Kew v Commissioner of Fair Trading and Robinson; Robinson v Kew

The legislation 15 Section 9 of the Fair Trading Act 1987 (the Act) provides as follows - (1) The Director-General 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 Director-General 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 Director-General 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 Director-General 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 Director-General by the Minister, and, for those purposes, may conduct research and make investigations. (3) Where a complaint is received under subsection (1)(c), the Director-General 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 Director-General." By virtue of s4(1) of the Act, the reference to the Director-General may be taken to be a reference to the Commissioner. 16 The Act itself prohibits certain conduct and creates a number of offences including the following - Section 23 A person is liable to a penalty, including imprisonment for six months for hindering or obstructing an officer in a manner that interferes with the performance of that that officer's duties. Section 23C A person is guilty of an offence by failing to provide proof sufficient to support a claim or representation. Section 32 It is an offence to supply goods in contravention of an order in force under s30. Section 40 A supplier is prohibited from selling goods to which more than one price is appended. Section 42 A person in trade or commerce is not to engage in misleading or deceptive conduct. Section 46 A person, in relation to employment, is not to engage in misleading conduct. 17 Part 6 of the Act deals with "enforcement and remedies". Section 62 concerns the contravention, whether as a principal or an accessory of provisions of the Act (with the material exceptions), making such a contravention an offence against the Act. Section 63(1) provides that proceedings "for an offence against this Act may be taken and prosecuted only by the Director-General or, in the name of the Director-General, by a person acting with the authority of the Director-General". It is clear that Part 6 of the Act relates only to contraventions of a provision of the Act and does not relate to an alleged contravention of the Crimes Act. If there is, therefore, a power in the Commissioner to prosecute the present offences, it seems to me that it must be found in s9 of the Act, dealing with the functions of the Commissioner.

The power to prosecute 18 It is contended for Mr Kew that the Act does not confer, expressly or by implication, any authority or power upon the Commissioner to prosecute an offence under the Crimes Act. It is a cognate contention that the prosecution of such an offence would amount to pursuing an improper purpose and involve assuming a power not given by the Act or necessary or convenient for the promotion of the objects and purposes of the Act. It is contended by the Commissioner that the matters giving rise to the Notices fall within the functions of the Commissioner to prosecute. 19 It will be seen that s9(1)(c) provides that the Director-General may receive complaints "relating to…the acquisition of interest in land, and deal with any such complaint (whether or not under paragraph (d)) in such manner as the Director-General considers to be appropriate". Paragraph 9(1)(d) provides that the Director-General may "investigate the matter the subject of a complaint received under paragraph (c) or a further complaint to a public authority, or any other body that the Director-General considers best able to take action…in relation to the complaint". It seems clear that, by virtue of the definitions of "acquire" and "interest" in relation to land, that the obtaining of a right of occupation or tenancy is the acquisition of an interest in land within the meaning of s9(1)(c). It seems to me also, that the payment of rental bonds under agreements for lease or occupancy - which was clearly the case here - as required by the Landlord and Tenant (Rental Bonds) Act 1977 is a matter relating to the acquisition of an interest in land within the meaning of that paragraph. It is uncontested that there was a complaint received by the Commissioner relating to the refund of rental bonds. It is necessary, however, to consider the terms of the Rental Bonds Act in some little detail. The Act creates the Rental Bond Board as a corporation: s5. Section 7C permits the Board to invest money in certain specified unit trusts. Part 3 requires a lessor, or the lessor's agent where relevant, to deposit with the Board the amount paid as a rental bond under a lease. Part 5 of the Act requires the Board to establish a Rental Bond Account into which all rental bonds paid to the Board must be deposited: ss 18 and 19. Section 11 of the Act makes provision for the payment out of rental bonds and requires the Board to pay out in accordance with applications in the proper form to a lessor and/or a lessee or both, as the case may be, or as directed by the relevant applicant. It seems to me that the fraudulent procuring of the payment of a rental bond to a person not authorised to receive it is capable of being a matter relating to the acquisition of an interest in land, since the obligation to pay the bond arises under the lease, and holding those funds safe, which is the function of the Rental Bond Board, relates to the mutual obligations of lessor and lessee though, perhaps, somewhat tenuously. Even if, as might well be the case, the funds allegedly taken by Mr Kew were not the funds of the lessee but rather the funds of the Board I think that, having regard to the responsibility of the Board in relation to those funds, their receipt and disposition was a matter relating to the acquisition of the tenancy, though this must depend upon giving the words "with relation to" a breadth of meaning right up to the most extreme border of their permissible application. For the same reason, using a fraudulent document to procure inappropriate actions concerning the bond funds or accounts by officers of the Rental Bond Board is a matter relating to the acquisition of a tenancy. 20 The concluding words of paragraph 9(1)(c) - "in such manner as the Director-General considers to be appropriate" - are as wide as can be imagined. In my view where, arising out of a complaint within the paragraph, the Director-General considers the appropriate action is to prosecute under relevant legislation, such as the Crimes Act, it seems to me that it is within his or her function to do so. The grant of a power to prosecute for offences under the Act does not, to my mind, imply that the Director-General is not to prosecute other offences that might come to his attention by virtue of the exercise of his or her functions. 21 It is additionally contended on behalf of the Commissioner that he can prosecute by virtue of s14 of the Criminal Procedure Act 1986 which is in the following terms - "14 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." 22 There is no provision that limits the ability to commence prosecutions under s300 of the Crimes Act 1900 to a specified person or class of persons and accordingly such prosecutions may be brought by "any person". Section 21 of the Interpretation Act 1987 defines the word "person" to mean "an individual, a corporation and a body corporate or politic" of course, unless the particular context in which the word is used implies otherwise. It is submitted that the Commissioner is "a person" within the expanded meaning given to that term by the Interpretation Act. It is contended that the Commissioner's powers and functions are not exhaustively stated or confined by the Act. It is noted that the Act does not constitute the Office of Fair Trading or for that matter, the position of the Commissioner. The Act defines the position of "Director-General" to mean the Commissioner in section 4 but the "Commissioner" is a pre-existing person, an employee appointed under the Public Sector Employment and Management Act 2002. Accordingly, though the Commissioner is an officer, his or her position is not like that of a statutory corporation whose powers will be found or implied from its constituting statute. Nor, it is argued, is there anything in the Act suggesting that the powers in that Act are intended to be exclusive of powers such as those conferred by s14 of the Criminal Procedure Act. 23 It is not essential for the purposes of s14 of the Criminal Procedure Act that the person prosecuting should identify the capacity in which the proceedings are undertaken. Any person may prosecute. Whether the prosecutor is acting privately or in a public capacity is immaterial to the right to prosecute. That question is relevant to procedural requirements imposed by s174 relating to private prosecutions to which, by virtue of s173, public prosecutions are not subject. Section 173 deals with prosecutions where a "police officer or public officer is authorised to commence proceedings for an offence against a person" by issuing a court attendance notice. For private prosecutions s 174 provides there must be intervention by a registrar to ensure that formal requirements as to propriety are satisfied and that the prosecution is, in substance, not frivolous or vexatious: cl 57 Local Courts (Criminal and Applications Procedure) Rule 2003. A private prosecution is undertaken to vindicate a private or personal interest in the enforcement of the criminal law. Such prosecutions have long been permitted. A prosecution by a police or public officer, on the other hand, is undertaken pursuant to a public duty. The purpose of the different procedures mandated by s173 and s174 is obvious. The legislation assumes that there will be systems in place governing the commencement of proceedings by the officer, that the officer will comply with formal requirements and that the prosecution will not be frivolous or vexatious. As in a private prosecution, the police or public officer is personally responsible for the commencement and undertaking of the prosecution. Although s214 of the Criminal Procedure Act provides for a different regime applying to making orders for costs in proceedings brought by police or public officers, his or her essentially personal status in this respect is emphasised by the circumstance that adverse orders for costs must be made against the officer and not the Crown or the Department by which they are employed, although there is a right of indemnification from the State conferred by s 218 of the Criminal Procedure Act. 24 It follows that, unless the prosecution is governed by a particular statutory regime that imposes a different procedure, prosecutions under s14 of the Criminal Procedure Act are not and should not be expressed to be undertaken in a representative capacity. Moreover, although for the purposes of ss173 and 174, the fact that the prosecutor is acting as a public officer and the nature of that employment is conventionally and usefully mentioned it is not essential to do so, providing the fact is that the prosecutor is acting as a public officer. 25 It follows 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. If the prosecution is held to be pursuant to s14 the failure to name the Commissioner would be a defect to which s16(2) applies and is thus not fatal, although the Notices should be amended to comply with the requirements of s175(3)(c) as to the name of the prosecutor. If, as was proposed before Grove J, the Notices were amended to exclude Mr Robinson, so that the Commissioner was the prosecutor acting under the Act, I think that the substitution of Mr Robinson as a prosecutor under s14 could not be permitted as an amendment. The specification of the Commissioner as prosecutor under the Act (as I have concluded above) would not be a "defect" to which s16(2) applied: it would not be any kind of defect. If the prosecution was under s14, the only "defect" concerns the name and not the identity of the prosecutor. In either event, the substitution of Mr Robinson would be the commencement of an entirely new proceeding undertaken by a different party. This cannot be done by amendment. However, the foreshadowed amendment did not, as it happened, occur. Accordingly, the Notices are in the form considered in Garrett v Freeman [2006] NSWCCA 278 (discussed below) and susceptible to amendment provided that Mr Robinson has authority to prosecute.

The authority of Mr Robinson to prosecute 26 Section 8 of the Act provides that the Director-General may delegate to any person the functions conferred or imposed on him or her by or under the Act. A significant and potentially decisive difficulty facing the application of this provision in respect of Mr Robinson are the declarations made by Grove J. Although they were made by consent, they are nonetheless binding, albeit only as at the time they were made and stating the position as at that time. The declarations do not concern the power or authority of the Commissioner to prosecute. But they expressly state that Mr Robinson did not have "power or other authority conferred by the Fair Trading Act 1987 (NSW) to commence proceedings or otherwise prosecute [the present] offences for and on behalf [the Commissioner for Fair Trading]"…; nor did he have "power or other authority as a 'Public Officer, for and on behalf of the Commissioner for Fair Trading'" to prosecute the plaintiff in the Local Court…" for the present offences. 27 It is conceded on behalf of the Commissioner that these declarations mean that Mr Robinson was not the authorised agent of the Commissioner: see Garrett v Freeman. It is also conceded that Mr Robinson was not the delegate of the Commissioner. It follows that Mr Robinson was not authorised to commence the proceedings either as agent for or the delegate of the Commissioner. Accordingly, that the Commissioner or his agent or delegate is empowered to prosecute the present charges does not mean that Mr Robinson is authorised to do so. The obverse is also true: the mere fact that these prosecutions cannot be taken under the Act, if that were the case, does not mean that Mr Robinson is not able to undertake them. 28 It is submitted by the Commissioner that the Notices "must be construed as representing an attempt by Mr Robinson to bring proceedings as agent for the Commissioner, and that such proceedings were really brought in the name and capacity of the Commissioner", who was (it is argued) authorised to do so. In Garrett v Freeman, the proceedings had been taken National Parks and Wildlife Act 1974 by Mr Garrett "for and on behalf of the Director-General of the Department of the Environment and Conservation". It was agreed that the Director-General could not, himself or herself, undertake proceedings and the Court concluded that Mr Garrett had been acting as agent for the Director-General and not in any independent or separate capacity. As James J said (ibid at [122], "the proceedings were brought by an individual on behalf of his principal when under the relevant legislation the proper person to bring the proceedings was the individual himself". The Court concluded, however, that s16(2) of the Criminal Procedure Act saved the information, since the words of agency amounted to a defect to which objection could not be taken. It is contended here, as I understand it, that although Mr Robinson was not, in fact, the agent of the Commissioner, the notices should be regarded as laid by him and hence the naming of the Commissioner as his principal is a defect within s16(2) so that they are validly laid. In Garrett v Freeman, there was no doubt that Mr Garrett was authorised to prosecute in his own right and should not have purported to act as an agent. The obverse situation arose in Crothers v Sheil (1933) 49 CLR 309. There, the information was laid by Mr Crothers as "an officer in the service of the Milk Board duly authorised to prosecute herein". Mr Crothers should not have exercised his authority in his own name but in the name of his principal, the Board. It was held that this was a defect healed by the then equivalent of s16(2). 29 In the present case, the declarations binding on the Commissioner must be interpreted as meaning that Mr Robinson did not have the authority to act as the Commissioner's agent although he purported to act as such agent. Nevertheless, it does not follow that he cannot prosecute as a public officer otherwise than as the Commissioner's agent. 30 The Commissioner submits, as I understand it, that although Mr Robinson was neither his agent nor his delegate, he was otherwise authorised as an employee of the Department to act in "an authorised and official capacity" to commence and undertake the prosecutions against Mr Kew. On 14 January 1998 Mr Robinson, then an officer of the Department of Fair Trading, was appointed by the Director-General of the Department of Fair Trading under s18 of the Act as an Investigator for the purposes of the Act and any other legislation administered by the Minister for Fair Trading. The Rental Bond Act is administered by the Minister. It is submitted that Mr Robinson's capacity as an officer of the Department is distinct from that of agent or delegate for the Commissioner and, accordingly, he can prosecute Mr Kew under s14 of the Criminal Procedure Act. Amongst other things, it seems to me to follow that whether Mr Robinson can prosecute offences under the Crimes Act does not depend on any delimitation of the functions of the Commissioner. The question is not the extent of the Commissioner's functions but becomes whether the prosecutions may be undertaken by Mr Robinson otherwise than as the Commissioner's delegate or agent. I have already indicated that s14 permits prosecutions by any person and thus, of course, by Mr Robinson. I understand that the Notices were issued under s173 of the Criminal Procedure Act. If he was not, in fact, acting in an "official capacity", then those Notices were required by s174 to be signed by the registrar, who was also required to exercise the discretions reposed in him by the section. In my view, such a failure to comply with s174 would not be a "defect" curable under s16(2). 31 The amendments sought to the Notices identify Mr Robinson as the prosecutor. Was he acting as a "public officer"? Evidence was called as to Mr Robinson's official responsibilities within the Department of Fair Trading. He is an investigator. He and another investigator prepared a report on the allegations about Mr Kew's conduct. That report went to Mr Pacey who was the Manager, Prosecution and General Litigation within the Department. Mr Pacey assigned it to a Mr Davidson, who was a legal officer under his supervision. Mr Davidson recommended that Mr Kew should be prosecuted. Mr Pacey authorised the prosecutions to be commenced by Mr Robinson under what he considered to be his authority as delegated to him by the Commissioner. That delegation has been produced. Its actual scope is uncertain and whether it extended to the particular prosecutions undertaken in this case is not easy to determine. This is most unfortunate. Having regard to the importance in the administration of criminal justice of there being proper authority for the prosecution of persons for criminal offences, instruments of delegation should be drawn in terms that readily allow both the delegate and other affected persons to know whether an impugned authorisation is appropriate or not. However, having regard to my view on the ultimate question, I do not need to determine the actual extent of Mr Pacey's authority. 32 It seems to me that Mr Robinson was undoubtedly acting in the course of his employment as an officer of and investigator for the Department of Fair Trading in commencing and maintaining the prosecutions against Mr Kew. Moreover, this was so even though he mistakenly thought that he was acting as the Commissioner's agent. It may not be in every case that acting in the course of employment in the Public Service will be sufficient to satisfy the requirement that a prosecutor is acting in an official capacity. But there is no bright line test: each case will depend upon its facts. In my view, Mr Robinson was performing a public duty and not serving a private interest in undertaking the prosecutions against Mr Kew. Accordingly, he was acting in his official capacity when he commenced these prosecutions, even if, as it might be, both Mr Pacey and Mr Robinson were mistaken in thinking that Mr Pacey's delegated powers permitted him to authorise Mr Robinson to do so on behalf of the Commissioner. 33 As I have already said, although he was acting as a public officer, the fact that the prosecutions are undertaken pursuant to s14 means that Mr Robinson is personally responsible for the prosecutions and may not act on behalf of another, whether the Commissioner or anyone else. Hence, the assertion in the Notices, in effect, that he was acting as an agent was not only mistaken in fact, it could not be so as a matter of law. In my view, this is a defect of a kind to which objection could not be taken under s 16(2) of the Criminal Procedure Act. 34 (I am not, however, suggesting that, had Mr Robinson not been a public officer and the prosecution depended upon the powers of the Commissioner under the Act and the valid delegation of his power to prosecute, this would merely have been a defect of which no notice need be taken. This is not a question that I need to decide.) 35 To summarise, Mr Robinson is not acting as an agent or delegate; he is prosecuting under s14 of the Criminal Procedure Act; and he is doing so as a public officer. Accordingly, the Local Court had jurisdiction to hear and determine the charges laid in the Notices and the amendments sought ought to have been permitted in order that the form of the proceedings reflect the legal and factual position.

Is there an abuse of process? 36 Mr Kew contends, at all events, that the proceedings should be permanently stayed as an abuse of process of the Court. The principal argument relied on is that the proceedings were initially commenced by Mr Robinson upon an implied representation that he had authority from the Commissioner to do so. It was then conceded by the Commissioner that no delegation existed in relation to him and it was then sought to substitute Mr Pacey. It is now sought to return to Mr Robinson as prosecutor in his capacity as a public officer. It was at first submitted that the proceedings were rendered an abuse of process by the failure of the Commissioner to divulge to Mr Kew, or those representing him, the true position concerning the non-delegation to Mr Robinson and permitting the proceedings before Grove J to continue upon the implicit basis that indeed there was such a delegation. It became evident early in the hearing before me that this submission was untenable. This was an allegation of serious impropriety for which, so far as the proceedings before Grove J were concerned, there was no proper basis. I do not intend to rehearse here the exchange between the Bench and Dr Flick SC for Mr Kew. It is sufficient to say that, in the result, Dr Flick unreservedly withdrew any suggestion of impropriety so far as the conduct of the proceedings before Grove J was concerned. Nevertheless, it is contended that a similar impropriety infected the proceedings before the Magistrate and justified the conclusion that the proceedings were and continue to be an abuse of process arising out of the failure to disclose that Mr Robinson did not have a delegation from the Commissioner. It is submitted, in addition, that the course of proceedings, namely the frequent changes of tack so far as the identity of the prosecutor is concerned, amounted an abuse of process whether considered by itself or in conjunction with the non-disclosure of Mr Robinson's true status. One of the difficulties facing this argument is that Dr Flick conceded that, even if the Commissioner (or Mr Robinson) should be prevented from prosecuting, that would not prevent the Director of Public Prosecutions from instituting a prosecution, if he thought it appropriate, and that such a prosecution would not constitute an abuse of process. Although Dr Flick did not accept the contradiction implicit in this position, it seems to me that, if the alternative is open that the Director of Public Prosecutions can commence proceedings against Mr Kew and to do so would not amount to an abuse of process, continuation of the proceedings by Mr Robinson or, for that matter, Mr Pacey cannot be an abuse of process. Whether this be so or not, the various attempts to regularise the proceedings and the fact that Mr Robinson was not validly delegated to undertake them, does not amount to an abuse of process. Nor do the changes of approach, though unfortunate and demonstrative of some lack of proper diligence, amount to harassment giving rise to any abuse of process. 37 Reliance is also placed by Dr Flick upon the process taken by Mr Pacey, the officer in charge of prosecuting, in not considering with care the terms of his delegation which, it is argued, did not justify his authorisation of Mr Robinson to commence and maintain the prosecutions. It is sufficient to say that, even if Mr Pacey did not consider with sufficient care the precise terms of his delegation, that would not in the circumstances amount to an abuse of process or a matter which, with the other matters to which I have adverted, amount to such an abuse. I am quite satisfied that, if he fell short of due care about this matter, it was inadvertent and did not amount to conduct which by itself or with the other matters to which I have referred, rendered the proceedings an abuse of process. 38 It is also argued that the failure to disclose to the Local Court the terms of the delegation and the lack of specific delegation to Mr Robinson amounted to such a dereliction of obligation towards the court as to constitute an abuse of process. I do not propose to set out the evidence on this point that was given before me by Mr Pacey. It is sufficient to say that I regarded him as an honest and candid witness and that, for practical purposes, he was unaware that the Local Court was being (implicitly) misled as to the precise status of Mr Robinson's delegation. I am therefore satisfied that there has been no basis shown for a stay of the proceedings, whether permanent or otherwise. 39 I would, however, add the comment that there is a strong argument that the constant changes in the position of the Commissioner as to the identity and capacity of the prosecutor should have costs consequences. I propose to hear further submissions on this matter before disposing of the appeal.

Orders 40 The parties are to prepare short minutes of orders effecting the determinations expressed in the judgment and dealing with ancillary procedural issues as to the future conduct of the prosecutions. Failing agreement, I grant liberty to the parties to apply on 3 days' notice for further directions. The question of costs is to await further submissions.

After hearing of argument was completed, but before judgment, the Criminal Procedure Act 1986 was amended by the Crimes and Courts Legislation Amendment Act 2006 which was assented to on 29 November 2006. The amending Act, so far as is presently relevant, added a new subsection 3(3) (definitions) to the effect that a person purporting to act as a public officer "is presumed to be acting in an official capacity" and varied s173 by adding after "authorised" the phrase "under s14 of this Act or under any other law". I took the view that the matter should be determined under the legislation as it stood at the date of the proceedings and that, at all events, it was not necessary to deal with any presumptive inference, whilst the amendment to s173 did not change its meaning so far as the issues in the present case are concerned. A typographical error in my judgment mistakenly suggested that I had relied on the terms of s173 as amended. This having been brought to my attention by the parties, I have corrected the error. **********

01/05/2007 - Amendment to counsel's name. - Paragraph(s) Coversheet 29/06/2007 - Typographical errors with addendum - Paragraph(s) 41 29/06/2007 - The words "of this Act" added after "s14" in Addendum - Paragraph(s) 41

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