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Campbell (Office of Fair Trading) v Williams[2015] QDC 297

Campbell (Office of Fair Trading) v Williams[2015] QDC 297

DISTRICT COURT OF QUEENSLAND

CITATION:

Campbell (Office of Fair Trading) v Williams [2015] QDC 297

PARTIES:

Annie Elizabeth Campbell ( Office of Fair Trading) (Appellant)

v

Douglas Michael Williams

(Respondent)

FILE NO/S:

1001 of 2015

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court Brisbane

DELIVERED ON:

2 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

4 September 2015

JUDGE:

Shanahan DCJ

ORDER:

Appeal Dismissed

CATCHWORDS:

FAIR TRADING – CONSUMER LAW – where the respondent, a sole director of a company, was charged with failing to supply goods to customers despite taking part or full payment – where the appellant served a number of notices pursuant to s 90 Fair Trading Act 1989 (Qld) requiring information to a number of non-party entities – where the results of those notices furnished the appellant’s case at trial against the respondent – where the respondent admitted the allegations but invoked the operation of s 96(2) Fair Trading Act 1989 (Qld) as a defence against the action due to the incriminating information provided by the notices.

STATUTORY INTERPRETATION – ACTS OF PARLIAMENT – LEGISLATIVE INTENT – STATUTORY CONSTRUCTION – where s 96(1) Fair Trading Act 1989 (Qld) holds a director vicariously liable for the actions of an offending body corporate – where s 96(2) Fair Trading Act 1989 (Qld) purports to provide a defence to a director where incriminating information is obtained under s 90 Fair Trading Act 1989 (Qld) – whether the learned Magistrate had erred as a matter of law by interpreting s 96(2) Fair Trading Act 1989 (Qld) as providing the defendant with a complete defence.

Acts Interpretation Act 1954 (Qld)

Competition and Consumer Act 2010 (Cth)

Fair Trading Act 1989 (Qld)

Fair Trading Amendment Act 1997 (Qld)

Justices Act 1886 (Qld)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378

CIC Insurance Ltd v Bankstown Football Club Limited (1997) 187 CLR 384

Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477

Jemena Asset Management Pty Ltd v Coinvest Ltd (2011) 244 CLR 508

Lacey v Attorney-General (Queensland) (2011) 242 CLR 573

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 555

R v Lenahan [2009] QCA 187

Ravenscroft v Nominal Defendant [2008] 2 Qd R 32;

Salomon v A. Salomon and Company Limited [1897] AC 22

Sevmere Pty Ltd v Cairns Regional Council [2010] 2 Qd R 276

Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40

Zheng v CAI (2009) 239 CLR 446

COUNSEL:

Mr C Cater for the Appellant

Mr A.M. Nelson for the Respondent 

SOLICITORS:

Crown Law for the Appellant

Conradie and Associates for the Respondent

  1. [1]
    This is an appeal pursuant to s 222 Justices Act 1886 from an acquittal in the Magistrates Court in relation to a number of charges laid under the Fair Trading Act 1989 (FTA) incorporating the Australian Consumer Law (ACL). The ACL is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth). The ACL was applied in Queensland by s 16 FTA by legislative amendment in 2010, as the Australian Consumer Law (Queensland).
  1. [2]
    The respondent was charged with six offences against s 158(7)(a)(b)(i) of the ACL. The allegations were that on six occasions the respondent had failed to supply, to paying customers, goods that were purchased, or pre-paid in part, by those customers. The respondent was charged as the director of the former business, Absolute Doors and Windows Pty Ltd, which provided a range of custom and readymade doors and windows.
  1. [3]
    After a trial in the Magistrates Court, Brisbane on 19 November 2014 and after hearing further submissions, on 12 February 2015, the learned Magistrate found that the respondent had committed the offences, but found that the defences contained in s 96(2) FTA had been proven. She found the respondent not guilty in relation to each charge.
  1. [4]
    The appellant filed a notice of appeal against those acquittals on 12 March 2015.
  1. [5]
    The original grounds of appeal were:

“1. The learned Magistrate erred in law in construing s 96(2) of the Fair Trading Act 1989 to support the interpretation that a company director has a defence if information that tended to incriminate the director is obtained from any notice issued under s 90 of the Fair Trading Act 1989; and further

  1. The learned Magistrate erred in finding that the defendant had successfully made out the defence available in s 96(2) of the Fair Trading Act 1989; and further
  1. As the learned Magistrate ought to have decided that the evidence obtained via s 90 notices was admissible in the proceeding, therefore the defendant should have been found guilty of the offences as charged; and further
  1. Even if the Magistrate’s interpretation of s 96(2) is accepted as correct, a combination of the admissions made by the defendant at trial and the evidence lead by the prosecution was enough to find the defendant guilty of all the offences beyond a reasonable doubt, independently of information gained under s 90.”
  1. [6]
    In the Certificate of Readiness (filed 18 June 2015) the appellant indicated that the issues in the appeal were confined to grounds one and four. Counsel for the appellant confirmed that on the hearing of the appeal (T1-6).
  1. [7]
    The issue is a discrete one involving the interpretation of s 96 (2) FTA. To consider that section it is necessary to set out relevant sections of the Fair Trading Act 1989 and the Australian Consumer Law.

Relevant Provisions of the Fair Trading Act 1989 and the Australian Consumer Law

  1. [8]
    Section 3 FTA provides,

“3. Objectives of this Act

The principle objective of this Act is to improve consumer wellbeing through consumer empowerment and protection, fostering effective competition and enabling the confident participation of consumers in markets in which both consumers and suppliers trade fairly.”

  1. [9]
    Section 16 provides,

“16. Application of Australian Consumer Law

  1. (1)
    The Australian Consumer Law text, as in force from time to time –
  1. (a)
    applies as a law of this jurisdiction; and
  1. (b)
    as so applying maybe referred as the Australian Consumer Law (Queensland); and
  1. (c)
    as so applying is a part of this Act.
  1. (2)
    This section has affect subject to section 17, 18 and 19.”
  1. [10]
    Section 90 provides, as relevant here,

“90 Power to obtain information

  1. (1)
    In relation to any matter relevant to the operation or enforcement of this Act, an inspector may require a person (either by oral or written requisition) to furnish—
  1. (a)
    any information; and
  1. (b)
    any records or a copy of them;

in the person's possession.

  1. (2)
    For the purpose of subsection (1), a person shall be taken to be in possession of—
  1. (a)
    information, if the person has the information or is entitled to access to the information; and
  1. (b)
    records, if the person has them in the person's possession or if the person has them under control in any place, whether for the person's own use or benefit or for another's use or benefit and although another person has the actual possession or custody of the records.

…

  1. (4)
    A person must not, without reasonable excuse—
  1. (a)
    refuse or fail to furnish any information, records or a copy of them as required of the person under this section; or
  1. (b)
    in response to a requisition made under this section furnish information, records or copies that is or are false or misleading in a material particular.

Maximum penalty—100 penalty units.

  1. (5)
    It is not a reasonable excuse for a person to refuse or fail to furnish information, a record or copy of a record on the ground that the information, record or copy might tend to incriminate the person.
  1. (6)
    However, information mentioned in subsection (5) is not admissible in evidence against the person—
  1. (a)
    for an individual—in any criminal proceedings; or
  1. (b)
    for a body corporate—in any criminal proceedings, other than proceedings under this Act.
  1. (6A)
    Subsection (6) does not apply to information as to the name and address of the person or as to the person's ownership of, control over or position in, any business.”
  1. [11]
    Section 96 provides,

“96 Vicarious liability

  1. (1)
    If a body corporate commits an offence against this Act, each director or member of the governing body of the body corporate shall, subject to the operation of the Australian Consumer Law (Queensland), chapter 4, part 4-6, be taken also to have committed the offence and is liable to be proceeded against and punished accordingly.
  1. (2)
    However, it is a defence in a proceeding against a director or member of the governing body of a body corporate under subsection (1) for the director or member to prove that information that tended to incriminate the body corporate was obtained under the Australian Consumer Law (Queensland), chapter 5, part 5-1, division 2 or under section 90.”
  1. [12]
    The Australian Consumer Law provides, as relevant here,

“Section 158 Wrongly accepting payment

…

  1. (7)
    A person commits an offences if:
  1. (a)
    the person, in trade or commerce, accepts payment or other  consideration for goods or services; and
  1. (b)
    the person fails to supply all the goods or services:
  1. (i)
    within the period specified by or on behalf of the person at or before the time the payment or other consideration was accepted; or
  1. (ii)
    if no period is specified at or before that time – within a reasonable time.

Penalty: 

  1. (a)
    if the person is a body corporate- $1,100,000; or
  1. (b)
    if the person is not a body corporate- $220,000.
  1. (8)
    Subsection (7) does not apply if:
  1. (a)
    the person's failure to supply all the goods or services within the period, or within a reasonable time, was due to the act or omission of another person, or to some other cause beyond the person's control; and
  1. (b)
    the person took reasonable precautions and exercised due diligence to avoid the failure.
  1. (9)
    Subsection (7) does not apply if:
  1. (a)
    the person offers to supply different goods or services as a replacement to the person (the customer ) to whom the original supply was to be made; and
  1. (b)
    the customer agrees to receive the different goods or services.”
  1. [13]
    The respondent was prosecuted as being vicariously liable pursuant to s 90(1) FTA for six offences against s 158(7)(a)(b)(i) ACL committed by the corporation Absolute Doors and Windows Pty Ltd of which the respondent was sole director.

The Trial    

  1. [14]
    On the trial, evidence was lead that s 90 notices were served on the ANZ Bank (T1 – 23) and the Bank provided bank records (T1 – 24; exhibits 4, 5, 6). A s 90 notice was served on a business supplier to Absolute Doors and Windows Pty Ltd (T1 – 27) and documents were provided. A s 90 notice was also served on the Queensland Building Commission (T1 – 29) which provided addresses for the respondent. A further s 90 notice was served on another firm, The Woodworking Company (T1 – 30) which produced documents which became exhibit 15 (T1 – 63).
  1. [15]
    The respondent made various admissions (T1 – 45 to 48). The respondent did not give or call evidence.
  1. [16]
    The prosecutor submitted that the evidence established the case against the respondent as being vicariously liable as a director. He relied on the ANZ bank statements to show the various deposits and transfers of funds (T1 – 66 to 70) and the documents obtained from the business supplier (T1 – 69). The prosecutor submitted that no defences had been raised pursuant to s 158(8) and (9) ACL.
  1. [17]
    The respondent conceded there was no issue about the liability of Absolute Doors and Windows Pty Ltd as a corporation for all six offences (T1-74). There was no dispute that the appellant was the sole director of that company. The issue in relation to the respondent was whether a defence lay under s 96(2) FTA. Material obtained under the s 90 notices had been relied on by the prosecution to prove its case (T1-77). Thus, s 96(2) had application and the respondent had a defence to each of the charges.
  1. [18]
    In reply, the prosecutor argued that such an interpretation of s 96(2) would lead to an absurd result. That provision should be confined to circumstances where a s 90 notice had been served on the corporation involved or the director. It should not apply in circumstances where the notices were served on unrelated organisations.
  1. [19]
    The learned Magistrate reserved her decision.
  1. [20]
    On 12 February 2015 she found that Absolute Doors and Windows Pty Ltd was guilty of failing to supply the goods to the six complainants. The respondent, as a director, was vicariously liable. Any defence under s 158(8) was not made out. She based her decision on an examination of the ANZ bank statements (D5). In relation to the defence raised under s 96(2) she found that the wording was not ambiguous or obscure and it was not necessary to consider extrinsic material (D8). She invited further submissions whether the information provided pursuant to the notices “tended to incriminate the body corporate”.
  1. [21]
    The prosecutor submitted that objection should have been made to the tender of the material obtained pursuant to the notices. In any event, there was evidence other than in the material produced pursuant to the notices, which was sufficient to establish the prosecution case. The defence submitted it was not a question about the admissibility of the material, but whether it tended to incriminate. Here the material was clearly relied on in the prosecution case and the learned magistrate had used the material to establish liability. That there may have been other evidence was not to the point as s 96(2) provided a defence to each charge.
  1. [22]
    The learned Magistrate found that the documents obtained from the Woodworking Company tended to incriminate. All the ANZ documents tended to incriminate. They were also used to exclude the operation of the s 158(8) defence (D9). She found the defence under s 96(2) made out. She acquitted the respondent of each charge.

The appeal

  1. [23]
    This is an appeal pursuant to s 222 Justices Act 1886. Such an appeal is by re-hearing on the evidence given before the justice (s 223). Such an appeal involves a judge making his or her own determination on the evidence, giving due deference and a good deal of weight to the Magistrate’s view: Stevenson v Yasso [2006] 2 Qd R 150. The issue here involves statutory interpretation.

Grounds of appeal

Ground 1

  1. [24]
    The first ground of appeal is that the learned Magistrate erred in law in her construction of s 96(2) FTA that a company director had a defence where information that tended to incriminate the director was obtained by any notice issued under s 90. The operation of that defence should be confined to information obtained from notices served on the director or the corporation that was the subject of the prosecution.
  1. [25]
    The appellant argued that such an interpretation was consistent with longstanding principles to protect an accused person from compulsorily obtained evidence obtained from them. It was an example of the principle that an accused could not be forced to incriminate himself or herself.
  1. [26]
    In this case, no s 90 Notices were served on either the respondent or the respondent’s company.
  1. [27]
    In the appellant’s written argument, the appellant asserted that the learned Magistrate ruled that s 96(2) rendered inadmissible any evidence obtained under s 90 that tended to incriminate the defendant. This is a fundamental misunderstanding of the finding by the learned Magistrate. It was not a question of admissibility but of whether the defence under s 96(2) had been established. In any event, it should be noted that s 96(2) refers to “information tended to incriminate the body corporate” not the director. That, however, has no impact on the interpretation of s 96(2) as clearly any information that tended to incriminated the body corporate, also tended to incriminate the director as a result of the vicarious liability extended by s 96(1).
  1. [28]
    The appellant submits that a “bare literal” construction of s 96(2) is not consistent with current judicial authority on statutory interpretation. It is submitted that that authority prefers a consideration of the text, context and purpose of a statute in its construction. The appellant refers to Lacey v Attorney-General (Queensland) (2011) 242 CLR 573 at 592 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ,

“The application of the rules will properly involve the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction.”

  1. [29]
    The appellant submits that when regard is had to the context and purpose of the provision, the learned Magistrate should have interpreted s 96(2) differently and confined its operation to notices served on a director and the particular body corporate.
  2. [30]
    It is further submitted that a literal interpretation leads to an unreasonable result. The appellant refers to s 14A Acts Interpretation Act 1954 and the stated principle that an interpretation best achieving an Act’s purpose should be preferred to any other interpretation. 
  3. [31]
    Section 14A Acts Interpretation Act 1954 provides,

“14A Interpretation best achieving Act's purpose

  1. (1)
    In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.”
  1. [32]
    The appellant submits that the interpretation of s 96(2) should be guided by a purposive construction of the statute (Zheng v CAI (2009) 239 CLR 446; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384).
  2. [33]
    The appellant refers to Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at [78] where McHugh, Gummow, Kirby and Hayne JJ stated,

“… 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 canons of construction may require the words of a legislative provision to be read in a way that does not correspond with a literal or grammatical meaning.”

  1. [34]
    The appellant contends that such an approach is also consistent with Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]; Lacey v Attorney General (Qld) (2011) 242 CLR 573 at [43].
  2. [35]
    The appellant submits that the purpose of the FTA is contained in s 3 (above). The principle purpose of the Act is consumer protection. The appellant submits that the result of a literal interpretation of s 96(2) is “inconvenient and anathema to legislative intention”.
  3. [36]
    It is submitted that s 96(2) is concerned with protecting against self-incrimination and the law that the privilege against incrimination does not apply to corporations (Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477). To extend its application to notices served on other bodies would frustrate the purpose of the Act in protecting consumers.
  4. [37]
    The appellant argues that recourse should be had to extrinsic material to determine the legislature’s intention with respect to s 96(2).
  5. [38]
    The appellant refers to s 14B Acts Interpretation Act 1954. That provides, as relevant here:

“14B Use of extrinsic material in interpretation

  1. (1)
    Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation—
  1. (a)
    if the provision is ambiguous or obscure—to provide an interpretation of it; or
  1. (b)
    if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable—to provide an interpretation that avoids such a result; or
  1. (c)
    in any other case—to confirm the interpretation conveyed by the ordinary meaning of the provision.
  1. (2)
    In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to—
  1. (a)
    the desirability of a provision being interpreted as having its ordinary meaning; and
  1. (b)
    the undesirability of prolonging proceedings without compensating advantage; and
  1. (c)
    other relevant matters.”
  1. [39]
    The appellant submits that s 14B(b) and (c) are of relevance here. It is submitted that to interpret the sub-section in its ordinary meaning produces an unreasonable result. That is, to provide a defence to a director where no s 90 notice had been served on either the corporation or the director. It is thus appropriate to refer to extrinsic material to interpret s 96(2).
  1. [40]
    Section 96(2) was inserted in the FTA by the Fair Trading Amendment Act 1997. The explanatory notes to the Bill refer to the introduction of s 96(2),

“Clause 45 inserts a new s 96(2) in the Act, which provides that it is a defence to a prosecution under s 96 for a director or member of a body corporate’s governing body to prove that incriminating information was obtained from the body corporate under s 88B or 90 of the Act. This amendment is considered necessary because of the new s 88B (5) – (6) inserted by clause 38 of the Bill and the consequential amendments to s 90(5) – (6) made by clause 39 of the Bill.

Section 96 of the Act provides that if a body corporate commits an offence, each director or member of the body corporate’s governing body is taken to have committed the offence and is liable to be proceeded against and punished accordingly. As the new s 88B and the amended s 90 of the Act will compel a body corporate to provide incriminating information which may be used against the body corporate in criminal proceedings under the Act, the effect on s 96 would be to leave the directors or members of a body corporate’s governing body similarly exposed to criminal prosecution on the basis on that incriminating information. The insertion of a new s 96(2) in the Act is therefore considered necessary to insure compliance with fundamental legislative principles.”           

  1. [41]
    In relation to the Bill’s second reading speech, the then Attorney General said,

“Section 96 of the Act provides that if a body corporate commits an offence, each director or member of the body corporate’s governing body is taken to have committed the offence and is liable to be proceeded against and punished accordingly. As Consumer Affairs will be able to use incriminating information provided by a body corporate under compulsion in any prosecution against that body corporate under the Fair Trading Act, this would leave the directors or members of a body corporate’s governing body similarly exposed to prosecution. In the interest of fairness, the Bill therefore amends s 96 to make it a defence to a prosecution under the section for a director or member of a body corporate’s governing body to prove that incriminating information was obtained from the body corporate by compulsion under the Act.”

  1. [42]
    It is submitted that, that extrinsic material clearly demonstrates that the intention in relation to s 96(2) was to limit its application to notices served on the particular body corporate under investigation or the director. It is submitted that s 96(2) should be interpreted to read the words “served on the body corporate or the director or members of the governing body of the body corporate” at the end of the subsection to thus limit its application. The literal interpretation of the provision would be an unintended widening of the protection against self-incrimination.
  1. [43]
    The respondent accepted that the elements of the offence were proved at the trial in relation to each count. However the respondent submits the learned Magistrate was correct in her interpretation of s 96(2) in that the prosecution relied on information incriminating the corporation obtained under s 90 notices. Thus the respondent had a defence to each charge.
  1. [44]
    The respondent submits that s 96(1) of the FTA (which was introduced in the 1989 Act) had the unusual effect of making a company director vicariously liable for offences committed by the body corporate. This was unusual in that it circumvented established law that a director was not so liable (Salomon v A. Salomon and Company Limited [1897] AC 22; R v Lenahan [2009] QCA 187). By the introduction of s 96(2) in the 1997 Amendment Act, The Legislature clearly intended to introduce a further protection from that vicarious liability. There was already a protection included in the s 90 provisions. Section 90(6) provided that information supplied pursuant to a s 90 notice “is not admissible in evidence against the person” (upon whom the notice was served), in any criminal proceeding against an individual or in any criminal proceeding, other than proceedings under the FTA, against a body corporate. Thus, there was already a protection against self-incrimination for a director by the making of that information inadmissible in any criminal proceeding including proceedings under the FTA. The Legislature must have intended an additional protection by the introduction of s 96(2) in the amending Act.
  1. [45]
    The respondent submits that in those circumstances there is an argument that the Legislature intended to provide an additional and different protection to a director in relation to vicarious liability.
  1. [46]
    The respondent further submits that the wording of s 96(2) is clear and unambiguous. Both the cases Project Blue Sky and Alcan (above) reiterate that one first looks at the actual words of the statute. Ordinarily, the legal meaning corresponds with the grammatically meaning. Such an approach was indorsed in Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 at [50]; Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [41]; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at [25] and [70]. The respondent submits that if the words of the legislation are clear, there is no need to refer to extrinsic material.
  1. [47]
    The respondent submits that s 96(1) created a unique exception to the common law, enabling a person to be prosecuted for the acts of another legal entity. To provide an additional protection to such a person is not necessarily inconsistent with the purposes of the Act. The defence provided limits that change in liability and that may had been the Legislature’s intention. There is no reason to resort to extrinsic material.
  1. [48]
    The respondent submits that the appellant’s argument that s 96(2) was concerned with protecting the privilege against self-incrimination should not be accepted. If that had been the intention, the provision could have been framed in simple terms akin to s 90(6).
  1. [49]
    The respondent submits that the wording of s 96(2) is clear and unambiguous. The learned Magistrate was correct in the interpretation she gave to it.

Consideration of Ground 1

  1. [50]
    The wording of s 96(2) is unusual. The parties agree that the equivalent Commonwealth Act does not have a similar provision. The equivalent NSW and Victorian Acts also do not have such a provision. It has not been judicially considered previously.
  1. [51]
    In my view, the use of the term “it is a defence” entails an intention of the Legislature to provide something in addition to making information compulsorily obtained by use of the s 90 notices merely inadmissible in any prosecution. Section 90(6) already provided such a protection in relation to such material for a prosecution of an individual in any criminal proceedings (including proceeding pursuant to the FTA), where the person might have refused to comply with the notice on the basis that the information might tend to incriminate that person (s 90(5)).
  1. [52]
    The use of the term “it is a defence” implies something more was intended rather than simply making such information inadmissible on a prosecution. It may be that the respondent’s contention is correct. That is, that the Legislature intended to add an additional protection for directors in relation to vicarious liability as that was an alteration of the long-standing previous position that a director was not personally liable for the acts of the body corporate.
  1. [53]
    In any event, in my view the wording of s 96(2) is plain and unambiguous. As noted in Project Blue Sky (above) at [78],

“… 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”.

  1. [54]
    Here the clear literal meaning may be consistent with the Legislature’s intent to provide an additional protection to a director’s vicarious liability. That being possible, in my view, it is impermissible to refer to extraneous material in order to read additional words into the provision to limit its application. The extraneous material does indicate that the provision was to be so limited, but the plain words on s 96(2) do not contain that limitation. As noted in Lacey (above) at [61] of the joint judgment, “the Minister’s words, however, cannot be substituted for the text of the law, particularly where the Minister’s intention, not expressed in the law, affects the liberty of the subject”. This was again reiterated in Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 where a unanimous High Court said at [50], “as this Court has stated many times, statements of legislative intention made by a Minister do not overcome the need to consider the text of a statute to ascertain  its meaning.”  In my view it is not possible to state with certainty that the additional words sought to be inserted by the appellant were the intention of the Legislature.
  1. [55]
    If the intention of the Legislature was to so limit the operation of the provision, and the provision is thus defective, it is for the Legislature to correct. See Nominal Defendant v Ravenscroft [2008] 2 Qd R 32 at [52]; Sevmere Pty Ltd v Cairns Regional Council [2010] 2 Qd R 276 at [65].
  1. [56]
    I am not persuaded that the learned Magistrate was incorrect in her interpretation of s 96 (2). The first ground of appeal thus fails.

Ground Four

  1. [57]
    The appellant submits that even if the learned Magistrate’s interpretation of s 96(2) was correct, the combination of the admissions made by the appellant at the trial and other evidence not obtained under the s 90 notices was sufficient to find the appellant guilty of each offence. The admissions established a prima facie breach of s 158(7) ACL and there was circumstantial evidence sufficient to exclude the operation of the defences contained in s 158 (8) and (9). On that evidence, the learned Magistrate should have convicted the appellant.
  1. [58]
    The respondent submits that such an argument is misconceived. The admission of the information obtained by the s 90 notices and that the information tended to incriminate the respondent, as the learned Magistrate found, was sufficient to invoke the defence in s 96(2). Once established, it was an answer to each charge.

Consideration of Ground 4

  1. [59]
    I accept the respondent’s submissions. Section 96(2) if established, provides a defence to a charge. It is not a matter of simply ignoring the “information…tending to incriminate” obtained by the s 90 notices. The defence was plainly established and was thus an answer to each charge. This ground of appeal also fails.

Decision

  1. [60]
    The learned Magistrate’s decision on the interpretation of s 96(2) was correct. The defence to each charge was made out. The acquittals were appropriate. The appeal is dismissed.
  1. [61]
    I will hear the parties as to costs.
Close

Editorial Notes

  • Published Case Name:

    Campbell (Office of Fair Trading) v Williams

  • Shortened Case Name:

    Campbell (Office of Fair Trading) v Williams

  • MNC:

    [2015] QDC 297

  • Court:

    QDC

  • Judge(s):

    Shanahan DCJ

  • Date:

    02 Dec 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
2 citations
Jump To
Cite 1 - (2009) 239 CLR 27
Cite 2 - (2009) 239 CLR 27
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
2 citations
Jump To
Cite 1 - (2012) 248 CLR 500
Cite 2 - (2012) 248 CLR 500
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378
2 citations
Jump To
Cite 1 - (2012) 248 CLR 378
Cite 2 - (2012) 248 CLR 378
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
2 citations
Jump To
Cite 1 - (1997) 187 CLR 384
Cite 2 - (1997) 187 CLR 384
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
2 citations
Jump To
Cite 1 - (1993) 178 CLR 477
Cite 2 - (1993) 178 CLR 477
Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508
3 citations
Jump To
Cite 1 - (2011) 244 CLR 508
Cite 2 - (2011) 244 CLR 508
Cite 3 - (2011) 244 CLR 508
Lacey v Attorney-General (Qld) (2011) 242 CLR 573
4 citations
Jump To
Cite 1 - (2011) 242 CLR 573
Cite 2 - (2011) 242 CLR 573
Cite 3 - (2011) 242 CLR 573
Cite 4 - (2011) 242 CLR 573
Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355
1 citation
Jump To
Cite 1 - (1988) 194 CLR 355
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 555
1 citation
Jump To
Cite 1 - (1998) 194 CLR 555
R v Lenahan [2009] QCA 187
2 citations
Jump To
Cite 1 - [2009] QCA 187
Cite 2 - [2009] QCA 187
Ravenscroft v Nominal Defendant[2008] 2 Qd R 32; [2007] QCA 435
2 citations
Jump To
Cite 1 - [2008] 2 Qd R 32
Cite 2 - [2008] 2 Qd R 32
Sevmere Pty Ltd v Cairns Regional Council[2010] 2 Qd R 276; [2009] QCA 232
2 citations
Jump To
Cite 1 - [2010] 2 Qd R 276
Cite 2 - [2010] 2 Qd R 276
Solomon v Solomon & Co Ltd (1897) AC 22
2 citations
Jump To
Cite 1 - (1897) AC 22
Cite 2 - (1897) AC 22
Stevenson v Yasso[2006] 2 Qd R 150; [2006] QCA 40
3 citations
Jump To
Cite 1 - [2006] QCA 40
Cite 2 - [2006] 2 Qd R 150
Cite 3 - [2006] 2 Qd R 150
Zheng v Cai (2009) 239 CLR 446
2 citations
Jump To
Cite 1 - (2009) 239 CLR 446
Cite 2 - (2009) 239 CLR 446

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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