O’Connell v Commissioner for Fair Trading [2017] NSWCATOD 32

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: O'Connell v Commissioner for Fair Trading [2017] NSWCATOD 32 Hearing dates: 27 February 2017 Decision date: 07 March 2017 Jurisdiction: Occupational Division Before: K Ransome, Senior Member Decision: The decision is affirmed. Catchwords: HOME BUILDING – contractor licence electrical wiring work – instrument made under repealed 2004 regulation – whether applicant meets qualification requirements Legislation Cited: Home Building Act 1989 Home Building Amendment Act 2014 Home Building Regulation 2004 Home Building Regulation 2014 Category: Principal judgment Parties: Andrew O'Connell (Applicant) Commissioner for Fair Trading (Respondent) Representation: Solicitors: In Person (Applicant) Fair Trading Legal Services, Office of Finance, Services & Innovation (Respondent) File Number(s): 16/378790

REASONS FOR DECISION 1. This is an application by Mr Andrew O'Connell for review of a decision of the Commissioner for Fair Trading to refuse him an individual contractor licence in the category of electrical wiring work. The licence was refused on the basis that Mr O'Connell does not possess the required qualifications for the licence.

The legislative scheme 1. The Home Building Act 1989 (the Home Building Act) is part of the legislative scheme which regulates many aspects of the home building industry in New South Wales. The scheme is concerned to provide consumer protection including regulating the issue, suspension and cancellation of various licences in relation to residential building work. 2. On 20 December 2013 the Commissioner for Fair Trading in accordance with cl 28(1) of the Home Building Regulation 2004 (the 2004 Regulation) determined the qualifications, examination and experience requirements for electrical wiring work licences. The instrument setting out the required qualifications was published in the NSW Government Gazette on 10 January 2014. 3. At the time, the power of the Commissioner to determine the standards that had to be met before a contractor licence was issued was contained in s 20(2) of the Home Building Act. Since the determination was made, the Home Building Act has been amended by the Home Building Amendment Act 2014 which commenced on 15 January 2015. In addition, the 2004 Regulation has been repealed and replaced by Home Building Regulation 2014 (the 2014 Regulation). 4. The respondent submits, and I accept, that despite the repeal of the 2004 Regulation, the instrument of 20 December 2013 applies to Mr O'Connell's application. This is because cl 75(2) of the 2014 Regulation provides that any act, matter or thing that had effect under the 2004 Regulation continues to have effect under the 2014 Regulation. 5. Section 20(5) of the Home Building Act (both before and after the 2014 amendments) states that a decision relating to the determining of qualifications or other requirements in s 20(2) cannot be reviewed by the tribunal in an application for review made under the Act. That is, in the present circumstances, it is not open to the tribunal to review the fairness or otherwise of the qualification requirements set out in the instrument.