Fair Work Ombudsman v Freedom Fuels Australia Pty Ltd
[2012] FMCA 1271
•5 November 2012
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v FREEDOM FUELS AUSTRALIA PTY LTD | [2012] FMCA 1271 |
| Catchwords: INDUSTRIAL LAW – Awards – breach of award – underpayment of wages – agreed statement of facts – breaches admitted – factors going to penalty – evidence of contrition – penalty imposed. |
| Legislation: Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) |
| Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 Fair Work Ombudsman v Australian Shooting Academy Pty Ltd [2011] FCA 1064 Fair Work Ombudsman v Kentwood Industries Pty Ltd(No.3) [2011] FCA 579 Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 White v Construction, Forestry, Mining and Energy Union [2011] FCA 192 |
| Applicant: | FAIR WORK OMBUDSMAN |
| Respondent: | FREEDOM FUELS AUSTRALIA PTY LTD |
| File Number: | BRG 467 of 2012 |
| Judgment of: | Burnett FM |
| Hearing date: | 5 November 2012 |
| Date of Last Submission: | 5 November 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 5 November 2012 |
REPRESENTATION
| Solicitors for the Applicant: | FAIR WORK OMBUDSMAN |
| Counsel for the Respondent: | Mr L. S. Reidy |
| Solicitors for the Respondent: | HARMERS WORKPLACE LAWYERS |
ORDERS
THE COURT DECLARES THAT:
The Respondent breached clauses 20(b)(i), 21(b)(i), 22(b)(i), 23(b)(ii), 23(b)(iii), 23(b)(v), 23(b)(vi), 23(c), 24(b)(i) and 6(f)(iv)(3) of the Vehicle Industry – Repair, Service and Retail Award 2002.
THE COURT ORDERS THAT:
Pursuant to section s 719(1) of the Workplace Relations Act 1996, the Respondent pay $46,200 as a pecuniary penalty in respect of the contraventions identified in paragraph 1 above.
Pursuant to section 841(a) of the Workplace Relations Act 1996, the Respondent pay to the Commonwealth Consolidated Revenue Fund the penalty referred to in paragraph 2, on or before 3 December 2012
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 467 of 2012
| FAIR WORK OMBUDSMAN |
Applicant
And
| FREEDOM FUELS AUSTRALIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
In this application, the Fair Work Ombudsman seeks the imposition of penalties against the respondent, Freedom Fuels Australia Pty Ltd, for contraventions of the Workplace Relations Act 1996 (Cth) (“WR Act”) and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (“Transitional Act”). It is alleged that the respondent failed to pay 234 employees[1] wages in the sum of $191,197.05 between May 2006 and July 2009.
[1] The details of those employees are particularised in Attachment A to the Statement of Claim.
Broadly, the Statement of Claim seeks declarations and consequential orders in relation to the imposition of penalties. The particulars of the claim include 10 contraventions of award provisions which can best be grouped together as giving rise to 4 express contraventions which are the subject of the complaint. Colloquially they are referred to as:
a)the weekend penalties contravention;
b)the public holiday contravention;
c)the shift allowances contravention; and
d)the overtime allowances contravention.
The manner in which the contraventions occurred will be explained shortly.
It is important to note that the contraventions occurred over a period spanning a time before the commencement of the Transitional Act and the introduction of some significant provisions to the WR Act which impacted the Commonwealth’s absorption of jurisdiction under various awards. Those matters are addressed in the Transitional Act, and it is those difficulties that seem to have given rise to the problems which have beset the respondent today.
The relevant award was the Vehicle Industry – Repair, Service and Retail Award 2002 and the parties agree that the award applies in respect of the contraventions for the following reasons. Firstly, prior to 27 March 2006, the award applied because the respondent was bound by its membership of the Australian Industry Group (“AIG”) which, by reason of s.149(1)(f) of the WR Act, applied prior to amendments resulting from the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (“Work Choices Act”).
Secondly, from 27 March 2006 the provisions of the Work Choices Act modified the way in which the award applied. The award was, effectively, split into two instruments: a pre-reform federal award and an Australian Pay and Classification Scale (“APCS”) classification.
Third, the award was classified in a pre-reform wage instrument pursuant to s.178 of the WR Act and, as a result, there was taken to be a preserved APCS which set the basic periodic rates of pay for employees under s.208(1) of the WR Act.
Fourth, by Item 4(3) of Schedule 4 (Transitional and other provisions) of the Work Choices Act, the award was deemed to be replaced by a pre-reform federal award in the same terms as the award because the respondent was bound by the award as a member of the AIG. It continued to be bound by the award in its new character as a pre-reform federal award.
Fifth, the loadings for working overtime, shift work and penalty rates were allowable award matters and continued to have effect.
Sixth, the relevant period for the purpose of these proceedings ceased on 28 July 2009 because of the Freedom Fuels Pty Ltd Collective Agreement 2009, which applied after that date. Those particular difficulties were manifestly evident in a letter forwarded to the respondent by the Fair Work Ombudsman on the date of 10 August 2010 where it noted that from 26 July 2007 to 29 July 2009 the minimum rates of pay for the employees were covered by the APCS derived from the Motoring Services Award – South-Eastern District 2003.
However, the provisions of the federal award in relation to the overtime spread of hours and penalty rates still applied to the employers and employees classified in the award. That difficulty seems to underlie the issues that give rise to the complaint here today. The maximum penalty that might be imposed in relation to any contravention is, in the case of a corporation, 300 penalty units. Each penalty unit has a value of $110.00 or, in other words, $33,000.00 per contravention.
The principles relevant to the Court’s approach in determining the right penalty are summarised by the observations of McKerracher J in Fair Work Ombudsman v Kentwood Industries Pty Ltd(No 3) [2011] FCA 579 commencing at [9], where his Honour stated:
“Recently in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) (2010) 199 IR 373, Barker J set out relevant considerations as to the imposition of penalty. His honour’s analysis was upheld by the Full Court on appeal in McDonald v Australian Building and Construction Commissioner [2011] FCAFC 29. Barker J stated (at [4] to [11]):
4 Sentencing (which the imposition of a civil penalty is an instance of) is one of the most, if not the most difficult tasks that judicial officers perform: CFMEU v Williams [2009] FCAFC 171; (2009) 262 ALR 417 (Williams) at [28].
5 The overriding principle is to ensure that the sentence is proportionate to the gravity of the contravening conduct: Attorney General (SA) v Tichy (1982) SASR 84 at 92-93.
6 The purpose to be served by the imposition of penalties is at least threefold:
(1) Punishment, which must be proportionate to the offence and in accordance with prevailing standards;
(2) Deterrence, both personal (assessing the risk of re-offending) and general (a deterrent to others who might be likely to offend); and
(3) Rehabilitation.
See Ponzio v BP Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543 (Ponzio), Lander J at [93]-[94].
7. The task which a sentencing judge is faced with is one of “instinctive synthesis”: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 (Australian Ophthalmic Supplies), Gray J at [27] and Graham J [55]. Such a process requires that a court take into account all relevant factors and to arrive at a single result which takes due account of them all: see Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [74]- [76];Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 (Markarian), Gleeson CJ, Gummow, Hayne and Callinan JJ at [37]-[39]. The penalty must not be so great as to crush the person upon whom the penalty is imposed or reveal the person as a scapegoat: Ponzio at [93] (Lander J); McDonald v R [1994] FCA 956; (1994) 48 FCR 555 at 563. The maximum penalty is reserved for only the most serious of contraventions: Markarian at [31]. Proportionality and consistency commonly operate as a final check on the penalty assessed: Australian Ophthalmic Supplies at [53].”
It is with those matters in mind that I approach the process of determination of penalty. His Honour’s observations at [10] in that regard are in accordance with the submissions made by the applicant:
“… that it is appropriate in this proceeding to take a four step approach to determining an appropriate penalty.
1. First, each contravention of each separate obligation sourced in the Standard or the NAPSA is a separate contravention of an applicable provision for the purposes of s 719 of the WR Act. However, pursuant to s 719(2), multiple contraventions of the same applicable provision may be treated as a single contravention, if the court considers them to be part of a single “course of conduct.” It is necessary to identify the maximum penalty for each separate contravention.
2. Second, it is necessary then to consider an appropriate penalty to impose in respect of each contravention (whether a single contravention alone or as part of a course of conduct), having regard to all of the circumstances of the case.
3. Next, to the extent that two or more contraventions have common elements, this may be taken into account when considering what is an appropriate penalty for each contravention. The respondents should not be penalised more than once for the same conduct. The penalties imposed by the court should be an appropriate response to the respondents’ actions.
4. Finally, having fixed an appropriate penalty for each separate contravention, group of contraventions or course of conduct, a final review of the aggregate penalty is necessary to determine whether it is an appropriate response to the conduct which led to the contraventions. Put another way, a court may apply an overall “instinctive synthesis”: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 (at [55] and [78]) per Graham J. In the same case, Gray J said (at [23]):
“What [is] required [is] to determine an appropriate level of penalty for each contravention, as if it were a separate offence, and then look at the aggregate of those penalties in the light of the overall conduct of the [offender], to form a view as to whether that aggregate [is] out of proportion to that overall conduct.”
And (at [27]):
“... Graham J and I proceed by what the High Court has called “instinctive synthesis”. See Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [37], where the majority approved what was said by Gaudron, Gummow and Hayne JJ in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [74]- [76].”
Buchanan J described it as follows (at [102]):
“The totality principle is a guide to sentencing practice. It must be adapted to the circumstances. It is designed to avoid injustice in the overall result. It is not a principle which suggests that a penalty should necessarily be reduced from an aggregate total fixed for multiple offences. Rather, it involves a final check to ensure that a total or aggregate penalty is not, in all the circumstances, excessive.””
I am guided by his Honour’s remarks and the matters he has adopted in terms of my consideration of this application. In this case there are four grouped contraventions which need to be considered. Each, as I have noted, has a maximum of 300 penalty units; $110.00 per penalty unit applies, totalling $33,000.00 per contravention. That amounts to $132,000.00 between the four of them.
I will set out now the facts of the case. The respondent is a small to medium-sized business based in Queensland which is essentially owned by two brothers. It commenced a little under 10 years ago with 11 outlets and 50 staff, and over the course of the following years by various acquisitions grew to such a point that by 2007 it had 57 outlets and 600 staff. Since that time, its numbers have reduced to about 45 outlets. Its business is principally concerned with the extremely competitive industry of retail sale of petrol, oil and other lubricants in what is an oligopolistic market. About a third of its activities involve retail, and that part of its business employs about 75 per cent of its staff.
Undoubtedly, as the contraventions in this instance illustrate, that is also the most complex part of its staffing, for it is a matter of common knowledge that retail fuel operators do not operate standard office hours. Irrespective of whether they are 24 hour operations or otherwise, there are certain outlets that operate outside regular business hours, on weekends and on public holidays. The remainder of the respondent’s business is engaged in the commercial supply of petrol, oil and lubricants to mining, maritime, agricultural, industrial and transport customers. It also has significant investments in what is described as an inverter terminal, which apparently is something which has been constructed in Sydney to assist in the expansion of its business into ‘part renewables,’ which are blended fuels involving standard petroleum products mixed with synthetic petroleum.
As is apparent from Attachment A to the Statement of Claim, the business employed well over 1000 people during the period of these events. The total number of employees who were affected by the miscalculations were approximately 234 of the roughly 1100 employees who are noted in the spreadsheet. It is also obvious from the spreadsheet, and is not in contest between the parties, that there were fundamental difficulties in the respondent’s payroll record. The evidence demonstrates that, overall, the difficulties favoured the employees against the respondent. That is to say that on the evidence it appears the respondent overpaid its various employees over $2.75 million over the relevant period, against the claim by the applicant of underpayments totalling approximately $300,000.00.
That, of course, is no justification, but it is in my view a highly relevant consideration, not only in terms of the sheer quantum involved, but also in terms of issues such as whether or not the contraventions were intentional or otherwise, a matter which is significant in the sentencing process. It can be seen from an analysis of Attachment A that some of the underpayments were as little as a number of cents, and others were significant, perhaps the most significant being one of about $9500.00 for one employee, although when one considers the net figure out it seems that she was ultimately underpaid a little over $9000.00.
What the spreadsheet does not disclose are the periods of time for which the employees were employed, whether their employment was casual, whether it was on a full or part-time basis, and how the underpayments occurred. That is to say, it does not inform, for instance, whether or not an employee who was the subject of a significant underpayment or overpayment was employed on a full-time basis over three years or on some other arrangement. In any event, the overwhelming balance falls against the respondent.
The respondent commenced its submissions by asking rhetorically, “How did this happen?” and I think that it was an important question to ask. Ultimately, the respondent does not know. The respondent became aware that there were difficulties in 2007. At that time it believed that it had a competent payroll manager in its employment, but that manager left. Those circumstances gave rise to its own internal inquiries and ultimately an internal audit which appears to have occurred at about the same time as a complaint was made by an employee to the Fair Work Ombudsman about prospective underpayment of wages. It seems then that investigations commenced in parallel between the Ombudsman and the employer in respect of this matter. But leading back to the rhetorical question asked at the outset, the bottom line is that the respondent was unable to identify how this occurred. Some of the possible reasons are, for instance, the loss of a payroll manager, the fact that the company ceased to be a member of AIG (which provided payroll assistance to it) and a general breakdown in the company’s overall management.
A consequence of all of this has been that the company has now developed a close liaison with professional advisors, seeking specialist advice in what is a particularly complex area, that is, the payment of the correct wages in accordance with awards which are generally complex documents. Furthermore, there has been the entry into a collective agreement to simplify the industrial arrangements between the respondent and its employees, again overcoming the difficulty that was highlighted in the letter by the Ombudsman to the respondent of 10 August, identifying the difficulty which seems to have arisen following the transition of awards. It is unfortunate that the respondent allowed its membership of the AIG to lapse, because no doubt that has exacerbated this difficulty.
In the course of submissions, the question of corporate culture was explored. A failure of systems comes back to questions of management and corporate oversight. This includes the conduct and oversight of senior management in the organisation. That was quite evidently subpar for reasons which, as I have already noted, cannot be explained. In terms of mitigation, regard is usually had to a checklist of factors noted in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7, many of which I will address in a moment. I am mindful too of the observations of McKerracher J, who stated in approving the views of others, particularly those expressed in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8, stated that the strict application of checklists is not necessarily apposite when undertaking the sentencing exercise.
The first of the principal matters advanced related to the complex legislative arrangements I have already touched upon. The awards were complex. The matters were complicated by the changes to the legislative regime which took place in 2006, and compounding that was the respondent’s lapsed membership of the AIG, an entity which would have assisted the respondent with the difficulties it had. The next matter raised by the respondent is that it had already self-identified the problem, and I think that this is a significant matter. Indeed, it had a good commercial reason to self identify the problem.
Plainly, if it had overspent $2.75 million on wages over the relevant period, that position was either going to result in an unsustainable commercial outcome or, at least, a significant loss to shareholders who have every reason to expect that management and company directors perform their duties in such a way as to ensure that their return on capital is maximised. It would seem that for a company of this size to permit its payroll to be overpaid by something in the order of $2.75 million is almost scandalous. Fortunately this is a closely held corporation and it is a matter which does not impact upon public investors, but it is nevertheless quite worrying.
In any event, that led to further enquiry and ultimately to the corporation identifying the need to review its payroll activities. Those events occurred in tandem with the complaint to the Ombudsman, which speaks highly at least of the good intentions of the corporation in this instance. There is no prior history of any like conduct, and having regard to that matter and the general circumstances of the payroll, it seems to me unlikely that the corporation will be guilty of any further contraventions. That will be particularly so if it manages to get its payroll affairs in order, as it has sought to do and is in the continual process of rectifying.
There is, as I have mentioned, evidence of cooperation with the Ombudsman, and that has been evident from the outset. The respondent has provided the Ombudsman with the evidentiary basis for the case the Ombudsman now presents. The corporation has acted as a responsible corporate citizen by taking immediate action once the difficulties became apparent and responding appropriately to the Ombudsman when it commenced its inquiries. Of course it did not have to, and although the Ombudsman may ultimately have been able to secure the material that it now has, the fact that the respondent has assisted in forwarding the material to the Ombudsman has spared the Ombudsman, and in turn the taxpayer, considerable expense.
Next, and perhaps most significantly, all the employees who were affected by the underpayments have been recompensed and, as Counsel for the respondent noted, there has been no attempt by the respondent to claw back the $2.75 million in overpayments made to various employees. It is further submitted that these events came to pass because of the unusual confluence of circumstances, in particular because of difficulties within the entity concerning personnel in charge of payroll, as well as the issues that arose with the introduction of the 2006 legislation and the changes that took place about that time. Further, it is submitted that the contraventions were not deliberate. I have no difficulty in accepting that submission. It would seem irrational to conclude otherwise, particularly given that there was an overpayment of about $2.75 million as against the $300,000.00 in underpayments.
Further, there were the cash flow consequences to the respondent; that matter again is self-evident. The circumstances of the overpayments would have caused considerable financial distress along the way. But since then resources have been diverted to introduce systems to ensure that this sort of conduct does not occur again. Unquestionably, this whole exercise has cost the respondent corporation a considerable amount of money.
Next is the element of contrition. Again, I have no difficulty in accepting genuine contrition on the part of the respondent. I accept that the respondent has taken this matter seriously. I note the presence of its managing director at the Court, which clearly signifies some recognition on his part of the seriousness with which these matters are treated.
Furthermore, the respondent wrote to each of the employees who was adversely affected, forwarding a letter of apology of the kind which was attached to the submissions for the respondent. The letter is instructive. It is an unequivocal apology and it is, in my view, appropriate. In that regard, I am conscious of the remarks of Logan J in Fair Work Ombudsman v Australian Shooting Academy Pty Ltd [2011] FCA 1064 and I agree with his Honour’s remarks, particularly at [12]-[13], where he noted that it is quite unusual for an employer to do such a thing as send a letter of apology, for as he said:
“That is no small thing in the conduct of industrial relations.”
I think that the respondent ought be commended for taking this course. I accept the submission that these events have caused a sense of personal and corporate humiliation. As I have already noted, the respondent competes in an extremely competitive market. It is always the subject of close scrutiny by the competition regulator and it would be unfortunate if these events were to lead to its demise. But the reality is that these matters do have an impact upon the corporate reputation of the respondent and to that end it is personally embarrassing to senior management, the company’s directors and the corporation as a whole, in such a competitive industry, to be seen to be guilty of contraventions of this kind.
I also accept the submission that there was never any question that the respondent would accept responsibility for this event. It has done so. It has made reparation to those who were adversely affected. It has sought to extend beyond reparation by making an apology, and of course it has introduced systems to ensure that this does not happen again. It has expressed regret and I think that there is probably little more that it can do to illustrate those matters. Finally, I note the submission that the respondent recognises that its conduct did fall below the standards expected of the corporation. That self-recognition is, I think, a significant matter when it comes to the question of penalty.
The parties have largely agreed a range of penalties. They have come to Court suggesting that a penalty in the order of 50 per cent of the maximum penalty ought be imposed. So far as the Court’s approach to an agreed penalty range is concerned, the appropriate course was set out by Kenny J in White v Construction, Forestry, Mining and Energy Union [2011] FCA 192 at [5], where her Honour stated:
“The parties agreed, and I accept, that the proper approach of the court in respect of an agreed submission as to the quantum of the penalty is that described in Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72. In summary in Mobil the Full Court (constituted by Branson, Sackville and Gyles JJ) said (at [51]):
(a) it is the responsibility of the court to determine the appropriate penalty;
(b) determining the amount of penalty is not an exact science;
(c) within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another;
(d) there is public interest in promoting settlement of litigation, particularly where it is likely to be lengthy;
(e) the view of the regulator, as a specialist body, is a relevant, but not determinative, consideration;
(f) in determining whether the proposed penalty is appropriate, the court examines all of the circumstances of the case; and
(g) where the parties have jointly proposed a penalty, it will not be useful to investigate whether the court would have arrived at that precise figure in the absence of agreement. The question is whether that figure, in the court’s view, is appropriate in the circumstances of the case. In answering that question, the court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if it is within the permissible range.”
Plainly, the matter of penalty is one for the Court, and while I am mindful of an agreement between the parties as to what they see as an appropriate penalty, I am certainly by no means bound by their views on these matters. In terms of the specific offences here, I am conscious of the following matters. This is a first offence for this corporation. The offence occurred in circumstances which clearly demonstrate that it was unintended and/or accidental. No rational being would overpay wages to the extent apparent in order to underpay a comparatively paltry sum in other instances. The evidence speaks to the events being accidental and unintended.
There is evidence of genuine contrition on the part of the organisation. I do not think that it could be suggested otherwise. The organisation’s conduct does not strike me as a contrivance. Next is the fact of the significant cost to the corporation. Not only do we look at the cost of wages overpaid against the wages underpaid, but there were also the significant regulatory costs the corporation has now incurred. These were not just the costs involved in this proceeding, but also those other costs which have been incurred in bringing its house into order.
That, of course, is not to say that those costs would not have been incurred regardless. Had the corporation engaged in a more prudential arrangement of its affairs, it would not have found itself in the position it is in now. But, the fact remains, to tidy up the mess it will have cost it significantly more than the actual cost of engaging competent staff and having in place a system with appropriate checks and balances to identify when the system was failing. It would have been considerably less than the costs that have now been incurred.
There seems to me to be no real purpose to a penalty that addresses issues of specific deterrence. However, the issue in this case, as I see it, is the matter of general deterrence. I think it is important that corporations appreciate and have reinforced the need for them to take into account their public obligations irrespective of whether they are listed or unlisted entities. As corporations, they owe it not only to the public in the limited sense, but also to their shareholders and other stakeholders to ensure that they have in place appropriate systems including checks and balances and, if necessary, development of the appropriate culture to ensure that systems are put in place and standards recognised and adopted.
To that end, I think a critical message of general deterrence needs to be sent by the imposition of any penalty. Accordingly, I consider that the percentage of the total award needs to be high to send the appropriate signal to the business community that these lapses are not acceptable and that they need to be alert to the costs associated with any such lapse. Having said that, I do not think that 50 per cent is necessarily the correct figure.
In the circumstances of this case, to impose a penalty of 50 per cent might serve to limit the sentencing options of cases which I think could be far more egregious than this instance, where, in reality, the respondent is being made an example of for its failure to put in place appropriate systems. Given that that is the real mischief to be addressed in the punishment in this instance, I think, in the circumstances, a penalty approaching 35 per cent of the maximum is of a sufficient magnitude to convey the critical message that it is essential that, in the fulfilment of both public and private obligations, corporate entities do put in place the necessary systems and develop the appropriate culture to prevent such mistakes from happening. That consideration is particularly important in respect of a corporation’s responsibilities to its employees in ensuring that they are paid in accordance with whatever governing award governs their arrangements.
In this instance, accepting that the maximum penalty is 300 penalty units, that would mean 105 penalty units for each contravention. As a penalty unit has the value of $110.00, that is $11,550.00 per contravention or, over four contraventions, $46,200.00. Having reached that figure, I am then required to consider whether, adopting an instinctive synthesis approach, that sum represents an appropriate penalty having regard to the circumstances.
In my view, it does, and it follows, having considered the matters both individually, cumulatively and overall, that in respect of each contravention there ought be a penalty of 105 penalty units or $11,550.00, giving a total of $46,200.00 by way of penalty.
I will make orders in that amount and that the sum be paid to the Commonwealth Consolidated Revenue Fund. I will allow for a 28 day period for payment of the penalty.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 10 December 2013
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