Warren Gibson, NSW Fair Trading v Roberta Graham

Judgment 1HIS HONOUR: On 21 September 2012 Mr Gibson filed a series of three Court Attendance Notices commencing summary prosecutions in the Local Court against Ms Graham. Each notice respectively alleged that Ms Graham had committed an offence against sections 4(1)(a), 8(1)(a) and 92(2) of the Home Building Act 1989. 2In commencing the prosecutions, Mr Gibson relied upon s 14 of the Criminal Procedure Act 1986. That section is in the following terms: "14 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." 3The proceedings came before his Honour Magistrate Brown in the Local Court at Parramatta on 14 June 2013. Ms Graham applied to his Honour for an order dismissing the prosecutions upon the basis that Mr Gibson lacked authority and had no power to institute the prosecutions and accordingly that they were not properly before or within the jurisdiction of the Local Court. His Honour made orders striking out the proceedings and awarded costs in favour of Ms Graham in the sum of $82,494. 4By his summons filed in this Court on 11 July 2013 Mr Gibson seeks orders in the nature of prerogative relief pursuant to s 69 of the Supreme Court Act 1970, or alternatively relief pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001. In substance Mr Gibson contends that his Honour erred in law in determining that s 9(1)(a) of the Fair Trading Act 1987 expressly conferred power on the Director-General to bring the proceedings under the Home Building Act and in finding that Mr Gibson was not authorised pursuant to s 14 of the Criminal Procedure Act to commence the proceedings against Ms Graham. Mr Gibson also sought a declaration that his Honour erred in law in determining that the power to award costs pursuant to s 214(1)(b) of the Criminal Procedure Act for initiating proceedings without "reasonable cause" included "a lack of legal cause" and that the power to award costs pursuant to s 214(1)(d) for "exceptional circumstances" included error by the prosecutor about the existence of appropriate authority to bring the proceedings. 5When the matter came before me, counsel for Ms Graham sought leave, which was unopposed, to file a notice of contention supporting his Honour's decision upon the following ground: "On the proper construction of the Home Building Act 1989, the plaintiff did not have the authority to prosecute the first defendant for the alleged contraventions the subject of the Court Attendance Notices of 21 September 2012 as he did not have the delegated authority of the Director-General to do so." 6His Honour's judgment is concise. He noted that it was common ground between the parties that the Home Building Act did not itself contain any provision conferring a right to institute prosecution action on any specified person or class of person as contemplated by s 14 of the Criminal Procedure Act. It was accepted by the parties before me that his Honour was there intending to refer to the absence of any express provision, as contemplated by the precise words of the section. His Honour continued as follows: "Whilst the present informant is without doubt a public officer within the meaning of the Criminal Procedure Act, it appears that he is not authorised under s 14 of the Criminal Procedure Act to commence proceedings so as to invoke s 173 of the Criminal Procedure Act and as Mr Gor correctly points out, whilst the informant would be able to generally institute criminal proceedings, were he to do so he would need to proceed via s 174 of the Criminal Procedure Act so that any court attendance notices would require the approval of the registrar of a Local Court." 7His Honour had previously and conveniently encapsulated Ms Graham's propositions in the following passage from his reasons for decision: "It is the defendant's submission in these proceedings that the proceedings themselves are not competent. The defendant argues that the power to initiate prosecutions is conferred on the Director-General of Fair Trading under s 9 of the Fair Trading Act. Power to delegate functions under the Home Building Act is conferred on the Director-General by s 8(1)(c) of the Fair Trading Act. It is common ground that no power to initiate proceedings for offences under the Home Building Act has been specifically conferred on the informant in the present proceedings." 8His Honour's conclusions were expressed in these terms: "It follows then that the present informant lacks any delegated authority to commence criminal proceedings under the Home Building Act and that the purported CANS before this court are invalid and confer no jurisdiction on the Court to hear the charges. The proper order I believe in those circumstances is to mark the papers 'no jurisdiction, struck out'." 9Mr Gibson challenges these conclusions. His contentions in this Court were straightforward. Mr Gibson was a public officer authorised for the purposes of s 173 and as such entitled to commence prosecutions pursuant to the Home Building Act. The proviso to s 14 did not apply: the right to institute the prosecution or proceeding was not expressly conferred by the Home Building Act on any specified person or class of persons. Mr Gibson was authorised therefore to commence the proceedings in the way that he had. 10As is sometimes the case, the arguments in this Court had been reconsidered and refined since first exposed in the Court below. By the time Ms Graham concluded submissions before me, the apparent significance of ss 8 and 9 of the Fair Trading Act had all but evaporated. Those sections are in these relevant terms: "8 Delegation by Director-General (1) The Director-General may delegate to any person or committee the exercise of any of the functions conferred or imposed on the Director-General by or under the following: (a) this Act, ... (c) Home Building Act 1989..." 9 Functions of Director-General (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)..." 11These provisions are not of any particular relevance or assistance in the present context. It appears to have been assumed or argued before his Honour that s 9 somehow authorised the commencement of proceedings such as those instituted by the relevant Court Attendance Notices and that the Director-General, Fair Trading was the only person entitled to do so or entitled to authorise someone to do so. That is wrong for at least two reasons. First, the provision is no more than a statement in general terms of the Director-General's functions. It is clearly a statement of what the Director-General can do in the exercise of his powers, rather than a limitation or restriction upon the way in which the powers may be exercised. Secondly, and perhaps more importantly, the section says nothing in terms or by necessary implication about the commencement of proceedings or prosecutions of the sort currently in contemplation or indeed at all. Action for remedying infringements or for securing compliance is quite different to the commencement of criminal prosecutions in cases where penalties apply to infringements of, or failures or refusals to comply with, provisions of the Fair Trading Act. There is no necessary connection or association between criminal prosecution and penal sanctions for infringements and the remedying of infringements, or between criminal prosecution and penal sanctions for non-compliance and the securing of compliance. 12In the events that occurred, Ms Graham was forced in this Court to confront the refined and singular proposition that ss 14 and 173 of the Criminal Procedure Act authorised the commencement of the relevant proceedings against her by Mr Gibson. She sought to do so in the following ways. 13Ms Graham acknowledged and accepted that the Home Building Act did not in terms confer the right to institute a prosecution or proceedings upon a specified person or class of persons. She did not however accept that there was not in those circumstances no express conferral of such a right. She resorted to old authority in support of an argument that "whatever the language used [in a statute] necessarily or even naturally implies is expressed thereby": see Chorlton v Lings (1868) LR 4 CP 374 at 387. To like effect in the same case at 393 are observations suggesting that "expressly" often means no more than "plainly, clearly or the like." 14Ms Gibson sought to argue that the Home Building Act had to be read as a whole and in context. When so construed it "expressed" an intention that only the Director-General or his duly appointed delegate could prosecute her for the alleged contraventions of the Act referred to in the Court Attendance Notices. Even though it was not possible, it was also unnecessary, to point to an individual provision or provisions in the Act that specified a particular person or class of persons, if reading or construing the Act in the way contended for otherwise produced the same effective result. It was submitted that I should imply an express conferral of power upon the Director-General under the Home Building Act. 15In Eades v Sundowner Caravan Parks Pty Ltd (1982) 48 LGRA 307 at 312, the Court referred to Chorlton v Lings saying: "It is clear that an express provision may be made by whatever the language used necessarily of even naturally implies." 16Later in Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 at 372, Young J provided the following guidance: "Normally the word 'expressed' means made plain, but does not extend so as to mean 'words indicating precisely the position must be used'...There are quite a few authorities in the United States dealing with the word 'expressed'. Many rely on Black's Law Dictionary...which defines 'express' as: 'clear; definite; explicit; plain; direct; unmistakable; not dubious or ambiguous. Declared in terms; set forth in words. Directly and distinctly stated. Made known distinctly and explicitly and not left to inference... Manifested by direct and appropriate language'..." 17Ms Graham contended that these observations permitted or encouraged what amounts to a review of the Home Building Act in search of an express indication that the right to institute a prosecution or proceeding was expressly conferred by that Act on a specified person or class of persons. Four general matters were said either alone or particularly in combination to produce such a result. 18First, the nature of the offences the subject of the prosecution. The elements of the offences were said to be "not discernible to members of the public at large", suggesting the requirement for some special knowledge before a prosecution could be launched, and hence the limitation of responsibility for such prosecution to only a person possessed of that specialty. Ms Graham submitted that Mr Gibson's contention was that he needs the approval and delegation of the Director-General to gather and marshal information for a prosecution, but as a matter of statutory construction he remains free to deal with that information without any corresponding obligation to account to the Director-General. It is said that Ms Graham's construction avoids that possibility. 19Secondly, Ms Graham draws upon the terms of s 106 of the Home Building Act. That provision is as follows: "106 Functions of Director-General under Act The Director-General has the following functions: (a) to promote and protect the interests of owners and purchasers of dwellings (including the purchasers of kit homes) and users of water supplies, sewerage systems, gas, electricity, refrigeration and air conditioning, (b) to set, assess and maintain standards of competence of persons doing residential building work or specialist work, (c) to complement the work of industry organisations, public authorities and educational institutions in promoting standards, (d) to give general advice and guidance to the public, (e) to monitor the operation of insurance provided for the purposes of this Act." 20Ms Graham suggested that one way of protecting the interests of owners and purchasers of dwellings is to launch prosecutions for contraventions of the Act. The deterrent effect of prosecutions and convictions was said to be consistent with providing such protection. The Act makes it clear that the protective function is imposed on the Director-General rather than public officers from NSW Fair Trading or members of the public. Moreover, this protective function is delegable: see s 122 of the Home Building Act. Ms Graham contends that as a matter of practice this delegation is precisely what might be expected to occur. Mr Gibson held no such delegated authority. Ms Graham contended that such a delegation to Mr Gibson was necessary in order to prosecute her. 21Thirdly, s 144 of the Home Building Act deals with limitations upon liability. It is as follows: "144 Limitation of liability A matter or thing done by the Director-General or any other person acting under the direction of the Director-General does not, if the matter or thing was done in good faith for the purposes of executing this or any other Act, subject the Director-General or a person so acting personally to any action, liability, claim or demand." 22Ms Graham argued that it must be assumed that a prosecutor could not be expected to perform functions of any sort unless he or she was subject to the protections offered by this provision. Mr Gibson was neither the Director-General nor a person holding a delegation from the Director-General. As such he was not within the scope of the limitation of liability provisions of the Act pursuant to which the prosecutions were commenced. Ms Graham argued that the implication was in those circumstances clearly in favour of the proposition that only the Director-General or someone holding a relevant delegation could prosecute her. 23Fourthly, a review of the manifold provisions of the Home Building Act places the Director-General at the heart of the work that the Act has to do. He is in effect central and essential to its operation. Ms Graham argued that it would be an incongruous construction in such circumstances if the important function of committing public resources to a prosecution were left without supervision or control to "public servants in the employ of NSW Fair Trading". 24In my view the first proposition illegitimately conflates the investigative and prosecutorial roles and impermissibly reasons that they cannot operate independently. There is no sound or principled basis for such a contention. Indeed, there may well be good reasons for keeping the two roles apart. Prosecutorial objectivity is important and may on one view be more efficiently maintained if those with an intimate connection with assembling evidence are not also drawn into making decisions about its forensic value. 25The second proposition does not follow. The deterrent effect of prosecutions commenced and convictions obtained by individuals such as Mr Gibson is no less emphatic or significant than those sponsored directly in the name of the Director-General or an appointed delegate. 26The third proposition proceeds upon the unproved assumption that Mr Gibson would not otherwise be protected by some equivalent indemnity appearing elsewhere. Be that as it may, sections such as s 144 appear regularly in legislation passed by the New South Wales parliament. The existence of this provision provides no worthwhile platform from which to argue that only someone acting within its potential protection can commence prosecutions. Section 14 applies to Mr Gibson unless he is beyond the terms of an express conferral upon him of a right to prosecute or proceed or upon a class of which he is a member. The hypothetical unavailability of personal protection for him from any action, liability, claim or demand does not in my view inform the conclusion that Mr Gibson cannot have been contemplated as a person entitled to commence a prosecution or proceeding under the Home Building Act. No amount of semantic contortion can operate to produce the equivalent of an express provision out of so tepid an implication. 27The fourth proposition is based on the assumption that Mr Gibson would be somehow unconstrained in his ability to prosecute infringements under the Home Building Act and that such a possibility leads to or supports the conclusion that an express conferral of prosecutorial authority is therefore to be found somewhere residing in the Act. Even accepting that the assumption is correct, the contention is no more than a hopeful statement of a preference. It is no substitute for a proper reading of the words of s 14 of the Criminal Procedure Act. 28Although Ms Graham took me to portions of the judgments in Chorlton v Lings, there are others not specifically relied upon which are equally illuminating. Bovill CJ agreed that the Act there under consideration should be interpreted as a whole. He also made certain other remarks that are arguably inimical to the propositions for which Ms Graham currently contends. For example, at 386: "There is no doubt that, in many statutes, 'men' may be properly held to include women, whilst in others it would be ridiculous to suppose that the word was used in any other sense than as designating the male sex: and we must look at the subject-matter as well as to the general scope and language of the provisions of the later Act in order to ascertain the meaning of the legislature. I do not collect, from the language of this Act, that there was any intention to alter the description of the persons who were to vote, but rather conclude that the object was, to deal with their qualification; and, if so important an alteration of the personal qualification was intended to be made as to extend the franchise to women, who did not then enjoy it, and were in act excluded from it by the terms of the former Act, I can hardly suppose that the legislature would have made it by using the term 'man'." 29An Act must be read as a whole and in proper context. Bovill CJ considered that if a fundamental right or entitlement were to be altered by the parliament then one might logically assume that such an intention would have been specifically incorporated by proper drafting in the Act and not left to be "expressly conferred by implication". That is so even if such an implication can theoretically be identified after a thorough examination of the Act as a whole. Reading the Home Building Act as a whole and in context, it remains clear that there is no express conferral of prosecutorial powers and functions upon any person or any class of persons, and in my opinion no such conferral can be identified by implication. 30The search must be, as a matter of language, for something that is made known distinctly and explicitly and not left to inference. It must be a search for something manifested by direct and appropriate language. Section 68 of the Fair Trading Act is an example of precisely such a provision and provides an instructive comparison. It is in these terms: "68 Proceedings for offences (1) 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. (2) Proceedings for an offence under this Act or the regulations may be dealt with: (a) summarily before the Local Court, or (b) summarily before the Supreme Court in its summary jurisdiction. (3) If proceedings are brought in the Local Court, the maximum monetary penalty that the Local Court may impose for the offence is 100 penalty units, despite any higher maximum monetary penalty provided in respect of the offence. (4) In proceedings for an offence against this Act, an authority to prosecute purporting to have been signed by the Director-General is evidence of that authority without proof of the signature of the Director-General." 31That section is a clear and pertinent example of the kind of express provision contemplated by s 14 of the Criminal Procedure Act. An equivalent provision in the Home Building Act is conspicuously absent. Having regard to the terms of s 8 of the Fair Trading Act, the potential interaction between it and the Home Building Act, and the ambulatory authority of the Director-General in the administration of each, it is not in my opinion without significance that the latter Act contains no similar or equivalent provision with a cognate operation. It is by no means clear, and it is certainly not clear to me, that any express conferral of power has been made by, or can be found in, language that necessarily of even naturally implies it. 32I am satisfied that Mr Gibson was authorised and entitled to commence the relevant prosecution. The prosecution or proceeding undertaken by him was in respect of offences under the Home Building Act. That Act did not in the same way as, or in terms equivalent to, s 68 of the Fair Trading Act, expressly confer that right upon any other specified person or class of persons of which he was not a member. 33The notice of contention is uncontroversial. Mr Gibson did not suggest that he was the recipient of any delegated authority from the Director-General to prosecute contraventions of the Home Building Act or indeed any delegated authority at all. He maintained throughout only that he was entitled to prosecute by reason of the combined effect of ss 14 and 173 of the Criminal Procedure Act. I agree. 34His Honour made an order for costs. That order is challenged. Ms Graham quite properly concedes that if I am against her on the substantive issues, the costs order must also go. It is therefore unnecessary to consider that issue any further. 35In these circumstances I will make the following orders: