CITATION: Mohammed -v- Director General, Department of Fair Trading [2003] NSWADT 62 DIVISION: General Division APPLICANT PARTIES: Sheik Mohammed RESPONDENT Director General, Department of Fair Trading FILE NUMBER: 023161 HEARING DATES: 25/11/2002 SUBMISSIONS CLOSED: 11/25/2002 DATE OF DECISION: 03/26/2003 BEFORE: Higgins S - Judicial Member APPLICATION: Home Builder - alteration of contractor licence - Home Building Act - home builder - alteration of contractor licence MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Home Building Act 1989 Home Building Regulation 1997 CASES CITED: Johan Plazidus Beiser v Building Services Corporation (unreported in the Commercial Tribunal of NSW, S Cavanagh Acting Chairman, 1 December 1992 APPLICANT REPRESENTATION: In person RESPONDENT A Wilson, solicitor ORDERS: 1. The decision of the Director-General to refuse to vary Mr Mohammed's contractor licence is affirmed. BACKGROUND 1 On 29 July 2002, Mr Mohammed lodged an application with the Tribunal for a review of the decision by the Director-General of the Department of Fair Trading ("the Director-General") to refuse his application to vary his contractor licence from its current category of plumber, drainer and gas fitter to that of builder. 2 The application has been made pursuant to s.83B(1) of the Home Building Act 1989 and s.38 of the Administrative Decisions Tribunal Act 1997. ISSUES 3 At issue in this application is whether the Director-General can be satisfied that Mr Mohammed 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 the work for which the certificate is required. RELEVANT LEGISLATION 4 The Home Building Act 1989 makes provision for the regulation of residential building work and specialist work. Part of this regulative scheme is the provision of licences and certificates to do such work. Division 1 of Part 3 of that Act makes provision for the application for and the issue of contract licences in respect of residential building work, specialist work and the supply of kit homes for construction by a person other than the holder of a contractor licence under that division. 5 S. 4 of the Home Building Act 1989 provides that a person is prohibited from contracting to do residential building work or specialist work on behalf of an individual, partnership or corporation unless that person is the holder of a licence authorising that person to contract to do that work. A contravention of this particular section constitutes an offence, which is punishable by a fine. 6 Specialist work is defined in s.3 of the Home Building Act 1989 to mean: "(a) Plumbing work, or (b) gas fitting work, or (c) electrical work, or (d) any work declared by the regulations to be refrigeration work or air conditioning work." 7 S.20 of the Home Building Act 1989 provides, so far as is relevant to this application, as follows: "(20) Issue of Licences (1) … (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 the 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) … (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 this Act." 8 The requirements to obtain a licence under s.20 of the Home Building Act 1989 are prescribed in clause 19 and 20 of the Home Building Regulations 1997. So far as is relevant to this application, these clauses provide as follows: "19. Requirements to obtain licences (1) Before a licence is issued, the Director-General must be satisfied that: (a) … (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. … 20. Requirements to obtain certificates (1) Before a certificate is issued, the Director-General must be satisfied that the Applicant: (a) … (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 experience of such a kind and for such a period, as the Director-General considers would fit the applicant to do, or supervise, the work for which the certificate is required, and…" 9 Pursuant to clause 20(d) and (e) of the Home Building Regulations 1997 the Director-General has made a determination on the qualifications and experience required for the contractor's licence. These qualifications and experiences are published in a brochure, a copy of which was tendered into evidence before the Tribunal. In respect of a builder contractor licence the brochure identifies two categories of qualifications and experience that are required in order to be issued with a builder contractor licence. The first category is a requirement of a minimum of two years acceptable practical experience carrying out or supervising general building work plus the attainment of a certificate, degree, diploma or other course in building studies that are listed in the brochure. It is not disputed that this category does not apply to Mr Mohammed. 10 The second category is by obtaining a building licence assessment through the Building Industry Skills Centre, provided that the person is able to satisfy the guidelines for entry into the assessment. These guidelines are stated to be as follows: · "The applicant holds a degree in (civil) engineering from an accredited institution and can show two years relevant industry experience. · The applicant holds a degree in architecture from an accredited institution and can show three years relevant industry experience. · The applicant holds a TAFE (or equivalent) Trade Course Certificate in the trades of Carpentry and Joinery or Bricklaying and can show ten years relevant post-trade experience. · The applicant holds other relevant/acceptable qualifications in the building industry and can show fifteen years overall building experience. · The applicant holds no acceptable qualification in the building industry, but can show 20 years relevant industry experience." EVIDENCE 11 Mr Wilson, on behalf of the Department relied on the material that had been filed in the Tribunal and served on Mr Mohammed. He also tendered into evidence a copy of a pamphlet produced by the Building Industry Skills Centre that provides information to assist applicants in preparing for a building licence assessment. 12 Mr Mohammed called 4 witnesses to give oral evidence. These witnesses Mr Nizam Ali, Mr Ayoub Ali, Alberto Magat and Ravidr Singh gave oral evidence by telephone. HISTORY OF APPLICATION 13 Mr Mohammed lodged an application for a variation to his existing individual contractor licence on 22 February 2002. In support of his application he provided the Director-General with four statements of practical experience. These were from a Mr Ayoub Ali (electrical contractor), Nizam Ali (builder), Alberto Magat (builder) and Ravindr Dodeo Singh (builder). 14 On 23 April 2002, the Director-General advised Mr Mohammed, by letter, that his application for variation had been refused. On 9 May 2002, Mr Mohammed requested an internal review of the Director-General's decision. 15 On 22 May 2002, the Director-General advised Mr Mohammed that pursuant to s.53(5)(a) of the Administrative Decisions Tribunal Act the Director-General's previous decision to refuse to vary his licence had been varied. The variation was to the effect that the Director-General required Mr Mohammed to undergo an oral assessment to determine his level of building construction experience. The Director-General also advised that if Mr Mohammed was successful in this oral assessment he would then be permitted to sit the building licence assessment and if that assessment was completed successfully the Director-General would vary his licence to include the category of building. 16 On 20 June 2002, Mr Mohammed sat the oral assessment but was unsuccessful having answered ten questions correctly out of 58 questions. 17 On 26 June 2002, the Director-General advised Mr Mohammed that in light of his unsuccessful attempt in the oral assessment his original decision to refuse his application to vary his licence was confirmed. FINDINGS OF FACT 18 Mr Mohammed is currently the holder of a contractor licence that licence specifies that he is licensed to contract in respect of plumbing, draining and gas fitting work. He has been the holder of such a licence for some period of time. According to his application for a builder contract licence his qualifications are a Craft and Advanced Craft Certificate in Plumbing and a Certificate in Drainage (House), Gas Fitting and Business Principles. The application also identifies his employment history. He commenced work in February of 1973 with the Public Works Department in Suva, Fiji where he was employed in the field of plumbing, drainage and gas fitting. Mr Mohammed continued to be employed as a plumber, drainer or gas fitter with various employers from this time until July 1991. It was at this time that he became self-employed and has continued to do so ever since. 19 It was not disputed that Mr Mohammed supervised the building of his own home and that of his brother-in-law. This supervision included him doing some of the work on these buildings. In his evidence, Mr Nizam Ali, stated his occupation to be a building administrator consultant. In giving oral evidence he stated that he had known Mr Mohammed since the late 1960's when he commenced his apprenticeship as a plumber. From this time until 1983, when Mr Mohammed left Fiji to come to Australia, Mr Ali witnessed Mr Mohammed undertaking numerous building works on a voluntary basis for the community. This work involved the construction of churches where Mr Mohammed undertook plumbing and carpentry tasks. After Mr Ali came to Australia in 1990, he also witnessed Mr Mohammed build his own home and that of his brother-in-law. He stated that Mr Ali supervised his work and was a "jack of all trades". 20 Mr Singh, a carpenter/builder stated that he has known Mr Mohammed since March 2001. During that time he has worked on three houses with him and he has found Mr Mohammed to be perfect in measuring heights. He has also seen Mr Mohammed do internal drainage and framework, bathroom work, renovation work and architraves. 21 Mr Magat, a carpenter/builder, stated that has known Mr Mohammed during the period 1997 to 2001. During this time, he has worked on three extensions with Mr Mohammed and has seen him do minor carpentry jobs in the bathroom, wall timber frames and all palings and the installation of piping. SUBMISSIONS 22 Mr Wilson, on behalf of the Director-General submitted that Mr Mohammed's plumbing experience was not relevant as the term "overall building experience" included all parts of building work. This included carpentry, foundations, reinforcement, formwork and plastering. 23 It was Mr Mohammed's submission that he had the requisite experience and this was particularly demonstrated through the witnesses he had called and the fact that he had been able to build his own home and that of his brother-in-law. He also submitted that the Tribunal order that he be able to sit the Building Industry Skills Centre assessment. REASONS AND DECISIONS 24 As explained to Mr Mohammed at the hearing, pursuant to the abovementioned provisions of the Home Building Act 1989, in order to have his contract licence varied to include a builder contract licence he must: (a) Show that he has 15 years "overall building experience"; AND (b) Successfully complete the building industry skills centre building licence assessment. 25 The above, is a two-stage process with applicants being required to firstly satisfy the "fifteen years overall building experience" in order to gain an entitlement to sit the building licence assessment. 26 There is no dispute that Mr Mohammed has not met the requirements of having successfully completed the building licence assessment. As explained to Mr Mohammed during the course of the hearing, on this basis alone his application cannot succeed and the decision of the Director-General must be affirmed. 27 During the hearing Mr Mohammed, requested the Tribunal make orders to the effect that he be allowed to sit the assessment if satisfied that he has the requisite number of years of relevant experience. Again, as explained to Mr Mohammed the Tribunal has no jurisdiction to make such an order as its powers are confined to reviewing the decision of the Director-General to refuse his application for a variation of his contractor licence (see s.20(3) and 83B(1) Home Building Act 1989). This part does not include a power requiring the Director-General to allow a person to sit the building licence assessment (see Johan Plazidus Beiser v Building Services Corporation (unreported in the Commercial Tribunal of NSW, S Cavanagh Acting Chairman, 1 December 1992). 28 As a considerable amount of time was taken up at the hearing in respect of Mr Mohammed's the Tribunal has also considered this aspect of the application. It is noted that the standards set by the Director-General pursuant to the FMG Regs require Mr Mohammed to establish that he has 15 years of "overall building experience". This must be contrasted to the other terms used in this second category and the context in which these other terms are used and the context in which the term "overall building experience" is used. 29 The other terms that are used in this second category are "relevant industry experience" and "relevant post-trade experience". The latter term is used for those who have qualifications in carpentry and joinery and bricklaying, which does not apply to Mr Mohammed. 30 In Beiser's case, at page 11, the Acting Chairman stated the following in respect of the requirement for "20 years relevant industry experience": "The reference to "relevant" industry experience recognises that not all industry experience is to be regarded as relevant and presumably it is only experience relevant to the particular application, in this case an application for an endorsed licence in respect of residential building work, which is to be taken into account. It must therefore be experience of a kind which would fit the applicant contractor to do, to do and to supervise the work for which the licence is required. …" 31 The requirement of "relevant industry experience" is in the context of the applicant having no relevant qualifications. Yet the requirement of "overall building experience" is in the context of having relevant qualifications. Accordingly, in the opinion of the Tribunal the term "overall building experience" in this context means experience in the area of the relevant qualifications as well as experience in other areas of building such as carpentry, foundations, reinforcement, formwork and plastering. 32 Mr Mohammed's qualifications are in plumbing, draining and gas fitting and there is no question he has considerable experience in these fields. However, on the evidence before the Tribunal, Mr Mohammed has not satisfied the Tribunal that he has 15 years of experience that includes these other relevant areas of experience. In essence the evidence demonstrates that at the earliest his "overall building experience" commenced in 1989 when he first obtained his contractor licence and began to work in the building industry generally. Prior to this he did some adhoc building work on a voluntary basis, which does not appear to have been supervised by a licensed builder. 33 However, Mr Mohammed has not produced any evidence of what building work, other than what he was licensed for, that he did during the period 1989 to 1997. After this period he appears to have built his own home and that of his brother and worked with Mr Singh and Mr Magat on other building projects. 34 For the reasons stated above the Tribunal finds that Mr Mohammed has also failed to satisfy the requirement that he has 15 years "overall building experience". 35 Accordingly, the Tribunal finds that the Director-General's decision to refuse to vary Mr Mohammed's contractor licence ids the correct and preferred decision and orders that the decision is affirmed 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.