Director, Fair Work Building Industry Inspectorate v CFMEU
[2013] FCCA 2130
•10 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE v CFMEU & ANOR | [2013] FCCA 2130 |
| Catchwords: INDUSTRIAL LAW – Penalty – unlawful industrial action – agreed penalty – appropriateness of penalty – general principles – penalty imposed. |
| Legislation: Building and Construction Industry Improvement Act 2005 (Cth), ss.36, 37, 38, 49, 69 |
| Alfred v Construction, Forestry, Mining and Energy Union [2011] FCA 556 Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) [1999] FCA 1714 |
| Applicant: | DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE |
| Seventh Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| Eighth Respondent: | AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS’ LABOURERS’ FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES (AS A TRANSITIONALLY REGISTERED ORGANISATION) |
| File Number: | BRG 493 of 2012 |
| Judgment of: | Judge Burnett |
| Hearing date: | 10 October 2013 |
| Date of Last Submission: | 10 October 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 10 October 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Herbert |
| Solicitors for the Applicant: | Corrs Chambers Westgarth |
| Counsel for the Seventh Respondent: | Mr W. Friend SC |
| Solicitors for the Seventh Respondent: | Hall Payne Lawyers |
| Counsel for the Eighth Respondent: | Mr W. Friend SC |
| Solicitors for the Eighth Respondent: | Hall Payne Lawyers |
ORDERS
THE COURT DECLARES THAT:
The Seventh Respondent contravened by operation of section 69(1)(b) of the Building and Construction Industry Improvement Act 2005 (Cth) section 38 of the Building and Construction Industry Improvement Act 2005 (Cth) with respect to the industrial action at Laing O’Rourke Australia Construction Pty Limited’s Multi Level Car Park, Albert Street and Brisbane Convention and Exhibition Centre projects on 19 and 20 November 2010.
The Eighth Respondent contravened by operation of section 69(1)(b) of the Building and Construction Industry Improvement Act 2005 (Cth) section 38 of the Building and Construction Industry Improvement Act 2005 (Cth) with respect to the industrial action at Laing O’Rourke Australia Construction Pty Limited’s Multi Level Car Park, Albert Street and Brisbane Convention and Exhibition Centre projects on 19 and 20 November 2010.
THE COURT ORDERS THAT:
Pursuant to section 49(1)(a) of the Building and Construction Industry Improvement Act 2005 (Cth), a pecuniary penalty of $55,500 is imposed on the Seventh and Eighth Respondents in respect of their contraventions of section 38 of the Building and Construction Industry Improvement Act 2005 (Cth).
Pursuant to section 49(1)(c) of the Building and Construction Industry Improvement Act 2005 (Cth), the Seventh and Eighth Respondents are jointly and severally liable for the pecuniary penalty specified in Order
Pursuant to section 49(1)(c) and (5) of the Building and Construction Industry Improvement Act 2005 (Cth), the pecuniary penalty payable by the Seventh and Eighth Respondents in accordance with Order 1 is to be paid to the Consolidated Revenue Fund of the Commonwealth within 28 days of the date of this order.
The proceeding is otherwise dismissed.
There is no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 493 of 2012
| DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE |
Applicant
And
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
Seventh Respondent
| AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS’ LABOURERS’ FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES (AS A TRANSITIONALLY REGISTERED ORGANISATION) |
Eighth Respondent
REASONS FOR JUDGMENT
(Ex tempore)
This matter comes before me today for the making of declarations and the imposition of penalties. In this application the Director, Fair Work Building Industry Inspectorate seeks the imposition of penalties against the seventh and eighth respondents, together with the making of declarations in respect of their unlawful conduct. The seventh respondent, the Construction, Forestry, Mining and Energy Union (“the CFMEU”), is an industrial organisation. So too is the eighth respondent, the Australian Building Construction Employees And Builders’ Labourers’ Federation (Queensland Branch) Union Of Employees (As A Transitionally Registered Organisation) (“the BLF”). They are both building industry participants as defined in the Building and Construction Industry Improvement Act 2005 (Cth) (“BCII Act”). At all material times the CFMEU had the following persons engaged as employees or officers functioning as union organisers, representatives or officials: Jamie McQueen, Chad Bragdon, David Hanna, Shane Treadaway, Andrew Clark and Edward Bland.
Mr Bragdon and Mr Bland were also employees or officers of the BLF and/or organisers for it, and officers or agents of the BLF in that capacity. Further, David Hanna was at all times the state secretary of the BLF. These officers or officials were originally parties in the proceeding but the proceedings against them have since been discontinued. In this instance the principal complainant was Laing O’Rourke Australia Construction Pty Ltd. It too was a building industry participant engaged in building work and was the principal contractor in respect of three projects in South East Queensland. The first was the Brisbane Convention and Exhibition Centre at Merivale Street, South Brisbane. The second was a site at 123 Albert Street, Brisbane and the third was the Multi Level Car Park at the Brisbane Airport.
The work undertaken by it was “building work” as defined, and the work that was required to be performed at both the Brisbane Convention and Exhibition Centre and Albert Street sites was covered by the Laing O’Rourke Australia Construction Pty Limited and CFMEU Building Group North Enterprise Agreement 2009-2011, a “Commonwealth industrial instrument.” The building work at the Multi Level Car Park site was undertaken in accordance with the Expanded Operations – Queensland and CFMEU Enterprise Agreement 2009-2011; that was also a Commonwealth industrial instrument.
On 19 November 2010 approximately 86 persons were employed by Laing O’Rourke to perform building work at the Multi Level Car Park site. They were all building employees as defined and they had attended work in accordance with their respective contracts of employment. At about 9:20am on that day Messrs Clark and Bland entered the site. At about 9:30am they convened a meeting which was not authorised by Laing O’Rourke. The meeting took place in the smoking area of the Multi Level Car Park. The meeting was attended by Messrs Clark, Bland, various employees and a number of contractors engaged at the site.
At all times some or all of those employees were members of the CFMEU and/or the BLF. During the course of the meeting Messrs Clark and Bland encouraged or procured those employees to take strike action for the remainder of that working day by ceasing to perform any building work and by suggesting that they leave the site without Laing O’Rourke’s authorisation prior to the normal ceasing work time. They consequently took strike action by not performing any further work on 19 November and left the site early.
It would seem that about 75 of the Multi Level Car Park employees continued to withhold labour for the whole of the following day, 20 November 2010, without the consent of Laing O’Rourke. On the same day relevant activity also occurred on the Albert Street site, where about 20 employees were engaged to work. At about 12:15pm that day Mr Treadaway entered that site with Mr Paul Cradden (a CFMEU organiser). At 1:30pm a meeting was organised by them which was not authorised by Laing O’Rourke. It took place on Level B2 of the site. At that meeting Albert Street employees and a number of contractors who were also members of the CFMEU and/or BLF were encouraged by Mr Treadaway to take strike action for the remainder of that day by ceasing work.
It would appear that, consistent with those requests, the employees ceased work and left the site prior to their normal ceasing time. As a consequence, those employees took strike action by not performing further work on the site that day and approximately 15 of those employees continued to withhold their labour for the whole of 20 November without the consent of Laing O’Rourke. On the Brisbane Convention and Entertainment Centre site, like events occurred on 19 November. On that day, approximately 42 employees who were engaged by Laing O’Rourke were summoned to a meeting which occurred at about 12:30pm.
A little earlier, Messrs McQueen, Bragdon and Hanna had entered that site. They convened a meeting in the smoking area of the site; the meeting was not authorised by Laing O’Rourke. The meeting was attended by those officers together with a number of contractors and employees that were engaged on the Brisbane Convention and Exhibition Centre site, with one or more of those employees being members of the CFMEU and/or the BLF. As with the other instances, the officers counselled or encouraged employees to take strike action for the remainder of that working day by ceasing to perform any further work and by requesting that they leave the site without Laing O’Rourke’s authorisation before the normal ceasing time.
As a consequence of that meeting, employees at the site did take strike action on 19 November and a number of those employees continued to withhold their labour for the whole of 20 November. The action to which I have just referred was “building industrial action” within the meaning provided in s.36(1)(d) of the BCII Act. It was industrially motivated and it was constitutionally connected. It was not “excluded action” within the meaning of the Act. It follows that, by reason of those matters, the industrial action constituted “unlawful industrial action” within the meaning provided for in s.37 of the Act.
The conduct of Messrs McQueen, Bragdon, Hanna, Treadaway, Clark and Bland which I have referred to was done in their capacity as officers of the CFMEU and/or the BLF; accordingly, it was conduct of the CFMEU or the BLF pursuant to s.69(1) of the BCII Act. It follows that, by reason of those matters, the CFMEU and/or the BLF each contravened s.38 of the BCII Act. The CFMEU and the BLF today admit that the conduct of those men was conduct of officers or agents of each of those organisations, that they were therefore involved in the industrial action and accordingly are said to have taken or engaged in unlawful industrial action. There is no doubt that the action to which I have referred had a significant disruptive effect on Laing O’Rourke’s performance of its contractual obligations in respect of each of the three sites.
Both remaining respondents are corporations; in accordance with s.49(2) of the BCII Act the maximum penalty for each contravention of s.38 is $110,000.00. The respondents each admit a single contravention, and it follows that penalties may be imposed in respect of that. It is submitted today by both the applicant and the respondents that an appropriate penalty for these contraventions would be one in the sum of $55,500.00 in aggregate.
The question of whether or not that penalty ought be imposed requires me to consider the appropriateness of that quantum, having regard to the general principles. In this case, there is no doubt that the gravity of the unlawful industrial action instigated by the respondents was considerable. The overriding principle is to ensure that the penalty is proportionate to the gravity of the conduct. The purpose to be served by the imposition of penalties is essentially threefold. The first is punishment. That is, it must be something that is proportionate to the offence and in accordance with prevailing community standards. Secondly, there must be deterrence, both personal, as in the risk of reoffending, and general, to deter others who might be likely to offend. The third is rehabilitation.
The task of imposing a penalty involves, in essence, an application of instinctive synthesis. That process requires the Court to consider all the relevant factors and arrive at a single result which takes due account of them all. It has been said that a penalty must not be so great as to crush the person upon whom the penalty is imposed, nor reveal the person as a scapegoat. It must be noted that the maximum penalty is reserved for only the most egregious of contraventions, and that otherwise proportionality and consistency will commonly operate as a final check on any penalty assessed.
Courts have a very wide discretion when imposing penalties. The exercise of the discretion is generally informed by a range of factors which may or may not be relevant to the circumstances of a particular case. They have been discussed in many authorities, perhaps the most helpful of which is Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) [1999] FCA 1714, and I need not restate them here, but it is essential to make a number of general observations. First, it is important to note that previous courts have warned against the use of checklists because of the risk that they transform the process of instinctive synthesis into an application of a rigid catalogue of matters for attention. Courts also warn against comparing the case the subject of assessment with any other particular case so as to derive an amount of the penalty to be fixed, or a so-called ‘tariff.’ Courts also regard more seriously any contravention of industrial laws; in that regard I adopt the general observations made by Merkel J in Finance Sector Union of Australia v Commonwealth Bank of Australia [2005] FCA 1847.
In this case, because there has been agreement between the parties, there are some other matters that ought be considered. First, it is ultimately the responsibility of the Court to determine the appropriate penalty. In doing so, determining the amount of penalty is not an exact science. There is always a permissible range, and courts such as this have to acknowledge that one particular figure cannot necessarily be said to be more appropriate than another. There is a public interest in promoting settlement of litigation, particularly when proceedings are likely to be lengthy and complex, as is the case here. Further, the view of a specialist regulator, such as the applicant in these proceedings, is a relevant but not determinative consideration. In determining whether the proposed penalty is appropriate, the Court must examine all the circumstances of the case, and where the parties have jointly proposed a penalty it has to be remembered that it is not useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The real question for the Court is whether that figure, in the Court’s view, is appropriate in the circumstances. In answering that question, a court will not reject the agreed figure simply because it would have been disposed to select some other figure unless, of course, the other figure is outside what would otherwise be regarded as the permissible range.
Looking then to the statutory scheme, the main object of the BCII Act was to provide an improved workplace relations framework for building work to ensure that such work was carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole. The Act was introduced to reform the building and construction industry following the findings of Cole Royal Commission into the Building and Construction Industry and, to a large extent, has successfully achieved that outcome.
There are a number of factors that are relevant to the imposition of penalty in this case, and I will proceed to consider them now. I will deal first with the nature and importance of each of the three projects. Each of those projects had significant importance to both the Queensland economy and the Queensland construction industry. The Multi Level Car Park had a value of approximately $196 million and engaged up to 250 workers on any one construction day. The Brisbane Convention and Exhibition Centre project had a budget of approximately $130 million and engaged up to 350 workers on any one construction day. The Albert Street project had a value of approximately $350 million and engaged up to 250 workers on any one construction day. They were both collectively and individually significant projects.
I look then to the nature and extent of the relevant conduct, because the central element of the assessment process does require the Court to ensure that the penalty is appropriate. In assessing the gravity of the contravention, regard must be had to the prominent role of the respondents as significant industrial associations in the building and construction industry. Furthermore, there is in this instance a public display of civil disobedience occasioned by these events. They occurred in what appears to be a coordinated manner across three geographically separate sites within hours of each other. The conduct continued into the second day and was clearly deliberate.
In respect of the projects themselves, there was a one and a half day delay occasioned at the Multi Level Car Park, a two day delay on the Albert Street project and a two and a half day delay on the Brisbane Convention and Exhibition Centre project. In stating that, the respondents submits that the Court does not have before it any information as to the extent of the effect of the conduct other than its duration, although it does concede that it was not trivial, as it did involve a number of workers leaving the relevant projects on the two days. However, as the respondents contend and I accept, there is no evidence to show or to demonstrate that the conduct affected the critical path of any of the projects or caused substantial delay or loss which could not be recovered.
The evidence demonstrates that there has been prior similar conduct on the part of the respondents. Such conduct may be taken into account, but it cannot be given such weight as to lead to the imposition of a penalty that is disproportionate to the gravity of the contravention under consideration. However, it does demonstrate that the respondents have a history of engaging in the particular conduct in question; that the penalties previously imposed were insufficient to deter the respondent from re-engaging in such conduct; and, it would appear by reason of the further conduct being undertaken, that the respondents have failed to take adequate steps to prevent further contraventions.
The respondents are not be punished again for their prior conduct, but its existence does diminish any prospect of leniency by reason of good character, and may have an upward effect on penalty, albeit within the proper limits dictated by the circumstances of the immediately contravening conduct. The effect of prior conduct would be more cogent if it had been the subject of prior contraventions, which is so here. Additionally the quality of the conduct and its relevance to the industrial behaviour which the extant legislation seeks to address is determinative not whether the prior conduct arose under a different legislative regime to the extant legislation. Prior relevant conduct includes prior conduct of officials, not only from the same, but also from other branches of the respondent union. In Schedule A to the applicant’s submissions there was attached a list of previous contraventions. It identified an extensive range of prior relevant conduct which ought to be taken into consideration.
In particular, the table identifies matters in which the conduct occurred and contraventions which were recorded prior to the conduct the subject of the proceedings. It also details the circumstances of the conduct which occurred prior to the conduct in these proceedings but in respect of which contraventions were not recorded until after the conduct with which these proceedings are concerned occurred. The conduct relates to contraventions of the unlawful industrial action provisions of the BCII Act and the now defunct Workplace Relations Act 1996 (Cth).
It is to be noted that a similar table was considered by relevant Federal Courts in a number of other proceedings that were listed in the outline and which I need not expand upon here. Significantly, however, what it does reveal is that the seventh respondent, at various levels around the country, has a long history of engaging in conduct similar to the kind in this instance and that, when aggregated, the penalties total more than $1.5 million.
It is against that background that I consider the circumstances in these proceedings. There have been a number of prior contraventions by the seventh respondent for similar conduct and it follows that specific deterrence looms large as a relevant consideration. The situation also gives rise to the need for the Court to provide a particularly persuasive form of deterrence against similar future misconduct on the part of the seventh respondent. In that regard, the Court might have regard to the need for rehabilitation in circumstances where penalties imposed in the past have seemingly failed to achieve rehabilitation. Perhaps a further penalty might serve to advance that prospect.
Also of note in respect of prior relevant conduct is the fact that the seventh respondent had been party to several orders issued by Fair Work Australia under s.418 of the Fair Work Act 2009 (Cth). In respect of unlawful action taken at the Brisbane Convention and Exhibition Centre and the Albert Street projects, those orders issued, at least in one instance, not long before the offending conduct. Two orders were issued on 11 February 2010 and 11 June 2010, but perhaps most significant is an order issued on 25 October 2010. Those matters appear to demonstrate that even recent industrial tribunal orders in respect of unlawful industrial action taken by the seventh respondent at two of those sites were insufficient to deter it from taking further unlawful industrial action at those sites.
The next matter is the ‘course of conduct.’ The ‘course of conduct’ or the ‘one transaction’ principle recognises that where there is an inter-relationship between the legal and factual elements of two or more offences with which an offender has been charged, the Court must ensure that the offender is not punished twice for the same conduct. The Court is not, however, compelled in the exercise of its discretion when fixing penalties to utilise the course of conduct principle. I note in particular the observations of the majority in Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 to the effect that it is discretionary whether to apply the principle because:
“… as Owen JA said in Royer [2009] WASCA 139 at [28], “[d]iscretionary judgments require the weighing of elements, not the formulation of adjustable rules or benchmarks.” The exercise of the sentencing discretion does not fall to be exercised in a vacuum. It is a matter of judgment to be exercised according to the facts of each case and having regard to conflicting sentencing objectives …”
I note that similar observations are made by Moore J in that case. In the present case, the relevant conduct was of the same nature. It commenced within approximately a three hour period on the same date, continued for roughly the same length of time, was organised by officers and agents of the same respondents and related to projects being undertaken by the same corporation. It is in those circumstances reasonable to infer that the conduct was coordinated by the respondents with a common motive.
In its submissions, the respondent says that the Court should regard the conduct of the officers of the seventh and eighth respondents as a single course of conduct. It agrees that the contraventions occurred on a single day and were connected and, on that basis, submits that treating this as a single course of conduct is appropriate, as is contended for by the applicants.
The Court’s task is to ensure that the aggregate penalties are just and appropriate in the circumstances of the case. The aggregate penalties should not be disproportionate to the overall culpability of the contravening conduct. That single course persists in this instance.
I look also to the size of the contraveners. The respondents are plainly sufficiently large organisations by both value and membership. They have agreed to the proposed penalties and from that I infer that they have aggregate resources to meet the relevant penalties.
On the subject of deliberateness of conduct, the applicant submits that the respondents’ admitted contraventions do involve deliberate acts and on no basis could it be contended that the conduct was inadvertent. I accept that submission. It is plain that the respondents were aware of the legal consequences of their conduct. This is demonstrated by a number of factors, including the extensive history of proceedings related to similar instances of unlawful industrial action which I have earlier addressed. As set out in Schedule A, earlier industrial action by each of the respondents in relation to these sites had been the subject of orders by Fair Work Australia and Messrs McQueen, Treadaway and Bragdon were involved in those proceedings. Furthermore, they have each appeared and/or been involved in previous unlawful industrial action on behalf of the seventh respondent.
This history would seem to indicate that they would at least have a basic knowledge of the legal principles relevant to unlawful industrial action. Furthermore, Mr Treadaway was also personally named as a respondent to the original application filed by Laing O’Rourke in respect of the unlawful industrial action taken at the Brisbane Convention and Exhibition Centre site on 25 October 2010. It would be reasonable to assume that he took some steps to understand the legal consequences of his conduct following that matter.
That perhaps segues into the next point, which relates to the interests of the officers and/or agents involved in the contraventions. The agreed contraventions in this instance involved a number of officers or agents of the respondents. As I have noted at the outset, there were at least six named officers and/or agents of the respondents involved in the contraventions. Indeed, the contraventions also had the involvement of Mr David Hanna, who was the secretary of the eighth respondent. The involvement of such a senior officer is contended to be an aggravating factor in the respondents’ submission. However, notwithstanding the involvement of those senior officers, there is no suggestion that the organisations through their management committees were involved. While that might be correct, it seems difficult to imagine that their management committees could not have been aware that this activity was taking place, even if it came into being afterward. This perhaps ties back in to the question raised earlier: what happened in relation to other matters that have come to the attention of the Court since then? Had the union taken adequate action to address rogue action on behalf of its officers.
In any event, the next consideration involves post-contravention conduct. In this instance, the conduct of the contraveners after the contraventions occurred is relevant, and the Court should look to whether the contravener has exhibited contrition, taken corrective action and cooperated with the relevant enforcement authorities. It is contended that cooperation can be exhibited in a number of ways, such as by entering into agreements of facts or agreements in penalties. Those matters are relevant in this instance. It is also said that contrition might be manifest in some expression of remorse, for instance, by way of provision of an apology or a genuine expression of regret.
There is in this instance no evidence of any such contrition or remorse. Indeed, as I noted earlier, there is evidence that some individual officers and agents of the seventh respondent have since been involved in other instances of industrial action which other courts and/or industrial tribunals have determined to be unlawful.
In the applicant’s submissions three instances were noted. For instance, the seventh respondent was fined $550,000.00 jointly and severally with another union in respect of unlawful industrial action which was found to have occurred during May 2011. Another instance involved an occasion where Fair Work Australia found that unlawful industrial action had been organised at a Lend Lease Project on 5 October 2012, and that Mr Bragdon was one of the officers or agents at the relevant meetings in that case. Finally, Mr Hanna was personally fined $7,500.00 for unlawful industrial action he was found to have been involved in during May 2011.
In terms of general and specific deterrence, it is not challenged that the circumstances of this case warrant penalties that meet the objectives of both considerations. In relation to general deterrence, Merkel J made observations in Finance Sector Union of Australia v Commonwealth Bank of Australia which are relevant in this instance. He noted:
“However, the factor of greatest significance in relation to penalty in the present case is the need to impose a penalty that will constitute a general deterrent to others who may be disposed to engage in proscribed conduct of a similar kind. In Leahy at [23] I cited the observations of Finkelstein J in Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [2001] ATPR 41-815 to the effect that, for a penalty to have the desired effect, it must be imposed at a meaningful level and therefore must be such that a potentially offending corporation will see the penalty as not worth the prospect of gain.”
Similar comments have been endorsed in other cases. I note particularly the observations of Tracey J in Alfred v Construction, Forestry, Mining and Energy Union [2011] FCA 556. In this instance, the circumstances of the case also require that the penalties meet the objective of specific deterrence. As I have noted, this is particularly the case in respect of the seventh respondent, given the extent of its previous contraventions of the Act and other industrial legislation.
I note in passing that while much has been said of the seventh respondent, the comments have equal force in respect of the eighth respondent, although I accept the submissions made on behalf of the respondents that the relationship between the seventh respondent and the eighth respondent is one such that the distinction between them is largely one of law, and to that end somewhat more artificial, but that in all respects the seventh respondent appears to be the primary element of the two industrial organisations.
Having considered each of the relevant factors that ought to be looked at, one then has to move to examine the matter in totality. As a final check on the assessment as to the appropriateness of any penalty to be imposed, the Court is required to consider whether the overall penalty for multiple contraventions is appropriate for the conduct in question. This requires a final overall consideration of the sum of penalties determined in respect of each individual contravention, rather than resolving the matter on the appropriate total penalty and dividing that penalty among the number of individual contraventions. That is of particular moment in this case, where there are two respondents and three events, although they are treated as one.
The Court must fix a penalty appropriate for each individual contravention and then, as a check at the end of the process, consider whether the aggregate is appropriate for the total contravening conduct involved. It was submitted on behalf of both the applicant and the respondents that a proper application of the totality principle would see the proposed penalty fall within the range that would be appropriate having regard to the entirety of the conduct in question. I have considered in particular the submissions made by the applicant and the respondents. I am particularly mindful that my role is simply to determine whether the penalty is one that falls within the range irrespective of whether it is a penalty that I would impose myself. Having regard to all the matters I have referred to, I am satisfied that it is indeed an appropriate penalty as it does fall within the range, and I will impose a penalty in the amount of $55,500.00.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Burnett
Associate:
Date: 10 December 2013
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