Foxpine Pty Ltd v Collings[2001] QCA 355

COURT OF APPEAL

McMURDO P

DAVIES JA

HOLMES J

BRISBANE

DATE 24/08/2001

JUDGMENT

THE PRESIDENT:  Justice Holmes will deliver her reasons first.

HOLMES J:  This is an application for leave to appeal against a decision of a District Court Judge dismissing an appeal against a Magistrate's decision.  That decision refused an application for leave to extend time for an application under section 147A of the Justices Act to set aside convictions recorded against the applicant on 18 March 1997.  Those convictions, of two counts brought under the Auctioneers and Agents Act 1971, were recorded after pleas of guilty by the applicant. 

The application in the Magistrates Court and the appeal to the District Court turned on the question whether two averments in the complaint and summons in the Magistrates Court, that the commission of the two offences alleged in the complaint had come to the knowledge of the complainant not before 19 April 1996, were properly made.

The significance of the averments was that section 170 subsection (3) of the Auctioneers and Agents Act required proceedings under that Act to be instituted within 12 months of the commission of the offence, or within six months after the commission of the offence came to the notice of the complainant, whichever was the later.

It is claimed by the applicant that as the result of disciplinary proceedings brought by the Auctioneers and Agents Committee against two of its principals and an associated company, Property Sales and Marketing Pty Ltd, material came to light which show that the averment was not properly made.  That material included a letter from solicitors for a former client of the applicant, Mr Fefelov, setting out his dealings with the applicant, together with supporting documentation.  It was dated 23 August 1995 and was directed to the Department of Consumer Affairs at Rockhampton.  It was presumably received about that date.

Mr Fefelov's complaint arose out of his dealings with the applicant and Property Sales and Marketing Pty Ltd in relation to a sale of his property in the Bundaberg District.  Property Sales and Marketing Pty Ltd held a corporation licence as a real estate agent and traded as Coral Coast Realty, selling rural acreage.  Vendors were required to sign a deed of covenant under which the applicant was retained as a consultant on marketing.

A letter from Mr Fefelov's solicitor requested the documentation attached be perused with a view to a prosecution of Property Sales and Marketing for overcharging.  The same letter raised an alleged failure by the applicant to perform services under the marketing agreement and raised a failure of that agreement to specify consideration.  Other deficiencies in an authority to sell directed to Property Sales and Marketing rules are identified in the letter.

In September 1995 the investigations officer concerned with the matter at the Department of Consumer Affairs, Mr Tarczynski, advised Crown Law of Mr Fefelov's instructions and asked  whether the applicant was required to hold a corporations licence and whether the fee charged by it for its services was in breach of the Act.  Crown Law responded in February 1996 that the relationship of Coral Coast Realty and the applicant had to be considered.

On 19 April 1996 Mr Tarczynski conducted an interview with Mr East, a director of the applicant, in which the functions of the applicant were discussed at some length and, inter alia, Mr East made the concession that the applicant traded in real estate, and in respect of Mr Fefelov's transaction, "organised the sale" as opposed to selling the property. 

Those details, I might say, emerged from the copy of the interview which is annexed to Mr Tarczynski's affidavit, although the relevant pages do not appear to be in the copy of the interview annexed to Mr Cusack's affidavit.  I simply make it clear which version of the interview I have regard to for those purposes.  Some pages are missing in the latter copy.

A further interview was carried out with Mr Fefelov on 28 February 1997, shortly prior to the hearing date set for the complaints.  I should have mentioned that in October 1996 the complaint and summons were issued, the complainant being the respondent here, Mr Troy Barrie Collings.  He was first apprised of the matter, it seems, on 18 October 1996, the day on which the complaints were issued.

A further interview was carried out with Mr Fefelov on 28 February 1997 in which Mr Tarczynski said that he would take what the latter said back to Crown Law and they would decide whether to run with it.  That was relied on by the applicant, suggesting that the earlier decision to prosecute by Mr Collings was not genuine.  I would regard the further interview with the witness and the statement made as to the review of the matter by Crown Law as unexceptionable and in no way suggestive of any impropriety on the part of Mr Collings in issuing the complaint six months earlier.

On 18 March 1997, after some negotiations, the applicant pleaded guilty to one count of acting as a real estate agent while not being the holder of a corporations licence, and a further count of receiving remuneration in excess of the prescribed charges under the Regulations. 

The applicant had, prior to indicating its intention to plead guilty, asked the Crown Law Office for a copy of Mr Fefelov's letter of complaint, but that request had been declined.  Again I might say that the declining of the request does not seem to me exceptionable given that the request was not one for particulars but, rather, for evidence of a matter which was not in fact part of the evidence of the substance of the complaint.  It may have been, in the event, advisable purely as a matter of policy to provide the letter, but I do not think that there was any legal obligation to provide it.

In 2000 the applicant sought an extension of time to reopen the case under section 147A(5) of the Justices Act on the ground, essentially, that the pleas of guilty were entered on a wrong and improperly induced assumption of the truth as to the averment in relation to the time of the complainant's knowledge of the offence. 

It is not necessary to decide here an issue raised by the respondent whether the matter complained of here could properly have amounted to an error of fact under section 147A(2).  I might also say at this point that the respondent submitted that no appeal from the Magistrate's decision lay in any event because section 222(2)(e) of the Justices Act prohibits an appeal in the circumstances of a plea of guilty.  That was not an argument raised at first instance and it is not one which I find necessary to consider further here.

The Magistrate declined to extend time for the reopening because of the delay from between the time the material became available to the applicants as to Mr Fefelov's complaint, that time of availability being at the latest 11 October 199 and the filing of the application on 10 February 2000 which was not, he said, satisfactorily explained.  In any event he was not satisfied that the commission of the offence was obvious as a result of 23 August 1995 letter. 

He took the view that further investigations were required then as to the legal entities involved, the offences committed and by whom.  The learned Judge at first instance could find no error in that conclusion, and came to a similar result.

I might say at this point that the conclusions of the Magistrate seem to me precisely to fit the case.  The letter of 23 August 1995 actually complained of Property Sales and Marketing, not the applicant.  The only suggestion in relation to it was a breach of the marketing agreement.  The accompanying documents might have given rise to a suspicion that it had acted as a real estate agent but that clearly could not have been confirmed without further investigation and the admissions in the interview with Mr East were vital.

There was a complaint that the learned Judge at first instance had regard to the affidavit of the inspector, Mr Tarczynski, without the applicant being given an opportunity to cross-examine.  That is clearly not correct.  The learned Judge expressly said he did not have regard to the affidavit which he had not given the respondent's representative leave to read.  It is obvious from the transcript that the affidavit became relevant and was considered by the learned Judge only in relation to the question of costs.  I reach the conclusion that the learned Judge was correct in his determination and there can be no issue about the properness of his approach.  There has been no real basis, in any event, showing why leave should be given, apart from a desire to re-argue the issues. 

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] Queensland Reports 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. 

Since I take the view that the applicant has no prospect of demonstrating error in the decision of the learned Judge at first instance I would refuse the application for leave.

THE PRESIDENT:  I agree.

DAVIES JA:  I agree.

THE PRESIDENT:  The order is the application for leave to appeal is refused, with costs to be assessed.