Landers v G and M Giorgiante Nominees Pty Ltd
[2006] WASC 32
LANDERS -v- G & M GIORGIANTE NOMINEES PTY LTD & ORS [2006] WASC 32
| (2006) 31 WAR 563 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 32 | |
| Case No: | SJA:1057/2005 | 7 OCTOBER 2005 | |
| Coram: | LE MIERE J | 2/03/06 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | SIMON RICHARD LANDERS G & M GIORGIANTE NOMINEES PTY LTD GUISEPPE GIORGIANTE MARIANNE GIORGIANTE |
Catchwords: | Consumer and fair trading law Criminal prosecution False representation Whether intention an element of statutory false representation Meaning of "in connection with" Meaning of "disposal of an interest in land" Whether no case to answer |
Legislation: | Criminal Appeals Act 2004 (WA), s 14 Fair Trading Act 1987 (WA), s 5, s 12, s 13, s 81, s 82 Trade Descriptions and False Advertisements Act 1936 (WA) Trade Practices Act 1974 (Cth), s 51AC, s 53, s 53A, s 87B |
Case References: | Australian Competition and Consumer Commission v Woolworths (South Australia) Pty Ltd (t/as Mac's Liquor) & Ors (2003) 198 ALR 417 Berry v Federal Commissioner of Taxation (1953) 89 CLR 653 Darwin Bakery Pty Ltd v Sully (1981) 51 FLR 90 Given v C V Holland (Holdings) Pty Ltd (1977) 29 FLR 212 Lisciandro v Official Trustee in Bankruptcy (1995) ATPR 41-436 Monroe Topple & Associates Pty Ltd v The Institute of Chartered Accountants in Australia [2001] FCA 1056 NMFM Property Pty Ltd & Ors v Citibank Ltd (No 10) (2000) 186 ALR 442 Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 Riley McKay Pty Ltd v Bannerman (1977) 31 FLR 129 Walplan Pty Ltd v Wallace (1986) 8 FCR 27 Davidson v Watson (1953) 28 ALJR 63 GRE Insurance Ltd v Allinghams Removals Pty Ltd (1997) 9 ANZ Insurance Cases Morrison v Kiwi Electrix Pty Ltd t/as Morning Star Fisheries & Anor (1998) 19 WAR 482 Shell Co of Australia Ltd v Bailey 7 Drysdale [1980] WAR 233 Sternberg v The Queen (1953) 88 CLR 646 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
G & M GIORGIANTE NOMINEES PTY LTD
GUISEPPE GIORGIANTE
MARIANNE GIORGIANTE
Respondents
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE I G BROWN
File No : PE 26974 of 2004, PE 26975 of 2004, PE 26976 of 2004
(Page 2)
Catchwords:
Consumer and fair trading law - Criminal prosecution - False representation - Whether intention an element of statutory false representation - Meaning of "in connection with" - Meaning of "disposal of an interest in land" - Whether no case to answer
Legislation:
Criminal Appeals Act 2004 (WA), s 14
Fair Trading Act 1987 (WA), s 5, s 12, s 13, s 81, s 82
Trade Descriptions and False Advertisements Act 1936 (WA)
Trade Practices Act 1974 (Cth), s 51AC, s 53, s 53A, s 87B
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant : Mr N J Mullany & Mr S L Dworcan
Respondents : Mr H Kremer
Solicitors:
Appellant : Department of Consumer & Employment Protection
Respondents : H Kremer & Co
Case(s) referred to in judgment(s):
Australian Competition and Consumer Commission v Woolworths (South Australia) Pty Ltd (t/as Mac's Liquor) & Ors (2003) 198 ALR 417
Berry v Federal Commissioner of Taxation (1953) 89 CLR 653
(Page 3)
Darwin Bakery Pty Ltd v Sully (1981) 51 FLR 90
Given v C V Holland (Holdings) Pty Ltd (1977) 29 FLR 212
Lisciandro v Official Trustee in Bankruptcy (1995) ATPR 41-436
Monroe Topple & Associates Pty Ltd v The Institute of Chartered Accountants in Australia [2001] FCA 1056
NMFM Property Pty Ltd & Ors v Citibank Ltd (No 10) (2000) 186 ALR 442
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465
Riley McKay Pty Ltd v Bannerman (1977) 31 FLR 129
Walplan Pty Ltd v Wallace (1986) 8 FCR 27
Case(s) also cited:
Davidson v Watson (1953) 28 ALJR 63
GRE Insurance Ltd v Allinghams Removals Pty Ltd (1997) 9 ANZ Insurance Cases
Morrison v Kiwi Electrix Pty Ltd t/as Morning Star Fisheries & Anor (1998) 19 WAR 482
Shell Co of Australia Ltd v Bailey 7 Drysdale [1980] WAR 233
Sternberg v The Queen (1953) 88 CLR 646
(Page 4)
1 LE MIERE J: In September 2002 Guiseppe and Marianne Giorgiante were the registered proprietors of the property at 2 Tarun Court, Cannington, on which a three bedroom house was situated. On 21 September 2002 Stewart Coxon saw an advertisement in the "To Let" column of the "West Australian Newspaper" advertising the property for letting. Later that day Mr Coxon inspected the property with his fiancé.
2 Mr Giorgiante showed Mr Coxon and his fiancé through the property. Mr Giorgiante told Mr Coxon that he and his brother had bought the property. Mr Coxon filled out an application form and Mr Giorgiante said he would let Mr Coxon know whether he was successful in his application to let the property. The following day, after Mr Coxon's fiancé had telephoned Mr Giorgiante, Mr Coxon and Ms McSwan again visited the property. Mr Giorgiante presented to Mr Coxon a tenancy, or lease, agreement. The agreement recorded that it was made between G & M Giorgiante Nominees Pty Ltd ("the company") which was described as "the Owner", and Mr Coxon, who was described as "the Tenants". The agreement states that the owner lets and the tenant takes the premises situated at 2 Tarun Court, Cannington. The tenancy agreement recorded that it was signed on behalf of the landlord by Mr Giorgiante. Mr Coxon signed the agreement as tenant. Mr Coxon subsequently resided at the property.
3 Subsequently the appellant charged the company that it had in trade or commerce, in connection with the disposal of an interest in land, made a false or misleading representation to Mr Coxon, concerning the nature of the interest in the land contrary to s 12(2)(b) of the Fair Trading Act 1987 (WA) ("the Act").
4 Section 12(2) provides relevantly that a person shall not, in trade or commerce, in connection with the disposal, or the possible disposal, of an interest in land or in connection with the promotion by any means of the disposal of an interest in land, make a false or misleading representation concerning the nature of the interest in the land. The charge alleged that the company had made a false or misleading representation to Mr Coxon concerning the nature of the interest in the land that the company was granting to Mr Coxon, namely a leasehold interest, when the company was unable to grant such an interest as it was not the owner of the land, nor had it lawfully acquired such an interest in the land from the owners of the land.
5 Guiseppe Giorgiante was charged with the same offence pursuant to s 81(1) of the Act which provides that where a corporation is convicted of
(Page 5)
- an offence against the Act a director of the corporation is also guilty of an offence unless he proves an affirmative defence not presently relevant. Marianne Giorgiante was charged with a similar offence.
Trial before Magistrate
6 The charges were heard by a Magistrate. The respondents, that is the company and Mr and Mrs Giorgiante, admitted that Mr and Mrs Giorgiante were at all material times the registered proprietors of the property at 2 Tarun Court, Cannington. The only witness was Mr Coxon. He gave evidence to the effect that I have set out above. The tenancy agreement and the newspaper advertisement were both made exhibits.
7 At the conclusion of the prosecution case, the respondents submitted that there was no case to answer. The Magistrate held that there was no case to answer and dismissed the charges.
8 The Magistrate found that there was no case to answer for two reasons. First, the Magistrate held that the false representation made by the company was not as to the nature of the interest in the land. That is the granting of the lease was not a transaction which involved the disposal of an interest in land for the purposes of s 12(2)(b) of the Act. Secondly, the Magistrate concluded that, as a matter of construction, in order to be a false representation under s 12(2)(b) of the Act the statement must not only be false but also be intended to promote or induce the taking of an interest in the land. The Magistrate found that the statement was not so intended.
Appeal to this Court
9 The appellant appeals from the decision of the Magistrate by leave of a Judge of this Court on five grounds. I will refer to those grounds of appeal shortly. However, it is first necessary to refer to how the appellant put his case before the Magistrate.
10 The false representation relied on was alleged to be that the company was able to dispose of a leasehold interest in the land and the implied representation was that Mr Coxon would obtain a leasehold interest in the land. It is the implied representation concerning the ability or capacity of the company to dispose of the leasehold interest (and the obtaining by Mr Coxon of a leasehold interest in the land) that was alleged to have been false and a representation made "in connection with the disposal of an interest in land" and "concerning the nature of the interest in the land".
(Page 6)
11 The learned Magistrate said that the essence of the appellant's case was that because the company was never the owner of the property it could not legally convey any interest in the property to Mr Coxon. The Magistrate appears to have accepted that the company, by Mr Giorgiante, made that representation to Mr Coxon. The Magistrate also accepted that the representation was false in the sense of being wrong, not in accordance with the truth or the facts, or erroneous. The Magistrate found that Mr Coxon was not misled in a material manner prior to signing the tenancy agreement.
12 The Magistrate then applied those facts to the law as he interpreted it. The Magistrate, correctly, held that the prosecution must establish that the representation made by the company was made in connection with the disposal of an interest in land. His Honour held that the transaction between the company and Mr Coxon did not involve the disposal of an interest in land and hence the company did not contravene s 12(2)(b) of the Act.
13 The Magistrate found there was no case to answer for a second reason. An element of the offence charged is that the company made a false representation. Section 5(1) of the Act provides that, except insofar as the context or subject matter otherwise indicates or requires, "false representation" has the meaning given by s 13.
14 Section 13 is important to this appeal. I will set it out in full except for par 13(1)(b) which is not relevant to the issues in this appeal.
"(1) For the purposes of this Act, and without limiting the generality of section 12, a statement shall be taken to be a false representation if –
(a) it is false, or deceives, or if it or any information thereby provided is materially inaccurate and that statement is intended or is apparently intended –
(i) to promote the supply of any goods or services or the disposal of any interest in land;
(ii) to induce any other person to make use, on payment of a price, of any goods or services or interest in land; or
(Page 7)
- (iii) to relate to any business activity or employment referred to in an advertisement containing that statement;
- or
(b) ...
- (2) For the purposes of this Act, 'materially inaccurate', in relation to any information, means –
(a) inaccurate; or
(b) misleading or likely to mislead,
in a material respect and to a material degree by reason of anything contained or omitted from the statement."
16 The parties each advanced a different interpretation or construction of s 13(1). The appellant submits that if a representation is false then it is a false representation for the purposes of s 13 of the Act irrespective of whether or not it is intended, or apparently intended, to promote the disposal of an interest in land. That is, the words "is intended or is apparently intended (relevantly) to promote the disposal of any interest in land" qualify the words "any information thereby provided is materially inaccurate" but not the words "it is false" or the word "deceives". The respondents submit that a statement would not be false even if false or deceptive unless it is also intended to promote the disposal of an interest in land. That is, the words "and that statement is intended or is apparently intended (relevantly) to promote the disposal of any interest in land" qualify the words "it is false" and the word "deceives" as well as the words "if it or any information thereby provided is materially inaccurate".
17 The Magistrate preferred the respondents' construction. The Magistrate found that the company's statement was not intended or apparently intended to promote the disposal of any interest in land and hence there was no case to answer.
(Page 8)
18 The Magistrate stated that he did not accept that Mr Coxon was in any way misled in a material manner prior to him signing the tenancy agreement. It is not clear whether the Magistrate considered that to be a separate element of the offence charged or to be a step along the way to determining whether or not the statement by the company was intended or apparently intended to promote the disposal of any interest in land.
Ground 1
19 The essence of the first ground of appeal is that the learned Magistrate erred in the construction of s 13(1) of the Act.
Textual analysis
20 The appellant submits that s 13 should be construed as follows:
"a statement shall be taken to be a false representation
if it is false, or
deceives, or
if it or any information thereby provided is materially inaccurate and that statement is intended or is apparently intended -
(i) to promote the supply of any goods or services or the disposal of any interest in land;
…"
"a statement shall be taken to be a false representation
if it is false, or
deceives, or
if it or any information thereby provided is materially inaccurate
and that statement is intended or is apparently intended –
(i) to promote the supply of any goods or services or the disposal of any interest in land;
…"
(Page 9)
22 The respondents submit that a textual analysis of s 13 supports their interpretation. They submit that the appellant's interpretation does not five any meaning, significance or effect to the conjunctive "and" in the words "it is false, or deceives, or if it or any information thereby provided is materially inaccurate". The learned Magistrate accepted that submission. Indeed that was the reason stated by His Honour for accepting the interpretation of s 13(1) advanced by the respondents.
23 In my view the presence of the conjunctive "and" is not of great significance. The word "and" connects two or more phrases but the issue is, which phrases does it connect? The appellant's interpretation has the effect that it connects "that statement is intended …" with the words "if it or any information thereby provided is materially inaccurate" but not with the words "it is false, or deceives".
24 The respondents also submit that the appellant's interpretation does not give any meaning, significance or effect to the difference between "statement" and "information", both of which are defined terms in the Act. I do not agree with that submission. "Information" in par 13(1)(a) refers to information provided by the statement.
25 The respondents also submit that the appellant's interpretation does not give any proper meaning, significance or effect to the words "that statement" where appearing immediately after the conjunctive "and". The respondents submit that the proper construction is that "that statement" is referring to "a statement shall be taken to be a false representation if … ". I do not agree. "That statement" may equally refer to "if it or any information" where "it" refers to a statement.
26 The appellant's construction gives the words of subs 13(1) their most natural meaning. Furthermore, the appellant's construction is preferable as a matter of syntax. The respondents' construction requires that a comma be inserted after the words "is materially inaccurate" and before the words "and that statement".
27 I do not rest my decision on the absence of a comma, or upon a textual analysis of s 13. The zero tolerance approach to punctuation and syntax is not appropriate when construing provisions that create an offence. It is necessary to look to the sense and purpose of the statutory provisions.
(Page 10)
Purposive approach
28 The circumstances leading to the enactment of the Act are set out in the Second Reading Speech of the Minister for Consumer Affairs. The Act was enacted to bring to fruition an agreement reached in June 1983 at a meeting of Federal and State Ministers for Consumer Affairs that there should be uniform consumer protection legislation in Australia. Following the deliberations of a uniformity working party, Ministers agreed in September 1983 that the Trade Practices Act 1974 (Cth) ("TPA") would provide the best basis for achieving uniformity, and that mirror legislation would be the most practical technique to implement uniformity. The Minister explained that mirror provisions of the TPA were needed because Commonwealth legislation only applies generally to corporations and it was considered that such provisions were a model for consumer protection.
29 The Minister explained that Div 1 of Pt V of the TPA deals with unfair practices. The corresponding provisions of the Act are found in Pt II Div 1, which includes s 12 and s 13. The Minister stated that the provisions relating to unfair practices make up the core of the uniform legislation. The Minister further stated that it was agreed among Ministers that inclusion of other provisions - dealing with product safety and information standards, conditions and warranties in consumer transactions, and enforcement and remedies - would be determined by individual states according to their needs. The Minister referred to the benefits of uniform law. The Minister stated that the uniform provisions of the Bill were contained in Pt II (Fair Trading) and Pt VII (Enforcement and Remedies). The central feature was said to be the prohibition, in trade or commerce, of deceptive or misleading conduct, that is s 10. A second feature was said to be the prohibition of unconscionable conduct, that is s 11. The Minister then stated that the remainder of Pt II created a series of offences for specific unfair business practices. The Minister noted that a number of those practices were already prohibited in Western Australia and that adoption of the uniform provisions would allow the repeal of acts, including the Trade Descriptions and False Advertisements Act 1936 (WA). In the course of the Second Reading debate the Minister representing the Minister for Consumer Affairs in the Legislative Council stated that many of the provisions that existed in other Acts had been taken out and put in the Bill. Acts to be repealed, either partly or entirely, included the Trade Descriptions and False Advertisements Act.
30 Subsection 12(1) of the Act corresponds to s 53 of the TPA and subs 12(2) corresponds to s 53A of the TPA. By 1987 it was established
(Page 11)
- that for the purposes of s 53 and s 53A of the TPA the words "falsely represent" are satisfied if the representation is not correct, even if it is not false to the knowledge of the person making the representation. It is irrelevant whether there was a guilty mind or not: Riley McKay Pty Ltd v Bannerman (1977) 31 FLR 129 at 134; Given v C V Holland (Holdings) Pty Ltd (1977) 29 FLR 212; Darwin Bakery Pty Ltd v Sully (1981) 51 FLR 90.
31 The respondents' construction of s 13 would have the consequence that s 12(2) would have a different meaning and application than the corresponding provisions of the TPA and the Fair Trading Acts of the other States in that the words "false representation" would require not only that the representation be contrary to fact but also that it was made with one of the intentions specified in s 13(1)(a) of the Act. It would be contrary to the apparent legislative intention for one of the unfair practices provisions of the Act to have a different meaning and application than the corresponding provisions of the TPA and the other Fair Trading Acts which are in the same terms.
32 It appears more in keeping with the legislative intention that s 13 of the Act is intended to add to the uniform provisions of the Act by extending statements which shall be taken to be a false representation beyond those contained in s 12 if s 12 stood alone. On the appellant's construction of s 13, a false representation is false for the purpose of s 13, and hence in s 12, if it is false, that is contrary to fact. That preserves the ordinary meaning of s 12 and gives s 12 the same meaning as the corresponding provisions in the TPA and the other Fair Trading Acts. Section 13(1) further provides that a statement shall be taken to be a false representation if it deceives. Further, a statement shall be taken to be a false representation if the statement or any information thereby provided is materially inaccurate and that statement is intended, or apparently made with one of the specified intentions. The effect of those provisions is to extend the meaning of false representation. By effectively making a statement a false representation if the statement or any information thereby provided is materially inaccurate, the Act includes within the class of statements that are taken to be false representations statements or information with a lower degree of error than falsehood. It thereby includes any statement or information, provided that it is materially inaccurate. It appears that in extending the categories of false representations to statements that are materially inaccurate, rather than false or deceptive, the Parliament limited such statements to those that were made or apparently made with one of the specified intentions.
(Page 12)
33 Section 13 of the Act appears to be based on s 8 of the repealed Trade Descriptions and False Advertisements Act 1936. It appears that s 13 of the Act was one of the provisions that the Minister said had been taken out of other Acts and put in the Bill. It is consistent with the apparent legislative intention that s 13 should be an additional provision that in effect extends the prohibited unfair practices, rather than being a provision which cuts down the prohibition on unfair practices contained in s 12 of the Act.
34 An examination of the terms of subs 12(2) of the Act also leads to the conclusion that the appellant's construction is correct. Subsection 12(2)(b) prohibits making a misleading representation as well as a false representation. A false representation means one that is contrary to fact. What is the difference between "false" and "misleading"? The author of Heydon's "Trade Practices Law" provides the following answer at [12.70]:
" 'Misleading' suggests representations which though literally true in fact lead into error. A literally true representation would normally be characterised as false, if it in fact led into error. The drafting thus suggests a narrowing of the natural meaning of 'false'. It would be tempting to suggest that the words 'false' and 'misleading' are not used disjunctively were it not for the use of 'falsely' alone in section 53(a)-(bb) [of the TPA]. Hence it is possible that half-truths, representations causing confusion, ambiguous remarks, and some instances of silence may be held misleading but not false."
35 A "false representation" appears to be one with a higher degree of error than a "misleading" representation. If the respondents' construction of s 13(1) is correct then only false representations made with one of the intentions specified in s 13(1)(a) are prohibited by s 12(2)(b) but any misleading representation is prohibited whether made with one of the specified intentions or not. That does not seem sensible and is unlikely to have been intended by the Parliament.
Ground 1 succeeds
36 For the reasons stated, the appellant's construction is the correct or preferred construction of s 13(1) of the Act. The learned Magistrate erred in the construction of that sub-section. Ground 1 succeeds.
(Page 13)
Grounds 2 and 4
37 Ground 2 is that the learned Magistrate erred in fact and law in proceeding on the basis that reliance was placed by the appellant on the "false endorsement" by the respondents on the "lease document" and in finding that the representation was not "as to the nature of an interest in land". I will consider this ground of appeal together with ground 4, which ground states that the learned Magistrate erred in law in finding that the granting of a lease is not a "disposal of an interest in land" for the purposes of s 12(2)(b) of the Act.
38 The learned Magistrate directed himself that a threshold question is whether the granting of a lease can be regarded as a transaction which involves the disposal of an interest in land and concluded that it does not for the purposes of s 12 of the Act. His Honour stated:
"For example, leases do not get registered on the title as an interest in land, it's regarded sometimes as an equitable interest. But for the purposes of s 12 I don't think it is caught by that."
39 Section 5(1) of the Act provides that:
"Except insofar as the context or subject-matter otherwise indicates or requires 'interest' in relation to land means –
(a) a legal or equitable estate or interest in the land;
(b) a right of occupancy of the land, or of a building or part of a building erected on the land, conferred by shares, or by virtue of a contract to purchase shares, in a corporation that owns the land or the building; or
(c) a right, power or privilege over, or in connection with, the land."
40 The false representation relied on by the appellant was alleged to be that the company was able to dispose of a leasehold interest in the land. It is said to be an implied representation concerning the ability or capacity of the company to dispose of the leasehold interest and the obtaining by Mr Coxon of a leasehold interest in the land. The lease or tenancy agreement states that the company is the owner and was purportedly executed on behalf of the landlord, that is the company. The agreement provides that "the owner lets and the tenant takes the premises situated at 2 Tarun Court ... " and states that "the tenancy is for a period of six months commencing on 22-9-2002 and expiring on 22-3-2003". The
(Page 14)
- interest purported to be created by the lease agreement is an interest in land for the purposes of the Act. It creates a legal or equitable estate or interest in the land or at the least, a right, power or privilege over, or in connection with, the land, that is the right to occupy the land.
41 Subsection 12(2) requires the false representation to be made in connection with the disposal of an interest in land and to be a representation concerning the nature of the interest in the land.
42 The words "in connection with" have not, so far as I am aware, been considered by the courts in the context of s 12(2) or s 53 of the TPA. In Australian Competition and Consumer Commission v Woolworths (South Australia) Pty Ltd (t/as Mac's Liquor) & Ors (2003) 198 ALR 417 Mansfield J considered the words "in connection with" in s 87B of the TPA. His Honour applied the test in Berry v Federal Commissioner of Taxation (1953) 89 CLR 653 at 658 - 659 to the effect that there needs to be a substantial relationship, in a practical business sense. His Honour also noted the view expressed by Wilcox J in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 479, that the test did not require "an immediate causal relationship". In Monroe Topple & Associates Pty Ltd v The Institute of Chartered Accountants in Australia [2001] FCA 1056 the court considered the term "in connection with" in s 51AC of the TPA and decided that it requires the impugned conduct to "accompany" or "go with" or "be involved in" the supply of goods or services.
43 In the context of s 12(2), the term "in connection with the disposal … of an interest in land" should be interpreted as requiring some substantial relationship or association with the disposal of an interest in land or the promotion of the disposal of an interest in land. In this case it would be open to the Magistrate to find on the evidence that the representation alleged by the appellant was in connection with an interest in land.
44 Subsection 12(2)(b) requires that the false representation be one "concerning the nature of the interest in the land". "Concerning" means relating to, regarding or about according to the Macquarie Dictionary. The representation alleged by the appellant is that the company was able to dispose of a leasehold interest in the land. That is, or at least is capable of being, a representation concerning the nature of the interest in the land. A representation that a person has a right to grant a leasehold interest in land or to confer upon a person a right to occupy land is a representation concerning the nature of the interest in land. There is evidence on which
(Page 15)
- the Magistrate could lawfully find that the alleged false representation made by the company was made in connection with the disposal of an interest in land and was a representation concerning the nature of the interest in land. Grounds 2 and 4 of the appeal succeed.
Ground 3
45 Ground 3 is that the learned Magistrate erred in law in finding that in order for the representation made by the respondent to be a false representation for the purposes of the Act the representee must have been misled in a material manner and induced by the representation to sign "the tenancy agreement".
46 The learned Magistrate held:
"I don't accept that Mr Coxon was in any way misled in a material manner prior to him signing the tenancy agreement."
47 It is not clear whether that finding by the learned Magistrate was a reason for the Magistrate to find that there was no case to answer.
48 It is not an element of s 12(2) that the person to whom a representation was made did something in reliance upon the false or misleading representation. Indeed, it is not necessary that the person to whom the representation was made was misled by the representation in a material manner or at all. All that is required to constitute a contravention of s 12(2) is that the defendant has made a false or misleading representation.
49 Ground 3 of the appeal is made out in that the Magistrate erred in law in taking into account that Mr Coxon was not misled in a material manner prior to him signing the tenancy agreement in determining that there was no case to answer.
Ground 5
50 Ground 5 is that the learned Magistrate erred in law in dismissing the complaints against the respondents on the basis that they had no case to answer in circumstances where the evidence, taken at its highest, was capable of sustaining verdicts of guilty by proof beyond reasonable doubt.
51 The learned Magistrate correctly directed himself as to the test to be applied in determining whether or not there was a case to answer. However, the learned Magistrate erred in law in applying that test to the evidence.
(Page 16)
52 There was evidence upon which the Magistrate could lawfully find that the company had made a false representation. It was open to the Magistrate to find that the company made the representation alleged by the appellant, that is that the company was able to dispose of a leasehold interest in land and that Mr Coxon would obtain a leasehold interest in the land. The learned Magistrate erred in his construction of s 13(1)(a) of the Act and thereby erroneously found that there was no evidence on which he could lawfully find that the company had made a false representation.
53 There was evidence upon which the Magistrate could lawfully find that the alleged representation made by the company was made in connection with the disposal of an interest in land and was made concerning the nature of the interest in the land. The Magistrate erred in law in finding to the contrary.
54 Insofar as the Magistrate found that the appellant had to establish that Mr Coxon was misled prior to signing the tenancy agreement, or that the fact that Mr Coxon was not misled in a material manner prior to signing the tenancy agreement precluded the respondents being lawfully convicted, the Magistrate erred in law.
Respondents' alternative argument
55 The respondents submitted that there are other reasons why there is no case to answer. Counsel for the respondents submitted that those matters may be argued under ground 5 of the notice of appeal. It is not necessary to consider whether the respondents' submissions might be considered under ground 5 of the appeal. Section 14(2) of the Criminal Appeals Act 2004 provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. If the Magistrate is not lawfully entitled to convict the respondents on the evidence for the additional reasons advanced by the respondents then it would be open to the court to dismiss the appeal pursuant to s 14(2) of the Criminal Appeals Act 2004.
56 The respondents submit that the misdescription by Mr Giorgiante of the owner in the tenancy agreement is not, and could not reasonably be interpreted to be, either expressly or by implication a false statement by the company concerning the nature of the interest that was being disposed of to Mr Coxon. Counsel for the respondents submits that the proper and reasonable implication from the evidence is that the maker of the false statement was Mr Giorgiante and that Mr Giorgiante's misdescription of the owner in the tenancy agreement is an incorrect identification of the
(Page 17)
- principal for whom Mr Giorgiante was acting and not a false statement concerning the nature of the interest that was disposed of. The respondents submitted that there was no evidence from which the act of Mr Giorgiante could be attributed to the company because there was no evidence that Mr Giorgiante had discussions with his co-director, Mrs Giorgiante, prior to the leasing of the property to Mr Coxon.
57 Questions concerning the inferences to be drawn from the evidence or the reasonably available hypotheses arise in this case. There was evidence of what Mr Giorgiante said and did in his conversations and meetings with Mr Coxon. There was room for argument about the inferences to be drawn from what was said and done. But in deciding, as a matter of law, whether there was evidence that could establish the prosecution case, the learned Magistrate was concerned with inferences that were available. He was not, at that stage, concerned to decide what inferences he would ultimately draw.
58 Mr Giorgiante presented the tenancy agreement to Mr Coxon. It had been completed. It recorded that the owner was the company. It was signed by Mr Giorgiante "on behalf of landlord". The document stated that the owner, that is the company, let the premises to the tenant. That is capable of being a representation that the company was able to dispose of a leasehold interest in the land and Mr Coxon would obtain a leasehold interest in the land.
59 Subsection 82(2) of the Act provides, relevantly, that any conduct engaged in on behalf of a body corporate by a director within the scope of the person's actual or apparent authority shall be deemed, for the purposes of the Act, to have been engaged in also by the company.
60 There was evidence that Mr Giorgiante was a director of the company. Indeed that was an agreed fact. It is open to the Magistrate to find that it was within the apparent authority of Mr Giorgiante to make the alleged representation. That is so notwithstanding that the company did not in fact own the property and therefore did not have, and could not have had, the capacity or ability to dispose of a leasehold interest in the land. The mere fact that a director acted unlawfully, by making a false or misleading representation, does not necessarily take his conduct outside the scope of his authority.
61 The conduct engaged in by Mr Giorgiante must have been engaged in "on behalf of" the company for Mr Giorgiante's conduct to be deemed to have been engaged in also by the company. The phrase "on behalf of"
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- suggests some involvement by the person concerned with the activities of the company. It conveys a meaning similar to the phrase "in the course of the body corporate's affairs or activities". It also encompasses acts done by a corporation's servants in the course of their employment; but it is not confined to the notion of a master-servant relationship. The phrase "on behalf of" casts a much wider net than conduct by servants in the course of their employment, although it includes it. It is not necessary to show benefit to the corporation in order to prove that conduct was engaged in on its behalf: Walplan Pty Ltd v Wallace (1986) 8 FCR 27. Something is done "on behalf of" a corporation for the purpose of s 12(2) if the person engaged in the conduct either intending to do so "as representative of" or "for" the corporation or in the course of the corporation's business affairs or activities: Lisciandro v Official Trustee in Bankruptcy (1995) ATPR 41-436; NMFM Property Pty Ltd & Ors v Citibank Ltd (No 10) (2000) 186 ALR 442.
62 There was no direct evidence Mr Giorgiante acted "on behalf of" the company. However, that Mr Giorgiante did so might be inferred from the nature of the representation and the circumstances. In this case Mr Giorgiante made the representation by presenting the completed tenancy agreement to Mr Coxon. The tenancy agreement was signed by, or on behalf of, the company. Mr Giorgiante was a director of the company. It is open to the Magistrate to infer that Mr Giorgiante made the representation on behalf of the company. Whether or not Mr Giorgiante did so will be a matter for the Magistrate to conclude at the end of the trial on the whole of the evidence.
63 The respondents further submit that there is no evidence that the company did not have beneficial ownership of the property, there being no evidence that the company had not lawfully acquired through any transfer, assignment or any other conveyance, such an interest in the land from the actual owners of the land, that is Mr and Mrs Giorgiante.
64 It was an agreed fact that Mr and Mrs Giorgiante were at the time of the trial and at the relevant time the registered proprietors of the land. In those circumstances it was open to the Magistrate to find that the company did not have the capacity or ability to grant a leasehold interest in the land to Mr Coxon.
65 The respondents' alternative argument is not made out. Ground 5 of the appeal succeeds.
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Conclusion
66 The appeal will be allowed. There was evidence before the learned Magistrate on which he could lawfully have convicted the respondents. His Honour erred in law in finding to the contrary. The learned Magistrate should have dismissed the respondents' application that the charges be dismissed on the grounds that there was no case to answer. I will hear from the parties as to the orders that should be made to give effect to these reasons.
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