Commissioner for Consumer Affairs v Kilsby
[2004] SADC 179
•13 December 2004
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
COMMR FOR CONSUMER AFFAIRS v KILSBY
Judgment of His Honour Judge Smith, Assessor MacDonald and Assessor Iveson
13 December 2004
ADMINISTRATIVE LAW
Disciplinary proceedings pursuant to s21 of the Plumbers, Gas Fitters and Electricians Act 1995 (SA) - complaint that defendant electrician carried on business as a contractor when suspended from doing so by court order - complaint that he performed negligent electrical work - subject matter of complaint proved - determination that matters, subject of complaint, constitute grounds for disciplinary action - consideration of the focus of disciplinary measures - focus held to be public interest and the fitness of the defendant to apply his trade in public - conduct in defiance of court order an aggravating feature with regard to defendant's fitness to work as an electrician - negligent workmanship was life threatening and so constituted serious misconduct - held defendant unfit to work both as an electrician and to contract for electrical business - registration and licence cancelled permanently - defendant fined maximum $20,000.
Plumbers, Gas Fitters and Electricians Act 1995 (SA) s3, 6(1)(a), 20(2)(b), 21, 24(1) & (2), referred to.
Briginshaw v Briginshaw (1938) 60 CLR 336; Cross on Evidence 3rd Aust Ed 243-257; Rajagopalan v Medical Board of South Australia [1998] SASC 6667; New South Wales Bar Association v Evatt (1968) 117 CLR 177; Law Society of New South Wales v Foreman (1994) 24 NSWLR 440; Chan v Medical Board of SA (1986) 41 SASR 434; Craig v Medical Board of SA (2001) 79 SASR 545, considered.
COMMR FOR CONSUMER AFFAIRS v KILSBY
[2004] SADC 179Introduction
These are disciplinary proceedings instituted by the Commissioner for Consumer Affairs against an electrician, Geoffrey Allen Kilsby, pursuant to s21 of the Plumbers, Gas Fitters and Electricians Act 1995 (SA) (“the Act”).
The Plumbers, Gas Fitters and Electricians Act 1995 (SA) (“the Act”) regulates plumbers, gas fitters and electricians. Geoffrey Allen Kilsby (“the defendant”) is a holder of an electrical contractors licence pursuant to the provisions of the Act. He is also registered as an electrical worker pursuant to the provisions of the Act. An “electrical contractor” is a person who carries on the business of performing electrical work for others (s3). An “electrical worker” means a person who personally carries out electrical work (s3). On the 8th January 2001 by order of this Court the defendant’s electrical contractors licence was suspended until the 15th April 2004. It is an offence punishable by a maximum fine of $20,000 to carry on the business of an electrical contractor except as authorised by a licence (s6(1)(a)). So from the 8th January 2001 until the 15th April 2004, the defendant was not permitted to carry on the business of performing electrical work for others. But, as a registered electrician, he was permitted to carry out electrical work for another licensed electrical contractor.
The Commissioner for Consumer Affairs (“Commissioner”) may complain to this Court of matters alleged to constitute grounds for disciplinary action (s21).
There is proper cause for such disciplinary action:
·against an electrical contractor if the contractor has acted (inter alia) contrary to the Act (see s21(1)(c));
·against an electrical worker if the worker has acted (inter alia) negligently (see s20(2)(b)).
In this matter on the 9th February 2004 the Commissioner lodged a complaint against the defendant with this Court alleging five grounds for disciplinary action. We summarise the grounds as follows:
Ground 1 alleges that between about May 2002 and September 2003 the defendant at Kangaroo Island carried on business as an electrical contractor in violation of the suspension of his licence and therefore contrary to the Act when he contracted for and purported to carry out electrical work for:
·EC Solutions (SA) Pty Ltd at Flinders Chase National Park;
·William Paul Stevens at Lot 20 Charring Cross Road, Penneshaw;
·Willson River Pty Ltd at Willson River Road, Dudley Peninsular;
·Sharpy’s Pty Ltd at Grimshaw’s Corner Store & Café at Penneshaw;
·Rudolph Helmut Seljan at Lot 53 Casuarina Crescent, Penneshaw;
·Wayne Brian Faint at Ozone Seafront hotel, Kingscote;
·Anthony Stewart Ingram at Penneshaw Area School;
·Rudolph Helmut Seljan at DeCure Beach House, Island Beach, Kangaroo Island
Grounds 2 to 5 allege that between May 2002 and September 2003 the defendant in the course of acting as electrical worker performed negligent work at four locations on Kangaroo Island, namely:
·Flinders Chase;
·Lot 53 Casuarina Crescent, Penneshaw;
·Penneshaw Area School;
·Lot 20 Charring Cross Road, Penneshaw.
The repeating allegation in the particulars relating to negligent workmanship was of breaches of Australian Standard/New Zealand Standard (AS/NZS 3000:2000) (“Wiring Rules”) resulting in risks of electrocution.
The Hearing – 10th November 2004
The defendant did not attend the hearing of the complaint which took place on the afternoon of the 10th November 2004. The hearing proceeded in his absence. At a Direction Hearing on the 19th October 2004 leave was granted to the Commissioner to proceed in the absence of the defendant pursuant to Rule V1-31 of the District Court Administrative Appeals Rules should the defendant or his legal representative fail to appear.
Further, at the same direction hearing the Commissioner was given leave to adduce evidence in documentary form. Many of the witnesses would otherwise have had to travel from Kangaroo Island.
Prior to the immediate approach to the hearing the defendant had been legally represented in this matter not only in this Court but also in the Supreme Court where the Commissioner obtained an injunction against him. Accordingly, we were satisfied that he had been served with the complaint and moreover had the documentary evidence ultimately relied upon by the Commissioner. Indeed, through his counsel, he intimated a plea of guilty to the complaint and the 25th August 2004 was set aside to hear the plea. It did not go ahead.
So, in the light of the non-attendance of the defendant, the Commissioner was constrained to prove the matters subject of the complaint. As to the standard of proof we note that this Court must be “satisfied on the balance of probabilities there is a proper cause for taking disciplinary action ...” (s24(1)). Further, we direct ourselves that in a matter like this, where at issue is the defendant’s ability to pursue his chosen trade, whilst the standard of proof should be on the preponderance of probability, due regard should be given to the importance of the issues to be determined (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 332-3, 343-344; Cross on Evidence 3rd Australian Ed 243-257).
The Evidence
We accepted in evidence 20 witness statements and allied documents (see Exhibit P1 and P2). We are satisfied that the defendant contracted for and purported to carry out electrical work at the eight locations on Kangaroo Island particularised on the complaint. In particular, we accept that in defiance of the District Court order of the 8th January 2001 for a period of more than a year from May 2002 to September 2003 he, sometimes using his business name Osprey Electrical, carried on the business of an electrical contractor. Further, it is clear that it was the defendant personally who in most instances performed the work. He signed all the necessary compliance certificates, which are effectively a documented assurance that the work has been carried out in accordance with the applicable standards.
Electrical Audits were carried out by the Office of the Technical Regulator on the electrical work performed by the defendant at premises at four locations, namely Flinders Chase National Park, Lot 53 Casuarina Crescent, Penneshaw, Penneshaw Area School and Lot 20 Charring Cross Road, Penneshaw. These Audits were the subject of the statements of evidence of the electricians Charles Hoare and Anthony Jones. Charles Hoare, an electrician of considerable experience, gave oral evidence before us and with the assistance of photographs, Exhibit P2, further explained the defective work at the said four locations. The photographs illustrate graphically the appalling standard of work carried by the defendant. The electrical work in all locations was in many respects left in such a dangerous state that it could have caused electrocution and death. In connection with the work done at the Penneshaw Area School, Mr Hoare said:
“A.In almost 33 years experience in the electrical industry and probably 20 of them as an – just over 20 of them as an inspector with ETSA, prior to my job with the technical regulator, from the photographs submitted form here-on I’d say this is the most dangerous installation that I’ve ever seen. It proves a total disregard for the Electricity Act, for the wiring rules, for the fundamental basics of electrical safety and also for any possible occurrence that could happen. What he’s done is he’s left a live gun underneath the school building here waiting for a kid to grab it. The first photograph showed a kid standing by the small aperture that he could get in underneath the school building. From hereon there’s cables underneath the school building. The kids could use it as a cubbyhouse, probably did, I know I did such a thing when I was a kid at the school. These cables are live, 240 V sitting there waiting for someone to grab them. The electrician who installed this has knowingly left it like this and has, as I said, had a total disregard of whatever happens when he leaves that premises for the safety of anybody within that installation.
Q.Assume for a moment, if you will, that a child did in fact come in contact with this. In infer from your earlier evidence that that presented a significant risk of electrocution.
A.That’s correct. You’ve got to look at two things: One is the nature of what he’s done, he’s left live cables there; secondly, where it is, it’s underneath the school building, you wouldn’t know the kid was there, no-one would know, he could have been for a week for all you know, hooked up.”
(55, 56)
The statements of Jones and Hoare, supplemented by the photographs, demonstrate a multitude of instances of inappropriately insulated wiring, exposed wiring, potentially live meter boxes and repeated instances of situations which give rise to the risk of fatalities by electrocution.
We determine that all the matters complained of have been established and constitute grounds for disciplinary action (s24(1)). The evidence was overwhelming.
We now turn to what disciplinary action is indicated.
Disciplinary Action – Some Parameters
Section 24(1) and (2) of the Act provides as follows:
“24.(1) On the hearing of a complaint, the Court may, if it is satisfied on the balance of probabilities that there is proper cause for taking disciplinary action against the person to whom the complaint relates, by an order or orders do one or more of the following:
(a)reprimand the person;
(b)impose a fine not exceeding $20 000 on the person;
(c)in the case of a person who is licensed as a contractor or registered as a worker—
(i)impose conditions or further conditions on the licence or registration;
(ii)suspend the licence or registration for a specified period or until the fulfilment of stipulated conditions or until further order;
(iii)cancel the licence or registration;
(d)disqualify the person from being licensed or registered under this Act;
(e)prohibit the person from being employed or otherwise engaged in the business of a contractor;
(f)prohibit the person from being a director of a body corporate that is a contractor.
(2) The Court may—
(a)stipulate that a disqualification or prohibition is to apply—
(i)permanently; or
(ii)for a specified period; or
(iii)until the fulfilment of stipulated conditions; or
(iv)until further order; or
(b)stipulate that an order relating to a person is to have effect at a specified future time.”
As is the case of disciplinary action under for instance the Medical Practitioners Act 1983 (SA) and the Legal Practitioners Act 1981 (SA) the primary focus of is not to punish the person but to protect the public (see Rajagopalan v Medical Board of South Australia [1998] SASC 6667; New South Wales Bar Association v Evatt (1968) 117 CLR 177).
The approach taken in respect of both medical practitioners and legal practitioners is applicable in this case. The High Court in Evatt said at 183-184:
“The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved. This has already been pointed out by this Court in Clyne v. N.S.W. Bar Association (1960) 104 C.L.R. 186, at pp. 201, 202. The respondent's failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser.”
The protection of the public has a two-fold aspect. First it involves the protection of the public from the tradesman in question and secondly, it involves the protection of the public from other tradesman who might be minded to act in a like manner. The position was best expressed by Giles AJA in Law Society of New South Wales v Foreman (1994) 24 NSWLR 440 at 471:
“But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues who practise in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with. These sentences are, I think a sufficient statement of established principles found in, for example, Clyne v New South Wales Bar Association, New South Wales Bar Association v Evatt and Law Society of New South Wales v Bannister (1993) 4 LPDR 24.”
Clearly an order for cancellation of the defendant’s licence and/or his registration will be punitive in the sense that it will deprive him of his right to the rewards of his trade. However, underpinning such orders necessarily will be the Court’s conviction that the removal of the right to ply his trade is a means of protecting the public from a person who is regarded as being unfit to work as an electrician (see Chan v Medical Board of SA (1986) 41 SASR 434; Craig v Medical Board of SA (2001) 79 SASR 545 per Doyle CJ at 554, 555).
Disciplinary Measures
In this case, it is an aggravating feature of the defendant’s conduct that, in engaging in the business of an electrical contractor, he defied a previous order of this Court (see Exhibit P1 at p10). It impinges on his fitness to work as an electrician and his ability to see the error of his ways. In our view that conduct and in particular the proven negligent workmanship is of such a serious nature that we need not only to take steps to protect the public from this defendant but also bring home forcibly to him that he cannot so put people at risk. The electrical work here was so defective that in many instances was potentially lethal. It is an understatement to describe it as negligently performed. The work at the Penneshaw Area School was life threatening. The defendant is a clear danger to the public and his conduct cannot be tolerated. We have no hesitation in agreeing with the witness Mr Hoare that this must be close to the worst example of deficient conduct in a trade such as the electrical trade.
In theory there is always a more serious case. We have difficulty conceiving it. The death of one of the children at the Penneshaw Area School by electrocution could so easily have occurred. The underfloor space in the classroom was clearly an attractive haven for playing school children (see Exhibit P2 and in particular photographs KE 3.1, KE 3.2, KE 1.16, KE 1.17, KE 1.18, KE 1.19 and KE 1.20). There were live wires hanging enticingly under the floor. The defendant “”cleared” the electrical work at the school and students were in attendance whilst that deficient electrical work was in place. Mr Anthony Ingram who contracted with the defendant for the work at the school said at para 10 of his statement:
“In early August 2003 I advised Mr Kilsby that the computer room had to be finished a week or so later. About a week later Mr Kilsby went to Adelaide to have an operation on his knee. Upon his return he completed the data cabling in the computer room. I approached Mr Kilsby and asked if the electrical wiring was protected and safe. Mr Kilsby advised me it was and the students have started using the classrooms.”
Accordingly, we consider that the defendant has demonstrated an unfitness to work at all as an electrician and the public needs to be protected from him before he is responsible for someone’s death. He must be prevented from working at his trade given the contempt he has demonstrated for its strictures and the demonstrable risk he poses.
The orders of the Court then are as follows:
1.the defendant is fined $20,000 (s24(1)(b)).
2.the defendant’s licence as an electrical contractor is cancelled (s24(1)(c)).
3.the defendant’s registration as an electrical worker is cancelled (s24(1)(c)).
4.the defendant is disqualified from being licensed or registered under the Act (s24(1)(d)).
5.the defendant is prohibited from being employed or otherwise engaged in the business of a contractor (s24(1)(e)).
6.the defendant is prohibited from being a director of a body corporate, that is a contractor (s24(1)(f)).
7.the above prohibition is to apply permanently (s24(2)(a)(i)).
8.the above orders are to have effect immediately.
The defendant is to pay the costs of the Commissioner of and incidental to this complaint.
We would expect that the Commissioner will notify this decision to his counterpart in the other states and territory of this country and in particular in Queensland where it is said the defendant is now residing.
8
1