Mahony v Queensland Building and Construction Commission
[2015] QDC 161
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- Unreported Judgment
- Mahony v Queensland Building and Construction Commission[2015] QDC 161
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Mahony v Queensland Building and Construction Commission[2015] QDC 161
Mahony v Queensland Building and Construction Commission[2015] QDC 161
DISTRICT COURT OF QUEENSLAND
CITATION: | Mahony v Queensland Building and Construction Commission [2015] QDC 161 |
PARTIES: | GERARD WILLIAM MAHONY (appellant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) |
FILE NO/S: | Gympie D11/14 |
DIVISION: | Appellate |
PROCEEDING: | Appeal under s 222 of the Justices Act 1886 |
ORIGINATING COURT: | Magistrates Court at Gympie |
DELIVERED ON: | 22 June 2015 |
DELIVERED AT: | District Court at Brisbane |
HEARING DATE: | 5 June 2015 |
JUDGE: | Long SC DCJ |
ORDER: | The appeal is dismissed and pursuant to s 225 of the Justices Act 1886, the orders made in the Magistrates Court at Gympie, on 24 June 2014, are confirmed. |
CATCHWORDS: | APPEAL – s 222 of the Justices Act 1886 – where the appellant appeals against his conviction of offences under the Queensland Building Services Authority Act 1991 – whether the Magistrate erred in effectively finding that the complaint was not brought outside the statutory time limitation prescribed by s 111(1) of the Queensland Building Services Authority Act 1991 – whether the complaint was brought within the statutory time bar – construction of s 111 of the Queensland Building Services Authority Act 1991. Justices Act 1886 s 43, s 52, s 223 and s 225 Queensland Building Services Authority Act 1991 s 111 Barrat v Samuel (1916) 18 WAR 138 Ellis v Ellis [1896] P 251 Mbuzi v Torcetti [2008] QCA 231 Project Blue Sky Inc v Australian Broadcasting Commission (1998) 194 CLR 355 Rowe v Kemper [2008] QCA 175 Saraswati v R (1991) 172 CLR 1 |
COUNSEL: | P Cosgrove, solicitor, for the appellant D MacKenzie, counsel, for the respondent |
SOLICITORS: | Cosgroves Lawyers for the appellant Queensland Building and Construction Commission for the respondent |
- [1]By complaint made by an authorised officer and on behalf of the Queensland Building Services Authority (“QBSA”),[1] on 12 November 2013, the appellant was charged with two offences:
“Charge 1
On 11 October 2012, at Rainbow Beach in the Magistrates Court District of Gympie, GERARD WILLIAM MAHONY pretended to be a licensee within the meaning of the Queensland Building Services Authority Act 1991, in contravention of section 50D(1) of the Queensland Building Services Authority Act 1991.
…
Charge 2
On 11 October 2012, at Rainbow Beach in the Magistrates Court District of Gympie, GERARD WILLIAM MAHONY, not a licensee under the Queensland Building Services Authority Act 1991, published an advertisement that GERARD WILLIAM MAHONY was available to carry out building work, without stating the value of the work GERARD WILLIAM MAHONY was entitled to carry out without a licence, in contravention of section 53C of the said Act.”
- [2]From the particulars included in the complaint, it is clear that the separately charged offences related to a single underlying circumstance, that on 11 October 2012, an officer of the authority (Mr Sengstock) photographed a sign positioned so as to be on display, at the front of the appellant’s residence at Rainbow Beach.
- [3]On 24 June 2014 and after hearing the matter, a magistrate at Gympie convicted the appellant of both offences, imposed one fine in the amount of $3,500 and ordered that the appellant pay costs in the sum of $2,248.90 and further ordered that the recovery of the payments be referred to the State Penalties Enforcement Registry.
- [4]The appellant filed a notice of appeal on 21 July 2014. It appears to be an appeal against conviction. However and despite the subsequent filing of amended notices of appeal and other documents purporting to be written outlines, by the appellant acting in a self-represented capacity and even after specific direction made in this court on 19 November 2014, the proceedings have been characterised by a lack of identification of any clear ground upon which the appeal was pursued.
- [5]As to such an appeal, the Court of Appeal has recognized an approach which requires this court to undertake a review of the record of proceedings and to form an independent conclusion as to the orders made, having due regard to the decision that was made and any advantage that the Magistrate had in making that decision.[2] However, it is also recognized that the fundamental purpose of the appeal allowed to this court, is in the correction of any error of the Magistrate, determined on the basis of that review and this court’s own conclusions.[3]
- [6]When the matter was then mentioned on 25 May 2015, for the purpose of listing it for hearing on 5 June 2015, the appellant informed the Court that he would be represented, again, by the solicitor who had represented him at trial. On that hearing, the appellant was so represented and sought only to rely upon a further written outline of argument and only the issue raised in that outline. That outline had been filed that morning and although the respondent had not had any lengthy opportunity to respond in writing, as it was understood, the respondent’s counsel had been provided with a copy of this outline the previous afternoon. No objection was taken and it can be observed that, at least, this document was calculated to identify the only point which was sought to be agitated in this appeal. The respondent was content to rely upon one of its earlier written outlines, which had touched upon this issue and its further oral submissions
- [7]The point is a simple one and was raised before the Magistrate and effectively decided against the appellant, before the Magistrate proceeded to determine the appellant’s guilt and make the orders under appeal. The contention is that the Magistrate should have found that the complaint was made outside the period of time limitation, prescribed by s 111(1) of the Queensland Building Services Authority Act 1991 (“QBSA Act”).
- [8]The appellant otherwise raises no issue as to his convictions or the orders made in consequence thereof and therefore makes no challenge to the acceptance by the Magistrate of the respondent’s case, that the sign was then in a position where it was on display at the front of the appellant’s residence, such as to constitute the charged offences. Critically, the sign contained the assertions: “Another project by BUILDER Gerhard Mahony” and “OPEN LIC. QBSA 17611” and contained no other relevant qualification. The appellant’s license number 17611 had been cancelled on 30 August 2005.
- [9]However, a difficulty as to the weight that might be given to the Magistrate’s decision in respect of the time limitation issue, is that she was led, by the parties, into considering and deciding this issue on the basis that the appellant was applying for a stay of proceedings.[4]
- [10]That occurred because the appellant produced evidence, to the essential effect that in conjunction with the loss of his relevant builder’s license in the year 2005, the sign in question had been removed from a building site, by a labourer and placed and then left in the position where it was ultimately seen and photographed by Mr Sengstock, on 11 October 2012. The appellant also contended that in the period when the sign had remained there, at least an officer of the respondent must have come to his residence, on or about 30 August 2008 and in order to leave a card in his front door and therefore, by inference, must have seen the sign.
- [11]The respondent engaged upon this issue by also producing evidence,[5] in order to explain how the card had not been left in the door by any such officer but left with one of the appellant’s labourers or associates. However and in doing so, it was also disclosed that at least one officer of the respondent had driven to and stopped outside the appellant’s residence, around 2008 and therefore at a time when, on the otherwise unchallenged evidence of the appellant, the sign was in the same position where it was able to be seen and photographed by Mr Sengstock on 11 October 2012. The evidence of that particular witness was that he “had no recollection as to whether a builder’s sign was, or was not located at the front of Mr Mahony’s property”.[6]
- [12]Significantly, it was the photographs so taken by Mr Sengstock, that were found to evidence the offences of which the appellant was convicted and therefore both the “pretence” and ‘advertisement” made by him.
- [13]It was this state of the evidence that was latched upon, in the appellant’s submissions in this court. However and even if this did provide a basis for a finding of relevant knowledge of the presence of the sign, as early as 2008, there is no need to dwell upon this, or any of the findings made by the Magistrate in respect of this evidence. A reason for that is that, if any issue did arise for the Magistrate as to time limitation in respect of the complaint, that was a matter that went to the jurisdiction of the Court to hear the complaint. Accordingly, it was a matter to be established by the complainant, on the balance of probabilities[7] and not for the appellant to establish that any stay of proceedings should have been ordered. That is because, the Magistrate’s jurisdiction in respect of a proceeding sought to be commenced by complaint[8] and in respect of simple offences, as charged here,[9] is that:
“… unless some other time is limited for making complaint by the law relating to the particular case, complaint must be made within one year from the time when the matter of complaint arose.” [10]
- [14]In this instance, the “other time limited” was provided by s 111(1) of the QBSA Act, as follows:
“(1) A prosecution for an offence against this Act may be started within 2 years after the alleged date of commission of the offence or within 1 year after the offence comes to the knowledge of the authority, whichever is the later.”
- [15]Accordingly, the appellant’s point resolves entirely to the construction or interpretation of that provision. Unfortunately, the appellant’s arguments in that regard are entirely misconceived.
- [16]By reference to the evidence he introduced into the proceedings, the appellant contends that the commencement or date of commission of his offence, was in 2005. That is, when the sign was first put there and he seeks to address the second limb of s 111(1), by reference to the evidence suggesting that an officer of the authority or commission had come to his residence, as early as 2008 and would have seen the sign.
- [17]A further reason why there is no need to dwell on the contentions arising out of the evidence as to what may have occurred in 2008, is because, even if the appellant’s interpretation of the section was correct, then it is apparent that the point made as to the second limb is even more cogently made by reference to the uncontentious situation, that the complaint was made on 12 November 2013 and therefore more than a year after the date when Mr Sengstock went to the premises and photographed the sign, in situ on 11 October 2012.
- [18]However, the problem for the appellant is that the contended interpretation of the provision is untenable. The contention tends to pay no attention to and to read out the word “alleged”. This is an impermissible approach to statutory interpretation, in that and as a general principle, all words of an enactment are to be given meaning and effect.[11] Moreover and as noted in Project Blue Sky Inc v Australian Broadcasting Commission:[12]
“… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the cannons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
Further and as noted in Saraswati v R,[13]often the grammatical or literal meaning of a statutory provision will give effect to the statutory purpose and so it is here. The effect and purpose is clear, in providing for a limitation of two years in which to allege the commission of an offence, except where there is not relevant knowledge of the offence until a later time and then, the proceedings must be started within a further period of a year. The focus upon the “alleged date of commission of the offence”, in the first instance, is clearly upon the allegation particularized in the charge and is appropriate to immediately indicate whether the complaint complies with the first limb in s 111(1).
- [19]Further, the appellant’s contention and the attempted application of it to the circumstances of this case, also ignores the fact that what the appellant was charged with and convicted of were, relevantly, his acts of pretending to be a licensee and publishing an advertisement of the stated kind, on 11 October 2012. As the case against him was framed and as the Magistrate found, those allegations depended upon proof of the contents of the sign that was being displayed by the appellant, at his residence, on 11 October 2012. Those allegations did not depend in any way upon proof that he had put it there or had it put there, on that day or at any other time or that it was there on any other day. As I have noted, no challenge is made to the Magistrate’s findings in that regard.[14]
- [20]Accordingly and on the face of the charges in the complaint, the only allegations that were made and ultimately found against the appellant, were of offences committed on 11 October 2012. Clearly, the complaint was made and therefore the prosecution of those offences started, within a period of two years, after 11 October 2012 and no issue as to any later knowledge of the authority arose.
- [21]A similar point was made in Barrat v Samuel[15] and in respect of the application of an equivalent provision to s 52 of the Queensland Justices Act and therefore in reference to a time limitation also couched in the less specific language of being “from the time when the matter of complaint arose”.
- [22]In that case, the offence that was prosecuted was that, on 25 February 1916, the defendant “did maintain a sideboard over the footway without a license”. The period of time limitation was six months. However the circumstances were that the signboard had been erected on 20 May 1912 and had remained in place until the making of the complaint, on 1 March 1916. Further and when erected, it was not an illegal sign but the prosecution was premised on the promulgation of a bylaw, on 24 July 1914, relevantly prescribing the erection or maintenance of any sign, except by written license from the council. McMillan CJ observed:[16]
“The question is, when did the matter of the complaint arise? It seems to me that the matter of complaint was maintaining the signboard without a written license. This offence was being committed on the 25th February.”
- [23]In an attempt to demonstrate a further contended flaw in the appellant’s contention, the respondent made reference to this case and another[17] and also to the following contention, made in a past and respected commentary as to s 52 of the Justices Act 1886:
“The time limit imposed by this section does not apply to continuing offences; the six months are not to be reckoned from the commencement thereof.”[18]
- [24]For the reasons that have been given, it is unnecessary to dwell on any continuing effect of the circumstances raised by the appellant, because he was simply not charged on any such basis. However and whatever may be the correct position as to applying s 52 of the Justices Act 1886, it can be observed that having regard to the more specific nature of the provision in s 111(1) of the QBSA Act[19] the respondent’s reliance on this assertion may be misplaced. If the focus is on the “alleged date of commission of the offence”, in the first limb, it may be difficult to see how there could be any allegation as to the commission of an offence extending back any further than two years. That would certainly be the case where there is an allegation of an offence that has occurred at some point, in a broad period of time and may also mean that where there has been some continuity or recurring aspect in the offending, then such an allegation could not be justified under the first limb, to the extent that it extended back in excess of two years. However and depending on the circumstances referrable to any absence of any earlier knowledge of the commission of the offence and although different considerations might arise, such an allegation might be justified by reference to the second limb.
- [25]In any event, the position here was clear on the face of the complaint. The allegation was not time barred and the Magistrate clearly had jurisdiction to hear and decide the charges. Accordingly the appeal should be dismissed and the appropriate order, pursuant to s 225 of the Justices Act 1886, is that the orders made in the Magistrates Court at Gympie, on 24 June 2014, are confirmed.
Footnotes
[1] Pursuant to the Queensland Building Services Authority Act, No 38 of 2013, the Queensland Building Services Authority was replaced by the Queensland Building and Construction Commission and pursuant to transitional provisions (see s 42 in Schedule 1 of the Queensland Building and Construction Act 1991), the commission was substituted for the former authority, as the party to this proceeding.
[2] See Rowe v Kemper [2008] QCA 175 at [5] and Mbuzi v Torcetti [2008] QCA 231 at [17].
[3] s 223 Justices Act 1886 and see Fox v Percy (2003) 214 CLR 118 at [25], Rowe v Kemper [2009] 1 Qd R 247 at [5], Mbuzi v Torcetti [2008] QCA 231 at [17], Teelow v Commissioner of Police [2009] QCA 84 at [2]-[4], Tierney v Commissioner of Police [2011] QCA 327 at [26], Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181 at [10] and Commissioner of Police v Al Shakaji [2013] QCA 319.
[4] The Appellant had precipitated this by filing an application dated 30 May 2014. However, that was directed at the dismissal or staying of infringement notices which had been previously issued in respect of these offences but withdrawn by 30/5/14; see Magistrate’s Decision, at p. 2.10 and p. 4.32-36.
[5] All of the evidence in the trial was given by way of affidavit, without any cross-examination.
[6] See Affidavit of J A Pratt, sworn 27/5/14, at [21].
[7] Cf: Thompson v R (1989) 169 CLR 1.
[8] Section 43 Justices Act 1886.
[9] See s 44, Acts Interpretation Act 1954.
[10] Section 52, Justices Act 1886.
[11] Commonwealth v Baume (1905) 2 CLR 405, at 414; Project Blue Sky Inc v Australian Broadcasting Commission (1998) 194 CLR 355, at 382.
[12] Ibid at 384.
[13] (1991) 172 CLR 1, at 21 per McHugh J.
[14] See Magistrate’s Decision, at p. 9.4-9.
[15] (1916) 18 WAR 138.
[16] Ibid at 140.
[17] Ellis v Ellis [1896] P 251, as they were cited in Kennedy Allen, the Justices Acts of Queensland 1886 – 1949; third edition, 1956, at 144-145.
[18] See Kennedy Allen, at 144.
[19] Which remains in the Queensland Building and Construction Commission Act 1991.