White v Department of Fair Trading

[2018] NSWCATAD 231

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	White v Department of Fair Trading [2018] NSWCATAD 231
Hearing dates:	14 March 2018
Date of orders:	05 October 2018
Decision date:	05 October 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	T Simon, Senior Member
Decision:	The decision under review is affirmed
Catchwords:	HOME BUILDING ACT – application for a contractor licence in the category building – standards issues under clause 28(1) - requirement to demonstrate practical experience – “gained as an employee of or a person otherwise lawfully engaged by, the holder of a contractor licence” – evidence of referees
Legislation Cited:	Home Building Act 1989
Cases Cited:	Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 Locking v Department of Finance and Services [2013] NSWADT 239 Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108
Category:	Principal judgment
Parties:	Timothy Graham White (applicant) Department of Fair Trading (Respondent)
Representation:	Solicitor: Mr P Adams (Applicant) Mr A El-Roubaei (Respondent
File Number(s):	2017/00340409
Publication restriction:	Nil

Reasons for Decision

1. The applicant in this case is seeking review of the respondent's decision to refuse to vary his contractor licence issued under the Home Building Act 1989 (the Act), from the category of "Carpentry" to the category of "General Building Work". The refusal was on the basis that the applicant did not have the width of experience necessary to hold such a licence under the Act. No issue has been raised in relation to the applicant's formal qualifications.

Background

2. The applicant lodged the application to vary his license on 17 July 2017. On initial assessment it was found that the applicant satisfied the qualification requirements but that he had not demonstrated two years of industry experience in a wide range of building construction work. The application was refused on 14 August 2017.

3. On 11 September 2017, the applicant submitted a request for an internal review of the refusal and made further submissions and provided further referee statements from Gregory Fredrick Blackham and Paul Allan Martin.

4. On 1 November 2017, the original decision to refuse the application was affirmed.

Consideration

5. Section 19(1) of the Act specifies that the Secretary may grant contractor licences for the purposes of the Act.

6. Section 20(a1) of the Act provides that the Secretary (the Commissioner for Fair Trading) must refuse an application for a contractor licence if the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33C of the Act.

7. Section 330(1)(b) of the Act provides that a supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant 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.

8. The Secretary has set out what is considered the appropriate kind and period of experience to enable an applicant to carry out and supervise the relevant work, in a document headed, "Instrument-Qualification requirements for an endorsed contractor licence or supervisor certificate for general building work". The relevant instrument is dated 31 March 2017 and was provided by the applicant.

9. The respondent submits that all applications for the same category of licence or certificate are assessed against the relevant Instrument. The respondent acknowledged that the Instrument is not binding on the Tribunal. However, the respondent submits that the requirements set out in the Instrument are appropriate and sound and ought to be followed by the Tribunal in determining the correct and preferable decision.

10. The instrument provides that, an applicant must demonstrate a minimum of two years' relevant industry experience in a wide-range of residential building work, where a majority of that experience was obtained within ten years of the date on which the application was made.

11. Mr White has prepared a spread sheet of jobsites for works he has carried out and experience he has gained. Mr White submits that he has worked in the building industry since leaving school in 2001. This experience has been gained in Australia except for two years when the applicant was in England. Given that he has been a licensed carpenter, much of the experience has been gained in carpentry.

12. The applicant has set out his work history in his affidavit. The applicant worked as an employee of various companies up until 2006, and as sub-contractor in his own name until 2015. From 2015, he has worked for his own company, a Corporation, Hi Spec Constructions Ply Ltd.

13. A significant part of the breadth of experience claimed is from Lianda Constructions Pty Ltd. Mr White worked for them over a period of 492 days. Mr White relies on a referee, David Murray Sinclair in relation to his work and experience during that time. Mr Sinclair was not required for cross-examination at the hearing. Fair Trading determined Mr Sinclair was “not an acceptable individual to verify construction experience" on the basis that Mr Sinclair was a licensed carpenter which is contrary to the policy document and the referee form. Mr White submits that Mr Sinclair worked with Mr White and was his supervisor. The nominated licenced building supervisor of the Corporation at the relevant time when Mr White worked with the Corporation was Mr Knox. He was also a director of the Corporation. The applicant submits that Mr Knox would not provide him with a reference due to ill feelings resulting from Mr White leaving employment. Mr White submits that if the experience it Lianda Constructions Pty Ltd had been taken into account, the work was wide ranging and spanned over the period from 6 December 2011 to 12 April 2013. The work included renovations and construction of new townhouses and new units. Some of the work was carried out in hospitals, schools and universities being a residential type building work.

14. Having considered the evidence on this point the Tribunal is not satisfied that Mr Sinclair is an acceptable individual to verify the building experience. On the form for a referees statement it clearly states:

“When applying for a licence (Q) or a certificate for the category of Builder, it must be accompanied by supporting statements from the applicants building work supervisor verifying the applicant’s experience in carrying out the work in accordance with the relevant standards and codes.

15. While Mr Sinclair is a licenced carpenter and he may even be able to verify the building works which the applicant undertook during his employment, as a carpenter he cannot verify that works other than carpentry which Mr White carried out, were in accordance with the relevant standards and codes. The Tribunal finds that Mr Sinclair’s was not an acceptable individual to verify Mr White’s experience.

16. In Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108, the Tribunal found at (39):

"The Tribunal is required to give effect to "Government policy", except in certain circumstances, the term "Government policy" being defined to mean a policy adopted by the Cabinet, a Minister or the Premier (Administrative Decisions Review Act, s 64(1) and (5)). There is no evidence that the Instrument has been adopted by the Cabinet, a Minister or the Premier. It purports to have been made by the respondent and I accept that that is the case. The Tribunal "may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case" (Administrative Decisions Review Act, s 64(4))."

17. The Tribunal is not satisfied that the policy for a referee to be able to verify building experience in accordance with the relevant codes and standards is contrary to law or the policy or produces an unjust decision in the circumstances of this case.

18. The requirement for referees ensures that those who are licensed meet the fitness, competency and solvency requirements of the Act. The Tribunal is satisfied that the policy is consistent with the purposes of the Act as set out in Thukral v Commissioner of Fair Trading [2006] NSWADT 356 at para 6.

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: s.21(1)(a).

19. Mr White has also relied on a statement of Gregory Blackham. Mr Blackham confirms 78 days of relevant work experience on behalf of the applicant. A referee statement has also been provided from Mr Paul Martin for the period of employment from 20 April 2013 to 23 November 2014.

20. Mr Degnehardt prepared the initial draft review of Mr White’s application. He was cross-examined at the hearing. He suggests that searches in relation to some of the sites that the applicant has claimed under supervisions of Mr Martin and Mr Blackham do not reveal DA approval or Home Warranty Insurance being issued for the work. The applicant refers to some works being excluded from those requirements under the Act by virtue of s76 of the Act. The Tribunal is not satisfied that simply because Mr Degenhardt’s searches have not revealed DA approvals or Home Warranty Insurance that does not mean the works were not undertaken. However, the Tribunal does accept that works not requiring those items, in particular Home Warranty Insurance are ordinarily works of a more minor nature or works relating to work funded through the Department of Ageing, Disability and Home Care Program through the Home Modification and Maintenance Program (see s 76 of the Act).

21. The applicant's claimed experience is summarised in a spread sheet found at pages 211 - 212 of the applicant's bundle of documents provided on 20 February 2018.

22. The respondent has numbered every row on the applicant's spread sheet and attached it to their submissions filed on 2 March 2018 and marked them "A".

23. The respondent has also prepared a spread sheet, responding to each period of experience claimed by the applicant with a description of the respondent's position and marked attachment "B". Rows of the same colour relate to work for which the same referee has provided a reference. Rows not coloured relate to work for which no reference has been provided. (At hearing the Tribunal highlighted the relevant colours).

24. The majority of experience claimed by the applicant falls within the trade of carpentry, for which he already holds a licence. Many of the applicant’s stated experience in other areas are short in duration. Some of the broader building work is claimed under the supervision of David Sinclair who the Tribunal has already found is unable to be an appropriate referee as he only holds a carpentry licence. Some of the work such as the external cladding, hoarding and site preparation is only verified by the applicant himself. In Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128, at [38] it was found that “an applicant alone cannot verify their own experience.”

25. In a similar case of Locking v Department of Finance and Services [2013] NSWADT 239, the Tribunal also dealt with an applicant seeking a general building licence who already held a licence in the class of "Carpentry". The Tribunal stated at para 17 -19

…experience in carpentry and joinery work is not the equivalent of "a wide range of building construction work" as required by the Instrument. Carpentry and joinery work is a sub-category of building. It is only one aspect of the work required to be done in order to complete the construction of a residential dwelling.

A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling. Additionally a builder must be able to determine that all trades have complied with all standards and requirements. There are many gaps in Mr Locking's trade supervisory experience and therefore his understanding of certain trades. Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing.

A building contractor is also able to contract with the public, and must therefore be able to negotiate a contract, quote for a project and co-ordinate the trades to be able to complete the project on time and within budget. He or she must also be able to negotiate and discuss the jobs with council and private certifiers to ensure that the work is passed fit when appropriate.

26. The grant of a licence in general building work communicates to the public that the person is able to supervise all trades required to complete any type of dwelling, and that they can comply with all standards and requirements. Schedule 4 of the Home Building Regulation 2014 provides a description of the work authorised under various categories of licence. A licence in the category of general building work would authorise a holder to contract for and undertake any work that falls within the definition of "residential building work".

27. Having considered the evidence the Tribunal agrees that the applicant has not demonstrated sufficient experience in a wide-range of building construction work to justify granting him a licence in the category of General Building Work. In cross examination Mr White stated that he had liaised with clients, and has done excavation works and roof repairs. However, the spread sheets reveal that the applicant’s main experience has been in carpentry and he has not demonstrated sufficient experience in bricklaying, decorating, dry plastering, excavating, general concreting, glazing, joinery, metal fabrication, painting, roof plumbing, roof slating, roof tiling, structural landscaping, swimming pool building, or stonemasonry. Any experience he has demonstrated in relation to those categories has been very short in duration.

28. Accordingly, the Tribunal finds that the respondent was correct in refusing the applicant's application for a contractor licence in the category of General Building Work and the respondent's decision to refuse the application is affirmed.

Orders

1. The decision under review is affirmed.

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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: 05 October 2018