Interim Advance Corporation Pty Ltd v Fazio

[2008] WASCA 140

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Criminal Law
2. › Defences
3. › Honest claim of right
4. › Section 22 of the Criminal Code (WA)
5. › Elements of the defence
6. › Evidentiary onus on accused
7. › Legal burden on prosecution to negative defence
8. › Whether evidentiary onus satisfied by unchallenged evidence of honest belief
9. › Criminal Code (WA), s 22
1. Criminal Law
2. › Statutory offences
3. › Debt Collectors Licensing Act 1964 (WA)
4. › Proper construction of 'debt collector' as defined in s 3
5. › Whether 'the functions of a debt collector' for purposes of s 5(1) include preparing and signing Local Court summonses
6. › Whether 'any gain, fee or reward whatever' requires proof of profit margin
7. › Interaction between s 5 of the Act and s 123 of the Legal Practice Act 2003 (WA)
8. › Debt Collectors Licensing Act 1964 (WA), ss 3, 5
1. Statutory Interpretation
2. › Concurrent operation of statutes
3. › Whether Parliament may prohibit identical conduct under two separate enactments
4. › Whether functions of debt collector exclude conduct also prohibited under Legal Practice Act 2003 (WA)
5. › Debt Collectors Licensing Act 1964 (WA), s 4(a), s 5
6. › Legal Practice Act 2003 (WA), s 123
1. Appeal
2. › Criminal appeal
3. › Appellate court's power to make findings of fact
4. › Whether appellate court can determine credibility of unchallenged evidence where trial court made no relevant findings
5. › Criminal Appeals Act 2004 (WA), Pt 2

Quick Take

The defence of honest claim of right under s 22 of the Criminal Code (WA) is properly raised where the accused adduces evidence of an honest belief in entitlement to the property in question, even if that belief is unfounded in law; once the evidentiary onus is satisfied, the prosecution bears the burden of negativing the defence beyond reasonable doubt. The word 'gain' in the definition of 'debt collector' in s 3 of the Debt Collectors Licensing Act 1964 (WA) does not require proof of a profit margin; any form of commercial recompense suffices. The functions of a debt collector under s 5(1) of the Act include preparing court documents for debt recovery, notwithstanding that such conduct may also contravene the Legal Practice Act 2003 (WA).