Commissioner for Consumer Affairs v Capponi

[2004] SADC 169

DISTRICT COURT OF SOUTH AUSTRALIA

(District Court Administrative and Disciplinary Division)

COMMR FOR CONSUMER AFFAIRS v CAPPONI

Reasons for Decision of His Honour Judge Bishop, Assessor McDougall and Assessor Hutchinson

2 December 2004

ADMINISTRATIVE LAW

Complaint against a licenced contractor and registered worker under the Plumbers, Gas Fitters and Electricians Act 1995 - whether Act contravened by acting unlawfully or negligently, by having made false or misleading statements and by having omitted relevant matters in annual returns - whether sufficient financial resources properly to carry on business as a contractor - whether a fit and proper person to be licenced - licence cancelled, disqualified from being licenced for 10 years and conditions imposed upon continuing registration as a worker.

Plumbers, Gas Fitters and Electricians Act 1995; Commissioner for Consumer Affairs v Sollars [2001] 79 SASR 145; Craig v Medical Board of South Australia [2001] 79 SASR 545, referred to.

COMMR FOR CONSUMER AFFAIRS v CAPPONI
[2004] SADC 169

1. The complaint of the Commissioner for Consumer Affairs (“the Commissioner”) dated 22 September 2004 alleged that there is proper cause of disciplinary action against Paul Anthony Capponi (“the defendant”), pursuant to section 20 of the Plumbers, Gas Fitters and Electricians Act 1995 (“the Act”), in respect of 28 separate counts or matters of complaint.

2. Counts 1 to 9 (inclusive) alleged that, on nine specified occasions, between August 1999 and September 2002, the defendant acted unlawfully or negligently in the course of conducting, or being employed or otherwise engaged in, the business of a contractor: contrary to section 20(1)(c) of the Act. Particulars of those allegations were contained in the complaint. In essence, those particulars alleged violations by the defendant of the Electricity Act or Regulations in connection with work undertaken by him at nine premises situated in Adelaide and suburbs of Adelaide.

3. Counts 10 to 18 (inclusive) alleged that, on nine specified occasions, between August 1999 and September 2002, the defendant acted unlawfully or negligently in the course of acting as a worker: contrary to section 20(2)(b) of the Act. Particulars of those allegations were contained in the complaint. Those particulars related to the same conduct alleged in counts 1 to 9 (inclusive), except for the status of the defendant being that of a “worker”, not a “contractor”. At all relevant times, the defendant was both a licensed contractor and a registered worker under the Act.

4. Count 19 alleged that, on 8 July 2004, the defendant acted contrary to the Act in the course of conducting the business of a contractor, by making a statement that was false or misleading in a material particular in information provided to the Commissioner under the Act: contrary to sections 20(1)(c) and 32 of the Act. Count 20 contained the same allegation as in count 19, except for the allegation that the defendant was a worker, not a contractor. Particulars of those allegations where contained in the complaint. The essence of those two counts (counts 19 and 20) was that, in an annual return to the Commissioner, the defendant omitted to inform the Commissioner that a civil judgment had been entered against him on 12 August 2003.

5. Counts 21 and 22 alleged that, on 8 July 2004, the defendant acted contrary to the Act in the course of conducting the business of a contractor (count 21) and in the course of acting as a worker (count 22), by making a statement that was false or misleading in a material particular in information provided to the Commissioner under the Act: contrary to sections 20(1)(c), 20(2)(b) and 32 of the Act. Particulars of those allegations were contained in the complaint. The essence of those two counts was that, in an annual return to the Commissioner, the defendant omitted to inform the Commissioner that circumstances had arisen which made it unlikely that he would be able to discharge all of his contractual obligations and, secondly, that his application in the Adelaide Magistrates Court to be permitted to pay outstanding fines for non-payment of expiration notices by instalment was granted on 12 November 2003.

6. Counts 25 and 26 alleged that, on 8 July 2004, the defendant acted contrary to the Act in the course of conducting the business of a contractor (count 25) and in the course of acting as a worker (count 26), by making a further false or misleading statement: contrary to sections 21(1)(c), 20(2)(b) and 32 of the Act. Particulars of those allegations were contained in the complaint. The essence of those two counts was that, in an annual return to the Commissioner, the defendant omitted to inform the Commissioner that on 24 March 2004 he had entered into an arrangement to pay a creditor $3,850 at the rate of $300 per week for 13 weeks.

7. Counts 23, 24, 27 and 28 separately alleged that events had occurred such that the defendant would not be entitled to be licensed as a contractor if he were to apply for a licence: contrary to sections 20(1)(b) and 9(1)(e) of the Act. Particulars of those allegations were contained in the complaint. The essence of those particulars was that the defendant does not have sufficient financial resources for the purposes of properly carrying on the business authorised by his licence (counts 23, 24 and 27) and that the defendant is not a fit and proper person to be the holder of a licence (section 9(1)(f)) because he had breached a community service order in completing only 72 out of 320 hours community service ordered against him in the Adelaide Magistrates Court on 2 October 2002, the breaching application having been filed by the Department of Correctional Services on 26 March 2004 (count 28).

8. On the hearing of the complaint, at which the defendant did not appear, leave was granted to the Commissioner, pursuant to Rule V1.31 of the relevant Rules of Court, to proceed in his absence. Upon the evidence (both documentary and photographic) adduced at the hearing, the court was satisfied, pursuant to section 22(1), that the matters alleged in the complaint constituted grounds for disciplinary action against the defendant (both as a contractor and a worker) under Part 4 of the Act. The court was also satisfied, pursuant to section 24(1), on the balance of probabilities, that there was proper course for taking disciplinary action against the defendant in that:

   ·the defendant committed repeated violations of the Electricity Act or Regulations in connection with work undertaken by him at the nine premises referred to in the complaint. (Many of those violations were serious and could have endangered other persons, with repeated failure to address the safety aspects of his electrical work.);

   ·the defendant omitted in his annual return to inform the Commissioner:

   .       that a civil judgment had been entered against him on 12 August 2003;

   .       that he had been permitted time by the Adelaide Magistrate Court on 12 November 2003 to pay outstanding fines;

   .       that he had entered into an arrangement with a creditor on 24 March 2004 to pay an outstanding debt; and

   . that he had failed to complete community service ordered by the Adelaide Magistrate Court on 2 October 2002 and, in consequence, is not a fit and proper person to hold a licence under the Act; and

   ·       it has been shown that the defendant does not have sufficient financial resources for the purposes of properly carrying on the business authorised by his licence.

9. In these established circumstances, the court is empowered, pursuant to section 24, to make one or more of the orders there specified. The purpose of the Act and these proceedings is to regulate the conduct of persons who are licensed or registered under the Act, to protect the public (Commissioner for Consumer Affairs v Sollars [2001] 79 SASR 145) and to maintain proper standards of conduct (Craig v Medical Board of South Australia [2001] 79 SASR 545). Clearly it is important, in the interests of the general public and to maintain public confidence in the integrity and competency of electrical contractors and workers, that such persons comply with statutory and regulatory requirements, that they be qualified and experienced (sections 9(1)(a)(i) and 16(a)), that contractors be fit and proper persons (section 9(1)(f)) and that they have sufficient business knowledge, experience and financial resources for the purpose of properly carrying on the business authorised by the licence (section 9(1)(e)). In all of those respects, the defendant has been found to be seriously deficient.

10. Having considered all of the circumstances here established, the court is of the view that the defendant’s licence as a contractor should be cancelled; that he should forthwith be disqualified from being licensed for the next 10 years; that his continuing registration as a worker under the Act should be conditional upon him successfully studying and completing, within the next 12 months, the 18 week course in Wiring Rules and Regulations conducted by TAFE; and, should that not occur, then his registration as a worker should be suspended until such time as he has produced to the Commissioner evidence to that effect. The court shall make orders accordingly.