Baillie v The Home Company Pty Ltd [2000] QDC 36

DISTRICT COURT OF QUEENSLAND CITATION: Baillie v. The Home Company Pty Ltd [2000] QDC 036 PARTIES: NOEL TREVOR BAILLIE (Appellant) v. THE HOME COMPANY PTY LTD (Respondent) FILE NO/S: Appeal 3443 of 1999 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Maroochydore Magistrates Court DELIVERED ON: 24 March 2000 DELIVERED AT: Brisbane HEARING DATE: 14 March 2000 JUDGE: McGill DCJ ORDER: Order for costs varied by omitting $3,544 and substituting $1,600; otherwise appeal dismissed with costs CATCHWORDS: APPEAL AND NEW TRIAL – appeal from summary trial of offence under Fair Trading Act – whether appeal competent – Fair Trading Act 1989 ss. 55D, 92, 94; Justices Act 1886 s.222(1A) APPEAL AND NEW TRIAL – additional evidence on appeal – appeal from decision on prosecution for summary offence – whether additional evidence to be admitted – Justices Act 1886 s.223. TRADE AND COMMERCE – Fair Trading Legislation – prosecution for offence – need to prove consent to prosecution – Fair Trading Act 1989 ss. 55D, 94, 112(1) Dever v. Creevey [1993] 1 Qd.R. 232 – followed and distinguished R. v. His Honour Judge Dodds [1990] 2 Qd.R. 80. Williamson v. Antill [1955] QWN 43 Klough v. Fergus [1956] QWN 7 Kopp v. Kopp [1956] QWN 41 R v. O’Neill (1995) 81 A.Crim.R. 458 at 564 R v. Paddon (CA122/98, Court of Appeal, 28.8.98) Chilcotin Pty Ltd v. Cenelage Pty Ltd [1999] NSWCA 11 -- 1 of 8 -- 2 COUNSEL: R. Vize for the appellant P.H. Godsall for the respondent SOLICITORS: Crown Solicitor for the appellant Butler McDermott & Egan for the respondent [1] This is an appeal from a decision of a Stipendiary Magistrate at Maroochydore who on 26 July 1999 dismissed a complaint by the appellant against the respondent. The complaint which was filed on 10 February 1999 alleged that “between the second day of July 1998 and the 31st day of July 1998 at Maroochydore … [the respondent] was the promoter of a trading scheme known as Equitynet, and by holding out to someone else (the “payer”) … . the prospect of receiving benefits for the introduction, by the payer, of other persons who became participants in the scheme, attempted to induce the payer, who was already a participant in the scheme, to make a payment to or for the benefit of the promoter. … ”. The offence alleged is one created by s.55D(2) of the Fair Trading Act 1989 (“the Act”). The complaint was dismissed specifically on the ground that, by s.94(6) of the Act, proceedings for an offence against the Act shall not be instituted without the Commissioner’s prior consent, and the appellant had not proved that the Commissioner had given consent for the prosecution. The Magistrate did not go on to say that but for this consideration he would have found the offence proved. Preliminary Point [2] A preliminary point arose on the hearing of the appeal. The respondent submitted that there was no jurisdiction in the District Court to hear an appeal under s.222 of the Justices Act 1886, on the ground that by s.222(1A) of the Justices Act a complainant aggrieved by a decision of justices dealing summarily with an indictable offence may appeal under s.222 only against sentence or an order for costs. The term “indictable offence” is defined in that Act as “an offence which may be prosecuted before the Supreme Court, District Court or other court having jurisdiction in that behalf by indicting in the name of the Attorney-General or other authorised officer.” The respondent emphasised the word “may” in that definition and the effect of s.94(2) of the Act, which provides that proceedings for an offence for which the maximum penalty is greater than 100 penalty units may be prosecuted either in a summary way under the Justices Act or on indictment at the election of the prosecution. This meant that an offence against s.55D(2), which provides for a higher penalty, was an “indictable offence” for the purposes of the Justices Act because the option exists for it to be prosecuted on indictment before the Supreme Court or a District Court. It followed that the offence was an “indictable offence” for the purposes of s.222(1A) and therefore, having been dealt with summarily in the Magistrates Court, the complainant could only appeal against sentence or an order for costs. [3] Counsel for the appellant relied on s.94(3) of the Act which provides that, if the prosecution elects to prosecute an offence against the Act in a summary way under the Justices Act 1886: -- 2 of 8 -- 3 “(b) for all purposes the offence alleged shall be taken to be a simple offence and not an indictable offence”. It appears from the history of the legislation that that provision was not inserted specifically to avoid the operation of s.222(1A) of the Justices Act 1886, since the expression in s.94(3)(b) was in the legislation when it was introduced in 1989. Subsection (1A) was introduced into s.222 by the Courts Reform Amendment Act 1997. Nevertheless, the words of this provision are quite clear and general in their application, so that where there is an election by the prosecutor to proceed under the Justices Act the offence is deemed to be a simple offence and not an indictable offence, so it cannot be an indictable offence being dealt with summarily, and s.222(1A) will not apply. Accordingly I overruled the preliminary objection to the competence of the appeal. Proof Of Consent To The Prosecution [4] The Act in s.112(1)(e) provides that in any proceedings under this Act: “The authority of any persons to take any proceedings shall be presumed unless the contrary is proved”. That provision was relied on by the appellant before the Magistrate, but this argument was not accepted and there is authority against it. In Dever v. Creevey [1993] 1 Qd.R. 232, Thomas J. said at p.241: “There is a difference between having the authority to do something and consenting to use the authority. Section 112(1)(e) helps prove the former but not the latter.” His Honour also said that the existence of the consent required for prosecution was not an element of the offence, but rather a procedural prescription, so that the existence of the consent would be presumed if the point were not taken on behalf of the defendant, but if the defendant did object it was necessary for the consent to be proved, and the objection could be taken in submissions after the close of the prosecution case: p.242. The approach of McPherson ACJ seems to have been the same: p.236-7. In that case there was a consent by the relevant person on the Magistrates Court file and the only deficiency was that there was a failure on the part of the prosecution to seek leave to re-open the prosecution case for the purpose of tendering that consent. McPherson ACJ said that if that application had been made, it could not properly have been refused, in the light of authorities to the effect that, the issue going only to procedure rather than to merits or substance, it was capable of being cured by production or by proof of the consent even after the prosecution case had been closed: p.237. In that case the Magistrate proceeded on the basis that the presence of the document on the court file was enough and convicted the defendant. The Full Court dismissed the appeal. -- 3 of 8 -- 4 [5] The present case however is different in that the document on the court file was not a consent by the Commissioner, but rather the consent of a person to whom the Commissioner’s power to consent had been delegated pursuant to s.19A of the Act. Although a court is required to take judicial notice of the signature of the Commissioner (s.19(2) and see Evidence Act 1977 s.42) so that a consent signed by the Commissioner could be tendered in evidence without further proof, there is no equivalent provision in relation to a document purportedly signed by a delegate of the Commissioner, and evidence would have to be given both of the fact of the consent by the delegate and of the fact of the delegation. Although it was not necessary for the prosecution to call that evidence as part of its case if the point were not taken by the defendant, the prosecution was put in the difficult position that, if the point did come to be taken, it would not be in a position to be able to respond to it immediately; counsel for the appellant conceded that it would have been necessary for the appellant to obtain an adjournment of the trial in order to enable the necessary evidence to be put before the Magistrates Court in an admissible form. [6] Accordingly, when the point was taken it was not simply a matter of re-opening an order to tender a document; it was a matter of re-opening an order to call further evidence which was not immediately available so that an adjournment would have to be obtained. [7] There is at this point a further difficulty, for the purposes of this appeal, in that, in Dever (supra), the consent was before the Full Court “for all purposes” so it was not necessary for that court to consider whether it was appropriate to exercise any of the powers given under s.213 of the Justices Act. In the present case, however, the consent did not become part of the evidence before the Magistrate, and there was no ruling on its admissibility, so that no question arises as to my reviewing on appeal a decision to exclude evidence or to refuse an application to reopen the case or to refuse an application for an adjournment. For the appellant to succeed now in overcoming the procedural objection it is necessary for the appellant to be able to put evidence of the consent before this court, a matter regulated by s.223(2) of the Justices Act 1886 which provides that: “A District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.” It is clear from the terms of this subsection that it is not confined to “fresh evidence” in the technical sense (see R v. O’Neill (1995) 81 A.Crim.R. 458 at 564), but otherwise the scope of this section, and the basis upon which the discretion to admit additional evidence may be exercised is not made clear, except that the reference to “special grounds” suggests that there needs to be some particular reason justifying the admission of such evidence which would distinguish a case where such evidence was admitted from the ordinary case where such evidence would not be admitted. [8] Traditionally, the admission of evidence on appeal has been restricted by the rules governing the admission on appeal of “fresh evidence”, but there are, I think, two reasons why it is not appropriate for this section to be interpreted as being so -- 4 of 8 -- 5 restrictive. The first is the express reference to “additional or substituted evidence”, and the second is the circumstance that there is a particular difficulty with appeals under s.222 because of the inability of the District Court on appeal to order a matter to be reheard in the Magistrates Court. There is no power simply to remit a matter for further hearing in the Magistrates Court: R v. His Honour Judge Dodds [1990] 2 Qd.R. 80. [9] Under the previous wording of this section, it seems there were various courses which could be taken depending on what was thought necessary in the circumstances. In Williamson v. Antill [1955] QWN 43, Mack J, when dealing with an appeal against sentence under s.222, said that because there was no certainty as to what was said before the Magistrate, he could only do justice if he allowed both parties to put evidence before him on affidavit. He then admitted in evidence an affidavit by the defendant, and affidavits of others as to his good character, and for the Crown affidavits by the arresting constable and the complainant, and the signed statement which the defendant had given to the police, and His Honour on that evidence allowed the appeal and substituted a different sentence. In Klough v. Fergus [1956] QWN 7, Townley J on an appeal against conviction, having read the depositions in the case, concluded that he could not do justice without seeing and hearing witnesses, and ordered that the appeal be by way of rehearing; following a rehearing which appears to have been a rehearing de novo, the appeal was allowed and conviction quashed. In Kopp v. Kopp [1956] QWN 41, Philp J refused an application for a rehearing de novo, apparently on the ground that even if the evidence of the appellant had been accepted, the Magistrate was right in making the order he did. There was no discussion about the correct approach to the discretion then given by s.223. [10] The present s.223(3) is perhaps inconsistent with the appeal becoming a rehearing de novo, but a situation could easily arise where it would be difficult to resolve the matter without such a rehearing. If, for example, evidence had been wrongly excluded with the result that a witness for one side was not contradicted, admission of the evidence on the appeal may result in a conflict of evidence arising which would be difficult to resolve without having the relevant witnesses called and giving their evidence again. This may be what is meant by substituted evidence. In those circumstances it may not be necessary to recall all of the witnesses, but it may be necessary for some evidence to be given orally. [11] It is therefore not difficult to see how the unfortunate omission of a power on hearing an appeal under s.222 to order the rehearing of the matter de novo could lead to a situation where additional evidence would have to be led in order to do justice between the parties, notwithstanding that the evidence was available and should have been, or indeed was, given in the Magistrates Court. The situation could also arise where a defendant does not give evidence in the Magistrates Court because of the state of the prosecution case as a result of a ruling on evidence adverse to the prosecution, but may want to resile from that and give evidence if on appeal that ruling on evidence is overturned. -- 5 of 8 -- 6 [12] There is therefore plenty of opportunity for s.223 to operate by way of adducing additional or substituted evidence without interfering with the ordinary principle of an appeal, that a party is bound by the conduct of the case at trial: R v. Paddon (CA122/98, Court of Appeal, 28.8.98); Chilcotin Pty Ltd v. Cenelage Pty Ltd [1999] NSWCA 11. I think there is an important difference between a situation where a party seeks to lead additional evidence at a hearing and that is refused, and a situation where no attempt is made at the hearing to lead the additional evidence, but on appeal the party seeks to plug some gap in the case exposed in the decision under appeal. I think that an appeal court should be much less willing to accept that approach, otherwise there is a risk that parties will not take sufficiently seriously the conduct of the trial, since they may assume that any deficiencies in their evidence can, if necessary, be made good on appeal. [13] In the present case the complainant ought to have either obtained a consent from the Commissioner which could have if necessary simply be tendered, if the point were taken (even after the close of the prosecution case if it were not taken earlier) as happened in Dever (supra), or been in a position if necessary to call evidence to prove consent by a person to whom there was a valid delegation by the Commissioner of the power to consent. Proof of the delegation would have been facilitated by the provisions of the Acts Interpretation Act 1954 s.27A(13), (14) and (15). It appears that in the present case neither of those steps were taken, and when the point was taken below the only response below was to attempt to rely on an argument which has already been authoritatively rejected. In my opinion, it would not be right at this stage to exercise the discretion given in s.223(2) to admit the fresh evidence in order to enable the appellant to adopt an approach which is now different from that pursued during the trial, although more appropriate than that approach. I do not think that it should be regarded as special grounds for giving leave to call additional evidence that the appellant did not appreciate at the trial the need to call that evidence, even if the evidence is crucial in the sense that without that evidence the prosecution will fail, but with that evidence it will succeed. [14] I therefore refuse to admit the additional evidence sought to be relied on by the appellant. In the absence of that evidence, the appellant still has not proved that there was consent to the prosecution and it follows that the appeal must be dismissed. In case a different view of this situation may be taken elsewhere however, I should deal with some other matters which were raised by the appellant on the hearing of the appeal. Admission of Evidence Of Payment [15] Another matter raised was as to the apparent exclusion of certain evidence tendered for identification. One of these, Exhibit A for identification, consisted of a cheque and a Westpac Bank statement which were tendered for identification after being identified by an employee of Westpac. Subsequently they were identified by a director of a company on whose account the cheque was drawn, and as a result they were tendered as an exhibit. The argument for the appellant proceeded on the basis that that tender was rejected by the Magistrate, but it seems to me clear both from the -- 6 of 8 -- 7 transcript and from the exhibit list which the Magistrate prepared that in fact the tender was accepted and these documents which had been Exhibit A became Exhibit 6. [16] At the same time there was tendered a deposit slip which showed a number of cheques, including apparently the cheque which became part of Exhibit 6, had been deposited to the account of the defendant on a particular day, this being identified by an officer of the bank holding the defendant’s account. That deposit slip had been then tendered for identification, since at that stage the evidence had not been led identifying the company by which the cheque was drawn with a person relevant to the hearing of the charge. Subsequently when a director of that company was called and identified the cheque, that deposit slip was, in my opinion, admissible as evidence to show that the cheque so identified by the director had been deposited to the defendant’s account with its bank on a particular day. Exhibit 6 showed that the cheque had been cleared; the deposit slip in Exhibit B was evidence that it had been cleared because it had been deposited to the account of the defendant, which gave rise to the inference that when the cheque was cleared the funds passed to the defendant’s account. [17] However, the Magistrate rejected the tender of Exhibit B on the basis that the witness could not identify the document which belonged to a different bank and was not her document. That was true but irrelevant; the significance of the evidence of that witness was that it made relevant an entry in the document in the name of a particular company. The document had already been identified by an officer of that bank whose document it was. The arguments at the hearing advanced by the solicitor for the respondent on this point of evidence were without substance and the Magistrate should have accepted the tender and made Exhibit B an exhibit in the trial. The document was properly identified by the officer of the bank, but its relevance was not established until after the other evidence was called, whereupon it became admissible as evidence against the defendant. [18] The fact that this evidence had been excluded may have led the defendant to elect not to call evidence, and may have resulted in the Magistrate’s comments about having doubts about the matter in other respects, although ultimately no other findings were made than that there was an absence of evidence of consent. The significance of the payment however is a little puzzling, since under s.55D(2) the making of the payment does not seem to be an element of the offence. The relevant offence if a payment is actually made seems to be the offence identified in subsection (3). It may be that there was a further difficulty with the charge under subsection (2) in that the complaint alleged that the relevant “payer” was already a participant in the scheme, when it seems that in fact he became a participant in the scheme only when he made the payment: T7. I have not looked closely at this point, but suspect there may have been difficulties in proving the offence as charged in any event. This, however, is not a matter on which I have heard full argument. -- 7 of 8 -- 8 Costs Of The Hearing [19] One other matter was raised by the appellant, as to the quantum of the costs ordered to be paid by the appellant when the complaint was dismissed. The Magistrate, after considering the matters contained in s.158A assessed costs at a total of $3,544, apparently based on amounts allowed under a scale of costs for civil proceedings in the Magistrates Court: see decision p.4. The Courts Reform Amendment Act 1997 by s.60, which commenced on 17 July 1999 (1999 SL No. 98) inserted s.158B into the Justices Act 1886. This provides that costs may only be awarded for an item described under a regulation when allowing costs under s.158, unless the justices are satisfied that a higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case. The Justices Amendment Regulation No. 2 of 1999 also commenced on 17 July 1999 and provided a limitation of $1,500 for instructions and preparation for the hearing, including attendance on day one of the hearing. There was also an amount of up to $250 provided for a court attendance other than on the hearing of the complaint. The Magistrate was unaware of these provisions and obviously did not have regard to them, something which is understandable given that they had only just commenced, but it was accepted on behalf of the respondent that they apply and that therefore no more than $1,500 should have been allowed for the hearing, although it was submitted that $500 should also be allowed in respect of the two other attendances when the matter was adjourned. These are the two attendances in respect of which the Magistrate allowed a total of $100. [20] The respondent did not oppose my allowing the appeal to the extent of varying the costs allowed to the respondent by the Magistrate to bring them into line with the amounts permitted under the Justices Amendment Regulation No. 2; the respondent did not submit, I think reasonably enough, that resort could have been had to s.158B(2). The effect of these provisions was that the Magistrate only had power to award costs in respect of the hearing up to the amount of $1,500, so his decision to allow a greater amount in respect of the hearing ought to be interfered with. I do not think I should assume that had he been aware of these provisions he would have allowed more for the earlier appearances, and I do not think I should interfere with the allowance of $100 for the adjournments. [21] The result is that the order for costs should be varied by setting aside the sum of $3,544 and substituting the sum of $1,600. The appeal should be otherwise dismissed. Given the limited success of the appellant and the fact that that aspect of the appeal was not controversial, the appellant should pay the respondent’s costs of the appeal to be assessed. [22] In conclusion I would offer the comment that, without suggesting that the decision in Dever (supra) was wrong, there does not seem to be much justification for the legislature to draw the distinction between “authority” and “consent” adverted to by Thomas J. Perhaps s.112(1) could usefully be extended to presume consent, at least where the complaint is by an officer of the department. -- 8 of 8 --