Case: Australian Securities and Investments Commission v Vizard [2005] FCA 1037 ; (2005) 145 FCR 57
Outcome: cited
The ACCC submitted that an important consideration in the context of deterrence is that the CEPU has expressed no contrition for its involvement in Edison's contraventions of ss 45E(3) and 45EA. As a result, the ACCC submitted that the Court could have no confidence that the CEPU and its senior officers, including Mighell, regret what happened or that they have resolved to ensure that contravening conduct of the kind in question in this case will not happen again. An explicit statement of contrition will ordinarily be associated with an admission of liability: see eg, Australian Securities and Investments Commission v Vizard [2005] FCA 1037 ; (2005) 145 FCR 57 at 64 [31] . Where a respondent contests allegations that it contravened a provision of Pt IV of the TPA, and wishes to preserve its right of appeal, it is hardly to be expected that the respondent will express unreserved contrition at the penalty hearing. Moreover, there may be reasons unknown to the court why a respondent has not been prepared to admit liability prior to the hearing. In general, I consider that an appropriate expression of contrition may warrant a discount on penalty, but the absence of an expression of that kind ought not to elevate the penalty beyond what would otherwise be appropriate. In this context, the inquiry that must be pursued is what level of penalty is required to achieve the objective of specific deterrence, having regard to the factors to which the CEPU points, including its record of non-contravention since October 2002 and its ongoing compliance program, and the other circumstances of the case. I have concluded that the absence of an expression of contrition by the CEPU for its contraventions should not elevate the penalty to be imposed on the CEPU beyond what would otherwise be appropriate. 73 The CEPU referred the Court to three cases in which penalties were imposed on unions under the TPA. It contended that these cases supported its submission that the appropriate penalty was in the order of $20,000, and that the penalty proposed by the ACCC was excessive. 74 In the PKIU case, the Court held that three unions, including the CEPU, contravened s 45D of the TPA by forming and maintaining a picket line over the period from 2 October 2002 to 23 October 2002 which prevented the construction of a gas plant. Each of the unions agreed to a penalty of $100,000, in circumstances where there was no order for costs against them. The picket line was established in defiance of orders made by the Australian Industrial Relations Commission ('the Commission') and caused significant losses to the owner of the plant. In his reasons for judgment, Gray J noted that the respondents had reached agreement to pay compensation to the plant owner for its losses, that the respondents were entitled to credit for their co-operation with the Commission and for the saving of public money in relation to the litigation, and that it was not suggested that any of the respondents had a record of similar contraventions: at 48,750 [8]. On the other side of the ledger, Gray J noted several factors that would tend to increase the size of the penalty: the picket continued to be operated despite the orders of the Commission, the delay in the construction of the plant was thus extended, and the unions had not instituted any program or training designed to ensure compliance with the TPA: at 48,751 [10]. His Honour concluded that the penalties ought to be at the very highest end of the range appropriate for conduct of the kind in question, and on that basis he made orders which imposed penalties at the agreed level of $100,000. In the absence of agreement as to that level of penalty, Gray J said that he would have fixed a figure considerably lower than $100,000. In expressing this view, Gray J took particular note of the fact that the unions were not profit-making enterprises and did not engage in the conduct in question for their own gain. His Honour also noted that the agreed penalties represented a large sum for the unions to pay from their own resources which would ultimately have to come from the pockets of wage earners.