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Calculating compensation for general protections breach Part 4; civil penalties paid to victim?

Compensation for general protections contraventions Part 4; civil penalties and when will they be ordered to be paid to the applicant?
S.546 of the Fair Work Act 2009 Act provides:
o Pecuniary penalty orders
o (1) The Federal Court, the Federal Circuit Court or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.
o Note: Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of a modern award, a national minimum wage order or an enterprise agreement only because of the retrospective effect of a determination (see s.167(3) and s.298(2)).
o Determining amount of pecuniary penalty
o (2) The pecuniary penalty must not be more than:
 (a) if the person is an individual-the maximum number of penalty units referred to in the relevant item in column 4 of the table in s.539(2); or
 (b) if the person is a body corporate-5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection s.539(2).
o Payment of penalty
o (3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to:
 (a) the Commonwealth; or
 (b) a particular organisation; or
 (c) a particular person.
o Recovery of penalty
o (4) The pecuniary penalty may be recovered as a debt due to the person to whom the penalty is payable.
o No limitation on orders
o (5) To avoid doubt, a court may make a pecuniary penalty order in addition to one or more orders under section 545.
S.557(1) of the Act provides that:
o Course of conduct
o (1) For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:
 (a) the contraventions are committed by the same person; and
 (b) the contraventions arose out of a course of conduct by the person.
These provisions do not, however, apply to contraventions of the general protection provisions of the Act: sub-s.557(2) of the Act.
S.539(2) of the Act prescribes the following maximum penalties that may be imposed on an individual for contraventions of that Act:
o 60 penalty units for a contravention of s.340 of the Act.
A penalty unit is $170.00 (s.4AA(1)) of the Crimes Act 1914).
As the Second Respondent is a person, the maximum penalty for each contravention found by the Court is $10,200.00. S.546(2)(b) of the Act provides that a pecuniary penalty in the case of a body corporate must not be more than five times the maximum number of penalty units referred to in s.539(2) of the Act. As the First Respondent is a body corporate, the maximum penalty for each contravention found by the Court is, therefore, $51,000.
The discretion given to the Court to Order penalties under the Act is a broad one. The Courts have, however, developed principles in relation to the approach, which is appropriate to adopt in determining any penalty to apply for civil remedy contraventions and, in addition, what is described as a convenient checklist in determining the penalty to apply for each contravention.
The authorities establish that the following principles should be taken into account in determining the question of appropriate penalty: Fair Work Ombudsman v Jetstar Airways Ltd [2014] FCA 33 per Buchanan J at [28].
The first step for the Court is to identify the separate contraventions involved. Each contravention of each separate obligation in the Act in relation to each employee is a separate contravention: Gibbs v Mayor, Councillors and Citizens of City of Altona [1992] FCA 374 at [24]; McIver v Healey [2008] FCA 425 at [16].
Secondly, the Court should consider whether some or all of the contraventions arising in the first step constitute a single course of conduct, pursuant to s.557(1) of the Act. As noted earlier this subsection does not apply with respect to contraventions of the General Protection provisions of the Act.
Thirdly, to the extent that two or more contraventions have common elements, this should be taken into account in considering what is an appropriate penalty, in all the circumstances, for each contravention. The Respondents should not be penalised more than once for the same conduct. The penalties imposed by the Court should be an appropriate response to what the Respondents did: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [46]. The task is distinct from and in addition to the final application of the totality principle: Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 at [41]-[46].
Fourthly, the Court should consider an appropriate penalty in respect of each contravention, whether a single contravention, a course of conduct or a group of contraventions, having regard to all of the circumstances of the case.
Finally, having fixed an appropriate penalty for each contravention, the Court should take a final look at the aggregate penalty, to determine whether it is an appropriate response to the contravening conduct. This is known as the “totality principle”.
The matters that the Court should take into account when considering the imposition of a penalty under the Act were summarised by Mowbray FM in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7. This summary was adopted by Tracey J in Kelly v Fitzpatrick (2007) 166 IR 14 at [14] and has been consistently used ever since. The Court acknowledges that the summary is a convenient checklist, but does not prescribe or restrict the matters which may be taken into account, in the exercise of its discretion; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 per Gray, Graham and Buchanan JJ.
That list is as follows:
o The nature and extent of the conduct which led to the breaches.
o The circumstances in which that conduct took place.
o The nature and extent of any loss or damage sustained as a result of the breaches.
o Whether there had been similar previous conduct by the respondent.
o Whether the breaches were properly distinct or arose out of the one course of conduct.
o The size of the business enterprise involved.
o Whether or not the breaches were deliberate.
o Whether senior management was involved in the breaches.
o Whether the party committing the breach had exhibited contrition.
o Whether the party committing the breach had taken corrective action.
o Whether the party committing the breach had cooperated with the enforcement authorities;
o The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and
o The need for specific and general deterrence.
The Applicant submits that the appropriate course is to impose an aggregate penalty at 75% of the maximum, which applied to a single contravention, namely, $38,250 against the First Respondent and $7,650 against the Second Respondent.
There are two separate contraventions with which the Court is concerned. The declarations in respect to those contraventions are set out at [6] above. I am satisfied that these contraventions arise out of a common substratum of facts, giving rise to common elements. These are that the Applicant took an initial period of sick leave. After taking an initial period of sick leave, she then informed the Second Respondent on 22 August 2014 that she would not be returning back to work on 25 August 2014, that she would provide relevant medical documentation, but could not say when she would return. On 23 August 2014 the Respondents took adverse action, that being the dismissal of the Applicant. In these circumstances, I formed the view that it is appropriate in considering what is the appropriate penalty for each of the contraventions, to take account of the almost completely overlapping factual circumstances, which formed the basis for the contraventions.
I now turn to a consideration of the appropriate penalty for the two contraventions, taking into account the commonality of the factual circumstances of these contraventions. I have had regard to the factors listed in [77] above and any other matters I have considered relevant as follows:
o the contraventions arose from the Applicant’s advice to the Second Respondent that she was taking a further period of sick leave and the contraventions occurred over a short period of time; in fact, less than 24 hours after the Second Respondent received the advice;
o I have found that the economic loss suffered by the Applicant was equivalent to an amount equivalent to a discounted four-month income stream, based on the salary she received at the Grosvenor Hotel, offset by actual earnings and a weeks payment in lieu that she received. I have found that her non-economic loss is $10,000.00;
c. there is no evidence that the Respondents have engaged in or have been found to have engaged in previous conduct;
d. the size of the business enterprise is small. I am satisfied that the breach here engaged in by the Second Respondent was deliberate, in the sense that he was the only person who drafted the relevant email dismissing the Applicant. It was his decision to dismiss the Applicant. As the owner of the Grosvenor Hotel, he was of course senior management;
e. there has been no expression of contrition by the Second Respondent;
f. it is not evident to me what corrective action the Second Respondent might have taken; and
g. there is, without doubt, a need to protect employees’ minimum rights to take sick leave and to have the benefit of any right under relevant workers compensation legislation.
The need for specific and general deterrence
In Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate and Ors [2015] HCA 46, the High Court affirmed the principle that the main, if not primary, purpose of the civil penalty provisions is the public interest in promoting deterrence:
o “55. No less importantly, whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance:
 “Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act]. … The principal, and I think probably the only, object of the penalties imposed by s.76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.””
In relation to specific deterrence, Gray J observed in Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2008] FCAFC 170; (2008) 171 FCR 357; (2008) 177 IR 243, at [37] that:
o “… Specific deterrence focuses on the party on whom the penalty is to be imposed and the likelihood of that party being involved in a similar breach in the future. Much will depend on the attitude expressed by that party as to things like remorse and steps taken to ensure that no future breach will occur…”
In Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2) [2012] FCA 557, Marshall J observed at [29]:
o “… It is important to ensure that the protections provided by the Act to employees are real and effective and properly enforced. The need for general deterrence cannot be understated. Rights are a mere shell unless they are respected:…”
In relation to general deterrence, Lander J noted in Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; [2007] FCAFC 65 (“Ponzio”) at [93]:
o “… 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 (1979) 22 SASR 108. 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 (1975) 11 SASR 217. …”
In the absence of any remorse or contrition expressed by the Respondents, as well as the desirability of setting an appropriate penalty that will act as a deterrent to others in the industry, who may be likely to act in a manner giving rise to the contraventions, the need for specific and general deterrence forms a significant factor in this decision.
Conclusion on penalties
I am satisfied, taking into account all relevant considerations that a penalty should be set at 75% in total for both contraventions. This amounts to a $7,650 penalty against the Second Respondent and a $38,250 penalty against the First Respondent.
Having determined what the award of penalty should be, I now turn to consider the totality principle. In Ponzio, Jessup J, with whom Lander J agreed, said at [145] to [146]:
o “145. For the above reasons, his Honour’s disposition of the appellant’s case under s 187AA cannot stand. That does not mean, however, that the appeal must necessarily succeed. As I have said, the trial Judge recognised that this was a case in which the totality principle should apply. His Honour said that the principle required “that in imposing penalties for numerous offences, the penalties in aggregate are just and appropriate … .” For that proposition, his Honour relied upon CPSU v Telstra Corporation Ltd [2001] FCA 1364; (2001) 108 IR 228, 230 [7]. In CPSU, Finkelstein J said that, in a case of multiple breaches punishable by pecuniary penalty, it would be –
 … necessary to resolve upon the appropriate total penalty, dividing that penalty by the number of individual contraventions and record that amount as the penalty for each contravention, whether or not the sum produced might be regarded as an inappropriate individual penalty.
o With respect to his Honour, I do not believe this is the correct approach. The position was, in my view, correctly stated by Goldberg J in ACCC v Australian Safeway Stores Pty Ltd [1997] FCA 450;(1997) 145 ALR 36, 53:
 The totality principle is designed to ensure that overall an appropriate sentence or penalty is appropriate and that the sum of the penalties imposed for several contraventions does not result in the total of the penalties exceeding what is proper having regard to the totality of the contravening conduct involved: McDonald v R [1994] FCA 956; (1994) 48 FCR 555; 120 ALR 629. But that does not mean that a court should commence by determining an overall penalty and then dividing it among the various contraventions. Rather the totality principle involves a final overall consideration of the sum of the penalties determined. In Mill v R [1988] HCA 70; (1988) 166 CLR 59; 83 ALR 1 the High Court accepted the following statement as correctly describing the totality principle:
 The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is “just and appropriate”. The principle has been stated many times in various forms: “when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong”; “when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences”.
 As Spender J pointed out in McDonald v R at FCR 556; ALR 631:
 Implicit in that statement is that the sentence for each offence should be “properly calculated in relation to the offence for which it is imposed.”
 It is explicit in this statement that a sentencer or penalty fixer must, as an initial step, impose a penalty appropriate for each contravention and then as a check, at the end of the process, consider whether the aggregate is appropriate for the total contravening conduct involved: McDonald v R at FCR 563, per Burchett and Higgins JJ.
o The position as stated in Mill, on which Goldberg J relied, was described by Gummow, Callinan and Heydon JJ as the “orthodox, but not necessarily immutable, practice” in Johnson v The Queen[2004] HCA 15; [2004] 205 ALR 346, [26].
o 146. In a setting which did not involve an agreement on penalty, it would, therefore, be necessary to commence with an assessment of an appropriate penalty for each contravention, paying due regard to such mitigating factors as there were. In the judgments to which the trial Judge referred, it seems to have been accepted that, absent strong mitigating circumstances such as sheer inadvertence, a penalty of about $200 for each contravention of s 187AA on the facts existing on 5 and 6 August 2003 could not be regarded as excessive. On the facts of the present case, and having regard to what I have described as the conventional mitigating circumstances referred to by his Honour, I do not think that a penalty of $200 for a single contravention would have been excessive. It may not have been the penalty that I would have imposed, but on no view might it have been regarded as outside the permissible range. If that penalty had been imposed for each of the contraventions which came before his Honour, a total of $20,200 would be the aggregate result. Manifestly the application of the totality principle was then required.”
Standing back, in considering all the circumstances, I am satisfied that a just and appropriate penalty is $7,000 against the Second Respondent and $35,000.00 against the First Respondent.
The Respondents argue that the Court should adopt the approach of Justice Mortimer in Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338 where, at [76], her Honour said:
o I dealt with the authorities about payment of penalties, and the underlying rationales concerning common informers, in Dafallah v Fair Work Commission (2014) 225 FCR 559; [2014] FCA 328 at[139]- [143], and I need not repeat those passages. In those paragraphs, amongst other observations, I respectfully agreed with the remarks of Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd (No 4) (2006) 158 IR 181; [2006] FCA 1302 at [108] (endorsed by Branson and Lander JJ in Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357; [2008] FCAFC 170 at [70]):
 the imposition of a penalty under the Act is designed fundamentally to serve the public interest in acting as a deterrent to the particular Respondents and others generally from engaging in conduct of the kind the subject of the findings. In circumstances where an order has been made for compensation for both economic loss and a non-economic component concerning the disturbance, dislocation and loss of secure employment suffered by the individuals, there seems to be no good policy reason why the individuals should additionally have the benefit of an order for the payment to them of the penalty.”
Her Honour determined that the penalty should be paid into consolidated revenue. Her Honour’s reasoning is set out at [93]:
o In my opinion, to order that the sums of money imposed by way of penalty on the respondent be paid to the applicant would to be to deliver to him a windfall which would not be appropriate in the circumstances, and would not serve the interests of the administration of justice. He would receive more in real terms through the penalty payment than I determined he was entitled to by way of compensation, yet would receive that $45,000 in addition to receiving payment from the respondent by way of compensation. The inherent requirement in the compensation provisions of the Fair Work Act that a person seeking compensation prove the loss he or she alleges he or she has suffered, and otherwise prove to the satisfaction of the Court the entitlement to the remedy sought (e.g., reinstatement) would be undermined, as would the legislative policy behind s.570(1).
o (my emphasis)
This approach was rejected by a Full Court on appeal: Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4.
92. Referring to the judgment of Branson and Lander JJ in Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (supra), the Full Court said at [90]:
o But their Honours refrained from expressing a concluded view on whether, in a case in which it would otherwise be appropriate for the “usual order” to be made, such an order should not be made if it would be likely to result in a windfall to an applicant (in the sense they had described it). In other words, their Honours refrained from deciding the issue that apparently now arises for consideration in this appeal.
The Full Court then considered the judgement of Gray J in Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (supra) and concluded as follows at [97] to [107]:
o 97. Gray J added, at [45], that the notion that the penalty was designed to compensate for the costs of the proceeding has in turn led to the notion that the Court should avoid ordering a payment which would produce a “windfall” to the initiating party, referring to what was said by Finkelstein J in the CPSU v Telstra case. He also referred to what French J (as his Honour then was) said in Municipal Officers Association of Australia v City of Bayswater (1987) 22 IR 45 at 51, in referring to s.120 of the 1904 Act (as amended in 1956):
 I have not been persuaded that there is any reason that this penalty ought to be paid to the applicants. The applicants’ interests in respect of these particular redundancies have not been seriously affected. There is no suggestion that the employees concerned have been in any way under compensated for the redundancies to which they have been subjected.
o 98. Gray J considered that French J was in error in seeing the purpose of the order as compensatory. Gray J added that the passage he had previously cited from Seymour contained a refutation of that proposition and provided no support for the proposition that proceedings for pecuniary penalties are not to be used for profit. His Honour added that, “[t]he question of profit simply did not arise”.
o 99. Gray J concluded:
 The notion that the order to pay a penalty to the initiating party could produce a windfall is a false notion. If the true purpose of such an order is taken into account, and the order is not regarded as compensatory in any way, any notion of a windfall disappears.
o 100. We respectfully agree.
o 101. Given the legislative history of s.539(2) and s.546(3) of the FW Act, since the enactment of ss 44 and 45 in the pioneering 1904 Act, and the manner in which the “usual order” was articulated in such early cases as the Vehicle Builders’ Employees’ Federation case and Seymour, which is reflected in the Explanatory Memorandum, we consider that the power conveyed by s.546(3) is ordinarily to be exercised by awarding any penalty to the successful applicant. We accept that there may be cases (of which this is not one) where the penalty, or a part of the penalty, should be paid to another person in the circumstances described by Gray J in Plancor at [44] (as set out at [96] above).
o 102. The examples given in the Explanatory Memorandum and by Gray J in Gibbs as to when a payment (or a part payment) might be made to a particular person support the view that, depending on the factual circumstances of a particular case, a particular person for whose benefit, in effect, the contravention proceeding was brought may be the beneficiary of a s.546(3) order in the types of cases there referred to.
o 103. However, the circumstance that a beneficiary of such an order is no longer “out of pocket” (to use the language of the Explanatory Memorandum) does not, in our view, support the articulation of a principle that a successful applicant is only entitled to such an order if they can demonstrate they have incurred costs, not being legal costs within s 570 of the FW Act; or where they can show that if the penalty is paid to them they would not receive a “windfall” — however that term should properly be understood.
o 104. In our view, the legislative history of s.546(3), older authority and the terms of the Explanatory Memorandum show that no immediate or obvious connection was intended to be drawn between the exercise of the s.546(3) power and the exercise of the power under s.545 of the FW Act to order compensation.
o 105. Moreover, s.546(5) makes it plain the Court may make a pecuniary penalty order in addition to a s.545 order. The fact that a compensation order has also been made should not control the exercise of the s.546(3) power with respect to the payment of the penalty.
o 106. There is no necessary tension, as the primary judge put it, between the application of the “usual order”, where a person affected by the contravention succeeds in a court proceeding and a penalty is imposed, and the separate entitlement of that person to be compensated under s.545. Nor is there any necessary relationship between the s.570 limitation on the recovery of legal costs in proceedings under the FW Act, except in prescribed circumstances, and the application of the “usual order”.
o 107. Rather, s.546(3) has a long and well-understood operation. The FW Act enables, amongst others, a person affected by a contravention to initiate an enforcement proceeding and to receive the penalty, where one is imposed.
The Full Court referred to the decision of Jessup J in Murrihy v Pty Ltd (No. 2) [2013] FCA 1146; (2013) 221 FCR 118, stating at [113] to [115]:
o 113. … Referring to Plancor, Jessup J made the following points in relation to the case before him, at [116],:
o First, the case did not call for a consideration of the situation in which a registered organisation is the applicant.
o Secondly, in the words of Branson and Lander JJ in Plancor, the applicant was “the individual affected by the conduct so penalised”, so the circumstance that she may, in some instances, have been compensated for some of the loss which she had sustained would not necessarily stand in the way of her receiving all or some of the penalties to be imposed.
o Thirdly, their Honours’ treatment of the “windfall” point was consistent with it being appropriate to take into account the costs and expenses to which the applicant, as applicant, had obviously been exposed in the assertion of her contractual and statutory rights in the proceeding. That was not to suggest that the s.546(3) discretion should be exercised in a way that provides a substitute for costs which are unavailable under s.570 of the FW Act, but, where there have clearly been such costs and expenses, it may serve to counter any suggestion that the applicant would walk away from the case with a “windfall” or “profit”.
o And fourthly, provisions of the kind now found in s.546(3)(b) and (c) of the FW Act — in the case of (c), to the extent that it refers to an applicant — have a considerable history in federal industrial legislation, and have for many years been recognised as setting up a presumptive entitlement in the nature of that of a common informer.
o 114. At [118][119], Jessup J further noted that:
o First, there were some areas of the case before his Honour in which the applicant would receive compensation (or damages). There were, however, areas in which she would not.
o Secondly, the case before him was not a case in which non-economic loss had been either alleged or proven. But that was not to say that the applicant should not be regarded as a victim of the Respondents’ contraventions whose position was affected for the worse by their conduct.
o Thirdly, his Honour had upheld the applicant’s claims for costs in some areas. While a payment under s.546(3)(c) should not be regarded as a back-door method of securing costs, nonetheless the recovery of costs to some extent has the potential to bear upon any consideration of whether such a payment would deliver a “windfall” to the applicant.
o Fourthly, the “common informer” policy considerations which are ingrained into s.546(3)(c) and its statutory predecessors were said to “speak loudly” in the circumstances of the case before his Honour. For the applicant — an individual employee in a responsible position in a non-industrialised workplace — to have advanced, and persisted with, claims which the Court had held to be legitimate, and to have done so in the face of the deferrals and procrastinations of the respondents, could only have constituted a substantial, continuing, burden for her. In a forensic and evidentiary environment which would have tested the most seasoned of litigators, the applicant maintained her focus and, ultimately, achieved the success which was always her due. His Honour considered it to be “four-square” within the policy of s 546(3)(c) that an employee in the position of the applicant should be encouraged to proceed as she had done, thereby making it the more likely that the applicable provisions of the FW Act will be more than mere words on the statute book.
o 115. We agree generally with the observations made by Jessup J.
With respect to the particular circumstances of the Applicant at trial, the Full Court said:
o 116. In this appeal, as Jessup J said of the case before him, the policy considerations of s.546(3) “speak loudly” in the circumstances to justify the payment of the penalty imposed to the individual affected by the contravention who, under the authority of the FW Act, commenced and maintained this enforcement proceeding. If Mr Sayed had not pursued the action, it is unlikely that it would have been pursued. He took on the proceeding at obvious cost to himself.
• 119… although Mr Sayed did not lead evidence himself about the extent of costs he had incurred in maintaining his prosecution of the CFMEU, it was obvious, on the face of the proceeding, that he had significant personal involvement in the maintenance of the proceeding where he was represented over a three day hearing by senior and junior counsel, instructed by solicitors he had retained, who also prepared the submissions as to penalty. Accepting that legal expenses should not be taken into account in considering “the true cost” of bringing such a prosecution because of the stipulation in s.570 that a party’s legal costs are not recoverable except in circumstances not applicable here, there can be no doubt that Mr Sayed , in bringing and maintaining the prosecution of the union, and in dealing with the solicitors he instructed and the counsel they briefed, must have incurred considerable time, trouble and lost opportunity, not to mention the real risk to his career that Mr Sayed assumed in running the proceeding.
96. There is no doubt that in these proceedings, the onus of prosecuting the case fell upon the Applicant herself. There is no doubt that in pursuing this litigation, she has incurred considerable time, trouble and, accepting her evidence, additional anxiety and stress at a cost to herself.
97. I am satisfied that in these circumstances, the penalty amounts I have determined should be paid to the Applicant.
I have considered the Applicant’s submission, that the Court include an Order in its decision that the Respondents be jointly and severally liable for any monetary pecuniary penalty Orders. This matter was not addressed by the Respondent in reply. I am prepared to make such an Order in relation to compensation for the loss suffered by the Applicant, because of the contraventions. I will not do so in relation to the penalties, as I have formed the view that the provisions of the Act, in relation to the payment of a penalty, clearly envisage separate Orders of penalties by persons and corporations, where a corporation and a person are Respondents in any proceedings.

Collison v Brighton Road Enterprises Pty Ltd T/A The Grosvenor Hotel & Anor (No.2) (2016) FCCA 1798 delivered 15 August 2016 per Jones J

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