Ramsay v Menso

In the case of Ramsay v Menso, the applicants, Mr Williamson and Sergeant Greenwood, challenged the decision of the primary Judge to order that the majority of the pecuniary penalties imposed for contraventions of the Fair Work Act 2009 (Cth) be paid to the Consolidated Revenue rather than to them. The applicants held right of entry permits and were involved in proceedings against the respondents, Ms Menso and the company she managed, for various contraventions of the Fair Work Act. The primary Judge had ordered that the bulk of the penalties be paid to the Commonwealth due to the respondents' recalcitrance and because the Australian community was considered the "real" party offended against in relation to some of the contraventions.

The legal issues before the court were centered around the nature of the discretion under section 546(3) of the Fair Work Act and whether the primary Judge had taken into account irrelevant considerations in directing that the penalties be paid to the Commonwealth instead of the applicants. The Commissioner submitted that the correct principles to be applied in respect of the discretion were those set out in Sayed, and the "ordinary rule" or "usual order" is that the successful applicant is entitled to be paid any pecuniary penalty imposed. However, the court retains a discretion to order that penalties be paid to someone other than the applicant if the circumstances of the case warrant it.

The court found that the primary Judge did not take into account irrelevant considerations in directing that the penalties be paid to the Commonwealth. The Full Court observed that the power conveyed by section 546(3) is ordinarily to be exercised by awarding any penalty to the successful applicant, but there may be cases where the penalty, or a part of the penalty, should be paid to another person depending on the factual circumstances of the case. The Full Court held that this matter did not stand outside the ordinary or usual case, and the outcome of the appeal should be accepted.

The orders of the court were to allow the appeal and vary the orders of the primary Judge to direct that the penalties be paid to the applicants, Mr Williamson and Sergeant Greenwood, rather than to the Commonwealth. The court emphasized that the ordinary rule to which the power conferred by section 546(3) is directed is that pecuniary penalties awarded by the Court are paid to the successful applicant, and this case did not fall outside the ordinary or usual case.