Case: Kelly v Fitzpatrick (2007) 166 IR 14
Outcome: cited
the discretion is at large and informed by the particular circumstances of a contravention, the discretion should be exercised broadly according to settled principle which nevertheless recognises the important flexibility necessary to adapt the exercise of the discretion to particular conduct, the contextual circumstances of that conduct and any other matter relevant to the exercise of the discretion. Judges of this Court have sought to isolate principles or criteria informing the exercise of the discretion to impose a pecuniary penalty and the quantum of the penalty. The observations of Branson J in Construction, Forestry, Mining &amp; Energy Union v Coal &amp; Allied Operations Pty Ltd (No. 2) (1999) 94 IR 231 at [8] are well known and have been applied regularly in this Court (some examples of which are Australian Nursing Federation v Alcheringa Hostel Inc. (2004) 138 IR 122 per Ryan J at [44]; Alfred v Walter Construction Group Limited [2005] FCA 497 per Branson J at [10]; Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 237 per Branson J at [4]; Hadgkiss v Blevin [2004] FCA 917 per Conti J at [3]; Kelly v Fitzpatrick (2007) 166 IR 14 per Tracey J and Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 per Tracey J at [39]; McIlwain v Ramsey Food Packaging Pty Ltd (No. 4) [2006] FCA 1302; (2006) 158 IR 181 at [92]). Branson J, in formulating observations at [8] in CFMEU v Coal &amp; Allied Operations Pty Ltd (No. 2) recognised that the list of factors her Honour took into account was not intended to comprise an exhaustive list. Tracey J in Kelly v Fitzpatrick and Stuart-Mahoney v CFMEU formulated a potentially relevant checklist of considerations. These considerations are useful but the overriding principle is that identified by Buchanan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 at [91] in these terms: Checklists of this kind can be useful providing they do not become transformed into a rigid catalogue of matters for attention. At the end of the day the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations. I 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.