Fair Work Ombudsman v Hongyen Pty Ltd and Anor (No.2)

[2018] FCCA 2232

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v HONGYEN PTY LTD & ANOR (No.2) [2018] FCCA 2232

Catchwords:
INDUSTRIAL LAW – Breach of provisions of Fair Work Act 2009 – breach of provisions of modern award – industrial regulator commenced proceedings against corporate employer and its director on accessorial basis – after hearing of proceedings corporate employer placed in liquidation – FWO withdrew proceedings against company – court made findings against other respondent not pleaded against him – is error amenable to correction under the slip rule – matters to be correct – order corrected.

Legislation:

Fair Work Act 2009, ss.44(1); 45, 96

Federal Circuit Court Rules 2001, rr.16.02, 16.05
Federal Circuit Court Act 1999, ss.14, 15

Cases cited:
Fair Work Ombudsman v Hongyen Pty Ltd & Anor [2018] FCCA 196
Blandy v Coverdale NT Pty Ltd [2008] FCA 1533
DJL v Central Authority [2000] 201 CLR 226
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385

Applicant: FAIR WORK OMBUDSMAN

First Respondent: HONGYEN PTY LTD

Second Respondent: ALBERT TRAN

File Number: ADG 369 of 2016

Judgment of: Judge Brown

Hearing date: 26 July 2018

Date of Last Submission: 26 July 2018

Delivered at: Adelaide

Delivered on: 16 August 2018

REPRESENTATION

Counsel for the Applicant: Ms Littlewood

Solicitors for the Applicant: Office of Fair Work Ombudsman

Counsel for the Respondents: No appearance

ORDERS

1. The court declares that the second respondent Albert Tran, in default of his appearance before the court, has contravened the following provisions of the Fair Work Act 2009 (Cth) (hereinafter referred to as “the Act”).

   (a)Section 44(1) of the Act by:

   (i)Failing to make payment to Ms Uyen Vo for a period of annual leave under section 90(1) of the Act to which she was entitled;

   (ii)Failing to afford Ms Uyen Vo her entitlement to accrue personal leave under section 96 of the Act.

   (b)Section 45 of the Act by:

   (i)Failing to pay minimum wages to part-time employees as required by clause 12.7 of the Hair & Beauty Industry Award 2010 (hereinafter referred to as “the Award”).

   (ii)Failing to pay minimum wages to a casual employee as required by clause 13.2 of the Award;

   (iii)Failing to pay the required casual loading as required by clause 13.2 of the Award;

   (iv)Failing to pay the Saturday loading as required by clause 31.2(b) of the Award;

   (v)Failing to pay the Sunday loading as required by clause 31.2(c) of the Award;

   (vi)Failing to pay leave loading to an employee during a period of annual leave as required by clause 33.3(a) of the Award; and

   (vii)Failing to comply with the rostering requirements for part-time employees in clause 12.8(b) of the Award.

The court orders as follows:

1. Pursuant to section 546(1) of the Act, within 28 days, the second respondent pay a total pecuniary penalty fixed in the sum of $12,000.00*$10,560.00.

2. Pursuant to section 546(3)(a) of the Act, the penalty imposed on the second respondent be paid to the Commonwealth.

3. Pursuant to section 545(1) of the Act that the second respondent:

   (a)within a period of four weeks from the date of these orders, register with the applicant’s “My Account” portal at and complete the profile details;

   (b)within a further period of two weeks after the period in subparagraph (a) provide to the applicant his “My Account” registration number; and

   (c)within a period of six weeks from the date of these orders, register with the applicant’s Online Learning Centre at: , complete the courses “Hiring Employees” and “Managing Employees” and provide the applicant with evidence of completion of those courses.

4. The proceedings against the first respondent be otherwise dismissed.

5. A sealed copy of these orders and the relating reasons for judgment be forwarded to the second respondent by pre-paid post to his last known address.

   *Pursuant to Paragraph 16.05(2)(e) of the Federal Circuit Court Rules (2001) this order is amended on 16 August 2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 369 of 2016

FAIR WORK OMBUDSMAN

Applicant

And

HONGYEN PTY LTD

First Respondent

ALBERT TRAN

Second Respondent

REASONS FOR JUDGMENT

1. On 2 February 2018, the court delivered extensive written reasons in respect of a prosecution brought by the Fair Work Ombudsman against Hongyen Pty Ltd and its sole director, Mr Tran, pursuant to the provisions of the Fair Work Act 2009 (Cth).

2. Between the date of hearing (8 September 2017) and the delivery of judgment, Hongyen Pty Ltd went into liquidation.  In addition, although involved in the early stages of the proceedings, Mr Tran did not appear at their final hearing, which was determined on an undefended basis, in his absence. 

3. In general terms, the FWO’s claim was that five employees of Hongyen Pty Ltd had been underpaid a total sum of $7,493.83, in breach of the applicable award – the Hair and Beauty Industry Award 2010.  The breaches related to the following issues: 

   ·Failure to pay annual leave;

   ·Failure to pay minimum wages to part-time employees;

   ·Failure to pay minimum wages to casual employees;

   ·Failure to pay required casual loading;

   ·Failure to pay Saturday loading;

   ·Failure to pay Sunday loading;

   ·Failure to pay leave loading;

   ·Failure to comply with rostering requirements for part-time employees.

4. Given Hongyen Pty Ltd had been placed in voluntary liquidation, there was no utility in the FWO pursuing its claims against it and therefore the claim against the company was dismissed. 

5. Issues remained concerning Mr Tran’s personal liability for the various infringements concerned as an accessory of the company, pursuant to the provisions of section 550 of the Act. 

6. In these circumstances, in the final judgment, I said as follows:

   “The evidence is unequivocal that Mr Tran hired the staff of Citi Nails & Beauty and determined their rates of pay.  In addition, it was he who liaised with Mr Rawlings following the first audit of Hongyen Pty Ltd.  Accordingly, he was responsible for ensuring that appropriate wages were paid to staff and records were kept in respect of leave.  He liaised with the business’ accountant, Mr Le, in respect of these matters. 

   In these circumstances, I am satisfied that Mr Tran was directly involved in the various contraventions, alleged by the Ombudsman and is therefore personally liable for them. 

   The FWO seeks a range of orders against Mr Tran, including declarations that he has breached the provisions of the FWA and orders he pay pecuniary penalties, as a consequence of those breaches.

   Pursuant to section 545(1) of the Act, this court is authorised to make any order it considers appropriate, if satisfied that a person has contravened a civil remedy of the FWA.  Accordingly, I am satisfied that I have the jurisdiction to make the declarations as sought by the Ombudsman.”[1]

   [1]  See Fair Work Ombudsman v Hongyen Pty Ltd & Anor [2018] FCCA 196 at [59] – [62]

7. The FWO’s prosecution involved several employees and numerous distinct but related provisions of the Act.  In these circumstances, issues arose as to the grouping of the offences and which should be attributable to the company and which to Mr Tran. 

8. The proceedings were commenced by the FWO by means of a statement of claim, in which it pleaded specific offences against both the company and Mr Tran.  In later submissions, the FWO made submissions about how the various offences should be grouped to reflect commonality of offending, in the sense that the offending concerned arose out of the same course of conduct.

9. In the earlier decision, I made reference to the applicable legal provision of the Act [section 557(1)] and some of the relevant case law.[2]  I noted that care needed to be taken to avoid artificial groupings of offences as the applicable law indicated that each actual contravention of an award is to be approached as if it related to a breach of a term of the Act.

   [2] Ibid at [75] – [79]

10. In Blandy v Coverdale NT Pty Ltd[3] Reeves J was dealing with the legislative precursor of the FWA.  He made some comments regarding how matters were to be grouped for the purposes of the imposition of civil penalties.  He observed that “each separate obligation found in an award is to be regarded as a separate ‘term’.

    [3] Blandy v Coverdale NT Pty Ltd [2008] FCA 1533 at [56]

11. In this context, whether a separate obligation is to be regarded as a separate obligation is to be determined by reference to whether “it is in substance a different obligation.Further, in my view significantly, His Honour went on to say:

    “…where different terms impose cumulative obligations or obligations that substantially overlap, that may be taken into account by imposing a nominal (or no) penalty for some breaches and a substantial penalty for others…”

12. In addition, as a consequence of its incorporation, the penalties applicable to the company, under the Act, are five times greater than that applicable to an individual.  Accordingly, in this case, a significantly reduced range of penalties applied to Mr Tran than to the company.

13. As I observed, in the original judgment, the court’s primary duty in civil penalty proceedings is to fix an appropriate penalty for the offending concerned in total, bearing in mind a wide range of considerations.  Amongst the more important of these considerations are:

    ·the gravity of the offending;

    ·the size of the business of the offender;

    ·the need for specific and general deterrence.  Necessarily issues relating to specific deterrence being different for a flesh and blood individual in contrast to a disembodied company;

    ·and the individual circumstances of the offender.  Again different consideration are likely to relate to a corporeal individual as opposed to a company;

14. In the original judgement, in respect of Mr Tran, I found that he had committed the following offences, which attracted the indicated maximum penalty:

No	FWA section	Particulars	Worker affected	Maximum penalty
1	44(1)/90(1)	Failure to make annual leave payment	Ms Vo	$10,800
2	44(1)/96	Failure to accrue personal leave	Ms Vo	$10,800
3	45	Failure to pay minimum wages to part-time employees, improperly designated as trainees	Ms Vo and Ms Nguyen	$10,800
4	45	Failure to pay minimum wages for employees incorrectly classified as level 1	Ms Le and Ms Duong	$10,800
5	45	Failure to pay minimum wage for causal employee	Ms Hau	$10,800
6	45	Failure to allow award loading for casual work	Ms Hau	$10,800
7	45	Failure to allow Saturday penalty	Ms Nguyen and Ms Duong	$10,800
8	45	Failure to allow Sunday penalty	Ms Nguyen and Ms Duong	$10,800
9	45	Rostering contraventions (clause 12.8)	Ms Vo, Ms Nguyen, Ms Le and Ms Duong	$10,800

1. In respect of how these offences were to be grouped, I said as follows:

   “In all the circumstances of this case, I propose to group together, the failure to make annual leave payments and to accrue leave in respect of Ms Vo; the failure to pay minimum wages to Ms Vo, Ms Nguyen and Ms Le; the failure to pay minimum wages and loading for the casual employee, Ms Hau; the failure to pay weekend penalty rates; and finally the rostering contraventions.  Accordingly, as I have grouped the various matters, there are five contraventions, which attract a maximum total penalty of $52,500.00, so far as Mr Tran is concerned.” [4]

   [4] Ibid at [92] – [93]

2. Ultimately, Mr Tran was fined the sum of $12,000.00 in aggregate in respect of nine breaches of the Act.  In this context, I said as follows:

   “In my assessment, a penalty of $12,000.00 in aggregate is an appropriate one for Mr Tran.  Although he has displayed scant regard for the provisions of the FWA, particularly in respect of the previous auditing process of his business, he remains a first offender.  In my view, a penalty of $12,000.00 for a first offender, notwithstanding the seriousness of the offending in question, represents a very significant penalty indeed.”[5]

   [5] Ibid at [145]

3. As is evident, this sum represented a significant discount on the five distinct groups of offences identified by me.  However, the penalty was indicated to be reflective of a serious underpayment of five vulnerable employees, who were each denied access to the industrial safety net in respect of minimum award and penalty rates. 

4. The employees in question were regarded as being vulnerable because of the nature of the industry in which they worked – a small scale, cottage type industry, not readily susceptible to regulation – and because they had a non-English speaking background.

5. The FWO contends that I have, in two of the groups concerned, penalised Mr Tran for offences not specifically pleaded against him by the FWO, in its statement of claim, dated 1 November 2016.  Rather the declarations and resulting penalties imposed by me were ones, which were relevant only to Hongyen Pty Ltd, given the contents of the statement of claim. 

6. Under the heading Relief Sought, the FWO sought the following declarations against the First Respondent (Hongyen Pty Ltd):

   “Declarations that the First Respondent contravened the following civil remedy provisions of the FW Act:

   (a) section 44(1) of the FW Act by:

   (i) failing to make payment to Ms Vo for a period of annual leave under section 90(1) of the FW Act;

   (ii) failing to provide an employee's entitlement to accrue personal leave under section 96 of the FW Act;

   (b) section 45 of the FW Act by:

   (i)     failing to pay minimum wages to part-time employees as required by clause 12.7 of the Award;

   (ii)     failing to pay minimum wages to a casual employee as required by clause 13.2 of the Award;

   (iii)  failing to pay the required casual loading as required by clause 13.2 of the Award;

   (iv)    failing to pay the Saturday loading as required by clause 31.2(b) of the Award;

   (v) failing to pay the Sunday loading as required by clause 3.12(c) of the Award;

   (vi)    failing to pay leave loading to an employee during a period of annual leave as required by clause 33.3(a) of the Award;

   (vii)   failing to comply with the rostering requirements for part-time employees in clause 12.8(b) of the Award.”

7. I have followed this paragraph of the statement of claim in imposing declarations and penalties in question on Mr Tran.  In so doing, I have failed to have regard to subsequent paragraph in the statement of claim, which reads as follows:

   “A declaration that the Second Respondent was involved in the First Respondent's contraventions alleged in paragraphs 76(a)(ii), 76(b)(i), 76(b)(ii), 76(b)(iii) and 76(b)(vii) above and is taken to have committed those contraventions pursuant to section 550(1) of the FW Act.”

8. In these circumstances, it is the FWO’s position that the orders made by the court need to be corrected and the court has this power to do so pursuant to order 16.05 of the Federal Circuit Court of Australia Rules 2001 “the Rules”. 

9. The judgment of 2 February 2018 has not been served on Mr Tran.  On 11 May 2018, the FWO filed an application in a case, which was supported by an affidavit of its solicitor, Ms Littlewood, in which she deposed as follows:

   Upon reviewing the Decision, I noticed that orders 1(a)(i), 1(b)(iv), 1(b)(v) and 1(b)(vi) are declarations of contraventions not pleaded against the Second Respondent in the Applicant's Statement of Claim, filed on 2 November 2016.

   I also noticed that the penalty imposed in Order 2 appeared to include a component relating to the contraventions identified above that were not part of the claims against the Second Respondent.”[6]

   [6] See affidavit of Ashleigh Kai Littlewood filed 11 May 2018 at [9] – [10]

10. In particular, it is the FWO’s position that Mr Tran should not have been found liable, in respect of the following matters, which were not specifically pleaded against him:

    i.       Order 1(a)(i) – section 90(1).  This was grouped with another offence, arising under section 96, relating to the same employee; 

    ii.      Order 1(b)(iv) – failure to pay a Saturday loading;

    iii.    Order 1(b)(v) – failure to pay a Sunday loading;

    iv.     Order 1(b)(vi) – failure to pay a leave loading.

11. As indicated from the earlier quoted portions of the original judgment, the latter three matters were gathered in a separate group, each component of which, in theoretical terms, attracted a maximum penalty of $10,800.00, for an individual. 

12. The FWO did not seek that Mr Tran be dealt with as an accessory of the company, although at the time of the offending it is clear to me that he was the alter ego of the company to all intents and purposes.  However the fact remains that these matters were not specifically pleaded against him and so were not part of the FWO’s case at the undefended hearing.

13. Rule 16.05 of the Rules reads as follows:

    (1)     The Court or a Registrar may vary or set aside a judgment or order before it has been entered.

    (2)     The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:

    (a)     it was made in the absence of a party; or

    (b)     it was obtained by fraud; or

    (c) it is interlocutory; or

    (d)     it is an injunction or for the appointment of a receiver; or

    (e) it does not reflect the intention of the Court; or

    (f)     the party in whose favour it was made consents; or

    (g)     there is a clerical mistake in the judgment or order; or

(h)     there is an error arising in the judgment or order from an accidental slip or omission.

(3)     This rule does not affect the power of the Court or a Registrar to vary or terminate the operation of an order by a further order.

1. In this particular case, the FWO seeks correction of the relevant portion of the court’s order pursuant to rule 16.05(2)(e), which is invariably referred to as the slip rule. Section 15 of the Federal Circuit Court of Australia Act 1999 (Cth) empowers the court to make whatever orders, including interlocutory orders, as it thinks appropriate. Section 14 directs the court to grant all remedies to which any of the parties before it appears to be entitled in respect of a legal or equitable claim properly brought forward.

2. Clearly, the orders and declarations of 2 February 2018 were posited on a misconception. Mr Tran has been penalised, by the court, for offences not pleaded against him by the industrial regulator. The question therefore arising, in the proceedings, is whether the court has the jurisdiction, pursuant to section 15 of its enabling Act and the applicable rule of court, to correct its mistake or whether the error is only amenable to rectification on appeal.

3. On the one hand, it is desirable that litigation, once apparently finalised by the court, be just that – finalised.  It does not benefit either the parties to the litigation concerned or indeed the reputation of the law generally, the decisions, purported to be final, are in effect provisional in nature and so later able to be subject to some form of review by the court which originally exercised judgment. 

4. Essentially, once the court has done what it was called upon to do – adjudicate a dispute between the parties concerned – its job is done and thereafter, only a court of higher authority, with jurisdiction to review the decisions of a court below it, on appeal, can correct any erroneous judgment entered. 

5. On the other hand, in any human system mistakes are bound to happen.  In these circumstances, the interests of justice may well demand that the court, which made the mistake inadvertently should be able to cure it expeditiously and without putting the parties concerned to further expense and the unnecessary trauma of yet more litigation. 

1. For obvious reasons, the distinction between these two considerations is a fine one and must be determined by the nature and quality of the mistake concerned.  Kirby J expressed the dilemma, as follows, in DJL v Central Authority:[7]

   [7]  DJL v Central Authority [2000] 201 CLR 226 at [90]-[93]

   “The law, for very good reason, places a high store on the finality of court judgments and orders.  There would be little point in having courts to resolve disputes between parties according to law with settled remedies of judicial review and appeal, and within a hierarchical judicial system, if no ultimate finality could be reached.  The judicial system would become discredited if ‘final’ orders were revealed as provisional or always subject to reconsideration …

   On the other hand, because courts comprise decision-makers who are fallible human beings, not machines, occasionally errors and oversights will occur which can clearly be demonstrated and which produce a result that would be ‘manifestly unjust if the judgment were allowed to stand.’

   … In the course of judicial life it can happen that a party, receiving reasons for a decision pronounced in open court, notices a fundamental mistake, quickly calls it to the attention of the judge or judges involved and, before perfection of the orders, gains correction and even reversal of the previously announced decision.  This has happened to most judges.

   ...

   Some accidental slips or omissions are capable of correction at common law.  This facility is now commonly replaced by provisions in rules of court.  … Ordinarily, it is limited to correction of the formal record for accidental mistakes or omissions of no substantive significance.  Similarly, when it can be shown that a court order does not correctly reflect the court's decision as contained in its reasons, rectification of the order is viewed as nothing more than a mechanical task.  Thus where a party has been wrongly named or misdescribed or is shown to have died or to be non-existent corrections may be made.  Where, without alteration, it is possible to repair an oversight and prevent injustice by making a supplementary order, the existence of a previously perfected order will be no barrier.” [citations removed]

2. Before an error can be corrected, by means of the slip rule, it must be demonstrated that the mistake concerned was as a result of inadvertence rather than flowing from a misplacement of judgment or erroneous finding of fact, on the part of the judicial decision maker concerned.  As a consequence, the mechanism by which the mistake is sought to be corrected must be axiomatic in nature – it should itself not be subject to controversy.

3. In Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd[8] Lockhart J said as follows:

   “The slip rule applies where the proposed amendment is one upon which no real difference of opinion can exist.  It does not apply where the amendment is a matter of controversy; nor does it extend to mistakes that are the consequence of a deliberate decision.”

   [8] Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd  (1995) 61 FCR 385 at 390

4. In Elyard it was further noted that the circumstance in which the slip rule could be applied are numerous and varied.As such, it was not possible to provide an exhaustive list of circumstances to which the rule was applicable.

5. In this case, I acknowledge my mistake.  It is clear, I think, from a reading of the original decision that I mistakenly believed that the FWO sought orders against Mr Tran, on an accessorial basis, in the same terms as it sought against Hongyen Pty Ltd. 

6. I was mistaken in that belief.  However, this was not a case in which there was a clear delineation between the responsibilities of the company concerned and its human hands and mind, of which there was only Mr Tran.  Nor is it a case in which other directors or individual managers were involved.  During the contravention period in question, Mr Tran was the only director of the company concerned. 

7. In addition, in my view, it is noteworthy that Hongyen Pty Ltd was placed into liquidation a few days after the hearing concerned and no explanation has been provided for its liquidation.  This event followed close upon Mr Tran’s decision not to take part in the proceedings before the court and so provide his own explanation to it of the nature of the relationship between him and the company concerned.

8. In this case, if I had been aware that no accessorial orders in respect of the contraventions in question were sought against Mr Tran, I would not have made such orders.  In these circumstances, I do not think that there can be any controversy about the particular error or indeed the mechanism to correct it.  It can only be corrected by the mechanism proposed by the FWO, namely the deletion of the relevant declarations in the order.

9. The question which therefore arises is whether, in this scenario, it can be said that the original order did not reflect the intention of the Court.Necessarily, as a matter of logic, this must mean the intention of the court at the time the mistake in question is drawn to its attention.  If I had known the FWO did not wish orders to be made against Mr Tran, I would not have made such orders.

10. This follows from the nature of pleadings themselves.  The purpose of pleadings is to define the issues which the parties concerned require the court to determine.  It is not for the court itself to delineate the extent of issues in dispute. 

11. In this context, Rule 16.02(1)(c) of the Rules provides that a pleading must identify the issues that the party wants the court to resolve; and Rule 16.02(1)(d) indicates that each pleading must:

    “…state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial but not the evidence by which the material facts are to be proved.”

12. Accordingly, the emphasis in pleading is to ensure that each party knows of the structure of the case which it must meet, particular in the form of its legal components, so that at trial, no one will be surprised or embarrassed by some element of the opposing case in respect of which no forewarning was provided.  The Rules make provision for the amendment of pleadings, both with and without the leave of the court.

13. In this case, if either Hongyen Pty Ltd or Mr Tran had appeared in court to defend the proceedings, the case they had a legitimate expectation of meeting was one in which liability for a number of breaches of the Act was sought only against the company rather than Mr Tran.  This was not the case which was actually dealt with by the court.  The error was not attributable to either of the parties.  It was as a result of misconception by the court.

14. Given the nature of the factual circumstances in the case, particularly the commonality of features between Mr Tran and the company of which he was sole director and which he alone controlled to operate his nail salon business and the fact that the FWO sought accessorial liability against Mr Tran for some of the offences concerned, in my view although this does not excuse the error on my part, it does explain it.

15. In all these circumstances, I have come to the conclusion that the errors, as demonstrated by Ms Littlewood, are ones which are amenable to correction pursuant to Rule 16.05(2)(e) by the deletion of the relevant declarations concerned.  The remaining issue is whether this determination itself can and should result in a review of the overall totality of the penalty imposed upon Mr Tran personally.

16. In terms of the declaration made in order 1(a)(i) of the orders of 2 February 2018 regarding annual leave payments to Ms Vo, it was grouped with another charge of similar nature.  In these circumstances, I do not propose to change the overall aggregate penalty in respect of this correction.

17. The remaining correction relate to penalty rates applicable for Saturday, Sunday and casual period of work.  I erroneously calculated Mr Tran as being personally liable for a fine of $2,000.00 in respect of these matters.  It was subject to 10% discount in recognition of the fact that the wages in question had been paid.  It was also subject to an overall reduction as a consequence of the application of the totality principle.

18. Accordingly the total penalty originally imposed on Mr Tran of $12,000.00 was a significantly discounted composite of a broad range of offending involving the systematic under-payment of five vulnerable workers and therefore was a serious matter. 

19. I also noted the underpayment sums in question, apart from one long serving employee, Ms Vo, were modest and had been paid.  I also noted that Mr Tran was a first offender but not one who was unknown to the industrial regulator.  Given the nature of the industry involved, I regarded the need for general deterrence as being high.

20. In these circumstances, there must logically be some reduction in the totality of the penalty to be imposed on Mr Tran but it is not a case of simply reducing the sum by $2,000.00.  In my view, this would not be a proper reflection of how the original penalty was calculated.  I propose to reduce the penalty concerned to $10,560.00 to reflect the original discount and the application of the totality principle but also to reflect the excision of the penalty rate counts.

21. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:       16 August 2018