Schomburgk v Poker No. Dcaat-97-92 Judgment No. D3795 - [1998] SADC 3990

David Colin Schomburgk v Johannes Gerhardus Poker

D3795

Administrative Appeals Jurisdiction

His Honour Judge Sulan

This is an application brought by the National Crime Authority (“the Authority”) seeking to set aside a subpoena issued by the District Court requiring production of certain documents. I shall deal with the specific documents sought later in the judgment.

The circumstances leading to the issue of the subpoena were that on the 16th May, 1997, David Colin Schomburgk (“the complainant”), an officer of the office of Consumer and Business Affairs, issued a summons alleging that there is proper cause for disciplinary action against Johannes Gerhardus Poker (“the defendant”). It is alleged that between November 1992 and December 1996 the defendant acted contrary to the Second Hand Vehicle Dealers Act, 1995, (S.A.), (“the Act”), in the course of conducting the business of a dealer.
The Act regulates dealing in second hand motor vehicles. Part 2 of the Act deals with the granting of licences. Section 7 of the Act provides :

“A person must not carry on the business or hold himself or herself out as a dealer unless licensed under this Act.
Penalty Division 5 fine.”
The Acts Interpretation Act, 1915, as amended, deals with fines and penalties. A division 5 fine is a fine not exceeding $8,000 (section 28A). Section 29 provides that when a fine or penalty is imposed under any Act, the Act will be taken to provide that the fine or penalty, when recovered, must be paid to the Treasurer of the State and form part of General Revenue. By virtue of section 30(2) penalty includes punishment. Hence contravention of a section or subsection that has the word “penalty” at the foot creates an offence punishable on conviction by a penalty not exceeding the penalty so set out.

It follows that a breach of section 7 of the Act is an offence punishable on conviction by a fine of up to $8,000.

The Act also provides for penalties in respect of breaches of various sections including those relating to registration of business premises, the displaying of various notices, the form of contract to be used and various notices required to be provided to purchasers. Provisions relating to auctions, require notices to be displayed giving detailed information about the vehicles to be offered for sale. Failure to comply with the provisions is dealt with by way of penalty. In other words, it is an offence to fail to comply and the failure to do so may result in a fine.

Part 5 of the Act deals with discipline. Section 26 defines “dealer” to mean :

“(a)... a dealer or former dealer required to be licensed under this Act or a corresponding previous enactment (whether or not currently or previously licensed); or
(b).... a licensee (whether or not carrying on business as a dealer)”

.................. Section 3 states a dealer is a person who carries on the business of selling second hand vehicles.

I set out below other relevant provisions of the…

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.

Continue reading Schomburgk v Poker No. Dcaat-97-92 Judgment No. D3795

Details

AGLC: Schomburgk v Poker No. Dcaat-97-92 Judgment No. D3795 [1998] SADC 3990
Case: [1998] SADC 3990
Decision Date: 17 April 1998

CaseChat Overview and Summary

The case of Schomburgk v Poker involves a dispute between David Colin Schomburgk and Johannes Gerhardus Poker, where Schomburgk, an officer of the office of Consumer and Business Affairs, issued a summons against Poker for allegedly acting contrary to the Second Hand Vehicle Dealers Act, 1995, (S.A.). Poker, in turn, issued a subpoena to the National Crime Authority seeking the production of certain documents. The District Court, presided by His Honour Judge Sulan, was required to decide whether the National Crime Authority was exempt from producing these documents under section 51 of the National Crime Authority Act, 1984, (Cth) and whether the subpoena was a "fishing" expedition.

The court determined that section 51 of the NCA Act, which provides immunity from producing documents to the Authority or its officers, does not apply to prohibit the court from issuing or enforcing the subpoena. The court held that the ordinary rules which apply to the issue and enforcement of a court’s subpoena powers should apply in cases when, as a result of an investigation under the NCA Act, proceedings are brought and prosecuted by any relevant agency. The court concluded that it was not the intention of the NCA Act to deprive parties of their right to seek documents relevant to the issues. The court further found that the documents sought in paragraphs 2 and 5 of the subpoena were of evidentiary value in the proceedings and that the subpoena was not a "fishing" expedition. Therefore, the court dismissed the application to set aside the subpoena and ordered the production of the documents sought in paragraphs 2 and 5 of the subpoena.

Orders