Sales v Director-General of Department of Fair Trading

[1999] NSWSC 663

CITATION:	Sales v Director-General of Department of Fair Trading & Anor [1999] NSWSC 663
CURRENT JURISDICTION:	Administrative Law
FILE NUMBER(S):	30126/98
HEARING DATE(S):	17 June 1999
JUDGMENT DATE:	5 July 1999
PARTIES :	Wayne Edward Sales v Director-General of Department of Fair Trading & Commercial Tribunal of NSW
JUDGMENT OF:	Grove J at 1

LOWER COURT JURISDICTION:	Commercial Tribunal of NSW
LOWER COURT FILE NUMBER(S) :	1177/97
LOWER COURT JUDICIAL OFFICER:	G.M.M.Hoeben Deputy Chairman

COUNSEL :	E. Olsson T. Lynch
SOLICITORS:	Benetatos White (Katoomba) C. Pacey (Parramatta)
CATCHWORDS:	Administrative Law - Commercial Tribunal - Building Contractor's Licence - Refusal by Director-General - Scope of Issues on Appeal - Jurisdiction of Tribunal
ACTS CITED:	Home Building Act Commercial Tribunal Act
DECISION:	Summons dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION

MICHAEL GROVE J

5 July 1999

30126/98 - WAYNE EDWARD SALES v DIRECTOR GENERAL OF DEPARTMENT OF FAIR TRADING and COMMERCIAL TRIBUNAL OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR : This summons seeks relief in respect of proceedings heard by a deputy chairman of the Commercial Tribunal. The jurisdiction of the Court is prescribed in s 20(5) and (6) of the Commercial Tribunal Act 1984. That statute has been replaced by other legislation coming into effect on 1 March 1999 but it is common ground that transitional provisions have effect to preserve the validity of these proceedings.

2    The jurisdiction of the Supreme Court is limited to decisions with respect to matters of law.

3    The statement under Part 51 rule 5 would appear to identify the contentions of legal error in the following terms:
“6. During the hearing (which was de novo before the Second Defendant), three main issues were agitated:
(i) whether the decision of the First Defendant to reject the Plaintiff’s calculation of twenty years experience was a final decision or decision from which an appeal could be brought to the Second Defendant pursuant to Section 85 of the Building Services Corporation Act.
(ii) whether the Second Defendant had jurisdiction to hear and determine the matter if the decision was not a final decision but an interim decision,
(iii) whether the Second Defendant had jurisdiction to direct the First Defendant to permit the Plaintiff the opportunity to sit the written technical examination.”

4 On 14 August 1997 the plaintiff made application for a “full individual building licence” and an endorsement as a contractor pursuant to s 28 of the Home Building act. It is acknowledged that the first defendant had prescribed qualifications for the attainment of such licence which designated the attainment of certain degrees, diplomas or certificates. It is conceded that the plaintiff did not hold any of the prescribed qualifications but sought to rely upon an exception.

5    So far as is relevant the exception is in the following terms:
“Applicants not holding any of the listed acceptable qualifications may still qualify for issue of a Contractor Licence/Qualified Supervisor Certificate as a builder by successfully completing the Corporation's Written Technical Examination provided they satisfy the guidelines for entry into the exam. These guidelines are as follows:
……………………………..

· The applicant holds no educational qualifications in the building industry, but can show 20 years relevant industry experience.”

6    On 4 September 1997 the first defendant refused the plaintiff’s application which was communicated in a letter containing these terms:
“The Department has now considered the application and I regret that I must notify you that the Department has determined to refuse to grant to you a licence.
The Department has determined that an application for a licence as a builder must hold one of the qualifications set out in the enclosed brochure.
It has been noted that you do not hold one of the qualifications set out in the brochure and have no formal qualifications relating to the building industry.
Where a person has no formal qualifications the Department requires that person to have a minimum of twenty(20) years relevant building experience in the industry and successfully undertake a Written Technical Examination conducted by the Building Industry Skills Centre on behalf of the Department.
The Department is not satisfied from the information contained in your application that you have the minimum required building experience for entry to the above examination.”

7 The facility for appeal against a decision of the first defendant relating to application for the issue of a licence is provided by s 85 of the Home Building Act. Pursuant to that provision the plaintiff lodged an appeal to the Commercial Tribunal. A motion was filed by the first defendant seeking to have the appeal dismissed but no interlocutory order was made in response to the motion and the appeal was listed for final hearing. On 3 December 1998 the Commercial Tribunal made orders including an order that the appeal be dismissed to which was added “it follows that order 1 of the notice be granted”. The lastmentioned appears to be a reference to the motion.

8    These procedural matters are of historical interest only. The gravamen of dispute is focussed upon the question whether the Commercial Tribunal had jurisdiction to entertain a challenge to the apparent finding of fact that the plaintiff did not have the minimum required building experience for entry into the Written Technical Examination.

9    In her judgment the Deputy Chairman of the Commercial Tribunal made the following observations:
“The Notice of Appeal, in effect, seeks a finding from the Tribunal that the respondent erred in not finding the appellant had 20 years relevant experience, and in so doing, it be directed by the Tribunal to allow the appellant the opportunity of sitting its Written Technical Examination.
The appeal was heard in conjunction with a Notice of Motion, (‘the notice’), of 29 September 1998, filed by the respondent seeking the dismissal of the appeal pursuant to section 31(1) of the Act on the basis that the appeal was misconceived.
The jurisdiction of the Tribunal in the present case is confined to a consideration of criteria to be proved by the applicant, or appellant in this case, for a licence, and whether the application is to be granted, or whether it is to be refused …….”.

10    The thrust of the argument on behalf of the plaintiff was directed to a contention that as the appeal to the Commercial Tribunal was a hearing de novo in the sense that all issues were being retried the Tribunal had erroneously restricted itself from determining an ingredient issue of whether the applicant was possessed of the necessary extent of experience to entitle him to sit for the examination.

11    Indeed it has been common ground at all hearings that the plaintiff did not possess any of the specified qualifications and had not sat for the Written Technical Examination. In the absence of qualification it was inevitable that the first defendant refused his application for licence. So much is indisputable.

12    The real dispute is about the finding of fact by the first defendant that the applicant did not have the prerequisite experience to entitle him to sit for the examination and thereby accord himself a chance of fulfilling a criterion for the grant of licence.

13 In order for that finding to have been justiciable in the Commercial Tribunal it must qualify within the scope of the expression in s 85(a) of the Home Building Act “any decision of the Director General relating to” an application such as that made by the plaintiff.

14    It is the contention of the first defendant that the decision “relating to” the application was the decision whether or not the applicant had requisite qualifications be it, for example, a Degree in Engineering (structural) of the University of Technology or the passing of the Written Technical Examination. By what means the qualification was obtained, it was contended, was a matter extraneous to the decision.

15    What the plaintiff has sought to challenge appears to be not an error in the decision relating to the refusal of licence but rather an asserted error in assessing the eligibility of the plaintiff to present himself as a candidate for an examination which, if passed, would provide him with a criterion for licence.

16    My conclusion is that the submission of the first defendant is correct and there was no legal error in the approach of the Deputy Chairman to the determination of the appeal.

17    The removal of the issue of eligibility to sit for the examination from the scope of a decision “relating to” the application for licence can be seen by analogy. Suppose the Director General arbitrarily purported to hold that an applicant holding the appropriate degree in engineering did not have that qualification. It would be open to that applicant to demonstrate (by presentation of his testamur perhaps) at the hearing of the appeal that that finding was wrong and at a hearing de novo an appropriate order could be made. What the applicant (hypothetically) in the present circumstances would need to show would be that the Director General was incorrect in holding that the applicant had sat for and passed the Written Technical Examination. He had not. It is not within the ambit of appeal against decision to overturn a prerequisite action, albeit made aliunde by the same Director General, which inhibited the applicant from attempting to gain the qualification any more than it would be open to the Tribunal to require the University to permit a candidate to sit for an examination paper in order to gain a qualifying degree.

18    As I have said the real complaint of the plaintiff is not that the decision of the first defendant was wrong in law but rather that the first defendant by reason of the view that he formed concerning the absence of 20 years relevant experience inhibited the plaintiff from obtaining a qualification for licence.

19    That the true nature of the challenge by the plaintiff is an attack upon a collateral matter rather than an appeal against a decision relating to the application is manifest in the extract from the statement under Part 51A rule 5 which offers no direct challenge to a legal ruling in the appeal as distinct from a challenge to rejection by the first defendant of the plaintiff’s claim to have 20 years relevant experience. The appeal to the Commercial Tribunal is a hearing de novo of the application for licence but it does not make available an unrestricted general challenge to any aspect of the Director-General’s activity.

20    Finally on the potential issue of the grant of remedy it should be recorded that the Deputy Chairman included in her judgment an observation that:
“In any event, and if the Tribunal is wrong on this point, on the evidence before it, it is not satisfied that a case has been established on a purely evidentiary basis, that the appellant undertook ‘20 years relevant industry experience’ between 1972 to date, which he was required to satisfy as a standard or requirement: see form L20 of exhibit 3. At best, the evidence before the Tribunal only establishes approximately 10 years ‘relevant industry experience’, although, as noted earlier, it is not clear what actual work the appellant undertook during this time, and its particular relevance to the application for a contractor licence.
The appellant did not give any oral evidence, and apart from some very general written testimonials, there was no evidence from anyone as to the quality, level or nature of the building work undertaken by him.”

21    The summons is dismissed. The plaintiff is ordered to pay the costs of the defendants’ of the summons, the costs of the second defendant being costs appropriate to a submitting defendant.

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Last Modified: 07/05/1999