Barbour v Melling & Anor [2022] QCA 254 (2022) 12 QR 545

SUPREME COURT OF QUEENSLAND CITATION: Barbour v Melling & Anor [2022] QCA 254 PARTIES: ALICE BESSIE BARBOUR (appellant) v ROBERT MELLING (first respondent) ACTING MAGISTRATE RONALD MUIRHEAD (second respondent) FILE NO/S: Appeal No 8349 of 2022 SC No 15133 of 2021 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane – [2022] QSC 125 (Martin SJA) DELIVERED ON: 9 December 2022 DELIVERED AT: Brisbane HEARING DATE: 15 November 2022 JUDGES: Morrison and McMurdo JJA and Callaghan J ORDER: The appeal be dismissed with costs. CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – where the first respondent filed a complaint against the appellant in the Magistrates Court, alleging an offence against the Property Occupations Act 2014 (Qld) (POA) – where the offence was an indictable offence – where the appellant sought to have the complaint struck out on the basis that it was commenced outside the limitation period in s 225(1) POA – where s 225(1) POA prescribes a one-year time period within which a proceeding for an offence must be taken in a summary way under the Justices Act 1886 (Qld) – where s 225(2) POA provides that a proceeding for an indictable offence may be taken either by way of summary proceedings under the Justices Act 1886 (Qld) or on indictment – whether the limitation period in s 225(1) applies to an indictable offence Justices Act 1886 (Qld) Property Occupations Act 2014 (Qld), s 206(2)(a), s 225(1), s 225(2) C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905, cited -- 1 of 7 -- 2 Harding v Coburn [1976] 2 NZLR 577, cited Latter v Muswellbrook Corporation (1936) 56 CLR 422; [1936] HCA 70, cited M’Cafferty v MacAndrews & Co Ltd [1930] AC 599, applied COUNSEL: G D Beacham KC, with P J Wilson, for the appellant A L Bain for the first and second respondents SOLICITORS: Donovan Winkler Lawyers for the appellant Legal Advice and Advocacy, Department of Justice and Attorney-General, for the first and second respondents [1] MORRISON JA: I agree with his Honour McMurdo JA. [2] McMURDO JA: The first respondent to this appeal is an officer at the Office of Fair Trading. On 8 October 2020, he filed a complaint in the Magistrates Court, alleging that the appellant, as a licensed real estate agent, had committed an offence against s 206(2)(a) of the Property Occupations Act 2014 (Qld) (POA). He alleged that the appellant had dishonestly converted monies from her trust account for her own use during a period of three years to 20 August 2019. [3] Section 225 of the POA provides for a proceeding for an offence against that Act, and by s 225(1), a limitation period is prescribed. The appellant sought an order in the Magistrates Court to have the complaint struck out on the basis that it was commenced outside that limitation period. Acting Magistrate Muirhead ruled that the complaint was not made out of time and dismissed the application to strike it out. The appellant then applied to the Supreme Court for declarations and other orders to prevent the first respondent from proceeding with the complaint, again on the ground that it was made out of time. In the judgment under appeal, Martin SJA dismissed that application.1 [4] Section 225 of the POA provides: “225 Proceedings for an offence (1) Subject to subsection (2), a proceeding for an offence against this Act must be taken in a summary way under the Justices Act 1886 within the later of the following— (a) 1 year after the offence is committed; (b) 6 months after the commission of the offence comes to the complainant’s knowledge, but within 2 years after the commission of the offence. (2) A proceeding for an indictable offence may be taken, at the prosecution’s election— (a) by way of summary proceedings under the Justices Act 1886; or (b) on indictment. (3) A proceeding against a person for an indictable offence must be before a magistrate if it is a proceeding— 1 Barbour v Melling & Anor [2022] QSC 125 (Judgment). -- 2 of 7 -- 3 (a) for the summary conviction of the person; or (b) for an examination of witnesses for the charge. (4) If a proceeding for an indictable offence is brought before a justice who is not a magistrate, jurisdiction is limited to taking or making a procedural action or order within the meaning of the Justices of the Peace and Commissioners for Declarations Act 1991. (5) If— (a) a person charged with an indictable offence asks at the start of a summary proceeding for the offence that the charge be prosecuted on indictment; or (b) the magistrate hearing a charge of an indictable offence considers the charge should be prosecuted on indictment; the magistrate— (c) must not decide the charge as a summary offence; and (d) must proceed by way of a committal proceeding. (6) If a magistrate acts under subsection (5)— (a) any plea of the person charged, made at the start of the proceeding, must be disregarded; and (b) any evidence brought in the proceeding before the magistrate decided to act under subsection (5) is taken to be evidence in the proceeding for the committal of the person for trial or sentence; and (c) before committing the person for trial or sentence, the magistrate must make a statement to the person under the Justices Act 1886, section 104(2)(b). (7) The maximum penalty that may be imposed on a summary conviction of an indictable offence is 200 penalty units or 1 year’s imprisonment. (8) In this section— indictable offence means an offence against this Act for which the maximum penalty of imprisonment is more than 2 years.” [5] The alleged offence, according to s 206(2), is a crime punishable by a maximum penalty of five years’ imprisonment. Consequently, it is an indictable offence as defined in s 225(8), and the proceeding in the Magistrates Court was a proceeding taken in that Court under s 225(2). [6] The question in this case is whether the limitation period prescribed by s 225(1) applies to a proceeding taken for an indictable offence, at least if the proceeding is taken by way of summary proceedings under the Justices Act 1886 (Qld). Justice Martin answered that question in the negative. -- 3 of 7 -- 4 The magistrate’s decision [7] The proceeding in the Supreme Court was brought under the Judicial Review Act 1991 (Qld), or alternatively under the Court’s general jurisdiction to give declaratory relief. The grounds were that the magistrate’s decision was contrary to law, the Magistrates Court had no jurisdiction for the complaint and the magistrate fell into jurisdictional error in holding otherwise. Each ground made the same essential complaint, namely that the magistrate ought to have held that the limitation period prescribed by s 225(1) applied to this proceeding. [8] The acting magistrate reasoned as follows: “In my view, a complaint made pursuant to section 206 (2) (a) of the Property Occupations Act 2014 is only bound by the time limitations as provided for in section 225 (1) of that Act if the prosecution elects to have the complaint taken by way of summary proceedings under the Justices Act. That is not the case in the complaint before the court as the prosecution have clearly indicated that they have always intended to exercise their right to proceed on indictment. For those reasons I find that the complainant did not commence proceedings for the complaint before the court out of time (citations omitted).”2 [9] That was not the reasoning of Martin SJA and nor is it endorsed by either of the submissions. The reasoning of the primary judge [10] Justice Martin summarised out the argument for the appellant, which in substance is repeated in this Court, as follows:3 (a) Section 225(1) deals with two different topics: (i) that proceedings for an offence under the POA “must” be taken in a summary way; and (ii) that proceedings must be commenced within the time period set out in s 225(1). (b) Although s 225(1) is “subject to” s 225(2), the latter subsection is confined to providing a prosecutor with an election – to proceed summarily or on indictment. (c) Section 225(2) says nothing about the time in which proceedings must commence – it only deals with the mode of proceeding. (d) Because s 225(2) only deals with the mode of proceeding, it does not qualify that part of s 225(1) which deals with the time limits. (e) The plain meaning of the words used in s 225 is, therefore, that the limitation period in s 225(1) applies to all offences, indictable or not, and the exercise of the election provided for in s 225(2) has no effect on that limitation period. 2 Citied in the Judgment at [10]. 3 Judgment [12]. -- 4 of 7 -- 5 (f) It follows, then, that the learned acting magistrate erred and that, because the proceeding was commenced more than one year after the offence was committed, there was no jurisdiction in the court. [11] That argument was rejected succinctly as follows: “…Putting to one side the “subject to” question, this subsection does not deal with two topics, it deals with one – the commencement of summary proceedings. It sets out the broad proposition that proceedings for offences under the POA are to be the subject of summary proceedings under the Justices Act which must be taken within a particular time. The requirements of the subsection cannot be cut in two – they consist of one command to a prospective prosecutor.”4 As to the effect of the words “subject to” in s 225(1), the judge cited a number of authorities on the effect to be given to that expression, including C & J Clark Ltd v Inland Revenue Commissioners5 and Harding v Coburn,6 before concluding as follows: “[18] Section 225(2) provides a prosecutor with an election as to the path to be taken: either a summary trial or a trial on indictment. There is no time limit for the making of that election. [19] The argument advanced for Ms Barbour would limit the exercise of that election. Such a limitation is inconsistent with the otherwise unfettered discretion of the prosecutor. As it is inconsistent, that construction must yield to the provision in s 225(2). Thus, a proceeding for an indictable offence under the POA is not subject to the time limits in s 225(1).” Consideration [12] Within s 225 there are provisions governing the ways in which a proceeding may be taken, and provisions governing the way in which a proceeding might then progress. In the former category are subsections (1) and (2). In the latter category are subsections (3), (4), (5), (6) and (7), which apply only where the proceeding is for an indictable offence. [13] It is necessary to identify what is meant in subsections (1) and (2) by the taking of a proceeding. In M’Cafferty v MacAndrews & Co Ltd,7 Lord Warrington of Clyffe said that the expression “taking proceedings under this Act” had a meaning which was “familiar to all lawyers” and which applied “only to those steps which according to the law applicable to the particular case initiate the process by which the claimant seeks to recover what he claims to be due to him…”8. There is no reason to give the word “taken” in these provisions anything other than that familiar meaning. [14] Consequently, the prosecution’s election under subsection (2) is made at the point of the commencement of a proceeding for an indictable offence. An election to take 4 Judgment [13]. 5 [1973] 1 WLR 905. 6 [1976] 2 NZLR 577. 7 [1930] AC 599 at 623. 8 Emphasis added; quoted with approval in Latter v Muswellbrook Corporation (1936) 56 CLR 422 at 439 per Dixon J. -- 5 of 7 -- 6 a proceeding for an indictable offence on indictment could be made by the presentation of an ex officio indictment under s 561 of the Criminal Code. [15] Section 225(5) provides for two circumstances in which a magistrate must not decide the charge as a summary offence and must proceed by way of a committal proceeding. One is where the person charged asks at the start of a summary proceeding for the charge to be prosecuted on indictment; the other is where the magistrate hearing the charge of an indictable offence considers that the charge should be prosecuted on indictment. It would not be engaged by a purported election by the prosecution after a summary proceeding for the offence has been commenced. [16] The Criminal Code provides that criminal offences comprise crimes, misdemeanours and simple offences, and that the crimes and misdemeanours are indictable offences, meaning that the offender cannot, unless otherwise expressly stated, be prosecuted or convicted except upon indictment.9 Chapter 58A of the Code provides for charges of indictable offences that may or must be heard and decided summarily. However, those provisions have no application to an offence against the POA. Section 225 defines an indictable offence for its purposes, and provides for the ways in which a proceeding for such an offence may be taken, at the prosecution’s election, as well as the way in which the prosecution of the charge should continue. Consequently, there is a time limitation on the prosecutor’s discretion, at least from the prosecution having to elect at the point of commencing a proceeding for an offence. The question is whether the discretion is further limited by the limitation period expressed in subsection (1). [17] It is evident that despite some difference in the text, there is no difference between a proceeding being “taken in a summary way under the Justices Act 1886” in subsection (1) and a proceeding being “taken … by way of summary proceedings under the Justices Act 1886” in subsection (2). [18] Subsection (2) provides that a proceeding for an indictable offence may be taken in either of the ways which it describes. It does not repeat the language of subsection (1), by which a proceeding “must be taken …”. In other words, in the language of the primary judge, subsection (2) contains no command to a prosecutor. That is one indication that a proceeding for an indictable offence is not to be the subject of the limitation period prescribed by subsection (1). [19] I agree with the analysis by the judge that subsection (1) consists of “one command” to a prospective prosecutor, in that it prescribes the time within which a proceeding for an offence must be taken in a summary way under the Justices Act. Subsection (1) is not in terms which impose the limitation period upon any proceeding for an offence, however that proceeding might be taken. More particularly, it is not in terms which prescribe a time limitation upon a proceeding being taken “on indictment”. Consequently, in the absence of any indication of such a time limitation from the text of subsection (2), or from any other provision, there is no prescribed period of limitation for a proceeding taken on indictment. [20] In turn, that indicates that there is no limitation period upon a proceeding for an indictable offence which is taken by way of summary proceedings, pursuant to subsection (2)(a). It is unlikely to have been intended that there should be a time limit 9 Criminal Code (Qld), ss 3(2), (3). -- 6 of 7 -- 7 on a proceeding for an indictable offence if commenced in one way, but not in another. The more likely intention, having regard to the statutory text and context together with the purposes of a limitation period, is that subsection (2) was to be the only provision governing the commencement of a proceeding for an indictable offence, and that the words at the commencement of subsection (1), namely “subject to subsection (2)”, should be read as “except for a proceeding for an indictable offence …”. Conclusion and orders [21] The construction by the primary judge was correct. I would order that the appeal be dismissed with costs. [22] CALLAGHAN J: I agree with the reasons of McMurdo JA. -- 7 of 7 --