mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 , 136 LGERA 89
Outcome: cited
In the statutory context of the Trade Practices Act 1974 (Cth), French J (as he then was) has attempted to summarise some of these considerations: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076. When assessing the penalty to be imposed pursuant to s 76(1) of the 1974 Act His Honour observed (at 52,152 52,153): The assessment of a penalty of appropriate deterrent value will have regard to a number of factors which have been canvassed in the cases. These include the following: 1. The nature and extent of the contravening conduct. 2. The amount of loss or damage caused. 3. The circumstances in which the conduct took place. 4. The size of the contravening company. 5. The degree of power it has, as evidenced by its market share and ease of entry into the market. 6. The deliberateness of the contravention and the period over which it extended. 7. Whether the contravention arose out of the conduct of senior management or at a lower level. 8. Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention. 9. Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. These considerations have since been applied to other legislative contexts: eg, Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 at [51] , [2004] FCA 1317 ; 136 LGERA 89 ; Australian Prudential Regulation Authority v Derstepanian [2005] FCA 1121 at [30] ; Secretary, Department of Health &amp; Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [24] .
Case: Minister for Industry, Tourism &amp; Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
Outcome: cited
The extent to which this Court may inform itself as to the appropriate quantification of any penalty to be imposed by reference to any agreement between the parties has been the subject of consideration in the context of other legislation: eg, Secretary, Department of Health &amp; Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [33] [42]. Reference was there made to the decision of the Full Court of this Court in Minister for Industry, Tourism &amp; Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 and to the earlier decision in NW Frozen Foods . The Full Court in Mobil Oil continued on to observe: [51] The following propositions emerge from the reasoning in NW Frozen Foods: (i) It is the responsibility of the Court to determine the appropriate penalty to be imposed under s 76 of the TP Act in respect of a contravention of the TP Act. (ii) Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another. (iii) There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed. (iv) The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. In particular, the views of the regulator on matters within its expertise (such as the ACCC's views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more "subjective" matters. (v) In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so. (vi) 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 is, in the Court's view, 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 within the permissible range. In Comcare v National Gallery of Australia [2007] FCA 1548 at [4] , [2007] FCA 1548 ; 98 ALD 67 at 68 Gyles J referred to Mobil Oil and accepted that " that decision does provide appropriate guidance ".
Case: Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 , 168 FCR 383
Outcome: applied
In fixing the penalty at $165,000, considerations has been given in particular to the following matters, namely: &#8226; the fact that the breach of the duty occasioned the death of Mr Lapidario; &#8226; the lack of attention previously given to the training extended to supervisors and team leaders; &#8226; the lack of attention previously given to the training of employees and contractors; &#8226; the fact that there was a degree of " horseplay " engaged in by Mr Lapidario himself; &#8226; the steps which have been implemented since his death in an effort to ensure that the health and safety of employees is now protected; &#8226; the contrition expressed by the present Respondent; and &#8226; the fact that the Respondent has been able to reach agreement with Comcare as to those facts considered by the parties to be relevant to the penalty to be imposed, thereby not necessitating a contested hearing. In so proceeding, it is accepted that the Respondent has expressed a " willingness to facilitate the course of justice ": Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 at [74] , [2008] FCAFC 70 ; 168 FCR 383 at 404 per Stone and Buchanan JJ.
Case: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076
Outcome: considered
In the statutory context of the Trade Practices Act 1974 (Cth), French J (as he then was) has attempted to summarise some of these considerations: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076. When assessing the penalty to be imposed pursuant to s 76(1) of the 1974 Act His Honour observed (at 52,152 52,153): The assessment of a penalty of appropriate deterrent value will have regard to a number of factors which have been canvassed in the cases. These include the following: 1. The nature and extent of the contravening conduct. 2. The amount of loss or damage caused. 3. The circumstances in which the conduct took place. 4. The size of the contravening company. 5. The degree of power it has, as evidenced by its market share and ease of entry into the market. 6. The deliberateness of the contravention and the period over which it extended. 7. Whether the contravention arose out of the conduct of senior management or at a lower level. 8. Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention. 9. Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. These considerations have since been applied to other legislative contexts: eg, Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 at [51] , [2004] FCA 1317 ; 136 LGERA 89 ; Australian Prudential Regulation Authority v Derstepanian [2005] FCA 1121 at [30] ; Secretary, Department of Health &amp; Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [24] . 37 These considerations may also be applied to the task of assessing the penalty to be imposed under the current legislation. To some extent the considerations set forth by Madgwick J overlap with those set forth by French J; to some extent they do not.
Case: Civil Aviation Safety Authority v Boatman [2004] FCAFC 336 ; (2004) 139 FCR 444
Outcome: cited
However, this matter has followed a much more protracted course. Prior to the substantive issue being heard, the matter was twice before a Full Federal Court, first in relation to the validity of s 30DE of the Act, the validity of the section being upheld: Civil Aviation Safety Authority v Boatman [2004] FCAFC 165 (' CASA No 1 '); and secondly, in relation to confusion over consent orders that are not relevant to the present proceedings: Civil Aviation Safety Authority v Boatman [2004] FCAFC 336 ; (2004) 139 FCR 444 (' CASA No 2 ').
Case: Civil Aviation Safety Authority v Boatman [2004] FCAFC 165
Outcome: followed
However, this matter has followed a much more protracted course. Prior to the substantive issue being heard, the matter was twice before a Full Federal Court, first in relation to the validity of s 30DE of the Act, the validity of the section being upheld: Civil Aviation Safety Authority v Boatman [2004] FCAFC 165 (' CASA No 1 '); and secondly, in relation to confusion over consent orders that are not relevant to the present proceedings: Civil Aviation Safety Authority v Boatman [2004] FCAFC 336 ; (2004) 139 FCR 444 (' CASA No 2 ').
Case: Fleming v Hutchinson (1991) 66 ALJR 211
Outcome: cited
In relation to the third factor of potential consequences, the applicant contended that the 'word "serious" imports a test which is relative to the range of possible risks'. It is a question of degree: see Fleming v Hutchinson (1991) 66 ALJR 211 at 211 per Mason CJ, Brennan and Dawson JJ, albeit in a different context, where it was said by McGarvie J that 'elements of fact, degree and judgement are involved'.
Case: R v Magdulski (1989) 40 A Crim R 154
Outcome: cited
CASA submitted that the requirement to establish 'reasonable grounds to believe' falls well short of a requirement to satisfy the Court that the respondents did in fact engage in conduct of the requisite character. It requires only that the Court be persuaded that, upon the evidence before it, there are grounds upon which a belief may be based that the respondent had engaged in such conduct (or is likely to engage in it). The presence of grounds to believe the contrary is not inconsistent with the presence of grounds that satisfy the test: R v Magdulski (1989) 40 A Crim R 154.
Case: Maunder v Commonwealth (1983) 51 ALR 44 at 49
Outcome: cited
Counsel for the applicant attacked the Tribunal's findings that the essential character of the function remained and that it continued to be an officially-approved function at a place of work attended by the respondent and his work colleagues. However, this was a matter of fact and degree: Maunder v Commonwealth (1983) 51 ALR 44 at 49, Gregory v Comcare Australia (1997) 72 FCR 196 at 202.
Case: Gregory v Comcare Australia (1997) 72 FCR 196 at 202
Outcome: cited
Counsel for the applicant attacked the Tribunal's findings that the essential character of the function remained and that it continued to be an officially-approved function at a place of work attended by the respondent and his work colleagues. However, this was a matter of fact and degree: Maunder v Commonwealth (1983) 51 ALR 44 at 49, Gregory v Comcare Australia (1997) 72 FCR 196 at 202. 22 Counsel for the applicant relied on Hatzimanolis v ANI Corporation Limited [1992] HCA 21 ; (1992) 173 CLR 473. But, as the Tribunal correctly observed, that case was concerned with quite a different situation, where the worker's injury was sustained in an "interlude or interval occurring within an overall period or episode of work" as distinct from "after the day's work has ceased" (see at 483 and the discussion by Cooper J in Gregory at 200-202). The question in the present case is whether the day's work had ceased before the respondent mounted his motor cycle or, more correctly, whether it was open to the Tribunal to find it had not.
Case: Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 218 ALR 733 at [23]
Outcome: applied
I did not understand counsel for the applicant to dispute the finding that at its inception the function was work-related and that the respondent was required or expected to attend it as part of his duties: cf Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 218 ALR 733 at [23] . Rather, counsel submitted that, at some time before the respondent left, the function ceased to have the character of an officially-approved work function. However, there was ample evidence on which the Tribunal could make the finding it did including: &#8226; Leave was not good prior to the function; &#8226; Leave was not piped or formally announced during the function; &#8226; There was no evidence of any announcement that the function had concluded; &#8226; Most of the function occurred within normal working hours; &#8226; It was reasonable to infer that work issues were still being discussed towards the end of the function; &#8226; The final clean-up did not occur until about 5.30 pm. 21 Understandably, counsel for the applicant did not submit that the Tribunal was obliged to find that the work-related character of the function ceased on the dot of 3.50 or 4.00 pm. That being so, the applicant's case has to be that the only finding open to the Tribunal was that at some unspecified time after 4.00 pm but (well) before 5.30 or 6.00 pm, and without any announcement or other identifiable event, the character of the function changed. This argument must be rejected.
Case: Hatzimanolis v ANI Corporation Limited [1992] HCA 21 ; (1992) 173 CLR 473
Outcome: distinguished
Counsel for the applicant relied on Hatzimanolis v ANI Corporation Limited [1992] HCA 21 ; (1992) 173 CLR 473. But, as the Tribunal correctly observed, that case was concerned with quite a different situation, where the worker's injury was sustained in an "interlude or interval occurring within an overall period or episode of work" as distinct from "after the day's work has ceased" (see at 483 and the discussion by Cooper J in Gregory at 200-202). The question in the present case is whether the day's work had ceased before the respondent mounted his motor cycle or, more correctly, whether it was open to the Tribunal to find it had not.
Case: Duffy v Construction, Forestry, Mining &amp; Energy Union (No 2) [2009] FCA 299
Outcome: referred to
are three instances of similar previous conduct by the Union involving breaches of s 38 ; see Stuart-Mahoney, Temple v Powell [2008] FCA 714 ; (2008) 169 FCR 169 and Duffy v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 299. Although the relevant conduct in Temple , concerned breaches by the Western Australian Branch of the Union of s 38 of the Act, nevertheless the conduct is previous relevant conduct; see Williams v Construction, Forestry, Mining and Energy Union (No. 2) [2009] FCA 548 per Jessup J at [22] [25], see also Temple per Dowsett J at [63]. The second respondent has not engaged in any similar previous conduct. In contrast to the circumstances in Stuart-Mahoney, Temple and Duffy (No 2) , the respondents' conduct on 6 October 2006 was of limited duration and impact and penalties at the lower end of the scale are appropriate.
Case: Stuart-Mahoney v Construction, Forestry, Mining &amp; Energy Union [2008] FCA 1426
Outcome: referred to
factors relevant to a penalty for a contravention of the Act have been thoroughly discussed by this Court; see, eg, Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 per Tracey J at [40] and citations therein. As Tracey J observed in Stuart-Mahoney at [40], the relevant considerations include: The respondents' conduct consisted of a brief stop work meeting and a short-lived ban on crane work. Crane work at the Site was only affected for 90 minutes and during this time the Sergi employees continued to perform other work at the Site. The ban and stop work meeting did not significantly disrupt work at the Site and any loss or damage caused was minimal. Given the brief period of time in which the ban and stop work meeting occurred, and the interrelationship between the two events, it is appropriate to regard the stop work meeting and subsequent ban as a single course of conduct giving rise to a single contravention; see s 36(3) of the Act.
Case: Temple v Powell [2008] FCA 714 ; (2008) 169 FCR 169
Outcome: referred to
are three instances of similar previous conduct by the Union involving breaches of s 38 ; see Stuart-Mahoney, Temple v Powell [2008] FCA 714 ; (2008) 169 FCR 169 and Duffy v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 299. Although the relevant conduct in Temple , concerned breaches by the Western Australian Branch of the Union of s 38 of the Act, nevertheless the conduct is previous relevant conduct; see Williams v Construction, Forestry, Mining and Energy Union (No. 2) [2009] FCA 548 per Jessup J at [22] [25], see also Temple per Dowsett J at [63]. The second respondent has not engaged in any similar previous conduct. In contrast to the circumstances in Stuart-Mahoney, Temple and Duffy (No 2) , the respondents' conduct on 6 October 2006 was of limited duration and impact and penalties at the lower end of the scale are appropriate.
Case: Minister for Industry, Tourism &amp; Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
Outcome: applied
light of the parties' agreement as to the appropriate penalties to be imposed, the relevant question for this Court is whether the agreed penalty is "appropriate in all the circumstances"; see Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 per Branson, Sackville and Gyles JJ at [51]. The penalties are not inappropriate merely because I would have imposed different figures. Rather, the penalties agreed by the parties must be within the permissible range of penalties for such a contravention; see Mobil Oil at [51] and [54]. The Court must still consider the factors relevant to the contraventions by the respondents to determine the permissible range of penalties for the contraventions. An agreed penalty must adequately give effect to general and specific deterrence; Mobil Oil at [69]. Despite the limited duration and impact of the ban and stop work meeting, the imposition of penalties is appropriate in order to provide general and specific deterrence. Although the respondents may have held legitimate health and safety concerns, other avenues were available to the respondents to address these concerns in a lawful manner; see Duffy (No 2) at [18]. In light of these factors, I am satisfied that the agreed penalties proposed by the parties are sufficient to provide both general and specific deterrence. In view of considerations discussed, I consider that the appropriate range of penalty is in the lower to medium range for the contravention of the Union and that the penalty agreed by the parties is appropriate in all the circumstances. I do have some concerns about imposing a monetary penalty on the second respondent for performing his job in accordance with the approach to industrial relations taken by his employer, the first respondent, in circumstances where that respondent has had a monetary penalty imposed on it. The penalty on the second respondent is within the permissible range, albeit at the upper end of that range. That is especially so where no prior contravention is alleged against the second respondent. Absent the parties' agreement I would not have imposed a penalty in that amount on the second respondent but as the agreed penalty is within the permissible range, albeit barely, I will order accordingly. The parties have agreed that each should bear his and its own costs of the proceeding. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 29 July 2009 Counsel for the Applicant: Mr J Bourke Solicitor for the Applicant: DLA Phillips Fox Counsel for the Respondents: Mr C Dowling Solicitor for the Respondents: Construction, Forestry, Mining and Energy Union Date of Hearing: 15 July 2009 Date of Judgment: 29 July 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/787.html
Case: Health Insurance Commission v Freeman (1998) 88 FCR 544
Outcome: cited
It is not necessary to resolve that issue as, in my opinion, the objection cannot succeed in the face of the decision of the Full Court in Laing v Carroll [2005] FCAFC 202 ; (2005) 146 FCR 511 which concerned the operation of the predecessors to s 169 of the Act, namely, s 83BH and s 86 of the Act as it stood in 2003. The sections cannot be distinguished in substance and the reasoning in Laing [2005] FCAFC 202 ; 146 FCR 511 is directly applicable to the present circumstances. Lander J gave the leading judgment on this point (at [246] [286]). Kenny J agreed (at [82]) but added some observations of her own on this point ([90] [93]). On this reasoning, the powers in question are not spent, even by the institution of civil penalty proceedings. It seems that Spender J would agree ([76]). There is no need for me to repeat the analysis of the authorities to be found in those judgments. I would only add a reference to the judgment of Merkel J in Health Insurance Commission v Freeman (1998) 88 FCR 544 at 558 560 (agreed with by Von Doussa J and Carr J). The argument is weaker in this case than in Laing [2005] FCAFC 202 ; 146 FCR 511 as the proceeding had not been commenced at the time of the interviews. It can be concluded that a decision in principle to commence the proceeding had been taken by 2 December 2006. That is not incompatible with the necessity for completion of the investigation prior to actual commencement of the proceeding. I should add that there is no basis here for an argument that the interviews constituted a contempt of court. The evidence was not illegally obtained.
Case: Laing v Carroll [2005] FCAFC 202 ; (2005) 146 FCR 511
Outcome: followed
It is not necessary to resolve that issue as, in my opinion, the objection cannot succeed in the face of the decision of the Full Court in Laing v Carroll [2005] FCAFC 202 ; (2005) 146 FCR 511 which concerned the operation of the predecessors to s 169 of the Act, namely, s 83BH and s 86 of the Act as it stood in 2003. The sections cannot be distinguished in substance and the reasoning in Laing [2005] FCAFC 202 ; 146 FCR 511 is directly applicable to the present circumstances. Lander J gave the leading judgment on this point (at [246] [286]). Kenny J agreed (at [82]) but added some observations of her own on this point ([90] [93]). On this reasoning, the powers in question are not spent, even by the institution of civil penalty proceedings. It seems that Spender J would agree ([76]). There is no need for me to repeat the analysis of the authorities to be found in those judgments. I would only add a reference to the judgment of Merkel J in Health Insurance Commission v Freeman (1998) 88 FCR 544 at 558 560 (agreed with by Von Doussa J and Carr J). The argument is weaker in this case than in Laing [2005] FCAFC 202 ; 146 FCR 511 as the proceeding had not been commenced at the time of the interviews. It can be concluded that a decision in principle to commence the proceeding had been taken by 2 December 2006. That is not incompatible with the necessity for completion of the investigation prior to actual commencement of the proceeding. I should add that there is no basis here for an argument that the interviews constituted a contempt of court. The evidence was not illegally obtained.