Ozwide Real Estate Pty Ltd v Department of Industrial Relations

APPELLANT Mr K I O'Meara (Managing Director of Appellant)

RESPONDENT LEGAL REPRESENTATIVES: Ms P F Lowson of Counsel SOLICITOR Mr I V Knight, Crown Solicitor (Ms Alice Paul)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: WRIGHT J, President HUNGERFORD J KAVANAGH J

OZWIDE REAL ESTATE PTY LTD v DEPARTMENT OF INDUSTRIAL RELATIONS (INSPECTOR GRAEME GIBSON) Application for leave to appeal and appeal against a decision of the Chief Industrial Magistrate given on 4 September 2000 in Matter No CIM 16723 of 2000

JUDGMENT OF THE COURT [2001] NSWIRComm 1 1 The appellant, Ozwide Real Estate Pty Limited, seeks leave to appeal and, if leave be granted, to appeal against a decision of the Chief Industrial Magistrate given on 4 September 2000 in which his Worship found the appellant guilty of a breach of s 4(3) of the Annual Holidays Act 1944 in failing to pay proportionate holiday pay to an employee, a Mr Douglass. His Worship imposed a fine in the amount of $750 and ordered that the employee be paid an amount of $524.04 plus $103.18 interest. The appellant was also ordered to pay court and professional costs. 2 The conviction arose from an information laid on 7 February 2000 by Graeme Gibson, an inspector of the Department of Industrial Relations, after a complaint was received from a former employee of the appellant who alleged he had not received the correct amount of holiday pay on the termination of his employment. The information was in these terms:

The defendant being the employer of one ANDREW JOHN DOUGLASS, a worker in the State of New South Wales, for a period of employment which was less than one year computed from the date upon which the said worker during the employment had last become entitled to an annual holiday under Section 3 of the Annual Holidays Act, 1944, and which was terminated on the 21st August, 1998, DID FAIL to pay forthwith to the said worker and has since continued to fail to pay to the said worker, in addition to all other amounts due to the worker, an amount equal to one-twelfth of the worker's ordinary pay for that period of employment. The hearing before the Chief Industrial Magistrate

3 The appellant was represented by its Managing Director, Mr K I O'Meara , both at first instance and on appeal. At the commencement of the proceedings at first instance, the appellant raised what his Worship identified as a "threshold point" relating to the operation of s 66B of the Justices Act 1902; the argument was that as it had not received a brief of evidence, s 66F of that Act operated to render the evidence sought to be adduced against it by the respondent inadmissible. 4 His Worship rejected the appellant's argument, by ruling that s 66B did not apply and that the prosecution brief was thus not required to be served. His Worship stated: The answer to your objection Mr O'Meara is contained in s 66A definitions where it says "Brief of evidence in relation to a prescribed summary offence["]. Proscribed ( sic ) summary offence means a summary offence other than the offence for which a penalty notice may be issued or an offence proscribed ( sic ) by the regulations for the purposes of this paragraph. Now a breach of s4(3) of the Annual Holidays Act has not been proscribed ( sic ) as an offence of (sic ) the purposes of s 66A therefore there is no requirement on the prosecutor to serve a brief of evidence in these proceedings against the company. 5 At this point in the hearing, Mr O'Meara indicated he would appeal the rejection of his objection and sought leave to withdraw from the proceedings claiming that the matter would not be heard according to law. His Worship informed Mr O'Meara that the proceedings would continue in his absence and advised him in some detail of his rights of appeal. Mr O'Meara then left the court. The legislation

6 The relevant legislative provisions are contained within Sub-div 6A, Service of Briefs of Evidence, of Div 2 of Pt 4 of the Justices Act . Part 4 relates to procedures before Justices for offences punishable on summary conviction and complaints. Sections 66A, 66B and 66F provide as follows:

66A Definitions (1) In this Subdivision: brief of evidence , in relation to a prescribed summary offence, means documents regarding the evidence that the prosecution intends to adduce in order to prove the commission of the offence and includes: (a) written statements taken from the persons the prosecution intends to call to give evidence in proceedings for the offence and (b) any document, or other thing, identified in such a written statement as a proposed exhibit. penalty notice means: (a) a penalty notice within the meaning of Part 4B, or (b) after the commencement of Part 3 of the Fines Act 1996 - a penalty notice within the meaning of that Act prescribed summary offence means a summary offence other than: (a) an offence for which a penalty notice may be issued, or (b) an offence prescribed by the regulations for the purposes of this paragraph. prosecuting authority means: (a) the Director of Public Prosecutions, or (b) a police officer, or (c) a person prescribed by the regulations for the purposes of this definition,

who is responsible for the conduct of a prosecution. (2) In this Subdivision, a reference to the defendant includes a reference to the barrister or solicitor of the defendant. 66B Brief of evidence to be served on a defendant unless otherwise ordered (1) If a defendant pleads not guilty to a prescribed summary offence being prosecuted by a prosecuting authority, the prosecuting authority must, unless the Justice or Justices otherwise order in accordance with section 66E, serve or cause to be served on the defendant a copy of the brief of evidence relating to the offence. (2) The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution unless the defendant consents to a shorter period or, in the opinion of the Justice or Justices, the circumstances of the case otherwise require.

66F Evidence not to be admitted (1) The Justice or Justices are to refuse to admit evidence sought to be adduced by the prosecuting authority in respect of the prescribed summary offence if, in relation to that evidence, this Subdivision, or any regulations made for the purposes of this Subdivision, have not been complied with by the prosecuting authority. (2) The Justice or Justices may, and on the application of or with the consent of the defendant must, dispense with the requirements of subsection (1) on such terms and conditions as appear just and reasonable. Submissions on appeal 7 The operation of s 66B of the Justices Act was the crucial issue agitated on appeal. The grounds of appeal focused on the appellant's contentions that it was entitled to have a brief of evidence served upon it by the prosecutor and the magistrate's ruling allowing evidence to be adduced when no brief was served on it was, in reliance on the Court of Appeal judgment in Director of Public Prosecutions v West (2000) 48 NSWLR 647, erroneous. The appellant claimed that his Worship's ruling that the offence was not a prescribed summary offence in terms of s 66A was an error of law. Its conviction was accordingly unsafe and unsatisfactory; to allow it to stand would constitute a miscarriage of justice. 8 The respondent was represented by Ms P F Lowson of counsel and, although counsel was not called on, her written submissions filed provided that neither the Department of Industrial Relations nor any person authorised to take proceedings on its behalf pursuant to s 12 of the Annual Holidays Act could be described as a "prosecuting authority" in terms of the definition contained in s 66A. Therefore, it was submitted, s 66B did not apply and a brief need not have been served upon the appellant in relation to the proceedings below. Even if the Chief Industrial Magistrate made an error of law by stating that a breach of s 4(3) of the Annual Holidays Act was not a prescribed summary offence, the decision was not vitiated because the respondent was not a "prosecuting authority" within the definition contained in s 66A. 9 In reply, the appellant submitted that if the Court were to accept that the respondent was not a prosecuting authority then it followed that the respondent had no power to prosecute the matter, either in the initial proceedings before the Chief Industrial Magistrate or in the appeal now brought. It was claimed that the respondent had thereby not established its power to prosecute and that it now, in effect, wished to "have it both ways" since it contended it was not a prosecuting authority yet that it had the power to prosecute. The appellant also submitted that by raising this issue the respondent sought a new hearing or was attempting to admit fresh evidence, contrary to s 191(1) of the Industrial Relations Act 1996. 10 It was further submitted that the correct approach in construing the definition of "prosecuting authority" in s 66A of the Justices Act was to do so in a manner which did not disadvantage the appellant. The disadvantage flowing from the respondent's interpretation resulted in the appellant facing a charge without sufficient information. The ambiguity was said to arise because s 66A defined "prosecuting authority" by reference to the regulations, yet the regulations did not prescribe any person under the Division. Further submissions

11 The appellant also made submissions on a number of additional matters which, on analysis, were peripheral to the issue upon which the appeal fell to be decided. They may be briefly summarised as follows: (a) In the event that the appellant's submissions as to s 66B of the Justices Act were not accepted, the appellant sought leave to adduce new evidence, to cross-examine Mr Douglass and to compel him to produce his bank statements. (b) The proceedings were time-barred as the offence was not a continuing offence; the proceedings were out of time because of the operation of s 56 of the Justices Act which provides that an information or complaint must be laid or made at any time within six months of the breach occurring. (c) The information was defective. (d) The magistrate erred "by entering the arena". Leave and the nature of the appeal

12 Under s 188(2) of the Industrial Relations Act , the Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. The appellant, in the event its argument as to s 66B was unsuccessful, sought a new hearing as to its conviction. 13 In Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 447 the Full Bench stated: … considerations of convenience and efficiency militate strongly against a conclusion that it was intended that three judges of a superior court were to be occupied hearing appeals brought as of right from the Local Court by way of a hearing de novo, effectively as a court of second trial. This conclusion is further supported by the fact that s 197 provides not only for appeals to be brought in respect of criminal proceedings heard before the Local Court, but also comparatively minor civil matters. These matters include proceedings for the recovery of money payable under an industrial instrument and proceedings for a civil penalty for breach of an industrial instrument (s 197(1)(a) and (c)) and, as has already been observed, appeals in relation to both criminal and civil proceedings under the Annual Holidays Act 1944 and the Long Service Leave Act 1955. 14 It follows that the present appeal is governed by the principles applicable to appeals generally brought under Pt 7 of Ch 4 of the Industrial Relations Act and, unless the Full Bench gives leave for the receipt of further evidence pursuant to s 191(2), the appeal is to be determined by reference only to the evidence and material adduced at first instance: see s 191(1). 15 In Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380 at 381-382, the Full Bench referred to reliance on a substantial new case on appeal which was not raised at first instance and held: Secondly, it will be relevant to the grant of leave to consider, amongst other factors, whether the appellant has brought, as in this matter, a substantially different case in the appeal. This is not to say that the admission of new evidence per se would have this result, but that the bringing of, in substance, a new or materially different case on appeal may constitute a basis for the refusal of an application for leave to appeal. In Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264, the Full Bench stated: "As to the second matter averted to above, we consider that leave would ordinarily, in the absence of changed circumstances, be refused where an appellant raises arguments or presses issues on the appeal which were not squarely raised at first instance; irrespective of whether the relief sought or the outcome contended for by the appellant remains the same or substantially the same …" The principle so stated should be applied to the appellant's "new" arguments. They are, in any event, without substance. For example, the submission relying on s 56 of the Justices Act was made notwithstanding that it was contrary to recent Full Bench authority: see Burgess v Kaputar Timbers Pty Ltd (1999) 91 IR 378. Leave should not be granted as to these matters. "Prescribed summary offence"

16 Section 66A defines "prescribed summary offence" as a summary offence excluding an offence for which a penalty notice may be issued or an offence prescribed by the regulations for the purposes of the s 66A definition. The definition of penalty notice is also contained within s 66A. 17 A breach of s 4(3) of the Annual Holidays Act is not an offence for which a penalty notice may be issued nor is it an offence relevantly prescribed by the regulations. It follows that such a breach is not excluded from being a prescribed summary offence by virtue of that definition. "Prosecuting authority"

18 Section 66A also defines a "prosecuting authority" as the Director of Public Prosecutions, or a police officer, or a person prescribed by the regulations for the purposes of the definition who is responsible for a prosecution. 19 The Department of Industrial Relations does not fall into either of the first two categories, nor is it prescribed as a prosecuting authority under the regulations. It was common ground that no regulation had been made prescribing additional authorities beyond those expressly referred to in the provision. 20 Although it is not necessary to refer to the Second Reading speech of the Attorney General on the introduction of the Justices Amendment (Briefs of Evidence) Bill 1997, it is not surprising that the references in it to prosecuting authorities under s 66A ( Hansard, 16 June 1997, p 10183) confirm its plain meaning as follows: Returning to the definitions section of the bill, proposed section 66A, it is noteworthy that the bill initially will apply only to matters being prosecuted by the New South Wales Director of Public Prosecutions or by the New South Wales Police Service in its own right. The possibility is provided for in the definition of "prosecuting authority" that, at a future stage, regulations will provide for the service of briefs by a wider range of prosecuting authorities. 21 Section 12 of the Annual Holidays Act authorises inspectors to take proceedings for recovery of penalties for a breach of the Act as follows: 12. Proceedings for recovery of penalties (1) Proceedings for the recovery of a penalty under this Act are to be taken before a Local Court constituted by a Magistrate sitting alone or before the Industrial Relations Commission in Court Session and may be taken by: (a) an inspector, or (b) the secretary of an industrial organisation whose members are engaged in the industry concerned, or (c) a person whose rights are impaired. (2) In any such proceedings the Local Court or Industrial Relations Commission in Court Session may, in addition to the imposition of any penalty, make such an order with respect to any remuneration or payment due to a worker under this Act as might have been made in proceedings taken under section 13. Such order may be made without motion and shall be a bar to further proceedings under section 13 in respect of such remuneration or payment. (3) In any proceedings under this section the Local Court or Industrial Relations Commission in Court Session before which such proceedings are taken may award costs to either party and assess the amount of such costs. (4) (Repealed) (5) The prosecutor may conduct the case personally or by a counsel, attorney or an agent duly authorised by the prosecutor in writing.

"Inspector" is defined under s 2 of the Annual Holidays Act as an inspector duly appointed under the Industrial Relations Act . 22 Inspector Gibson was, therefore, entitled to initiate the proceedings before the Chief Industrial Magistrate. He was not, however, a "prosecuting authority" under either s 66A or s 66B of the Justices Act and s 66F therefore did not apply to the proceedings. Even if there were substance in the legal point the appellant relied on, its submissions overlook the effect of the important ameliorative provisions in s 66E and s 66G of the Justices Act and the following passage in Director of Public Prosecutions v West at [24]: (m) It is possible to conceive of situations where it would not be just or reasonable to grant a non-complying prosecuting authority an adjournment and extension of time pursuant to s 66G. However, the general thrust of s 66G is to ensure that the case is able to proceed, after a suitable adjournment to overcome the prejudice flowing from non-compliance. Section 66G thus fits in with the law as explained by the High Court in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. There is a legitimate public interest in the conviction of those guilty of crime so long as the fairness of the trial is not compromised: Ridgeway v The Queen (1995) 194 CLR 19 at 32 and 75.

The major point argued by the appellant before his Worship and on appeal is without merit. Leave should not be granted with respect to it. 23 At the conclusion of the hearing on 11 December 2000 the Court made the following orders:

1. Leave to appeal refused. 2. Appeal dismissed.

and indicated that reasons for judgment would be provided as soon as practicable in the 2001 law term. The reasons are now provided. 24 It was also advised that the issues of the costs of the proceedings and the stay granted would be dealt with in our judgment. We do not consider there is any reason why the usual orders should not be made as to those matters and we therefore make these additional orders: 3. Stay granted on 20 September 2000 as to the orders made by the Chief Industrial Magistrate on 4 September 2000 lifted. 4. The appellant shall pay the respondent's costs of and incidental to the appeal in an amount as agreed or, in default of agreement, as assessed. ______________________________

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