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…

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.

Continue reading Commissioner for Consumer Affairs v Capponi

Details

AGLC: Commissioner for Consumer Affairs v Capponi [2009] SADC 11
Case: [2009] SADC 11
Decision Date: 17 February 2009

CaseChat Overview and Summary

The District Court of South Australia heard a case brought by the Commissioner for Consumer Affairs against Mr Capponi, who was alleged to have contravened the Plumbers, Gas Fitters and Electricians Act 1995. The Commissioner sought disciplinary action against Mr Capponi, who had previously been the subject of similar proceedings, for alleged breaches of the Act by acting as an unlicensed electrical contractor and worker. Mr Capponi did not attend the hearing, and the Commissioner was granted leave to proceed ex parte. The Commissioner's allegations against Mr Capponi were substantiated by several convictions and a statement from a complainant.

The legal issues before the court included whether Mr Capponi had acted contrary to the Act and whether there was proper cause for disciplinary action against him. The court had to consider whether the charges were proven and whether the penalties sought by the Commissioner were appropriate. The court found all the charges against Mr Capponi were proved, based on his previous and current convictions and his actions that demonstrated a disregard for the law.

The court concluded that Mr Capponi had indeed acted contrary to the Act and that there was proper cause for disciplinary action. Given Mr Capponi's history of non-compliance and his current actions, the court found it appropriate to disqualify him permanently from being licensed or registered under the Act. The court emphasised that the purpose of the disciplinary action was protective, aiming to regulate conduct and protect the public, rather than purely punitive.

The final orders of the court were that Mr Capponi be disqualified from being licensed or registered under the Act and that this disqualification be made permanent. This decision reflects the court's determination to enforce compliance with the Act and to protect the public from the risks posed by unlicensed electrical contractors and workers.

Orders