Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Vescio v Commissioner for Fair Trading, Office of Finance and Services [2015] NSWCATOD 92 Hearing dates: 14 April 201516 June 2015 (Final submission) Decision date: 04 September 2015 Jurisdiction: Occupational Division Before: N S Isenberg, Senior Member Decision: 1. The decision under review is set aside. 2. In substitution for that decision the general building work licence applied for by the Applicant is granted. Catchwords: Merits review; home building; contractor licence application - general building work; requisite level of relevant industry experience in a wide range of building construction work; instrument made under Home Building Act 1989; instrument made under Home Building Regulation 2004. Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Home Building Amendment Act 2014 Home Building Regulation 2004 Cases Cited: Commissioner of Fair Trading, Office of Finance and Services, NSW Fair Trading v Kassem [2015] NSWCATAP 173 Thukral v Commissioner of Fair Trading [2006] NSWADT 356 Locking v Department of Finance and Services [2013] NSWADT 239 Category: Principal judgment Parties: Paul Vescio (Applicant) Commissioner for Fair Trading, Office of Finance and Services (Respondent) Representation: Solicitor P Vescio (Applicant in person) H Williams, NSW Fair Trading(Respondent) File Number(s): 1520015 Reasons for decision 1. This matter involves an application to the Tribunal by Mr Paul Vescio, for a review of a determination by a delegate of the Respondent to refuse Mr Vescio's application under the Home Building Act 1989 (the Act). In his application Mr Vescio had sought to vary his electrical contractor licence to enable him to carry out general building work (the licence). The Respondent's delegate refused the application on the ground that Mr Vescio had not demonstrated that he had gained the experience which the Respondent had determined was required for the licence. Brief chronology 1. On 21 July 2014 NSW Fair Trading received Mr Vescio's application for the licence (the Application). 2. By letter dated 16 September 2014 from NSW Fair Trading Mr Vescio was notified that the Application had been refused (the Decision). The basis stated for the refusal was that Fair Trading was not satisfied that Mr Vescio had attained "two (2) years acceptable relevant industry experience in a wide range of building construction work". The Application was stated to be refused in accordance with clauses 26(1)(b)(i) and 28(1)(b) of the Home Building Regulation 2004 (the 2004 Regulation). The letter also stated that if Mr Vescio disagreed with the Decision he may apply for an internal review. 3. Mr Vescio applied for an internal review by letter received by Fair Trading on 16 October 2014. 4. By letter dated 13 January 2015 Fair Trading informed Mr Vescio that the Decision had been reviewed and was confirmed for reasons set out in an attachment to the letter. The letter informed Mr Vescio that if he disagreed with the result of the internal review he had the right to seek a review to this Tribunal. Mr Vescio applied to the Tribunal for a review of the Decision. Material before the Tribunal at the hearing 1. The Respondent relied on the documents filed under s. 58 of the Administrative Decisions Review Act 1997 (ADR Act) and an outline of submissions filed 14 April 2015. Ms Williams made oral submissions on behalf of the Respondent. 2. The Applicant relied on: 1. The Application, which formed part of the s. 58 documents. Attached to the Application were various documents including documents evidencing the successful completion by Mr Vescio of Certificate IV in Building and Construction and a Diploma of Building and Construction together with referees' statements by Mr Carmelo Vescio and Mr Aaron Kendall (the initial references) . 2. His statement dated 28 February 2015 attached to which were a "confirming statement" from each of Mr Carmello Vechio and Mr Kendall respectively dated 22 and 26 February 2015. 3. His second statement dated 5 April 2015, and 4. His third statement dated 13 April 2015. 1. The Applicant gave oral evidence before the Tribunal and made oral submissions. Jurisdiction of the Tribunal 1. The Tribunal is empowered to review the Decision (s. 83B(1) of the Act and s. 55 of the ADR Act). Section 63 of the ADR Act requires the Tribunal, in determining an application concerning an administratively reviewable decision, to decide what the correct and preferable decision is having regard to the material then before it (including material not previously available to or considered by the administrator) and any applicable written or unwritten law, and authorises the Tribunal to affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision the Tribunal is to either make a decision in substitution for that decision or remit the matter for reconsideration by the administrator who made the decision. 2. The Application was made in July 2014 under the Act. The Act is part of the legislative scheme which regulates aspects of the home building industry in New South Wales. The scheme is concerned to provide consumer protection including regulating the issue, cancellation and suspension of contractor licences, supervisors' certificates and trades persons' certificates in the industry. Substantial amendments were made to the scheme by the Home Building Amendment Act 2014 (the Amendment Act) which came into operation on 15 January 2015. 3. The functions of the Chief Executive under the Act when the hearing took place include at s. 106(b) to set, assess and maintain standards of competence of persons doing residential building work 1. The Appeal Panel of the Tribunal recently held at [28] in Commissioner of Fair Trading, Office of Finance and Services, NSW Fair Trading v Kassem [2015] NSWCATAP 173: One of the changes to the statutory licensing scheme made by the Home Building Amendment Act 2014, was to transfer from the regulations to the Act, the provisions dealing with the grounds on which a person was disqualified from applying for or holding a contractor licence, supervisor certificate and trades person certificate … The relevant regulations were regulations 26 and 28 of the 2004 Regulation. That Regulation was repealed and the Home Building Act amended by the addition of ss 33C and 33D which were in almost identical terms to regulations 26 and 28. 1. On 3 July 2013, under regulation 28 of the 2004 Regulation the Chief Executive, which term includes the Commissioner for Fair Trading, Office of Finance and Services, signed an instrument (the 2013 Instrument) in which he determined the possession of qualifications or the passing of examinations specified in Column 1 of Table A to the Schedule to the instrument and the possession of experience specified in Column 2 of Table A opposite the relevant matter in Column 1, to be necessary for an applicant for the issue of a licence or certificate (Kassem at [25]). 2. The Appeal Panel continued: 26 The qualification requirements in regulations 26 and 28 of the 2004 Regulations, are now set out in ss33C and 33D of the Amended Act, in virtually similar terms. 27 On 5 January 2015, pursuant to section 33D of the Act, the Chief Executive signed an instrument in which he determined the possession of qualifications or the passing of examinations and considered the possession of experience necessary for an applicant for the issue of a licence or a certificate to be as follows: (a) where the application was made on or after the date on which the instrument was signed (5 January 2015), the possession of qualifications or the passing of examinations specified in Column 1 of Table A to Schedule 1 and the possession of experience specified in Column 2 of Table A opposite the relevant matter in Column 1 and (b) where the application was made before 5 January 2015, the possession of qualifications or the passing of examinations and the possession of experience, specified in the instrument dealing with the same matters "as this Instrument which was in force at the time the relevant application was made." …. 35 The 2015 Instrument distinguishes between licence applications made before and after 5 January 2015 and provides that the qualification requirement relevant to applications made before its commencement are those "specified in the instrument dealing with the same matters as this Instrument which was in force at the time the relevant application was made" (cl. 2(b) 2015 Instrument). 1. The wording in column 2 of the 2013 Instrument under the heading Experience is: At least two years' relevant industry experience in a wide range of building construction work. The word "Experience" is defined as follows: "Experience" means experience gained by the applicant as: (a) a an employee of; or (b) 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: (c) 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 (d) financially remunerated for the Work; Issues for the Tribunal 1. Both the Decision and the internal review decision stated that the Applicant had satisfied the approved qualification requirements for a building licence. However both those decisions stated that the Applicant had not provided evidence of a minimum of at least two years' relevant industry experience in a wide range of building construction work. The issue before the Tribunal is whether or not the Applicant has gained the requisite experience. I observe that the determination by the Commissioner of the relevant experience qualification in the 2013 Instrument is not reviewable by the Tribunal (s. 20(5) of the Act). The course of the hearing and the submission to the Tribunal of additional material 1. The referees' statements attached to the Application contain pages headed Applicant's Residential Building Experience and are intended to accompany the Referee's Statement form. The Respondent requires the Experience forms to contain details of "at least two years' relevant industry experience in a wide range of building construction work" which the Respondent includes, but is not limited to, 9 categories of work such as "Applying building codes and standards to the construction process in accordance with the Building Code of Australia" and "Organising site surveys and set-out procedure as to building and construction projects." 2. I observe that the declaration which the referee is required to sign at the end of the Referee's statement includes "I understand that Fair Trading may not accept any additional site work claimed by the applicant that was under my supervision that is not included in the accompanying 'Applicant's Residential Building Experience' form(s)." 3. The initial references attached to the Application related to properties at ten sites. 4. I note that Mr Carmelo Vescio is the father of the Applicant. I also note that the Respondent accepted that both referees were qualified to give references (page 43 of the s. 58 documents). 5. Regrettably the details included in the initial references as to the Applicant's relevant experience at the sites were substantially inadequate to assist either Fair Trading or the Tribunal to identify the relevant work carried out by the Applicant. In respect of one site the space for the work carried out was left blank, in respect of other sites the descriptions were either minimal or vague. There were also difficulties in identifying the location of the sites because some of the initial references failed to provide complete or accurate site addresses. 6. The Applicant gave oral evidence to the Tribunal. During the course of cross examination the Applicant conceded, in relation to a site at Morven St Guildford, that the reference provided no details of the Applicant's roles and responsibilities at the site. However the Applicant's oral evidence was that he performed hands-on work including assisting or carrying out carpentry, waterproofing, roof tiling, painting, plastering, plumbing, installation of windows, cladding and preparing slabs for concrete. He also assisted in the installation of staircases. This was evidence of relevant work. A phone note, at page 40 of the s. 58 documents stated by the Respondent to be a record of a telephone discussion between Mr Carmelo Vescio and an officer of the Respondent, is to the effect that 10% of the Applicant's work at the site involved supervision and 90% was hands-on work. 7. During the course of his evidence the Applicant gave details of further trade work and/or supervision which he carried out or assisted with during construction at each of 8 of the other 9 sites referred to in the initial references. It was readily apparent that the roles and responsibilities which the Applicant said he had undertaken at these sites were substantially in excess of the roles and responsibilities detailed by the referees. 8. The Applicant was unrepresented and the somewhat rudimentary evidence presented to the Tribunal by his referees, including their "confirming statements" attached to his 28 February 2015 statement, appeared insufficient to substantiate his case. However if the oral evidence he had given to the Tribunal had been substantiated by the referees, it appeared that he may well succeed. 9. The Respondent's case relied substantially on the initial references and phone notes of telephone discussions with the referees, as well as phone notes of discussions with councils some of which were to the effect that the councils had no record of relevant work carried out at the sites whose addresses were in the initial references. Regrettably, neither of the referees had been called by either party to give evidence. 10. The 2015 Instrument provides that for applications made from 5 January 2015, the majority of the two years' relevant industry experience must have been obtained "within 10 years of the date on which the application was made." The Applicant placed substantial reliance on industry experience obtained prior to 2005. Accordingly should the Applicant not succeed before the Tribunal in relation to the Application he was likely to be disadvantaged if he made a new application for a general building licence under the 2015 Instrument. 11. I observe that s. 36 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) relevantly states: (1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or.. 1. I adjourned the matter part heard as the Respondent had agreed to accept new references from Mr Carmelo Vescio and Mr Kendall clarifying the initial references. The Respondent also agreed to consider a further reference detailing 6 months' additional work which the Applicant requested be taken into account. After considering the additional evidence and submissions from the Applicant the Respondent would notify both the Applicant and the Tribunal of the outcome of its reconsideration. With the consent of the parties I directed that if the amended Application, with updated references was unsuccessful then I would decide the matter without requiring any further hearing (s.50 of the NCAT Act). 2. The Applicant provided a fourth statement dated 11 May 2015 annexed to which were updated Experience Forms from Mr Carmelo Vescio and Mr Kendall (the second references) in relation to the 10 properties referred to in their initial references together with other documents including notifications of determination of development applications from various councils. On 16 June 2015 the Tribunal received from the Respondent a letter advising that the Respondent had reconsidered the Application with the additional evidence from the Applicant and refused to grant a variation of the Applicant's electrical contractor licence to a general building work licence. The Respondent also provided to the Tribunal an amended Outline of Submissions dated 3 June 2015 (RSR). Where I refer in these reasons to paragraphs of written submissions by the Respondent I am referring to RSR. Consideration 1. RSR comprises substantially all of the Respondent's submissions received on 14 April 2015 together with additional submissions. The additional submissions mainly have regard to the procedure at the hearing on 14 April 2015, some of the detail provided by the referees in the second references, and telephone conversations which apparently took place on 19 May 2015 between an unidentified officer of the Respondent and Mr Kendall and on 29 May 2015 between an unidentified officer of the Respondent and Mr Carmelo Vescio. I observe that the Respondent seeks to rely on the submissions concerning the May 2015 telephone conversations without providing any substantive evidence. 2. The evidence as to the duties and responsibilities / work carried out by the Applicant at each of the 10 sites is found in the initial and second references and confirming statements by the referees, four written statements and oral evidence by the Applicant, phone notes by an officer of the Respondent in relation to telephone conversations said to have taken place on 29 August 2014 between that officer and each of the referees, and phone notes between an officer of the Respondent and officers of various municipal councils. I have had regard to that evidence and to written and oral submissions by the Applicant and on behalf of the Respondent. 3. Set out below in tabular form is a summary of the evidence in relation to each site, the determination by the Respondent as to the relevant experience gained by the Applicant at each site and my finding as to that relevant experience. 17 CANBERRA ROAD SYLVANIA - medium density development 2 villas and 2 townhouses Reference by Mr Carmello Vescio for the period 3.3.99 – 3.10.99 Setting out & foundation work Second reference by Mr Carmello Vescio Supervise demolition, site set up, plumbing, electrical, formwork, steel fixing, concrete pumping and pouring/finishing, bricklaying, carpentry, machine operations to install structural steel beams & materials. RSR The Respondent's evidence is a memo of a phone attendance between the referee and an employee of the Respondent. The Respondent submitted "contrary to the referee statement, the Referee advised the Respondent on 29/08/14 that this site was not a site where Applicant gained experience of wide ranging building work. Taking this into account, along with the limited tasks the Applicant completed, the Respondent is of the view that the Applicant has not demonstrated wide range of the roles and responsibilities required of a builder at this site." Tribunal finding and reasons The phone note made no specific mention of this site and RSR discounted evidence of supervision of 8 trades. I find that the evidence before the Tribunal does not support the Respondent's submission and is not consistent with the referee's second reference. The Applicant also gave oral evidence of work on this site including supervising assisting and carrying out bricklaying and supervising other trades including concreting and carpentry. I find that the Applicant gained relevant experience for eight months. 88A COOK STREET FORESTVILLE (sometimes described as 80A Cook St) - new dwelling, swimming pool Reference by Mr Carmello Vescio for the period 19.1.00 – 30.6.00 Setting out & profiling Second reference by Mr Carmello Vechio Supervise excavation, bricklaying, concreting, plumbing, electrical, carpentry, concrete pumping and pouring, swimming pool; carried out staircase and floor concrete form-work, carpentry. The Respondent in RSR The Respondent's evidence is a memo of a phone attendance between the referee and an employee of the Respondent on 29/8/14. RSR submitted "contrary to the referee statement, the Referee advised the Respondent on 29/08/14 that this site was not a site where Applicant gained experience of wide ranging building work. Taking this into account, along with the limited tasks the Applicant completed, the Respondent is of the view that the Applicant has not demonstrated wide range of the roles and responsibilities required of a builder at this site." Tribunal finding and reasons The phone note made no specific mention of this site. I find that the evidence before the Tribunal of the Respondent's record of the phone call does not support this submission and is not consistent with the referee's certificate on 8/5/15. The Applicant also gave oral evidence of work on this site including supervising and carrying out work for a range of trades. I find that the Applicant gained relevant experience for 4.5 months. 64 GRAY STREET WOONONA - construction of four townhouses Reference by Mr Carmello Vescio for the period 2.2.98 – 30.6.98 Setting out, preparing foundations, steel placing Phone memo between the Respondent and Mr Carmello Vechio on 29.8.14 Site foreman and leading hand, liaised with client, supervised and directed subcontractors, planned day to day running of the site. On-site longer than four months in 98, job finished 99. The Applicant was on site the whole time. Supervised the site if builder not there, hands-on trade work, helped with carpentry, roof trusses, prepared site for council inspection before concreting, experience in structural stage. 10% supervising 90% trade work. Second reference by Mr Carmello Vechio Assisted with site setup, formwork, installing steel, supervised carpentry, bricklaying, plumbing, electrical, excavation works, floor tiling, carried out carpentry, plumbing, painting, scaffolding, granosite (?) application RSR Determine 4 months experience Tribunal finding and reasons I observe that notwithstanding the evidence and the 2013 Instrument the Respondent discounted the supervision experience of the Applicant. I find that the Applicant gained relevant experience for 5 months. 17C MORVEN ST GUILDFORD - building four townhouses Reference by Mr Carmello Vescio for the periods 10.6.97 – 28.12.97 & 28.2.98 - No details provided Phone memo between the Respondent and Mr Carmello Vechio on 29.8.14 Site foreman and leading hand, liaised with client, supervised and directed subcontractors, planned day to day running of the site. Supervise the site if builder not there and hands-on trade work helped with carpentry, roof trusses, prepared site for council inspection before concreting, experience in structural stage. 10% supervising 90% trade work. On site between 1995 and 1999 for approximately one third of time during that period. Second reference by Mr Carmello Vechio for the periods 10.6.97 – 28.12.97 & 28.2.98 – 25.12.98 Supervise excavation works, carpentry, bricklaying, roof tiling, carpet laying, painting, pest control, plumbing, carry out carpentry, damp proofing, prepare concrete slab, internal stair. The initial reference provides no details of any work by the Applicant on the site. The second reference states the Applicant supervised 11 distinct trades or areas of work. No mention of carrying out trade work himself. Oral evidence by the Applicant included that he assisted or carried out work in 10 trades / areas and observed fencing work. The Respondent submitted that the Applicant only 'assisted with setting out, ordering materials and carpentry". This submission as to limited work is not supported by the phone note or any other evidence before the Tribunal. I find the Applicant gained relevant experience in a wide range of building work from 10/6/97 to 28/12/97 at 2 days a week. This is 40% of 6.6 months = 2.6 months. Tribunal finding and reasons For the period 28/02/98 to 30/06/98 the Applicant cannot have been at the site full time if he was also at Gray St. The combined Gray St and Morven St sites involved full time work by the Applicant in a wide range of relevant work. I have credited this time in the Gray St work. For the period 01/07/98 – 25/12/98 I allow 1/3rd of 5.8 months = 1.9 months I find that the Applicant gained relevant experience for 4.5 months. 21 OAKVILLE STREET WILLOUGHBY (sometimes described at 17 Oakville St) - new dual occupancy Reference by Mr Carmello Vescio for the period 10.7.00 – 27.12.00 Setting out and site setup at 17 Oakville St Willoughby. Second reference by Mr Carmello Vescio. Work at 21 Oakville St Willoughby. Attached dual occupancy. Carry out site set up and set out. Supervise plumbing detention tank, concreting waffle pad system used installation of structural steel and on-site welding. RSR The Respondent's evidence is a memo of a phone attendance between the referee and an employee of the Respondent on 29/8/15. RSR submitted "contrary to the referee statement, the Referee advised the Respondent on 29/08/14 that this site was not a site where Applicant gained experience of wide ranging building work. Taking this into account, along with the limited tasks the Applicant completed, the Respondent is of the view that the Applicant has not demonstrated wide range of the roles and responsibilities required of a builder at this site." The phone memo made no specific mention of this site. Tribunal finding and reasons The Applicant gave oral evidence which was not challenged. His evidence included his involvement in preparation of steel off-site including painting beams and both assisting and supervising plumbers involved in easement works. This evidence assists in clarifying wording of the second reference and the very general wording of the initial reference namely "Setting out and site setup." However notwithstanding the clarification the evidence does not satisfy me on the balance of probability that the Applicant's work on this site involved a sufficiently wide range of building construction work I am not satisfied that the Applicant gained relevant experience on this site. 57 QUEEN STREET NORTH STRATHFIELD (sometimes described as 1 Queen St) – building 4 town-houses Reference by Mr Carmello Vescio for the period 1.7.98 - 30.11.98 Assist site set up & setting out Second Reference by Mr Carmello Vescio Employed full time. Note at Morven St for 1/3 of that period. Supervise D-9 excavated laser level operation works, carpentry formwork, concreting, plumbing, steel fixing, concrete pouring and pumping, assisted with site set up and setting out building temporary facilities. RSR The Respondent submitted "Working full time at other sites" and "Referee advised that this site was not one where Applicant gained experience of wind-ranging building work." The Respondent determined the Applicant gained no relevant experience. Tribunal finding and reasons Neither of the Respondent's above submissions are supported by the evidence. Mr Carmello Vechio's initial reference stated the Applicant was employed full-time during 1998. A phone note made by the Respondent on 29 August 2014 at page 40 in the s. 58 documents states that the referee said the Applicant was on Morven Street "approximately 1/3 of the time between 1995 to 1999". It is unclear as to the extent to whether that statement means one third of the time spread evenly between 1995 and 1999 or whether more time was worked at that site during part of that period and less time during another part of the period. I am of the opinion that it is reasonable to accept that the Applicant averaged 1/3 of 1995 – 1999 working at Morven St across the whole period. Accordingly as the evidence is that the Applicant worked full time for the referee in 1998 and as there is no evidence that any other work was carried out by the Applicant from1.7.98-30.11.98 I find that the Applicant worked on the site for 2/3 of the period, namely 2/3 of 5 months. I find that the Applicant gained relevant experience for 3.3 months. 2 caledonia street rose bay – major internal and external alterations and additions Reference by Mr Kendall for the period 8.1.10 – 12.12.10 Project manager electrical package including developing scope with client/builder/architect The Respondent's phone memo with Mr Kendall The Applicant is mainly an electrician and primarily carried out electrical work. Oral evidence of the Applicant The scope of work he developed was the scope of the whole job, not merely the electrical work. He took delivery of materials, carried out some management on the side, some electrical design work and some electrical and other building work. In cross-examination. He said the non-electrical building work was in the order of 15%-20% of the work he undertook. Second reference by Mr Kendall Work carried out - Alterations and additions - major internal and external modifications. Role of the Applicant Assisted with bricklaying plastering wet and dry, carpentry, tiling, delivery of materials, solid glass installation. Supervised roofing, dry and wet plastering, carpentry, plumbing, bricklaying, installation of fireplace. Carried out storage and delivery of materials, project manage the electrical scope with client / builder / architect / designer. RSR The Respondent stated in RSR that the Referee had provided further evidence in telephone conversations with the Respondent. "Please see Appendix 1 for details". I observe that no "phone note" of any further conversations were provided by the Respondent. In the appendix in relation to this site the role of the Applicant "taken from referee statements and conversations" was said to include assisting with bricklaying, plastering, carpentry, tiling, glass installation, supply of materials and floor heating; and supervision of roofing, plastering, carpentry, plumbing, reclaiming and installation of fireplace. The appendix goes on to state "main electrician - project manage the electrical scope of works with client and stakeholders"; "Applicant undertook roles and responsibilities of builder for 20% of time" and then in relation to "Experience gained" "11 months at 20% = 2.2 months" Tribunal finding and reasons I accept the Respondent's determination. I find that the Applicant worked on the site for a period of 11.2 months. I find that the majority of the work involved his electrical trade. I find that he carried out a wide range of building construction work for 20% of 11.2 months. I find that the Applicant gained relevant experience for 2.2 months. 49 GARDERE AVENUE CURL CURL (sometimes described as 49 Gardre St) – construction of new 2 storey dwelling Reference by Mr Kendall for the period 17.1.07 – 29.8.07 Employee as electrician then leading hand/supervisor/managed client expectation. The Respondent's phone memo with Mr Kendall 2.9.14 Job was takeover from another builder, finish steel frame home-cladding, tiling, kitchen, plumbing, electrical, hebal panel Double story dwelling with steel frames, the Applicant was involved in supervision 10% of the time but exposed to 50% of management duties while learning. Subcontracted for electrical work. Also involved in building work. Did not pay the applicant for building experience. The Applicant was still at early stages of gaining building experience. Interpreted plans and applied codes and legislation. Did not oversee structural principles. The Applicant's oral evidence He was paid for electrical work but not paid for general building work. Second reference by Mr Kendall The work involved the construction of new two story dwelling including a granny flat. The Applicant supervised plastering, painting, plumbing, carpentry, delivery of materials, assisted with carpentry, tiling, plumbing and wall panelling (hebel) carried out client consultation, steel frame construction, waste disposal RSR Applicant initially contracted as electrician then assisted with other roles including: cladding, tiling, carpentry, kitchen installation, plumbing, electrical, panelling, client consultation, waste disposal and steel frame construction. The Respondent submitted that there was relevant work of 4.2 months being seven months at 60%. Tribunal finding and reasons I have regard to the Applicants concession that he was not paid for the building work and the evidence that he did about 10% supervision and 50% of management. I accept the Respondent's submission that there was relevant work of 4.2 months. 31 LODGE STREET BALGOWLAH – replace part of roof, rebuild deck, replace doors, steps and railing, prepare for painting Reference by Mr Kendall for the period 9.10.8 – 15.12.8 All of replace roof, renovate deck, carpentry, electrical, plastering, joint effort The Respondent's phone memo with Mr Kendall 2.9.14 Non-structural renovation/refurbishment. The Applicant subcontracted for electrical and helped manage the trades on-site, coordinated painters, carpenters, quality control. Supervising about 30% of the time. Determine 2 months at 30% = 0.6 months Second reference by Mr Kendall The work involved replace existing roof, rebuild rear deck, replaced doors, steps and railing, plaster and prepare for paint. The Applicant coordinated subcontractors, carpenter, plaster, assisted with carpentry, roofing, carried out installation of insulation, bracing. Finding I find the Applicant gained experience in a wide range of relevant work including 0.7 month's supervision and 1.5 months' trade work during a period of 2.2 months on site. I have allowed half of the trade work time as the Applicant also carried out electrical work for which he was already licensed. I find that the Applicant gained relevant experience for 1.4 months. 53 POZIERES PARADE ALLAMBIE HEIGHTS (sometimes described as Manly) – installation of sliding door and 2 high sets of windows Reference by Mr Kendall for the period 6.7.08 – 30.07.14 All of cut out brickwork, install high light windows, finish off. The Respondent's phone memo with Mr Kendall 2.9.14 The Applicant's mother contracted Kendall for renovation work/refurbishment work - very small job. Job only went for a couple of weeks. Second reference by Mr Kendall The work involved installation of a sliding door on the lower floor on the eastern elevation and 2 high set windows on the lower floor on the southern elevation. The Applicant carried out inspection with council and structural engineer, oversaw structural principles. Carried out planning & building program. Remove brickwork, window and door carpentry of loadbearing walls, structural lintels steel and timber. Supervised and assisted with plastering, fit out carpentry & bricklaying. Tribunal finding and reasons I agree with the Respondent's determination in the appendix to RSR. I find that the Applicant gained relevant experience for 0.5 months. 1. I have found that the Applicant has over thirty-three months' relevant industry experience in a wide range of building construction work. 2. In making my findings I had regard to the evidence referred to at [31] above and references in RSR to conversations with the referees on 29 August 2014 and in May 2015. The conversations in 2014 are supported to an extent by phone memos. I considered the Respondent's submissions as to the May 2015 conversations although no evidence was presented in support of the conversations. I observe that each of the referees has provided three written and signed statements. To the extent that the written statements differ from the phone memos of August 2014 or the submissions as to phone conversations of May 2015 I have preferred the written statements. It is regrettable that neither party called either of the referees to give evidence during the hearing. I also observe that the Applicant's oral evidence in the hearing as to work he carried out at Sylvania, Forestville, Willoughby, Allambie Heights and Balgowlah was not challenged in cross examination. 3. I observed that the Respondent's phone notes of discussions with councils stated that there was no record of: 1. a DA for Cook St Forestville. The Applicant produced a notice of determination for a DA by the council. 2. A DA for 17 Oakville Rd Willoughby. The initial reference for the Willoughby site had referred to the wrong address in Oakville St and misled the Respondent. The second reference showed the correct address and the Applicant produced an appropriate consent to a DA for that address. 3. a DA for 1 Queen St North Strathfield, the address in Mr Carmello Vechio's first reference. In his second reference Mr Carmello Vechio gave the address as 57 Queen St and the Applicant produced a notice of consent to a DA for that address. 1. The Respondent submitted at [1] that the Decision was based on: (i) a number of the sites listed by the Applicant were not supported by a Referee Statement; (ii) the Applicant was not lawfully engaged or employed to work with Mr Aaron Kendall in relation to 1 of the sites listed, as he was not financially renumerated (sic) at the relevant times; (iii) the Applicant did not gain experience in overseeing structural principles on a building site whilst working with Mr Kendall and so cannot be considered capable of undertaking the roles and responsibilities required of a builder; (iv) a significant amount of the experience listed by the Applicant was restricted to electrical work; (v) a portion of the work listed by the Applicant appears to be renovation/refurbishment where no structural work was required. 1. Having considered the evidence before the Tribunal, I find in relation to the above submissions that: 1. There is no evidence to support submission (i). 2. Submission (ii) relates to work at the Gardere Ave site. I have accepted the Respondent's submission that the Applicant be credited with 4.2 months relevant work at that site. 3. Submission (iii) refers to an alleged lack of "experience in overseeing structural principles on a building site whilst working with Mr Kendall". I observe that the phone note made by an assessing officer of the Respondent which appears at page 42 of the s. 58 documents and refers to a discussion with Mr Kendall included "…he did not oversee structural principles on his sites." However the confirming statement by Mr Kendall included "another issue raised was that Paul did not oversee any structural components of any projects, however even though he was not totally responsible for the structural components he did gain some experience." Mr Kendall then gave a specific example "I note the Pozieres Pde project where Paul was involved with the designer plans, specification, management of the installation and liaised with the engineer to obtain structural certification." 4. The fact that an amount of the work carried out by the Applicant was electrical work, as stated in submission (iv) has been taken into account in considering the amount of relevant non-electrical work carried out. 5. The submission that "a portion of the work listed by the Applicant appears to be renovation / refurbishment where no structural work was required" in (v) above is noted. However the experience required to satisfy the statutory test is "relevant industry experience in a wide range of building construction work". There is no evidence that in order to be relevant, all work must be "structural work". 1. At [45(ii)] the Respondent stated that he had "determined that … The Applicant has not demonstrated he has the ability to coordinate, supervise and manage general building construction work across all stages of construction". This is not the statutory test, which refers to "a wide range of building construction work" not "all stages of construction". 2. At [58] the Respondent submitted that: the Applicant has not demonstrated that he has undertaken constructions and supervised the various trades in relation to new residential dwellings and/or major residential additions/renovations The submission is contrary to the referees' evidence and is rejected. 1. At [72]-[74] the Respondent referred to statements purportedly made by Mr Carmello Vechio in a telephone conversation on 29 May 2015. The Respondent submitted that Mr Carmello Vechio said "the Applicant needs further experience before he would be capable of constructing a six story residential dwelling". That may well be have been Mr Carmello Vechio's opinion, however it is not the statutory test. During the conversation Mr Carmello Vechio also apparently said "the Applicant is capable of building a duplex" which again, is not the statutory test. I observe that in his confirming statement Mr Carmello Vechio wrote: "Paul has demonstrated a level of acknowledgement and experience work, which will allow him to completely perform the roles as a competent Builder, this includes… Planning building and construction projects….The applicant has proved beyond reasonable dought (sic) that he has experience across most stages of the building process to supervise the construction of a residential dwelling.." 1. The Respondent also submitted at [75] and [76] that Mr Kendall said in a telephone conversation on 19 May 2015 "the Applicant is capable of building a two-storey residential home, but is not capable of managing a number of projects concurrently" and "the Applicant is very competent, has the skills necessary to obtain a building licence and is diligent with his paperwork". Once again these statements may represent the opinion of one of the Applicant's referees however the first (negative) statement does not reflect the statutory test. 2. The Respondent cited two decisions of the former Administrative Decisions Tribunal. They were Thukral v Commissioner of Fair Trading [2006] NSWADT 356 and Locking v Department of Finance and Services [2013] NSWADT 239. 3. In Thukral Moloney JM said at [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 engaged in residential building work, and makes provision as to their competence, fitness and solvency, and their discipline. It regulates contracts for residential building work, both as to their competence, fitness and solvency, and for their discipline By issuing contractor licenses 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." 1. There is no dispute between the parties in relation to the Act being part of a consumer protection scheme nor that the Respondent has statutory powers and obligations in relation to issuing relevant licences and certificates. The dispute in this matter relates to whether or not the Applicant has complied with the conditions of the statutory instrument issued by the Respondent. 2. In relation to Locking the Respondent at [59] provided an excerpt from the decision of Hennessy DP who stated at [17]: " experience in carpentry and joinery work is not the equivalent of "a wide range of building construction work" as required by the Instrument. It is only one aspect of the work to be done in order to complete the construction of a residential building". The Respondent submitted that electrical work was equivalent to carpentry work in that respect. There is no dispute on this point. 1. The Respondent also provided an excerpt from [18] of Locking in which Hennessy DP said: "a building contractor has the overall responsibility for a site and must be able to supervise all the trades required to complete the dwelling. Additionally a builder must be able to determine that all trades have complied with all the standards and requirements. There are many gaps in Mr Locking's trade supervisory experience and therefore his understanding of certain trades. Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing". 1. The reasons for the decision in Locking indicate that the applicant in that matter had minimal experience, certified by an appropriate referee, that the applicant had carried out any work other than that associated with carpentry and joinery. 2. I observe that the Applicant's referees have certified that he has carried out or assisted or supervised work in all of the trades referred to by Hennessy DP, other than stonemasonry, decorating and fencing, the latter of which he observed. I also note that the statutory test is not that the Applicant has relevant industry experience in all trades, the experience is required to have been gained in "a wide range of building construction work". Decision 1. Having regard to my above findings on the material before me I am satisfied that the Applicant has met the statutory requirements for the issue of the licence he sought in the Application. The correct and preferable decision is that the licence be granted Orders 1. The Tribunal's orders are: 1. The decision under review is set aside. 2. In substitution for that decision the general building work licence applied for by the Applicant is granted. 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: 04 September 2015