Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 Hearing dates: 8 February 2017 Date of orders: 23 August 2017 Decision date: 23 August 2017 Jurisdiction: Occupational Division Before: K Ransome, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE REVIEW – Home Building – Application for contractor licence – Qualification and experience requirements set out in an instrument issued by the respondent – Whether making of a binding instrument is authorised by the legislation – Finding that the instrument is a policy – Whether the applicant meets the terms of the instrument, read as a policy – Whether the Tribunal is satisfied that the applicant has the requisite experience to be a builder – Applicant cannot verify their own experience Legislation Cited: Administrative Decisions Review Act 1997 Home Building Act 1989 Home Building Amendment Act 2014 Home Building Regulation 2004 Home Building Regulation 2014 Cases Cited: Grewal v Commissioner for Fair Trading [2014] NSWCATOD 101 Shoobridge v Commissioner for Fair Trading [2015] NSWCATOD 42 Trengrove v Commissioner for NSW Fair Trading, Department of Finance and Services [2015] NSWCATOD 131 Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 Category: Principal judgment Parties: Manuel Limberis (Applicant) Commissioner for Fair Trading (Respondent) Representation: Counsel: T Davie (Applicant) Solicitors: Pritchard Lawyers (Applicant) Commissioner for Fair Trading (Respondent) File Number(s): 2016/00378734, 1620172 REASONS FOR DECISION 1. Mr Manuel Limberis has applied for the Tribunal to review a decision to refuse his application for a contractor's licence in the category of "general building work." The Commissioner for Fair Trading refused that application because the Commissioner was not satisfied that Mr Limberis had demonstrated that he had the relevant experience to be granted the licence. That is, that he had a minimum of two years relevant industry experience in a wide range of building construction work. In addition, the Commissioner was not satisfied that Mr Limberis is a fit and proper person to hold such a licence. Background 1. After leaving school, Mr Limberis obtained an engineering degree. From 1943 to 1991 he worked for Concrete Constructions (NSW) Pty Ltd as an Engineer, then Site Manager and, ultimately, Project Manager. The company was responsible for large civil and commercial constructions in Sydney and Newcastle. 2. In October 1991 Mr Limberis was issued with a contractor licence (Builder) and then formed a building company Kamarga Constructions Pty Ltd. The company, which also held a contractor licence, built several residential houses. From 1991 to 2000 Mr Limberis was employed by McDonald's Corporation co-ordinating the construction of McDonald's restaurants in NSW and the ACT. Between 2000 and 2004 Kamarga Constructions Pty Ltd again carried out residential building work in Sydney. The company also undertook Home Owners Warranty insurance work following the collapse of HIH Insurance. 3. In 2004 Mr Limberis let the licences held by him and Kamarga Constructions Pty Ltd lapse and deregistered the company. He then travelled to Greece. Mr Limberis states that between 2005 and 2015 he was engaged on several commercial construction projects. 4. Mr Limberis states that from January 2011 until April 2014 he was engaged as the construction manager for Buildtech Plumbing and Building Pty Ltd (Buildtech). Mr Limberis describes 12 residential building projects for which he said his role was primarily to oversee, supervise and co-ordinate the works. In 2014 he states he was also responsible for a commercial/industrial building project in Sydney. 5. In 2015 Mr Limberis decided to obtain a contractor licence and successfully completed a Certificate IV in Building and Construction (Building). After lodging his application for the licence on 16 October 2015, Mr Limberis was asked by the Commissioner to provide further information, namely, references from licensed builders (who had supervised the work) verifying that he had 12 months recent experience in carrying out a wide range of building construction work. The references were to be supplied on a form issued by the Commissioner. 6. Mr Limberis did not supply referee statements from licenced builders on the relevant form and the application for the licence was refused on the basis that he did not meet the experience requirement. He then sought internal review of that decision. He advised the Commissioner that, in relation to the commercial work he had been engaged in, he did not have a supervisor who was a licenced builder. He provided two referee statements from building owners, or a person authorised by the owner, to attest that he had recently carried out building work for the owners and the nature of that work. 7. In conducting the internal review, the Commissioner became aware of some other matters relating to Mr Limberis. These concerned matters which had not been disclosed by Mr Limberis on the application form and which, in the view of the Commissioner, went to Mr Limberis' fitness and propriety to hold the licence. 8. On 10 June 2016 Mr Limberis was notified that the original decision to refuse the licence was confirmed on internal review. The reviewer determined that Mr Limberis did not meet the experience requirements for the licence and, furthermore, based on the matters not disclosed by Mr Limberis on the application form, he is not a fit and proper person to hold the licence. The legislative scheme 1. The Home Building Act 1989 (the Act), and its associated regulations and instruments, regulate the residential building industry in NSW. Importantly, the Act establishes a licensing scheme for builders. In order to be granted a licence an applicant must satisfy various requirements. The issues that are of concern in this application are whether the applicant has the relevant experience to be granted a contractor licence and whether he satisfies the requirements of fitness and propriety. Qualifications and experience 1. Section 33C(1)(b)(i) of the Act provides that a licence must not be issued unless the Secretary is satisfied that the applicant, if also applying for an endorsement of the contractor licence, "satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant". 2. Section 33D provides: 33D Additional requirements for obtaining supervisor and tradesperson certificates (1) A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant: (a) has such qualifications or has passed such examinations or practical tests, or both, as the Secretary 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 Secretary 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. On 5 January 2015 the Secretary's delegate, the Commissioner, in a document which is described as being an "Instrument" under s 33D(1), 1. determined the possession of qualifications or the passing of examinations; and 2. considered the possession of experience, necessary for an applicant to be issued with a licence or certificate. 1. The Instrument is titled "Qualification requirements for an endorsed contractor licence or supervisor certificate for general building work". This was the Instrument current at the time Mr Limberis applied for the licence and is the one relevant to these proceedings. The Commissioner was satisfied that Mr Limberis satisfied the qualification requirements for the licence as set out in the Instrument. 2. In relation to experience, the Instrument requires an applicant to have at least two years' relevant industry experience in a wide range of building construction work, where the majority of that experience was obtained within 10 years of the date on which the application for the licence was made. The Instrument defines experience as follows: "Experience" means experience gained by the applicant as: 1. an employee of; or 2. a holder of a supervisor certificate and as a nominated supervisor for the contractor licence held by; or 3. a holder of an endorsed contractor licence contracted to; or 4. a holder of a supervisor certificate in the capacity of a nominated supervisor for a contractor licence held by an individual, partnership or corporation contracted to, 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 the applicant, during the relevant period, 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 ● remunerated with money in accordance with law for Work which the applicant carried out. 1. Information provided to applicants states that all their referees must complete the approved "Referee Statement" form. Fitness and propriety 1. Section 20(1)(a) of the Act provides that an application for a contractor licence must be refused if "the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence". In determining whether an applicant is a fit and proper person to hold a licence, "the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity" (s 20(1A)). Does the applicant possess the necessary experience? 1. Before answering this question, it is necessary to deal with the submissions of the parties on their differing views of what an applicant for a contractor licence in the category of general building work is required to demonstrate. The applicable requirements 1. Until 15 January 2015, the statutory scheme for the licensing of contractors and supervisors was set out in Part 3 of the Act and Part 4 of the Home Building Regulation 2004 (the 2004 Regulations). On 15 January 2015 amendments were made to the Act by the Home Building Amendment Act 2014. The 2004 Regulations were repealed and the Home Building Regulation 2014 (the 2014 Regulations) commenced. 2. Since 15 January 2015 the licensing scheme has been set out in Part 3 of the Act and Part 3 of the 2014 Regulation. 3. At all relevant times (save for the replacement of "Director-General" with "Secretary"), s 20(2) of the Act has provided: The regulations may fix or provide for the Secretary to determine additional standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued. 1. Clause 26 of the 2004 Regulations required the Director-General to be satisfied that an applicant for a contractor licence complied with the requirements prescribed in Clause 28. Clause 28 of the 2004 Regulation relevantly provided: 28 Additional requirements for obtaining certificates (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. The requirements in clauses 26 and 28 of the 2004 Regulations are now set out in sections 33C and 33D of the Act as amended. These are set out in paragraphs 16 and 17 above. 2. As also set out above, the Instrument made by the Commissioner on 5 January 2015 was said to be made under s 33D(1) of the Act. The applicant submits that s 33D(1) contains no power to make an instrument and the 5 January 2015 Instrument was therefore not made under s 33D(1). It was further submitted that there is no suggestion that the Instrument of 5 January 2015 was made under any other provision of the Act or the 2014 Regulations as in force at the time. 3. The applicant submits that the Instrument is not an instrument made under an Act or Regulation and therefore is not binding upon the Tribunal. The Instrument is, in fact, a "policy" to which, in accordance with s 64 of the Administrative Decisions Review Act 1997, the Tribunal must give effect "except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case". The Applicant states that, in his case, the policy produces an unjust result and should not be rigorously applied in his case. 4. The Commissioner submits that the Minister, in his second reading speech for the Home Building Amendment Bill 2014 made clear that the purpose in transitioning the licensing scheme from the 2004 Regulation was to consolidate the licensing and certification provisions into a single Act. The Commissioner states it was not intended to alter the qualification and experience requirements placed on applicants or to alter the status of the instrument, previously made under cl 28 of the 2004 Regulation, from a statutory instrument to a policy. 5. The Commissioner argues that an omission occurred in the drafting of the Act and referred to a number of cases which permit a court or tribunal to correct an obvious error in the drafting of a statutory provision. The Commissioner submits that, applying the principles arising from these cases, s 20(2) should be read as referring to "Section 33 D" rather than "The regulations". 6. It was further submitted that, if s 20(2) is read in that way, s 20(5) of the Act which provides that a decision of the Secretary relating to determining standards or other requirements under s 20(2) cannot be reviewed by the Tribunal, would prevent the Tribunal from going behind the Instrument. 7. These matters have recently been considered by the Tribunal in Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108. There, the Tribunal held that the Tribunal could not read s 20(2) in the way proposed by the Commissioner. At [35] the Tribunal stated: … the terms of s 20(2) do not lead to any "manifest contradiction of the apparent purpose of the enactment" or to any "inconvenience or absurdity which can hardly have been intended." There is no reason why the 2014 Regulation could not be amended, or a new regulation made, to fix or provide for the Secretary to determine additional standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued. The fact that it does not currently do so does not make it legitimate for the Tribunal to read s 20(2) as referring to s 33D rather than the regulations. 1. The Tribunal went on to say that the proper characterisation of the Instrument is that it is a policy and at [39] that: The Tribunal is required to give effect to "Government policy", except in certain circumstances, the term "Government policy" being defined to mean a policy adopted by the Cabinet, a Minister or the Premier (Administrative Decisions Review Act, s 64(1) and (5)). There is no evidence that the Instrument has been adopted by the Cabinet, a Minister or the Premier. It purports to have been made by the respondent and I accept that that is the case. The Tribunal "may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case" (Administrative Decisions Review Act, s 64(4)). 1. While the Instrument referred to in Whitehouse is one which was issued later in time than the one relevant to Mr Limberis' application, the relevant circumstances and legislative provisions are the same. I agree with the conclusions reached by the Tribunal in Whitehouse that the Act does not authorise the Commissioner to make an Instrument under s 33D(1) and that the Instrument purportedly issued by the Commissioner is a policy and does not have the status of delegated legislation. 2. The Instrument, being a policy, therefore falls to be applied in the manner set out in s 64 of the ADR Act. 3. The policy requires an applicant for the licence to have two years' experience in a wide range of building construction work, the majority of which was obtained in the 10 years preceding the application for the licence. Mr Limberis has not argued that this aspect of the policy should be departed from by the Tribunal and I see no reason to do so. The requirement that an applicant for the licence should have current relevant experience is a sensible one. 4. Mr Limberis states that he has the relevant experience required by the policy as set out in the Instrument, but concedes that he does not strictly meet its requirements as he does not have references from holders of contractor licences who have supervised his work. Mr Limberis submits that, in his case, rigid application of the policy would produce an unjust result. 5. Mr Limberis states he is unable to provide a reference from the director of Buildtech, Mr Roger Coulthard who is a licenced contractor, because he has been engaged in litigation with Mr Coulthard since 2014 over money he is owed by Mr Coulthard. Mr Limberis states he was supervised and directed by Mr Coulthard in the carrying out of the work. 6. The Commissioner has sought to cast doubt on whether Mr Coulthard in fact supervised the work carried out by Mr Limberis. For present purposes it is not necessary to decide that issue. If, as Mr Limberis contends, he is unable to obtain a reference from the only person qualified within the terms of the policy to give one, strict adherence to the requirement may indeed produce an unjust result. In those circumstances, Mr Limberis should be given an opportunity to provide other evidence of his experience. 7. In his evidence, Mr Limberis states that between 2011 and 2014 he was engaged by Buildtech and lists a number of projects and the work he says he undertook. Mr Ian Slee, a construction surveyor, has given evidence that from January 2011 to September 2013 he was engaged as a surveyor by Buildtech on five projects and that on each of these projects Mr Limberis was the construction manager for Buildtech. Mr Slee does not, however, give details of those projects, their duration or the nature of the work performed by Mr Limberis. His evidence is too lacking in detail to assist the Tribunal in determining Mr Limberis's experience with Buildtech. 8. The only evidence therefore before the Tribunal about the work carried out by Mr Limberis is that given by him. The Commissioner has referred to several cases of the Tribunal in which it has been held that an applicant alone cannot verify their own experience: Grewal v Commissioner for Fair Trading [2014] NSWCATOD 101; Shoobridge v Commissioner for Fair Trading [2015] NSWCATOD 42; Trengrove v Commissioner for NSW Fair Trading, Department of Finance and Services [2015] NSWCATOD 131. That conclusion is clearly correct; otherwise the system would be open to abuse. 9. Mr Limberis has not provided any supporting documents which set out with any degree of detail or specificity the nature and duration of his employment with Buildtech. In relation to each of the projects he states he worked on, no detail of the amount of time spent by him engaged on work for that project is provided. For many, very little detail is given, including the dates of commencement and completion of the work or indeed sufficient information to allow the property to be identified. 10. In short, Mr Limberis has provided insufficient information to enable the Tribunal to undertake an assessment of whether he possesses the relevant experience to be granted the licence. 11. In light of this finding, there is no need for the Tribunal to assess the fitness and propriety of Mr Limberis to hold the licence. In the circumstances, the decision under review must be affirmed. Order 1. The decision under review is affirmed. ******** 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. 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