Case: Williams v CFMEU (No. 2) [2009] FCA 548
Outcome: cited
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. It seems to me that when Branson J formulated in CFMEU v Coal &amp; Allied Operations Pty Ltd (No. 2) (supra at [17] of these reasons) a non-exhaustive list of considerations to be taken into account in the exercise of the discretion in respect of a contravention of what was Part XA of the Act, her Honour was not intending to convey the impression that by making reference to whether previous contraventions of Part XA of the Act had occurred, her Honour was suggesting that previous contraventions of other provisions of the Act or other contraventions relevant to the exercise of the discretion ought to be excluded from consideration. I respectfully agree with the observations on these matters of Jessup J in Williams v CFMEU (No. 2) and Dowsett J in Temple v Powell (2008) 173 IR 189 at [64]. I respectfully disagree with the approach adopted in Leighton Contractors Pty Ltd v CFMEU (2006) 164 IR 375 at 389 390 [67] per Le Miere J. I disagree in the sense that the exercise of the discretion ought not to be fettered by an exclusionary rule. Each case will turn on its own facts. Further, I do not accept that contraventions by a federally registered Union ought to be disregarded if the previous contraventions have occurred in a different geographical place from that within the area of responsibility of that part of the Union engaged in the contraventions under consideration in the imposition of a penalty. Otherwise, a Union registered under Commonwealth legislation operating nationally would be required to be treated as a collection of Balkan States rather than a nationally governed organisation conducting itself in a way consistent with the objectives of the Commonwealth legislation under which it is registered and legislation under which it operates in the modern Australian environment. In that sense, I respectfully agree with the observations of Kiefel J in Hadgkiss v CFMEU (2007) 162 IR 385 at [9] and [10]. The penalty