ANGUS v PLUMBERS, GASFITTERS AND DRAINLAYERS BOARD [2018] NZHC 2299

ANGUS v PLUMBERS, GASFITTERS AND DRAINLAYERS BOARD [2018] NZHC 2299 [31 August 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2017-485-953[2018] NZHC 2299BETWEEN KEVIN ANGUSAppellantAND PLUMBERS, GASFITTERS ANDDRAINLAYERS BOARDRespondentHearing: 28 February 2018Appearances: C J Griggs for AppellantM J Hodge for RespondentJudgment: 31 August 2018JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 31 August 2018 at 5 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Meredith Connell, Crown Solicitor, AucklandCounsel: C J Griggs, Wellington[1] This is an appeal against a decision of Judge S M Harrop in the District Courtat Wellington.1[2] Mr Angus, the appellant, had appealed to the District Court against what hesubmitted 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 theBoard, and thus fell outside those decisions of the Board that may be appealed to theDistrict Court. Accordingly, the Judge dismissed the appeal on the basis he had nojurisdiction to hear the case.[4] Mr Angus now appeals to this Court on a question of law, namely whether theJudge's decision was correct.2Background[5] Mr Angus is registered as a "tradesman" plumber under the Act, and so mustbe supervised if carrying out particular types of work. A certifying plumber need notbe 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 theprescription and notification of minimum standards a person must meet to beregistered in the class of their choosing.3 At the time relevant to this appeal, theminimum standards had been notified in the Plumbers, Gasfitters, and DrainlayersBoard (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 constitutinga pass. Mr Angus sat the exam in June 2012 and, after two reconsiderations, he1 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 November2012 but only got 48 marks. It is apparent from the evidence that Mr Angus hasdifficulties 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 2012exam, and that he has not been awarded marks for several questions he believes heanswered correctly. Mr Angus has tried to persuade the Board of this but has not beenable to do so.Exemption[9] By letter dated 29 April 2013, Mr Angus asked the Board for an exemptionfrom the requirement to pass the exam.5 On 1 July 2013, the Registrar advisedMr Angus of the Board's preliminary decision to decline him an exemption, and itsreasons for doing so. Mr Angus was invited to comment, and did so by letter dated31 July 2013, but the Board's decision was unchanged. This was communicated toMr Angus by letter dated 15 August 2013.Solicitors[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 next12 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 thatseveral of Mr Angus's answers in the exam were correct, but had been marked aswrong. On 31 January 2017, the Board advised Mr Taylor that it did not agree withMr Lourens and would not be increasing Mr Angus's mark.[11] Mr Angus then instructed another solicitor, Mr M Stephens, who wrote to theBoard on about 29 March 2017. Mr Stephens' letter repeated that Mr Angusconsidered he was entitled to additional marks on several questions, gave a fullaccount of the questions and answers, and concluded by asking for an additional markor marks.5 Section 52(1)(a) of the Act allows the Board to exempt a person from compliance with theminimum standards for registration.[12] It is the Board's response of 10 April 2017 that is said to have conveyed itsdecision or "part of" its decision to decline Mr Angus's application for registration asa certifying plumber. The response was:...The Board does not accept that Mr Angus is entitled to any additional markson his June 2012 9195 examination for the reasons provided to him inNovember 2012.With regard to your comment that the Board is in breach of section 23 of theOfficial Information Act by not providing Mr Angus with reasons for itsdecision not to accept the opinion of Mr Lourens, I refer you to the Board'sletter to Mr Taylor of 31 January 2017 (copy attached). In that letter I advisethat nothing Mr Lourens has put forward changes the Board's views orconvinces the Board that there should be any further consideration ofMr Angus' concerns.I would point out that if Mr Angus wished to be able to apply to be registeredas a Certifying Plumber and work unsupervised, it has always been open tohim 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 examinationmore than once before they are successful in passing. Mr Angus has chosento repeatedly attempt to change his final mark from the June 2012 9195examination rather than chose this option.[13] Mr Angus filed an appeal to the District Court. He did so on the ground thathe was:... appealing against the decision of [the Board] on 10 April 2017 todecline to register the appellant as a certifying plumber on the groundsthat the appellant did not obtain a pass mark in the June 2012 [exam].Appeal to District Court[14] The decisions in respect of which a person has a right of appeal to the DistrictCourt 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 thefollowing decisions, directions, or orders may appeal to the DistrictCourt against the decision, direction, or order:(a) any decision of the Board to decline to register the person orto decline to issue a licence ...(b) any decision of the Board to decline to issue a limitedcertificate ... or to ... renew the limited certificate ...(c) any decision of the Registrar to decline to issue a provisionallicence ...(d) any decision of the Board or Registrar to suspend or cancelthe person's registration or licence:(e) any decision of the Board or Registrar to impose any term orcondition ...(f) any decision, direction, or order under any of sections 53 to56, 66, 79, 83, and 178 or subpart 1 of Part 3 (except section96).[15] Section 162(3) provides that s 162(1) does not confer a right of appeal againsta decision under ss 28 to 35 of the Act. These provisions are concerned with theBoard's designation of classes of registration, the work such registration permits aperson to undertake, and prescription of the minimum standards to which I havereferred.[16] Section 164 is concerned with the procedure to be adopted on appeal and therelief that may be granted, and s 164(3) makes it clear that the Court has no power todetermine 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 practicableafter the appeal is lodged.(2) On the hearing of an appeal under section 162, the District Courtmay—(a) confirm, reverse, or modify the decision, direction, or orderof the Board or the Registrar; or(b) give any decision, or make any direction or order, that theBoard or the Registrar could have given or made in respect ofthe matter.(3) Nothing in this section gives the District Court power to review anypart of the decision, direction, or order of the Board or the Registrarother than the part against which the appellant has appealed.(4) Subject to section 169, the decision of the District Court on any appealunder section 162 is final.[17] The Board submitted to the Judge that the Board's letter of 10 April 2017 didnot evidence a decision within s 162(1)(a), and that the Judge did not have jurisdictionto determine the appeal. The Judge accepted that submission and the issue is whetherhe erred in doing so.Statutory provisions[18] The statutory provisions governing the process of registration are ss 36, 37, 40and 41.[19] Section 36 provides that a person is entitled to be registered in their chosenclass if he or she:636 Entitlement to registration... satisfies the Board—(a) that he or she has complied with the application requirementsin section 37; and(b) that he or she meets the applicable minimum standards forregistration; and(c) that he or she is not precluded from being registered becauseof any [disciplinary] action taken by the Board under section106; and(d) that he or she is a fit and proper person to be registered underthis 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 anddocumentation required by the Board; and6 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 Registrarunder this section to the Board for consideration under section 40.[21] Sections 40 and 41 make provision for the Board's consideration anddetermination of an application lodged under s 37:40 Board to consider application(1) The Board must consider each application for registration ... as soonas 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 orpractising licence cancelled under this Act, have regard to thereasons 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 theapplication being declined; and(ii) a reasonable opportunity to make submissions to theBoard on the matter.41 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 beregistered 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 thedecision....[22] In summary, a person applies in the manner set out in s 37(1), the Registrarrefers the application to the Board under s 37(2), and the Board considers thatapplication in accordance with the requirements of s 40. The outcome of thatconsideration will be either that the Board is satisfied as to the four criteria in s 36, inwhich case registration follows under s 41(1), or it is not. In that case, s 41(2) requiresthe 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 ofreference:162 Appeals(1) A person who is dissatisfied with the whole or any part of any of thefollowing decisions, directions, or orders may appeal to the DistrictCourt against the decision, direction, or order:(a) any decision of the Board to decline to register the person Mr Angus[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 couldnot, 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 marksis, in effect, part of a decision to decline him registration under s 41(2). The refusal toaward more marks means that any application for registration that Mr Angus doesmake will be declined, if not rejected by the Registrar before even being referred tothe Board. Mr Griggs submits that it would be pointless to require Mr Angus to applyin the manner provided for in s 37, including payment of the fee, when one or other ofthese outcomes is inevitable. In support of this submission, Mr Griggs referred me toSanford 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 sufficientlyfinal for it to be amenable to review.8 The Court observed that the in-principle decisionmade in that case by the Chief Executive was sufficiently complete and definite toconstitute an exercise of a statutory power.7 Sanford Ltd v The Chief Executive of the Ministry of Fisheries HC Wellington CIV-2009-485-379,12 October 2009.8 At [108]–[113].[26] Mr Griggs' second submission is that it cannot have been Parliament'sintention that a person, such as Mr Angus, would not have a right of appeal in thepresent circumstances, ie to preclude Mr Angus from having recourse to the Court todetermine 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 clearand 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 amatter of statutory interpretation, it does not give a right of appeal against a decisionon a separate but related matter, on the grounds that decision renders an "appealabledecision" likely or even inevitable. If any indication were required that s 162 is to beapplied 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 bodythat may be appealed to the Court. Presumably that is because Parliament considersthat some decisions are best left to those in the particular industry. For instance, andon a very superficial search of www.legislation.govt.nz, s 162(1) has equivalentprovisions in other legislation governing qualifications and registration, such as 106(1)Health Practitioners Competence Assurance Act 2003; s 38 Registered Architects Act2005; s 24 Auditor Regulation Act 2011; s 64 Veterinarians Act 2005; and s 64 MotorVehicle Sales Act 2003. No doubt there are others. Parliament's intention to restrictrights 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, thepresent case is quite different. Quite aside from the fact that Sanford was anapplication for review, the Board has not made any decision under s 41 – in principleor 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 determiningthat the decision Mr Angus seeks to appeal falls outside s 162(1)(a) and that he did nothave jurisdiction to determine the matter.Other matters[32] This is sufficient to dispose of the appeal but I wish to express my reservationsabout two particular observations of the Judge to which Mr Griggs referred me. Theseobservations were no doubt intended to assist the parties but were not strictly necessaryto the decision.[33] The first of these was in respect of s 37(2). The Judge expressed the view thatthe Registrar would be bound to reject any application for registration not evidencingthat the minimum standards were satisfied. Mr Griggs submits that s 37(2) requiresthe Registrar to forward all applications to the Board, possibly subject to payment ofthe fee or other matters of form. The matter was not argued in any detail before mebecause it was not of any real consequence to the appeal. However, I likewise havereservations as to whether the Registrar could, let alone would be required to, rejectan 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 ofexaminations, generally or on the particular points raised by Mr Angus, may notconstitute decisions of the Board. This was on the basis of evidence that the Board'spractice is to have exams set and marked by sufficiently qualified third parties, andthose third parties make the relevant decisions.[35] I note that one of the Board's statutory functions is to "make arrangements forthe examination of persons practising or intending to practise the sanitary plumbing ...trades". The Board is also required to carry out any functions "incidental" to thatfunction.9[36] Again, there was no detailed argument on this point but Mr Griggs submitsthat, however the Board fulfils its obligations, the relevant decisions remain those ofthe Board. I do not need to decide this point but again I think Mr Griggs likely to becorrect.9 Plumbers, Gasfitters, and Drainlayers Act 2006, s 137(l) and (t).Appeal out of time[37] The second issue before the Judge, and before me, was whether Mr Angus hadlodged 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 notaddress this issue, given his decision on the first issue, and likewise it is unnecessaryfor me to do so.Result[38] I dismiss this appeal for the reasons given.Costs[39] I did not hear submissions on costs. In the absence of agreement, the Boardmay file submissions within 21 days of the date of this judgment and Mr Angus within14 days thereafter.Peters J10 Section 163.