Mammoth Investments Pty Ltd v Watts
[2005] WASC 130
MAMMOTH INVESTMENTS PTY LTD -v- WATTS [2005] WASC 130
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 130 | |
| Case No: | SJA:1029/2005 | 1 JUNE 2005 | |
| Coram: | MCKECHNIE J | 1/06/05 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MAMMOTH INVESTMENTS PTY LTD WILLIAM FRANCIS ROLAND WATTS |
Catchwords: | Criminal law and procedure Averments in complaint Naming of corporation Whether necessary to tender a certificate from ASIC Costs Witness attending but not called Duty to court to inform itself of circumstances before making costs order |
Legislation: | Nil |
Case References: | Brady v Thornton (1947) 75 CLR 140 English v Workers Compensation Board, unreported; SCt of Qld; Library No 825 of 1992 May v O'Sullivan (1955) 92 CLR 654 Morrison v Kiwi Electrix (1998) 19 WAR 482 Research and Development Engineers v Lanham (1989) 49 ALR 351 Canale v Bayens [2001] WASCA 383 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 Filsell v Top Notch Fashions Pty (1994) 94 ATC 4656 Garrett v Nicholson (1999) 21 WAR 226 Given v Pryor (1979) 39 FLR 437 Mraz v The Queen (1955) 93 CLR 493 Salomon v A Salomon & Co Ltd; A Salomon & Co Ltd v Salomon [1897] AC 22 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
WILLIAM FRANCIS ROLAND WATTS
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR T J MCINTYRE
File No : PE 50172 of 2004
Catchwords:
Criminal law and procedure - Averments in complaint - Naming of corporation - Whether necessary to tender a certificate from ASIC - Costs - Witness attending but not called - Duty to court to inform itself of circumstances before making costs order
(Page 2)
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr J A Davies
Respondent : Ms M M in de Braekt
Solicitors:
Appellant : Dawson Davies
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Brady v Thornton (1947) 75 CLR 140
English v Workers Compensation Board, unreported; SCt of Qld; Library No 825 of 1992
May v O'Sullivan (1955) 92 CLR 654
Morrison v Kiwi Electrix (1998) 19 WAR 482
Research and Development Engineers v Lanham (1989) 49 ALR 351
Case(s) also cited:
Canale v Bayens [2001] WASCA 383
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161
Filsell v Top Notch Fashions Pty (1994) 94 ATC 4656
Garrett v Nicholson (1999) 21 WAR 226
Given v Pryor (1979) 39 FLR 437
(Page 3)
Mraz v The Queen (1955) 93 CLR 493
Salomon v A Salomon & Co Ltd; A Salomon & Co Ltd v Salomon [1897] AC 22
(Page 4)
1 MCKECHNIE J: The appellant was charged on complaint of the Commissioner of Taxation:
"…who says and avers that on 19 August 2003 at Perth, Mammoth Investments Pty Ltd failed to comply with a requirement to furnish information to the Deputy Commissioner of Taxation, contrary to s 8C of the Taxation Administration Act…"
- There were further averments within the complaint.
2 The Taxation Administration Act 1953 (Cth) s 8ZL(1) provides:
"(1) In a prosecution for a prescribed taxation offence, a statement or averment contained in the information, claim or complaint is prima facie evidence of the matter so stated or averred."
3 Section 8ZL(2) provides:
"(2) This section applies in relation to any matter so stated or averred although:
(a) evidence in support or rebuttal of the matter stated or averred, or of any other matter, is given; or
(b) the matter averred is a mixed question of law or fact, but, in that case, the statement or averment is prima facie evidence of the fact only."
"HIS WORSHIP: Now what's the situation here Mr Davies? Your client's charged with an offence under the Taxation Administration Act.
MR DAVIES: I'm instructed the matter's to proceed, if it please you.
HIS WORSHIP: Mm. What's the basis of the defence?
(Page 5)
- MR DAVIES: At this stage sir, the defence reserves its right to call evidence. At this stage, I'm not instructed to go into the detail of that.
HIS WORSHIP: What do you mean, you're not instructed – you appear as counsel, you're here ready for a not guilty plea, and you can't tell me what is in issue. Sounds a bit odd to me.
MR DAVIES: Yes.
HIS WORSHIP: So it is odd is it?
MR DAVIES: I beg your pardon, I entirely agree.
HIS WORSHIP: Yes.
MR DAVIES: Your Worship, it's very odd.
HIS WORSHIP: Mm hm. But would you care to answer the question about what's in issue?
MR DAVIES: The prosecution is put to proof in this matter - -
HIS WORSHIP: I understand that.
MR DAVIES: - - with respect to all of the matters that are required to be proven, those are my instructions."
5 There was a further interchange and then the prosecutor opened for the prosecution. In the course of opening, it was made clear that the prosecutor was relying on the averments in the complaint for proof of most matters. A Notice pursuant to par 77(1)(a) of the Superannuation Guarantee (Administration) Act 1992 (Cth) sent to Mammoth Investments Pty Ltd, dated 28 July 2003, was admitted into evidence without objection. It was then marked as Exhibit A and was the only evidence formally tendered, the prosecution otherwise relying entirely upon the averments. At the conclusion of the prosecution case, counsel for Mammoth Investments Pty Ltd submitted that there was no case to answer.
6 The Magistrate correctly directed himself as to the requirements of a no case submission on the basis of Morrison v Kiwi Electrix (1998) 19 WAR 482. He took account of the Notice, Exhibit A, and the averments. The Magistrate refused the no case submission. The defendant elected to call no evidence and the Magistrate then said:
(Page 6)
- "If the defendant elects to call no evidence, this charge is proven beyond reasonable doubt."
7 He proceeded to convict the appellant and award costs. I will deal with costs in due course as the costs order forms part of the grounds of appeal.
8 The first ground of appeal (the second ground is related to it), reflects the matter that was at issue before the Magistrate:
"A The learned Magistrate erred in law holding that the charge had been proven, notwithstanding the want of evidence upon which a finding could be based that the Applicant was incorporated as a company at any material time.
PARTICULARS
The learned Magistrate erred in fact and law in holding the charge proven, when no evidence had been led by the prosecution to establish the fact of incorporation of the Applicant as at either:
(a) the date upon which the notice was issued to the defendant;
(b) the date upon which it was alleged by the prosecution that the offence was committed, or;
(b)[sic] the date upon which the complaint was issued;
- when, as a matter of law, the incorporation of the Applicant as at the date of the offence was an element of the offence, the burden of proof of which was upon the prosecution."
10 Counsel for the appellant has not been able to find a case that suggests whether incorporation is a question of fact or law. Incorporation
(Page 7)
- of a company is a matter of fact. I note that Ryan J in English v Workers Compensation Board, unreported; SCt of Qld; Library No 825 of 1992, was of the same view as was also Bowen J in Research and Development Engineers v Lanham (1989) 49 ALR 351 at 358, although in that latter case there was a somewhat different and more extensive averment about incorporation than here. The Corporations Act, s 148(3), provides that:
"An unlimited proprietary company must have the word 'proprietary' at the end of its name"
and, by s 149, "Pty" and "Ltd" are acceptable abbreviations. Here the averment is, as I have said, simply that the defendant was Mammoth Investments Pty Ltd; that is, a legal entity.
11 I do not consider that the averment in this case was a statement of law or even a statement of mixed fact and law. If I am wrong about that, in any event the averment carried the matter forward sufficiently to provide a case to answer: see Brady v Thornton (1947) 75 CLR 140 per Dixon J at 147 to 148.
12 It is clear that an averment may prove a case beyond reasonable doubt in the absence of persuasive contradictory evidence. There are many authorities to that effect. It is sufficient to refer only to Research and Development Engineers Pty Ltd v Lanham at 365 to 366 and the discussion there about May v O'Sullivan (1955) 92 CLR 654. In the absence of any evidence to the contrary it was open to the Magistrate to be satisfied beyond reasonable doubt as to the elements of the offence.
13 The reasons of the Magistrate were brief in the extreme on the no case submission. He considered the averments were clearly capable of proving each of the elements to a standard beyond reasonable doubt. In the absence of contradictory evidence he was, as I say, satisfied beyond reasonable doubt.
14 Cases will differ but I consider the Magistrate's reasons in this case were sufficient. In the end I consider ground B, which attacks the reasons, as very much an ancillary ground, and so much was acknowledged by Mr Davies, and correctly so. The real issue was whether or not the statement that the defendant, Mammoth Investments Pty Ltd, was a statement of fact of the incorporation so that no further evidence was required. If, as I hold, it is sufficient, then the Magistrate's decision is right in any event, whatever reasons he used, and if it was wrong, then his decision would be wrong again regardless of his reasons.
(Page 8)
15 This case required no issues of credibility to be balanced and is one of those cases where an appellate judge is in as good a position as a Magistrate to assess the case. In view of my conclusion that incorporation is a matter of fact, and that the averment provision was a sufficient evidential basis for a finding, I am satisfied beyond reasonable doubt that the elements of the offence contained in the averment and Notice, Exhibit A, establish the offence.
16 Finally, a court may nevertheless dismiss an appeal if it considers there is no substantial miscarriage of justice. I first note that counsel represented Mammoth Holdings Pty Ltd in the proceedings in the court below. Secondly, in an affidavit in support of the appeal sworn by Aaron Grant Caratti on 9 March 2005 it is stated by par 1:
"I am a director of Mammoth Investments Pty Ltd which was the defendant in Complaint No. 50172 of 2004 in the Court of Petty Sessions at Perth and make this affidavit in support of an application by the applicant defendant for leave to appeal against the judgment of the magistrate..."
17 In April 2005 Mr Caratti was a director of Mammoth Investments Pty Ltd. It would seem remarkable then, that there is any miscarriage of justice in the result in any event.
18 Some grounds of appeal raise questions of great merit. The first two grounds of appeal are not of that character.
19 I turn now to the third ground of appeal which is as follows:
"C. The learned Magistrate erred in law in exercising his discretion to include in the costs award to the Respondent a sum for the transportation from Adelaide and accommodation of an officer of the Australian Taxation Officer [sic] who was not called to give evidence at the trial."
20 This ground is obviously made out. I do not consider that the Magistrate gave any consideration to the exercise of the discretion. The transcript discloses that the prosecutor said to the Magistrate, in response to a question from him asking as to how much was being sought in total:
"MS INDERBRAEKT: My apologies - - is nearly $1,400 in costs associated with bringing Mr Salia over as a potential witness should that have been required from Adelaide, and his
(Page 9)
- flight and accommodation costs sir, he came over yesterday evening.
HIS WORSHIP: Mm hm.
MS INDERBRAEKT: I attempted last week to obtain admissions from - -
HIS WORSHIP: You don't have to explain issues to me.
MS INDERBRAEKT: Sir, sorry – thank you sir."
21 The Magistrate went on to address other orders not related to costs and then, after calling on counsel for Mammoth Investments Pty Ltd, this interchange occurred:
"MR DAVIES: …the prosecution has called a witness from the eastern states, sir just inquire as to why a video link might not have been appropriate and why the defendant should have to pay the costs when it was not seen fit to call the witness.
HIS WORSHIP: Mm, well video link is something that is often sensible, but a lot depends upon circumstances.
MR DAVIES: And can the prosecution claim costs of a witness that's seen fit not to call?
HIS WORSHIP: Yes, they can. There'll be a fine of $300, the order for costs to be in all the circumstances appropriate,…"
22 It is difficult, if not impossible, for the Magistrate to have come to a view as to the reasonableness of costs in the absence of some explanation. He deprived the prosecutor of the opportunity of giving the explanation. It is one thing where a witness has been called to give evidence. The Court can then immediately assess the relevance of the evidence and the materiality of the witness. Where the witness has not been called and costs are sought, then it may or may not be that those costs were reasonably incurred. In the circumstances, the Magistrate was required to do more than he did so the exercise of discretion miscarried.
23 The question then becomes what to do with the matter? The prosecution has this morning been given leave to file an affidavit of William Francis Roland Watts who is a Commonwealth public servant, employed as a prosecution officer with the Australian Taxation Office. I struck out some paragraphs of that affidavit but the balance of the
(Page 10)
- affidavit indicates effectively that it was Mr Watts' decision to arrange for Mr Salia to travel to Perth for the hearing to give certain evidence in relation to the sending of the Notice.
24 I have earlier outlined the portion of transcript whereby the Notice marked as Exhibit A was admitted by consent. This was after counsel for Mammoth Investments Pty Ltd advised the Magistrate that the prosecution was put to proof on four issues. It seems obvious that it would be necessary for somebody to prove the sending of the Notice. Mr Salia was that officer and worked in Adelaide. For those reasons I consider that his attendance was reasonable. Even though in the event of the concession it was not necessary to call him, the concession was only made at trial.
25 I therefore say little about the alternative submission of the respondent that Mr Salia may have been necessary to be called in rebuttal, but I cannot resist remarking that I would have thought that the prospects of calling him in rebuttal would have been very slim as clearly his evidence would be evidence that was required to be given in-chief.
26 However, it is not necessary to resolve the submission because the information that should have been allowed to be given to the Magistrate (but was not) has now been given to me and that information satisfies me that Mr Salia was a material witness whose attendance was reasonably necessary. I do not understand there to be any challenge particularly as to the quantum of the amount claimed.
27 Each of the grounds of appeal is dismissed.
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