McGowen v Commissioner of Fair Trading

[2021] NSWCATAD 46

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

McGowen v Commissioner of Fair Trading [2021] NSWCATAD 46

Hearing dates:

21 September 2020; 17 December 2020

Date of orders:

2 March 2021

Decision date:

02 March 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

(1)    The decision under review is set aside.

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

Catchwords:

ADMINISTRATIVE LAW – building and construction – home building - experience - Instrument.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Home Building Act 1989

Cases Cited:

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

Edrees v Commissioner for Fair Trading [2021] NSWCATAD 32

Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Norman Robert McGowen (Applicant)
Commissioner for Fair Trading (Respondent)

Representation:

Solicitors:
Family Law Solutions (Applicant)
Corporate Services, Department of Customer Service (Respondent)

File Number(s):

2020/00193369

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application by Mr Norman McGowen (“the Applicant”) for review of a decision by a delegate of the Commissioner for Fair Trading (“the Respondent”) to refuse to grant a licence under the Home Building Act 1989 (“the Act”).

Background

2. The Applicant is the holder of Qualified Supervisor Certificate under the Act in the categories of "Carpenter and Joiner". He applied to the Respondent for an individual endorsed contractor licence in the category of "general building work" under the Act.

3. The Respondent refused to grant the licence on the basis that the Applicant had failed to satisfy the delegate that he had the wide range of practical experience required for the issue of the licence. This decision was based on the view that to be issued with a building licence the Applicant needed to satisfy the requirement of having attained acceptable relevant industry experience in a wide range of building construction work.

4. The decision was affirmed on internal review and the Applicant has applied to the Tribunal for external review.

Applicable legislation

5. The Tribunal was established by the Civil and Administrative Tribunal Act 2013. Section 28 of that Act provides that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation. The Tribunal’s jurisdiction in regard to this application is pursuant to section 83B(1) of the Act and sections 9 and 55 of the Administrative Decisions Review Act 1997 (“the ADR Act”). Section 63 of the ADR Act requires the Tribunal, in determining an application concerning an administratively reviewable decision, to decide what the correct and preferable decision is having regard to the material then before it including any relevant factual material and any applicable written or unwritten law. It authorises the Tribunal to affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision the Tribunal is to make a decision in substitution for that decision or remit the matter for reconsideration by the administrator who made the decision.

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

7. Section 20(1) of the Act states”:

20 Issue of contractor licences

1. The Secretary must refuse an application for a contractor licence if—

…

(a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33C, or

...

8. No issues have been raised in regard to the requirements set out in sections 33B of the Act. However, the Respondent relies on section 33C(1)(b)(i) of the Act which provides:

33C Additional requirements for obtaining contractor licences

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

…

(b)    the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate—

(i)    satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant, and

...

9. Section 33D(1)(b) of the Act specifies:

33D Additional requirements for obtaining supervisor and tradesperson certificates

1. A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant—

…

(b)    has had experience of such a kind and for such a period as the Secretary considers would enable the applicant to do, or to supervise, the work for which the certificate is required

…

10. The Tribunal stands in the shoes of the Secretary and has the same powers as the Secretary for the purposes of this review. Accordingly it is necessary that the Tribunal determines whether or not the Applicant has had experience of such a kind and for such a period as would enable him to do, or to supervise, the work.

11. The Respondent relies on an Instrument dated March 2017 relating to qualification requirements for an endorsed contractor licence or supervisor certificate for general building work (“the Instrument”). The Instrument provides guidance on the experience requirements for the purposes of section 33D(1)(b) of the Act.

12. The Instrument provides that an applicant needs to show at least two years relevant industry experience in a wide range of building construction work, where the majority of that experience was obtained within 10 years of the date the application is made.

13. The Respondent relies on comments made by Senior Member Ransome in Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 where she stated at paragraph [33]:

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

14. The Applicant contends that the Tribunal is not bound to apply the Instrument and that this is a matter in which the Tribunal should declined to apply it.

15. The Applicant submits that there are no experience requirements prescribed by the Act and that the Instrument is part of a policy designed to help the Commissioner, and the Commissioner's delegates, determine whether a person has the experience which would enable him or her to do, or to supervise, the work for which the qualified supervisor certificate is required. He further submits that the Instrument is more aptly described as guidelines and that it is unlawful to apply the Instrument inflexibly, as if it had the status of a law.

16. The application of the Instrument has been considered in a number of decisions in this Tribunal. Most recently it was considered by Senior Member Isenberg in Edrees v Commissioner for Fair Trading [2021] NSWCATAD 32 where he discussed a number of those decisions. At paragraphs [53] – [59] he stated:

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

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

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

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

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

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

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

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

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

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

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

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

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

   100 To adopt a principle that the Tribunal may never accept an applicant’s evidence about his or her own experience, where that evidence is uncorroborated, would be to put an unwarranted gloss on both statutes. It would mean that a Tribunal could never be satisfied that an applicant has had the necessary experience under s 33D(1)(b) of the Home Building Act unless the applicant provided corroboration for every part of that experience which the Tribunal proposed to take into account. It would also preclude the Tribunal, having regard to sworn oral evidence (the relevant factual material before it) from reaching a state of satisfaction that an applicant had the relevant experience for the purposes of s 33D(1)(b), unless there was also corroborative material for every aspect of the experience.

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

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

   17. I agree with that approach. In my view, it is necessary for the Tribunal to consider the relevant experience on a case by case basis. The Instrument provides a useful guide to assist the Tribunal in deciding whether the Applicant’s experience would enable him to do, or to supervise, the work that would be authorised by the licence that he is seeking.

   18. The Applicant submitted that to apply the instrument in this case would result in an injustice to him.

Material before the Tribunal

19. The Respondent relies on a bundle of documents filed and served pursuant to section 58 of the ADR Act; a copy of the Instrument, written submissions and oral submissions by its solicitor, Ms Robosa.

20. The Applicant relies on his own evidence, a number of references which address the work that he has undertaken in the industry, written submissions and oral submissions by his solicitor, Mr Wilkin.

The Applicant’s experience

21. The Applicant does not dispute that he needs to show that he has gained experience across all stages of construction of residential buildings. He stated that he has a total of 45 years' experience in the building and construction industry. In that time he has worked on many large commercial jobs and has been involved from set out to finish on hundreds of houses.

22. He submits that the references he have provided demonstrate that he not only directly performed the tasks of flooring, bricklaying, wet plastering, painting, decorating, general concreting, tiling, demolishing, glazing and waterproofing but also has experience supervising and observing these trades.

23. He also gave evidence as to the design, planning approval process and construction of his own residential dwelling in support of his application.

24. Mr Wilkin submitted that this is a matter where the Tribunal should consider all of the Applicant’s experience as relevant, including commercial building work, and take all of it into account. He submits that the evidence provided on the Applicant’s behalf, both directly and by way of references, demonstrates that Applicant has the required experience across a wide range of building and construction work. However he accepts that this much of the experience has occurred outside of the 10 year period referred to in the Instrument.

25. The Applicant’s evidence is that in 1980 he performed carpentry work with Alex Roberts Construction building a low-rise nursing home in Lismore. His duties included the set out of form work, standing frames and trusses. In 1983 and 1984 he did carpentry work for Atlas Awnings in Lismore building many garages, patios and 12 houses from start to finish. He supervised apprentices and all other trades on site.

26. Between 1985 and 1987 he did carpentry work on commercial projects with Bennett Constructions Building. His main duties were the set out of the building form work installation of reinforcing steel work, pouring slabs and erecting frames and joinery work.

27. Between 1987 and 1991 he worked as a carpenter and foreman for Greg Clark Building Pty Ltd. The work included residential homes from set out to finish as well as many commercial projects. The Applicant relies on a reference from Greg Clark.

28. Mr Clark speaks highly of the Applicant. He stated that the Applicant had worked for his company for a period of 3 - 4 years some thirty three years ago. The Applicant had been employed on three jobsites. They were commercial constructions from ground to finished products:

•   Xerox Building, Corner of Orion Street and Keen Street Lismore. This was an underground carpark with a single story office block being built above. The Applicant was employed as a carpenter;

•   Peters Ice Cream Depot, Skyline Road Lismore. This was a tilt slab construction over a period of months. The Applicant was employed as a carpenter; and

•   Kyogle Plywood Mill. This was a concrete and steel construction from the ground up, over a period of months. The Applicant employed as the site supervisor.

29. Mr Clark stated that in his work as a carpenter the Applicant was required to, and adeptly demonstrated his ability to do, the following:

•   Read an interpret plans and specifications and organise site establishment and set out;

•   Deal effectively with sub-contractors, owners, members of the public and council and other government agencies;

•   Apply the building code and standards in the construction process, and comply with site safety (as it was then known) requirements; and

•   Apply structural principals to residential constructions.

30. As a site supervisor at the Kyogle Plywood Mill site, in addition to performing the duties as a carpenter, the Applicant also demonstrated his competence in:

•   Management of all subcontractors, and members of the public on site, ensuring their compliance with site safety requirements;

•   Undertaking the site survey and set out procedures for the project, and conducting daily on site supervision of trades, ensuring that the work was performed to the relevant standard and complied with the Building Code of Australia;

•   Ensuring that the structural, and engineering requirements were completed as per specifications; and

•   planning and supervising the daily and weekly construction process so as to ensure the project was completed according to the timetable and relevant standards.

31. The Respondent submits that the Tribunal could not be satisfied that the Applicant has gained the relevant industry experience in a "wide range of building construction work" while employed with Greg Clark Building Pty Ltd.

32. The Respondent further submits that the work experience verified by Mr Clark occurred 33 years ago and is not current relevant experience.

33. The Respondent maintains its submissions that the Applicant does not have current relevant experience. The work experience verified by Mr Clark occurred 33 years ago.

34. Mr Wilkin submits that the Respondent has not alleged that Mr McGowan has not performed the work for Mr Clark, or otherwise as set out in his material. Rather, the Respondent’s their only contention is with the form and timeframe of the experience. He submitted that if the evidence of Mr Clark is in some way deficient in form or by way of lack of particularisation, when it is read in conjunction with the Applicant's own evidence of his experience, the Tribunal should be satisfied that the Applicant has the experience sufficient to satisfy s33D(1)(b) of the Act.

31. The Applicant now works for a non-profit organisation - Byron Ballina Home Modification and Maintenance Service Inc. (“BBHMMS”). BBHMMS provides modifications and maintenance services for the frail aged and people with a disability.

32. He has been employed as a "Carpenter" at BBHMMS since 2006. The majority of the work carried out has been bathroom modifications, staircase construction, handrails, concrete path, widening doorways and ramps access and related modification to provide for assisted living.

33. John Vella of BBHMMS provided a reference setting out details of the Applicant s experience with BBHMMS over those years.

34. Mr Vella notes that the Applicant has assisted and/or managed house extensions, many ramps to homes and some community buildings, carports built from scratch, verandas and decks repairs to verandas, concrete driveways and paths, had a wide range of building experience including removal of load bearing wall to install ceiling hoist as per engineer's requirements, including the removal of roof to replace ceiling rafters and install load bearing beam under engineer's supervision, completed numerous jobs such as full bathroom modification, requiring removal of walls and installation of load bearing timber, worked with and supervised other contractors including electricians, plumbers, plasterers, painters and termite inspector, an extensive knowledge of building regulations, especially the AS1428 standard for clients with disabilities.

35. The Applicant wishes to continue to carry out this type of work. However, it is a requirement from his peak funding body that he holds a builder's licence. He is seeking his builder's licence so he can continue to work and provide these services for his employer and the community in his area.

36. The Respondent submits that the Tribunal could not be satisfied that the Applicant has gained the relevant industry experience in a "wide range of building construction work" while employed with BBHMMS. While the Respondent doesn’t submit that the work is not relevant industry experience, it argues that it limited in its scope and is not the requisite wide range of building construction work.

Conditions

41. As has been noted above, the Applicant is currently undertaking work that does not require the licence that he is seeking. He is only seeking the licence because the organisation which funds BBHMMS requires that he hold a licence. The question arose as to whether or not a condition could be imposed which would limit the type of work that the Applicant could perform as a means of addressing the concerns that the Respondent has regarding the currency of the Applicant’s experience.

42. The Applicant proposed an undertaking to abide by a condition that limited the work that he could undertake to “contracts not requiring insurance under the Home Building Compensation Fund".

43. The Respondent submits that the Tribunal has neither statutory authority nor discretion to accept an undertaking from the Applicant to limit his work to contracts of that nature.

44. Mr Wilkin submitted that conditions can be placed on the holder of a licence, and that the Applicant’s agreement to be bound by the terms of an undertaking or condition on his licence was given in an attempt to resolve the matter amicably and without need to proceed to a hearing.

Discussion

45. I agree with the Respondent that it is necessary that an applicant for a licence under the Act must show relevant industry experience in a wide range of building construction work. The Tribunal should not grant a licence unless it is satisfied that the Applicant has the knowledge and ability that would allow him to be held out to the public as a person who can perform the work that is authorised by the licence.

46. The Instrument provides a useful guide to the level of experience that would allow the Tribunal to be confident that the Applicant’s knowledge and ability is sufficient for that purpose. However, compliance with the Instrument is not a legislative requirement.

47. I agree with the views expressed by the Tribunal in the decisions that have been cited above. The Tribunal is not bound by the terms of the Instrument and the Tribunal should not apply the Instrument inflexibly if to do so would result in an injustice. It is necessary to consider the relevant experience on a case by case basis.

48. I agree that an applicant is able to corroborate third-party evidence of their own experience or they can provide evidence which is itself corroborated.

49. In my view, the totality of his experience should be taken into account. This includes both commercial and residential building work. Skills that are developed in commercial building work are equally applicable to residential building work and that experience should be taken into account. I am also satisfied that experience that the Applicant gained outside the 10 year period provided for by the Instrument should be taken into account where that experience has provided a foundation for the work that was carried out more recently. In my view, this is a matter in which an injustice would result if the Instrument were applied inflexibly as it would not allow valuable experience to be taken into account.

50. I have no doubt that the Applicant has the knowledge and ability to perform the work that is authorised by the licence. On the evidence before me, I am satisfied that he “has had experience of such a kind and for such a period as … would enable him to do, or to supervise that work. That being the case, the licence should be granted.

51. Accordingly, it is my view that the correct and preferable decision is to set aside the Respondent’s decision to refuse to grant the Applicant’s licence application and in its place make the order that the licence is granted.

52. I note Mr Wilkin’s submission that conditions can be placed on the holder of a licence and that a condition is imposed on all licences until such time as they have obtained the required insurance to undertake work over the costs of $20,000. If that condition is imposed on the Applicant’s licence, it will allow him to perform the work that he has been doing with BBHMMS and may also address the Respondent’s concerns in regard to the regulation of the industry.

Order

1. The decision under review is set aside.

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

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 02 March 2021