Davis v Plumbers, Gasfitters and Drainlayers Board
[2021] NZCA 228
•3 June 2021 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA262/2020 CA374/2020 [2021] NZCA 228 |
| BETWEEN | LANCE DAVIS |
| AND | PLUMBERS, GASFITTERS AND DRAINLAYERS BOARD |
| Hearing: | 30 March 2021 |
Court: | French, Brown and Clifford JJ |
Counsel: | J W Maassen for Appellant |
Judgment: | 3 June 2021 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeals against the judicial review and the costs decisions are dismissed.
B The appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Introduction
The appellant, Lance Davis, is a registered plumber, gasfitter and drainlayer. The respondent, the Plumbers, Gasfitters and Drainlayers Board (the Board) is the registration and disciplinary body for those trades. The Board is established by the Plumbers, Gasfitters, and Drainlayers Act 2006 (the Act).
In July 2017 the Board received a complaint from a Mr Russ relating to work allegedly done by Mr Davis in 2010.
As part of the preliminary investigation of that complaint, Mr Davis was interviewed. At the conclusion of that interview Mr Davis signed a written record of the interview in which he is said to have admitted responsibility for the allegedly defective work.
Mr Davis subsequently challenged the lawfulness of that interview, and the admissibility of that signed written record, by way of judicial review proceedings in the High Court. That challenge was dismissed.[1] Mr Davis was subsequently ordered to pay costs to the Board.[2]
[1]Davis v Plumbers, Gasfitters and Drainlayers Board [2020] NZHC 782 [Judicial review decision].
[2]Davis v Plumbers, Gasfitters and Drainlayers Board [2020] NZHC 1523 [Costs decision].
Mr Davis now appeals both those decisions.
Background
In 2010 Mr Davis and his firm Star Plumbing Ltd carried out work associated with the installation of a hot water system (solar heating and a wetback) in a property Mr Russ owned. Mr Davis was contacted by Mr Russ in May 2017. The hot water system was not working properly. Mr Davis visited the property and inspected the work. Whilst Mr Davis could see the fault in the installation, he was of the view that it was not work for which he had been responsible. Following Mr Russ making the complaint Mr Davis, without admitting liability, fixed the problem at his own expense. That work was completed sometime in July 2018.
In the meantime, the Board responded to Mr Russ’s complaint against Mr Davis in accordance with the provisions of the Act.
Having satisfied itself the complaint was neither frivolous nor vexatious, the Board appointed an investigator, a Mr Thomas, to carry out a preliminary investigation.[3] Under the Act, the investigator’s task is to determine whether the complaint should be considered by the Board.[4]
[3]Plumbers, Gasfitters and Drainlayers Act 2006, s 91(1).
[4]Section 92(2)(a).
On 26 June 2018 a Mr Costelloe, who had been appointed to assist Mr Thomas, telephoned Mr Davis to discuss the complaint. Mr Costelloe visited Mr Davis later that same day. At the end of their meeting Mr Costelloe invited Mr Davis to sign a note he had made of their conversation. Mr Davis did so. We refer to that signed note as “Mr Davis’s statement” or simply “the statement”. The statement reads:
PCOnsite interview with Mr Davis at 16a Maire St Palmerston North Office of Star Plumbing.
I put it to you Mr Davis that either you or those you supervise either did or allowed to be done sanitary plumbing in a [manner] that would not work; namely that the solar and wetback and associated plumbing for Mr Russ of [his address at] Foxton, was connected with the wetback and solar flow [with] return pipes cross connected.
I have seen the diagram provided by Mr Harris — and the photos taken by Mr Costelloe today of the [hot water] cylinder installation and accept this was carried out by Star Plumbing. Diagram sighted and signed by me Mr L Davis.
LD Yes I agree with this statement Mr Lance Davis RN# 11955.
Section 92(4)(b) of the Act requires that, before an investigator determines that a complaint should be considered by the Board, the investigator or the Board’s Registrar must give the person the subject of the complaint “a reasonable opportunity to make written submissions and be heard on the matter, either personally or by that person’s representative”. In response to that requirement, on 18 July 2018 the Registrar’s complaints officer sent Mr Thomas’s “preliminary investigation report” to Mr Davis, inviting his comment.
On 21 July 2018 Mr Davis provided a detailed response. He based that response on further investigations he had made following what he described as his interview “under duress” with Mr Costelloe. That investigation showed, he asserted, that neither he nor any employee of Star Plumbing were responsible for the faulty work which had caused the failure of the water heating system. On 30 July, Mr Davis provided further information to the Registrar supporting his contentions.
Mr Costelloe subsequently advised the Board the complaint should be considered. On 20 August 2018 Mr Davis was advised of that fact and provided with a copy of Mr Costelloe’s final report. Mr Davis was also advised there would be a disciplinary hearing before the Board to consider the complaint. On 1 November 2018 the Registrar wrote to Mr Davis, advising him that his disciplinary hearing had been scheduled for Wednesday 20 March 2019 at 9 am. Enclosed was a formal notice of disciplinary charges, advising Mr Davis he would face charges of negligent or incompetent sanitary plumbing and (in the alternative) sanitary plumbing contrary to an enactment.[5]
[5]Plumbers, Gasfitters, and Drainlayers Act, ss 89(a)(i) and (ii).
Mr Davis then filed an appeal in the District Court, challenging the decision to investigate the complaint and lay charges. Mr Davis based that challenge on what he said was the unlawfulness of the way the statement had been obtained, and hence its inadmissibility. That appeal was subsequently withdrawn, and the judicial review proceedings commenced in the High Court.
The High Court decision
In his statement of claim, Mr Davis challenged the lawfulness of the proceedings against him on three grounds:
(a)First, his signed written statement had been unlawfully obtained. Mr Costelloe (i) had not given Mr Davis proper notice under s 92(4)(b) of the details of the complaint or of the meeting on 26 June 2018; and (ii) had acted unfairly and overbearingly at the meeting resulting in Mr Davis’s written acknowledgement being provided under duress. The statement was therefore inadmissible, as was any other evidence of that meeting.
(b)Secondly, Mr Costelloe had not been lawfully delegated to conduct the investigation.
(c)Thirdly, there had a been a failure by Mr Costelloe to advise Mr Davis, prior to or at the time of the meeting, of Mr Davis’s rights to obtain legal advice.
By the time the Board filed its statement of defence it had decided it would withdraw the charges that had been laid, and would commence a fresh investigation. It pleaded those matters in that statement of defence and advised Mr Davis of those matters in correspondence at the time. The newly appointed investigator would be provided with the material Mr Costelloe had collected, including the statement. It would be for the investigator to determine whether the statement formed part of the evidence he relied on. He would do so in light of the issues Mr Davis had raised, as then reflected in the judicial review pleadings. If the investigator determined the complaint should be considered by the Board, it would be for the Board to determine the significance of the statement if it were to be put in evidence.
On that basis all were agreed the only issue before the Court in the judicial review application was, as Grice J put it, whether the statement had been unlawfully obtained and whether it was admissible in the new investigation. Accordingly, the relief Mr Davis asked the Judge to provide were declarations to that effect.
For Mr Davis, the submission was that Mr Costelloe had been required to comply with the requirements of s 92(4) before he put his written note of interview to Mr Davis. Mr Maassen categorised Mr Costelloe’s action at that interview as being those of a prosecutor who, having given selective evidential material to Mr Davis, had then had Mr Davis acknowledge that he, or his staff, were responsible for the faulty work in question. That also evidenced Mr Costelloe had already made his determination when he interviewed Mr Davis. Mr Costelloe could not lawfully do that without first complying with the s 92 procedure.
The Board pointed to the circumstances of a new investigation, and the stage it had reached. On that basis, the Board said Mr Davis’s challenge was premature. Any question of admissibility would properly be dealt with before the Board, on the assumption it investigated the complaint. Thereafter, Mr Davis would have his rights of appeal. In any event, the statement had not been obtained unlawfully: there had been no failure to comply with the requirements of s 92(4). As for the allegations of duress, they raised factual matters which were not suitable for determination in judicial review proceedings.
Grice J considered that s 92(4) was clear. The requirement to send particulars of the complaint, and provide a reasonable opportunity to make written submissions and be heard on the matter, had to be met before the investigator determined whether the complaint should be considered by the Board. That point had not been reached when Mr Costelloe obtained Mr Davis’s statement, as Mr Maassen had to a large extent accepted in the High Court.
This appeal
On appeal, Mr Maassen focused on the Judge’s ruling that the statement had not been unlawfully obtained. That was the determination he wanted reversed. Going forward Mr Maassen accepted, if this Court made that ruling, it would then be for him to persuade the Board of the statement’s inadmissibility in the hearing of the new charges against Mr Davis. In doing so, Mr Maassen repeated and expanded on the submissions he had made in the High Court. The flavour of those submissions is reflected in this extract from Mr Maassen’s written submissions:
[4] The Plumbers, Gasfitters and Drainlayers Act 2006, s 92(4)(b) sets a standard of fairness that an investigator must follow before recommending to the Board to lay charges. In s 92(4)(b), “reasonable opportunity” has a recognisable purpose and echoes the canonical judgments of Lord Reid in Ridge v Baldwin and Lord Diplock in O’Reilly v Mackman at 279 F-G concerning the right to fairness. “Reasonable opportunity” means sincerely providing the time and circumstances for a person under investigation to respond in writing to allegations and take advice with proper notice of the relevant information.
(Footnotes omitted.)
The requirements of s 92(4)(b) were, Mr Maassen submitted, to be met on every occasion an opportunity was “extended to a tradesperson to respond to allegations on the matter during an investigation”. It was not reasonable to rely on the “final opportunity given when a draft of the final report to the Board by the investigator was sent to the tradesperson complained about”.
Compliance by the Board with the requirements of the Act as regards the investigation of complaints was of some significance. For the tradesperson involved, any complaint raised the spectre of the loss of their ability to continue to practise their trade, or at least of damage to their reputation as a tradesperson. From the point of view of the public, and given the risks associated with gas fitting in particular, the need to ensure the competency of the tradespersons involved was self-evident.
For the Board, Mr Hodge supported the Judge’s reasoning. In particular, there was little point in the relief sought by Mr Maassen, given the new investigation underway and the opportunity for all these issues to be canvassed at the hearing of the charges before the Board.
Analysis
We accept without hesitation that there are important private (for the tradespeople) and public (for the consumers of their services) issues involved in the Board’s registration and complaints jurisdiction. An opportunity is provided to a tradesperson the subject of a complaint to respond to that complaint. But we are, with respect, unable to accept Mr Maassen’s fundamental submission that, as he put it, s 92(4)(b) must be complied with every time some step is taken in the Board’s investigations. In our view that would put considerable and unnecessary procedural and substantive pressure on a regime which carefully balances the interests of the tradesperson, the complainant and the public more generally. In saying that, we note the following elements of that scheme:
(a)The Registrar is required to determine whether a complaint is frivolous or vexatious.[6] We infer that requirement acknowledges the significance for tradespeople of even the public announcement that a complaint has been received and is to be investigated.
(b)The Act then requires a formal process for the investigation of the complaint, including engagement with the tradesperson the subject of the complaint, prior to an investigator determining whether the complainant should be investigated.[7] A tradesperson is, as s 92(4)(b) requires, to be given a reasonable opportunity to be represented and heard, albeit in writing not in person, on that decision.
(c)Then there is, of course, the hearing on the charges to be conducted by the Board on a prosecution brought in the name of the investigator. At that hearing, in person, the tradesperson complained of has all the benefits of legal representation.
(d)The tradesperson then has a right of appeal to the District Court against the decision of the Board to exercise its disciplinary powers.[8] Many disciplinary procedures have that protection, indicating the legislature has given careful thought already to the issues of fairness Mr Maassen raises.
(e)Finally, there is the opportunity, independent of the foregoing statutory scheme, for judicial review and any subsequent appeal.
[6]Section 90(4).
[7]Section 92(2)(a).
[8]Section 162.
Given that careful legislative scheme, it would be surprising if the interpretation of the Act argued for by Mr Maassen was the correct one. It is not required from the point of view of substantive fairness. It would therefore only add unnecessary procedural complexity.
We are therefore satisfied that it was not necessary for the investigator to comply with s 94(2)(b) before meeting with Mr Davis on 26 June 2018 and asking him to sign the note of the meeting. We therefore dismiss Mr Davis’s appeal against the Judge’s finding in the judicial review proceedings.
Costs appeal
Grice J reserved the question of costs.[9] She asked for written submissions. The Board said it had succeeded and accordingly costs should follow the event. Moreover, the Board said that Calderbank offers it had made to settle the judicial review claim should have been accepted. Mr Davis had, as matters turned out, done no better than the Board’s offer. On that basis, the Board would have been entitled to increased or indemnity costs. However, as its actual costs had not exceeded 2B costs, it did not pursue that point.[10]
[9]Judicial review decision, above n 1, at [66].
[10]Costs decision, above n 2, at [38].
Mr Davis’s contention was that the Board had only had a partial success.[11] Its decision to acknowledge Mr Costelloe had acted without proper delegation, and to commence a new investigation, represented significant success for him. Accordingly, Mr Davis should be awarded costs against the Board up to the point where the Board had formally advised the Court of its decision to withdraw the initial charges and to commence a fresh investigation. No weight should be put on the Board’s so-called Calderbank offer.
[11]At [13].
The Judge accepted the position advanced by the Board and granted its application for scale costs in the sum of $18,878 plus disbursements.[12]
[12]At [40]–[41].
Before us, and as regards Mr Davis’s challenge to the Judge’s cost decision, each of Mr Davis and the Board repeated the contentions they had relied on in the High Court.
We are satisfied the Judge was correct when she rejected Mr Davis’s claim of partial success in the judicial review proceeding. As the Judge reasoned, and quite distinct from the position Mallon J analysed in the McGuire v Wellington Standards Committee (No 1) decision,[13] the outcome of the judicial review proceeding here does not represent any success on the legal points that were not adjudicated on. Furthermore, as the Board’s actual costs did not exceed its 2B entitlement, we need not consider the significance of the Board’s settlement offer in these disciplinary proceedings.
[13]McGuire v Wellington Standards Committee (No 1) [2015] NZHC 448.
We make one final observation. This relatively straight forward, and now aged matter, has already absorbed what are — by any assessment — considerable legal expenses. Albeit without admitting any fault, Mr Davis attended to the necessary repairs. The individual consumer has been satisfied. Given the passage of time, it is difficult to see any great broader significance in the matter complained of. Any issues that may remain must, we suggest, be capable of resolution without further material expense.
Result
The appeals against the judicial review and the costs decisions are dismissed.
The appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.
Solicitors:
Meredith Connell, Auckland for Respondent
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