PENZAR PTY LTD -v- COMMISSIONER FOR CONSUMER PROTECTION [2012] WASC 435

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 435
Case No:	SJA:1035/2012	Heard:	10 AUGUST 2012
Coram:	HALL J	Delivered:	16/11/12
No of pages:	16	Judgment Part:	1 of 1
Result:	Appeal allowed Conviction set aside Charge remitted to the Magistrates Court for a re-trial
Category:	B
PDF Version

Parties:	PENZAR PTY LTD COMMISSIONER FOR CONSUMER PROTECTION
Catchwords:	Criminal law Appeal against conviction Offence under Residential Tenancies Act 1987 (WA) Ignorance of the law Whether intent to defeat, evade or prevent operation of the law requires knowledge of the wrongfulness of the act Whether magistrate properly considered elements of the offence
Legislation:	Criminal Code (WA), s 22 Residential Tenancies Act 1987 (WA), s 82
Case References:	Commonwealth v Baume (1905) 2 CLR 405 Iannella v French [1968] HCA 14; (1968) 119 CLR 84 Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Question of Law Reserved (No 2 of 1998) (1998) 70 SASR 502; (1998) 101 A Crim R 317 Shire of York v Rosmill Pty Ltd [2010] WASC 189 The Queen v Taib; Ex parte Director of Public Prosecutions (Cth) [1999] 2 Qd R 649; (1998) 105 A Crim R 10

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : PENZAR PTY LTD -v- COMMISSIONER FOR CONSUMER PROTECTION [2012] WASC 435 CORAM : HALL J HEARD : 10 AUGUST 2012 DELIVERED : 16 NOVEMBER 2012 FILE NO/S : SJA 1035 of 2012 BETWEEN : PENZAR PTY LTD

Appellant

AND

COMMISSIONER FOR CONSUMER PROTECTION

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE B A LANE

File No : PE 41936 of 2011

Catchwords:

Criminal law - Appeal against conviction - Offence under Residential Tenancies Act 1987 (WA) - Ignorance of the law - Whether intent to defeat, evade or prevent operation of the law requires knowledge of the wrongfulness of the act - Whether magistrate properly considered elements of the offence

(Page 2)

Legislation:

Criminal Code (WA), s 22

Residential Tenancies Act 1987 (WA), s 82

Result:

Appeal allowed

Conviction set aside
Charge remitted to the Magistrates Court for a re-trial

Category: B

Representation:

Counsel:

Appellant : Mr P G Donovan

Respondent : Dr E M Heenan

Solicitors:

Appellant : MDS Legal

Respondent : Department of Commerce

Case(s) referred to in judgment(s):

Commonwealth v Baume (1905) 2 CLR 405
Iannella v French [1968] HCA 14; (1968) 119 CLR 84
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Question of Law Reserved (No 2 of 1998) (1998) 70 SASR 502; (1998) 101 A Crim R 317
Shire of York v Rosmill Pty Ltd [2010] WASC 189
The Queen v Taib; Ex parte Director of Public Prosecutions (Cth) [1999] 2 Qd R 649; (1998) 105 A…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] WASC 435
Decision Date: 16 NOVEMBER 2012

CaseChat Overview and Summary

The case of Penzar Pty Ltd versus the Commissioner for Consumer Protection involves an appeal against a conviction under the Residential Tenancies Act 1987 (WA). The appellant, Penzar Pty Ltd, was found guilty of contravening certain provisions of the Act, which relate to the unlawful termination of a residential tenancy. The appeal centred on the question of whether the appellant had the requisite intent to contravene the Act and whether the magistrate correctly assessed the elements of the offence.

The primary legal issue before the court was whether ignorance of the law could be a defence against a charge of contravening the Residential Tenancies Act, and if the intent to defeat, evade, or prevent the operation of the law requires knowledge of the wrongfulness of the act. The court had to determine whether the magistrate appropriately considered the appellant's intent and knowledge when making the decision to convict. The appellant argued that they had no intent to contravene the Act and that they genuinely believed their actions were lawful.

The court found that the magistrate did not sufficiently address the issue of the appellant's intent and knowledge when convicting Penzar Pty Ltd. It was established that the requisite intent for the offence does not necessarily require knowledge of the wrongfulness of the act, but rather an intention to act in a way that contravenes the law. The court held that the magistrate failed to properly consider the appellant's intent and the elements of the offence, leading to an improper conviction. Consequently, the appeal was allowed, the conviction was set aside, and the charge was remitted to the Magistrates Court for a re-trial.

Orders

Orders of the court

Appeal allowed

Conviction set aside

Charge remitted to the Magistrates Court for a re-trial

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

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