Commissioner for Fair Trading v Bond

[2003] NSWSC 947

CITATION:	Commissioner for Fair Trading v Bond [2003] NSWSC 947
HEARING DATE(S):	8 August 2003
JUDGMENT DATE:	23 October 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Master Harrison
DECISION:	(1) The appeal is upheld; (2) The decision of Murray LCM dated 14 April 2003 is set aside; (3) This matter is remitted to the Magistrate to be dealt with according to law; (4) The defendant is to pay the plaintiff's costs as agreed or assessed
CATCHWORDS:	Appeal decision of Local Court Magistrate - Information - phrase to "take and prosecute" proceedings
LEGISLATION CITED:	Justices Act 1902 - s 104(2) Migration Act 1958 (Cth) - s 486C Motor Dealers Act - ss 9 & 55 Motor Dealers Regulation 1999 - cl 69 Summary Ofences Acr 1966 (Vic) - s 56(1)
CASES CITED:	Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Basbas v Minister for Immigration & Multicultral & Indigenous Affairs (2002) FCA 1602 Craig Williamson Ltd v Barrowcliff [1915] VLR 450 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Traders Prudent Insurance Co Pty Ltd v Registrar of Workers' Compensation Commission of NSW [1971] 2 NSWLR 513 Traveland Pty Ltd v Doherty (1982) 63 FLR 41 Deveny v Sturt (1969) VR 174
PARTIES :	Commissioner for Fair Trading (Plaintiff) Wesley Bond (Defendant)
FILE NUMBER(S):	SC 11108/2003
COUNSEL:	Mr P Renehan (Plaintiff) Mr M W Gerkens (Defendant)
SOLICITORS:	D I Catt (Plaintiff) Fernandez Canda Gerkens (Defendant)

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	N/K
LOWER COURT JUDICIAL OFFICER :	M K Murray LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 23 OCTOBER 2003

11108/2003 - COMMISSIONER FOR FAIR TRADING v
WESLEY BOND
JUDGMENT (Appeal decision of Local Court Magistrate – Information – phrase to “take and prosecute” proceedings)

1 MASTER: By summons filed 8 May 2003, the plaintiff seeks an order, firstly, setting aside the orders made by Local Court Magistrate A K Murray at Albury on 14 April 2003 that there was no authority for the continuation of the prosecution of the defendant under s 9 of the Motor Dealers Act 1974 (the Act) and dismissing the information against the defendant. Secondly, an order that the proceedings be remitted to the Magistrate to be determined according to law. The plaintiff relied on the affidavit of John Patrick Davidson, sworn 7 May 2003. The defendant relied on the affidavit of Sam Cameron Campbell sworn 29 May 2003. The defendant now concedes that the named plaintiff has standing to take these proceedings.

2 The list judge referred this matter to a Master for hearing. Section 104(2)(b) and (c) of the Justices Act 1902 states that an informant may appeal to the Supreme Court on a ground that involves a question of law alone against an order made by a Magistrate in summary proceedings dismissing an information or complaint, or an order for costs made by a Magistrate in summary proceedings.

3 The Supreme Court may, after hearing an appeal, determine the appeal by dismissing the appeal or confirm, quash, set aside or vary the conviction, order or sentence appealed against or any part of it; increase or reduce the sentence appealed against; make such other orders as it thinks just; or remit the matter to the Magistrate who made the conviction or order, or impose the sentence, to hear and determine the matter of the appeal (s 109). What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156.

4 The plaintiff appeals from that part of the Magistrate’s decision where he found that there was no authority for the continuation of the prosecution of the defendant in respect of an offence under s 9 of the Act. The plaintiff alleges that the Magistrate, having found that the informant officer acting on behalf of the Director-General had the authority to take proceedings, erred in law in finding that the informant officer was not authorised to prosecute the proceedings. Additionally, or alternatively the plaintiff contends that the Magistrate erred in law in finding that the right to take and prosecute proceedings in respect of an offence under s 9 of the Act was confined to those persons identified in s 55(1)(a) of the Act.

5 The plaintiff prosecuted the defendant for an offence pursuant to s 9 (1) (a) of the Act of carrying on the business of a dealer without a licence. It is the documents, which purport to delegate authority that are important.

The first document

6 On 16 July 2001, the Director General of the Department of Fair Trading revoked the instrument of appointment dated 9 September 1999 and appointed, pursuant to clause 69 of the Motor Dealers Regulation 1999, the persons for the time being occupying or acting in the offices specified in the schedule, as prescribed officers for the purposes of s 55 of the Act, subject to any limitations expressed in the schedule. Relevantly, one of the prescribed officers was identified as “Manager, Prosecutions & General Litigation”. There was a limitation restricting the Manager, Prosecutions & General Litigation as he or she “may only take and prosecute” proceedings before the Local Court. The limitation provision refers to “take and prosecute” proceedings.

The second document

7 It is the next document which is critical to this appeal. It states:

“AUTHORITY TO COMMENCE LEGAL PROCEEDINGS
I, Christopher Laird Pacey, Manager, Prosecutions & General Litigation, Department of Fair Trading, a prescribed officer for the purposes of section 55 of the Motor Dealers Act, 1974, hereby authorise Lou Busuttil, in the name of the Director-General to take proceedings for an offence against section 09 of the Motor Dealers Act 1974 against Wesley Bond.
Dated this 24th day of July 2002.

… … … … … … …
Christopher Laird Pacey
Manager, Prosecutions & General Litigation
Department of Fair Trading”
[my emphasis added]

The legislation

8 The power to delegate authority is contained in s 55 of the Act which relevantly provides:

“55 Proceedings

(1) Proceedings for an offence against this Act or the regulations or in respect of a threatened or an apprehended contravention of, or a threatened or an apprehended failure to comply with, this Act or the regulations:

(a) may be taken and prosecuted by any person acting with the authority of:

(i) the Minister, or
(ii) a prescribed officer, and

(b) in the case of proceedings for an offence against this Act or the regulations, shall be disposed of summarily:

(i) before a Local Court, or
(ii) before the Supreme Court in its summary jurisdiction.

(1A) A person referred to in subsection (1) (a) may bring proceedings to remedy or restrain a threatened or an apprehended contravention of, or a threatened or an apprehended failure to comply with, this Act or the regulations, whether or not any right of that person has been or may be infringed by or as a consequence of the contravention or failure.

(1B) …

(1C) …

(2) In a prosecution for any such offence, an authority to prosecute, purporting to have been signed by the Minister or a prescribed officer, shall be evidence of such authority without proof of the signature of the Minister or the prescribed officer, as the case may be.

(3) (Repealed)

(4) In proceedings for an offence against this Act the informant may conduct the informant’s case personally, or by the informant’s counsel or attorney, or by an agent authorised by the informant in writing, or by an officer in the public service.

(5) ...”

9 Clarification of who constitutes a “prescribed officer” under s 55 of the Act is provided by cl 69 of the Motor Dealers Regulation 1999, which provides:

“69 Prescribed officers for certain proceedings: section 55For the purposes of section 55 of the Act, each of the following is a prescribed officer:


(a) the Director-General,

(b) any officer of the Department of Fair Trading appointed by the Director-General as a prescribed officer for the purposes of that section,

(c) any police officer of or above the rank of sergeant.”

10 The critical issue in this appeal is whether the prescribed officer was given authority to merely “take” proceedings or the expansive authority to “take and prosecute” proceedings. The wording on the critical document (document 2) empowers the prescribed officer merely to “take” proceedings. At the hearing before the Magistrate, the prosecution submitted that the phrase “to take and prosecute” was a compendious expression whereas the defendant submitted that “take” and “prosecute” were actually two discrete steps.

11 The Magistrates reasoning appears at paragraphs 40 to 42 and 49.

“40. However, I am of the view that the authorisation given to Mr Busittil was limited to the taking of the prosecution only and did not extend to the continuation of the prosecution.
41. This interpretation is able to be reconciled with the provisions of Section 55(4) which the Informant relied upon during the course of his oral argument.
42. This provision extends the right of appearance on behalf of the Director General than otherwise would be normal. I interpret this provision to merely state that the persons nominated may appear but only in relation to proceedings taken and prosecuted by person/s properly authorised to do so on behalf of the Director General.
…
49. I am of the view that as long as a person is taking and prosecuting a Defendant with the authority of a Prescribed Officer then subject to the limitations (if any) imposed pursuant to such authority he or she is operating within the statutory framework of the Act if such person acts within the parameters of the authority granted to the Prescribed Officer.”

12 Both parties referred to two decisions namely those of Deveney v Sturt (1969) VR 174 and Basbas v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 1602. Neither of these cases are directly on point, but from my research there are no cases which fulfil this criteria.

13 In Deveney, the City of Melbourne appointed, in writing, Frank Deveney (the informant) to act as prosecutions officer of the Council. The appointment stipulated that he was empowered and authorised to institute, prosecute and to take all proceedings for the recovery of fines. It specified that he was authorised to sign, lay and issue any information, complaint and summons. Deveney laid two informations alleging two offences under the Summary Offences Act 1966 (Vic). The Magistrate dismissed the informations on the basis that the informant had no authority to appear and prosecute offences against the Summary Offences Act as he had not been given the authority required by s 56(1). Section 56(1) of the Summary Offences Act provided that “…any officer of the Council may lay an information for breach of any offence against any of the provisions of this Act.” Section 56(1) referred to “lay any information” but did not specifically include the words “and prosecute”.

14 In Deveney the Full Court of the Supreme Court of Victoria (per Winneke CJ) at 176 held that:

“Once it was established, as in our opinion it was, that the applicant was authorized by law to lay the informations, it followed that as a party to the proceedings he was entitled to appear and prosecute them. Indeed, his right to do so is established by s91(2) of the Justices Act 1958 which provides: "if both parties appear either personally or by their respective council or solicitors or other persons by law empowered to appear for them before the court which is to hear and determine the information or complaint, such court shall proceed to hear and determine the same". The informant's right to appear and prosecute his informations is also impliedly recognized by s57 of the Summary Offences Act itself. We are, accordingly, of opinion that the magistrate was wrong in dismissing those informations, and that the grounds of the orders nisi relating to them have been made out.”

15 So, while the Council’s authorisation gave Mr Deveney the power to lay and prosecute the information, the provisions of s 56 of the Summary Offences Act did not. It is the opposite situation in the case before me. While the Director General’s authorisation (through the prescribed officer) gave Mr Busittil power to take proceedings it did not specifically empower him to prosecute the proceedings. In Deveney the Court inferred that the word “lay” included a right to appear and prosecute because to do so would have meant that the legislation was ineffective. Thus the provisions of s 56 would have been otiose.

16 In Basbas, Gray J stated that it was necessary to determine whether the proceedings should be dismissed as incompetent, or whether an amendment could be made to substitute the name of a competent applicant Babas for the name of a person Perkins who had purported to apply but had no standing to do so. Gray J examined such authorities relating to amendments to substitute parties in proceedings pursuant to the Migration Act 1958 (Cth). Gray J held that, in its terms, s 486C no more imposed a jurisdictional requirement than did s 478. Section 486C had been recognised to be a provision relating to standing, rather than jurisdiction, intended to prevent collateral changes to decisions made under the Migration Act from being brought by people who were not the subject of those decisions. That sub-section showed that s 486C applied on the assumption that the court would have jurisdiction independently of the provisions of the section itself. Sub-section (5) did nothing to detract from this conclusion.

17 Gray J was of the view that the jurisdiction of the court pursuant to s 39B of the Judiciary Act 1903 (Cth) had been invoked by the filing of the application in the proceedings. It was open to the court to exercise its powers to control its procedure by causing the application to be amended, so as to show the correct parties. In Basbas, it was held that an incorrect applicant (Ms Perkins) could not “commence or continue” the proceedings, and it was held that its jurisdiction had been properly invoked (even if by the wrong applicant) and that the court could control its own procedure by causing the application to be amended to show the correct applicant. I do not find Basbas instructive.

18 In this appeal the plaintiff submitted that the purpose of requiring a consent to the institution of proceedings or an authority to prosecute was to ensure “that a prosecution will only be instituted if the Minister (or, where appropriate, his delegate) considers that it should. … What is necessary is that the Minister should give his consent in terms which enable it to be said that the proceedings which are instituted have been instituted with his consent.” - see Traveland Pty Ltd v Doherty (1982) 63 FLR 41 the Court at 46-47. The plaintiff submitted that there could be no doubt that Mr Pacey intended to authorise the informant to not only commence proceedings but also to take all necessary steps in the further conduct of the proceedings, and thus as a matter of substance it was clear that the prescribed person (Mr Pacey) intended to provide the informant with an authority to take and prosecute the proceedings. The plaintiff also submitted that to provide an informant with the authority to commence proceedings but not the authority to take any further steps in the proceedings would amount to an abuse of process.

19 The plaintiff sought to distinguish Basbas on the grounds that firstly, those proceedings determined whether an amendment to substitute an applicant was permissible in civil proceedings under the Migration Act; and secondly, that decision turned upon the interpretation of particular statutory words. In the case before this Court, the words “may be taken and prosecuted” have to be considered within the statutory framework of a different piece of legislation, namely the Act. The plaintiff's counsel also referred to the similarity of s 91(2) of the Justices Act 1958 (Vic), s 77 of the Justices Act 1902 (NSW) to s 55(4) of the Act. The plaintiff submitted that Basbas, when read in context, did not assist the defendant.

20 Section 55(4) of the Act provides:

“In proceedings for an offence against this Act the informant may conduct the informant’s case personally, or by the informant’s counsel or attorney, or by an agent authorised by the informant in writing, or by an officer in the public service.”

21 The plaintiff submitted that the “Authority to Commence Legal Proceedings”, in combination with s 55(4) of the Act gave the informant both the authority to commence the proceedings by laying the information and the authority to prosecute the proceedings.

22 The defendant submitted that it was clear that Mr Pacey intended only to give an “Authority to Commence Legal Proceedings” and this was abundantly clear from the title of his document and that in this case the legislation very clearly distinguishes between the act of “taking” proceedings and the act of “prosecuting” proceedings. According to the defendant, Deveney does not assist in the interpretation of the phrase “take and prosecute”. The defendant’s submission continues that unlike Deveney, s 55 of the Act does not impliedly recognise the right of an informant who is only authorised to take proceedings to also appear and prosecute them unless he is also specifically authorised to prosecute.

23 According to the defendant, unlike s 91(2) of the Justices Act (Vic), which rounds out the inferential meaning of the word “lay” by requiring the court to proceed to hear and determine an information, which has been laid under s 56, s 55(4) does not require the court to proceed to hear and determine the information. In terms and in the natural context of the legislation, s 55(4) gives an informant, who has specific authority under s 55 of the Act to prosecute an information, the procedural right to do so personally, by counsel or attorney, by an agent or by an officer of the service.

24 The duty of a Court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Seldom will a construction that gives a provision no useful work to do achieve that end, see - Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 at [90] and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [384]. Where a word is used consistently in legislation it should be given the same meaning consistently, see - Craig Williamson Ltd v Barrowcliff [1915] VLR 450, Hodges J at 452 and DC Pearce and RS Geddes Statutory Interpretation in Australia Butterworths 1996 at 89.

25 In the Act, the word “take” or “taken”, where used with reference to proceedings, consistently denotes the prosecution of an action before a court. See, for example, s 55D, ss 38O(5) and 38E(8)(b). However, s 55 differs from those sections in that the word “taken” appears in conjunction with the word “prosecuted”.

26 In Traders Prudent Insurance Co Pty Ltd v Registrar of Workers’ Compensation Commission of NSW [1971] 2 NSWLR 513, Hope J in Equity had to determine whether the phrase “Every insurer shall promptly co-operate with the committee and assist it to carry out its duties under this section” imposed one obligation or two. His Honour held that these words only imposed a single obligation. His Honour said at 521:

“It is said that this language is, or is analogous to, what
is known to the grammarians as a hendiadys. This word is defined in the Shorter Oxford English Dictionary to be a figure of speech in which a single idea is expressed by two words connected by a conjunction, and the example given is "law and heraldry" as meaning "heraldic law". I think that the construction placed upon the paragraph for the appellant is the correct one...So construed, the paragraph has a reasonably clear operation, and since this is a possible construction, and the paragraph is obviously designed to bring the conduct which it describes within the grounds upon which a licence may be terminated or suspended, I think it is proper that this more limited construction should be given to it than the wider one which was preferred by the Commission.”

27 It is my view that the expression “take and prosecute” as appears in s 55 of the Act, is a hendiadys. The single idea is expressed by two words connected by a conjunction. It was not envisaged that the Direction-General or his delegate would authorise the mere taking of proceedings and stop there. The word “take” envisages something more than the mere laying of an information.

28 It is my view that the informant had the authority to prosecute the proceedings. Hence it is unnecessary to consider the additional contentions raised in this appeal by the defendant. The appeal is upheld. The decision of Murray LCM dated 14 April 2003 is set aside. The matter is remitted to the Magistrate to be dealt with according to law.

29 Costs are discretionary. Normally, costs follow the event. The defendant is to pay the plaintiff’s costs as agreed or assessed.

30 The court orders:

(1) The appeal is upheld.

(2) The decision of Murray LCM dated 14 April 2003 is set aside.

(3) This matter is remitted to the Magistrate to be dealt with according to law.

(4) The defendant is to pay the plaintiff’s costs as agreed or assessed.
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Last Modified: 10/28/2003