Martine v Commissioner for Fair Trading

[2007] NSWADT 159

CITATION:	Martine v Commissioner for Fair Trading [2007] NSWADT 159
DIVISION:	General Division
PARTIES:	APPLICANT Gary Martine RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	073064
HEARING DATES:	4 July 2007
SUBMISSIONS CLOSED:	4 July 2007
DATE OF DECISION:	25 July 2007
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Home Builder - issue of supervisor or registration certificate - Home Building Act - home builder - issue of supervisor or registration certificate
MATTER FOR DECISION:
LEGISLATION CITED:	Home Building Act 1989 Home Building Regulation 2004
CASES CITED:	Woolley Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 127
REPRESENTATION:	APPLICANT M Lawson, Barrister RESPONDENT F Campora, Solicitor
ORDERS:	The matter is remitted for reconsideration by the Commissioner for Fair Trading with the recommendation that Mr Martine be granted a qualified supervisors certificate if he satisfactorily completes the competency assessment. It is further recommended that if Mr Martine is granted a qualified supervisors certificate the certificate be subject to the condition that he only builds fibreglass pools.

1 Mr Martine is a director of Tranquility Pools & Spas Pty Ltd (Tranquility Pools). Tranquility Pools holds a licence as 'Swimming Pool Builder -Fibreglass Pools Only'. Mathew Wheeler is the current Qualified Supervisor for Tranquility Pools but he proposes to resign from that position in the near future. Mr Martine proposes to take over that role and has applied to the Commissioner for the issue of a Qualified Supervisors Certificate to allow him to do so. He contends that if he cannot get a supervisors certificate, Tranquility Pools cannot complete a contract that includes the installation and the company will fold.

2 In November 2006 Mr Martine completed the application form titled ‘Individual Contractor of Building Consultancy Licences, and Qualified Supervisor or Tradesperson Certificates’ issued by the Office or Fair Trading’s Home Building Service. Section 6 of that form is titled ‘Category of Work’. Within that section four categories of building work are identified: ‘General building work’, ‘Swimming pool building (includes all types of pools & spas)’, Supply of kit homes, and ‘structural landscaping’. Mr Martine has crossed the box identifying the category of building work for which the application was made as ‘Swimming pool building (includes all types of pools & spas)’.

3 This application was refused. The reason for refusal is that Mr Martine had not provided any evidence to verify a minimum of 4 years acceptable experience in all types of swimming pools. His experience relates to fibreglass pools only. He has not operated in the concrete pools or above ground pools market.

4 Mr Martine requested an internal review of that decision and was subsequently advised that the original decision was confirmed. He has applied to this Tribunal for external review.

Applicable Legislation

5 The licence sought is governed by provisions in the Home Building Act 1989 (“the Act”) and the Home Building Regulation 2004 (“the Regulation”).

6 Section 19(1) of the Act provides that the Commissioner may grant contractor licences for the purposes of the Act.

7 Section 20(2) of the of the Act provides that the regulations may fix or provide for the Commissioner to determine additional standards or other requirements that must be met before any contractor licence is issued or before a contactor licence of a particular kind is issued.

8 Section 20(3)(a) of the Act specifies that the Commissioner must reject an application for a licence if the Commissioner is not satisfied that any such requirement would be met were the licence to be issued.

9 Section 20(5) of the Act provides that a decision of the Commissioner relating to determining standards or other requirements under section 20(2) cannot be reviewed by the Tribunal in an application for review made under this or any other Act.

10 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.

11 Section 21(1)(a) of the Act specifies that a contractor licence authorises its holder to contract to do any residential building work that is described in the contractor licence when it is issued (being work of a category or categories prescribed by the regulations).

12 Section 27(1)(a) of the Act specifies that a supervisor certificate authorises its holder to do (and to supervise) any residential building work that is described in the certificate when it is issued (being work of a category or categories prescribed by the regulations).

13 Clause 26(1)(b)(i) of the Regulation specifies 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).

14 Clause 28(1)(a) of the Regulation specifies that before a certificate is issued, the Commissioner must be satisfied that the applicant has such qualifications or has passed such examinations or practical tests, or both, as the Commissioner determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required.

15 Clause 28(1)(b) of the Regulation specifies that, before a certificate is issued, the Commissioner must be satisfied that the applicant has had experience of such a kind and for such a period, as the Commissioner considers would enable the applicant to do, or to supervise, the work for which the certificate is required.

16 Clause 46(1)(b) of the Regulation specifies for the purposes of section 21(1)(a) and 27(1)(a) of the Act, swimming pool building is prescribed as residential building work.

The issues

17 There are two issues for determination. Firstly whether or not Mr Martine has a minimum of four years acceptable experience in swimming pool building. The second issue is whether the Commissioner has power to issue a Qualified Supervisors Certificate for Fibreglass Pools Only.

18 At the hearing of this matter Mr Martine provided evidence in regard to his experience. At the conclusion of evidence I made a finding of fact that Mr Martine has a minimum of four years acceptable experience in fibreglass swimming pool building. These reasons relate to the remaining issue of whether the legislation permits a work-restricted certificate to be issued.

The Commissioner’s case

19 Ms Campora submits that the only category of residential building work for which a licence is available to Mr Martine under the legislation is that of ‘swimming pool building’. Licences and certificates are issued in accordance with the Act and Regulation. Clause 46 of the Regulation prescribes the categories of residential building work and specialist work for which a contractor licence or supervisors certificates may be issued. Clause 46 stipulates:

46 Categories of residential building work or specialist work

(1) For the purposes of sections 21(1)(a) and 27(1)(a) of the Act, the following categories of residential building work are prescribed:

…

(b) swimming pool building”

20 Pursuant to clause 28(1)(b) of the Regulation, in order for Mr Martine to be issued with a licence in this category, the Commissioner must be satisfied that Mr Martine has had experience of such a kind and for such a period, as she considers would enable him to do, or to supervise, the work for which the certificate is required. She further submits that the ‘work for which the certificate is required’ is work that is authorised pursuant to section 27(1)(a) of the Act. This can only be ‘residential building work that is described in the certificate when it is issued (being work of a category or categories prescribed by the regulations)’. The only relevant category that is prescribed by the Regulation is ‘swimming pool building’.

21 Ms Campora says that the Regulation reflects a determination by Parliament to rationalise the number of categories of residential building work. The Act and Regulation were amended to achieve that rationalisation. In his second reading speech (Hansard 31/5/01, p14158) on the introduction of the Home Building Legislation Amendment Bill into the Legislative Assembly on 31 May 2001 the then Minister for Fair Trading, Mr Watkins explained:

The building licensing scheme will also be rationalised by reducing the number of existing licence categories. There are currently around 420 categories of licences under the Act. This encourages a too narrow specialisation of skills and is confusing for consumers. For example, in the roofing area, subcategories of licences include roof carpentry, roof construction and roof strengthening. There will be further consultation with industry bodies and other relevant groups to determine the final list of categories to be covered by regulation.

22 Ms Campora points to the fact that Tranquility Pools was granted its licence prior to the commencement of the new legislative regime. She submits that the certificate that Mr Martine seeks must be issued in accordance with the legislative regime that is in place now. She further submits that a supervisor certificate is not limited to a particular entity and therefore, if it were granted, Mr Martine would not be limited to working with Tranquility Pools.

23 The Commissioner has set out in a brochure, which is publicly available, the technical/formal qualifications and practical experience that she has determined as being necessary for a contractor licence or a qualified supervisor certificate for the various categories of residential building and building trade work. That brochure is entitled 'Residential Building Work; Qualifications -Contractor Licence (Q) / Qualified Supervisor Certificate' (“Form L20”). The applicable edition of Form L20 is that issued on 22 March 2006.

24 Form L20 contains the following provision:

SWIMMING POOL BUILDER (includes concrete, fibreglass, pre-fabricated and above ground pools).

A minimum of four years acceptable practical experience. Applicants will be required to undertake a Building Industry Skills Centre assessment of their competence.

25 On 22 December 2005, the Office of Fair Trading’s Director of Home Building Licensing issued a directive which included the following statement:

DIRECTION: From 22/12/05 the only work categories to appear on any new authority are set out below. No authority is to be work-limited with a condition unless the condition is an order of the General Manager, Deputy General Manager, Director Licensing or Manager Licensing.

Licence categories and conditions

Section 21(1)(a) of the Home Building Act 1989 states that a contractor licence authorises its holder to contract to do any residential building work that is described in the contractor licence when it is issued (being work of a category or categories prescribed in the regulations).

Section 21(2)(a) provides that the authority conferred by a contractor licence is subject to the conditions applicable to the licence "for the time being".

Section 36 provides that an authority is subject to any conditions prescribed by the regulations and any conditions imposed by order of the Director-General and set out in the authority when it is issued or in a notice served on the holder of the authority. Part 4 Division 2 of the Regulation provides for conditions on authorities. (Concerns responsibility of licence holders to notify about any changes to particulars of the authority.)

Clause 46 sets out the categories of residential building work. These are:

general building work

swimming pool building

swimming pool repairs and servicing …

26 From that date, the Commissioner ceased to issue sub-categories of building licences such as fibreglass swimming pool licences.

27 The Commissioner asserts that in order to qualify for the issue of a supervisor certificate in the category of Swimming Pool Builder, Mr Martine would have to supply a portfolio of work in all types of swimming pools, which includes concrete pools. However, she contends that as Mr Martine’s experience is limited to fibreglass swimming pools, it is not sufficient to satisfy the requirements to obtain the licence.

28 In support of this narrow interpretation of the legislation, Ms Campora relies on views expressed by Molony JM in Woolley Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 127 where he stated at paragraphs [28] – [31]:

Are the categories of work in Mr Woolley’s licence from October 2002 prescribed by the regulation?

28 From 1 July 2002 a contractor licence authorises its holder to do residential building work described in the licence, “being work of a category or categories prescribed by the regulations”: s.21(1). None of the categories "building" with the restriction "house lifting only", “staircases", or "general concreting" with the restriction "footings only", were among the categories of work prescribed by the Home Building Regulation 1997 which applied when Mr Woolley’s October 2002 contractor licence was issued. Similarly, they are not categories of work prescribed by the Home Building Regulation 2004.

29 As a consequence when the Commissioner issued Mr Woolley with a contractor licence, in October 2002, in the categories "building" with the restriction "house lifting only", “staircases", or "general concreting" with the restriction "footings only", that contractor licence was not one for categories prescribed by the regulation as required by s.21(1). The Commissioner did not have the power to issue such a licence.

30 The Commissioner argued, alternately, that the limitations contained in Mr Woolley’s contractor licence could be characterised as conditions on the licence imposed under section 36(1)(b), which operates a condition of the contractor licence (section 21(2)(b)). While this is an interesting argument to mount retrospectively, the reality is that the Commissioner’s own records and decisions make it very clear that the limitations on Mr Woolley’s licence, were not imposed as conditions, but were imposed as category limitations. Thus the opening paragraph of the decision under review contains the following sentence:

The licence authorised Mr Woolley to do residential building work within the categories of “general building work (house lifting only)”, “carpentry and joinery” and “general concreting (footings only)”.

Given that the Commissioner has always treated the general building and concreting limitations contained in Mr Woolley’s licence as categories, and imposed them as categories, it is not now possible for the Commissioner to retrospectively change that decision.

31 As a result I am satisfied that in October 2002 the Commissioner did not have the power to issue Mr Woolley with a contractor licence for the categories of residential building work which the Commissioner attached to his licence, apart from carpentry and joinery.

29 While Ms Campora concedes that Woolley dealt with disciplinary provisions and was not a matter concerning the issue of a licence, she says that the views expressed by the Judicial Member supports the Commissioner’s approach. She submits that it supports the argument that the Commissioner does not have the power to issue Mr Martine with a certificate for the category of as 'Swimming Pool Builder -Fibreglass Pools Only'.

30 Accordingly, it is submitted, the Commissioner’s decision to refuse to issue the certificate that Mr Martine has sought is the correct and preferable one and it should be affirmed.

Mr Martine’s case

31 Mr Martine relies on is own evidence and a statement by Michael Andrew Wheeler. He also relies on a statement from Matthew Wheeler that was included in his licence application. The combination of this evidence supports his contention that he has over four years experience in building fibreglass swimming pools.

32 Mr Lawson presented argument in regard to the issue of whether or not the legislation provides for the issuing of a qualified supervisors certificate limited to fibreglass swimming pools. He submits that Tranquility Pools holds a licence as 'Swimming Pool Builder -Fibreglass Pools Only'. Mr Martine proposes to take over the role of Tranquility Pools’ qualified supervisor and has no intention to carry out any work other than that for which Tranquility Pools is licensed. He could only apply for one type of licence and gave the Commissioner notice of his intentions. He contends that the legislation cannot intend that a supervisor needs experience in work that the licence holder is not authorised to carry out.

33 Mr Lawson submits that the legislation envisages that certificates will be issued to allow a licensee to operate within the sub-category of licence that has been issued. Accordingly, the Commissioner has power to issue the certificate. He argues that section 27(3)(a) of the Act provides that a supervisor certificate is subject to the conditions applicable to the certificate. Section 36 of the Act provides that a supervisor certificate is subject to any conditions prescribed by the Regulation and any conditions imposed by order of the Commissioner. He submits that the Commissioner’s power to impose conditions is unfettered and the directive issued by the Director of Home Building Licensing on 22 December 2005 cannot affect the interpretation of the legislation.

34 Mr Lawson further submits that 22 December 2005 directive is inconsistent with clause 28 of the Regulation. In any event, he argues that it is clear that four exceptions are identified in relation to the directive. An authority may be work-limited through the imposition of a condition by way of an order of the General Manager, Deputy General Manager, Director Licensing or Manager Licensing. Mr Lawson argues that the Tribunal therefore has power to impose a work-limiting condition on an authority.

Findings

35 I agree with the Commissioner’s view that the legislative regime is intended to limit the categories of licence. I also agree with the views expressed by Molony JM in Woolley that have been referred to above. Under the legislative regime the only certificate that is available to Mr Martine is that prescribed by Clause 46 of the Regulation. If Mr Martine does not satisfy the requirements for the category of ‘swimming pool building’ then he cannot be granted the certificate.

36 I also agree that the legislation provides that the Commissioner can set requirements that must be met before an authority is issued and that the Tribunal cannot review these requirements. The applicable requirements for the authority that Mr Martine seeks are set out in Form L20. It is therefore necessary that I consider the Form L20 requirements and determine whether Mr Martine has satisfied them.

37 Form L20 identifies the relevant category as ‘SWIMMING POOL BUILDER (includes concrete, fibreglass, pre-fabricated and above ground pools)’. In my view it is plain from the words used that the provision is not intended to be exhaustive. It is conceivable that a swimming pool builder might construct a pool that is not concrete, fibreglass, pre-fabricated or above ground. In my view the terms are inclusive only.

38 The question whether the word ‘includes’ should be construed as ‘means’ has been the subject of considerable debate over the years. See Pearce & Geddes Statutory Interpretation in Australia, 5th ed. paras. [6.56] – [6.59]. The basic principles of interpretation to be applied are that the words in a statute should be given their ordinary meaning and that, generally speaking, the word ‘means’ is used if the definition is intended to be exhaustive while ‘includes’ is used if it is intended to enlarge the ordinary meaning of the word. In my view, a similar approach should be taken to interpretation of Form L20. The word ‘includes’ should not be read here as ‘means’.

39 The application of that approach leads me to the view that an applicant for an authority for the category of ‘swimming pool builder’ need not satisfy all of the sub-categories of concrete, fibreglass, pre-fabricated and above ground pools. In this regard I do not agree with the Commissioner’s interpretation. In my view it is sufficient to meet the criteria if an applicant has experience in only one of those sub-categories.

40 The requirement stated in Form L20 is a minimum of four years acceptable practical experience. As I have indicated above, I made a finding of fact that Mr Martine has four years acceptable experience in fibreglass swimming pool building. It follows that I am satisfied that Mr Martine has met this aspect of the Form L20 requirements.

41 I note however, the additional requirement that ‘Applicants will be required to undertake a Building Industry Skills Centre assessment of their competence.’ In the circumstances it is my view that the matter should be remitted for reconsideration by the Commissioner to allow this further step to be undertaken.

42 If Mr Martine satisfactorily completes the competency assessment, I recommend that the Commissioner should grant him the qualified supervisors certificate that he seeks. I note that the Act is consumer protection legislation designed to ensure that persons who operated under licence in the residential building industry do so to the highest standards. In light of the evidence regarding the limited range of Mr Martine’s experience, it is my view that the protection of the public warrants that any certificate issued to Mr Martine be subject to a condition that he only builds fibreglass pools.

Order

The matter is remitted for reconsideration by the Commissioner for Fair Trading with the recommendation that Mr Martine be granted a qualified supervisors certificate if he satisfactorily completes the competency assessment. It is further recommended that if Mr Martine is granted a qualified supervisors certificate the certificate be subject to the condition that he only builds fibreglass pools.