Commissioner for Fair Trading v Mojoe Enterprises Pty Ltd ACN 632 920 560 (Occupational Discipline) - [2022] ACAT 52

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR FAIR TRADING v MOJOE ENTERPRISES PTY LTD ACN 632 920 560 (Occupational Discipline) [2022] ACAT 52

OR 13/2021

Catchwords: OCCUPATIONAL DISCIPLINE – application for further financial penalty for failure to comply with a financial penalty order of the Tribunal – exercise of discretion – application dismissed

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 29, 55, 59, 66, 69, 71, 72, 74, 75, 76
Court Procedures Act 2004 s 52
Debtors Act 1869 s 4
Fair Trading (Australian Consumer Law) Act 1992 s 32
Liquor Act 2010 ss 127, 131, 132
Northern Territory Civil and Administrative Tribunal Act 2014
Residential Tenancies Act 1997 s 86

Subordinate

Legislation cited: Court Procedures Rules 2006 r 2000

Cases cited:Advan Investments v Dean Gleeson Motor Sales [2003] VSC 201
Fortune Holding Group Pty Ltd v Zhang (No 2) [2017] VSC 738
Law Institute of Victoria v Nagle [2005] VSC 47
National Australia Bank v Juric [2001] VSC 375

Tribunal:Presidential Member H Robinson

Date of Orders:  17 June 2022
Date of Reasons for Decision:      17 June 2022
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          OR 13/2021

BETWEEN:

COMMISSIONER FOR FAIR TRADING
Applicant

AND:

MOJOE ENTERPRISES PTY LTD
Respondent

TRIBUNAL:Presidential Member H Robinson

DATE:17 June 2022

ORDER

The Tribunal orders that:

The application is dismissed

………………………………..
Presidential Member H Robinson

REASONS FOR DECISION

This decision arises from an occupational discipline matter (the substantive application) that was otherwise concluded on 30 November 2021 by way of consent orders made under section 55 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). Those consent orders included an order that the respondent pay a financial penalty of $7000 within 28 days of the order in respect of the admitted contraventions (the financial penalty order). The respondent failed to pay the penalty within the agreed time. The applicant now seeks an order under section 74 of the ACAT Act that the respondent pay to the Territory a further sum of money as a penalty for failure to pay the financial penalty order within the time ordered.

The application

By way of an interim application dated 11 February 2022 the applicant sought an order in the following terms:
Pursuant to section 74(2)(a) of the [ACAT Act] the respondent pay to the Territory the amount of $10,000.[1]
[1] Interim application dated 11 February 2022; also Annexure A to application paragraph 11
As worded, the application suggests that the applicant is seeking a further financial penalty of $10,000. However, the written submissions filed with the interim application clarify that the respondent was seeking or order that the respondent pay an $3,000 for non-compliance, in addition to the $7,000 ordered by consent.[2] I have proceeded on this basis.
[2] Annexure A paragraph 10
There is no detail in the interim application as to how the figure of $3,000 was calculated. Ms Lane submitted orally that the sum reflected a contribution toward the costs incurred by the Commissioner in having to chase payment, as well as being a disincentive to other respondents to fail to pay financial penalty orders, but no attempt was made to quantify this sum.

Legislation

Section 74 of the ACAT Act provides as follows:
Failure to comply with order
(1)A party to an application must not, without reasonable excuse, fail to comply with a tribunal order.
(2)If a party contravenes subsection (1), the tribunal may do 1 or more of the following:
(a)     order the person to pay to the Territory a stated amount (not more than any amount prescribed by regulation);
(b)     if the party is the applicant—strike out the application in relation to the dispute;
(c)     if the party is the respondent—make an order in favour of the applicant.
(3)If the tribunal orders a person who is the subject of an application for occupational discipline to pay an amount, the tribunal must tell the person that, if the person does not pay the amount, the person’s licence or registration may be suspended or cancelled under section 76.
(4)Failure to tell a person that the person’s licence or registration may be suspended or cancelled does not affect any action a registrar takes in relation to the person under section 76.
(5)This section does not limit any other power of the tribunal under this Act.

Background

The substantive application was commenced by way of an application dated 10 September 2021. In that application the Commissioner for Fair Trading (Commissioner) sought disciplinary orders in respect of alleged breaches of sections 127, 131 and 132 of the Liquor Act 2010 (Liquor Act).
The parties attended a mediation at the tribunal on 30 November 2022 (the mediation). At that mediation the respondent was represented by a lawyer, Mr Mascitti. The respondent’s managing director, Mr Joshua Cicchini, was also present. The Commissioner was represented by the ACT Government Solicitor.
The mediation was confidential and evidence of what happened is not admissible in this proceeding.[3] Nonetheless, it is apparent from the material before the tribunal that the respondent admitted to contraventions of the Liquor Act. The parties agreed on occupational discipline orders, including the financial penalty order, which stated that:
6. The respondent is to pay a financial penalty within 28 days of these orders in respect of the admitted contraventions in the amount of $7,000.00.
[3] Court Procedures Act 2004 section 52B
On 30 November 2021, upon being satisfied that the proposed orders were within the scope those the Tribunal could make[4], a deputy registrar made the consent orders pursuant to section 55 of the ACAT Act (the consent orders), including the financial penalty order. The consent orders took effect as an order of the Tribunal. A copy of the consent orders was sent to the parties as required by section 59(1) of the ACAT Act, with the respondent’s copy being served on its solicitor.
[4] ACAT Act section 66
The financial penalty was due to be paid by the respondent by 28 December 2021. The financial penalty order was still unpaid when this interim application was lodged on 11 February 2022, and indeed remained unpaid when the first directions hearing was held on 25 February 2022.
I am advised by the ACT Government Solicitor, by way of submissions in this matter[5], that it sent correspondence to the respondent’s legal representative on five occasions between 20 December 2022 and 2 February 2022 (the holiday period) enquiring as to payment. While this correspondence is not in evidence, its existence was not in dispute.

The hearing process

[5] Interim Application Annexure A paragraph 8

At the directions hearing on 25 February 2022 the Tribunal made directions that the respondent:
1. The respondent is to file a response by 11 March 2022 showing cause why it should not be fined pursuant to section 74(2)(a) of the ACT Civil and Administrative Tribunal Act 2008 for failure to comply with order 6 of the Tribunal's orders of 30 November 2021. That response should set out any 'reasonable excuse' to be relied upon.
2. The respondent is to file by 11 March 2022 a written statement of any witness who is to be called to give evidence in support of the response. Witnesses will be required to be available to give evidence on oath or affirmation.
3. The matter is listed for hearing at 10:00am on 16 March 2022.
The respondent filed submissions and a witness statement of Mr Mascitti dated 11 March 2022. Mr Mascitti made the statement in his capacity as the solicitor with day-to-day carriage of the matter. The respondent filed no further evidence.
The interim application was heard on 16 March 2022 and 6 April 2022. On both occasions the Commissioner was represented by Ms Lane of the ACTGS and the respondent by Mr Mascitti.

What does section 74(2)(a) say?

Briefly stated, section 74(2)(a) of the ACAT Act[6] allows the Tribunal to impose a penalty on a “party to an application” who “without reasonable excuse” fails to comply with a Tribunal order. It applies generally and is not limited to occupational discipline orders.
[6] See paragraph 5 above
A ‘party’ to an occupational discipline application is defined in the ACAT Act, section 29(2), to mean the entity bringing the application and the person to whom the application relates. In this case the parties are the Commissioner and the respondent.
‘Application’ is defined relevantly in the Dictionary to the Act to mean:
(b) for parts 5 to 9 includes—
(i).a matter referred or appealed to the tribunal under any authorising law; and
(ii).a matter heard or dealt with by the tribunal on its own initiative.
The use of past tense in the definition to ‘application’ suggests that even a matter that has been completed and closed will fall within the definition of ‘application’.
An ‘order’ is not defined, but there is no doubt that the financial penalty order is an order of the Tribunal.
The ACAT Regulations prescribe a maximum amount that can be ordered under section 74 in relation to an occupational discipline order as follows:
5 Maximum amount payable for failure to comply with occupational discipline order—Act, s 74 (2) (a)
The following amounts are prescribed:
(a)for an individual—$4 000;
(b)for a corporation—$20 000.
These fines are marginally lower than the maximum amount the Tribunal can order when requiring the person to pay the Territory or someone else an amount pursuant to an occupational discipline order made under section 66(2)(h) of the ACAT Act[7].
[7] ACAT Regulations s.4 provides for a maximum amount of $5000 for an individual and $25,000 for a corporation.
Notably, although the power to fine a party under section 74(2)(a) of ACAT Act appears to be a general power available in all matters, the regulation prescribing a maximum fine relates only to a failure to comply with an occupational discipline order. There are no regulations setting a maximum amount for any other jurisdiction in the Tribunal. A differently constituted Tribunal has queried whether this the Tribunal can order a person to pay the Territory an amount under section 74(2)(a) in matters other than occupational discipline matters[8], but this is not a question I need resolve in these proceedings.

Consideration: Does the respondent have a reasonable excuse?

[8] Eg: Kang v R and D Regional construction Pty Ltd [2013] ACAT 24 at [13] (Kang).

There is no question that the respondent has failed to comply with an order of the Tribunal. The first question, therefore, is whether it has a reasonable excuse for this failure such that section 74(1) is not available.
In response to the interim application, the respondent relies upon the statement of Mr Mascitti, together with some factual assertions made in the accompanying submissions. No officer or employee of the respondent made a statement or gave evidence. This left Mr Mascitti as both advocate and witness at the hearing, a situation that would not be permissible in a Court.
Mr Mascitti’s evidence can be summarised as follows:
(a)He had day-to-day carriage of the substantive matter, instructed by Mr Cicchini.
(b)Both he and Mr Cicchini were present at the mediation when the agreement was reached in relation to the consent orders. After the decision was made, he received a copy of the consent orders.
(c)On 13 December 2021 he received an email from Mr Cicchini which read, relevantly:
Touching base about the conclusion of the ACAT case, how do I go about paying the fine, and where do I send my letter to the Commissioner?
As at this time Mr Mascitti had not received the payment details from ACTGS. He advised Mr Cicchini that the payment details would be received by his legal practice and forwarded through when he got them.[9]
(d)Five days later, on 17 December 2021, Mr Mascitti went on extended annual leave. He was still waiting to hear from the ACTGS at this time. He did not make active steps to contact the ACTGS before he went on leave.
(e)Quite extraordinarily, Mr Mascitti did not allocate or transfer this file to another solicitor to care for while he was on leave – leave arrangements and resourcing issues meant no other solicitor at his firm was able to assist him. He was uncontactable while on leave.
(f)The ACTGS emailed the respondent’s payment details through to Mr Mascitti on 20 December 2021. As he was on leave, he did not receive this email, and hence did not action it. Presumably, the same can be said for the other correspondence from ACTGS about this matter.
(g)He returned to work on 2 February 2022.
(h)On 6 February 2022, or perhaps 10 February 2022[10], he forwarded the payment details to Mr Cicchini.
(i)He appears to have done nothing further for nearly two weeks. Then, on 23 February 2022 he received the following email from Mr Cichini:
Sorry for getting back to you so late, just found this in my draft box and I never sent a reply. Is there an invoice for this? Or is it only the detail below?[11] (the invoice email)
(j)Ms Mascitti “subsequently” (the exact date is not apparent from the material) provided his client with a copy of the consent orders, and advised that this was effectively the invoice.
(k)The respondent paid the penalty on 8 March 2022.
[9] I note that there is no documentary evidence of that conversation, eg a filenote of the conversation.
[10] Annexure B to Mr Mascitti’s statement suggests he forwarded the 20 December 2021 email on
10 February 2022 rather than 6 February 2022, but on any view it was several days after he returned from leave.
[11] A copy of this email is annexed to Mr Mascitti’s witness statement. It appears to be a reply to an email from Mr Mascitti to Mr Cichini email dated 10 February 2022, not an email dated 6 February 2022.
What can be made of this?
There are unexplained gaps in this timeline. Mr Mascitti offered no convincing explanation for the delay between returning to work on 2 February 2022 and forwarding the payment details email on 6 February 2022 (or 10 February), nor for the delay between 23 February 2022 and 8 March 2022. Whether this vagueness is because he wished to avoid attracting further criticism of his standard of practice or was valiantly protecting his client is unclear. Perhaps the most likely scenario, at least in respect of the first gap, is that having taken six weeks leave with no arrangements made for the management of his files, he was very busy getting back on top of things.
Ultimately, however, while Mr Mascitti’s evidence offers a very interesting insight into file management practices and staffing issues at his legal firm, the question is not whether the respondent’s solicitor had a reasonable excuse for noncompliance, but whether the respondent did. There is no explanation from the respondent as to the gaps in the timeline, or how the invoice email ended up in its director’s ‘draft’ box. There is also no evidence from the respondent explaining why it waited so long for a response from its lawyer. After all, the director of the company was at the mediation, and must have been aware of the consent orders, including the deadline for payment of the penalty. One might expect that as the date of 28 December 2021 approached, he would make further enquiries of his solicitor, if not the Commissioner.
What I have before me is, at best, a vague account of an apparent comedy of errors that explains only part of the relevant period of non-compliance. This is not an adequate explanation, let alone a reasonable excuse.
However, the absence of a reasonable excuse of non-compliance is only one of several matters I need to consider before making the requested order.

Other considerations

The Commissioner is requesting that I impose a financial penalty for a failure to pay a financial penalty – in other words, the Commissioner is requesting that the respondent be fined for a failure to pay a fine on time. The Commissioner is a public servant and statutory office-holder[12]; in effect, the Territory is the beneficiary of both fines.
[12] Appointed under section 32 of the Fair Trading (Australian Consumer Law) Act 1992
Section 74 of the ACAT Act sits in Part 7 of the ACAT Act. Part 7 is entitled “Enforcement and Offences” and sets out the Tribunal’s powers when a party fails to comply with an order of the Tribunal. It is useful to look at this part in full.
The first provision in part 7 of the ACAT Act, section 70, provides that a proceeding before the Tribunal is a legal proceeding for the Criminal Code, chapter 7 (Administration of justice offences). There is no suggestion of any criminal or other offence arising from this matter and section 70 is not relevant to these proceedings.
Section 71 deals with enforcement, and I will come back to it shortly.
Sections 72 and 73 deal with fixing faulty orders and are not relevant to this matter.
Section 74(4) relates to a process under sections 75 and 76 whereby a registrar of the tribunal can suspend or cancel a person’s licence or registration for non-payment of a financial penalty. It says that if the tribunal orders a person the subject an occupational discipline order to pay an amount, the tribunal must tell the person that if they do not pay the amount, their licence or registration may be suspended under section 76. It is not entirely clear whether the requirement in section 74(3) relates only to a financial penalty ordered under 74(2)(a) for breach of an order, or whether it may also apply to a financial penalty under section 66(h), but again I do not need to consider that issue.
Sections 75 and 76 of the ACAT Act provide a means by which the Tribunal may suspend a person’s licence or registration for failing to comply with “an order that the person pay a stated amount within a stated period.” Section 75 applies to an occupational discipline order under section 66(h), as well as any order made under section 74(2)(a). In summary, these sections provide that the registrar must give a defaulting party a warning that their licence or registration may be suspended if they do not pay the amount within 14 days of the warning notice, failing which the Tribunal may end, suspend or cancel their licence. The Commissioner has not asked the Tribunal to exercise this power in this case (although their submissions note the requirements of section 74(3) apply if an order is made under section 74(2)(a)). The respondent submitted that the process under sections 75 and 76 of the ACAT is the more appropriate process to follow where a monetary penalty is outstanding. The Commissioner submitted that there was little purpose in pursuing that course in this case as the respondent has sold the business. I agree that it seems pointless.
Returning to enforcement, and section 71, the Tribunal does not enforce its own orders. Rather, section 71 provides that “a money-order or non-money order of the Tribunal may be enforced by filing in the appropriate court”.
Section 69A defines the ‘appropriate court’ as follows:
appropriate court means—
(a) if the amount payable under an enforceable money order or the form of relief under an enforceable non-money order is within the Magistrates Court’s jurisdiction—the Magistrates Court; or
(b) for any other enforcement proceeding—the Supreme Court.
The definition of ‘money order’ in Rule 2000 of the Court Procedures Rules 2006 (CPRs) is:
money order means an order of a court or tribunal, or part of an order of a court or tribunal, for the payment to a person (but not into court) of an amount, including an amount for damages, whether or not the amount is or includes an amount for interest or costs.
This definition is broad enough to cover an order by the Tribunal that the respondent pay a financial penalty to the Territory pursuant to an occupational discipline order. A financial penalty order made by the Tribunal is taken to be an enforceable order of the appropriate court in which it is filed for the purposes of the CPR’s part 2.18 (Enforcement). Interest and costs are available to an applicant for an enforcement order as per the CPRs. Enforcement under this part is the usual avenue by which a party to a proceeding enforces a financial or monetary order (or, indeed, in most jurisdictions, a non-monetary order) made by the Tribunal.

The Commissioner could have sought to enforce the financial penalty order in the Magistrates Court[13], but chose not to, and to pursue this course instead. In doing so, it avoided the associated procedural steps and costs. The Commissioner argues that its chosen course of action is acceptable both because it is clearly permitted by the ACAT Act, and because section 74(1) is focused not just on enforcement, but on punishment of the respondent for breach of a tribunal order. It also sees no conflict in terms of the Territory being the beneficiary of both the first financial penalty and any subsequent fine for failure to comply with an order of the Tribunal, as again the financial penalties each serve a different purpose.
[13] As well as or instead of a process under section 75 or 76 of the ACAT Act
There are few cases where the power in section 74 has been examined in detail in the context of issuing a fine under section 74(2)(c). In my experience, applications under section 74 for non-compliance are usually seeking orders for dismissal pursuant to sections 74(2)(a) or (b)[14].
[14] Eg. Kang; also B&T Developments (ACT) 3Pty Ltd & Ors v ACTPLA & Construction Occupations Registrar and Anor (Administrative Review) [2014] ACAT 75 deals with non-compliance in the context of an administrative review proceedings, – in both cases differently constituted tribunals found they lacked the jurisdiction to make the orders, but both cases are in different jurisdictions and the reasoning not relevant to the present matter.
In the matter of Byrnes v Wang [2020] ACAT 40 (Wang), a presidential member of the tribunal issued a subpoena requiring the respondent, Mr Wang, to attend the Tribunal to show cause why he should not be fined under section 74 of the ACT for failure to comply with an order of the Tribunal. This followed upon the respondent’s refusal to comply with an order made by the Tribunal at an interim hearing that he, before a specified date:
…cause an account for electricity supply to be activated in their names and the lessors shall be liable for all costs of connection, supply and consumption of electricity to the premises for the remainder of the tenancy.
I heard the matter. There was no doubt that Mr Wang breached the order. He admitted as much. Although Mr Wang was summoned under section 74 of the Act, I ultimately issued the fine under a different, jurisdiction specific Act[15], and not section 74. However, I observed generally that:
28. It goes without saying that the justice system would cease to operate if participants did not comply with orders made by Courts and tribunals. As was observed by Justice Gillard in Law Institute of Victoria v Nagle [2005] VSC 47.
It is vital to the administration of justice in this State that a person bound by an Order obeys it. Disobedience of an order poses a threat to the administration of justice and attacks its very foundation. It threatens the rule of law and its destruction results in anarchy and a return to the law of the jungle. If a person bound by an order wilfully refuses to obey it and is not severely punished for wilful disobedience then parties in litigation will have no confidence in the legal system. Respect for the system must be maintained .
29. Justice Gillard was referring to orders made by a court under their power to deal with acts of contempt. The Tribunal has no such power, but the general principle applies to tribunals as well as courts: the rule of law cannot operate if people flout orders made by courts and tribunals. Where a person refuses to comply, steps must be taken to enforce compliance.
Where contempt proceedings are available, all courts and tribunals have a similar process, which reflects that in the courts. That is, the party accused of breaching an order is summoned to attend and show cause why they should not be held in contempt. These proceedings before this Tribunal are not proceedings for contempt, and do not carry either the authority of a court nor the moral opprobrium that accompanies the breach of a court order. Yet, the process does result in a financial loss and is therefore in the form of a civil penalty similar to that which may be imposed by a court or a tribunal following a contempt process. That process has been followed in this case, albeit the Tribunal has determined to proceed under a provision of a different Act to the one in the notice.
[15] Section 86 of the Residential Tenancies Act 1997 - this process did not give rise to the same concerns that arose in Kang because am amount was prescribed by the legislation.
Adopting the process adopted in Wang, in order to issue a further financial penalty, I must be satisfied that:
(a)an order was made by the Tribunal;
(b)the terms of the order are clear, unambiguous, and capable of compliance (see below);
(c)either:
(i)      the order was served on the defendant; or
(ii)     failure to serve the order was excused in the circumstances; or
(iii)   service was dispensed with pursuant to the rules of the Court;
(iv)   that the defendant had knowledge of the terms of the order; and
(d)the defendant breached the terms of the order.[16]
[16] Advan Investments v Dean Gleeson Motor Sales [2003] VSC 201; National Australia Bank v Juric [2001] VSC 375; Fortune Holding Group Pty Ltd v Zhang (No 2) [2017] VSC 738 at [33].
All these factors are met in this case. I am also satisfied, as set out above, that the respondent lacked a reasonable excuse for non-compliance. What remains are discretionary considerations, including the broader legal contexts considered above, and the further observations below.
One consideration is that proceedings for order disobedience are usually only appropriate where there are no other remedy or means of enforcement[17]. The power is there to protect the integrity of the Tribunal’s processes, not unduly punish. Wang concerned an indisputable breach of a non-monetary order in an ongoing proceeding, where alternative means of enforcement were not practical. By contrast, this case concerns a financial penalty order capable of enforcement in the usual manner for a debt, or by the suspension or cancellation process under section 75 and 76 of the ACAT Act (notwithstanding its limited usefulness in this case).
[17] Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 [93]; see also, for example, Magistrates Court Act 1930 section 307(1)(a) which provides that proceedings for contempt for failure to comply with an order of the Court are only appropriate where no other enforcement option is available.
There is little evidence of what steps the Commissioner through the Government Solicitor took to seek enforcement of the financial penalty prior to filing the interim application[18], but on what is before me, and given the only outstanding issue is the fine, I see no reason why the breach could not have been remedied by enforcement proceedings, or perhaps even the threat of enforcement proceedings. The Commissioner would have incurred costs, but those costs could have been recovered as part of those enforcement proceedings, and in way that offered appropriate protections to the respondent in terms of calculation of those costs. While I am not in a position to assess whether the Territory would be financially better off under a further fine than it would be had it followed the enforcement process, I can say with some confidence that this process involved less documentation and did not require evidence as to loss.
[18] Noting that the directions did not provide for the filing of such evidence.
That said, I do not think that the imposition of a further fine under section 74(2)(a) in this case is likely to open the ‘floodgates’, as any penalty ordered goes to the Territory, rather than the applicant. An order that a respondent pay money to the Territory would not help most litigants. Still, I am reluctant to encourage any successful litigant to use an application under section 74 as an alternative pathway to the usual means of enforcing a monetary order. I am certainly not satisfied that I should order a further penalty under section 74(2) in order to cover any loss incurred by the Commissioner or the Territory.
The monetary nature of the breached financial penalty order is also a consideration. A different approach to contempt proceedings for monetary and non-monetary orders has existed as least since the Debtors Act 1869[19], which limited incarceration for debt and default. The distinction is reflected in the establishing legislation of most equivalent tribunals. Typically, a failure to comply with an order of a tribunal is an offence, and a prosecution may ensue, but only in respect of non-monetary; monetary orders are expressly excluded.[20] The exception is New South Wales, where the New South Wales Civil and Administrative Tribunal Act 2013 does give the NCAT power to impose a "civil penalty", akin to a fine, on a person who contravenes certain non-designated orders[21] but an application for any such an order must be brought by or with the authorisation of the Minister or other authorised person.[22] The legislative schemes are not directly comparable; importantly, a breach of an ACAT order is not an offence. Still, and having regard to the monetary nature of the order sought in this case, it is appropriate to approach this application with restraint.
[19] See Miller, C.J Contempt of Court Oxford University Press 2000 at 14.166 ff.
[20] For example, in Queensland, the Queensland Civil and Administrative Tribunal Act 2014 section 213; in the Northern Territory the Northern Territory Civil and Administrative Tribunal Act 2014 s 84B; In Western Australia the State Administrative Tribunal Act 2004 s. 95(1) and (2); South Australian Civil and Administrative Tribunal Act 2013 section 89; and Tasmanian Civil and Administrative Tribunal Act 2020 section 126(3)
[21] Section 72(3),
[22] Section 75;
For completeness, I note that different considerations apply to a non-monetary order. These can be more difficult to enforce. Some will be made on an interim basis in the context of ongoing proceedings. In such cases, section 74(2) is a means of protecting the integrity of the Tribunal by discouraging or penalising disobedience that is affecting the hearing. In other cases, the effluxion of time or changes in circumstance may make the enforcement of final non-monetary orders impractical,[23] in which case an additional financial penalty that will ensure redress.
[23] Noting that the Magistrates Court has the power to adjust non-monetary orders to take account of changed circumstances, as well as formal contempt processes for enforcement of non-monetary orders.
Dealing with non-compliance of non-monetary orders by way of a financial penalty under section 74(2)(a) is especially appropriate in occupational discipline matters, where final orders may include such things as:
(a)a requirement to give an undertaking;
(b)a requirement to undertake training; and
(c)directions, as per the requirements in section 67 of the ACAT Act.
The suspension and cancellation provisions section 75 and 76 are then available if the financial penalty is not paid within the required time. This process ensures a practical means of dealing enforcing compliance, and hence protects the public. There is no need for the additional step where, as here, the disciplinary proceedings have already resulted in the respondent being ordered to pay a financial penalty.
Different considerations may also apply in a case where a party deliberately or defiantly refuses to pay a financial penalty, despite having the means to do so, and offers no explanation for the failure when invited to do so. In such circumstances, the failure to comply with the order may take on the character of wilful and flagrant defiance of the Tribunal. It is foreseeable that in such circumstances a fine under section 74 may be necessary to address the disrespectful behaviour of the respondent in such circumstances, notwithstanding the applicant has not otherwise sought enforcement. While I am far from impressed with the respondent’s conduct in this case, there is no evidence of anything of that nature.
On balance, and despite some reservations, I have determined that the circumstances of this case do not warrant a further fine under section 74. the financial penalty order has now been paid. Putting the respondent to the cost of these proceedings is sufficient penalty. No further punishment is necessary.
This decision is no reflection on the Commissioner. I share many of the Commissioner’s concerns. The respondent’s conduct suggests a lack of diligence and respect in relation to the consent orders. The Commissioner was understandably annoyed. However, annoyance alone is not enough to justify an exercise of punitive power in the way requested by the Commissioner, particularly in circumstances where the outstanding penalty has now been paid. To the extent this action was aimed at enforcement, it has been successful. There is nothing to suggest that either party ultimately gained or lost anything of substance from the delay.
The respondent’s solicitors would be well advised to implement better arrangements when personnel go on leave to reduce the chance of this kind of thing happening again.
The application is dismissed.

………………………………..

Presidential Member H Robinson

Date(s) of hearing:	6 April 2022
Solicitors for the Applicant:	Ms S Lane, ACT Government Solicitor
Solicitors for the Respondent:	Mr M Mascitti, Kamy Saeedi Law