FEDERAL COURT OF AUSTRALIA
Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205
Citation: Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205 Parties: CLEAN ENERGY REGULATOR v MT SOLAR PTY LTD (ACN 143 322 089), GREEN MASTER BUILDING SOLUTIONS PTY LTD (ACN 146 546 349), BO LIU, YONGXIN ZHU and BARRY ELI KIBBLEWHITE File number: ACD 29 of 2012 Judge: FOSTER J Date of judgment: 8 March 2013 Catchwords: ENERGY AND RESOURCES – consideration of appropriate civil pecuniary penalties to be imposed upon corporations and individuals for contraventions of the Renewable Energy (Electricity) Act 2000 (Cth) being the provision of false information to issuers of renewable energy certificates under that Act – consideration of other appropriate relief Legislation: Clean Energy Regulator Act 2011, ss 11, 12, 16
Renewable Energy (Electricity) Act 2000 (Cth), ss 3, 24B, 154A, 154B, 154L, 154M, 154N, 154P, 154S, Pt 2, Div 4, subdiv BA
Federal Court Rules 2011, r 30.21(1)(b)(i)Cases cited: Attorney-General (SA) v Tichy (1982) 30 SASR 84 cited
Australian Communications and Media Authority v Bytecard Pty Ltd [2013] FCA 38 followed
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 applied
Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461 cited
Johnson v The Queen (2004) 205 ALR 346 cited
Markarian v The Queen (2005) 228 CLR 3 applied
Mill v The Queen (1988) 166 CLR 59 citedMinister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] ATPR 41-993 cited
Minister for Sustainability, Environment, Water, Population and Communities v Woodley [2012] FCA 957 followed
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 applied
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 applied
Pearce v The Queen (1998) 194 CLR 610 cited
Secretary, Department of Health and Ageing v Export Corp (Australia) Pty Ltd (2012) 288 ALR 702 citedTrade Practices Commission v CSR Limited (1991) ATPR 41-076 applied
Date of hearing: 5 November 2012 Place: Canberra Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 182 Counsel for the Applicant: Mr T Begbie Solicitor for the Applicant: Australian Government Solicitor Solicitor for the First and Third Respondents: The Third Respondent appeared in person on his own behalf and on behalf of the First Respondent Solicitor for the Second and Fourth Respondents: The Second and Fourth Respondents submitted Solicitor for the Fifth Respondent: The Fifth Respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 29 of 2012
BETWEEN: CLEAN ENERGY REGULATOR
ApplicantAND: MT SOLAR PTY LTD (ACN 143 322 089)
First RespondentGREEN MASTER BUILDING SOLUTIONS PTY LTD (ACN 146 546 349)
Second RespondentBO LIU
Third RespondentYONGXIN ZHU
Fourth RespondentBARRY ELI KIBBLEWHITE
Fifth Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
8 MARCH 2013
WHERE MADE:
CANBERRA
THE COURT DECLARES THAT:
Contraventions by MT Solar Pty Ltd
1.Renewable Energy Regulator be removed as the applicant and…
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- Case
- [2013] FCA 205
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court involved assessing the maximum potential penalties for the various contraventions under the REE Act, considering the nature and extent of the breaches, and applying relevant legal principles to determine appropriate penalties. This included understanding whether the maximum penalties prescribed in the legislation could be used as a starting point or needed to be adjusted based on the specific circumstances of each case. The court had to balance these maximum penalties with other relevant factors, such as the culpability of the individuals involved and the seriousness of the contraventions.
The court's reasoning focused on the principles established in Markarian v The Queen, where the High Court highlighted that maximum penalties prescribed by legislation should not be used as a rigid starting point but rather as a yardstick for comparison. The court acknowledged the importance of considering these maximum penalties but also emphasised the need to balance them with other relevant factors, such as the culpability of the offenders and the specific circumstances of each contravention. After evaluating these factors, the court determined the appropriate penalties for each of the contraventions, taking into account the maximum penalties but adjusting them based on the unique aspects of each case.
Ultimately, the court issued orders, declarations, and injunctions in accordance with the detailed reasoning outlined in the judgment. The specific penalties imposed on MT Solar, Green Master, Mr Liu, Mr Zhu, and Mr Kibblewhite were determined based on the comprehensive analysis of the contraventions and the relevant legal principles.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
MT Solar and Green Master paid the cost of having all of those installations thoroughly checked for quality of workmanship and safety. No problems were found. ConsiderationThe Relevant PrinciplesThe General Approach The contraventions committed by each of MT Solar and Green Master are contraventions of s 24B(1) of the REE Act. In 2010, each contravention of that subsection by a body corporate carried a maximum penalty of $55,000. MT Solar committed 20 contraventions. The maximum penalty that can be imposed upon it for those 20 contraventions is, therefore, $1,100,000. Green Master committed two contraventions. The maximum penalty that can be imposed upon it for those two contraventions is, therefore, $110,000. The contravention alleged against each of Mr Liu and Mr Zhu are contraventions of s 154N(1) of the REE Act. In the case of Mr Liu, the agreed position as between the regulator and him is that he was reckless as to whether the contravention would occur within the meaning of s 154N. The position agreed as between the regulator and Mr Zhu is that Mr Zhu was negligent as to whether the relevant contraventions would occur within the meaning of that section. The maximum penalty for each of the contraventions of s 154N committed by Mr Liu is $11,000. For 20 contraventions, the aggregate of the maximum penalties that could be imposed upon Mr Liu is $220,000. The maximum penalty for each of the contraventions of s 154N(1) committed by Mr Zhu is $11,000. For two contraventions, the aggregate of the maximum penalties that could be imposed upon Mr Zhu is $22,000. The contraventions committed by Mr Kibblewhite are contraventions of s 24B(2) of the REE Act. The maximum penalty for a contravention of that subsection by an individual is $11,000. Mr Kibblewhite committed 22 contraventions. The aggregate maximum penalty that could be imposed upon him is, therefore, $242,000. However, Mr Kibblewhite has already been punished in respect of four of his contraventions as a result of action taken by the NSW Department of Fair Trading (as to which, see pars 94–97 of the Statement of Agreed Facts). For this reason, the regulator seeks penalties only in respect of only 18 of Mr Kibblewhite’s contraventions. Thus, the aggregate maximum penalties that could be imposed upon Mr Kibblewhite is $198,000. The relevance of maximum penalties when consideration is being given by the Court to the imposition of a pecuniary penalty in a criminal case has been authoritatively determined by the High Court in Markarian v The Queen (2005) 228 CLR 357 (Markarian). At 372 [31] in Markarian, Gleeson CJ, Gummow, Hayne and Callinan JJ said: It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty (The maximum selected by his Honour was not, as will appear, the maximum available in respect of the principal offence.), and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case. That he used the maximum penalty impermissibly appears from his Honour’s particular deference to it in this passage ((2003) 137 A Crim R 497 at 506 [37]):“Parliament cannot have intended that, other things being equal, the penalty for supplying more than 250 g should be less than for supplying that quantity.”The form of the statement is explained by the fact that his Honour did not start with the maximum penalty for an offence involving the quantity in question, but used another maximum penalty as his starting point, that is, the maximum for an offence in the category of seriousness immediately below that of the principal offence.