Sinclair v Commissioner for Fair Trading

[2017] NSWCATAD 159

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Sinclair v Commissioner for Fair Trading [2017] NSWCATAD 159
Hearing dates:	13 December 2016
Date of orders:	19 May 2017
Decision date:	19 May 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member
Decision:	The decision of the respondent to refuse the applicant’s application for a supervisor certificate for the categories of disconnection and reconnection of fixed electrical equipment is affirmed.
Catchwords:	Home Building Act – refusal of supervisor certificate for the categories of disconnection and reconnection of fixed electrical equipment – restoration of certificate not available – relevant qualifications not held for grant of supervisor certificate.
Legislation Cited:	Administrative Decisions Review Act 1997 Home Building Act 1989 Home Building Regulation 2004 Home Building Regulation 2014 Licensing and Registration (Uniform Procedures) Act 2002
Cases Cited:	Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Sterjovski v Director-General, Department of Transport [2002] NSWADT 10.
Category:	Principal judgment
Parties:	Jeffrey Sinclair (Applicant) Commissioner for Fair Trading (Respondent)
Representation:	Solicitors: J Sinclair (Applicant in person) Commissioner for Fair Trading (Respondent)
File Number(s):	2016/00378793, 1620232

REASONS FOR DECISION

Introduction

1. The owner of a small business, Mr Sinclair rebuilds compressors for trains and repairs machinery throughout Australia. In 1993, he received a statement of attainment in electrical disconnect - reconnect. This entitled Mr Sinclair to be granted a qualified supervisor certificate for the categories of disconnection and reconnection of fixed electrical equipment to include the endorsement for electrical motors (‘the supervisor certificate’). Without the supervisor certificate, Mr Sinclair would require an electrician on site to disconnect and reconnect any machines being repaired. Mr Sinclair’s supervisor certificate is subject to renewal every five years. Until 2014, Mr Sinclair successfully renewed his supervisor certificate as required.

2. On 12 October 2014, however, Mr Sinclair’s supervisor’s certificate expired when he failed to renew it. Mr Sinclair had earlier moved house and did not receive any correspondence advising him of the imminent expiry of his supervisor certificate or any documentation including an application for a further certificate.

3. Mr Sinclair did not lodge his application for a supervisor certificate until 12 January 2016. NSW Fair Trading, who is the respondent in this matter, refused Mr Sinclair’s application on 1 April 2016. This decision, which was confirmed on internal review on 23 August 2016, was made because Mr Sinclair was found not to have the required qualifications for the grant of a supervisor certificate.

4. On 26 September 2016, Mr Sinclair sought a review of the decision to refuse him a supervisor certificate.

5. The role of the Tribunal on review is to review the previous decision and to make the correct and preferable decision. Sterjovski v Director-General, Department of Transport [2002] NSWADT 10.

6. The Tribunal may take into account new information not previously before the decision maker. Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

7. In accordance with s63 of the Administrative Decisions Review Act 1997, the Tribunal may affirm, vary or set aside the original decision.

Legal principles

8. Under section 24 of the Home Building Act 1989, NSW Fair Trading and, on review, this Tribunal may grant a supervisor certificate to an applicant. A supervisor certificate must not be issued, however, unless the applicant ‘has such qualifications or has passed such examinations or practical tests, or both, as the Secretary determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required’ (section 33D(1) of the Home Building Act 1989).

9. A supervisor certificate is included in the definition of a licence. As the relevant supervisor certificate has effect for a fixed term, in this case five years, it is a ‘fixed term licence’ (section 4, Licensing and Registration (Uniform Procedures) Act 2002).

10. Under section 10 of the Licensing and Registration (Uniform Procedures) Act, ‘an application for the restoration of a licence may be made to the relevant licensing authority by the licensee at any time after the licence expires or is cancelled.’

11. As NSW Fair Trading is the body empowered to issue supervisor certificates under the Home Building Act, it is clear that NSW Fair Trading is the relevant licensing authority in relation to applications for the restoration of a licence.

12. Section 24(3) of the Home Building Act states that an application for restoration of a licence may not be made more than three months after the date on which the licence expires.

13. On this basis, it is clear that a licence (including a supervisor certificate) that has expired can only be with restored within three months of its expiry. After that, the licence must instead be renewed and an applicant for a renewal of the licence (in this case, the supervisor certificate) must hold the relevant qualifications as required by s33B(1) of the Home Building Act.

14. The relevant qualifications required for the grant of a qualified supervisor certificate for the categories of disconnection and reconnection of fixed electrical equipment are contained in the Instrument dated 17 July 2012 Qualification Requirements for the Specialist Work Category of Disconnection and Reconnection of Fixed Electrical Equipment (made under clause 28(1) of the Home Building Regulation 2004) (‘the Instrument’).

15. Although the Instrument was made under the Home Building Regulation 2004, it also applies under the Home Building Regulation 2014, which commenced on 15 January 2015 and is therefore the applicable regulation for this review (see regulation 75 of the Home Building Regulation 2014).

16. The requirements for the grant of the supervisor certificate have charged since Mr Sinclair was first licensed in 1993 and no longer include the qualification gained by Mr Sinclair, namely the statement of attainment in electrical disconnect-reconnect as at 7 September 1993.

17. This means that Mr Sinclair cannot be granted a supervisor certificate on the basis of his statement of attainment in electrical disconnect-reconnect as at 7 September 1993. To be granted a supervisor certificate, he now needs to complete a statement of attainment as set out in Schedule 2 of the Instrument.

Conclusion

18. It is clear from Mr Sinclair’s evidence at hearing that he has a wealth of experience in repairing machines and has the capacity to rebuild compressors for trains and to work with high-pressure pneumatics. There is no dispute that Mr Sinclair is a highly qualified repairer of machines and that he requires a supervisor certificate to enable him to disconnect and reconnect machines himself rather than requiring the services of an electrician.

19. On the evidence before me, however, it would appear that there is no discretion to grant Mr Sinclair a supervisor certificate.

20. Because he did not re-apply for his supervisor certificate within three months on the expiry of his previous certificate, Mr Sinclair was unable to apply to have the supervisor certificate restored to him and now is required to re-apply for a supervisor certificate. As set out above, this means that he will need to attend further training to obtain the relevant statement of attainment set out in the Instrument.

21. Mr Nicoletti, who appeared for NSW Fair Trading, offered to make inquiries as to the availability of courses, which would provide Mr Sinclair with the necessary qualifications to be granted a supervisor certificate.

22. On the evidence before me and for the reasons set out above, I am satisfied that the decision of NSW Fair Trading to refuse to grant Mr Sinclair a supervisor certificate for the categories of disconnection and reconnection of fixed electrical equipment to include the endorsement for electrical motors, was the correct and preferable one.

orders

23. The decision of the respondent to refuse the applicant’s application for a supervisor certificate for the categories of disconnection and reconnection of fixed electrical equipment to include the endorsement for electrical motors is affirmed.

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

Registrar

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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: 19 May 2017