CITATION: McKenna v Director General, Department of Fair Trading [2001] NSWADT 10 DIVISION: General Division APPLICANT PARTIES: Brett Charles McKenna RESPONDENT Director General, Department of Fair Trading FILE NUMBER: 003187 HEARING DATES: 4/12/2000 SUBMISSIONS CLOSED: 12/15/2000 DATE OF DECISION: 02/01/2001 BEFORE: Hennessy N (Deputy President) APPLICATION: Home Builder - issue of contractor licence - Home Building Act - home builder - issue of contractor licence MATTER FOR DECISION: Principal matter LEGISLATION CITED : Home Building Act 1989 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT K Bozinovska, legal officer ORDERS: 1. The decision of the Director General, to refuse to issue the applicant with a contractor's licence is affirmed Introduction 1 On 31 May 2000, Mr McKenna lodged an application with the Tribunal for a review of a decision by the Director General, Department of Fair Trading. The decision was to refuse his application for an individual contractor licence in the category of roof plumbing. 2 Mr McKenna originally applied for the licence on 19 October 1999 and was told by a Departmental officer that he would have to sit for a Trade Test conducted by the Bankstown College of TAFE. He sat for the practical part of that test on 18 February 2000 and again on 27 March 2000 and failed on both occasions. 3 On 17 April 2000 the respondent advised Mr McKenna that his application for a licence had been refused. The respondent affirmed that decision after being requested by Mr McKenna to conduct an internal review of the decision. Jurisdiction 4 The provision which confers jurisdiction on the Tribunal to hear this application is s 83B(1) of the Home Building Act 1989 (the Act). That provision states that: (1) An applicant for the issue or alteration of an authority aggrieved by any decision of the Director-General relating to the application may apply to the Tribunal for a review of the decision. 5 Section 83A defines an "authority" to include a licence. That section also defines "Tribunal" to mean the "Administrative Decisions Tribunal". Since Mr McKenna is aggrieved by the respondent's decision not to issue him with a licence, he is entitled to bring an application for a review of that decision to the Tribunal pursuant to s 83B(1) of the Act. Relevant legislation 6 The relevant legislation in relation to this application is contained in the Home Building Act 1989 and the Home Building Regulation 1997 (the Regulations). Section 19 of the Act allows a person, such as Mr McKenna, to apply for a licence. The relevant provisions of that section are as follows: (1) An individual, a partnership or a corporation may apply to the Director-General for a licence authorising its holder to contract to do such one or more of the following things as may be specified in the application: (a) to do residential building work, (b) to do specialist work, (c) to supply kit homes for construction by a person other than the holder of the licence. 7 Mr McKenna indicated on his application for an individual contractor's licence that the specialist work he wished to be licensed for was as a roof plumber. The application was assessed on the basis that it was for an endorsed licence. 8 Section 20 of the Act sets out the powers of the Director General when dealing with applications for a licence. The relevant provisions of that section are as follows: (1) After considering an application, the Director-General must: (a) issue a contractor licence to the applicant, or (b) reject the application by serving on the applicant a notice setting out the reasons for rejecting the application. (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 a 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) the Director-General is not satisfied with the applicant's proposed arrangements for supervision of the work which the licence will authorise the applicant to contract to do, or (c) the Director-General is not satisfied that the applicant has complied or is able to comply with any requirements of Part 6 or any requirements of the regulations relating to insurance applicable to the doing of work, or the supplying of a kit home, of a kind proposed….to be authorised by the licence. (4) (Repealed) (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. 9 The Regulations do provide for the Director General to set standards or requirements before certain licences are issued. Clause 19(1)(d) of the Regulation provides that (1) Before a licence is issued, the Director-General must be satisfied that: (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. 10 Clause 20(d) - (h) provide that: Before a certificate is issued, the Director-General must be satisfied that the applicant: (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 had experience of such a kind and for such a period, as the Director-General considers would fit the applicant to do, or to supervise, the work for which the certificate is required, and (f) is capable of doing or supervising work for which the certificate is required, and (g) is not disqualified from holding a certificate or a certificate of a particular kind, and (h) is not the holder of a certificate that is suspended. 11 According to a submission from the agency dated 15 December 2000, the Department's standards were changed twice in 1999. The standard from 1984 to August 1999 was that set out in Annexure A to the affidavit of John Cairns dated 8 September 2000. That standard was as follows: Completion of the Metal Roofing Trade Course or appropriate subjects therefrom (refer attached chart) through TAFE (or equivalent) PLUS either completion of an approved apprenticeship in metal roofing and roof plumbing or four years acceptable supervised practical trade experience exclusively in roof plumbing OR A minimum of six years acceptable supervised practical trade experience exclusively in roof plumbing PLUS successful completion of a practical trade test in roof plumbing arranged by the Department (there is a fee applicable for each test). 12 From 26 November 1999, the Department changed the standard relating to persons who had not completed the Metal Roofing Trade Course. According to the affidavit of John Cairns dated 8 September 2000 (which I accept): The Department began to phase out the use of the practical test in roof plumbing and in its place required that applicants complete subject of Roof Plumbing and Rainwater Drainage conducted by NSW TAFE Commission. This subject is a portion of the Plumbing Trade Course. It is comprised of two components 0-1409N which is the practical component, and 1409P which is the theory component. Owing however, to problems experience by TAFE making this subject available on a statewide basis, the Committee recommended in November 1999 that a Trade Test be reinstated as the alternative to holding an acceptable qualification. 13 Mr M's application, which was received on 21 October 1999, had not been determined as at 26 November 1999 when the requirements changed. Evidence 14 The documentary evidence before the Tribunal consisted of: - Department of Fair Trading Brochure applicable in August 1999 setting out requirements for Plumbing, Draining and Gas fitting; - Department of Fair Trading Brochure applicable in November 1999 setting out requirements for Plumbing, Draining and Gas fitting; - copy of Department's file in relation to Mr McKenna's application; and - affidavit of John Gray Carins dated 8 September 2000; 15 By letter dated 1 December 1999, the Director General required Mr McKenna to undergo a Trade Test in roof plumbing conducted by the Bankstown College of TAFE. On 18 February 2000, and again on 27 March 2000, Mr McKenna failed the practical party of the Trade Test. 16 Mr McKenna gave some short evidence on the phone which was along the same lines as his written submission. In summary Mr McKenna thought that the test he sat for was not a good test of the skills required by roof plumbers. He said that skills such as soldering were no longer used in practice and that the time limits given to perform practical aspects of the test were insufficient. Mr McKenna conceded that he did not really understand the legal arguments the Department had submitted. I briefly explained their submissions to him. 17 At the end of the hearing I sent a letter to the parties requesting further clarification of certain issues. A reply was received from the agency on 15 December 2000. Decision and Reasons 18 Pursuant to s 20 of the Act and Clause 19 of the Regulations, the Director General has set requirements as to experience, qualifications, examinations and testing for people applying for licences as roof plumbers. (ee Affidavit of John Gray Cairns). The Tribunal does not have any power to review a decision of the Directory General relating to determining standards or other requirements. Consequently, the Tribunal cannot consider Mr McKenna's complaint that the test he was required to undertake was not an appropriate one to measure his competence as a roof plumber. The only power the Tribunal has is to determine whether the Director General has made the correct decision in refusing Mr McKenna's application for an individual contractor licence in the category of roof plumbing. 19 The evidence is clear and uncontested. The Director General required Mr McKenna to undergo a Trade Test in roof plumbing. Mr McKenna failed the practical part of that test on two occasions. As Mr McKenna has not met the requirements as determined by the Director General, the Tribunal affirms the decision to refuse his application. 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.