2/4 That between 9 January 1995 and 11 June 1997, at Perth in the State of Western Australia, Robert Leonard Hinton did hold himself out to Jeffrey Duncan Hankins as a real estate agent whilst not licensed as such and whilst not holding a current triennial certificate contrary to section 26 of the Real Estate and Business Agents Act 1978.

3/4 That between July 1995 and 3 June 1997, at Perth in the State of Western Australia, Robert Leonard Hinton did hold himself out as a real estate agent to William James Sutton and Ruth Anna Sutton whilst not licensed as such and whilst not holding a current triennial certificate, contrary to section 26 of the Real Estate and Business Agents Act 1978.

4/4 That between 9 January 1995 and 11 June 1997, at Perth in the State of Western Australia, Robert Leonard Hinton did act as, or carry out the functions of, a real estate sales representative whilst not the holder of a current certificate of registration, contrary to section 44(1), of the Real Estate and Business Agents Act 1978."

The charges were preferred by way of summons under the Justices Act 1902 and appear to have been numbered 76844-6/97 in the Court of Petty Sessions at Perth. There were originally three charges, the fourth charge being added by way of amendment at the hearing before the learned Magistrate. At the commencement of the hearing objection was taken by counsel for the defendant that the form of the complaint was in breach of the provisions of s43 of the Justices Act, which provides that every complaint shall be for one matter only, not for two or more matters, provided that " ... if the matters of complaint are substantially of the same act or omission on the part of the defendant such matters may be joined in the same complaint". Complaint was made by counsel for the defendant that the complaint being bad, it was for the prosecution to elect at the outset on which of the charges it proposed to proceed. The submission related to the original form of complaint, which incorporated three alternatives, and it necessarily opposed the addition of the fourth.

After hearing argument the learned Magistrate ruled that the proviso to s43 of the Justices Act entitled the prosecution to join the three alternative charges in the one complaint and gave leave for the prosecution to add the fourth alternative, being the charge under the provisions of s44 of the Act. Essentially, her Worship's ruling was that the allegations were all based on the same set of facts, although it is unclear whether the Magistrate was saying that this was pursuant to the first or the second proviso to s43 of the Justices Act. The first proviso allows for joinder where the matters "are substantially of the same act or omission on the part of the defendant" and the second proviso allows for joinder "when several simple offences are alleged to be constituted of the same acts or omissions or by a series of acts done or omitted to be done in the prosecution of a single purpose". In any event, the case proceeded on the basis that the prosecution was entitled to charge the respondent in the way in which I have set out above.

The learned Magistrate dismissed all charges against the respondent on 20 July 1998. In doing so she gave reasons, which I paraphrase as follows:

(1) There was, in essence, "one charge ... couched in the alternatives under ss26 and 44 of the Act, the allegation being that the respondent was involved in conducting real estate agents' transactions as an agent or representative of an agent, or alternatively, he held himself out as an agent as defined in the Act."

(2) The central issue was whether the respondent came within the definition of "real estate agent" or "real estate agents' representative", or whether he was employed by the owners of the property as an employee.

(3) The respondent was secretary and officer of Burke Investments Pty Ltd, the business name of which was Connor & Quinlan Estates. It was Connor & Quinlan Estates which appointed the respondent as its property manager, the terms and conditions of which were set out in a letter of appointment of 29 June 1981.

(4) The respondent was certainly an agent in the general sense of the word, but the question was whether he fell within the definition of real estate agent in the Act. Certainly he carried out activities which fell within the definition of "real estate transactions" within the meaning of the Act and there was no dispute in relation to that. Central to his activities were the collection of moneys payable under leases, in respect of which he in turn collected management fees and took a commission by way of remuneration.

(5) The letter of appointment of the respondent was crucial to the determination of the matter and if the respondent was to be regarded as self-employed, he could properly be described as Connor & Quinlan's agent, but if employed on a salary, the question remained whether he was simply an employee. The paragraphs of the letter of appointment which made the respondent subject to express directions of the owners and prohibited him from trading on his own behalf without consent of the owners indicated that the nature of the respondent's appointment was "as an employee".

(6) Connor & Quinlan Estates were not carrying on business as agents and the evidence resulted in a position where it could not be established beyond reasonable doubt that the respondent was acting as an agent's representative or holding himself out as an agent in breach of the provisions of the Act.

The grounds of appeal challenge the decision of the learned Magistrate in the following way:

(1) She erred in law in considering that the terms of the respondent's letter of appointment were determinative of the issue whether he had acted in contravention of the Act in that:

(i) a legal relationship exists if there is, in law, what amounts to such a relationship even if the parties to that relationship do not recognise it themselves and even if they have professed to disclaim it;

(ii) whether a person acts as or carries on business as a real estate agent is a question of mixed law and fact and not concluded by the terms of an agreement;

(iii) even if the respondent's initial appointment was not as a real estate agent he may nevertheless thereafter have carried on business or held himself out as a real estate agent.

(2) The learned Magistrate erred in finding that the letter of appointment described the respondent as "being employed on a salary", the relevant clause of the letter stating that the respondent was to receive by way of remuneration an amount of 6% of rent and other moneys received and collected by him from tenants.

(3) The learned Magistrate erred in law in considering that the terms of the letter of appointment indicated that the nature of the respondent's appointment was than of an employee and should have held that the letter of appointment appointed him as a real estate agent as defined in the Act.

(4) The learned Magistrate erred in law and in fact in failing to find that a number of matters established in evidence established a contravention by the respondent of the provisions of s26 of the Act and/or s44 of the Act.

At the hearing of the appeal counsel for the appellant abandoned the argument that the respondent should have been convicted of an offence under the provisions of s44 of the Act, conceding that the real question was whether the respondent had acted as a real estate agent or not, there being no scope for arguing that the respondent had in any way carried out the functions of a real estate sales representative by negotiating real estate transactions.

It appears from the evidence that Connor & Quinlan Estates was the name used by a number of property owners in relation to properties in Perth Arcade in the central business district. The respondent had held the position of property manager of Connor & Quinlan Estates since 1 July 1981 and prior to taking that position he had been employed by the previous manager, who had in turn managed the Connor & Quinlan Estates for a period of something like 20 years. The business name Connor & Quinlan Estates had at all relevant times been registered until about 1975 when its registration lapsed, thereafter becoming registered as the business name of Burke Investments Co Pty Ltd. Upon re-registration the name was held in trust by Burke Investments for all owners of the various properties.

A letter from Downing & Downing, addressed to the respondent and dated 29 June 1981, confirmed the respondent's appointment from 1 July 1981 as manager of the various properties owned by the estate and charged him with the responsibility of "the collection of all rents and other moneys to be derived therefrom and the payment of all outgoings associated therewith". The terms of appointment comprised some 10 paragraphs as follows:

"(i) Subject to any express directions of the owners you will be responsible for the management of all matters associated with the properties;

(ii) You will receive by way of remuneration an amount of SIX PER CENT (6%) of all rents, rates, taxes, electric light charges and other similar moneys received and collected by you from the tenants;

(iii) You will not take any commission or remuneration by way of a percentage of any premiums payable on the moneys, establishment of a new lease or on an assignment of a lease;

(iv) You will provide from your remuneration your office accommodation and all staff office equipment and other facilities as may be necessary to enable you to carry out your duties. Letterheads or invoices provided for estate business and carrying the printed name of the particular estate will be a charge from collections on behalf of that estate and apportioned by you to the various interests;

(v) You will not take on any appointments as trustee or executor of any estate of a deceased proprietor without prior approval of the owners.

(vi) The management of the estates is in no wise to be regarded as part of any accountancy practice which you may take over from Mr Melvin or establish on your own behalf. It must at all times be remembered that you are not to carry on work which will interfere with your management of the estates. The right is reserved to the owners to ascertain from you from time to time such information as they may require regarding your other activities in order that they may be satisfied you are not in any way prejudicing your availability for the management of the properties concerned;

(vii) You will prepare and submit periodic statements of collection and payments and arrange distribution of available funds to the various owners from time to time in continuation of procedures which have pertained in the past;

(viii) You will also provide such further information as may be required from time to time by the various owners or their representatives in relation to their affairs;

(ix) Any outside work performed by you for any of the owners, for example, the preparation (sic) of income tax returns is a matter of arrangement between you and the owner concerned and the remuneration paid to you for that activity is to your own account;

(x) You will call meetings of two groups of owners at intervals of not more than three months and special meetings if required to receive your report and to discuss the management affairs."

Evidence led before the learned Magistrate included the testimony of two lessees of properties owned by persons represented by Connor & Quinlan Estates. One Haskins was a director of a company named Grangeway Holdings Pty Ltd which owned the business of "Doogue's Lucky Lottery", the lessee of shops 3 and 4 in Perth Arcade, together with some rooms above those premises. During the term of the lease Haskins had dealt only with the respondent in relation to matters concerning the lease. When asked about rent and outgoings, Haskins gave the following explanation:

"Okay. Can you explain how rent and outgoings are paid by Doogues in respect of the tenancy? --- Sure, yes. We receive an account from Mr Hinton's office for rent and outgoings for the month on which we check that that is correct, of course, and then we make payment by cheque to Connor Quinlan Estates and that cheque is then generally hand delivered by either myself or my father, typically it would be my father, on his way back from doing the banking to Mr Hinton's office.

Did you have any discussions towards the end of 1994 concerning the renewal of your lease? --- Yes, we did. We received some documentation regarding the new lease and we had an exchange of a few letters and faxes over a period of several weeks regarding some queries and comments we had about the lease."

When cross-examined, Haskins confirmed that each month he made a cheque payable to Connor & Quinlan Estates and delivered it to the respondent's office. He understood the name Connor & Quinlan Estates to relate to the owners of the property and he believed that Connor & Quinlan Estates "included" the respondent.

A witness named Sutton testified that his wife was the lessee of a business named "Fed Up", a fastfood outlet at the corner of Murray and Barrack Streets, Perth, being a business which he and his wife managed together. When the lease of the property was assigned to Mrs Sutton it was the respondent with whom Sutton dealt, as was the case when there were renewals of the lease. Sutton understood that the owners of the property were the persons named on the lease, and he understood the respondent to be "the agent" to whom he (Sutton) was always referred on any occasion when he sought to speak with the owners. In point of fact he had tried to get to the owners directly but had been always referred back to "the agent".

The respondent testified at the hearing that he was a property manager and public accountant who managed the Connor & Quinlan Estates' owned property. In respect to the management of the properties he expressed his understanding of his powers and responsibilities as follows:

"In respect to management of those properties, what are your powers and responsibilities? --- The powers and responsibilities are to carry out the day to day management of the properties and, in consultation with the owners, to make decisions with regards to leasing, the assignment of leases, rental reviews, all matters concerning or related to property management - the proper management of the property.

Do you have autonomy in relation to those issues, or how does it work? --- I do not have autonomy in relation to the issues, or to the decisions relating to the issues. The management of the group is carried out by quarterly meetings of owners where decisions are made with regard to their property.

How do those decisions affect what you do? --- Those decisions are put into effect by me as manager for the property owners."

The respondent added that when he received moneys paid by a tenant in relation to any of the properties in the Perth Arcade, cheques were made payable to Connor & Quinlan Estates and were banked into its account with Westpac/Challenge Bank in an account named "Connor & Quinlan Hotel Perth Buildings Accounts". It was the respondent's responsibility to prepare draft financial statements for the Connor & Quinlan Estates. The respondent also testified that in the rare event that there was a vacancy in relation to the lease of any one of the properties, a real estate agent (Jones Lang Wootton) was engaged to seek a suitable tenant, but when it came to renew a lease of an existing tenant or extend that lease, the respondent, after discussions with the owners, instructed solicitors to prepare the appropriate documentation. When cross-examined the respondent agreed that when negotiating renewals of leases he dealt with the existing tenants on behalf of the owners; the name of the Westpac account of Connor & Quinlan Estates was designated "c/- Mr R L Hinton"; his remuneration took the form of monthly payments based on a percentage of 6% of gross collections, with adjustments made at the end of the financial year if there was any need for that purpose; 6% was the percentage set as the respondent's remuneration by the owners in his letter of appointment; he was named as "the lessor's agent" in the various lease documents and he regarded himself as "manager of the owners".

Provisions of the Act

Section 26 of the Act provides that "a person shall not carry on business or by any means hold himself out or itself out as a real estate agent ... unless he is licensed as such under the Act and holds a current triennial certificate in respect of the licence.

"Real estate agent" is defined (s4) to mean "a person whose business either alone or as part of or in connection with any other business, is to act as agent for consideration in money or moneys worth, as commission, reward or remuneration, in respect of a real estate transaction as defined by this section ...".

"Real estate transaction" is defined to mean "a sale, exchange or other disposal and a purchase, exchange or other acquisition of real estate", including "the leasing and letting and the acquisition under lease or letting of tenancy or occupation of real estate" and (relevantly) "includes the collection of rents or other payments for use or occupation".

The provisions of s61 of the Act provide that the Real Estate and Business Agents Supervisory Board may, with the approval of the Minister by notice published in the Government Gazette, fix the maximum amount of remuneration, whether by way of commission or otherwise, that a licensee is to receive for a service rendered by the licensee in the course of and incidental to the licensee's business as an agent. By Government Gazette dated 3 May 1991 the Real Estate and Business Agents (Remuneration) Notice 1991 set out the maximum amounts of remuneration so chargeable, and provided in relation to "property management and rent collection" that the maximum fee payable for collection fees for rent and other moneys where property was not managed was 6% of gross collections.

It was submitted for the appellant that the words "in respect of a real estate transaction" used in the definition of "real estate agent" conferred considerable width on the definition of "real estate agent". The definition of "real estate transaction" was likewise contended to be very widely defined. The term "agent" as used in s26 and other sections of the Act was said to refer not to an "agent" in the strict sense (someone clothed with authority to enter into transactions on a principal's behalf), reliance being placed upon the passage of Dixon, Fullagar and Kitto JJ in Petersen v Moloney [1951] HCA 57; (1951) 84 CLR 91 at 94:

"In connection with sales and purchases of property the word 'agent' is apt to be used in a misleading way. The legal conception of agency is expressed in the maxim 'Qui facit per alium facit per se', and an 'agent' is a person who is able, by virtue of authority conferred upon him, to create or affect legal rights and duties as between another person, who is called his principal, and third parties. When a person is employed to find a buyer of property, he is commonly said to be employed as an agent, and the term 'estate agent' is a common description of a class of persons whose business is to find buyers for owners who wish to sell property. But the mere employment of such a person under the designation of agent does not, apart from the general rule that the employer will be responsible for misrepresentations made by him, necessarily create any authority to do anything which will affect the legal position of his employer. He may, of course, be given any express authority which the employer thinks fit to give him, and estoppels may arise, but the law does not imply from the mere fact of employment to find a purchaser a general authority to do on behalf of the employer anything which may be incidental to the effecting of a sale."

The essential argument for the appellant was that the Act clearly intended that property managers "in the context of leases" be regarded as real estate agents and be licensed and that the respondent fell precisely within this category: he was designated a property manager in his letter of appointment; he was to be remunerated at the rate of 6% of all rents and other moneys received and collected from tenants; he invoiced tenants for and collected from them rent and other outgoings, including management fees; he negotiated with them concerning renewal of leases, rent increases and the like; and therefore could be said to have negotiated real estate transactions. In respect of those real estate transactions he was remunerated, receiving commission on the management fees collected; he was described in lease documentation as an "agent"; and whether or not he regarded himself as an agent was entirely irrelevant: Colbron v St Bees Island Pty Ltd [1995] FCA 1107; (1995) 56 FCR 303 at 314. It was contended that the fact that moneys collected from tenants were paid in the first instance into the owner's bank account was irrelevant to the question whether the respondent was a real estate agent and it was argued that comparing the incidents of agency with those of employment had little, if any, value in the determination of the case, an agent and an employee not necessarily being mutually exclusive. Reliance was placed upon Bowstead on Agency (15th ed) at 527 and Halsbury's Laws of England (5th ed) Vol 10, para 165-10, to the effect that an agent may be the employee of a principal.

In summary, in was argued that the real question was whether the respondent was a real estate agent within the meaning of the definition of that term in s4 of the Act and it mattered not for the purpose of s26 that he might be employed to act in that position. There was no express requirement or implication in the Act (it was argued) that the relationship of agency had to arise out of a contract for services between principal and independent contractor rather than out of a contract of service or employment between employer and employee, the Act not being concerned with the nature of the contract or arrangement which gave rise to the agency. In any event, it was submitted that to the extent that the distinction between contract for services and contract of employment might be relevant, the factors in this case pointed towards the former rather than the latter.

Counsel for the respondent stressed that the charges against the respondent had been particularised by the prosecution in seven succinct particulars which I set out:

"1. The matter subject to the charges are within the time period 9 January 1995 to 11 June 1997 ('the relevant time').

2. Robert Leonard Hinton ('Hinton') was not a Licensed Real Estate Agent, Business Agent or the holder of a triennial certificate during the relevant time.

3. During the relevant times Hinton carried on business at Connor and Quinlan Estates, ('Quinlan') 1st Floor, 81 Barrack Street, Perth.

4. During the relevant time Hinton through Quinlan was the managing agent of two shop premises in a complex of shops and rooms at the corner of Barrack and Murray Street, Perth.

(i) Jeffrey Duncan Hankins ('Hankins') of Doogues Newsagency.

(ii) Ruth Anna, and William James Sutton ('the Suttons') of a fast food outlet known as 'Fed Up'.

6. During the relevant times Hinton through Quinlan re-negotiated the leases for Hankins and the Suttons. Hinton communicated with Hankins and the Suttons over the day to day maintenance of the two leased shops and this is evidenced by letters and facsimile messages between the parties.

7. Hinton through Quinlan invoiced Hankins and the Suttons over rents due, rates, taxes and other management costings. Hinton also spoke to the lessees regarding management issues."

It was argued that because the particulars alleged that the activity of the respondent said to constitute breach of the provisions of the Act was carrying on business "through Connor & Quinlan Estates" (particulars 4, 6 and 7), the prosecution was bound by those particulars: Interstruct Pty Ltd v Wakelan [1990] 3 WAR 100 and Bunnings Forest Products Pty Ltd v Shepherd, unreported; FCt SCt of WA; Library No 980235A; 5 May 1998. Counsel for the appellant pointed out that the evidence truly established that the respondent did carry on business under the name Connor & Quinlan Estates, pointing to the fact that the respondent signed all correspondence under the business name "Connor & Quinlan Estates"; signed Connor & Quinlan Estates' correspondence under the title "manager"; banked moneys received from tenants in the Connor & Quinlan Estates' bank account; and used that account to pay expenses related to the properties in question. It was put that the respondent's role was simply that of a property manager engaged by the owners. It was pointed out that he was subject to the direction of the owners and his role was no different from that of a building manager in a multi-storey commercial building or centre manager in a shopping centre, engaged by the owner to manage the building or centre. In counsel's submission it followed that the respondent could not be said to be "carrying on business" but rather, the owners themselves were carrying on business and had done so through the name Connor & Quinlan Estates for 40 or 50 years, long before the respondent was ever engaged as manager. Alternatively, it was argued that even if the respondent could be said to be carrying on business, it was not doing so as a "real estate agent" by reason of the fact that he was subject to substantial control by the owners; did not maintain his own bank account or trust account; and operated under the owner's business name and not his own. The word "agent" (it was argued) must, notwithstanding cases like Petersen (supra) be given some content, and in the respondent's case it could not be shown that what he did was done in any capacity other than "as the actions of the owners".

In relation to the second and third alternative complaints, counsel submitted that there was no basis for conviction, because the proposition that the respondent had held himself out as a "real estate agent" by providing lease agreements to tenants for execution could not result in a conviction by reason of the following factors:

(i) the particulars of the charges made no reference to any holding out by making a representation in the leases;

(ii) the leases were not the respondent's documents but the lessor's documents, prepared by the lessor's solicitors;

(iii) the leases could not constitute the respondent as a "real estate agent" by the terms used when the facts as to the true relationship between the lessors and the respondent indicated otherwise;

(iv) the witness Haskins stated clearly that he believed that when he dealt with the respondent through Connor & Quinlan Estates he was dealing with the owners.

Counsel for the respondent went on to submit that the complaints were, in any event, bad by reason of breach of the provisions of s43 of the J_ustices Act_. It was argued that the proviso to that section was inapplicable, as the facts supporting each charge alleged against the respondent were necessarily different. Further, it was pointed out that there is no provision in the Justices Act which allows for alternative charges in a complaint. By contrast, the provisions of s582 of the Criminal Code provide that in an indictment, counts may be expressed in the alternative. It is only in that instance (it was argued) that alternative counts are properly allowable. Reference was made to Chew v The Queen (1991) 4 WAR 21 and in particular to the passage of Malcolm CJ at 35-36, where it was made clear that there will not be duplicity in an indictment (or for that matter a complaint) where the counts (or the matters contained within the charge) involve one particular action by an accused person - where the act of the accused is "one and indivisible". Here (it was argued) the complaints did not relate to conduct which was one and indivisible, but to facts which were necessarily different in each case. This being so, it was argued that the appropriate course for the learned Magistrate to have adopted was to have put the complainant to its election as to which charge it wished to pursue: Hedberg v Woodall [1913] HCA 2; (1913) 15 CLR 531 at 536 and the learned Magistrate having failed to do this, it was argued that the respondent could not properly have been convicted of any charge.

In response to the final submission of counsel for the respondent, counsel for the appellant argued that there was no duplicity in the complaints charged, as each of those complaints (referred to as "counts") relied on the same conduct and merely sought to categorise that conduct in alternative ways.

In my opinion the learned Magistrate was correct to dismiss the charges preferred against the respondent. I accept that there is a significant difference between a person who acts independently as a property manager for an owner of property or properties, and a person who is engaged "in house" as property manager for the owner or owners. As counsel for the respondent rightly pointed out, in this case the owners of the properties in Perth Arcade chose to undertake management of their own properties through Connor & Quinlan Estates. That entity in turn engaged a person to perform that task on its behalf. He (the respondent) evidenced none of the "independence" which one would expect of a person acting as a real estate agent within the meaning of that term used in the Act.

There is no doubt that the respondent performed "real estate transactions" as defined in the Act, but in my view it could not be said that he was a "real estate agent" in the sense of a person whose business was to act as agent for consideration and money or moneys worth ... in respect of a real estate transaction. The central question was what "business" it was that the respondent carried on. That business was the business of a property manager who, by the terms of his letter of appointment, performed a role which was circumscribed by conditions of appointment, including those which made him subject to the express directions of the owners; required him to ensure that he carried on no work which would interfere with the management of the estates; and stipulated that he would provide such information as might be required from time to time by various owners or their representatives in relation to their affairs. Whether he was an "employee" in the sense of a "servant" or whether he was an "independent contractor" does not seem to me to be to the point. It is unnecessary to resolve that question, although there are indications that the element of "control" exercised by Connor & Quinlan Estates might influence one to the view that he was an employee: Halsbury's Laws of England (supra) para 165-1. However, it seems to me that whether engaged by Connor & Quinlan Estates as an employee under a contract of employment or as an independent contractor under a contract for services, the central question remained whether the respondent's "business" was the business of acting as agent for consideration in money or moneys worth ... in respect of a real estate transaction.

The fact that the respondent was paid by way of remuneration, 6% of all rents, taxes etc, which he collected from tenants, a rate of remuneration fixes the maximum payable real estate agents under the Real Estate and Business Agents (Remuneration) Notice 1991 does not, in my view, necessarily categorise the respondent as a real estate agent. Any person can be engaged on terms and conditions of remuneration which may or may not reflect the same terms and conditions as those which are payable to a real estate agent, without necessarily becoming one. Nor, in my view, is it the case that because the respondent carried on certain activities properly categorised as "real estate transactions", he was necessarily a real estate agent. I accept that independence of office, and "the conduct of a business as agent for consideration ... as commission reward or remuneration in respect of a real estate transaction" is the essential aspect of being a real estate agent. Being engaged as a property manager for an entity representing owners of various estates, and performing for that entity the various activities of rent collection and the like, does not, in my view, make the respondent a real estate agent within the meaning of that definition contained within the Act.

It is true that the learned Magistrate seemed to regard the distinction between being "self-employed" and an "employee" as important, but I read her Worship's reasoning as meaning primarily that if the respondent was engaged as property manager and acted at all times "through Connor & Quinlan Estates" (as was pleaded in the particulars supplied by the prosecution) he was not a real estate agent. Her Worship was influenced by the provisions of the letter of appointment and the control aspect exerted by the Connor & Quinlan Estates. That, in my view, rightly pointed to a lack of independence on the part of the respondent of the sort which would be necessary to establish him as a real estate agent. It is true that the learned Magistrate erred in describing the respondent as "employed on a salary" when he was clearly to be remunerated on commission, but that error is not of itself sufficient to invalidate her Worship's reasons.

In any event, it seems to me that whether or not I am correct in the conclusion I have reached about the respondent falling outside the definition of a "real estate agent" and therefore not in breach of the provisions of s26 of the Act, the complaints as preferred at the hearing were bad for duplicity. Those complaints were four in number (although only three are now relied upon) but in truth were contained within the one charge sheet. For some reason they were independently numbered, but the papers clearly establish that they were preferred in the alternative and, at the hearing of this appeal, counsel for the appellant frankly conceded that they were preferred as "alternative counts". I do not consider the term "counts" applicable to a Justices Act complaint, as the word is nowhere used within the Justices Act and is uniquely applicable only to an indictment. Further, under the provisions of s582 of the Criminal Code, an indictment may contain alternative counts, and were it not for that provision an indictment clearly could not allege more than one offence.

Section 43 of the Justices Act provides that a complaint shall be "for one matter only and not for two or more matters" subject to the provisos that if the matters of complaint are substantially of the same Act or omission on the part of the defendant, those matters may be joined in the same complaint and where several simple offences are alleged to be constituted by the same acts or omissions, or by a series of acts done or omitted to be done in the prosecution of a single purpose, charges of such offences may be joined in the same complaint. That was not, in my view, the present case. There were alleged against the respondent three separate and independent things:

(1) That between 9 January 1995 and 11 June 1997 at Perth he carried on business as a real estate agent whilst not licensed and whilst not holding a current triennial certificate.

(2) Between 9 January 1995 and 11 June 1997 at Perth he held himself out to one Henkins as a real estate agent whilst not licensed.

(3) Between July 1997 and 3 June 1997 at Perth he held himself out as a real estate agent to persons named Sutton, whilst not licensed.

(4) The second and third charges were expressed as "in the alternative to 1" and "in the alternative to 1 and further to 2", and by being expressed "in the alternative", it seems to me they were not being preferred in terms of the exceptions provided for in the proviso to s43 of the Justices Act. They were truly alternative charges involving alternative allegations, reliant upon separate and distinct sets of facts. It was the first charge which contained the general allegation of carrying on business as a real estate agent whilst not licensed, and that, in my view, was the charge which the prosecution should have been forced to elect to proceed upon. In point of fact, the prosecution was not called upon to elect at all, and I accept that in the absence of being called upon to elect, and the charges being duplicitous, there could not properly have been any conviction at all.

For all of these reasons I would uphold the decision of the learned Magistrate to dismiss the charges preferred against the appellant.