Kedcorp Pty Ltd v Jenkins[1998] QDC 251

CIVIL JURISDICTION

SENIOR JUDGE TRAFFORD-WALKER

and

BRISBANE

DATE 26/08/98

JUDGMENT

HIS HONOUR: On 19 December 1997 the appellant was convicted of the following offence: that between the 1st day of January 1995 and the 27th day of June 1996 it did act as a real estate agent when it did not hold a licence appropriately endorsed under section 24 subsection (4) subsection (b) of the Auctioneers and Agents Act of 1971. The appellant was fined the sum of $2,000 and ordered to pay the costs of the prosecution.

The appellant's grounds of appeal break down into three broad categories: (a) that the Court erred in fact and in law in failing to draw an inference adverse to the complainant because of the failure of the prosecution to call or adduce evidence from one Clive Hayley; (b) that the charge as drawn was bad for duplicity; and (c) that the findings of fact made by the Court did not constitute a breach of the Act.

It is necessary to briefly outline the conduct which the Magistrate found constituted the offence. The appellant was in the business of a financial planner. As part of their services the appellant obtained a list of properties which were for sale from Clive Hayley. Clive Hayley was employed by L.J. Hooker at that company's Beenleigh office. Hayley would travel around with the employees of the appellant, identifying properties which were for sale on their books. The appellants would then contact persons with a view to interesting them in their services as financial planners. The appellants would explain to these persons the benefits of negative gearing with respect to the purchase of a property for rent. If interested, the persons would be shown a number of properties, one of which would be from the list of properties for sale identified by Hayley.

The procedure adopted was such that of the properties shown, that from the list of properties identified by Hayley would be the obvious choice to purchase if the deal went through. The appellant's employees would obtain the keys from L.J. Hooker's office, Beenleigh, to show the client that property. If the client decided to purchase the property L.J. Hooker would receive the full commission as a real estate agent, the vendor of the property would receive the asking price and the purchaser would pay an additional sum for the property which went to the appellant.

As part of his reasons for the decision the Magistrate found that the appellant and L.J. Hooker had acted conjointly in the selling of various properties. In another passage of his reasons he makes the following statement:

That other real estate agent can only have been L.J. Hooker Beenleigh.

In the circumstances there's no doubt that Clive Hayley could have given relevant evidence. There was, however, sufficient evidence for the prosecution to found its case against the appellant and the prosecution is under no obligation to call every possible witness. An officer prosecuting must in every case make a judgment as to what witnesses will be called. There was, in this case, good reason for the prosecuting officer not calling the witness. This is stated by him at page 198 of the transcript as follows:

It could properly be argued, on behalf of the prosecution, that Hayley was in the camp of the appellant. In the circumstances the decision not to call Mr Hayley was a proper exercise of the prosecutor's discretion and no adverse inference can be drawn against the prosecution in this case. There is therefore no substance in this ground of appeal.

I shall now deal with the charge. The appellant is charged that between the dates alleged it did act as a real estate agent. Particulars were supplied as follows:

There follows then a list of six properties upon which the prosecution rely. At the trial the prosecution elected to proceed in relation to four of those properties. Counsel for the appellant objected to the wording of the charge at the commencement of the hearing on the ground that it was bad for duplicity. The objection was dismissed.

Section 24 of the Auctioneers and Agents Act of 1971 refers to section 19, which provides as follows:

“Relevant business” is defined by the Act to include real estate agent. Section 19(2)(b) would found a charge as follows:

The wording of this charge would allow an allegation that between dates the offender carried on the business. It would then be permissible to lead evidence of individual acts as occurred in the Court below. This seems to follow from the cases of The Queen v. Jacobs, Court of Appeal Number 444 of 1996 and Walsh against Tattersall (1996) 70 ALJR page 884 where continuing offences are discussed.

It also follows from the same principles as stated in the above cases that section 19 subsection (2) subsection (a) would found a charge where there was one instance of an offender acting as a real estate agent. The question for decision in this appeal is this: does a charge, worded on the basis of section 19(2)(a) in the singular, encompass the situation where there are a number of separate instances of acting as a real estate agent.

The first problem for the respondent in this case is that the legislation provides for the situation where an offender commits a continuing offence, section 19(2)(b), and also provides for the situation where a single act can constitute an offence. The presumption from this would be that section 19(2)(a) does not cover the situation alleged by the prosecution in this case. In addition to that the charge as presented runs counter to those principles enunciated by Mr Justice Kirby in Walsh and Tattersall where he says as follows:

The instances alleged by the prosecution in this case were separate acts in time and place. I therefore come to the view that the charge as put forward by the prosecution was bad for duplicity. There seems, therefore, no option for this Court but to quash the conviction, and that is the order which I make.

I was invited by counsel to evaluate the system which was used by the appellant and to rule on whether or not there had been a contravention of the Act. I would simply say this, and I have not gone into detail to evaluate the meaning of real estate agent, however, it is clearly a widely-drawn definition. In addition to that, on the evidence placed before the Magistrate, there is absolutely no doubt in my mind that his findings of fact were clearly open upon that evidence. In the circumstances the appeal is allowed and the conviction is quashed.

...

HIS HONOUR: The order will be that the respondent is to have his costs of the appeal if not agreed to be taxed to be paid within 21 days to the Registrar, to be paid to the appellant. So far as the other costs are concerned one has to do a balancing exercise. There does not appear to be any scale set for these matters, and one has to look at what is reasonable.

The prosecution called a number of witnesses and no doubt that added greatly to their costs. The appellant did not call any witnesses. The prosecution's counsel, I assume, was from the Crown Law Office, and those fees are calculated in a different way. The private Bar's fees would be higher and a private solicitor was briefed. I have regard to the fees actually charged to the appellant and I will order that a certificate under the Appeal Costs Fund is to issue to the appellant for costs incurred below in the sum of $5,000.