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

1. 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.

1. 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.

1. 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. 

1. 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. 

1. The issues on the appeal are whether the appeal is within time on the basis the decision of the learned magistrate was made on 17 May 2005, the impact of the recent High Court decision in State of NSW and Ors v Commonwealth (aka Workplace Relations Challenge) and whether s 40(a) of the Fair Trading Act (Queensland) is invalid by virtue of s 109 of the Constitution.

Appeal Out of Time

1. Section 222(1) of the Justices Act (1886) provides that a complainant aggrieved by an order made by a justice in a summary way for an offence may appeal within one month after the date of the order.

1. The respondent submits that judgment on the question of the validity of the complaints was handed down on 17 May 2005.  On 10 April 2006 the learned magistrate made a formal order by consent as to the quantum of costs and did not otherwise on that day give a decision touching on the matter.   Therefore time in which to appeal ran from 17 May 2005.

1. In my opinion the learned magistrate on 17 May 2005 expressed his intention to dismiss the complaint.  After hearing submissions he may not have power to award costs he agreed to adjourn the proceedings to allow the point to be looked at.  He said it was his intention to dismiss the complaint but not formally at that stage.  On 10 April 2006 the learned magistrate said he had made a decision on 17 May 2005 that the charge “ought to be dismissed”.

1. In my opinion the learned magistrate is to be taken as having delayed dismissal of the complaints until the issue of the power to award costs was resolved.  That did not occur until 10 April 2006.  Therefore, the appeal is within time.

Recent Decision of High Court

1. I was referred by the respondent to those parts of the decision which it was submitted support the learned magistrate’s decision (para 188 and para 370). 

1. However this decision, as I understand it, is a decision dealing with the limits of the legislative power of the Commonwealth.  It does not impact on the question I have to decide.  That is, in the present matter, there is no question about the Commonwealth’s power to make the Trade Practices Act (TPA) and enact amendments to it. It is the amendments to the TPA which are said to lead to the invalidity of the Fair Trading Act (FTA).

1. Therefore, in my opinion the recent decision of the High Court does not support the learned magistrate’s decision.

Invalidity of Section 40(a) Fair Trading Act

1. Mr Tarczynski alleges the three offences the subject of the complaint were committed on or about 30 November 2001, on or about 28 November 2001 and on or about 19 November 2002 respectively.

1. Section 40(a) of the FTA provides:

“False or misleading representations – TPA s 53

A person shall not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or    services -

(a)        falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model, or have had a particular history or particular previous use;”

1. Section 75AZC of the TPA said to cause the conflict with s 40(a) of the FTA provides as follows:

“False or Misleading Representations

(1)   A corporation must not, in trade or commerce, in connection with the supply or possible supply of goods or services, or in connection with the promotion by any means of the supply or use of goods or services, do any of the following:

a.   Falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model, or have had a particular history or particular previous use;

…         Penalty: 10,000 penalty units.  

(2)    Subsection (1) is an offence of strict liability.”

1. Inconsistency may arise under s 109 of the Constitution in two ways. Firstly, as a result of direct inconsistency between a Commonwealth law and a State law. Secondly, because the Commonwealth law “covers the field”.

1. An examination of the learned magistrate’s reasons show that he proceeded on the basis of the second means by which inconsistency and therefore invalidity may arise.

1. Sir Owen Dixon in ex parte McLean (1930) 43 CLR 472 at 483 said:

“When the parliament of the Commonwealth and the parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and s 109 applies. That this is so is settled, at least when the sanctions they impose are diverse… But the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere co-existence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of the State to govern the same conduct or matter.”

1. In reaching his decision, the learned magistrate appears to have proceeded on the basis that the Commonwealth parliament’s intention by the TPA s 75AZC was “completely, exhaustively or exclusively” to be the law governing the conduct to which it was directed because of the absence in Part VC of the TPA in which

s 75AZC is to be found, of an equivalent of s 75, as found in Part 5 of the TPA.

Part 5 of that Act provides:-

“Saving of Other Laws and Remedies

75(1)     Except as provided by subsection (2), this part is not intended to exclude or limit the concurrent operation of any law of a State or Territory;

(2)   Where an act or omission of a person is both an offence against 79 and an offence under the law of a State or Territory and that person is convicted of either of those offences, he or she is not liable to be convicted of the other of those offences;

(3)   Except as expressly provided by this Part, nothing in this Part shall be taken to limit, restrict or otherwise affect any right or remedy a person would have had if this Part had not been enacted.”

1. Section 79 of the TPA as enacted provides:-

“A person who contravenes a provision of Part V other than s 52 is guilty of an offence punishable on conviction –

(a)        in the case of a person not being a body corporate – by a fine not exceeding $10,000 or by imprisonment for a period not exceeding six months;  or

(b)        in the case of a person being a body corporate – by a fine not exceeding $50,000.”

1. However, when the first two of the alleged offences were committed, Part VC in which s 75AZC is to be found was not then part of the legislation. Part VC was inserted into the TPA by the Treasury Legislation Amendment (Application ofCriminal Code) Act (No. 1) (2001) – Schedule 1 (Items 240-290) only. That Act received assent on 28 April 2001. Relevantly, s 2(34) of the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1)( 2001) provided as follows:

“(4)       The remaining items of Schedule 1 to this Act commence on the day specified in subsection 2.2(2) of the Criminal Code.”

The specified day was 15 December 2001.

1. Therefore, the basis on which the learned magistrate found inconsistency and therefore invalidity does not apply with respect to the first two charges. The appeal is allowed with respect to the first two complaints.

1. However, if I am wrong about the timing of the amending legislation upon the circumstances of the complaints alleging offences “on or about” certain dates, it is necessary to consider whether all three complaints are invalid because of inconsistency because of the FTA s40(a) and the TPA s 75AZC.

1. Even where the penalty differs, as is the case in the present matter, it does not necessarily follow there is invalidity because of the operation of s 109 (R v Winneke; ex parte Gallagher (1982) 152 CLR 211, 233 and 244). Further, the mere fact that the Commonwealth and State prescribe different penalties for substantially the same conduct, and that the conduct proscribed by the two is not the same, is insufficient to establish an inconsistency within s 109. It is necessary to inquire whether the Commonwealth statute in prescribing the rule to be observed, evinces an intention to cover the subject matter to the exclusion of any other law (McWaters v Day (1989) 168 CLR 289).

1. I was referred by counsel for the appellant to Section 4C of the Crimes Act 1914 (Cth) which provides by subsection 2:

“2      Where an act or omission constitutes an offence under both:

(a)        a law of the Commonwealth and a law of a State;

(b)        a law of the Commonwealth and a law of a Territory;

and the offender has been punished for that offence under the law of the State or the law of the Territory, as the case may be, the offender shall not be liable to be punished for the offence under the law of the Commonwealth.”

1. I accept therefore s 4C of the Crimes Act anticipates circumstances where an act or omission can constitute an offence under both the law of the Commonwealth and the law of a State or Territory.  

1. I was also referred by counsel for the appellant to the explanatory memorandum to the Treasury Legislation Amendment (Application of Criminal Code) Bill (2000) which, when enacted became the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1)(2001).  In the memorandum the following statement appears:

“Trade Practices Act 1974
The consumer protection provisions of the Trade Practices Act 1974 (the TPA) have been mirrored in State and Territory fair trading legislation. The following amendments to those provisions of the TPA attempt to give effect to the requirements of the Criminal Code Act 1995 (the Code), yet retain the substantive effect of the existing provisions, in order to maintain the harmonised scheme of national consumer protection laws.
The TPA currently provides that a criminal prosecution may be brought against a party that contravenes Division 1 or Division 1A of Part V of the TPA. An individual may also bring a civil action against a party that contravenes a provision within Divisions 1 or 1A of Part V of the TPA. A new Part (Part VC) will be inserted into the TPA. This will divide this present civil and criminal regime between the current Part V and the new Part VC respectively. Part V will retain the core contraventions which give rise to civil actions (and a small number of pre-existing criminal provisions). The new Part VC will establish a separate criminal consumer protection regime within the TPA, which will replicate the provisions currently with Division 1 and 1A of Part V of the Act but which gives effect to the Code. Statutory and judicial interpretation of the sections within Division 1 and 1A of Part V indicate that many of the provisions operate as provisions of strict liability but there are some provisions which require proof of a fault or mental element. In accordance with the requirements of the Code, the new Part VC seeks to maintain the current statutory and judicial interpretation which applies to the consumer protection provision in Part V, but re-drafts the provisions to clearly identify any fault elements applicable to each offence.”

1. In my opinion, s 4C of the Crimes Act and this memorandum support the appellant’s submission that the amendments to the TPA to introduce s 75 AZC into the Act did not intend any disruption to the “harmonised scheme” of State consumer protection laws.

1. In my opinion s 75AZC of the TPA was not intended to “cover the field”. Therefore, there is no inconsistency between s 40(a) of the FTA and s 75AZC of the TPA.

1. In my opinion the learned magistrate erred when he found s 40(a) of the FTA to be invalid by reason of the operation of s 109 of the Commonwealth Constitution. The complaints against Terrabay should not have been dismissed.

1. I allow the appeal and set aside the orders made by the learned magistrate on 17 April 2006 which are taken to include the making of an order that the complaints be dismissed and I remit the matter to the Magistrates Court for the Magistrates Court to enter up all necessary adjournments and to proceed and hear and determine the complaints according to law.