Dowling v Secretary, Department of Customer Service

Legislation and Standards

1. Section 62 of the Home Building Act 1999 (the HB Act) provides that the Respondent may take disciplinary action, including cancelling a licence or disqualifying a person from holding a licence, as follows: 62 Disciplinary action that may be taken by Secretary (1) If, after compliance with this Division, the Secretary is satisfied that any ground on which disciplinary action may be taken against the holder of an authority has been established in relation to the holder, the Secretary may do any one or more of the following - (a) determine to take no further action against the holder, (b) caution or reprimand the holder, (c) make a determination requiring the holder to pay to the Secretary, as a penalty, an amount not exceeding $11,000 (in the case of an individual) or $50,000 (in the case of a corporation) within a specified time, (d) vary the authority held by the holder, by imposing a condition on the authority, including a condition requiring the holder to undertake a course of training relating to a particular type of work or business practice within a specified time, (e) suspend the authority for a period not exceeding its unexpired term, (f) cancel the authority, (g) disqualify the holder, either temporarily or permanently, from being any one or more of the following - (i) the holder of any authority, or any specified kind of authority, (ii) a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority, (iii) an officer of a corporation that is the holder of an authority.
2. Section 56(c) of the HB Act allows the Respondent to take disciplinary action if a licence holder is guilty of improper conduct. Section 51 of the HBA Act relevantly set out what constitutes improper conduct in general and s 53 of the HBA applies specifically to nominated supervisors. Section 51 relevantly provides: 51 Improper conduct: generally (1) A holder of a contractor licence who is authorised by the contractor licence to contract to do residential building work or specialist work, or a holder of a supervisor or tradesperson certificate, is guilty of improper conduct if the holder - … (c) breaches a statutory warranty, or … (f) commits an offence under the Plumbing and Drainage Act 2011 or the regulations under that Act, whether or not the holder has been convicted of the offence, or …
3. Section 18B(1)(c) of the HB Act relevantly provides: 18B Warranties as to residential building work (1) The following warranties by the holder of a contractor licence, or a person required to hold a contractor licence before entering into a contract, are implied in every contract to do residential building work - … (c) a warranty that the work will be done in accordance with, and will comply with, this or any other law, …
4. The Plumbing and Drainage Act 2011 (the PD Act) regulates plumbing work in NSW and s 7(1) of the PD Act relevantly provides: 7 Plumbing and drainage work to comply with certain standards (1) The responsible person for plumbing and drainage work must ensure the work complies with - (a) the Plumbing Code of Australia, and (b) any other standards or requirements prescribed by the regulations. Maximum penalty - 100 penalty units.
5. The Plumbing Code of Australia 2019 relevantly provides: BP6.2 Rainwater harvesting system installation (1) A rainwater harvesting system must be designed, constructed and installed in such a manner as to - … (b) provide water to fixtures and appliances at flow rates and pressures which are required for the correct functioning of those fixtures and appliances under normal conditions; and (c) avoid the likelihood of failure and uncontrolled discharge; and … B6.5 Rainwater pipework and outlets (1) Rainwater pipework and outlets must comply with Section 16 of AS/NZS 3500.1. …
6. The relevant standard, AS/NZS 3500.1.2018 provides: 5.6.2 Brackets, clips and hangers Brackets, clips and hangers shall be: a) formed of material compatible with pipe; b) securely attached to the building structure and not to any other service; c) designed to withstand the applied loads; d) where exposed to a corrosive environment, protected against corrosion; e) of like material or lined with a non-abrasive, inert material for that section where contact with the piping may occur; f) clamped securely to prevent movement, unless designed to allow for thermal movement; g) restrained to prevent lateral movement; and h) installed so that no movement can occur while a valve is being operated and so that the weight of the valve is not transferred to the pipe. … 5.6.5 Securing of pipes and fittings Any pipe or fitting that may be subjected to strain or torsion shall be positively fastened against twisting or any other movement.

Applicant's case

1. Mr Dowling submits he has committed no improper conduct. In the event there may have been any breach, it is minor and technical in nature and the Respondent's sanction of licence cancellation and disqualification is harsh, unjust and unreasonable in all the circumstances.

Respondent's case

1. The Respondent submits Mr Dowling performed work in breach of s 7(1)(a) of the PD Act due to the installation of a particular type of tap, a failure to secure the tap appropriately and a failure to insulate a pipe, all in breach of the relevant standards as prescribed by the Plumbing Code of Australia, as well as a failure to issue a certificate of compliance for the work. The respondent submits the breach is serious and the disciplinary action imposed should be upheld.

Jurisdiction

1. The Tribunal has jurisdiction to review an administratively reviewable decision: ss 7, 9 and 55 of the ADR Act. Section 83B(3)(a) of the HB Act provides that applications may be made to the Tribunal for administrative review of a decision to cancel a licence while s 83B(3)(b) of the HBA and cl 71(d) of the Home Building Regulation 2014 provide that applications may be made to the Tribunal for administrative review of a decision to disqualify a person from holding a licence. The Tribunal has jurisdiction to hear and determine this application for review.

Administrative Review

1. When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act).
2. The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. In conducting a review the Tribunal is not restricted to consideration of the material that was before the Respondent but may have regard to any relevant material before the Tribunal at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act.
3. The Tribunal is required to base its findings of fact on logically probative material: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62 and 68; and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]-[8], [15]-[17]. The standard of proof applying in this review is the balance of probabilities. These is no burden or onus of proof on either party: see Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28]-[34]. The standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89]-[91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10]-[12]. However, they provide guidance for the Tribunal's exercise of jurisdiction, especially given the serious nature of the allegations made against Mr Dowling by the Respondent in this review.

Issues for determination

1. The first issue in this review is to determine whether Mr Dowling is guilty of improper conduct, and if yes, whether disciplinary action should be taken against him, and if yes, what form of disciplinary action is appropriate: see Pilipczyk & anor v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 85 at [79].
2. The improper conduct alleged is that the work does not comply with the PD Act because the work did not comply with the Plumbing Code of Australia and the standards prescribed by that code, which is a breach of a statutory warranty as a breach of the PD Act (ss 51(1)(c) and 18B(1)(c) of the HB Act) and a breach of the PD Act (ss 51(1)(f) of the HB Act).
3. The work alleged by the Respondent to constitute improper conduct is the failure of Mr Dowling: to securely fix a tap to the building to prevent movement; to insulate a copper pipe; and to issue a certificate of compliance for the work performed.

Relevant circumstances

1. Mr Dowling is the sole director and nominated supervisor of his plumbing company and has been a plumber for over 24 years.
2. Mr Dowling performed plumbing work at a residential property. A tap was installed using a compression kinko nut fitting and olive joint. The tap was connected by a copper pipe to a rainwater tank via a pump and though a wall. The tap was not directly fixed to the wall. The copper pipe was not insulated. The water in the pipe was cold water, that is, the tap and pipe were not connected to a hot water system.
3. The plumbing work came to the attention of the Respondent because, approximately 12 months after the work was performed, a resident of the property reported that they were on an upstairs balcony above the tap and heard the rainwater tank pump running. Given the tap was the only outlet for the rainwater tank, the tenant went downstairs to check the tap was not leaking. The tap was observed in the off position. The resident then attempted to touch the tap which then failed, resulting in an extensive flow of water from the tap. The resident reported being scalded from water from the tap.
4. Mr Dowling was notified of the failure of the tap. He attended the property and made repairs with materials he had with him on the day. The repairs included fixing the tap to the wall of the building with a brass fitting, wall plugs and fixing screws, as well as placing a plastic pipe around the copper pipe near the pump.
5. I accept the evidence of Mr Dowling, who was a candid and careful witness, that he installed the plastic pipe, not to address heat reduction or insulation of the copper pipe from the pump, but to address a gap between the pipe and the brickwork.

Technical witnesses

1. The Respondent provided two technical witnesses, Mr Swan and Mr Luther. Both provided reports during the Respondent's investigation that were before the Tribunal in the s 58 bundle and Mr Luther also provided a statement in the proceedings. At the hearing, Mr Swan and Mr Luther gave concurrent evidence with Mr Brown, Mr Dowling's technical witness.
2. During the oral evidence it was established that neither Mr Swan nor Mr Luther had read or agreed to abide by the Tribunal's expert witness code of conduct. This review is not proceedings in which the rules of evidence apply, and the Tribunal had not made a procedural direction to apply Procedural Direction 3 of the Tribunal, as set out in the Direction (at [3]): In proceedings where the Tribunal is not bound by the rules of evidence, the acceptability of expert evidence is a question of weight not admissibility. Nonetheless, if those proceedings involve complex or difficult expert issues, it is appropriate to require expert evidence to be prepared and presented in a manner which seeks to ensure its usefulness.
3. I therefore do not consider the evidence of Mr Luther and Mr Swan to be expert evidence, which affects the weight the Tribunal can place on their evidence. This contrasts with the evidence of Mr Brown, who gave assurance in writing to the Tribunal that he read, understood and agreed to be bound, first in addressing the show cause notice by the Expert Witness Code of Conduct at Sch 7 to the Uniform Civil Procedure Rules 2005 and then by the Tribunal's expert witness code of conduct. Mr Brown set out the scope of his engagement by Mr Dowling and clearly referenced the material he considered in forming an opinion as required for expert evidence: see Lang v The Queen [2023] HCA 29 (at [223]) citing with approval Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. Mr Brown's evidence was clear, candid, considered and was given based on his demonstrated expertise. Therefore, to the extent of any inconsistency between the technical witnesses, I prefer the evidence of Mr Brown.
4. Mr Brown's evidence was, that in his opinion based on his experience and knowledge, Mr Dowling complied with all relevant standards and codes in relation to the tap installation and regarding pipe insulation.

Alleged scalding

1. The Respondent submits the scalding was the direct result of Mr Dowling's non-compliant work. The Respondent provided no evidence to establish a causal connection between the failure of the tap and any consequential event, for example, the Respondent provided no basis on which the Tribunal could be satisfied a cold water pipe, even uninsulated, could reach a temperature sufficient to cause scalding. The affected resident was not interviewed by the Respondent during its investigation and the Respondent did not call or summons the resident, therefore the information provided by the resident to the Respondent can be given no weight on this issue.
2. I therefore reject the submission of the Respondent in relation to the issue of scalding and its connection to the work performed by Mr Dowling. I cannot be satisfied there is any connection between the failure of the tap and any later event or consequences.
3. Further, the evidence of Mr Brown suggests it is unlikely that water in the relevant pipe connected to cold water could be heated sufficiently to cause a scald.

Further inspection by the Respondent

1. Mr Dowling also performed the same plumbing work on a neighbouring residential property, a mirror image of the relevant residential property. Following the tap failure, the plumbing work on the neighbouring mirror image property passed an inspection by officer of the Respondent who should have, on the evidence of Mr Luther, paid close attention to the main drain directly under the relevant tap. No action was taken by the Respondent in respect of the plumbing work at the neighbouring property.

Fixing tap to building to prevent twisting/movement

1. As set out above, cl 5.6.5 of AS/NZS 3500.1.2018 requires taps and fittings to be positively secured to stop twisting or other movement.
2. On the material before the Tribunal, particularly the evidence of Mr Brown, I am not satisfied the plumbing work performed by Mr Dowling, in using the compression kinko nut fitting and oilve joint, did not include positively securing the tap to stop "twisting or other movement". This is also because the plumbing work occurred 12 months before the tap failed and the tap had been used numerous times over that period.
3. Therefore, I am not satisfied a breach of the standard relating to movement has been demonstrated to occur.
4. Nor can I be satisfied, on the material before the Tribunal, there has been any breach of cl BP6.2 of the Plumbing Code of Australia 2019 because the Respondent has not demonstrated to the necessary standard that the installation of a rainwater harvesting system by Mr Dowling was anything other than the provision of water to fixtures "required for the correct functioning of those fixtures and appliances under normal conditions" nor can I be satisfied the installation did not "avoid the likelihood of failure and uncontrolled discharge".
5. Therefore I am not satisfied any improper conduct in relation to the installation of the tap has been demonstrated to have occurred.

Use of brackets, clips and hangers

1. As set out above, cl 5.6.2 of AS/NZS 3500.1.2018 prescribes standards in relation to brackets, clips and hangers.
2. I accept the oral evidence of Mr Brown that this standard, when read in context is likely intended to apply to the attachment of lengths of pipework to building structures. This interpretation is supported by cl 5.6.2(a) requiring brackets, clips and hangers to be compatible with pipes, and cl 5.6.2(e) requiring use of materials to avoid corrosion when in contact with piping, as references are to pipes and piping, not fittings.
3. Further, the clause generally imposes requirements as to how brackets, clips and hangers are to be used, rather than clearly prescribing a requirement for their use.
4. I am therefore not satisfied the tap was required to be attached to the building via brackets, clips or hangers. Consequently, I am not satisfied a breach of this standard has been demonstrated to have occurred.

Use of insulation

1. This standard prescribed by cl 6.2.3 of AS 4809:2017 (via cl 2.4.2(d) of AS/NZS 3500.1:2018) requires insulation to be placed around copper pipes in specified circumstances including "where it is necessary to…(e) reduce heat gain".
2. On the material before the Tribunal, particularly the evidence of Mr Brown, I am not satisfied it was necessary to reduce heat gain to the relevant pipe, an outdoor pipe connecting a rainwater tank to a tap outlet via a pump. It follows I am not satisfied insultation was required to be placed around the relevant pipe. Therefore, I am not satisfied there has been a breach of this standard.

Issue of certificate

1. Mr Dowling admits to failing to lodge a certificate of completion for the relevant plumbing works within the requisite time period following completion of the work. I am satisfied this is a breach of s 15 of the PD Act which constitutes improper conduct under the HB Act.

Disciplinary action

1. The purpose of disciplinary action is not to punish the applicant, but to protect the public: see Tadros v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 271.
2. In Pilipczyk the Tribunal considered relevant factors when determining an appropriate penalty as follows: …as the Commercial Tribunal acknowledged in McIlveen, at p 29 "[t]he concept of public protection is wide; it embraces fitness, the maintenance of public standards, public confidence and deterrence both of the particular builder and others in the same occupation" Other relevant factors in considering an appropriate penalty were identified by the Fair Trading Tribunal, comprising Judge KP O'Connor, Chairperson, in Director-General, Department of Fair Trading v Cohen [2000] NSWFTT 3 ('Cohen (2000)'), at par 45: "a) the nature, width and extent of the contraventions b) the loss or damage and prejudice in consequence of the contraventions c) the circumstances in which the contraventions took place d) whether the licensee has been found to have engaged in any similar conduct e) the presence of fraudulent or dishonest intent and deliberation on the part of the licensee f) the extent of carelessness or wilfulness of the conduct g) the efforts made to correct the situation and what measures have been taken by the licensee h) what consciousness the licensee (a) had (b) displayed, of its obligations under the relevant statute and to the owners i) the effect upon the licensee j) antecedents k) attitude, building history and future compliance l) the penalty range."
3. The Guidelines for Determining a Disciplinary Outcome, a policy document of the Respondent is also relevant to consideration of disciplinary action in this review.
4. In this review I have found the only improper conduct by Mr Dowling is his admitted failure to issue a certificate of compliance.
5. I accept the evidence of Mr Dowling that it was an oversight on his part given his work arrangements. I also accept the evidence of Mr Brown that the failure in relation to the issuing of a compliance certificate was not material to the performance of the relevant work.
6. I am therefore satisfied on the material before the Tribunal that this was a technical breach. I determine the severity to be minor and, applying the principles set out above, further determine that no further disciplinary action be taken in relation to the improper conduct found to have occurred in this review, particularly taking into account Mr Dowling's exemplary record over 24 years.

Consideration of disciplinary action in the event relevant standards had been breached

1. I will also consider the issue of the appropriateness of the disciplinary action determined by the Respondent, were I to have found the relevant standards were breached, that is, assuming the improper conduct by Mr Dowling also included failures to fix the tap to the building to prevent twisting or movement, use brackets clips or hangers, and to insulate the relevant pipe, as alleged by the Respondent.
2. The delegate of the Respondent's decision assessed the breach as one of extreme severity. Given the findings in relation to the consequences of the failure of the tap determined in this review (see [33]-[35] above), I am satisfied the sanction applied to Mr Dowling, who has a previously exemplary record over decades of experience, was clearly disproportionate. I determine instead, considering the relevant guideline, that the severity would have been minor. Further, applying the factors set out in Pilipczyk, I determine that the appropriate disciplinary action would have been to caution Mr Dowling in all the circumstances, including his exemplary record.

Conclusion

1. Therefore, in all the circumstances and on the material before the Tribunal, I am satisfied the correct and preferable decision is that no disciplinary action should be taken against Mr Dowling. Mr Dowling's licence should not be cancelled, nor should he be subject to a disqualification period.
2. It follows the decision of the Respondent should be set aside and instead Mr Dowling's licence should continue to operate with no disqualification period applying to Mr Dowling.

Order 1. The decision under review is set aside. 2. In substitution, pursuant to section 62(1)(a) of the Home Building Act 1989 the Tribunal determines to take no further action against the applicant.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2024