Weller, Office of Fair Trading v El Homsi & Anor [2009] NSWSC 282

Reported Decision : 74 NSWLR 443

New South Wales Supreme Court

CITATION : Weller, Office of Fair Trading v El Homsi & Anor [2009] NSWSC 282

HEARING DATE(S) : 14/04/09

JUDGMENT DATE : 17 April 2009

JURISDICTION : Common Law Division

JUDGMENT OF : Kirby J

I make the following orders in respect of the appeals in relation to Charges 2, 5 and 7. (1) Pursuant to s 59(2) of the Crimes (Appeal and Review) Act, I set aside the orders made at the Parramatta Local Court on 12 September 2008, dismissing charges against the defendant of interfering with the odometer of a motor vehicle, contrary to s 47A(1) of the Motor Dealers Act 1974. DECISION : (2) I declare that the Magistrate erred in law in determining that the absence of written approval of the Director-General or a prescribed person was a necessary element of an offence under s 47A of the Motor Dealers Act 1974, and that the prosecutor was required to prove that element before the offence was made out. (3) I order that the proceedings be remitted to the Local Court at Parramatta to be heard and determined according to law. (4) I order the defendant to pay the costs of the Department of these proceedings, but grant to the defendant a Certificate under s 6 of the Suiters' Fund Act 1951.

CATCHWORDS : CIVIL LAW - appeal against Magistrate's decision dismissing charges under Motor Dealers Act 1974 - allegation of interference with odometer - statutory construction - interpretation of s 47A(3) of the Motor Dealers Act - ONUS - whether element or exception - error of law - onus on defendant to prove exception.

Motor Dealers Act 1974 Crimes (Appeal and Review) Act 2001 LEGISLATION CITED : Crimes Act 1900 Motor Car Act 1951 (Vic) Occupational Health & Safety Act 1985 (Vic)