Thukral v Commissioner for Fair Trading [2006] NSWADT 356

CITATION: Thukral v Commissioner for Fair Trading [2006] NSWADT 356

DIVISION: General Division

APPLICANT PARTIES: Anurag Thukral RESPONDENT Commissioner for Fair Trading, NSW Office of Fair Trading

FILE NUMBER: 063196

HEARING DATES: 27/09/06

SUBMISSIONS CLOSED: 09/27/2006

DATE OF DECISION: 12/19/2006

BEFORE: Molony P - Judicial Member

CATCHWORDS: Home Builder - issue of supervisor or registration certificate - Home Building Act - home builder - issue of supervisor or registration certificate

MATTER FOR DECISION: Principal matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Home Building Act 1989 Home Building Regulation 2004

APPLICANT S Palmer, Solicitor REPRESENTATION:

RESPONDENT W Maynard, Legal Officer

ORDERS: The Commissioner's decision to refuse Mr Thukral's application for a Qualified Supervisor Certificate for the category "Builder" is affirmed.

REASONS FOR DECISION Background 1 Mr Thukral is a civil engineer. He holds a Bachelors Degree in Civil Engineering from an Indian University and a Masters Degree in Engineering Studies in Environmental Engineering from the University of Sydney. He also holds a Graduate Diploma in Technology Management. He is a Fellow and Chartered Professional Engineer of the Institution of Engineers, Australia. Mr Thukral spent his early professional life in India but moved to Australia, where he has worked in senior management and civil engineering roles with Sydney Water since 1991. 2 On 20 September 2005 Mr Thukral applied to the Commissioner for a Qualified Supervisor Certificate for the category "Builder" under the Home Building Act 1989. 3 On 6 September 2005 the Commissioner refused Mr Thukral's application on the ground that he had not provided, "information to verify the required two years full time experience in carrying out or supervising a wide range of building construction work to satisfy entry requirements for Building Licence Assessment (BLA)." 4 Mr Thukral sought a review of that decision and provided the Commissioner with additional information with respect to his experience in building construction work. On 13 April 2006 a review officer affirmed the decision to refuse Mr Thukral's application. His qualification as a Fellow and Chartered Professional Engineer of the Institution of Engineers, Australia, was accepted, but his evidence of two years full time experience, in carrying out or supervising a wide range of building construction work to satisfy entry requirements for Building Licence Assessment, was not accepted. 5 On 11 May 2006 he filed an application to review that decision with the Tribunal. The hearing of the review took place on 27 September 2006. At the conclusion of the hearing I reserved my decision. Legislation 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. It regulates contracts for residential building work, both as to their content and who may enter them. It implies non-excludable warranties as to the quality of residential building work and services undertaken in NSW, and provides a mechanism for the resolution of disputes relating to residential building work. It establishes a mandatory home warranty insurance scheme to provide protection to those who enter contracts for residential building work, and who own homes constructed or renovated under those contracts. 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). 7 Section 24(1) provides that the Commissioner may grant certificates, including supervisor certificates, for the purposes of the Act. Section 25 deals with the issue of certificates. Relevantly, it provides: (1) The Director-General must reject an application for a supervisor or tradesperson certificate if: (a) the Director-General is not satisfied that the applicant is a fit and proper person to hold such a certificate, or (b) the applicant is a mentally incapacitated person, or (c) the applicant is disqualified by this Act or the regulations from holding such a certificate. (1A)… (2) The regulations may specify or provide for the Director-General to determine additional qualifications that must be held or other requirements that must be met before any supervisor or tradesperson certificate is issued or before such a certificate of a particular kind is issued. (3) The Director-General must reject an application for a supervisor or tradesperson certificate: (a) if the Director-General is not satisfied that any such requirement would be met were the certificate to be issued, or (b) if the applicant has not completed, at a standard acceptable to the Director-General, any relevant examination or practical test (or both) conducted or nominated by the Director-General and required by the Director-General to be completed by the applicant. (4) A decision of the Director-General relating to: (a) the determining of qualifications or other requirements under subsection (2), or (b) the setting of standards or selecting of examinations or tests under subsection (3), cannot be reviewed by the Administrative Decisions Tribunal in an application for review made under this or any other Act. 8 Clause 28 of the Home Building Regulation 2004 then provides: (1) Before a certificate is issued, the Director-General must be satisfied that the applicant: (a) has such qualifications or has passed such examinations or practical tests, or both, as the Director-General 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 Director-General 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. 9 The Commissioner has determined what qualifications and experience is necessary to obtain a builders/licence or supervisors certificate (here called "standards"). Those standards are to be found in a document entitled, "Qualifications - CONTRACTOR LICENCE (Q) - QUALIFIED SUPERVISOR CERTIFICATE", which is published as a brochure by the Commissioner and is downloadable from the Office of Fair Trading web site. Relevantly, at the time Mr Thukral applied for a supervisors certificate, the standards provided: "Builder (includes all residential building and building trade work) Acceptable Qualifications and Experience … BUILDING INDUSTRY SKILLS CENTRE (BISC) BUILDING LICENCE ASSESSMENT Applicants not holding any of the listed acceptable qualifications may still qualify for issue of a Contractor Licence/Qualified Supervisor Certificate as a builder by successfully completing the BISC Building Licence Assessment provided they satisfy the guidelines for entry into the examination. These guidelines are as follows: The applicant holds a Degree in (Civil) Engineering from an accredited Institution and can show 2 years experience in carrying out or supervising a wide range of building construction works. … N.B. (i) Applicants for a Builders Licence/Certificate wishing to undertake the BISC Building Licence Assessment should enclose a detailed resume of their building industry experience with the application (ii ) Applicants accepted for the Building Licence Assessment will be notified in writing by the BISC of all details concerning the assessment & briefing session. … 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 type(s) of work performed by the applicant; and Indicate the dates over which the applicant performed the work. Statement of Practical Experience forms are enclosed with the application form to assist you in obtaining the necessary supporting documentary evidence of your practical experience. Applicants for a Builders Licence/Certificate wishing to undertake the Building Industry Skills Centre's Building Licence Assessment or Oral Technical Assessment should enclose a detailed resume of their building industry experience with the application. … 10 Section 83B, when read with s 48 Administrative Decision Tribunal Act 1997, provides a right to persons such as Mr Thukral to seek a review of the decision to refuse his application in this Tribunal. Section 63 of the Administrative Decision Tribunal Act 1997 says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Director-General, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Issue 11 The issue to be determined in this case is whether Mr Thukral has provided satisfactory evidence of two years experience in carrying out or supervising a wide range of building construction works. The Evidence of Experience 12 This can be divided into two categories. The first is Mr Thukral's own evidence which is comprised of his statement, resume, and various documents he has written in support of his application. Secondly, there is a series of references relating to work undertook in India. This was supported by the oral evidence of Mr Johannsson, which was taken by phone from Denmark. 13 During the hearing Mr Palmer who appeared for Mr Thukral acknowledged that much of the evidence relating to Mr Thukral's experience did not meet the requirements of the Commissioner. He told the Tribunal that the Applicant was relying on the Applicant's statement, a reference from Mr Johannssen produced on the day of the hearing, and the documents found at pages 38, 44 and 45 of the s.58 documents. These relate to Mr Thukral's experience in India. 14 Mr Thukral's Own Evidence – Mr Thukral has filed a statement in which he sets out his relevant experience in carrying out residential building work, both in India and Australia. That includes work both as an employee and as an owner-builder. 15 The Commissioner says that no regard should be had to Mr Thukral's statement because the standards do not allow an applicant to verify his own experience. I accept that proposition, subject to a qualification I have expressed in a number of ex tempore decisions relating to similar applications. 16 That exception relates to the circumstances where there is evidence from suitably qualified persons as to an applicant acting as a licensed contracting tradesman in a given period, be it as a carpenter, tiler or plumber, and that experience is said to contribute to the applicant's overall experience in carrying out or supervising a wide range of building construction works. In those circumstances, I have taken the view that, in compliance with the standards, an applicant can provide evidence of the nature of the work they have done as an independent contractor in the course of their licenced trade, so long as there is verification of them operating as such by a qualified person who had dealings with them. In allowing such evidence, I have taken that experience into account as contributing to their overall experience, but have not accepted the experience as being, of itself, evidence sufficient to satisfy the requirements of the standard. I have taken the view that such evidence fleshes out details which the qualified person could not be expected to know, given the independent nature of the work of a licensed contractor in the course of their trade. 17 Next the Commissioner submitted that no regard should be had to the experience Mr Thukral has as an owner builder. This is so because it amounts to having the Applicant verifying his own experience, and does not meet the requirements of the standards. I accept that this is the case. 18 Experience in India - There are a series of references and other documents relating to Mr Thukral's experience in India. Principal among these are his work as a consulting engineer for Rattendeep Consulting Engineers, and more specifically with regard to the construction of a Waste to Energy Plant at Timarpur, Delhi, with associated housing complex, for Volund Miljoteknik A/S. In his statement Mr Thukral explained he had responsibility for the day to day management and supervision of these construction works including, "35 separate dwellings, internal roads, parking, storm water and sewage and a water supply." He also relied on work he did in 1989 and 1990 supervising the construction of a single dwelling in Delhi. 19 The Commissioner submitted that this experience was not verified by a suitable qualified person and that Mr Thukral could not verify his own experience. 20 At the hearing the Applicant produced a letter from Mr Otto Johannsson who was the site manager for Volund Miljoteknik A/S on the construction of the Waste to Energy Plant at Timarpur. In that letter Mr Johannsson set out in some detail the significant role played by the Applicant in the construction and supervision of the housing complex associated with that development. 21 Mr Johannsson gave evidence by phone from Denmark. He told the Tribunal that he is a mechanical engineer by occupation and has no qualifications in building and construction. He said that he is now erecting houses and garages in Denmark on a part-time basis, and had been doing so for 5 years. He was able to give considerable evidence of the major role Mr Thukral played in the management and construction of the Waste to Energy Plant. 22 For the Commissioner, Mr Maynard submitted that I should not accept Mr Johannsson's evidence as suitable to verify Mr Thukral's experience. This was so because Mr Johannsson's qualifications are in mechanical engineering. As a result, Mr Maynard submitted, Mr Johannsson is not a "relevant engineer" for the purpose of the standards. 23 Mr Palmer, for Mr Thukral, took issue with this, submitting that Mr Johannsson had significant experience in the building industry as evidenced by his role as site manager on the construction of the Timarpur plant. He also has recent experience building in houses and garages in Denmark. Mr Palmer referred me to the standards and submitted that the list of who were qualified to verify experience was a list of examples only, and should not be read as an exhaustive list of those who can verify an applicant's experience. 24 I agree with that proposition. The use of the words "such as" in the standard make it clear that the list is not exhaustive. The list however contains a description of people who, by virtue of their qualifications or licenced status, the Commissioner considers able to verify an applicant's role in the construction and supervision of building works. It is, I think, worth repeating those qualifications: "a holder of a Qualified Supervisor Certificate or Individual Contractor Licence (Q), building surveyor, building inspector, architect or relevant engineer." Of these, those who hold licences or certificates are necessarily equipped with the skills, whether gained by experience or as a result of qualifications or experience, to enable the Commissioner to be satisfied as to their competence in the construction and supervision of building works. Then there are those who hold professional qualifications: building surveyors, building inspectors, architects or relevant engineers. Of these, the first three's qualifications are obviously associated with the construction and supervision of building works. But what is a relevant engineer? In my view the word "relevant engineer" should be read ejusdem generis so that a relevant engineer is one whose qualification has a similar association with the construction and supervision of building works. A mechanical engineer, such as Mr Johannsson, does not have such an association. 25 As a result I do not accept that Mr Johannsson is a person who can verify Mr Thukral's work experience for the purpose of the standards. I do not accept that his part-time work in Denmark qualifies him to do so. I have little or no comprehension of what that part-time work involves, and no understanding of or evidence relating to the builder's licensing system in Denmark. I do not accept that Mr Thukral's work on the Timarpur plant has been verified for the purpose of the standards. 26 Similarly, there is no acceptable verification of his work in 1989 and 1990 supervising the construction of a single dwelling in Delhi. 27 The document at page 38 of the s 58 documents is a Performance Certificate dated 24 November 1987 relating to the work done by Rattendeep Consulting Engineers for Volund Miljoteknik A/S in the construction of a Waste to Energy Plant at Timarpur. It is signed by Jorgen Rasmussen, the project manager. It confirms that Rattendeep has performed to Volund Miljoteknik's "full satisfaction" and have "handled" the works at the plant for the duration of the contract. It states that: "Services for RATTANDEEP through Mr Anarug Thukral includes supervision of civil works, designs and making of 'As Built Drawings' for civil and electrical works and piping installation." 28 There is no indication of what Mr Rasmussen's qualifications are. It is therefore not possible to determine whether he meets the criteria, set by the standards, for a person to verify Mr Thukral's experience. The experience verified in the certificate does not include the wide range of work referred to by Mr Thukral and Mr Johannsson. 29 The document at pages 44 and 45 of the s 58 documents is a letter, on Rattandeep letter head, written by Mr Thukral to Dhri B. N. Tandon, setting out a proposal for Rattendeep to project manage the construction of a house at Delhi. On the second page there is an acceptance of the proposal signed by Dhri B. N. Tandon. That letter does not verify the completion of the work, or its quality. It is not acceptable evidence of experience for the purpose of the standards. Conclusion 30 I conclude that Mr Thukral has not provided evidence, as required by the standards, evidencing 2 years experience in carrying out or supervising a wide range of building construction works. 31 I wish to make it clear that I do not doubt Mr Thukral's competence as a civil engineer. The issue for me to determine is whether or not he has provided evidence which meets the standards set by the Commissioner: standards which I do not have the power to review. I have concluded that the evidence he presented does not satisfy the requirements of the standards, and that is all. 32 As a result the Commissioner's decision to refuse Mr Thukral's application for a Qualified Supervisor Certificate for the category "Builder" is affirmed.