Plumbers Licensing Board and Sutherland
[2014] WASAT 118
•11 SEPTEMBER 2014
PLUMBERS LICENSING BOARD and SUTHERLAND [2014] WASAT 118
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 118 | |
| PLUMBERS LICENSING AND PLUMBING STANDARDS REGULATIONS 2000 (WA) | |||
| Case No: | VR:221/2013 | 22 MAY AND 20 JUNE 2014 | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) MS L EDDY (MEMBER) MR S WALLACE (SESSIONAL MEMBER) | 11/09/14 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | PLUMBERS LICENSING BOARD DANIEL JAMES SUTHERLAND |
Catchwords: | Profession Plumber Disciplinary matter Plumbing contractor's licence Licensee Person who holds licence Whether can determine disciplinary matter has occurred if person no longer holds licence |
Legislation: | Health Practitioner Regulation National Law (WA) Act 2010 (WA) Interpretation Act 1984 (WA), s 18 Plumbers Licensing and Plumbing Standards Regulations 2000 (WA), reg 3, reg 3(1), reg 20, reg 21, reg 27, reg 28, reg 29, reg 29(1), reg 34, reg 34(1), reg 107(1), reg 113, Pt 4, Pt 9 Plumbers Licensing Act 1995 (WA), cl 8(h), Sch 3 State Administrative Tribunal Act 2004 (WA), s 13, s 47 |
Case References: | Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 |
Orders | On the application heard on 22 May and 20 June 2014 by the President, Justice Curthoys, Member Lisa Eddy and Sessional Member Shane Wallace, it is on 11 September 2014 ordered that:,1. The application is dismissed pursuant to s 47 of the State Administration Tribunal Act 2004 (WA) on the basis that the application is lacking in substance. |
Summary | The application concerned an allegation by the Plumbers Licensing Board that a disciplinary matter had occurred. The allegation was that the respondent, at a time when he held a plumbing contractor's licence, failed to:,1) submit the required fee to the licencing board on 55 occasions;,2) submit the required certificate of compliance in relation to major plumbing work within the required time on 12 occasions; ,3) submit the required notice of compliance for work that had been completed, or advise that the work had not been carried out, on 29 occasions; and,4) cooperate with the Plumbers Licensing Board when it sought rectification of the previously mentioned matters. ,At the time the application came to be heard by the Tribunal, the respondent was no longer the holder of a plumbing contractor's licence. The Tribunal found that it could not determine whether a disciplinary matter had occurred where, at the time of making that determination, the person alleged to have done the things relied upon as being a disciplinary matter, is not the holder of a licence under the Plumbers Licensing and Plumbing Standards Regulations 2000 (WA). |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLUMBERS LICENSING AND PLUMBING STANDARDS REGULATIONS 2000 (WA) CITATION : PLUMBERS LICENSING BOARD and SUTHERLAND [2014] WASAT 118 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT)
- MS L EDDY (MEMBER)
MR S WALLACE (SESSIONAL MEMBER)
- Applicant
AND
DANIEL JAMES SUTHERLAND
Respondent
Catchwords:
Profession Plumber Disciplinary matter Plumbing contractor's licence Licensee Person who holds licence Whether can determine disciplinary matter has occurred if person no longer holds licence
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA)
Interpretation Act 1984 (WA), s 18
Plumbers Licensing and Plumbing Standards Regulations 2000 (WA), reg 3, reg 3(1), reg 20, reg 21, reg 27, reg 28, reg 29, reg 29(1), reg 34, reg 34(1), reg 107(1), reg 113, Pt 4, Pt 9
Plumbers Licensing Act 1995 (WA), cl 8(h), Sch 3
State Administrative Tribunal Act 2004 (WA), s 13, s 47
Result:
Application dismissed
Summary of Tribunal's decision:
The application concerned an allegation by the Plumbers Licensing Board that a disciplinary matter had occurred. The allegation was that the respondent, at a time when he held a plumbing contractor's licence, failed to:
- 1) submit the required fee to the licencing board on 55 occasions;
2) submit the required certificate of compliance in relation to major plumbing work within the required time on 12 occasions;
3) submit the required notice of compliance for work that had been completed, or advise that the work had not been carried out, on 29 occasions; and
4) cooperate with the Plumbers Licensing Board when it sought rectification of the previously mentioned matters.
Category: B
Representation:
Counsel:
Applicant : Mr E Homan
Respondent : N/A
Solicitors:
Applicant : Department of Commerce
Respondent : N/A
Case(s) referred to in decision(s):
Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Introduction
1 By application lodged on 2 December 2013, the Plumbers Licensing Board (applicant) made an allegation to the Tribunal pursuant to reg 29 of the Plumbers Licensing and Plumbing Standards Regulations 2000 (WA) (Licensing Regulations) that a disciplinary matter had occurred. The person alleged to be involved in the disciplinary matter was Mr Daniel James Sutherland (respondent). The applicant sought a determination by the Tribunal that one or more of the following disciplinary matters existed, or had occurred, in relation to the respondent:
27. Disciplinary matters defined
For the purposes of this Part, each of the following is a disciplinary matter
- …
(b) the licensee or permit holder is no longer a fit and proper person to hold the licence or permit;
…
(e) the licensee or permit holder has contravened or failed to comply with
…
(v) a provision of Part 5, Part 6, Part 7 Division 2 or regulation 90,
and the nature of the contravention or failure to comply is such as to indicate that action against the licensee or permit holder under regulation 34(1) may be appropriate;
(f) the licensee or permit holder is guilty of fraudulent conduct in relation to the carrying out of plumbing work[.]
3 At the commencement of the hearing on 22 May 2014, the Tribunal raised with the applicant the question of whether the Tribunal could make the determinations sought by the applicant. The hearing was adjourned to allow the applicant an opportunity to submit written submissions in relation to that question. The hearing was resumed on 20 June 2014 and, after hearing from both parties on all relevant issues, the Tribunal reserved its decision. These are the Tribunal's reasons for decision in this matter.
Facts
4 The parties were in agreement in relation to almost all of the relevant facts of this matter, and those facts were supported by documents contained in the applicant's bundle of documents. The Tribunal finds that the respondent, while being the holder of a plumbing contractor's licence:
1) between 25 November 2008 and 15 February 2011, carried out major plumbing work on 55 occasions without submitting the required fee with the notice of intention to carry out that work (total unpaid fees of $5,069.25);
2) between 21 August 2008 and 9 October 2009, on 12 occasions submitted certificates of compliance in relation to major plumbing work completed more than five days after completion of the work (where notice required to be submitted within five days after completion of the work); and
3) between 11 August 2008 and 28 March 2011, on 29 occasions, having submitted a notice of intention to carry out major plumbing work, failed to either submit a notice of compliance for that work once completed, or alternatively, failed to withdraw the notice of intention if the work was not carried out.
5 The applicant alleged that from March 2010, the respondent failed to remedy his noncompliance despite numerous letters and other approaches to him by the applicant. It was submitted by the applicant that the respondent failed to cooperate with the applicant in its attempts to obtain compliance with the Licensing Regulations.
6 Although the respondent disputed some of the detail of what the applicant said occurred between March 2010 and February 2011, there was no dispute, and the Tribunal finds that the respondent did not respond to most of the correspondence from the applicant in that time period. The respondent admitted he ignored the numerous letters from the applicant and said that he thought they were simply computer generated letters.
7 The Tribunal finds that the respondent did not actively cooperate with the applicant to attempt to resolve the issues identified by the applicant. In addition, the respondent has not paid to the applicant the outstanding fees so as to remedy his noncompliance with the Licensing Regulations as specified in point 1 above. However, the respondent did provide the 29 outstanding certificates of compliance to the applicant in February 2014 after these proceedings were commenced.
8 The respondent said that he stopped acting as a plumbing contractor when he realised that, because of serious personal issues he was facing at the time, he was not in a position to uphold the professionalism to act as a plumbing contractor. He said that he stopped using his plumbing contractor's licence because he realised that he was not complying with some of the requirements of the Licencing Regulations and he did not want to continue not meeting those requirements. The Tribunal accepts this evidence of the respondent and finds that the respondent, on his own initiative, ceased working under his plumbing contractor's licence in late 2011 (Exhibit 1, pages 8, 81 126).
Is it open to the Tribunal to make the determinations sought by the applicant?
9 At the commencement of the hearing of this matter in May 2014, it became apparent that the respondent's plumbing contractor's licence (licence) had expired. According to the records of the applicant (Exhibit 1, page 2, and confirmed in the 'Applicant's Outline of Submissions as to the Tribunal's Jurisdiction'), the respondent's licence was most recently issued on 8 February 2011. Pursuant to reg 21 of the Licensing Regulations, the licence remained in force until the end of three years, beginning on the day on which it was issued. The respondent's licence therefore expired on 8 February 2014. Under reg 20 of the Licencing Regulations, if the renewal fee for a licence and any photographs required by the applicant are received by the applicant on or before 28 days after the day on which the licence would otherwise have expired, the applicant is required to renew the licence. Both the applicant and the respondent agreed that the respondent did not apply for renewal of his licence, or submit the required fee to the applicant, within the required 28 days. It was also not in dispute that the respondent had not applied for re-issue of his licence or applied for any other licence under the Licencing Regulations.
10 As a consequence, after 8 March 2014 the respondent did not hold any licence under the Licencing Regulations. As part of its administrative processes, not having received any application to renew the respondent's licence, the applicant formally cancelled the respondent's licence on 11 April 2014.
11 The jurisdiction to deal with disciplinary matters in respect of a person who is a licensee or permit holder under the Licencing Regulations arises from Pt 4 of the Licencing Regulations when read together with s 13 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Relevantly, reg 28, reg 29 and reg 34 of the Licencing Regulations provide:
28. Complaint to Board about disciplinary matter, who may make
Any person may make a written complaint to the Board that a disciplinary matter exists or has occurred in respect of a licensee or permit holder.
29. Complaints, Board’s powers in respect of
(1) If the Board
(a) receives a complaint under regulation 28; or
(b) is of the opinion that it is appropriate to make an allegation about the complaint to the State Administrative Tribunal,
the Board may decide to make an allegation about the complaint to the State Administrative Tribunal.
(2) Before making a decision under subregulation (1) the Board may undertake such investigation as it considers appropriate.
…
34. SAT’s powers on allegation of disciplinary matter
(1) If, in a proceeding commenced by an allegation under regulation 29, the State Administrative Tribunal determines that a disciplinary matter exists or has occurred in respect of a licensee or permit holder, the State Administrative Tribunal may do any one or more of the following
(a) decline to take any action under this subregulation;
(b) reprimand the licensee or permit holder;
(c) order the licensee or permit holder to undertake further training as specified by the State Administrative Tribunal on the advice of the Board;
(d) change or remove a condition of the licence or permit or add a new condition to the licence or permit;
(e) order the licensee or permit holder to pay a penalty not exceeding $5 000;
(f) suspend the licence or permit for such period as the State Administrative Tribunal thinks fit;
(g) cancel the licence or permit.
(2) If the State Administrative Tribunal decides to take action under subregulation (1), the State Administrative Tribunal is to give written notice of the decision to the licensee or permit holder setting out
(a) the grounds on which the decision was based; and
(b) the reasons for the decision.
(3) The notice under subregulation (2) is to be given not later than 14 days after the decision is made.
(4) If a licence or permit is cancelled or suspended, the licensee or permit holder must surrender to the Board his or her licence or permit and identification card.
Penalty applicable to subregulation (4): $2 000.
13 'Licence' is defined to mean 'plumber's licence, tradesperson's licence or tradesperson's licence (drainage plumbing)'. Whilst the term 'plumber's licence' is not itself defined, the only classes of licence that may be issued under the Licencing Regulations are a plumbing contractor's licence; a tradesperson's licence and a tradesperson's licence (drainage plumbing) (reg 11).
14 It is apparent from the transitional provisions in Pt 9 of the Licencing Regulations that prior to the commencement of the Licencing Regulations there existed classes of licence described as water supply plumber's licences, drainage plumber's licences and sanitary plumber's licences. Pursuant to reg 113 of the Licencing Regulations, those licences are to be regarded as plumbing contractor's licences after the commencement of the Licencing Regulations. From this context, it is clear that the reference to a 'plumber's licence' in the definition of the term 'licence' must include a plumbing contractor's licence.
15 At the time that the alleged disciplinary matters occurred, and at the time that the applicant lodged this application, the respondent did hold a plumbing contractor's licence and therefore was a licensee within the meaning of the Licencing Regulations. Assuming that one or both of the preconditions specified in reg 29(1) of the Licencing Regulations had been met (and there was no suggestion in these proceedings that they had not), it was open to the applicant to lodge the application with the Tribunal. There can be no question that, pursuant to s 13 of the SAT Act, the Tribunal therefore has jurisdiction to deal with the application. However, there remains an issue as to what determination the Tribunal can make on the application, in circumstances where at the hearing of the application and at the time of the Tribunal making its determination, the respondent was no longer the holder of a licence under the Licencing Regulations.
Applicant's submissions
16 The applicant submits that reg 34 of the Licencing Regulations should be interpreted to mean that the Tribunal may determine that a disciplinary matter has occurred in respect of a licensee, if the person held the relevant licence at the time that the alleged disciplinary matter occurred. The applicant concedes that the Tribunal could not make a determination that a disciplinary matter exists in respect of a licensee if the person the subject of the allegation is not the holder of a licence at the time of the Tribunal's determination. However, the applicant asserts that the Tribunal can determine that a disciplinary matter has occurred because that determination is looking backwards and, as such, it can be made in respect to a person who, at the time that it is alleged the disciplinary matter occurred, was a licensee. When reg 34 is read this way, the applicant submits, it is irrelevant whether the person is a licensee at the time of the Tribunal's determination.
17 In support of its submission, the applicant relies upon analogy with criminal offences in the Licencing Regulations applicable to the holders of a licence under those regulations. Those offences can be prosecuted so long as the person prosecuted was the holder of a licence at the time of the offence, even if at the time of determination the accused no longer holds any licence. The applicant submits that the power to discipline a licence holder is analogous to prosecution and therefore reg 34 of the Licencing Regulations should be interpreted similarly.
18 The Tribunal does not accept that this is an apt analogy. The relevant legislation applicable to each circumstance (prosecution and disciplinary proceedings) is not relevantly similar. It is correct that both the relevant offence creating provisions and the statutory specification of what constitutes a disciplinary matter in the Licencing Regulations are expressed in the present tense. The relevant facts that must be determined in order to see if either the alleged offence or the alleged disciplinary matter is made out are the facts that were in existence as at the time of the alleged offence or the alleged disciplinary matter. However, the statutory provisions that provide the power for the court (in the case of an alleged offence) or the Tribunal (in the case of an alleged disciplinary matter) to make the relevant determination that an alleged offence or an alleged disciplinary matter has occurred, and to take action consequentially upon any such determination, are expressed in entirely different terms. The relevant statutory provisions applicable to prosecution of an alleged offence under the Licencing Regulations are to be found in the Criminal Procedure Act 2004 (WA) and the Sentencing Act 1995 (WA). Importantly, those provisions are expressed to relate to an 'accused' person and an 'offender' respectively. They do not require the person to be prosecuted to be a licensee or a permit holder. As stated above, the power of the Tribunal in a disciplinary matter arises from reg 34 of the Licencing Regulations, which is expressed in the terms cited above, and is connected to the person to be disciplined being a licensee or permit holder.
19 In further support of its submission, the applicant says that, having regard to the long title of the Plumbers Licensing Act 1995 (WA) (PL Act) and to the regulation making power in cl 8(h) of Sch 3 of the PL Act, and having regard to s 18 of the Interpretation Act 1984 (WA) (Interpretation Act):
Parliament intended in both the criminal and disciplinary contexts, to hold current and former licensees accountable for offences or breaches of their obligations under the [PL Act or the Licencing Regulations].
20 The applicant submits that Parliament cannot have intended an interpretation of the term 'licensee', especially in the context of disciplinary proceedings, that would allow a person to avoid the consequences of their conduct.
21 Finally, the applicant submitted that the adoption of a 'literal construction' of the term 'licensee' as used in reg 34 of the Licencing Regulations would:
1) undermine the authority of the applicant;
2) allow a licensee to 'tactically' relinquish his/her licence during the course of disciplinary proceedings to his or her own advantage; and
3) result in a tacit acceptance of the licensee's conduct with no public deterrence achieved to warn others of the required standards.
22 To avoid these things, the applicant submitted that, if necessary, the Tribunal should imply words into the Licencing Regulations to ensure that where a disciplinary matter had occurred in respect of a person who had at the time been a licensee, the Tribunal has power to determine that the disciplinary matter occurred and to impose an appropriate disciplinary sanction whether or not the person is, at the time of the Tribunal making those determinations, still a licensee.
23 The Tribunal is not persuaded by these submissions.
24 It is correct to say that s 18 of the Interpretation Act provides that when interpreting statutory provisions a construction that would promote the purpose or object underlying the provision must be preferred to an interpretation that would not. However, in this case, the long title to the PL Act does not provide any assistance in determining the purpose of the provisions here under consideration. Further, the regulation making power provided by cl 8(h) of Sch 3 of the PL Act does not assist.
25 Clause 8(h) of Sch 3 of the PL Act allows the making of regulations concerning complaints against a person who 'is or was the holder of a licence'. Clauses 8(i), (j) and (k) of Sch 3 go on to provide for regulation making power in relation to 'disciplinary matters' without specifically identifying whether the power extends to regulations affecting a person who was (rather than is) the holder of a licence. So long as the relevant regulations are within the regulationmaking powers provided by the PL Act, whatever the extent of the power in relation to making regulations about complaints and disciplinary matters, it is the actual regulations that have been made that must be looked to in order to ascertain what the Tribunal has power to do.
26 Further, there are a number of difficulties with the applicant's argument that Parliament cannot have intended for the power to impose discipline under reg 34 of the Licencing Regulations to be limited to people who, at the time that the power is to be exercised, are the holder of a licence or permit.
27 There are a number of Western Australian statutes dealing with the discipline of professions that contain provisions that expressly extend the power to discipline to people who no longer hold the relevant authorisation allowing them to carry out that provision: see, for example, s 138 of the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
28 The Tribunal does not accept that an interpretation of reg 34 of the Licencing Regulations applying the definition of 'licensee' in reg 3 would cause the negative consequences the applicant claims. While disciplinary proceedings may have a deterrence effect, that is not their primary objective. General and specific deterrence are better achieved through enforcement of regulatory requirements by prosecution of breaches of those requirements. It is also difficult to see how it would be considered a positive tactical move to relinquish a licence in order to avoid disciplinary proceedings in which the worst potential outcome is that the licence could be cancelled. It may be that a licence holder accepted that the likely consequence of the disciplinary proceedings he or she faced would be cancellation of the licence. In that circumstance it may be that avoiding the time, expense, et cetera of a hearing is considered desirable. However, in such a circumstance the applicant's primary concern in commencing disciplinary proceedings, the protection of the public, has been achieved because the person can no longer carry on the work for which he or she had been licensed.
Conclusion
29 The power given to the Tribunal by reg 34 of the Licencing Regulations is to, firstly, determine whether a disciplinary matter exists or has occurred 'in respect of a licensee or permit holder' and, if so, to decide whether to exercise any of the options specified in clauses 34(1)(a) to (g) of the Licencing Regulations. All of those options, other than the one in cl 34(1)(a), are actions that can be taken in relation to 'the licensee or permit holder' or 'the licence or permit'.
30 The definition of the term 'licensee' in reg 3(1) of the Licensing Regulations, as quoted above, is grammatically worded in the present tense with respect to a person who 'holds' a licence. In contrast, in reg 107(1) of the Licencing Regulations, which is an evidentiary provision relating to offence proceedings, there is reference to a licence or permit that 'is or was, or is not or was not, held by a person'. That provision, in contrast to the definition of 'licensee', expressly includes the present and past tense of holding a licence or permit.
31 The applicant's power to make an allegation to the Tribunal that a disciplinary matter exists or has occurred is founded in part on a person having made a complaint to the Board that a disciplinary matter exists or has occurred in respect of a licensee or permit holder: see reg 28 and 29 of the Licensing Regulations. There is no other category of person about whom complaints may be made, and consequently about whom allegations may be made to the Tribunal. Any subsequent determination that a disciplinary matter exists, and that one or more of the consequences specified in reg 34 should be imposed, necessarily relates to a person that was, at the time of the conduct complained of, a licensee or permit holder. In that context, to specify that the determination can be made in respect of a licensee or permit holder is entirely redundant unless it is intended to impose a further condition, namely, that at the time of the determination, the person is still a licensee or permit holder.
32 As was stated by the Court of Appeal in Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, at [25]:
The character and purpose of disciplinary proceedings against a member of a profession have been examined on numerous occasions. The object of those proceedings is the protection of the public and the maintenance of proper professional standards. … Disciplinary proceedings are not designed to punish the person who is disciplined. …
33 The Tribunal is satisfied that the object of the disciplinary proceeding provisions in the Licencing Regulations is the protection of the public and the maintenance of proper professional standards. The Tribunal finds that this purpose is no less promoted by interpreting the term 'licensee' as defined by the Licencing Regulations in accordance with its express terms than by interpreting it to mean, effectively, a person who is, or was, the holder of a licence. This is not a case in which the incorporation of additional words into the definition of 'licensee' could be considered a legitimate interpretation technique.
34 Having regard to the words used and to the context in which they are used, as well as to the object of the disciplinary provisions, the Tribunal is satisfied that the definition of licensee in reg 3 is applicable to reg 34 of the Licencing Regulations. There is no contrary intention expressed so as to exclude that definition.
35 The Tribunal further finds that a person is only a licensee within the meaning of reg 34 of the Licensing Regulations if he or she is, at the relevant time, the holder of a licence. The relevant time for the purposes of determining what the Tribunal has power to do under reg 34 of the Licencing Regulations is the time that the Tribunal determines whether a disciplinary matter exists and whether any of the consequences specified there should be imposed.
36 Since the respondent was not a licensee at the time of the hearing, the Tribunal does not have jurisdiction. Accordingly, the application is dismissed.
Orders
1. The application is dismissed pursuant to s 47 of the State Administration Tribunal Act 2004 (WA) on the basis that the application is lacking in substance.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT
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