Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Davidson v Director General, NSW Fair Trading [2015] NSWCATAD 9 Hearing dates: 3 November 2014 Date of orders: 20 January 2015 Decision date: 20 January 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: P Molony, Senior Member Decision: The Tribunal confirms the decision not to grant Ms Davidson a contractor licence in the category building Catchwords: Home Building - application for a contractor licence in the category building – standards issues under clause 28(1) - requirement to demonstrate practical experience – "gained as an employee of or a person otherwise lawfully engaged by, the holder of a contractor licence" – evidence of referees Legislation Cited: Home Building Act 1989 Home Building Regulation 2004 Category: Principal judgment Parties: Sharon Davidson (Applicant) Director General, NSW Fair Trading (Respondent) Representation: Solicitors: S Davidson (Applicant in person) NSW Fair Trading (Respondent) File Number(s): 1420277 Judgment Introduction 1. Ms Davidson has applied to the Tribunal for review of a decision made by a delegate of the Director General of NSW Fair Trading, made on internal review on 24 July 2014, to refuse her a contractor licence under the Home Building Act 1989 (the HBA) in the category building. The internal reviewer determined: 1. The reviewer has determined that the applicant has gained NIL experience towards the minimum two year practical experience criteria of a wide range of relevant building construction work in the roles and responsibilities required of a building (sic) that would enable her to be issued with a building authority in accordance with the HBA, 2. The reviewer has further determined that the Director General's delegate was correct in refusing the issue of a building authority in accordance with the HBAS as the applicant has not demonstrated that she has met the minimum two years' experience criteria of a wide range of relevant building construction work as determined by the Director General as necessary to enable the applicant to do, or to supervise building work in accordance with Clause 28(1)(b) of the Home Building Regulations 2004. 1. Ms Davidson's application came before me on 3 November 2011 when I heard evidence and submissions from both parties. Relevant legislation 1. 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, solvency, and 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 Director General 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). 2. Section 24(1) provides that the Director General 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. 1. 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. 1. Section 20(5) provides: (5) A decision of the Director-General relating to determining standards or other requirements under subsection (2) cannot be reviewed by the Tribunal in an application for an administrative review made under this or any other Act. 1. The present standards in the category general building work (and those applicable to Ms Davidson's application for a contractor licence) were approved by the Director General on 3 July 2013. They set out the qualifications required of an applicant for a contractor licence, both in terms of qualifications and examinations, and practical experience. 2. In Ms Davidson's case there is no dispute and I accept that Ms Davidson has completed the examinations and qualifications necessary to satisfy that part of the requirements set out in the standard. In dispute is whether she can satisfy the practical experience requirements of the standard. This provides: Applicants must show at least 2 years relevant industry experience in a wide range of building construction work. 'Experience' means experience gained by the applicant as an employee of, or a person otherwise lawfully engaged by, the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained ('the Work'), where during the relevant period, the applicant was: supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the Work and financially remunerated for the Work. 1. The standards were proclaimed in the Official Notices of 12 July 2013 as an instrument issued by the Director General under clause 28(1) of the Home Building Regulation 2004. The evidence before the Tribunal 1. The following material was in evidence before me: * s.58 documents filed by the Director-General. * Ms Davidson's application for administrative review together with attachments. * A blue folder containing new evidence (eight new references) relied on by Ms Davidson. 1. During the hearing I heard evidence from: * Ms Glenda Wright a Senior Licencing Officer in the Office of Fair Trading. She made the internal review decision refusing Ms Davidson's application for a contractor licence in the building category. * Ms Davidson, the applicant, whose background is that of a designer and decorator. 1. It is convenient to summarise the evidence relied on by Ms Davidson to prove her practical experience. That experience related to work Ms Davidson had done on seven projects from mid 1995 to 2013, with the vast majority of the work, and the most complex, relating to a renovation and restoration project for a strata body corporate in Double Bay. This took place over a period of eight years, on and off. Ms Davidson's evidence in relation to that project was that she was retained by the body corporate to manage the accounts for the project and to authorise payments. She worked hands-on on the project under the supervision of the builders. She was not employed by the builders who worked on the project and was not paid by them. 2. The other projects which Ms Davidson relied on to demonstrate her practical experience were all substantial refurbishments of existing residential apartments, involving some structural elements. Ms Davidson designed those renovations. She says she actively worked on each project under the supervision of the builder retained to undertake the project, and was responsible for the management of all trades. Ms Davidson agrees that she was not employed by the builders who worked on these projects and was not paid by them, but by her own clients. 3. Ms Davidson relied on a series of very impressive references with respect to the extent and level of her practical experience, including references from consulting engineers and local council building inspectors. The majority of those references were not from persons who hold contractor licences in the category building under the HBA and were therefore rejected as "not suitable to be referees" by the internal reviewer. Consideration 1. Both Ms Davidson and Mr Cos, who appeared for the Director General, agreed that the central issue in this case is whether Ms Davidson , as an applicant for a contractor licence, can rely on experience gained under the supervision of licenced builder, when she was not an employee of, or was not otherwise lawfully engaged by, that builder. If this is the case then Ms Davidson's application for a contractor licence is bound to fail. 2. In my opinion the standard issue by the Director General is clear. The practical experience that an applicant for contractor licence must gain is experience – … gained by the applicant as an employee of, or a person otherwise lawfully engaged by, the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained … 1. There is no dispute that the experience Ms Davidson relies on was not gained as an employee, or as a person lawfully engaged by the home builders with whom she worked. As a consequence no matter how impressive Ms Davidson's evidence of the practical experience, it is not practical experience that complies with the standard issued by the Director General. As a consequence Ms Davidson's application for a contractor licence in the category building must fail. I have no power to review the standards made by the Director General no matter how bureaucratic and inflexible they may appear. 2. There was some discussion during the hearing as to whether or not the standards require that the person gaining experience be financially renumerated for the work by the builder concerned, or whether payment from a third person could satisfy the requirement of the standard. In my view this would depend on the nature of the contractual arrangement relating to the work, but as this is not a question I am required to determine in this case I will not take the issue further. 3. Finally, I note that the internal reviewer discounted references provided by persons who do not hold contractor licences as being from persons "not suitable to be referees." Ms Davidson objected to this arguing that references from persons such as consulting structural engineers merited considerable weight. 4. I can find nothing in the standards that limits who can give evidence of the requisite practical experience that has been gained by an applicant. While I appreciate the direct evidence from a licenced contractor who supervised an applicant undertaking the work may be evidence meriting considerable weight, I can see no basis for the internal reviewer's findings that other persons were not suitable to be referees. The standards, prudently in my view, do not specify who evidence verifying practical experience is to be provided by. To do so has the potential to lead to great difficulties where unforseen circumstances arise, such as the death of the only person able to give such evidence. Conclusion 1. In the light of the above the Tribunal confirms the decision not to grant Ms Davidson a contractor licence in the category building. 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: 20 January 2015