State of Qld v Ward - [2003] QCA 366

SUPREME COURT OF QUEENSLAND

CITATION:

State of Qld v Ward & Anor [2003] QCA 366

PARTIES:

STATE OF QUEENSLAND
(plaintiff/respondent)
v
TIMOTHY JOHN WARD
(first defendant/appellant)
SHARK FINANCIAL SERVICES PTY LTD
ACN 083 322 132
(second defendant/appellant)

FILE NO/S:

Appeal No 6383 of 2002
SC No 5515 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 August 2003

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2003

JUDGES:

McPherson and Jerrard JJA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. By consent, the appeal be allowed to the extent of setting aside the orders imposed on 14 June 2000 by order 2(a)(vii) and (xii) and 2(b)(iv) and (xiii) of the orders made that day
2. Otherwise, the appeal is dismissed with costs to be assessed on the standard basis

CATCHWORDS:

CONSUMER CREDIT – CREDIT PROTECTION – FINANCE BROKERS AND CREDIT PROVIDERS – DISCIPLINARY ACTION – where appellants prohibited under s 23 Consumer Credit (Queensland) Act 1994 (Qld) from providing consumer credit – where appellants do not complain about prohibitions imposed – where learned trial judge found that appellants had provided credit unfairly and had repeatedly engaged in unjust conduct – where conduct involved extortionate interest rates and threats of unlawful conduct – where learned trial judge relied on this unjust conduct in making the prohibition orders – whether unjust conduct relevant to imposition of civil penalty

CONSUMER CREDIT – CREDIT PROTECTION – FINANCE BROKERS AND CREDIT PROVIDERS – UNJUST CONDUCT BY – where learned trial judge found that appellants had provided credit unfairly and had repeatedly engaged in unjust conduct – where civil penalties imposed under s 102(4) Consumer Credit Code (Qld) – where appellants contend that learned trial judge erred in taking into account the unjust conduct when imposing the civil penalties – where no challenge made to the categorisation of the appellants’ conduct as “unjust” – whether s 102(4) makes irrelevant to the imposition of a civil penalty the unjust conduct of the appellants

CONSUMER CREDIT – CREDIT PROTECTION – GENERAL – OPERATION OF CREDIT LEGISLATION – INTERPRETATION AND DEFINITIONS – LOAN CONTRACT – where appellants loaned money for “business or investment purposes” – where appellants effectively forced clients into signing documents declaring such purposes – where appellants exploited a loophole in credit legislation – where client files demonstrate that professed purposes were false – where learned trial judge found that the appellants had repeatedly and systematically contravened key requirements of the Consumer Credit Code (Qld) – whether purpose of credit legislation is to regulate conduct of credit providers or to protect borrowers

STATUTES – OPERATION AND EFFECT OF STATUTES – PARTICULAR CLASSES OF STATUTE – PENAL – PUNISHMENT AND PENALTY – where appellants contend that the criminal standard of proof should have been used in imposing the civil penalty – where sections of the Consumer Credit Code (Qld) distinguish between the imposition of 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: [2003] QCA 366
Decision Date: 29 August 2003

CaseChat Overview and Summary

In the appeal before the Court, the State of Queensland sought to enforce prohibition orders and civil penalties against the appellants, who were found to have engaged in unfair credit practices. The trial judge had concluded that the appellants had provided credit unfairly and had repeatedly engaged in unjust conduct, which included charging extortionate interest rates and making threats of unlawful conduct. The appellants did not challenge the characterisation of their conduct as unjust but argued that such conduct should not have been considered in imposing civil penalties. They further contended that the criminal standard of proof should have applied and that the total penalties imposed were excessive.

The legal issues before the Court were whether the trial judge erred in considering the appellants' unjust conduct when imposing civil penalties, and whether the criminal standard of proof should have been applied in civil proceedings. Additionally, the Court had to determine if the penalties imposed were excessive in light of the objectives of the Consumer Credit Code. The Court considered the statutory provisions, which distinguished between civil penalties and criminal offences, and recognised the existence of civil proceedings to enforce penalties.

The Court found that the trial judge did not err in considering the appellants' unjust conduct when imposing civil penalties, as the statute did not render such conduct irrelevant. The Court also held that the criminal standard of proof was not applicable in civil penalty proceedings, and that the penalties imposed were not excessive. The Court concluded that the total penalties, while significant, were not manifestly disproportionate to the objectives of the Consumer Credit Code, given the repeated and systematic contravention of key provisions by the appellants.

The Court allowed the appeal to the extent of setting aside certain orders but dismissed the appeal in all other respects. Costs were to be assessed on the standard basis.

Orders

Orders of the court

1. By consent, the appeal be allowed to the extent of setting aside the orders imposed on 14 June 2000 by order 2(a)(vii) and (xii) and 2(b)(iv) and (xiii) of the orders made that day

2. Otherwise, the appeal is dismissed with costs to be assessed on the standard basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	State of Qld v Ward & Anor [2003] QCA 366
PARTIES:	STATE OF QUEENSLAND (plaintiff/respondent) v TIMOTHY JOHN WARD (first defendant/appellant) SHARK FINANCIAL SERVICES PTY LTD ACN 083 322 132 (second defendant/appellant)
FILE NO/S:	Appeal No 6383 of 2002 SC No 5515 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	29 August 2003
DELIVERED AT:	Brisbane
HEARING DATE:	3 June 2003
JUDGES:	McPherson and Jerrard JJA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. By consent, the appeal be allowed to the extent of setting aside the orders imposed on 14 June 2000 by order 2(a)(vii) and (xii) and 2(b)(iv) and (xiii) of the orders made that day 2. Otherwise, the appeal is dismissed with costs to be assessed on the standard basis
CATCHWORDS:	CONSUMER CREDIT – CREDIT PROTECTION – FINANCE BROKERS AND CREDIT PROVIDERS – DISCIPLINARY ACTION – where appellants prohibited under s 23 Consumer Credit (Queensland) Act 1994 (Qld) from providing consumer credit – where appellants do not complain about prohibitions imposed – where learned trial judge found that appellants had provided credit unfairly and had repeatedly engaged in unjust conduct – where conduct involved extortionate interest rates and threats of unlawful conduct – where learned trial judge relied on this unjust conduct in making the prohibition orders – whether unjust conduct relevant to imposition of civil penalty CONSUMER CREDIT – CREDIT PROTECTION – FINANCE BROKERS AND CREDIT PROVIDERS – UNJUST CONDUCT BY – where learned trial judge found that appellants had provided credit unfairly and had repeatedly engaged in unjust conduct – where civil penalties imposed under s 102(4) Consumer Credit Code (Qld) – where appellants contend that learned trial judge erred in taking into account the unjust conduct when imposing the civil penalties – where no challenge made to the categorisation of the appellants’ conduct as “unjust” – whether s 102(4) makes irrelevant to the imposition of a civil penalty the unjust conduct of the appellants CONSUMER CREDIT – CREDIT PROTECTION – GENERAL – OPERATION OF CREDIT LEGISLATION – INTERPRETATION AND DEFINITIONS – LOAN CONTRACT – where appellants loaned money for “business or investment purposes” – where appellants effectively forced clients into signing documents declaring such purposes – where appellants exploited a loophole in credit legislation – where client files demonstrate that professed purposes were false – where learned trial judge found that the appellants had repeatedly and systematically contravened key requirements of the Consumer Credit Code (Qld) – whether purpose of credit legislation is to regulate conduct of credit providers or to protect borrowers STATUTES – OPERATION AND EFFECT OF STATUTES – PARTICULAR CLASSES OF STATUTE – PENAL – PUNISHMENT AND PENALTY – where appellants contend that the criminal standard of proof should have been used in imposing the civil penalty – where sections of the Consumer Credit Code (Qld) distinguish between the imposition of a…