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 Commonwealth Bank of Australia & Anor v Finance Sector Union of Australia [2007] FCAFC 18 Community Public Sector Union & Anor v Stellar Call Centres Pty Ltd (1999) 92 IR 224 Davidson v Aboriginal Islander Child Care Agency (1998) 105 IR 1 Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Escobar v Spindaleri & Anor (1986) 7 NSWLR 51 Malone v Marr & Anor [1981] 2 NSWLR 894 Mason v Refugee Review Tribunal (2002) HCA 30 Ramon Clarence Parkinson v Mayne Group Ltd (t/as Mayne Express) [2003] NSWIRComm 132 Re Club Employees (State) Award (Unreported, Liddy J, 15 October 1982) Robertson v Marrickville Council [2003] NSWIRComm 394 CASES CITED: Scevola v WorkCover Authority (NSW) (Inspector Sealey) (2005) 142 IR 233 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 SSWAHS v Kim and others [2007] NSWIRComm 241 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (13 June 2007) T & M Industries (Aust) Pty Ltd v WorkCover Authority (NSW) (Inspector Sequeira) (2006) 151 IR 130 The Federated Agricultural Implement Machinery and Ironworkers Association of Australia and HV McKay Massey Harris Pty Ltd (1936) 36 CAR 268 Titan v Babic (1994) 126 ALR 455 Transport Workers' Union v Carey's Warehousing & Distribution Pty Limited and others [2006] NSWIRComm 192 Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31 William Arthur Forge & 5 Ors v Australian Securities & Investments Commission [2004] NSWCA Yarramul Pty Limited t/as La Porchetta Mulwala and Mulwala Golden Inn Restaurant Pty Limited v Office of Industrial Relations [2007] NSWIRComm 230 HEARING DATES: 23 August 2007 DATE OF JUDGMENT: 15 November 2007 APPELLANT: Mr I Taylor of Counsel Mr M Jaloussis, W.G. McNally Jones Staff LEGAL REPRESENTATIVES: RESPONDENT: Mr P Ginters of Counsel Mr G Boyd, Crown Solicitors JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J, Vice-President SCHMIDT J STAFF J Thursday 15 November 2007 Matter No IRC 372 of 2007 AUSCARE CORPORATION PTY LTD v NEW SOUTH WALES DEPARTMENT OF COMMERCE Application by Auscare Corporation Pty Ltd to extend time to appeal and appeal against a decision of Chief Industrial Magistrate Hart given on 1.3.2007 in matter no's 20157988/06/02; 20157996/06/2 and 20158008/06/02 JUDGMENT OF THE COURT [2007] NSWIRComm 271 JUDGMENT OF THE VICE-PRESIDENT AND STAFF J 1 We have had the advantage of reading the draft judgment prepared by Schmidt J in this matter. 2 Her Honour has set out the relevant factual background in great detail which relieves us of having to recite the factual background. 3 This appeal does not concern a challenge to the finding by the Chief Industrial Magistrate that the appellant breached the applicable award, i.e. the Miscellaneous Workers Home Care Industry (State) Award. Rather, the appeal is confined to a challenge to the penalty imposed by his Honour, even though the appellant conceded that the quantum of the penalty was of the lower end of the range (the maximum penalty being $10,000 per breach under the Industrial Relations Act 1996 ('the Act')). 4 For reasons given by Schmidt J in relation to the penalty proceedings, we consider that the appellant was denied procedural fairness at first instance. If the appellant had simply sought, by its appeal, to have contended that a lower penalty per se should have been imposed, then, on the authorities referred to by her Honour (see Stead v State Government Insurance Commission (1986) 161 CLR 141; Mason v Refugee Review Tribunal (2002) HCA 30 and SZBYR v Minister for Immigration & Citizenship (2007) HCA 267; and see, also, Escobar v Spindaleri & Anor (1986) 7 NSWLR 51), the appeal should be upheld. In that event, the question remaining would be whether the matter should be remitted to the Chief Industrial Magistrate or the question of penalty considered by the Full Bench. 5 However, that is not the question ultimately raised by this appeal. The appellant submitted that the only basis upon which it sought to have the appeal upheld and orders for a remitter made was that it would wish to have the opportunity to contend that no penalty would be imposed in consequence of the breaches of the appealable award found by the Chief Industrial Magistrate. It is this approach which attracted the submission by the respondent on appeal that, if procedural unfairness was found, the appeal should not be upheld because it was not conceivable that no penalty would be imposed at first instance. 6 As we have mentioned, it is clear that a conclusion must be reached in this matter that there was a denial of procedural fairness to the appellant. In the result, the penalty imposed at first instance was essentially without jurisdiction, although that conclusion does not invalidate the orders made in relation to the breaches of the award (see Malone v Marr & Anor [1981] 2 NSWLR 894). 7 The finding that there has been a denial of procedural fairness will not, however, automatically result in the appeal being upheld. If the Full Bench were to find that a properly concluded trial could not possibly have produced a different result then there would be no proper basis to uphold the appeal, see Stead. 8 In this light, and having regard to the conduct of the appeal by the appellant, the question must necessarily be whether, if the appellant had been granted a procedurally fair trial, a proper exercise of the Court's discretion could have resulted in no penalty for the breaches of the award committed by it. 9 This question is complicated because of the reluctance of the appellant to state (even in broad terms) the factors which could be said to have produced such a result, notwithstanding the admitted (for the purposes of the appeal) breaches of the award. 10 Nevertheless, in her draft judgment Schmidt J has derived from the appellant's submissions the factors which may relevantly bear on the question of penalty. We agree with her Honour's summary. Without wishing to understate them by brevity, and taking them at their highest, those factors seem to be: the appellant is a first offender; there was no intended breach of the award (indeed, the appellant had a bona fide belief in the operation of a different award and applied it) and the appellant may suffer disproportionately by loss of work (in tendering for Government projects) if a penalty was imposed. We note the appellant had earlier raised the prospect of a contention based on impecuniosity having regard to the Fines Act 1996, but this submission was abandoned. 11 There can be no doubt, for the reasons advanced by Schmidt J, that the Court has a discretion not to impose a penalty where breaches of an award are found. This was not denied by the respondent. However, the question here is whether, upon the correct application of sentencing principles, a trial court could, in the exercise of its discretion, impose no penalty. 12 Principles applicable to the imposition of civil penalties in the case of prosecutions for breaches of awards (see 357 of the Act) were recently considered by the Full Bench of the Court in Yarramul Pty Limited t/as La Porchetta Mulwala and Mulwala Golden Inn Restaurant Pty Limited v Office of Industrial Relations [2007] NSWIRComm 230. These principles bear upon the questions raised in this matter. 13 The relevant principles enunciated by the Full Bench were as follows: [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. 14 The Full Bench imposed penalties of $6,000 and $3,500 respectively for the breaches of the award in that matter. 15 As a matter of general principle, a court will be disinclined to impose no penalty where breaches of the Act or industrial instruments have been found. Whilst made in the context of proceedings brought before the Federal Court of Australia seeking a declaration that there had been a breach of the Workplace Relations Act 1996 (as to right of entry provision, which depended for its operation, upon a declaration as to the operation of a particular award) and the imposition of a penalty, we consider the following observations of Wilcox J in Community Public Sector Union & Anor v Stellar Call Centres Pty Ltd (1999) 92 IR 224 at [57] to be apposite in the present context: Upon proof of a breach of the Act it is ordinarily appropriate to impose a penalty, even if only a nominal one, in order to mark the Court's disapproval of the breach. 16 That principle will apply with even greater force in the present case. Given the principles stated in Yarramul and the significant public interest in ensuring compliance with awards, it appears to us that it will be only exceptional cases which would attract no penalty where breaches of an award are proven. 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: (1) To the extent required, leave to appeal is granted; (2) The appeal is upheld; (3) The penalty imposed in matters 20157996/06/2, 20158008/06/2 and 20157988/06/2 by the Chief Industrial Magistrate is quashed; (4) The matter shall be set down for hearing on penalty before this Full Bench at a date to be fixed. The respondent shall file and serve an outline of submissions (including any application to bring fresh evidence) and the evidence (in affidavit form) it intends to rely upon in relation to the question of penalty within 14 days. The appellant shall file and serve any submissions and evidence (in affidavit form) that it intends to rely upon as to penalty within 14 days of receipt of the submissions and evidence of the respondent. At the hearing of the matter, the Court will deal with any evidence admitted and any oral submissions in supplementation of the written outlines filed and served in accordance with these directions; (5) The matter will be listed for directions before the Vice-President at 9.30 am Thursday 13 December 2007; (6) Costs are reserved. JUDGMENT OF SCHMIDT J 29 This is an appeal from a decision given by the Chief Industrial Magistrate on 1 March 2007. His Honour found the appellant guilty of three breaches of s 357 of the Industrial Relations Act 1996 ('the Act'), in underpaying wages due under the Miscellaneous Workers Home Care Industry (State) Award. The appropriate penalty was found to be a total fine of $4,500, that representing $1,500 for each breach. After application of the principle of totality, his Honour reduced the penalty to $2,500, apportioned equally between the three offences and awarded costs in favour of the respondent. 30 The questions raised by the appeal were said to be: 1. Whether or not the Chief Industrial Magistrate failed to afford the Appellant procedural fairness in proceedings to deal with the question of penalty without affording the Appellant an opportunity to seek an adjournment so that the Appellant could obtain advice and present evidence on the question of penalty. 2. Whether or not the Chief Industrial Magistrate erred in determining that the Appellant should be convicted of three offences rather than one offence. 3. Whether the Chief Industrial Magistrate erred in failing to accept the Appellant's evidence and explanation concerning its reasons for failing to apply the provisions of the relevant award. 4. Whether the Chief Industrial Magistrate applied the proper approach to sentencing the Appellant having regard to the evidence and submissions before His Honour. 5. Whether the Chief Industrial Magistrate erred in applying a sentence to the offence or offences that was in all the circumstances too severe. 31 The grounds of appeal were: 1. The Chief Industrial Magistrate erred in failing, prior to sentencing the Appellant, to afford the Appellant an opportunity to apply for an adjournment of the proceedings so as to seek advice and if necessary present evidence relevant to any penalty that might be imposed upon the Appellant. 2. The Chief Industrial Magistrate erred in determining that the Appellant should be convicted in respect of three offences rather than one offence. 3. The Chief Industrial Magistrate erred in failing to give proper or any weight to the Appellant's evidence and its explanation for the breaches of the award found to have been proven. 4. The Chief Industrial Magistrate erred in that in sentencing the Appellant, His Honour failed to consider the objective seriousness of the offences in all the circumstances and failed to give any or any appropriate weight to the subjective circumstances of the Appellant. 5. The Chief Industrial Magistrate erred in imposing a sentence to the offence or offences that was manifestly excessive in all the circumstances. 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: Very well. So you'd like to make some submissions after Mr Neville's made his submissions, is that right? 47 Ms Woo responded: I would like to make a summary about their allegations about Austcare. 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 57 The question of leave to appeal was not in issue between the parties. I am also satisfied that this is an appropriate case for such leave being granted, for reasons which follow. 58 These proceedings were dealt with by the Chief Industrial Magistrate on 1 March 2007, being stood down when there was initially no appearance for the appellant. In commencing the proceedings in the afternoon, his Honour explained to Ms Woo that the prosecution's case was in relation to unpaid wages and that his task was to ascertain whether or not the payments due under the award had been made, with the onus on the prosecutor to prove every element of the case advanced. His Honour also endeavoured to ascertain from Ms Woo, what in fact, was in dispute between the parties. 59 Ms Woo explained that the appellant was disputing that the award applied to the employee. His Honour said that he would invite the prosecution to present its evidence and: ...then you will have an opportunity to put your case in a formal way. I should mention to you that if you are going to make assertions of fact you will need to put evidence before the court. It's not sufficient for you to give evidence from the bar table. There may be some matters that you can gave evidence about from the witness box but I note that you've come to the court without any legal representation. 60 Ms Woo responded: Because I didn't realise it was today 1 March already and I got a call from the offices that's why I have not got a solicitor today but I do have a solicitor. 61 His Honour's response was: I note the matter's (sic) has been before the court on quite a number of occasions and I am not inclined to stand the matter over today but it seems quite likely the matter won't finish today so what I'll do I'll make whatever use I can of the time we have and hear the inspector's evidence and that will put you in a position where you know exactly what it is that's being alleged and then you can decide what you would like to do about a defence. 62 Ms Woo responded 'Yes, no problem' and confirmed that the earlier plea of not guilty was maintained. His Honour again explained that the issue to be determined was whether or not the award had been complied with. He also advised Ms Woo: I think you should take very good notes because your legal adviser would probably want to know what's happened in the prosecution's case today. 63 Inspector Reilly was then called in the prosecution case and various documents were tendered. Ms Woo was asked whether she had any questions for the Inspector. She said 'I'm not well myself', but when asked whether she would like a 5 minute break, responded 'No,no,no I want to go ahead because I think I can make it clear on this'. 64 Ms Woo had considerable difficulty in questioning the Inspector. His Honour repeatedly asked her to confine herself to questions, at that stage of the proceedings, and not to make submissions. There were also objections to the relevance of some of the questions Ms Woo asked. His Honour sought to assist Ms Woo in framing some of the questions which she wished to put, but did not allow Ms Woo to cross examine the Inspector in relation to allegations that the employee in question had stolen items from a client, on the grounds of relevance. At one point, his Honour rejected a further relevance objection made for the prosecutor, observing: We have a lay advocate here, Mr Neville, don't get too technical. I'm going to allow a little bit of latitude. 65 The prosecutor's objections were pressed however, to the point where his Honour asked Mr Neville to sit down. His Honour then again asked Ms Woo to direct her questions to factual matters. After further questions, there was a short re-examination of the Inspector. When the prosecution closed its case, the following exchange occurred: HIS HONOUR: Now, Ms Woo, the prosecution has presented its case and now it's your opportunity to indicate whether you're ready to proceed to deal with your case. Is there evidence you wish to put before the court or are you seeking to have the matter adjourned - just what is your wish as(sic) the moment? WOO: I'd like to sort it out because this matter is really affect(sic) our company's reputation. We're dealing with the government. We have a very good reputation - we started since '97, we have very good reputation and this is the very first time we have an employee accuse us for unfair - not paying her and try to report the matter to industrial relations, they try to get more pay. It's just I feel - I'd really like to sort it out the matter and I tried to be fair and we are fair to all the employees and does that mean you want me to have a say about the whole thing that I have a chance to say about the whole thing or I should -- HIS HONOUR: It's now your opportunity to firstly present to the court any evidence that you wish to rely upon. This is a court now. This is not a negotiation. This is not a mediation. This is a court of law and your company has been brought here and is being prosecuted under the law. WOO: Yes. HIS HONOUR: And if I find the company guilty then there may be a penalty imposed and the company will have a conviction recorded against it so you know what the evidence is that the prosecutor relies upon. If you say that that evidence is wrong you need to present the evidence that you rely upon, for example, if you say that the prosecution has relied on the wrong award you need to present to the court the award that you say is the applicable award. If you say that the prosecution has misunderstood the duties that were performed, you need to present some evidence concerning what the duties were. In other words, this is your opportunity to presence(sic) your evidentiary case then after that it will be Mr Neville's opportunity to make submissions and then your opportunity to make submissions. WOO: Okay. HIS HONOUR: At this stage, you keep wanting to make submissions even in the middle of cross-examination you want to make submissions, it's not the way it is done. WOO: Okay. HIS HONOUR: At this stage, the court is receiving evidence. I've received the prosecution's evidence. If you have evidence that you want to put before the court, this is your opportunity now. It will be too late when we get to the submission stage. WOO: Yes okay. HIS HONOUR: So are you ready to put your evidence before the court today. WOO: I have some evidence this worker's timesheet with me today. It is the one I submitted to Michael Reilly. It is very clear how the different name of the customer, different address, time start, time finish and so this is one of the quite strong evidence and I also have a letter from this government agency manager as well about this employee but I'm not sure if you want to read the letter or not but what I would like to say about the whole thing is our company started a name called Asian Nursing Service. HIS HONOUR: Now, I don't think you're listening to me very well. WOO: Okay. HIS HONOUR: Because you want to launch into your submissions now, don't you? WOO: I can explain the whole things from my point of view. HIS HONOUR: No, because that's the submissions and at this stage I want to know whether you have any evidence you wish to put before the court. Evidence is different to submissions. WOO: Yes. HIS HONOUR: Do you understand that? WOO: Yes HIS HONOUR: I know it's a bit difficult but it's a different concept. 66 Ms Woo then proceeded with the appellant's case. Ms Woo tendered time sheets which she wished to rely on and explained their relevance to the appellant's case. A document setting out what was sought to be paid by the appellant, but was disputed by the employee, was also tendered. His Honour then confirmed that there was nothing further which Ms Woo wished to tender. Ms Woo did not tender the award the appellant claimed applied to the employment, nor did Ms Woo seek to call or put on any evidence herself. His Honour did not revisit the question of whether she wished herself to give any evidence, nor did he remind her of the need to tender the award which the appellant wished to argue applied. Rather, his Honour explained that he would invite the prosecutor to make his submissions, advising Ms Woo that she would get 'the final say'. 67 On conclusion of the prosecutor's submissions, His Honour then invited Ms Woo to make submissions, saying 'Now Ms Woo, you've been wanting to make some submissions for some time now. This is your chance to make submissions.' Ms Woo accepted that invitation. His Honour also explained the purpose of submissions as 'submissions is simply your summary of the situation, what you say the court should determine and why.' 68 In making submissions Ms Woo suggested that she might call evidence on another occasion, which led his Honour to observe: Yes, well I note what you say, but Ms Woo the situation is that the time has passed for further witnesses or further documentation. As I said before, this is a court of law and these proceedings have to be conducted in accordance with appropriate procedures. 69 His Honour then turned immediately to give his decision, without first explaining what he proposed to do. His Honour found that the appellant appeared to have a 'fundamental misunderstanding of the way the award system works.' That misunderstanding was sought to be explained in the reasons which his Honour then sought to give, but Ms Woo interrupted, to disagree with what his Honour was saying. 70 His Honour asked Ms Woo to be silent, while he gave his decision, explaining that otherwise she would have to leave the courtroom. His Honour then resumed giving his reasons, but Ms Woo interrupted again. With some greater difficulty, his Honour convinced Ms Woo to cease interjecting. The appellant was found guilty of the breaches alleged. 71 While making his orders, His Honour asked the prosecutor to confirm the calculation of interest, which led Ms Woo to interject again. Ms Woo attempted to draw his Honour's attention to her argument that there was another award which applied to the employment, which his Honour rejected, saying: No, it's too late for that, I've heard the evidence -- WOO: -- community service award -- HIS HONOUR: No I've heard the evidence. WOO: -- in the industry -- HIS HONOUR: Sit down please. WOO: -- You can't just have one award -- his honour: No, sit down. Sit down. WOO: You can't - you can't have one award. HIS HONOUR: Sit down. WOO: It's not fair. 72 His Honour next asked whether the prosecutor wished to deal with the issue of penalty and costs that day. The prosecutor replied that 'I'd like to get the matter wrapped up today'. His Honour did not ask Ms Woo what her attitude to this was, but invited the prosecutor to make submissions. The prosecutor made no submissions as to penalty, leaving that entirely in the hands of the court. An order for $1,500 costs was pressed. Having received those submissions, again, his Honour did not return to the possibility of an adjournment of the proceedings. Rather, his Honour told Ms Woo: Now Ms Woo, I have found that the company is guilty of these breaches and the question is what is the appropriate penalty that the court should impose. I am going to let you address the court in relation to the question of sentencing. 73 Ms Woo made short submissions, saying: I feel it's quite unfair because in the aged care community service industry there are other awards called .. (not transcribable) .. and the Community Service Award, Aged Care General Service Award, other than hospital award, there are so many awards. Mr Reilly agreed that he used one award to apply to this worker and did accept that this worker does different jobs, and he thinks she been stopped working for quite some time. And she has a break. And she can be employed by different award every single time. And it's just, it's not fair. You say - you say it is Industrial Relations should apply to - for one award for all the jobs she does, it's just not fair. And if you want to say - impose a penalty, and the purpose of - I'm here today is just to try to get some justice because as I say, if we award this employee - all she - all we do is just encourage that behaviour. That they can report to Industrial Relations, get what she want. As you say, we should accept the penalty and I have no idea what the type of penalty is, and I personally feel strongly that we have done nothing wrong to this employee at all. And I can show you the other award I have in the paper. There's other awards in the industry, not just the one. And Mr Reilly agrees to that. And I - I really strongly believe we should not be penalised at all. 74 Ms Woo added: Because I don't know what my rights I have here, so that's why I probably not said anything .. (not transcribable) .. I should say. 75 His Honour responded: Well Ms Woo, it may well be that it would have been appropriate step for the company to arrange legal representations so that today it had in court a solicitor or barrister who understands our industrial law system and is able to make submissions to the court on that basis. I can see that you're not legally trained, but it's obviously a matter for the company to make those decisions. On this occasion the company has decided that you should be its representative and that's a matter for the company. I personally would have much preferred it if the company had decided to engage a legal representative because I always prefer that when someone comes before the court and that the court is asked to impose a sentence. It's much better from the court's point of view if there is someone legally represented on both sides. But that's not something that I can control. 76 His Honour then went on to give his decision on penalty. 77 This outline of the course which the proceedings took, demonstrates that the process which his Honour followed, departed from what a fair trial required in the circumstances, in a number of important respects. 78 The assistance which a judicial officer should provide an unrepresented litigant has been much discussed in the authorities. In Ramon Clarence Parkinson a Full Bench observed at [42], that there is a duty to provide an unrepresented litigant with such assistance and advice as is necessary to ensure a fair trial. The Full Bench went on to observe: This requirement does not involve the Member giving the other party 'less than he is entitled to' or conferring upon the unrepresented party advantages which, if he were represented, the person would not have. Nor does it involve the Commission in compromising its independence (see Vincent at 227)). However, it does require the provision of some minimal levels of assistance having regard to the disadvantages facing an unrepresented litigant, such as the provision of information to the unrepresented party as to his rights in order that he may determine how to conduct his case (see MacPherson at 547). For example, the Commission may draw to a party's attention the relative weight which will be given bar table statements as opposed to sworn evidence (see Davidson at 8) or the need to have statements formally introduced into evidence in order for them to form part of the evidence in the proceedings. The Commissioner should have made plain to the appellant that the circumstances pertaining to the receipt of his evidence were such as to create the possibility that there would be no evidence in the proceedings on his own account because his supplementary statement was not accepted by the Commission and he had nonetheless not relied on his earlier statement. The appellant could be forgiven for not understanding the somewhat unclear procedure that accompanied the giving of his evidence and certainly could be excused for not understanding the final result of those processes would result in him having effectively little evidence in his case before the Commission. Having regard to these principles, we consider that the Commissioner failed to ensure the proceedings were fair in this matter and this factor also warrants appellate intervention. 79 Recently the Court of Appeal dealt with similar questions in Uszok, where Beasley JA, with whom Basten JA agreed, observed at [147] - [155]: 147 This leads to a further question as to what was required of the trial judge in dealing with a claim presented by an unrepresented party. 148 This issue arises most frequently in relation to tribunals, which are under a duty to accord procedural fairness to an applicant. A tribunal will frequently have to take affirmative steps to ensure that it understands the issues presented to it and that the applicant understands the nature of and limitations on its powers. These principles may operate differently in the context of adversary litigation, but they remain apposite. 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. 154 In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at [29], the Full Court of the Federal Court considered the duty of a trial judge to an unrepresented litigant and suggested that the duty might have a more extensive scope in criminal proceedings than in civil proceedings. The Court (Sackville, North and Kenny JJ) affirmed principles stated by Samuels JA (at 14) in this Court in Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) to the following effect: "In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored … An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts." These principles were recently applied in Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943 at [50]-[54] by Cowdroy J. 155 The passage from the transcript extracted above failed to provide an explanation to the appellant of the problems with the evidence he sought to tender and the means that might be available for rectification of the problems. The objection by counsel and the response of the trial judge reflected obscurantism rather than elucidation. It is not the only area of complaint made by the appellant in respect of the manner in which the trial was conducted. As I explain further below, this will have consequences in respect of the extent of the relief that this Court should give. 80 Bryson JA, disagreed with their Honours on this issue, observing at [163]: 163 I respectfully say that I see no substance in the view that the appellant's difficulty arose from any shortcoming or failure in the conduct of the trial by the Trial Judge. The Trial Judge had a full opportunity to observe the appellant and the appellant's forensic capacity, and was in a position which the Court of Appeal cannot attain to judge the need for and the utility of giving the appellant explanations of what he should do and how he should present his case. The choice whether to intervene, in what way to intervene and in how much detail is largely discretionary and decisions of this kind can rarely be open to appellate review. It would in my view have been an inappropriate intervention and an error for the Trial Judge to embark on explaining the nature of the evidence which the appellant needed to call and how he should go about obtaining it, or to confer on him any opportunity by way of adjournment of a long hearing to do something which Mr Uszok should already have done in his own interest. It is wrong and unjust to turn self-representation into a procedural advantage. 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: HIS HONOUR: It's now your opportunity to firstly present to the court any evidence that you wish to rely upon. This is a court now. This is not a negotiation. This is not a mediation. This is a court of law and your company has been brought here and is being prosecuted under the law. WOO: Yes. HIS HONOUR: And if I find the company guilty then there may be a penalty imposed and the company will have a conviction recorded against it so you know what the evidence is that the prosecutor relies upon. If you say that that evidence is wrong you need to present the evidence that you rely upon, for example, if you say that the prosecution has relied on the wrong award you need to present to the court the award that you say is the applicable award. If you say that the prosecution has misunderstood the duties that were performed, you need to present some evidence concerning what the duties were. In other words, this is your opportunity to presence(sic) your evidentiary case then after that it will be Mr Neville's opportunity to make submissions and then your opportunity to make submissions. WOO: Okay. 88 His Honour did not, however, explain to Ms Woo how to go about giving, or calling evidence about the matters on which the appellant wished to rely. His Honour did not advise Ms Woo to identify or tender the award the appellant relied on, nor did he explain how Ms Woo could herself give evidence at the hearing, and how she would then be subject to cross examination. Nor did he ask Ms Woo whether she wished to give any evidence. 89 The end result was that there was no evidentiary basis for the argument which the appellant wished to advance as to the applicable award, with the result that the appellant's case was not considered by his Honour. No mention was made by his Honour of the competing award and indeed, even in giving his reasons, his Honour did not explain how it was that he came to the conclusion that the award which the prosecutor relied on, applied to the employee in question, given the work performed. His Honour made no reference at all to the relevant award provisions, observing only: Now the situation is that the defendant appears to have misunderstood that the award has effect and that it is not open to an employer and an employee to contract out of the provisions of the award. That the minimum rate of pay prescribed by the award must be paid, and it is not open to the parties to contract separately. The other area that seems to be a matter of some confusion on the part of the defendant is that there should be a different rate of pay in respect of different specific duties, whether they involve showering or taking a person for a walk, or grooming them in some way, and that these are all matters for negotiation. The reality is that these are all duties which may form part of the home care industry. And if a person is engaged in that industry, it is the fact that they are engaged in that industry which determines the minimum rate of pay, it is not a question of whether they are showering or not showering, or whether they are taking someone for a walk or not taking them for a walk. 90 It was at this stage that Ms Woo sought to interrupt his Honour, to raise with him the other awards applying in this industry. This exchange concluded with his Honour observing: Ms Woo, remain silent please. Now it seems that the defendant is not much interested in what the court has to say about the matter. In those circumstances I think it might be best if I simply proceed to make some orders. 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: The question remains whether the Master should have allowed Mr Titan an adjournment to call witnesses. Where it is apparent that a party who does not have legal representation has misunderstood procedural requirements so that he or she is not in a position to complete the presentation of evidence, an adjournment might be considered in the interests of justice provided that no irreparable substantive or procedural injustice is done to the other party involved. In any such case the granting of an adjournment will be a matter of discretion. 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): 'If and industrial court is satisfied that a person has contravened a provision of an industrial instrument, it may order the person to pay a pecuniary penalty not exceeding $10,000'. 110 Indeed, the authorities show that such discretions have been exercised in the past. In Re Club Employees (State) Award (Unreported, Liddy J, 15 October 1982), his Honour dealt with the predecessor to s 357, s 93 of the Industrial Arbitration Act 1940, in circumstances where the appellant had been convicted of two breaches of the Award, but no penalty had been imposed. The conviction was challenged on appeal, not the exercise of the discretion to impose no penalty. His Honour took the view that the proceedings were 'quasi criminal in nature' and that the magistrate was correct in having found the offences proven, observing at p 10: The scheme of the Act in terms of s.93(3) clearly contemplates an offence under s.93(1) even where no wilful act or default is present. Counsel submitted that implications should not be admitted to qualify the express terms of the award. The plain words of s.93 of the Act should not be read down. It was not appropriate in prosecutions under s.93, even under the heading of public policy, to consider contract of employment cases. 111 This approach accorded with that discussed earlier in the context of proceedings for breach of federal awards when Dethridge CJ observed in The Federated Agricultural Implement Machinery and Ironworkers Association of Australia v HV McKay Massey Harris Pty Ltd (1936) 36 CAR 268 at p270: I have been considering whether I have not a discretion to refrain from inflicting any penalty at all in this case. I find nothing in the Act expressly allowing me so to refrain, but I do find that the sections dealing with proceedings of this kind are in form permissive, so that the Court dealing with the claim for a penalty, if it thinks fit, need not impose a penalty. The word used is "may" - the Court may impose a penalty. I have therefore come to this conclusion, that subject, to the respondent undertaking not to persist in this method of paying learners less than the rate prescribed unless and until some appropriate provision is inserted in the award enabling them to do so, I shall refrain from imposing any penalty. 112 In this case, the procedure adopted by his Honour denied the appellant the opportunity to advance such a case, or indeed, to put any case in relation to sentence. I am unable to conclude that there is simply no basis upon which a discretion to refrain from imposing a penalty on the appellant might not be exercised in this case, given what transpired below. 113 The proper approach is that discussed by the High Court in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141: 9. The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker L.JJ.) in Jones v. National Coal Board (1957) 2 QB 55, at p 67, in these terms: "There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it." That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility. 10. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial. 11. Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact (Supreme Court Rules O.58 rr.6 and 14). However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal 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 of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial. 114 Likewise, it was concluded in Muin v Refugee Review Tribunal [2002] HCA 30: 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: 1. The appellant's convictions are quashed. 2. The penalties imposed are set aside. 3. The matters are referred back to the local court. 4. The local court is directed to reconsider the question of sentencing. 5. The respondent should bear the appellant's costs of the appeal, as agreed or assessed. 119 VICE-PRESIDENT: The Orders of the Court are, therefore, those set out in paragraph [28] of the joint judgment. ____________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.