Plumbers, Gasfitters & Drainlayers Board v Jopson
[2014] NZHC 1487
•27 June 2014
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CRI 2014-476-000004 [2014] NZHC 1487
PLUMBERS, GASFITTERS & DRAINLAYERS BOARD Appellant
v
KURTIS JOPSON Respondent
Hearing: 27 June 2014 (Heard in Dunedin) Counsel:
A S McIntyre for Appellant
W I Dean for RespondentJudgment:
27 June 2014
JUDGMENT OF WHATA J
[1] Kurtis Jopson placed lengths of pipe in a trench to save time for a drainlayer. He was charged with doing or assisting in doing drainlaying work while not authorised under s 10 of the Plumbers, Gasfitters and Drainlayers Act 2006 (“the Act”). Judge Maze was not satisfied beyond reasonable doubt that Mr Jopson intended to place pipes so that they created (or would create when he completed his planned action) an artificial conduit for waste water. The charge was dismissed.
[2] This matter comes before me by way of case stated as to whether Judge
Maze’s decision was erroneous in point of law.
Facts
[3] The following facts for the purposes of the case stated have been proven:
PLUMBERS, GASFITTERS & DRAINLAYERS BOARD v JOPSON [2014] NZHC 1487 [27 June 2014]
(a) At all relevant times Mr Jopson lacked registration as a drainlayer under the Act and the informant Board has not issued him with a practising licence;
(b)On 24 May 2012 the defendant was present at the Lynburn Farm and placed lengths of pipe into a trench;
(c) That trench had been dug previously by another contractor for the purpose of housing a drain to convey effluent from a dairy shed to an effluent disposal system;
(d)The defendant checked levels and then placed the pipes within the trench;
(e) The defendant did not connect the pipes; and
(f) There was no evidence that the defendant intended to do anything else.
[4] In reaching the conclusion that Mr Jopson did not commit an offence against s 123(1)(b) of the Act in that he did, or assisted in doing drainlaying while not authorised under s 10 of the Act, the Judge found that:
(a) “Laying a drain” (refer s 4 of the Act) requires an intention to create a drain, and therefore drainlaying is a deliberate act by which you intend to create an artificial conduit for waste water.
(b)“Laying a drain” means deliberately putting pipes in a selected position with the intention at that time of joining them together in that position so as to create an artificial conduit for waste water.
(c) The informant must prove beyond reasonable doubt that this defendant intended to embark upon drainlaying when he placed those pipes in the trench.
(d)Since the informant had not proven beyond reasonable doubt that the defendant intended at the relevant time to lay a drain (as defined above) the informant had not proved beyond reasonable doubt that the defendant was drainlaying at all.
(e) There being no other evidence of the defendant doing, or assisting in doing drainlaying, the information was dismissed.
Statutory frame
[5] Drainlaying is regulated by the Plumbers, Gasfitters and Drainlayers Act
2006. Section 3 sets out the purposes of the Act as follows:
3 Purposes of this Act
The purposes of this Act are-
(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 sanitary plumbing, gasfitting, and drainlaying.
[6] Section 10 of the Act then provides:
10 Restrictions on doing or assisting with drainlaying
(1) A person must not do any drainlaying, or assist in doing any drainlaying, unless that person is authorised to do so under this section.
(2) The following persons may do drainlaying, or assist in doing drainlaying, within the limits prescribed in regulations (if any):
(a) a registered person who is authorised to do, or assist in doing, the work under a current practising licence; or
(b) a person who is authorised to do, or assist in doing, the work under a provisional licence.
(3) A person does not do any drainlaying, or assist in doing any drainlaying, in breach of this section if that work is done in accordance with sections 12 to 27.
(4) Subsection (1) is subject to subsection (3) and sections 11 to 27.
[7] Relevantly, s 25 states:
25 Exemption for drainlaying under supervision
A person may do, or assist in doing, any drainlaying if-
(a) the work done by that person is carried out under the supervision of a person who holds a current practising licence that authorises the person to supervise the work; and
(b) the work is tested by the person who supervises the work to ensure-
(i) that the work has been performed competently; and
(ii) that the completed work complies with the requirements of regulations under this Act and regulations under the Building Act 2004.
[8] Plainly the object of s 10 is to prohibit drainlaying by an unregistered person without the supervision of a person holding a practising certificate.
[9] Section 123 then provides it is an offence to breach s 10 as follows:
123Offences to engage in work in breach of sections 8 to 10 and to employ person to do work in breach of those sections
(1) Every person commits an offence and is liable on conviction to a fine not exceeding $10,000 who does, or assists in doing, any-
…
(b) drainlaying in breach of section 10.
…
(3) Every person who employs any person under a contract of service to do, or assist in doing, any sanitary plumbing or drainlaying in breach of section 8 or 10 commits an offence and is liable on conviction to a fine not exceeding $10,000.
…
[10] Drainlaying means:
(a) laying a drain:
(b) altering, reconstructing, extending, repairing, opening-up, or renewing a drain or a fitting connected to a drain:
(c) fixing or unfixing a drain to or from a sewage tank:
(d) fixing or unfixing a gully-trap or other trap in connection with a drain or sewage tank
[11] Drain is then defined as follows:
(a) means a pipe or series of pipes constructed or laid for the conveyance of foul water, stormwater, or industrial liquid waste; but
(b) does not include-
(i) a pipe or series of pipes that is vested in or under the control of or maintained by the Crown or by a local authority; or
(ii) an open jointed or perforated drain for the collection and removal of ground water or a downpipe for the conveyance of water from the roof of a building
[12] While the combined meaning of drain and drainlaying literally involves “laying” pipes “laid”, it is tolerably clear that for present purposes drainlaying means laying a pipe or series of pipes for the conveyance of foul water, stormwater or industrial liquid waste. It is therefore an offence under s 123 for an unregistered person to lay a pipe or to assist in laying a pipe for the conveyance of the specified substances, unless that person is supervised by a person who holds a practising certificate.
Argument for the appellant
[13] Mr McIntyre for the appellant submits that:
(a) The placing of lengths of pipe in position for use as part of a drainage system falls within the first limb of the definition of “drainlaying”;
(b)This definition is said to better reflect the statutory language, the scheme and the public health and safety purpose of the Act.
(c) There are various hazards associated with defective drains, further emphasising the public importance of compliant drainlaying.1
(d)The Judge’s decision could lead to absurdity including a situation where an unauthorised person could lay several lengths of pipe in a trench, connect those pipes to a point of disposal, fill in the trench and
prepare the installation for connection to a dwelling but provided the
1 Including rupture caused by use of inappropriate materials, rupture caused by inappropriate film material contact with sharp objects, rupture caused by improper bedding, risk of trench collapse, risk of backflow and cross-contamination, a risk of cross-contamination or electrocution arising from proximity to other services.
final connection was not made, could not be said to have intended to make the connection and therefore be said to be drainlaying.
(e) Non compliance with s 10 of the Act is a public welfare regulatory offence,2 attracting strict liability and thus the Judge erred by importing the requirement to show an intention to create an artificial conduit for waste water.
Argument for the respondent
[14] Mr Dean for the respondent contends, in short, that the placing of lengths of pipe in position as part of a drainage system does not fall within the definition of drainlaying. He submits that the definition of drain hinges on the word conveyance, that is, to convey or lay a pipe and to be in breach of the Act must mean the pipe is capable of conveying. Lengths of pipe that are not joined or connected to any other drain at entry and exit points are not able to convey. He thus submits that the appeal fails on the definition of conveyance.
[15] Mr Dean also rejects any suggestion of ambiguity and uncertainty in Judge Maze’s definition. The critical assessment is whether there was an intention to lay pipes for the purpose of conveyance and there was none here.
[16] Overall Mr Dean submits that the actions of the respondent were not enough to enable the conveyance of anything and therefore did not attract sanction under the Act.
Assessment
[17] In my view the offending falls into the class of public welfare regulatory offences attracting strict liability. In particular I am satisfied that s 10(1) meets the qualifying criteria for such offences as essayed in the still seminal decision of the
Court of Appeal in Civil Aviation Department v Mackenzie3 namely:
2 Citing Civil Aviation Department v MacKenzie [1983] NZLR 78 (CA).
3 Civil Aviation Department v MacKenzie, above n 2.
(a) The section is aimed at public safety – s 10 plainly gives effect to the express statutory purpose of the Act to protect the health and safety of members of the public by ensuring the competency of persons engaged in drainlaying services;
(b)The sanctions provided under the Act are serious – s 123 mandates a maximum fine of $10,000;
(c) The emphasis of the section is on the act not the actor – s 10 focuses on the act of drainlaying by unregistered persons;
(d)The section exculpates a person who proves absence of fault – while s 10 does not strictly meet this criterion, s 10 is not engaged if, in accordance with s 25, the drainlaying was done under the supervision of an authorised person, further emphasising the object of the section to ensure work is undertaken competently.
[18] I think it is also apt to recall the principles underlying public welfare regulatory offences. As Richardson J stated:4
Liability under legislation of this kind rarely turns on the presence or absence of any particular state of mind. But in social policy terms compliance with an objective standard of conduct is highly relevant. Courts must be able to accord sufficient weight to the promotion of public health and safety without at the same time snaring the diligent and socially responsible. The principle of English criminal law that the burden of proof of a requisite mental state rests on the prosecution is not whittled down where in matters of public welfare regulation in an increasingly complex society the defence of due diligence is allowed because it is recognised that the price of absolute liability is too high. Second, as was emphasised in Sault Ste Marie, the defendant will ordinarily know far better than the prosecution how the breach occurred and what he had done to avoid it. In so far as the emphasis in public welfare regulations is on the protection of the interests of society as a whole, it is not unreasonable to require a defendant to bear the burden of proving that the breach occurred without fault on his part.
[19] Regrettably it appears that the authorities dealing with public welfare regulatory offences were not put to the Judge. In any event, in light of those
authorities, I am unable to agree with the Judge that the Board was required to prove
4 At 85.
beyond reasonable doubt that Mr Jopson “intended” to lay a drain in breach of s 10. Rather, the Board had to prove beyond reasonable doubt that Mr Jopson was drainlaying, that he was not registered to do so, and if raised as a defence with supporting evidence, that he was not under the supervision of an authorised person. These are issues of fact and Mr Jopson’s intention to breach s 10 is not an element of the offending. Mr Jopson may still raise absence of fault as a defence (if applicable), for example by proving on the balance of probabilities that he took all reasonable steps to avoid engaging in an act of drainlaying or to secure appropriate supervision.
[20] I reject the respondent’s submission that there must be some evidence of capacity to convey at the time of discovery. The reference to conveyance is definitional, that is, describing the class of prohibited piping rather than describing the state which the piping must have reached for the purposes of culpability. Further, the legislation quite clearly seeks to regulate not only the final act enabling conveyance, but also acts which assist in achieving that outcome. Plainly there needs to be sufficient evidence to demonstrate that the pipes were laid in a way that will assist in the completion of a drain that will convey the proscribed substance. That is an assessment of fact in each case. But it is not necessary to prove that the pipes so laid were capable at of conveyance at the time of discovery. I also think little is gained from delving into the underlying meaning of “lay” or “laying”. This statutory concept is a term of common usage and should not be made unduly
complicated by putting a gloss on it. The key inquiry is whether a qualifying5 pipe
has been laid or not.
Outcome
[21] The Judge erred in holding that the Board must prove beyond reasonable doubt that that this defendant intended to embark upon drainlaying when he placed pipes in the trench. Rather the Board must prove beyond reasonable doubt that Mr Jopson was in fact laying a qualifying pipe and, that he was not registered to do so. Hypothetically speaking it may have been available for Mr Jopson to provide
evidence that he was under qualified supervision and in which case the Board would
5 In my oral judgment I referred to “prohibited” pipe. Later I refer to “qualifying” pipe. To avoid confusion, I have amended the reference to “qualifying” in line with the subsequent reference.
then need to prove that he was not. Again, hypothetically Mr Jopson could have raised by way of defence that he took all reasonable steps to avoid the act of drainlaying and/or to ensure that he was supervised.
[22] I addressed counsel on the proper form of relief and it was agreed that this matter needed to be brought to a conclusion and it was appropriate for me to consider whether Mr Jopson committed an offence and then to sentence him. On the facts as stated and in light of the evidence, I am satisfied beyond reasonable doubt that Mr Jopson committed an offence in terms of s 123. He was plainly laying pipes for the purposes of enabling the conveyance of effluent. I accept, however, Mr Dean’s submission that the drainlaying process was in the very early stages. I also find that Mr Jopson took some care to ensure that what he was doing conformed to instructions from a qualified person and that he understood the drainlaying would be checked by a qualified person. There is no suggestion that he knowingly acted in breach of s 10. Accordingly, his overall culpability is very low. I am also conscious that he is a young man without any prior relevant offending.
[23] Given these factors I am of the view that Mr Jopson should be discharged without conviction but as is ordinarily done he should pay the usual costs incurred at the District Court level.
Solicitors:
DAC Beachcroft New Zealand, Wellington
Dean & Associates, Oamaru
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