Auscare Corporation Pty Ltd v New South Wales Department of Commerce [2007] NSWIRComm 271 | Case summary

Auscare Corporation Pty Ltd v New South Wales Department of Commerce [2007] NSWIRComm 271 | Case summary | Zoe

[19] We agree that breaches of industrial instruments are serious matters and, in that respect, we concur with the view expressed by Marks J in Transport Workers' Union v Carey's Warehousing & Distribution Pty Limited and others [2006] NSWIRComm 192 at [15] as follows: [15] The starting point for the assessment of an appropriate penalty is a consideration of the objective seriousness of the offences with which the defendants are charged. The prosecutor submitted, and I accept, that the failure to comply with the provisions of an industrial instrument is a serious matter. Industrial instruments are designed to provide for minimum rates of pay and working conditions for employees. They are established through mechanisms created by government and are intended to have, and do have, the force of law in terms of their application and the enforcement of duties and obligations imposed by them. [16] ...The underpayment of any wages will always be a serious matter, particularly from the perspective of an employee. 20 We would add, however, that the seriousness attaching to breaches of industrial instruments also relates to the important public purpose such instruments serve by the creation of an orderly system of employment regulation, including the establishment, by force of law, of minimum entitlements for employees (as assessed by the Industrial Relations Commission of New South Wales). We also observe in relation to the above matters, his Honour found that not only were the obligations in the relevant award clear and unambiguous, but there was 'evidence of a systematic refusal to pay overtime, for time worked on Saturdays at the rate provided for in the Award, being double time and annual leave loadings.' 21 There is no evidence in the matters before us that there was any systematic refusal to pay the employees concerned in any relevant respect. Without more than passing consideration to the distinction between the Club Award and the Restaurants Award, for the purposes of these proceedings we accept that the reliance on the Restaurants Award was done in good faith (although we note that this observation does not detract from the requirement for strict adherence to the terms of such instruments). 22 Marks J also considered breaches of industrial instruments in Transport Workers' Union of New South Wales v Contract Courier Services Pty Ltd [2007] NSWIRComm 152 and in particular at [20] when he said, in words that we would endorse: [20] I commence by observing that industrial instruments serve an important and integral part in the orderly regulation of relationships between employers and employees and principals and independent contractors. They have the force of law and sanctions are imposed for breach. ... 23 In endorsing his Honour's observations as to the importance of, and integral part, industrial instruments play in the relationship between employers and employees, we would also observe, in relation to the matters before us, there is no evidence, as was the case before his Honour, that 'the conduct of the defendant cannot be characterised as something that was unintended'. As earlier indicated, the breaches of the industrial instruments arising under s 357 of the Act arose as a result of an honest belief as to the relevant award applying. 24 Overall, in relation to the breaches arising under s 357 of the Act, we are of the view that, given the facts and circumstances, they are at the lower end of the scale of objective seriousness.

17 In this matter, there would not appear to be a strong likelihood that no penalty would be imposed. There may also be doubts (although this does not arise) as to whether the Chief Industrial Magistrate may be found to have imposed a penalty outside the appropriate range. 18 Having regard to the factors which may arise in relation to penalty, as described in paragraph [10] above (and the prospect of other contentions being put by the appellant), however, it could not be concluded, on appeal, and with sufficient certainty, that it was inconceivable that a discretion to impose no penalty may be exercised in favour of the appellant. That is, it is not possible to conclude with sufficient certainty that compliance with the requirements of procedural fairness could not have made a difference (of the kind sought by the appellant) and that nothing had been lost by the failure at first instance. 19 By a slender margin then, we agree with the conclusion reached by Schmidt J that the appeal be upheld. However, we do not agree that the matter should be remitted for hearing before an Industrial Magistrate, notwithstanding that the appellant was not afforded a fair hearing in the Local Court. This Court has the power to itself determine the appropriate penalty to be imposed under s 357 for the admitted breaches of the relevant award, and should do so, in our view, in the interests of justice. We shall briefly elaborate. 20 The appellant challenges the severity of the penalty. Whilst the Full Bench of this Court is yet to rule upon whether the amendments to s 197(2) of the Act brought about by the Justices Legislation Repeal and Amendment Act 2001 had the effect of displacing the authority of this Court as to the nature of appeals from Local Courts in Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at [444] to [449] (see T & M Industries (Aust) Pty Ltd v WorkCover Authority (NSW) (Inspector Sequeira) (2006) 151 IR 130 at [21] and Scevola v WorkCover Authority (NSW) (Inspector Sealey) (2005) 142 IR 233), we consider that the Court has ample power, in an appeal brought from the Local Court, to both set aside or vary any penalty imposed under s 357 of the Act and, to the extent required, admit evidence in the appeal relevant to the determination of that question. 21 The powers of the Industrial Court to set aside or vary a penalty imposed by the Local Court under s 357 of the Act derive from the provisions of the Crimes (Local Courts Appeal and Review) Act 2001. 22 Section 197(1)(c) provides that an appeal lies to a Full Bench of the Industrial Court from a civil penalty imposed by a Local Court for the contravention of an industrial instrument. Despite an apparent limitation in s 197(2) arising from the title of the Crimes (Local Courts Appeal and Review) Act 2001, that sub-section provides that this Court may exercise the full range of powers which are available to the District or Supreme Court in a criminal appeal from the Local Court in the hearing of an appeal from a civil penalty imposed by the Local Court. The use of the words 'relates to' in s 197(2) makes clear that the sub-section is not confined in its operation to criminal appeals and provides that this Court may exercise the power conferred on the District and Supreme Court under the Crimes (Local Courts, Appeal and Review) Act 2001 in relation to appeals brought under s 197(1) of the Act. This conclusion is also available because s 197(2) expressly brings into play the provisions of s 64(1) of the Local Courts Act 1982 (and by extension of ss 35 and 36 of that Act), thereby enabling this Court to hear appeals in relation to civil penalties imposed by the Local Court. 23 Further, there can be no doubt that, in an appeal from a sentence imposed by the Local Court, the Supreme and District Courts may, under the Crimes (Local Courts Appeal and Review) Act 2001, set aside or vary a sentence (see s 20(2) and s 55(2) respectively of the Crimes (Local Courts Appeal and Review) Act 2001). In consequence, under s 197(2), that power applies to an appeal heard by the Industrial Court in relation to a civil penalty. 24 The question of the receipt of fresh evidence in this appeal arises because of our finding that there was a denial of procedural fairness at first instance. In accordance with the dictates of justice, this requires, in our view, the appellant be given an opportunity to bring fresh evidence and argument in support of the question of penalty. 25 We are of the view that there is adequate power in this Court to admit fresh evidence, if an application is made to that effect by either party, in relation to a reconsideration of penalty (or a hearing of penalty simpliciter). Without deciding the precise legal basis for so concluding (as it is unnecessary to do so) there is sufficient power under the Act (see s 191(2)) or under the Crimes (Local Courts Appeal and Review) Act 2001 (for example, see ss 18 and 19 of that Act)) to enable this Court to grant any application by a party to call fresh evidence and make further submissions in relation to the question of penalty in these proceedings. It is also unnecessary now to decide which provisions of Pt 7 of Ch 4 of the Act apply to appeals brought under s 197 of the Industrial Relations Act 1996, although we note that the provisions of s 192 of that Act do not so apply: SSWAHS v Kim and others [2007] NSWIRComm 241 at [19]. 26 In reaching this conclusion, we acknowledge that the Court may refer the subject matter of the appeal back to the Local Court (see s 197(4) of the Industrial Relations Act 1996). However, we consider that a remitter should not occur in this instance in the interest of justice. As we have noted, the appeal is upheld only in relation to sentence. The hearing of that question may be expected to be of short compass, and the determination of it in these proceedings will give finality to the proceedings, reduce costs and will be consistent with the general approach of the Full Bench of this Court in such cases. Accordingly, in future cases where the appellant alleges there was a denial of natural justice, the appellant should, on appeal, be able to specify, at least in outline form, the evidence and submissions it says it would have brought but for the denial. 27 It is appropriate that the question of penalty then be decided by the Full Bench and we would propose making orders in that respect. Given the denial of procedural fairness at first instance, the appellant should be permitted to now fully put its case on penalty. Orders should be made to prepare the matter for hearing as to penalty which will accommodate the prospect that either party may apply to adduce evidence and make submissions as to that question. The question of costs should be reserved until the question of penalty is addressed. 28 We would propose the following orders:

[6]

The Chief Industrial Magistrate erred in failing in the circumstances to give any consideration to the application or possible application of section 10 of the Crimes (Sentencing Procedure) Act 1999 and in failing to apply the provisions of that section in all the circumstances. 32 The case advanced for the appellant in written submissions was that the appellant was represented by a director, Ms Woo. His Honour failed to give the appellant an opportunity to seek an adjournment in order to get advice, 'in circumstances where the appellant was clearly facing not only conviction in relation to three prosecutions, but importantly a sentencing hearing as well'. 33 It was submitted that his Honour 'failed in his duty to properly assist Ms Woo as an unrepresented litigant in accordance with established practice and principle', in circumstances where she 'clearly had little idea what was occurring in respect of the Court's practices and processes'. 34 It was submitted that Ms Woo had made discursive submissions, totally irrelevant to the proceedings, after having been asked by his Honour if she understood the nature of the proceedings and she had responded, 'I hope so'. Ms Woo had explained why her solicitor was not present and in response, his Honour alluded to the prospect of an adjournment. 35 When asked if she had completed her submissions, Ms Woo's lack of understanding of what the question meant, was revealed by her reference to an intention to bring further witnesses, if his Honour 'judges against' the appellant. 36 While attempting to give his decision, Ms Woo continually interrupted his Honour, thinking that she could continue to raise various matters in an attempt to defend the prosecutions. Ms Woo stated plainly that she did not understand her rights, leading his Honour to observe that it would have been better if the appellant had had legal representation. His Honour nevertheless proceeded to deal with penalty, without giving Ms Woo an opportunity to seek an adjournment. 37 It was submitted that a presiding judicial officer has an obligation to ensure, to the best extent possible, that an unrepresented litigant is not placed at an undue, or unfair disadvantage by a lack of legal representation. (See Ramon Clarence Parkinson v Mayne Group Ltd (t/as Mayne Express) [2003] NSWIRComm 132 at [42]; Davidson v Aboriginal Islander Child Care Agency (1998) 105 IR 1 at 6 -10 and Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31 at [147]-[156].) 38 While his Honour had indicated that he would propose an adjournment at the end of the prosecution case, that was only raised obliquely and Ms Woo gave a non-responsive answer. After conviction, the prospect of an adjournment was not raised again. It was apparent that Ms Woo did not understand what was then happening. It followed that there was a clear misunderstanding as to the procedural and other requirements before the court. In those circumstances, it would have visited no injustice on the prosecutor to have offered an adjournment, to permit Ms Woo to gain assistance or better prepare the case (See Titan v Babic (1994) 126 ALR 455 at 464). 39 His Honour was aware that the reason why the appellant was not legally represented was because of a mistake in relation to the date of the hearing. It was accepted that offering an adjournment was a discretionary matter, nevertheless the transcript of the proceedings suggested that his Honour had failed 'to properly advise Ms Wu where she was not competent to represent the appellant in the proceedings'. His Honour ought to have explained to her the difference between sworn testimony and giving evidence from the bar table; what matters were relevant to sentencing and should have invited her to go away to prepare evidence and submissions in relation to those matters. He ought also to have explained the significance that might attach to a conviction and the availability of s 10 of the Crimes (Sentencing Procedure) Act 1999. 40 It was also argued that in convicting the appellant of three breaches of the award, his Honour failed to properly take into account the principle of double jeopardy. Further, the penalty of $2,500 imposed was manifestly excessive. The prosecutor had not made submissions on penalty, but had left the matter to the Court, leaving Ms Woo at a complete disadvantage. As an untrained litigant, she had no way of knowing what matters might be relevant to penalty, or the availability of s 10. 41 His Honour also failed to have regard to relevant subjective matters such as the appellant's belief that another award applied. The evidence did not show that the appellant had deliberately ignored the award provisions, rather it had failed to apply the correct award, through an honest, but mistaken belief that another award applied. The three breaches arose from that single course of conduct, making it appropriate to have treated the offences as if they were one offence. (See Robertson v Marrickville Council [2003] NSWIRComm 394 at [33]- [34].) 42 The result was a manifestly excessive penalty, despite the application of the principle of totality. The contraventions were not premeditated or deliberate, nor were the consequences at the more serious end of the scale. A small amount of back pay was involved - some $700, as the result of the short period of time involved, including a one off public holiday payment. 43 His Honour also failed to inform himself of the appellant's financial circumstances, which he ought to have done, given Ms Woo's lack of understanding of the process. In the circumstances, he ought to have drawn attention to the provisions of s 6 of the Fines Act 1996 and invited submissions. Finally, his Honour also failed to consider whether, as a matter of discretion, any penalty at all should have been imposed in the circumstances before the court. 44 At the hearing, Mr Taylor of counsel announced for the appellant that the only ground which would be pressed was that there was not a fair trial; the appellant having been deprived of the opportunity to put before the court facts, evidence and submissions, relevant to the determination of appropriate penalty and whether the appellant ought to be convicted of the breaches charged. The moneys found to have been underpaid, had been paid by the appellant. 45 The case advanced for the respondent in written submissions was that his Honour had told Ms Woo that he proposed to hear the Inspector's evidence, so that she was in a position to know what was said and could decide what she wished to do about a defence. He urged her to take good notes, because her legal adviser would wish to understand what had occurred at the hearing. His Honour subsequently extended numerous invitations to the appellant to have the matter adjourned, but Ms Woo insisted that the matter proceed. 46 At the conclusion of the respondent's case, his Honour asked Ms Woo if she wished to lead evidence, or was seeking to have the matter adjourned. Ms Woo insisted that 'I'd like to sort to out because this matter is really affect(sic) our company's reputation ... I'd really like to sort it out the matter ...'. After putting the appellant's case, his Honour asked if Ms Woo wished to put any further evidence and when she indicated that she did not, his Honour said:

48 After Ms Woo had made submissions, his Honour also explained the purpose of submissions and confirmed that she had made all the submissions she wished to make. His Honour then indicated an intention to deliver reasons for decision, with Ms Woo not opposing that course. Subsequently, his Honour invited Ms Woo to make submissions on penalty and she did so. 49 It followed that there had been no failure to afford procedural fairness to the appellant. Adjournments were offered and declined. A protestation as to the result of the proceedings, could not be dressed in the guise of a complaint about procedural fairness. 50 Even if the view were taken that there had been any such unfairness, appellate intervention was not warranted, because compliance with the applicable procedural requirements could have made no difference to the outcome below. Nothing of substance had been lost. 51 The appellant was found to have contravened clauses 8, 10 and 18 of the award. There was no appeal against those findings. In his reasons, his Honour took account of the appellant's fundamental misunderstanding of the way the award system operated; the need to give some leniency to first time offenders and also applied the principle of totality. The civil penalty which resulted was $2,500, which was submitted to be an appropriate penalty in circumstances of underpayment of an employee's wages. 52 The appellant's case below was that some other award might have applied to the employment. No other awards were placed before the CIM and on appeal, it was not the appellant's case that another award had applied to the employment. 53 The maximum penalty for each breach of s 357 of the Act was $10,000. The appellant was found to have breached three distinct provisions of the award. Each provision imposed different obligations on the appellant and the breach of those obligations gave rise to three separate convictions. It followed that there was no error in concluding that the appellant should be convicted in relation to three separate offences. 54 There was also no error in the sentencing process. There was no obligation on the CIM to undertake lengthy deliberations, or to give detailed reasons for the conclusions reached. There must be adequate disclosure of what was taken into account in reaching conclusions and his Honour's reasons satisfied that test. The underpayments of the employee in question were objectively serious contraventions of the award and appropriate weight was given to the subjective circumstances of the appellant. 55 In the circumstances, the amount of the penalty was not manifestly excessive, that is, 'outside the range of permissible sentences open to the sentencing judge'. (See Commonwealth Bank of Australia v FSU [2007] FCAFC 18 at [233].) The circumstance were not such that a proper exercise of discretion could have resulted in a decision not to impose a penalty, or to apply the provision of s 10 of the Crimes (Sentencing Procedure) Act 1999. 56 At the hearing, Mr Ginters of counsel conceded that the approach adopted by his Honour to the sentencing part of the hearing was flawed, but argued, nevertheless, that the appeal would not be upheld. Consideration

149 In Neil v Nott (1994) 68 ALJR 509, the High Court considered the refusal of an application for extension of time by Mr Neil who sought an order for contribution from the estate of his deceased wife. One question was whether the claimant had known of his rights within the relevant limitation period. However, his application had been refused by Tadgell J at first instance because his Honour had thought that the application was misconceived and would have failed, even if the extension had been granted. The High Court noted (at 510): "[T]he question before this court is whether the reasons for judgment of Tadgell J reveal an error of principle which vitiates his Honour's exercise of the discretion to extend time. It is not an easy question to answer, for Mr Neil's advocacy has often been directed to irrelevant issues, as the reasons of Tadgell J reveal and as his argument in this court confirms. A frequent consequence of self-representation is that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. It has been so in this case." 150 The need for a trial judge to ensure that an unrepresented party understands the procedural options available to him or her has also been considered in the context of the criminal trial. In MacPherson v The Queen (1981) 147 CLR 512, the High Court considered the view of the Court of Criminal Appeal that " there was no obligation on the trial judge to advise the applicant that he might object to the confessional evidence, and might seek to test its admissibility on a voir dire ": at 523, per Gibbs CJ and Wilson J. Their Honours continued: "It was suggested that a judge who advised an accused person in this way would be assuming the role of an advocate, and that in any case he could not effectively advise the accused on such a matter, and that if the accused were persuaded to seek a voir dire the result might be to his disadvantage." 151 Their Honours rejected that approach at 524: "However, there should be no difficulty in explaining to an accused person (in the absence of a jury) that it is necessary for the judge to hear evidence in the absence of the jury to enable him to decide whether the evidence of the confession should be admitted, that the accused may cross-examine the Crown witnesses and give and call evidence himself on the issue of voluntariness, that if he does give evidence he may be cross-examined, and that his answers on cross-examination may be used against him on the trial. It would be wrong to think that a judge who explained to an accused person the choices open to him would be playing the part of an advocate - he would be performing his duty as a judge by informing the accused of his rights in relation to the conduct of the trial." 152 Mason J in MacPherson expressed a similar view (at 534): "Giving full weight to the adversary character of a criminal trial and the difficulties of advising an accused who is not represented, I nevertheless consider that the trial judge is bound to ensure that an accused person has a fair trial. To that end he is under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial. Once an issue as to the voluntariness of a confession arises fairness to the accused suggests that he should be acquainted with his right to a voir dire hearing. If he is left in ignorance of it he loses a valuable opportunity of testing the admissibility of the evidence, an opportunity which is often availed of by counsel for the accused. A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'." 153 This statement was adopted by Aitkin J at 537 and a similar view was expressed by Brennan J at 546-547. The same principles were reiterated in King v The Queen (2003) 215 CLR 150 at [95]; [2003] HCA 42 by Kirby J.

81 His Honour's observations show that reasonable minds may differ as to the assistance which an unrepresented litigant should be given. In a busy court such as that of the Chief Industrial Magistrate, balancing considerations of what assistance an unrepresented litigant is entitled to receive, in order to ensure that a trial is a fair one, and what is unnecessary to provide, can no doubt present real challenges. In this case, however, the proceedings involved serious allegations of breach of award obligations and potentially substantial civil penalties, if the breaches were proven. I am satisfied that in the circumstances, his Honour erred in the approach adopted with the result that the appellant was deprived of a fair trial. 82 His Honour was not obliged to determine whether Ms Woo, a director of the appellant, was competent to represent the appellant in the proceedings. Nor was his Honour obliged to reject Ms Woo's election to proceed to put the appellant's case, rather than to seek an adjournment of the hearing, at the conclusion of the prosecutor's case, as his Honour had initially proposed. 83 Once Ms Woo proceeded, however, that she did not understand what was happening, quickly became quite apparent. That was a situation which his Honour had to deal with, in order to ensure that the appellant received a fair trial. 84 At the commencement of the proceedings his Honour had taken the trouble to explain to Ms Woo what the proceedings concerned, what the prosecutor would have to establish, and the difference between evidence and submissions from the bar table. His Honour explained that the prosecutor had to establish that the award applied to the employment and that the underpayments claimed had occurred. His Honour also established that the appellant's case was that a different award applied and that the appellant had paid 50 cents above the applicable award rate. 85 At that stage, his Honour was plainly conscious of the need to provide Ms Woo with assistance as an unrepresented litigant. His Honour then demonstrated considerable patience with Ms Woo's difficulty in cross examining the Inspector, assisting as he did in helping her to confine herself to relevant questions and in framing her questions. I am satisfied, nevertheless, that despite his Honour's endeavours, there was a departure from what a fair trial required, given how the hearing unfolded. 86 From his own questioning of Ms Woo, his Honour was aware that the appellant's case was that a completely different award applied to the employment. What Ms Woo was seeking to explain, it appears from what she said, was that the employee was a casual, who was engaged to perform various work from time to time, to which a number of different awards applied. Given the approach which his Honour adopted however, the appellant was not given a proper opportunity to put that case. 87 After the prosecutor had concluded its evidentiary case, His Honour had explained to Ms Woo:

91 His Honour then ceased giving his reasons and immediately moved to make orders. 92 The upshot of this approach was that the appellant's case, that a different award applied to that contended for by the prosecutor, was simply not considered, nor were any reasons given for the conclusion that the award on which the prosecutor relied, applied to this employment. That depended on a consideration of the work in question, as well as the relevant award provisions, but neither matter was dealt with. 93 Indeed, I should observe that while the prosecutor had earlier sought to tender the award which it relied on, his Honour took the view that this was unnecessary. As a result of that approach, neither that award, nor the award which the appellant contended for, was in evidence in the proceedings, nor were they before the Full Bench on appeal. Nor was there any suggestion, on the face of the record, that the rates in question had been proven in the usual way in the prosecutor's case, the breaches alleged having ranged over a period commencing in October 2004 and concluding in April 2005. How his Honour came to be satisfied that this aspect of the prosecutor's case had been established to the necessary standard, was also not dealt with in his Honour's reasons. 94 It follows, in those circumstances, that it must be concluded that the appellant, an unrepresented litigant, who wished to advance a case that another award applied, was not given assistance in the conduct of the trial, of the kind which the High Court considered in MacPherson as being necessary, if there was to be a fair trial. The approach adopted by his Honour was a curious one, in the circumstances. After all, if it was unnecessary for the prosecutor to tender the award it relied on, as was his Honour's view, why was it necessary for Ms Woo to tender the award that the appellant relied on? Nor do his Honour's reasons explain why his Honour considered it unnecessary to consider the appellant's case, in the circumstances before him. 95 As it transpired, the question of the correct award was not one which finally had to be determined on appeal, given the concessions made for the appellant at the hearing. Had that not been the case, the question of how his Honour could have concluded that the prosecutor had met the onus of establishing, to the necessary standard, that the award and the rates relied on, in fact applied to this employment, would have arisen for consideration on appeal. 96 Be that as it may, accepting that the correct conclusion was reached as to the applicable award, as the parties finally agreed, the fact remains that the trial by which that outcome was achieved, was not a fair one. 97 His Honour originally intended to adjourn the hearing once the prosecutor's case had concluded. When his Honour determined not to take that course, accepting Ms Woo's stated desire to proceed with the matter, it became obvious that the appellant needed assistance to put on its evidentiary case, if a fair trial was to be ensured. Likewise, once his Honour had found the appellant guilty of the charges and asked the prosecutor whether it wished to proceed to sentencing, his Honour ought undoubtedly to have also asked Ms Woo the same question. As the Full Court of the Federal Court observed in Titan, at 464:

98 Had Ms Woo then sought an adjournment, it may, of course, have been refused by his Honour, who was not bound to automatically grant such an adjournment, merely because the appellant was unrepresented. Nevertheless, having failed to give Ms Woo an opportunity to seek an adjournment, the end result was that his Honour did not consider the question of an adjournment at that stage, from the appellant's point of view, despite the obvious difficulties which Ms Woo was having. 99 What next occurred, put the unfairness of the hearing beyond any doubt, as the respondent conceded. Having determined to proceed with sentencing, his Honour failed to give Ms Woo any explanation at all as to what was involved in the sentencing part of the hearing. His Honour did not advise Ms Woo that the appellant had the opportunity to call evidence at that stage. Nor did he advise her of the applications available to the appellant to make in relation to sentencing, given the discretions available under the relevant provisions of applicable legislation and the case which the appellant was seeking to advance. Nor did the prosecutor's submissions go to such matters. 100 The Court of Appeal considered the role of sentencing in proceedings for a civil penalty in William Arthur Forge & 5 Ors v Australian Securities & Investments Commission [2004] NSWCA 448. There it was observed: 410 Both ASIC and the appellants provided written submissions to the primary judge to which they then spoke. ASIC's written submissions addressed both the issues of contravention and penalty. The appellants' written submissions only addressed the issue of whether the contraventions had been proved. They did not address the issue of penalty despite the fact that during the debate about the filing of the appellants' evidence which took place on 9 April 2002 after ASIC closed its case, the primary judge expressly drew Allan Endresz's attention to the fact that if and when the penalty issue arose he had "no evidence at all on that". 411 The appellants' written submissions appear to have been handed to the primary judge on 1 May 2002 which was the last day of the hearing. They were described by the primary judge as "a very comprehensive set of submissions both on law and fact". However it is plain from the transcript that his Honour had not had the opportunity to read them in detail before he reserved his decision. While his Honour expressly asked Mr Burbidge QC for ASIC to address the issue of the appropriate relief if he found the contraventions established, no like oral invitation was addressed to the appellants. 412 The appellants submitted that the primary judge erred in not having a separate hearing on penalty after he had found the contraventions proved. They contend that this was the "fair and correct procedure" which was followed in Australian Securities and Investments Commission (ASIC) v Adler & Ors [2002] NSWSC 510; (2002) 42 ACSR 74; Australian Securities and Investments Commission (ASIC) v Whitlam (No 2) [2002] NSWSC 718; (2002) 42 ACSR 515 and in ASIC v Plymin (No 1) [2003] VSC 123; (2003) 175 FLR 124. 413 In Rich v Australian Securities and Investments Commission, above, at 1363 [41], McHugh J observed that: "... what the judges actually do [when ordering disqualification and fixing periods of disqualification under the corporations legislation] is little different from what judges do in determining what orders or penalties should be made for offences against the criminal law. Elements of retribution, deterrence, reformation and mitigation as well as the objective of the protection of the public inhere in the orders and periods of disqualification made under the legislation." 414 Once it is recognised that the task in which the primary judge was engaged at this stage of the trial bore the hallmarks of the sentencing process in a criminal trial, the principles attendant upon that process were invoked. It is a fundamental proposition of sentencing "... that the punishment [must] fit the crime. Apart from mitigating factors, it is the circumstances of the offence alone that must be the determinant of an appropriate sentence": Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51 at 58. As Gibbs CJ said in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 389, "[T]he general principle [is] that the sentence imposed on an offender should take account of all the circumstances of the offence ...". 415 The circumstances of the offender are equally important to the question of the appropriate sentence. In Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 452, the High Court in a joint judgment approved Dwyer CJ's statement in Reynolds v Wilkinson (1948) 51 WALR 17 at 18 that: "Crimes bearing the same general description have not equally evil content or characteristics, and offenders also differ in themselves." 416 These propositions were affirmed extra-curially by Gleeson CJ when he said, "the punishment is supposed to fit not only the crime, but also the criminal": see "Individual Justice" (1995) 69 ALJ 421 at 424. 417 Declarations of contravention can lead to the imposition of substantial penalties both by way of disqualification orders and pecuniary penalties such as those which were imposed in this case. In such circumstances the principles that the punishment should fit both the "offence" and the "offender" are reflected in the proposition that it is the duty of a court to hear the "guilty party" on penalty after the "charge" has been proved. 418 This appears clearly from Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 at 382 where Hutley JA (with whose judgment on this point Samuels JA agreed at 391, Mahoney JA dissenting) said, "[t]he right to be heard in palliation of misconduct is established by authority nearly a century old." Applying that principle, his Honour also said (at 382), in the context of a domestic tribunal, that the tribunal had a duty to hear a person found guilty on the question of penalty and that a "person found guilty cannot really address until he knows of what he has been found guilty". 419 While Hutley JA accepted that a person might waive the right to a hearing on penalty, his Honour said (at 382 - 383) it was incumbent in effect upon the tribunal to draw the right specifically to the person's attention. He said that the tribunal should be guided by "the minimum standards required of the more summary and informal courts" and that it was "... for such a court to take the initiative in maintaining those standards". He referred approvingly to Mayes v Mayes [1971] 2 All ER 397; [1971] 1 WLR 679, where, at the end of the complainant's evidence, magistrates dismissed the case without hearing her solicitor. Bagnall J in the Divisional Court said (at 682; 400): "It seems to me where a court has to act, as all courts have, in accordance with settled practice or rules of natural justice, and that practice or those rules give a person a right to be heard, it must be wrong for the court to proceed to a decision without positively affording that right and that it would be wrong for the court to proceed relying upon the advocate in question to assert his rights." 420 Hall v New South Wales Trotting Club Ltd was followed by Holland J in Malone v Marr [ 1981] 2 NSWLR 894. His Honour said (at 902) that two things followed from the views expressed by the majority: "First, the requirements of natural justice are not satisfied by showing that when the accused appeared before the tribunal to answer the charges he knew that the tribunal had power to impose a penalty upon him if he should be found to be guilty or that he could have addressed the tribunal on matters going to the question of punishment at the same time as he was heard upon the charge made against him if he had chosen to do so. Second, if the tribunal, after making a finding of guilt, fails in its duty with regard to a hearing on penalty as above described and, in consequence, the decision on penalty is invalid, the tribunal may, if it chooses, rectify its error by re-opening the question of penalty, inviting the accused to tender evidence and/or address on the question of penalty and thereafter re-consider and decide that question."

421 See also Stone v Law Society of the Northern Territory and Others (1992) 108 FLR 332 at 344 where Martin J applied Hall v New South Wales Trotting Club Ltd and Malone v Marr in the circumstance of disciplinary proceedings against a legal practitioner. 422 ASIC submitted that the appellants had been given ample opportunity to reply to ASIC's submissions on penalty. It relied upon the facts that the appellants knew from the Originating Process that relief in the nature of penalties was sought, that Mr Burbidge QC's opening address made plain that ASIC sought the imposition of penalties, that the primary judge had informed Mr Alan Endresz that he did not have any evidence on the issue of penalty and the provision of ASIC's written submissions which addressed the issue of penalty at length. 423 ASIC submitted that the case was similar to Howe v Administrative Decisions Tribunal of New South Wales [2003] NSWSC 157 where Dunford J distinguished Hall v New South Wales Trotting Club Ltd and Malone v Marr. His Honour accepted (at [20]) that "it is generally desirable that addresses on penalty follow a determination of guilt so that the person accused knows precisely the ambit of the findings to which submissions on penalty need to be addressed". He held, however, (at [21]) that "the rule [to which Hutley JA referred] is not inflexible, and provided there is an ample opportunity to address on penalty, there is no breach of any rules of natural justice or procedural fairness". In Howe v Administrative Decisions Tribunal of New South Wales [2003] NSWCA 120 when hearing an application in a proposed appeal from Dunford J's decision for orders having the effect of precluding the Tribunal from making any further orders in the proceedings before it or publishing its outstanding decision as to penalty, Giles JA said (at [14]) he regarded Dunford J's "decision on this point [as] unarguably correct" in circumstances where "the claimant had had the fullest opportunity to address on penalty". 424 Hall v New South Wales Trotting Club and Malone v Marr make plain that the matters upon which ASIC relies are insufficient to displace the appellants' right to be heard separately on the issue of penalty once they were aware of the contraventions which had been found against them. 425 Further it was, in my view, incumbent upon the primary judge to approach the determination of the contravention issue and penalty in the two-stage process dictated by Hall v New South Wales Trotting Club Ltd. He should also have drawn the appellants' attention to their right to elicit evidence and make submissions on the issue of penalty. 426 It was also, in my opinion, incumbent upon ASIC in the circumstances of this case to draw his Honour's attention both to the principles of law referred to in Hall v New South Wales Trotting Club and Malone v Marr as well as to the circumstances of other civil penalty proceedings in which it had been involved in which there were separate hearings on the issue of penalty: see Australian Securities & Investments Commission v Adler [2002] NSWSC 510; (2002) 42 ACSR 74; Australian Securities & Investments Commission v Whitlam (No 2) [2002] NSWSC 718; (2002) 42 ACSR 515. 427 The consequence of the failure to conduct a separate penalty hearing means that the issue of penalty must be revisited. It is appropriate, as counsel for the appellants submitted (and ASIC did not demur), that that exercise be undertaken by remitting the matter to the Equity Division to be heard by a judge different from the primary judge. 101 There can be no doubt that in this case, Ms Woo had no understanding of what was transpiring when his Honour moved to deal with sentence. Earlier, when his Honour was giving his decision, Ms Woo was undoubtedly confused. She appeared to be under the impression that she would later have an opportunity to call evidence, going to the question of the applicable award. This may well have arisen because his Honour had not earlier explained to Ms Woo, that he proposed immediately to move to give his decision, when she had finished her submissions. Ms Woo's interjections, while those reasons were being given, showed her lack of understanding as to what was then transpiring. 102 Despite this obvious difficulty, having then asked the prosecutor whether he wished to deal with the question of sentencing that day, his Honour did not ask Ms Woo the same question. Having decided to proceed, his Honour also did not provide Ms Woo with any explanation or assistance in relation to what the sentencing hearing would involve, or what evidence or arguments might be available to be put by the appellant, at that stage of the proceedings. Ms Woo ought to have been given an opportunity to lead evidence relevant to sentencing. That opportunity was not provided. 103 In all those circumstances, it must be concluded that the assistance which an unrepresented litigant is entitled to receive in sentencing proceedings, was not provided in this case. The proceedings miscarried. The appellant did not receive a fair trial. 104 The respondent argued that, nevertheless, the appeal would not be upheld, because the outcome of any rehearing would be no different, given that the appellant firstly, did not challenge his Honour's conclusion that there had been breaches of the award in question and secondly, given the amount of the penalties imposed. 105 That is a conclusion which in my view is not available in this case, even though the question of the applicable award has been conceded. Undoubtedly, a failure to pay award wages is a serious matter. The penalties fixed by the Act for each such breach ranges up to a maximum of $10,000. The penalties imposed by his Honour also undoubtedly fell at the lower end of the range, as the appellant accepted. The discretion, also, however, includes a discretion not to impose any penalty at all. The appellant was entitled to an opportunity to advance a case for the exercise of such a discretion. That was an opportunity which it was denied. 106 This was a first offence. The appellant's business involves tendering to government to provide work to people in the community, who need assistance. Those engaged to provide such work, after a successful tender, receive government funding. On the case the appellant sought to advance below, there was various such work, which attracted the operation of a number of different awards. Even if the applicable award was not in doubt and so the conclusion that there had been underpayments was unarguable, it cannot be doubted that the question of the conviction of the appellant of the three breaches alleged, and of what penalty ought to have been imposed, if any, may well have been influenced by evidence or submissions in relation to how it came to be that the wrong award was applied by the appellant, in the circumstances of the particular employment in question. 107 That is particularly so, given his Honour's conclusion that the appellant had simply disregarded the award system. The appellant's case, that it had applied the correct award and had paid above the award rate, was not considered at all, even at the point of sentencing, despite what the appellant had sought to advance as to the particular circumstances in question. 108 Consideration of the impact of the conviction and penalty on the appellant's ability to tender for the government subsidised work it offers, was also relevant, as was evidence in relation to matters such as the appellant's financial and other circumstances. Given the approach adopted at the trial, the appellant had no opportunity to advance such matters. 109 As the case was finally pressed on appeal, it was explained that the opportunity which the appellant had been denied, was to put evidence before the court as a basis for an application that a discretion be exercised not to impose a civil penalty. There can be no doubt that such a discretion exists, given the words of s 357(1):

140 A breach of the rules of procedural fairness is jurisdictional error for the purposes of s 75(v) of the Constitution. Not every departure from the rules of natural justice automatically invalidates a decision adverse to the party affected by the breach [ Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145; Re Refugee Review Tribunal ; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 122.]. Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome of the case. As this Court said in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145], "it is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome". 115 The High Court's approach in Stead was again discussed more recently in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (13 June 2007), where it was observed by Kirby J: 54 Of course, what is enlivened in each case is a judicial discretion. Many of the considerations taken into account earlier in the case of the prerogative writs remain pertinent. However, the universal discretionary character of the constitutional and statutory remedies is now settled. Where a party establishes prima facie grounds for the issue of such remedies, the resisting party may point to any considerations that will nevertheless warrant the ultimate refusal of relief in the particular circumstances of the case. 55 In Aala, drawing on the earlier case law, various explanations were afforded by members of this Court as to the circumstances that could warrant refusal of relief, although a party has otherwise established a foundation for it, as a matter of law. Thus, in their joint reasons in Aala, Gaudron and Gummow JJ said [at [2000] HCA 57; (2000) 204 CLR 82 at 109]: "It is one thing to refuse relief on the ground of utility because, as Lord Wilberforce put it, '[t]he court does not act in vain'[ Malloch v Aberdeen Corporation [1971] 1 WLR 1578 at 1595; [1971] 2 All ER 1278 at 1294]. For example, the application for an administrative determination may be one which, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse [ Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board [1994] 1 SCR 202 at 228; Wade and Forsyth , Administrative Law , 7th ed (1994) at 528.]. Or the prosecutor's complaint may be the refusal by the decision-maker of an opportunity to make submissions on a point of law which must clearly have been answered unfavourably to the prosecutor [See Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145.]. Again, the decision under review may have no legal effect and no continuing legal consequences may flow from it. In such a situation, the reasoning in Ainsworth v Criminal Justice Commission [[1992] HCA 10; (1992) 175 CLR 564 at 580-581.], where the remedy refused was certiorari, indicates that prohibition will not lie [ Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 553-554 [113].]." 56 In his reasons in Aala, McHugh J wrote to similar effect [[2000] HCA 57; (2000) 204 CLR 82 at 122 [104].]: "Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this Court in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145.] when it said that 'not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial'. Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because '[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome' [[1986] HCA 54; (1986) 161 CLR 141 at 145.]." 57 In my own reasons in Aala I indicated that the "public character of the legal duties" which the remedies were designed to uphold meant that "ordinarily, [relief] will issue where the preconditions are made out" [[2000] HCA 57; (2000) 204 CLR 82 at 136-137 [148].]. I went on to acknowledge [[2000] HCA 57; (2000) 204 CLR 82 at 136-137 [148].]: "But circumstances will occasionally arise where it is appropriate to withhold the writ because a party has been slow to assert its rights, has been shown to have waived those rights, or seeks relief in trivial circumstances or for collateral motives, and where the issue of the writs would involve disproportionate inconvenience and injustice." 58 The decision in Aala was thus a clear indication by this Court of the discretionary character of the remedies sought by the appellants in their applications for judicial review. In the result, all members of the Court upheld the existence of the discretion and two (McHugh J [[2000] HCA 57; (2000) 204 CLR 82 at 128 [122]- [123].] and Callinan J [[2000] HCA 57; (2000) 204 CLR 82 at 156-157 [217]- [219].], in whole or part) refused the remedies claimed. 59 The result of Aala is that, whilst establishment of the preconditions for this form of relief will ordinarily entitle a party to the relief, there will always remain a residual discretion to be exercised judicially. Some of the considerations relevant to that decision have been identified. However, in the nature of discretionary remedies, much will depend on the facts and circumstances of the particular case. 116 I am satisfied in the circumstances of this case, that justice demands that the respondent's submissions be rejected and that the appeal be upheld. It cannot be concluded that giving the appellant an opportunity to have its case heard 'would inevitably result in the making of the same order as that made by the primary judge at the first trial', nor that upholding the appeal would be a futility. 117 In all of those circumstances, I take the view that the matters must be referred back to the local court. Given the way in which the proceedings unfolded below, it is not possible for the appeal bench itself to determine the matters which the appellant wishes to argue. That requires the calling both of relevant evidence and submissions, including in relation to the award which it is now conceded applied to the employment. While the appellant no longer disputes that the award was breached, it seeks to be heard on the question of whether the discretion to impose a penalty should be exercised in the circumstances in which the appellant came to apply the incorrect award. It must have that opportunity. Orders 118 For the reasons given, I would make the following orders:

Auscare Corporation Pty Ltd v New South Wales Department of Commerce

At a glance

Court

Decision date

Before

Source

Judgment (108 paragraphs)

Parties

Cases Cited (45)

Cited By (1)