Barbour v Melling & Anor [2022] QSC 125 [2022] 26 QLR

SUPREME COURT OF QUEENSLAND CITATION: Barbour v Melling & Anor [2022] QSC 125 PARTIES: ALICE BESSIE BARBOUR (applicant) v ROBERT MELLING (first respondent) and ACTING MAGISTRATE RONALD MUIRHEAD (second respondent) FILE NO/S: BS No 15133 of 2021 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 22 June 2022 DELIVERED AT: Brisbane HEARING DATE: 1 April 2022 JUDGE: Martin SJA ORDER: Application dismissed CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – where the Property Occupations Act 2014 (POA) specifies that a proceeding for an indictable offence may be taken at the prosecution’s election by way of summary proceedings or on indictment – where the POA also specifies that a proceeding for an offence under the POA must be taken in a summary way within one year after the offence is committed – where the first respondent filed a Complaint and Summons in the Magistrates Court at Mackay in which it was alleged that the applicant committed an offence under the POA – where the complaint was sworn more than one year after the last date on which it is alleged the offence was committed – whether a proceeding for an indictable offence under the POA is subject to the one year time limit Justices Act 1886 Property Occupations Act 2014, s 206(2)(a), s 225 -- 1 of 8 -- 2 C. & J. Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905 Craig v South Australia (1995) 184 CLR 163 DPP v Leys (2012) 44 VR 1 Harding v Coburn [1976] 2 NZLR 577 Jabbcorp (NSW) Pty Ltd v Strathfield Gold Club [2021] NSWCA 154 Price v JF Thompson (Qld) Pty Ltd [1990] 1 Qd R 278 Re Bland Bros and the Council of the Borough of Inglewood (No 2) [1920] VLR 522 Sir Thomas Cecil’s Case (1597) 7 Co Rep 18b COUNSEL: G D Beacham QC and P Wilson for the applicant W M Slack for the first respondent SOLICITORS: Donovan Winkler Lawyers for the applicant Office of Fair Trading for the first respondent [1] Mr Melling, an officer at the Office of Fair Trading, filed a Complaint and Summons in the Magistrates Court at Mackay in which it was alleged that Ms Barbour had committed an offence under s 206(2)(a) of the Property Occupations Act 2014 (POA). [2] The complaint alleges that the contravention took place between 23 October 2016 and 20 August 2019. [3] The complaint was sworn on 8 October 2020, that is, more than one year after the last date on which it is alleged the offence was committed. [4] Ms Barbour sought an order in the Magistrates Court striking out the complaint on the basis that it was commenced outside the one-year period allowed under s 225 of the POA. [5] The second respondent, who has been given leave to withdraw, had held that the complaint was made within time and dismissed the application to strike out. [6] Ms Barbour seeks declarations and other orders which would have the effect of preventing Mr Melling from proceeding on the complaint. -- 2 of 8 -- 3 The legislation [7] The relevant provision in the POA is s 225. It 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— (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 -- 3 of 8 -- 4 (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.” [8] The complaint alleges a breach of s 206(2)(a) of the POA. That section provides: “206 Wrongful conversion and false accounts (1) This section applies if a licensee in performing the activities of a licensee or a real estate salesperson in performing the activities of a real estate salesperson— (a) receives an amount belonging to someone else; or (b) falsely accounts for money. (2) The licensee or real estate salesperson commits a crime if the licensee or salesperson— (a) dishonestly converts the amount to the licensee’s or salesperson’s own or someone else’s use; or (b) dishonestly renders an account of the amount knowing it to be false in a material particular. Maximum penalty—1000 penalty units or 5 years imprisonment. (3) For a prosecution under subsection (2)(a), it is enough for the prosecution to prove the licensee or real estate salesperson dishonestly converted an amount belonging to someone else to the licensee’s or salesperson’s own use or someone else’s use without having to prove the amount belonged to a particular person. (4) If conduct alleged to constitute an offence under subsection (2) is recurrent so that, but for this subsection, each instance of the conduct would allegedly constitute a separate offence, 2 or more instances of the conduct are to be taken to constitute 1 alleged offence committed over the period stated in the complaint or indictment in relation to the conduct, and may be charged and proceeded against on 1 charge. -- 4 of 8 -- 5 (5) A licensee or real estate salesperson, in performing the activities of a licensee or real estate salesperson, must not, including by the rendering of an account, represent that the licensee or salesperson has received an amount from someone else when the licensee or salesperson has not in fact received the amount. Maximum penalty—540 penalty units. (6) In this section— licensee includes a former licensee and a person who is not licensed, but who acts as a licensee. real estate salesperson includes a former real estate salesperson and a person who is not a real estate salesperson, but who acts as a real estate salesperson. Note— A person may make a claim, under the Administration Act, against the fund if the person suffers financial loss because of a contravention of this section.” [9] A breach of s 206(2)(a) exposes an offender to a maximum penalty of imprisonment of five years. It is, therefore, an “indictable offence” within the meaning of s 225(8). The Acting Magistrate’s decision [10] The Acting Magistrate said: “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).” -- 5 of 8 -- 6 [11] If the Acting Magistrate erred in making that finding, then that constitutes a mistaken assertion of jurisdiction which amounts to jurisdictional error of the type described in Craig v South Australia:1 “An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or misconception or disregard of the nature or limits of jurisdictions.”2 The applicant’s argument [12] Mr Beacham QC (who appeared for the applicant) argued that: (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. 1 (1995) 184 CLR 163. 2 At 177. -- 6 of 8 -- 7 (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. (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. What does s 225(1) require? [13] I do not accept the characterisation advanced by the applicant. 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. What is the effect of the words “subject to”? [14] In C. & J. Clark Ltd v Inland Revenue Commissioners,3 Megarry J (as he then was) was faced with a complicated set of sections which dealt with the apportionment of income among company participators. After considering submissions which he described as ingenious but fallacious he said: “In my judgment, the phrase “subject to” is a simple provision which merely subjects the provisions of the subject subsections to the provisions of the master subsections. Where there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision.”4 [15] That analysis was adopted by Cooke J (as he then was) in Harding v Coburn5 where, in giving the judgment of the Court of Appeal, he said: 3 [1973] 1 WLR 905; affirmed [1975] 1 WLR 413. 4 At 911. 5 [1976] 2 NZLR 577. -- 7 of 8 -- 8 “The qualification “subject to” is a standard way of making clear which provision is to govern in the event of conflict. It throws no light, however, on whether there would in truth be a conflict without it.”6 [16] The prefatory words “subject to”, “notwithstanding”, “despite” and other similar terms are frequently seen in legislation and each of them calls upon the reader to engage in the same process of analysis. The task was described in this way in Re Bland Bros and the Council of the Borough of Inglewood (No 2):7 “As to the introductory words, the section should first be construed without them, and then, if there is anything in the other provisions of the Act inconsistent with the interpretation so arrived at, these other provisions must yield.”8 [17] This mode of drafting has an ancient lineage9 and the method used in Re Bland Bros has been consistently applied to similar words by appellate courts – Price v JF Thompson (Qld) Pty Ltd,10 DPP v Leys,11 and Jabbcorp (NSW) Pty Ltd v Strathfield Golf Club.12 Application of that approach [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). Order [20] The application is dismissed. 6 At 582. 7 [1920] VLR 522. 8 At 533. 9 Sir Thomas Cecil’s Case (1597) 7 Co Rep 18b; 77 ER 440. 10 [1990] 1 Qd R 278 at 281. 11 (2012) 44 VR 1 at [157]. 12 [2021] NSWCA 154 at [35]-[36]. -- 8 of 8 --