Case: Ponzio v B &amp; P Caelli Constructions Pty Ltd &amp; Ors [2007] FCAFC 65; 158 FCR 543
Outcome: cited
have had regard to the discussion of the totality principle in Mill v The Queen (1988) 166 CLR 59 per the Court and particularly at 62-63; Johnson v R (2004) 205 ALR 346 and particularly per Gleeson CJ at [4] and [5] and per Gummow, Callinan and Heydon JJ at [26]; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 per Goldberg J; Ponzio v B &amp; P Caelli Constructions Pty Ltd &amp; Ors [2007] FCAFC 65; 158 FCR 543 particularly per Jessup J at [145] to [147]; Mornington Inn Pty Ltd v Jordan (supra) and particularly per Stone and Buchanan JJ at [41] to [46]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (supra) per Gray J, per Graham J and per Buchanan J; Kelly v Fitzpatrick (supra) per Tracey J; and Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228 per Finkelstein J. It is fair to say that that approach has not been generally supported in the authorities. Rather than commence the assessment by determining an overall penalty and then distributing the amount of that penalty amongst the various contraventions either arithmetically or by reference to a weighted distribution, the better approach to the application of the totality principle involves an assessment of a penalty appropriate to each contravention and then a final overall assessment of the sum of the penalties to consider whether the aggregate is "just and appropriate". This approach is consistent with Mill v The Queen (supra) and has been applied by Goldberg J in ACCC v Australian Safeway Stores Pty Ltd ; Jessup J in Ponzio v B &amp; P Caelli Constructions; Jessup J in Williams v CFMEU (No. 2) [2009] FCA 548 and Tracey J in Kelly v Fitzpatrick (supra). The approach has been described by Gummow, Callinan and Heydon JJ in Johnson v R (supra) at [26] in these terms: The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. One further matter should be mentioned in relation to the policy guiding the approach to imposing a penalty. In Ponzio v B &amp; P Caelli Constructions (supra), Lander J at [93] put the principles in these terms with which I respectfully agree: There are three purposes at least for imposing a penalty: punishment; deterrence; and rehabilitation. The punishment must be proportionate to the offence and in accordance with the prevailing standards of punishment: R v Hunter . Therefore the circumstances of the offence or contravention are especially important. The penalty must recognise the need for deterrence, both personal and general. In regard to personal deterrence, an assessment must be made of the risk of re-offending. In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend: Yardley v Betts . The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like minded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty: R v Thompson . In some cases, although hardly in this type of contravention, rehabilitation is an important factor. [citations omitted] In Ponzio , Lander J was considering a contravention of s 187AA of the Act which prohibited an employer from making a payment to an employee in relation to a period during which the employee was engaged in industrial action. Previous contraventions The intervener has formulated a schedule consisting of 55 references to cases in which a pecuniary penalty was imposed on a Union involved in the present contraventions, in respect of previous breaches of the Act or the BCII Act or alternatively breaches by officials of one or more of those Unions. The applicant also relies upon these references. I advised the parties that I would only have regard to those cases within the schedule to which I was expressly taken and upon which the intervener and the applicant expressly rely. The previous contraventions relied upon are these.