Angus v Plumbers, Gasfitters and Drainlayers Board
[2020] NZHC 835
•29 April 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-592
[2020] NZHC 835
IN THE MATTER OF an appeal under section 169(1) of the
Plumbers, Gasfitters, and Drainlayers Act 2006
BETWEEN
KEVIN ANGUS
Appellant
AND
PLUMBERS, GASFITTERS AND DRAINLAYERS BOARD
Respondent
Hearing: 16 March 2020 Appearances:
C J Griggs for Appellant M J Hodge for Respondent
Judgment:
29 April 2020
JUDGMENT OF CLARK J
[1] Kevin Angus is an experienced and self-employed tradesman who operates as a drainlayer, plumber and gasfitter. Mr Angus is registered and licensed as a certifying drainlayer and he has attained the level of tradesman plumber and tradesman gasfitter. Mr Angus objects to the fact that despite all his experience as a tradesman plumber his work must be signed off by a certifying plumber. Since 2012 Mr Angus has been trying to persuade the Plumbers, Gasfitters, and Drainlayers Board to register him as a certifying plumber.
[2] On 19 September 2018 the Board declined Mr Angus’ application to be registered as a certifying plumber because he had not met the minimum standards for registration. Mr Angus appealed that decision to the District Court. On 9 October
ANGUS v PLUMBERS, GASFITTERS AND DRAINLAYERS BOARD [2020] NZHC 835 [29 April 2020]
2019 Judge Tompkins dismissed Mr Angus’ appeal.1 Judge Tompkins concluded the Board’s decision was not appealable under the operative appeal provision in the Plumbers, Gasfitters, and Drainlayers Act 2006 (the Act) and therefore he had no jurisdiction to hear the appeal.
[3] Mr Angus appeals Judge Tompkins’ decision. The primary issued raised by the appeal concerns the jurisdictional point upon which the Judge dismissed Mr Angus’ appeal. A further issue concerns the nature of the powers of the High Court on an appeal under s 162 of the Act.
Background facts
[4] The narrative begins in June 2012 when Mr Angus failed the relevant certifying plumber examination (the 9195 exam).2 Where it was necessary to earn 60 or more marks out of 100, Mr Angus earned 57 marks.3
[5] Mr Angus applied for reconsideration of his 9195 exam score. By letter dated 3 September 2012, Mr Angus was advised that as a result of the reconsideration his mark had increased from 57 to 58. However, 58 was still a fail mark and Mr Angus remained ineligible to apply to register as a certifying plumber.
[6] On 21 September 2012 the Board received a complaint from Mr Angus about the marking of his 9195 exam. Mr Angus believed a number of his answers to questions in the examination had been correct although they were marked as incorrect. He asked the Board to reconsider these questions and answers. Mr Angus provided a number of documents in support of his view that the answers he had given in particular instances were correct.
[7] Mr Angus’ letter was dealt with as a general complaint and handled in accordance with the Board’s “General Complaints Resolution Policy”. In the
1 Angus v Plumbers, Gasfitters and Drainlayers Board [2019] NZDC 18934 [District Court decision].
2 The certifying plumber examination, prescribed in the relevant notice issued under ss 28 and 30 of the Plumbers, Gasfitters, and Drainlayers Act 2006, is termed “Examination 9195”.
3 Mr Angus also failed the certifying gasfitter examination, but his legal proceedings concern only the certifying plumber examination.
following weeks, in addition to the five questions Mr Angus initially challenged in his letter of complaint, Mr Angus identified further questions which he considered he had answered correctly. The Board reconsidered 13 questions and answers from the June 2012 9195 exam as part of Mr Angus’ general complaint.
[8] Mr Angus’ questions and answers, and the materials he had provided, were considered by a panel comprising:
(a)the Board’s Deputy Registrar (an experienced certifying plumber, certifying gasfitter and certifying drainlayer);
(b)the Board’s senior solicitor;
(c)the Board’s Manager of Examinations and Continuing Professional Development; and
(d)the independent practitioner who set the Board’s plumbing examinations.
[9] As a result of this reconsideration process Mr Angus was awarded an additional mark. Unfortunately, while Mr Angus’ score had increased to 59 the mark was still below the required pass mark of 60. The Registrar’s letter to Mr Angus dated 29 October 2012 was accompanied by an analysis of the questions Mr Angus had identified as being incorrectly marked along with the Registrar’s response. Mr Angus had enrolled to sit the 9195 exam the following month (November 2012) and the Registrar encouraged him to do so.
[10] Mr Angus provided yet further material to the Board raising specific queries about the marking of his answers to three questions in the exam. By letter dated 6 November 2012, the Registrar provided Mr Angus with a detailed explanation as to why Mr Angus’ answers were incorrect. In relation to Mr Angus’ assertion that the wording of some questions was unclear, the Registrar explained that it was a necessary part of testing the judgment required of tradespeople at the certifying level, that they demonstrate an ability to analyse such questions and identify the correct answer by
eliminating the incorrect answers. The Registrar advised Mr Angus that the Board now regarded his complaint as closed. While the Board would not enter into further correspondence about his complaint Mr Angus’ rights of appeal were unaffected by that decision.
[11] In November 2012, Mr Angus sat the 9195 exam once more. Mr Angus was given the same special assessment conditions as for his previous 9195 and 9196 exams: separate accommodation, extra time and the assistance of a reader and writer.4 Mr Angus earned 48 marks. He did not apply to have his paper remarked or reconsidered. Nor did he raise any concerns about the marking of this script.
[12] Through November and December 2012 Mr Angus and the Board continued to correspond in relation to Mr Angus’ pursuit of the points he had raised previously. The Board maintained the position it had advised in the Registrar’s letter of 6 November 2012 namely, that the matter was closed.
[13] In April 2013 Mr Angus applied for an exemption from compliance with the minimum standards for registration as a certifying plumber and certifying gasfitter. Under s 52 of the Plumbers, Gasfitters, and Drainlayers Act 2006 the Board may exempt a person from compliance with the minimum standards for registration and any terms and conditions imposed by published notices with which a person must comply. The Board may grant an exemption subject to any terms and conditions it thinks fit. The Board has a “Section 52 exemptions policy”, which guides the Board’s consideration of applications for exemption from minimum requirements for drainlayers, gasfitters and plumbers.
[14] Mr Angus’ application for exemption was considered by the Board at its meeting on 25 June 2013. A preliminary decision was made to decline the application. Mr Angus was advised by letter dated 1 July 2013 of the Board’s preliminary decision and the reasons for it. Mr Angus was advised the Board intended to finalise its decision at its next Board meeting and invited his comments on its preliminary
4 These special conditions were granted to Mr Angus on the basis of his doctor’s advice that Mr Angus’ reading was slow and incomplete and if he were not given extra time the Board would “not get a fair and accurate idea of his abilities”.
decision. In particular, Mr Angus was invited to raise any other relevant matter he wished to address and to identify any misunderstanding he believed the Board had of the material he had placed before it.
[15] Notwithstanding Mr Angus’ further submissions and the written testimonials he provided in support of his position, in August 2013 the Board declined his application for exemption from the registration requirements.
[16] In March 2016, Mr Angus instructed Mr Steve Taylor, a barrister and mediator who enquired of the Board whether it would be prepared to undertake mediation to resolve Mr Angus’ dispute with the Board. In correspondence with the Board throughout 2016, Mr Angus continued to assert, via Mr Taylor, that he should have been given a pass mark and that the re-marking should have been, but was not, completed independently of the Board.
[17] By December 2016, Mr Angus had engaged the assistance of one Mr Nic Lourens who offered the opinion that that one of the questions was badly worded. Mr Lourens’ website, which Mr Taylor provided in support, described Mr Lourens’ progression from metallurgy to business administration including membership of technical standards committees with Standards New Zealand in which capacity Mr Lourens stated he assisted with the writing of standards for the plumbing and related industries.
[18] In 2017, Mr Angus instructed Stephens Lawyers. Mr Stephens submitted to the Board that on the on basis of Mr Lourens’ opinion, Mr Angus was entitled to a pass grade for the certifying plumbers examination.
[19]Mr Stephens letter received by the Board on 3 April 2017, concluded:
If you wish to avoid the necessity for Court proceedings, we require that you award Mr Angus a passing grade in the 9195 examination for Certifying Plumber, based on awarding one of more additional marks as indicated above.
…
If Mr Griggs has not received notice of your agreement by the time indicated, he has instructions to commence proceedings.
[20]The Board replied on 10 April 2017 to the following effect:
(a)It did not accept Mr Angus was entitled to any additional marks on his June 2012 9195 exam;
(b)In relation to the Official Information Act’s requirements for reasons, these had been provided in the Board’s letter to Mr Taylor dated 31 January 2017;
(c)Mr Lourens had put forward nothing to change the Board’s assessment of Mr Angus’ answers to questions, which had been the subject of protracted correspondence since 2012.
[21] Mr Angus then attempted to litigate his 9195 exam mark by way of an appeal to the District Court. Judge Harrop dismissed the appeal on the basis the Court had no jurisdiction to hear it because the decision he sought to appeal was not appealable under the Act.5
[22] Judge Harrop’s decision was appealed to the High Court. In a decision issued on 31 August 2018, Peters J held Judge Harrop was correct in determining that the decision Mr Angus sought to appeal fell outside the scope of the operative appeal provision, and that the District Court lacked jurisdiction to determine the matter.6
[23] In a subsequent costs decision Mr Angus was ordered to pay costs and disbursements to the Board.7 Peters J was not satisfied Mr Angus’ appeal concerned a matter of genuine public interest or had general importance beyond his personal interests.8
[24] In September 2018 Mr Angus submitted an application for registration as a certifying plumber. Along with the materials and fee submitted with his application, Mr Angus included his question and answer booklet from the June 2012 9195 exam.
5 Angus v Plumbers, Gasfitters, and Drainlayers Board [2017] NZDC 24136 [Judge Harrop’s decision].
6 Angus v Plumbers, Gasfitters, and Drainlayers Board [2018] NZHC 2299 at [31].
7 Angus v Plumbers, Gasfitters, and Drainlayers Board [2018] NZHC 3021.
8 At [19].
By letter dated 19 September 2018, Mr Angus was advised his application had been declined because he had not met the minimum standards for registration as a certifying plumber set out in the Plumbers, Gasfitters, and Drainlayers Board (Plumbing Registration and Licensing) Notice 2016. In particular, he had not presented proof of a pass mark in exam 9195. Mr Angus was asked to resubmit his application when he had proof of a pass mark in exam 9195.
[25] Mr Angus appealed the decline of his registration to the District Court. As stated at the outset, Judge Tompkins dismissed the appeal for want of jurisdiction.9
Decision under appeal
[26] Mr Angus advanced several grounds of appeal in the District Court including that the Board had failed to observe the rules of natural justice, had erred in its decision not to award him a pass mark in the 9195 exam and had acted unreasonably in reaching that decision.
[27] Judge Tompkins considered the first issue for his determination was whether or not the District Court had jurisdiction to hear Mr Angus’ appeal. Having considered the relevant statutory provisions Judge Tompkins held:
[20] Crucially and fatally for Mr Angus’ appeal, it is clear that the Board’s decision is not an appealable decision within s 162(1). This is because the reason for declining Mr Angus’ application was that he did not meet the applicable minimum standards for registration under s 36(b), namely passing the 9195 exam as prescribed by s 31(c). There was (and in fact could not be, as he had failed the examination when he sat it) no proof provided with the application to that effect, is required by s 37(1)(c) …
[28] Judge Tompkins observed that Mr Angus’ failure to pass the 9195 exam was a matter lying exclusively within the domain of the Board:
[24] …There is no appeal to the District Court for matters relating to minimum standards. This conclusion reflects the view, expressed by Peters J, that Parliament intended to restrict what decisions of the Board are appealable to the District Court.
9 District Court decision, above n 1.
[29] The reference to Peters J was a reference to the High Court decision dismissing Mr Angus’ appeal from Judge Harrop’s decision.10
This appeal
Appellant’s position
[30] Mr Angus advances his appeal on the grounds the Judge erred in law in holding that:
The Board’s decision to refuse him as a certifying plumber on the ground he had not achieved a pass in the 9195 exam was a decision under s 31(1)(c) of the Act; and therefore…[that] decision was excluded from the appeal right conferred by s 162(1) of the Act.
[31] In oral argument Mr Griggs described the appeal as having a very narrow focus. The decision not to register Mr Angus was a decision made not under s 31 of the Act but under s 41. Decisions made under s 41 are able to be appealed. The sole focus of the High Court in this appeal is to examine the District Court decision to determine if it is right or wrong. If this Court considers it is wrong the matter should be referred back to the District Court because Mr Angus simply seeks to have an independent judicial officer look at his 9195 exam result to see if he should be given one more qualifying mark. That is the reason underlying the remedy sought on this appeal.
[32] In his affidavit Mr Angus described the issue for him as a struggle for justice; that he has been trying for years to get the Board to acknowledge it unfairly failed him.
Respondent’s position
[33] For the respondent, Mr Hodge submitted the jurisdictional point on appeal is broader than the jurisdictional point upon which Mr Angus relies. Even if the District Court was wrong in concluding it lacked jurisdiction to hear the appeal, the remedy on appeal to this Court is not confined to remitting the matter back to the District Court, as Mr Angus contends. The respondent does not seek to uphold the District Court decision solely on the basis of the Judge’s reasoning but on a wider basis,
10 See Angus v Plumbers, Gasfitters, and Drainlayers Board, above 6.
namely, that Mr Angus does not have a pass mark in a required examination. As this appeal proceeds by way of rehearing, r 20.19(1)(a) of the High Court Rules 2016 applies so that this Court may “make any decision it thinks should have been made”. Therefore, this Court can and should dismiss the appeal on the merits because:
(a)A pass mark is required of an applicant for registration and Mr Angus did not have a pass mark;
(b)it is not the proper role of the Board to engage in a remarking exercise in deciding an application for registration
(c)therefore, Mr Angus’ invalid application was properly rejected; and
(d)any appeal against the Board’s decision to decline an application for registration is limited to addressing whether the Board was correct in its conclusion the applicant had not been awarded a pass mark in a required examination.
[34] Mr Hodge stressed that the Board’s position in the District Court was unchanged on appeal to this Court. In other words, the very arguments made in this appeal, were made in the previous appeals.
Statutory framework
[35] Before assessing the parties’ respective arguments, it is necessary to describe the legislative framework within which the challenged decisions of the Board were taken.
[36] The Board is a statutory body charged with the functions, duties and powers specified in s 137(a)–(r) of the Act. In addition to these specific functions, s 137(s) confers a broad power on the Board to do any other thing necessary for the effective administration of the Act.
[37]The purposes of the Act are twofold:11
(a)to protect the health and safety of members of the public by ensuring the competency of persons engaged in the provision of sanitary plumbing, gasfitting, and drainlaying services; and
(b)to regulate persons who carry out those services.
[38] The main ways in which the Board achieves the purposes of the Act are through:
(a)registering and licensing plumbers, gasfitters and drainlayers (who, collectively, I refer to as “practitioners”);
(b)reviewing practitioners’ competence;
(c)maintaining a register of practitioners;
(d)receiving complaints about practitioners and conducting disciplinary hearings; and
(e)prosecuting those who falsely claim to be licensed or registered, or who carry out work they are not registered or licensed to carry out.
[39] The Board considers applications for registration and licensing under Part 2 of the Act. An applicant must satisfy the Board that he or she has complied with the application requirements in s 37 of the Act and that he or she meets “the applicable minimum standards for registration”.12 The Board’s role in setting the minimum standards for registration and making arrangements to examine aspiring practitioners, is distinct from its role in determining applications for registration. The statutory provisions relevant to each of these two roles – setting standards and considering applications – are located in different parts of the Act. The point is important because
11 Plumbers, Gasfitters, and Drainlayers Act 2006, s 3.
12 Section 36.
there is a right of appeal from some decisions of the Board but not from others. The appeal right is contained in s 162 which provides:
162 Appeals
(1)A person who is dissatisfied with the whole or any part of any of the following decisions, directions, or orders may appeal to the District Court against the decision, direction, or order:
(a)any decision of the Board to decline to register the person or to decline to issue a licence to the person or to decline to renew the licence of the person:
(b)any decision of the Board to decline to issue a limited certificate under section 14 to the person or to decline to renew the limited certificate of the person:
(c)any decision of the Registrar to decline to issue a provisional licence to the person or to decline to renew the provisional licence:
(d)any decision of the Board or Registrar to suspend or cancel the person’s registration or licence:
(e)any decision of the Board or Registrar to impose any term or condition in relation to the person’s limited certificate, registration, or licence or to vary any of those terms or conditions:
(f)any decision, direction, or order under any of sections 53 to 56, 66, 79, 83, and 178 or subpart 1 of Part 3 (except section 96).
(2)For the purposes of this Part, any decision of the Electrical Workers Registration Board acting under Part 2 must be treated as a decision of the Board.
(3)Subsection (1) does not confer a right to appeal against a decision under any of sections 28 to 35.
[40] Broadly speaking then, s 162(1) gives a right of appeal to those who are dissatisfied with the Board’s decisions in relation to registration, licensing, or the issue of limited certificates. The Board’s decisions in relation to review of practitioners’ competence are also subject to appeal as are its decisions in relation to access to the register, and its exercise of powers in relation to complaints, and disciplinary offences.
[41] By contrast, there is no right of appeal against decisions relating to the setting of minimum standards or making arrangements for examination of persons intending
to practice. These powers are carried out under ss 28–35 of the Act and s 162(3) makes it clear that there is no right to appeal decisions taken under ss 28–35.
Setting standards and arranging examinations
[42] The Board’s responsibility for setting standards and making arrangements for examinations flows from s 137:
(c) to prescribe the minimum standards for registration for each of those classes that persons must meet in order to be registered as registered persons and to be issued with practising licenses:
…
(l) to make arrangements for the examination of persons practising or intending to practise the sanitary plumber or gasfitting or drainlaying trades:
[43] Pursuant to s 28 the Board designates classes of registration and specifies for each of those classes the sanitary plumbing, gasfitting or drainlaying a person is authorised to do by virtue of being a registered person of a particular class holding a current practising licence.
[44] Under s 30 the Board prescribes for each class of registration the minimum standards the person must meet in order to be registered and issued with a practising licence. Section 30 provides:
30Board may prescribe other registration and licensing matters
(1)The Board may, by notice in the Gazette,—
(a)prescribe for each class of registration the minimum standards for registration (including standards relating to required competence, qualifications, and experience) that persons must meet in order to be registered as registered persons and to be issued with practising licences; and
(b)prescribe for each class of registration the terms and conditions subject to which persons are registered as registered persons; and
(c)prescribe for each class of registration the terms and conditions subject to which practising licences are issued; and
(d)prescribe requirements relating to competent and safe work practices and the testing of those practices; and
(e)prescribe requirements relating to the completion of competence programmes in respect of persons who—
(i) apply for practising licences or provisional licences; or
(ii) hold practising licences or provisional licences; or
(iii) apply for renewals of practising licences or provisional licences; and
(f)recognise any overseas qualification, certificate, registration, or licence as satisfying a particular minimum standard for registration (in whole or in part) if, in the opinion of the Board, that overseas qualification, certificate, registration, or licence is equivalent to, or as satisfactory as, the standard, or part of the standard, that is treated as being satisfied.
…
[45]By s 31 the Board may prescribe minimum standards by way of a Gazette
notice:
31Minimum standards for registration
(1)A notice under section 30 may prescribe minimum standards for registration in any way the Board thinks fit, including in 1 or more of the following ways:
(a)by requiring a degree or diploma or certificate of a stated kind recognised by the Board:
(b)by requiring the successful completion of a competence programme, degree, course of studies, or programme accredited by the Board:
(c)by requiring a pass in a specified examination or any other assessment set by the Board or by another organisation approved by the Board:
(d)by reference to registration with, or a licence issued by, an overseas organisation that performs functions that correspond wholly or partly to those performed by the Board:
(e)by requiring experience in the provision of services of a particular kind:
(f)by requiring a certain level of competence.
(2)However, the minimum standards for registration prescribed under section 30 may require a person to pass a specified examination or other assessment set by the Board only if the Board is satisfied that the person does not have a degree, diploma, or certificate of a stated kind recognised by the Board under subsection (1)(a).
[46] The minimum standards for registration as a certifying plumber require the person, inter alia, to have “passed the three-hour certifying plumber examination (reference 9195) set by the board”.13
[47] Although the Board has the statutory function of making arrangements for the examination of those who intend to practice,14 the specifics of the arrangements are not a matter of statute or regulation. The nature of the arrangements was comprehensively described in an affidavit filed by Mr Gómez, the Board’s Manager of Examinations and Continuing Professional Development.
(a)As part of the arrangements for examinations for sanitary plumbing, gasfitting and drainlaying, the Board appointed independent subject matter experts (examiners) to prepare examinations based on the competencies for each trade published in Gazette notices.
(b)The draft examination papers prepared by the examiners are reviewed by an independent examination expert with a New Zealand Qualifications Authority background. The examination expert reviews the draft papers for clarity, alignment with topic weighting requirements, and format.
(c)In addition to being reviewed by an examination expert, papers are subject to a moderation process facilitated by the Board. The process involves examiners, representatives of training providers, representatives from the relevant industry training organisation (NZQA trading as The Skills Organisation), the examination expert and industry representatives.
(d)Mr Gómez described the moderation process as involving a consideration of the following issues:
(i)Are any questions open to misinterpretation?
13 Plumbers, Gasfitters, and Drainlayers Board (Plumbing Registration and Licensing) Notice 2010.
14 See s 137(l) at [42] above.
(ii)Are the subjects covered in the examination paper relevant and taught in the relevant training packages?
(iii)Are the questions and answers placed at the correct level? (The Board runs examinations at two levels of experience — tradesman and certifying);
(iv)Are all the questions and answers in the correct topic category as set out in the competencies?
(v)Is the wording of the questions appropriate, clear, and concise?
(vi)Are the marks for each question fair, and do they reflect the knowledge required to answer the question?
(e)Importantly, no Board members or employees determine the questions or answers for the examinations.
(f)All Board examination papers are marked by independent subject matter experts appointed by the Board. Each marker is assigned a set number of examination papers to mark on an anonymised basis. A moderation process attended by the Board’s appointed markers, an independent examination expert with a New Zealand Qualifications Authority background, and representatives from the training providers agree a marking approach once a sample of completed papers has been marked.
(g)Prior to examination marks being released the independent markers convene and all examination papers with a mark between 55 and 59½ are rechecked. The pass mark for all Board examinations is 60 out of 100.
(h)Those who do not achieve a pass mark are provided with an Application for re-mark or reconsideration form along with the notification of their examination result.
Registration
[48] The Board’s responsibility for considering applications flows from s 137(g) pursuant to which the Board’s function is:
to consider applications for registration and licences under Part 2, and to register persons and issue licences in proper cases:
[49]I set out the key sections.
36Entitlement to registration
An individual is entitled to be registered under this subpart if the individual satisfies the Board—
(a)that he or she has complied with the application requirements in section 37; and
(b)that he or she meets the applicable minimum standards for registration; and
(c)that he or she is not precluded from being registered because of any action taken by the Board under section 106; and
(d)that he or she is a fit and proper person to be registered under this subpart; and
(e)that he or she has paid the prescribed fee (if any).
37Applications for registration
(1)An application for registration under this subpart must—
(a)be sent or delivered to either—
the Registrar; or
(ii)the Electrical Workers Registration Board if the application is to be considered by that Board under section 61; and
(b)be in the form required by the Board; and
(c)contain, or be accompanied by, the information and documentation required by the Board; and
(d)be accompanied by the prescribed fee (if any).
(2)The Registrar must refer any applications received by the Registrar under this section to the Board for consideration under section 40.
…
Board to consider application
(1)The Board must consider each application for registration under this subpart as soon as practicable after receiving it.
(2)In considering an application for registration under this subpart, the Board must,—
(a)if the applicant has previously had his or her registration or practising licence cancelled under this Act, have regard to the reasons for that cancellation; and
(b)observe the rules of natural justice; and
(c)without limiting those rules, give the applicant—
(i)notice of any matter that might result in the application being declined; and
(ii)a reasonable opportunity to make submissions to the Board on the matter.
41Board to register applicant or decline application
(1)If the Board is satisfied that the applicant is entitled, under section 36, to be registered under this subpart, the Board must direct the Registrar to—
(a)register the applicant as a registered person of a particular class; and
(b)send to the applicant a certificate of registration; and
(c)enter details of that person’s registration in the register; and
(d)issue a unique identifier (for example, a registration number) to the applicant, and notify the applicant of that identifier.
(2)If the Board is not satisfied that the applicant is entitled to be registered under this subpart, the Board must notify the applicant of—
(a)the Board’s decision; and
(b)the applicant’s right of appeal to a District Court against the decision.
(3)As soon as practicable after receiving the Board’s direction under subsection (1), the Registrar must enter the details of the registration in the register.
Discussion
[50] This appeal is Mr Angus’ fourth appeal challenging, for all intents and purposes, his fail mark in the 9195 examination.
[51] Mr Angus’ first appeal to the District Court was described by Judge Harrop in the following way:15
15 Judge Harrop’s decision, above n 5.
[5] Mr Angus has not applied for registration as a certifying plumber because, not having complied with one of the minimum standards, his application would inevitably be unsuccessful. However he has now appealed against what he says is the “decision” to decline to register him, most recently confirmed by letter from the Board dated 10 April 2017. He contends that, for the detailed reasons set out in his notice of appeal dated 19 April 2017, the Board was wrong not to award him a pass mark in the June 2012 examination. He asks the Court to set aside the Board’s decision not to register him as a certifying plumber and seeks a direction that it reconsiders his application for registration without further delay on the basis that he did achieve a pass mark in the examination.
[52]Mr Angus’ appeal from Judge Harrop’s decision was dismissed by Peters J.16
[53] In his next appeal to the District Court, brought by way of notice of appeal dated 4 October 2018, Mr Angus gave notice that he was —
… appealing against the decision of the respondent on 19 September 2018 to decline to register the appellant as a certifying plumber on the grounds that the appellant did not obtain a pass mark in the 9195 Registration Examination for Certifying Plumber … which the appellant sat in June 2012.
[54] The Board’s decision at the heart of Mr Angus’ appeal to this Court is reflected in his notice of appeal:
2The grounds of the appeal are that the District Court erred in law in holding that:
2.1The Board’s decision to refuse to register the appellant as a certifying plumber on the ground that he had not achieved a pass in the 9195 examination was a decision under section 31(1)(c) of [the Act]; and therefore
2..2…was excluded from the appeal right conferred by section 162(1) of the Act.
(Emphasis added)
[55] In his first appeal, Mr Angus asked the District Court to set aside the Board’s decision not to register him as a certifying plumber and sought a direction that the Board reconsider his application for registration without further delay on the basis that he did achieve a pass mark in the examination.17
16 Angus v Plumbers, Gasfitters, and Drainlayers Board, above n 8.
17 Judge Harrop’s decision, above n 5, at [5].
[56] Mr Angus argued in his first appeal that s 162(1) of the Act permitted an appeal by a person who is dissatisfied with any part of a decision to decline to register and that the Board’s decision in relation to his examination mark was part of its decision to decline to register him.18
[57] The Board argued before Judge Harrop that Mr Angus had no right to appeal as the Board had not made a decision to not register him as a certifying plumber. Indeed, he had not even applied for registration. In short, the Board’s position was that it had made no appealable decision.
[58] Given the Board’s position, arrangements were made for the District Court to consider, as a preliminary issue, its jurisdiction to hear the appeal. And, as mentioned at the outset, Judge Harrop dismissed the appeal rejecting the argument that the determination of Mr Angus’ 9195 exam was, for the purpose of s 162(1)(a) of the Act, a part of a decision of the Board to decline to register him.
[59] Undaunted, Mr Angus applied for registration notwithstanding he had not met the minimum standard for registration namely a pass mark in the relevant examination. Although there was no basis for Mr Angus to be optimistic that the outcome would be any different because he failed to meet the minimum standards for registration as a certifying plumber, he now had a platform from which to launch a second appeal. There was at least a decision to decline to register. I see this as little more than sleight of hand because Mr Angus’ real grievance is with the examination result. Mr Angus’ affidavit focuses on asserted errors in the marking of his exam answers. He also cites a report of the Auditor-General in 2010 in which the Auditor-General expressed concern about the robustness of the then current examination system. The Auditor- General reported:19
5.44Until the Board implements a new examination system, the current system will continue. As discussed above, we have significant concerns about the robustness of the current examination system — in particular, about the quality of the questions.
18 At [6].
19 Inquiry into the Plumbers, Gasfitters, and Drainlayers Board (Office of the Auditor-General, July 2010).
5.45We encourage the Board to consider what steps it needs to take to ensure that the current examination system operates fairly while it remains in place. We are pleased to record that the Board told us that it now has ‘quarantined’ the questions in its database. It will prepare new written examinations using a new process involving external training providers.
[60] Mr Angus’ lack of confidence is understandable, on one level. He says he sat the examination less than two years after the 2010 report was published. He observed “that many of the problems identified by the Auditor-General in the 2010 report were still present in 2012. They still are today.”
[61] Mr Angus also referred to a follow-up report published by the Auditor-General on 24 May 2014. Mr Angus interprets the Auditor-General as finding “there were still problems with the way the examination system was being administered as late as November 2013, particularly in the case of the certifying plumber examination”.
[62]In fact, the Auditor-General made the following observations:20
5.5The Board changed its approach to examination-setting and moderation in time for the November 4 2010 examinations. Changes included the inclusion of multiple-choice questions and allowing open-book examinations. Moderation meetings now include an NZQA examination expert. Moderators check to:
·see that the questions are based on the training material given to those wanting to sit the examination; and
·ensure that the questions are unambiguous and technically accurate. (Emphasis added)
5.6After the examination, any papers where the candidate just missed the 60% pass mark are automatically remarked. Papers are checked for adding errors. A selection of papers from each venue is compared, to increase consistency across training providers and markers.
5.7In February 2011, the Board hired consultants to help improve the examination papers further. The consultants concluded that the Board was making progress, but added that:
… there are many opportunities to improve examination questions. The opportunities include editing questions from the literacy and readability perspectives, ensuring that more questions include scenarios to provide context, user testing questions, and providing study skills resources to assist candidates answer multi-choice questions.
20 Inquiry into the Plumbers, Gasfitters, and Drainlayers Board: follow-up report (Office of the Auditor-General, May 2014).
5.8Quality assurance reports show that the Board has continued to focus on these improvement opportunities during 2011 to 2013.
[63] The Auditor-General’s office had independently analysed pass rates. Pass rates for 2010–2012 were significantly higher than those found for 2008 and 2009 although the percentage of plumbers who succeeded at certifying level was lower than for gasfitters and drainlayers. The Auditor-General saw evidence of the Board considering the reasons for the lower pass rates for certifying plumbers at its November 2013 meeting. Ultimately, however, the Auditor-General was “satisfied that results are scrutinised by the Board, and that pass rates have remained at levels comparable to those in similar industries”.21
[64] For reasons that I set out in the next part of this judgment, I have concluded there was no error in Judge Tompkins’ conclusion the District Court lacked jurisdiction to hear Mr Angus’ appeal. But even if there were jurisdiction Mr Angus’ assertions of unreasonableness on the part of the Board in marking the examination, his contentions the Board had been unfair in the way it treated him and his criticisms of the Board’s examination processes are not matters that are susceptible to the jurisdiction of the District Court on an appeal under s 162(1). I have addressed the Auditor-General’s report in this detail because it attracted significant attention in Mr Angus’ affidavit. The extracts from the 2014 report that I have set out above do not support Mr Angus’ conclusion that the Auditor-General stated “there were still problems with the way the examination system was being administered as late as November 2013”.
Outcome
[65] Mr Angus’ application for registration as a certifying plumber may, to an extent, be viewed as a device to circumvent the lack of jurisdiction in the District Court to hear a challenge to an examination result. Mr Angus was quite simply not “entitled to be registered” because an individual is only “entitled to be registered” under Part 2 of the Act if he or she has complied with the application requirements in s 37 and
21 At 5.12.
meets the applicable minimum standards for registration.22 There are other prerequisites to an entitlement to be registered but they are not relevant to this appeal.
[66] While s 40 requires the Board to consider each application for registration as soon as practicable after receiving the application, had the Registrar not forwarded Mr Angus’ application to the Board for its consideration, I do not consider the Registrar could have been successfully challenged. That is because, under s 37, an application must “contain, or be accompanied by, the information and documentation required by the Board”.23 While s 37(2) obliges the Registrar to refer any applications received by the Registrar to the Board, my view of subs (2) is that the Registrar is obliged only to refer applications that comply with the statutory requirements for an application. Were it otherwise s 37 would have no purpose. Clearly applications are forwarded initially to the Registrar so they may be checked for compliance with the statutory requirements of an application, for example that an application is in the form required by the Board,24 that it is accompanied by the prescribed fee (if any),25 and that it contains the information and documentation required by the Board. That the Registrar has this initial screening responsibility is supported by the fact the Registrar may issue a provisional license pending consideration of the application by the Board.26 In this regard I agree with Judge Harrop’s observation:27
Under s 37(2) the Registrar is … only required to refer an application to the Board for consideration if it meets the mandatory preconditions. This includes evidence that the prescribed minimum standards have been met.
[67] In this one regard my interpretation of s 37 differs from Peters J.28 I note, however, that at the point where Peters J expressed her reservation about the effect of s 37 she had determined the appeal but continued to express her reservations about two matters to which Mr Griggs had referred. Secondly, the point was not argued in any detail before Peters J because it was of no real consequence to the appeal.29 In this appeal, Mr Hodge submitted that “[w]ithout a pass mark, a person is not entitled
22 Plumbers, Gasfitters, and Drainlayers Act 2006, s 36.
23 Section 37(1)(c).
24 Section 37(1)(b).
25 Section 27(1)(d).
26 Plumbers, Gasfitters, and Drainlayers Act 2006, s 38.
27 Judge Harrop’s decision, above n 5, at [40].
28 Angus v Plumbers, Gasfitters, and Drainlayers Board, above n 6, at [33].
29 At [32]–[33].
to registration and their application for registration will be non-compliant”. I agree with the submission.
[68] The Act creates a two-step process with regard to registration. First, under s 37 applications are to be sent to the Registrar for screening. The second stage involves the Board’s consideration of each application received by the Board. Where the Registrar will have ensured the applications comply with the requirements prescribed in s 37, the Board must be satisfied of the matters at s 36(a)–(e). Those matters include that the minimum standards for registration are met and that, for example, the applicant is a fit and proper person to be registered.
[69] I also agree with Judge Harrop’s interpretation of the Registrar’s obligation under s 37(2) which is to refer to the Board “any applications received by the Registrar under this section”.30 The obligation on the Registrar is not to refer to the Board any application sent to the Registrar but only applications under s 37. In other words, the Registrar is to refer applications that comply with s 37.
[70] Mr Angus’ application was declined for the simple reason that Mr Angus did not meet the applicable minimum standard for registration, that minimum standard having been set by the Board pursuant to s 31. A pass in the 9195 exam was required. Mr Angus did not pass. That is an indisputable fact. It does not matter that Mr Angus thought he should have been awarded a pass mark. He was not, notwithstanding a reconsideration and a complaint about the reconsideration which in turn involved a consideration of additional material from Mr Angus. In substance and effect, Mr Angus continues to challenge his exam result although he has sought to circumvent the jurisdictional barrier to an appeal by making an application. That application did not comply with basic minimum requirements and when Mr Angus could not therefore be entitled to be registered under s 36.
[71]For these reasons, his appeal must be dismissed.
[72] Mr Angus’ argument that he has been denied natural justice does not advance matters. Section 40 obliges the Board to observe the rules of natural justice and to
30 Judge Harrop’s decision, above n 5, at [41] (emphasis added).
give notice to the applicant of any matter that might result in the application being declined and a reasonable opportunity to make submissions to the Board on that matter.
[73] While the Registrar’s letter dated 19 September 2018 did not expressly give that opportunity to Mr Angus in the context of his non-complying application, the Board has afforded Mr Angus numerous opportunities to be heard over the whole period of its engagement with Mr Angus. There can be no doubt that Mr Angus was fully informed that his failure to pass the 9195 exam made him ineligible for registration. He has been given ample notice over the years of that fact and given every reasonable opportunity to make submissions to the Board on that matter. In any event, those requirements apply when the Board is considering an application for a practising license. Mr Angus’ application was for registration.
[74] In dismissing the appeal I have upheld Judge Tompkins’ reasoning. Had I found that he erred in holding the District Court lacked jurisdiction, I would have declined to remit the matter to the District Court. Mr Angus cannot succeed in his current application to be registered as a certifying plumber when he lacks the essential prerequisite for a valid application, namely, a pass mark in the qualifying examination.
Disposition
[75]The appeal is dismissed.
[76] Costs following the event, the respondent is entitled to an order for costs. The parties agreed the appeal is appropriately categorised as category 2 for the purpose of costs. Accordingly, the appellant is to pay the respondent’s costs on a 2B basis.
Karen Clark J
Solicitors:
Stephens Lawyers, Wellington for Appellant
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