Davis v The Plumbers, Gasfitters and Drainlayers Board
[2020] NZHC 782
•21 April 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-000136
[2020] NZHC 782
UNDER The Judicial Review Procedure Act 2016 and part 30 of the High Court Rules 2016 IN THE MATTER OF
the Plumbers, Gasfitters and Drainlayers Act 2006
BETWEEN
LANCE DAVIS
Applicant
AND
THE PLUMBERS, GASFITTERS AND DRAINLAYERS BOARD
Respondent
Hearing: 24 February 2020 Counsel:
J W Maassen and N Koating for the Applicant M J Hodge for the Respondent
Judgment:
21 April 2020
JUDGMENT OF GRICE J
[1] Mr Davis operates a plumbing firm called Star Plumbing Ltd (Star Plumbing). He is a person registered under the Plumbers, Gasfitters and Drainlayers Act 2006 (the Act).
[2] Star Plumbing, among other things, installs solar heating systems. One of its employees installed a solar heating system in a property owned by Mr Russ at Foxton in 2010. Around that time, Mr Russ was doing renovations employing another plumber and various tradesmen for aspects of the work. A different plumber was engaged to do the sanitary plumbing on the property. Mr Russ managed the renovations himself.
DAVIS v THE PLUMBERS, GASFITTERS AND DRAINLAYERS BOARD [2020] NZHC 782 [21 April 2020]
[3] The solar heating installation was intended to heat hot water. It incorporated a wetback (from a fireplace) as well as a system for transferring solar energy from panels to heat water. The wetback heating and the solar heating units were designed as alternatives to the use of reticulated electricity for heating hot water.
[4] In May 2017, seven years after the installation, Mr Russ contacted Mr Davis having discovered that the solar installation wiring had not been properly connected. Mr Davis says the error was immediately apparent once he looked at the system. The result was that neither the wetback nor the solar panels had been connected to the system so were not heating the water.1
[5] Mr Davis denied that he or his business were responsible for the connection error. Mr Russ then laid a complaint against Mr Davis in relation to the faulty installation, with the Plumbers, Gasfitters and Drainlayers Board (Board), which is the body responsible for dealing with complaints against persons licensed under the Act.2
[6] The Board, through its Registrar, appointed an investigator as was required under the Act.3 The investigator Mr Costelloe, commenced an investigation. He spoke to Mr Davis about the matter on a number of occasions. On 22 June 2018, Mr Costelloe visited Mr Davis at the Star Plumbing office. In the course of a face-to- face discussion, at Mr Costelloe’s invitation, Mr Davis signed an entry in Mr Costelloe’s notebook admitting he or his staff was responsible for the error (the contested statement). This is the subject of the present application.
[7] Mr Maassen for Mr Davis referred to the contested statement as a ‘confession’ obtained by Mr Costelloe in breach of the Act. The contested statement contained a now disputed admission by Mr Davis that either he or ‘those he supervised’ either did or allowed the faulty work to be done which resulted in the failure to properly connect the wetback and the solar heating units to the water heating system. The contested statement refers to a diagram prepared by another plumber who had inspected the work, as well as photos taken by Mr Costelloe, of the installation.
1 In February 2018 Mr Davis did fix the problems with the solar insulation for Mr Russ at no cost.
2 Plumbers, Gasfitters and Drainlayers Act 2006, ss 89, 90, 100 and 106.
3 Section 91(1).
[8] Mr Davis does not dispute that the work was faulty, but says it was not done by him or those he supervised, and therefore it was not his responsibility. He points to a number of matters which support his view of events. Mr Davis says that the contested statement was not correct and was taken by Mr Costelloe in breach of the provisions of the Act. Mr Davis said he was not given the opportunity to check with the staff who had installed the system nor to make other inquiries which would have confirmed the fact that neither he nor his staff was responsible for the work. He said he made the statement under duress.
[9] The Board gave notice of disciplinary proceedings against Mr Davis on 1 November 2018. A hearing date was set for 20 March 2019. Shortly after that, Mr Davis appealed the decision to lay the disciplinary charges to the District Court.
[10] In March 2019, Mr Davis issued Judicial Review proceedings, based on a number of grounds.
[11] The statement of claim seeks a declaration that the contested statement is inadmissible4. The reasons set out are that Mr Costelloe did not give prior notice to Mr Davis of his visit and/or advance notice of the details of the complaint that he was investigating. In addition, it is alleged that Mr Costelloe arrived with a prepared statement, did not advise Mr Davis of the process, nor did he advise Mr Davis of his right under the Act to seek legal advice. It is also alleged that Mr Costelloe did not:
(a)provide a warrant authorising him to exercise the powers of an investigator;
(b)provide a copy of his delegated authority to undertake the investigation;
(c)advise Mr Davis that any statement he may give could be used in disciplinary proceedings against him; nor
4 Davis v Plumbers, Gasfitters and Drainlayers Board HC Wellington CIV-2019-485-000136, Minute of Simon France J, 29 April 2019.
(d)advise Mr Davis of the consequence which might follow as a result of disciplinary proceedings being upheld.
[12] Further allegations are made that Mr Costelloe failed to offer or allow Mr Davis time to consider the allegations and did not provide all the background. In summary, the claim is that the contested statement was improperly obtained, for the following reasons:
[a]It was obtained in breach of s92(2) of the Act.5
[b]It was obtained through placing the Applicant under unreasonable and improper pressure in circumstances where he was not given a reasonable opportunity to address the complaint;
[c]The material put to the Applicant was incomplete and did not include crucial local authority records;
[d]The Applicant was not afforded the procedural protections provided under s92(4)6 of the Act or in accordance with the principles of natural justices;
[e]The statement was based on a predetermination of events and guilt by Mr Costelloe.
[13] The Board discontinued the disciplinary proceedings on a without prejudice basis.
[14] Another investigator was appointed and is presently undertaking the investigation anew. This investigator says he has not made a decision about whether he will take the contested statement into account in his final report, but that in any event, if he does it will be up to the Board to consider the complaint, including its admissibility.
[15] There were a number of other matters raised in the Statement of Claim but the sole remaining issue for these proceedings is whether the contested statement was obtained in breach of the Act. A declaration is sought to that effect. A declaration is also sought that the contested statement is inadmissible.
5 Section 92(2) of the Act requires the investigator to determine whether the complaint should be investigated by the Board and to report the investigator’s findings to the Board.
6 Section 92(4) requires the investigator before he makes a determination that the complaint should be considered by the Board to send particulars of the complaint to the person complained against and give a reasonable opportunity to be heard.
[16] At the hearing, Mr Maassen, for Mr Davis, concentrated primarily on the argument that the contested statement was obtained contrary to the requirements set out in s 92(4) of the Act. He indicated that if that declaration were made, it would follow that the statement was inadmissible, however, that would be a matter for the Board. Mr Maassen said that as it was obtained in breach of the requirements of the Act the contested statement could not be taken into account by the investigator or the Board. Mr Maassen said to reach that conclusion the Court did not need to consider all the facts and circumstances surrounding the taking of the statement.
[17] Mr Maassen said it was proper for this Court in its supervisory jurisdiction over public decision makers to send a signal to the Board than an investigator could not act in breach of the Act. It was therefore not a question of admissibility alone and so did not require a consideration of the facts and circumstances in which the statement was made.
[18] On the other hand, Mr Hodge for the Board, argued that the issue was one of admissibility. He said whether the contested statement was admissible as evidence before the Board was a matter for the Board to deal with in the course of any disciplinary proceedings. In that case the Board would need to hear evidence but that point was yet to be reached as the new investigator had not yet completed the investigation.
[19] Mr Maassen also criticised Mr Costelloe for recording a telephone conversation with Mr Davis without advising Mr Davis that he was recording it. However, Mr Maassen said that he was not taking that point. Nor did he argue that the mere fact the statement was obtained by Mr Costelloe in the earlier investigation meant it could not be used in the new investigation.
[20] Mr Davis’ primary argument relies on the application of s 92(4) of the Act. It is necessary to consider that provision in the context of the legislation.
The Act
[21] The usual rules of interpretation apply here. Interpretation commences with the text informed by the purpose and the context,7 including the statutory scheme of the relevant legislation.8
[22] The purposes of the Act are for protecting the health and safety of members of the public by ensuring the competency of persons engaged in the provision of sanitary plumbing, gas fitting and drain laying services, and for the regulation of persons who carry out sanitary plumping, gas fitting and drain laying.9
[23] Complaints may be made to the Board about the conduct of a registered person. The Registrar must, as soon as practicable, after receiving a complaint, inform the Board and inform the person complained against of the general nature of the complaint.10 The Registrar must also appoint an investigator to investigate the complaint,11 unless satisfied that the complaint is frivolous or vexatious in which case it would not be taken further.12
[24] The appointed investigator has special powers of investigation. These include the right to enter premises for inspection and inquiry purposes without the consent of the occupier under a warrant issued by District Court Judge.13 The investigator must carry the warrant and produce it on initial entry on to the premises and if requested, at any other time.
[25] The investigator may compel a person to produce documents for inspection and to supply information that the investigator may require. The investigator must first produce a warrant.
7 Interpretation Act 1999, s 5. Commerce Commission v Fonterra Co-Operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767 at [24].
8 Westfield (NZ) Ltd v North Shore City Council [2005] NZSC 17, [2005] 2 NZLR at 597 at [6].
9 Plumbers, Gasfitters, and Drainlayers Act 2006, s 3.
10 Section 90(1) and (3).
11 Section 91(1).
12 Section 90(4).
13 Section 93 and 96.
[26] Failure to comply with a notice to supply information or documents, may result in a person being convicted of an offence under the Act.14
[27] There is no statutory definition as to what ‘investigate’ means here. Nevertheless, no doubt an investigator’s inquiry must be limited to matters relevant or which might be relevant to the complaint. In addition, the methods adopted by the investigator are governed by the rules of fairness as they apply in the circumstances.
[28]Section 92 sets out the functions of the investigator:
92 Investigation of complaint
(1) …
(2)The investigator must—
(a)determine whether, in the investigator’s opinion, the complaint should be considered by the Board; and
(b)report the investigator’s findings to the Board.
(3)The investigator may recommend that the Board make an order under section 10215 in respect of the person complained against pending the determination of disciplinary proceedings against that person.
(4)Before the investigator makes a determination that the complaint should be considered by the Board, the investigator or the Registrar—
(a)must send particulars of the complaint to the person complained against; and
(b)must give the person a reasonable opportunity to make written submissions and be heard on the matter, either personally or by that person’s representative.
(5)The Registrar must send a copy of the investigator’s report under subsection (2) to the person complained against and to the complainant.
[29] If the investigator determines that the complaint should be considered by the Board, it must hold a hearing to determine whether it should exercise its disciplinary powers.16 Notice must be given to the person complained against. It must include
14 Plumbers, Gasfitters, and Drainlayers Act 2006, ss 98 and 99.
15 Section 102 provides for the Board to make interim orders for disqualification or suspension for the safety of the public.
16 Section 100(1).
such particulars as will inform that person of the substance of the grounds believed to exist and the hearing date.17 The Board, following the hearing, has a range of disciplinary powers if it is satisfied that the person is guilty of a disciplinary offence.18 These powers include ordering the person’s registration or practising certificate be suspended or limited, as well as imposing fines,19 ordering that the person be censured, or making no order at all.20
[30] The investigator must prosecute the charge unless the Board orders otherwise. The investigator may be represented by counsel21 and the Board may appoint a legal advisor to assist it.22
[31] The Board must observe the rules of natural justice in conducting the hearing and the person complained about is entitled to appear and be heard, either personally or by their representative.23 The Board has the powers of a Commission of Inquiry and may, subject to the rules of natural justice, receive as evidence any statement, document, information, or matter that may in its opinion may assist it to deal effectively with the matter before it, whether or not it would be admissible as evidence in a court of law (the latter is termed the “any evidence provision”).24
The practical process
[32] Once the investigator has reported to the Board that it should consider a complaint the process usually followed was outlined by counsel for the Board as follows:
(a)Issuing of a notice of disciplinary proceedings (setting out the disciplinary offence/s under s 89 of the Act that it is alleged the registered person has committed);
(b)A telephone conference to make timetabling directions;
(c)Sequential exchange of evidence by the parties (ie the investigator and the registered person, here, the applicant);
17 Plumbers, Gasfitters, and Drainlayers Act 2006, s 101.
18 Section 106.
19 Section 106(1)(f): fines not exceeding $10,000.
20 Section 106(1)(f), (g) and (h).
21 Section 114(1)(2).
22 Section 115.
23 Section 112(1)(2).
24 Section 117 (any evidence provision).
(d)Sequential exchange of written submission by the parties;
(e)A hearing in person at which the parties may call witnesses and cross examine the other party’s witnesses and make oral submissions;
(f)A decision by the respondent on whether to find the registered person guilty of a disciplinary offence and, if necessary, a separate process to determine what orders (penalty) should be made.
[33] There is no dispute that the Registrar informed Mr Davis of the general nature of the complaint when it was received,25 by a letter dated 18 July 2017.
[34] Mr Davis was sent a copy of Mr Costelloe’s preliminary report and was invited to make comments/submissions on it within a month. He was advised that the investigator would consider the comments and conduct any further enquires he considered necessary before finalising his report.
[35] The investigator then considered Mr Davis’ detailed submissions and completed his final report. That included a section dealing with those submissions under the heading ‘Response to preliminary report’. The final report includes a determination that in Mr Costelloe’s opinion the complaint should be considered by the Board.
[36] At a telephone conference convened by the Board with the parties to make timetabling orders in November 2018, Mr Davis’ counsel raised a number of jurisdictional and procedural objections about the conduct of the investigation and the report.
[37] In late November 2018, Mr Davis filed an appeal in the District Court against the decision to lay charges which, Mr Hodge submits, was in substance an appeal against the investigator’s determination that the Board should consider the complaint. That appeal has since been withdrawn.
[38] Following unsuccessful negotiations between counsel, Mr Davis decided to file judicial review proceedings. The Board withdrew the notice of disciplinary proceedings, appointed a new investigator (Mr Jason Thomas) and reserved the right
25 Plumbers, Gasfitters, and Drainlayers Act 2006, s 90(3).
of Mr Thomas to take into account any evidence obtained in the previous investigation, including the contested statement.
[39] Those steps, by the Board, were taken on a without prejudice basis. Mr Hodge says the Board made a pragmatic decision to avoid unnecessary litigation and keep the focus on dealing with the substance of Mr Russ’ complaint. That action means that other grounds initially advanced in this review application were no longer relevant. The sole issue now is the use to which the contested statement may be put. The new investigation by Mr Thomas is in progress.
[40] Mr Hodge says the investigation is still at a very early stage of the process. The appropriate course, he says, is to allow the investigation to be completed then if the investigator determines that the Board should consider the complaint the matter would go to a hearing. When the matter is before the Board if the investigator seeks to adduce the contested statement then Mr Davis should raise an objection as to its admissibility. The Board will then be in a position to hear evidence on the point and consider the circumstances in which the contested statement was obtained. The Board would then have the benefit of hearing and testing the evidence. He says that in the context of judicial review, the Court has untested affidavit evidence which is not directed in detail to the circumstances surrounding the obtaining of the contested statement. As there is disagreement between Mr Costelloe and Mr Davis as to what happened, Mr Hodge says it would be inappropriate for this Court to attempt to determine the question of admissibility without the benefit of that evidence.
[41] Mr Hodge also argues that the proper course, and a course outlined by the Supreme Court, Court of Appeal and this Court in analogous situations, is for the decision maker at first instance to hear the arguments concerning admissibility and to deal with them.
[42] In the course of oral argument, Mr Maassen agreed that Mr Costelloe, as part of his investigation, was entitled to speak to Mr Davis about the matters being investigated and to use that input from Mr Davis as to the basis for further inquiries and/or refer to it in his report. This was the usual method of undertaking an investigation and would not trigger the requirements of s 92(4). Mr Maassen said the
difference in this case was that the investigator acted as a prosecutor when he gave selective material (a photo and diagram) to Mr Davis and put it to him that it was Mr Davis, or the staff he supervised, who were responsible for effecting the wrong connection.
[43] In summary the argument is that Mr Costelloe had stepped outside what he was entitled to do as an investigator when he took the contested statement and that he already had made a determination in terms of s 92(2) but without first sending particulars of the complaint to Mr Davis or giving Mr Davis a reasonable opportunity to make written submissions and be heard on the matter, either personally or by his representative.26
[44] It is common ground that Mr Davis was sent Mr Costelloe’s preliminary report for comment, as outlined above and so the requirements under s 92(4) of sending the particulars of the complaint to Mr Davis and giving him a reasonable opportunity to make written submissions were met. Mr Davis made written submissions. However, Mr Maassen’s submission is that, s 92(4) procedure should have been followed before Mr Costelloe obtained the contested statement. He says that failure means the contested statement cannot be used in the new investigation.
The contested statement
[45]The contested statement in Mr Costelloe’s notebook reads as follows:27
Russ v Davis File 14 47454
26/06/18
1450
Onsite interview with Mr Davis at 16a Maire St Palmerston Nth. 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 [ ] Rd Foxton, was connected with the wetback and solar show a return pipes cross connected. I have seen the diagram provided by Mr Harris and the photos taken by Mr Costelloe today of the … cylinder installation and accept this was carried out by Star Plumbing. Diagram sighted and signed by me Mr L Davis.
Yes I agree with this statement.
26 Plumbers, Gasfitters, and Drainlayers Act 2006, s 92(4).
27 Address has been redacted.
Mr Lance Davis RN#11955 Signature [Mr Davis]
[46] In his final report, Mr Costelloe states that Mr Davis in his response to the preliminary report had ‘recanted’ the contested statement. Mr Costelloe refers to Mr Davis’ explanations as well as the material produced by him in support. Following consideration of those matters the report concludes with the investigator’s determination that in his opinion the Board should consider the complaint.
[47] The provisions of s 92(4) are clear. The requirements must be met before the investigator makes a determination that the complaint should be considered by the Board. That determination is made at the time that the investigator’s findings are reported to the Board.28 This point is likely to be reached when the investigator has completed most of his investigation and has prepared a preliminary report. Before the investigator can finalise his report and make a determination as to whether the matter should be considered by the Board, the particulars of the complaint must be sent to the person complained against and that person must be given a reasonable opportunity to make written submissions and be heard on the matter, either personally or by a representative. That person must be sent a copy of the preliminary investigators report.29
[48] Although Mr Maassen had reservations about whether all the rights under s 92(4) were set out in the letter of 18 July 2018 sending the preliminary report to Mr Davis for comment, in general terms he agreed that it largely met with the requirements of s 92(4).
[49] The preliminary investigation report sent on 18 July 2018 clearly outlines the particulars of the complaint. Mr Davis was given the opportunity to make comments on that. He was told that those submissions would be received by the investigator before he conducted any further inquiries that he might consider necessary having heard from Mr Davis and before finalising his report.
28 Plumbers, Gasfitters, and Drainlayers Act 2006, s 92(2).
29 Section 92(5).
[50] Mr Maassen’s reservations in relation to the letter of 18 July 2018 related to a failure to give notice to Mr Davis of his opportunity to make written submissions, be heard, and be legally advised. There was no obligation to advise Mr Davis he was entitled to legal advice. The letter clearly conveyed to Mr Davis that he had a right to respond to the allegations in the preliminary report and such responses would be considered before a final determination was made. The specific rights under s 92(4)(b) do not need to be set out in the words of the subsection. It is sufficient to convey the nature of the rights. This was done. Further evidence of that is apparent from the full submissions made by Mr Davis in response to the letter and report. I am satisfied that the letter sending the preliminary report conveyed to Mr Davis his rights and met the requirements of s 92(4) and (5).30
[51] It is common ground that the general nature of the complaint had been sent to Mr Davis by the Registrar in accordance with the Act when the complaint was lodged in 2017. Mr Costelloe’s investigations took place between November 2017 and 18 July 2018 when the preliminary report went to Mr Davis. The contested statement was made three weeks before 17 July 2018 and formed part of the evidence that Mr Costelloe referred to in his report to the Board. Mr Costelloe’s investigation was not complete until Mr Costelloe made his final determination and report to the Board. This required Mr Costelloe to consider Mr Davis’ comments including Mr Davis’ position on the contested statement. This occurred as is apparent from the final report. The final report is dated 15 August 2018, a month after the preliminary investigation report.
[52] Mr Maassen suggested that Mr Costelloe had made a determination before he obtained the contested statement and was merely seeking the final evidence to support that determination. There is nothing to suggest that was the case. In any event bias or predetermination by Mr Costelloe in the public law sense are not put forward as grounds for this review.
[53] It is apparent that the circumstances in which the contested statement was obtained are in dispute. For instance, the Statement of Claim alleges that Mr Costelloe
30 Section 92(5) of the Act requires a copy of the report to be sent to the person complained about.
exerted unnecessary and unjustified pressure on Mr Davis to deal with the matter on the spot, that he was improperly pressured to sign it and that Mr Costelloe had prepared it in advance for that purpose. Mr Davis said he felt under duress to sign it.
[54] On the other hand Mr Costelloe denies applying any pressure to Mr Davis to make him sign the contested statement. He specifically denies that he arrived at the property with a prepared statement. His evidence was that there was no pressure and he explained to Mr Davis that the did not have to sign the contested statement. Mr Costelloe says Mr Davis nevertheless agreed to sign it. Therefore, there is a direct conflict of evidence which cannot be reconciled by this Court.
[55] In my view, the requirements set out in s 92(4) were not breached when in the course of the investigation Mr Costelloe obtained the contested statement from Mr Davis. That provision allows the person complained about the right to make submissions and be heard before the investigator makes the determination. Mr Davis was given ample opportunity to comment on the contested statement and did so when he was asked for submissions on the preliminary report. His submissions were considered as is apparent from the final report. The statutory process has been followed.
[56] Whether or not the contested statement is admitted as evidence will be a matter for the Board if the investigator seeks to adduce it. It will consider admissibility informed by the evidence before it. It will need to consider the context and the surrounding circumstances as well as the actions of Mr Costelloe and Mr Davis. That consideration will be with the benefit of appropriately focused evidence and cross- examination, as well as submissions by both parties. The admissibility of the contested statement as evidence should not be determined by this Court without the benefit of that evidence. In any event it is not certain that the investigator will rely on it or seek to adduce the contested statement as evidence before the Board.
[57] Mr Hodge also submitted that judicial review was not appropriate in a case where an appeal is available.
[58]The Supreme Court in Tannadyce summarised the position as follows:31
[15] This line of authority is consistent with the approach taken to challenges to administrative decision in areas other than taxation. New Zealand courts are generally reluctant to entertain judicial review where there is a right of appeal against a statutory decision both on questions of law and where the remedy of appeal provides more appropriate process. The court may, for instance, refuse to grant relief in the exercise of its discretion where the merits of a decision can be better recognised under a statutory appellate process, which adequately protects the appellant’s interests. Much depends on the context and whether the statutory process provides the more convenient and effective method for seeking redress in the particular case.
[59] If there was a fundamental error of law that showed the decision making had gone off-track, judicial review might be a suitable remedy. Mr Maassen submits that this is such a case. However, here the investigation has not been completed and there may or may not be a determination that the Board should consider the matter. If the charges were presented there would be a full hearing before a Board acting subject to the requirements of natural justice. Following the decision by the Board there are some appeal rights to the District Court and from there to the High Court on questions of law. This is not a case where there is any indication that the decision making has gone seriously off-track.
[60] I accept Mr Maassen’s submissions that judicial review is appropriate for the supervision of public decision makers. However, this case is not one in which the decision maker has made any errors. There are no grounds for this Court, on judicial review, to interfere with the investigation or the Board’s process.
[61] As a final point, a number of other allegations were raised but were not specifically pursued at the hearing. They are set out at [11] and included such matters as Mr Costelloe not providing a warrant authorising him to exercise the powers of investigator. The Act sets out the circumstances in which such requirements must be met.32 Those circumstances were not present here.
31 Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR 153 at [15] (footnotes omitted).
32 For instance, when entering premises without consent. See [24]
Conclusion
[62] Section 92(4) sets out statutory requirements based on fairness before a determination is made that a complaint should be considered by the Board. They were not breached at the time the contested statement was obtained by the investigator from Mr Davis. The investigator was exercising his investigatory function at the time the contested statement was obtained. He was entitled to speak to Mr Davis and obtain statements whether in writing or otherwise in the course of the inquiry. Therefore, the investigator met the requirements of s 92(4) on completion of the preliminary report. Mr Davis had the opportunity to comment on the contested statement when asked for submissions on the preliminary report. Mr Davis’ submissions were taken into account in the final report.
[63] The question of whether the statement was obtained in circumstances which would make it improper or unfair to allow the statement to be adduced in evidence is a matter of admissibility. That issue must be dealt with by the decision maker, in this case, the Board, if the investigator seeks to adduce the contested statement. The Board will have the benefit of seeing and hearing contested evidence on the issue. This Court does not have that advantage.
[64] In any event, it would be inappropriate and premature for this Court to interfere with the process by way of judicial review. The statutory regime provides for the process of investigation, disciplinary charges to be heard at first instance by the Board and then for various appeals.
[65]The application for judicial review is dismissed.
[66] In accordance with the request of counsel, costs are reserved. If the parties are unable to agree on costs, any application together with supporting submissions, should be filed by way of memorandum on or before ten days from the date of this decision. Any response should be filed within a further ten days and any reply to that response should be filed within a further three days.
Grice J
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