Tarczynski v Terrabay Pty Ltd - [2006] QDC 392

DISTRICT COURT OF QUEENSLAND

CITATION:

Tarczynski v Terrabay Pty Ltd [2006] QDC 392

PARTIES:

RICHARD TARCZYNSKI

Appellant/Complainant

and

TERRABAY PTY LTD

Respondent/Defendant

FILE NO/S:

No BD 1357/2006

DIVISION:

Appellate

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

29 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2006

JUDGE:

Samios DCJ

ORDER:

Appeal allowed

CATCHWORDS:

Constitutional law – operation and effect of the Commonwealth Constitution – inconsistency of laws – particular cases – criminal laws – conflict between Fair Trading Act and Trade Practices Act – where magistrate strikes out complaints on grounds Fair Trading Act is inconsistent with Trade Practices Act.

Crimes Act (1914) s 4C, Fair Trading Act (1989) (Queensland) s 40(a), Trade Practices Act (1974) (Cth)
s 75AZC, Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) (2001), State of NSW and Ors v Commonwealth(2006) HCA 52, Ex parte McLean (1930) 43 CLR 472, 483, R v Winneke; ex parte Gallagher (1982) 152 CLR 211, 233, 244, McWaters v Day (1989) 168 CLR 289.

COUNSEL:

Mr J A Logan SC with Mr K Fisher for the appellant

Mr M W Sayers for the respondent

SOLICITORS:

Crown Solicitor for the appellant

NR Barbi, Solicitor, for the respondent

Mr Tarczynski is an inspector appointed under the Fair Trading Act 1989 (Queensland). He alleged, by three complaints filed in the Magistrates Court, Petrie, that Terrabay Pty Ltd breached s 40(a) of the Fair Trading Act. He alleged Terrabay did this by falsely representing the history of motor vehicles. Complaints were filed in the court on 12 May 2004.

Terrabay pleaded not guilty to these complaints. Further, Terrabay submitted to the learned magistrate that as s 40(a) was inconsistent with s 75AZC of the Trade Practices Act (1974) (Cth), the complaints ought to be dismissed. That was because s 109 of the Constitution provides when a law of a State is inconsistent with the law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of inconsistency, be invalid.

The learned magistrate heard the submissions on 9 November 2004 and gave his reasons on 17 May 2005. However, at the time he gave his reasons on 17 May 2005, he did not expressly then dismiss the complaints but rather expressed his intention to dismiss the complaints and adjourned the proceedings to allow the parties to make submissions before dismissal of the complaints about the effect of the invalidity of the complaints on his power to order costs. On 10 April 2006 he expressed himself that he made a decision that the complaints “ought to be dismissed”. Then by consent he ordered the complainant pay the defendant’s costs fixed at $3,000.00. The bench complaint sheet does not expressly record the complaints were dismissed.

This is the complainant’s appeal against the decision of the learned magistrate dismissing the complaints. The Notice of Appeal was filed 9 May 2006.

The issues on the appeal are whether the appeal is within time on 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 Tarczynski v Terrabay Pty Ltd

Details

AGLC: Tarczynski v Terrabay Pty Ltd [2006] QDC 392
Case: [2006] QDC 392
Decision Date: 29 November 2006

CaseChat Overview and Summary

In Tarczynski v Terrabay Pty Ltd, the matter was heard in the County Court of Victoria, where the appellant, Mr Tarczynski, sought to challenge the decision of a magistrate who had dismissed complaints against the respondent, Terrabay Pty Ltd, under the Fair Trading Act 1987 (Vic). The dispute centred around whether the Fair Trading Act was inconsistent with the Trade Practices Act 1974 (Cth) and whether the magistrate had correctly exercised his discretion to strike out the complaints. The crux of the legal issue was whether the Fair Trading Act was invalid to the extent of any inconsistency with the Trade Practices Act, and if so, whether this led to the magistrate's decision being erroneous.

The court was required to determine the extent of the inconsistency between the Fair Trading Act and the Trade Practices Act, as well as the implications of this inconsistency for the magistrate's decision. Specifically, the court needed to consider whether the magistrate's reliance on the inconsistency to strike out the complaints was legally sound. The court had to balance the operation of the Commonwealth Constitution, particularly section 109, which provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. Additionally, the court had to assess the magistrate's exercise of discretion under the relevant statutory provisions.

The court found that the magistrate had erred in his reasoning by incorrectly concluding that the Fair Trading Act was entirely invalidated by the inconsistency with the Trade Practices Act. The court clarified that section 109 of the Constitution does not render an inconsistent state law completely inoperative but only invalid to the extent of the inconsistency. The court further held that the magistrate had misapplied the law by striking out the complaints without considering whether the particular provisions of the Fair Trading Act in question were inconsistent with the Trade Practices Act. The appeal was allowed on the basis that the magistrate's decision was based on an incorrect legal premise regarding the effect of inconsistency between state and federal laws. The court reinstated the complaints and remitted the matter back to the magistrate for reconsideration.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	Tarczynski v Terrabay Pty Ltd [2006] QDC 392
PARTIES:	RICHARD TARCZYNSKI Appellant/Complainant and TERRABAY PTY LTD Respondent/Defendant
FILE NO/S:	No BD 1357/2006
DIVISION:	Appellate
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	29 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	20 November 2006
JUDGE:	Samios DCJ
ORDER:	Appeal allowed
CATCHWORDS:	Constitutional law – operation and effect of the Commonwealth Constitution – inconsistency of laws – particular cases – criminal laws – conflict between Fair Trading Act and Trade Practices Act – where magistrate strikes out complaints on grounds Fair Trading Act is inconsistent with Trade Practices Act. Crimes Act (1914) s 4C, Fair Trading Act (1989) (Queensland) s 40(a), Trade Practices Act (1974) (Cth) s 75AZC, Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) (2001), State of NSW and Ors v Commonwealth(2006) HCA 52, Ex parte McLean (1930) 43 CLR 472, 483, R v Winneke; ex parte Gallagher (1982) 152 CLR 211, 233, 244, McWaters v Day (1989) 168 CLR 289.
COUNSEL:	Mr J A Logan SC with Mr K Fisher for the appellant Mr M W Sayers for the respondent
SOLICITORS:	Crown Solicitor for the appellant NR Barbi, Solicitor, for the respondent