Reppucci v The Commissioner for Consumer Affairs No. Dcaat-02-364

[2002] SADC 154

REPPUCCI  v  THE COMMISSIONER FOR CONSUMER AFFAIRS

[2002] SADC 154

Judge Rice
Civil (Administrative and Disciplinary Division)

Introduction

1. This is an appeal by Mr Reppucci against a decision of the Commissioner for Consumer Affairs whereby he was refused a building work contractors licence on the basis that he is not a fit and proper person to be the holder of such a licence.

2. A point of law has arisen for decision before embarking upon the substantial merits of the appeal.  It is convenient to deal with that point at this stage because, if it is successful, the original decision was invalid and the appeal must succeed without further argument.

   Background

3. A little needs to be said by way of background to provide the setting for the point of law that needs to be decided.

4. Mr Reppucci applied to the Commissioner for Consumer Affairs for the grant of a building work contractors licence.  If granted, the licence would be limited to cabinet-making.  By letter dated 17th June, 2002, Mr Reppucci was notified of the decision refusing to grant the licence because Mr Reppucci did not meet all the requirements.  The letter and accompanying document, “Reasons for Decision”, were not signed by the Commissioner for Consumer Affairs.  Both documents were signed by Mr Tony Mangion, Manager, Business and Occupational Service, of the Office of Consumer and Business Affairs.  It is common ground that not only did Mr Mangion sign the letter but he also made the decision to which the documents relate, purportedly on behalf of the Commissioner for Consumer Affairs.  The Commissioner for Consumer Affairs had no personal involvement in this decision.

5. The application for the licence was made to the Commissioner for Consumer Affairs pursuant to s.8 of the Building Work Contractors Act 1995 (“the Act”). Pursuant to s.9 of the Act, Mr Reppucci was entitled to a licence provided certain criteria were met. By s.43, the Commissioner may delegate any of the Commissioner’s functions or powers under the Act to certain persons or office holders referred to in the section.

6. The Commissioner for Consumer Affairs administers a large number of Acts of the South Australian Parliament, including the Act and the Fair Trading Act 1987. Pursuant to s.10(1) of the Fair Trading Act, the Commissioner may delegate to certain persons the Commissioner’s powers under the Fair Trading Act “....or a related Act.”  By virtue of the definition of “related Act” in the Fair Trading Act, the power to delegate under that Act extends to the Building Work Contractors Act.

7. There was tendered before me an instrument of delegation signed by Mr W.J. Spehr, the previous Commissioner for Consumer Affairs, and dated 21st June, 1999. By that document, the Commissioner, pursuant to s.10(1) of the Fair Trading Act, delegated certain of his powers to persons or holders of offices in the Office of Consumer and Business Affairs.  The delegation includes a delegation of powers of the Commissioner pursuant to the Building Work Contractors Act.  It is conceded, quite rightly in my view, that the delegation pursuant to the Fair Trading Act is legally sufficient to delegate powers of the Commissioner pursuant to the Building Work Contractors Act because it is a “related Act”.

8. The schedule to the delegation lists the sections of the Act and the various positions or offices to which the delegation is made. Apart from a reference to the section of the Act, the schedule includes a description of the function or functions being delegated. The relevant part of the delegation reads as follows:-

SECTION	DESCRIPTION	DELEGATE
Section 9(1)     9(1)(a)     9(1)(a)(ii)     9(3)     9(3)(a)     9(3)(b)	A natural person is entitled to be granted a licence if the person - has - subject to the regulations, qualifications and experience that the Commissioner considers appropriate having regard to the kind of work authorised by the licence. If, on an application for a licence, the Commissioner - is not satisfied the applicant meets require- ments as to qualifications, business knowledge, experience or financial resources; but is satisfied that the applicant proposes to carry on business as a building work contractor in partnership with a person who does meet those requirements, the Commissioner may, subject to the other provisions of this section, grant a licence to the applicant subject to the condition that the applicant not carry on business under the licence except in partnership with that person or some other person approved by the Commissioner.	Deputy Commissioner, Manager, Business and Occupational Services Branch, Senior Assess- ment Officer, Licence Assessors.

1. As can be seen, the delegation is designed to delegate any of the powers or functions of the Commissioner where the section expressly requires the Commissioner to require something or to be satisfied or not satisfied about a particular matter. The other sub-paragraphs of s.9(1) and sub-section (2) are either positive or negative factual matters that do not require the Commissioner’s input. Without reproducing other portions of the delegation, it is clear that such an approach has been taken to other aspects of it. (Although it is not directly pertinent to this appeal, the delegation also purports to provide a delegation for the purposes of appeal pursuant to sub-section (1); no question of a delegation arises pursuant to that sub-section because it is directed towards the grant of a right of appeal at a time after the Commissioner, or someone on his behalf, has made the relevant decision.)

   Question of law - discussion

2. The point taken on behalf of Mr Reppucci is that the delegation fails to make any express reference to sub-section (f) of s.9(1), being the sub-paragraph (“fit and proper person to be the holder of a licence”) that he allegedly failed to meet. It followed, so the argument proceeded, that because there was no express (or implied) delegation of the ability to refuse to grant a licence on that ground given to any other person, any refusal on that ground had to be made by the Commissioner personally. Further, as the decision based on that ground was made by someone other than the Commissioner, the decision was invalid and of no effect.

3. The delegation fails to expressly mention s.9(1)(f) because that sub-paragraph does not impose any function upon the Commissioner. However, having said that, the legislation does impose upon the Commissioner the obligation of granting or refusing a licence. That is the relevant decision for the purposes of this case.

4. It is clear from a consideration of the delegation, when compared with the legislation, that the intention of the Commissioner was to delegate all of his functions and powers contained within s.9. In my view, the delegation achieves that intention. Further, the decision made in this case was a decision by the person who held the position or office of Manager, Business and Occupational Services, being one of the offices to which a lawful delegation was given. Therefore, in my view, the relevant decision was made by the holder of an office pursuant to a lawful delegation. In my view, the decision was valid and effective.

5. Being of that view, there is no need to say anything further, but it may be of assistance if I express my views about the legal consequences of the delegation being found to be invalid.

6. In the absence of a valid delegation, the question still arises as to whether the decision was, nonetheless, validly made on behalf of the Commissioner.  As observed earlier, the relevant decision here is to grant (possibly with limitations or conditions) or refuse to grant a licence.  The legislation imposes that function on the Commissioner, but does he have to make the decision personally?  Also as observed earlier, the decision here was made by Mr Mangion “for Commissioner for Consumer Affairs”.  The decision made by Mr Mangion that Mr Reppucci was not “....a fit and proper person to be the holder of a licence” must have involved the making of a judgment and was, to some extent, discretionary within the making of that judgment.

7. I was referred to a number of authorities on this aspect of the matter, but most are considered in O’Reilly and Others v The Commissioners of the State Bank of Victoria and Others [1982-1983] 153 CLR 1. That case involved the issue by the Commissioner of Taxation of notices pursuant to s.264 of the Income Tax Assessment Act 1936 (Cth) whereby those upon whom the notices were served were required to furnish information and attend to give evidence concerning a person’s income.  The Commissioner of Taxation had delegated his power to give such notices to Deputy Commissioners.  The notices involved in that case bore a facsimile of the signature of a Deputy Commissioner which was stamped on them by the Chief Investigation Officer in the Taxation Department.  The Deputy Commissioner had no personal knowledge that the officer intended to issue the notices.  The Chief Investigation Officer was authorised to issue notices other than notices requiring the giving of information or evidence on oath.  Notices were authorised to have an imprint facsimile of the Deputy Commissioner’s signature.  As Gibbs CJ, with whom Murphy J agreed and with whom Wilson J agreed in a separate judgment, said (at p.11):-

   “The answer to the question whether the statute requires the power to be exercised personally by the person designated depends on the nature of the power and all the other circumstances of the case: cf. Re Reference under Ombudsman Act, s.11 (1979) 2 ALD 86, at p.93, per Brennan J. However, I should mention the line of authorities which commenced with Carltona Ltd. v. Commissioners of Works [1943] 2 All ER 560 and which are discussed in In re Golden Chemical Products Ltd. [1976] Ch.300. Those authorities established that when a Minister is entrusted with administrative functions he may, in general, act through a duly authorized officer of his department. This result depended in part on the special position of constitutional responsibility which Ministers occupy, and in that respect these authorities are distinguishable from cases such as the present. However, they also rest on the recognition that the functions of a Minister are so multifarious that the business of government could not be carried on if he were required to exercise all his powers personally. Ministers are not alone in that position. This has been judicially recognized. In Commissioners of Customs and Excise v. Cure & Deeley Ltd. [1962] 1 QB 340, at p.371, it was said that the Commissioners in that case were in a position parallel to that of Ministers, and in Ex parte Forster; Re University of Sydney [1963] SR NSW 723, at p.733, the Senate of a University was regarded as being in a similar situation. I can see no reason why, in construing sections of the Act which confer powers on the Commissioner, it should not be proper to consider the undoubted fact that the Commissioner could not possibly exercise all those powers personally.

   Section 264 confers on the Commissioner a power whose exercise will be likely adversely to affect rights of individuals. This is a reason for inclining in favour of the view that it must be exercised personally. On the other hand, that section, and a number of other sections of the Act, confer on the Commissioner powers which may be expected to be exercised in myriads of cases.”

   (See also the discussion by Wilson J at 30-31 whereby he draws a clear distinction between the delegation of a power and the exercise of that power through servants or agents.)

8. As that case makes plain, much depends on the nature of the power and all the circumstances.  Further, where the functions of the Commissioner would become unworkable if he or she was required to make the decision personally, that militates in favour of those functions being performed through proper officers.

9. There was also tendered before me an affidavit of the Commissioner for Consumer Affairs, Mr Bodycoat.  He deposed to the fact that he is administratively responsible for a large number of Acts of the South Australian Parliament.  Some of those Acts require applicants for licences to be assessed for an entitlement to hold a licence pursuant to various criteria.  In the twelve months to 31st October, 2002, the Office of Consumer and Business Affairs received 4,073 licence applications each of which was required to be assessed for fitness and propriety.  Licence applications for those Act are processed by the Business and Occupational Services Branch of the Office of Consumer and Business Affairs.  As mentioned, Mr Mangion was the Manager, Business and Occupational Services Branch.

10. The organisational structure of the Office of Consumer and Business Affairs shows that the Manager, Business and Occupational Services, is directly responsible to the Commissioner for Consumer Affairs.  The Job and Person Specifications for Manager, Business and Occupational Services, demonstrates that that person’s duties are to “Ensure that the Commissioner for Consumer Affairs’ statutory responsibilities in relation to Occupational Licensing are properly administered.”  It is clear that the Commissioner has direct administrative control over the Manager, Business and Occupational Services.  That Manager is directly responsible to the Commissioner.  Further, it is clear that Parliament cannot have intended that the Commissioner make all decisions personally within the functions and powers imposed upon the Commissioner.  Those decisions may be made by senior and responsible officers within the Office of Consumer and Business Affairs.  The Manager, Business and Occupational Services is viewed by the Commissioner as such a person as is amply illustrated by the delegation referred to earlier.

11. In my view, upon a proper construction of the Act, and s.9 in particular, the decision to grant or refuse a licence does not have to be made by the Commissioner personally. It may be made by a senior responsible officer under the direct control of the Commissioner. The Manager, Business and Occupational Services is such a person. The decision in this case was a decision properly made by him. In so deciding, I make no comment on the correctness or otherwise of that decision.

12. The preliminary point is rejected.