Kang v Bishop & Ors

The evidence

1. At the hearing of the motion, Ms Seiden SC appeared with Mr Johnson for the plaintiff and Ms Phillips appeared on behalf of Mr Bishop and the Secretary, (collectively "the defendants"). The third defendant, the Local Court of New South Wales, has filed a submitting appearance.
2. The plaintiff read three affidavits of the plaintiff's solicitor, Kieran Kelly, sworn on 2 June 2017, 26 July 2017 and 11 August 2017 respectively. A document described as "Agreed Facts" was also tendered. It was accepted that the affidavit evidence of Mr Kelly goes no further than proving the matters set out in the Agreed Facts.
3. Counsel for the defendants submitted that, although the defendants accepted all of the matters set out in the Agreed Facts, that document alone was insufficient for the Court to determine the relief sought in the summons and further evidence would need to be adduced at the hearing. She submitted that the question of whether Mr Bishop was acting in an official capacity when he commenced the proceedings raised a question of mixed fact and law. In that regard, the defendants sought to read the affidavit of Mark Gabriel Nicoletti, sworn 26 July 2017, the affidavit of David Byrne, sworn 14 July 2017 (and tender exhibit DB1 to that affidavit) and the affidavit of Stephen French, dated 14 July 2017.
4. Counsel for the plaintiff objected to the defendants' evidence on the basis that it was irrelevant. She submitted that the court would not need to go to any of that evidence because of the narrow focus of the plaintiff's argument. I deferred consideration of the admissibility of the defendant's affidavits until after I had heard and considered the submissions. As will be seen below, I ultimately have not found it necessary to have regard to the defendants' affidavits in order to determine this application.

The Agreed Facts

1. The following facts are agreed between the parties. I have not repeated events already summarised above.
2. On 13 February 2015, Mr Bishop commenced a prosecution of Mr Kang in the Local Court of New South Wales by issuing Court Attendance Notices (CANs). Under the heading "Details of Prosecutor" in each of the CANs, the prosecutor's details were provided as "Jay Bishop, Public Officer" and the Department/organisation details were described as "NSW Fair Trading, Office of Finance and Services". Further CANs were issued in April 2015.
3. The CANs charge that Mr Kang committed various offences contrary to ss 192E and 192G of the Crimes Act and cl 151(1), Sch 1 of the Competition and Consumer Act 2010 (Cth) ("Australian Consumer Law"). The charges under the Australian Consumer Law were "back up" allegations to the Crimes Act.
4. On 22 February 2016, Mr Kang entered pleas of not guilty in respect of each of the offences. The prosecution was heard before his Honour, Local Court Magistrate Keady, at Parramatta Local Court on 15, 16, 17, 18 and 22 February 2016 and 22, 23 and 24 May 2016.
5. On 29 November 2016, Magistrate Keady delivered his judgment and reasons in which the offences for breaches of ss 192E and 192G of the Crimes Act were found to be proven. The offences for breaches of cl 151 of the Australian Consumer Law were withdrawn by the prosecution in light of the findings of guilt in relation to the Crimes Act offences. The proceedings were adjourned until 28 March 2017 for hearing in respect of sentence.
6. Mr Bishop is, and at all relevant times was, an employee of the NSW Public Service who has worked within the division of the Department administered by the Secretary known as NSW Fair Trading ("Fair Trading").On 13 May 2013, he was appointed as an investigator under s 18 of the FTA and at all relevant times has been an investigator under that section.
7. On 14 October 2013, the Secretary (then the Commissioner for Fair Trading) delegated to Mr Bishop (and other investigators under s 18(1) of the FTA), pursuant to s 8(1)(a) of the FTA, his functions to do many things, including his functions under s 68(1) of the FTA, which can be briefly described as the function of taking and prosecuting proceedings for offences against the FTA. Mr Bishop was not at any time expressly delegated by any instrument under s 8 of the FTA any function conferred on the Secretary under any statute to take and prosecute proceedings for offences under the Crimes Act.
8. In the period from 1 July 2015 to 30 June 2017, officers of Fair Trading have prosecuted approximately 34 persons with a total of 135 offences under the Crimes Act. In respect of at least 25 of them, convictions were recorded which resulted in the imposition of fines, good behaviour bonds, community service orders or imprisonment. In each of the at least 25 prosecutions leading to conviction, the procedure adopted to commence those prosecutions was relevantly the same as that which was adopted to commence the prosecution of Mr Kang.
9. Before setting out the submissions of each party, it is convenient to extract the relevant statutory provisions upon which this application is to be considered.
10. Section 14 of the CPA provides: "Common informer A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons."
11. Sections 172-174 of the CPA provide: "172 Commencement of proceedings by court attendance notice (1) Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division. (2) A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence. (3) A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State. 173 Commencement of proceedings by police officer or public officer If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division. 174 Commencement of private prosecutions (1) If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division. (2) A registrar must not sign a court attendance notice if: (a) the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or (b) the registrar is of the opinion that the notice is not in the form required by or under this Act, or (c) the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice. (3) If a registrar refuses to sign a court attendance notice proposed to be issued by any such person, the question of whether the court attendance notice is to be signed and issued is to be determined by the court on application by the person."
12. Subsection 3(1) of the CPA provides: "3 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: ... public officer means any of the following persons, if acting in an official capacity: (a) an employee in the Public Service or the NSW Police Force…"
13. Subsection 3(3) of the CPA provides: "In the absence of evidence to the contrary, a person specified in paragraphs (a)-(f) of the definition of public officer who purports to exercise a function as a public officer under this Act is presumed to be acting in an official capacity."
14. "Public Service" is defined in s 21(1) of the Interpretation Act 1987 (NSW) as "the Public Service referred to in the Government Sector Employment Act 2013." That Act defines "Public Service" in s 3(1) as "the Public Service of New South Wales referred to in Part 4" of that Act. Section 20 (in Part 4 of that Act) provides: "The Public Service of New South Wales consists of those persons who are employed under this Part by the Government of New South Wales in the service of the Crown."
15. Section 8 of the FTA provides: "Delegation by Secretary (1) The Secretary may delegate to any person or committee the exercise of any of the functions conferred or imposed on the Secretary by or under the following: (a) this Act, (h) any other Act administered by the Minister, (i) any other Act prescribed by the regulations for the purposes of this section (or the prescribed provisions of any other prescribed Act), (j) the regulations under any such Act. (2) A delegate of the Secretary may sub-delegate a function if authorised in writing to do so by the Secretary. (3) This section does not apply to the functions of the Secretary under section 79A."
16. Section 9 of the FTA provides: "Functions of Secretary (1) The Secretary may: (a) advise persons in relation to the provisions of this Act, and of any other legislation administered by the Minister, and take action for remedying infringements of, or for securing compliance with, those provisions, whether on complaint or otherwise, (b) make available to consumers, and persons dealing with consumers, general information with respect to: (i) this Act and other legislation administered by the Minister, and (ii) matters affecting the interests of consumers, (c) receive complaints from persons on matters (including fraudulent or unfair practices) relating to the supply of goods or services, or the acquisition of interests in land, and deal with any such complaint (whether or not under paragraph (d)) in such manner as the Secretary considers to be appropriate, (d) investigate the matter the subject of a complaint received under paragraph (c) or refer the complaint to a public authority, or any other body, that the Secretary considers to be best able to take action, or provide advice, in relation to the complaint, and (e) make known, for the guidance of consumers and persons dealing with consumers, the rights and obligations arising under laws relating to the interests of consumers. (2) The Secretary shall: (a) keep under critical examination, and from time to time report to the Minister on, the laws in force, and other matters, relating to the interests of consumers, and (b) report to the Minister on matters relating to the interests of consumers that are referred to the Secretary by the Minister, and, for those purposes, may conduct research and make investigations. (3) Where a complaint is received under subsection (1) (c), the Secretary may: (a) investigate the complaint even if it has been referred to a public authority or to another body, or (b) refer the complaint to a public authority, or any other body, even if an investigation of the matter has been commenced or completed by the Secretary. (4) The Secretary is to have regard, in carrying out his or her functions under this Act, to the need for communication, co-operation and co-ordination in relation to relevant co-operative legislative schemes."
17. Section 192E of the Crimes Act provides: "192E Fraud (1) A person who, by any deception, dishonestly: (a) obtains property belonging to another, or (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud. Maximum penalty: Imprisonment for 10 years. (2) A person's obtaining of property belonging to another may be dishonest even if the person is willing to pay for the property. (3) A person may be convicted of the offence of fraud involving all or any part of a general deficiency in money or other property even though the deficiency is made up of any number of particular sums of money or items of other property that were obtained over a period of time. (4) A conviction for the offence of fraud is an alternative verdict to a charge for the offence of larceny, or any offence that includes larceny, and a conviction for the offence of larceny, or any offence that includes larceny, is an alternative verdict to a charge for the offence of fraud."
18. Section 192G of the Crimes Act provides: "Intention to defraud by false or misleading statement A person who dishonestly makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) that is false or misleading in a material particular with the intention of: (a) obtaining property belonging to another, or (b) obtaining a financial advantage or causing a financial disadvantage, is guilty of an offence. Maximum penalty: Imprisonment for 5 years."
19. As for the orders sought on this application I note that UCPR r 1.21(1) provides that: "(1) The Supreme Court in a Division may, in relation to proceedings commenced in the Division, make an order that the proceedings be removed into the Court of Appeal: (a) if it makes an order under rule 28.2 for the decision of a question of law, or (b) if, having stated the question to be decided or determined, it is satisfied that special circumstances exist that render it desirable to make an order for their removal into the Court of Appeal."
20. UCPR r 28.2 provides that: "The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings."

The Plaintiff's submissions

1. The plaintiff's primary submission is that, for the purposes of s 173 of the CPA, it is necessary that an informant vindicating public rights as an employee of Fair Trading be expressly delegated the Secretary's power under s 9(1)(c) of the FTA.
2. It was submitted that there are two gateways to bring proceedings under s 173 of the CPA: under s 14 of the CPA or under "any other law", but that in both cases, the informant must be a "public officer". The plaintiff's position is that the reference to "any other law" in s 14 is a reference to s 9(1)(c) of the FTA.
3. Senior counsel for the plaintiff submitted that the defendants' reliance on s 14 of the CPA ignores the effect of the words "or under any other law" in s 173 of the CPA and when consideration is given to whether the informant is a public officer under "any other law", and then regard is had to s 9(1)(c) of the FTA as that other law, then prima facie, the public officer can only exercise that power through delegation. Thus, because Mr Bishop was not delegated this function, he was not acting in his official capacity and was thus not a public officer at the relevant time.
4. It was conceded that, on its face, neither ss 14 nor 173 of the CPA require any delegation by the Secretary before proceedings can be commenced. Reliance was placed upon the observations of Adams J in Kew v Commissioner of Fair Trading [2007] NSWSC 394 ("Kew") at [20] as authority for this proposition that such delegation is required.
5. Senior counsel for the plaintiff spent some time going through the decision of Adams J in Kew. Although she relied heavily upon his Honour's findings at [20] in support of her argument concerning the relevance of s 9(1)(c) of the FTA, she submitted that his Honour's findings thereafter are wrong and should not be followed.
6. Significantly, senior counsel for the plaintiff conceded that if she is wrong in her contention that s 9(1)(c) has any role to play in the determination of this question, then her argument falls away. It was submitted that this case turns on two issues: whether s 9 of the FTA is relevant to the question of an FTA investigator's authority to prosecute an offence contrary to ss 192E and 192G of the Crimes Act and whether the decision of Adams J in Kew is wrong.
7. As for the relevant discretionary considerations, it was submitted that the question is one of public importance, that removal facilitates the overriding purpose of s 56 of the Civil Procedure Act 2005 (NSW) and that there are "at least 25" other convictions under the Crimes Act commenced by officers of Fair Trading since July 2015 in reliance upon the same procedure and those convictions are in jeopardy of being quashed if the stated question is ultimately answered in the affirmative.

The defendant's submissions

1. The defendants' primary submission was that the issue of whether Mr Bishop was authorised to bring the prosecution is to be determined by reference to ss 3(1), 14 and 173 of the CPA alone and that s 9 of the FTA is not relevant.
2. Counsel for the defendants submitted that, for the purposes of UCPR r 1.21(1)(a), the particular separate question needs to be one of law alone in order to enliven the removal power. Counsel submitted that the stated question is not one of law alone but rather one of mixed fact and law. On that basis, it was argued that the power is not enlivened and that the plaintiff thus needs to rely upon "special circumstances" in UCPR r 1.21(1)(b). Counsel for the defendants noted that because the issue now raised was not agitated in the Local Court, no factual findings have been made in relation to it, thus all such findings will need to be made for the first time by the court determining these proceedings. The resolution of the further amended summons will ultimately require whichever court is constituted to hear the proceedings to delve into issues of fact. This militates against removal.
3. It was further submitted that no "special circumstances" exist to warrant removal and that there is no reason to depart from the decision of Adams J in Kew. In any event, this Court would follow the decision of the Court of Criminal Appeal in Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 ("Sasterawan v Morris") on this issue.
4. It was also submitted that there are other features of the case which militate against removal, including prospects of success and the need for an extension of time to bring the proceedings.

Consideration

1. There are two avenues in UCPR r 1.21(1) by which this court could remove these proceedings into the Court of Appeal. Mr Kang must establish either that that it is appropriate that an order be made under UCPR r 28.2 for a "question of law" to be decided separately (r 1.21(1)(a)), or that this court could be satisfied that "special circumstances" exist such that it is "desirable" to make an order removing these proceedings into the Court of Appeal (r 1.21(1)(b)).
2. As for the first of these two avenues, in AVS Group of Companies v Commissioner of Police [2010] NSWSC 659 ("AVS Group of Companies"), Price J observed the following in relation to UCPR r 1.21(a) at [18]: "The question to be decided is confined to one of law: Pt 1 r 1.21(a) UCPR. It is generally accepted that questions that turn on disputed facts should not be determined separately: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334. In any event, where findings of fact are involved, the decision on the question would not be on a question of law only: William v Bill Williams (1971) 1 NSWLR 547 at 557."
3. The court's power to order removal of proceedings to the Court of Appeal is discretionary. The principles governing the exercise of that discretion are derived from a number of authorities. In relation to UCPR 1.21(1)(a), the principles governing whether a separate question should be determined under UCPR 28.2 are also relevant. Those principles were summarised by Ward JA (as her Honour then was) in Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 at [87] to [92]. Her Honour cited a number of decisions including that of Einstein J in Idoport Pty Limited v National Australia Bank Limited (15) [2000] NSWSC 1215 in which his Honour noted that, among other things, it is ordinarily appropriate that all issues in the proceedings be disposed of at the one time.
4. Justice Ward went on to note (at [88]) that separate determination might be appropriate if it will have the effect of resolving or narrowing the scope of the litigious controversies. Her Honour had regard to the various authorities in which caution had been advocated in the exercise of this power (at [91], citing the following observation of Einstein J in Idoport at [6] in this regard): "The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings [his Honour there citing Tallglen v Pay TV Holdings Pty Limited; Parramatta Stadium Trust v Civil and Civic Pty Ltd (unreported, Supreme Court of NSW, 27 August 1996, per Hunter J) and Century Medical v THLD [2000] NSWSC 5 (unreported, Supreme Court of NSW, 3 February 2000, per Rolfe J)]". (the emphasis is that of Ward JA)
5. More recently, in Griffin Energy Group Pty Ltd (subject to a Deed of Company Arrangement) v Laughland [2016] NSWSC 1057, Ball J noted (at [14]) the authorities which suggest that, following the introduction of case management principles in ss 56-60 of the Civil Procedure Act, courts should be more willing to order separate questions. Ball J went on to observe that: "However, the position remains that the court should only make an order for separate questions where, to quote from Kirby and Callinan JJ's judgment in Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 at [170], the "utility, economy, and fairness to the parties are beyond question": see Solarus Projects v Vero Insurance (No 5) [2013] NSWSC 1966 at [22] (Campbell J), approved by the Court of Appeal in AAI Ltd t/a Vero Insurance v Solarus Projects Pty Ltd (Receivers and Managers Appointed) (In Liq) [2014] NSWCA 168 at [13] (Leeming JA); [22]-[23] (Barrett JA); Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 at [91] (Ward JA)."
6. As for the principles governing the question of removal of a separate question of law to the Court of Appeal under UCPR 1.21(1)(a), in AVS Group of Companies, Price J considered that the fact that the separate question of law involved a matter of significant public importance was a relevant consideration but a significant countervailing factor militating against removal in that matter was that the Court of Appeal might be required to make findings of fact (at [26]-[27]). His Honour also observed (at [24]), in relation to the requirement of a finding of "special circumstances" in UCPR r 1.21(1)(b), that the threshold for such a finding is "high".
7. As Fullerton J observed in Stewart v Ronalds [2009] NSWSC 455 at [19], if removal is to be made under UCPR 1.21(1)(a) following a finding that a question of law should be determined separately, there is no need for the court to be satisfied that "special circumstances" exist making it "desirable" that the order be made. Despite this, her Honour accepted a submission that the court would need to be satisfied that that there are "at least sufficiently unusual circumstances to warrant their removal". Her Honour considered it a relevant factor in that matter that the questions were not directly governed by any existing authority. Her Honour noted at [16] that she was satisfied that the separate questions raised "significant and difficult questions of law" which depended upon facts which had been agreed by the parties in a Statement of Agreed Facts to which a discrete set of primary documents was attached. Her Honour was also satisfied in that matter (at [16]) that separate determination of the questions of law would be consistent with ss 56-58 of the Civil Procedure Act in that it might avoid a trial which would otherwise raise complex and controversial factual issues.
8. I have considered this application in light of the principles derived from these decisions.
9. It was accepted by the Plaintiff during the hearing of this application that the merits of the plaintiff's argument is relevant to both limbs of UCPR r 1.21(1). Accordingly, I propose to first consider the merits of the plaintiff's argument.
10. The plaintiff's argument is that, in reliance upon ss 8 and 9 of the FTA and the relevant provisions of the CPA, Mr Bishop was not authorised to bring the prosecution against him in the Local Court. Removal to the Court of Appeal is sought because the plaintiff's argument is contrary to the decision of Adams J in Kew which, on the plaintiff's argument, was wrongly decided.
11. It seems to me that the starting point for determining whether Mr Bishop was authorised to bring the Local Court proceedings is not the decision of Adams J in Kew but, rather, the construction of the relevant provisions of the CPA being ss 3, 14 and 173 and their application to the Agreed Facts.
12. Section 14 of the CPA, referred to as the "common informer" provision, sets out who can commence proceedings. The words of s 14 are clear and unambiguous: any person can commence criminal proceedings under an Act unless that Act prescribes that the proceedings must be commenced by a particular informant. Some examples of legislation stipulating that the proceedings must be commenced by a particular informant were provided by Basten JA in Sasterawan v Morris at [16]. It was common ground in this matter that there is nothing in the terms of ss 192E or 192G of the Crimes Act which limits who can bring proceedings under those sections. That is, those sections do not expressly confer the right to prosecute for offences on any specified person or class of persons. "Any person" is thus authorised to prosecute those offences under the common informer provision in s 14 of the CPA. Mr Bishop is such a person.
13. There is no dispute but that Mr Bishop prosecuted the offences in his own name. Unlike the informant in Kew, Mr Bishop did not purport to prosecute as a delegate or agent of the Secretary. So much is apparent from the wording of the CANs, which all describe the prosecutor as "Jay Bishop, Public Officer".
14. Chapter 4, Pt 2, Div 1 of the CPA provides for the commencing of summary proceedings in the Local Court. Section 172 of the CPA provides that such proceedings are to be commenced by way of CAN. In general terms, s 173 of the CPA outlines how proceedings for public prosecutions are to be commenced whereas s 174 of the CPA provides for how private prosecutions are to be commenced. In both instances, the proceedings are to be commenced by way of CAN. The practical difference between the two types of prosecutions is that, unlike prosecutions commenced by police officers or public officials, before a private prosecution is commenced, the Registrar must sign the CAN. The Registrar must not sign the CAN if he or she is of the opinion that the CAN does not disclose grounds for the proceedings, is not in the form required by or under the CPA or a ground for refusal set out in the rules applies to the CAN.
15. Section 173 of the CPA provides that either a police officer or a "public official" can commence proceedings by way of a CAN if he or she is authorised under s 14 of the CPA "or under any other law." Mr Bishop is a public official. In circumstances where he is authorised under s 14 of the CPA to bring the proceedings, there is no need to look at whether he is also authorised under any other Act given the word "or" before those words. The fact remains that he is authorised under s 14 of the Act. The only situation which would result in the contrary conclusion would be if the Crimes Act stipulated that only specified persons could commence proceedings under that Act. It does not.
16. Mr Bishop is a "public official" to the extent that he is a public servant acting under his official capacity. Section 3(3) of the CPA provides that a public official is presumed to be acting under his or her official capacity unless the contrary is proven.
17. As Mr Bishop was an employee of the Public Service and an investigator within Fair Trading, he was a "public officer" at the relevant time within the meaning of s 173 of the CPA. That is, he was authorised by s 173 of the CPA to commence proceedings by issuing the CANs. Although the defendants submit that questions of fact may arise as to the proper characterisation of Mr Bishop's capacity to act at the time of commencing the proceedings, no question of any delegation by the Secretary comes into play in the application of these sections of the CPA.
18. The plaintiff's argument that Mr Bishop was not a public officer (because he was not acting under his official capacity at the time of commencing these proceedings) was not based on any suggestion that he was acting on a "frolic of his own". Rather, it is submitted, in reliance on ss 8 and 9 of the FTA, that only a person who has the delegated authority of the Secretary pursuant to an instrument of delegation under s 8 of the FTA can bring prosecutions under the Crimes Act. Section 9 of the FTA sets out the functions of the Secretary in general and s 9(1)(c) provides that the Secretary may: "receive complaints from persons on matters (including fraudulent or unfair practices) relating to the supply of goods or services, or the acquisition of interests in land, and deal with any such complaint (whether or not under paragraph (d)) in such manner as the Secretary considers to be appropriate."
19. Section 8(1)(a) of the FTA provides that the Secretary may delegate, to any person or committee, the exercise of any of the functions conferred or imposed on the Secretary under the Act, which would include the power under s 9(1)(c) of the FTA. The Plaintiff relies upon these provisions of the FTA to contend that the reference to "any other law" in s 173 of the CPA is, on the facts in this case, a reference to ss 8 and 9 of the FTA. That is, where s 173 provides that a "public official" can commence proceedings if he or she is authorised under "section 14 of this Act or under any other law", it was submitted that Mr Bishop was not so authorised unless the Secretary's function under s 9(1)(c) of the FTA was delegated to him.
20. There is nothing in the statutory language of s 173 of the CPA which supports the plaintiff's proposition that only the Secretary can bring criminal proceedings under the Crimes Act. Nor is there any provision in the FTA which provides that an investigator cannot commence such proceedings under ss 3, 14 and 173 of the CPA. Although s 68 of the FTA provides that proceedings for offences under the FTA can only be commenced by the Secretary or in his or her name "by a person acting with the authority of the Secretary", the FTA is silent as to who can bring proceedings under any other Act.
21. I can see no reason to read down ss 3, 14 and 173 of the CPA in the manner contended for by the plaintiff nor any basis to conclude that those provisions have somehow been impliedly repealed by any provision in the FTA. Section 9 of the FTA is clearly intended to facilitate the performance of the particular functions conferred on the office of the Secretary under that Act and related legislation. I see no basis to construe that provision as limiting the power conferred on employees of Fair Trading to prosecute Crimes Act offences as public officers in their own right.
22. Beyond reliance on the terms of ss 8 and 9 of the FTA, the other basis for the plaintiff's contention that an investigator appointed under s 18 of the FTA requires a delegation from the Secretary in order to commence summary criminal proceedings under the Crimes Act, is the observation at [20] of Kew by Adams J to the effect that s 9(1)(c) of the FTA provides that the Secretary has, as one of his or her functions, the investigation of complaints. So much is to be accepted but s 9(1)(c) of the FTA says nothing about who may commence prosecutions as investigators of Fair Trading under s 14 of the CPA; it only provides that one of the functions of the Secretary is to investigate complaints.
23. Although the plaintiff placed reliance upon the decision of Adams J in Kew at [20] in support of its argument, it was otherwise contended that the rest of the judgment in Kew is wrong and should not be followed. In fact, the plaintiff's position that the single judge decision in Kew is wrongly decided formed the principal basis upon which the Plaintiff contended that this matter should be removed to the Court of Appeal. Although a judge in this Division would not be bound to follow Kew in any event, I propose to consider that decision in some detail given its prominence in submissions.
24. The decision of Adams J in Kew was concerned with whether proceedings under the Crimes Act could be commenced in the name of the Commissioner and if so, how the CANs should be worded. In that matter, the informant, an investigator with Fair Trading, had commenced proceedings under s 300(1) of the Crimes Act in the name of the Commissioner (now referred to as the Secretary). The CANs described the informant by inserting the words "for and on behalf of the Commissioner" after his name. A collateral attack was made to this court regarding the validity of those CANs whilst the proceedings were still on foot in the Local Court. Those proceedings came before Grove J at which time the Commissioner conceded that the particular investigator did not have the delegation to bring the proceedings as his delegate.
25. As a result of the concession made in Kew, Grove J made declarations by consent to the effect that the investigator in that matter did not have "power or authority" to prosecute the subject offences "for and on behalf of the Commissioner of Fair Trading". The defect in the CAN in Kew was that the investigator purported to act as the Commissioner's delegate by including those words in the CAN in circumstances where it was common ground that he did not have the authority to act as the Commissioner's delegate. When the proceedings in the Local Court resumed, the informant sought to rely on amended CANs in a form which differed to that which had been agreed upon during the proceedings before Grove J. Leave to make the amendments was refused: Kew v Commissioner for Fair Trading & Anor [2005] NSWSC 1100. A second summons was issued in this court seeking further review of the proposed amended CANs. Those second proceedings came before Adams J.
26. At [20] of Kew, Adams J considered the question of whether the Commissioner could bring proceedings under the Crimes Act. In doing so his Honour noted that the Commissioner had the power to pursue a complaint under s 9(1)(c) of the FTA and observed that it would be within his or her function, if it was considered appropriate to do so, to bring a prosecution "under relevant legislation, such as the Crimes Act". Thus, his Honour was satisfied that the Commissioner/Secretary's functions under s 9 of the Act are not limited to prosecuting for offences under that Act.
27. After making the observation at [20] in Kew as to what the Commissioner might do, his Honour went on to consider whether an investigator could bring proceedings other than as a delegate of the Commissioner. His Honour was satisfied that he or she could, under s 14 of the CPA. His Honour noted at [24] that, unless otherwise indicated by other legislation, prosecutions commenced under s 14 of the CPA should not be expressed to be undertaken in a representative capacity. His Honour went on to state that "…if the Commissioner prosecutes under s14 of the Criminal Procedure Act (as distinct from the Act) he cannot do so by a delegate or agent: he must be the identified prosecutor. If he wishes to prosecute as Commissioner, it seems to me that he must find authority in the legislation establishing his office, namely the Act, to do so. If he prosecutes as a named person, then it may well be that his statutory functions are immaterial."
28. His Honour found that, even if prosecutions could not be brought by an investigator under the FTA as an agent or delegate, that did not mean that the proceedings could not be brought by such an investigator at all. This was because there was no provision that limited the ability to commence prosecutions under s 300 of the Crimes Act to any specified person or class of persons. Accordingly, the prosecutions could be brought by "any person" pursuant to s 14 of the CPA. That included the relevant investigator.
29. His Honour went on to undertake a factual enquiry as to the nature of the investigator's role in order to determine that he was in fact acting in his official capacity and in the course of his employment at the relevant time. In those circumstances, his Honour was satisfied that the CANs were incorrect in their reference to the investigator acting "for and on behalf of the Commissioner" but that this was a defect of the kind to which no objection could be taken under s 16(2) of the CPA: at [33]. On that basis Mr Kew's challenge to the validity of the charges failed.
30. An addendum to the decision in Kew noted that, after the hearing before Adams J was completed, but before his Honour delivered his judgment, the CPA was amended to add the presumption in s 3(3) to the effect that a person purporting to act as a public officer "is presumed to be acting in an official capacity." Section 173 was also amended by adding the phrase "under section 14 of this Act or under any other law" after the word "authorised". His Honour indicated in the addendum that he had determined the matter under the legislation as it stood at the date of the proceedings. It may be that the factual inquiry undertaken by his Honour as to the nature of the investigator's role in Kew in order to determine that he was in fact acting in is official capacity would not have been necessary if the proceedings had taken place after the amendments commenced but I do no need to make any final determination on that issue for the purposes of this application.
31. I am not satisfied that the question of whether the applicant succeeds in these proceedings for judicial review turns on the correctness of the decision of Adams J in Kew. There is no conflicting authority with it, a judge of this Division finally determining these proceedings would not be required to follow it and in any event, the question is to be determined by the terms of ss 3(1), 14 and 173 of the CPA. For the reasons I have already stated, my reading of those provisions leads to the result that Mr Bishop was authorised to bring the relevant proceedings under the Crimes Act.
32. It is of some significance that shortly after the decision in Kew was delivered, the Court of Criminal Appeal delivered its decision in Sasterawan v Morris. That decision was delivered on 28 June 2007, shortly after the decision in Kew was delivered on 1 May 2007. In Sasterawan v Morris, the Court of Criminal Appeal considered the operation of ss 173 and 174 of the CPA. As with Kew, the amendments to ss 3(3) and 173 of the CPA were made between the time those proceedings were commenced and the hearing of the stated case to the CCA.
33. In Sasterawan v Morris, Basten JA, with whom Grove and Hidden JJ agreed, observed the following at [22] and [23]: "…Section 14 is unambiguous and clear in the breadth of its operation. There is no basis for reading it down to exclude from the concept of "person" those persons who may happen to be police officers or public officers. Similarly, the purpose of ss 173 and 174 is also clear. Those provisions say nothing about the source of authority to institute proceedings: each commences with the conditional, 'if … is authorised to commence proceedings'. The purpose is to place a control on persons other than police and public officers, no doubt to ensure that members of the public are not vexed by private prosecutions which have no proper basis in law, being a control placed in the hands of a registrar. Each of ss 14, 173 and 174 is qualified to reflect the fact that some statutory offences, including some which arise under the Crimes Act, are subject to restrictions on authority to prosecute for their contravention: see, eg, Crimes Act, s.338 (perjury). There is no qualification in relation to persons who may prosecute for breaches of s 178BB of the Crimes Act. Accordingly, any person may commence proceedings for such an offence, pursuant to s 14 of the Criminal Procedure Act. If the person who in fact commences proceedings is a public officer, as the prosecutor in the present case was, the procedure for issuing a court attendance notice, pursuant to s 173 of the Criminal Procedure Act, is available."
34. Although the decision in Sasterawan v Morris was concerned with the meaning of "person" in s 14 of the CPA, the observations of Basten JA confirm the conclusion I have reached concerning the operation of ss 3, 14 and 173 of the CPA in this matter.
35. It was submitted on behalf of the plaintiff that the decision in Sasterawan v Morris does not assist the defendants because in that case the court was not invited to consider the argument for which the plaintiff now contends. I do not accept this submission. Although the public officer in that matter was an officer of the Office of the Ministry of Transport, rather than an investigator appointed under the FTA, I am satisfied that the conclusion remains the same, even when regard is had to ss 8 and 9 of the FTA.
36. I am not satisfied, at this interlocutory stage of the proceedings, that an investigator of Fair Trading requires delegation from the Secretary in order to commence proceedings for an offence under the Crimes Act in his or her own right other than as a delegate for the Secretary. In so finding, I accept that this is not a final hearing and I am not required to come to any determinative conclusion as to whether Mr Bishop was authorised to bring summary proceedings under the Crimes Act. In the event that I am wrong in this regard, I will proceed to briefly address the plaintiff's remaining submissions.
37. First, I am not satisfied that the determination of the matter concerns a "significant or difficult question of law" for the reasons I have already stated: Stewart v Ronalds at [16].
38. Second, I am not satisfied that the question articulated by the Plaintiff concerns a matter of significant public importance: AVS Group of Companies at [26].
39. Third, it is unclear to me the extent to which there is a genuine factual dispute in this matter. The defendants submitted that the court will need to consider the duties and functions of Mr Bishop in order to determine whether or not he was acting without official capacity. The plaintiff did not accept this position. Rather, it was submitted that the question of whether or not Mr Bishop was without official capacity to prosecute under the Crimes Act turns solely on the question of whether he was delegated to do so. Given this position taken by the plaintiff, I have not considered it necessary to have regard to the affidavits filed on behalf of the defendants referred to above at [13] to consider this application but I note that the defendants seek to rely on them at the final hearing of this matter nonetheless. As stated above, the factual inquiry undertaken by Adams J in Kew was at a time prior to the amendments to ss 3(3) and 173 of the CPA and the question remains as to whether such an inquiry would in fact be necessary.
40. Fourth, it is not apparent to me that the separate determination of this question would shorten the proceedings. The sole issue for determination is whether the informant had the authority to bring the proceedings. It was conceded during the hearing of the appeal that the plaintiff's case rests or falls on that question. That means that the proceedings would not be shortened by having that issue determined separately because it is the only issue; whether these proceedings are determined in the Common Law Division or by the Court of Appeal the same issue arises. Having the question identified by the plaintiff determined separately does not shorten the proceedings.
41. Fifth, although there is no existing authority directly on point, the decision in Sasterawan v Morris is relevant appellate authority governing the scope of ss 14 and 173 of the CPA.
42. Sixth, I am not satisfied that having the separate question determined by the Court of Appeal would lead to the entire controversy between the parties being resolved given that the plaintiff has indicated an intention to proceed with his District Court appeal in the event that he is unsuccessful in these proceedings, regardless of the removal application.
43. Finally, in relation to the question of whether "special circumstances" exist within UCPR r 1.21(1)(b), which would make removal "desirable," the only such circumstances suggested by the plaintiff, beyond those which I have already referred to, was that other prosecutions have been commenced which would also be impacted by a decision that the informant was not authorised to commence the prosecution under the Crimes Act. For the reasons I have already stated, I am not satisfied that this amounts to special circumstances on the facts in this matter
44. For all of these reasons I am not satisfied that these proceedings should be removed into the Court of Appeal.

ORDERS

1. I make the following orders: 1. The notice of motion dated 2 August 2017 is dismissed. 2. The plaintiff is to pay the defendants' costs of the motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2018