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United Petroleum Pty Ltd v Sargent

 

[2019] QDC 93

DISTRICT COURT OF QUEENSLAND

CITATION:

United Petroleum Pty Ltd v Sargent [2019] QDC 93

PARTIES:

UNITED PETROLEUM PTY LTD

ACN 085 779 255

(appellant)

v

CAMERON JAMES SARGENT

(respondent)

FILE NO/S:

BD No 4392 of 18

MC No 7103 of 14

DIVISION:

 

PROCEEDING:

Appeal s 222 Justices Act 1886

ORIGINATING COURT:

Magistrates Court at Maroochydore – Date of Delivery of Decision: 9 November 2018

DELIVERED ON:

14 June 2019

DELIVERED AT:

Brisbane

HEARING DATES:

7 May 2019

JUDGE:

Jarro DCJ

ORDERS:

  1. The appeal is dismissed.
  2. I will hear the parties as to costs.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – WHEN APPEAL LIES – where the appellant is a defendant to a prosecution for alleged summary offences under the Environmental Protection Act 1994 – where the magistrate refused an application by the defendant that the prosecution be stayed – where the defendant appealed to the District Court pursuant to s 222 of the Justices Act 1886 – whether the order concerned the disposition of the complaint – whether the appeal was competently brought

MAGISTRATES – JURISDICTION – LIMITATIONS AS TO TIME – where the appellant made an application that the prosecution be stayed on the basis that the complaint and summons was brought out of time – whether the “complainant” was the public officer, or the department for which they were an officer and/or employee – whether the magistrate erred in refusing the application by the appellant for a permanent stay of prosecution

 

Justices Act 1886, s 42, s 222, s 223, s 225

Environmental Protection Act 1994, s 497

Bienstein v Bienstein (2003) 195 ALR 225

Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502

Cross Country Realty Pty Ltd v Peebles [2007] 2 Qd R 254

Crothers v Sheil (1933) 49 CLR 399

Foxpine Pty Ltd v Collings [2001] QCA 355

Heley v Johnson [2013] QDC 345

Ipswich City Council v Dixonbuild Pty Ltd [2012] QCA 98

Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372

Paulger v Hall [2003] 2 Qd R 294

Plaintiff S164/2018 v Minister for Home Affairs (2018) 361 ALR 8

Schneider v Curtis [1967] Qd R 300

Smith v Ash [2011] 2 Qd R 175

Smith v Baldwin, ex parte Smith [1979] Qd R 380

Steiner v Seri [2012] QCA 226

Thiele v Davis (2000) 165 QGIG 23

Witheyman v Van Riet [2008] 2 Qd R 587

COUNSEL:

M Wyles QC, with B Murphy, for the appellant

J Hunter QC for the respondent

SOLICITORS:

K&L Gates for the appellant

Department of Environment and Science for the respondent

  1. [1]
    The appellant appeals against an order of the Magistrates Court at Maroochydore dismissing its application seeking, among other things, a permanent stay of the prosecution commenced by way of complaint and summons dated 23 October 2014.[1] 
  1. [2]
    The appeal is brought pursuant to s 222 of the Justices Act 1886. The relevant subsection states:

“(1)  If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”

  1. [3]
    The respondent submits the appeal is incompetent because the application to stay the prosecution is an interlocutory matter such that this court has no jurisdiction to hear the appeal, and, as was submitted in oral argument by Mr Hunter QC who appeared for the respondent in this appeal, the prosecution is “still alive and kicking in the Registry of the Maroochydore Magistrates Court”.[2]
  1. [4]
    The appellant defendant, however, through Mr Wyles QC with his junior Mr Murphy, contends that the nature of a declaration for a permanent stay is in essence a final order and, as such, is a substantive right enabling an appeal to lie pursuant to s 222 of the Justices Act 1886 (the JA).
  1. [5]
    In the event the court considers that it has jurisdiction to entertain the appeal, the live issue between the parties relates to whether or not the complaint dated 23 October 2014 has been brought within the applicable limitation period stipulated in the Environmental Protection Act 1994 (the EPA). In order to address this issue, the court is required to embark upon a consideration of the identity and knowledge of the complainant with respect to the complaint.[3]

Background Matters

  1. [6]
    The following facts do not appear to be controversial:
  1. (a)
    The appellant defendant was building a new service station on the site of a former service station located at 686 Eumundi-Noosa Road, Doonan (the site).
  1. (b)
    The site is listed on the Environment Management Register (EMR).
  1. (c)
    On 31 July 2013, Mr Benjamin Sale, who is a representative of the Department of Environment and Heritage Protection (the department), was contacted by the Sunshine Coast Regional Council in relation to the site about an alleged potential contamination incident.
  1. (d)
    On 1 August 2013, Mr Sale attended the site together with a senior environmental officer employed by the department to investigate the claims by the Sunshine Coast Regional Council.
  1. (e)
    On 2 August 2013, Mr Sale sent an email to the appellant’s representatives (and copied various representatives from the department and the Sunshine Coast Regional Council) listing “very high environmental risks identified” at the site.[4]
  1. (f)
    On 7 August 2013, an Environmental Protection Order (EPO) was issued against the appellant.[5] 
  1. (g)
    On 23 October 2014, Mr Cameron Sargent, another representative of the department and named respondent in this appeal, affirmed a complaint against the appellant alleging four offences contrary to the EPA, which variously occurred between 26 July 2013 and 8 August 2013.[6]
  1. (h)
    The complaint and summons commenced in the Magistrates Court at Maroochydore, and on 14 June 2016, the prosecution closed its case. The defence then made a no case submission.
  1. (i)
    On 17 November 2016, the learned magistrate delivered judgment on that application and found that there was a case to answer on all four charges.
  1. (j)
    On 14 December 2017, the prosecution resumed. At that point the prosecution offered no evidence with respect to charge four. Following that, the defendant opened its case on the remaining charges and called a project manager as a witness. Queen’s Counsel for the prosecution commenced cross-examination of the project manager, however, the matter was adjourned at the request of the defendant due to discrepancies identified in cross-examination by Queen’s Counsel for the complainant in documents referred to by the project manager in his evidence.
  1. (k)
    At a review on 12 March 2018, Mr Wyles QC for the defendant tendered an affidavit which exhibited documents asserting that the project manager had given false testimony and created false documents.[7]
  1. (l)
    Subsequently, and for the first time, the defendant alleged that the continuation of the prosecution amounted to an abuse of process because:
  1. (i)
    it was commenced out of time;
  1. (ii)
    of a claimed failure to disclose (the disclosure issue);
  1. (iii)
    of a claimed failure to proceed against the defendant jointly with two other persons charged in respect of the same events (the joint trial issue).
  1. (m)
    On 14 September 2018, the defendant sought:
  1. (i)
    a declaration that the time to commence a complaint in the proceeding under section 497 of the EPA expired on 7 August 2014 or alternatively 2 October 2014;
  1. (ii)
    a declaration that there is a statutory bar in consequence of the expiration of the limitation period stipulated by section 497 of the EPA;
  1. (iii)
    an order that the proceeding be permanently stayed.[8]
  1. (n)
    On 18 September 2018, the application was heard.[9]
  1. (o)
    On 8 November 2018, the application was dismissed and written reasons were distributed to each party.[10]
  1. (p)
    On 7 December 2018, a notice of appeal was filed in the District Court.[11]

Nature of an Appeal under s 222 of the Justices Act 1886

  1. [7]
    The appellant submitted that the application before the learned magistrate concerned the disposition of the complaint and, as such, related to an order disposing of the complaint itself. It was submitted the legal effect of the learned magistrate’s order was to determine, adversely to the appellant, its substantive right and entitlement not to be prosecuted other than in accordance with the period limited by s 497 of the EPA.[12]  The order made by the learned magistrate was a final order dismissing the appellant’s cause of action not to be prosecuted and it was not open for the defendant to make a further application that the complaint be declared a nullity ab initio. Therefore, it was submitted, the appellant has a right of appeal pursuant to s 222 of the JA.
  1. [8]
    The respondent submitted that it was the learned magistrate’s order, not the relief sought by the application, which precluded the court from hearing the appeal. In doing so, the respondent relied upon the Court of Appeal authority of Schneider v Curtis [1967] Qd R 300.
  1. [9]
    In Schneider, the appellant was the defendant in a summary prosecution for a breach of the Fisheries Acts 1957-1962. At the close of the case for the prosecution, the defendant made a no case submission. The stipendiary magistrate ruled that there was a case to answer. The defendant appealed the ruling to the District Court under s 222 of the JA. It was held by the Full Court (Wanstall, Gibbs and Douglas JJ) that an appeal under s 222 lies from an order which disposes of a complaint, for example by dismissing it, or by entering a conviction and imposing a penalty. The Court ruled that it does not lie from a magistrate’s ruling given at the close of the complainant’s case that there is a case for the defendant to answer, for although such a ruling may amount to a refusal of an application and may be regarded as an order within the definition of s 4, it is upon an incidental application during the hearing of the complaint, and is not an “order made upon a complaint” within the meaning of that expression in s 222. Gibbs J (with whom Wanstall and Douglas JJ agreed) stated:

“What the magistrate did in the present case was to give a ruling upon a submission made by the appellant. The effect of the submission was that on the evidence the magistrate could not lawfully convict the appellant, and the magistrate’s ruling on that submission was a ruling on the question of law … The ruling of the magistrate that there was a case to answer was a ruling of an interlocutory nature; it decided nothing except that the appellant had to enter upon his defence and was thus deprived of the advantage of having the complaint against him summarily dismissed.”[13]

  1. [10]
    Gibbs J considered the Court should follow the decision of Byrne v Baker [1964] VR 443 when answering the question of whether a ruling by a magistrate that the defendant had a case to answer was an “order” within the meaning of the equivalent Victorian statute. His Honour was inclined to think that Queensland should follow the Victorian decision rather than a contrary decision of Stanley J in Doolan v Bell, ex parte Bell (1949) QWN 44 and answer the question in the affirmative.
  1. [11]
    Schneider has been followed and cited on many occasions since it was delivered.[14]For example the respondent highlighted the decision of Paulger v Hall [2003] 2 Qd R 294, where Holmes J (as her Honour then was), with McMurdo P agreeing, stated:

Schneider is authority for the proposition that no appeal lies under s 222 from a ruling made on an incidental application during the hearing of the complaint; the right of appeal is given only from “any order made… upon a complaint”, and those words refer to an order “disposing of the complaint itself.”[15]

  1. [12]
    Her Honour said that there are various “policy grounds for prohibiting the bringing of appeals under s 222 against interlocutory rulings”, such as appeals leading to “fragmentation of the criminal process” or misuse to exhaust an opponent’s resources.[16]
  1. [13]
    In my view a no case submission such as that advanced in Schneider is different to the application made by the appellant defendant below. A no case submission relates to the sufficiency of evidence. The application brought by the appellant below raised the question of the right of it not to be prosecuted. As such what the learned magistrate was required to embark upon was the crushing of that right not to be prosecuted and the learned magistrate determined that that right did not exist. I do not consider it to be a fragmentation of the criminal process in circumstances where the order sought concerned the substantive right of the matter to be determined once and for all.
  1. [14]
    In Smith v Ash [2011] 2 Qd R 175, McMurdo P (at [4]) noted that under s 222(1), a person aggrieved by an order made summarily on a complaint for an offence is given a general right of appeal to a District Court judge. Her Honour (at [8]) observed that s 222(1) confers, in general terms, jurisdiction to hear appeals from final orders made by magistrates in a summary way on complaints for an offence.[17]
  1. [15]
    I accept the submission advanced by the appellant that the learned magistrate made final orders determining, adversely to the appellant, its right and entitlement not to be prosecuted.
  1. [16]
    This approach seems consistent with authorities such as Plaintiff S164/2018 v Minister for Home Affairs (2018) 361 ALR 8 and Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372.[18]For instance in Plaintiff S164/2018, Edelman J at [11], in citing with approval Re Luck (2003) ALJR 177 at [4] and Bienstein v Bienstein (2003) 195 ALR 225 at [25], stated that:

“The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them.” (citations omitted).

  1. [17]
    His Honour continued:

“Whether the rights of the parties are finally determined by the order will depend on whether the legal, not the practical, effect of the judgment is final. If it is open to the parties to bring another application then the legal effect is not final, even if the second application would usually be doomed to failure because the issue of substance which it raised would have been decided adversely to the defendant in the first application.” (citations omitted).

  1. [18]
    In Jefferson Ford, Gordon J put the interlocutory/final order question in clear terms in stating that:

“Such fine gradations and doctrinal distinctions are unnecessary – either an order finally disposes of the parties’ substantive rights, in which case an appeal lies as of right, or it does not, in which case an appeal is a matter of discretion rather than right.”[19]

  1. [19]
    In adopting the language used in Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 510-511, the appellant “…brought an action against…” the respondent “…which was dismissed.”  The appellant “…obtained a judgment of the Court in which the cause of action upon which [it] relied merged, thereby destroying its independent existence so long as the judgment stood. And, so long as that judgment stands, it is not competent for [the appellant] to bring further proceedings in respect of the same subject cause of action.”
  1. [20]
    In the circumstances I consider the order made by the learned magistrate disposed of the appellant’s substantive right not to be prosecuted. I am therefore satisfied this appeal has been competently brought.
  1. [21]
    Given this view, I shall proceed with the appeal under s 223 and dispose of it in accordance with s 225 of the JA.

Complaint and Summons dated 23 October 2014

  1. [22]
    The appellant advanced 4 arguments, namely:
  1. (a)
    That on 8 August 2014, by operation of s 497 of the EPA, the substantive right not to be prosecuted in respect of the events at the site accrued to the appellant.
  1. (b)
    Subsection 497(1)(b) of the EPA, which deals with knowledge of the complainant, was satisfied by 7 August 2013, as evidenced in the EPO issued by the department through its authorised officer Mr Sale.
  1. (c)
    Mr Sargent acted only in his capacity as a public officer and in accordance with the authority conferred on him as an authorised person by s 447 of the EPA.
  1. (d)
    Cross Country Realty Pty Ltd v Peebles [2007] 2 Qd R 254 did not decide the question of whether the complainant was relevantly the Office of Fair Trading or the employee Mr Peebles. Cross Country was a knowledge case as to when the knowledge was acquired.
  1. [23]
    In my view these arguments are interconnected because they concern the identity of the complainant in perusing the prosecution (including the complainant’s knowledge of the alleged offences) and consequently the time limit within which to bring the prosecution.
  1. [24]
    The EPA offences alleged against the appellant involve one charge of material environmental harm and two charges of disposal of contaminated soil under ss 438(2) and 424(1)(a) of the EPA respectively. The appellant submitted that all of the elements of the alleged offences were known to the department no later than 7 August 2013 when it issued the EPO. The EPO was signed by Mr Sale as:

“Manager (Sunshine Coast & Gympie)

Delegate of the Chief Executive

Department of Environment and Heritage Protection

Environmental Protection Act 1994.”[20]

  1. [25]
    I note Mr Sale is an authorised person under the EPA and can exercise all of the powers of an authorised person under the EPA.[21]So too is Mr Sargent.
  1. [26]
    The respondent conceded that if, as the appellant contended, the relevant legal question is when the requisite knowledge was acquired by any officer of the department (rather than the named complainant), then the prosecution was commenced out of time and ought not to continue. In other words, if the department is the complainant, the complaint has been brought out of time.
  1. [27]
    Section 497 of the EPA relevantly provides:

Limitation on time for starting summary proceedings

A proceeding for an offence against this Act by way of summary proceeding under the Justices Act 1886 must start—

  1. (a)
    within 1 year after the commission of the offence; or
  1. (b)
    within 1 year after the offence comes to the complainant’s knowledge, but within 2 years after the commission of the offence.”
  1. [28]
    Section 497 of the EPA requires a summary proceeding to be brought pursuant to the JA. Section 42 of the JA requires that all proceedings under the JA be commenced by a complaint in writing, which may be made by the complainant in person or by the complainant’s lawyer or another person authorised in that behalf.
  1. [29]
    In the present instance, the complaint reads as follows:

“The complaint of CAMERON JAMES SARGENT of the Department of Environment and Heritage Protection, 173 Hume Street, Toowoomba, in the State of Queensland, a public officer under the Justices Act 1886 made this 23rd day of October 2014 before the undersigned, a Justice of the Peace for the said State, who says that:…”[22]

  1. [30]
    The written complaint made by Mr Sargent on 23 October 2014 alleged four contraventions of the EPA. The complaint recorded that the offences came to Mr Sargent’s knowledge on 23 October 2013.[23]Accordingly, and on the face of it, having regard to the wording of s 497(b) of the EPA, the complaint made by Mr Sargent in person was made within the requisite time.
  1. [31]
    However the appellant submitted that because Mr Sargent is a public officer, acting in his capacity/authority under the EPA[24], he is not a complainant in person acting in a private capacity.[25]Rather the appellant focusses upon the complaint made by “another person authorised in that behalf”.[26]
  1. [32]
    In doing so, reliance was placed on the authority of Ipswich City Council v Dixonbuild Pty Ltd [2012] QCA 98. It was submitted the complaint in that matter was not in dissimilar language to the complaint made 23 October 2014 in this proceeding, namely that:

“THE COMPLAINT OF CRAIG MAUDSLEY CHIEF OPERATING OFFICER (HEALTH, PARKS AND RECREATION) of IPSWICH CITY COUNCIL … a “public officer” as defined in the Justices Act 1886 … made this day of 14 January 2010, as authorised agent for and on behalf of IPSWICH CITY COUNCIL before … a Justice of the Peace … who says that:….” 

  1. [33]
    In Dixonbuild, Chesterman JA considered that “there can … be no doubt that Mr Maudsley’s act in swearing the complaint was the act of the Council”.[27]
  1. [34]
    Mr Sargent’s act in swearing the complaint was as a public officer. But in my view and adopting the wording of s 42 of the JA, Mr Sargent could also be construed to be “the complainant in person”. He is not strictly acting in a private capacity. Yet my reading of s 42 in the present circumstances does not mean “the complainant in person” is necessarily a person who is pursuing a complaint in a private capacity. Indeed, Mr Sargent is a public officer and he is permitted, under the JA, to bring the prosecution in the way that he has.
  1. [35]
    As was the case in Dixonbuild, the provisions of the Local Government Act 2009 applied. The learned magistrate correctly noted that Dixonbuild dealt with a materially different statutory environment in which the Local Government Act 2009 required particular kinds of prosecutions to be taken in the name of the relevant local authority. In my view the statutory regime does not permit prosecutions to be taken in the name of the department for the alleged offences. Further names of government departments change over time. In fact the respondent raised the point that the Department of Environment and Heritage Protection (as described by Mr Sargent in his complaint) has since been renamed the Department of Environment and Science. Additionally Mr Maudsley in Dixonbuild described himself in the complaint as “an authorised agent for and on behalf of the Ipswich City Council” which I consider to be a material difference to the complaint made by Mr Sargent in the present instance. Dixonbuild dealt with the question by and to whom costs were payable. The issue of the time limit within which to bring the prosecution was not considered. I consider Dixonbuild does not assist the appellant in the present instance. 
  1. [36]
    The appellant also relied upon the decision of Steiner v Seri [2012] QCA 226. This was a case regarding a prosecution which was commenced by complaint and summons brought by:

“WAYNE MICHAEL Seri of Townsville in the State of Queensland, being a person duly authorised pursuant to the Local Government Act 1993 and being a ‘public officer’ as defined in the Justices Act”.[28]

  1. [37]
    Townsville City Council employed Mr Seri. He was an employee and a public officer.
  1. [38]
    It was submitted that unlike the complainant in Steiner’s case, Mr Sargent was, at the direction of the Litigation Unit of the department, very clear in the complaint that he was not the complainant and that the complainant was and is the department. In doing so, the appellant emphasised the words “of the Department of Environment and Heritage Protection” as it appeared in the complaint; whereas the learned magistrate was more focussed upon the address.  
  1. [39]
    However again the department is not an entity under either the EPA or the JA that has prosecutorial power for the alleged offences. It does not have standing. Further, it seems to me that like Dixonbuild, Steiner required consideration of the statutory environment, namely the application of the Local Government Act 2009 which required particular kinds of proceedings to be taken in the name of the relevant local authority. Further Steiner dealt with the question by and to whom costs were payable. The issue of the time limit within which to bring the prosecution was not considered. I find Steiner does not assist the appellant. 
  1. [40]
    I adopt the same approach to the appellant’s reliance upon the decision of Crothers v Sheil (1933) 49 CLR 399 concerning a prosecution under the Milk Act 1931 (NSW). In that case, the Milk Board was permitted to bring the statutory prosecution. There is an absence of statutory provision permitting the department to bring the complaint in the present instance.
  1. [41]
    Witheyman v Van Riet [2008] 2 Qd R 587 was also relied upon by the appellant. However the Court considered the issue of whether knowledge of the offence included knowledge of the identity of the offender. This issue does not arise in the present appeal.
  1. [42]
    The respondent submitted that the present appeal “is on all fours” with Cross Country Realty Pty Ltd v Peebles [2007] 2 Qd R 254.[29]  I agree.
  1. [43]
    Cross Country required the interpretation of s 589(1) of the Property Agents and Motor Dealers Act 2000. The provision is similar to the wording of s 497 of the EPA.  It was held that the term “complainant” in s 589(1)(b) meant the person who brought the proceedings under the Act and further that the knowledge referred to involved the complainant having knowledge of the facts sufficient to establish a person’s contravention of the Act.  Accordingly, as the respondent brought the complaints against the applicants within the requisite time after he acquired such knowledge, the Court held that those complaints were brought within the period limited by the legislation.
  1. [44]
    Relevantly, McMurdo P (with whom Keane JA and Chesterman J agreed) held that the term “complainant” means “the complainant who brings the proceedings for an offence or offences under the Act”.[30]  Her Honour rejected the submission advanced by the applicants to the appeal that the time to commence a prosecution runs as soon as anyone in the Office of Fair Trading entitled to lay the complaints has reasonable grounds to believe the applicants have committed an offence under the Act. Her Honour stated:

“Proceedings under the Act may be brought summarily under the Justices Act 1886. 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 an employee of the public service of the State…’ 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. …. 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.”[31]

  1. [45]
    The appellant submitted the decision of Cross Country did not decide the question of whether the complainant was relevantly the Office of Fair Trading or the employee, Mr Peebles, because (at [4]) of the judgment, it was common ground that Mr Peebles was the person who brought the complaints against the applicants.[32]  For that reason and given the appellant in the present appeal has not made such a concession, it was submitted that Cross Country was distinguishable. There was no discussion in the reasons of the capacity in which Mr Peebles was acting and, in fact the Court accepted that Mr Peebles was the relevant officer of the Office of Fair Trading and that he was acting in that capacity. Moreover Cross Country did not decide, it was submitted, whether there is a distinction between Mr Sargent in his capacity as a public officer and employee of the department acting for the department on the one hand, and Mr Sargent in a capacity where he is not acting for the department and where the complaint cannot be said to be brought by the department because Mr Sargent has brought the complaint.
  1. [46]
    However the difficulty I have accepting this submission is because of the President’s judgment (at [9] and as noted above in these Reasons). I do not limit the President’s comments in the context of [4]. One could readily transpose the names Sale and Sargent into the terms of the President’s judgment. The complaint was made by Mr Sargent. The department is not the entity that, under the EPA or the JA, has any power to prosecute for the alleged offences. Therefore the question is not “what is the state of mind of some entity that does not actually have any legal existence?”; but “what is the state of mind of the person who brings the complaint?”. In other words, the knowledge that is relevant is that of the person who was named as the complainant in the proceedings, not the department.
  1. [47]
    I therefore do not accept the proposition that Cross Country is distinguishable. Instead I consider it apposite in the present instance.
  1. [48]
    Cross Country referred to an earlier decision of Smith v Baldwin, ex parte Smith [1979] Qd R 380. Smith required consideration of the Auctioneers and Agents Act 1971, which McMurdo P described as “a different although similar provision under a different although similar legislation”. Smith was distinguished in Cross Country with her Honour (at [9]) stating:

“The High Court has repeatedly emphasised the need when interpreting and applying a statutory provision to look at the language of the statute rather than secondary sources or materials…”

  1. [49]
    In any event, Smith was relied upon by the respondent as persuasive authority that the term “complainant” means exactly that and the relevant inquiry is the state of mind of the named complainant. In doing so, Mr Hunter QC highlighted the passage of W.B. Campbell J in Smith (at 386) that:

“…the term complainant in s 130(3) means the person who initiates the proceedings. The time limit in s 130(3) is against the complainant and not against any person who may have knowledge of the offence by reason of his having suffered loss or been aggrieved as a result of the breach of the Act by an auctioneer, motor dealer, etc.”

  1. [50]
    The respondent also relied on further persuasive authority suggesting that the complainant is indeed Mr Sargent and it is his knowledge which is crucial. For example, Thiele v Davis (2000) 165 QGIG 23 concerned an appeal to the Industrial Court of Queensland where the contention was that the complainant Thiele was an industrial officer and employed within the Department of Employment, Training and Industrial Relations and Bock, who was an industrial inspector of the same Department, had knowledge of the commission of the offence more than six months prior to the relevant date when the complainant made the complaint and therefore it was argued that Bock’s knowledge should be attributed to Thiele. In rejecting that contention, Hall P noted (at 23-24):

“The apprehension is that rather than seeking to show actual knowledge on the part of Ms Thiele he will seek to show constructive knowledge by Ms Thiele. ...

…There is nothing in the Industrial Relations Act 1999 which glosses the ordinary meaning of complainant which is, of course, the person who makes the complaint. There is nothing in the Industrial Relations Act 1999 which requires the attribution to Ms Thiele of the knowledge of Mr Bock or various other employees within the Department. There is nothing absurd in the proposition that in its application to proceedings instituted by a complainant who is a natural person s. 683(7) applies to knowledge actual in the mind of the complainant only.”

  1. [51]
    Further, reliance was placed on Foxpine Pty Ltd v Collings [2001] QCA 355 where Holmes J (as her Honour then was) stated in an extemporaneous decision (at 8):

“It seems to me that there is a strong argument, given the words of section 170(3) in any event that the relevant knowledge is that of the complainant alone, but it is not necessary to consider whether that is the case. In Smith and Baldwin, ex parte Smith [1979] Qd R 380 it was not necessary to decide the point because on no view was any responsible officer of the department in possession of the requisite knowledge. That is the situation here also.”

  1. [52]
    Additionally, reliance was placed on the decision of Reid DCJ in Heley v Johnson [2013] QDC 345, who had to consider a different but analogous provision contained in the Workers Compensation and Rehabilitation Act 2003. His Honour concluded:

“In my view, consistent with the interpretation of similar provisions in other legislation and in Cross Country Realty Proprietary Limited v Peebles… and Thiele v Davis… the only relevant inquiry is to the state of knowledge of the complainant in this case, and not other employees of WorkCover.”[33]

  1. [53]
    As such there is authority and guidance for me to follow, as the respondent contends, that it is the complainant Mr Sargent’s state of mind that is relevant. That is not to say that there might not be a case where, for example, someone within the department formed a view prior to Mr Sargent and deliberately subverted the imminent expiration of a time limit such as to attract a stay of proceedings. But there is no evidence of this in the present instance. It is Mr Sargent who has brought the complaint. It is therefore his knowledge that is relevant. It ought not be extended to a situation where knowledge of the agency as a whole be imputed to the individual officer who prepared the complaint. The doctrine of constructive knowledge does not arise. Because Mr Sargent had no knowledge of the facts constituting the offences prior to being tasked with the prosecution,[34] the complaint is within time.        
  1. [54]
    For these reasons I conclude:
  1. (a)
    Mr Sargent is the complainant to the complainant and summons dated 23 October 2014.
  1. (b)
    The complaint and summons dated 23 October 2014 is not out of time.  
  1. [55]
    I therefore dismiss the appeal. I will hear the parties as to costs.

Footnotes

[1]AB 1.

[2]T1-37, lines 12–13.

[3]The Notice of Appeal raised 17 grounds, however, grounds 11 – 17 were not pressed on appeal: T1-28, l 15.

[4]AB 20.

[5]AB 372.

[6]AB 2.

[7]Affidavit of Ashley Marie Swenser, sworn 12 March 2018 at [12] and [34].

[8]AB 319.

[9]AB 225.

[10]AB 319.

[11]AB 334.

[12]Per Rodway v The Queen (1990) 169 CLR 515 at 519:  “Where a period is limited by statute for the taking of proceedings and the period is subsequently abridged or extended by an amending statue, the amending statue should not, unless it is clearly intended, be given a retrospective operation to revive a cause of action which has become barred or to deprive a person of the opportunity of instituting an action which is within time. If it were given a retrospective operation, the amending legislation would operate so as to impair existing, substantive rights – either the right to be free of a claim or the right to bring a claim – and such an operation could not be said to be merely procedural.” (emphasis added).

[13][1967] Qd R 300 at 303 (citations omitted).

[14]Owen v Canavan [1995] QCA 324, Paulger v Hall [2003] Qd R 294; Bowman v Brown [2004] QPELR 416; Coulter v Ryan [2007] 2 Qd R 302 (per Holmes JA with McMurdo P agreeing); Mathews v Cabrera [2010] QCA 300; Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397.

[15][2003] 2 Qd R 294 at [26].

[16][2003] 2 Qd R 294 at [27].

[17]In the course of argument I was referred to Fraser JA’s observation (at [29]) that: “Currently under s 222(1), a person aggrieved by an order made summarily on a complaint for an offence like the present is given a general right of appeal”. However, I consider his Honour’s comment is to be read in relation to s 222(2)(c) of the Justices Act 1886.

[18]See also for example R v Cooling [1990] 1 Qd R 376, Rodway v The Queen (1990) 169 CLR 515 at 519, Maxwell v Murphy (1957) 96 CLR 261, Hilton v Sutton Steam Laundry [1946] KB 65 at 73, Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 at 563; Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629 at 636; and Adco Constructions Pty Ltd v Goudappel (2014) 254 CLR 1 at [27].

[19](2008) 167 FCR 372, 415 at [161].

[20]AB 376.

[21]AB 60.

[22]AB 2.

[23]Mr Sargent was allocated the investigation file on 23 October 2013 and had no knowledge of the matter prior to then. See AB 109, Affidavit of Cameron James Sargent sworn 13 September 2013 at [4]-[5].

[24]Justices Act 1886, ss 4, 10.

[25]See T1-21, lines 46–47.

[26]Justices Act 1886, s 42.

[27][2012] QCA 98 at [14].

[28][2012] QCA 226 at [5].

[29]See T1-41, line 25.

[30][2007] 2 Qd R 254 at [9].

[31][2007] 2 Qd R 254 at [9] (citations omitted).

[32]See Cross Country Realty Pty Ltd v Peebles [2007] 2 Qd R 254 at [4].

[33]See Heley v Johnson [2013] QDC 345, p 20 – 21 (with pp 12, 14, 18 and 19) (citations omitted).

[34]See above n 23.

Close

Editorial Notes

  • Published Case Name:

    United Petroleum Pty Ltd v Sargent

  • Shortened Case Name:

    United Petroleum Pty Ltd v Sargent

  • MNC:

    [2019] QDC 93

  • Court:

    QDC

  • Judge(s):

    Jarro DCJ

  • Date:

    14 Jun 2019

Litigation History

EventCitation or FileDateNotes
Primary JudgmentMC7103/14 (No Citation)09 Nov 2018Application by Mr Sargent for a permanent stay of the prosecution commenced by way of complaint and summons dated 23 October 2014 refused.
Primary Judgment[2019] QDC 9314 Jun 2019Appeal pursuant to s 222 of the Justices Act dismissed: Jarro DCJ.
QCA Interlocutory Judgment[2019] QCA 14629 Jul 2019Applicant's application for an order that his application for leave to appeal be expedited granted; applicant's application for a stay of the prosecution of the applicant in the Magistrates Court for alleged breaches of the Environmental Protection Act 1994 (Qld) refused: Fraser JA.
Notice of Appeal FiledFile Number: CA188/1912 Jul 2019-
Appeal Determined (QCA)[2019] QCA 29513 Dec 2019Application for leave to appeal refused: Sofronoff P and Philippides JA and Boddice J.

Appeal Status

Appeal Determined (QCA)
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