JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: LEWKOWSKI & ORS -v- LILLEY [2000] WASCA 14
CORAM: KENNEDY J
PIDGEON J
MURRAY J
HEARD: 11 OCTOBER 1999
DELIVERED : 4 FEBRUARY 2000
FILE NO/S: SJA 1158 of 1998
BETWEEN: GREGORY LEWKOWSKI
WARREN LANCE LEWKOWSKI
FINELINE HOMES (WA) PTY LTD
AppellantsAND
NIGEL LILLEY
Respondent
Catchwords:
Builders' registration - Convictions of company and its directors for offences of entering into contracts for building work and for conducting the building work without registration - Proposition that contracts entered into and work done as the agent of a registered builder provides no defence - Defence under Criminal Code (WA) s 24 not available - Turns on own facts
Legislation:
Builders' Registration Act 1939 (WA) s 4(1)(A)
Criminal Code (WA) s 7, s 24
Result:
Appeal dismissed
Representation:
Counsel:
Appellants: Mr T R Stephenson
Respondent: Mr M R Hall & Ms E M Buttfield
Solicitors:
Appellants: Fordhams
Respondent: E M Buttfield
Case(s) referred to in judgment(s):
Borg v R [1972] WAR 194
Builders' Registration Board of WA v Roroka Pty Ltd, unreported; SCt of WA (Owen J); Library No 8776; 25 March 1991
Giorgianni v The Queen (1985) 156 CLR 473
He Kaw Teh v The Queen (1985) 157 CLR 523
West v Suzuka [1964] WAR 112
Wilson v Dobra (1955) 57 WALR 95
Case(s) also cited:
Abalos v Australian Postal Commission (1990) 171 CLR 167
Brimblecombe v Duncan [1958] Qd R 8
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842
Coughlin v The Queen, unreported; CCA SCt of WA; Library No 3012; 9 September 1980
Flatow v Mullins, unreported; SCt of WA (Smith J); Library No 5207; 1 February 1984
G J Coles & Co Ltd v Goldsworthy [1985] WAR 183
Geraldton Fishermen's Co-op Ltd v Munro [1963] WAR 129
H L Bolton (Engineering) Co Ltd v T J Graham & Sons Ltd [1957] 1 QB 159
Klahn v Talbot (1995) 83 A Crim R 535
Maher v Musson (1934) 52 CLR 100
McKenzie v G J Coles & Co Ltd [1986] WAR 224
McPherson v Cairn [1977] WAR 28
Olsen v Grain Sorghum Marketing Board [1962] Qd R 580
Oset v Webb, unreported; FCt SCt of WA; Library No 8734; 28 February 1991
Pearce v Stanton (1984) WAR 359
Pereira v Director of Public Prosecutions (1989) 63 ALJR 1
R v Perera [1986] 1 Qd R 211
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
Thomas v Schwager (1997) 98 A Crim R 486
Ward v The Queen, unreported; CCA SCt of WA; Library No 970524; 14 October 1997
KENNEDY J: I have had the advantage of reading in draft the reasons to be published by Murray J, with which I entirely agree. For those reasons, I would dismiss this appeal.
PIDGEON J: I agree with the reasons to be published by Murray J.
MURRAY J: On 25 March 1997, the respondent, the Registrar of the…
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CaseChat Overview and Summary
The court held that to construct or build a building was to engage in work which was not only physically performing the building work but also engaging in the management and supervision of the day-to-day building operations which might be carried out by others. The court further held that the section provided two separate offences: one of entering into a contract or engagement to construct a building and one of actually undertaking building work pursuant to any contract or engagement. The court found that the defendants were not acting as agents of a registered builder, and therefore, the proposition that contracts entered into and work done as the agent of a registered builder provided no defence was correct. The court also held that the defence under Criminal Code (WA) s 24 was not available.
The court found that Gregory and Warren were aiding Fineline in committing the offence and were therefore guilty of the offence. The court found that the defendants were not acting with the required actual knowledge of the essential facts constituting the offence, and therefore, the defence under Criminal Code (WA) s 24 was not available. The court held that the defendants were guilty of the charges and imposed fines on them.
The final orders of the court were that Fineline, Gregory, and Warren were each fined $2,000 for each of the two charges. The court also ordered that the fines be paid within 28 days of the date of the judgment.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by:
In Builders' Registration Board of WA v Roroka Pty Ltd, unreported; SCt of WA (Owen J); Library No 8776; 25 March 1991, Owen J held, consistently with that definition and for the purposes of s 4(1)(A)(b), that to construct or build a building was to engage in work which was not only physically performing the building work but also engaging in the management and supervision of the day‑to‑day building operations which might be carried out by others. His Honour considered that s 4(1)(A)(b) in fact provided two separate offences: one of entering into a contract or engagement to construct a building and one of actually undertaking building work pursuant to any contract or engagement. It can be seen that both forms of offence were charged in this case. Fineline is clearly not registered under the Act; neither indeed are Gregory or Warren, who is his son. Fineline is a private company. It has an issued capital of $2 divided into two shares, and Gregory and Warren are the sole shareholders. They are also the sole directors of the company. The evidence was that, although Gregory played a leading role in the activities of the company, it acted by the conduct of both Gregory and Warren. However, it will be noticed that it was not the case that only Fineline was charged with respect to the two contracts and building operations with which the complaints are concerned. Gregory and Warren were themselves charged as having aided Fineline, in Gregory's case to enter into the contracts and in Warren's case to build what was in fact a residence for Mr and Mrs Parker at Bakers Hill. They were charged in that way in reliance upon the provisions of the Code, s 7(c). That section provides, inter alia, that when an offence is committed (in this case by Fineline) a person who aids another in committing the offence "is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it". So Gregory and Warren might have been charged in just the same way as Fineline was charged, but to charge them with aiding some of the offences committed by Fineline did not invalidate the complaint but simply made clear, by way of that additional particularisation, the nature of the case against the two men. The provisions of s 7 have long been held to apply to all offences punishable by the law: Wilson v Dobra (1955) 57 WALR 95; West v Suzuka [1964] WAR 112. Equally, it has long been clear that the conduct of the alleged aider which may render him liable as if a principal offender must be carried out with knowledge of the offence which was being or might be committed: Borg v R [1972] WAR 194, 199. It is actual knowledge of the essential facts constituting the offence which is or might be committed which is required: Giorgianni v The Queen (1985) 156 CLR 473, 504 – 7. There must be actual knowledge of at least the likelihood that an offence of the general kind of that in fact committed, was being committed or was likely: He Kaw Teh v The Queen (1985) 157 CLR 523, 570. This, as will be seen, was not a case which involved any question of constructive knowledge – any inference of actual knowledge from the alleged offender's wilful blindness.