Queensland Judgments
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Barbour v Melling & Anor

Unreported Citation:

[2022] QCA 254

EDITOR'S NOTE

This case was about the proper construction of s 225(1) Property Occupations Act 2014 which contains a limitation period that applies to “proceedings for an offence” under the Act. The appellant had been charged with an indictable offence contrary to the Act on a complaint made by a public officer employed by the Office of Fair Trading. The appellant argued that the complaint was brought out of time and ought to be struck out. Justice McMurdo (with whom Morrison JA and Callaghan J agreed) held that on a proper construction of s 225 Property Occupations Act 2014, the limitation period contained in subsection (1) does not apply to a proceeding for an indictable offence. The appeal was dismissed.

Morrison and McMurdo JJA and Callaghan J

9 December 2022

Background

The first respondent was a public officer employed by the Office of Fair Trading. [2]. The first respondent instituted a proceeding for an indictable offence against the Property Occupations Act 2014 (the “proceeding”). [2]. The proceeding was instituted by way of a complaint and summons under the Justices Act 1886 (the “initiating process”). [2]. The appellant applied for an order striking out the initiating process on the basis that the proceeding was instituted outside of the limitation period contained in s 225(1) Property Occupations Act 2014. [3]. The second respondent, a magistrate, dismissed the application. [3]. Section 225 relevantly provides as follows:

225 Proceedings for an offence

(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;

(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.

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

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

(b) on indictment. …” [4].

The appellant applied to the Supreme Court for declaratory relief: see Barbour v Melling [2022] QSC 125 (Martin SJA). [3]. The appellant argued that subsection (2) only deals with the “mode of proceeding” and does not qualify subsection (1) which prescribes the time limitation. [10]. It followed that the time limitation applies to all offences, indictable or otherwise. [10]. On this basis, it was said that the proceeding was instituted out of time. [10]. Justice Martin rejected this argument and dismissed the application. [3], [11]. It was held that on a proper construction of subsection (1) the time limitation does not apply to a proceeding for an indictable offence. [11].

Whether the proceeding in relation to an indictable offence was instituted out of time

Justice McMurdo (with whom Morrison JA and Callaghan J agreed) considered that the primary judge’s construction was correct and dismissed the appeal. [12]–[21]. Subsection (1) contains “one command”, i.e. it prescribes the time within which a proceeding for an offence which must be “taken in a summary way”. [19]. Subsection (1) is not in terms which imposes the limitation period to any offence, only offences “taken in a summary way” i.e. summary offences. [19]. Therefore, in absence of anything in the text or context of subsections (1) or (2) which would suggest otherwise, it was correct to conclude that the time limitation does not apply to a proceeding for an indictable offence, including where an indictable offence is dealt with summarily. [19]–[20].

Disposition

In the result, the appeal was dismissed. [1], [21]–[22].

D Kerr

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