Citation: Kew v Commissioner of Fair Trading and Robinson; Robinson v Kew [2007] NSWSC 394
Court: Supreme Court of New South Wales, Common Law Division
Date: 1 May 2007
Judge(s): Adams J
Background
A Department of Fair Trading officer issued Court Attendance Notices against a former real estate agent employee, alleging he had fraudulently completed rental bond refund claim forms to redirect bond money into his own bank account. The charges were brought under sections 300(1) and 300(2) of the Crimes Act 1900, which concern making and using false instruments. The notices described the prosecutor as a "public officer for and on behalf of the Commissioner for Fair Trading."
When the matter came before the Local Court, the defendant challenged the authority of the prosecutor to bring criminal proceedings under the Crimes Act at all. The magistrate rejected that challenge and found the proceedings validly commenced. The defendant then appealed to the Supreme Court.
The proceedings became procedurally complex. Grove J had earlier made declarations confirming that the prosecutor, as initially identified, lacked authority to act. A subsequent attempt to amend the Court Attendance Notices to substitute the Commissioner for Fair Trading as the nominal prosecutor produced further dispute, and that dispute formed a substantial part of the litigation before Adams J.
Legal Issues
- Whether the Commissioner for Fair Trading had power under the Fair Trading Act 1987 to prosecute offences arising under the Crimes Act 1900.
- Whether a prosecution brought by a departmental officer described as acting "for and on behalf of" the Commissioner amounted to a public or private prosecution, and what consequences flowed from that characterisation.
- Whether the officer's prosecution was authorised by section 14 of the Criminal Procedure Act 1986.
- Whether the delegation by the Commissioner to the officer was valid, and whether the officer was acting in an official capacity.
- Whether, if the original commencement was flawed in some respect, proposed amendments to the Court Attendance Notices should have been permitted.
- Whether the proceedings constituted an abuse of process warranting a permanent stay.
Decision
Adams J upheld the validity of the proceedings and found that the proposed amendments to the notices should have been allowed by the Local Court. The core holding was that the commencement of the prosecutions was valid despite the questions raised about the precise capacity in which the prosecutor was described.
The judgment examined the distinction between public and private prosecutions and the significance of whether a departmental officer acts in an official capacity. Declarations had already been made by Grove J confirming that the prosecutor, as described, lacked specific delegated authority to act. However, Adams J considered whether this defect was fatal to the proceedings or was capable of correction by amendment.
On the abuse of process argument, Adams J rejected the submission that the circumstances surrounding the delegation, and the way the prosecutor's status had been described to the court, warranted a permanent or temporary stay. The judge accepted evidence from a departmental witness and found that there had been no deliberate attempt to mislead the Local Court, even though the court had been implicitly misled about the precise status of the delegation.
Adams J did note that the Commissioner's shifting positions on the identity and capacity of the prosecutor carried potential costs consequences, and reserved that question for further submissions.
Orders Made
- The parties were directed to prepare short minutes of orders to give effect to the judgment's determinations and to address procedural issues for the future conduct of the prosecutions.
- Liberty to apply on three days' notice for further directions, failing agreement on short minutes.
- The question of costs was reserved pending further submissions.
Key Takeaways
- The Supreme Court confirmed that the commencement of summary criminal proceedings by a Fair Trading officer was valid, even where questions arose about the precise terms of any delegation from the Commissioner.
- A declaration that a prosecutor lacked specific delegated authority to act "for and on behalf of" the Commissioner did not automatically invalidate the underlying proceedings, where amendment remained available as a remedy.
- Under the legislation as it stood at the date of the relevant proceedings, the court determined the issues without relying on subsequent amendments to the Criminal Procedure Act 1986, which introduced a presumption that a person purporting to act as a public officer acts in an official capacity.
- Implicit misleading of a court about a prosecutor's precise delegated status did not constitute an abuse of process where the evidence showed no deliberate intent to mislead.
- Repeated changes by a prosecuting authority to its position on the identity and capacity of the prosecutor may attract adverse costs consequences, even where the proceedings themselves are found to be valid.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 300(1) and 300(2)
- Criminal Procedure Act 1986 (NSW), s 14, s 173
- Fair Trading Act 1987 (NSW)
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW)
- Interpretation Act 1987 (NSW)
- Public Sector Employment and Management Act 2002 (NSW)
- Landlord and Tenant (Rental Bonds) Act 1977 (NSW)
- Crimes and Courts Legislation Amendment Act 2006 (NSW)
Cases:
- Garrett v Freeman [2006] NSWCCA 278