Case: Comcare v National Gallery of Australia [2007] FCA 1548 , 98 ALD 67
Outcome: followed
In Comcare v National Gallery of Australia [2007] FCA 1548 , 98 ALD 67 a penalty of $20,000 had been agreed between the parties and ordered by the Court. Whilst not downplaying the serious risks involved, the injuries sustained by the workers were relatively mild. Gyles J there further observed: [8] All things considered, I am satisfied that the pecuniary penalty proposed is appropriate. As the cases indicate, it is not so much a question of me deciding what figure I would independently propose and then seeing whether it accords with the figure proposed. A commonsense approach is to take the agreed figure and give consideration to whether it is within the range of appropriate figures. In my opinion it is. I make the orders set out in the draft order which I have initialled and placed with the papers. 34 Although the particular legislative regime which is being enforced must always remain the source whereby considerations relevant to the imposition of a penalty are to be discerned, there nevertheless remain some more general considerations that inform the discretion being exercised. 35 Many other Commonwealth Acts provide for a regulator to approach this Court seeking an order for the imposition of a pecuniary penalty as a means of securing compliance with legislative provisions. A degree of learning has emerged from those authorities dealing with those other legislative provisions as to the matters to be taken into account when assessing a penalty. 42 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 ".