Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jones v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 142 Hearing dates: 30 May 2018 Date of orders: 23 August 2018 Decision date: 23 August 2018 Jurisdiction: Occupational Division Before: D A C Robertson, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW – Administrative Review - Home Building Act 1989 – application for contractor licence endorsed to be equivalent to a supervisor certificate – application of Instrument issued by the respondent Commissioner – whether the Tribunal is satisfied the applicant has the necessary breadth of experience – need for third party verification of experience Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Home Building Regulation 2014 (NSW) Cases Cited: Cooper v Commissioner of Fair Trading [2017] NSWCATAD 242 Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 Locking v Department of Finance and Services [2013] NSWADT 239 Shoobridge v Commissioner for Fair Trading [2015] NSWCATOD 42 Thukral v Commissioner of Fair Trading [2006] NSWADT 356 Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 Category: Principal judgment Parties: Russell Jones (Applicant) Commissioner for Fair Trading, Department of Finance, Services and Innovation (Respondent) Representation: Solicitors: Adams Partners Lawyers (Applicant) Legal Services, Fair Trading (Respondent) File Number(s): 2018/00048283 REASONS FOR DECISION 1. The applicant, Mr Jones, holds a contractor licence within the category of carpentry issued by the respondent, the Commissioner of Fair Trading ("the Commissioner") pursuant to the Home Building Act 1989 (NSW) (HBA). 2. On 11 September 2017 Mr Jones applied to the Commissioner to vary his contractor licence to include the category of general building work and for endorsement of the licence to show that it was the equivalent of a supervisor certificate. The application was refused by the Commissioner and Mr Jones requested an internal review. By a decision dated 12 January 2018 the internal reviewer confirmed the decision to refuse Mr Jones' application. 3. Mr Jones has brought these proceedings seeking review, pursuant to s 83B of the HBA and s 55 of the Administrative Decisions Review Act 1997 (NSW), of the Commissioner's decision to refuse his application for the variation and endorsement of his licence. 4. The Tribunal has jurisdiction to determine the application pursuant to s 9 of the Administrative Decisions Review Act, s 28(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) and s 83B of the HBA. 5. Pursuant to section 63 of the Administrative Decisions Review Act, in determining Mr Jones' application, I must decide what is the correct and preferable decision, having regard to the material before me. I am not limited to the material which was before the Commissioner's delegate or the internal reviewer. The Legislative Background 1. In what follows, all references to sections are to sections of the HBA, unless otherwise indicated. 2. Section 4(1) provides that a person must not contract to do any residential building work except as or on behalf of an individual, partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work. 3. Section 12 provides that an individual must not do any residential building work, or specialist work, except as, or as a member of a partnership or an officer of a corporation that is, the holder of a contractor licence authorising its holder to contract to do that work, or as the holder of an owner-builder permit authorising its holder to do that work, or as an employee of the holder of such a contractor licence or permit. 4. Section 13 provides that an individual must not do any residential building work, except as the holder of an endorsed contractor licence, a supervisor or tradesperson certificate or an owner-builder permit, authorising its holder to do that work, or under the supervision, and subject to the direction, of the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise that work. 5. Section 16 relevantly provides: The holder of a contractor licence must ensure that, when residential building work, … for which the contractor licence authorises the holder to contract is being done by or on behalf of the holder, the work is done: (a) by the holder of an endorsed contractor licence, or of a supervisor or tradesperson certificate, authorising its holder to do the work, or (b) under the supervision, and subject to the direction, of the holder of such an endorsed contractor licence or supervisor certificate, but only if the work is done so as not to contravene a requirement made by or under this or any other Act. 1. Section 19(1) specifies that the "Secretary" (defined in Schedule 1 as the Commissioner) may grant contractor licences for the purposes of the HBA. Pursuant to s 20(1)(a1), the Commissioner must refuse an application for a contractor licence if the Commissioner is not satisfied as to the matters of which the Commissioner is required to be satisfied by section 33C. 2. Section 21 provides that a contractor licence authorises its holder to contract to do any residential building work that is described in the contractor licence when it is issued (being work of a category or categories prescribed by the regulations). "General building work" is a category prescribed by the regulations (Home Building Regulation 2014 (NSW) reg 13(a)(ii)). 3. Section 24 provides that the Commissioner may issue certificates, including "supervisor certificates". Section 25(1)(a1) relevantly provides that the Commissioner must refuse an application for a supervisor certificate if the Commissioner is not satisfied as to the matters of which the Commissioner is required to be satisfied by section 33D. 4. Section 26 provides that a contractor licence issued to an applicant who the Commissioner considers is qualified to hold a supervisor certificate may be endorsed to show that it is equivalent to such a certificate. 5. Section 28 provides that an endorsed contractor licence authorises its holder to do (and to supervise) the same residential building work, or specialist work, as it authorises its holder to contract to do. 6. Section 33C(1)(b)(i) provides that, if an applicant for a contractor licence is also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate, the contractor licence must not be issued unless the Commissioner is satisfied that the applicant satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant. 7. Section 33D(1)(a) provides that a supervisor or tradesperson certificate must not be issued unless the Commissioner is satisfied that the applicant 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. 8. Section 33D(1)(b) provides that a supervisor or tradesperson certificate must not be issued unless the Commissioner is satisfied that the applicant has had experience of such a kind and for such a period as the Commissioner considers would enable the applicant to do, or to supervise, the work for which the certificate is required. The Decision under Review 1. In both the Commissioner's initial decision and the decision of the internal reviewer, the reason for rejection of Mr Jones' application was that he had not demonstrated that he had "two years' experience in supervising or carrying out a wide range of residential building construction work". It was accepted in both decisions that Mr Jones had the necessary qualifications and had passed the necessary examinations or tests so as to satisfy s 33D(1)(a). In Mr Jones' case this involved the completion of "Certificate IV in Building and Construction CPC40110" 2. In reaching their decision the Commissioner's delegate and the internal reviewer relied upon a document issued by the Commissioner dated 31 March 2017 and published in the NSW Government Gazette on 28 April 2017. 3. The document is headed "Instrument – Qualification requirements for an endorsed contractor licence or supervisor certificate for general building work" ("the Instrument"). 4. The Instrument sets out what the Commissioner has "determined" to be the necessary qualifications and experience for the issue of a licence or certificate for general building work. 5. The Instrument sets out the necessary experience, relevantly to Mr Jones' application, as: "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 is made." 1. The Instrument defines "Experience" as "experience gained by the applicant as: a) an employee of; or b) a holder of a supervisor certificate and as a nominated supervisor for the contractor licence held by; or c) a holder of an endorsed contractor licence contracted to; or d) 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 this is verified in the Relevant Application Form; and • received Remuneration in accordance with law for the Work which the applicant carried out." 1. The internal reviewer found, and the Commissioner maintained at the hearing, that Mr Jones' experience, as outlined in his application, was not of sufficient breadth, in that the preponderance of the experience involved carpentry and that Mr Jones had not demonstrated that he had been sufficiently engaged in supervision of other trades so as to show that he had experience "in a wide range of building construction work" 2. Although the internal reviewer also discounted some of the work experience relied upon by Mr Jones, on the basis that the work had been carried out before Mr Jones obtained a contractor licence in NSW, the Commissioner did not maintain that position before me. Mr Jones explained that he lived on the border between NSW and Victoria and that much of his experience had been in Victoria, where Mr Jones was not required to hold a contractor licence. Ms Pelesasa-Kalavite, who appeared for the Commissioner, acknowledged that Mr Jones' experience in Victoria may be taken into account, regardless that Mr Jones had not held a contractor licence in NSW at the time he had carried out that work. Ms Pelesasa-Kalavite also acknowledged that, if the experience in Victoria is taken into account, Mr Jones has more than two years' relevant experience. However she maintained the position that Mr Jones' experience does not have sufficient breadth to justify the grant of an endorsed contractor licence for general building work. 3. Ms Pelesasa-Kalavite acknowledged that the Instrument is not binding on the Tribunal: Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108. However, she submitted on behalf of the Commissioner that the requirements set out in the Instrument are appropriate and sound and ought to be followed by the Tribunal in determining the correct and preferable decision. She submitted that: "whilst the Tribunal is not bound by the Instrument, its minimum requirements ought to be accepted, as it safeguards the consumer protection objectives of the Act." 1. Ms Pelesasa-Kalavite also submitted that the Tribunal may have regard to the Instrument as a policy applied by the Commissioner, pursuant to s 64(4) of the Administrative Decisions Review Act. Ms Pelesasa-Kalavite referred to Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 where a Senior Member of the Tribunal found no reason to depart from the requirements of the Instrument in respect of work experience and stated, at [33]: "The requirement that an applicant for a licence should have current relevant experience is a sensible one." 1. Mr Singh, who appeared for Mr Jones, accepted that it is necessary for an applicant for a general building licence to demonstrate a broad range of experience but submitted that Mr Jones had done so. 2. Mr Singh also referred to Cooper v Commissioner of Fair Trading [2017] NSWCATAD 242 at [11] where a Senior Member of the Tribunal held that, in seeking to apply the Instrument without flexibility or discretion, the Commissioner was: "applying unnecessarily inflexible requirements to the process of obtaining a licence under the Act. …the Instrument 'may provide some guidance to those applicants wishing to apply to the Commissioner for a licence, but cannot be considered reflective of the eligibility requirements under the Act'…applying the Instrument inflexibly or allowing it to take precedence over the provisions of the Act would be an error of law. Taking the Instrument into consideration as government policy therefore necessarily provides for flexibility in its application." 1. I accept that it is appropriate to apply the Instrument as a policy, although not inflexibly. The issue in every case is whether the applicant has demonstrated, as required by section 33D(1)(b), that he or she "has had experience of such a kind and for such a period as … would enable the applicant to do or to supervise the work for which the certificate is required". 2. The issue which I must determine is whether Mr Jones has demonstrated sufficient experience, across sufficiently broad areas of construction, to warrant the grant of a contractor licence for general building work endorsed as equivalent to a supervisor certificate. The Evidence 1. The Commissioner tendered in evidence the material which was before the internal reviewer. That material included not only Mr Jones' application made in 2017 with its supporting documentation but also an earlier application made in 2016 and the documentation lodged with that application. 2. At the hearing before me Mr Jones tendered a bundle of documents which included a number of statements from Mr Jones and further references both from builders who had provided referee's statements in support of Mr Jones' applications and from an additional builder. 3. In his applications to the Commissioner Mr Jones relied upon references from Mr Noordennen, Mr Komadina and Mr Connelly. Before the Tribunal Mr Jones also relied upon a reference from Mr Collins. Each of those referees held a licence for general building work. Each referee provided a referee's statement on the standard form promulgated by the Commissioner setting out Mr Jones' experience under the supervision of the referee. Each referee attached to their statement one or more "Applicant's On Site Building Experience" forms, again in the standard form promulgated by the Commissioner, in respect of the projects on which Mr Jones had been engaged. 4. Each of the referee's statements included a declaration that: 1. The above named applicant was supervised by me, carrying out a wide range of building work for the time periods I have declared in the attached 'Applicant's On Site Building Experience' form. This work was whilst as an employee or as a sub-contractor, where they held an endorsed contractor licence or held a qualified supervisor certificate and were the nominated supervisor for a contractor licence. The work was financially remunerated. 2. I certify that the applicant has demonstrated a level of knowledge and experience in a wide range of building work which would allow him/her to competently perform the roles and responsibility of a licensed builder. This includes and is not limited to: • Applying building codes and standards to the construction process in accordance with the Building Code of Australia. • Dealing effectively with Sub-contractors, consumers and other parties. • Reading and interpreting plans and specifications. • Planning building or construction projects and work. • Organising site surveys and set-out procedures to building and construction projects. • Applying structural principals [sic] to residential constructions. • Conducting on-site supervision of building and construction projects. • Applying legal requirements to building and construction projects. • Managing occupational health and safety in a building and construction workplace. 3. I understand further enquiries may be made of me in giving this referee statement and that any information obtained by Fair Trading may be made available to the applicant. 4. I confirm that the attached 'Applicant's On Site Building Experience' form(s) covers ALL the building sites where I have supervised the applicant in respect of a wide range of building construction work. 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 On Site Building Experience' form(s). Mr Komadina 1. Mr Komadina attached to his statement in support of Mr Jones' 2017 application On Site Building Experience forms in respect of 19 separate building sites, 17 of which involved the construction of a new single dwelling house or dual occupancy. Two projects involved the construction of multi-dwelling unit or town-house complexes. 2. In a letter included with Mr Jones' 2016 application Mr Komadina stated: Russell Jones has been employed as a Carpenter by SSH on a sub-contract basis since 2nd February 2104. During this time Russell, along with the 3 other carpenters normally employed have built many homes, both "Spec" homes as well as some homes for clients. Russell has undertaken many tasks as a carpenter. Below is a generalised list of Russell's Roles and Responsibilities under SSH, SUPERVISION • Supervision of site cuts and general earthworks • Supervision of team undertaking landscaping on 'Spec Homes' HANDS ON CARPENTRY • Site investigations • Site Cuts • Set outs and Retaining Walls • Boxing for Slab and Footings • All aspects of domestic Framing • All aspects of domestic roof framing (pitched/trusses) • Lock Up Carpentry • Soffit framing/lining • Fix Out Carpentry • Fit off 1. In a letter included in Mr Jones' 2017 application Mr Komadina stated that, in his absence off site, Mr Jones had been responsible for issues such as work health and safety responsibilities, environmental management on site, liaison with Principal certifiers, building inspectors and other regulatory authorities, traffic management when required, overseeing of deliveries to site and quality control. Mr Komadina also stated that Mr Jones possesses excellent abilities in communicating with trades, regulatory authorities and others that visit the site, reading and interpreting plans and specifications, ensuring works are completed within time-lines allowed and ensuring works are maintained at the highest standard. 2. In Mr Komadina's referee's declaration accompanying Mr Jones' 2017 application, Mr Komadina had struck out the words at the seventh bullet point in paragraph 2, "conducting on site supervision of building and construction projects". I note that Mr Komadina had not struck out those words in the declaration provided in support of Mr Jones' 2016 application. In a letter dated 10 April 2018, which was not before the internal reviewer, Mr Komadina explained that he had crossed out that line because: "While working on my projects and occasionally supervising some tasks within a project, Russell never supervised the entire construction of any house for Sapphire Sky Homes. I was of the opinion that if I did not scratch out this line in the referee's declaration I would be suggesting that Russell supervised homes being built by my company from start to finish." Mr Noordennen 1. Mr Noordennen attached to his referee's declaration included with Mr Jones' 2017 application an On Site Building Experience form referring to two building projects, a single storey extension and a garage-studio. Mr Noordennen described Mr Jones' engagement in those projects as, respectively, "carpenter, erection of bearers and joists, roof framing, set out, flooring, framing and fixout" and "timber wall frames and trusses, architraves, skirting, windows and doors". In the form included in Mr Jones' 2016 application Mr Noordennen described the work in more expansive terms as, respectively, "set out extension, install stumps and bearers and joists, flooring and wall frames, roof framing, plastering and fixout" and "erect timber wall frames and trusses, fit aluminium windows and door architraves and skirting." 2. In a letter attached to the referee's statement included in Mr Jones' 2016 application Mr Noordennen stated: "Russell has been employed by Wara Homes on a sub-contract basis since 2013. During this time Russell has completed numerous jobs under my employ, some of which are listed on the attached Building Experience Register. Below is a general description of the skills and experience Russell has obtained in terms of Carpentry as well as site supervision. SITE SUPERVISION Often, insurance repairs call for initial "Make Safes" and these tasks often are dangerous with a wide variety of building scenarios. This requires all tradesman and persons involved to be vigilant and aware of OH&S in their surroundings. Russell has gained a substantial amount of experience in this area especially during the Mulwala Repair work that took place in 2013. A cyclone damaged several areas of the community and the repair work was substantial. A large amount of 'make safes' were carried out prior to works beginning. Russell was on site along with another carpenter for the duration of the repairs. HANDS ON Insurance work covers a very broad range of carpentry. Nearly every job has its own unique characteristic. To be successful it requires a vast building knowledge which often extends beyond that of normal building and construction. Russell has developed a large range of these skills and it is in my opinion that he should be granted a Contractor Licence, to further his Building Career." 1. In a letter dated 24 August 2017 attached to his referee's statement included in the 2017 application Mr Noordennen stated that: "As well as demonstrating excellent carpentry skills, Russell has also demonstrated a strong knowledge of all other trades. I have no hesitation in leaving Russell in charge of a work site for the following reasons: • Excellent knowledge of all facets of construction • Ability to supervise work sites and lead other trade persons • Sound knowledge of OHS and environmental management principles ..." 1. In a further letter dated 12 April 2018, which was not before the internal reviewer, Mr Noordennen stated: "Russell is not only a competent tradesman, he has also been employed as an on-site supervisor for Wara Homes, on storm-damaged homes as well as addition works to homes. As a sub-contract carpenter I have found Russell to be first class in his tradesmanship. During his time working for Wara Homes he has run jobs as a supervisor. I have had no hesitation in leaving Russell in complete control of the job which has included supervising other trades". 1. Mr Noordennen also provided in the letter of 12 April 2018 further details of the two projects the subject of the On Site Building Experience forms attached to his referee's statements. 2. In respect of the single storey extension, Mr Noordennen stated that this had involved a bedroom/ensuite as well as a timber deck. In respect of the garage-studio, Mr Noordennen stated that the work had involved the rebuild of a building destroyed in a storm and included "timber walls and trusses, metal roof, gyprock lined walls & ceiling". Mr Noordennen stated that in each case Mr Jones had supervised the works and other trades. Mr Connelly 1. Mr Connelly attached to his referee's statement included with Mr Jones' 2017 application an On Site Building Experience form referring to two building projects, the construction of a "pool/tennis complex" and the construction of multi-dwelling units. Mr Connelly described Mr Jones' involvement in those projects as, respectively, "carpentry – framing/eaves and fixout, site supervision when necessary" and "framing and roof frame". 2. In a letter attached to Mr Connelly's referee's statement, signed by Mr Connelly but also bearing the name of Mr Bradbury, a supervisor employed by Mr Connelly's company, Mr Connelly and Mr Bradbury stated: The Applicants On Site Building Experience Forms require the detailing of the applicants roles and responsibilities at the building site. On these forms, in this section, we have noted see attached as we have found there to be insufficient room to detail all of Russell's undertakings on these sites. In essence, Russell was involved in all carpentry works, sundry works where required and site supervision. When it was necessary for me (Alun Bradbury) to be off site, in my absence Russell has been responsible for site supervision in areas such as: • Supervising and providing guidance to other trades when required • Work Health Safety (WHS) responsibilities • Environmental management on site • Traffic management when required • Overseeing of deliveries to site • Quality Control From the enclosed Applicants On Site Building Experience forms you will note that Connelly Construction services engaged Russell's services on a sub contract basis over the past twelve months. Russell not only demonstrates excellent carpentry skills but also excellent abilities in the following area: • Supervise and lead a team of carpenters • Communicate clearly and effectively with other trades • Read and interpret plans and specifications • Ensure works are completed within the time-lines allowed • Ensure works are maintained at the highest standard Mr Collins 1. As noted above, Mr Jones also relied before the Tribunal upon a reference from Mr Collins which had not been lodged with his 2017 application and which had not been before the internal reviewer. Mr Collins provided a referee's statement dated 12 April 2018 to which were attached two On Site Building Experience forms covering four projects. Each of the projects involved the construction of a new single dwelling-house or dual occupancy. In respect of three projects, carried out between 8 January and 23 March 2018, Mr Jones' role is described as including "supervision" or "site supervision". The time period for which Mr Jones was carrying out work at those sites was recorded as eight, seven and ten days respectively. Mr Jones' role in the fourth project is described as "frame", which I understand to mean that Mr Jones' role on that project was limited to carpentry. 2. Mr Jones included in his bundle of documents a letter from Mr Collins addressed "to whom it may concern" dated 5 February 2018. In that letter Mr Collins stated: "I have engaged the services of Mr Russell Jones to perform both carpentry and supervision work within my business. I currently have 12 houses on the build and Mr Jones will be supervising the construction of 3 of these projects. Under his supervisory role he will liaise with and directly organise concretors, brick layers, electricians, plumbers, roofers, plasters and painters. These projects will run over the next 6-12 months. I am fully aware of Mr Jones' ability in these areas given his past employment experience where he has in fact been fulfilling the supervisory role on many projects for previous employers and has also having been employed by my business in the past in this role on a part time basis when required." Further evidence 1. Mr Jones' bundle of evidence also included a document headed "Russell Jones Building Experience Register" and a number of statements made by Mr Jones himself. One of those statements explained the contents of the experience register. In the other statements Mr Jones provided further details of the three projects he had been supervising for Mr Collins and details of projects he had undertaken on his own account. 2. In relation to his work for Mr Collins, Mr Jones stated that he had been involved on the three projects for eight, seven and ten days respectively and that his involvement had included supervision and carpentry including organising and supervising carpenters, electricians, plumbers, roof plumbers, concreters and bricklayers. 3. The work Mr Jones stated he had undertaken on his own account involved the erection of kit sheds and a free standing gable roof over the working area of cattle yards. Mr Jones stated that he had been: "solely responsible for the organizing and supervision [including] quoting, client liaising, ordering of materials including concrete and engaging of concreters, earthmovers and roof plumbers." 1. Mr Jones provided details, including photographs, of the gable roof over the cattle yards and another project he had undertaken on his own account involving the demolition and rebuilding of a verandah to a residential property. 2. The "Building experience register" provided by Mr Jones set out the days he had been engaged on each project the subject of On Site Building Experience forms filed with his application (and some additional projects amounting to 45 days) and indicated that he had been engaged in one way or another on various building sites for a total of 782 days. Mr Jones' explanatory document indicated that there was overlapping between the start and finish dates of different jobs as he had not been continuously on site at one job but had moved between jobs as need arose. The register included the start and finish dates for each job but Mr Jones identified in the register the number of days between those start and finish dates that he actually worked on the particular individual jobs. 3. Mr Jones suggested that a year's relevant experience would involve between 232 and 313 days. On either measure, the experience in the register would amount to more than two years. 4. In light of the concession by Ms Pelesasa-Kalavite recorded in paragraph [26] above, I need not consider whether Mr Jones' relevant experience exceeds two years. The issue to be determined is whether Mr Jones' experience is sufficiently broad. 5. I note at this point that Ms Pelesasa-Kalavite submitted that Mr Jones' evidence of jobs he had undertaken on his own account should not be taken into account as "an applicant alone cannot verify their own experience": Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 at [38]; Shoobridge v Commissioner for Fair Trading [2015] NSWCATOD 42 at [69]. Consideration 1. As was observed by the Administrative Decisions Tribunal in Thukral v Commissioner of Fair Trading [2006] NSWADT 356 at [6]: "The [HBA] 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 and solvency, and for their discipline … By issuing contractor licences 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. I accept the Commissioner's submission that it is appropriate to apply the Instrument as a policy applied by the Commissioner. Consistency in administrative decision making will be promoted by the application of the Instrument except where its application would produce an unjust result. 2. In this case the strict application of the Instrument would produce an unjust result to the extent that it required work performed by Mr Jones outside NSW to be disregarded. However the Commissioner has conceded that the Instrument should not be strictly applied in that regard and that Mr Jones' experience outside NSW should be taken into account. 3. As noted above, the question I must determine is whether Mr Jones has sufficient experience "in a wide range of building construction work." 4. In Locking v Department of Finance and Services [2013] NSWADT 239 at [17] - [19] Deputy President Hennessy stated, in holding that experience in carpentry and joinery work is not the equivalent of "a wide range of building construction work": "17 … Carpentry and joinery work is a sub-category of building. It is only one aspect of the work required to be done in order to complete the construction of a residential dwelling. 18 A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling. Additionally a builder must be able to determine that all trades have complied with all standards and requirements. … Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing. 19 A building contractor is also able to contract with the public, and must therefore be able to negotiate a contract, quote for a project and co-ordinate the trades to be able to complete the project on time and within budget. He or she must also be able to negotiate and discuss the jobs with council and private certifiers to ensure that the work is passed fit when appropriate." 1. The internal reviewer's conclusion that Mr Jones did not have sufficient experience in a wide range of building construction work was founded upon assessments: 1. That in his work for Mr Noordennen Mr Jones was "working in his trade as a carpenter" and therefore that work was not evidence of a wide range of building construction experience; 2. That by reason of the striking through of the seventh bullet point referring to supervision in Mr Komadina's referee's statement, it should be concluded that Mr Jones "did not carry out supervision duties while working for Mr Komadina". 3. That the fact that the references provided by Mr Noordennen and Mr Komadina show that Mr Jones was on site on any one job for short periods of time: "is a further indicator … that [Mr Jones] was carrying out his trade of carpentry, as he was not onsite for the duration of the builds – which also indicates that [Mr Jones] was not carrying out the role of the builder on site." 1. That the work performed by Mr Jones for Mr Connelly "show that [Mr Jones] was also working in his trade of carpentry" and that "there is no indication that [Mr Jones] carried out the roles and responsibilities as a builder, while working for Mr Connelly". 1. While I consider that the internal reviewer may have overlooked evidence which indicated that Mr Jones had undertaken a broader range of work than just carpentry, I need not determine whether, on the evidence before the internal reviewer, Mr Jones had demonstrated a wide range of building construction experience, as I am able to consider the further material tendered by Mr Jones. 2. That further material includes the letter from Mr Komadina dated 10 April 2018 in which he explained why he had struck out the bullet point concerning supervision on his referee's statement. 3. The further material also includes: the further letter from Mr Noordennen which indicated that Mr Jones' involvement in the two jobs the subject of his referee's statement went beyond carpentry and involved the supervision of other trades including, I infer from the details provided by Mr Noordennen, plumbers, electricians, concreters, roofers and plasterers; and the evidence from Mr Collins which indicates that Mr Jones has undertaken supervision on three separate houses for 25 days in the period 8 January to 23 May 2018. 4. Although the On Site Building Experience forms provided by Mr Collins do not provide any detail of the supervisory work that Mr Jones performed, Mr Collins' letter of 5 February 2018 indicated that it would involve supervision of concreters, bricklayers, electricians, plumbers, roofers, plasterers and painters. That Mr Jones did carry out that supervision work is confirmed by Mr Jones' own statement of 12 April 2018, at least in respect of plumbers, electricians, concreters, bricklayers and roof plumbers. 5. Although I accept the submission of the Commissioner that an applicant alone cannot verify their own building experience, I consider that it is appropriate to rely upon Mr Jones' statement to confirm and add detail to the information supplied by other parties. 6. Ms Pelesasa-Kalavite submitted that it was significant that Mr Jones' experience register indicated that Mr Jones was not at any time engaged full time on any one site. 7. Ms Pelesasa-Kalavite submitted that the fact that Mr Jones was only on each site for short periods indicates that Mr Jones had a limited role and responsibilities. She submitted that I should infer that Mr Jones was only engaged in supervision of other trades while on site and did not have the overall supervision of any one project (other than those Mr Jones undertook on his own account which were not the subject of verification by referee and did not involve the construction of complete homes). 8. Ms Pelesasa-Kalavite also submitted that there was no evidence that Mr Jones had undertaken any of the pre-contract tasks referred to in paragraph [19] of the decision in Locking. 9. In response, Mr Singh submitted that: "a site supervisor is not, and does not, remain on one construction site only. The Supervisor will at any point in time move from site to site overseeing the construction work." 1. I note that, by virtue of sections 12, 13 and 16 of the HBA, Mr Jones could not, lawfully, have undertaken the whole of the supervision of any residential building work as he was not the holder of an endorsed contractor licence or supervisor certificate. Any supervision which Mr Jones undertook was required to be under the overall supervision and direction of the holder of an endorsed contractor licence or supervisor certificate. 2. It cannot be the case that, in order to obtain an endorsed contractor licence, a person must undertake the whole of the supervision of a project involving residential building work. Such a requirement would effectively raise an almost insuperable obstacle to any trade contractor obtaining an endorsed contractor licence through gaining experience on the job. 3. At the same time, I accept that it is important that an applicant for an endorsed contractor licence be able to demonstrate experience and competency in all of the tasks required of a building contractor as referred to in paragraphs [17] – [19] of the Deputy President's decision in Locking set out above. 4. I am satisfied that Mr Jones has demonstrated that he has had experience supervising other trades and ensuring they have complied with standards and requirements. I am also satisfied that he has demonstrated that he has been involved in negotiations and discussions of building projects with council and private certifiers to ensure the work is passed fit when appropriate. 5. Although Mr Jones' work for Mr Noordennen involved fairly minor projects and the bulk of his work for Mr Komadina was limited to carpentry, I am persuaded that, when his work for Mr Collins is included, Mr Jones has carried out sufficient project supervision involving sufficient other trades and sufficient interaction with certifiers to satisfy the requirements of s33D(1)(b) of the HBA and the Instrument in those respects. 6. The Instrument requires that an applicant for an endorsed contractor licence have two years' experience in a broad range of construction work. This does not require an applicant to demonstrate that he or she has had two years' experience in supervision of other trades. The requirement is that the experience be broad. It is likely that any trade contractor will gain experience mostly in their own particular trade. 7. In my view, the Instrument should be construed as requiring two years of experience which must include involvement in a broad range of areas of construction. That involvement must be more than trivial. It must, as s33D(1)(b) requires, be sufficient to demonstrate that the applicant is able to supervise the range of building work which the holder of an endorsed contractor licence is permitted to supervise. 8. Although I doubt that I would have concluded that Mr Jones had met that requirement in the absence of the reference from Mr Collins, I consider that, with the experience identified in that reference, Mr Jones does meet the requirements of the Instrument in respect of the supervision of other trades. 9. However, I am not persuaded that Mr Jones has demonstrated experience in the pre-contractual elements of the tasks required of a builder, i.e. negotiating contracts and quoting for work. 10. Each of the referee's statements relied upon by Mr Jones included the declaration that Mr Jones: "has demonstrated a level of knowledge and experience in a wide range of building work which would allow him/her to competently perform the roles and responsibility of a licensed builder. This includes and is not limited to: … • Dealing effectively with Sub-contractors, consumers and other parties [and] … • Planning building or construction projects and work." 1. However, neither the On Site Building Experience forms submitted by Mr Jones nor the letters of support from the referees indicated that Mr Jones had undertaken any pre-contractual tasks on behalf of the referees or their companies. 2. I recognise that Mr Jones may have undertaken such tasks in relation to the building projects he has undertaken on his own account. Indeed, in two statements included in his bundle of evidence, Mr Jones did provide detail of the pre-contractual work he claimed to have undertaken in relation to the roof over the cattle yards and the verandah reconstruction. Mr Jones stated that he had undertaken measuring, design, estimation of material and labour requirements, quoting and ordering of materials in respect of each job. 3. However, there was no corroboration of this evidence from any independent source. The Tribunal has consistently held (see eg Limberis and Shoobridge) that "an applicant alone cannot verify their own experience", so that third party evidence is necessary to confirm an applicant's claimed experience. I accept that such corroborative evidence is necessary. 4. By the issue of an endorsed contractor licence the Commissioner represents to the public that the contractor is capable of carrying out or supervising the entire range of work falling within the category of "general building work". It would not be appropriate that such a representation be made solely on the basis of assertions by the applicant for the licence, uncorroborated by third parties. 5. In the absence of such corroborative evidence I do not find that Mr Jones has the necessary experience of the pre-contractual tasks required of a builder so as to satisfy the requirement of s 33D(1)(b) that he has had experience of such a kind and for such a period as would enable him to do, or to supervise, the work for which a supervisor certificate is required. 6. In circumstances where the Instrument does not acknowledge building work performed other than as an employee or sub-contractor of a licensed builder as relevant experience for the purpose of establishing the necessary broad range of experience, it is perhaps not surprising that Mr Jones and his advisers did not consider providing material from third parties which might have corroborated his evidence concerning his own projects. However, he has not done so and, without such evidence, it would not be appropriate to rely upon Mr Jones' asserted experience in undertaking his own projects to establish that he has the experience necessary to receive an endorsed contractor licence for general building work. Orders 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. 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: 23 August 2018