Plumbers Licensing Board and Shields
[2006] WASAT 184
•30 MARCH 2006
PLUMBERS LICENSING BOARD and SHIELDS [2006] WASAT 184
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 184 | |
| WATER SERVICES LICENSING ACT 1995 (WA) | |||
| Case No: | VR:9002/2005 | 30 MARCH 2006 | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) MR J MANSVELD (MEMBER) MR K MCGILL (SENIOR SESSIONAL MEMBER) | 30/03/06 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Respondent's tradespersons licence suspended for three months and respondent reprimanded Respondent ordered to pay costs fixed at $3000 | ||
| B | |||
| PDF Version |
| Parties: | PLUMBERS LICENSING BOARD GARY WILLIAM SHIELDS |
Catchwords: | Vocations Licensing Plumbing work Holder of tradespersons licence Advertisement displaying false plumbing contractor's licence number Fraudulent conduct in relation to plumbing work Whether intention to mislead Penalty |
Legislation: | Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000, reg 27(i) and 27(f) |
Case References: | Nil Nil |
Orders | 1. Mr Shields is reprimanded.,2. Mr Shields' Tradesman's Licence 8293 is suspended for a period of three months as of 30 March 2006. ,3. Mr Shields is ordered to pay costs to the Board of $3000.,4. The respondent is to surrender to the Board his licence and identification card no later than 4.00 pm on 5 April 2006. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : WATER SERVICES LICENSING ACT 1995 (WA) CITATION : PLUMBERS LICENSING BOARD and SHIELDS [2006] WASAT 184 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT)
- MR J MANSVELD (MEMBER)
MR K MCGILL (SENIOR SESSIONAL MEMBER)
- VR 9003 of 2006
- Applicant
AND
GARY WILLIAM SHIELDS
Respondent
Catchwords:
Vocations Licensing Plumbing work Holder of tradespersons licence Advertisement displaying false plumbing contractor's licence number Fraudulent conduct in relation to plumbing work Whether intention to mislead Penalty
(Page 2)
Legislation:
Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000, reg 27(i) and 27(f)
Result:
Respondent's tradespersons licence suspended for three months and respondent reprimanded
Respondent ordered to pay costs fixed at $3000
Category: B
Representation:
Counsel:
Applicant : Mr J Rowe
Respondent : Self-represented (by teleconference)
Solicitors:
Applicant : N/A
Respondent : Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Edited transcript of reasons given ex tempore
1 The matter before us today involves two applications brought by the Plumbers Licensing Board. The first (VR9003/06) contains two separate allegations, one being that on or about 7 August 2004 Mr Shields, being the holder of a tradespersons licence, carried out plumbing work whilst not under the general direction and control of a licensed plumbing contractor at 43 Girrawheen Avenue, Gooseberry Hill Regulation 27(i) of the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 (the Regulations). The second allegation is that on about 21 August 2004 and 13 November 2004, Mr Shields was guilty of fraudulent conduct in relation to the carrying out of plumbing work, in that he placed advertisements in the Midland Echo newspaper and distributed a refrigerator advertising magnet all of which carried a false licence number – reg 27(f).
2 The second application (VR9002/05) also contains two allegations. The first is that between 29 July and 5 August 2005, Mr Shields carried out plumbing work at 20 Sutton Street, High Wycombe whilst not under the general direction and control of a licensed plumbing contractor – reg 27(i). The second is that he is guilty of fraudulent conduct in relation to the carrying out of plumbing work by distributing fridge magnets carrying a false plumbing licence number – reg 27(f).
The first application (VR9003/06)
3 With respect to the first allegation, that is that the work at 43 Girrawheen Avenue, Gooseberry Hill was done without appropriate supervision, we find that allegation is made out. It is admitted by Mr Shields that he did carry out some work at the premises in Gooseberry Hill which involved the installation of a stand pipe at a property owned by Mr Strauss, although Mr Shields did not remember Mr Strauss' name. It is clear that he did recall the particular job and that it was the subject of a subsequent interview between him and the inspectors of the Plumbers Licensing Board.
4 Mr Shields' response to the allegation is that he expected that a Brian Smith, whom he understood to be a licensed plumbing contractor, would sign off for the work, and thus he was working under the general direction and control of Mr Smith. We do not accept that account of the events as outlined by Mr Shields. The reason we do not is because of what we think is a fairly unsatisfactory state of the evidence from
(Page 4)
- Mr Shields concerning Mr Smith and his involvement in Mr Shields activities. Mr Shields was vague in relation to the details of Mr Smith. Despite recounting an involvement with him over a reasonably lengthy period of time, allegedly involving some six jobs, Mr Shields was able to give very little in the way of detail of Mr Smith's circumstances, his business and so on, so that we can have no confidence that Mr Shields did work, or expect to be working, under Mr Smith's supervision.
5 Second, there is evidence from the Board about whether or not any Brian Smith is a licensed plumbing contractor, at least in the records of the Board. Records have been produced which show that there is a licensed plumbing contractor by the name of Brian William Smith in Karratha, but inquiries have not indicated that he could have been the same Mr Smith as was being referred to by Mr Shields. The third reason we do not accept that the particular job at Gooseberry Hill was being done under the expected supervision of Mr Smith is because of the very vague evidence as to the arrangements (assuming Mr Smith does exist) as to what role he was to play in relation to this particular job.
6 Mr Shields' evidence goes no further than to say that he had an expectation that Mr Smith would sign off on the job but there was no particularisation in that evidence about how he might come to know of the job, inspect it and sign off on it. All of that evidence leads us to be satisfied that in fact the work was not undertaken under the general direction and control of any licensed plumber. So we find the first allegation established.
7 The second aspect of the first complaint is in relation to the advertisements which appeared on 21 August 2004 and 13 November 2004 in the Echo Newspaper and the publication of a fridge magnet.
8 The complaint in relation to those advertisements is that they contain representations to the effect that Mr Shields, who on his own admission has placed the advertisements in the newspaper, is a licensed plumber. It is clear that in each case the advertisements show a number. The advertisement of 21 August 2004 shows a number "P5051" and the second of the advertisements in November 2004 shows a licence number of "P293". The clear inference to be derived from those advertisements is that the person advertising holds a plumbing contractor's licence. The number "P5051" is a number that was held by another gentleman but was cancelled from 1995 and there is no suggestion by Mr Shields that, in fact, that is his plumbers licence number. In respect of the later advertisement,
(Page 5)
- which perhaps significantly occurred after there had been an interview with Mr Shields by officers of the Plumbers Licensing Board concerning the earlier advertisement, the number changed to a number which has the same numerals as Mr Smith's tradesman's licence. However, the presence of the "P" in front of the numerals suggests that it is a plumbing contractor's licence and that the services being offered are those of a licensed plumbing contractor.
9 Mr Shields, to his credit, readily admitted that he placed the advertisements, but contended that his conduct in doing so was not fraudulent because he did not mean to mislead. We think that there is no other reasonable inference open other than that the advertisements were intended to give a misleading picture as to the fact that the advertiser had a plumbing contractor's licence. The advertisements therefore amount to intentional misleading which amounts to fraudulent conduct for the purpose of the Regulations. Similarly the refrigerator magnet contains yet another licence number, 551. The explanation from Mr Shields in relation to the presence of that number was again not particularly satisfactory.
10 The explanation is based upon the proposition that 551 was the number given to him by Mr Brian Smith or alternatively a typographical error in relation to that number. However, having reached the conclusion we have about Mr Smith's role in the supervision generally, we do not accept that account of events. What is clear from Mr Shields' evidence is that he produced a significant number of these fridge magnets, that they were distributed (in this particular case to Mr Strauss), and that they generally advertised his services in relation to plumbing work. They referred to a licence that did not exist, and we do not accept that, throughout the period concerned, Mr Shields, even on his own version of events, could have seriously thought that he was doing all this plumbing work under the supervision of Mr Smith.
11 That point is made rather more forcefully in relation to the allegation of fraudulent conduct in distributing fridge magnets which is the second aspect of the complaint. That involves an allegation that a magnet was distributed at best some 10 or so months after, on Mr Shields own admission, he ceased to have anything to do with Mr Smith. We find that the second allegation of fraudulent conduct, in relation to the advertisements in the newspaper on 21 August and 13 November, and on the fridge magnets, is also made out.
(Page 6)
The second application (VR9002/05)
12 The second application deals with allegations said to have occurred between 29 July 2005 and 5 August 2005. The first allegation is that Mr Shields, being the holder of a tradesperson's licence, carried out plumbing work while not under the general direction and control of a licensed plumbing contractor at 20 Sutton Street, High Wycombe. It is also alleged that between the same dates he was guilty of fraudulent conduct in relation to distributing fridge magnets carrying a false plumbing contractor's licence number. Again in relation to the first of these complaints Mr Shields admitted that he carried out the work concerned. The work involved the attempted, but unsuccessful, repair of some internal pipework in a shower recess and the installation of taps into a basin. Mr Shields accepts that he did not do that work under the general direction and control of a licensed plumbing contractor.
13 On Mr Shields' own admissions that charge is made out, but, even absent those admissions, the evidence of the witnesses concerned, and in particular Mrs Vucojevich, establishes that matter to the required level of satisfaction. So we find that charge also made out.
14 Finally, in relation to the allegation of the distribution of the fridge magnets, the evidence is that a fridge magnet was given to Mrs Vucojevich at the time that he did work on the 29 July 2005, or shortly thereafter. It was the same fridge magnet, or at least bore the same writing, as the fridge magnet in the earlier matter.
15 It again bore the false plumbing licence number of 551. As we have already stated, Mr Shields accepts that, at that time, he had lost contact with Mr Smith altogether. There was no suggestion that he could have thought that he was carrying out work under a particular licence number that he thought to be Mr Smith's. Therefore we have concluded that Mr Shields must have been aware of the falsity of the information contained on the fridge magnets, that the distribution of them is conduct in relation to plumbing work, namely conduct designed to attract plumbing work, and that therefore the second allegation is made out.
16 So for those reasons we find each of the allegations brought against Mr Shields to be made out. That brings us now to the question of penalty.
Penalty
17 We will deal with VR9003 of 2006 first, which is the Gooseberry Hill matter. In relation to the carrying out of plumbing work not under
(Page 7)
- general supervision and direction, which involves the installation of the stand pipe, we think that there should be a reprimand imposed. In relation to the fraudulent conduct allegation, we have concluded that the appropriate disposition is a suspension of the tradesman's licence for a period of one month. We do not propose to impose a fine in addition to that suspension and we will deal with the question of costs globally in relation to the two matters.
18 In relation to the second matter, VR9002 of 2005 which is the High Wycombe matter, we are mindful that that work was done after Mr Shields' attention was drawn by the Board to the problems of him working without supervision and after the interview which occurred in relation to the earlier matter. He therefore was on notice about the need for proper supervision and we therefore view it in a sense as a second offence that should attract a more onerous penalty than a reprimand.
19 We have considered whether a fine should be imposed, but having regard to Mr Shields' personal circumstances, and having regard to the proper objectives in imposing a penalty in relation to professional disciplinary matters, namely deterrence to the licensee concerned, a general demonstration to the public that these matters are taken seriously, and deterrence to others from conducting work without proper supervision, we think that those objectives can be achieved by imposing a term of suspension. We think that the appropriate period of suspension is three months.
20 That brings us to the misleading and deceptive conduct in the second matter which is a repetition of false advertising on the fridge magnets. Although it is the same method of misleading advertising which formed part of the basis of the first matter, it is aggravated by the fact that Mr Shields was on notice about that conduct as a result of the earlier events. So in a sense he was flaunting the concerns of the Board and ignoring the public interest in the proper administration of the Act and regulations. For that reason it should attract a more severe penalty than was imposed in relation to the earlier fraudulent conduct finding.
21 We think that the finding of fraudulent conduct on the second matter should attract a suspension of three months. We think, however, that each of the three periods of suspension that we have now imposed should be served concurrently so that the ultimate disposition, the net effect of our decision, is that there is a reprimand and the tradesman's licence number TL8293 is suspended for a total of three months.
(Page 8)
Costs
22 With respect to the question of costs an application has been made for costs in the sum of $5000. It is very difficult to settle upon an appropriate sum. We accept entirely that the amount claimed by Mr Rowe does represent on a normal charging basis a figure that the work done would involve for legal services. Having said that we think that it is appropriate that, in the interests of proportionality in relation to the matters the subject of complaint, the Tribunal ought be wary about too readily awarding what are very substantial amounts of costs and therefore very substantial penalties on people in the disciplinary area. We think, recognising that a good deal of work was necessary, and recognising that to an extent the quantum of costs was increased by Mr Shields' failure to make any proper response to the earlier proceedings, the appropriate amount of costs to settle upon is $3000.
Orders
1. Mr Shields is reprimanded.
2. Mr Shields' Tradesman's Licence 8293 is suspended for a period of three months as of 30 March 2006.
3. Mr Shields is ordered to pay costs to the Board of $3000.
4. The respondent is to surrender to the Board his licence and identification card no later than 4.00 pm on 5 April 2006.
I certify that this and the preceding [22] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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