Acting Commissioner for Consumer Affairs v McLean - [2011] SADC 154

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
ACTING COMMISSIONER FOR CONSUMER AFFAIRS v MCLEAN
[2011] SADC 154
Judgment of His Honour Judge Nicholson
30 September 2011
ADMINISTRATIVE LAW
Complaint against a building work contractor alleging various breaches of the Building Work Contractors Act 1995. Allegations found proved - need for disciplinary action - orders made.
Hughes & Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Sobey v The Commercial and Private Agents Board (1979) 22 SASR 70; Craig v The Medical Board of South Australia (2001) 79 SASR 545; Carusi v Police [2002] SASC 240; Commissioner for Consumer Affairs v Sollars [2001] SASC 110, considered.

ACTING COMMISSIONER FOR CONSUMER AFFAIRS v MCLEAN
[2011] SADC 154
Introduction

The Acting Commissioner for Consumer Affairs laid a complaint against the respondent John Roger McLean in the District Court in its Administrative and Disciplinary Division, alleging a series of breaches of the Building Work Contractors Act 1995 (“the Act”).
Throughout the interlocutory processes for this matter the defendant has shown himself to be particularly difficult to contact. Ultimately, a Master of this Court made orders for presumptive service with respect to these proceedings. The order for presumptive service was conditional on the complainant preparing a book of documents and sending it to the defendant’s last known address. When the matter was called on before me I was satisfied, after examining the interlocutory history of the matter, the orders of the learned Master and various affidavits of service filed by the complainant that presumptive service as ordered had been effected and that it was appropriate for the matter to proceed before me ex parte. Nevertheless, it being a matter where the Court needs to consider whether there is proper cause for disciplinary action it was appropriate that the complainant be put to proof of each of the allegations made in its complaint. I also took the view that, in the circumstances of this matter and in the exercise of the discretion open to me under the legislation, there was no need to sit with assessors.
Previous Proceedings
In order to understand the nature of the complaint and the essential purpose of the proceedings brought on behalf of the Acting Commissioner it is helpful to briefly outline some history.
The defendant held a building work contractors licence and a supervisors registration pursuant to the Act from 9 March 2000 until 11 August 2006. That licence and registration was in limited form. They were both restricted to the erecting of pergolas and decking; fencing, excluding brick and brush; painting; and general repairs of a non-structural nature.
In 2005 the Commissioner of Consumer Affairs laid a criminal complaint against the defendant in the Magistrates Court. It alleged nine offences against the Act committed during the period 2003-2004[1]. This criminal complaint alleged illegal conduct in relation to 2 sets of consumers. In essence,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Acting Commissioner for Consumer Affairs v McLean and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] SADC 154
Decision Date: 30 September 2011

CaseChat Overview and Summary

The case of Acting Commissioner for Consumer Affairs v McLean involves the Acting Commissioner for Consumer Affairs filing a complaint against John Roger McLean, a building work contractor, alleging various breaches of the Building Work Contractors Act 1995. The complaint was heard in the District Court of South Australia in its Administrative and Disciplinary Division. The Acting Commissioner alleged that McLean was unfit to be a building work contractor, having previously been found guilty of breaches of the Act and having been disqualified from holding a licence due to bankruptcy. The complaint further alleged that McLean continued to engage in building work without a licence, which contravenes the Act.

The legal issues before the court were whether McLean's conduct warranted disciplinary action under the Building Work Contractors Act 1995 and if so, what form that disciplinary action should take. The court considered the seriousness of McLean's past and present breaches of the Act, his unfitness to hold a licence, and the need to protect the public from sub-standard dealings with building contractors.

In reaching its decision, the court examined the evidence presented by the Acting Commissioner and found that McLean had indeed engaged in improper conduct, including performing unlicensed building work, misrepresenting his licensing status, and failing to complete contracted work. The court noted that such conduct not only violated the Act but also undermined public confidence in the building industry. The court cited previous cases such as Craig v The Medical Board of South Australia and Carusi v Police to underscore the importance of maintaining professional standards and protecting the public.

The court concluded that disciplinary action was warranted and made orders prohibiting McLean from being employed or otherwise engaged in the business of a building work contractor, from carrying on business as a building consultant, and from being employed as a building consultant, all until further order. The court left the door open for McLean to apply for a variation of these orders if he could demonstrate that he could work within the industry under conditions that would protect the public and comply with the Act. The court emphasized that while these orders may restrict McLean's ability to work, they were necessary to uphold the integrity of the building industry and safeguard consumers.

Orders