Barbour v Melling - [2022] QSC 125

SUPREME COURT OF QUEENSLAND

CITATION:

Barbour v Melling & Anor [2022] QSC 125

PARTIES:

ALICE BESSIE BARBOUR

(applicant)

v
ROBERT MELLING

(first respondent)
and
ACTING MAGISTRATE RONALD MUIRHEAD
(second respondent)

FILE NO/S:

BS No 15133 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2022

JUDGE:

Martin SJA

ORDER:

Application dismissed

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – where the Property Occupations Act 2014 (POA) specifies that a proceeding for an indictable offence may be taken at the prosecution’s election by way of summary proceedings or on indictment – where the POA also specifies that a proceeding for an offence under the POA must be taken in a summary way within one year after the offence is committed – where the first respondent filed a Complaint and Summons in the Magistrates Court at Mackay in which it was alleged that the applicant committed an offence under the POA – where the complaint was sworn more than one year after the last date on which it is alleged the offence was committed – whether a proceeding for an indictable offence under the POA is subject to the one year time limit

Justices Act 1886

Property Occupations Act 2014, s 206(2)(a), s 225

C. & J. Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905

Craig v South Australia (1995) 184 CLR 163

DPP v Leys (2012) 44 VR 1

Harding v Coburn [1976] 2 NZLR 577

Jabbcorp (NSW) Pty Ltd v Strathfield Gold Club [2021] NSWCA 154

Price v JF Thompson (Qld) Pty Ltd [1990] 1 Qd R 278

Re Bland Bros and the Council of the Borough of Inglewood (No 2) [1920] VLR 522

Sir Thomas Cecil’s Case (1597) 7 Co Rep 18b

COUNSEL:

G D Beacham QC and P Wilson for the applicant

W M Slack for the first respondent

SOLICITORS:

Donovan Winkler Lawyers for the applicant
Office of Fair Trading for the first respondent

Mr Melling, an officer at the Office of Fair Trading, filed a Complaint and Summons in the Magistrates Court at Mackay in which it was alleged that Ms Barbour had committed an offence under s 206(2)(a) of the Property Occupations Act 2014 (POA).
The complaint alleges that the contravention took place between 23 October 2016 and 20 August 2019.
The complaint was sworn on 8 October 2020, that is, more than one year after the last date on which it is alleged the offence was committed.
Ms Barbour sought an order in the Magistrates Court striking out the complaint on the basis that it was commenced outside the one-year period allowed under s 225 of the POA.
The second respondent, who has been given leave to withdraw, had held that the complaint was made within time and dismissed the application to strike out.
Ms Barbour seeks declarations and other orders which would have the effect of…

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 Barbour v Melling

Details

AGLC: Barbour v Melling [2022] QSC 125
Case: [2022] QSC 125
Decision Date: 22 June 2022

CaseChat Overview and Summary

The case of Barbour v Melling involved the interpretation of the Property Occupations Act 2014 (POA), specifically the time limit for commencing proceedings for an offence under the POA. The applicant, Melling, was alleged to have committed an offence under s 206(2)(a) of the POA, which carries a maximum penalty of imprisonment of five years, making it an “indictable offence” under s 225(8). The first respondent filed a Complaint and Summons in the Magistrates Court at Mackay, but the complaint was sworn more than one year after the last date on which it was alleged the offence was committed.

The primary legal issue before the court was whether a proceeding for an indictable offence under the POA is subject to the one-year time limit specified in s 225(1) of the POA. The Acting Magistrate found that the complaint was not bound by the one-year time limit because the prosecution had elected to proceed on indictment rather than by way of summary proceedings. Melling argued that the Acting Magistrate had erred in making this finding, which would constitute a jurisdictional error.

In dismissing the application, the court considered the arguments presented by Melling’s counsel, Mr Beacham QC. Melling argued that s 225(1) of the POA imposes a time limit on the commencement of proceedings for all offences, and that the election to proceed summarily or on indictment, provided for in s 225(2), does not affect this time limit. The court, however, found that the Acting Magistrate’s interpretation of the statute was correct and that the one-year time limit does not apply to indictable offences when the prosecution chooses to proceed on indictment. As a result, the application was dismissed, and the court upheld the Acting Magistrate’s decision.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

A breach of s 206(2)(a) exposes an offender to a maximum penalty of imprisonment of five years. It is, therefore, an “indictable offence” within the meaning of s 225(8). The Acting Magistrate’s decision The Acting Magistrate said:“In my view, a complaint made pursuant to section 206 (2) (a) of the Property Occupations Act 2014 is only bound by the time limitations as provided for in section 225 (1) of that Act if the prosecution elects to have the complaint taken by way of summary proceedings under the Justices Act. That is not the case in the complaint before the court as the prosecution have clearly indicated that they have always intended to exercise their right to proceed on indictment. For those reasons I find that the complainant did not commence proceedings for the complaint before the court out of time (citations omitted).” If the Acting Magistrate erred in making that finding, then that constitutes a mistaken assertion of jurisdiction which amounts to jurisdictional error of the type described in Craig v South Australia:[1]“An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or misconception or disregard of the nature or limits of jurisdictions.”[2][1] (1995) 184 CLR 163.[2] At 177.The applicant’s argument Mr Beacham QC (who appeared for the applicant) argued that:(a)Section 225(1) deals with two different topics:(i)that proceedings for an offence under the POA “must” be taken in a summary way; and(ii)that proceedings must be commenced within the time period set out in s 225(1).(b)Although s 225(1) is “subject to” s 225(2), the latter subsection is confined to providing a prosecutor with an election – to proceed summarily or on indictment.(c)Section 225(2) says nothing about the time in which proceedings must commence – it only deals with the mode of proceeding.(d)Because s 225(2) only deals with the mode of proceeding, it does not qualify that part of s 225(1) which deals with the time limits.(e)The plain meaning of the words used in s 225 is, therefore, that the limitation period in s 225(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.(f)It follows, then, that the learned Acting Magistrate erred and that, because the proceeding was commenced more than one year after the offence was committed, there was no jurisdiction in the court.What does s 225(1) require?

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Barbour v Melling & Anor [2022] QSC 125
PARTIES:	ALICE BESSIE BARBOUR (applicant) v ROBERT MELLING (first respondent) and ACTING MAGISTRATE RONALD MUIRHEAD (second respondent)
FILE NO/S:	BS No 15133 of 2021
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 June 2022
DELIVERED AT:	Brisbane
HEARING DATE:	1 April 2022
JUDGE:	Martin SJA
ORDER:	Application dismissed
CATCHWORDS:	STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – where the Property Occupations Act 2014 (POA) specifies that a proceeding for an indictable offence may be taken at the prosecution’s election by way of summary proceedings or on indictment – where the POA also specifies that a proceeding for an offence under the POA must be taken in a summary way within one year after the offence is committed – where the first respondent filed a Complaint and Summons in the Magistrates Court at Mackay in which it was alleged that the applicant committed an offence under the POA – where the complaint was sworn more than one year after the last date on which it is alleged the offence was committed – whether a proceeding for an indictable offence under the POA is subject to the one year time limit Justices Act 1886 Property Occupations Act 2014, s 206(2)(a), s 225 C. & J. Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905 Craig v South Australia (1995) 184 CLR 163 DPP v Leys (2012) 44 VR 1 Harding v Coburn [1976] 2 NZLR 577 Jabbcorp (NSW) Pty Ltd v Strathfield Gold Club [2021] NSWCA 154 Price v JF Thompson (Qld) Pty Ltd [1990] 1 Qd R 278 Re Bland Bros and the Council of the Borough of Inglewood (No 2) [1920] VLR 522 Sir Thomas Cecil’s Case (1597) 7 Co Rep 18b
COUNSEL:	G D Beacham QC and P Wilson for the applicant W M Slack for the first respondent
SOLICITORS:	Donovan Winkler Lawyers for the applicant Office of Fair Trading for the first respondent