Meharg v Director-General, Department of Fair Trading [2000] NSWADT 39 (6 April 2000)

Last Updated: 24 July 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Meharg -v- Director-General, Department of Fair Trading [2000] NSWADT 39

PARTIES: APPLICANT

Gregory Meharg

RESPONDENT

Director-General, Department of Fair Trading

FILE NUMBERS: 993079

HEARING DATES: 01/03/00

SUBMISSIONS CLOSED: 01/03/2000

DECISION DATE: 06/04/2000

BEFORE: Wilson K - Judicial Member

LEGISLATION CITED: Home Building Act 1989

CASES CITED:

APPLICATION: Review of decision to refuse to grant a building contractors licence

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

M Baird, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT

A Grey, solicitor

ORDERS: 1. The decision to refuse to grant a Building Contractor's Licence is affirmed.

Reasons for Decision:

REASONS FOR DECISION

Brief History

1 The Applicant, Mr Gregory Meharg, applied on 12 February 1999 for an Individual Contractor Licence in the category of Building under the Home Building Act.

2 On 11 March 1999, the Department of Fair Trading advised the Applicant that his application had been refused and on 1 April 1999, Mr Meharg sought an internal review of that decision.

3 The Department of Fair Trading, on 9 April 1999, advised Mr Meharg that the previous decision refusing the grant of the Licence had been confirmed.

4 On 5 May 1999, the Applicant filed a Notice of Application with this Tribunal seeking a review of the decision.

5 Relevant Statutory Provisions

6 The issue of the Licence, the subject of this application, is governed by the Home Building Act and the Regulations made under that Act.

7 The legislation provides that the Director General may determine standards or other requirements that must be met before any licence is issued or before a licence of a particular kind is issued. Under the provisions of clause 20 of the Home Building Regulations, it is provided that the Director General must be satisfied that an applicant has such qualifications as the Director General determines would be necessary to fit the applicant to do or to supervise work and that the applicant also has experience of such a kind and for such a period as is deemed appropriate to fit the applicant to do or supervise work.

8 As a result of these powers there has been published a document in the form a brochure which sets out the qualifications for a Contractor Licence and the matters, set out within the brochure, are the matters that the Director General has determined in accordance with his duties under the Act. The brochure sets out acceptable qualifications and experience.

9 In this case the acceptable qualifications and experience are that an applicant must have a minimum of two years' acceptable practical experience carrying out or supervising general building work plus the attainment of one of a number of qualifications which are specifically set out. At the end of the qualifications specifically nominated, there is one final provision which indicates that the requirement may be met by qualifications which, in the opinion of the regulatory authority, are equivalent to those listed above.

10 The relevant provisions of the Home Building Act are sections 19 and 20 and the relevant parts of the Home Building Regulation are clauses 19 and 20.

11 The regulatory scheme and the requirements set out in the brochure are all accepted by both parties as being the appropriate regulatory structure within which this matter should be considered.

Evidence

12 Evidence in this matter was given by way of statements and by oral evidence by a number of parties.

13 It was not in dispute that Mr Meharg holds a Bachelor of Surveying, together with a Certificate IV in Building Studies and certain qualifications in plumbing.

14 Mr Meharg gave evidence that he has been working in the industry for a period of two years and has supervised a number of residential building projects. This work was carried out under the eye of Mr Neil Kirkwood, who also gave evidence. Mr Kirkwood is a builder of some 40 years' experience and gave evidence of his friendship with Mr Meharg and the fact that he entered into an arrangement with Mr Meharg whereby Mr Meharg completed a number of projects under his Licence.

15 Mr Meharg is a young man who is building a career in the trade. He began his training and qualification in surveying and subsequently decided to move into building. He is a long way through the requirements for plumbing and he has also completed a Building Studies Certificate.

16 He took the view that his experience and qualifications should be sufficient to satisfy the requirements of the Act and Regulations although he acknowledged that he did not have the specific qualifications that were required and he was relying on the Cover All clause about such other qualifications as may be considered equivalent.

17 For the Department of Fair Trading, one witness was called. This witness was Mr Charles William van Dyke who is an Education Consultant and had been asked by the Department to consider the form of the qualifications required and advise whether Mr Meharg's present qualifications fitted with any of those specified in the Regulations. There is no contest as to Mr van Dyke's expertise and the Tribunal relies on him as an expert witness.

18 His evidence was that the educational attainments of Mr Meharg do not fit within those matters prescribed for the qualifications required.

19 Mr van Dyke had not been asked by the Department to express the view as to whether Mr Meharg's present qualifications were such that they could be considered equivalent to those required. The Tribunal took the opportunity of having access to Mr Van Dyke as an expert witness to ask him to consider the question as to whether or not the educational qualifications that Mr Meharg had achieved were such which would come within the qualifications which, in his opinion, would be equivalent to those listed as being required. On the basis of his knowledge of Mr Meharg's attainments and his intricate knowledge of the course requirements and the purpose for which they were set out, his advice was that Mr Meharg's qualifications were not equivalent to those that had been set out.

20 He was not in a position to give any advice or opinions as to whether the two years' work experience that Mr Meharg attested to was relevant experience.

Issues and Findings

21 The basic issue in this matter is whether the Applicant's qualifications meet the forms required by the regulation. There is a secondary issue as to the question of whether the two years' work experience that Mr Meharg related also satisfied the regulation. That matter does not have to be finally determined in view of the findings that the Tribunal will make in this matter. However, the fact that Mr Meharg did not spend the full two years working in the manner in which described, would be a relevant and important matter to consider if the only issue was the determination of the two years' experience.

22 The regulatory requirements are that an applicant have the relevant work experience and the relevant qualifications. On the basis of the evidence before it, the Tribunal cannot come to the view that Mr Meharg has the relevant qualifications. In the Tribunal's view Mr Meharg falls short of the qualifications which are specifically set out and required. The Tribunal was entitled to rely on the evidence of Mr Van Dyke as to whether or not Mr Meharg's qualifications amount to an equivalent to those required in the Regulations and his evidence was clear-cut that they did not.

23 Mr Baird, for Mr Meharg, made a strenuous submission that the Tribunal should take a broader view of the regulatory requirements and, in essence, determine that since Mr Meharg is able to carry out work in the building industry and because he has qualifications in surveying and is moving towards final qualifications in plumbing, therefore this should be sufficient. While the Tribunal has some sympathy with Mr Meharg's personal circumstances, the fact of the matter is that the Regulations require specific qualifications and at this stage in his career, Mr Meharg does not have these.

24 The regulatory scheme is based on the notion that those persons who attain licences have the particular skills and qualifications which the licence represents. The public is entitled to have faith in the regulatory scheme and for this reason it is important that applicants for particular licences where the requirements are clear, understand that those are the requirements that must be met. In Mr Meharg's case the only way he could achieve the qualification aspect of the regulatory requirement is if the Tribunal was satisfied that his present qualifications are equivalent to those required under the regulation and the evidence is clearly that they are not. The steps for him to take if he wishes to be granted such a licence, are to complete those other components of the technical education required to meet the necessary qualifications.

25 In view of the Tribunal's finding in relation to the qualifications, it is not necessary to make a finding regarding the two years' experience claimed by Mr Meharg.

Determination

26 The Tribunal determines that the decision by the Department of Fair Trading to refuse the grant of a Building Contractor's Licence is affirmed.