Commissioner for Consumer Affairs v Capponi - [2009] SADC 11

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
COMMISSIONER FOR CONSUMER AFFAIRS v CAPPONI
[2009] SADC 11
Judgment of His Honour Judge Lovell
17 February 2009
ADMINISTRATIVE LAW
Disciplinary action pursuant to Plumbers, Gas Fitters and Electricians Act 1995 - Complaint proved pursuant to ss 20(1)(c) and 20(2)(b) of the Act - Respondent disqualified from being licensed or registered under s 24(1)(d) and pursuant to s 24(2)(a)(i) disqualification made permanent.
Plumbers, Gas Fitters and Electricians Act 1995 ss 20(1)(c), 20(2)(b), 24(1)(d), 24(2)(a)(i), referred to.

COMMISSIONER FOR CONSUMER AFFAIRS v CAPPONI
[2009] SADC 11
Overview

The Commissioner for Consumer Affairs (“the Complainant”) alleges that Mr Capponi (“the Respondent”) has breached the Plumbers, Gas Fitters and Electricians Act 1995 (“the Act”) and seeks orders that he be subject to disciplinary action.
The Complainant was represented by Ms Colbert. I was much assisted by her helpful and able submissions. Mr Capponi, who had previously been subject to disciplinary action, failed to attend the hearing. The Complainant was granted leave to proceed ex parte.
Background
Mr Capponi had previously been licensed as an electrical contractor and a registered worker pursuant to the Act. At the time of the alleged offending he was not licensed or registered[1].
[1] See Ex P1 Tab 5 and Tab 9
However Mr Capponi is still subject to the Act as the definition section (s 19) includes formerly licensed contractors and formerly registered workers.
The Charges
Count 1
The Complainant alleged that Mr Capponi acted contrary to the Act in the course of conducting the business of a contractor. The matters relied on by the Complainant were the three convictions recorded in the Adelaide Magistrates Court on the 5February 2008 for holding himself out as an electrical contractor whilst unlicensed, contrary to s 6(1)(b) of the Act and two convictions on the same day of carrying on business as an electrical contractor whilst unlicensed contrary to s 6(1)(a) of the Act.
The convictions were proved by certificate[2].
[2] Ex P1 Tab 2
Section 20 states that:
(1)     There is proper cause for disciplinary action against a contractor if –
(a)     not relevant;
(b)     not relevant;
(c)     the contractor or another person has acted contrary to this Act or otherwise unlawfully, or improperly, negligently or unfairly, in the course of conducting, or being employed or otherwise engaged in, the business of the contractor.
The Complainant submits that the five convictions found the basis for a finding that Mr Capponi has acted contrary to the Act. I agree. Indeed, in my view any one of the five convictions would have been sufficient. However I am satisfied beyond any doubt that Mr Capponi has acted contrary to the Act as alleged. I find Count 1 proved.
Count 2
The Complainant alleged that Mr Capponi acted unlawfully in the course of acting as a worker.
To substantiate the allegation the Complainant alleges that Mr Capponi was convicted on the 5 February 2008 of two counts of acting as an electrical worker whilst not authorised by an electrical workers registration (s 13(a) of the Act).
Section 20(2) of the Act states:
There is proper cause for disciplinary action against a worker if –
(a) not relevant;
(b)the worker has acted unlawfully, improperly, negligently or unfairly in the course of acting as a worker.
The convictions were proved by certificate.[3]
[3] Ex P1 Tab 2
The Complainant submits that the two convictions found the basis for a finding that Mr Capponi acted unlawfully. I agree.
I find Count 2 proved beyond any doubt.
Count 3
The Complainant alleges that Mr Capponi acted improperly in the course of conducting the business of a contractor.
It is alleged that Mr Capponi contracted to perform electrical work at the premises of Mr Dominic Maselli at Ashford. Mr Maselli’s statement was tendered.[4] I accept the matters contained within the statement. It is alleged and I find proved that:
3.1.3On 21 June 2007 the defendant phoned Mr Maselli and stated words to the effect “the job is finished, I’m sorry I stuffed you around. I want my money.” Dominic Maselli replied “you are unlicensed”. The defendant then stated “I’ve got a licence. If I don’t get the money, something will happen to your houses”.
3.1.4On the morning of 22 June 2007 the defendant parked out the front of units 2a, 2b and 2c Alexander Avenue, Ashford for a considerable time. Eventually, the defendant drove off. Five minutes later he drove past the units again without stopping.
[4] Ex P1 Tab 4
Section 20(1) relevantly states:
There is proper cause for disciplinary action against a contractor if –
(c)the contractor or another person has acted contrary to this Act or otherwise unlawfully, or improperly, negligently or unfairly, in the course of conducting, or being employed or otherwise engaged in, the business of the contractor.
I have found both sets of allegations proved. Together they demonstrate that Mr Capponi acted improperly as alleged. I find beyond any doubt the charge proved. I have found both sets of allegations proved.
Disciplinary Action
Having found all three charges proved I am satisfied on the balance of probabilities that there is proper cause for disciplinary action against Mr Capponi (s 24(1) of the Act).
Mr Capponi, on the 2 December 2004 had his licence as a contractor cancelled and he was disqualified from being licensed for 10 years. His registration under the Act as a worker was made conditional upon him successfully studying and completing, within twelve months, the eighteen-week course in Wiring Rules and Regulations conducted by TAFE. If Mr Capponi failed to complete the course within the twelve months his registration was to be suspended until such time as he produced to the Commissioner evidence to that effect.[5] He has not to date enrolled or completed any such course.[6]
[5] Ex P1 Tab 6
[6] Ex P1 Tab 7 & Tab 8
It appears Mr Capponi did not learn from his previous appearance before this Court.
The purposes of the Act and the disciplinary proceedings include regulating the conduct of persons who are licensed and/or registered under the Act, protecting the public and maintaining proper standards of conduct.[7] The consequences of making various orders may operate as a punishment upon Mr Capponi. However the orders themselves are not punitive. They are protective in nature.
[7] Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145
The powers of the Court on being satisfied that there is proper cause for taking disciplinary action are set out in s 24 of the Act. The Commissioner seeks an order pursuant to s 24(1)(d) disqualifying Mr Capponi from being licensed or registered under the Act. The Commissioner did not seek an order pursuant to s 24(1)(e) prohibiting Mr Capponi from being employed in the business of a contractor.
The particulars on which the various convictions were based can be seen in the particulars.[8] They are all serious matters.
[8] Ex P1 Tab 1
It is clear that Mr Capponi was contemptuous of the previous findings and orders of this Court.
In my opinion, taking all matters into account it is appropriate to make the order sought by the Commissioner. It is also appropriate to make the order permanent.
Pursuant to s 24(1)(d) I order that Mr Capponi be disqualified from being licensed or registered under the Act.
Pursuant to s 24(2)(a)(i) I order that the disqualification be permanent.