Queensland Judgments
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Barbour v Melling & Anor

Unreported Citation:

[2022] QSC 125


This case considered whether a proceeding for an indictable offence under the Property Occupations Act 2014 is subject to a one-year time limit. Martin SJA concluded that it was not, based on the proper construction of s 225 of that Act.

Martin SJA

22 June 2022


The first respondent, an officer of the Office of Fair Trading, filed a Complaint and Summons in the Magistrates Court in Mackay, alleging that the applicant, Mr Melling, had committed an offence under s 206(2)(a) Property Occupations Act 2014 (“the Act”), involving the dishonest conversion of money received in the performance of certain real estate activities. [1]. The complaint was sworn more than one year after the last date on which it is alleged the offence was committed. [3].

The applicant contended that the complaint had been brought out of time. [4]. An Acting Magistrate dismissed that contention. [10]. In this application, the applicant alleged that the Acting Magistrate had fallen into jurisdictional error in so concluding. [11]. Martin SJA dismissed the application, finding that the complaint was not out of time. [19].

Why the complaint was not out of time

Section 225 of the Act provides that:

(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 –

a) 1 year after the offence is committed;

(2) A proceeding for an indictable offence may be taken, at the prosecution’s election –

b) by way of summary proceedings under the Justices Act 1886; or

c) on indictment.

The applicant’s argument was that the plain meaning of the words in s 225 was that the limitation period of one year in subsection (1) “applies to all offences, indictable or not, and the exercise of the election provided for in s 225(2) has no effect on that limitation period”. [12].

Martin SJA rejected that argument. [13]. His Honour said that s 225(1) dealt with only one topic – the commencement of summary proceedings. It was only offences under the Act that were to be the subject of summary proceedings under the Justices Act 1886 that “must be taken within a particular time” (namely, one year). [13]. Subsection (2) entitles a prosecutor to make an election as to proceeding by way of a summary trial or a trial on indictment. In summary, on the proper construction of the subsections, “a proceeding for an indictable offence under the [Act] is not subject” to the one-year time limit in s 225(1). [19].

Accordingly, the application was dismissed. [20].

W Isdale

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