Korczynski, W. v Quik Foods Pty Ltd
[1985] FCA 99
•20 MARCH 1985
Re: WALTER KORCZYNSKI
And: QUIK FOODS PTY LTD; JAMES ARTHUR DAEMAR and OTTO ERHARD SICKINGER
VG No. 157 of 1984
59 ALR 273 / (1985) ATPR para 40 - 546 / 7 FCR 201
Trade Practices Act - High Court and Federal Judiciary
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Smithers(1), Northrop(1) and Spender(1)
CATCHWORDS
Trade Practices Act - whether an authority to "Minister of State for Home Affairs & Environment" was an authority to "a person" within the meaning of s.163(4)(b) of the Act - whether dismissal of proceedings on the basis that the authority was not valid constituted an acquittal after a hearing on the merits - standing of the prosecutor to bring an appeal.
Trade Practices Act 1974 ss.59, 79, 79(1) and 163(4)(b)
High Court and Federal Judiciary - Federal Court of Australia - Appellate jurisdiction - Criminal appeal - Dismissal for want of jurisdiction - Private prosecutor - Right of appeal - Absence of hearing on merits - Locus standi of appellant - Federal Court of Australia Act 1976 (Cth), s 24.
Criminal Law - Appeal - Against acquittal - Absence of hearing on merits - Dismissal for want of jurisdiction - Private prosecutor - Locus standi to appeal - Appellate jurisdiction of Federal Court of Australia - Federal Court of Australia Act 1976 (Cth), s 24.
HEADNOTE
Held: (1) A decision based solely on the jurisdiction of the court to hear and determine a matter cannot be regarded as an acquittal after a hearing on the merits and there is a right of appeal within the Federal Court of Australia Act 1976 (Cth) s 24.
Barnes v. Gougousis (1969) VR 1019 per Adam J. at 1021-1024, applied.
(2) The provisions of s 24 do not by express words limit an appeal to "a person aggrieved" so that an appeal may be taken by a prosecutor other than the Crown.
Thompson v. Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397 (dicta of Deane J. at 414), considered.
HEARING
Melbourne, 1984, November 20; 1985, March 20. #DATE 20:3:1985
APPEAL
Appeal from the dismissal of a number of informations laid, for alleged offences against the Trade Practices Act 1974 (Cth), s 79(1) and alleged contraventions of s 59.
R A Finkelstein, for the appellant.
The appellant is competent to institute the appeal under s 24(1)(a) of the Federal Court of Australia Act 1976 as the orders of dismissal are either judgments of acquittal (so referred to by Deane J. in Thompson v. Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397) or orders of the Court. The decision in Mastertouch is not applicable as there was no acquittal on the merits. The principles are correctly set forth in Russell on Crimes Vol II p 1982 as to when a person is in double jeopardy. An acquittal on the merits does not mean the dismissal of a charge on a technical ground which bars the court from adjudicating: Haynes v. Davis (1915) 1 KB 332 at 338-339, per Lush J. (dissenting). The dismissal was based on jurisdictional grounds and not on the merits and there is no question of double jeopardy.
K L Milte (with him S M Crennan), for the third respondent.
There is no right of appeal on acquittal expressly granted by the Federal Court of Australia Act 1976, s 24(1)(a). That section does not alter the common law principle against double jeopardy: Thompson v. Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397, approved in Davern v. Messel (1984) 58 ALJR 321. The principle as expressed in the phrase "autrefois acquit" prohibits an appeal from (or rehearing of) a judgment of acquittal pronounced in criminal proceedings when there has been a hearing on the merits. A hearing on the merits is a hearing of matters of fact or law or both when a defendant has been exposed to the risk of valid conviction: Broome v. Chenoweth (1946) 73 CLR 583. This judgment was such a hearing. Even if the judgment was not a hearing on the merits there was no right of appeal expressly given in s 24 and any right to appeal from an acquittal must be expressly given. Further a private prosecutor has no standing pursuant to s 24: see Mastertouch and Davern v. Messel, supra.
Cur adv vult
Solicitors for the appellant: Australian Government Solicitor.
Solicitors for third respondent: Messrs Turner Ness & Davis.
BAG
ORDER
The appeal be allowed and the orders below be set aside.
The informations being V.G. Nos. 183 - 198 of 1983 (inclusive) be remitted to the Federal Court of Australia constituted by a single Judge for hearing and determination.
The third respondent pay the appellant's costs of and incidental to this appeal.
Orders accordingly
JUDGE1
THE COURT: This is an appeal against the dismissal of a number of informations laid against the first respondent in respect of alleged offences against s.79(1) of the Trade Practices Act 1974 (the Act) for alleged contraventions of s.59 of the Act and against the second and third respondents under s.79 of the Act for allegedly being knowingly concerned in the commission of the offences charged against the first respondent. The third respondent was the only one of the respondents represented at the hearing of this appeal.
Section 163(4)(b) of the Act was applicable to these proceedings. It provides that "proceedings before the Court in accordance with this section ... shall not be instituted except with the consent in writing of the Minister or of a person authorized by the Minister, by writing under his hand to give such consents". The proceedings were proceedings before the Court in accordance with s.163 of the Act: see s.163(1) The proceedings were brought with the consent of Mr. Barry Cohen who was the Minister of State for Home Affairs and the Environment. He gave his consent pursuant to an authority given by the Attorney-General on 9 April 1984.
At the hearing the question arose as to whether this authority was an authority to "a person" within the meaning of s.163(4)(b). The authority of the Attorney-General was published in the Commonwealth of Australia Gazette No.S.129 of 9 April 1984 and provided:
"Trade Practices Act 1974
Authority to Give Consent
I, Gareth John Evans, Attorney-General of Australia hereby authorise the Minister of State for Home Affairs and Environment to give consent, for the purposes of paragraph 163(4)(b) of the Trade Practices Act 1974, to the institution of proceedings in respect of offences against Part V of the Trade Practices Act 1974.
Dated this 10th day of April 1983.
Gareth Evans Attorney-General".
After argument it was held by the learned trial Judge that it was not a valid authority. The view was taken that the authority did not authorise a person to consent although it did purport to authorise an office holder. His Honour thus dismissed the informations. Since that dismissal the same question about the same authorisation came before a Full Court of the Court in Barton v. Croner Trading Pty. Ltd. (1984) 54 ALR 541. The Full Court concluded that for the purposes of s.163(4)(b) the authority was valid as an authority of a person although it referred to the holder of an office as opposed to a named person. The Court was, inter alia, referred to Owendale Pty. Ltd. v. Anthony (1967) 117 CLR 539, which it accepted and applied, in which Windeyer J. said:
"... delegations to the holders of specified offices have become commonplace in the administrative system of the Commonwealth; and provided that there be an identifiable person the holder of the office, I consider they are a valid exercise of a statutory power to delegate to any person."
The decision in the Owendale Case (supra) was not before the learned trial Judge in the instant case.
We are of the view that if this appeal is competent it must be allowed.
However, Mr. Milte for the third respondent urged that the appeal is not competent because the third respondent entered a plea of not guilty at the commencement of the trial and that some three to four days of evidence were taken before the issue of the validity of the authority was dealt with. It appears that that issue arose some time during the second day. He submitted that once issue was joined the third respondent was in peril of conviction. Conversely if the charge was dismissed for any reason then there has been hearing on the merits. He relied upon the decision of the Full Court of this Court in Thompson v Mastertouch TV Service Pty. Ltd. (1978) 19 ALR 547 which held that s.24 of the Federal Court of Australia Act 1976 (FCA) does not operate to confer a right of appeal from an acquittal after a hearing on the merits of a criminal charge by a Court of competent jurisdiction.
The question is whether there was in this case a hearing on the merits. Clearly a plea was entered and some evidence was taken. But when the validity of the authority was raised the trial of the merits effectively came to an end. All argument thereafter was directed to that point alone. And that point went to the jurisdiction of the Court to hear the matter.
It was a condition of the institution of the proceedings and if that condition was not satisfied the proceedings could not be said to be properly instituted or properly before the Court. In dismissing the informations the learned trial judge did not deal with any of the evidence which had been heard in relation to the substantive matters. He merely stated that the proceedings were not validly instituted and accordingly the informations were dismissed. A decision based solely on the jurisdiction of the Court to hear and determine a matter cannot be regarded as an acquittal after a hearing on the merits. This opinion is supported by general statements of principle expressed in a number of authorities, see for example Barnes v. Gougousis (1969) VR 1019 per Adam J. at pp 1021 - 1024 and the authorities referred to therein. Compare Regina v. Bournemouth Crown Court Ex parte Wright (1984) 1 WLR 980 and Broome v. Chenoweth (1946) 73 CLR 583.
Mr. Milte also sought to argue that the appellant being a prosecutor other than the Crown did not, in the absence of an express statutory provision, have the right to appeal from a decision dismissing a criminal charge. He referred to the comments of Deane J. in Thompson v. Mastertouch (supra) at p 561 where he said:-
"There is long-established authority for the proposition that an unsuccessful prosecutor (other than the Crown) in criminal proceedings should not be regarded as 'a person aggrieved by the outcome' with locus to institute an appeal."
and to the cases referred therein.
He urged that the words of s.24 of the FCA do not expressly confer such a right on such an appellant and accordingly the appellant did not have the locus standi.
It would appear that the observations of Deane J. relate to a suggestion that a prosecutor lacks standing to appeal when there has been an acquittal following a hearing on the merits. This can be seen from the remarks following the above quote. He said:-
"An unsuccessful prosecutor may be annoyed at failing to obtain a conviction for what he thought was a breach of the law. He is not, however, to be regarded as "aggrieved" because someone is held not to have done wrong and not to be liable for punishment."
In this case it cannot be said that the respondents were held not to have done wrong. There were no dismissals on the merits. Here the informations were dismissed because the Court considered it lacked jurisdiction. The prosecutor has lost a right, namely a right to have the matter heard and determined on its merits: see also the comments of the Full Court of the High Court in this regard in Davern v. Messel (1984) 53 ALR 1. The terms of s.24, of the FCA are sufficiently broad to encompass an appeal being brought by a prosecutor where the appeal relates to the dismissal of proceedings on a jurisdictional basis alone. That section does not by express words limit an appeal to a person aggrieved.
In any event, the whole of the above cited passage was obiter, his Honour stating at p.561:-
"It is, in the circumstances, unnecessary that I form or express any concluded view on the question whether, if s.24(1)(a) had conferred jurisdiction on the court to hear an appeal from a judgment of acquittal in a matter such as the present, the appellant would have had standing to institute or maintain the appeal."
Accordingly the appeal should be allowed with costs.
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