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High Court of New Zealand Decisions |
Last Updated: 12 September 2018
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
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CIV-2017-485-953
[2018] NZHC 2299 |
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BETWEEN
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KEVIN ANGUS
Appellant
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AND
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PLUMBERS, GASFITTERS AND DRAINLAYERS BOARD
Respondent
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Hearing:
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28 February 2018
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Appearances:
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C J Griggs for Appellant M J Hodge for Respondent
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Judgment:
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31 August 2018
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JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 31 August 2018 at 5 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: ...................................
Solicitors: Meredith Connell, Crown Solicitor, Auckland Counsel: C J Griggs, Wellington
ANGUS v PLUMBERS, GASFITTERS AND DRAINLAYERS BOARD [2018] NZHC 2299 [31 August 2018]
[1] This is an appeal against a decision of Judge S M Harrop in the District Court at Wellington.1
[2] Mr Angus, the appellant, had appealed to the District Court against what he submitted was a decision made by the Plumbers, Gasfitters, and Drainlayers Board (“the Board”) to decline to register him as a “certifying plumber” under the Plumbers, Gasfitters, and Drainlayers Act 2006 (“Act”).
[3] The Judge held that the decision complained of was not such a decision by the Board, and thus fell outside those decisions of the Board that may be appealed to the District Court. Accordingly, the Judge dismissed the appeal on the basis he had no jurisdiction to hear the case.
[4] Mr Angus now appeals to this Court on a question of law, namely whether the Judge’s decision was correct.2
Background
[5] Mr Angus is registered as a “tradesman” plumber under the Act, and so must be supervised if carrying out particular types of work. A certifying plumber need not be supervised, hence Mr Angus’s wish to be registered as such.
[6] The Board is constituted by the Act and has a range of functions, including the prescription and notification of minimum standards a person must meet to be registered in the class of their choosing.3 At the time relevant to this appeal, the minimum standards had been notified in the Plumbers, Gasfitters, and Drainlayers Board (Plumbing Registration and Licencing) Notice 2010 (“notice”).4
[7] One minimum standard prescribed for registration as a certifying plumber was, and in fact remains, passing examination 9195 (“exam”), with 60 marks constituting a pass. Mr Angus sat the exam in June 2012 and, after two reconsiderations, he
1 Angus v Plumbers, Gasfitters and Drainlayers Board [2017] NZDC 24136.
2 Plumbers, Gasfitters, and Drainlayers Act 2006, s 169(1).
3 Sections 30(1) and 137(c).
4 The 2010 notice was superseded by a notice issued in 2016 but nothing turns on that.
achieved 59 marks, so he failed by one. Mr Angus sat the exam again in November 2012 but only got 48 marks. It is apparent from the evidence that Mr Angus has difficulties with the examination process but that is immaterial to the issue before me.
[8] Mr Angus considers that he was entitled to at least 60 marks in the June 2012 exam, and that he has not been awarded marks for several questions he believes he answered correctly. Mr Angus has tried to persuade the Board of this but has not been able to do so.
[9] By letter dated 29 April 2013, Mr Angus asked the Board for an exemption from the requirement to pass the exam.5 On 1 July 2013, the Registrar advised Mr Angus of the Board’s preliminary decision to decline him an exemption, and its reasons for doing so. Mr Angus was invited to comment, and did so by letter dated 31 July 2013, but the Board’s decision was unchanged. This was communicated to Mr Angus by letter dated 15 August 2013.
[10] Some two and a half years later, Mr S Taylor, a solicitor acting for Mr Angus, wrote to the Board on 4 March 2016 and that led to correspondence during the next 12 months about whether Mr Angus was entitled to more marks in the June 2012 exam. During this time, Mr Taylor supplied an opinion from a Mr Lourens to the effect that several of Mr Angus’s answers in the exam were correct, but had been marked as wrong. On 31 January 2017, the Board advised Mr Taylor that it did not agree with Mr Lourens and would not be increasing Mr Angus’s mark.
[11] Mr Angus then instructed another solicitor, Mr M Stephens, who wrote to the Board on about 29 March 2017. Mr Stephens’ letter repeated that Mr Angus considered he was entitled to additional marks on several questions, gave a full account of the questions and answers, and concluded by asking for an additional mark or marks.
[12] It is the Board’s response of 10 April 2017 that is said to have conveyed its decision or “part of” its decision to decline Mr Angus’s application for registration as a certifying plumber. The response was:
...
The Board does not accept that Mr Angus is entitled to any additional marks on his June 2012 9195 examination for the reasons provided to him in November 2012.
With regard to your comment that the Board is in breach of section 23 of the Official Information Act by not providing Mr Angus with reasons for its decision not to accept the opinion of Mr Lourens, I refer you to the Board’s letter to Mr Taylor of 31 January 2017 (copy attached). In that letter I advise that nothing Mr Lourens has put forward changes the Board’s views or convinces the Board that there should be any further consideration of Mr Angus’ concerns.
I would point out that if Mr Angus wished to be able to apply to be registered as a Certifying Plumber and work unsupervised, it has always been open to him to try resitting the 9195 examination in an attempt to obtain a pass mark. It is not uncommon for Tradesmen Plumbers to have to sit this examination more than once before they are successful in passing. Mr Angus has chosen to repeatedly attempt to change his final mark from the June 2012 9195 examination rather than chose this option.
[13] Mr Angus filed an appeal to the District Court. He did so on the ground that he was:
... appealing against the decision of [the Board] on 10 April 2017 to decline to register the appellant as a certifying plumber on the grounds that the appellant did not obtain a pass mark in the June 2012 [exam].
[14] The decisions in respect of which a person has a right of appeal to the District Court are listed in s 162 of the Act:
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 ...
(b) any decision of the Board to decline to issue a limited certificate ... or to ... renew the limited certificate ...
(c) any decision of the Registrar to decline to issue a 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 ...
(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).
[15] Section 162(3) provides that s 162(1) does not confer a right of appeal against a decision under ss 28 to 35 of the Act. These provisions are concerned with the Board’s designation of classes of registration, the work such registration permits a person to undertake, and prescription of the minimum standards to which I have referred.
[16] Section 164 is concerned with the procedure to be adopted on appeal and the relief that may be granted, and s 164(3) makes it clear that the Court has no power to determine any matter other than that raised by the appellant:
164 Procedure on appeal
(1) Every appeal under section 162 must be heard as soon as practicable after the appeal is lodged.
(2) On the hearing of an appeal under section 162, the District Court may—
(a) confirm, reverse, or modify the decision, direction, or order of the Board or the Registrar; or
(b) give any decision, or make any direction or order, that the Board or the Registrar could have given or made in respect of the matter.
(3) Nothing in this section gives the District Court power to review any part of the decision, direction, or order of the Board or the Registrar other than the part against which the appellant has appealed.
(4) Subject to section 169, the decision of the District Court on any appeal under section 162 is final.
[17] The Board submitted to the Judge that the Board’s letter of 10 April 2017 did not evidence a decision within s 162(1)(a), and that the Judge did not have jurisdiction
to determine the appeal. The Judge accepted that submission and the issue is whether he erred in doing so.
[18] The statutory provisions governing the process of registration are ss 36, 37, 40 and 41.
[19] Section 36 provides that a person is entitled to be registered in their chosen class if he or she:6
36 Entitlement to registration
... 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 [disciplinary] 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).
[20] Section 37 provides for the making of an application for registration:
37 Applications for registration
(1) An application for registration ... must—
(a) be sent or delivered to ...
(i) the Registrar; or
(ii) the Electrical Workers Registration Board ...
(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
6 Section s 106, referred to in s 36(c), is concerned with disciplinary proceedings.
(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.
[21] Sections 40 and 41 make provision for the Board’s consideration and determination of an application lodged under s 37:
(a) Board to consider application
(1) The Board must consider each application for registration ... as soon as practicable after receiving it.
(2) In considering an application for registration ... 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.
(b) Board to register applicant or decline application
(1) If the Board is satisfied that the applicant is entitled, under section 36, to be registered ... the Board must direct the Registrar to—
(a) register the applicant ...
...
(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 the District Court against the
decision.
...
[22] In summary, a person applies in the manner set out in s 37(1), the Registrar refers the application to the Board under s 37(2), and the Board considers that application in accordance with the requirements of s 40. The outcome of that
consideration will be either that the Board is satisfied as to the four criteria in s 36, in which case registration follows under s 41(1), or it is not. In that case, s 41(2) requires the Board to decline the application and to notify the applicant of their right of appeal. This right of appeal is the right referred to in s 162(1)(a), which I repeat for ease of reference:
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 ...
[23] It is common ground that Mr Angus has not made an application under s 37, hence the Board’s submission to the Judge and to me that the Board has not, and could not, have made a decision under s 41(2)(a).
[24] Mr Griggs, counsel for Mr Angus, makes two submissions in response.
[25] The first is that the Board’s decision not to award Mr Angus any more marks is, in effect, part of a decision to decline him registration under s 41(2). The refusal to award more marks means that any application for registration that Mr Angus does make will be declined, if not rejected by the Registrar before even being referred to the Board. Mr Griggs submits that it would be pointless to require Mr Angus to apply in the manner provided for in s 37, including payment of the fee, when one or other of these outcomes is inevitable. In support of this submission, Mr Griggs referred me to Sanford Ltd v The Chief Executive of the Ministry of Fisheries.7 In that decision, Clifford J made observations on the point at which a decision becomes sufficiently final for it to be amenable to review.8 The Court observed that the in-principle decision made in that case by the Chief Executive was sufficiently complete and definite to constitute an exercise of a statutory power.
8 At [108]–[113].
[26] Mr Griggs’ second submission is that it cannot have been Parliament’s intention that a person, such as Mr Angus, would not have a right of appeal in the present circumstances, ie to preclude Mr Angus from having recourse to the Court to determine a dispute as to whether or not he has in fact met the minimum standards.
[27] I do not accept these submissions because, in my view, s 162(1) is very clear and does not encompass the decision that Mr Angus wishes to contest.
[28] Section 162(1)(a) gives a right of appeal against a refusal under s 41(2). As a matter of statutory interpretation, it does not give a right of appeal against a decision on a separate but related matter, on the grounds that decision renders an “appealable decision” likely or even inevitable. If any indication were required that s 162 is to be applied strictly, and in a confined manner, then it is to be found in s 164(3).
[29] It is not uncommon for Parliament to restrict the decisions of an industry body that may be appealed to the Court. Presumably that is because Parliament considers that some decisions are best left to those in the particular industry. For instance, and on a very superficial search of www.legislation.govt.nz, s 162(1) has equivalent provisions in other legislation governing qualifications and registration, such as 106(1) Health Practitioners Competence Assurance Act 2003; s 38 Registered Architects Act 2005; s 24 Auditor Regulation Act 2011; s 64 Veterinarians Act 2005; and s 64 Motor Vehicle Sales Act 2003. No doubt there are others. Parliament’s intention to restrict rights of appeal to the Courts to specific matters must be respected.
[30] As to Sanford Ltd v The Chief Executive of the Ministry of Fisheries, the present case is quite different. Quite aside from the fact that Sanford was an application for review, the Board has not made any decision under s 41 – in principle or otherwise – and nor could it, given the absence of any application for registration.
[31] Given these matters, I am satisfied that the Judge was correct in determining that the decision Mr Angus seeks to appeal falls outside s 162(1)(a) and that he did not have jurisdiction to determine the matter.
[32] This is sufficient to dispose of the appeal but I wish to express my reservations about two particular observations of the Judge to which Mr Griggs referred me. These observations were no doubt intended to assist the parties but were not strictly necessary to the decision.
[33] The first of these was in respect of s 37(2). The Judge expressed the view that the Registrar would be bound to reject any application for registration not evidencing that the minimum standards were satisfied. Mr Griggs submits that s 37(2) requires the Registrar to forward all applications to the Board, possibly subject to payment of the fee or other matters of form. The matter was not argued in any detail before me because it was not of any real consequence to the appeal. However, I likewise have reservations as to whether the Registrar could, let alone would be required to, reject an application for registration other than on the grounds to which I have referred.
[34] The second is a statement by the Judge that decisions on the marking of examinations, generally or on the particular points raised by Mr Angus, may not constitute decisions of the Board. This was on the basis of evidence that the Board’s practice is to have exams set and marked by sufficiently qualified third parties, and those third parties make the relevant decisions.
[35] I note that one of the Board’s statutory functions is to “make arrangements for the examination of persons practising or intending to practise the sanitary plumbing ... trades”. The Board is also required to carry out any functions “incidental” to that function.9
[36] Again, there was no detailed argument on this point but Mr Griggs submits that, however the Board fulfils its obligations, the relevant decisions remain those of the Board. I do not need to decide this point but again I think Mr Griggs likely to be correct.
9 Plumbers, Gasfitters, and Drainlayers Act 2006, s 137(l) and (t).
[37] The second issue before the Judge, and before me, was whether Mr Angus had lodged his appeal in time, that is within 20 working days of notice of the decision, subject to any additional time allowed by the District Court.10 The Judge did not address this issue, given his decision on the first issue, and likewise it is unnecessary for me to do so.
[38] I dismiss this appeal for the reasons given.
[39] I did not hear submissions on costs. In the absence of agreement, the Board may file submissions within 21 days of the date of this judgment and Mr Angus within 14 days thereafter.
Peters J
10 Section 163.
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