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):