Commissioner for Consumer Affairs v Curran

Case [2023] SASC 6

Supreme Court of South Australia

(Appeal to a Single Judge)

COMMISSIONER FOR CONSUMER AFFAIRS v CURRAN

[2023] SASC 6

Judgment of the Honourable Justice McDonald  

19 January 2023

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS - FAILURE TO CONSIDER

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IRRELEVANT CONSIDERATIONS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW

The appellant appealed against a decision of a member of the South Australian Civil and Administrative Tribunal made on 15 February 2022. The appeal was brought under s 71 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) and r 212.2(1)(b) of the Uniform Civil Rules 2020 (SA). The decision subject of the appeal was that of a member of the Tribunal setting aside the determination made by the Commissioner for Consumer Affairs (‘the Commissioner’) to cancel the respondent’s electrical contractor’s licence and electrical worker’s registration (‘the licences’) which he held under the relevant provisions of the Plumbers, Gas Fitters and Electricians Act 1995 (SA). The Commissioner sought leave to appeal that decision on the basis that the Tribunal erred in finding that the respondent remained a fit and proper person to hold the licences. The Commissioner relied on four grounds of appeal, namely:

1.      The Tribunal erred by wrongly finding that the respondent did not deliberately omit disclosure of his criminal convictions to the appellant.

2.      The Tribunal erred in failing to take into account relevant considerations when determining whether the respondent is fit and proper to hold a licence as an electrical contractor and electrical worker’s registration.

3.      The Tribunal erred by taking into account an irrelevant consideration when determining whether the respondent is fit and proper to hold a licence as an electrical contractor and electrical worker’s registration in wrongly finding that the breaches of the Wiring Rules present in the respondent’s own home were a mitigating factor with respect to the seriousness of the offending in relation to the impact on his licencing.

4.      The Tribunal erred in incorrectly applying principles of law relevant to the assessment of fitness and propriety in an occupational licensing disciplinary. 

Held:

1.      The appeal is allowed on grounds 2 and 4.

2.      The appeal is dismissed on grounds 1 and 3.

3.      The parties to make further submission on the disposition of the matter. 

Controlled Substances Act 1984 (SA) ss 33B, 33LA; Electricity Act 1996 (SA) s 85; Plumbers, Gas Fitters and Electricians Act 1995 (SA) ss 9, 11, 16, 18, 18B, 32; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 34, 71; Uniform Civil Rules 2020 (SA) r 212.2, referred to.
Attorney-General v Raschke [2018] SASC 165; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Clyne v New South Wales Bar Association (1960) 104 CLR 186; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Craig…

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Commissioner for Consumer Affairs v Curran [2023] SASC 6
Case
[2023] SASC 6
Decision Date

CaseChat Overview and Summary

The appeal in Commissioner for Consumer Affairs v Curran was brought before the South Australian Civil and Administrative Tribunal (SACAT) as a challenge to the Tribunal's decision to set aside the Commissioner's cancellation of the respondent's electrical contractor's licence and electrical worker's registration under the Plumbers, Gas Fitters and Electricians Act 1995 (SA). The Commissioner argued that the Tribunal had erred in finding that the respondent remained a fit and proper person to hold the licences. The central issue before the Court was whether the Tribunal had correctly assessed the respondent's fitness to hold the licences, particularly in light of his criminal convictions related to the cultivation of cannabis, possession of prescribed equipment without reasonable excuse, and diverting electricity without authority.

The Court examined whether the Tribunal had appropriately considered the relevant statutory criteria for determining fitness to hold the licences, specifically whether the respondent's conduct demonstrated that he remained a fit and proper person. The Court also scrutinised whether the Tribunal had erred by considering irrelevant factors or failing to take into account pertinent considerations. The Commissioner argued that the Tribunal had not adequately weighed the significance of the respondent's deliberate omission of disclosing his criminal history when applying for the building contractor's licence. The Court considered whether the Tribunal's decision was legally sound and whether it had properly applied the principles of judicial review.

The Court concluded that the Tribunal had indeed erred in its decision. The Court found that the Tribunal had failed to sufficiently consider the deliberate omission of the respondent's criminal history in his application for the building contractor's licence, which was a significant factor in determining his fitness to hold the electrical licences. Additionally, the Court found that the Tribunal had given undue weight to the respondent's employment history and his role in running a successful business, which did not outweigh the gravity of his criminal conduct. Consequently, the Court allowed the appeal on the grounds that the Tribunal had made an error of law by not appropriately considering the relevant statutory criteria and by placing undue emphasis on irrelevant factors.

The Court's final orders were to allow the appeal on grounds 2 and 4, dismissing it on grounds 1 and 3. The Court directed that submissions be heard regarding the appropriate disposition of the matter, which would involve a re-assessment of the respondent's fitness to hold the electrical licences in light of the Court's findings. The Court's decision underscored the importance of correctly applying statutory criteria and ensuring that all relevant factors are duly considered in administrative decisions affecting professional licences.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against a decision of a member of the South Australian Civil and Administrative Tribunal (‘SACAT’) made on 15 February 2022. The effect of that decision was to set aside the determination made by the Commissioner of Consumer Affairs (‘the Commissioner’) to cancel the respondent’s electrical contractor’s licence and electrical worker’s registration (‘the licences’) which he held under the relevant provisions of the Plumbers,Gas Fitters and Electricians Act 1995 (SA) (‘the PGFE Act’). The Commissioner seeks to appeal that decision on the basis that the Tribunal erred in finding that the respondent remained a fit and proper person to hold the licences. Background Prior to the decision of the Commissioner, the respondent had worked as an electrician for approximately 14 years. He had completed a four year apprenticeship and since at least 2017 had run his own business in which he had employed up to six staff members. Throughout this time the respondent held the relevant licences under the PGFE Act. On 18 July 2017 police attended at the respondent’s home address at Moana and in one of the rooms located a purpose built hydroponic grow tent in which cannabis was being cultivated. There were six mature female plants and 18 cuttings. Arising out of this, the respondent was charged with the offences of cultivating a commercial quantity of a controlled plant for sale,[1] possessing prescribed equipment without reasonable excuse[2] and diverting electricity without authority.[3][1] Controlled Substances Act 1984 (SA) s 33B(2).[2] Controlled Substances Act 1984 (SA) s 33LA.[3] Electricity Act 1996 (SA) s 85(1)(a). On 11 April 2018 the respondent entered guilty pleas to all three offences in the Adelaide Magistrates Court. He was sentenced on 19 July 2018. For the offence of cultivation of controlled plants, the respondent was sentenced to two years and 10 months imprisonment that was ordered to be served on home detention. For the latter two offences, the Magistrate imposed fines of $800 and $2,800 respectively. During the course of providing reasons for the sentence, the Magistrate observed:[4]… It is concerning that despite running a successful business as an electrician, you chose to exploit the unlawful market for cannabis in the expectation that you would derive a financial benefit. The diversion of electricity was part and parcel of that flawed thinking and you used your particular expertise in furtherance of the unlawful enterprise. [4] Remarks on Penalty of Magistrate Sheppard in Police v Curran (Magistrate Court of South Australia, MCCHB-17-2989, 19 July 2018) (‘Remarks on Penalty’) at [17]. The sentence on count 1 was the subject of an appeal in the Court of Criminal Appeal. On 22 February 2019 the Court set that sentence aside and resentenced the respondent to two years, one month and 16 days imprisonment, again to be served on home detention.[5][5] R v Curran [2019] SASCFC 14. In May 2020[6] the respondent applied to the Commissioner for a building contractor’s licence. As part of the application process, the respondent was required to provide detail of his criminal history. In that application he disclosed that he had a conviction for the cultivation of cannabis. As a result of that disclosure the Commissioner obtained a South Australian Police check of the respondent’s antecedents. The respondent’s antecedent history disclosed the 2017 offending which the Commissioner had not previously been aware of. [6] The materials before the Court list the date of the application as 05 May 2021, however given the following sequence of events the date would logically be May 2020, with the date in the materials seemingly an error.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the error identified in relation to the first complaint made under this ground, I would allow the appeal on ground 4.Conclusion I make the following orders:1. I allow the appeal on grounds 2 and 4.2. I dismiss the appeal on grounds 1 and 3.3. I will hear submissions on the disposition of the matter.

Ratio Decidendi

Legal Principle Established

It is s 18B of the PGFE Act that empowers the Commissioner to cancel a licence or registration. It relevantly reads:18B—Commissioner may cancel, suspend or impose conditions on licence or registration(1)If the Commissioner is satisfied that events have occurred such that—(a) a licensed contractor would not be entitled to be so licensed if the person were to apply for the licence; or(b) a registered worker would not be entitled to be so registered if the person were to apply for registration,the Commissioner may, by notice served on the person—(c) cancel the licence or registration; or(d) suspend the licence or registration for a specified period or until the fulfilment of stipulated conditions; or(e) impose conditions on the licence or registration.… The operation of s 18B involves the satisfaction of two limbs. First, events must have occurred and, secondly, the Commissioner must be satisfied that those events have had the effect of negating a person’s previous satisfaction of a precondition for a licence or registration. Ground 11.The Tribunal erred in law by wrongly finding (at [68]-[69] of the Decision) that the respondent did not deliberately omit disclosure of his criminal convictions to the appellant:a. given the respondent was obliged to disclose any criminal charges or convictions in lodging annual returns pursuant to sections 11 and 32 of the Plumbers, Gas Fitters and Electricians Act 1995 (SA); andb. in any event, in the absence of sworn evidence to support that finding. There was no dispute that the respondent was required to disclose at the very least the 2017 offences in his annual renewal certificate completed in November 2017.[20] There was equally no dispute that the integrity of the licensing scheme relies on the conduct of applicants and licence holders nor that the respondent had failed to meet his obligations in this respect. The issue that remained was the weight to be placed on that factor in determining the question of whether the respondent remained a fit and proper person under the terms of the PGFE Act. [20] Given the wording of the question, it was not accepted that the responses in subsequent renewal certificates were inaccurate. There appeared to have been a general acceptance that although it was for the respondent to ensure that he had complied with his obligation of disclosure, the failure was far more egregious if this had been a deliberate omission. Before addressing the complaints made by the appellant, it is necessary to first of all consider the positions adopted by the parties to this topic in the Tribunal hearing and the determination made by the Tribunal. The issue was first addressed in the letter that the respondent provided through his solicitor on 19 February 2021. In his reasons for his decision to cancel the respondent’s registration and licence, the Commissioner set out the detail of the explanation that the respondent provided in that letter as to the circumstances in which he had not complied:·Your then partner was the book keeper and assistant and was responsible for updating your licenses and details.·You declared the relevant offences when you personally completed the renewal application.·You did not intend to deceive CBS in relation to your criminal history.…