Goli v Blue 11 Pty Ltd - [2018] QDC 108

DISTRICT COURT OF QUEENSLAND

CITATION:

Goli v Blue 11 Pty Ltd; Goli v Thompson Residential Pty Ltd; Goli v Thompson Commercial Pty Ltd; Goli v Thompson; Goli v B & T Carpentry Pty Ltd; Goli v Thompson [2018] QDC 108

PARTIES:

In Appeal No 4985 of 2017:

ELIZABETH GOLI
(Appellant)

v
BLUE 11 PTY LTD

(Respondent)

In Appeal No 4986 of 2017:

ELIZABETH GOLI
(Appellant)
v
THOMPSON RESIDENTIAL PTY LTD
(Respondent)

In Appeal No 4987 of 2017:

ELIZABETH GOLI
(Appellant)
v
THOMPSON COMMERCIAL PTY LTD
(Respondent)

In Appeal No 4989 of 2017:

ELIZABETH GOLI
(Appellant)
v
BRENDAN THOMPSON
(Respondent)

In Appeal No 4990 of 2017:

ELIZABETH GOLI
(Appellant)
v
B&T CARPENTRY PTY LTD
(Respondent)

In Appeal No 4991 of 2017:

ELIZABETH GOLI
(Appellant)
v
BRADLEY THOMPSON
(Respondent)

FILE NO/S:

Appeal No 4985 of 2017
Appeal No 4986 of 2017
Appeal No 4987 of 2017
Appeal No 4989 of 2017
Appeal No 4990 of 2017
Appeal No 4991 of 2017

DIVISION:

Appellate

PROCEEDING:

Appeal under s 222 of the Justices Act 1886

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

19 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2018

JUDGE:

Porter QC DCJ

ORDERS:

1.       The appeals in each matter are upheld;

2.       The order of the learned Magistrate made on 28 November 2017 in proceedings 4991/17 dismissing the complaint be set aside;

3.       The orders of the learned Magistrate made on 29 November 2017 in proceedings 4985/17, 4986/17, 4987/17, 4989/17, 4990/17 dismissing the complaints be set aside;

4.       The orders made in respect of costs in proceedings 4989/17, 4991/17 and 4990/17 be set aside and the costs of the days one to seven of the trial (the first trial costs) be reserved to the trial judge in any further hearing on the complaints;

5.       If there is no further hearing on the complaints, the respondents in proceedings 4989/17, 4991/17 and 4990/17, respectively, have leave to apply to this Court for an order in respect of the first trial costs;

6.       Each matter be remitted to the Magistrates Court for rehearing by a different Magistrate.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW QUEENSLAND – APPEAL – WHEN APPEAL LIES – where the appellant laid complaints against two natural person defendants and two natural person defendants alleging compliance and fraud offences – where counsel for the defendants submitted there was no case to answer – where the learned Magistrate accepted those submissions and dismissed all the charges – whether the Magistrate may dismiss a complaint under the Justices Act on a no case basis – whether the Magistrate erred in dismissing the charges on that basis – whether the prosecution’s evidence was capable of supporting a guilty verdict – whether the complaints should be remitted to the learned Magistrate or to another Magistrate.

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – where executive officer is defined in the Taxation Administration Act 2001 (Qld) – whether being ‘concerned in’ the management of a corporation…

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: [2018] QDC 108
Decision Date: 19 June 2018

CaseChat Overview and Summary

In the case of Goli v Blue 11 Pty Ltd, the appellant, Ms Goli, sought to appeal against the dismissal of charges brought against two individuals, the Thompsons, and two corporations, including Blue 11 Pty Ltd, for alleged compliance and fraud offences. The dispute arose from Ms Goli's complaints against the respondents, which were dismissed by the Magistrate on a no case submission. The crux of the appeal lay in whether the Magistrate had the authority to dismiss a complaint on a no case basis and whether there was sufficient evidence to support a guilty verdict. Additionally, the appeal addressed the interpretation of the term "executive officer" within the Taxation Administration Act 2001 (Qld) and whether being a director of a company automatically fulfilled the definition.

The court was required to determine if the Magistrate could dismiss a complaint under the Justices Act based on a no case submission. Furthermore, it needed to assess whether the Magistrate erred in dismissing the charges on this basis and evaluate whether the prosecution's evidence could support a guilty verdict. The appeal also involved the interpretation of the definition of "executive officer" under the Taxation Administration Act, specifically whether active participation in management was necessary, or if being a director sufficed.

The court found that the Magistrate had the authority to dismiss the complaint on a no case basis. However, it held that the Magistrate had erred in dismissing the charges without allowing the prosecution to present its evidence. The court emphasised that the evidence needed to be considered before dismissing a complaint. Regarding the definition of "executive officer," the court held that being a director of a company was sufficient to meet the requirements of the definition, negating the need for active participation in management. The court concluded that the dismissal of the charges should not have occurred without considering the prosecution's evidence.

The appeals were upheld, and the orders of the Magistrate dismissing the complaints were set aside. The cases were remitted to the Magistrates Court for rehearing by a different Magistrate. The costs of the first trial were reserved to the trial judge for any further hearing on the complaints, with the respondents given leave to apply for an order regarding these costs if no further hearing occurred.

Orders

Orders of the court

1. The appeals in each matter are upheld;

2. The order of the learned Magistrate made on 28 November 2017 in proceedings 4991/17 dismissing the complaint be set aside;

3. The orders of the learned Magistrate made on 29 November 2017 in proceedings 4985/17, 4986/17, 4987/17, 4989/17, 4990/17 dismissing the complaints be set aside;

4. The orders made in respect of costs in proceedings 4989/17, 4991/17 and 4990/17 be set aside and the costs of the days one to seven of the trial (the first trial costs) be reserved to the trial judge in any further hearing on the complaints;

5. If there is no further hearing on the complaints, the respondents in proceedings 4989/17, 4991/17 and 4990/17, respectively, have leave to apply to this Court for an order in respect of the first trial costs;

6. Each matter be remitted to the Magistrates Court for rehearing by a different Magistrate.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The charges against the Thompsons arose under s. 140 TAA. That section provides:140 Executive officers must ensure corporation complies with tax laws(1) The executive officers of a corporation must ensure the corporation complies with the tax laws.(2) If a corporation commits an offence against a provision of a tax law, each of the corporation’s executive officers also commits an offence, namely the offence of failing to ensure that the corporation complies with the provision.Maximum penalty – the penalty for the contravention of the provision by an individual.(3) Evidence that the corporation has been convicted of an offence against a provision of a tax law is evidence that each of the executive officers committed the offence of failing to ensure that the corporation complies with the provision.(4) However, it is a defence for an executive officer to prove – (a)if the officer was in a position to influence the conduct of the corporation in relation to the offence – the officer exercised reasonable diligence to ensure the corporation complied with the provision; or(b)the officer was not in a position to influence the conduct of the corporation in relation to the offence. Ms Goli relied upon s. 140(2) as giving rise to offences by the Thompsons arising out of the corporate offences charged against the corporations of which they were directors at the relevant time. This required Ms Goli to establish that each of the Thompsons were executive officers of those corporations. “Executive officer” is defined in the TAA as follows: Executive officer, of a corporation, means a person who is concerned in, or takes part in, the management of the corporation, regardless of the person’s designation and whether or not the person is a direction of the corporation. This appeal also involves consideration of the averments in the complaints. The relevant section is s. 130, which provides:130 Statement in complaintA statement made by or for the commissioner in a complaint starting a proceeding is evidence of the matter stated. Section 146 provides:Where defendant pleads not guilty (1) If the defendant pleads not guilty then the court may— (a) proceed to hear the complainant and the complainant’s witnesses, and the defendant and the defendant’s witnesses, and the complainant and such witnesses as the complainant may examine in reply if the defendant has given evidence other than as to the defendant’s general character and, upon consideration of all the evidence adduced, determine the matter and shall convict the defendant or make an order against the defendant or dismiss the complaint as justice may require; or(b) upon good reason appearing therefor, before any evidence is adduced, adjourn the hearing. (2) A hearing may be adjourned pursuant to subsection (1) from time to time provided no evidence has been adduced before any court in respect of the complaint. (3) When a hearing is adjourned pursuant to subsection (1) the provisions of section 88 shall, with all necessary adaptations, apply thereto. (4) The hearing so adjourned may proceed at the time and place to which it is adjourned before a court constituted in accordance with this Act by such justices as may then be present, notwithstanding that the defendant has pleaded to the complaint.

CITATION:	Goli v Blue 11 Pty Ltd; Goli v Thompson Residential Pty Ltd; Goli v Thompson Commercial Pty Ltd; Goli v Thompson; Goli v B & T Carpentry Pty Ltd; Goli v Thompson [2018] QDC 108
PARTIES:	In Appeal No 4985 of 2017: ELIZABETH GOLI (Appellant)
v BLUE 11 PTY LTD
(Respondent) In Appeal No 4986 of 2017: ELIZABETH GOLI (Appellant) v THOMPSON RESIDENTIAL PTY LTD (Respondent) In Appeal No 4987 of 2017: ELIZABETH GOLI (Appellant) v THOMPSON COMMERCIAL PTY LTD (Respondent) In Appeal No 4989 of 2017: ELIZABETH GOLI (Appellant) v BRENDAN THOMPSON (Respondent) In Appeal No 4990 of 2017: ELIZABETH GOLI (Appellant) v B&T CARPENTRY PTY LTD (Respondent) In Appeal No 4991 of 2017: ELIZABETH GOLI (Appellant) v BRADLEY THOMPSON (Respondent)
FILE NO/S:	Appeal No 4985 of 2017 Appeal No 4986 of 2017 Appeal No 4987 of 2017 Appeal No 4989 of 2017 Appeal No 4990 of 2017 Appeal No 4991 of 2017
DIVISION:	Appellate
PROCEEDING:	Appeal under s 222 of the Justices Act 1886
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	19 June 2018
DELIVERED AT:	Brisbane
HEARING DATE:	1 June 2018
JUDGE:	Porter QC DCJ
ORDERS:	1. The appeals in each matter are upheld; 2. The order of the learned Magistrate made on 28 November 2017 in proceedings 4991/17 dismissing the complaint be set aside; 3. The orders of the learned Magistrate made on 29 November 2017 in proceedings 4985/17, 4986/17, 4987/17, 4989/17, 4990/17 dismissing the complaints be set aside; 4. The orders made in respect of costs in proceedings 4989/17, 4991/17 and 4990/17 be set aside and the costs of the days one to seven of the trial (the first trial costs) be reserved to the trial judge in any further hearing on the complaints; 5. If there is no further hearing on the complaints, the respondents in proceedings 4989/17, 4991/17 and 4990/17, respectively, have leave to apply to this Court for an order in respect of the first trial costs; 6. Each matter be remitted to the Magistrates Court for rehearing by a different Magistrate.
CATCHWORDS:	MAGISTRATES – APPEAL AND REVIEW QUEENSLAND – APPEAL – WHEN APPEAL LIES – where the appellant laid complaints against two natural person defendants and two natural person defendants alleging compliance and fraud offences – where counsel for the defendants submitted there was no case to answer – where the learned Magistrate accepted those submissions and dismissed all the charges – whether the Magistrate may dismiss a complaint under the Justices Act on a no case basis – whether the Magistrate erred in dismissing the charges on that basis – whether the prosecution’s evidence was capable of supporting a guilty verdict – whether the complaints should be remitted to the learned Magistrate or to another Magistrate. STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – where executive officer is defined in the Taxation Administration Act 2001 (Qld) – whether being ‘concerned in’ the management of a corporation…