Coal Mining Industry (Long Service Leave Funding) Corporation v DAC Mining Services Pty Ltd (Final Orders)

[2021] FCA 1351

FEDERAL COURT OF AUSTRALIA

Coal Mining Industry (Long Service Leave Funding) Corporation v DAC Mining Services Pty Ltd (Final Orders) [2021] FCA 1351

File number:

NSD 242 of 2021

Judgment of:

PERRAM J

Date of judgment:

28 October 2021

Date of publication of reasons:

2 November 2021

Catchwords:

INDUSTRIAL LAW –  where Court declared that Respondent contravened Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) s 52A – whether pecuniary penalty should be imposed – where application for pecuniary penalty withdrawn

Legislation:

Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) s 52A

Regulatory Powers (Standard Provisions) Act 2014 (Cth) s 82

Division:

Fair Work Division

Registry:

New South Wales

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

3

Date of last submissions:

28 October 2021

Date of hearing:

Determined on the papers

Counsel for the Applicant:

Mr J Clarke SC with Mr T Kane

Solicitor for the Applicant:

Corrs Chambers Westgarth

Counsel for the Respondent:

The Respondent did not appear

Solicitor for the Respondent:

Herbert Smith Freehills

ORDERS

NSD 242 of 2021

BETWEEN:

COAL MINING INDUSTRY (LONG SERVICE LEAVE FUNDING) CORPORATION 

Applicant

AND:

DAC MINING SERVICES PTY LTD (ACN 111 324 371)

Respondent

ORDER MADE BY:	PERRAM J
DATE OF ORDER:	28 OCTOBER 2021

THE COURT NOTES THAT:

1.The Applicant no longer presses its application for a pecuniary penalty set out at ground 2 of its Originating Application dated 25 March 2021.

2.On 8 October 2021, the Court:

(a)Declared that pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth), the Respondent has contravened, and until 30 September 2021 continued to contravene, s 52A(5) of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) (‘the Administration Act’) by failing to comply with the notice issued under s 52A of the Administration Act dated 22 May 2020; and

(b)ordered that the Respondent is to pay the Applicant’s costs, fixed in the sum of $30,000.00, by 4pm on the day that is 14 days after the date the Court makes final orders.

THE COURT ORDERS THAT:

3.Orders 3 and 4 made on 8 October 2021 be vacated.

4.For the purposes of Order 5 made on 8 October 2021, the date on which this order is made is the date of final orders in these proceedings.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

1. On 8 October 2021, the Court declared that the Respondent had in certain ways contravened s 52A(5) of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) and made a costs order in the sum of $30,000 together with some machinery directions. That left remaining to be resolved the question of the imposition of an appropriate civil penalty. The parties then reached an agreement that no civil penalty should be imposed.

2. In this case, the power of the Court to impose a civil penalty is conferred by s 82 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth). Section 82(1)-(3) provides:

   Civil penalty orders

   Application for order

   (1)    An authorised applicant may apply to a relevant court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty.

   (2)    The authorised applicant must make the application within 6 years of the alleged contravention.

   Court may order person to pay pecuniary penalty

   (3)    If the relevant court is satisfied that the person has contravened the civil penalty provision, the court may order the person to pay the Commonwealth such pecuniary penalty for the contravention as the court deems to be appropriate.

   Note: Subsection (5) sets out the maximum penalty that the court may order the person to pay.

3. It is an interesting question whether the Court has the power to impose a civil penalty under subsection (3) where the authorised applicant has, as here, withdrawn the application under s 82(1). Assuming that such a power does exist, it seems to me that it would be inappropriate to impose any civil penalty in this case. Whilst the question of the quantum of a penalty is ultimately a matter for the Court rather than the parties, it is relevant that the authorised applicant does not seek the imposition of any penalty. Here the Respondent has agreed to the payment of the Applicant’s costs in the sum of $30,000. Declaratory relief has been granted. The civil penalty contravention involved concerned a failure to comply with a statutory notice with which the Respondent now accepts it must comply. In that circumstance, I accept the agreed position of the parties that no civil penalty should be imposed. It was for that reason that I made orders on 28 October 2021 giving effect to that conclusion.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.

Associate:

Dated:       2 November 2021