Foxpine Pty Ltd v Collings - [2001] QCA 355

[2001] QCA 355

COURT OF APPEAL

McMURDO P
DAVIES JA
HOLMES J

Appeal No 4752 of 2001

FOXPINE PTY LTD
(ACN 010 994 489) Appellant (Applicant)

TROY BARRIE COLLINGS Respondent (Respondent)

BRISBANE

..DATE 24/08/2001

JUDGMENT

THE PRESIDENT: Justice Holmes will deliver her reasons

first.

HOLMES J: This is an application for leave to appeal against a decision of a District Court Judge dismissing an appeal against a Magistrate's decision. That decision refused an application for leave to extend time for an application under section 147A of the Justices Act to set aside convictions recorded against the applicant on
18 March 1997. Those convictions, of two counts brought under the Auctioneers and Agents Act 1971, were recorded after pleas of guilty by the applicant.

The application in the Magistrates Court and the appeal to the District Court turned on the question whether two averments in the complaint and summons in the Magistrates Court, that the commission of the two offences alleged in the complaint had come to the knowledge of the complainant not before 19 April 1996, were properly made.

The significance of the averments was that section 170 subsection (3) of the Auctioneers and Agents Act required proceedings under that Act to be instituted within 12 months of the commission of the offence, or within six months after the commission of the offence came to the notice of the complainant, whichever was the later.

It is claimed by the applicant that as the result of disciplinary proceedings brought by the Auctioneers and Agents Committee against two of its principals and an associated company, Property Sales and Marketing Pty Ltd, material came to light which show that the averment was not properly made. That material included a letter from solicitors for a former client of the applicant, Mr Fefelov, setting out his dealings with the applicant, together with supporting documentation. It was dated 23 August 1995 and was directed to the Department of Consumer Affairs at Rockhampton. It was presumably received about that date.

Mr Fefelov's complaint arose out of his dealings with the applicant and Property Sales and Marketing Pty Ltd in relation to a sale of his property in the Bundaberg District. Property Sales and Marketing Pty Ltd held a corporation licence as a real estate agent and traded as Coral Coast Realty, selling rural acreage. Vendors were required to sign a deed of covenant under which the applicant was retained as a consultant on marketing.

A letter from Mr Fefelov's solicitor requested the documentation attached be perused with a view to a prosecution of Property Sales and Marketing for overcharging. The same letter raised an alleged failure by the applicant to perform services under the marketing agreement and raised a failure of that agreement to specify consideration. Other deficiencies in an authority to sell directed to Property Sales and Marketing rules are identified in the letter.

In September 1995 the investigations officer concerned with the matter at the Department of Consumer Affairs,
Mr Tarczynski, advised Crown Law…

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 Foxpine Pty Ltd v Collings

Details

AGLC: Foxpine Pty Ltd v Collings [2001] QCA 355
Case: [2001] QCA 355
Decision Date: 24/08/2001

CaseChat Overview and Summary

In the matter of Foxpine Pty Ltd v Collings, the Court of Appeal was asked to consider an application for leave to appeal against the dismissal of an appeal brought by Foxpine Pty Ltd against a decision made by a Magistrate. The Magistrate had dismissed Foxpine's application for leave to extend time for an application to set aside convictions recorded against them under the Auctioneers and Agents Act 1971. The convictions were based on pleas of guilty entered on two counts. The appeal to the District Court and the subsequent application to the Court of Appeal focused on whether certain averments in the complaint and summons were properly made, specifically regarding the timing of the complainant's knowledge of the alleged offences. The appeal hinged on whether Foxpine had a valid reason for the delay in seeking to extend time and whether the delay could be satisfactorily explained.

The Court of Appeal had to determine whether the averments regarding the complainant's knowledge of the offences were properly made and if Foxpine's delay in seeking to extend time could be justified. Additionally, the Court examined whether the Magistrate's decision to dismiss the application for leave to extend time was correct. The Court found that the Magistrate's decision was sound and that Foxpine had not demonstrated a valid reason for the delay in filing the application. The Court also concluded that the complainant's knowledge was not the same as that of the department, and therefore, the averments were not improperly made.

The Court of Appeal upheld the District Court's decision, refusing Foxpine's application for leave to appeal. The Court found no error in the Magistrate's decision, noting that Foxpine had not satisfactorily explained the delay in filing the application. The Court determined that there was no basis to grant leave to appeal, apart from a desire to re-argue the issues. The Court also rejected the argument that the complainant's knowledge was irrelevant to the decision. The Court's decision was unanimous, with all judges agreeing that the application for leave to appeal should be refused.

The final order of the Court of Appeal was that the application for leave to appeal was refused, with costs to be assessed.

Orders