Commissioner for Consumer Affairs v Paringa Property Services Pty Ltd and Stone - [2013] SADC 124

District Court of South Australia
(District Court Administrative and Disciplinary Division)
COMMISSIONER FOR CONSUMER AFFAIRS v PARINGA PROPERTY SERVICES PTY LTD AND STONE
[2013] SADC 124
Judgment of His Honour Judge Beazley (ex tempore)
2 September 2013
ADMINISTRATIVE LAW
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
Complaint brought against the respondents - the first respondent is the holder of a Building Work Contractor's Licence issued under Part 2 of the Act - the second respondent is registered as a Building Work Supervisor under Part 3 of the Act – complainant asserts that there is proper cause for disciplinary action by reason of the negligent bracing of roof trusses in respect of renovations and extension to an existing property at Port Noarlunga South – scheme of the Act discussed – wide range of orders available upon the finding that there is proper cause for disciplinary action – respondents reprimanded - orders varying the conditions of the second respondent's registration – undertaking given by the second respondent to notify the complainant of any medical condition that may reasonably affect his ability to continue as a building work supervisor under the Act.
Building Work Contractors Act 1995 ss 13, 21, 22 and 25, referred to.
R v A [2003] SASC 121 at [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 PARINGA PROPERTY SERVICES PTY LTD AND STONE
[2013] SADC 124
Introduction

On 13 May 2010, the Commissioner for Consumer Affairs (‘the Commissioner’) lodged a complaint, pursuant to s 22 of the Building Work Contractors Act 1995 (‘the Act’) detailing some 23 grounds, which it was alleged, constitute proper cause for disciplinary action under Part 4 of the Act, against Paringa Property Services Pty Ltd (‘the first respondent’) and Paul Stone (‘the second respondent’). At all relevant times the first respondent is and has been the holder of a Building Work Contractor’s Licence issued pursuant to Part 2 of the Act. The second respondent at all relevant times is and has been registered as a Building Work Supervisor under Part 3 of the Act.
The subject of the complaint was a contract entered into by the first respondent to undertake renovations and additions to an existing property at Port Noarlunga South in or about the month of November 2007.
It is unnecessary to set out in detail the allegations raised in the complaint as initially filed. In short however, the complaint was directed to the alleged negligence of the first respondent as the holder of a building work contractor’s licence; and that of the second respondent both, as a director of the first respondent; and in his capacity as the relevant registered building work supervisor, in respect of the bracing of roof trusses at the Port Noarlunga property.
Procedural matters
The hearing of the disciplinary proceedings had been listed initially for trial to commence on 5 November 2011. An order had been made pursuant to s 24 of the Act that the trial be determined by a judge sitting with assessors. The initial hearing, however, was vacated by order of a Master of the court, as related civil proceedings had not then been completed. Ultimately the trial was listed to commence on 2 September 2013 with assessors.
Following completion of the related civil proceedings the parties were able to reduce substantially the number of allegations from the 23 grounds initially pleaded in the complaint.
The matter was listed for hearing on the basis of an agreed set of facts. I accordingly vacated the order which had been made previously for the disciplinary action to be determined by a judge sitting with two assessors and proceeded to hear the complaint alone.
Factual basis
The Commissioner was represented by Mr White of Counsel. The respondents were represented by Mr Jenner of Counsel. They presented a joint submission upon which the factual basis was agreed. They also made a joint submission in which they proposed “consent orders” for disciplinary action pursuant to s 25 of the Act.
The agreed facts are as follows:
1.     The first respondent is a licensed building work contractor.
2.     The second respondent:-
2.1    is the director and shareholder of the first respondent;
2.2    currently holds a building work supervisor’s registration;
2.3    was a builder for approximately 35 years in the United Kingdom prior to immigrating to Australia;
2.4    commenced trading in South Australia as a builder in late 2007;
3.In about November 2007 the respondents entered into a contract to undertake renovation and extension work to an existing property in Port Noarlunga South for the relatively modest sum of $39,957.63. The owners of the property had engaged their own designer and engineer to obtain development approval, and to prepare engineer’s drawings.
4.As it transpired there were differences in the levels of the existing floor and roof lines which had the result that the designer’s drawings could not be achieved.
5.The bracing of the roof trusses was carried out by a subcontractor. The work was done in a defective manner by that subcontractor by:-
5.1failing to adequately brace the roof trusses;
5.2    permitting the roof trusses to be modified on site without prior engineering approval;
5.3    failing to extend the timber veranda posts up to the lining of the eaves;
6.The respondents admit that the work detailed in clause 5 hereof was negligently performed by the contractor and that they failed to adequately supervise that work.
7.Civil proceedings between the owners and the respondents was resolved prior to trial.
8.The respondents have carried out sixteen other projects since late 2007 ranging in value from $29,000 to $366,000 and there have been no complaints in respect of any of those projects.
9.The second respondent has undertaken a building industry course specifically directed to the installation of roof trusses.
Parties’ submissions
In light of the agreed facts the parties jointly submitted that the court ought conclude that the respondents were negligent, as defined in the Act, in consequence of their failure to adequately supervise the bracing of the roof trusses by the subcontractor.
They invited the court to conclude that there was proper cause for disciplinary action against the first respondent pursuant to section 21(1)(c) of the Act, and against the second respondent pursuant to section 21(2)(b) of the Act. They invited the court to make disciplinary orders pursuant to section 25(1) of the Act in accordance with draft minutes of order.
As I have previously noted in the case of Commissioner for Consumer Affairs v Pertini[1], notwithstanding the attitudes expressed by the parties it is for the court to determine what orders ought be made pursuant to s 25 of the Act in the event that it is satisfied that there is proper cause for disciplinary action under s 21 of the Act. See R v A[2].
[1] [2005] SADC 133.
[2] [2003] SASC 121 at [20-21].
In Commissioner for Consumer Affairs v Sollar[3] the scheme of the Act was identified as:
…relevantly to protect the public by regulating those who may engage in the activities for which a licence is required. The focus is on the protection of the public by requiring applicants to meet criteria directed to their qualifications, experience and fitness for the occupation… although the consequences of the making of an order may appear to operate as punishment…it needs to be understood that the order itself is not punitive in character, nor is the decision as to the order to be made to be reached by reference to considerations relevant to the sentencing of an offender.
[3] [2001] 79 SASR 145.
Cause for disciplinary action
I am satisfied that the agreed set of facts properly encompasses the conduct of the respondents in respect of the subject building work. In particular, I am satisfied that it is properly classified as negligent conduct for the purposes of s 21(1)(c) of the Act against the first respondent and s 21(2)(b) of the Act against the second respondent. There is therefore proper cause for disciplinary action to be taken against the respondent.
Discretion to impose disciplinary orders under s 25 of the Act
There is no doubt that s 25 of the Act invests the court with a wide discretion as to the range of disciplinary orders. Those orders range from a reprimand or imposing fines not exceeding $20,000, up to an order for disqualification of a person from being licensed or registered under the Act.
Application of the discretion to the facts
I am satisfied, as I have indicated, on the balance of probabilities that there is proper cause to take disciplinary action against both respondents, in consequence of their admitted negligence in not adequately supervising the work undertaken by the subcontractor. I accept that there were some mitigating circumstances in consequence of the engineering and design drawings prepared by others.
In my opinion the public can be properly protected by reprimanding both respondents pursuant to s 25(1)(a) of the Act. The parties invited me to impose a further condition upon the terms of the registration of the second respondent as a building workers supervisor. It is a condition obliging the second respondent to undertake two relevant courses of education. While conditions upon a registration generally are restricted to the type of work to be undertaken, as set out in s 13 of the Act, I am satisfied that I have the power to impose such a condition pursuant to s 25(1)(c)(i) of the Act. I will impose the requested condition as to education.
In addition the second respondent gave an undertaking to the court that he will advise the complainant forthwith of any medical condition that may reasonably affect his ability to continue as a building work supervisor under the Act.
Orders
Following the formal undertaking being given by the second respondent in the terms expressed above, I make the following orders:-
1. That each respondent be reprimanded pursuant to s 25(1)(a) of the Act.
2. That pursuant to s 25(1)(c)(i) of the Act, the second respondent’s terms of registration as a building work supervisor be varied by the insertion of a condition, namely:
“that within 12 months of 2 September 2013 the second respondent undertake and complete two building courses offered by the Housing Industry Association which are relevant to the provisions of the Building Code of Australia and/or in respect of Building Contract Administration.”
3. I make no order as to the costs of the complaint.