Workplace Ombudsman v Qld Marine Pty Ltd
[2010] FMCA 441
•21 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WORKPLACE OMBUDSMAN v QLD MARINE PTY LTD & ORS | [2010] FMCA 441 |
| PRACTICE & PROCEDURE – Whether a new Federal Magistrate can continue to hear and determine penalty where they did not hear the evidence at trial – whether resignation of a Federal Magistrate has the same legal consequence as death. |
| Corporations Act 2001 (Cth) Federal Magistrates Act 1999 (Cth) Federal Magistrates Court Rules 2001 (Cth) Workplace Relations Act1996 (Cth) |
| Australian Securities & Investment Commission v Forgie & Ors [2007] NSWSC 1489 Sir Robert Megarry, A Second Miscallay–At–Law, A Further Diversion for Lawyers and Others, Stevens & Sons Limited, London, 1973 |
| Applicant: | WORKPLACE OMBUDSMAN |
| First Respondent: | QUEENSLAND MARINE & GENERAL INSURANCE MANAGEMENT PTY LTD ACN 010 887 644 |
| Second Respondent: | PETER RALPH MARTINUZZI |
| Third Respondent: | QUEENSLAND MARINE & GENERAL INSURANCE BROKERS PTY LTD ACN 010 887 653 |
| File Number: | BRG 147 of 2009 |
| Judgment of: | Burnett FM |
| Hearing date: | 10 June 2010 |
| Date of Last Submission: | 10 June 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 21 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr C. Murdoch |
| Solicitors for the Applicant: | McCullough Robertson |
| Counsel for the First Respondent: | Mr M.P. Sumner Potts |
| Solicitors for the First Respondent: | Myles Thompson Lawyer |
| Counsel for the Second Respondent: | Mr M.P. Sumner Potts |
| Solicitors for the Second Respondent: | Myles Thompson Lawyer |
| Counsel for the Third Respondent: | Mr M.P. Sumner Potts |
| Solicitors for the Third Respondent: | Myles Thompson Lawyer |
ORDERS
That the matter be listed for further directions at 9.30am on 4 August 2010.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 147 of 2009
| WORKPLACE OMBUDSMAN |
Applicant
And
| QUEENSLAND MARINE & GENERAL INSURANCE MANAGEMENT PTY LTD ACN 010 887 644 |
First Respondent
| PETER RALPH MARTINUZZI |
Second Respondent
| QUEENSLAND MARINE & GENERAL INSURANCE BROKERS PTY LTD ACN 010 887 653 |
Third Respondent
REASONS FOR JUDGMENT
Background
On 4 February 2010 Wilson FM (as His Honour then was), delivered judgment making declarations of breaches by the respondents of various provisions of the Workplace Relations Act (WR Act); Workplace Ombudsman v Queensland Marine and General Insurance Management Pty Ltd & Ors [2010] FMCA 64. Given the declarations the applicant submits the court, now constituted by me, ought to proceed to deal with the matter of penalty and costs. However as a preliminary point the respondents contend that the court constituted by me no longer has jurisdiction to deal with the outstanding matters because of the nature of his Honour’s orders and the proceeding is part heard. They contend the only appropriate course for the court is to rule a mistrial, abort the hearing of the application and refer the application back for rehearing de novo. In the circumstances it is appropriate to deal with this preliminary point before proceeding to determine the outstanding matters of penalty and costs.
The respondents submitted three matters in support of its application:
a)The form of relief sought by the application did not include an application for declaratory relief;
b)The application did not seek nor permit the resolution of separate questions; and
c)The proceedings are incomplete because the issues of liability and penalty are so inextricably intertwined it is not open to permit the proceedings to be split with separate decisions on each question thus permitting the penalty hearing to be concluded before a different judicial officer.
Nature of Relief
The respondents submit that Wilson FM only made declarations as to breaches having occurred: this was despite the application not having sought that relief. To appreciate the submission it is necessary to detail the legislation, the application and His Honour’s orders.
Section 719 of the WR Act relevantly provides:
“Section 719 Imposition and recovery of penalties
719(1)[Court may impose penalty] An eligible court may impose a penalty in accordance with this Division on a person if:
(a) the person is bound by an applicable provision; and
(b) the person breaches the provision.”
It is not disputed that the respondents have been alleged to have breached “an applicable provision”. Accepting such a breach had occurred the issue here pertains to the relief sought and its expression in the court’s orders.
In its application the applicant sought the following orders:
a)By section 719(1) of the Act, the imposition of a penalty on the first respondent for a contravention of a civil remedy provision being a breach of an “applicable division (section 718 of the Act) of the Insurance Industry Award 1998 relating to the failure to pay wages due to the employee David Stone in the sum of $34,991.04 (gross)”;
…
b)Further and in the alternative, if the court determines that s719(2) applies to any of the conduct of the respondents, sub paragraphs (a) – (u) above an order for the imposition of a penalty under section 719(1) in terms recognising that course of conduct;
…”
Final orders sought expressed in subparagraphs (a) – (u) were expressed in terms identical to subparagraph (a) except that in each of subparagraphs (b) – (u) the particulars related to differing instances of alleged underpayment in breach of the relevant award. It is not necessary to recite each subparagraph to understand the respondents’ submissions.
In the event Wilson FM made findings that the breaches of the applicable provisions had occurred in some instances. His final orders were expressed as follows:
“The Court declares that the first respondent breached applicable provisions of the Insurance Industry Award 1998 in that it:
(a) failed to pay its employee Michael Lee wages of $9,203.45;
(b) Failed to pay its employee Michael Lee accrued long service leave entitlements of $4,475.27;
(c) Failed to pay its employee Michael Lee a tropical allowance of $1,760.54;
(d) Failed to pay its employee David Stone wages of $1,002.93;
(e) Failed to pay its employee David Stone a tropical allowance of $1,892.28.
(1A) The Court declares that the second and third respondents were involved in each contravention of the first respondent.
(2) A penalty hearing is fixed for 10 March 2010 at 10.00am before Federal Magistrate Burnett.
…”[1]
[1] The substantive issue before Wilson FM was in fact not directed to a factual contest regarding the alleged breaches but rather directed to the proper construction of the relevant award and its application. The calculation of the quantum and extent of underpayments were dependent upon that matter of construction which matter appears to have been the focus of the hearing before His Honour.
The court’s power to make declarations is provided for in the Federal Magistrates Court Act section 16. Specifically section 16(1) provides:
“Section 16 Declarations of right
16(1) [Consequential relief not necessary] The Federal Magistrates Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.”
Here no application was expressly made for declaratory relief. However the court’s declarations bore directly upon the manner of proceeding and the court’s determination of separate issues of breach, and if breach was established, penalty. Clearly there was a direct connection between the two issues. In terms of section 719(1) WR Act a breach had to be established before a penalty could be imposed. This is much the same as occurs in a standard criminal proceeding. The determination of the first limb of the section is a matter that was capable of discrete determination.
Given the nature of the controversy and his orders it is plain that His Honour was proposing final and not interlocutory orders in respect of those matters. The granting of declaratory relief in the case of summary offences is well settled. See for instance Sankey v Whitlam (1978) 142 CLR 1 at 21 and the cases referred to in “Declaratory Orders, PW Young QC, second edition, Butterworths 1984 at [1704]”.
In the present context the observations of Gibbs ACJ are relevant. His Honour observed at 21:
“Most of the cases in which declarations have been made in matters which could have been, or were, the subject of criminal proceedings were cases where the criminal offence consisted of a breach of a regulatory provision, such as a failure to comply with an administrative requirement, a planning provision or a by-law. It has accordingly been suggested that a distinction should be drawn between offences involving moral turpitude – mala in se – and breaches of statutory and administrative regulations and prohibitions – mala quia prohibita – and that it is only in the latter case that a declaration will be made. There is however no authority that would deny to the courts the power to make a declaration in matters which could be or have been the subject of proceedings for crimes involving moral turpitude, and it would be most unsatisfactory to make the power of the court depend upon so arbitrary and uncertain a test, although the nature of the criminal conduct alleged to have been committed or contemplated will no doubt be one of the circumstances to be considered in deciding in what name the discretion of the court should be exercised.’
His Honour later noted at page 25 that such a procedure could be open to abuse and care needed to be taken to avoid such. He particularly observed:
“The procedure involved is simple and free from technicalities; property used in an appropriate case the use of the power enable the salient issue to be determined with the least possible delay and expense.”
In this case the matters in issue related largely to matters of construction of the relevant award. From Wilson FM’s judgment it appears there were no serious factual issues in contest between the parties. Accordingly the application readily lent itself to the grant of declaratory relief upon the issue of breach pursuant to s.719(1)(b) WR Act.
It is apparent from His Honour’s judgment that he set out the questions to be addressed in each instance: see judgment at [6] and that each such question was answered; see judgment at [6] – [44]; [6(b)] – [44]; [6(c)] – [59] and [64]; [6(d)] – [72], [73], [79], [91], [95].
In my view his Honour’s declarations are sufficiently clear to enable me to proceed to deal with matters of penalty confined to the subject matter of such declarations.
Separate questions
Although factors relevant to breach may bear upon subsequent penalty, for instance by way of mitigation, matters relevant to breach (or conviction) are frequently quite discreet from matters relevant to penalty once the contravention is established. Commonly matters relevant to penalty often do not concern matters of culpability.[2] In the civil context it is well accepted that such a separation of issues can justify the separate treatment of issues. See George Wimpey & Co Ltd v Territory Enterprises Pty Ltd [1966] VR 312.
[2] Good character evidence perhaps illustrates the most common instance where that is not so but such was not a factor in this case.
I can see no reason in principle why such an approach ought not to be available in the current context particularly where, as was the case here, the real controversy before Wilson FM concerned the proper construction of the relevant award. That issue in turn determined the question of culpability of the respondents and quantum.
In my view, His Honour’s decision was consistent with Federal Magistrates Court Rules 2001 (Cth) r17 concerning the provision of separate decisions on a question. Despite separate questions not being sought in the application it was open to His Honour to approach the matter in that manner. See FMCR 16.01 and Part 17. Wilson FM expressly considered the matter being referred to me for penalty. Clearly by that order he intended his orders on the subject of contravention to be final.
In my view His Honour’s declarations are efficacious and subject to the next matter raised by the respondents it is open to me to proceed with penalty and costs following His Honour’s findings.
Incomplete Hearing
Notwithstanding my views that the proceeding is one which was capable of being disposed of by way of hearing separate issues and declaratory orders the respondents contend that it is not open to me to proceed to hear the second issue the application having been commenced and part heard by another judicial officer.
The respondents contended the proceedings are one and that liability and penalty are inextricably intertwined such that this is not a case where the court constituted by me can proceed to effect a penalty assessment merely on the findings made by Wilson FM. The respondents contend by way of illustration that “determination of penalty of its nature requires assessment of culpability or moral turpitude that results from assessment by a tribunal of all the facts of the case including a personal assessment of the person against whom a penalty is sought”.[3]
[3] Respondents’ submissions paragraph 5.
It was further conceded by the respondents that there may be occasions where it is possible for proceedings to give rise to separate issues in the matter contended for by the applicant. It noted by way of illustration in the decision of Orr v Holmes[4], a case limited to the issue of costs. They contended however that this case was not such a case.
[4] (1948) 76 CLR 632
The respondents contended the starting point for analysis as to the appropriate course to be adopted is to be found from a consideration of cases where a judge dies or retires in the course of a substantive hearing. It is contended that such authority can be found in the observations of Scrutton LJ in Coleshill v Manchester Corporation [1928] 1 KB 776. In particular the respondents relied upon remarks by Scrutton LJ where he “expressed a firm view that such a matter should be reheard”.[5] I address His Lordship’s obiter remarks below.
[5] Respondents’ submissions paragraph 7.
The respondents further contended that other cases which addressed the issue demonstrate a pragmatic approach. That is, consent orders usually dealt with the predicament by the use of transcript, when appropriate, but only by consent and not in any case involving the imposition of penalties; see Bolton v Bolton [1949] 2 All ER 908; The Forest Lake [1968] P.270; [1966] 3 All ER 833; Chua Chee Chor v Chua Kim Yong [1963] 1 All ER 102; [1962] 1 WLR 1464 (PC); Re British Reinforced Concrete Engineering Co. Ltd’s Application (1929) TLR 186; Hallam v Hallam (1930) 47 TLR 207; IRC v Wilsons (Dunblane) Ltd [1954] 1 All ER 301, 305; [1954] WLR 282, 288; Polskie v Electric Furnace [1956] 2 All ER 306; Piercy v Young (1880) 15 Ch D 475; Bottomley v Hunt and Blackett Pty Ltd (1928) 44 TLR 451. There is no consent by the respondents in this case to that course.
The applicant contended that the respondents’ approach was in error and that in appropriate cases, of which this is one, it was open for another judicial officer to assume the conduct of and complete a proceeding. The class of case to which the applicant contended this principle applies includes cases of a criminal type where the verdict has been delivered and sentence remains to be passed. The applicants contended that this approach was consistent with the authority in Rex v Frank Pepper [1921] 3 K.B. 167.
It contended the answer to this issue appears to be resolved by the fact that the determination of penalty has been specifically assigned by the making of an order, namely order 2 made as a consequence of the judgment, noting the broad powers of the court to make orders under r.10.01 Federal Magistrates Court Rules and s.15 of the Federal Magistrates Act 1999 (Cth).
It noted that if this submission is not accepted, there are no specific statutory provisions that deal with this situation arising in the Federal Magistrates Court. Therefore, common law considerations would apply in order to determine whether the court’s powers to order penalties may be exercised by a different Federal Magistrate.
Where the parties agree to a different judge continuing a proceeding, then no issue can arise (see Brennan v Brennan (1953) 89 CLR 129 at 136-137 and the cases cited in those pages). However given the objections by the respondents, this is not the case here.
The circumstances of this case are unusual and surprisingly there is little authority on the point to assist the court. However a useful starting point submitted by the applicant is to be found in Sir Robert Megarry’s text, A Second Miscallay–At–Law, A Further Diversion for Lawyers and Others.[6] At page 83 Sir Robert noted:
“Like all human endeavour, the judicial processes are subject always to the paramount claims of death.”[7]
[6] The Hon. Sir Robert Megarry, Stevens & Sons Limited, London, 1973.
[7] Although this case does not involve death the resignation of a judicial officer has the same legal effect.
Sir Robert continued then to discuss the authority advanced by the respondents that being Coleshill v Manchester Corporation. At this point it is appropriate to note some distinguishing and qualifying facts in that decision when compared to the facts before the court in this instance. That case concerned the death of a judge part way through a civil trial before a jury. The case was clearly in its early stages with only three witnesses having been heard. Upon the sudden and unexpected death of the trial judge a second judge was sent down from London to continue the case. Before continuing with the trial and with the agreement of the parties the replacement judge read the shorthand notes of the proceedings. In respect of that approach Scrutton LJ observed at 785 – 786:
“I can understand that in the unprecedented and painful circumstances it is unnecessary to take any objection to what happened, but I think it is a precedent which should not be followed in future. I doubt whether a judge has any jurisdiction to continue the hearing of a case in which witnesses have been called in court in the course of the trial before the jury and another judge, if not being a case of evidence being taken on commission or before an examiner.”
The issue itself does not appear to have been alive in the appeal so His Lordship’s comments are in the context obiter dicta. Although not the subject of discussion in the head note, from the summary of debate it seems that the accepted approach was that the change of judicial officer concerned occurred early in the proceedings but more significantly ought not to have impacted upon the fact finding role reposed exclusively in the jury. This is consistent with the separate and distinct role of judge and jury which continue to this day. So much appears to have been accepted by Sir Robert who noted by way of comment:
“Where there is no jury, the case might be thought to be a fortiori; for a decision made by a judge who has not seen or heard some of the witnesses might well seem more vulnerable than one made by a jury which has seen and heard them all.”
Sir Robert noted other instances where Scrutton LJ’s approach was sought to be avoided and distinguished. He noted:
“…It is perhaps not unfair to say that they (Scrutton LJ’s views) have been distinguished with more zest than they have been followed.”[8]
[8] At page 54.
In the context of criminal proceedings Sir Robert observed:
“A somewhat surprising latitude has been held to exist in criminal cases. One man was convicted at quarter sessions before a Recorder who postponed sentence and then died. The accused appealed against the conviction, and the question was raised whether there was any jurisdiction to pass sentence. The Court of Criminal Appeal adjourned the appeal for a rehearing before five judges, and on the rehearing held that the Recorder’s successor was entitled to pass sentence at the next quarter sessions, after a shorthand note of the trial had been supplied to him and he had given the accused an opportunity of being heard.”[9]
[9] At page 55.
In that context Sir Robert was referring to the decision in Rex v Pepper [1921] 3 K.B. 167. The judgment of the full bench of the Court of Criminal Appeal was not expansive. The full text of the judgment is as follows:
“The judgment of the Court (A.T. Lawrence, C.J., Lush, Rowlatt, Sankey, and McCardie JJ.) was read by A.T. Lawrence C.J., who, after stating the conclusion of the Court that there was evidence upon which the jury could find a verdict against Pepper, and that the appeal must therefore be dismissed, continued as follows: With regard to the sentence upon Pepper, that was put off till the next quarter sessions. It is a matter of great regret that the learned Recorder who presided at the trial has died in the interval, but in our view the next court of quarter sessions presided over by his successor is entitled to pass sentence upon Pepper. We think that a copy of the shorthand note of the trial which has been before us should be supplied to him, and that Pepper or his counsel should have an opportunity of being heard before the sentence is pronounced.”
It is interesting to note that the jurisdictional point was not argued. As the report noted “the only point argued was whether there was evidence upon which the jury could find a verdict against Pepper. This report is concerned only with the jurisdiction to pass sentence.”
The context of the report leads itself to speculation that the matter was one that was considered in the circumstances unarguable. However to put the matter beyond debate and almost by way of direction the court made the remarks noted above.
The decision in Orr v Holmes advanced in support of the respondent concerned circumstances where the Full Court of the Supreme Court of Queensland had made an order for a new trial, with the question of costs being reserved. Before the costs issue had been determined, a member of the Full Court died. The Full Court, differently constituted, proceeded to make orders as to costs. In rejecting an objection to that course, Dixon J (at 637-638) relevantly stated:
“An order had been pronounced upon the appeal or application for a new trial. The order which was drawn up included a specific provision adjourning or reserving the question of costs and so treating it as a distinct matter. The case is not one of the death of a judge before the hearing and determination of a proceeding are concluded by a court of which he is a necessary member. The order had disposed of the proceeding before the court and, as a matter of jurisdiction, the Supreme Court constituted as a Full Court in any manner might hear and determine the question of costs adjourned or reserved. No doubt as a matter of convenience the court would not be differently constituted to deal with costs that are adjourned or reserved, if it could be avoided. But that consideration does not affect jurisdiction.”
The decision in Wentworth v Rogers (No.3) (1986) 6 NSWLR 642 also concerned an adjournment of costs orders, although by a single judge in the Supreme Court of New South Wales. The judge, Cantor J, became ill and a second judge, Maxwell J, heard and determined the awarding of costs based on the papers that had been before Cantor J. On appeal to the New South Wales Court of Appeal, Priestly J (with Glass JA agreeing) relevantly stated:
“The circumstance of the change of judge was made the subject of a submission that Maxwell J had no jurisdiction to make the orders which he did. I do not think this can be right. If a judge is unable through absence to make an order which needs to be made for some proceeding before the Court to be completed there must be jurisdiction in the Court enabling another judge to make the order. The questions which can present difficulties in such circumstances is the extent to which the new judge can use materials already before his predecessor in arriving at his conclusion. Very often this problem is solved by the parties’ agreement to the new judge making such use of the material before his predecessor as he sees fit. What the position is in the case where the parties do not agree does not appear to be the subject of any clear authority binding on this Court. In England the only place where the matter is at all fully discussed appears to be in Sir Robert Megarry’s A Second Miscellany-at-Law (1973) at 53-58. Both the Supreme Court Practice (1985) Vol 1 at 24, and Halsbury’s Laws of England, 4ch ED, Vol 37 par 61 and 53 refer to Sir Robert Megarry’s work as the best discussion of the topic, showing that a stone of authority may lie concealed amongst flowers of antidote.
In the present case, however, I do not think it necessary to investigate the law in cases where use by a new judge of the materials before his predecessor is opposed. In the present case, the inference I draw from the materials before this Court showing what happened before Maxwell J is that the Applicant’s representatives took part without demur in the proceedings before Maxwell J in the course of which it was transparently clear that His Honour was making use of the materials which had been before Cantor J. Once the Applicant’s representatives took part in those proceedings, for which as I have earlier remarked there must undoubtedly have been jurisdiction, without complaint about the procedure adopted, I do not think that the applicant, in the circumstances of the case, can later seek to make that procedure the subject of application for leave to appeal.
In my opinion the present application should be dismissed with costs.”
(Emphasis mine)
In that same decision, Kirby P stated that application for leave to appeal should be dismissed on the following basis:
“Whilst the present case falls short of the circumstances that faced the High Court in Brennan, in the sense that the status of the parties is not determined by the order under challenge and there was not in this case, as in Brennan, a positive request by the parties to the second judge to proceed as he did, the cases are sufficiently analogous to give guidance to the established way in which challenges at the present time should be considered. Whilst it would not do a grave injustice to require (so far as that is now possible) a de novo hearing of the costs argument, it would certainly involve some injustice, delay and expense. Furthermore, when the substance of the matter is examined, and a ruling made by Maxwell J considered against the facts as known to this Court, it can be said with confidence that no such injustice has occurred as requires leave to appeal against His Honour’s interlocutory order.
In these circumstances, although an irregularity may have occurred, it is not one which requires the leave of the Court to commit an appeal.”
The authorities establish that a Court should proceed cautiously before permitting itself to proceed to complete a matter that has been heard in part by another judicial officer without rehearing the evidence, or in circumstances where a judicial officer makes a further order when the substance of the matter has been dealt with by another judicial officer.
An important distinction therefore needs to be made between a matter that is “part heard” and a matter where separate issues arise.
In O’Brien v Macskimin (1992) 101 NTR 1, Martin CJ of the Supreme Court of the Northern Territory relevantly observed at page 4:
“It has been held that a magistrate before whom a case has begun should complete the hearing and determination of it and, if the hearing is adjourned, no magistrate other than the one before whom the hearing commenced can adjudicate, the adjournment being an extension of the hearing of the case: R v Smith; Ex parte Stellino [1952] QND 37. On the other hand, in R v Hermes; Ex parte V [1963] SASR 81 it was held that where an order had been made by a magistrate forbidding the publication of the name of a party or witness “until further order”, another magistrate for whom the proceeding may come has power, in his discretion, to make an order terminating the prohibition of the publication of the name of the party or witness. This case is also distinguishable from the circumstances that arose in R v Marrington (1850) 1 SCR (NSW) App 11; Legge 643 and in Ex parte Ryan (1864) 3 SCR (NSW) 221 where the statute required that there be a hearing before two justices and the same two justices were not present during the whole of the trial: See s.45 of the Justices Act. The distinction that is made is between matters where the proceedings before the Court are part heard and not determined, and there is a change in the constitution of the Court, and where a hearing has been completed and a determination made and a separate issue arises, which, although it could be said to arise from the earlier proceedings, are based upon a separate set of facts, or in respect of which different considerations are brought to bear.”
The decision in O’Brien concerned circumstances whereby a magistrate sentenced the defendant to 28 days imprisonment for an offence of possession of a trafficable quantity of a dangerous drug, but to be released on her recognisance conditional that she be of good behaviour for 18 months. Within the 18 month period the defendant pleaded guilty to a further change of unlawful possession of a dangerous drug.
A question arose as to whether a different magistrate could exercise a power under relevant legislation in circumstances where the Court was constituted by another stipendiary magistrate when the defendant was convicted and sentenced. His Honour concluded that in the circumstances the court could be differently constituted.
In the more recent decision of Australian Securities & Investment Commission v Forgie & Ors[10] the point was also addressed. In that case an acting judge heard applications for civil penalty orders in respect of breaches of the Corporations Act. An appeal followed which was partly successful and resulted in the matter being remitted for a separate penalty hearing. In the meantime the acting judge clearly ceased to hold office and the matter was remitted to another judge for penalty hearing. The question of whether the remitted proceeding ought proceed before a judge different to the original judge was clearly an issue between the parties. However by the time it came on for hearing it appears to have been resolved as the judgment noted at paragraphs [30] and [31]. At that point White J noted concerning evidence before Foster A.J.:
“[30] In written submissions made before the commencement of the hearing, the defendants foreshadowed that they would seek to challenge the admissibility of all the evidence relied upon by the plaintiff before Foster A.J., including all of the affidavits read, all of the documentary exhibits and the transcript of the evidence.
[31] That objection was not pressed. The defendants accepted that the penalty hearing was a continuation of the same proceedings as had commenced before Foster A.J. and the evidence had already been admitted. No question arose of the retender of the evidence. In the same way, where a judge dies after an accused is convicted but before sentence is passed, sentence may be passed by a new judge on the basis of the materials at the trial with such further materials as might be adduced at the hearing on sentence, with the accused being entitled to be heard before sentence is pronounced (R v Pepper [1921] 3 K.B. 167 at 168).”
[10] [2007] NSWSC 1489.
Although the attention of the court in that instance was directed to the admissibility of material before the incoming judge that would not have been in issue unless the proceeding before the replacement judge was a new proceeding. It seems to me that it was in that context the observation was made in the last sentence of paragraph [31] of the judgment.
It follows in my view that the inference drawn and commented upon by Sir Robert Megarry following R v Pepper was considered in ASIC v Forgie and articulates the correct approach that this court should adopt in the context of these proceedings. That is the court as constituted by me should proceed to hear and determine the matter of penalty based upon the materials before Wilson FM and such other materials as the parties wish to place before me together with any submissions either party may wish to make.
The applicant at the outset had contended that the court was in any event empowered to adopt that course by operation of the Federal Magistrates Court Act s15 and Federal Magistrates Court Rule 10.01. The exercise of the powers in this instance relate to matters of procedure. It follows that the court is empowered to exercise such power although it ought do so judiciously and informed by the common law.
This matter is one for the exercise of a discretion which much be exercised judicially. In that context the respondents submit that the most persuasive matter which should inform and influence the exercise of the discretion is that the assessment of penalty by its nature requires an assessment of culpability and moral turpitude on the part of the respondents. It was submitted that these are matters which cannot be properly assessed without the advantage of having seen the witnesses in the earlier part of the application.
I do not agree. If matters from the breach hearing are relevant to penalty then they are available to the court from the materials introduced at first instance in the course of the contravention hearing. In addition I note from the judgment that no issues of credit arose. Indeed the judgment is directed principally to the question of construction of the appropriate industrial award. To a large extent many of the facts were otherwise agreed.
Frequently in the context of appeals courts are required to review the conduct of proceedings below. In many instances that requires a court to have regard to findings of fact including findings of credit. As the majority in Warren v Coombes [1978-1979] 142 CLR 531 observed at [551]:
“…Shortly expressed, the established principles are, we think, that in general an appellant court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellant court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we eventually think, are not only sound in law, but beneficial in their operation.”
I do not think that in principle those principles have any less currency in the present context. It follows I am satisfied that the matter is one in respect of which I am able to proceed to resolve the issues of both costs and penalty.
Conclusion
I consider:
a)It was open to Wilson FM in his management of the proceeding to determine separate issues.
b)His powers included the making of orders declaring the rights of the parties and referring the application to me for penalty hearing.
c)I am empowered to proceed to hear and determine the matter of penalty in the proceeding.
Orders
I order that the matter be listed at 9.30am on 4 August 2010 for further directions.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 21 July 2010
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