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

Industrial Court of New South Wales

CITATION: Auscare Corporation Pty Ltd v New South Wales Department of Commerce [2007] NSWIRComm 271

APPELLANT: Auscare Corporation Pty Ltd PARTIES: RESPONDENT: New South Wales Department of Commerce

FILE NUMBER(S): IRC 372 of 2007

CORAM: Walton J Vice-President at [1]; Schmidt J at [29]; Staff J at [1]

CATCHWORDS: Appeal - conviction for breach of award - sentencing - challenge to penalty - denial of procedural fairness - assistance required to be given to unrepresented litigant - whether denial of procedural fairness should result in appeal being upheld - whether conceivable penalty could be altered - principles on sentencing where breach of award - question as to whether exercise of discretion might result in no penalty - procedurally fair trial may have made a difference - whether appropriate to remit on sentence - decision against remitter - powers of Full Bench to set aside or vary penalty - powers of Full Bench to admit fresh evidence on penalty on appeal - desirability of Full Bench hearing penalty and not referring - leave granted so far as required - appeal upheld - penalty quashed - matter programmed for hearing - costs reserved

Crimes (Local Courts Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 LEGISLATION CITED: Industrial Arbitration Act 1940 Industrial Relations Act 1996 Justices Legislation Repeal and Amendment Act 2001 Local Courts Act 1982 Workplace Relations Act 1996