ANGUS v PLUMBERS, GASFITTERS, AND DRAINLAYERS BOARD [2020] NZCA 303

ANGUS v PLUMBERS, GASFITTERS, AND DRAINLAYERS BOARD [2020] NZCA 303 [21 July 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA259/2020[2020] NZCA 303BETWEEN KEVIN ANGUSApplicantAND PLUMBERS, GASFITTERS, ANDDRAINLAYERS BOARDRespondentCourt: Gilbert and Courtney JJCounsel: C J Griggs for ApplicantM J Hodge and R W Belcher for RespondentJudgment:(On the papers)21 July 2020 at 3.30 pmJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The applicant must pay costs to the respondent for a standard application ona band A basis and any usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] The respondent, the Plumbers, Gasfitters, and Drainlayers Board (the Board),has prescribed minimum standards for registration of a person as a "certifyingplumber".1 One requirement is that the applicant must have passed a certifying1 The legislative instrument in force at the relevant times was initially the Plumbers, Gasfitters, andDrainlayers Board (Plumbing Registration and Licensing) Notice 2010. This was superseded bythe Plumbers, Gasfitters, and Drainlayers Board (Plumbing Registration and Licensing) Notice2016 but this made no change to the minimum standards.plumbing examination set by the Board.2 The applicant, Mr Angus, has beenattempting since 2012 to obtain registration as a certifying plumber despite havingfailed this examination and therefore not meeting this mandatory requirement. Ratherthan taking up numerous invitations to re-sit the examination, Mr Angus has sought toovercome the problem through litigation.[2] In 2017, Mr Angus appealed to the District Court against what he contendedwas a "decision" by the Board to decline to register him. Judge Harrop pointed outthat there was no such decision because Mr Angus had not applied for registration,recognising he was not eligible to apply having failed the examination. Instead,Mr Angus was in effect attempting to appeal against his examination result:3[5] Mr Angus has not applied for registration as a certifying plumberbecause, not having complied with one of the minimum standards, hisapplication would inevitably be unsuccessful. However he has now appealedagainst what he says is the "decision" to decline to register him, most recentlyconfirmed by letter from the Board dated 10 April 2017. He contends that, forthe 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 2012examination. He asks the Court to set aside the Board's decision not toregister him as a certifying plumber and seeks a direction that it reconsidershis application [f]or registration without further delay on the basis that he didachieve a pass mark in the examination.[3] The letter from the Board dated 10 April 2017, the subject of the appeal,advised Mr Angus that he was not entitled to any additional marks on his June 2012examination results.[4] Mr Angus appealed to the High Court against Judge Harrop's decision.The appeal was dismissed by Peters J on 31 August 2018.4 In agreement withthe District Court, Peters J found that no registration decision amenable to appealunder s 162(1)(a) of the Plumbers, Gasfitters, and Drainlayers Act 2006 (the Act) hadbeen made.5[5] On 4 September 2018, Mr Angus submitted to the Registrar of Plumbers,Gasfitters, and Drainlayers an application for registration as a certifying plumber.2 Clause 2.3 Angus v Plumbers, Gasfitters, and Drainlayers Board [2017] NZDC 24136.4 Angus v Plumbers, Gasfitters, and Drainlayers Board [2018] NZHC 2299.5 At [31].The Registrar replied on 19 September 2018 advising that the application was declinedbecause it was not accompanied by proof that Mr Angus had passed the requisiteexamination. This information must be provided with an application for registrationin terms of s 37(1) of the Act.[6] Mr Angus appealed against this decision to the District Court. The appeal wasdismissed by Judge Tompkins on the basis there was no jurisdiction to entertain it.6[7] Dissatisfied with that outcome, Mr Angus appealed to the High Court.The appeal was dismissed by Clark J on 29 April 2020.7 The Judge consideredthe District Court was correct to dismiss the appeal for lack of jurisdiction.8However, even if Judge Tompkins had erred on the jurisdiction issue, Clark J said shewould not have remitted the matter back to the District Court because Mr Angus'application for registration could not succeed without a pass mark in the qualifyingexamination.9[8] Mr Angus now applies for leave to bring a further appeal to this Court.This would be a fifth appeal on the topic of whether Mr Angus should be registered asa certifying plumber despite being ineligible to apply for such status until he passesthe requisite examination.[9] The grounds of the proposed appeal are:(a) The High Court made findings on questions of law which were notconsidered by the District Court and not stated as questions of law onthe appeal as required under s 169(1) of the Act.(b) The High Court was wrong to find that the District Court lackedjurisdiction to determine the appeal.6 Angus v Plumbers, Gasfitters and Drainlayers Board [2019] NZDC 18934.7 Angus v Plumbers, Gasfitters and Drainlayers Board [2020] NZHC 835.8 At [64].9 At [74].[10] If leave is granted and the appeal succeeds, Mr Angus seeks an order fromthis Court remitting his appeal back to the District Court for re-hearing.[11] The Act provides in s 162(1)(a) for a right of general appeal tothe District Court from a decision of the Board declining registration:162 Appeals(1) A person who is dissatisfied with the whole or any part of any ofthe following decisions, directions, or orders may appeal tothe District Court against the decision, direction, or order:(a) any decision of the Board to decline to register the person orto decline to issue a licence to the person or to decline torenew the licence of the person:[12] Section 169 of the Act makes provision for a further appeal to the High Courton a question of law:169 Appeal on question of law(1) If, in respect of any appeal under section 162, the Board orthe Registrar or the appellant is dissatisfied with any decision ofthe District Court as being erroneous in point of law, the Board orthe Registrar or the appellant may appeal to the High Court onthe question of law only.(2) Every appeal under this section must be heard and determined inaccordance with rules of court.(3) Subpart 8 of Part 6 of the Criminal Procedure Act 2011 applies as faras applicable with the necessary modifications to every appeal underthis section.[13] There is an issue as to how the appeal provisions in the Act mesh with those insub-pt 8 of pt 6 of the Criminal Procedure Act 2011 (the CPA). Mr Griggs, forMr Angus, submits that the High Court was the first appeal court for the purposes ofs 303 of the CPA and there is therefore the prospect of a further appeal to this Courtwith leave. By contrast, Mr Hodge, for the respondent, submits that as the Board madethe decision under challenge, the District Court was the first appeal court andthe decision of the High Court as the second appeal court is final. On Mr Hodge'sinterpretation, there is simply no right of further appeal to this Court under the Act.[14] We do not need to resolve this issue for the purposes of the present application.Mr Hodge may well be right that there is no jurisdiction for this Court to entertainthe appeal in any event. However, even assuming in Mr Angus' favour, but withoutdeciding the point, that the first appeal court for CPA purposes was the District Court,this Court could not give leave for the proposed second appeal unless satisfied that itraises a matter of general or public importance or a miscarriage of justice may haveoccurred or may occur unless the appeal is heard.10 These criteria are plainly not metin this case. Mr Angus does not meet the criteria for registration as a certifyingplumber. This will remain the case until he passes the requisite examination, orthis requirement is dispensed with. His application for registration was non-compliantwith the statutory requirements and need not have been considered. The Board couldnot properly have granted it. There is no prospect that this Court would remitMr Angus' appeal to the District Court for reconsideration. On any view of the matter,leave for a further appeal to this Court must be declined. No issue of general or publicimportance arises. Nor can there be any question of a miscarriage of justice havingoccurred. It would be an affront to common sense and justice to allow the presentapplication in all the circumstances.[15] Mr Angus should regard himself as fortunate that we have chosen not to requirehim to pay increased or indemnity costs on this application. His application for leaveto bring yet another appeal on the same core issue borders on being an abuse ofthe process of the Court.Result[16] The application for leave to appeal is declined.[17] The applicant must pay costs to the respondent for a standard application ona band A basis and any usual disbursements.Solicitors:Stephens Lawyers, Wellington for ApplicantMeredith Connell, Auckland for Respondent10 Criminal Procedure Act 2011, s 303(2).