Fair Work Ombudsman v Alexjax Corp Pty Ltd (No 2)
[2023] FedCFamC2G 445
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Alexjax Corp Pty Ltd (No 2) [2023] FedCFamC2G 445
File number: MLG 3026 of 2021 Judgment of: JUDGE SYMONS Date of judgment: 29 May 2023 Catchwords: INDUSTRIAL LAW – Fair Work – default judgment entered previously for failure to comply with compliance notice – whether penalty should be imposed and level of penalty to be imposed – where respondent failed to engage in proceeding – where steps required under compliance notice still unperformed at time of penalty hearing – consideration of nature and circumstances of the conduct – consideration of any contrition, corrective action and cooperation with enforcement authority – whether contraventions should be grouped - the need for specific and general deterrence – penalty order made Legislation: Corporations Act 2001 (Cth) s. 601AH
Fair Work Act 2009 (Cth) ss. 90, 117, 545, 546, 547, 550, 557, 716
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r. 13.06
Hair and Beauty Industry Award 2010 cll. 17, 21.2
Cases cited: Australian Building and Construction Commissioner v Pattinson & Anor (2022) 399 ALR 599; [2022] HCA 13
Fair Work Ombudsman v Alexjax Corp Pty Ltd & Anor [2022] FedCFamC2G 1037
Fair Work Ombudsman v Tester [2021] FCCA 771
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of last submission/s: 12 May 2023 Date of hearing: 12 May 2023 Place: Melbourne Solicitor for the Applicant: Fair Work Ombudsman First Respondent: No appearance Second Respondent: No appearance ORDERS
MLG 3026 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: ALEXJAX CORP PTY LTD (ACN 641 221 614)
First Respondent
JACK HANNA
Second Respondent
order made by:
JUDGE SYMONS
DATE OF ORDER:
29 May 2023
THE COURT ORDERS THAT:
1.Pursuant to s 545(1) of the Fair Work Act 2009 (Cth) (FW Act), the First Respondent within 28 days of the order:
(a)pay into the nominated bank account of:
(i)Steve Robles, the amount of $290.73 (gross); and
(ii)Alisha Gaudion, the amount of $2,576.62 (gross);
(b)calculate and pay any additional superannuation contributions into the nominated superannuation funds of Alisha Gaudion, Ashlee Bottomley and Imogen Weighill for additional contributions required to be paid on the amounts set out below in subparagraphs 2(b) to 2(d), pursuant to clause 21.2 of the Hair and Beauty Industry Award 2020; and
(c)provide proof to the Applicant that the amounts referred to above in subparagraphs 1(a) and 1(b) have been rectified.
2.Pursuant to ss 545(1) and (2) of the FW Act, the First Respondent pay interest to Steve Robles, Alisha Gaudion, Ashlee Bottomley and Imogen Weighill (calculated in accordance with the applicable pre-judgment interest rate prescribed by the Federal Court of Australia) on the following amounts:
(a)$290.73 with respect to Mr Robles;
(b)$2,576.62 with respect to Ms Gaudion;
(c)$1,253.18 with respect to Ms Bottomley; and
(d)$1,261.08 with respect to Ms Weighill.
3.Pursuant to s 546(1) of the FW Act, the First Respondent pay a pecuniary penalty of $22,125 to the Commonwealth in respect of two contraventions of s 716(5) of the FW Act.
4.Pursuant to s 546(1) of the FW Act, the Second Respondent pay a pecuniary penalty of $5,350 to the Commonwealth in respect of his involvement, within the meaning of s 550(2) of the FW Act, in the two contraventions of s 716(5) of the FW Act by the First Respondent.
5.The Applicant has liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION AND BACKGROUND
On 24 November 2021, the Fair Work Ombudsman (FWO) commenced proceedings against Alexjax Corp Pty Ltd (Alexjax) and Mr Jack Hanna (Mr Hanna).
On 14 December 2022, the Court entered default judgment for the FWO against Alexjax and Mr Hanna. This decision involved findings that Alexjax and Mr Hanna had failed to comply with procedural rules and orders made by the Court including that they file and serve a response or any defence to the FWO’s application and that they give a notice of address for service.
On 14 December 2022 the Court made declarations in the following terms:
1.Upon admissions that the First Respondent and the Second Respondent are taken to have made consequent upon their non-compliance with the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth) (Rules) and orders of this Court:
(a)The First Respondent contravened s 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with four compliance notices, being one compliance notice issued on 14 May 2021 relating to Steve Robles, two compliance notices issued on 21 May 2021 relating to Alisha Gaudion and Ashlee Bottomley and one compliance notice issued on 25 June 2021 relating to Imogen Weighill (Compliance Notices);
(b)The Second Respondent was involved in, within the meaning of s 550(2) of the FW Act, each of the four contraventions by the First Respondent of s 716(5) of the FW Act and is taken to have contravened s 716(5) of the FW Act on four occasions.
In addition to these declarations, the Court made orders that required Alexjax, within 28 days, to take steps of the kind that were required under each of the Compliance Notices. In particular, Alexjax was ordered to calculate and pay to each of the affected employees, amounts outstanding for entitlements under the FW Act and the Modern Award (being the Hair and Beauty Industry Award 2010) and for superannuation. At the time of writing, Alexjax had only partially complied with these orders.
The Court also made orders in contemplation of a penalty hearing on 12 May 2023. They included (in respect of the respondents) that by 7 April 2023 they file and serve affidavit evidence and written submissions on the question of penalty. Neither Alexjax nor Mr Hanna filed any material responsive to these orders and when the matter was called on for hearing on 12 May 2023 there was no appearance by or on behalf of either respondent. This was not an altogether surprising occurrence as Ms Willoughby, who appeared for the FWO, produced to the Court an email from Mr Hanna sent earlier that morning in which he stated “Hi Laura. Apologies I can’t attend as I need to work and can’t leave the shop”.[1]
[1] Exhibit “A1”.
In these circumstances and where Mr Hanna had been present when default judgment was entered and procedural orders made and where the FWO produced evidence of service on both respondents of a sealed copy of the declarations and orders made on that day, I am satisfied that it is appropriate to determine the question of penalty without further recourse to either respondent. The Court’s power to make orders on default have again been engaged, including by reason of r 13.06(1)(e) of the Rules, which provides that if a party to a proceeding is absent from a hearing, the Court may, amongst other things, proceed with the hearing generally or in relation to any claim for relief in the proceeding.
THE FWO’S CASE
The FWO relied upon:
·its amended statement of claim filed 21 February 2022;
·the affidavit of Laura Willoughby affirmed on 4 May 2022 (First Willoughby Affidavit);
·the affidavit of Laura Willoughby affirmed on 10 March 2023 (Second Willoughby Affidavit);
·the affidavit of Fair Work Inspector Meg Dalkin affirmed on 10 March 2023 (FWI Dalkin Affidavit); and
·written submissions filed on 10 March 2023.
The FWO submitted that penalties in the amount of $9,900 for each one of the four separate breaches by Alexjax of s 716(5) of the FW Act and with a discount of 10% on account of totality (for a total of $35,964) was appropriate. The FWO sought penalties in the amount of $1,998 reflecting Mr Hanna’s involvement in each one of the four contraventions and with a discount of 10% on account of totality (for a total of $7,193).
This was in circumstances where the maximum penalty that the Court might impose on Alexjax for each contravention of s 716(5) of the FW Act was $33,000 (based on a penalty unit at relevant times of $222) and where the maximum penalty the Court might impose on Mr Hanna for his involvement in each contravention of s 716(5) of the FW Act was $6,660. The penalties sought in each case correspond roughly to 27% of the maximum amount prescribed under the FW Act.
Contraventions and grouping
This proceeding concerns four contraventions of s 716(5) of the FW Act by Alexjax as employer and four contraventions of s 716(5) of the FW Act by Mr Hanna through his involvement in each of these contraventions. The contraventions reflect the failure of Alexjax to comply with four contravention notices – the Robles Compliance Notice, the Guadion Compliance Notice, the Bottomley Contravention Notice and the Weighill Compliance Notice - that were issued in respect of entitlements owing to four different former employees of Alexjax.
The FWO emphasised the distinct character of the four contraventions; they related to a different employee and, with the exception of the Guadion and Bottomley Compliance Notices, were given to Alexjax on different dates. Self-evidently, they required Alexjax to take action specific to each employee and their outstanding entitlements. The FWO submitted that as the Compliance Notices created four separate opportunities for Alexjax to take a particular course of action this made it appropriate to treat each contravention as “separate and distinct”, including for the purposes of assessing penalty.
In support of this submission the FWO noted (as is the case) that contraventions of s 716(5) do not engage the statutory grouping provision (s 557(1) of the FW Act) and therefore any grouping could only occur on an application of common law course of conduct principles. The FWO submitted that in circumstances where the onus to demonstrate a coincidence or overlap of the factual or legal elements of the contraventions was on the respondent and it had failed to put any material before the Court, including on penalty, there was no basis to group any two or more of the four contraventions. Accordingly, each contravention of s 716(5) of the FW Act should attract a separate penalty.
I accept that the obligations in respect of each employee were separate and distinct, insofar as they were identified in their own compliance notice. However, some circumspection is required before discounting the possibility that through a legal and/or factual interrelationship, two or more of the four contraventions might more appropriately be regarded as emanating from the “one transaction”.
It is true that neither respondent put on material, nor made submissions that addressed the issue of grouping. However, it is not the case that there was no evidence before the Court to illuminate the circumstances in which the contraventions occurred. A picture emerges from the FWI Dalkin Affidavit that the FWO (through Jonathan Whetlor of the FWO’s Notice Assistance Team - Enforcement) corresponded with Mr Hanna on each of 8 June 2021, 9 June 2021, 17 June 2021, 18 June 2021 and 6 July 2021 in relation to what was described as “the First Respondent’s compliance with the Robles Compliance Notice, Guadion Compliance Notice and Bottomley Compliance Notice” and the First Respondent’s “capacity to comply with those notices”.[2]
[2] Refer paragraph 12 of the FWI Dalkin Affidavit.
The material annexed to the FWI Dalkin Affidavit includes a file note made by Mr Whetlor of a phone conversation with Mr Hanna on 8 June 2021.[3] In that file note, Mr Whetlor acknowledged the “ER position in relation to VIC lockdowns and financial predicament this has put the business in” and “confirmed ER had received 3x CN notice for 3x different EEs”. Mr Whetlor attributed to Mr Hanna the following responses:
-ER provided some detail about the commencement and employment end dates of the EEs and the various lockdowns the business had faced.
-ER said he had been unable to borrow money in the current climate.
-ER said he had not been able to open the salon.
-ER asked if FWO could suggest other access points for funding, including his salon, but the industry was suffering as a whole due to lockdowns.
-ER acknowledged that he cannot enter a payment plan and is suffering personal financial hardship also.
[3] Refer annexure “MD-7”.
Likewise, in a file note made by Mr Whetlor of a phone conversation with Mr Hanna on 17 June 2021, the author recorded his observation that “Jack was distressed and upset during the call” and noted that Mr Hanna had advised:[4]
-The salon opened last Friday following latest Melbourne lockdown and is now trading
-He is aware that he owes around $12K all up across the 3 CN’s
-Is living hand to mouth now and cannot pay
-He has been refused government help in terms of lockdown grants otherwise he would use this to pay his poor employees
-He is unable to address the current CN for $1200, he has no money and is trying to keep his business afloat
[4] Refer annexure “MD-9”.
The FWI Dalkin Affidavit also attached material provided by Mr Hanna to Mr Whetlor on 17 June 2021 in what appeared to be an attempt to demonstrate that Alexjax was suffering financial hardship. The material included correspondence from Business Victoria which recorded that Mr Hanna’s application for a grant from the Business Support Fund was found to be ineligible, and payslips for each of Ms Gaudion, Ms Bottomley and Mr Robles.[5]
[5] Refer annexure “MD-11”.
Having regard to these communications and material and noting that they occurred or were provided across a period that was roughly co-extensive with the period over which Alexjax was required to take the steps identified in the Robles Compliance Notice, the Gaudion Compliance Notice and the Bottomley Compliance Notice, I consider that in substance the three contraventions of these Compliance Notices should be regarded as forming part of the “one transaction”. There was a uniformity in the approach taken by both the FWO and by Alexjax to questions of compliance with these notices and it is evident that the financial circumstances of Alexjax explained (at that time) the decision of Alexjax (through its director, Mr Hanna) not to comply with the Compliance Notices. Furthermore, two of the Compliance Notices were issued on the same date (and required that the steps be taken by the same date) and all three of the Compliance Notices identified breaches by Alexjax of the FW Act (ss 90(2) and 117(2)) and breaches of the Modern Award (cl 17).
As a result, I will assess penalty on the basis that there were two contraventions of s 716(5) of the FW Act; I do not consider there is a proper basis on the evidence to find that the failure by Alexjax to comply with the Weighill Compliance Notice was part of the same course of conduct.
The status of the first respondent
The FWO produced evidence concerning the status of the first respondent, Alexjax, which was that:
(a)on 23 October 2022 Alexjax was deregistered pursuant to s 601AB of the Corporations Act 2001 (Cth) (Corporations Act);[6]
(b)on 1 March 2023 – having first given notice to Mr Hanna of its intention to do so – the FWO made an application to the Australian Securities and Investments Commission (ASIC) to reinstate Alexjax;[7] and
(c)on 10 March 2023, ASIC notified the FWO that Alexjax had been reinstated to the register, which position was confirmed through a company search performed on the same date.[8]
[6] Annexure “LW-17” to the Second Willoughby Affidavit.
[7] Annexure “LW-18” to the Second Willoughby Affidavit.
[8] Annexures “LW-19” and “LW-20” to the Second Willoughby Affidavit.
The FWO submitted that by reason of s 601AH(5) of the Corporations Act, the effect of its reinstatement was that Alexjax was taken to have continued in existence as if it had not been deregistered and I accept this to be the case. It follows that there is no impediment to, or lack of utility in, the Court imposing a penalty on Alexjax should it consider this to be appropriate.
Principles governing the determination of penalty
As the FWO noted in its submissions, the approach to determining penalty was revisited by the High Court in the decision of Australian Building and Construction Commissioner v Pattinson & Anor [2022] HCA 13 (Pattinson). In that case, the majority upheld the Commissioner’s appeal and confirmed that the purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with the provisions of the FW Act by the deterrence of further contraventions of the FW Act by those responsible and by (like) others. The Court rejected the approach implicit in the decision of the Full Court (the subject of the appeal) that a penalty must be proportionate to the seriousness of the conduct that constituted the contravention. The majority held instead that “[t]he power conferred by s 546 of the Act is not subject to constraints drawn from the criminal law and there is no place for a ‘notion of proportionality’…in a civil penalty regime”.[9] However the Court did accept that s 546 requires the Court to ensure that any penalty “strikes a reasonable balance between deterrence and oppressive severity”.[10] It was only in this more qualified sense that the concept of “proportionality” had any role to play.
[9] See Australian Building and Construction Commissioner v Pattinson & Anor [2022] HCA 13 at [10].
[10] Ibid at [41].
The High Court also referred to the several factors identified by French J in Trade Practices Commission v CSR Ltd [2009] FCA 521 which informed the assessment of a penalty of an appropriate deterrent value. This list revealed that both the circumstances of the contravenor and the circumstances of the contravention may be relevant to the assessment of whether the maximum level of deterrence is called for.[11] However, the Court repeated the caution that the list of possible relevant considerations should not be approached as a “rigid catalogue of matters for attention” and instead the task of the court remains to determine what is an “appropriate” penalty in the circumstances of the particular case.[12]
[11] Ibid at [57].
[12] Ibid at [18] and [19].
Deterrence
The FWO took the Court to the decision of Fair Work Ombudsman v Tester [2021] FCCA 771 in which Judge Jarret (as his Honour then was) referred at [28]-[29] to the importance of the Fair Work Inspector’s power to issue compliance notices and repeated the sentiment that penalties for non-compliance should be set at a level which demonstrates that there are serious consequences for failing to comply with a compliance notice and not seen as just the cost of doing business. The FWO submitted that the Court should impose a penalty to send a message that non-compliance with a statutory notice is “viewed by the contravenor and others as an economically irrational choice” (referring to Pattinson at [66]).
As far as the need for specific deterrence was concerned, the FWO submitted that it was instructive to look at the remedial steps that had been taken by Alexjax to ensure that no contravention would occur in the future. In this regard, the FWO noted that despite orders having been made on 14 December 2022 that Alexjax take all outstanding steps under the Compliance Notices, it had still (as at 12 May 2023) only partially rectified its non-compliance. It had not paid in full the amounts owing to Mr Robles and Ms Guadion (the amounts of $233 and $2,576.62, respectively, remained outstanding) and had not provided evidence to the FWO of having made additional superannuation contributions as required by the Guadion Compliance Notice, the Bottomley Compliance Notice and the Weighill Compliance Notice.
Regarding Mr Hanna, the FWO made the submission that there was a need for specific deterrence because he appeared to be continuing to operate in the hair and beauty industry and accordingly, there was a likelihood that he currently employed staff and would continue to do so in the future.
In support of this submission, the FWO produced a copy of what was described as pages viewed by FWI Dalkin on the website on 1 March 2023;[13] “Heaven Salons” being the trading name of Alexjax at relevant times. The “about us” page referred to Jack Hanna (company director) and noted that he had started his career in Melbourne back in 1982 and was still passionate about hair and customer service. It contained the invitation to “[e]xperience the unique style he will bring to your hair”. The “contact us” page included a street address (422 Bourke Street Melbourne) that was the same as the registered office for Alexjax, as did the “book now” page. The FWO also produced a copy of a page that bore the heading “Heaven Salons hair trends for 2023”.
[13] Annexure “MD-20” to the FWI Dalkin Affidavit.
Having regard to this material and the explanation offered by Mr Hanna for his failure to attend the hearing on penalty, I have no difficulty in finding that he continues to operate a business in the hair and beauty industry.
Nature, extent and circumstances of the conduct and loss
The giving of the four Compliance Notices occurred in circumstances where the FWO had commenced an investigation into Alexjax in around March 2021.
As a result of the investigations, three different Fair Work Inspectors formed a reasonable belief that four former employees of Alexjax had been underpaid entitlements pursuant to the Modern Award and/or the FW Act. The entitlements related to payment of annual leave on termination of employment, payment of the minimum wage for ordinary hours worked, payment of wages in lieu of notice of termination and payment of annual leave loading.
The four Compliance Notices required that Alexjax take steps to calculate and rectify the underpayment of the former employees and to produce reasonable evidence that such steps had been taken. As noted above, at the time of writing Alexjax had only partially complied with these requirements.
The FWO submits that the Compliance Notices each gave the respondents an opportunity to rectify the contraventions and to enjoy the benefit of protection from civil remedy proceedings in respect of these contraventions. The FWO made an effort to discuss the Compliance Notices with the respondents and to secure their compliance with them, but the respondents elected not to take that opportunity.
In financial terms, the loss to the former employees was a total sum of $12,778.94 in wages and superannuation contributions of $805.50. It was significant (according to the FWO) that the respondents had not made any attempt to rectify their non-compliance with the Compliance Notices and to make back-payments to the Employees until after these proceedings had been commenced on 24 November 2021. The first partial payments were made on 30 January 2022 and 14 March 2022 and Ms Bottomley and Ms Weighill were back paid in full on 11 January 2023. However, some 21 months after the due dates for compliance had passed, each of the four employees continued to be impacted by a denial of their full entitlements.
The FWO characterised the failure of the respondents to comply with the Compliance Notices for this protracted period as involving a deliberate disregard for the enforcement powers of the FWO and the compliance protections of the FW Act. The FWO also emphasised that the conduct, or properly inaction, of the respondents had caused significant costs to the public by reason of the need to bring this matter before the Court to enforce compliance and to recover underpayments owed to the former employees.
Involvement by Mr Hanna in the contravening conduct
The FWO submitted that at all material times, Mr Hanna was responsible for the overall operation, management and control of Alexjax. Mr Hanna was the person with whom the FWO corresponded in respect of its investigation of Alexjax and then in respect of the Compliance Notices. Mr Hanna has, at all times, been the sole director of Alexjax and in a practical sense, is intimately connected with Alexjax and the Heavens Salon business.
Corrective action, cooperation and contrition
The FWO acknowledged that Alexjax had taken some corrective action to rectify its non-compliance by paying some of the amounts owed to the former employees pursuant to the Compliance Notices.
The FWO submitted that there had been some limited engagement from the respondents during this proceeding; this taking the form of intermittent email correspondence from Mr Hanna and Mr Hanna’s appearance at the directions hearing held on 3 February 2022 and the default judgment hearing on 9 December 2022. However, overall, the participation by the respondents in the proceeding was underwhelming, despite the attempts made by the FWO to engage with them to secure their compliance with outstanding aspects of the Compliance Notices and orders of the Court made on 3 February 2022 and 6 April 2022. In this regard I note that the First and Second Willoughby Affidavits provide evidence of the steps taken by the FWO to assist the respondents (through Mr Hanna) to understand the nature of the proceeding, to navigate the Court’s website and to electronically file documents. The FWO also reminded the respondents of their obligations to comply with Court orders and made concerted efforts to obtain from the respondents their agreement to a Statement of Agreed Facts, this being the subject of orders made on 3 February 2022 with the respondents’ consent. This never occurred and it is fair to say that the respondents were generally non-committal in their interactions with the FWO. On two occasions, Mr Hanna made representations about payments that would be made but which never materialised.[14]
[14] Refer [7]-[11] of the Second Willoughby Affidavit.
Financial circumstances of the respondents
A further consequence of the failure of the respondents to participate in the penalty stage of the proceeding is that the Court has no information about the financial circumstances of either Alexjax or Mr Hanna. I have already found that Mr Hanna is operating a hair salon although that fact alone does not tell me anything about his current financial situation. However, it would be reasonable to infer that it is improved from the time when the business was not trading due to COVID-19 lockdowns and restrictions.
The FWO submitted that in any case and regardless of the respondents’ financial position, it was necessary to impose a penalty at a meaningful level.
CONSIDERATION
In this case, the primary object of deterrence has important work to do. Although there is evidence before the Court that suggests that Alexjax was experiencing financial difficulty at the time that the contraventions occurred, its failure to fully rectify its non-compliance or to engage meaningfully in the proceeding that was issued because of its lack of compliance, reflects poorly on it and its director, Mr Hanna. I do not consider that either respondent has approached the question of compliance in a manner that inspires confidence that, absent appropriate sanction, the same (or similar) conduct would not be repeated.
I am reinforced in this view by the fact that on the last occasion that the matter was before me on 9 December 2022, Mr Hanna told the Court that the outstanding entitlements would be paid within four to five weeks and that this has not occurred (see Fair Work Ombudsman v Alexjax Corp Pty Ltd & Anor [2022] FedCFamC2G 1037 at [28]). I also take into account the failure of Mr Hanna to appear at the penalty hearing and his explanation given for failing to do so which served as a reminder that he continues to operate a business and that those interests take priority to this proceeding and the matters to which they are directed.
In fixing an appropriate penalty, I acknowledge and take account of the financial loss to each of the former employees and the burden that taxpayers ultimately bear through the financing of proceedings such as this one which will generally be avoided where an employer complies with a compliance notice or approaches the issue of non-compliance with a deeper commitment to its rectification.
In all the circumstances of this case, I set a penalty for the first respondent for the two breaches of s 716(5) of the FW Act at $22,125. This represents approximately 33% of the maximum. I set a penalty for the second respondent for being involved in the two breaches of s 716(5) at $5,350. This represents approximately 40% of the maximum.
I have considered whether there should be a further adjustment on an application of the totality principle and to ensure that the penalties are proportionate in that they strike a reasonable balance between deterrence and oppressive severity. Where there is no evidence from the respondents as to their current financial situation and capacity to pay any penalty, I cannot be satisfied that there is a further need to recalibrate the amounts identified above.
Accordingly, I will make orders that the first and second respondent pay penalties in the amounts referred to in [43] as well as orders that require the first respondent to take the steps still outstanding under the Compliance Notices.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 29 May 2023
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