Peebles v Cross[2006] QDC 269

DISTRICT COURT OF QUEENSLAND

1. [1]
   The respondents were each charged with 39 offences pursuant to the Property Agents and Motor Dealers Act 2000 (“the Act”).  Cross Country Realty Pty Ltd (“CCR”) was charged with 38 offences pursuant to 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.  CCR was also charged with failing to ensure that the individual in charge of business at its registered office was a real estate agent, contrary to s 132(2) of the Act.  The respondents Ronald Malcolm Cross and Kellie Lee-Ann Cross were each charged as executive officers with 38 breaches of s 591(2) by failing to ensure that CCR complied with s 138(1)(c) of the Act.  They were each also charged with borrowing a licensee’s licence, contrary to s 581(2) of the Act.

2. [2]
   The matter was listed as a 9 day trial commencing 31 May 2005, but at the request of the respondents’ solicitors the trial was adjourned to the following day to enable counsel to argue a preliminary point. On 1 June 2005, counsel for the respondents argued that the complaints were out of time and should be dismissed. On 2 June 2005, the Acting Magistrate dismissed the complaints, accepting the argument of respondents’ counsel that the complaints were out of time. The Acting Magistrate also ordered that the appellant pay the respondents’ costs, which were assessed at $40,000.

3. [3]
   Section 589 of the Act provides, relevantly, as follows:-

“(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 –

1. (a)
   1 year after the offence is committed;

2. (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. [4]
   There were two sets of complaints filed against the respondents. The first set of complaints was filed on 21 June 2004 and a second set of complaints in precisely the same form was filed on 24 August 2004, apparently because of a doubt concerning the validity of the earlier complaints owing to the absence of a date. Nonetheless, although the Acting Magistrate appears to have overlooked this, the respondent was content to argue the matter before the Acting Magistrate on the footing that the complaints of June 21 2004 were valid and effective.

5. [5]
   The decision of the Acting Magistrate is expressed somewhat confusingly, but the question to be determined by me is not so much whether the Magistrate had adequately dealt with the matter, but whether upon the proper construction of s 589 of the Act, and in the events which occurred in this matter, it is correct to say that the filing of the complaints on 21 June 2004 was outside the time limits imposed by s 589.

6. [6]
   It is conceded that, whether or not it was correct to dismiss all the complaints for non-compliance with that section, Count 26 in the multiple count complaints against each of the respondents ought to be dismissed, because it was undoubtedly outside those time limits.

7. [7]
   The most useful case on the construction of s 589 is Smith v Baldwin ex parte Smith [1979] Qd.R.380.  The relevant provision under consideration there was s 130 of the Auctioneers and Agents Act 1971-1975.  Subsection (3) of that section provided:-

“Proceedings for an offence against this Act may be instituted at any time within 12 months after the commission of the offence, or within six months after the commission of the offence comes to the knowledge of the complainant, whichever is the later.”

8. [8]
   In my respectful opinion, the matter was correctly stated by WB Campbell J (as he then was) when he said at p 380:-

“The complainant could be said to have acquired knowledge of the commission of the offence only when he had such information before him as to give him reasonable grounds for such belief.”

So too, in this case, I consider that the complainant must be taken to have acquired knowledge of the commission of the offence, when he had before him information which provided reasonable grounds for a belief that the particular offences in question had been committed.  The information is “before” the complainant, in this sense, when it is within his knowledge, in the sense that he has directed his mind to it.  It is not, in my opinion, sufficient that the information be reasonably available to the complainant, if it is not, in fact, known to him.  In the “Niobe” (1995) 1 Lloyd’s Law  Reports 579, the House of Lords held that the expression “coming to their knowledge”  meant  (in that case) “matters known to the sellers: neither more nor less”.

9. [9]
   The Magistrate had before him a statement of the complainant, David Lindsay Peebles. In the statement Mr Peebles says that he first became aware of Cross Country Realty in late May 2003, as a result of information received by the Office of Fair Trading.  He goes on to say that on 25 June 2003, he was present during the execution of a search warrant on the premises of Cross Country Realty and Easy Plan Financial Services located at 1/28 Orchid Avenue, Surfers Paradise.  He assisted in the search of the premises and located a quantity of documents which were subsequently seized.  He also recorded a description of the seized documentation on a number of OFT property seizure record sheets.  He states that he assisted in the transportation of the seized documents to the Office of Fair Trading, Strategic Compliance and Enforcement Unit, Brisbane.  His next involvement in the matter was in late January, early February, 2004, when he received further information concerning Cross Country Realty.  He had no further involvement in the matter until about 24 March 2004 when he commenced contacting developers who had had dealings with Cross Country Realty.

10. [10]
    In his evidence, Mr Peebles stated that his role in relation to the execution of the search warrant consisted in assisting in the search of the premises, recording some of the seized property on the property seizure sheets, assisting in loading the property and unloading it  back at the office later that evening.  He said that about 70 to 80 boxes of documents were found and taken from the premises.  It was not possible to examine the individual documents on the premises in detail.  Once the documents arrived back in Brisbane they were taken to the office and loaded in the evidence room, just in their boxes as they were.  Mr Peebles’ next involvement in the matter was an e-mail which he received in January 2004, followed up by a telephone contact in relation to Cross Country Realty.  On  24 March 2004, he started to contact developers.  Probably up to a couple of days before that he would have been going through the documents that had been placed in the evidence room to identify the developers that he needed to speak to.  He was able to obtain the names and addresses of the developers’ names from the documents, and contact was made with them.  He confirmed that basically he had not been personally involved in the matter following the execution of the search warrant up till March 2004.

11. [11]
    The witness confirmed in evidence-in-chief that he had the form 27Bs prior to getting statements from the developers. He also stated that he found some of the administration agreements in the materials that had been seized, but there were a number that were not there. This evidence was, generally, confirmed in cross-examination.

12. [12]
    In my opinion, the requirement of s 589 (1)(b) is 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, in my opinion, to say that the commission of the offence has “come to the complainant’s knowledge”. Of course, if the complainant does not acquaint himself with the facts contained in the available information within two years after the commission of the offence, then the prosecution cannot be brought.

13. [13]
    In the present case, it seems to me that Mr Peebles did not have knowledge of the commission of the offence simply because documents had been obtained which may have contained all the information necessary for him to reach that state of mind, had he examined the documents in detail at that time.  It may well be, as counsel for the respondents suggests, that  the Form 27Bs and the administration agreements were all that was required to institute the prosecutions.  And if Mr Peebles had in fact informed himself of these matters by studying the seized material, at or about the time of seizure, he could probably be described as having knowledge of the commission of the offences at that point, subject to a reasonable time to check the authenticity and effect of the documents. 

14. [14]
    On this view of the matter, 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 in preparation for contacting the developers involved.  It follows that the complaints filed on 21 June 2004 were within time, as indeed were the second set of complaints filed on 24 August 2004.  The Acting Magistrate was accordingly in error in dismissing the complaints as he did.

15. [15]
    The appeals are allowed, the order of the Magistrates Court dismissing the complaints on 2 June 2005 is set aside, (save as to count 26 in the multiple count complaints) as is the order for costs, and the matters are remitted to the Magistrates Court to be tried according to law. The respondents are ordered to pay the appellant’s costs of the appeal to be assessed.