Fair Work Ombudsman v Yesilbas (No 2)
[2025] FedCFamC2G 562
•16 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Yesilbas (No 2) [2025] FedCFamC2G 562
File number(s): MLG 3290 of 2024 Judgment of: JUDGE O'SULLIVAN Date of judgment: 16 April 2025 Catchwords: INDUSTRIAL LAW – application for civil penalty –admitted contraventions –failure to abide by compliance notice and provide pay slips under Fair Work Act 2009 (Cth) – penalty hearing – appropriate penalty. Legislation: Fair Work Act 2009 (Cth) ss 536, 546, 716
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 13.06
Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (‘CFMEU’) (2018) 262 CLR 157
Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599; [2022] HCA 13
Australian Building and Construction Commissioner v J Hutchinson Pty Ltd T/A Hutchinson Builders [2019] FCA 667
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482
Fair Work Ombudsman v AJR Nominees Pty Ltd (No 2) [2014] FCA 128
Fair Work Ombudsman v Blu Hornsby Pty Ltd [2016] FCCA 1150Fair Work Ombudsman v Extrados Solutions Pty Ltd [2014] FCCA 815
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] 275 IR 148
Fair Work Ombudsman v T & Sons Pty Ltd & Anor [2020] FCCA 3519
Fair Work Ombudsman v Touchpoint Media Pty Ltd & Anor [2018] FCCA 2615Fair Work Ombudsman v Yesilbas [2024] FedCFamC2G 1212
Fair Work Ombudsman v Yogurberry World Square [2016] FCA 1290
Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2022] FCA 1317
Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70
Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of last submission/s: 16 April 2025 Date of hearing: 16 April 2025 Place: Melbourne Solicitor for the Applicant: Ms S Vassallo Solicitor for the Respondent: No appearance by the Respondent ORDERS
MLG 3290 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: TAMER YESILBAS
Respondent
ORDER MADE BY:
JUDGE O'SULLIVAN
DATE OF ORDER:
16 APRIL 2025
THE COURT ORDERS THAT:
1.Pursuant to section 546(1) of the Fair Work Act 2009 (Cth) the respondent pay a total pecuniary penalty of $ 8,667 for the contraventions set out in paragraph 1 of the orders dated 14 February 2025;
2.The Applicant have liberty to apply on seven days’ notice in the event that the preceding order is 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 O’SULLIVANINTRODUCTION
Before the Court are proceedings for the imposition of penalties for contraventions of the Fair Work Act 2009 (Cth) (“FW Act”).
BACKGROUND
On 30 September 2024 the Fair Work Ombudsman (‘the applicant’) commenced proceedings against Tamer Yesilbas (‘the respondent’). In its statement of claim the applicant sought declarations that the respondent had contravened s 716 and s 536 of the FW Act.
The proceedings were initiated against the background of the applicant’s investigation (and then the issue in July 2023 of a compliance notice to the respondent) arising from concerns a former employee at the respondent’s bar, trading as The Dock Lounge in Docklands, Victoria (which has since closed) had been underpaid.
After the proceedings had been filed the applicant encountered difficulties personally serving the respondent in accordance with the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘GFL Rules”). As a result, the applicant filed an application in a proceeding on 7 November 2024 seeking orders dispensing with the requirement for personal service on the respondent.
On 13 November 2024, and for the reasons set out in Fair Work Ombudsman v Yesilbas [2024] FedCFamC2G 1212, the following orders were made:
1.Pursuant to Rule 6.06(2)(b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘the Rules’), the requirement for personal service pursuant to Rule 6.06(1) on the Respondent of the following documents be dispensed with:
(a) the Application filed in this proceeding on 30 September 2024; and
(b) the Statement of Claim filed in this proceeding on 30 September 2024.2.Service of the Application and Statement of Claim both filed on 30 September 2024 is taken to have been effected on the Respondent pursuant to rule 6.14(3) of the Rules by way of the email sent to the Respondent at [email protected] on 2 October 2024.
3.Until further order or until the Respondent gives an address for service, service of any further documents filed in this proceeding is to be effected on the Respondent pursuant to rule 6.14(2) of the Rules by emailing the documents to [email protected].
4.The Respondent file and serve a Notice of Address for Service by 22 November 2024.
5.The Respondent file and serve any Response and Defence by 13 December 2024.
6.The Applicant file and serve any Reply by 20 December 2024.
7.The proceeding be adjourned for directions in the Federal Circuit and Family Court of Australia at Melbourne on 14 February 2025 at 10.30 am.
8.The parties have liberty to apply.
Whilst the applicant filed an application in a proceeding for default judgment on 4 February 2025 the need to deal with that application was overtaken by events. On 13 February 2025 the applicant and respondent advised the Court they had signed and would file, the following day, a statement of agreed facts and a consent minute seeking declarations that the respondent had contravened s 716 and s 536.
As a result, on 14 February 2025 there were declarations made that the respondent had contravened:
(a)section 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with the compliance notice given to him on 26 July 2023 (Compliance Notice Contravention); and
(b)section 536(1) of the FW Act by failing to give a pay slip to the employee concerned within one working day of making a payment to her in relation to the performance of work (Pay Slip Contravention).
There were also orders made for the respondent to within 28 days:
(a)pay the outstanding amount due under the compliance notice to the applicant;
(b)calculate and pay the additional superannuation due (as a result of (a)); and
(c)produce evidence to the applicant of the above.
The matter was otherwise listed for a penalty hearing on 16 April 2025 with orders and directions for that purpose. Subsequently the applicant filed affidavit material and submissions for that purpose in accordance with those directions. The respondent on the other hand did not.
MATERIAL RELIED ON
When the matter was called on at the penalty hearing Ms Vassallo appeared on behalf of the applicant. The Court was told the applicant relied on the:
(a)statement of claim filed 30 September 2024 (exhibit A1);
(b)statement of agreed facts filed 14 February 2025 (exhibit A2);
(c)outline of submissions filed 28 February 2025 (exhibit A3);
(d)affidavit of FWI Jacqualine McArthur filed 28 February 2025 (exhibit A4);
(e)affidavit of service of Joanna Hewitt filed 12 March 2025 (exhibit A5); and
(f)affidavit of Sophie Vassallo filed 14 April 2025 (exhibit A6).
There was no appearance by or on behalf of the respondent and no evidence the respondent had complied with the orders referred to in paragraph 8 above. As there was evidence before the Court that the respondent had been on notice the matter could proceed in the event he didn’t comply it was considered appropriate to proceed in the absence of the respondent pursuant to r 13.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth).
STATEMENT OF AGREED FACTS
The statement of agreed facts filed by the parties on 14 February 2025, which should be read in conjunction with these reasons, is at Annexure A.
PRINCIPLES RELEVANT TO THE DETERMINATION OF PENALTY
The approach of the Court in determining penalties for contraventions of the FW Act is well settled and was correctly addressed in the applicant’s submissions.
In Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599; [2022] HCA 13 (“Pattinson”), the High Court said that:
[9]… Under the civil penalty regime provided by the Act, the purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act. In that context, the penalties fixed by the primary judge were appropriate because they were no more than might be considered to be reasonably necessary to deter further contraventions of a like kind by Mr Pattinson, the CFMMEU or others. They represented a reasonable assessment of what was necessary to make the continuation of the CFMMEU’s non-compliance with the law, amply demonstrated by the history of its contraventions, too expensive to maintain.
[10]The Full Court’s critical error was that it was distracted by a concern, drawn from the criminal law, that a penalty must be proportionate to the seriousness of the conduct that constituted the contravention. The 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 the sense in which the Full Court used that term, in a civil penalty regime. Further, and relatedly, their Honours were misled by the view that the Act required that the maximum penalty be reserved for only the most serious examples of the offending comprehended by s 349(1), and that this principle could prevent the court from imposing the maximum penalty even though a penalty in that amount might reasonably be considered to be necessary to deter future contraventions of a like kind. Nothing in the text, context or purpose of s 546 requires that the maximum penalty be reserved for the most serious examples of misconduct within s 349(1). What is required is that there be “some reasonable relationship between the theoretical maximum and the final penalty imposed”. That relationship is established where the maximum penalty does not exceed what is reasonably necessary to achieve the purpose of s 546: the deterrence of future contraventions of a like kind by the contravenor and by others. …
[15]Most importantly, it has long been recognised that, unlike criminal sentences, civil penalties are imposed primarily, if not solely, for the purpose of deterrence….
The Court has a broad discretion to assess the appropriate penalty. In Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown[1], Bromwich J endorsed the following approach:
(1)Identify the separate contraventions involved – each contravention of each separate obligation in the FW Act is a separate contravention;
(2)consider whether any of the contraventions arising from the above constitute a single course of conduct within the meaning of s.557(1) of the FW Act;
(3)consider the extent to which two or more of the contraventions have common elements – the penalties imposed should be an appropriate response to the conduct of the respondent;
(4)consider the appropriate penalty for each contravention and, if relevant, each group of contraventions; and
(5)finally, assess whether the overall penalty is an appropriate and proportionate response to the conduct as a whole which led to the contraventions. This is the application of the ‘totality principle’.
[1] [2017] 275 IR 148 at [36].
Fundamental to the Court’s task, is an assessment of the gravity and seriousness of the offending which it is called upon to penalise, having regard to all relevant factual circumstances. The considerations deemed relevant to this task are well known and frequently cited.[2] They include:
[2] see Pattinson at [18]; Kelly v Fitzpatrick [2007] FCA 1080 at [14].
(a)the nature and extent of the conduct which led to the breach;
(b)the circumstances in which the conduct took place;
(c)the nature and extent of any loss or damage sustained as a result of the breach;
(d)whether there has been similar previous conduct by the respondent;
(e)whether the breach was properly distinct or arose out of one course of conduct;
(f)the size of the business enterprise involved;
(g)whether or not the breach was deliberate;
(h)the involvement of senior management in the breach;
(i)whether the party committing the breach has shown contrition;
(j)whether the party committing the breach has taken corrective action;
(k)whether the party committing the breach has cooperated with enforcement authorities;
(l)the need to ensure compliance with minimum standard by provision of an effective means for investigation and enforcement of employee entitlements; and
(m)the need for specific and general deterrence.
While this list is well-settled, it is not to be interpreted by the Court as a “rigid catalogue of matters for attention”.[3] In Pattinson, the High Court reiterated that this list of possible relevant considerations ought not to be treated as a checklist. There is no specific order in which these matters should be considered.
[3] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8.
The Court may take into consideration matters relevant to both the character of the contravening conduct and of the contravenor.[4] The Court's task is, and remains to be, the determination of what penalty is most appropriate given all the relevant circumstances of the case.[5]’
[4] Pattinson at [19].
[5] Pattinson at [68].
CONSIDERATION
It is now convenient to turn to an analysis of the relevant considerations. Before doing so I note the contraventions have been referred to earlier and the background is in statement of agreed facts at Annexure A.
I accept, for the reasons referred to in the applicant’s submissions, that in this case the maximum penalty that the Court may impose for a contravention of s 716(5) of the FW Act is $9,390 for an individual and for a contravention of s 536(1) of the FW Act $13,320 for an individual.
I also accept that the Compliance Notice Contravention and the Pay Slip Contravention concern different conduct and are to be treated as separate and distinct when the Court considers an appropriate penalty before deciding overall if the penalty arrived at is an appropriate response to the impugned conduct.
Course of conduct
The applicant’s written submissions correctly addressed this consideration at paragraph [21] noting given the nature of the contraventions in this matter there was no role for the statutory course of conduct or relevant overlap.
The nature, circumstances and deliberateness of the breaches
The applicant’s submissions addressed these considerations at paragraphs [33] to [42]. The statement of agreed facts records the detail of the contraventions.
The respondent’s contraventions occurred in circumstances where:
36.The Respondent was given the Compliance Notice on 26 July 2023 by post to the Respondent’s residential address. On 10 August 2023 (within the period for compliance), Steven Tokic from the FWO’s Notice Assistance Team spoke to the Respondent via telephone and the Respondent said that he was aware of the Compliance Notice and would “do what is required”. The Respondent was therefore aware of the Compliance Notice and the obligation to comply with it, including that a failure to comply may lead to the Applicant commencing proceedings to seek civil penalties and orders for compliance. Notwithstanding this, the Respondent failed to comply with the Compliance Notice.
37.The Respondent was provided with further opportunities to rectify his non-compliance with the Compliance Notice following correspondence from the Applicant, including on 6 September 2024, 16 May 2024, 20 June 2024 (when he was also provided with calculations performed by the OFWO which indicated that the amount payable under the Compliance Notice was $3,932.04), 24 June 2024, 28 June 2024, 9 and 22 July 2024, 13 and 29 August 2024, and 2 September 2024.
38. Despite these repeated opportunities, it was only following the commencement of these proceedings that the Respondent took some of the actions required of him under the Compliance Notice.
39. The Respondent’s conduct in failing to comply with the Compliance Notice demonstrates a deliberate disregard for his obligations under the FW Act, the authority of the Applicant as a regulator of Commonwealth workplace laws, and a contempt for the laws put in place to safeguard the entitlements of employees.
40. In the circumstances set out above, the Applicant submits that the Respondent’s failure to comply with the Compliance Notice was deliberate and that a meaningful penalty should be imposed.
[…]
42. As a result of the Respondent’s failure to provide the pay slip, the Employee was denied the opportunity to monitor her wages and ensure that she was being paid correctly, and to quantify any underpayments. The importance of the Employee having the ability to monitor whether she has received her lawful entitlements is heightened in circumstances where a compliance notice was issued for alleged contraventions of the Restaurant Award in relation to her employment.
The nature and extent of any loss or damage sustained as a result of the breaches
The applicant’s submissions addressed this consideration at paragraphs [52] to [55]. As a result of the respondent’s contraventions, the employee was not correctly paid their lawful entitlements for approximately 13 months and some entitlements still remain outstanding. The respondent’s breaches and the current proceedings have also resulted in a loss to the public.
The failure to comply undermines the utility of compliance notices as an effective mechanism for the efficient and cost-effective rectification of identified contraventions of the FW Act.
The legislature has set penalties for non-compliance because a failure to comply will cause the applicant (and the Court) to spend time and public funds dealing with civil remedy proceedings.
Whether there has been similar previous conduct by the respondents
There was no submission made or evidence that there was similar previous conduct.
The size and financial circumstances of the business enterprise involved
The applicant’s submissions addressed these considerations at paragraphs [56] to [57]. The respondent has not provided any material to the Court concerning his financial circumstances.
I accept as the applicant submitted that the respondent’s financial position does not provide an excuse for failure to comply with the FW Act.[6] It is well established that the size and financial circumstances of an employer does not exculpate breaches of workplace laws, and that capacity to pay a penalty will be of less relevance than the objective of general deterrence.
[6] see Fair Work Ombudsman v Extrados Solutions Pty Ltd [2014] FCCA 815 at [10].
As Tracey J said in Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 at [28]:
No less than large corporate employers, small businesses have an obligation to meet minimum employment standards and their employees, rightly, have an expectation that this will occur. When it does not it will, normally, be necessary to mark the failure by imposing an appropriate monetary sanction. Such a sanction “must be imposed at a meaningful level” (citation omitted)
Whether senior management was involved in the breaches
The statement of agreed facts sets out the circumstances of the respondent’s involvement in the contraventions.
Contrition, corrective action and co-operation
The applicant’s submissions addressed these considerations at paragraphs [43] to [47].
The respondent was provided with the opportunity to satisfy and adhere to the compliance notice which would have avoided this litigation. That said, following the commencement of these proceedings, the respondent made a partial rectification payment to the employee and has shown cooperation by admitting liability for the contraventions through the statement of agreed facts and signing of the consent orders which were provided to the Court on 14 February 2025.
As set out in the authorities where a respondent co-operates and makes admissions early it is appropriate to consider a discount on penalty to take these matters into account.[7] The applicant’s position is the respondent’s co-operation warrants a 10% discount on penalty.
[7] see Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 at [76]; Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2022] FCA 1317 at [51]-[53].
The need to ensure compliance with minimum standards
The applicant’s submissions addressed this consideration at paragraphs [48] to [51]. It is correct that compliance with minimum standards is a principal object of the FW Act and the failure to meet those standards deprives employees of that safety net.
The respondent’s failure to comply with the compliance notice is serious and undermines the legislation that serves to protect employees. These forms of statutory notices are a tool that can prevent unnecessary court proceedings and therefore failing to comply with such notices should have serious consequences.[8]
[8] see Fair Work Ombudsman v T & Sons Pty Ltd & Anor [2020] FCCA 3519 at [21].
The applicant correctly submitted that the respondent’s failure to comply with the pay slip requirements of the legislation also has the capacity to undermine the minimum standards of the FW Act.[9]
[9] see Fair Work Ombudsman v Touchpoint Media Pty Ltd & Anor [2018] FCCA 2615 at [14].
The need for specific and general deterrence
In Commonwealth ofAustralia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482, it was said at [55]:
No less importantly, whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance:
Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act]. ... The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act. (footnotes omitted)
Similarly, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (‘CFMEU’) (2018) 262 CLR 157 it was said at [116]:
As has been observed, the principal object of an order that a person pay a pecuniary penalty under s 546 is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners. According to orthodox sentencing conceptions as they apply to the imposition of civil pecuniary penalties, specific deterrence inheres in the sting or burden which the penalty imposes on the contravener. Other things being equal, it is assumed that the greater the sting or burden of the penalty, the more likely it will be that the contravener will seek to avoid the risk of subjection to further penalties and thus the more likely it will be that the contravener is deterred from further contraventions; likewise, the more potent will be the example that the penalty sets for other would-be contraveners and therefore the greater the penalty's general deterrent effect. Conversely, the less the sting or burden that a penalty imposes on a contravener, the less likely it will be that the contravener is deterred from further contraventions and the less the general deterrent effect of the penalty. Ultimately, if a penalty is devoid of sting or burden, it may not have much, if any, specific or general deterrent effect, and so it will be unlikely, or at least less likely, to achieve the specific and general deterrent effects that are the raison d'être of its imposition. (footnotes omitted)
Specific deterrence
Specific deterrence is directed at the party who has contravened the provisions, in this case in the FW Act. It is concerned with ensuring a contravening party is not prepared to take the risk to engage in the contravening conduct in the future.[10] The applicant’s submissions addressed this at paragraphs [29] to [32].
[10] see Fair Work Ombudsman v AJR Nominees Pty Ltd (No 2) [2014] FCA 128 at [50].
It is the applicant’s position that there is a particular need to deter the respondent because the respondent has demonstrated a disregard for their obligations under the FW Act by failing to comply with the compliance notice and failing to give a payslip to the employee. There have been attempts by the applicant to ensure compliance by the respondent which have not been successful so the Court should take into account the need to deter the respondent from engaging in similar conduct in the future.[11]
[11] see Fair Work Ombudsman v NSH North Pty Ltd t/a New Shanghai Charlestown [2017] FCA 1301 at [205]
I accept that although the respondent is no longer operating the business the subject of these proceedings, the ABN remains registered and is linked to six separate business names, and therefore because of this the respondent may be responsible for the engagement of employees and have obligations under the FW Act in the future. Accordingly, I accept:
32.the penalties imposed on the respondent should therefore place sufficient burden such that he will “seek to avoid the risk of subjection to future penalties”.[12]
[12] see Australian Building and Construction Commissioner v J Hutchinson Pty Ltd T/A Hutchinson Builders [2019] FCA 667 at [15]
General deterrence
General deterrence is concerned with ensuring, amongst other things, that the penalty is likely to act as a deterrent in preventing similar contraventions by like-minded persons.[13] The applicant’s submissions addressed this consideration at paragraphs [26] to [28] correctly identifying that any penalty should not be seen as “the cost of doing business”.[14]
[13] see Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 at [93].
[14] see Fair Work Ombudsman v Yogurberry World Square [2016] FCA 1290 at [27].
The important concept of compliance notices as an enforcement tool and pay slips as a means of ensuring employees are properly paid is something that should be taken into account when arriving at the penalty to be imposed.
In relation to general deterrence, it is necessary and appropriate to impose a penalty that signals non-compliance with statutory notices will not be tolerated. The efficacy of these notices could be undermined if recipients think that a failure to comply has no meaningful consequences.[15] There is also a need for general deterrence for all persons to not engage in conduct such as occurred in this case and to be motivated (by seeing the imposition of civil penalties) to know and conform with their obligations under industrial instruments.
[15] see Fair Work Ombudsman v Blu Hornsby Pty Ltd [2016] FCCA 1150 at [29].
Appropriate penalties
Given the above relevant considerations, the applicant submitted that the following penalty ranges were appropriate:
(a)for the contravention of s 716(5) of the FW Act, a penalty of between $5,071 and $5,916, being 60% to 70% of the maximum penalty less a 10% discount for cooperation and corrective action; and
(b)for the contravention of s 536(1) of the FW Act, a penalty of between $3,596 and $4,795, being 30% to 40% of the maximum penalty less a 10% discount for cooperation and corrective action.
Totality principle
On this issue the applicant submitted that:
60.While the penalty imposed must not be crushing or oppressive, it must bear relativity to the seriousness of the conduct engaged by the Respondents. (Kelly v Fitzpatrick) The above ranges result in total penalties of between $8,667 and $10,711. There is no evidence to suggest that penalties in this range would be crushing or oppressive, and the Applicant submits that these penalties are an appropriate response to the conduct which lead to the contraventions.
There is no evidence that suggests that penalties within the proposed range/s would be crushing or oppressive.
CONCLUSION
I have taken into account the material before the Court in the context of the above-mentioned relevant considerations and am satisfied in each case a penalty at the lower end of the range is appropriate.
In all the circumstances a penalty on the respondent of $5,071 for the contravention of s 716 and $3,596 for the contravention of s.536 reflects an appropriate response to the offending conduct.
Accordingly, there will be orders as set out at the beginning of these reasons for decision.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan. Associate:
Dated: 16 April 2025
ANNEXURE A
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