Smithers v Office of Fair Trading

DISTRICT COURT OF QUEENSLAND

1. On the 5th of December 2017, a Complaint – General Purposes – Made and Summons was filed in the Townsville Magistrates Court pursuant to the provisions of the Second-hand Dealers and Pawnbrokers Act 2003.  The complaint was under the hand of Cheryl Therese Black, a public officer of the Office of Fair Trading in the State of Queensland.  The charge contained within the complaint was directed toward Wayne Albert Smithers, who is the appellant now before me.  The charge can be particularised as follows:

   That between the 23rd of August 2017 and the 19th of October 2017 at Townsville in the Magistrates Court district of Townsville in the State of Queensland, one Wayne Albert Smithers did carry on the business of a second-hand dealer whilst not being the holder of a second-hand dealer’s licence.

2. The particulars of the charge were then detailed in the complaint and were in this form, headed Particulars Re:  Charge 1:

·    On 29 July 2016, the defendant’s second-hand dealers licence expired.

·    On 24 August 2017, Office of Fair Trading Inspectors attended at the business displaying the trading name Top Deal Secondhand located at 8 Horwood Street, Currajong.

·    Inspectors saw and photographed second-hand property displayed for sale at 8 Horwood Street, Currajong.

·    On 17 October 2017, an Officer from the Office of Fair Trading attended at 8 Horwood Street, Currajong and purchased a second-hand vase for $45 cash from the defendant.  Receipt No. 89 for the $45 was provided by the defendant.

·    On 18 October 2017, an Officer from the Office of Fair Trading attended at 8 Horwood Street, Currajong and purchased 1 second-hand square “white wedding” ring pillow for $3, 7 second-hand fridge magnets for $8 and 3 second-hand decorative plates for $3 cash from the defendant.  Receipt No. 90 for $15 was provided by the defendant.

3. The complaint was accompanied by the summons, as I have already made reference, and noted that an appearance was required on the 9th of January 2018.  On the 9th of January 2018, the matter was mentioned before the Magistrates Court and the appellant was granted bail without condition to appear again on the 9th of April 2018. 

4. On the 12th of March 2018, an application for an adjournment was filed by the appellant, noting that the reason for the adjournment was as follows:

   Had a stroke two weeks ago.  Needs to take time to recover; and see doctors.

5. It would seem that that was clearly accepted by the court, because prior to the next return date, the 9th of April 2018, further bail was extended to a return date of the 16th of July 2018.  On the 16th of July 2018, the matter then proceeded before Magistrate Mosch.  It proceeded, it would seem, for the whole day, noting that a decision of Magistrate Mosch was not taken until 4.05 pm on the 16th of July 2018. 

6. At that time, Magistrate Mosch indicated that he was in a position to deliver a decision and provided a well-considered determination of the legislative basis upon which he was satisfied that the appellant was guilty of the breach of the Act under which he was charged.  At page 8 of the decision of the 16th of July 2018, Magistrate Mosch said from line 21:

It may not have been a large business of dealing in second-hand property and it may have been an adjunct of the business of the Defendant in selling new furniture or reproduction furniture. But, ultimately, I am satisfied beyond a reasonable doubt that beyond carrying any such business involving new furniture or reproduction furniture, there was sufficient used personal property involved, which was being offered for sale, such that the Defendant was also carrying on a business of dealing in second-hand property.

7. Magistrate Mosch then said:

On this basis, I am satisfied beyond a reasonable doubt that between 23 August 2017 and 19 October 201,7 at Townsville, the Defendant did carry on the business of a second-hand dealer; whilst not being a holder of a second-hand dealer’s licence.  I therefore find the defendant guilty of this charge.

8. Thereafter, Magistrate Mosch heard submissions in relation to sentence from the legal representative for the Office of Fair Trading and also went on to hear from the appellant.  The penalty that was imposed totalled $2596.15.  This was made up of a fine of $1000, costs incurred by the complainant of $1500 and the costs of court of $96.15.

9. The decision of Magistrate Mosch is the subject of an appeal pursuant to the provisions of section 222 of the Justices Act 1986. A notice of appeal to this court was filed on the 17th of August 2018. It should be noted that the appeal was filed out of time. The conviction was recorded on the 16th of July 2018, and an appeal pursuant to the provision of the Justices Act is required within one month of the date of conviction.

[10]  The notice of appeal indicated that the grounds upon which the appeal is based was as follows:

I was found guilty dealing in a second-hand property transaction with a value less than $55 without a second-hand dealer’s licence according to the law in the Second-hand Dealers and Pawnbrokers Act of 2003 supplied to me by the OFT. The value of the second-hand goods are $55 or more, so the OFT changed the law on the day to suit themselves. I did not need a licence.

[11]  Accompanying the appeal was a notice of application for extension of time for filing notice of appeal in the District Court.  The grounds of the application were noted as follows:

Not guilty.  Had a stroke and the day was long and by the afternoon couldn’t think properly. 

[12]  The position taken by the representative of the Office of Fair Trading was to enter an appearance to the notice of appeal and to file an outline of argument in relation to the appeal.  The matter was in a position to proceed on the 18th of October 2018, and the appellant and the respondent both indicated that they were ready. I took submissions from both the appellant and the respondent, noting that the respondent had filed and served an outline of argument and that a copy of that outline had been provided to the appellant.  The submissions by the appellant were short and to the point.  They could be summarised as follows:

·    I forgot all my evidence before the magistrate;

·    I had a stroke and I forget things;

·    I was unable to get Legal Aid;

·    I cannot afford a solicitor;

·    I am not guilty.

[13] Of course, any appeal, particularly one which is out of time, must explain with some particularity the basis upon which the appeal is made and, in circumstances where the appeal is out of time, even if it is only out of time by one day, as is the case here, then the delay must be explained. The position of the respondent was to say that they opposed the application for an extension of time on a number of bases. The outline of argument noted that section 222 of the Justices Act gives an appellant a right to appeal the decision of a magistrate if the appeal is commenced within one month of the date of the decision. Section 224(1) certainly provides that a judge of the District Court has the power to extend the time stated for filing an appeal, but to do so, the court must be satisfied that there is a proper basis for the appeal, as well as an appropriate explanation of the delay.

[14]  The matters that are relied upon by the appellant in relation to the appeal have been detailed by me in these reasons.  The submission on the part of the respondent is to the effect that the appellant has in no way and certainly not adequately addressed why he did not file the application in time.  His suggestion that he had had a stroke may be true, but it is not accompanied by any medical evidence, and it is noteworthy that an adjournment was obtained in March/April of 2018 as a result of the stroke but that there does not appear to have been any application whatsoever in relation to any difficulties associated with the conduct of the proceedings on the 16th of July 2018. 

[15]  It is clear that that is the case, and whilst there may be certain sympathies for the appellant in this particular matter, noting that he acts on his own behalf, there needs also to be consideration of the merit upon which the appeal is based.  In that respect, the outline by the respondent notes in respect of the grounds of appeal the following:

·    The Office of Fair Trading has no power to change the law during the court proceedings and the law was not changed;

·    The appellant’s view that he doesn’t need a second-hand dealers licence because the goods he was convicted of selling without a licence were of a value less than $55,  is contrary to the provisions of the Second-hand Dealers and Pawnbrokers Act 2003;

· Section 6(1) of the Second-hand Dealers and Pawnbrokers Act 2003 does not fix any value applicable to the holding of a second-hand dealer’s licence;

· The appellant appears to have confused the requirements relating to the entering of a transaction valued at more than $55 into the register as being the basis upon which a licence should be held. However, there is no breach suggested in relation to section 37 but rather the more general provisions of section 6 of the Second-hand Dealers and Pawnbrokers Act 2003.

[16] Section 6(1) of the Second-hand Dealers and Pawnbrokers Act 2003 specifically provides as follows:

A person must not carry on a business of dealing in second-hand property or act as a market operator unless the person is a second-hand dealer.

[17]  The maximum penalty imposed in relation to such an offence is 200 penalty units, and I note that in that regard the indication was given that 200 penalty units reflects a penalty of $25,230. 

[18] Section 6(2) of the Second-hand Dealers and Pawnbrokers Act 2003 then goes on to note persons who would not be found to be in contravention of section 6(1), as follows:

(a)a pawnbroker to the extent the person may lawfully deal with second-hand property under the person’s licence under this Act;

(b)an auctioneer, motor dealer or motor salesperson under the Property Agents and Motor Dealers Act 2000 to the extent the person may lawfully deal with second-hand property under the person’s licence under that Act;

(c)a dealer under the Weapons Act 1990 to the extent the person may lawfully deal with second-hand property under the person’s licence under that Act;

(d)a person dealing in second-hand property to the extent the dealing is part of a business that involves acquiring property and hiring the property to others;

(e)a person dealing in second-hand property for a charity registered under the Collections Act 1966;

(f)a charity, religious denomination, or an organisation formed for a community purpose, within the meaning of the Collections Act 1966;

(g)a local government;

(h)an authorised deposit-taking institution under the Banking Act 1959 (Cwlth);

1. a company registered under the Life Insurance Act 1995 (Cwlth);

(j)a trustee company under the Trustee Companies Act 1968.

[19]  It is relevant that the appellant falls within none of those categories of exception to the requirements to hold a second-hand dealers licence.  In that regard, the argument before Magistrate Mosch was clearly considered at length.  The appellant cross-examined a number of the witnesses who were called with regard to their knowledge, training or experience in relation to assessment of what does or does not constitute second-hand goods. 

[20] It appeared clear in argument that was then conducted before Magistrate Mosch that the appellant appears to have in some way melded the requirements with regard to the holding of a second-hand licence, arising pursuant the provisions of section 6(1) of the Act with the requirements of section 37 in respect of the entering of a transaction valued at more than $55 into a register. The confusion appears to remain unabated or at the very least to remain unsatisfied from the perspective of the appellant.

[21] However, the legislation is clear. The requirement is pursuant to section 6(1) of the Second-hand Dealers and Pawnbrokers Act 2003 to hold a licence if it is intended to sell second-hand goods.  The finding by Magistrate Mosch was that between the dates contained within the complaint, the evidence satisfied him that the appellant had dealt with such property.

[22]  I am satisfied that there are no merits whatsoever in the appeal that has been brought by the appellant and that, therefore, both the application for extension of time and appeal should be dismissed.  I intend to so order and noting, as I do, that a principal legal officer of the Office of Fair Trading attended for the purposes of the argument to also order that the appellant pay the respondent’s costs fixed in the sum of $900, such payment, unless otherwise agreed in writing, to be made within 60 days of the date of this order.