FEDERAL COURT OF AUSTRALIA
Singh v Fair Work Ombudsman [2021] FCA 71
ORDERS
NSD 155 of 2020 BETWEEN: MR KAMALDEEP SINGH
First Appellant
MS UMA SINGH
Second Appellant
AND: FAIR WORK OMBUDSMAN
Respondent
ORDER MADE BY:
BROMWICH J
DATE OF ORDER:
5 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.There be no order as to costs.
Note: Entry of orders is…
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- Case
- [2021] FCA 71
- Decision Date
CaseChat Overview and Summary
The appellants challenged the penalties imposed by the primary judge on several grounds. They argued that the primary judge had erred in determining the objective seriousness of the contraventions, failed to take into account or miscategorising the subjective features of the appellants, erred in the application of the principles of totality in respect of the penalties imposed, and erred in the application of the principles of the common law course of conduct. The appellants also claimed that the penalties imposed were manifestly excessive and that the primary judge had failed to properly consider the appellants' capacity to pay.
The court found that the primary judge had not erred in determining the objective seriousness of the contraventions. The court found that the primary judge had properly considered the subjective features of the appellants and had not failed to take them into account or miscategorise them. The court also found that the primary judge had properly applied the principles of totality and the principles of the common law course of conduct in determining the penalties. The court found that the penalties imposed were not manifestly excessive and that the primary judge had properly considered the appellants' capacity to pay.
In conclusion, the court found that the appeal should be dismissed and that there should be no order as to costs. The court found that the primary judge had not erred in determining the penalties and that the penalties imposed were appropriate in the circumstances. The court found that the appellants had not demonstrated any error on the part of the primary judge in relation to the exercise of the penalty imposition discretion. The appeal was dismissed, and the penalties imposed by the primary judge were upheld.
Orders
Orders of the court
1. The appeal be dismissed.
2. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In the way in which this ground was advanced orally and in writing, it did not rise higher than taking issue with the conclusions reached. Far from being satisfied that error has been established, I am in substantial agreement with the reasoning and conclusions reached. Accordingly this ground must fail.Ground 2 – irrelevant and relevant considerations The grounds of irrelevant and relevant considerations are best understood as allegations of having regard to something that is forbidden, and failing to have regard to something that is mandatory. In the context of criminal sentencing and civil penalty imposition they are inherently very difficult grounds to succeed upon because of the breadth of the discretion being exercised and the role of the judicial officer in attributing significance, or lack of significance, to any particular fact or circumstance. Moreover, taking issue with the weight or emphasis given to a particular feature of the case falls well short of establishing this kind of error. The ground is complicated in this proceeding by the submissions advanced in support of it referring to a denial of procedural fairness, which is a very different kind of error if established. The central complaints made in support of this ground are that the primary judge appeared to have placed significance upon the making of substantial unsecured loans by Sinpek shortly before it was put into liquidation, with the intention of preventing enforcement of compensation orders, and that this series of findings is contrary to the evidence. It is submitted that the appellants were not put on notice that this approach was going to be taken. This was the source of the allegation of a denial of procedural fairness. The other aspect of the way in which this ground was sought to be advanced concerns an alleged failure to have regard to the absence of prior contraventions, the relatively small size of Sinpek with some 10-15 employees, and the mitigating admission of the failure to pay annual leave upon termination of employment. This ground fails both as to its pleaded aspect of relevant/irrelevant considerations, and as to its unpleaded aspect of denial of procedural fairness. The objective facts readily available to be found on the available evidence as to the asserted irrelevant considerations are that at the time allegations had been made that Sinpek was indebted to its employees, the appellants caused unsecured loans to be made to their accountant with no benefit to the company being apparent, and there being a proper basis for a serious concern as to solvency. Sinpek was placed into voluntary liquidation after the loan was made and during the pendency of the proceeding before the Federal Circuit Court. One of the reasons for that taking place was the fact of defending those proceedings. In those circumstances, it was both open and obvious that his Honour might infer that the appellants were taking steps intended to be adverse to the interests of the former employees, irrespective of whether this endeavour was likely to succeed.