Commissioner for Consumer Affairs v Cutting - [2011] SADC 4

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
COMMISSIONER FOR CONSUMER AFFAIRS v CUTTING
[2011] SADC 4
Judgment of His Honour Judge Costello
28 January 2011
ADMINISTRATIVE LAW
BUILDING WORK CONTRACTORS ACT 1995
Complaint against unlicensed building work contractor alleging various breaches of the Act, including carrying out building work while unlicensed - Respondent as discharged bankrupt ineligible to be licensed under the Act before November 2017 - finding of grounds for disciplinary action - Respondent reprimanded.
Building Work Contractors Act 1995, referred to.
R v A [2003] SASC 121, 20-21; Commissioner for Consumer Affairs v Pertini [2005] SADC 133; Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145, applied.

COMMISSIONER FOR CONSUMER AFFAIRS v CUTTING
[2011] SADC 4

The Commissioner for Consumer Affairs brings a complaint, pursuant to the provisions of Section 22 of the Building Work Contractors Act 1995 (“the Act”), against Gary John Cutting. The complaint alleges that proper grounds for disciplinary action exist as a result of a number of breaches of the Act by Mr Cutting.
Mr Cutting has admitted liability for a number of these breaches, more particularly, those set out in counts numbered 1 and 4 – 10 inclusive of the complaint. As a result, Mr Cutting accepts that he is liable for disciplinary action in relation to these breaches.
Upon the basis of Mr Cutting’s admission of liability with respect to the aforementioned counts, I gave leave to the Complainant to withdraw counts 2, 3 and 11 of the Complaint.
The remaining counts can, broadly speaking, be divided into a range of different categories, namely:
·those which allege that he did building work when he was not authorised to do so (counts 1, 8 and 10);
·those which allege that he received money from various customers, which money, he nevertheless retained, despite the fact that he did not subsequently do the work (counts 5 and 6); and
·those which allege that he improperly advertised himself as being entitled to hold a licence under the Act and carry out work accordingly (counts 4, 7 and 9).
The counts, collectively, allege conduct, on the part of Mr Cutting, which took place between 2005 and 2008.
There is evidence before me, in the form of certificates from the Commissioner pursuant to Section 59 of the Act, which confirm that Mr Cutting did not hold an appropriate licence or registration under the Act during that period.
I should add, that I have received and read a book of documents, tendered by the Complainant, (Exhibit C1). The book includes statements from a number of witnesses for whom Mr Cutting carried out work, (in the main, guttering and downpipe work), copies of the advertisements placed in various newspapers by Mr Cutting and the remarks on penalty by Mr Grasso S.M., in relation to a prosecution by the Commissioner against Mr Cutting for offences against the Act. That prosecution related to conduct which now gives rise to some of the counts in the complaint alleging grounds for disciplinary action.
I have also had regard to the contents of an interview, between an authorised officer of the complainant, Mr Jelling, and Mr Cutting on 19^th February 2009, during which Mr Cutting properly and frankly accepted liability for disciplinary action.
Mr Thompson, counsel for Mr Cutting, told the Court that his client is 55 years of age and married with 2 dependant children, aged fifteen and thirteen. In and around 2004 Mr Cutting got into financial difficulties and was declared bankrupt. He began to consume alcohol heavily and became depressed. He failed to seek treatment for either his addiction to alcohol or depression and matters spiralled out of control, leading to the forced sale of the family home. It was largely during this period of his life that the conduct, alleged in the complaint for disciplinary action, took place.
Mr Thompson informed the Court that Mr Cutting was discharged from his bankruptcy in November 2007. He is now living in rented accommodation with his wife and children. He is taking steps to get his personal life under control, including receiving regular medical treatment for his alcoholism and depression. He has resumed working and currently receives some $120 a fortnight for cleaning and gardening-type work. His wife also works and earns around $420 a fortnight as a part-time interpreter.
A statement of assets and liabilities (Exhibit D2), prepared by Mr Cutting, disclosed liabilities which exceed assets by some $20,000.00 and an income which leaves the family only $38 a fortnight after payment of expenses.
As to penalty, I am satisfied, on the basis of the material before me, that there is proper cause for taking disciplinary action against Mr Cutting. The provisions of Section 25 of the Act set out the various disciplinary orders available to the Court, ranging from a reprimand through to a permanent licence disqualification or permanent prohibition from obtaining a licence.
Mr Cutting is currently unlicensed and unregistered under the Act. As I have said, he was discharged from his bankruptcy in November 2007. The provisions of Section 9 of the Act preclude him from becoming entitled to a licence (by reason of his previous bankruptcy) until November 2017.
In the circumstances, there is little to be gained by imposing a fine on Mr Cutting or ordering that he be prohibited from being employed as a building work contractor for a period of years. Furthermore, to preclude him now from ever being licensed in the future, by permanent prohibition, would be too harsh, particularly given the part his health problems played in his improper conduct.
It is, partly for these reasons, that the Commissioner has indicated that, in the circumstances, it seeks only a reprimand against Mr Cutting.
However the Commissioner, also very properly, acknowledged that it is for the Court to determine what order ought to be made pursuant to Section 25 of the Act. (see R v A (2003) SASC 121 at 20-21; Commissioner for Consumer Affairs v Pertini (2005) SADC 133).
It should always be remembered that the purpose of the Act (and proceedings like these) is to regulate the conduct of persons who are or were licensed or registered under the Act and, in so doing, also to protect the public (Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145).
However, having regard to the fact that Mr Cutting was suffering from a significant bout of depression during the time that the conduct took place, and to his co-operation with the Commissioner and frank admission of liability at an early stage, I am satisfied, that justice will be served and the public protected, if a penalty at the bottom end of the range is imposed.
Order
Accordingly, the order of the Court is that Mr Cutting be reprimanded.