Arch v Linfox Australia Pty Ltd - [2024] WASC 376

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   ARCH -v- LINFOX AUSTRALIA PTY LTD [2024] WASC 376
CORAM:   COBBY J
HEARD:   9 AUGUST 2024; FURTHER SUBMISSIONS FILED 16 AUGUST 2024
DELIVERED          :   18 OCTOBER 2024
FILE NO/S:   SJA 1004 of 2024
BETWEEN:   ANDREW ARCH
Appellant
AND
LINFOX AUSTRALIA PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B WHITE
File Number            :   PH 855/23

Catchwords:

Statutory construction - Sentencing Act 1995 (WA) - Spent conviction order - Corporations

Legislation:

Criminal Appeals Act 2004 (WA) s 14(2)
Road Traffic (Vehicles) Act 2012 (WA) s 29(1)
Road Traffic (Vehicles) Regulations 2014 (WA) reg 187
Sentencing Act 1995 (WA) s 39, s 40, s 45
Spent Convictions Act 1988 (WA) s 3

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	J M Misso & A L Nowak
Respondent	:	S F Rafferty SC

Solicitors:

Appellant	:	State Solicitor's Office
Respondent	:	Bennett

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

Harper v Page [2004] WASC 267
MKP Management Pty Ltd v Shire of Kalamunda [2020] WASCA 130; (2020) 56 WAR 56
Mohammadi v Bethune [2018] WASCA 98
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
SZATL v Minister for Immigration & Border Protection [2017] HCA 34; (2017) 262 CL 362
Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531

COBBY J:

On 18 December 2023, the respondent pleaded guilty to one charge of failing to comply with a loading requirement pursuant to reg 187 of the Road Traffic (Vehicles) Regulations 2014 (WA), contrary to s 29(1) of the Road Traffic (Vehicles) Act 2012 (WA). In sentencing the respondent, the learned magistrate imposed a fine of $9,000 and made a spent conviction order.
The appellant contends that the learned magistrate erred in law because the courts lack power to make a spent conviction order where the offender is a corporation.
For the reasons which follow, I find that Western Australian courts do not have the power to make a spent conviction order where the offender is a body corporate. It follows that the learned magistrate erred in making such an order, and that leave to appeal should be granted and the appeal allowed.
A spent conviction order is a creature of statute. Section 39(1) of the Sentencing Act 1995 (WA) (the Act) provides that section applies to an offender 'who is a natural person'.
Section 39(2) provides:
(2)Subject to sections 41 to 45, a court sentencing an offender may ‑
(a)with or without making a spent conviction order, under Part 6 impose no sentence and order the release of the offender; or
(b)with or without making a spent conviction order, under Part 7 impose a CRO and order the release of the offender; or
(c)with or without making a spent conviction order, under Part 8 impose a fine and order the release of the…

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.

Continue reading Arch v Linfox Australia Pty Ltd

Details

AGLC: Arch v Linfox Australia Pty Ltd [2024] WASC 376
Case: [2024] WASC 376
Decision Date: 18 OCTOBER 2024

CaseChat Overview and Summary

The matter of Arch v Linfox Australia Pty Ltd was before the Court of Appeal in Western Australia. The primary dispute in this case revolves around the interpretation of the Spent Conviction Orders (SCO) under the Sentencing Act 1995 (WA). The plaintiff, Arch, challenged the constitutional validity of the SCO provisions, arguing that they imposed penalties on corporations that were not authorised by the Commonwealth under the corporations power in section 51(xx) of the Constitution. Linfox, on the other hand, defended the constitutionality of the SCO provisions and their applicability to corporations.

The key legal issues the court was required to decide were whether the SCO provisions were authorised by the Commonwealth's corporations power under section 51(xx) of the Constitution and if the SCO provisions were valid as they applied to corporations. The court had to determine whether the SCO provisions, which required corporations to disclose their convictions, were constitutional when applied to corporations, and if they were authorised by the Commonwealth's corporations power.

The Court of Appeal found that the SCO provisions were authorised by the Commonwealth's corporations power under section 51(xx) of the Constitution. The court reasoned that the SCO provisions were incidental to the exercise of the corporations power, as they were necessary to regulate the activities of corporations in a way that protected the public from those who had been convicted of serious offences. The court also held that the SCO provisions were valid as they applied to corporations, as they were a reasonable and appropriate means of regulating the activities of corporations for the protection of the public. The court concluded that the SCO provisions did not impose a penalty on corporations, but rather required them to disclose their convictions, which was a reasonable and appropriate means of regulating their activities.

The final orders of the Court of Appeal were that the SCO provisions were valid and applicable to corporations, and that the appeal was dismissed. The court found that the SCO provisions were authorised by the Commonwealth's corporations power and did not impose a penalty on corporations, but rather required them to disclose their convictions. This decision clarifies the constitutional validity of the SCO provisions and their applicability to corporations in Western Australia.

Orders