Tanwar Enterprises Pty Ltd v New South Wales Industrial Relations (No 3) - [2015] NSWIC 8

Industrial Court

New South Wales

Medium Neutral Citation: Tanwar Enterprises Pty Ltd v New South Wales Industrial Relations (No 3) [2015] NSWIC 8
Hearing dates: 10 March 2015
Date of orders: 21 July 2015
Decision date: 21 July 2015
Before: Kite AJ
Decision:
The Court makes the following orders:

(1) If leave to appeal is required, leave is granted.

(2) The appeal is upheld.

(3) The decision and orders of her Honour Magistrate Goodwin sitting as the Chief Industrial Magistrate are set aside.

(4) The proceedings in the Chief Industrial Magistrate’s Court are dismissed.
(5) No order as to costs.
Catchwords: APPEAL - appeal from Chief Industrial Magistrate’s Court – nature of an appeal under Industrial Relations Act 1996 s 197 – appeal by rehearing: PRACTICE AND PROCEDURE - imposition of a civil penalty for failure to comply with industrial instrument – nature of proceedings for civil penalty – whether civil or criminal: EVIDENCE - standard of proof – civil standard – Evidence Act 1995 s 140(2) – Briginshaw standard; COURTS – obligation to give reasons – adequacy of reasons – credibility of witnesses ; COSTS – limitation on award of costs against prosecutor – Industrial Relations Act 1996 s 357(6) - appeal allowed.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Customs Act 1901 (Cth)
Evidence Act 1995 (NSW)
Excise Act 1901 (Cth)
Industrial Relations Act 1996 (NSW)
Industrial Relations (General) Regulation 2001 (NSW)
Interpretation Act 1987 (NSW)
Taxi Industry (Contract Drivers) Determination 1984
Cases Cited: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
BHP Steel Ltd v The Australian Workers' Union, New South Wales [2003] NSWIRComm 151
Bluescope Steel (AIS) Pty Ltd v Australian Workers Union, New South Wales [2005] NSWIRComm 99; 138 IR 324
Bluescope Steel Limited v The Australian Workers' Union, New South Wales [2007] NSWIRComm 307; 160 IR 456
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161
Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194
Curtis v Harden Shire Council [2014] NSWCA 314; (2014) 203 LGERA 352
Director of Public Prosecutions (NSW) v Earl Burns [2010] NSWCA 265; (2010) 207 A Crim R 362
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Golden Swan Investments (Australia) Pty Limited v Workcover Authority of NSW (Inspector Pryor) [2006] NSWIRComm 402
Ian Robertson v Marrickville Council [2003] NSWIRComm 394
Joy Pride v Mark Hansen Real Estate Pty Ltd [2002] NSWCIMC 54
Maxwell v R [1996] HCA 46; (1996) 184 CLR 501
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Stockwell International Pty Limited v Solyali [2014] NSWIC 7
Tanwar Enterprises Pty Limited v New South Wales Industrial Relations [2014] NSWIC 2
Tanwar Enterprises Pty Ltd v New South Wales Industrial Relations (No 2) [2015] NSWIC 5
Transport Workers' Union of Australia New South Wales Branch v Australian Document Exchange Pty Ltd trading as Grace Couriers [2000] NSWIRComm 74
Wainohu v State of New South Wales [2011] HCA 24; 243 CLR 181
Category: Principal judgment
Parties: Tanwar Enterprise Pty Limited (Appellant)
NSW Industrial Relations (Respondent)
Representation:
Counsel:
R J de Meyrick of counsel (Appellant)
Solicitors:
Remington & Co Solicitors (Appellant)
NSW Industrial Relations (Respondent)

File Number(s): IRC 573 of 2014
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Chief Industrial Magistrate’s Court

Date of Decision:

27 June 2014

Before:

Goodwin LCM sitting as Acting CIM

File Number(s):

CIM 196197 of 2013

Judgment

In this matter Tanwar Enterprises Pty Ltd (“Tanwar” or “appellant”) has sought to appeal from a decision of her Honour Acting Chief Industrial Magistrate Goodwin (“the CIM”) given on 27 June 2014. The decision was in respect of a prosecution against Tanwar by New South Wales Industrial Relations (“respondent” or “the prosecutor”), under s 357 of the Industrial Relations Act 1996 (NSW) (“IR Act”) for failing to pay a taxi driver, Mr Ranjeev Kumar, entitlements in accordance with the Taxi Industry (Contract Drivers) Determination 1984 (“the Determination”). The appeal was brought under s 197(1) of the IR Act.
The matter was heard by her Honour at first instance over three days. The CIM found that Tanwar failed to comply with a provision of an industrial instrument. The CIM imposed a civil penalty and ordered the appellant to pay Mr Kumar an amount in respect of annual leave.

Background

Tanwar operated a taxi service. As at 2009, its base of operations was located at 281 New Canterbury Road, Lewisham. The base contained a service station, office and workshop. The appellant operated 13 taxis.
Mr Kumar commenced as a bailee taxi driver with the appellant in January 2009, with his last shift in June 2009. As will be seen, those dates are significant.
For the purposes of the bailment, Mr Kumar paid a set amount, referred to as a pay-in, to ‘hire’ a taxi under Method 2 of the Determination. Method 2, is prescribed in cl 3 of the Determination, which, so far as relevant, reads:

Method II – Set Pay-in
(a) A bailee shall be entitled to receive and retain from the chargeable fares, the balance left after deducting the amounts set out in Table 1 – Wages of Part B, Monetary rates, of this determination.
(b) A bailor and bailee may agree on lesser amounts than those specified in Table 1 – Wages, of Part B, Monetary Rates, of this determination, provided that such an agreement shall not operate to relieve the bailor of the obligation to comply with any requirement of this determination.

Under cl 19(b)(ll) of the Determination Mr Kumar was entitled to be paid an amount in respect of accumulated annual leave at the conclusion of the bailment.
It was alleged that Tanwar had failed to comply with its obligations to pay Mr Kumar the sum due. That amount was $1,476.53.
It is not disputed that the appellant was a bailor for the purposes of the Determination, or that it was bound to conform to the provisions of the Determination. At trial it was not disputed that the respondent was a permanent bailee. The appellant sought to raise that issue in the appeal. It was not permitted to do so; see Tanwar Enterprises Pty Ltd v New South Wales Industrial Relations (No 2) [2015] NSWIC 5 (“Tanwar No 2”).
By a court attendance notice issued 13 June 2013, the prosecutor, Raymond Welsh, an Industrial Inspector with NSW Industrial Relations, commenced proceedings in the Chief Industrial Magistrates Court against the appellant for an “offence” under section 357 of the IR Act. The terms of the section are set out below. It will be seen that there is no reference in the section to an “offence”.
At the first mention on 24 July 2013 the defendant entered a plea of Not Guilty in relation to the abovementioned charge.
The matter proceeded to a defended hearing. It was heard by the CIM on 12 December 2013 and 10 and 11 March 2014. Judgment was given on 27 June 2014.

Evidence in the proceedings below

The prosecution, represented by Ms Wallace, called two witnesses: Mr Ranjeev Kumar and Mr Raymond Ghannoum. The two witnesses were cross-examined. The prosecution also relied on documentary evidence consisting of: a reference letter signed by Mr Ramesh Tanwar; the Determination; and documents produced by a real estate agent who had acted for Mr Kumar. Particular significance was attached to evidence of Mr Kumar’s receipt of the reference letter signed by Mr Tanwar. The letter bore a handwritten date which the respondent submitted was 6 February 2009 written as “6/2/09”. It will be seen that the date of the letter was a key element in the respondent’s case. The date was disputed by the appellant.
The appellant was represented at trial by Mr Jackson of counsel. He called three witnesses; Ms Gurpreet Kaur, Ms Shirley Tanwar and Mr Ramesh Tanwar. All three witnesses were required for cross-examination. The appellant also relied on documentary evidence including letters and accounting records such as tax invoices and cash receipts issued by Tanwar, as well as Tanwar’s file copy of the reference letter signed by Mr Tanwar. The appellant contended that the letter was dated 6 July 2009 written as “6/7/09”. The evidence given by the witnesses related to outstanding pay-ins owed by Mr Kumar, as well as the purported payment of $2,000 in advance of holiday pay made by Tanwar to Mr Kumar on 6 July 2009.
Throughout the proceedings, the documentary evidence of both parties was in contention. In particular, as I have noted, the date of the reference letter was a key issue. It remains a live issue in these proceedings.
In relation to the appellant’s documentary evidence in the court below, Mr Kumar strongly denied ever receiving any of the documents that were purportedly provided to him by Tanwar.
The CIM proceeded to determine the matter in a decision handed down on transcript. Her Honour first determined the question as to whether the onus of proof is “on the balance of probabilities or beyond reasonable doubt”. The CIM accepted the onus of proof in s 357 proceedings to be on the balance of probabilities.
Her Honour then considered the evidence of the parties. The CIM considered the essential issue was the “assessment of credit of the witnesses and the surrounding circumstances of the interactions between the parties”. On this matter, the CIM found in favour of the prosecution.
Her Honour accordingly found on the balance of probabilities that the defendant failed to comply with cl 19 of the Determination by failing to pay annual leave to Mr Kumar in breach of s 357 of the IR Act. Her Honour ordered that a fine of $1,000.00 be issued to Tanwar Enterprises, and ordered payment in the sum of $1,476.53 to Mr Kumar. Her Honour also ordered costs to be paid as agreed or assessed.

Grounds of Appeal

The grounds of appeal are as follows:

Her Honour failed to consider all relevant evidence.

Her Honour failed to give sufficient and adequate reasons as to why certain evidence was accepted over other conflicting relevant evidence.

Her Honour failed to give sufficient and adequate reasons as to why her Honour preferred the evidence of Ranjeev Kumar over that of other witnesses.

Her Honour denied procedural fairness to the appellant.

Her Honour applied an inappropriate standard of proof to determine her decision.

Her Honour gave inadequate reasons for her decision.

Her Honour failed to apply the Briginshaw standard of proof or criminal standard when delivering her decision.

Her Honour failed to deal with central issues and rule on the matters that were in controversy between the parties.

The decision was against the weight of the evidence.

Leave to appeal

The appeal filed on 25 July 2014 was filed using Form 29. That form bears the description “Appeal where Leave Not Required”.
In Tanwar Enterprises Pty Limited v New South Wales Industrial Relations [2014] NSWIC 2 (“Tanwar No 1”), his Honour Boland AJ granted the appellant an extension of time to file the appeal, and stayed the orders of the CIM pending the outcome of the appeal. In doing so, his Honour noted at [29]:

“…I should add that I regard the question of whether leave is required as a live issue, as is the nature of the appeal.”

The issue in relation to leave to appeal in proceedings under s 197 of the IR Act was briefly discussed in Stockwell International Pty Limited v Solyali [2014] NSWIC 7 at [29]-[32] per Boland AJ.
In Stockwell, His Honour stated at [29]-[30]:

“[29] It had been the case that an appeal brought under s 197(1)(a) of the Act required leave under s 188(1) of that Act: Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432; Blue Mountain Disability Services Ltd v Stinson (1999) 92 IR 246. Section 188(2) provides that leave will be granted if the Full Bench is of the opinion that the matter is of such importance that, in the public interest, leave should be granted. Section 188(3) provides that the Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal.
[30] The Industrial Relations Amendment (Industrial Court) Act 2013 amended the Act to provide, inter alia, that appeals from the Local Court under s 197 were to be heard by a single judicial member of the Industrial Court. Section 188 of the Act applies only to appeals to a Full Bench. It does not appear that any provision has been made in the Act requiring leave where the appeal is to a single judicial member of the Court.”

On the hearing of the proceedings, the respondent did not oppose the grant of leave to appeal. I have not therefore had the benefit of detailed submissions from the parties as to whether leave is required. Were the question limited to the matters referred to by Boland AJ, it seems to me that there would be no requirement for leave. However s 197(2) of the IR Act has the effect of applying the Crimes (Appeal and Review) Act 2001 (NSW) (“Crimes (AR) Act”) to such appeals.
In Tanwar No 1 Boland AJ observed at [8]-[11] (noting similar views earlier expressed by Backman J in Golden Swan Investments (Australia) Pty Limited v Workcover Authority of NSW (Inspector Pryor) [2006] NSWIRComm 402) that there are difficulties in determining the proper application of these provisions.
I referred to his Honour’s observations in Tanwar No 2 but, like his Honour, I found it unnecessary to resolve those difficulties in deciding the issue then before the Court.
I note however that the Crimes (AR) Act requires leave in relation to some appeals; see ss 12 and 53. Other appeals may be brought as of right; see ss 11 and 52. The grounds for the grant of leave are dealt with in different terms; compare ss 16 and 54. That leaves open questions of whether leave is required to appeal to this Court and, if so, in which appeals and on what grounds.
Given the circumstances, I do not think this matter provides the appropriate opportunity to determine whether leave is required in appeal proceedings before a single member of the Industrial Court. If leave be necessary, I would grant it for the reasons that follow.
Briefly stated, there are questions raised by the appeal that are of general importance. In particular, the appeal raises the important question of the appropriate standard of proof in a prosecution for a civil penalty. While there are numerous decisions in which courts have expressed a view as to the correct standard of proof in such prosecutions under the IR Act, there is no authoritative decision. This appears to be the first time that the issue has been in contest and required a determination. The determination of that issue has an importance extending beyond this case.
Also, the appeal raises the question of whether the CIM failed to give sufficient and adequate reasons as to why certain evidence was preferred over other conflicting evidence, and whether the CIM, in failing to give adequate reasons for her decision, denied the appellant procedural fairness. It is in the public interest (cf s 188 IR Act) and the interests of justice (cf s 16 Crimes (AR) Act) to have these various matters determined.

Legislative Framework

Section 197 of the IR Act provides:

197 Appeals from Local Court
(1) An appeal lies to the Commission in Court Session against:
(a) any order made under this Act by the Local Court for the payment of money or the dismissal by the Local Court of an application for such an order (including a dismissal on the ground that it does not have jurisdiction to deal with the application), or
(b) any conviction or penalty imposed by the Local Court for an offence against this Act or the regulations, or
(c) a civil penalty imposed under this Act by the Local Court for a contravention of an industrial instrument or the dismissal by the Local Court of proceedings for such a civil penalty, or
(d) a civil penalty imposed under Division 7 of Part 13 of the Work Health and Safety Act 2011 by the Local Court for a contravention of a WHS civil penalty provision or the dismissal by the Local Court of proceedings for such a civil penalty.

(2) The provisions of the Crimes (Local Courts Appeal and Review) Act 2001 that relate to:
(a) appeals from the Local Court to the District Court or Supreme Court, and
(b) the decisions of the District Court or Supreme Court on any such appeal, and
(c) the carrying out or enforcement of any such decision, (including those provisions as applied by section 70 of the Local Court Act 2007)
apply, subject to the regulations under this Act, to any appeal referred to in subsection (1).

Consideration

Nature of this appeal

As I stated in Tanwar (No 2) at [22], the issue as to the nature of these appeal proceedings is yet to be determined. I noted, however:

“… What appears to be accepted is that the appeal is not a hearing de novo: see in this respect Drake Personnel Ltd v Workcover Authority (NSW) [1999] NSWIRComm 343; (1999) 90 IR 464. The appeal may be either a rehearing or an appeal stricto sensu.”

The appellant submitted the nature of the present appeal proceedings to be a rehearing, citing in support the decision of Director of Public Prosecutions (NSW) v Earl Burns [2010] NSWCA 265 (“Earl Burns”) at [23] per Beazley JA with whom Basten and Campbell JJA agreed.
In Earl Burns, Beazley JA said at [23]-[25]:

“[23] The nature of an appeal to the District Court under Pt 3 was considered by this Court in Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39. Mason P observed that the appeal is by way of rehearing on the Local Court transcript, supplemented by any documentary evidence and any evidence admitted by leave pursuant to the Crimes (Appeal and Review) Act, s 18(2). His Honour stated that the District Court is required to apply the principles governing appeals from a judge sitting without a jury. The judge is to form his or her own judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate who saw and heard the witnesses in the lower court: see Bell v Stewart [1920] HCA 68; (1920) 28 CLR 419 at 424-5; Paterson v Paterson [1953] HCA 74; (1953) 89 CLR 212; Fox v Percy [2003] HCA 22; 214 CLR 118.
[24] In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ noted, at [22], that:
“The ‘rehearing’ does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits.”

[25] Their Honours also noted, at [23], that a court conducting an appeal by way of rehearing on the record is required to observe the limitations of such an appeal, including, relevantly to this matter:
‘… the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share …’ ”

The respondent made very limited submissions as to the nature of the appeal in Tanwar No 2. In the appeal proceedings the respondent did not make any further submissions on this point beyond the following oral submission:

“Our submissions are that her Honour has given an analysis and consideration and reasons that were adequate. However, if your Honour is against me on this, we submit that your Honour could analyse the evidence yourself to give those adequate reasons.”

It seems implicit in that submission that the respondent accepts that the appeal is by way of rehearing.
Earl Burns dealt with appeals from the Local Court to the District Court. Such appeals are governed by ss 17 and 18 of the Crimes (AR) Act which specify such appeals are to be by way of rehearing. There are no equivalent provisions to ss 17 and 18 in relation to appeals from the Local Court to the Supreme Court.

I have identified no authority dealing with the nature of an appeal to the Supreme Court. That may be because such appeals are confined to “a question of law alone” unless the Court grants leave to raise a question which includes a question of fact. As a preliminary observation, it would seem extremely unlikely that the legislature intended a broader appeal to the Supreme Court on questions of fact than are permitted to the District Court. More particularly, the legislative context would suggest the appeal to the Supreme Court is an appeal in the strict sense.
In Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194, Gleeson CJ, Gaudron and Hayne JJ commented on the nature of appeals and in particular the distinction between an appeal in the strict sense and an appeal by way of rehearing. Their Honours said (citations omitted):

“[11] It was pointed out in Brideson [No 2] that "the nature of [an] appeal must ultimately depend on the terms of the statute conferring the right [of appeal]". The statute in question may confer limited or large powers on an appellate body; it may confer powers that are unique to the tribunal concerned or powers that are common to other appellate bodies. There is, thus, no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another.
[12] It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this Court under s73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.
[13] If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.
[14] Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.”

In this matter the appeal has been conducted on the basis of the evidence and law as it stood at the time of the CIM’s decision. In that sense there is little if any practical difference (in this instance) between an appeal in the strict sense and one by way of rehearing. While it is therefore unnecessary to determine the issue to finality, I am inclined to the view that the appeal is by way of rehearing. As s 197(2) of the IR Act embraces both the provisions relating to appeals to the District Court and appeals to the Supreme Court, it would seem that the statute intends the appeal to be tailored to the issues raised. In either case the process involves the identification and correction of error.
On this basis, I will approach the nature of the present proceedings as an appeal by way of rehearing, observing the limitations of such an appeal: see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [22]-[23] per Gleeson CJ, Gummow and Kirby JJ.

Appropriate standard of proof

The first issue to be determined is whether the CIM applied the appropriate standard of proof in the proceedings below, being ground five of the appellant’s grounds of appeal. Ground seven of the appellant’s grounds is related.
Counsel for the appellant, Mr R J de Meyrick, submitted the appropriate standard in s 357 proceedings is the criminal standard, that is, proof beyond reasonable doubt. In the alternative, if the primary position be not accepted, the appellant submitted the civil standard should be applied, guided by the principles enunciated in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 per Dixon J.
The appellant submitted that the CIM simply applied the civil standard and that amounted to error.
The appellant acknowledged that the Industrial Court has generally regarded proceedings under s 357 of the IR Act as civil proceedings. However there does not appear to be, it submitted, any recent or comprehensive analysis of the correctness of that approach: see for example, Bluescope Steel Limited v The Australian Workers' Union, New South Wales [2007] NSWIRComm 307; (2007) 160 IR 456; Transport Workers' Union of Australia New South Wales Branch v Australian Document Exchange Pty Ltd trading as Grace Couriers [2000] NSWIRComm 74; BHP Steel Ltd v The Australian Workers' Union, New South Wales [2003] NSWIRComm 151; Ian Robertson v Marrickville Council [2003] NSWIRComm 394.
As the basis for its argument that the appropriate standard of proof in relation to a successful prosecution under s 357 of the IR Act is the criminal standard, the appellant focused on the concept of “conviction”. In this respect counsel referred to Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161 (“Labrador”).
In Labrador, Hayne J stated at [138] (citations omitted) :

“Seeking to obtain the conviction of a person accused of contravening written or unwritten law lies at the heart of the criminal process. The fact of conviction is an important criterion for the operation of constitutional provisions and the operation of federal and State legislation. Absent statutory provision to the contrary, a conviction should not be recorded except where the requisite elements of the contravening conduct are established beyond reasonable doubt.”

It should be noted that the word “conviction” does not appear in s 357 of the IR Act. Nor do any of its cognates. Counsel sought to circumvent that shortcoming by reference to the dicta of Dawson and McHugh JJ in Maxwell v R [1996] HCA 46; (1996) 184 CLR 501. Counsel’s written submissions expressed the argument as follows:

8. In Maxwell v R (1996) 184 CLR 501, at [9], the High Court defined a conviction simply as a final determination of guilt with respect to an offence. The High Court contrasted this with actions where a declaration was sought, along with recovery of a penalty.
9. A precondition to imposing a penalty under section 357(1) of the Industrial Relations Act 1996 (NSW) is a finding of guilt; the court must first satisfy itself that a contravention of an industrial instrument has occurred.
10. Consequently, the court determines guilt, and the criminal standard of proof applies, that is proof beyond reasonable doubt.

In my view the passage referred to from Maxwell cannot be so simply summarised. Their Honours said (citations omitted):

“[9] The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked. On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea. Thus Tindal CJ said in Burgess v Boetefeur:
"The word 'conviction' is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court." ((their Honour’s) Emphasis added)

[10] The context in which the question arises for present purposes is that of autrefois convict and in that context it would seem clear that a verdict or plea of guilty is insufficient of itself to constitute a conviction. That accords with the principle lying behind the plea of autrefois convict which is that a person should not be punished more than once for the same matter.”

These paragraphs indicate that the term “conviction” does not have a single meaning. It depends upon the context in which it is used. In Maxwell the context was a plea of “autrefois convict”.
The circumstances may be briefly described. The appellant was charged with murder. He pleaded not guilty to murder but guilty of manslaughter. The prosecution accepted the plea on the basis of diminished responsibility. The prosecution and the defence then put material, including psychiatric reports, before the trial judge for the purpose of sentencing. Counsel addressed on sentence and the judge retired to consider the matter. When the matter resumed the trial judge delivered a judgment in which he expressed doubt as to whether he could accept the plea. The trial was again adjourned and on resumption a further psychiatric report was tendered casting further doubt on the issue of diminished responsibility. The prosecutor, although he did not seek to withdraw his acceptance of the plea, submitted his Honour should reject it. The appellant submitted that the judge had no power to do so.
The issue before the High Court was to determine the availability of the plea of autrefois convict. Their Honour’s therefore analysed what had happened in the particular proceedings, which were undoubtedly criminal in nature, in order to decide whether a “conviction” for manslaughter had occurred.
The circumstances are quite different here. Here the issue is whether the proceedings are criminal in nature. The argument of the appellant is that they are criminal because there is a conviction and there is a conviction because the proceedings are criminal. Neither premise has been clearly established.
Equally the passage relied upon from the reasons of Hayne J in Labrador has to be considered in context. That case concerned prosecutions under the Customs Act 1901 (Cth) and the Excise Act 1901 (Cth). The Court had regard to the particular statutory provisions in determining what standard of proof should apply. Gleeson CJ who agreed with Hayne J added at [2]:

“As to the question of standard of proof, the statutory provisions invoked by the appellant in these proceedings refer to offences, guilt, conviction and punishment. To paraphrase what was said by McTiernan J in Mallan v Lee, the legislative description of the conduct alleged, and of the orders which the appellant seeks, should be accepted at face value. That being so, the common law requires that the appellant should establish the elements of the alleged offences beyond reasonable doubt.” (Emphasis added)

Similarly Gummow J at [14] made the general observations as to the statutory provisions that:

“The form in which all of these provisions are cast is significant. It indicates that what is sought against the respondents are convictions for offences against the laws of the Commonwealth. Ordinary understanding then would suggest that what is required for that result is proof beyond reasonable doubt.”

Hayne J said at [135]-[136]:

“[135] What does the common law require? Where what is sought is conviction of the defendant for an offence against a law of the Commonwealth, it must be strongly arguable that nothing short of proof beyond reasonable doubt will do. If no conviction is sought, but other relief is (as, for example, a declaration that the defendant contravened identified provisions of the relevant Act coupled with orders for payment of monetary penalties), it must be strongly arguable that, in proceedings conducted according to civil procedures, proof to the civil standard will suffice. No doubt, in accordance with well-established principle , if the civil standard were to be applied, “the nature of the issue [would] necessarily [affect] the process by which reasonable satisfaction is attained” and “exactness of proof [would be] expected.
[136] Those tentative conclusions do not depend upon attributing a description of “civil” or “criminal” to the proceedings as a whole or seeking to identify some “essential character” of the proceedings. (By what process of distillation the “essential character” of proceedings could be revealed is not apparent.) Rather, the conclusions proposed focus upon, and attach significance to, the kinds of orders which the proceedings seek. In particular, proceedings are distinguished according to whether or not they seek the conviction of the defendant for an offence.”

The well-established principle to which his Honour refers in [135] is of course Briginshaw.
These passages direct attention to context and, in particular, the terms of the legislation sought to be enforced. Thus it is necessary to consider the terms of the legislation here in question.

Offences under the IR Act

The IR Act prescribes an array of obligations. It also uses a variety of forms of language in making provision for enforcement of those obligations. The starting point in this case must be s 357. Section 357 of the IR Act provides:

357   Civil penalty for breach of industrial instruments
(1) If an 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 (a civil penalty).
Note. Section 21 of the Interpretation Act 1987 provides that the expression “contravene” in an Act includes a failure to comply.
(2) Proceedings for a civil penalty may be instituted:
(a)  by an inspector or any other person authorised by this Act to institute proceedings for offences, or
(b)  by an employer bound by the industrial instrument concerned, or
(c)  by an industrial organisation concerned in the industry to which the proceedings relate.

(3) Proceedings for a civil penalty may be instituted within 6 years after the contravention.
(4) To avoid doubt, the rules of evidence apply to proceedings for a civil penalty.
(5) Evidence given in proceedings for the recovery of money under Part 2 is not admissible in proceedings for a civil penalty.
(6) In any proceedings for a civil penalty, the industrial court may award costs to either party and assess the amount of those costs. Costs cannot be awarded against the prosecutor except in the circumstances in which costs can be awarded against the prosecutor in criminal proceedings.
(7) The following provisions apply to contraventions of industrial instruments and to proceedings for a civil penalty for such a contravention in the same way as they apply to criminal proceedings for an offence against this Act:
(a) Sections 400–403.
(b) The provisions of any Act relating to the recovery of penalties imposed for an offence.
(c) Any provision of this or any other Act relating to criminal proceedings that is applied to this section by the regulations (whether with or without modification).

A simple application of the principles in Labrador to this section would lead to a conclusion contrary to the appellant’s primary submission.
The section does not speak of “guilt”, “conviction”, “offence” or “punishment”. It draws a distinction between “proceedings for a civil penalty” and “criminal proceedings” in subss (6) and (7). It prescribes the relevant penalty as a monetary sum rather than in penalty units. It describes the penalty as a “civil” penalty. The persons authorised to institute proceedings overlap with those authorised to institute proceedings for offences (see s 399) but include others. The section makes clear that the rules of evidence apply to such proceedings. Such provision would certainly be unnecessary in relation to criminal proceedings but equally is unnecessary for proceedings before the Industrial Court (see s 163(2)). These provisions point to a legislative intention to distinguish civil penalty proceedings from criminal proceedings.
Other provisions of the IR Act similarly draw a distinction between civil penalty proceedings and criminal proceedings. Examples can be seen in s 197(1)(b) and (c) and s 383(2) and cl 43 of the Industrial Relations (General) Regulation 2001 (NSW) (“the General Regulation”).
On the other hand the section does refer to a “contravention”. It also provides for the imposition of a penalty. Section 21 of the Interpretation Act 1987 (NSW) defines “penalty” to “include forfeiture and punishment” [emphasis added]. The CIM, in hearing such matters is required by s 383 (and cl 43 of the General Regulation) to apply the Criminal Procedure Act 1986 (NSW) and (expressly) not the Civil Procedure Act 2005 (NSW). Another section of particular interest in this context is s 400 of the IR Act. It provides:

400 Offences by corporation
(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention.
(1A) Subsection (1) does not apply in respect of a contravention of section 361.
(2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.
(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.
(4) In this section, corporation does not include an industrial organisation.
[Emphasis added]

This section speaks of contravening a provision of the IR Act but also describes a finding of breach as a “conviction”. The section applies to contraventions of any provision of the IR Act. It may be that that the draftsperson considered s 357 was not embraced by that description because that section deals with contraventions of industrial instruments, that is, not provisions of the IR Act but provisions of instruments made under it. Any doubt about its application is removed by s 357(7)(a). The result is to refer to “convictions” for “contravention” of s 357. That is done, however, in the context of an extended application of s 400.
The appellant’s reliance on Labrador receives some support because the language of “punishment” and “conviction” is used, at least in relation to the enforcement provisions if not within its terms.
A review of other enforcement provisions of the IR Act does not demonstrate a uniform use of language of enforcement. Some provisions do use words like “offence” and “guilt” and express the penalty in terms of “penalty units”. Such provisions accordingly directly embrace those concepts. Section 180 of the IR Act for example provides:

180 Contempt of Commission—offence
(1) A person in contempt of the Commission is guilty of an offence.
Maximum penalty: 500 penalty units in the case of a corporation or, in any other case, 50 penalty units or imprisonment for 6 months, or both. (Emphasis added)

There can be little doubt that proceedings for an offence against this section are criminal in nature. The potential for imprisonment as a punishment invites no other conclusion. Other provisions which follow this form (“type one penalty provisions”), albeit without the potential for imprisonment, but in which a person who fails to comply is “guilty of an offence” are: ss 70(5), 127(8), 128, 129, 143, 165(4), 184(3) and 278(9).

By way of contrast there are a number of provisions (“type two penalty provisions”) which don’t use the language of “guilty of an offence” but prescribe monetary penalties for, at least implicitly, a failure to comply. An example is s 67(2). It provides:

67   Employer’s obligations
(1) Information to employees
On becoming aware that an employee (or an employee’s spouse) is pregnant, or that an employee is adopting a child, an employer must inform the employee of:
(a)  the employee’s entitlements to parental leave under this Part, and
(b)  the employee’s obligations to notify the employer of any matter under this Part.

An employer cannot rely on an employee’s failure to give a notice or other document required by this Part unless the employer establishes that this subsection has been complied with in relation to the employee.
(2) Records
An employer must keep, for at least 6 years, a record of parental leave granted under this Part to employees and all notices and documents given under this Part by employees or the employer.
Maximum penalty: 20 penalty units.

The format of this type of provision is to prescribe a duty or duties and a penalty for, implicitly, a failure to comply. There is no mention of “guilt” or “offence”. Other provisions of this kind are: ss 68(1), 70(5), 78(5), 82(2), 117, 118, 119, 122(1), 123(1), 267, 268, 269(1), 361 and 363.
A third form (“type three penalty provisions”) used in the IR Act is illustrated by s 129H. It has a section heading referring to “Offences” but is otherwise in the form of the last mentioned group. It provides:

129H   Offences relating to unpaid remuneration claims and referred claims
A person must not:
(a)  by intimidation or by any other act or omission, intentionally hinder, prevent or discourage a person from making an unpaid remuneration claim, or
(b)  make any statement that the person knows is false or misleading in a material particular in any notice given for the purposes of section 129E or 129F, or
(c)  serve a referred claim on a person under section 129E that the person does not know, or have reasonable grounds to believe, is an actual employer.

Maximum penalty: 100 penalty units

Other provisions which follow this form are ss 250 and 301.
A variant on this form is a hybrid with the second form. An example is s 360 which provides:

360 Advertisements that contravene industrial instruments
(1) A person must not advertise, or cause to be advertised, that the person is offering or seeking employment on terms that would constitute a contravention of an industrial instrument.
(2) The publisher of a newspaper or other publication in which such an advertisement has been published must, on demand by any person authorised to prosecute the offence against subsection (1), disclose to that authorised person the name and address (if known) of the person who placed the advertisement in the newspaper or other publication.
(3) Proceedings for an offence against this section may be instituted by any person authorised to institute proceedings for a civil penalty under this Part.
Maximum penalty: 20 penalty units. [Emphasis added]

In this form the reference to “offence” is found in the prescription of persons who are authorised to commence enforcement proceedings. It is interesting that the authority to institute proceedings “for an offence against this section” is granted to persons who may “institute proceedings for a civil penalty”, which must refer back to s 357(2). It is not clear why that option was chosen rather than relying upon s 399 other than the connection with industrial instruments. That begs the question why one is an offence provision and the other a civil penalty provision.
Another complication in characterising these type two and type three penalty provisions is found in s 272 which is in Div 6 of Pt 4. It provides:

272   Interpretation
(1) In this Division, serious offence means:
(a)  an offence under a law of the Commonwealth, a State or Territory, or of another country, involving fraud or dishonesty and punishable on conviction by imprisonment for a period of 3 months or more, or
(b)  an offence against section 250 or any of the provisions of Division 5, or
(c)  any other offence in relation to the formation, registration or management of an organisation registered under this Chapter, or
(d)  any other offence under a law of the Commonwealth, a State or Territory, or of another country, involving the intentional use of violence towards another person, the intentional causing of death or injury to another person or the intentional damaging or destruction of property.

(2) A reference in this Division to a person having been convicted of a serious offence includes a reference to a person having been so convicted before the commencement of this section.
(3) A reference in this Division to a person being convicted of a serious offence does not include a reference to a person being convicted, otherwise than on indictment, of an offence referred to in subsection (1) (c).
(4) A reference in this Division to a person being convicted of a serious offence does not include a reference to a person being convicted of an offence referred to in subsection (1) (d) unless the person has served, or is serving, a term of imprisonment in relation to the offence.
(5) A certificate purporting to be signed by the Industrial Registrar or other proper officer of a federal court, a court of a State or Territory, or a court of another country, stating that a person was convicted by the court of a specified offence on a specified day is, for the purpose of an application made under this Division, evidence that the person was convicted of the offence on that day.
(6) A certificate purporting to be signed by the Industrial Registrar or other proper officer of a federal court, a court of a State or Territory, or a court of another country, stating that a person was acquitted by the court of a specified offence, or that a specified charge against the person was dismissed by the court, is, for the purpose of an application made under this Division, evidence of the facts stated in the certificate.
(7) A certificate purporting to be signed by the officer in charge of a prison stating that a person was released from the prison on a specified day is, for the purpose of an application made under this Division, evidence that the person was released from the prison on that day.
[Emphasis added]

The “serious offences” referred to in subs (1)(b) and (c) include provisions falling within the type two penalty provisions. That is, there is no reference to offence, guilt or conviction within the provision itself. Examples are ss 267, 268 and 269(1). Yet they are described in the same legislation as “serious offences”. These “serious offences“ also include type three penalty provisions such as s 250.
The relevance of describing these penalty provisions as “serious offences” is of course unrelated to their enforcement. It relates to disqualification from holding office in State organisations registered under the Act: see IR Act s 273. The fact of the legislation describing such penalty provisions as “serious offences” and referring to “conviction” in relation to such provisions, however, cannot be dismissed out of hand in the present context. In construing statutory provisions it is necessary to refer “to the language of the instrument viewed as a whole” and “on the prima facie basis that the provisions are intended to give effect to harmonious goals”: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]-[70].
Other provisions of the IR Act also provide insight into the legislative intention in relation to penalty provisions. As noted above, s 383 requires the application of the Criminal Procedure Act to proceedings before the CIM. Penalty notices may be served for offences against the IR Act under s 396 if the regulations prescribe them as penalty notice offences. Schedule 2 of the General Regulation lists some 11 such offences including type two, three and hybrid form “offence” provisions.
Proceedings for an “offence” are to be dealt with summarily; s 397. The time for instituting proceedings for an “offence” is prescribed in s 398. There is a general prescription of 12 months except for s180 and ss 267, 268 and 269 for which the limits are respectively 6 months (under the Criminal Procedure Act) and 5 years. The authority to prosecute for an offence is regulated by s 399 without distinguishing between the various forms (although s 360 provides an exception).
There are contrasts between s 357 and these other types of provisions, but then there are contrasts between the other types of provisions themselves. If there were a consistent treatment of “criminal” penalty provisions the contrast with “civil” penalty provisions would be more easily accepted and understood. Some of the drafting disparities between the “criminal” penalty provisions are mitigated by s 18 of the Crimes (Sentencing Procedure) Act 1999 (NSW). It provides:

18   Interpretation of provisions imposing penalties
(1) The penalty:
(a)  specified at the end of a section of an Act (whether or not the section is divided into subsections), or
(b)  specified at the end of a subsection of a section of an Act, but not at the end of the section, or
(c)  specified at the end of a section of an Act or subsection of a section of an Act and expressed in such a way as to indicate that it applies to part only of the section or subsection,

indicates that a contravention of the section, subsection or part, respectively, is an offence against the Act, punishable on conviction by a penalty not exceeding the penalty so specified.
(2) For the purposes of subsection (1), a penalty specified at the end of the last subsection of a section is taken not to be specified at the end of the section if a penalty is specified at the end of any previous subsection.
(3) If:
(a) a section of an Act, or a subsection of a section of an Act, provides that a person is guilty of an offence under specified circumstances, and
(b) a penalty is specified at the end of the section or subsection and expressed in such a way as to indicate that it applies to the section or subsection,

a person who is guilty of such an offence is liable, on conviction, to a penalty not exceeding the penalty so specified.
(4) This section applies to a statutory rule in the same way as it applies to an Act, subject to any necessary modification.
(5) This section applies to a provision of an Act or statutory rule except in so far as the contrary intention appears in the Act or statutory rule concerned.
[Emphasis added]

It would seem this section overcomes many of the differences which might otherwise indicate some distinction was to be drawn between the various forms of penalty provisions in the IR Act. Section 18(1) for example indicates that, whether or not the particular section uses the language of “guilt”, “offence” or “punishment”, the effect of specifying a penalty is to indicate that a person who contravenes the section commits an offence punishable on conviction by the imposition of a penalty up to the maximum specified.
However, s 357 of the IR Act also specifies a penalty. The question then is whether s 357 exhibits a “contrary intention”, within the meaning of s 18(5), so as to limit the application of s 18 of the Crimes (Sentencing Procedure) Act. Thus the argument comes full circle and is driven back to the terms of s 357.
The respondent submitted that proceedings under s 357 of the IR Act, in its statutory context, are civil in nature and, as such, the standard of proof is on the balance of probabilities. Ms Wallace’s submissions traversed many of the points referred to above but also dealt with the historical development of the section. She submitted:

“The nature of statute dealing with a failure to observe the provision of an award has altered over time. Whereas previously such proceedings were characterised as criminal in nature, more recently enforcement measures are rather by civil proceedings.
In 1943, the Industrial Relations Act 1940 (which had in 1940 replaced the Industrial Arbitration Act 1912 in essentially the same terms) was significantly amended and the amendments to s.93(1), which dealt with breaches of an industrial instrument, were found to have made it one of a criminal nature: Platt v Treweneck [1953] AR (NSW) 642 at 658-659. In reaching this conclusion, the Court noted that the amendments had the effect of altering the method of recovery of a penalty, such that it was no longer recovered in the same fashion as a civil judgment, rather, such penalties were to be recovered in accordance with the Justices Act 1902, with the effect that a person who defaulted on payment of a penalty would be liable to imprisonment.
In 1991, the Industrial Relations Act 1940 was replaced by the Industrial Relations Act 1991, which provided in s.166 that the breach of an industrial award was an offence with a maximum penalty of 50 penalty units.
In 1996, the Industrial Relations Act 1991 was then replaced by the Industrial Relations Act 1996. In the second reading speech of the Industrial Relations Bill 1996, the Hon. J Shaw said of s.357:
“Part 1 of chapter 7 deals with the breach of awards and other industrial instruments. It provides a civil penalty carrying a maximum fine of $10,000 which may be imposed by the commission in court session or a Local Court constituted by an industrial magistrate. The breach of an award or enterprise agreement is presently a criminal offence with a maximum penalty of $5,000. The new provision will remove the criminal nature of non-compliance proceedings and the civil standard of proof will facilitate enforcement. (Legislative Council, Hansard, 23 November 1995, p.3856) ([Ms Wallace’s] emphasis)”

This history indicates an intention of the legislature to change the nature of the proceedings from criminal to civil.
In regard to the differences between s 357 and criminal offence provisions in the IR Act, the respondent submitted:

“Section 357(1) explicitly describes a penalty under s.357 as a “civil penalty”.
Section 357 of the IR Act makes no reference to a conviction following the imposition of a civil penalty.
The terms of s.357(1), which prescribe the maximum amount of a civil penalty that may be imposed upon an industrial court finding a contravention, is not specified at the end of the section or subsection as one would expect where the penalty imposed is for a criminal offence: see s.18(1) Crimes (Sentencing Procedure) Act 1999, an example of which is in s.360 IR Act (advertisements that contravene industrial instruments).
Like s.357, s.360 is in Part 1 of Ch.7 of the IR Act. But s.360(1) clearly prescribes an offence, having regard to s.18(1) Crimes (Sentencing Procedure) Act 1999. The contrast in structure with s.357 fortifies a view that s.357 differs from s.360 and is not intended to make conduct that contravenes s.357 a criminal offence.
Section 357(1), prescribes a maximum amount in monetary terms - $10,000 – rather than prescribing a maximum penalty in penalty units to be calculated by reference to s.17 of the Crimes (Sentencing Procedure) Act 1999, although that in itself is not determinative. From time to time other provisions that deal with maximum penalties for criminal offences prescribe a maximum monetary penalty.
Having said that, I cannot see any penalty for a criminal offence in the IR Act that is imposed in monetary terms – the IR Act appears to prescribe all penalties for offences against it in penalty unit terms.
The language of s.357(6) of the IR Act distinguishes civil penalty proceedings from "criminal proceedings" in that the costs provisions applying to criminal proceedings are made to expressly apply to proceedings for a civil penalty by s.357(6).
The language of s.357(7)(b) of the IR Act distinguishes civil penalty proceedings from "criminal proceedings" as the provisions applying to criminal proceedings for an offence against the IR Act apply to proceedings for a civil penalty only as provided for by s.357(7)(b). Section 357(7)(b) of the IR Act provides that the provisions of “any Act relating to the recovery of penalties imposed for an offence” apply to proceedings for a civil penalty in the same was as they apply to criminal proceedings for an offence against the IR Act.”

The validity of these distinctions is borne out by my above analysis of the various forms of enforcement provisions. I am not convinced that it can be said that the penalty in s 357 “is not specified at the end of the section or subsection as one would expect where the penalty imposed is for a criminal offence”. It is true that the penalty is specified as part of subsection one but I don’t think it can be described as being anywhere other than at the end of the subsection. I accept the submissions otherwise.
The respondent further submitted:

“[T]he IR Act has different requirements for criminal and civil penalty proceedings in terms of the authority to prosecute, the issuing of penalty notices, and the time for instituting proceedings.
First, s.399 prescribes that proceedings commenced for an offence under the IR Act may be commenced by the Minister, an inspector or a person of a class prescribed by the regulations (an “industrial organisation concerned in the industry to which the proceedings relate” has been so prescribed by cl.37(2) Industrial Relations (General) Regulation 2001). By way of contrast, under s.357(2) proceedings for a civil penalty may be instituted by an inspector, an employer bound by the industrial instrument, an industrial organisation concerned in the industry or other person prescribed by the regulations.
Secondly, penalty notices may be issued for a list of offences in the IR Act (s.396 IR Act, cl.39 and Sch. 2 Industrial Relations (General) Regulation 2001) but s.357 is not on that list.
Thirdly, proceedings for offences under the IR Act must be commenced not later than 12 months or five years after the offence was alleged to have been committed (s.398 IR Act) whereas proceedings for a civil penalty may be instituted within 6 years after the contravention (s.357(3) IR Act).
A distinction is also made in s.197(1) of the IR Act, which differentiates between ‘any conviction or penalty imposed…for an offence” (s.197(1)(b)), and “a civil penalty imposed for contravention of an industrial instrument.’”

Again these submissions accord with my analysis above and I accept them as pointing to the different legislative treatment of s 357.
It appears the practice of the Chief Industrial Magistrate’s Court in dealing with proceedings for a civil penalty, such as those under s 357 of the IR Act, is to determine them on a balance of probabilities.
Her Honour referred to the decisions of Chief Industrial Magistrate Miller in Joy Pride v Mark Hansen Real Estate Pty Ltd [2002] NSWCIMC 54 and of his Honour Peterson J in Ian Robertson v Marrickville Council as the basis for s 357 proceedings to be decided on a civil standard of proof rather than the criminal standard.
In Ian Robertson v Marrickville Council the defendant conceded the criminal standard of proof applied. Notwithstanding this, Peterson J regarded, at [26]:

“… the very description of penalty in s 357 as a “civil penalty.”
as a compelling indication of the nature of proceedings under the section.

I accept that s 383 of the IR Act provides that the Criminal Procedure Act and other Acts regulating the procedure before the Local Court, excluding the Civil Procedure Act, apply to s 357 proceedings.
I also accept that, in practice, the words ‘prosecution’, ‘guilt’ and ‘plea’ are used in relation to s 357 proceedings, no doubt because of the application of the Criminal Procedure Act, but the language of the section, the statutory context and the history of the development of the section, particularly the change in 1996, satisfy me that the proceedings are civil in nature.

The Standard of Proof

There is no dispute that the Evidence Act 1995 (NSW) applies in any s 357 proceedings
Section 140 of the Evidence Act, which prescribes the standard of proof in civil proceedings, provides:

140 Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.

It follows that the standard to be applied in this case is satisfaction on the balance of probabilities.
The respondent submitted that s 140 of the Evidence Act in large measure encapsulates in statutory form the relevant observations by the High Court in Briginshaw at 360-363 per Dixon J.
In Briginshaw, Dixon J said at 362 that:

“[R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of a fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

In its written submissions to the CIM (which were also relied upon on appeal) the respondent made the following points about the application of the standard:

“As explained by the plurality in Neat Holdings Pty Limited v Karajan Holdings Pty Limited [[1992] HCA 66] (1992) 110 ALR 449, per Mason CJ, Brennan, Deane and Gaudron JJ at [450]: “[T]he strength of the evidence necessary to establish the fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove.” So, where so serious a matter as, for example, fraud is to be found then clear or cogent or strict proof is necessary: Neat Holdings. That proposition reflects that a court should not lightly find that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.”

It is as well to bear in mind the explanation by the plurality in Neat Holdings [1992] HCA 66; (1992) 110 ALR 449 of this concept of qualification of the standard. Their Honours noted that descriptors such as “clear”, cogent” and “strict proof” are not directed to the standard of proof. They stated at 450:

“Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.”

In Neat Holdings the parties each alleged that the other had falsified the financial records. Their Honours observed, at 451, that when faced with such competing propositions of fraud:

“…generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but by an unbalanced standard. The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities.”

These passages signify that there is but one standard applicable to civil proceedings but in applying it one must have regard to the gravity of the matters alleged, the inherent likelihood and the context in which they are to be determined.
As noted earlier, the appellant submitted that even if the standard of proof in s 357 proceedings is found to be on the balance of probabilities, the Briginshaw test applies. It was submitted that the Bringinshaw test had been held by the Commission on a number of occasions to be appropriate given the gravity and consequences of a finding of breach of an industrial instrument. Examples cited were: Bluescope Steel Limited v The Australian Workers' Union, New South Wales; and Bluescope Steel (AIS) Pty Ltd v Australian Workers Union, New South Wales [2005] NSWIRComm 99; (2005) 138 IR 324.
The relationship between s 140 of the Evidence Act and Briginshaw was recently adverted to in Curtis v Harden Shire Council [2014] NSWCA 314; (2014) 203 LGERA 352. Beazley P stated at [174]:

“The Evidence Act 1995, s 140, which now specifies the standard of proof that applies in civil cases, restates the common law position that the civil standard of proof is on the balance of probabilities: s 140(1). Section 140(2) provides that the matters the court may (non-exclusively) take into account in deciding whether it is satisfied on the balance of probabilities include: the nature of the cause of action or defence (para (a)); the nature of the subject matter of the proceeding (para (b)); and the gravity of the matters alleged (para (c)). It has been accepted that para (c) reflects the common law principles stated in Briginshaw: see Pedler v Richardson (unreported, Supreme Court, Young J, 16 October 1997); Wily v Fitz-Gibbon (unreported, Federal Court, Hill J, 2 March 1998);Amalgamated Television Services v Marsden [2002] NSWCA 419 at [60]. In Qantas Airways Ltd v Gama [2008[ FCA 69 at [139], Branson J adopted the language of the High Court in Neat Holdings v Karajan Holdings, in finding that under s 140:
‘… the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what it is sought to prove.’”

Thus s 140 of the Evidence Act and Briginshaw intersect, but the application of the latter does not involve all of the former.
I am of the view that the relevant standard of proof for s 357 proceedings is the civil standard, having regard to the considerations relevant under s 140(2) of the Evidence Act.

Reasoning disclosed

As I have noted her Honour’s judgment was delivered on 27 June 2014, approximately 3 months after the conclusion of the evidence and some 6 months after hearing the bulk (he was recalled briefly on the second day of hearing) of the evidence of Mr Kumar.
Her Honour first set out the terms of s 357 of the IR Act. She then turned to the question of onus, referring to the history of the legislation, earlier decisions of the Chief Industrial Magistrate’s Court and the decision in Ian Robertson v Marrickville Council. Her Honour also referred to decisions of the federal Court relating to enforcement of civil penalty provisions. The CIM then set out the terms of s 140 of the Evidence Act and specifically referred to s 140(2) and Briginshaw quoting from the judgment of Dixon J.
Her Honour then referred to the submissions of the prosecutor (set out above) as to the history of the legislation, the legislative context, the nature of the proceedings and the application of the civil standard of proof. The CIM accepted that the proceedings were civil and therefore, in accordance with s 140 of the Evidence Act were to be determined on the balance of probabilities.
The CIM recorded next the matters not in dispute. She then stated the question to be determined: whether Mr Kumar was paid his annual leave?
Her Honour summarised the prosecution’s evidence from Mr Kumar and Mr Ghannoum. She notes that Mr Kumar was extensively cross-examined and that:

“Credit was plainly an issue during these proceedings. It was suggested to him that he wrote the reference for the real estate agent, the issue being that Mr Kumar said it was given to him in February 2009 whilst Mr Tanwar said it was July 2009 because it was not on Tanwar letterhead. This was strongly denied.”

Her Honour made no observations as to the demeanour or credibility of either witness.
The judgment then continues with a summary of the evidence called on behalf of Tanwar beginning with the evidence of Ms Kaur who was employed as the assistant accountant. At the conclusion of that summary her Honour made the following observation:

“Ms Kaur was a witness who was somewhat dogmatic in her approach to giving evidence. She did not make allowances in her evidence and as an employee of Mr Tanwar, cannot be seen to be wholly objective.”

The evidence of Mrs Tanwar was next summarised. The CIM noted that she was a joint proprietor of the business with her husband to whom she had been married for 22 years. Her Honour observed:

“Mrs Tanwar cannot be described also as an independent witness”

Then followed a summary of the evidence of Mr Tanwar at the conclusion of which the CIM observed:

“His answers were in my view, controlled and measured.”

Then follows her Honour’s consideration. It is contained in the following four paragraphs:

“This matter relies essentially on an assessment of credit of the witnesses and the surrounding circumstances of the interactions between the parties. The reference letter given to the real estate agent is an important issue in assessing credit. Mr Kumar asserts that he asked Mr Tanwar for a letter of reference in February 2009 as he was looking for a new rental property. His evidence was that Mr Tanwar prepared the reference letter, signed it and gave it to him in February 2009. He said he used this reference letter on several rental applications between February and July 2009.
He said he was renting a property at 3/69 St Ann Street, Merrylands for a period of three years until he moved to 101 Myall Street, Merrylands on 13 July 2009 and that he provided a copy of the reference letter to the real estate agency prior to his application for tenancy being accepted for the Myall Street property.
He denied that he made any alterations to the document. Mr Ghannoum said that he did not see any alterations or additions to the document from the real estate agency files from June 2009 which included a tenancy application for Mr Kumar. I am satisfied that the reference letter to confirm Mr Kumar’s employment signed by Mr Tanwar was dated 6 February 2009 and not 6 July 2009 as asserted by Mr Tanwar. I am satisfied that Mr Tanwar spoke to a representative of the real estate agent on 26 June 2009 and told them that Mr Kumar was a permanent fulltime taxi driver, earning $850 a week and that Mr Kumar had been employed for one year. These are plainly untruths.
I am satisfied that Mr Tanwar did not advance $2,000 to Mr Kumar on 6 July 2009. There is no evidence of how that figure was calculated, evidence of very poor bookkeeping practices and further that as the pay ins were Mr Tanwar’s bread and butter, it is totally improbable that he would have been prepared to advance $2,000 to a taxi driver who was in arrears and always in arrears with his pay ins.”

The above review of her Honour’s judgment shows that she correctly held the proceedings were civil proceedings and that the standard of proof was on the balance of probabilities. The CIM specifically referred to s 140(2) of the Evidence Act and Briginshaw. These factors suggest that her Honour identified the appropriate standard. The appellant however challenges the application of that standard.
The determination of that question requires analysis of her Honour’s reasons. Grounds (2), (3) and (6) of the appeal allege error on the basis that the reasons given were inadequate. It is convenient to deal with the latter issue first. I note that Ground (4), which alleges a denial of procedural fairness, is also related to the failure to give reasons.

Whether the CIM failed to give sufficient and adequate reasons

It is now well accepted that the giving of reasons is an essential aspect of the judicial function: Wainohu v State of New South Wales [2011] HCA 24; 243 CLR 181 at [54]-[59] per French CJ and Kiefel J and per Gummow, Hayne Crennan and Bell JJ at [92]-[94]. In particular French CJ and Kiefel J stated at [56] (Citations omitted):

“Gummow J in Grollo described the essential attributes of the judicial power of the Commonwealth in familiar terms by reference to the resolution of justiciable controversies by ascertainment of the facts, application of the law and the exercise where appropriate of judicial discretion, adding “which are delivered in public after a public hearing, and, where a judge is the tribunal of fact as well as law, are preceded by grounds for decision which are animated by reasoning.” Heydon J in AK v Western Australia described the duty of judges to give reasons for their decisions after trials and in important interlocutory proceedings as “well-established”. His Honour adopted as a summary of the objectives underlying that duty an extra-curial statement by Gleeson CJ:
‘First, the existence of an obligation to give reasons promotes good decision making. As a general rule, people who know that their decisions are open to scrutiny, and who are obliged to explain them, are more likely to make reasonable decisions. Secondly, the general acceptability of judicial decisions is promoted by the obligation to explain them. Thirdly, it is consistent with the idea of democratic institutional responsibility to the public that those who are entrusted with the power to make decisions, affecting the lives and property of their fellow citizens, should be required to give, in public, an account of the reasoning by which they came to those decisions.’

The duty does not apply to every interlocutory decision, however minor. Its content - that is, the content and detail of the reasons to be provided - will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision.”

Thus, although there is an obligation to give reasons, there is no single prescription of what constitutes adequate reasons. The instant case involved the determination of entitlements under an industrial instrument and the imposition of a civil penalty. The importance of these issues to the individuals and to the broader public indicate that the process of reasoning ought be clear and comprehensive at least in relation to the decisive issues in the case. That proposition is reinforced by the fact that the orders are subject to appeal.
The decisive issue in this case, according to her Honour’s reasons, involved “an assessment of credit of the witnesses and the surrounding circumstances of the interactions between the parties”. It appears her Honour resolved that issue by reference chiefly to the “reference letter”. I have noted what may be considered as comments by her Honour as to the demeanour of the appellant’s witnesses. There were no comments about the respondent’s witnesses. It may be inferred that these observations or absence of them played a role in the decision making: see Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179.
In considering this aspect I am mindful of the limitations of an appeal. It is timely to recall the words of Gleeson CJ in Fox v Percy. His Honour said at [23]-[24]:

“[23] … On the other, [the appellate court] must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[24] Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the nineteenth century, the general facility of appeal was introduced in England, and later in its colonies. Some time after this development came the gradual reduction in the number, and even the elimination, of civil trials by jury and the increase in trials by judge alone at the end of which the judge, who is subject to appeal, is obliged to give reasons for the decision. Such reasons are, at once, necessitated by the right of appeal and enhance its utility.”

I should observe that the comment in relation to Mr Tanwar is not obviously critical. A description of a witness as “controlled and measured” may be regarded as a positive observation. Further the appellant submitted that it is difficult to make such an observation in a critical way when the witness was asked on numerous occasions to slow down in giving his evidence. At one point her Honour explained to the witness the issue as to the speed of his evidence in the following way:

“HER HONOUR
Q. It’s very difficult. I know it feels artificial, but I’ve got to write it down and I can’t keep up.
A. I understand. Sorry.”

A further example came shortly after:

“HER HONOUR: Slow down. “Been. I’ve been trying—
JACKSON
Q. Maybe if I just see whether I can slow you down.
A. Bit difficult.
Q. Very difficult.
HER HONOUR
Q. This is the most important part, Mr Tanwar, so I’ll need to get everything down.
A. Yes, sure. Sure.
JACKSON
Q. Perhaps if you could actually tell her Honour rather than me.
A. Okay. I’ll – I’ll just slow down.
HER HONOUR
Then just stop each time you give a sentence so that I can catch up, and I’m sure Ms Wallis also needs to write it down.
A. Yes, sure.”

There are many examples in the transcript of her Honour reminding the witness to slow down. That is not intended in any sense to be a criticism of her Honour who was diligently seeking to make accurate notes of the evidence. However, given those repeated instructions, one may accept that a witness who is attempting to comply may sound “controlled and measured”.
Nevertheless, her Honour’s comment as to the statements made to the real estate representative as “plainly untruths” would seem to suggest that her earlier comment as to Mr Tanwar’s style of giving evidence was intended to be negative. I shall return to this consideration after reviewing the evidence of Mr Ghannoum.
The observations as to the independence of Mrs Tanwar and, to the extent it may be implied, Ms Kaur that they were not “independent“ witnesses, is something that may obviously be said of Mr Kumar. As no such observation was made about him one must conclude that her Honour did not have regard to it. Her Honour does not seem to have had regard either, to the evidence of Mr Kumar that he relied on the reference letter in several applications to real estate agents, and thus willingly and knowingly made representations which were “plainly untruths”.
There are several aspects to her Honour’s assessment of the evidence of the “reference letter”. There is the evidence of Mr Kumar, that of Mr Ghannoum and that of Mr Tanwar and Ms Kaur.
It appears her Honour regarded Mr Ghannoum’s evidence as pivotal. His evidence therefore requires analysis. Before coming to that it is appropriate to review the evidence of Messrs Kumar and Tanwar and to do so in the context of some key dates.
The bailment operated from 8 January to 26 June 2009. Mr Kumar moved house on 13 July 2009 having occupied his previous residence for about 3 years. The “reference letter”, which on Mr Kumar’s evidence was required to support his tenancy applications, was dated either 6/2/09 or 6/7/09. The only application to a real estate agent put into evidence was dated 25/6/09. Mr Kumar gave evidence that he gave notice to the agent for the St Ann Street property (his previous residence) “around about 13 June”. The application bears handwritten notes of what appear to be various telephone checks in relation to the application. One note dated “26/6” refers to a check of the employment details given by Mr Kumar. Mr Kumar’s evidence was that, after his final shift, he returned to Tanwar’s base only once in early July 2009.

It is also helpful to be aware of the terms of the “reference letter”. The letter read as follows:

To Whom it may concern
Mr. Ranjeev Kumar of 3/69 St. Ann Street Merrylands 2160 is working with me as a full time taxi driving since six month. We are located at 281 New Canterbury Road Lewisham and my business name is Tanwar Petroleum. Mr Ranjeev’s weekly income is $850. If you have any question please feel free contact me on my mobile number [number given] or my business number 02 [number given].
Kind Regards
Ramesh Tanwar

The cross-examination of Mr Kumar in relation to the letter was extensive. It was suggested that he wrote the letter and asked Mr Tanwar to sign it. He denied doing so. It was also suggested to him that he didn’t require the letter until July because it was at that time that he was seeking to move homes.
In the course of the cross-examination, Mr Kumar said:

“Q. Now, when that document was prepared, it was actually - you actually wrote it for—
A. No, I didn’t wrote it.
Q. --Mr Tanwar to sign it; is that right?
A. No. No, I didn't wrote it. He did it by himself.
Q. You say you didn’t write it; you didn’t write that document?
A. No.
Q. You didn’t write that document and ask him to sign it?
A. No. I didn’t.
Q. If I suggest to you that you did, you'll say you didn’t; is that right?
A. Yeah
Q. But, nevertheless, the contents of the document, you checked that they were true and correct before you allowed Mr Tanwar to provide it to you?
A. No, he, he prepared it and signed it and gave it to me.
Q. But the information contained within it was accurate?
A. Think so yeah. Maybe that generally now I, I don't think that the information was accurate in there.
Q. I beg your pardon?
A. The information wasn’t accurate in there.
....
Q. What wasn’t accurate about the information?
A. The time I worked with him. He, he put it I worked for six months and I only worked for him for him a month, and so—
Q. Are you sure you are not anticipating what the problem is with the date you say you were given that letter?
A. What do you mean?
Q. Are you anticipating what the problem is? Because if the letter were, in fact, given to you in July 2009—
A. Mm-hmm.
Q. --then it wouldn't [sic] be correct to say that you’d worked for Mr Tanwar for six months, wouldn’t it?
…
Q. So you say, do you that you’d been working there for a month and that you ask the court to believe that Mr Tanwar wrote you a reference to say that you’d been working there for six months; is that right?
A. I was working there for a month and I ask him to do the letter for me and—
Q. And did you ask him—
A.—it’s what—
Q. -- to write six months?
A. No, I didn't ask him to write six months. I, I told him that I'm looking for a place to move because I, I need more room for my family.
Q. Did you ask him to correct the letter when you saw that it said that you’d been working there for six months?
A. I ask him. I said, “You put it six month.” And he said, “That’s how it goes.”
Q. Well, are you sure you’re not just making that up? I mean, that’s not something you told Ms Wallis.
A. I’m not making it up.
...
Q That’s not something you told Ms Wallis, is it?
…
Q. You didn’t tell Ms Wallis that you asked Mr Tanwar to correct the letter, but that Mr Tanwar for some reason wouldn’t do it; is that now your evidence?
A. I didn’t remember at that time. I remember now that I didn’t ask—
Q. Now you—
A. --him to do this for me.”

Objectively, if the letter was written in July 2009 the contents were correct; if written in February 2009 they were incorrect. No suggestion was made as to Mr Tanwar’s motive for making a false representation in the letter. The evidence was he hadn’t met Mr Kumar until early January 2009 when Mr Kumar approached him for work driving a taxi.
On the other hand Mr Kumar was cross-examined as to his motive for suggesting that the letter was written in February. Further cross-examination of Mr Kumar as to the emergence of the need for the letter was undertaken:

“Q. … On 13 July 2009 you moved to a new property.
A. Yes I did.
Q. You needed proof of employment and you needed a letter from your employer in order to obtain a lease on a new property on 13 July 2009; that’s correct, isn’t it?
A. I was looking for my property for a considerable time since February till July so—
Q. Well, that’s simply not true, is it?
A. It’s true.
Q. No.
A. It’s true.
Q. You’re just making it up.
A. I’m not making it up; it’s true.
Q. Well, I suggest to you that it’s just a pure fabrication and you know that it was in July 2009 that you needed a reference from Mr Tanwar as July –
A. No, I didn’t. I didn’t ask him the reference in July. I ask him in the February and that’s, that’s what the letter is all there. The other you got is fabricated by him.
Q. And the reason you think that – the reason you want to say that that letter was given to you in February 2009 and not July 2009 is because you want to deal with the fact that the only meeting you say happened in July 2009 was at Mr Tanwar’s request to talk about pay-ins. That’s the only reason you want to say that that letter was given to you in February and not July 2009?
A. That’s what you are saying and that’s what you are saying. That’s not the truth.”

There is a real difficulty in understanding why Mr Tanwar would make such a misrepresentation for someone he barely knew and which appears could not benefit him in any way. In my view it was incumbent on her Honour to explain her reasons on this decisive issue. It is contended that it was a question of credit and her Honour possessed an advantage in seeing and hearing the witnesses but, as I have noted, the comments as to credit or demeanour, such as they are, are hardly compelling and they do not in my view overcome or outweigh other significant considerations.
Mr Tanwar gave his reasons for providing the reference in July 2009. He said Mr Kumar approached him and “begged” for his help. He said that Mr Kumar told him he needed to move house and to facilitate that he required a reference letter to supply to the estate agent. Mr Tanwar succumbed to his entreaties, not only to provide the letter but to give him an advance on his holiday pay to meet his rental bond in the amount of $2,000. He did these things notwithstanding that Mr Kumar was behind in his pay-ins and had not been in contact for about 10 days. He said it was a “business decision”. He wanted Mr Kumar to continue to hire his taxi in the hope that they would both make money. I note parenthetically that the “advance” in fact represented an estimate of Mr Kumar’s accrued entitlement according to the evidence of Mr Tanwar and Ms Kaur.
No doubt there are aspects of the explanation which her Honour may have regarded with a degree of scepticism. Those matters were the subject of cross-examination. But, as was observed by the cross-examiner at the end of the cross-examination, the witness had “an explanation for everything”. Clearly her Honour did not regard all the explanations as convincing in that she found it improbable that Mr Tanwar would advance holiday pay when Mr Kumar was behind in his pay-ins. That view is no doubt shaped by her Honour’s assessment as to credibility. There is no analysis however, of what, in my view, was an unsatisfactory explanation offered by Mr Kumar as to the inaccuracy in the letter and his asserted attempt to correct it. Nor is there any apparent consideration of how Mr Kumar could, in good conscience, rely on the letter in several applications for tenancy between February and July 2009 knowing its contents not to be true.
The evidence of Mr Ghannoum then needs to be considered.
The circumstances of the calling of Mr Ghannoum also need to be understood. As has been observed, Mr Kumar was cross examined about the “reference letter”. He was asked if he had the original. He said his solicitor had it. He also suggested that a copy could be obtained from LJ Hooker Parramatta or from Starr Partners who took over responsibility for the property to which he had moved. He was asked if he could obtain these various documents and he said he would try.
When the proceedings resumed on 10 March 2014 Mr Kumar produced a bundle of documents said to have been obtained from the real estate agency. The prosecutor sought to tender those documents. The appellant objected and required the agent to attend to be examined about the documents. Mr Kumar gave some further evidence about the method of obtaining the documents. He was cross-examined and there were some unsatisfactory features of that evidence. He was asked:

“Q. You looked at the property, the agent probably said something like, “there are a number of people interested in this property,” something like that, and suggested you put in an application straight away, was that the sort of thing that happened?
A. Don’t remember. We went there, saw the property, they gave us the application, we filled it.
Q. You went from the property to the office?
A. No, they gave the application on the spot. They, they have applications at that time, they give it to you.
Q. So you filled out the application and handed it back to them at that point?
A. Handed or faxed
Q. Any documents that you weren’t able to provide at the time of application you provided prior to the application being approved?
A. Yeah, that’s the process. They look at everything then they approve you.
Q. So at some point, I want to suggest to you that the agent said to you that one of the documents that they required was a letter of employment.
A. Everything was together with the application.
Q. Well, I want to suggest to you that that’s not true, that you did not submit all of those documents on 25 June.
A. No, I did. I did, I gave all the documents on that day.”

Then in re-examination he was asked:

“Q. My friend asked you some questions about when you provided the documents in the application form. Your response to one of those questions was, “Everything was together with the application”. What did you mean by that?
A. All the documents, electricity bill, bank statement, employment letter, payslips.
Q. It was all together with the application for tenancy?
A. Yep.
Q. When did you provide that to the real estate agent?
A. The day we put the application in.
Q. Was that the day you’d seen the property?
A. Yeah.
Q. Did you submit that application with the documents to them at the property, or did you visit them at the real estate?
A. Office, at the office.”

Further cross examination was then permitted. Mr Kumar was asked:

“Q. Did you say you provided pay slips?
HER HONOUR: Yes, he did.
WITNESS: I said whatever was needed.
Q. You said you provided payslips. Did you say you provided payslips?
A. No, there was employment letter.
JACKSON: Did your Honour hear him—
HER HONOUR: Yes, I’ve written it down.
JACKSON
Q. Is there a reason you have removed those from the bundle you were given?
A. What bundle?
Q. The bundle from Parramatta Professionals?
A. No, I didn't move anything, I didn’t add anything to the application. The agent have the application. Can I ask him to bring it, compare with it?
Q. What documents did you actually ask for from the agent?
A. My document, the application form.
Q. And attachments?
A. Yeah.
...
Q. You don’t know why the payslips didn’t form part of the bundle you were given?
A. Payslips?
Q. Yes
A. I didn’t have payslips at that time. What payslips are we talking about?
Q. Well, apparently that’s what you said—
A. Taxi drivers don’t get any payslips.
Q. We’ve heard this before, Mr Kumar.”

As I have earlier noted, Mr Kumar denied receiving any documents from Tanwar including tax invoices evidencing pay-ins. His evidence as to payslips was inconsistent with those denials. That was one unsatisfactory element. Perhaps more important was the ease with which Mr Kumar shifted ground in relation to where and when he completed the application form and, even more importantly, where and when he provided the supporting documents.
The latter included the “reference letter”. It was important to Mr Kumar that he show the letter was in existence prior to 6 July 2009. If he had provided it to the agent on 25 June 2009 it must have been in existence prior to that date. Equally for Tanwar, its case was the letter was required for the purpose of this application. The lease did not commence until 13 July 2009 and the letter was signed by Mr Tanwar on 6 July 2009. It is consistent with that case that the letter was provided between the date of the application and the approval or execution of the lease.
The agent Mr Ghannoum was called the following day. He confirmed that the documents produced the day before were those provided by his office. He said they were copies because the originals had to be passed to another agent when management of the property changed. He confirmed that he was not the agent who took Mr Kumar’s application or completed any of the checks. He was asked to say when the “ticks” on the document, indicating the provision of supporting documents, were inserted. As to that he said:

“A. Look, as soon as we’ve received the document, which is usually on submission, we usually don’t accept applications without submissions of at least you know, the – the documents that we request. There is, for example, like, like, a tenancy reference letter or a rental ledger, sometimes we don’t get them submitted immediately due to the fact that, you know, by the time they go to the agent and then submit it. So we usually just call the agent, send the declaration through, and they fax over those documents to us, or email them to us, sorry.
Q. So what you are saying is that this application would not have been accepted without those documents.
A. That’s correct.”

The difficulty I have with this last response is that it is not at all clear what is meant by “those documents”. It would seem to me that he is referring to the “tenancy reference letter” and “rental ledger”. It is equally unclear what is meant by the application being “accepted”. Does it mean received or approved? Moreover, Mr Ghannoum’s evidence indicates that supporting documents are “usually” provided on submission of the application. It follows that is not a universal practice. That was confirmed in cross examination.
Mr Jackson asked:

“Q. That when you take an application for tenancy—
A. Yeah
Q. –and its filled out and the employer’s phone number is included in the application—
A. Yes
Q. --and obviously the tenant authorises you to contact the employer—
A. Yep. Yes.
Q. –you might at that stage, at the point of the application, for the sake of, as you say, because you want to deal with the matter expediently—
A. Yep
Q.—you might accept verbal confirmation on the point.
A. Correct, yep.
Q. It’s possible isn’t it? I’m only asking you to consider what’s possible.
A. Yeah
Q. It’s possible also, isn’t it, that a landlord – the landlord is your client – the landlord might say, “I’d be more comfortable or I’d be happy if you could obtain a written reference,’ that’s a possibility?
A. Yeah, I mean, it could be, but it’s just – every scenario’s different so it’s a possibility, but yeah, it could be, I couldn’t say why it wouldn’t be.”

So Mr Ghannoum’s evidence is simply to confirm the documents produced come from the agency’s records. He was not the person who made the relevant checks or received the various documents. In the end his evidence as to practice is that every scenario is different. It follows that the documents produced are consistent with both the case for the prosecutor and the case for the respondent because they simply don’t say at what date the “reference letter” was provided.
There is another aspect that emerges from these documents which was apparently not considered by her Honour. The “untruths” told to the real estate agent were told, without doubt, by Mr Kumar. He wrote them in his tenancy application. Indeed on his evidence even the listing of Tanwar as the “employer’ was inaccurate, not because of the legal nature of the relationship but because, as at that date, Mr Kumar had decided not to work with the appellant any longer and had found alternative work. None of these “untruths” were expressed to tell against the credit of Mr Kumar. Nor were any reasons given which explained why they were not significant.
Mr Tanwar said that he was surprised to hear the evidence as to the employment reference check recorded in the document. He accepted that his name was Ramesh but said that he had no recollection of such a phone call. Moreover, he said he does not describe himself as “manager” but as “owner” or “director”. The contention then, that he made such representations, is dependent on challenged hearsay evidence. Moreover, in contrast to Mr Kumar, Mr Tanwar’s evidence was that he had expected Mr Kumar to resume work once he had moved house. In other words he did not know that Mr Kumar no longer worked with the appellant.
A further point of interest emerging from the documents is that Mr Kumar was required to pay, and paid, a bond, rent in advance and an agreement fee totalling $1,995. That is very close to the $2,000 which Mr Tanwar said Mr Kumar sought from him for his bond. True it included only $1,320 for the bond and the amount was paid prior to the date that Mr Tanwar says was the date of their conversation but, if no such conversation occurred, as was Mr Kumar’s evidence, Mr Tanwar appears to have been extremely lucky in the figure he chose as the amount requested and said to have been advanced.
Finally, this was not a simple case of one person’s evidence being preferred over another. Mr Tanwar’s evidence was corroborated by the evidence of Ms Kaur and Mrs Tanwar.
Mrs Tanwar said that Ms Kaur came to her on 6 July 2009 and asked for $2,000 cash for “Ranjeev for advance holiday pay”. She took the cash from the till, counted it, and gave it to Ms Kaur who also counted it. Mrs Tanwar then made a note of the “cash out” in her daily reconciliation or sale register. That document was tendered.
Ms Kaur’s evidence was that she had telephoned Mr Kumar about his outstanding pay-ins. He came to Tanwar’s premises on 6 July 2009. Mr Kumar and Mr Tanwar had a conversation in her presence. She said Mr Kumar produced the reference letter and asked Mr Tanwar to sign it. He also asked for some financial assistance. Mr Tanwar asked her how long Mr Kumar had been working with them. She said about 6 months. Mr Tanwar directed her to give him $2,000 as advance holiday pay. She reminded Mr Tanwar of Mr Kumar’s outstanding pay-ins, but Mr Kumar said he would resolve that soon and Mr Tanwar directed her to pay him.
Ms Kaur said she then went to Mrs Tanwar, who was working on the counter in the service station, and asked her for the cash. She gave evidence which was consistent with Mrs Tanwar about recording the reason for the “cash out” in the daily reconciliation. She then returned, gave the money to Mr Kumar and, after asking him to count it and having made a copy of the “reference letter” signed by Mr Tanwar, she made a note on it of the payment in advance of holiday pay.
The appellant submitted, and I accept, that in order to find the defendant guilty of the offence, her Honour really had to do more than skirt around that evidence; it really must have been a concocted fabrication of lies between three people who were deliberately perjuring themselves, and not only that, had concocted documents to support their perjury. The defendant in the proceedings below submitted:

“If you are to accept Mr Kumar’s evidence on the critical question of whether the $2,000 advance on his holiday pay was made, you would have to find that,
1) Shirley Tanwar has lied on oath to the court.
2) Shirley Tanwar has manufactured and provided a false business record to the court (the cash balance sheet);
3) Both Ramesh Tanwar and Gurpreet Kaur have lied on oath to the court;
4) Gurpreet doctored a business record tendered to the court and lied about having done so in her evidence (the letter of employment) when she has added a purported contemporaneous file note to the letter.

All of these findings are very serious findings, and the court would require a very high degree of satisfaction, taking into account the caution with which such findings should be made (Briginshaw). As the Plaintiff says in his written submissions, clear, cogent, or strict proof is necessary (Neat Holdings Pty Ltd).”

Findings of such gravity need to be fully explained in the court’s reasons. They are not the kind of findings which may be inferred or which are implicit in the short observations as to credit of the appellant’s witnesses. Had this been a case in which the court was faced with competing evidence one on one then, of course it is necessary to determine which is to be preferred. But in this instance there is corroborating testimony from two other witnesses and contemporaneous records which also had to be fabricated in some way. In particular, the adjustment of the reconciliation sheet to record the payment would have been a very elaborate ruse to undertake.
In my view, her Honour has failed to provide adequate reasons and has therefore fallen into error.

Application of the Standard of Proof

On the analysis of the CIM’s reasons I am also satisfied that her Honour has not applied s 140(2) of the Evidence Act correctly.
The rejection of the appellant’s case required very serious findings going to the character and credit of the appellant’s witnesses. The totality of the evidence does not permit those findings. The criticisms made against each of the appellant’s witnesses were open to be made against Mr Kumar. He certainly can’t be said to be independent. He was very dogmatic about aspects of his evidence (but was conveniently flexible about other aspects), and he was the propagator of the “blatant untruths” for which Mr Tanwar was exclusively held accountable.
I accept there were some apparent inconsistencies which emerged particularly in cross-examination of the witnesses. Many of these were explicable by the fact that the witness box was an unfamiliar place for them and that English was clearly a second language for all of them. They each appeared to have a reasonable command of the language but each of the witnesses presented difficulties related to the speed of their speaking exacerbated by (it appears from the transcript) their accents. On many occasions the witnesses and I include Mr Kumar, were asked to slow down by the advocates or the court or were interrupted in their answers because they could not be understood. Such circumstances, which are of nobody’s making, can cause difficulties for the assessment of the evidence of the witnesses. They can also cause difficulties for the witness. For example, a witness who may be embarrassed that their answer is not clear may too readily accept a reformulation (genuinely offered) by the questioner.
Due allowance needs to be made for these sorts of factors when assessing apparent inconsistencies in the evidence. I acknowledge the added advantage the trial court does have of seeing and hearing the witnesses: Fox v Percy. The inadequacy of the reasons, which I have found, does not reveal how or whether that advantage was used. In my assessment of the evidence I have sought to make due allowance for these considerations.

Disposition of the appeal

It follows from these findings of error that the appeal against the orders of the CIM should be allowed. As this is an appeal by rehearing the next question is whether I should proceed to determine the matter myself or, as s 197(4) of the IR Act permits, refer the matter back to the CIM’s Court. The parties submitted I should determine the matter. In all the circumstances, including the lapse of time, the amount in issue and the question of costs I accept that I should proceed to determine the matter.
In analysing the adequacy of the CIM’s reasons I have referred to much of the evidence of significance to the determination of this issue. In particular:

The evidence of Mr Tanwar and Ms Kaur as to handing Mr Kumar $2,000 in respect of annual leave;

The evidence of the contemporaneous note of that payment by Ms Kaur;

The evidence of Mrs Tanwar as to giving Ms Kaur $2,000 for holiday pay for Mr Kumar;

The evidence of her entry into the daily business reconciliation sheet of that amount and the reason for it;

The evidence of that business record.

All of this evidence points directly to the satisfaction of the entitlement to the accrued holiday pay. Against that is the denial by Mr Kumar of having received that amount. I have noted above a number of misgivings I have about the credibility of Mr Kumar. The prosecutor submits however that his evidence is corroborated, in a negative sense, by the “reference letter”. I say in a negative sense because the letter, absent the notation made by Ms Kaur, makes no reference to annual holiday pay. In the prosecutor’s case it is important because it casts doubt on the credit of the appellant’s witnesses.
I have noted the issue as to the date of the letter. The appellant did not and does not suggest, as I understand it, that Mr Kumar altered the date on the letter. The key issue was whether the number of the month should be read as a “2” or a “7”. Mr Tanwar said he wrote the date. Towards the end of his cross-examination he was shown two versions of the letter, one with Ms Kaur’s annotation and one without, Exhibits 3 and 8 respectively. Exhibit 8 also had a finger print or hand print ink smudge. He gave an explanation of how that came to be on the version which was Exhibit 8. The cross–examination then continued:

“Q. Did you put the ink there?
A. No.
Q. Are you trying to cover up the date from the second to the seventh?
A. No.
Q. Because the original doesn’t contain that date, does it?
A. Same date. What do you mean doesn’t contain same date?
Q. The original doesn’t contain the ink smudge mark.
A. Yes, it doesn’t, no. But this is not the original. Is it original?
Q. That’s the original?
A. Is it?
Q. Exhibit 3. So you say the date on the reference letter is July?
A. Yes.
Q. That was your earlier evidence?
A. Yes.
Q. It’s actually February, isn’t it?
A. No. No.
Q. How do you explain the reason why it looks like a two?
A. Well, that’s the – I was explaining before, I write the seven with the stroke in between, and when I was writing, I was writing, maybe leaning something and the stroke gone to the middle gone to the bottom and that’s the way I do seven.
…
Q. The truth is that you actually signed that document in February, wasn’t it?
A. I said no, and I don’t - I do it like this, I write two very differently.

Mr Tanwar’s reference to “earlier” was to his examination in chief. At that time he said he was sure it was a seven. He gave the same explanation as to how he writes a “7” with a line through the middle. He said he was writing hurriedly and suggested, although he didn’t remember, that he was leaning on something and that caused his line to be at the bottom. A review of the document does not suggest the explanation is implausible.
It is also inconsistent with the concept of a carefully constructed fiction that the witnesses have concocted, that they would choose to write on an otherwise totally irrelevant document, a note as to the payment. What would be the point of such an elaboration? They had the reconciliation sheet and the evidence of three witnesses.
I am inclined to accept Mr Tanwar’s explanation. It is consistent with the evidence of Ms Kaur as to the date the letter came into existence. I have noted above the evidence of Mr Ghannoum and the documents produced by the real estate agency do not contradict that finding.
In the result I find that on 6 July 2009 the appellant made a payment of $2,000 to Mr Kumar in respect of accrued holiday pay. That payment was more than enough to satisfy the entitlement under the Determination.
It follows that I dismiss the application for a civil penalty and the claim for recovery.

Costs

The appellant acknowledged that costs were only available against the respondent if “they’ve acted in some way inappropriately and I don’t say that.” As a result costs were not sought.

Orders

The Court makes the following orders:

If leave to appeal is required, leave is granted.

The appeal is upheld.

The orders of Magistrate Goodwin sitting as the Chief Industrial Magistrate are set aside.

The proceedings in the Chief Industrial Magistrate’s Court are dismissed.

No order as to costs.

**********

Decision last updated: 21 July 2015

Medium Neutral Citation:	Tanwar Enterprises Pty Ltd v New South Wales Industrial Relations (No 3) [2015] NSWIC 8
Hearing dates:	10 March 2015
Date of orders:	21 July 2015
Decision date:	21 July 2015
Before:	Kite AJ
Decision:	The Court makes the following orders: (1) If leave to appeal is required, leave is granted. (2) The appeal is upheld. (3) The decision and orders of her Honour Magistrate Goodwin sitting as the Chief Industrial Magistrate are set aside. (4) The proceedings in the Chief Industrial Magistrate’s Court are dismissed. (5) No order as to costs.
Catchwords:	APPEAL - appeal from Chief Industrial Magistrate’s Court – nature of an appeal under Industrial Relations Act 1996 s 197 – appeal by rehearing: PRACTICE AND PROCEDURE - imposition of a civil penalty for failure to comply with industrial instrument – nature of proceedings for civil penalty – whether civil or criminal: EVIDENCE - standard of proof – civil standard – Evidence Act 1995 s 140(2) – Briginshaw standard; COURTS – obligation to give reasons – adequacy of reasons – credibility of witnesses ; COSTS – limitation on award of costs against prosecutor – Industrial Relations Act 1996 s 357(6) - appeal allowed.
Legislation Cited:	Civil Procedure Act 2005 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Customs Act 1901 (Cth) Evidence Act 1995 (NSW) Excise Act 1901 (Cth) Industrial Relations Act 1996 (NSW) Industrial Relations (General) Regulation 2001 (NSW) Interpretation Act 1987 (NSW) Taxi Industry (Contract Drivers) Determination 1984
Cases Cited:	Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 BHP Steel Ltd v The Australian Workers' Union, New South Wales [2003] NSWIRComm 151 Bluescope Steel (AIS) Pty Ltd v Australian Workers Union, New South Wales [2005] NSWIRComm 99; 138 IR 324 Bluescope Steel Limited v The Australian Workers' Union, New South Wales [2007] NSWIRComm 307; 160 IR 456 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 Curtis v Harden Shire Council [2014] NSWCA 314; (2014) 203 LGERA 352 Director of Public Prosecutions (NSW) v Earl Burns [2010] NSWCA 265; (2010) 207 A Crim R 362 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Golden Swan Investments (Australia) Pty Limited v Workcover Authority of NSW (Inspector Pryor) [2006] NSWIRComm 402 Ian Robertson v Marrickville Council [2003] NSWIRComm 394 Joy Pride v Mark Hansen Real Estate Pty Ltd [2002] NSWCIMC 54 Maxwell v R [1996] HCA 46; (1996) 184 CLR 501 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Stockwell International Pty Limited v Solyali [2014] NSWIC 7 Tanwar Enterprises Pty Limited v New South Wales Industrial Relations [2014] NSWIC 2 Tanwar Enterprises Pty Ltd v New South Wales Industrial Relations (No 2) [2015] NSWIC 5 Transport Workers' Union of Australia New South Wales Branch v Australian Document Exchange Pty Ltd trading as Grace Couriers [2000] NSWIRComm 74 Wainohu v State of New South Wales [2011] HCA 24; 243 CLR 181
Category:	Principal judgment
Parties:	Tanwar Enterprise Pty Limited (Appellant) NSW Industrial Relations (Respondent)
Representation:	Counsel: R J de Meyrick of counsel (Appellant) Solicitors: Remington & Co Solicitors (Appellant) NSW Industrial Relations (Respondent)
File Number(s):	IRC 573 of 2014
Decision under appeal	Court or tribunal: Local Court of New South Wales Jurisdiction: Chief Industrial Magistrate’s Court Date of Decision: 27 June 2014 Before: Goodwin LCM sitting as Acting CIM File Number(s): CIM 196197 of 2013