Trist v Commissioner for Fair Trading, NSW Office for Fair Trading

[2006] NSWADT 303

CITATION:	Trist v Commissioner for Fair Trading, NSW Office for Fair Trading [2006] NSWADT 303
DIVISION:	General Division
PARTIES:	APPLICANT Charles Steven Trist RESPONDENT Commissioner for Fair Trading, NSW Office of Fair Trading
FILE NUMBER:	063046
HEARING DATES:	09/06/2006
SUBMISSIONS CLOSED:	06/09/2006
EXTEMPORE DECISION DATE:	09/28/2006
DATE OF DECISION:	10/27/2006
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Home Builder - suspension of contractor licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Home Building Act 1989 Home Building Regulation 2004
CASES CITED:	Tomoski Developments Pty Ltd v Commissioner for Fair Trading [2005] NSWADT 263
REPRESENTATION:	I Williams, Solicitor W Maynard, Legal Officer
ORDERS:	The decision of the Commissioner for Fair Trading to refuse Mr Trist’s licence application is affirmed.

Decision

1 Mr Trist has been involved with the building construction industry since January 1987. He holds a Contractor Licence under the Home Building Act 1989 (“the Act") in the categories of 'Plumber', 'Drainer', 'Gasfitter' and 'LP Gasfitter'. In July 2005 he applied to the Office of Fair Trading for a variation to his existing licence, to that of a Contractor Licence in the category permitting building work. A delegate of the Commissioner refused to grant the licence on the grounds that the information that Mr Trist supplied to support his application did not provide sufficient evidence to verify the required experience.

2 An internal review confirmed the original decision to refuse the application. Mr Trist has applied to this Tribunal for an external review of the decision.

The Issues to be determined

3 The issues to be determined are:

(a) whether Mr Trist holds an "acceptable qualification" for the issue of a builders licence; and

(b) if not, whether Mr Trist holds other relevant or/acceptable qualifications in the building industry and can show 10 years overall building experience.

4 If either question can be answered affirmatively, Mr Trist meets the requirements for the issue of a builder contractor licence. It is common ground that Mr Trist successfully completed Certificate IV Contractor's Management Program.

Applicable Legislation

5 In NSW the residential building industry is regulated by the Act and the Home Building Regulation 2004 (“the Regulations"). Residential work is defined in Section 3 of the Act to mean any work involved in, or involved in co-ordinating or supervising any work involved in the construction of a dwelling; the making of alterations or additions to a dwelling; and repairing, renovation, decoration or protective treatment of a dwelling. Several other provisions are relevant to Mr Trist’s application.

6 Section 19(1) of the Act provides that the Commissioner may grant contractor licences for the purposes of the Act. Section 20(2) 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.

7 The standards and other requirements determined by the Commissioner in regard to the qualification, examination/test/assessment and experience requirements for an endorsed licence or supervisor certificate to do, or to supervise, residential building work are as described in the Office of Fair Trading's publication entitled 'Residential Building and Building Trade Work; Qualifications -Contractor Licence (Q) / Qualified Supervisor Certificate' (“Form L20”). Form L20 lists a number of acceptable qualifications and periods of types of experience for the building category of licence sought by an applicant.

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. 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 Administrative Decisions Tribunal in an application for review made under this or any other Act.

9 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.

10 Clause 26(1)(b)(i) of the Regulations 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).

11 Clause 28(1)(a) of the Regulations 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.

12 Clause 28(1)(b) of the Regulations 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.

Mr Trist’s Case

13 Mr Trist asserts that he has met the requirements for the licence he seeks. He submits that the Form L20 standards are the Commissioner’s standards and therefore the Commissioner should be held strictly to the terminology contained in them.

14 Form L20 requires that an applicant have one of the acceptable qualifications plus a minimum of two years acceptable practical experience. He referred to the lists of acceptable qualifications contained in Form L20 and contends that he possesses qualifications which are equivalent to those listed. He points to a combination of factors which he says satisfy that standard. These include his completion of the Certificate IV Contractor's Management Program; his licence for plumbing and gasfitting which he has held since 1987 (except for a period of about 8 months in 2002); and his industry experience since January 1987.

15 Alternatively, Mr Trist asserts that he has completed the Certificate IV Contractor's Management Program and has ten years relevant and varied acceptable practical experience. He points to advice from the former Department of Fair Trading which stated that applicants who complete Certificate IV Contractor's Management Program through Back to Basics Training Pty Ltd would satisfy the experience and qualification requirements for a builder's licence if they can demonstrate a minimum of 10 years relevant and varied acceptable construction experience.

16 Form L20 lists 16 acceptable qualifications. The last of those qualification namely is expressed as "Qualifications which in the opinion of the Department are equivalent to those listed above". He compares his circumstances to those addressed by the acceptable qualification expressed as “Certificate IV in Contractors Management Program through Back to Basics Business Training Pty Ltd PLUS either Carpentry & Joinery Trade Course or Bricklaying Trade Course NSW Technical & Further Education (TAFE) Commission”. A person who has met this qualification would be eligible for a builders licence. Mr Trist asserts that his qualifications and experience are at least equal to those.

17 He also refers to a letter of March 2003 from the OIC of the Licence Processing unit of the former Department of Fair Trading’s Office of Home Building. In relation to an earlier application that Mr Trist had lodged, he was told

“Should you successfully complete a recognised building qualification such as “Certificate IV in Building Studies – Residential (Course 1261) through the NSW TAFE Commission or full completion of ‘Certificate IV in Contractors Management’ through Back to Basics Business Training/ NSW Master Builders Association, the Department would give more favourable consideration to a subsequent application for ‘building’ category work.”

18 If the Tribunal does not agree with this submission the remaining issue is whether Mr Trist can show ten years relevant experience. Form L20 sets out the requirements of statements to be furnished in support of such experience in the following terms:

“Evidence of Practical Experience

A minimum of two statements verifying an applicant's practical experience should be submitted with the application. The statements MUST:

· Be completed by a person such as a holder of a Qualified Supervisor Certificate or Individual Contractor Licence (Q), building surveyor, building inspector, architect or relevant engineer who knows of the applicant's work history.

· Provide a detailed description of the types of work performed by the applicant; and

· Indicate the dates over which the applicant performed the work.”

19 Mr Trist submits that he has demonstrated the requisite experience. He provided a Statutory Declaration in which he outlined his experience as follows:

“9. I have carried out or supervised a wide range of building construction work including the following recent projects:

(a) 1998 to 2000 18 Livingstone Ave Botany. This is my own home and the work involved demolition of the existing house and construction of new two storey residential home.

(b) 126 Sutherland Street Mascot as owner building which included alterations and additions, new fencing and retaining walls to this residential property;

(c) 1998 to 2000 Major renovation to 12 Rancom Street Botany which included new bathroom, new kitchen gyprock, brickwork repair, new doors & frames & skirting boards, new roof, repair dry rot damage, window installation, repair rising damp, water proofing & plumbing.

(d) 2002 Renovations to a house at 10 Wentworth Ave Mascot including new kitchen, laundry, new bathroom, polished floor boards and window installation.

(e) 2003 at 1431 and 1433 Botany Road Botany which are commercial premises complete commercial fit outs plus tiling, carpentry, joinery, brickwork walls, plumbing and painting.

(f) 2003-2004 at 90 Wilson St Botany renovation new kitchen, new bathroom & laundry, rep roofing, white ant repair work, tiling, carpentry, landscaping and plumbing.

(g) 2004-2005 at 126 Sutherland Street Mascot build a garage including excavation, steel fixing, concrete placement and brickwork (over 4000 bricks).

(h) 2005-to present date at 1431-1433 Botany Road Botany currently working on a major alteration and addition by adding a 3rd storey to a mixed residential and commercial development starting with 3 years of dealing with authorities then set out, excavation of foundations, forming foundations, fixing of steel work, placement of concrete, over 50,000 bricks, suspended slabs, window fitting, carpentry, roofing, tiling & the plumbing, gyprock.

10. These projects were carried out while still efficiently operating my own plumbing business. I have almost 25 years experience in the building industry working 6 days a week. Part of these achievements can be attributed to my knowledge, skills and experience working in the building construction industry and my willingness confidently apply that knowledge and those skills.”

20 He provided a number of statements in regard to his practical experience, which he says, support that assertion. He summarised his experience as follows:

No. Period Name Trade Category Years

1. March 1982 to Brian Connor Plumber 7 years
December 1989

2. 1989 to 1993 Shane Tatham Plumber 4 years

3. 1992 to 2006 Craig Kennedy Builder 14 years

4. 1994 to 2006 Craig Stephen Player Builder 11 years

5. March 1998 to Christopher Boniface Builder 2 years

March 2000
6. 2001 to 2006 Anthony Azzopardi Carpenter/ Joiner 5 years

7. July 2003 to Phillip Merrick Builder 1 year
June 2004

8. 2001 to 2006 Dirk Nguyen Engineer 5 years

21 Mr Trist also provided client references from Ms Julianne Vincent and Ms M. Calleja. Both references refer to plumbing work that Mr Trist had carried out. He provided a letter from Peter Wyatt, his accountant, certifying that Mr Trist had been a client for twenty years and was engaged in the building trade for all of that time.

22 Mr Trist also submits that experience he gained as an owner/builder is not excluded from the Form L20 standards and should have been taken into account when determining whether he has sufficient relevant experience. He also contends that references from Brian Connor, Shane Tatham and Anthony Azzopardi should be taken into account, as they are statements from holders of an "Individual Contractor Licence" as referred to in Form L20. Mr Trist also submits that references from Craig Player, Craig Kennedy, Phillip Merrick, and Christopher Boniface should be taken into account. He says that the limited amount of detail provided in the references reflects the limited space available in the reference form.

23 He argues that the Commissioner wrongly concluded that he had not submitted acceptable references that demonstrate that he had a minimum of ten years acceptable experience in carrying out or supervising a wide range of building construction work. Accordingly, he says, the decision under review is not the correct and preferable decision and should be set aside.

The Commissioner’s Case

24 The Commissioner concedes that Mr Trist completed the Certificate IV Contractor's Management Program but asserts that he has not provided evidence of holding one of the listed acceptable building qualifications or combinations of qualifications that are equivalent to an acceptable building qualification. The Commissioner contends that plumbing qualifications are less significant than those of Carpentry & Joinery or Bricklaying. If it had been intended that plumbing qualifications would satisfy the requirements a provision to that effect would have been included.

25 The Commissioner argues that Mr Trist must provide adequate references in conjunction with his employment history that demonstrates his experience over the time period required. Further, the references must provide the starting and finishing dates of each project that the referee is verifying along with details of the description of the work carried out separately for each project that the referee is verifying.

26 The Commissioner concedes that Mr Trist was issued with an Owner-Builder Permit to allow him to carry out residential building work at 126 Sutherland Street, Mascot. As an Owner-Builder Mr Trist was authorised to manage his own residential building project and perform the co-ordinating roles usually undertaken by an endorsed licensed builder and to be the supervisor on the site. There is no requirement for an owner builder to hold an acceptable building qualification as listed on Form L20 or to provide evidence of practical experience in building. The Commissioner argues that the building experience that Mr Trist gained as an owner-builder is not acceptable building experience as he cannot verify his own practical experience, and no other referee can be considered Mr Trist was the supervisor on site.

27 The Commissioner argues that the references from Brian O'Connor, Shane Raymond Tatham and Anthony Azzopardi are not acceptable to verify building work as the referees are not licensed builders. Further, the Commissioner argues that the reference from Craig Player is not acceptable to verify building work as he is only verifying Mr Trist's plumbing work. The reference from Craig Kennedy is not acceptable to verify building work as he is only verifying Mr Trist's plumbing work or work carried out as an owner builder. Similarly, the reference from Christopher Boniface is only verifying Mr Trist's work carried out as an owner builder.

28 The Commissioner argues that the reference from Phillip Merrick is not acceptable to verify building work, as it is only one job for an extensive fit out to a commercial building. The reference does not demonstrate Mr Trist's experience in different stages of construction of a new building.

29 The Commissioner submits that Mr Trist has not provided any evidence of acceptable practical building construction experience and has not submitted acceptable references that demonstrate that he has had a minimum of ten years acceptable experience in carrying out or supervising a wide range of building construction works. Accordingly, the Commissioner argues that the correct and preferable decision is to refuse Mr Trist an endorsed Contractor Licence in the category of 'Builder' and the decision should be affirmed.

Findings

30 I have considered the evidence and submissions filed on behalf of each of the parties. In my view, Mr Trist has not provided evidence that supports his contention that he has qualification equivalent to those listed in Form L20. I do not consider that his 'Plumber', 'Drainer', 'Gasfitter' and 'LP Gasfitter' trade qualifications are equivalent to those in either Carpentry & Joinery or Bricklaying, which are both practical building construction trades. I agree that if it had been intended that plumbing qualifications would satisfy the requirements in Form L20 a provision to that effect would have been included. The absence of such a provision supports my view that plumbing qualifications are not considered to be equivalent to those that have been included. Mr Trist does not contend that he possesses any of the other listed qualifications.

31 The first issue for determination, whether Mr Trist holds an "acceptable qualification" for the issue of a builders licence, must be answered negatively.

32 I agree with the submission that because he has successfully completed Certificate IV Contractor's Management Program, Mr Trist will be entitled to the licence he seeks if he can show 10 years acceptable building experience. Therefore, I must determine whether the evidence supports that finding.

33 I do not agree with the Commissioner’s view that a reference is not acceptable merely because the referee is not a builder. Form L20 states that the evidence of practical experience must be in a statement by a person ‘such as a holder of a Qualified Supervisor Certificate or Individual Contractor Licence (Q), building surveyor, building inspector, architect or relevant engineer who knows of the applicant's work history’. Clearly, a referee from any of those categories could provide the evidence.

34 I also disagree with the Commissioner’s view that building experience gained as an owner-builder could not be acceptable building experience. I agree that Mr Trist cannot verify his own practical experience, however it may have been possible to obtain a reference from an appropriate referee such as an architect.

35 In the circumstances of this matter it is my view that the description of the types of work that Mr Trist performed and the dates over which he performed the work are more significant factors than the categories into which the authorised referees who provide the evidence fall. Form L20 anticipates that an applicant will have acceptable practical experience carrying out or supervising a wide range of building construction works. It also anticipates that the references will provide a ‘detailed description’ of the types of work performed. This is essential if the Commissioner is to be able to carry out a proper assessment of the experience. Evidence of plumbing experience is relevant but will only be one component of the wide range of experience that is needed.

36 It is no answer to the Commissioner’s assertion that insufficient detail has been provided to merely point to the layout of the form on which the references are provided. The form only allows a small amount of space to complete the details required, however it clearly states

“If space is insufficient simply attach extra information on a separate sheet signed and dated by the referee.”

37 I have reviewed each of the references that have been provided on behalf of Mr Trist. While I am of the view that it is possible that Mr Trist may be able to establish ten years of acceptable experience, it is not possible to determine that to be the case from the references as they are presented. There is insufficient detail provided to be able to conclude that he has experience in carrying out or supervising a wide range of building construction works or the dates during which he obtained that experience. In this regard I agree with the Commissioner’s assessment of the references.

38 In exercising the discretion to grant licences, it is relevant to have regard to the objectives of the Act. In Tomoski Developments Pty Ltd v Commissioner for Fair Trading [2005] NSWADT 263 Judicial Member Molony stated at paragraphs [14] – [15]:

" The Home Building Act 1989 is essentially a consumer protection Act which regulates residential building work in NSW. It provides for the licensing and regulation of those engaging in residential building work, and makes provision as to their competence, fitness and solvency, and for their discipline

… By issuing contractor licences and certificates the Commissioner represents to members of the public that the contractor meets the fitness, competency and solvency requirements of the Act and is authorised to do the work specified in his or her licence".

39 A licence should not be granted in circumstances where it is not possible to attest that the applicant is considered to have sufficient aptitude to perform the tasks authorised by the licence. A decision maker can only make such an attestation when sufficient evidence is provided to support it.

40 In my view Mr Trist has not demonstrated that he has met the practical experience requirements for the licence he seeks. Accordingly, he should not be granted the licence. I note however that this may not be a situation where he lacks the experience but merely one in which he has not demonstrated that he has it. Nevertheless, it is my view that the Commissioner has made the correct and preferable decision on the available evidence and so the decision under review should be affirmed.

Order

1. The decision of the Commissioner for Fair Trading to refuse Mr Trist’s licence application is affirmed.