Energy Safe Victoria v Cranswick
[2010] VSC 470
•19 October 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2010 1042
| ENERGY SAFE VICTORIA | Appellant |
| v | |
| RUPERT CRANSWICK | Respondent |
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JUDGE: | KYROU J | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 18 October 2010 | |
DATE OF JUDGMENT: | 19 October 2010 | |
CASE MAY BE CITED AS: | Energy Safe Victoria v Cranswick | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 470 | |
JUDGMENT APPEALED FROM: | Cranswick v Energy Safe Victoria [2010] VCAT 106 (1 February 2010) (Macnamara DP) | |
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ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal – Tribunal misconstrued the scope of reg 303, Electricity Safety (Installations) Regulations 1999 (Vic) – Error of law – Tribunal’s decision to be set aside – Proceeding not remitted to the Tribunal – Futility – Order dismissing the proceeding before the Tribunal.
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| APPEARANCES: | Counsel | Solicitors |
| Energy Safe Victoria | Mr M V McInnis | Mr J A Murphy, Solicitor, Energy Safe Victoria |
| Rupert Cranswick, the Respondent, appeared in person |
HIS HONOUR:
Introduction and summary
This is an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) from an order of the Victorian Civil and Administrative Tribunal (‘VCAT’) dated 1 February 2010 (‘VCAT’s order’). The VCAT’s order varied a decision of Energy Safe Victoria (‘ESV’) dated 12 March 2009 to refuse to grant to Rupert Cranswick a supervised worker’s licence under reg 303 of the Electricity Safety (Installations) Regulations 1999 (Vic) (‘Regulations’).[1]
[1]The Regulations were revoked on 27 April 2010: Electricity Safety (Registration and Licensing) Regulations 2010 (Vic) reg 3, sch 1.
The VCAT’s order was in the following terms:
[ESV’s] determination is varied such that [Mr Cranswick] may obtain a Supervised Worker’s Licence in accordance with Regulation 303 of the [Regulations] subject to completion of a two year contract of training as an electrician that includes at least 12 months experience in carrying out electrical installation work.
ESV has appealed against the VCAT’s order on the basis that reg 303(c) of the Regulations only authorised the grant of a supervised worker’s licence where ESV – or, when exercising its review jurisdiction, the VCAT – was satisfied that the applicant had already attained a standard of qualifications, proficiency and experience in electrical installation work which was at least of an equivalent standard to that specified in reg 303(a) or (b) of the Regulations.
For the reasons that follow, I have concluded that the VCAT misconstrued reg 303(c) of the Regulations. The appeal will be allowed and the VCAT’s order will be set aside. The proceeding will not be remitted to the VCAT as such an order would be futile in the circumstances of this case. Instead, an order will be made dismissing the VCAT proceeding.
Factual background
Mr Cranswick holds the degrees of Bachelor of Science with Honours (granted on 18 March 1987 by Monash University) and Bachelor of Engineering (granted on 3 June 1992 by Monash University) and a Diploma of Education (granted on 1 June 1998 by Monash University). He also holds the ‘Certificate IV in Electrical’ from the Chisholm Institute and a Certificate IV in Assessment and Workplace Training from the Holmesglen Institute of TAFE.
From 1996 until 2001, Mr Cranswick was employed by Orica Limited as an engineer. More recently, he has worked as a teacher at the Chisholm Institute of TAFE. Since January 2006, he has been a teacher at the Toyota Technical Training Centre at Toyota’s manufacturing plant in Altona. At that Centre, Mr Cranswick teaches A‑grade electricians and maintenance personnel who work for Toyota.
In his current and previous positions, Mr Cranswick has obtained some theoretical and practical experience in extra-low voltage wiring and installation.[2] His practical experience in low voltage wiring and installation, however, was limited.[3]
[2]Paragraph 1.4.98 of the Australian / New Zealand Wiring Rules defines ‘extra-low voltage’ as ‘[voltage] [n]ot exceeding 50 [volts] a.c. or 120 [volts] ripple-free d.c.’ See reg 105 of the Regulations.
[3]Paragraph 1.4.98 of the Australian / New Zealand Wiring Rules defines ‘low voltage’ as ‘[voltage] [e]xceeding extra-low voltage, but not exceeding 1000 [volts] a.c. or 1500 [volts] d.c.’ See reg 105 of the Regulations.
On 2 April 2008, ESV granted to Mr Cranswick an occupier’s licence to carry out electrical installation work at his home. That licence was granted under reg 304 of the Regulations, which provided:
Occupier’s licence
[ESV] may license a person to carry out electrical installation work of the class prescribed in regulation 301(a) that is limited to premises which the person to be licensed occupies for residential purposes if [ESV] is satisfied that—
(a) the person has satisfactorily completed—
(i)a course of study in electrical engineering at a tertiary level that included at least 80 hours experience in carrying out electrical installation work; and
(ii)the Licensed Electrical Mechanics (LEM) Assessment conducted by a body approved by [ESV]; or
(b)the person’s standard of qualifications, proficiency and experience in electrical installation work is at least of an equivalent standard to that required under paragraph (a).
Under the authorisation of the occupier’s licence, Mr Cranswick carried out some electrical installation work at his home. In the process of doing so, he gained some experience in low voltage electrical installation work.
Decision of ESV
On 27 November 2008, Mr Cranswick applied to ESV for a supervised worker’s licence under reg 303 of the Regulations, which provided:
Supervised worker’s licence
[ESV] may license a person to carry out all electrical installation work of the class prescribed in regulation 301(a) under the effective supervision of a licensed electrician for a period not exceeding 3 years if [ESV] is satisfied that—
(a) the person—
(i)has completed a 4 year contract of training as an electrical fitter; and
(ii) holds a Certificate III in Electrical (Electrical Fitter); and
(iii)has satisfactorily completed a practical examination in safely disconnecting and reconnecting electrical equipment conducted by [ESV] or a body approved by [ESV]; or
(b)the person has—
(i)completed a 4 year contract of training as an electrician that included at least 12 months experience in carrying out electrical installation work; and
(ii)partially completed the Certificate III in Electrotechnology Systems Electrician; and
(iii)satisfactorily completed a practical examination in safely disconnecting and reconnecting electrical equipment conducted by [ESV] or a body approved by [ESV]; or
(c)the person’s standard of qualifications, proficiency and experience in electrical installation work is at least of an equivalent standard to that required under paragraph (a) or (b).
The expression ‘electrical installation work’ in regs 303 and 304 of the Regulations is defined in s 3 of the Electricity Safety Act 1998 (Vic) (‘ES Act’) as ‘installation, alteration, repair or maintenance of an electrical installation’. Regulations 303 and 304 referred to electrical installation work ‘of the class prescribed in regulation 301(a)’. The class of electrical installation work that was prescribed in reg 301(a) was ‘electrical installation work carried out on an electrical installation ordinarily operated at low voltage or a voltage exceeding low voltage’.[4]
[4]The definition of ‘low voltage’ is set out at n 3 above.
On 12 March 2009, ESV rejected Mr Cranswick’s application (‘ESV’s decision’). ESV decided that Mr Cranswick did not satisfy the requirements in reg 303(a) or (b) of the Regulations and that his standard of qualifications, proficiency and experience in electrical installation work was not at least of an equivalent standard to that required under reg 303(a) or (b).
VCAT’s order
On 25 March 2009, Mr Cranswick filed an application in the VCAT seeking a review of ESV’s decision. The application for review was heard from 19 until 22 January 2010. Mr Cranswick represented himself. ESV was represented by Mr McInnis of counsel.
At the VCAT hearing, it was not in dispute that Mr Cranswick had failed to satisfy reg 303(a) or (b) of the Regulations. It was common ground that, while Mr Cranswick had completed the Certificate III in Electrotechnology Systems Electrician (‘Certificate’) and the Licensed Electrical Mechanics (LEM) Assessment, he had not commenced, let alone completed, a four year contract of training as an electrician[5] and he did not have at least 12 months’ experience in carrying out electrical installation work.
[5]The contract of training was previously known as an indenture of apprenticeship.
Mr Cranswick submitted to the VCAT that his standard of qualifications, proficiency and experience in electrical installation work was at least of an equivalent standard to that required under reg 303(b). He led extensive oral and documentary evidence in support of his case.
On 1 February 2010, the VCAT made the VCAT’s order and published its reasons for that order (‘Reasons’).
Paragraphs 1 to 71 of the Reasons dealt with the factual background, the regulatory framework, ESV’s decision, Mr Cranswick’s submissions and evidence, ESV’s submissions and evidence, and three legal issues which are not relevant to this appeal.
Paragraphs 72 to 81 of the Reasons discuss the VCAT’s decision under the heading ‘General Merits’. In paragraphs 72 and 73, the VCAT concluded that Mr Cranswick’s experience as an engineer and as a teacher did not meet the test of equivalence in reg 303(c). The VCAT noted that, as Mr Cranswick had not suggested that he had satisfied the test of equivalence in relation to the requirements in reg 303(a), the question for the VCAT’s determination was whether he had satisfied the test of equivalence in relation to the requirements of reg 303(b).
In paragraph 74 of the Reasons, the VCAT concluded that Mr Cranswick’s extensive on-the-job experience in extra-low voltage wiring and installation both at Orica and at Toyota was not equivalent to low voltage wiring and installation. The VCAT went on to say, however, that there were similarities between the methods of wiring extra-low voltage and the methods of wiring low voltage, and that Mr Cranswick’s experience in wiring elaborate pieces of apparatus with extra-low voltage ‘would seem to put him far ahead in experience from the classic fresh faced apprentice commencing now as apprentices typically do in the electrical trade at the end of Year 12 of High School.’
In paragraph 75 of the Reasons, the VCAT noted that, in the first three years of the four year contract of training that is referred to in reg 303(b)(i), the apprentice must spend one day out of five attending a TAFE college to study for the Certificate. The VCAT concluded that, as Mr Cranswick had already attained the Certificate, ‘[t]his [was] a chunk of the four year term that Mr Cranswick has already served.’
In paragraph 76 of the Reasons, the VCAT referred to evidence that was adduced by Mr Cranswick that suggested that ‘six present or former ESSO Instrument Fitters … were accorded a shortened contract of training’. I will discuss this matter below.
The last five paragraphs of the Reasons – paragraphs 77 to 81 – are crucial to the resolution of this appeal. Those paragraphs are set out below:
77Mr Cranswick’s present standards of qualifications, proficiency and experience in electrical installation work are not of the equivalent standard to that required under paragraph (b) of Regulation 303. He has next to no on the job experience such as he would have obtained in completing a four year contract of training as an electrician. Mr Cranswick’s primary case cannot be accepted.
78Nevertheless, I believe that the extensive experience in electrical installation work at the extra low voltage level which Mr Cranswick has and the limited experience of electrical installation work at low voltage which he possesses are such that he can obtain a standard of qualifications, proficiency and experience in electrical installation work equivalent to the standards set out in paragraph (b) of Regulation 303 without serving a four year contract of training as an electrician. Even without the detailed and rigorous investigations which Mr Frazer might, had he been retained as a private consultant, have carried out for Mr Cranswick, I believe the evidence indicates that a lesser period of service under [a] contract of training as an electrician would be sufficient to meet the requirement of equivalence.
79There is no reason why the 12 months experience in carrying out electrical installation work which is stipulated as a minimum requirement in Regulation 303(b)(i) should be in any way diminished. The balance of the three years however can be diminished having regard first to the fact that part of the balance of the four year period would in any event be taken up with course work which has already been completed and secondly because his experience in the principles of wiring at the extra low voltage level put him ahead of a complete beginner.
80In my view Mr Cranswick would reach the standard of equivalence for the purposes of Regulation 303(c) were he to undertake a two year contract of training as an electrician including at least 12 months experience in carrying out electrical installation work. It would be for the respondent, ESV in consultation with Epic Industrial Training Board by what has been described in evidence as the process of profiling to lay down requirements which would ensure that during this two year period Mr Cranswick obtained the necessary on the job experience to meet the standard of equivalence.
81The respondent’s determination is varied accordingly.
Grounds of appeal
On 7 April 2010, Mukhtar AsJ granted to ESV leave to appeal. His Honour also granted a stay of the VCAT’s order until further order of the Court.
The grounds of appeal, as amended by leave granted by me on 18 October 2010, are as follows:
[a]That the learned Deputy President erred and acted beyond power by including in his order a requirement that the respondent complete ‘a two year contract of training as an electrician that includes at least 12 months experience in carrying out electrical installation work’;
[b]That the Tribunal’s power under s 51(2) of the [VCAT Act] to vary a decision under review permitted it,[6] in effect, to vary the requirements of Regulation 303(b)(i) and 303(c) of the [Regulations];
[c]That the learned Deputy President erred in his interpretation of Regulation 303 of the Regulations;
[d][That] [i]t was not open to the learned Deputy President to find the respondent had not satisfied Regulation 303(c) and to then vary the requirements of Regulation 303(b)(i) by permitting the respondent to complete a two year contract of training as an electrician that includes at least 12 months experience in carrying out electrical installation work.
[6]This is obviously a drafting error. It would appear that the expression ‘did not permit it’ was intended.
The four grounds of appeal are interrelated. In essence, they allege that the VCAT exceeded its jurisdiction by misconstruing reg 303(c) of the Regulations. I propose to discuss the four grounds together.
The VCAT exceeded its jurisdiction by misconstruing reg 303(c)
Regulation 303(c) provided that a supervised worker’s licence could be granted if ‘the person’s standard of qualifications, proficiency and experience in electrical installation work is at least of an equivalent standard to that required under paragraph (a) or (b).’ The use of the word ‘is’ in this provision clearly indicates that the test of equivalence had to be satisfied before a licence was granted.
The VCAT found as a fact that, as at the date of the VCAT’s order, Mr Cranswick had not satisfied the test of equivalence. The VCAT’s decision that Mr Cranswick be granted a licence was based on the VCAT’s assessment that Mr Cranswick would, in the future, satisfy the test of equivalence if he completed a two year contract of training as an electrician that included at least 12 months’ experience in carrying out electrical installation work.
Numerous statements in the Reasons make it clear that the VCAT’s decision was based on a prospective, rather than on a present, satisfaction of the test of equivalence. Those statements include:
(a)the statement in paragraph 77 of the Reasons that Mr Cranswick’s ‘present standards of qualifications, proficiency and experience in electrical installation work are not of the equivalent standard to that required under [reg 303(b)]’;[7]
(b)the statement in paragraph 78 of the Reasons that Mr Cranswick’s extensive experience in electrical installation work at the extra-low voltage level and his limited experience of electrical installation work at low voltage ‘are such that he can obtain a standard of qualifications, proficiency and experience in electrical installation work equivalent to the standards set out in [reg 303(b)] without serving a four year contract of training as an electrician’;[8]
(c)the statement in paragraph 78 of the Reasons that ‘the evidence indicates that a lesser period of service under [a] contract of training as an electrician would be sufficient to meet the requirement of equivalence’;[9]
(d)the statement in paragraph 80 of the Reasons that ‘Mr Cranswick would reach the standard of equivalence for the purposes of Regulation 303(c) were he to undertake a two year contract of training as an electrician including at least 12 months experience in carrying out electrical installation work’;[10] and
(e)the statement in paragraph 80 of the Reasons that it would be for ESV, in consultation with the Epic Industrial Training Board, ‘to lay down requirements which would ensure that during this two year period Mr Cranswick obtained the necessary on the job experience to meet the standard of equivalence.’[11]
[7]Emphasis added.
[8]Emphasis added.
[9]Emphasis added.
[10]Emphasis added.
[11]Emphasis added.
In my opinion, the VCAT’s finding that Mr Cranswick had not satisfied the test of equivalence in reg 303(c) as at the date of the VCAT’s order meant that the precondition to the exercise of the power in reg 303(c) to grant a supervised worker’s licence was not satisfied. By purporting to grant such a licence on the basis of a perspective satisfaction of the test of equivalence, the VCAT acted beyond its jurisdiction.
Mr McInnis, who appeared for ESV in the appeal, submitted that the practical effect of the VCAT’s order was to vary the requirement in reg 303(b)(i) that an applicant for a supervised worker’s licence must have completed a four year contract of training as an electrician. I agree with that submission. In substance, the VCAT decided that, in the light of Mr Cranswick’s experience, he would only be required to complete a two year contract of training as an electrician.[12] As the Regulations did not confer a power to vary the requirements of reg 303(b)(i), the VCAT acted beyond its power.[13]
[12]This characterisation of the VCAT’s decision is supported by paragraph 79 of the Reasons, where the VCAT stated that ‘[t]he balance of the three years [of the four year contract of training as an electrician] … can be diminished’.
[13]Cf r 5.07(1)(b) of the Legal Profession (Admission) Rules 2008 (Vic), which, subject to certain limitations, confers on the Board of Examiners power to ‘dispense with the performance or observance of any requirement in these Rules’ and to ‘vary any requirement in these Rules’. Mr McInnis informed me from the bar table that a body called the Office for Training and Tertiary Education (‘OTTE’), rather than ESV, had power to vary the term of a contract of training as an electrician. I was not provided with any details of the legislation under which the OTTE operated or informed of the effect of a decision by the OTTE to vary such a contract on the requirements in reg 303(b)(i) of the Regulations.
Mr Cranswick, who represented himself in the appeal, submitted that the VCAT’s order was authorised by s 51 of the VCAT Act. He referred to well-known authorities which state that, in exercising its review jurisdiction, the VCAT steps into the shoes of the primary decision-maker and has all the powers and discretions of the primary decision-maker. In this case, however, the powers and discretions of ESV were limited to those set out in reg 303(c). Under reg 303(c), ESV could only grant a supervised worker’s licence if and when the precondition that is set out in the regulation was satisfied. As Mr Cranswick has not satisfied the precondition, ESV did not have the power to grant him a supervised worker’s licence under reg 303(c). The VCAT’s powers under reg 303(c) did not exceed those of ESV under that regulation.
Mr Cranswick also submitted that the VCAT’s order was valid because s 40 of the ES Act conferred on ESV the power to license a natural person as an electrical worker in respect of a specified class of electrical work and to issue such a licence ‘subject to any conditions that [ESV] thinks fit’. Any licence that ESV issues under s 40, however, must be issued ‘in accordance with the regulations’. In the present case, the relevant regulation was reg 303 of the Regulations.
Mr Cranswick sought to support the VCAT’s order on the basis that ESV had previously exercised its discretion in favour of employees of Esso and army personnel by reducing the number of years of the contract of training that had to be completed pursuant to reg 303(b)(i). It will be recalled from [21] above that the VCAT referred briefly to the position of the Esso employees. The material before the VCAT to which Mr Cranswick took me indicated that ESV had made a determination that the Esso employees had satisfied the test of equivalence in reg 303(c) after they had partially completed a contract of training as an electrician. Mr McInnis informed me that this was also the position with the army personnel.
It follows from [33] above that ESV has not previously purported to grant a supervised worker’s licence under reg 303(c) where the applicant had not then satisfied the test of equivalence. If ESV had purported to grant such a licence without first determining that the test of equivalence had been satisfied, it would have acted beyond its power. In any event, such unlawful conduct by ESV in relation to other applicants would not have assisted Mr Cranswick as it would not have resulted in a waiver or modification of the precondition in reg 303(c).
Mr Cranswick also relied on the fact that ESV had granted him an occupier’s licence under reg 304 of the Regulations. In my opinion, the granting of that licence has no bearing on the issues that I need to determine.
Further, Mr Cranswick relied on statements that Mr McInnis had made at the VCAT hearing which appeared to acknowledge that the VCAT’s power to vary ESV’s decision enabled it to decide that, although Mr Cranswick was not then qualified for a supervised worker’s licence, he could be granted such a licence upon the completion of specified requirements. Before me, Mr McInnis frankly conceded that he was mistaken in so far as anything said by him at the VCAT hearing suggested that the VCAT had the power to make an order of the type that it had made.
It is not clear to me whether Mr McInnis’ statements, in the context in which they were made, amounted to anything more than an acknowledgment that the VCAT could make a decision that was similar to the decision that ESV had made in relation to the Esso and army personnel. Even if it is assumed that Mr McInnis was mistaken about the VCAT’s jurisdiction, such a mistake cannot affect the scope of the VCAT’s powers.[14]
[14]Such a mistake, however, can have other consequences for ESV, including an adverse costs order.
Mr Cranswick highlighted various aspects of the evidence that was before the VCAT in support of the merits of his application for a supervised worker’s licence. As I pointed out to Mr Cranswick during the hearing, however, these evidentiary matters were not relevant to the narrow legal issues that were raised in the appeal.
Proposed order
The appeal will be allowed and the VCAT’s order will be set aside.
Mr McInnis submitted that it would be futile for the proceeding to be remitted to the VCAT to be heard and decided again, as the VCAT’s findings of fact precluded the grant of a supervised worker’s licence to Mr Cranswick under reg 303(c). I agree with that submission. Pursuant to s 148(7)(b) of the VCAT Act, I will make an order dismissing the VCAT proceeding.
I will hear from the parties on the precise form of the order to be made by the Court and on the question of costs.
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