Treadwell v Director General, Department of Fair Trading

[2001] NSWADT 30

CITATION:	Treadwell -v- Director General, Department of Fair Trading [2001] NSWADT 30
DIVISION:	General Division
PARTIES:	APPLICANT Peter Treadwell RESPONDENT Director General, Department of Fair Trading
FILE NUMBER:	003239
HEARING DATES:	11/09/00
SUBMISSIONS CLOSED:	09/11/2000
DATE OF DECISION:	02/22/2001
BEFORE:	Britton A - Judicial Member
APPLICATION:	Home Builder - issue of contractor licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Home Building Act 1989 Home Building Regulation 1997
CASES CITED:	Ghersinich v Building Services Corporation (unreported, 21 October 1992) Jaques -v- Director-General, Department of Fair Trading [1999] NSWADT 111 Doyle v Commissioner of Police [1999] NSWADT 84
REPRESENTATION:	APPLICANT In person RESPONDENT A Grey, solicitor
ORDERS:	1. The decision of the Director- General of the Department of Fair Trading, to refuse to issue the Applicant a contractor's licence is affirmed

1 This decision concerns an application for a roof plumbers licence. Mr Peter Treadwell, the Applicant in this matter, seeks a review of the decision made by the Director- General, Department of Fair Trading (the Administrator) to refuse to grant him a roof plumbers licence. This decision concerns whether the Administrator in refusing to grant Mr Treadwell’s licence, made the correct and preferable decision.

2 On 3 September 1999 Mr Treadwell applied for an individual contractor’s licence, in the category of roof plumbing, under s19(1) of the Home Building Act 1989 ( the Act) . By notice, dated 7 June 2000, a delegate of the Administrator advised the Applicant that his application had been refused. An internal review, requested by the applicant, affirmed the original decision.

3 On 13 July 2000, the Applicant filed an application with the Administrative Decisions Tribunal of NSW (the Tribunal) for a review of that decision.

4 The Tribunal has jurisdiction to review the Administrator’s decision pursuant to s 38 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) and s83B(1) of the Act.

Relevant Legislative provisions

5 The issuing of roof plumber licences is governed by the Act, Part 3, Division 1 (s 19 to s 23), and the Home Building Regulation 1997 (the Regulations).

6 Section 19 of the Act relevantly provides:

19 Applications for licences

(1) An individual, a partnership or a corporation may apply to the Director-General for a licence authorising its holder to contract to do such one or more of the following things as may be specified in the application:
(a) to do residential building work,
(b) ...
(c) ...

(2) An application for a licence is to be accompanied by such particulars as are required by the Director-General concerning:
(a) the fitness, ability and capacity of the Applicant to carry out contracts for which the licence is required, and
(b) the arrangements made or proposed by the Applicant to ensure that all work done under those contracts will be done or supervised by appropriately qualified individuals.
(3) Further particulars concerning any of those matters may be requested by the Director-General after the application has been lodged.

7 Section 20 provides:
Issue of licences
(1) After considering an application, the Director-General must:

(a) issue a contractor licence to the applicant, or
(b) reject the application by serving on the Applicant a notice setting out the reasons for rejecting the application.
(2) The regulations may fix or provide for the Director-General to determine standards or other requirements that must be met before any licence is issued or before a licence of a particular kind is issued.
(3) The Director-General must reject an application for a licence if:
(a) the Director-General is not satisfied that any such requirement would be met were the 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 licence will authorise the Applicant to contract to do.
(4) (Repealed)
(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 subsection (2).

8 Section 21 relevantly states:
Authority conferred by licences
(1) A licence authorises its holder to contract to do such residential building work, ..., as may be described in the licence when it is issued.
(1A) .....
(2) The authority conferred by a licence:

(a) is subject to the conditions applicable to the licencee for the time being, and
(b) may, on the application of the holder of the licence, be varied by an order of the Director-General set out in a notice served on the holder of the licence.
9 The Regulations provide for the Administrator to set standards or requirements before certain licences are issued. Clause 19(1)(d) of the Regulations provides that:
(1) Before a licence is issued, the Director-General must be satisfied that:
(d) the applicant, if applying for an endorsed licence, complies with the requirements prescribed by clause 20 (d)-(h) in relation to applicants for a qualified supervisor certificate.
10 Clauses 20(d) - (h) provides that before a certificate is issued, the Director-General must be satisfied that the applicant:
(d) has such qualifications or has passed such examinations or practical tests, or both, as the Director-General determines to be necessary to fit the Applicant to do, or to supervise, the work for which the certificate is required, and
(e) has had experience of such a kind and for such a period, as the Director-General considers would fit the Applicant to do, or to supervise, the work for which the certificate is required, and
(f) is capable of doing or supervising work for which the certificate is required, and
(g) is not disqualified from holding a certificate or a certificate of a particular kind, and
(h) is not the holder of a certificate that is suspended.

Issues

11 It is not in issue that the sole reason for the Administrator’s decision to refuse to grant Mr Treadwell’s licence application was his failure to pass an examination that the Administrator required him to take, pursuant to clause 19(1)(d) of the Regulations (the Trade test). The Respondent conceded that Mr Treadwell fulfilled all other relevant licence requirements as set out in clauses 19 and 20 of the Regulations.

12 The issues for the Tribunal to determine in this matter are:

Is the requirement, set by the Respondent that applicants for a roof plumbers licence, pass the Trade test, a “standard or other requirement”, within the meaning of s 20(2) of the Act.
If so, does s 20 (5) of the Act bar the Tribunal from reviewing the Trade test?

Evidence

13 Mr Grey tendered in evidence an affidavit prepared by Mr John Cairns, the Officer–in Charge of the Respondent’s Home Building Licencing Unit which outlined the history of the requirements, set by the respondent, in respect of applicants for roof plumbers licences.

14 According to Mr Cairns, from November 1999, the Respondent required all applicants for a roof plumbers licence who had not completed a Metal Roofing Trade Course (or its equivalent) to first, complete a minimum of six years acceptable supervised trade experience; and second, to successfully complete the subject “Roof Plumbing and Rainwater Drainage” or, in the alternative, pass the Roof Plumbing Trade test. These requirements are set out in a brochure headed “Department of Fair Trading, Plumbing, Drainage and Gasfitting, Qualifications: Contractors Licence.”

15 It is not in issue that Mr Treadwell unsuccessfully sat for the Trade test on 27 March 2000 and subsequently on 22 May 2000.

16 Mr Treadwell gave evidence that the Trade test in his opinion, did not reflect modern practices. He detailed what he considered to be the test’s shortcomings including: failure to accept that there are at least two methods to “stop end” a roof sheet; over reliance on soldering, a process, claimed Mr Treadwell, seldom required in the industry, as galvanised iron was no longer commonly used. In addition, Mr Treadwell stated, that in a number of areas, the examiners were unnecessarily harsh in their assessment.

Conclusions

17 The thrust of Mr Treadwell’s submission is that given his significant and broad experience as a roof plumber and his enviable reputation as a skilled and proficient tradesman, a fact not disputed by the respondent, the decision to refuse to grant him a licence was unreasonable. Mr Treadwell asserts that the test relied on by the Administrator to determine whether an Applicant has the necessary knowledge and skill to carry out the work of a roof plumber was flawed, placing undue reliance on techniques, now regarded as antiquated by the industry.

18 Section 20(2) of the Act provides that the Regulations “may fix or provide for” the Administrator “to determine standards or other requirements that must be met before a licence is issued or a licence of a particular kind is issued”. Clause 20 (d) of the Regulations confers on the Director- General the power to require that applicants hold “qualifications or pass such examinations or practical tests, or both, as the Director -General determines to be necessary to fit the Applicant to do, or to supervise, the work for which the certificate is required.”

19 Clause 19(1) (d) of the Regulations provides that before a licence is issued, the Director- General must be satisfied that the Applicant complies with the requirements prescribed by clause 20(d) –(h).

20 In this case, the Administrator has exercised its powers pursuant to clause 20 (d) of the Regulations to set eligibility requirements for applicants for a roof plumbers licence, in the form of the completion of a recognised Metal Roofing Course, or, the successful completion of the Trade test. In my view it is clear that the Trade test constitutes a standard or requirement within the meaning of s20(2) of the Act. This is consistent with the decision of the Commercial Tribunal in Ghersinich v Building Services Corporation (unreported, 21 October 1992) and that of this Tribunal in Jaques -v- Director-General, Department of Fair Trading [1999] NSWADT 111.

21 Section 20(5) provides that the Tribunal cannot review “a standard or other requirement”:
A decision of the Director-General relating to determining standards or other requirements under sub-section (2) cannot be reviewed by the Administrative Decisions Tribunal in an application for review made under this Act.

22 Having found that the Trade test is a standard or requirement within the meaning of s20(2) the Tribunal is without power to review that test. There is nothing before me to indicate that the standard is either unlawful or ultra vires. The issue of whether the Tribunal is bound to follow an unlawful standard is discussed at Doyle v Commissioner of Police [1999] NSWADT 84 at [19] to [37] and referred to in Jaques -v- Director-General, Department of Fair Trading [1999] NSWADT 111 at [44].

23 Whatever the merits of Mr Treadwell’s contention that the test was flawed and his mark should be re appraised these are not issues this Tribunal can determine.

24 Accordingly I am satisfied that the Administrator has made the correct and preferable decision in refusing Mr Treadwell’s application for an individual contractor licence in the category of roof plumbing.

Orders

The decision of the Administrator, to refuse to issue the Applicant a contractor's licence is affirmed.