Kang v Bishop (No 2)

[2018] NSWSC 1073

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Kang v Bishop (No 2) [2018] NSWSC 1073
Hearing dates:	28 June 2018
Date of orders:	12 July 2018
Decision date:	12 July 2018
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	(1)   Mr Kang’s application is dismissed.  (2)   Mr Kang is to pay the First and Second Defendant’s costs of the proceedings as agreed or assessed.
Catchwords:	ADMINISTRATIVE LAW – judicial review – appeal from Local Court– application to quash orders made by Magistrate – jurisdiction of Local Court – whether prosecution in Local Court authorised – whether delegate authorised under Fair Trading Act 1987(NSW) required to bring prosecution under s 192E and s 192 G of the Crimes Act 1900 (NSW) – proper construction of s 14 and s 173 of the Criminal Procedure Act1986 (NSW) – consideration of the interaction between Criminal Procedure Act, Crimes Act and Fair Trading Act – application dismissed   COSTS –departure from usual costs order sought – no basis – costs as agreed or assessed
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Fair Trading Act 1987 (NSW) Government Sector Employment Act 2013 (NSW) Home Building Act 1989 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Amalgamated Television Ltd v Marsden [2001] NSWCA 32 Kang v Bishop & Ors [2018] NSWSC 46 Kew v Commissioner of Fair Trading and Robinson [2007] NSWSC 394 NSW Department of Fair Trading v Edward Kang (Local Court (NSW), Magistrate Keady, 29 November 2016, unrep) NSW Department of Fair Trading v Edward Kang (Local Court (NSW), Magistrate Keady, 29 March 2017, unrep) Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 Warren Gibson, NSW Fair Trading v Roberta Graham [2013] NSWSC 1909
Category:	Principal judgment
Parties:	Edward Kang (Plaintiff) Jay Bishop (First Defendant) Secretary, Department of Finance, Services and Innovation (Second Defendant) Local Court of New South Wales (Third Defendant)
Representation:	Counsel: Mr R Johnson with Ms E Kovacs (Plaintiff) Ms T L Phillips (First and Second Defendants)   Solicitors: Legal Exchange Lawyers (Plaintiff) Crown Solicitor’s Office (First and Second Defendants)
File Number(s):	2017/93130
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Criminal Citation: -- Date of Decision: 29 November 2016 Before: Magistrate TB Keady File Number(s): 2015/48316

Judgment

1. By judgment of 29 November 2016 given in the Local Court Mr Kang was found guilty of sixteen of the offences charged under ss 192E and 192G of the Crimes Act1900 (NSW): NSW Department of Fair Trading v Edward Kang (Local Court (NSW), Magistrate Keady, 29 November 2016, unrep). Those prosecutions were bought by Mr Bishop, a senior investigator employed at NSW Fair Trading. Mr Kang was later convicted and sentenced for his offences to a term of imprisonment of 12 months, with a non-parole period of 9 months: NSW Department of Fair Trading v Edward Kang (Local Court (NSW), Magistrate Keady, 29 March 2017, unrep).

2. Mr Kang has appealed those convictions to the District Court. The appeal has been stayed pending the determination of these proceedings.

3. By his further amended summons, amongst other relief Mr Kang sought declarations that Mr Bishop was not a “public officer” as defined in s 3 of the Criminal Procedure Act 1986 (NSW), or otherwise authorised to institute his prosecution in the Local Court. Further, that the Local Court’s jurisdiction had not been lawfully invoked, notwithstanding that he had not challenged Mr Bishop’s authority to bring the prosecutions in that Court.

4. Other orders were sought under s 69 of the Supreme Court Act 1970 (NSW), quashing the decision of Magistrate Keady to hear and determine the proceedings and dismissing the court attendance notices by which Mr Bishop commenced the Local Court proceedings.

5. The third defendant, the Local Court, has filed a submitting appearance. The first and second defendants, Mr Bishop and the Secretary, Department of Finance, Services and Innovation, opposed the relief which Mr Kang sought, for reasons explained in a response document filed in July 2017.

6. In Kang v Bishop & Ors [2018] NSWSC 46, N Adams J refused Mr Kang’s application to have these proceedings removed into the Court of Appeal under r 1.21 of the Uniform Civil Procedure Rules 2005 (NSW), for determination of a question of law.

Agreed facts

7. The parties identified facts which were not in dispute to include:

“11   Mr Bishop is, and at all relevant times has been, an employee of the NSW Public Service who has worked within the division of the Department administered by the Second Defendant known as NSW Fair Trading (Fair Trading).

12 On 13 May 2013, Mr Bishop was appointed as an investigator under s 18 of the Fair Trading Act 1987 (FTA) and at all relevant times has been an investigator under that section.

13 On 14 October 2013, the Secretary (then the Commissioner for Fair Trading) delegated to Mr Bishop (and other investigators under s 18(1) of the FTA) pursuant to s 8(1 )(a) of the FTA, his functions to do many things including his functions under s 68(1) of the FTA, described in summary as to take and prosecute proceedings for offences against the FTA.

14 Mr Bishop was not at any time expressly delegated by any instrument of delegation under s 8 of the FTA any function conferred on the Secretary under any statute to take and prosecute proceedings for offences under the Crimes Act: Kelly 3 10-12.

15 In the period from 1 July 2015 to 30 June 2017, officers of Fair Trading have prosecuted approximately 34 traders with a total of 135 offences under the Crimes Act.

16   In respect of at least 25 of the 34 traders prosecuted, there were convictions recorded which resulted in the imposition of either fines, good behaviour bonds, community service orders or imprisonment: Kelly 3 11.

17   In each of the at least 25 prosecutions which led to convictions, the procedure adopted to commence those prosecutions was relevantly the same as that which was adopted to commence the prosecution of The plaintiff. That is:

i.   the prosecutions were commenced by issuing a CAN naming the investigator or other officer of Fair Trading as a "public officer" on the CAN;

ii.    those prosecutions were commenced in reliance on ss 14 and 173 of the Criminal Procedure Act 1986 (CPA); and

iii. the issuing officers did not rely on an authority conferred on them by any instrument of delegation under s 8 of the FTA in commencing the prosecutions for offences under the Crimes Act, save for insofar as such instruments of delegation were relevant to their being a "public officer" within the meaning of s 3 of the CPA: Kelly 3 10.”

8. It emerged at the hearing that it was also common ground that Mr Bishop had pursued Mr Kang’s prosecutions in the ordinary course of the work which he was employed to perform at Fair Trading, as an investigator and that he had not pursued the prosecution as a private individual.

Issues

9. There were issues between the parties as to:

1. Whether Mr Kang required an extension of time to bring the proceedings under r 59.10(2) of the Uniform Civil Procedure Rules;

2. Whether Mr Bishop required the Secretary’s delegated authority to bring the prosecution against Mr Kang, given:

1. The proper construction of ss 14 and 173 of the Criminal Procedure Act 1986 (NSW);

2. The definition of “public officer” in s 3 of that Act;

3. The presumption provided in s 3(3) of that Act; and

4. The interaction between the Criminal Procedure Act and the Fair Trading Act 1987 (NSW).

3. The relevance and admissibility of affidavits relied on by the defendants to those issues.

Extension of time

10. Rule 59.10 requires that proceedings for judicial review must be commenced within 3 months of the date of the decision, but gives the Court power to grant an extension of time.

11. The hearing commenced on 15 February 2016. Mr Kang was found guilty on 29 November 2016 and he was convicted and sentenced on 28 March 2017. These proceedings were commenced on 27 March 2017.

12. The defendants contended that the proceedings ought to have been commenced at the latest, on 1 March 2017, given the date of the November judgment. Still, leave to extend time to file the summons was not opposed.

13. Mr Kang contended that such leave was not required, relying on s 202 of the Criminal Procedure Act, which provides for the “determination” of summary proceedings, including by conviction. The relief which he seeks is in relation to his conviction of the offences for which, on his case, Mr Bishop had no authority to prosecute him.

14. In these circumstances, I am satisfied that were leave necessary, it would be given, its grant not being opposed. Leave does not, however, appear in the circumstances to be necessary, given the relief which Mr Kang seeks and that it has been held that a finding that an offence has been proven, does not amount to a “conviction”: Amalgamated Television Ltd v Marsden [2001] NSWCA 32.

Did Mr Bishop have authority to bring the prosecutions?

15. Mr Bishop brought each of the prosecutions in his own name, “Jay Bishop, Public Officer”, not on behalf of either Fair Trading, or the Secretary. Mr Bishop was then a public servant employed at Fair Trading under the Government Sector Employment Act2013 (NSW), as an investigator.

16. Mr Kang’s approach on final hearing was somewhat different to that which he had earlier advanced before N Adams J, accepting that there was no question that Mr Bishop had authority under s 14 of the Criminal Procedure Act to bring prosecutions under ss 192E and 192G of the Crimes Act, because that Act did not expressly confer the right to institute prosecutions for such offences on a specified person or class of person.

17. In earlier written submissions the issue to be resolved was identified to be the narrow question of whether, in order to have “official capacity” for the purpose of ss 3(1) and 173 of the Criminal Procedure Act, an employee of Fair Trading must be expressly delegated the functions of the Secretary of NSW Fair Trading, under s 9 of the Fair Trading Act, to bring prosecutions under the Crimes Act.

18. It was not suggested that Mr Bishop had brought the prosecutions as private prosecutions, in which event s 174 of the Criminal Procedure Act would have applied. In oral submissions it was submitted that to have done so would have been improper, given the nature of his employment.

19. It was thus finally explained that Mr Kang’s case stood and fell on the question of whether, in order for Mr Bishop to have brought those prosecutions as a “public officer”, as that term is defined in s 3(1) of the Criminal Procedure Act, it was necessary for the Secretary to have given Mr Bishop an express delegated authority to bring prosecutions under the Crimes Act, under s 8(1) of the Fair Trading Act, which provides:

“8   Delegation by Secretary

(1)    The Secretary may delegate to any person or committee the exercise of any of the functions conferred or imposed on the Secretary by or under the following:

(a)    this Act,

(b)–(g) (Repealed)

(h)    any other Act administered by the Minister,

(i)    any other Act prescribed by the regulations for the purposes of this section (or the prescribed provisions of any other prescribed Act),

(j)    the regulations under any such Act.”

The Criminal Procedure Act

20. There is no question that it is the Criminal Procedure Act, which specifies who it is who may commence criminal proceedings, including those brought under the Crimes Act and the Fair Trading Act. Section 14 provides:

“14   Common informer

(cf Fines and Penalties Act 1901 sec 4)

A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons.”

21. Prosecutions for offences under the Fair Trading Act are dealt with in s 68, which provides:

“68   Proceedings for offences

(1)    Proceedings for an offence against this Act may be taken and prosecuted only by the Secretary or, in the name of the Secretary, by a person acting with the authority of the Secretary.

(2)    Proceedings for an offence under this Act or the regulations may be dealt with:

(a)    summarily before the Local Court, or

(b)    summarily before the Supreme Court in its summary jurisdiction.

(3)    If proceedings are brought in the Local Court, the maximum monetary penalty that the Local Court may impose for the offence is 100 penalty units, despite any higher maximum monetary penalty provided in respect of the offence.

(4)    In proceedings for an offence against this Act, an authority to prosecute purporting to have been signed by the Secretary is evidence of that authority without proof of the signature of the Secretary.”

22. This is a provision of the kind referred to in s 14 of the Criminal Procedure Act, limiting those empowered to bring Fair Trading Act prosecutions to the Secretary and persons acting with the Secretary’s authority. There is no comparable provision in the Crimes Act.

23. The meaning of the phrase “any person” used in s 14 arose to be considered in Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185. There it was unsuccessfully contended that “Section 14 provided authority for private persons to commence prosecutions, but police and public officers required specific authority from another source”: at [21]. This argument failed, it being held at [22] that there was no basis for reading down s 14 “to exclude from the concept of “person” those persons who may happen to be police officers or public officers”.

24. While it was finally put for Mr Kang that what had been decided in Sasterawan was not challenged by the case which he here advanced, in fact what was contended was that the breadth of the words ‘any person” used in s 14, had be read down in light of the defined term “public officer”, because of its use in s 173 of the Criminal Procedure Act. The result was that despite the Crimes Act containing no provision comparable to s 68 of the Fair Trading Act, it was nevertheless necessary for prior authority for the prosecution of offences under ss 192E and 192G Crimes Act, to be given to investigators such as Mr Bishop, by the Secretary under s 8 of the Fair Trading Act.

25. There is obvious difficulty with the case so advanced, given what was decided in Sasterawan.

26. That is because the Crimes Act does not confer the right to institute a prosecution under either s 192E or s 192G, “on any specified person or class of persons”, as s 14 of the Criminal Procedure Act contemplates it could have. While s 173 does not deal with who may institute proceedings under the Crimes Act, but rather regulates how criminal prosecutions are to be commenced by “public officers”, Mr Kang relied on the definition of that term to submit that while Mr Bishop had the right to prosecute ss 192E and 192G offences, he did not have the means to do so.

27. That is a similar argument to that which was rejected in Sasterawan.

28. The argument depends on the definition of “public officer” in s 3 to mean “any of the following persons, if acting in an official capacity:

“(a)   an employee in the Public Service or the NSW Police Force. …”

29. The term “acting in an official capacity” is not there defined and its meaning is in issue. In this statutory context, however, where it is an employee in the Public Service or a police officer to whom the definition is directed, an obvious meaning is “not acting in a private capacity”.

30. It is common ground that Mr Bishop was not acting in a private capacity when he brought the prosecutions, but still it was contended that he did not bring them as a “public officer”, even though it was submitted that given his employment at Fair Trading as an investigator, it would have been improper for the prosecutions to have been brought in his private capacity, in accordance with the procedure provided by s 174 of the Criminal Procedure Act.

31. Section 173 provides:

“173   Commencement of proceedings by police officer or public officer

If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division.”

32. Section s 174 provides, by way of comparison:

“174   Commencement of private prosecutions

(1)    If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division.

(2)    A registrar must not sign a court attendance notice if:

(a)    the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or

(b)    the registrar is of the opinion that the notice is not in the form required by or under this Act, or

(c)    the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice.

(3)    If a registrar refuses to sign a court attendance notice proposed to be issued by any such person, the question of whether the court attendance notice is to be signed and issued is to be determined by a Magistrate on application by the person.”

33. In Sasterawan it was observed as to ss 173 and 174 at [22] that:

“Similarly, the purpose of ss 173 and 174 is also clear. Those provisions say nothing about the source of authority to institute proceedings: each commences with the conditional, ‘if … is authorised to commence proceedings’. The purpose is to place a control on persons other than police and public officers, no doubt to ensure that members of the public are not vexed by private prosecutions which have no proper basis in law, being a control placed in the hands of a registrar. Each of ss 14, 173 and 174 is qualified to reflect the fact that some statutory offences, including some which arise under the Crimes Act, are subject to restrictions on authority to prosecute for their contravention: see, eg, Crimes Act, s.338 (perjury).”

34. At [26] it was observed that this had been put beyond doubt “by the insertion in s 173, after the word “authorised”, the words “under section 14 of this Act or under any other law”.

35. Following this approach, the argument Mr Kang advanced cannot be accepted, depending as it does on an interpretation of s 173, by reference to the definition of the term “public officer”, as imposing a requirement as to the source of authority to institute proceedings brought under the Crimes Act, which that Act does not impose As concluded in Sasterawan, however, neither ss 173 nor 174 of the Criminal Procedure Act create any limitation on the authority conferred by s 14 on “any person” to bring prosecutions under ss 192E and 192G, s14 providing as it does that such a limitation must be found in the Crimes Act.

36. The construction of s 14 for which Mr Kang contended is also not supported by the presumption introduced by s 3(3) of the Criminal Procedure Act, which provides:

(3)   In the absence of evidence to the contrary, a person specified in paragraphs (a)–(f) of the definition of public officer who purports to exercise a function as a public officer under this Act is presumed to be acting in an official capacity.

37. It was accepted that the onus fell on Mr Kang to provide the required “evidence to the contrary”. This was submitted to be established by the agreed fact that while there had been an express delegation by the Secretary to investigators such as Mr Bishop, of prosecutions brought under s 68 of the Fair Trading Act, there had been no such delegation in the case of Crimes Act prosecutions. The difficulty with that submission is that unlike s 68 of the Fair Trading Act, the Crimes Act does not require such a delegation.

37. It follows that the absence of such a delegation for the ss 192E and 192G offences reflects the applicable legislative schemes, not the oversight of a necessary delegation. This conclusion is supported by the following.

38. The functions given to the Secretary of NSW Fair Trading are those specified in s 9 of the Fair Trading Act, which provides:

“9    Functions of Secretary

(1)    The Secretary may:

(a)    advise persons in relation to the provisions of this Act, and of any other legislation administered by the Minister, and take action for remedying infringements of, or for securing compliance with, those provisions, whether on complaint or otherwise,

(b)    make available to consumers, and persons dealing with consumers, general information with respect to:

(i)    this Act and other legislation administered by the Minister, and

(ii)    matters affecting the interests of consumers,

(c)    receive complaints from persons on matters (including fraudulent or unfair practices) relating to the supply of goods or services, or the acquisition of interests in land, and deal with any such complaint (whether or not under paragraph (d)) in such manner as the Secretary considers to be appropriate,

(d) investigate the matter the subject of a complaint received under paragraph (c) or refer the complaint to a public authority, or any other body, that the Secretary considers to be best able to take action, or provide advice, in relation to the complaint, and

(e)    make known, for the guidance of consumers and persons dealing with consumers, the rights and obligations arising under laws relating to the interests of consumers.

(2)    The Secretary shall:

(a)   keep under critical examination, and from time to time report to the Minister on, the laws in force, and other matters, relating to the interests of consumers, and

(b)   report to the Minister on matters relating to the interests of consumers that are referred to the Secretary by the Minister,

and, for those purposes, may conduct research and make investigations.

(3)   Where a complaint is received under subsection (1) (c), the Secretary may:

(a)    investigate the complaint even if it has been referred to a public authority or to another body, or

(b)    refer the complaint to a public authority, or any other body, even if an investigation of the matter has been commenced or completed by the Secretary.

(4)    The Secretary is to have regard, in carrying out his or her functions under this Act, to the need for communication, co-operation and co-ordination in relation to relevant co-operative legislative schemes.”

40. Investigators like Mr Bishop are appointed under s 18(1) of the Fair Trading Act “for the purposes of this Act and of any other legislation administered by the Minister”. Section 8 empowers the Secretary to delegate any of the functions conferred by s 9, but it does not follow from this that those employed to assist the Secretary in the performance of all of those functions, can only do so if they have such a delegation. While that is required in the case of prosecutions brought under the Fair Trading Act by s 68, there is no such requirement in the case of prosecutions brought under the Crimes Act which are authorised by s 14 of the Criminal Procedure Act, to be brought by “any person’.

41. Thus it is that neither ss 9, 18 or any other provision of the Fair Trading Act refer expressly to prosecutions brought under the Crimes Act, or the need for a delegation of any power to bring such prosecutions. That is unnecessary, given s 14 of the Criminal Procedure Act, as it has been construed in Sasterawan.

42. It thus cannot be concluded that the Crimes Act prosecutions brought by Mr Bishop in the Local Court, were not authorised as the Fair Trading Act required, with the result that he was not a “public officer” as defined in s 3 of the Criminal Procedure Act and so did not have the “means” to commence the proceedings in accordance with s 173 of that Act, which s 14 had authorised him to commence, as was submitted for Mr Kang.

43. This conclusion accords with that of Adams J in Kew v Commissioner of Fair Trading and Robinson [2007] NSWSC 394, where his Honour had to consider the validity of prosecutions brought under s 300(1) of the Crimes Act by “S. Robinson, public officer for and on behalf of the Commissioner for Fair Trading”.

44. Adams J concluded that s 9(1)(c) of the Fair Trading Act encompassed prosecutions brought by the Commissioner under the Crimes Act: at [20]. Neither party challenged the correctness of that conclusion, although Mr Kang argued that other aspects of his Honour’s conclusions were not correct.

45. Adams J also concluded that s 14 of the Crimes Act did not permit prosecutions to be brought by delegates of the Commissioner. They either had to be brought by the Commissioner, or by public officers such as Mr Robinson, as named persons: at [24] - [25].

46. His Honour concluded that on the evidence there led, Mr Robinson was undoubtedly acting in the course of his employment as an officer of and investigator for the Department of Fair Trading in commencing and maintaining the prosecutions, even though he mistakenly thought that he was acting as the Commissioner’s agent: at [32].

47. There was also an issue as to whether a delegation had been given to bring the prosecution. Adams J considered that while it might not be in every case that acting in the course of employment in the public service will be sufficient to satisfy the requirement that a prosecutor is acting in an official capacity, there being no “bright line test”, on the evidence Mr Robinson was performing a public duty and not serving a private interest when he brought the prosecutions and accordingly, was acting in his official capacity even if, there was a mistake as to what the delegated powers permitted: at [32].

48. The defendants urged that a similar conclusion would be reached in this case, if it was concluded that a delegation by the Secretary of the power to bring prosecutions under the Crimes Act was necessary, contrary to the case which they advanced. For Mr Kang it was contended that had the evidence in this case been before Adams J, a different result would have been arrived at and in the alternative, that his Honour had erred in the conclusions which he reached.

49. That submission was advanced on the basis of provisions of the Government Sector Employment Act, which by s 21(2) empowers the employment of persons for the following purposes:

“(a)   to enable Ministers to exercise their functions,

(b)    to enable statutory bodies or statutory officers to exercise their functions,

(c)    for any other purpose.”

50. “Function” is there defined in s 3 to include “a power, authority or duty, and exercise a function includes perform a duty”.

51. The Secretary having the functions specified in s 9 of the Fair Trading Act, Mr Bishop being employed under s 18 “for the purposes of the Fair Trading Act” and the Secretary’s functions being delegable under s 8, Mr Kang contended that given that Crimes Act prosecutions were part of the Secretary’s functions, unless they were delegated to Mr Bishop they could not be pursued by him in his “official capacity”, even though it was accepted that he had brought the prosecutions in the ordinary course of the duties he was required to perform. Thus it was, it was argued, that Mr Bishop was not a “public officer” when he commenced the prosecutions.

52. Another difficulty with the case, so advanced, is that not only did similar arguments not find favour with Adams J, they have not been accepted in other cases.

53. In Warren Gibson, NSW Fair Trading v Roberta Graham [2013] NSWSC 1909, Harrison J had to consider a prosecution brought under the Home Building Act1989 (NSW) in circumstances where no delegation had been given to bring such proceedings under s 8 of the Fair Trading Act. The Home Building Act also did not contain any provision conferring a right to institute a prosecution on any specified person or class of person, as contemplated by s 14 of the Criminal Procedure Act: at [6]. There in issue was also the prosecutor’s authority to bring the prosecution, absent a delegation.

54. Harrison J took the view that ss 8 and 9 did not have the result for which Mr Kang now contends, concluding that while s 9 was a statement of what the Director-General could do in the exercise of his powers, it was not a limitation or restriction upon the way in which the powers may be exercised and that it said nothing in terms, or by necessary implication, about the commencement of prosecutions: at [11]. Further, that it was relevant that while express provision of the kind contemplated by s 14 of the Criminal Procedure Act had been made in s 68 of the Fair Trading Act, for prosecutions brought under that Act, there was no equivalent provision in the Home Building Act: at [31].

55. Harrison J thus concluded that such a delegation was unnecessary, because by combined effect of ss 14 and 173 of the Criminal Procedure Act, the prosecutor had also been entitled to bring the prosecutions under the Home Building Act as he did: at [33].

56. In refusing Mr Kang’s application to have these proceedings referred to the Court of Appeal, N Adams J was not persuaded that Kew was wrongly decided. Her Honour concluded that there was nothing in the statutory language of s 173 of the Criminal Procedure Act which supported Mr Kang’s proposition that absent express delegation, only the Secretary can bring criminal proceedings under the Crimes Act. Her Honour considered that the Fair Trading Act also does not have the effect that an investigator cannot commence proceedings under the Crimes Act, absent a delegation. She concluded that there was no basis for reading down the provision made in s 14 of the Criminal Procedure Act, for which Mr Kang contended: at [66]. Further, that what was decided in Sasterawan did not assist Mr Kang: at [80].

57. There is now no issue between the parties that Mr Bishop brought the prosecutions as part of his ordinary duties as a senior investigator employed by Fair Trading. He had no delegation under s 8 to bring prosecutions under the Crimes Act, but unlike s 68 of the Fair Trading Act, which required such a delegation in the case of prosecutions for offences under that Act, the Crimes Act imposed no such requirement. That was despite the functions given the Secretary by s 9 of the Fair Trading Act including the prosecution of Crimes Act offences, which s 14 of the Criminal Procedure Act allows to be brought by “any person”.

58. It was for the legislature to determine whether, in the case of Crimes Act prosecutions, a requirement as to delegation such as that provided by s 68 of the Fair Trading Act should be imposed. It elected not to do so, being content with s 14 of the Criminal Procedure Act, permitting “any person” to commence prosecutions of offences under ss 192E and 192G of the Crimes Act.

59. The Criminal Procedure Act requires persons bringing summary prosecutions to commence them in accordance with the regimes established by either s 173 or s 174. Similar provisions are made in respect of indictable procedures, in ss 48 and 49. Sections 218 and 257E deals with the liability of public officers and police officers who have brought such prosecutions, for costs.

60. None of these provisions impose a requirement of the kind envisaged by s 14 of the Criminal Procedure Act, when a prosecution is pursued under ss 192E or 192G of the Crimes Act, by an employee of Fair Trading. Nor can such a requirement be inferred from the definition of “public officer’ in s 3 of the Criminal Procedure Act. Indeed none of these Criminal Procedure Act provisions, understandably, make any reference at all to the Crimes Act. Nor does the Fair Trading Act. If there is to be a limitation of the kind for which Mr Kang contended, it is in the Crimes Act in which it must be found, as s 14 of the Criminal Procedure Act expressly requires.

61. Thus it was that s 173 of the Criminal Procedure Act required Mr Bishop to bring the Crimes Act prosecutions in the Local Court by court attendance notice in which he identified himself, as he was entitled to do, to be a “public officer”. That reflected that he was an employee in the public service who brought those prosecutions in the ordinary course of his employment as a senior investigator at Fair Trading and thus in his official capacity, he being a “public officer” as defined in the Criminal Procedure Act.

62. Accordingly, the relief sought by Mr Kang must be refused.

The disputed evidence

63. The disputed evidence supported these conclusions, shedding light as it did on the nature of Mr Bishop's employment in the public service; his duties at Fair Trading and how the prosecution of Crimes Act offences was pursued by officers such as he, under the applicable policies and procedures. These were matters all relevant to the question of whether he was acting in his “official capacity” when he brought the disputed prosecutions.

64. It is not necessary to explain the detail of that evidence, the only issue between the parties being its admissibility.

65. Under s 56 of the Evidence Act 1995 (NSW), “relevant evidence” is admissible. Section 55 identifies that the evidence which is relevant is evidence, “that if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”.

66. Given all that was here in truth in issue, not only the proper construction of the statutory provisions to which I have referred, but whether or not Mr Bishop was acting in his “official capacity” when he commenced the proceedings, I consider that the disputed evidence was relevant and thus admissible.

Costs

67. The usual order as to costs is that they follow the event. The defendants sought a departure from the usual order, contending that there should be an indemnity costs order in their favour, given the decision of N Adams J, refusing Mr Kang’s application to refer the matter to the Court of Appeal.

68. That was explained to be because her Honour had undertaken a detailed analysis of the merits of what lay between the parties, after which by letter the defendants had foreshadowed the application for an indemnity costs order, if Mr Kang’s case was pressed, her Honour’s reasoning having shown that the case he sought to advance was unreasonable in all of the circumstances.

69. There is no question as to the Court’s power to make the order sought under s 98 of the Civil Procedure Act2005 (NSW), but I am not persuaded that it should be exercised, in all of the circumstances which arise for consideration.

70. Until shortly before the hearing Mr Kang was represented by junior and senior counsel who had represented him before N Adams J and on whose advice, it must be assumed, he continued to press his case, despite the conclusions her Honour reached. He was represented by different counsel at the further hearing, when somewhat different arguments to those advanced before her Honour, were pressed.

71. While I have concluded that the case so pressed for Mr Kang must fail, I am not persuaded that there can justly be a departure from the usual order, for two reasons.

72. Firstly, Mr Kang undoubtedly pursued his case having had the benefit of advice from counsel, which must have been that the submissions he finally sought to advance were at least arguable. I am thus not satisfied that it can be concluded that this case falls into that class of cases where there should be a departure from the usual order, because the proceedings were maintained by a party who must have known that they had no prospect of success.

73. Secondly, given the importance of what lies in issue between the parties to Mr Kang, that he accepted counsels’ advice and pressed his case even after N Adams J gave her decision and the defendants wrote to him, foreshadowing an application for indemnity costs, I consider is not a just basis for a departure from the usual order. What Mr Kang did in pursuing his case as he did, in my view did not involve misconduct in the proceedings of the kind considered in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11.

74. In the result, I am satisfied that there is no just basis for a departure from the usual costs order.

Orders

75. Accordingly, for these reasons, I order:

1. Mr Kang’s application is dismissed.

2. Mr Kang is to pay the First and Second Defendant’s costs of the proceedings, as agreed or assessed.

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Amendments

12 July 2018 - typographical errors in [37] and [63]

Decision last updated: 12 July 2018