Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mawbey v Commissioner for Fair Trading [2018] NSWCATOD 141 Hearing dates: 22 and 23 January 2018; 20 February 2018 Date of orders: 22 August 2018 Decision date: 22 August 2018 Jurisdiction: Occupational Division Before: K Ransome, Senior Member Decision: (1) The decision that the applicant is guilty of improper conduct is affirmed. (2) The decision to take disciplinary action against the applicant is varied so that the applicant is disqualified from holding any contractor licence or authority under the Home Building Act 1989 until 1 January 2019. Catchwords: ADMINSITRATIVE REVIEW – Home Building – disciplinary action – whether electrician effected reverse polarity – whether guilty of improper conduct – whether fit and proper person – penalty to be imposed Legislation Cited: Electricity (Consumer Safety) Act 2004 Home Building Act 1989 Home Building Regulation 2004 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bliss v Durran t/as Canberra Sheds and Outdoor Storage [2017] NSWCATCD 50 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 White v Commissioner for Fair Trading [2017] NSWCATAD 233 Winten Property Group v Campbelltown City Council [1999] NSWLEC 241 Category: Principal judgment Parties: Garry Luke Mawbey (Applicant) Commissioner for Fair Trading (Respondent) Representation: Counsel: D Thomas (Applicant) M Kalyk (Respondent) Solicitors: Sneddon Hall & Gallop Lawyers (Applicant) Fair Trading Legal Services (Respondent) File Number(s): 2017/00233794 REASONS FOR DECISION 1. On 2 November 2014 Sam Weir, who lives and works on his father's farm known as "Ellesmere" and located at Barmedman, NSW, came home from work late in the evening and went to have a shower. Mr Weir received shocks from the bathroom taps when he turned them on. The next morning, Mr Weir telephoned a local electrician, Rick Lord, who advised him to ring Essential Energy, the company that delivers electricity in the area and maintains the infrastructure. 2. Later that day, two men from Essential Energy attended the property and carried out certain tests. One of the men, Nicholas Connors, also carried out some work to an Essential Energy transformer pole. Mr Connors and his workmate, Brett Glasgow, were advised by Sam Weir's partner that they had recently had electrical work done to a water pump on the property. Mr Connors and Mr Glasgow discovered that the shed and water pump were electrified. They concluded that this was the cause of the electrical problems at the house. They carried out some work to make the pump and the shed safe. The next day, Mr Lord attended and carried out further electrical work. 3. Mr Garry Luke ("Luke".) Mawbey, an electrician who held a Qualified Supervisor Certificate and a contractor licence, had attended Ellesmere on 31 October 2014 and re-connected a shed housing a water pump to power, the shed having been moved from its previous location to a new location closer to a dam on the property. Mr Mawbey had been engaged by Mr Douglas "Jock" Weir, Sam Weir's father, to undertake the work. 4. Following an investigation, the Commissioner for Fair Trading (the Commissioner) concluded that on 31 October 2014: 1. Mr Mawbey carried out electrical wiring work for Jock Weir and failed to provide a written contract in accordance with requirements of s 7AAA of the Home Building Act 1989 (the HB Act) which is an offence under s 7A of that Act; 2. Mr Mawbey carried out wiring work associated with the relocation and reconnection of a water pump and shed housing for that pump for Jock Weir and failed to carry out mandatory testing of that electrical work causing the shed and water pump to become electrified, being an offence under s 31(1) of the Electricity (Consumer Safety) Act 2004); and 3. Mr Mawbey carried out electrical work otherwise than with due care and skill or knowingly used faulty or unsuitable materials in the course of doing the work at Ellesmere 1. In relation to these matters, the Commissioner found Mr Mawbey guilty of improper conduct under s 51 of the HB Act. In a decision dated 23 February 2017 which was affirmed on 26 June 2017, the Commissioner cancelled Mr Mawbey's contractor licence under s 62(f) of the HB Act, disqualified him for a period of 6 months from being the holder of a contractor licence, supervisor certificate or tradesperson certificate under s 62(g) of the HB Act and imposed a condition that he complete an assessment on wiring rules AS/NZS 3000:2007 prior to reapplying for a licence following the disqualification period (under s 62(d) of the HB Act). 2. Mr Mawbey seeks to have the decision set aside under s 63 of the Administrative Decisions Review Act 1997 and challenges the finding of improper conduct. 3. In these proceedings, the Commissioner contends that the finding of improper conduct should stand. In addition, the Commissioner submits that I should find that Mr Mawbey is not a fit and proper person to hold a contractor licence within the meaning of ss 56 and 57 of the HB Act. The Commissioner submits that Mr Mawbey's contractor licence and supervisor certificate should be cancelled and he should be disqualified from being the holder of any licence or authority under the HB Act until 19 February 2020. 4. Mr Mawbey opposes the making of the additional finding and orders. Evidence and factual background 1. There is very little agreement between the parties of the factual circumstances of this case, including what happened when and who was present at relevant times. There are also divergent views between the parties and their experts on what caused the shed and the pump to become electrified. 2. The only areas where it appears the parties are in agreement are as follows: 1. A transformer pole is located next to Sam Weir's house at Ellesmere. The transformer pole allows for high voltage electricity travelling along the aerial power lines to be converted into low voltage electricity (240 volts) that can be used for domestic appliances. 2. Jock Weir had a conversation with Mr Mawbey in which Mr Mawbey agreed to rewire a metal shed on Ellesmere which was to house a pump which was being moved to a different location on the property. There was no written contract for the work. 3. On 31 October 2014 Jock Weir relocated the shed which was to house the pump closer to a dam on the property. The new location is about 500 m from Sam Weir's house. 4. On 31 October 2014 Mr Mawbey attended Ellesmere and carried out rewiring work and connected the relocated shed to 240 volt power at a nearby pole (referred to as the "third pole"). 5. On 1 November 2014 Sam Weir received electric shocks from the taps in the shower of his house. He contacted an electrician, Mr Lord, and then Essential Energy. 6. On 2 November 2014 two Essential Energy workers, Mr Connors and Mr Glasgow, attended the Weir property. 7. On 3 November 2014 Mr Lord attended the property and carried out electrical works at the shed. 1. The major areas of disagreement between the parties – leaving to one side for the moment the issue of causation – are set out below. It is necessary to make findings of fact in relation to these matters. 1. The respondent submits that Mr Mawbey was engaged in residential building work as defined in the HB Act and therefore was required to enter into a written contract for the work. The applicant submits that the work was not resident building work. 2. The respondent contends that Mr Mawbey effected a reverse polarity by mistakenly connecting the active cable to the multiple neutral earth (MEN) connection at the shed rather than the active connection. The MEN connection was connected to the earth stake which was bonded to the metal shed. By doing so, electricity ran the reverse way around the circuitry causing the shed to become electrified to about 226 volts. Mr Mawbey strongly denies this is what occurred. 3. Allied to the respondent's contention that Mr Mawbey effected a reverse polarity, is a question about what testing he carried out to ensure that he had correctly wired the shed. Mr Mawbey contends he carried out all the necessary tests, while the respondent states that he cannot have done so. 4. Mr Mawbey states that Jock Weir assisted him throughout the day on 31 October 2014, including when he undertook some testing. Mr Weir's evidence is that the only work he did was to relocate the shed and help Mr Mawbey pull cables through conduit and that otherwise he was not present. 5. Mr Mawbey contends that Essential Energy attended Ellesmere on Saturday 1 November 2014 and on Sunday 2 November 2014. The respondent states that workers from Essential Energy only attended on 2 November 2014. 6. The parties also give differing accounts of the work performed by Mr Connors and Mr Glasgow of Essential Energy on 2 November 2014. 1. At the centre of this dispute is the question of what caused the pump shed to become electrified and the taps in the bathroom at Sam Weir's house to give shocks. The respondent contends that Mr Mawbey effected a reverse polarity at the shed when he re-connected the power on 31 October 2014. 2. The applicant, on the other hand, contends that I cannot be comfortably satisfied, on the basis of the evidence, that Mr Mawbey effected a reverse polarity and suggests that the problem was most likely caused by a faulty neutral at the transformer pole. Was the work residential building work? 1. There is general agreement between the parties that, if the work done by Mr Mawbey was residential building work, then a written contract was required by s 7AAA of the HB Act as then in force. There is agreement that the work was "specialist work" but no agreement that it was "residential building work". 2. The relevant provisions are found in the HB Act as then in force and in the Home Building Regulation 2004 (the 2004 HB Regulation). "Residential building work" was defined to include "any work involved in, or involved in co-ordinating or supervising any work involved in (a) construction of a dwelling, or (b) the making of alterations or additions to a dwelling, or (c) the repairing, renovation, decoration or protective treatment of a dwelling". Under s 3 of the HB Act, "dwelling" was defined as including a building or portion of a building "that is designed, constructed, or adapted for use as a residence…". Under cl 5 of the 2004 HB Regulation the following "structures or improvements" are included in the definition of "dwelling" if "constructed for use in conjunction with a dwelling": (h) "detached workshops, sheds and other outbuildings". 3. The respondent also refers to cl 5(g) which includes "cabanas and non-habitable shelters" within the definition of dwelling if they are constructed for use in conjunction with a dwelling. In my view the structure housing the pump is a "shed or other outbuilding" rather than a "cabana" or "non-inhabitable shelter". 4. The applicant referred to the judgement of Sheahan J in Winten Property Group v Campbelltown City Council [1999] NSWLEC 241 where at [34]-[37] he stated that the term "in conjunction with", albeit in a different legislative context, requires a nexus between the two uses. In this case, that means a nexus between the shed housing the pump and the dwelling. The respondent drew attention to the matter of Bliss v Durran t/as Canberra Sheds and Outdoor Storage [2017] NSWCATCD 50 where at [89] the Tribunal found that a "studio" or "storage shed" was to be used in conjunction with a dwelling. The applicant points out, rightly, however, that the Tribunal did not specifically address the meaning of "in conjunction with" in that case and it is therefore of limited utility. 5. I accept the submissions of the applicant that the term "in conjunction with" requires there to be a nexus between the use of the shed housing the pump and the dwelling occupied by Sam Weir. 6. The evidence of Jock Weir is that the sole purpose of the pump is to pump water from the dam to water the gardens at the house occupied by Sam Weir and his family. He stated that has always been the purpose of the pump. He indicated at the hearing that the reason he moved the pump closer to the dam was to improve its performance. Mr Weir did not agree with questions put to put to him suggesting that to pay an amount of some $3,000 to improve the water pressure for a domestic garden was "an extravagance". He also stated that the pump was not used to water livestock. 7. The applicant submits that Jock Weir's evidence should not be accepted in a number of areas. For reasons which are primarily set out below, I do not accept that Mr Weir was untruthful in his evidence to the Tribunal. With regards to his evidence that the pump was used to water the gardens at the house, I have no reason not to accept that evidence and there is no evidence before me which directly contradicts Mr Weir's statements. 8. There does not appear to be any dispute that the house occupied by Sam Weir is a dwelling for the purposes of the Act and the Regulation. The applicant states, however, that there is an insufficient functional nexus between the shed and the dwelling to meet the requirements of the 2004 HB Regulation that the shed was "constructed for use in conjunction with a dwelling". In circumstances where the shed was constructed for the sole purpose of housing the pump and to protect it from the elements and where the pump is only used to water the gardens at the dwelling, I consider there is a sufficient nexus between the use of the shed and the use of the dwelling such that the pump shed was to be used in conjunction with a dwelling within the meaning of cl 5 of the 2004 HB Regulation. 9. The work done by Mr Mawbey on 31 October 2014 was therefore residential building work as defined in the HB Act and was work which required a written contract. 10. Mr Mawbey in his evidence inferred that there was some urgency in the carrying out of the work which did not allow for sufficient time for a contract to be made in writing. Jock Weir's evidence, which I accept, is that he first spoke to Mr Mawbey about the work on about 23 October 2014 and there was never any urgency about the job. 11. Mr Mawbey had given evidence during the investigation by the Commissioner for Fair Trading that he did not provide customers with written contracts as a matter of course. At the hearing before me, Mr Mawbey said that he had prepared written contracts for other jobs. 12. I do not accept that there was any urgency to the work carried out by Mr Mawbey on 31 October 2014 at Ellesmere or that he had been led by Jock Weir to believe the job was urgent. I therefore do not accept that an issue of "urgency" prevented Mr Mawbey from preparing a written contract. I am also of the view that Mr Mawbey's statement to the investigator that he was not in the habit of providing written contracts is a true reflection of his work practices. What occurred on 31 October 2014? 1. It is not in contention that Mr Mawbey arrived at Ellesmere at about 6:30 am on 31 October 2014 and that he commenced work once he had fixed a flat tyre on his vehicle. His evidence is that the job required him to run power from a junction box on the third pole to the shed and to rewire the shed. He stated that the job was bigger than he at first thought and he had to install the junction box on the third pole, replace conduit on wires at the third pole and secure them as well as replace or install various items when wiring the shed. He asked a friend named Jim Navin to bring him out some additional equipment he needed to complete the job. 2. Mr Mawbey said that, while he was waiting for Mr Navin to arrive, he rolled out two lengths of red cable and taped each end of one length with black tape to identify it as the neutral. The non-taped cable would be the active. He said he started to slide conduit onto the cables and disconnected the power at the transformer pole. 3. Mr Mawbey said that a contractor named Ron, who Mr Mawbey had arranged to assist him, arrived and dug a trench for the cables from the third pole to the new location of the shed and he and Ron laid the cables in the trench and covered them in. 4. The evidence of all concerned is that Jock Weir used his tractor to move the shed from its original site to the new site near the dam sometime after Mr Mawbey's arrival at Ellesmere. Mr Weir also helped Mr Mawbey thread the cables through the conduit. 5. Mr Mawbey states that he had a conversation with Jock Weir when Mr Weir arrived in which Mr Weir questioned why Mr Mawbey had disconnected the power to the house. Mr Mawbey says he told Mr Weir that it would be unsafe if he didn't disconnect the power. He also states Mr Weir told him to just run the conduit along the ground and he would take care of it after the harvest was finished. Mr Mawbey said he replied that he could not do that. 6. Jock Weir states that the conversation "never happened". The respondent alleges that Mr Mawbey made up the conversation to suggest that he was being safe in his work. Testing carried out by Mr Mawbey 1. Mr Mawbey states that Jock Weir was around throughout the day and that he saw him regularly. Mr Mawbey states that he installed an RCD (safety switch) on the switchboard in the shed; re-wired the switchboard; put a new earth stake in the ground next to the shed and bonded it to the shed and installed a junction box on the third pole. He then states that he carried out certain tests and connected the cables from the third pole to the switchboard in the shed. He states that Jock Weir was present during this process. In his affidavit of 11 December 2017 he sets out in detail the tests he undertook. 2. Mr Mawbey had installed two cables at the third pole. He states that, prior to connecting the cables to the switchboard he needed to determine which was the active and which was the neutral. In his affidavit he states he returned to the transformer pole and switched the power back on. He said he then used his multimeter to test one wire to earth at the junction box on the third pole. Mr Mawbey states that Jock Weir was on the ground and held the multimeter for him. He states Mr Weir read out a reading from the meter of 180 volts. This indicated an active wire but a low voltage as the voltage should have been 238 volts. 3. In his affidavit, Mr Mawbey states he then tested the other wire and Mr Weir read out a reading of 53 volts which was high as he expected this to be the neutral wire and the reading would be zero to five volts. 4. Mr Weir denies being present and states he did not assist Mr Mawbey with any testing or read out any readings from a multimeter. 5. Mr Mawbey stated that he was concerned about the reading and thought that his multimeter could be faulty. He also thought that the reading indicated a faulty neutral at the transformer pole. He stated that he had Mr Weir looking over his shoulder and this made him nervous. 6. At the hearing before me, Mr Mawbey agreed when being cross-examined that the possibility of there being a faulty neutral was a serious issue, but he did nothing to investigate it or report it. He said that he told Jock Weir there was a faulty neutral but this was not evidence he had provided prior to the hearing, either during the Fair Trading investigation or in his affidavit. He also said for the first time, when it was put to him that he had not tested the multimeter he thought was faulty, that he had tested it during his lunch break at about 3:00 pm by walking up to Sam Weir's house and testing the multimeter on the house. Mr Mawbey said he obtained the same readings at the house (180 volts and 53 volts). 7. At another point in cross-examination Mr Mawbey said that he tested the multimeter after running the first tests. 8. Mr Mawbey could not explain at the hearing why he stated in his affidavit that he thought the multimeter might be faulty if he had in fact tested it and not found it to be so. 9. In his affidavit, Mr Mawbey stated that, after he had taken the readings, he then marked the neutral cable with black tape, turned off all the main power switches at the transformer pole and the house and connected the active cable from the pole to the active cable in the conduit. He then undertook the same procedure with the neutral cable, attaching the taped cable coming from the third pole to the cable in the conduit he had taped earlier. At the hearing he said he did this even though at that stage he had obtained strange readings and he thought his multimeter might be faulty. 10. Mr Mawbey stated that he then went down to the shed and used the mega ohm meter to do a 500 volt test. He obtained normal readings. He then replaced the black tape on the cable he knew to be the neutral with black sleeving. At the hearing Mr Mawbey said he undertook the mega ohm test to make sure the polarity was correct but later agreed that such a test does not test for polarity. 11. Mr Mawbey stated that he drove his car back up to the transformer pole and turned the power back on. He then returned to the shed and performed the same test he had done previously with the multimeter. He states that Mr Weir did not assist on this occasion but was present throughout. Mr Mawbey obtained the same results as before – 53 volts for the neutral and 180 volts for the active wire. 12. Mr Mawbey gave contradictory accounts of how he conducted this second test. In his affidavit he referred to testing, first, by holding the earth wire to the earth stake and the neutral sleeved wire to the copper of the multimeter and then holding one of his meter wires to the earth stake and the active wire to the copper on the multimeter. When asked in cross examination how he conducted the test he said he used a "wandering lead". However, in a letter provided to Fair Trading in December 2017, Mr Mawbey had stated that he conducted the tests using a male plug without the cover on. At the hearing he acknowledged these are different tests. 13. Mr Mawbey stated that, after he had completed this test at the shed, he asked Mr Weir to drive up to the transformer pole and turn the power off. He said that, once Mr Weir had yelled out that the power was off, he tested the power point to make sure it was dead. He states that he then put the active wire into the RCD and the neutral wire into the neutral link. He then yelled out to Mr Weir to turn the power back on. 14. Mr Mawbey stated that he then plugged a polarity tester into the power point which showed he had the correct polarity. He said he then called out to Mr Weir who was still at the transformer to turn the power off. Once the power was off, he reinserted the earth wire and, once the power was back on, tested again with his multimeter. This time, he obtained the readings he would have expected. He was then satisfied that the wiring was correct. 15. Mr Mawbey stated that he then turned on the RCD which started the pump. The pump ran and sounded normal. Once he saw the pump was running, he turned off the RCD. Mr Mawbey said he touched the pump with the back of his hand and did not receive an electric shock. He said that during the testing process he touched the shed at various times and did not receive any electric shocks. Jock Weir's role 1. As noted, Jock Weir denied that he assisted Mr Mawbey with any testing stating all he did was move the shed using the tractor and help Mr Mawbey pull the cable through some conduit. He states he left Mr Mawbey to wire up the pump and shed at about 11:00 am. He also denied having a conversation at the house with Mr Mawbey about the power being off. 2. The applicant submits that the evidence of Mr Weir is not credible, primarily because it was not until some time shortly before the hearing Mr Weir stated that he had helped Mr Mawbey thread the cables through the conduit. This had not been mentioned by him in any previous statement to Fair Trading or for these proceedings. The applicant also describes Mr Weir's evidence at the hearing as "defensive" and "evasive". 3. The applicant also refers to Mr Weir's evidence that he did not see the Essential Energy workers when they attended Ellesmere on 2 November 2014 and that, at about 9:30 that night, he found out from his son, Sam Weir, that the problem was coming from the pump and the shed. Sam Weir also states he phoned his father around or after 9:30 pm. Mr Weir's evidence was that he then telephoned Mr Lord and asked him to attend the next day. Mr Lord in his evidence to the Tribunal said he received the call from Jock Weir at about 7:00 pm and said it could not have been as late as 9:30 pm. 4. For reasons which are not entirely apparent, the applicant states that Mr Weir's evidence on this point should not be accepted. Mr Weir was not questioned about the accuracy of his evidence that he had no contact with Essential Energy on 2 November 2014 or about the time at which he telephoned Mr Lord. 5. The applicant also refers to evidence of the respondent's expert witness, Mr Blacker, where he states that it would have been physically impossible for one person to conduct the test described above as the second test. As I understand it, the applicant submits that Mr Blacker's statement is an indication that Mr Mawbey was assisted by Mr Weir when he was conducting the tests. What did Essential Energy do on 2 November 2014? 1. On 2 November 2014, in response to a call from Sam Weir about receiving shocks from the shower taps, Essential Energy sent two men – Nicholas Connors and Brett Glasgow - out to the property. 2. The evidence given by Mr Connors was that the most common cause of receiving tingles from bathroom taps is generally a loose neutral connection at the transformer pole. He and Mr Glasgow measured voltage of 5.3 volts on the shower tap. They then carried out tests at the house switchboard and at the transformer pole. They could find nothing abnormal with the neutral links. Mr Connors, however, did some work to the wiring at the pole and replaced a section of cable as he believed there was an issue with the wiring of the main neutral connection which could cause problems in the future. 3. Mr Connors then tested the switchboard again and found that there was still around 6 volts being emitted, which is a safety hazard. Mr Glasgow also said that the readings they obtained still indicated there was a problem but they found that all the connections were properly connected. After being informed by Sam Weir's partner that electrical work had been carried out at the pump shed, Mr Connors then conducted a test at the third pole on the overhead to underground connection. He stated he tested across the neutrals and received a reading of 0 volts which was not unusual. He and Mr Glasgow then conducted tests at the shed using an independent earth and received a reading of 226 volts. Tests were then conducted on the cables leading into the pump switchboard which showed that the neutral link read 226 volts and the active cable read 0 volts. 4. Mr Connors then disconnected the mains power and removed the neutral cable from the connection to make the shed and pump safe. He and Mr Glasgow then tested the shower taps again and there was no voltage being emitted. 5. There is some uncertainty in the evidence about whether Mr Connors and Mr Glasgow tested the taps again after Mr Connors carried out work on the transformer pole before proceeding to the third pole. At the hearing Mr Connors gave evidence that he and Mr Glasgow went back to the house after disconnecting the shed switchboard and tested the taps, receiving a negligible reading. He agreed this was the second time he tested the taps, although he also said at another point in his evidence that the neutral wire had "five and a half volts before [he and Mr Glasgow] went near the transformer pole and it still had five and a half when we left it". As noted above, he also stated he tested the switchboard after performing work on the transformer pole and it was still emitting around 6 volts. 6. Mr Connors also gave evidence that he noticed that, at the shed switchboard, someone had marked the opposite ends of two cables with black tape, instead of marking the same cable. At the hearing said he could not now be certain that the active wire had been taped with black tape. In re-examination, however, he reiterated that one cable was marked on one end and the other cable was marked on the other. Re-wiring of the pump shed on 3 November 2014 1. The evidence of Mr Rick Lord is that he attended Ellesmere on 3 November 2014. He stated that the wire which had been marked with tape as the neutral wire was actually the active wire. Mr Lord said he reversed the polarity, tested the circuit and got the correct readings. 2. Mr Jock Weir gave evidence that he observed Mr Lord change the wires around at the pump so everything was functioning correctly. Attendance at Ellesmere by Essential Energy 1. In his affidavit Mr Mawbey states that he had a conversation over the phone with Sam Weir on 6 November 2014. He states that Sam Weir told him: You know we had Country Energy out twice. The pump wasn't working, Nick did something on the pole. That night we were getting zaps – the next day they came out, and then Rick Lord came out. 1. Sam Weir states that Essential Energy did not attend the property on 1 November 2014. Evidence provided by Essential Energy records attendance at Ellesmere on 2 November 2014 but not on 1 November 2014. The expert evidence 1. Mr Paul Ragen, a retired electrician, gave expert evidence on behalf of the applicant and Mr Bruce Blacker, who is currently employed by Fair Trading as a Senior Co-ordinator Electrical Inspections gave expert evidence for the respondent. Both experts have extensive industry experience. 2. Mr Ragan's evidence was that he accepted that Mr Mawbey carried out the testing which he claimed to have undertaken. He concluded that the readings Mr Mawbey obtained were due to a faulty neutral at the transformer pole. Similarly, a faulty neutral connection at the transformer pole was the most likely cause of the shocks at the taps in the house. 3. Mr Ragan stated that Mr Mawbey's work did not liven up the shed at 238 volts. He said that the shed would have had a voltage of approximately 5.3 volts because of the faulty neutral at the transformer pole. He said when cross-examined that, if there was no issue at the transformer pole and the reading at the shed of 238 volts was correct, the most likely explanation was a reverse polarity. 4. Mr Ragan was concerned about the reading of 0 volts that Mr Connors had received at the third pole when he had a reading of 226 volts at the shed. He stated that, if there was reverse polarity, Mr Connors would have received a reading of more than 226 volts when he tested across the connections at the pole. He was then asked questions at the hearing based upon testing across the active and neutral connections. However, Mr Connors had given evidence that he had tested across the neutral connections at the third pole. When asked, Mr Ragan stated that testing either side of the neutral connection would not have a bearing on reverse polarity – the result would be the same either way. 5. Mr Ragan gave further evidence that if the test performed by Mr Connors had in fact been across the active and neutral connections and a reading of 0 volts had been obtained, this could indicate that the neutral was in contact with the active and had become electrified to 238 volts. He said that this could occur when there was contact between the active and the neutral at the transformer pole. This could be the result of ordinary wear and tear or when someone loosens and replaces wires. 6. Mr Ragan agreed in cross-examination that, if the shocks in the house measured 5.3 volts prior to the shed being disconnected and stopped after the shed was disconnected, this would indicate that there was not a faulty neutral. 7. In Mr Blacker's opinion, Mr Mawbey effected a reverse polarity at the shed which lead to the shed becoming live and potentially fatal. He believes that if the proper tests had been carried out in accordance with the wiring rules, such an error would not have occurred. 8. Mr Blacker states that the fault with the voltage at the shower in the house remained after repairs of a neutral conductor at the transformer pole had been carried out by Essential Energy. He states that this shows that the repair undertaken at the pole had no bearing and the problem was caused by the reserve polarity at the switchboard at the pump shed. 9. Mr Blacker stated that he could find no explanation for the readings of 180 volts and 53 volts which Mr Mawbey said he had obtained. He said that such a reading would indicate a major fault elsewhere in the electrical supply system. He also said he could not understand how such a reading would change after the MEN was connected. 10. Mr Blacker also stated that a polarity tester is not identified in the Wiring Rules as a sufficient method to test polarity. He said that the quality of testers is variable and the test is not reliable in all circumstances. Mr Ragen agreed that testing with a polarity tester is not in the Wiring Rules but he stated he has found the test to be accurate. Sam Weir's dog 1. Sam Weir gave evidence that on 2 November 2014, after telephoning Essential Energy about the problem with the taps, he went down to the pump shed to look at the work carried out by Mr Mawbey. While he was looking at the shed, he heard his dog yelp and the dog sprinted off down the paddock. Mr Weir thought the dog may have been bitten by a snake, but could not see any snakes around the shed. He then thought the dog may have cut its foot on some pieces of tin that were sticking out. However, when he caught up with the dog there were no signs of snake bite or cuts. The dog, however, appeared distressed. 2. Mr Weir said he later formed the view, after receiving the report from Essential Energy that there was a problem with the shed, that his dog had urinated on the shed and that is what caused the yelp. He did not see his dog urinate on the shed. Absence of shocks on 31 October 2014 1. In his evidence Mr Mawbey stated that he did not receive any shocks from the shed or the pump when he was working and conducting tests on 31 October 2014. Similarly, Jock Weir did not receive any shocks when he primed the pump at about 5:00 pm on 31 October 2014 and switched it on. Mr Weir acknowledged in cross-examination that he could have spilled water on the ground when priming the pump. 2. Mr Ragan's evidence was that, if the shed was electrified, the pump would also have been carrying some voltage and it would be highly likely anyone touching the pump would have received a shock. He said that, if the ground was wet, a shock would definitely have been received and possibly, full voltage. 3. Mr Blacker stated that it is possible that a person would not receive a shock at the shed if they were wearing footwear that acted as an insulator and if there was dry soil. He said that records showed minimal rainfall at the relevant time. Mr Blacker also stated that, if water was present, it would be more likely that a person would receive a shock if they came into contact with the shed. 4. There is no evidence of any shocks being received at the house on the evening of 31 October 2014 after Mr Mawbey had completed the work. Electrical flash at the shed 1. Mr Ragen stated that, if there was a reverse a polarity, Mr Mawbey would have observed an electrical flash when he joined the earth and neutral connections at the neutral link in the shed. 2. Mr Blacker states that, if the power was turned off prior to joining the earth and neutral connections then an electrical flash would not occur as there was no power flowing. 3. In his 11 December 2017 affidavit, Mr Mawbey stated that the power was off but in his earlier letter supplied to Fair Trading he stated the power was on. Findings of fact 1. In relation to the issues that are in dispute, I make the following findings. Attendance at Ellesmere by Essential Energy 1. On the basis of the evidence provided by Essential Energy and Sam Weir, I am satisfied that Essential Energy did not attend Ellesmere on 1 November 2014 and only attended once – on 2 November 2014 – in response to a call by Mr Weir. I therefore find the statement made by Mr Mawbey that Sam Weir told him Essential Energy came out and Mr Connors "did something at the pole" prior to him receiving shocks from the taps, is untruthful. In my view Mr Mawbey made this statement in an endeavour to support his contention that the problem arose because of a faulty neutral at the transformer pole and not because of his electrical work. Role of Jock Weir 1. I also accept the evidence of Mr Jock Weir that he was not present when Mr Mawbey carried out any tests and he did not assist Mr Mawbey to carry out any tests. I do not consider that the fact that Mr Weir did not mention helping thread the cables through conduit until late in the proceedings, indicates that he was not a truthful witness. I accept his evidence that he included matters in his statement to Fair Trading and in his first affidavit that he thought were important and it was only later, when he thought back on the events of the day, that he tried to make clear what role he played. 2. Contrary to the applicant's submissions, I did not find Mr Weir defensive and evasive. I accept that it can be difficult to recall in detail events which occurred some years ago. Even so, it is difficult to see how Mr Weir could have forgotten helping Mr Mawbey carry out testing, including that he read out various meter readings and turned the power on and off at the transformer pole. There is also no apparent reason why Mr Weir would lie about having helped Mr Mawbey. Mr Weir has nothing to gain in disputing Mr Mawbey's account. I am of the view that Mr Weir did the best he could to recall events which occurred on 31 October 2014 and am satisfied that he gave truthful evidence. 3. In addition to Mr Weir's denials that he helped Mr Mawbey, it is difficult to accept certain aspects of Mr Mawbey's account in any event. For example, he states that Mr Weir drove up to the transformer pole from the shed and that they were able to yell to each other across the distance. That distance was, however, some 500 meters. It is difficult to accept that they would have been able to hear each other clearly at that distance. In addition, Mr Mawbey has offered no explanation for why he would entrust an unskilled man to take accurate readings from the multimeter. 4. I find that Mr Mawbey's evidence that Jock Weir assisted him throughout the day, including with some of testing is untruthful. I am also satisfied that the conversation Mr Mawbey states he had with Mr Weir about the power being turned off to the house, did not occur. Again, I am satisfied that Mr Mawbey was untruthful in his account of these events. What did Essential Energy do on 2 November 2014? 1. Mr Mawbey, and to a certain extent Mr Ragen, have sought to establish that the electrification of the shed was caused by a faulty neutral at the transformer pole. This raises issues about what Mr Connors and Mr Glasgow found when they attended Ellesmere on 2 November 2014 (noting that I do not accept Mr Mawbey's statement that Essential Energy also attended on 1 November 2014) and what work they performed while there. 2. Mr Connors' evidence was that he thought the shock at the shower may have been caused by a faulty neutral. Indeed, Mr Ragen stated that any such fault would have been one arising at the transformer pole. Mr Connors therefore carried out tests at the house switchboard and the transformer pole to see if a faulty neutral was causing the problem, but he did not find anything abnormal. Mr Connors replaced one of the cables at the transformer pole because he did not like the way it was wired and thought it may cause problems in the future. 3. Mr Connors' skills and experience as a linesman have not been called into question. There is no evidence that he could not or did not identify an existing fault with the neutral at the transformer pole. There is also no evidence that the work he did to the wiring at the transformer pole caused any problem or fault. 4. The evidence is that the problem existed before Mr Connors and Mr Glasgow conducted their tests and found nothing abnormal and it existed after the tests had been completed and Mr Connors had carried out repairs at the pole. There was some confusion in the evidence about whether Mr Connors and Mr Glasgow actually tested the taps after Mr Connors did the repairs to the pole. It would seem they may not have tested the taps at that time but did test the house switchboard and found it was still emitting a voltage higher than normal. This was the case after they had satisfied themselves that there was no problem with the neutral connections at the pole or switchboard. 5. There was a suggestion at the hearing that the reading of 0 volts obtained by Mr Connors at the third pole indicated there was some sort of abnormality unrelated to the work done by Mr Mawbey. However, I accept the evidence of Mr Connors, with which Mr Ragen in fact agreed, that he was testing across the neutrals and therefore a reading of 0 volts was expected and had nothing to do with whether there was a reverse polarity. 6. The evidence of Mr Connors and Mr Glasgow that the shed was electrified to about 226 volts was not challenged at the hearing. I therefore accept their evidence that that is what they found when they conducted tests on the shed. 7. Significantly, after Mr Connors had disconnected the power and removed the neutral cable from the connection, he and Mr Glasgow then tested the shower and there was no voltage being emitted from the taps. That is, the problem ceased once the shed was disconnected. 8. Mr Connors' evidence was that he noticed that, instead of the same cable being marked with tape at either end, the end of one cable was marked and the end of the other cable was marked. While his evidence at the hearing was more equivocal as he said he could not now remember that the active tape was marked with black tape, in the days following the incident he gave a consistent account of what he found. The evidence of both Mr Lord and Mr Ragen was that Mr Connors, while not an electrician, had sufficient knowledge to be able to identify a reverse polarity. 9. Mr Connors and Mr Glasgow gave very straightforward evidence to the Tribunal and Mr Connors, in particular, is an experienced linesman. I accept his evidence and find that his testing showed there was no faulty neutral at the transformer pole which was the cause of the voltage at the shower taps. I also find that Mr Connors carried out appropriate tests in order to ascertain the cause of the problem. Did Mr Mawbey effect a reverse polarity? 1. There are some matters which support Mr Mawbey's contention that he wired the shed correctly. Neither he nor Jock Weir received any shocks at the shed or from the pump. It would be expected that, if Mr Mawbey had effected a reverse polarity, that either or both of them would have received a shock. 2. The expert evidence was that this was a likely outcome. However, Mr Blacker also gave evidence that, while unusual, it does not necessarily follow that Mr Mawbey and Mr Weir would have received shocks. His evidence was that a shock might not be received depending on the nature of the footwear being worn and the dryness of the ground. His uncontested evidence was that there had been below average rainfall at the time. Mr Weir gave evidence that he may have spilled some water when priming the pump, but it would have been a few drops at most. I am satisfied that, even though shocks were likely to be received, the fact that they were not is not determinative of the matter. 3. In addition, Sam Weir did not experience any shocks at the house on the night of 31 October 2014 after Mr Mawbey had done the work to the shed. His evidence was that he presumed he would have had a shower that night after finishing work, as he did on the next night when he did receive shocks from the taps. It is unclear what should be made of this, but, again, it is not a matter that is determinative of the issues. 4. Another issue raised was that, if he had effected a reverse polarity, Mr Mawbey would have observed an electrical flash when he joined the earth and neutral connections at the neutral link in the shed. Both experts agreed, however, that it is possible that a flash might not occur. In any event, it is by no means clear from the evidence whether the power was in fact on when Mr Mawbey made the connection. If the power was not on, there would have been no flash. 5. While these matters might tend to suggest Mr Mawbey performed his work correctly, there are several other matters which indicate he did not. Sam Weir gave evidence about what happened to his dog when he went to look at the shed on the morning of 1 November 2014. He concluded, in hindsight, his dog had urinated on the shed and received a shock. This, however, is speculation and little weight can be placed upon it. 6. More significantly, the evidence of Mr Connors and Mr Lord is that they found reversed polarity at the shed. I find, based on the evidence of Mr Connors, that he identified a reverse polarity at the shed switchboard, that he was sufficiently skilled to identify a reverse polarity and he took steps to make it safe. This finding is supported by the evidence of Mr Lord who attended the next day and, in the words of Mr Weir, "changed the wires around". 7. Mr Mawbey set out in some detail the testing he states he carried out. His account was aimed at demonstrating that he took all relevant steps to ensure that he installed the wiring correctly. I have already found that his account that he was assisted in the testing by Jock Weir is false. There were also a number of other issues with his evidence about the testing he undertook which casts further doubt on his credibility. 8. Again, I am very conscious that recalling events which occurred some years ago can be difficult and that memory is not always reliable. I am also conscious that Mr Mawbey has some literacy problems which may affect his ability to put his thoughts in writing. However, it would be expected that, given the seriousness of the allegations against him, he would give a reasonably consistent and coherent account over time of those events. 9. Mr Mawbey raised matters for the first time at the hearing and exhibited a tendency to change his evidence when under pressure. He also gave some contradictory evidence about how he conducted some tests, particularly the second test with the multimeter at the shed. 10. There are a number of other aspects of Mr Mawbey's evidence which are concerning. There is, for example, no explanation for the readings of 180 volts and 53 volts which Mr Mawbey claims he obtained when he started testing. If such readings did occur, they indicated that there was a major fault but he did not make any inquiries or take any steps to investigate the problem. I agree with the opinion of Mr Blacker that this is not what would be expected of a competent electrician. Similarly, Mr Mawbey proceeded with his work even though he suspected that his multimeter was faulty. 11. Mr Mawbey stated he used a mega ohm test to test for polarity. The expert evidence is that a mega ohm test has nothing to do with polarity. 12. Mr Ragan's expert evidence was based on his acceptance that Mr Mawbey had conducted the tests as he claimed. At the hearing, however, he accepted that, if the problem stopped when the power to the shed was disconnected, there could be no problem with a faulty neutral. 13. In light of the considerable problems with the evidence given by Mr Mawbey and in light of the expert evidence and my findings accepting the evidence of Mr Connors, Mr Lord and Jock Weir, the preponderance of evidence leads me to conclude that Mr Mawbey did not carry out the testing he claimed to have undertaken. I find that Mr Mawbey effected a reverse polarity at the pump shed so that it and the pump became electrified. How he mixed up the wires has not been established but, whether he marked the wrong cables or forgot to mark one or the tape somehow came off before he connected the wires at the shed, is immaterial because the clear conclusion is that he made an error in wiring the shed. If Mr Mawbey had carried out the appropriate testing, as he claimed, the reversed polarity would have been found and corrected by him. Improper Conduct 1. Improper conduct is defined in the HB Act, relevantly, as: 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: (a) commits an offence against this Act or the regulations or section 307A or 307B of the Crimes Act 1900, whether or not an information has been laid for the offence, or (b) in the course of doing any work that the licence or certificate authorises the holder to do, fails to comply with the requirements applicable to the work made by or under this or any other Act in respect of the work, or ….. (d) in the case of specialist work, does the work otherwise than with due care and skill or knowingly uses faulty or unsuitable materials in the course of doing the work 1. I find that Mr Mawbey is guilty of improper conduct under s 51(1)(a) as a result of his failure to enter into a written contract for electrical work he carried out for Mr Jock Weir at Ellesmere on 31 October 2014. Mr Mawbey is also guilty of improper conduct under s 51(1)(b) because of his failure to carry out mandatory testing of the completed electrical work, which is an offence under s 31(1) of the Electricity (Consumer Safety) Act 2004. In the circumstances, I am satisfied Mr Mawbey carried out the electrical work otherwise than with due care and skill and is therefore also guilty of improper conduct under s 51(1)(d) of the HB Act. Fit and proper 1. The term fit and proper is not defined in the HB Act. It is, however, a common statutory term which has been considered by this Tribunal and in other jurisdictions in numerous cases. It is well established that, in considering the meaning of those words, the Tribunal will have regard to the context in which the words appear in the first instance: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, at 408; also, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69]. 2. In White v Commissioner for Fair Trading [2017] NSWCATAD 233, the Tribunal at [111] usefully set out the principles to be considered in assessing a person's fitness and propriety as follows: * Fitness and propriety must be considered in the light of the particular calling for which the Applicant is seeking a licence and the statutory intention of the relevant Act; * Issues of the Applicant's character are relevant; * Past conduct is a relevant guide to future conduct; * Fitness and propriety includes issues of honesty, knowledge of the calling and ability in the skills of the calling; and * The decision maker should consider all information both "for and against" when determining fitness and propriety. 1. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. 1. They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 1. Mr Mawbey has shown a disregard for his obligations under the HB Act and for following appropriate testing when dealing with an electrical installation which has the potential to be dangerous to consumers and to him. His failure to follow proper procedures in carrying out his work, left a metal shed electrified. This was very serious and had the potential to result in severe injury or even death. 2. While Mr Mawbey may have found that the job involved more work than he had originally envisaged, there is no suggestion that the job was difficult or required a level of skill greater than normal. There is also no suggestion that the testing he was required to carry out was unusual or complex. 3. Even if Mr Mawbey had found the voltage readings he claimed to have found, his failure to take steps to identify the source of the problem before proceeding to connect the wiring indicates that his only concern was to get the job done rather than to get it done safely. Similarly, by his account, he proceeded to conduct tests with a multimeter he thought was faulty. 4. Mr Mawbey has also adopted a practice of not providing written contracts for electrical work he undertakes. While there is no evidence of the amount of his work that is residential building work within the HB Act, it can be assumed that at least a proportion of his work would fall into that category. 5. Mr Mawbey has vigorously asserted that he did nothing wrong. He certified that he performed certain tests which he did not and changed his evidence in order to justify his position. He shows no insight into his conduct or remorse. 6. Mr Mawbey has given untruthful evidence to Fair Trading and to the Tribunal. This does not reflect well on his character. 7. I find that Mr Mawbey is not a fit and proper person to hold a contractor licence or authority under the HB Act. Disciplinary action 1. Mr Mawbey's licence was cancelled by the Commissioner on 23 February 2017 and he was disqualified from holding a further licence or certificate for six months. He was also required to complete an assessment on wiring rules prior to reapplying for a licence. 2. In these proceedings the Commissioner submits that Mr Mawbey's licence should be cancelled and he should be disqualified from being the holder of any licence or authority under the HB Act until 19 February 2020. 3. Mr Mawbey's conduct was serious and, as noted above, he has shown no insight into his conduct or remorse. I have not, however, other than with respect to his failure to provide contracts in writing, been pointed to any other pattern of conduct or sub-standard work by him. Mr Mawbey has already been without his licence for many months. 4. In my view it is appropriate that Mr Mawbey be disqualified from holding a licence or authority under the HB Act until 1 January 2019. Orders 1. The decision that the applicant is guilty of improper conduct is affirmed. 2. The decision to take disciplinary action against the applicant is varied so that the applicant is disqualified from holding any contractor licence or authority under the Home Building Act 1989 until 1 January 2019. ********** 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: 22 August 2018