging in residential building work, and makes provision as to their competence, fitness and solvency, and for their discipline. It regulates contracts for residential building work, both as to their content and who may enter them. It implies non-excludable warranties as to the quality of residential building work and services undertaken in NSW, and provides a mechanism for the resolution of disputes relating to residential building work. It establishes a mandatory home warranty insurance scheme to provide protection to those who enter contracts for residential building work, and who own homes constructed or renovated under those contracts. By issuing contractor licences 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: s.21(1)(a).

1. In relation to the Applicant's role as project manager at the RTA the Tribunal is not satisfied that this employment experience is in the nature of relevant industry experience in a wide range of building construction work. The industry experience must be relevant to the contractor licence applied for, that is, an authority to undertake residential building work. In his employment at the RTA the Applicant is not involved in residential building work, nor involved in the construction of habitable dwellings; the Applicant is involved in construction projects relating to roads such as road widening, foot paths, bridges. The Tribunal does not consider that this amounts to relevant industry experience in a wide range of building construction work. Therefore, whilst the Tribunal can accept that the Applicant has some project management skills and other skills acquired from this employment, such skills and experience gained in this employment do not consist of relevant industry experience in a wide range of building construction work.

1. For the reasons detailed above the Tribunal is not satisfied that the Applicant has produced evidence upon which the Tribunal can conclude that the Applicant has at least two years relevant industry experience in a wide range of building construction work. As noted and discussed above this is a requirement which the Applicant must satisfy in order to be issued with a contractor licence. As the Applicant has not satisfied this requirement, then the Tribunal finds that the correct and preferable decision, on the evidence before the Tribunal, and in consideration of the applicable law, is that the Applicant's application for a contractor licence be refused. Accordingly the decision under review, refusing the Applicant's application for a contractor licence, is affirmed.

1. The Tribunal affirms the decision.

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Decision last updated: 08 June 2011