Cross Country Realty Pty Ltd & Ors v Peebles [2006] QCA 501 [2007] 2 Qd R 254

SUPREME COURT OF QUEENSLAND CITATION: Cross Country Realty P/L & Ors v Peebles [2006] QCA 501 PARTIES: CROSS COUNTRY REALTY PTY LTD ACN 086 154 949 CROSS, Kellie Lee-Ann CROSS, Ronald Malcolm (applicants) v PEEBLES, David Lindsay (respondent) FILE NO/S: CA No 240 of 2006 CA No 241 of 2006 CA No 242 of 2006 DC No 329 of 2005 DC No 328 of 2005 DC No 330 of 2005 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Criminal) ORIGINATING COURT: District Court at Southport DELIVERED ON: 1 December 2006 DELIVERED AT: Brisbane HEARING DATE: 17 November 2006 JUDGES: McMurdo P, Keane JA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Application for leave to appeal refused with costs to be assessed CATCHWORDS: APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - TIME FOR APPEAL - EXTENSION OF TIME - WHEN REFUSED - where respondent public officer brought complaints against each of the three applicants under the Property Agents and Motor Dealers Act 2000 (Qld) - where the complaints were dismissed in the Magistrates Court as having been brought outside time constraints imposed by the above Act - where District Court judge ruled to the contrary - where applicants contend that the judge misinterpreted the relevant provision and now apply for leave to appeal - whether the judge did so misinterpret the provision - whether the proceeding was brought within time -- 1 of 5 -- 2 District Court of Queensland Act 1967 (Qld), s 118(3) Property Agents and Motor Dealers Act 2000 (Qld), s 132(2), s 138(1)(c), s 550, s 581(2), s 589, s 591(2) Smith v Baldwin; ex parte Smith [1979] Qd R 380, considered Weiss v The Queen (2005) 224 CLR 300, applied COUNSEL: M J Byrne QC for the applicants A J Rafter SC for the respondent SOLICITORS: Ryan & Bosscher for the applicants Crown Law for the respondent [1] McMURDO P: This is an application for leave to appeal under s 118(3) District Court of Queensland Act 1967 (Qld) from a District Court judge's order on an appeal under s 222 Justices Act 1886 (Qld) setting aside an order of the Magistrates Court at Southport and remitting the matters to the Magistrates Court to be tried according to law. [2] The respondent, David Lindsay Peebles, an officer employed by the Office of Fair Trading ("OFT"), brought 39 complaints against each of the three applicants under the Property Agents and Motor Dealers Act 2000 (Qld) ("the Act"). The corporate applicant was charged with 38 offences under s 138(1)(c) of the Act in that being a residential property agent for the sale of residential property it failed to disclose to a prospective buyer the amount of any benefit any person expected to receive in connection with the sale of the property. It was also charged under s 132(2) of the Act with failing to ensure that the individual in charge of business at its registered office was a real estate agent. Each of the individual applicants was charged as an executive officer with 38 breaches of s 591(2) of the Act by failing to ensure that the corporate applicant complied with s 138(1)(c) and also with borrowing a licensee's licence contrary to s 581(2) of the Act. [3] At the commencement of the trial in the Magistrates Court the applicants took the preliminary point that the complaints should be dismissed because they were out of time under s 589 of the Act. That section provides: "589 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." [4] It is now common ground that Mr Peebles brought the complaints against the applicants on 21 June 2004. Mr Peebles gave evidence that he first became aware of information implicating the applicants in possible contraventions of the Act on 29 May 2003. He then commenced a "running sheet", logging his work done in the investigation. The next day he contacted the informant and obtained more details. On 25 June 2003 he attended the corporate applicant's premises with fellow OFT officer, Mr Cushion, who had obtained a search warrant. Mr Peebles assisted in the search of the premises, the removal of property and the completion of property -- 2 of 5 -- 3 seizure sheets. Between 70 and 90 boxes of material were removed and taken by truck from the applicants' offices at the Gold Coast to the OFT in Brisbane. His next involvement in the investigation was on 16 January 2004 when he received an email. He next spoke by telephone to someone on 30 January in respect of the matter. Shortly before 24 March 2004 he began to sift through the seized documents to identify the developers whom he considered he needed to interview and obtain statements from before he could come to a view about whether the applicants had committed any offences. [5] Mr Cushion, an OFT Principal Compliance and Enforcement Officer, gave evidence that an informant contacted the OFT about the applicants. Inquiries were then undertaken and he swore a complaint for the issue of a search warrant on 24 June 2003 in which he stated that the OFT received a complaint on 22 May 2003, that on 24 June 2003 he reasonably believed the applicants and others had contravened provisions of the Act including s 138 and "... that continued investigations into this matter may further reveal evidence of the commission of these offences". [6] The magistrate found that Mr Peebles had "sufficient personal knowledge of reasonable grounds as to the commission of an offence/s as at May and June 2003" and that the complaints were therefore brought outside the time constraints imposed by s 589 of the Act and so dismissed the complaints with costs. [7] The District Court judge reached a contrary view on appeal. His Honour considered that s 589(1)(b) was "... not satisfied by the fact that information sufficient to found a reasonable belief that an offence has been committed, has come into the possession of the complainant or has become available to him, if he has not in fact acquainted himself with that information. Until that situation occurs it is not possible ... to say that the commission of the offence has 'come to the complainant's knowledge'."1 His Honour found that Mr Peebles could not be said to have obtained knowledge of the commission of the offences until some time in March 2004 when he examined the seized material so that the complaints were brought within the time limits provided by s 589. [8] The applicants now contend that the judge has misinterpreted a significant provision of an important statute so that leave to appeal to this Court should be granted to ensure that this error is not repeated in future prosecutions under the Act. They argue that the complaints were outside the time constraints imposed by s 589(1)(b) because time runs under that provision as soon as anyone in the OFT entitled to lay the complaints has reasonable grounds to believe the applicants have committed an offence under the Act. In support of that submission they refer to the following observations of W B Campbell J (as he then was) concurring with the Act's predecessor, the Auctioneers and Agents Act 1971 (Qld), in Smith v Baldwin; ex parte Smith:2 "In any event, there is not one jot of evidence to show that any person who may have been authorised under the Act to lay a complaint either had knowledge, or had, or should have had, reasonable grounds to believe, prior to August 1, 1977, that the respondent had committed an offence. Consequently, whether or not 1 Peebles v Cross [2006] QDC 269; DC Nos 328, 329 and 330 of 2005, 4 August 2006, McLauchlan QC DCJ, [12]. 2 [1979] Qd R 380, 386, Stable SPJ agreeing. -- 3 of 5 -- 4 there may be some situations where a person who lays a complaint should be deemed to have had the prior knowledge possessed by his servant or agent does not arise for consideration here." [9] Those observations were not central to the decision in Smith and are therefore not binding on this Court. In any case they relate to a different although similar provision under a different although similar statute. The High Court has repeatedly emphasized the need when interpreting and applying a statutory provision to look at the language of the statute rather than secondary sources or materials: Weiss v The Queen.3 Proceedings under the Act may be brought summarily under the Justices Act 1886 (Qld).4 Under the Justices Act s 142A, complaints under the Act can be brought by a "public officer", a broadly defined term which includes "an officer or employee of the public service of the State ...".5 Both Mr Peebles and Mr Cushion were public officers entitled to bring complaints under the Act. But the complainant in each of the complaints the subject of this application was not Mr Cushion but Mr Peebles. The plain words of s 589 require only that the proceeding for an offence against the Act be taken within one year after the offence is said to have been committed (s 589(1)(a)) or six months after the commission of the alleged offence comes to the complainant's knowledge as long as that is within two years after the commission of the alleged offence (s 589(1)(b)). Giving the words in s 589(1) their ordinary meaning, the term "complainant" in s 589(1)(b) means the complainant who brings the proceedings for an offence or offences under the Act, here Mr Peebles. That interpretation, which still places firm temporal limits on bringing proceedings within, at the maximum, two years after the alleged commission of the offence, is consistent with the objects of the Act set out in s 10. It is also consistent with Holmes J's observations about similar provisions in the Auctioneers and Agents Act in Foxpine Pty Ltd v Collings,6 with which Davies JA and I agreed, and with Williams J's approach taken to different but analogous statutory provisions in Ayres v WorkCover Queensland.7 [10] That is sufficient to dispose of the applicants' contentions but I also make the following observation. The knowledge and belief necessary to satisfy a magistrate under s 550 of the Act that there are reasonable grounds for suspecting that there may be evidence obtained at the place the subject of the search will not necessarily equate to the knowledge to which s 589(1)(b) refers. The knowledge referred to in s 589(1)(b) requires a higher degree of certainty than the reasonable grounds for suspicion required for the issue of a search warrant under s 550(1) of the Act. It involves the complainant having knowledge of facts sufficient to establish a person's contravention of the Act. [11] In the light of the undisputed evidence from Mr Peebles, which the magistrate appears to have accepted, the magistrate could not have reasonably found that Mr Peebles had reasonable grounds for believing the applicants had committed offences under the Act before he examined the seized boxes of documents in March 2004. At that time he had not and could not have formed a view about whether he had sufficient evidence to bring charges against the applicants under the Act. It 3 (2005) 224 CLR 300, 312 [31]. 4 The Act, s 589(1) and s 589(2). 5 Justices Act 1886 (Qld) s 5, definition of "public officer" (a). 6 [2001] QCA 355; Appeal No 4752 of 2001, 24 August 2001. 7 Unreported, Industrial Court of Queensland, No C28 of 1998, 17 August 1998. -- 4 of 5 -- 5 follows that the complaints brought by Mr Peebles against the applicants on 21 June 2004 were within the time limits permitted by s 589(1) of the Act. The decision of the District Court judge was plainly right. This is not an appropriate case in which to grant leave to appeal under s 118(3) District Court of Queensland Act 1967 (Qld). Order [12] The application for leave to appeal is refused with costs to be assessed. [13] KEANE JA: I agree with the reasons of McMurdo P and the order proposed by her Honour. [14] CHESTERMAN J: I agree with McMurdo P. -- 5 of 5 --