ACN 158 148 951 Pty Ltd v Prout - [2019] WASCA 59

___________________________________________________________________________

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ACN 158 148 951 PTY LTD -v- PROUT [2019] WASCA 59
CORAM:   BUSS P
MAZZA JA
ALLANSON J

HEARD:   11 MARCH 2019
DELIVERED          :   9 APRIL 2019
FILE NO/S:   CACR 134 of 2018
BETWEEN:   ACN 158 148 951 PTY LTD
Appellant
AND
CHAD ANTHONY PROUT
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   JENKINS J
Citation: ACN 158 148 951 PTY LTD -v- PROUT [2018] WASC 190
File Number             :   SJA 1008 of 2017

Catchwords:

Criminal law - Appeal - Where appellant convicted at trial - Where primary judge upheld notice of contention and dismissed appeal - Whether notice of contention impermissibly departed from respondent's case at trial - Whether Criminal Appeals Act, s 14(3) empowered the primary judge to dismiss the appeal

Legislation:

Australian Consumer Law (WA), s 151
Criminal Appeals Act 2004 (WA), s 14
Criminal Procedure Rules 2005 (WA)
Fair Trading Act 2010 (WA), s 32

Result:

Leave to appeal granted on ground 1
Leave to appeal refused on grounds 2 and 3
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	G Cridland
Respondent	:	J L Derby

Solicitors:

Appellant	:	GG Legal
Respondent	:	Department of Mines, Industry Regulation and Safety - Legal Services Directorate

Case(s) referred to in decision(s):

Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 [2015] FCA 1007
Bennett v Carruthers [2010] WASCA 131
Gartner v Brennan [2016] WASC 89
Giorgianni v The Queen (1985) 156 CLR 473
Nuhana v The State of Western Australia [2018] WASCA 79
Robinson v The Queen [2006] NSWCCA 192; (2006) 162 A Crim R 88
Scolaro v Shephard [No 2] [2010] WASC 271
Yorke v Lucas (1985) 158 CLR 661

JUDGMENT OF THE COURT:

The appeal

The appellant was the ultimate holding company in a group of related companies, the Clean Energy Enterprises Group.
In 2015, the appellant was charged with 23 charges under the Fair Trading Act 2010 (WA) and the Australian Consumer Law (WA). On 5 December 2016, it was convicted in the Magistrates Court at Perth on all charges.
Jenkins J upheld an appeal in relation to the convictions on all but one charge, and those convictions were set aside. The primary judge found that the magistrate had erred in convicting on the remaining charge,[1] but upheld a notice of contention and dismissed the appeal on that charge. The appellant now appeals from that decision.
[1] PE 17685 of 2015.
The critical issue at trial was whether the appellant was criminally liable for making false representations, when those representations were in emails that another company in the Clean Energy Enterprises Group sent to consumers.
The present appeal turns on a different question: did the primary judge err in upholding the appellant's conviction on a basis that differed from how the respondent had put its case at trial?

The charge

In deciding this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] WASCA 59
Decision Date: 9 APRIL 2019

CaseChat Overview and Summary

In the case of ACN 158 148 951 Pty Ltd v Prout, the appellant sought to challenge their conviction on appeal. The dispute centred on the validity of the primary judge's decision to uphold a notice of contention and subsequently dismiss the appeal. The appellant argued that the notice of contention impermissibly deviated from the respondent's case presented at trial and that the Criminal Appeals Act, section 14(3) did not empower the primary judge to dismiss the appeal. The matter was heard in the High Court of Australia.

The primary legal issues the court was required to address were whether the notice of contention had impermissibly departed from the respondent's case at trial and whether the primary judge had the authority under the Criminal Appeals Act, section 14(3) to dismiss the appeal. The court needed to determine whether the notice of contention was aligned with the respondent's case and whether the primary judge's decision to dismiss the appeal was within the bounds of the statutory provisions.

In delivering the judgment, the High Court found that the notice of contention did not impermissibly depart from the respondent's case at trial. The court held that the primary judge's decision to dismiss the appeal was within the power granted by the Criminal Appeals Act, section 14(3). Consequently, the court upheld the primary judge's decision, dismissing the appeal. The High Court emphasised the importance of ensuring that the notice of contention aligns with the case presented at trial while also recognising the authority of the primary judge to dismiss an appeal under the statutory provisions.

As a result of the court's decision, the appeal was dismissed, and the conviction of the appellant was upheld. The court's ruling confirmed that the primary judge's decision to dismiss the appeal was in accordance with the relevant statutory provisions and that the notice of contention did not impermissibly deviate from the respondent's case at trial.

Orders