Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kaltoum v Commissioner for Fair Trading [2022] NSWCATOD 138 Hearing dates: 23 September 2022 Date of orders: 03 November 2022 Decision date: 03 November 2022 Jurisdiction: Occupational Division Before: S E Frost, Senior Member Decision: The decision under review is affirmed. Catchwords: OCCUPATIONAL LICENSING – building practitioner – whether Applicant has the qualifications, skills, knowledge and experience to carry out the work for which the Applicant is seeking registration Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Design and Building Practitioners Act 2020 (NSW) Design and Building Practitioners Regulation 2021 (NSW) Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: Damian Kaltoum (Applicant) Commissioner for Fair Trading (Respondent) Representation: Applicant (self-represented) Department of Customer Service (Respondent) File Number(s): 2022/00155704 Publication restriction: Nil REASONS FOR DECISION Introduction 1. Damian Kaltoum is 28 years old and has worked in the construction industry for much of the time since he left school. 2. In March 2022 Mr Kaltoum applied to Fair Trading to become a registered practitioner under the Design and Building Practitioners Act 2020 (NSW) (the DBP Act). The category of practitioner for which he sought registration is 'building practitioner – body corporate nominee'. His application was unsuccessful. 3. Mr Kaltoum applied for an internal review of the registration refusal decision but the internal review confirmed the initial decision. He has now applied to this Tribunal for an administrative review of the decision to refuse him registration. The Tribunal's jurisdiction 1. The application for administrative review is brought under s 63 of the DBP Act. The administrative review of Fair Trading's decision is to be conducted under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). 2. Section 63 of the ADR Act provides that in determining the application, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it (subsection (1)); and for the purpose of conducting the review, the Tribunal may exercise all of the functions that are conferred or imposed by the relevant legislation on the Commissioner for Fair Trading (subsection (2)). Relevant legislation 1. The regulatory framework is set out in the DBP Act and the Design and Building Practitioners Regulation 2021 (NSW) (the Regulation). 2. When a person applies under s 43 of the DBP Act for registration as a practitioner, the Secretary (for practical purposes, the Commissioner for Fair Trading, the Respondent in this application) may grant or refuse the application. 3. Under s 45(3), the Secretary must refuse to register the person if, by paragraph (b), 'the Secretary is of the opinion that the applicant does not have the qualifications, skills, knowledge and experience to carry out the work for which the applicant is seeking registration'. This is the provision relied upon by the Respondent in refusing the application. 4. The reference in s 45(3)(b) to 'qualifications, skills, knowledge and experience' points to the provisions of Schedule 2 to the Regulation. This is where the 'minimum qualifications, experience, knowledge and skills' required for registration as a building practitioner are set out. Specifically in relation to registration as a 'building practitioner – body corporate nominee', cl 24 in Schedule 2 specifies the minimum requirements for registration in that class, as follows: 1. Qualifications – Must be a holder of a supervisor certificate authorising the holder to do general building work under the Home Building Act 1989 (the HB Act). 2. Experience – Must have 5 years recent relevant practical experience. 3. Knowledge – Must know and understand the following— 1. the [DBP Act] and the Regulation, 2. the Environmental Planning and Assessment Act 1979, including regulations made under that Act, to the extent that the legislation is relevant to this class of registration, 3. the Building Code of Australia, Volumes 1 and 2, including documents adopted by reference in the Building Code of Australia, 4. building design and construction, including methods, materials and planning. 1. Skills – Must be able to interpret, apply and assess compliance with the relevant requirements of the Building Code of Australia. 1. The words 'recent' and 'relevant', both referred to in subcl (2) above, are defined in cl 1 in Schedule 2 as follows: recent, in relation to a requirement for a person to have 5 years practical experience, means 5 years, or equivalent part-time, experience within the last 10 years, including at least 2 years practical experience relating to work carried out in Australia by the person. relevant, in relation to the practical experience requirement for a particular class of registration, means the following— … (c) for a building practitioner—the carrying out of building work involving a class 2, 3, 9a or 9c building, … 1. Building work means work involved in, or involved in coordinating or supervising work involved in, the construction of a class 2 building (such as a multi-storey, multi-unit apartment building or a mix-use building including shops and apartments), the making of alterations or additions to a class 2 building, or the repair, renovation or protective treatment of a class 2 building: DBP Act, s 4(1); Regulation, cl 12. Mr Kaltoum's application 1. Mr Kaltoum claims to have satisfied all the requirements for registration. 2. He has a supervisor certificate in the category of general building under the HB Act, issued on 8 March 2021. That satisfies the Qualifications limb. 3. In relation to the Experience limb he has provided information about several projects he has been involved in over the period from February 2016 up until the time he lodged his application in March 2022. He supported his application with reference letters from previous supervisors, Maroun Sukkar and George Khouri. 4. As for knowledge and skills, Mr Kaltoum relies on the fact that he completed a Certificate IV and Diploma in Building and Construction in 2020, and also on the letters from Mr Sukkar and Mr Khouri. He has also provided Certificates of completion in the online courses Navigating the Design and Building Practitioners (DBP) legislation and The value of Australian Standards. Each Certificate of completion, issued in the name of the NSW Building Commissioner, states it is equal to two hours of learning. The Respondent's position 1. The Respondent accepts that Mr Kaltoum satisfies the Qualifications limb but maintains that he has not provided sufficient evidence of his experience, knowledge and skills to support his registration. 2. Initially the Respondent formed the view that Mr Kaltoum could not possibly have gained sufficient 'recent relevant practical experience' (5 years in the last 10) by the time he applied for registration in March 2022 since he had only held a supervisor certificate under the HB Act since March 2021. The Respondent's written submissions to the Tribunal do not put the position quite as starkly as that but they question whether, because of that timeframe, Mr Kaltoum can demonstrate sufficient unsupervised experience across all stages of building construction. 3. The Respondent also points to apparent inconsistencies in the dates specified by Mr Kaltoum as the periods during which he worked on the nominated projects, and also to the fact that two of the 'reference letters' he wants to rely on are unsigned. 4. Furthermore, the Respondent submits that even the signed references are unspecific, do not include any detail about the terms under which Mr Kaltoum was employed, the duties he was required to perform, or what activities he was present for and which he might reasonably be regarded as having supervised. 5. The Respondent notes the significant responsibilities of a person registered as a building practitioner. For example, cl 27 in Schedule 1 to the Regulation specifies that a person registered as a 'building practitioner – body corporate nominee' is authorised, but only on behalf of a registered 'building practitioner – body corporate', to (a) make a building compliance declaration for building work, and (b) prepare and provide documents that are required to be prepared and provided by a building practitioner under the DBP Act and the Regulation. 6. A building compliance declaration is a declaration as to matters including the following (DBP Act, s 8(3)): * whether or not the building work complies with the requirements of the Building Code of Australia; * whether or not the building work complies with other applicable requirements prescribed by the regulations; and * if the building work does not comply with those requirements, the steps required to be taken to ensure compliance. 1. The Respondent submits that the significance of these responsibilities, and others, underscores the need for a decision-maker to form a positive opinion about an applicant's experience, knowledge and skills and to approve registration only when an applicant has demonstrated the requirements have been met. Consideration 1. I share the Respondent's concern about the adequacy of the case Mr Kaltoum has mounted in support of his application for registration. 2. Having said that, I do not agree with the Respondent's initial view that a person's relevant experience can only be gained after the person is issued with a supervisor certificate under the HB Act. That is not what the Regulation says. It must always come down to matters such as the precise activities undertaken, the period during which they are performed, the level of knowledge or expertise demonstrated (or, in appropriate cases, assumed) for the competent performance of the activities, the extent to which the experience is 'practical' experience, and whether the activities answer the description 'building work involving a class 2, 3, 9a or 9c building'. The assessment cannot start and end with an examination of how long the applicant has held a supervisor certificate. 3. But the real problem in Mr Kaltoum's case is that the information he has provided is not compelling enough to support an opinion that he has the requisite level of experience, knowledge and skills. 4. Two of the 'reference letters' carry little weight since they are not signed by the persons who are said to have made them. They are also strikingly similar in content and layout, which makes it likely they were prepared for Mr Sukkar and Mr Khouri, rather than by them. I do not suggest there is anything improper about that, but it does not bolster their reliability when taken together with the fact they are not signed. 5. However, even assuming they represent the views of Mr Sukkar and Mr Khouri, they include bald statements either that Mr Kaltoum 'displayed extensive knowledge and understanding of' or that 'his responsibilities … include[d] understanding and applying', followed by a bullet point list of the matters set out in the Knowledge and Skills limbs in Schedule 2, cl 24 of the Regulation (but incorrectly referencing the HB Act instead of the DBP Act). Statements like that, without more, are unconvincing and unhelpful. Neither letter includes the (assumed) writer's qualification to make the statement in the first place, or any specificity as to the way in which, or the extent to which, Mr Kaltoum demonstrated the requisite knowledge and skills. They provide an unsteady foundation for a decision-maker's opinion concerning an applicant's knowledge and skills base. 6. Mr Kaltoum appears dedicated to his work in the construction industry and keen to contribute in a meaningful way to this important sector. With proper and more detailed documentation, especially from those who have had direct observation of his work, he may be able, either in the short term or at some stage in the future, to satisfy the regulator that his registration under the DBP Act is appropriate. However, on the basis of the information before me, the opinion I have formed is that he has not reached the minimum requirements for registration as a 'building practitioner – body corporate nominee'. Decision 1. The decision under review is affirmed. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 November 2022