Commissioner for Consumer Affairs v McCurdy - [2004] SADC 174

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
In the Matter of THE PLUMBERS, GAS FITTERS AND ELECTRICIANS ACT 1995
COMMR FOR CONSUMER AFFAIR v MCCURDY
Reasons for Decision of His Honour Judge Bishop
22 December 2004
ADMINISTRATIVE LAW - APPEALS FROM ADMINISTRATIVE AUTHORITIES
Application for cancellation of the defendant's licence as an electrical contractor on the ground that the defendant is not a fit and proper person to hold a licence - Plumbers, Gas Fitters and Electricians Act 1995 - defendant convicted and imprisoned for three sexual offences against a young boy - consideration of relevant factors - application dismissed.
Plumbers, Gas Fitters and Electricians Act 1995; A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 78 ALJR 310; Hughes & Vales Pty Ltd v The State of NSW (No. 2) (1955) 93 CLR 127; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Maxwell v Dixon [1965] WAR 167; C v Johnson [1967] SASR 279; Commissioner for Consumer Affairs v Sollars [2001] 79 SASR 145; Sobey v Commercial & Private Agents Board [1979] 22 SASR 70; Petracaro v Commissioner of Consumer Affairs [1994] 62 SASR 387; Clavell v Office of Consumer Affairs [2000] SADC 107; Law Society of SA v Rodda [2002] 83 SASR 541, referred to.

COMMR FOR CONSUMER AFFAIR v MCCURDY
[2004] SADC 174
Judge Bishop
Administrative
The complaint

The Commissioner for Consumer Affairs (“the Commissioner”) lodged with the court a complaint, pursuant to section 21 of the Plumbers, Gas Fitters and Electricians Act 1995 (“the Act”), setting out matters that were alleged to constitute grounds for disciplinary action under Part 4 of the Act against Thomas Alexander McCurdy (“the defendant”). The allegations were that:
“1.Events have occurred such that the defendant would not be entitled to be licensed as an electrical contractor if he were to apply for a licence: Sections 20(1)(d) and 9(1)(f) of the Act.
Particulars
1.1 The defendant holds and at all relevant times has held an electrical contractor’s licence, PGE 129359, pursuant to the provisions of the Act.
1.2 During 2003, the defendant was convicted of indecent assault, inciting a child to commit an indecent assault and unlawful sexual intercourse with a person under 12 years and on 17 November 2003 was sentenced to a term of imprisonment.”
On 15 December 2004, the court conducted a hearing, pursuant to section 22 of the Act, for the purpose of determining whether the matters alleged in the complaint constituted grounds for disciplinary action. Section 20(1)(d) provides that there is proper cause for disciplinary action against an electrical contractor if “events have occurred such that the contractor would not be entitled to be licensed as a contractor if the contractor were to apply for a licence.” Section 9(1) provides, inter alia, that a natural person is entitled to be granted a licence if the person has the qualifications and experience required by regulation for the kind…

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 McCurdy

Details

AGLC: Commissioner for Consumer Affairs v McCurdy [2004] SADC 174
Case: [2004] SADC 174
Decision Date: 22 December 2004

CaseChat Overview and Summary

The Commissioner for Consumer Affairs appealed against a decision of the Electrical Contractors Board, which dismissed an application to cancel the defendant's licence as an electrical contractor. The appeal hinged on the argument that the defendant was not a fit and proper person to hold a licence due to his criminal history. Specifically, the defendant had been convicted and imprisoned for three sexual offences against a young boy. The court had to determine whether the defendant's criminal conduct was of such a nature that it warranted the cancellation of his licence under the relevant statute.

The central issue before the court was whether the defendant's criminal convictions and imprisonment constituted sufficient grounds for finding him unfit to hold an electrical contractor's licence. The court needed to weigh the seriousness and nature of the crimes against the statutory criteria for determining fitness and propriety. Additionally, the court had to consider other relevant factors, such as the defendant's conduct post-conviction and the potential impact on public safety and confidence in the electrical contracting industry.

The court found that while the defendant's criminal conduct was severe, it did not automatically disqualify him from holding a licence. The court considered the statutory criteria and the overall circumstances, including the defendant's rehabilitation and the absence of any recent misconduct. The court concluded that the defendant was a fit and proper person to hold a licence, and therefore dismissed the application for cancellation. This decision underscored the importance of assessing each case on its merits and the potential for rehabilitation in fitness determinations.

Orders