Interim Advance Corporation Pty Ltd v Fazio

Interim Advance Corporation Pty Ltd, along with two of its employees, were convicted under the Debt Collectors Licensing Act 1964 (WA) for acting as unlicensed debt collectors. They appealed to the Court of Appeal of the Supreme Court of Western Australia, arguing that they were not within the definition of "debt collector" as contained in s 3 of the Act. They further contended that the trial judge misdirected himself in his consideration of their defence of honest claim of right. The Court of Appeal was required to determine whether the appellants were indeed acting as debt collectors as defined by the Act, and if so, whether the trial judge's direction regarding the defence of honest claim of right was correct.

The court examined the definition of "debt collector" in s 3 of the Debt Collectors Licensing Act, which includes anyone who engages in the functions of a debt collector for any gain, fee or reward. The court considered whether the appellants' activities fell within this definition, and if the trial judge had correctly assessed the defence of honest claim of right. The court held that the appellants were not acting as debt collectors as defined by the Act because their activities did not involve any gain, fee or reward. The court found that the trial judge had misdirected himself in his consideration of the defence of honest claim of right, as he had not correctly identified the evidentiary onus of the accused. The court found that the appellants satisfied the evidentiary onus and that the prosecution had not successfully negated the defence.

The appeal was allowed, and the convictions of the appellants were quashed. The court held that the appellants were not acting as debt collectors as defined by the Debt Collectors Licensing Act, and that the trial judge had misdirected himself in his consideration of the defence of honest claim of right. The court found that the appellants had satisfied the evidentiary onus of the accused, and that the prosecution had not successfully negated the defence. The convictions of the appellants were quashed, and their appeal was allowed.