Civil and Administrative Tribunal New South Wales Medium Neutral Citation: O'Loughlin v Commissioner for Fair Trading [2022] NSWCATOD 168 Hearing dates: 16 February 2022 Date of orders: 23 August 2022 Decision date: 23 August 2022 Jurisdiction: Occupational Division Before: K Mobbs, Senior Member Decision: The decision under review is affirmed Catchwords: ADMINISTRATIVE LAW – administrative review – licensing – endorsed contractor licence – restoration of authority – whether failure to renew due to inadvertence – whether just and equitable to allow restoration of authority – whether Applicant meets requirements for issue of licence – application of Instrument –qualifications Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Interpretation Act 1987 Licensing and Registration (Uniform Procedures) Act 2002 Property and Stock Agents Act 2002 Cases Cited: Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112 Cremer v Commissioner for Fair Trading [2022] NSWCATAD 19 (new citation [2022] NSWCATOD 173) King-Osborn v Commissioner of Fair Trading [2022] NSWCATOD 1 McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357 Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 Nyunt v North Shore Homes Pty Ltd [2020] NSWCATAP 143 Shi v Migration Agents Registration Authority [2008] HCA 31 Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 The Concept Developer Pty Ltd v Conroy [2015] VSC 464 Category: Principal judgment Parties: John Joseph O'Loughlin (Applicant) Commissioner for Fair Trading (Respondent) Representation: Solicitors: Applicant (Self-represented) Department of Customer Service (Respondent) File Number(s): 2021/00314281 Publication restriction: Nil REASONS FOR DECISION Introduction 1. On 29 June 2021, John Joseph O'Loughlin (the Applicant) submitted an application form (2021 application) for an individual endorsed contractor licence in the category of "general building work" to the Commissioner for Fair Trading (the Respondent). On 30 September 2021, the Respondent refused the application pursuant to s 33C(1)(b)(i) and s 33D(1)(a) of the Home Building Act 1989 (the HBA) on the basis that the application had been lodged more than eight years after the expiry date of the Applicant's previous contractor licence and he was unable to provide evidence that he satisfied the current qualifications requirements. 2. The Applicant sought internal review of the decision and on 19 October 2021 the original decision was affirmed with the Respondent declining to issue the licence. The Applicant subsequently applied to this Tribunal for review. Legislative Framework 1. Section 83B(1) of the HBA provides that an applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Secretary relating to the application may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (ADR Act). In Schedule 1 of the HBA, "authority" includes a contractor licence and "Secretary" means the Respondent. Accordingly, the Tribunal has jurisdiction to review the Respondent's decision under s 83B(1) of the HBA, s 9 of the ADR Act and s 30 of the Civil and Administrative Tribunal Act 2013. 2. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the respondent, and there is no presumption that the decision of the respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 [28]-[30], [34]. In an application for review the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. 3. The Tribunal stands in the shoes of the Secretary and has the same powers as the Secretary for the purposes of this review. Home Building Act 1. The Respondent is empowered to grant contractor licences pursuant to s 19 of the HBA, in accordance with Part 2 (other than s 10) of the Licensing and Registration (Uniform Procedures) Act 2002 (LRUP Act). Section 21 of the HBA authorises the holder of a contractor licence to contract to do certain residential building work and section 28(1) of the HBA authorises the holder of an endorsed contractor licence to do (and to supervise) the same residential building work, or specialist work, as it authorises its holder to contract to do. 2. Section 20(1)(a1) of the HBA provides that an application for a contractor licence must be refused if the Secretary is not satisfied as to the matters required by s 33B and S 33C of the HBA. Section 20(2) of the HBA was amended, with effect from 5 July 2021, to read: (2) The Secretary may, by notice published in the Gazette, specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a contractor licence. 1. From the same date, cl 159 was inserted into Sch 4 (Savings and Transitional Provisions) of the HBA as follows: 159 Qualifications and experience required by licence and certificate applicants (1) For the purposes of section 20(2), a notice published in the Gazette before the commencement of the amending Act, specifying the qualifications and experience required to be held by an applicant for a contractor licence, is taken to have been validly made and to be valid on and from the date the notice was published. 1. Section 33C(1)(b)(i) of the HBA requires that a contractor licence must not be issued unless the Secretary is 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, satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant". The 2021 application completed by the Applicant was for an endorsed contractor licence. 2. Section 33D(1) of the HBA provides: 33D Additional requirements for obtaining supervisor and tradesperson certificates (1) A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant— (a) 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, and (b) 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, and (c) is capable of doing or supervising work for which the certificate is required. The Instrument 1. Pursuant to s33D(1) of the HBA, the Respondent issued the 'Instrument – Qualification requirements for an endorsed contractor licence or supervisor certificate for general building work' on 31 March 2017 (the Instrument). The Instrument relevantly provides that the Commissioner determined that: 1. pursuant to s 33D(1)(a) of the Act, the possession of qualifications and the passing of examinations… necessary for an applicant for the issue of a Licence or Certificate to be as follows: (a) where the application is received by the Secretary on or after the date which this instrument is signed ("the Commencement Date"): (i) the possession of qualifications or the passing of examinations specified in Column 1 of Table A to Schedule 1. The evidence 1. The matter was heard by audio visual link. The Respondent did not call any oral evidence and relied on the s 58 documents (exhibit R1), a number of supplementary documents (exhibit R2) and the written submissions filed and served by the Respondent together with oral submissions. The Applicant tendered two emails (exhibits A1 and A2). He gave brief oral evidence and was cross examined by Ms Robosa, the solicitor for the Respondent. The Applicant made oral submissions. Applicant's licensing history 1. The Applicant held a qualified supervisor certificate Q12382 from 27 March 1984 to 25 March 2004. He held an endorsed contractor licence 73919C (licence 73919C) from 20 May 1996 to 20 May 2006, and from 23 May 2011 to 22 May 2013 in general building. 2. In August 2014, approximately 14 and a half months after the expiration of the Applicant's licence 73919C, the Applicant lodged a Contractor Licence Renewal Application (part of exhibit R2) that showed receipt of a payment of $1008 by him on 6 August 2014. 3. By letter dated 12 August 2014 from the Manager - Licensing, Home Building Service, NSW Fair Trading (part of exhibit R2), the Applicant was advised that licence 73919C had expired on 22 May 2013. It was noted that the HBA allowed for a licence to be restored if an application was made to Fair Trading within three months of the expiry date of the licence. As the Applicant's application was received outside of the allowable restoration period, the renewal of the authority was not approved. 4. The Applicant was advised that if he wished to carry out residential building work, "any application for a licence would need to be made in the form of a new application" and that this would be "subject to the licensing criteria in effect at the time the application is lodged". 5. The Applicant lodged his 2021 application on 29 June 2021. The issues 1. The Respondent submitted that the 2021 application is a fresh application for an individual endorsed contractor licence in the category of "general building work" and accordingly, s 33C(1)(b)(i) of the HBA applies. The Respondent conceded that the Applicant has satisfied the experience requirements but contended that he does not meet the qualification requirements under the Instrument. 2. In his evidence and oral submissions, the Applicant conceded that he does not hold any of the qualifications set out in the Instrument. The Applicant contended however that the 2021 application is not an application for the issue of a contractor licence but rather an application for the restoration of his licence 73919C. I will deal firstly with the issue of restoration. Restoration – 2021 Application Evidence 1. In the 2021 application, the Applicant has marked the box to indicate that he requires "Application to reapply for a previously held Licence/Certificate No 73919C". On 2 September 2021, the Respondent issued the Applicant with a notice under s 14(1) of the LRUP Act advising that as there had been less than 10 years, but more than 5 years since the Applicant's licence had expired, he met the experience requirements but also needed to meet the current qualification requirements to get a new licence. The Notice requested evidence of completion of one of the currently approved qualifications by 16 September 2021 and stated that if the required information was not provided the application may be refused. 2. There is a series of emails between the Applicant and NSW Fair Trading (part of exhibit R1), with the first of the emails before me (part exhibit R1) being dated 2 September 2021. In this first email, the Applicant advised that he was unable to supply the information required, as it had been "too long", and he did not have any of the requested documents. He indicated that this information would be in the archives of the Master Builders Association. In an email dated 10 September 2021, he noted that he had not renewed his licence in 2013 due to a medical issue at that time and that in the past five years, he had "developed a new building innovation for the home building industry". On 17 September 2021, NSW Fair Trading sent an email to the Applicant that since the Applicant had advised that he did not have a copy of his qualifications, the officer would look further into the matter and see if she could retrieve the documents submitted when his licence was issued in 1984. She wrote "I will advise you next week if I am able to retrieve the documents and if documents still meet the approved Qualification requirements". Following a further email exchange on 23 September 2021 the officer advised the Applicant that there might be some delay in progressing the matter due to the current circumstances and requirements of remote working. 3. The Applicant then sent a number of further emails to NSW Fair Trading, some of which were also copied to an officer from the NSW Ombudsman. On 25 September 2021, the Applicant sent an email to NSW Fair Trading that was copied to an officer from the NSW Ombudsman. The email noted that the Applicant had been a builder for 38 years and that he "went through the process at the time like all builders did then, and the inspectors approved [his] application for building work and [he] was issued" with his licence. On Tuesday, 28 September 2021, the Applicant sent an email addressed to an officer from the NSW Ombudsman and copied it to the officer from NSW Fair Trading. The email included the following: "Some points I need to clear up. 1. I did not apply for a contractors' licence. I applied to restore my builder's licence 73919C that I held for 38 years". 4. The Home Building Licensing Reassessment Sheet completed in relation to the Applicant by the officer from NSW Fair Trading (part of exhibit R1) noted that the Applicant's file from his licence re-application in 2011 had been retrieved. The file included a copy of the internal memorandum that had been approved by the Team Leader for the granting of the Applicant's licence at that time. The memorandum is dated 29 April 2011 and notes that the Applicant "has not completed any trade certificate or apprenticeship in carpentry and/or building. The qualified supervisor certificate Q12382 was issued to him in 1984 based on his experience". The recommendation, that was approved at that time, was that the Applicant be "issued with an individual contractor licence in building. Even though he does not hold any formal qualifications, he held a building licence for 22 years without complaints, breaches etc". 5. In the Refusal Notice sent to the Applicant by the Respondent on 30 September 2021 (part of exhibit R1), he was advised that his application for a contractor licence had been refused. The Notice referred to the retrieved documents showing that in 2011 "licence 73919C was granted based on [the Applicant's] experience and in line with the instrument. There was no evidence of completed Qualification, Applicant applied within 5 years of expiry of his previously held licence. (73919C expired on 20/05/2006, reapply granted on 23/05/2011)". The Refusal Notice went on to state: "Current application has been lodged 8 years after the expiry date of his Contractor licence (73919C expired on 22/05/2013, application lodged on 29 June 2021) and in line with the instrument, applicant must meet the current qualification requirements and submit evidence that they have completed one of the approved qualifications for General Building Work. As applicant is unable to provide evidence that they have obtained approved qualifications for the issue of a licence in the category of General Building, in accordance with the published instrument, the application is refused under the provisions of Section 33C(1)(b)(i) and Section 33D(1)(a) of the Home Building Act 1989…" 1. In response to the Refusal Notice, the Applicant sent an email to the Respondent on 30 September 2021, noting that he had emigrated to Australia in 1970 and that he had started his career at the age of 14 as an apprentice to a Master Builder in Ireland for a period of seven years. This gave him his qualification for emigration to Australia and he had been issued with a builder's licence in 1984. He noted that he had submitted his application to "restore" his licence on 29 June 2021 to Service NSW. The Applicant stated that he believed an unfair decision has been made and sought a review. 2. The Applicant provided further material in relation to the internal review, and this was taken into consideration by the review officer in the decision of 19 October 2021 to affirm the original decision. 3. The Statement of Reasons dated 19 October 2021 (part exhibit R1) makes reference to the 2021 application as being a 'new' application and also records that "throughout the application assessment, and in relation to the internal review, however, [the Applicant] repeatedly refers to the application as being for the restoration of his previously held licence, highlighted by the final comment of his internal review submission, 'I would like the Team at Fair Trading to reconsider my application and restore my licence". The Statement of Reasons sets out the provisions of s 39(1) of the HBA relating to the timeframes for applications for the restoration of an authority and s 39(2) that allows the Secretary a discretion to extend the period for restoration in certain circumstances. The internal reviewer considered whether the discretion should be applied but concluded that it was not appropriate to do so as the Applicant's failure to renew his licence was not due to inadvertence and it was not otherwise just and equitable to restore the licence particularly noting the duration since expiration. It was concluded that the Applicant did not meet the qualification requirements for the issuing of a new licence and the original decision was affirmed. 4. In the Grounds for Application for review by this Tribunal, the Applicant stated that he had submitted his application to restore his builder's licence and that his application was rejected. The Applicant's evidence was that in the period after 2013 he had invented building products, including the Mammoth Block, that help people who cannot afford a home to get into affordable housing and he also works with an indigenous not-for-profit organisation. The Applicant said that he required a licence to commercialise his inventions but also wanted to help the community. His evidence was that he was very capable and had a lot to offer. He wanted his licence to be restored not just for himself but to help others and to leave a legacy. Respondent's submissions on the issue of restoration 1. Ms Robosa, on behalf of the Respondent, submitted that the Applicant's claim that he was applying for the restoration of his licence was misconceived as he had previously been made aware that he could no longer lodge an application for the restoration of licence 73919C. As outlined previously, the Applicant had applied to restore his licence on 8 August 2014, approximately 14 and a half months after it had expired on 22 May 2013. This was refused as it was outside the allowable restoration period at that time. The Applicant was advised that if he wished to carry out residential building work, he would need to make a new application, and this would subject to the licensing criteria in effect at the time the application was lodged. The Applicant did not lodge a new application until 29 June 2021. 2. The Respondent referred to the 2021 application and submitted that it was a fresh application for an individual contractor licence (Q) in "general building work" and the form contained the following note: 3. "You will be reissued the same Licence/Certificate No. as your most recently expired Licence/Certificate No being reapplied for". It was submitted that it was the licence number that was reapplied for and that an application to retain the same number as an expired licence is not tantamount to an application for the restoration of the licence itself. 4. The Respondent submitted that the grant of a licence under a fresh application with the reissue of an old number does not amount to the restoration of a licence. Such new licence is in force commencing from the date of approval. On the other hand, s 39(5) of the HBA provides that a restored licence is taken to have been restored on and from the day on which the authority expired. The Respondent submitted that in this case, it is not just and not equitable to restore licence 73919C which expired in May 2013. Allowing its restoration would retrospectively permit the carrying out of residential building work done without a licence in force from more than eight years ago. Applicant's submissions 1. The Applicant made oral submissions that he had met all the requirements when he obtained his licence in 1984. He had not surrendered his licence but rather failed to renew it in May 2013 due to medical issues. He submitted that the 2021 application form was an application to restore his licence and not a new application. He understood that the policies had changed since 2013 and he could understand if he was a new builder applying for the first time, but he was not. He submitted that it was not fair that it applied to him and that it was effectively criticising the Master Builders Association and the Government at the time for issuing him with the qualifications in the first place and letting him emigrate to Australia on that basis. He submitted that there were many other builders in the industry who had been licenced under similar arrangements. He referred to his many years as a builder and that had no complaints or infringements and that it would not be fair if he was unable to continue in building as he is very capable and has a lot to offer. Relevant legislation 1. Section 19(3)(c) of the HBA as it was in force in August 2014 provided as follows: 19 Application to contractor licences of Licensing and Registration (Uniform Procedures) Act 2002 (1) The Director-General may grant contractor licences for the purposes of this Act. (2) Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 (the applied Act) applies to and in respect of a contractor licence, subject to the modifications and limitations prescribed by or under this Act. (3) For the purpose of applying Part 2 of the applied Act to a contractor licence: … (c) an application for restoration of a licence under section 10 of that Act may not be made more than 3 months after the date on which the licence expires, and ... 1. Section 39 of the HBA as currently in force provides: 39 Time period for restoration of authorities (1) An application for the restoration of an authority must be made— (a) within 3 months of the expiry of the authority, or (b) within the further period determined by the Secretary on the application of the person seeking the restoration of the authority. (2) Without limiting subsection (1) (b), the Secretary may extend the period within which an application for the restoration of an authority may be made if the Secretary is satisfied that— (a) in a case where the applicant failed to apply for renewal before the authority expired—the failure to apply for renewal of the authority before it expired was due to inadvertence, or (b) it is just and equitable to restore the authority. … (5) An authority restored at any time is taken to have been restored on and from the day on which the authority expired. (6) … Consideration 1. The current legislation relating to the timeframes for the restoration of authorities is different to the legislation that was in force at the time that the Applicant sought renewal of his licence in August 2014 and now allows for the restoration of an authority beyond three months from its expiry. I am satisfied that in lodging the 2021 application, the Applicant was seeking to have licence 73919C restored and that s 39 allows for the time period for applications for restoration of authorities to be extended if the Secretary is satisfied that the failure to apply for renewal before it expired was due to inadvertence or it is just and equitable to restore the authority. Inadvertence 1. I accept from the written material before me, and the evidence and submissions from the Applicant that he did not renew his licence in 2013 due to medical issues and that in that period, he went through a quadruple bypass, a knee replacement and an ankle reconstruction. In cross-examination by Ms Robosa, the Applicant said that had also had financial issues relating to the "GFC" and that he was not in a position to pay the licence fees. He said that after receiving the letter in 2014, he did not take it any further at that time as he was not a well man. 2. The Respondent submitted that s 39(2)(a) of the HBA does not apply as the Applicant's failure to apply for renewal of the authority before it expired could not be attributed to inadvertence. Whilst it may be expected that as a consequence of the Applicant's medical conditions, there was an element of inadvertence in his failure to renew licence 73919C, I find that there is insufficient evidence to satisfy me in this regard. Just and Equitable 1. In Cremer v Commissioner for Fair Trading [2022] NSWCATAD 19, Senior Member Gatland considered the phrase "just and equitable" in relation to the Property and Stock Agents Act 2002 as follows [42-45]: 42. The phrase "just and equitable" appears in the Property and Stock Agents Act, s 25A(2)(b). That phrase has been the subject of substantial judicial authority and is contained in statutes seeking to regulate fields as disparate as family law, corporations law, the law of succession and building cases before this Tribunal; Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52; Nyunt v North Shore Homes Pty Ltd [2020] NSWCATAP 143 at [70]; King-Osborn v Commissioner of Fair Trading [2022] NSWCATOD 1 at [78] – [79]. 43. Consideration of what is just and equitable is not simply an application of unguided discretion or subjective determination without regard to statutory context and principles. In Stanford v Stanford at [36] the plurality stated: The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. … 44. In a strata corporation case in Victoria, The Concept Developer Pty Ltd v Conroy [2015] VSC 464, John Dixon J at [50] after considering the authorities as to the meaning of "just and equitable" observed: I draw from the authorities that whether a lot liability is just and equitable is not to be determined in accordance with fixed rules. It is a question of fact to be resolved in all of the circumstances in a principled way. The relevant circumstances are revealed by the statutory purposes and text. 45. Hence, while consideration of whether it would be just and equitable in a particular case to extend the time in which a licence may be restored relies heavily on questions of particular facts, regard must also be had to principles and the statutory purpose and text." 1. I agree with that analysis in relation to the words "just and equitable" and that it is applicable to s 39(2)(b) of the HBA. 2. The statutory purpose of the HBA is to make provision concerning the residential building industry and certain specialist work. As submitted by the Respondent, the HBA seeks to maximise consumer protection and public confidence in the residential building industry and to increase skills and standards. In the matter before me, there is no issue that the Applicant was granted a qualified supervisor certificate in 1984 in the category of building and was also issued with an individual contractor licence in 1996 and that he met all of the requirements for the authorities at the time they were issued. Whilst the Applicant refers to having held a licence for 38 years, this appears to be a reference to the time since he first acquired his authority in 1984 and does not make allowance for those periods where he did not hold an authority. I accept that the Applicant held authorities for a total of 24 years with no complaints, insurance claims or orders against him. I accept that he did not renew his licence in 2013 due to medical issues. 3. However, I take into account that the Applicant's licence 73919C expired on 22 May 2013 and he did not seek restoration of his licence until August 2014. This was more than 14 months after the expiry of his licence and outside the three-month period allowable under s 19(3)(c) of the HBA as it was then in force. The letter dated 12 August 2014 was very clear that if the Applicant wished to carry out residential building work, any application for a licence would need to be in the form of a new application and would be subject to the licensing criteria in effect at the time the application was lodged. 4. At the time that the 2021 application was submitted on 29 June 2021, more than 8 years had elapsed since the expiration of the Applicant's previous licence 73919C. The effect of s 39(5) of the HBA is that if the Applicant's licence was to be restored, it would be taken to have been restored on and from 22 May 2013, even though the Applicant has not been carrying out residential building work or paying licence fees during that time and there have been changes to the licencing criteria. 5. Having regard to all of the above factors, and in particular the significant amount of time since the expiry of the Applicant's previous licence, I am not satisfied that it would be just and equitable to restore licence 73919C to the Applicant and accordingly I am not satisfied that it is appropriate to extend the period within which such an application may be made. New application for a licence 1. In light of my findings above, I now give consideration to the 2021 Application as a 'fresh' application for an endorsed contractor licence. The 2021 application was submitted on 29 June 2021 and the amendments to section 20(2) and the insertion of cl 159 into the HBA took effect from 5 July 2021. The Respondent submitted that the Tribunal was required to give effect to the amendments and that the Applicant must meet the qualification requirements set out in the Instrument. The Respondent also provided a copy of submissions on powers that had been lodged and served in a decision that was then pending before the Appeal Panel, Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112 and was subsequently determined on 13 April 2022. 2. In Kalkan, the central question raised by the appeal was whether in determining the application for administrative review, the Tribunal had erred by applying the provisions of the HBA as they stood at the date Mr Kalkan applied for a contractor licence (7 January 2021), that is, prior to the amendments introduced on 5 July 2021. 3. The Appeal Panel found that the Tribunal was required to apply the version of the HBA in force at the date of the Tribunal decision for the following reasons: 44. First, the relevant provisions of the ADR Act and the Home Building Act each use the present tense. Section 63(1) of the ADR Act provides that in determining an application for an administrative review of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it (emphasis added). 45. Similarly, the present tense is used in the relevant provisions of the Home Building Act. For example, 20(1) of the Home Building Act provides that the Secretary must refuse an application for a contractor licence if: the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence (s 20(1)(a)), the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by ss 33B and 33C (s 20(1)(a1)); the Secretary is not satisfied that any such requirement would be met were the contractor licence to be issued (s 20(2)(a)); the Secretary is not satisfied with the applicant's proposed arrangements for supervision of the work which the contractor licence will authorise the applicant to contract to do (s 20(2)(b))(emphasis added). 46. Second, there is nothing in Div 3 (Powers on administrative review) of Pt 3 (Role of the Tribunal) of the ADR Act in which s 63 is contained, or the ADR Act as a whole, to suggest that the expression "applicable written or unwritten law" should be read to mean "applicable written or unwritten law as at the date the administratively reviewable decision was made". 47. Finally, this is not a case where an applicant applying for administrative review of an administratively reviewable decision could be said to have an "accrued" right within the meaning of s 30(1)(c) of the Interpretation Act 1987 (NSW). Section 30(1)(c) of the Interpretation Act provides that the amendment of an Act does not affect any right, privilege, acquired or accrued under the Act. 1. I am satisfied that in order to have an endorsed contractor licence issued to him, the Applicant must meet the current qualification requirements. The Applicant conceded that he does not have any of the qualifications set out in the Instrument and relied on the same experience that was taken into account for the issue of his previous authorities together with his time as a builder. The Respondent does not dispute that the Applicant meets the experience requirement. The Instrument contains transitional arrangements that include a provision that applicants who held a current licence without restrictions or conditions immediately before 31 March 2017 do not require any other qualifications to obtain a licence. Similar arrangements apply for those applicants who held a licence without restrictions or conditions within five years of the date on which the application for a new licence is received by the Secretary. The Respondent submitted that the Applicant does not fall within the transitional arrangements set out in the Instrument and this was not disputed by the Applicant. Conclusion 1. As referred to previously, I accept that the Applicant held authorities for some 24 years with no complaints, insurance claims or orders against him and that he had medical issues in 2013 that resulted in him not renewing licence 73919C. However, this licence expired on 22 May 2013, more than eight years before his 2021 application on 29 June 2021. The Instrument dated 31 March 2017 makes it necessary for an applicant seeking the issue of an endorsed contractor licence after that date to possess the specified qualifications or passing of examinations. There is no evidence the Applicant possesses the specified qualifications or has passed the specified examinations and in light of the Applicant's concession that he has does not hold any of the qualifications set out in the Instrument, the correct and preferable decision is that the Respondent's decision to refuse the Applicant's application for the licence should be affirmed. Order 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 Amendments 16 December 2022 - Cases cited: new citation [2022] NSWCATOD 173 noted. 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: 16 December 2022