Jenkins v Kedcorp Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Kedcorp Pty Ltd v Jenkins [1999] QCA 452

PARTIES:

KEDCORP PTY LTD ACN 010 891 004
(Respondent/Appellant)
v
PETER DAVID JENKINS
(Appellant/Respondent)

FILE NO/S:

Appeal No 8951 of 1998
DC No 190 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 November 1999

DELIVERED AT:

Brisbane

HEARING DATE:

21 October 1999

JUDGES:

McMurdo P, Pincus and Thomas JJA

ORDER:

Appeal allowed.  Notice of cross contention dismissed.  Decision of the District Court set aside and the decision of the stipendiary magistrate reinstated.  Respondent to pay the costs of this appeal, of the application for leave to appeal and of the appeal in the District Court.

CATCHWORDS:

PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – CONSTRUCTION OF STATUTORY PROVISIONS – QUEENSLAND – respondent company prosecuted under Justices Act 1886 for offence under s 19(2)(a) of the Auctioneers and Agents Act 1971 – whether respondent acted as a real estate agent when not the holder of a licence – meaning of "real estate agent" discussed – whether charge bad for duplicity

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – AVERMENTS – UNCERTAINTY, DUPLICITY AND AMBIGUITY – respondent company prosecuted under Justices Act 1886 for offence under s 19(2)(a) of the Auctioneers and Agents Act 1971 – whether charge bad for duplicity

Auctioneers and Agents Act 1971 s 2, s 19(2), s 66
Colbron v St Bees Island Pty Ltd (1995) 56 FCR 303, considered
Freehold Land Investments Limited v Queensland Estates Pty Ltd (1970) 123 CLR 418, considered
Golden Acres Limited v Queensland Estates Pty Ltd [1969] Qd R 378, considered
Johnson v Miller (1937) 59 CLR 467, considered
S v The Queen (1989) 168 CLR 266, considered
Walsh v Tattersall (1996) 188 CLR 77, considered

COUNSEL:

Mr W Isdale for the appellant
Mr A Collins, with him Mr M D Ambrose, for the respondent

SOLICITORS:

Crown Solicitor for the appellant
Robert Bax & Associates for the respondent

1. THE COURT:  The appellant prosecuted the respondent company under the Justices Act 1886 for an offence under s 19(2)(a) of the Auctioneers and Agents Act 1971. The essential allegation was that the respondent acted as a real estate agent when not the holder of a licence. The respondent company was convicted after a summary trial before a stipendiary magistrate. It then appealed to a District Court judge on three grounds which may be summarised-

(a)        The magistrate erred in failing to draw an inference adverse to the complainant because of the failure of the prosecution to call one Hayley as a witness.

(b)        The findings of fact made by the magistrate did not establish a breach of the Act.

(c)        The charge was bad for duplicity.

1. His Honour held against the submissions of the respondent on points (a) and (b), but was of the view that the charge was bad for duplicity and accordingly quashed the conviction.  The prosecutor then brought an…