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CEPU v Ergon Energy Corporation Ltd [2013] FCCA 2378 (16 September 2013)

Last Updated: 7 February 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEPU v ERGON ENERGY CORPORATION LTD
[2013] FCCA 2378


Catchwords:
INDUSTRIAL LAW – Penalty – breach of enterprise agreement – contravention s.50 Fair Work Act 2009 (Cth) – principles relating to penalty – nature and circumstances of the contravention – nature and extent of loss or damage suffered – involvement of senior management – contrition or corrective action – size of the contravener – ambit of penalty – penalty imposed.




Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560
Cahill v Construction, Forestry, Mining and Energy Union (No 4) [2009] FCA 1040; (2009) 189 IR 304
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v QR Ltd [2010] FCA 591; (2010) 268 ALR 514
Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543
Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65; (2010) 185 FCR 308
TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172


Applicant:
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING & ALLIED SERVICES UNION OF AUSTRALIA

Respondent:
ERGON ENERGY CORPORATION LIMITED

File Number:
BRG 600 of 2013

Judgment of:
Judge Burnett

Hearing date:
16 September 2013

Date of Last Submission:
16 September 2013

Delivered at:
Brisbane

Delivered on:
16 September 2013


REPRESENTATION

Counsel for the Applicant:
Mr C. Dowling

Solicitors for the Applicant:
Hall Payne Lawyers

Solicitors for the Respondent:
Norton Rose Fulbright




ORDERS

THE COURT DECLARES THAT:

(1) The respondent has contravened section 50 of the Fair Work Act 2009 (Cth) by contravening clause 1.3 of Schedule 8 to the Ergon Energy Union Collective Agreement 2011 by failing to consult with the relevant unions over the decision to enter into a contract for services with J V Geiger Electrical Pty Ltd on 29 October 2012.

THE COURT ORDERS THAT:

(2) Pursuant to section 546 of the Fair Work Act 2009 (Cth) a pecuniary penalty, in the sum of $4,500, be imposed on the respondent for its contraventions of section 50 of the Fair Work Act 2009 (Cth).
(3) Pursuant to section 546(3) of the Fair Work Act 2009 (Cth) the penalty be paid to the applicant.
FEDERAL CIRCUIT COURT OF AUSTRALIA
AT BRISBANE

BRG 600 of 2013

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING & ALLIED SERVICES UNION OF AUSTRALIA

Applicant

And

ERGON ENERGY CORPORATION LIMITED

Respondent


REASONS FOR JUDGMENT

(Ex Tempore)

  1. An enterprise agreement, as the term suggests, is first and foremost an agreement. However, it is a special form of agreement, being in the nature of an industrial agreement between parties, as provided for by the Fair Work Act 2009 (Cth) (“FW Act”). Of particular significance is the fact that when an enterprise agreement is breached, the breach constitutes a contravention of such agreement and gives rise to remedies for the party innocent of breach, pursuant to the provisions of the FW Act.
  2. In this case, an enterprise agreement existed governing the relations between various unions, including the applicant and the respondent. The applicant alleges that the respondent breached the agreement in one particular, which breach is accepted. Now the respondent seeks declarations of such breach giving rise to a contravention of the FW Act and seeks the imposition of penalties. The parties agree on all material matters; the matters on which there is some disagreement are of little, if any, moment.
  3. The facts agreed between the parties are broadly these: the applicant is and was at all times an organisation registered pursuant to the provisions of the Fair Work (Registered Organisations) Act 2009 (Cth) and was an employee organisation within the meaning of the FW Act. It was also a “registered employee association” and “industrial association” within the meaning of the FW Act, and entitled to represent the industrial interests of some of the employees of the respondent.
  4. The respondent was at all times a corporate entity owned by the Queensland Government. It is an electricity distribution entity responsible for the operation, expansion and maintenance of the electricity distribution network, that is, the poles and wires in Queensland.
  5. The network for which it is responsible consists of approximately 150,000 kilometres of power lines and over one million power poles, along with other major substations and power transformers. It also owns and operates standalone power stations. It has as a subsidiary operation an electrical retailer with responsibility for selling electricity to customers in regional Queensland at prices which are set by the government’s notified prices regime.
  6. Broadly, it is an employer of approximately 5,000 people and is a highly capitalised business, valued at approximately $10 billion with a most recent report of net profit of well over $300 million.
  7. There was in place between the applicant and the respondent the Ergon Energy Union Collective Agreement 2011 (“the agreement”). It was an agreement made under the FW Act; it was approved by Fair Work Australia and it is an enterprise agreement as defined. The agreement is and was in operation from 22 March 2012, and its nominal expiry date is 1 October 2014. The respondent is a party to and is bound by that agreement, as are the applicant and a majority of the respondent’s employees.
  8. Relevantly, Schedule 8 to the agreement provided:
  9. In respect of those matters, clause 1.7 provided for a consultation process in these terms:

...”

  1. Finally, clause 1.6 of the agreement defined “consultation” to mean:
  2. In this instance, and prior to the agreement, the respondent had a standing order for service with an entity known as JV Geiger Electrical Pty Ltd (“Geiger”). That agreement was concluded on 7 April 2011 and established common terms and conditions for the issue of future contract work by Ergon to Geiger. As a consequence, Geiger was appointed to Ergon’s Powerline Construction and Maintenance Panel, one of the many contractor panels established by the respondent to be used according to the type of work required to be contracted.
  3. Geiger was a contractor with whom the respondent had contracted previously under its general agreement, and whilst that agreement set out the general terms and conditions that applied to any contract of work it was plain that no contract was formed with a contractor on that basis for the performance of any works until a quote had been provided and accepted for the particular work. Following the creation of that general agreement, the respondent did indeed issue contracts to Geiger for power line construction and maintenance works in southern Queensland, including customer installations, and this was the nature of work that was regularly performed by contractors for Ergon.
  4. Moving then to the events giving rise to the actual breach itself : on 29 October 2012 the respondent entered into a contract with Geiger for the provision of certain power line and construction maintenance services in the central Queensland region. That specifically involved the connection of 15 new customers in central Queensland.
  5. On that day, an industrial relations officer for the respondent sent an email to various officers of the applicant, advising them that the respondent had entered into a contract. It was determined in the contract that Geiger would provide power construction and maintenance in central Queensland for a period of three months from 1 November 2012, and it is not in dispute that the contract was for core work within the meaning provided for in the enterprise agreement.
  6. However, by reason of the matters that I have earlier noted concerning the terms specified in Schedule 8, the respondent was required to consult with the applicant in relation to the use of Geiger. At no time prior to the respondent entering into the contract did it consult with the applicant or any other union about the proposed contract. It follows and is agreed that by reason of that conduct the respondent contravened clause 1.3 of Schedule 8 and, in turn, s.50 of the FW Act.
  7. The respondent accepts those facts. However, it does add, by way of background, that all of Ergon’s representatives at the March 2012 meeting when the original enterprise agreement was concluded, except Brad Montgomery (Senior Industrial Relations Advisor), had either departed or moved to other positions within the organisation by September 2012.
  8. By inference, the respondent was contending that there had been some loss or decay of corporate knowledge in respect of the detail of this agreement relevant to the cause of the breach. The respondent says that the facts demonstrate that Alan Angus, who commenced as the Works Contract Manager on or about 6 August 2012 lacked any of this corporate knowledge of these matters. At the time of the Geiger contract, Loren Blauensteiner, Manager Works Forecasting and Resourcing, was seconded to the Works Contracts Group to assist Mr Angus.
  9. The Works Contracts Group was the group responsible for the Geiger contract and for the management of consultation with the unions in relation to that particular contract. Ergon contends that, as part of its standard business operations, it enters into many contracts for core works each year, including approximately 60 contracts for work within the Powerline Construction and Maintenance Panel, under which the Geiger contract was issued.
  10. The respondent contends that both Mr Angus and Mr Blauensteiner had, due to their recent appointments to the Works Contracts Group in August and September respectively, limited prior knowledge or experience of the respondent’s contracting processes. Indeed, matters were exacerbated because at the time of the Geiger contract Mr Blauensteiner was acting in Mr Angus’ role as Works Contract Manager, although it had been approved prior to this acting arrangement.
  11. It is to be noted that Geiger had previously been contracted to do similar work in the southern region of the respondent’s operating area, and that union consultation had been completed in respect of Geiger’s works in that region.
  12. The respondent further contended that the Geiger contract was for work in the respondent’s central region and consisted of power line construction and maintenance work in that region. Neither Messrs Angus or Blauensteiner were aware that additional union consultation was required to be undertaken for the work performed by Geiger outside the southern region, and that had they been aware of these requirements the contract would not have been issued to Geiger until the required union consultation had occurred.
  13. The respondent also submits that it is relevant that there had been no recent instances, to the recollection of Mr Blauensteiner, where the respondent had used a contractor from the southern region to work in the central region, which resulted in a misunderstanding of the union consultation and notification requirements of the respondent. It further submits that the relocation of the work from the southern region to the central region was due to a number of unusual circumstances, including:
    1. a short-term backlog of work in the central region due to insufficient internal and contractual resources being available;
    2. the capacity for Geiger in October 2012 to perform the work; and
    1. the potential for Geiger to redeploy their resources interstate to secure more work, resulting in additional mobilisation and demobilisation costs to Ergon if they sought to contract with Geiger in the future.
  14. Ergon contended that the facts demonstrate that there was limited knowledge of the contract in the union consultation processes conducted by its Works Contracts Group at the time of the Geiger contract. It argued that the departure of key staff experienced in these processes and the unusual circumstances of the situation led to the misunderstanding. It maintains, however, that the Works Contracts Group was fully committed to adhering to the entirety of the respondent’s internal processes to the best of their knowledge and ability.
  15. The respondent says that what flows from this is that the contravention of clause 1.3 of Schedule 8 of the agreement was inadvertent due to an internal oversight. There was no intentional failure on its part, or by its staff, to meet the obligations provided for in clauses 1.3 of Schedule 8. It contends that its union notification processes for contracts at the time of the oversight were reflected in:
    1. the Ergon procurement process established contract for goods and services; and
    2. commitments given by Ergon as part of its core work contractor forum with representatives of the applicant in April 2012.
  16. It says that, pursuant to its usual practices at the time of the oversight, Ergon was to issue a First Union Notification which included a notice of intent and information about the scope of core work to be issued to contractors (the Part A statement); the union consultation would occur following receipt of this. A Second Union Notification would then be issued providing notice that the contract had been entered into and detailing the class of activity performed, the location of work and the duration of the contract (the part B statement). Ergon contends that the Part A and Part B notification process was the agreed process to allow it to meet its consultation obligations in respect of the Geiger contract, among others.
  17. It contends that at the time of the oversight the contract procurement process in Ergon detailed the steps for establishing a new contract to contractors who form part of the applicable panel. The tendering part of that process contained the step that triggered the issuing of the Part A statement; however, the tendering part of the process could be bypassed by executive approval. It appears that that is what has happened, causing the system to fail.
  18. Ergon submitted that when the work was initially contracted to Geiger, executive approval was received which allowed the contract to be issued without a tender. It follows that the Part A and Part B notifications of the contract were only provided shortly before the contract work commenced. The respondent informed the applicant by email on 29 October after Ms Angie Avolio (who was the relevant officer within the respondent) received advice from Ergon’s strategic procurement group that a notification should be issued for the contract. It was from 29 October that matters then progressed. The contract, of course, had already been concluded between Ergon and the contactor. However, following that, on 30 October a delegate of the applicant forwarded an email to Mr Angus asserting that the respondent was in breach of the agreement.
  19. On 31 October 2012, Mr Greg Krome, Works Delivery Improvement Manager from Ergon, engaged with Mr Stephen List (a union delegate) about the alleged breach. He was involved because, at that time, Mr Angus was on annual leave. It seems that matters developed between Messrs List and Krome, with Mr List requesting further information about the contract. Mr Krome attempted to address Mr List’s inquiry, advising that:
    1. their requested mobilisation into the central region was to complete 15 customer initiated work projects across the central region;
    2. the customer initiated works in the central region had not been declined at that stage, but, in fact, had steadily increased over a preceding period, driven by increasing customer demand;
    1. the applicant was and ought to have been aware that the customer initiated work had required a cycle time, and in order to deliver the work within the required cycle times in the central region the respondent needed to mobilise additional resources;
    1. the staff levels for Geiger would be approximately 20 full-time equivalents for, nominally, five weeks duration; and
    2. the primary justification for the respondent issuing the work under the terms of the clause was that the work volume was beyond the capacity of the ordinary resources of the respondent.
  20. Those exchanges were amplified and extended with Mr Blauensteiner also communicating with Mr List, providing him with further information. But, it would seem, towards the end of November 2013 Mr Blauensteiner acknowledged to the appropriate representatives of the applicant that insufficient notice had been provided in relation to the contract, and he reiterated the respondent’s commitment to adhering to the consultation provisions. He confirmed that the respondent was reviewing and working to improve the notification and consultation processes to ensure that the situation did not reoccur.
  21. It is noteworthy that, since those events, Ergon has revised and reinforced new procedures to minimise the likelihood of further failures of the kind that occurred in this instance. Those changes have been worked through on a cooperative basis and agreed to by the applicant.
  22. In the short-term, it was noted that while the changes were being formulated the Works Contracts Group, which managed consultation with the unions in relation to core work contracts, took accountability for overseeing compliance with the notification commitments that had been entered into between the parties. On or about 11 December 2012, Ergon introduced draft changes to its procurement process, which I need not elaborate upon here, but which were plainly intended to address a deficiency in its processes.
  23. It seems, now that the amendments to Ergon’s procurement processes were implemented in 2013, and now form part of its ongoing contracting and consultation processes. From Ergon’s perspective, it believes that the applicant acknowledges that it has taken steps to improve the processes of notification and consultation which have been implemented with a view to minimising the risk of future failure. I say that ‘it believes’ because an issue arose in the course of submissions today which may put that matter in contest.
  24. The parties agree that the circumstances of the case give rise to an occasion where the penalty to be imposed ought fall within a low to nominal range. That is, in the range of $5,000 to $11,000. Where ranges are proposed, the court is not relieved of any role in the assessment of penalty, however it is open to impose a proposed penalty if appropriate.
  25. I note the observations made in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [51]. While I am guided by that decision, it is only of limited assistance in circumstances where there is only agreement on a broad range. Ultimately, it still falls for me to determine to appropriate penalty despite there being agreement between the parties of a range. So much is apparent from the observations in Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543, where at 564-565 Jessup J observed:
  26. I am presented with a range which might broadly satisfy the parameters but does not of itself address the actual figure. Concerning the approach to assessment, both parties generally agree on the matters that need be considered. In this regard, the task of the court in assessing penalties (one of instinctive synthesis) requires it to take into account all the relevant factors and arrive at a congruent result.
  27. In this case perhaps the most significant considerations in the assessment of penalty include the nature and extent of the conduct, the circumstances in which the conduct took place, the nature and extent of any loss or damage sustained, evidence of any similar previous conduct, involvement of senior management, any expressions of contrition and cooperation and, of course, the need for deterrence.
  28. I note the observations in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 at [89]. It is important to note that the factors are not mandatory considerations but simply guides. Ultimately, the penalty to be imposed is one that should not exceed what is commensurate with the gravity of the contravention found as proven: Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65; (2010) 185 FCR 308 at [30]. Looking then to the nature and circumstances of this case, I have earlier addressed the relevant agreed facts, and, as I have noted, there is some minor disagreement in respect of points that I think are of no real moment.
  29. The agreement itself was concluded on 15 March 2012 and began operating on 22 March 2012. The term relating to “consultation” is plain in its expression. It provides, in essence, that the respondent would consult with the applicant if it decides to enter new contracts in relation to all core work. In the last week of March 2012, immediately after the approval of the agreement, representatives from both the applicant and the respondent met to discuss the respondent’s obligation to consult. A mechanism for the discharge of those obligations was also discussed.
  30. The applicant submits that the respondent failed to put in place appropriate measures to give effect to the mechanism necessary to discharge those obligations, and I think so much is demonstrated by the breach. However, in this instance the matters appear to have arisen because of an oversight in the design of the process to take into account instances where there would not be a call for tenders, which, one assumes, is the usual contractual process adopted.
  31. There are, as this instance illustrates, occasions when executive intervention might occur, and it was that situation which was perhaps overlooked in the course of designing the appropriate mechanism. It seems that the process provided for was satisfactory in the context of the usual calling for tenders, but failed in other respects.
  32. It is unnecessary for me to rehearse the facts again, but I simply observe that they do support the contention advanced on behalf of the applicant in their submissions on penalty. It is clear from the circumstances of this case that the respondent did indeed agree to consultation obligations in its energy agreement with the applicant, and that both parties did discuss its consultation obligations under the enterprise agreement immediately after it came into operation.
  33. The respondent did not put in place adequate mechanisms to ensure that in all cases it would comply with its consultation obligations under the enterprise agreement. The respondent was aware of its intention to contract with Geiger in early 2012 and did not consult with the applicant prior to entering into the contract with Geiger on 29 October 2012. Accordingly, the respondent did not provide all of the information sought by the applicant about the Geiger contract until 22 November 2012.
  34. The applicant contends that as a consequence of that failure to consult it was irretrievably deprived of the opportunity to have an actual and genuine opportunity to influence the decision about the contract with Geiger. It is beyond doubt that this loss is not without some substance; as Logan J observed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v QR Ltd [2010] FCA 591; (2010) 268 ALR 514 at [145], applying the observations of Toohey J in TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172, “consultation” is no mere empty term.
  35. The applicant contends that the failure to afford consultation denied it the opportunity, for instance, to have discussions about whether the type or volume of work was beyond the capacity of the resources and staff of the respondent. Another consideration, given the publicly owned nature of Ergon, might have been the public interest in undertaking such work, particularly when regard is had to matters of cost effectiveness and security of tenure for the additional staff required to meet the work peaks.
  36. While I am conscious of the worth of these submissions, it is also entirely possible that in the context of this contract, given its unusual characteristics, the applicant may simply have not been interested in negotiation at all, but of course it ought to have been afforded an opportunity to make that election. In terms of loss and damage, aside from the loss of the right to consultation, which I have earlier addressed, there can be no actual damage demonstrated. Perhaps damage may have been caused by denying the applicant’s ability to provide input ideas or assist employees in pointing out or counteracting aspects of the proposal that could produce negative consequences.
  37. It would, of course, be beneficial if they could be demonstrated as giving rise to some tangible loss. What is contended for is that the applicant was completely denied the valuable and important right of consultation in respect of the Geiger contract, which has been irretrievably lost and which cannot be now compensated for or remedied. However, having heard the submissions for both parties and having considered the background facts, I have concluded that, notwithstanding the entitlement to consultation, the circumstances do suggest that the loss is more abstract than actual.
  38. The next matter concerns whether senior management was involved in the conduct. The Part A and Part B notifications used by the respondent at the time of the contravention identify the person responsible for those notifications as the Works Contract Manager. The notifications provided after the Geiger contract had been concluded were provided on advice from the Ergon Strategic Procurement Group. The information provided to the applicant about the contract was provided by the Ergon Works Delivery Improvement Manager and the Ergon Manager Works Forecasting and Resourcing. They were the parties responsible for the contravention and it is contended that they were members of Ergon’s senior management.
  39. A disagreement arose between the parties about that matter. The respondent contended that those persons were about three levels below the Chief Executive. However in my view, someone described as the ‘Manager Works Contracts’ is someone who holds a significant position within the organisation, even if his position is three levels below that of the Chief Executive. To that end, it seems to me that there was some involvement of senior management, or at least management at a senior level, in the contravention. I note, however, that their involvement arose late in the situation, with the earlier decision(s) made by those lower in the organisation.
  40. The next matter is, of course, the size of the contravener. In this instance, the contravener is a government-owned corporation. It is presently involved in the business of electricity distribution. As I have earlier noted, it employees about 5000 people, has assets in excess of $10 billion, a turnover of around $3 billion and reported earnings net profit after tax of just over $300 million. It is a large corporation in a strong financial position; it pays good dividends to government and, as a government enterprise, ought to provide some corporate leadership. It is a highly technical organisation, and one would expect it to adopt an engineered approach to its procurement and other processes.
  41. The next concern is the matter of contrition and corrective action. There was some minor disagreement between the parties on this point, but the disagreement was not of any great moment. In respect of corrective action, the applicant contends that the respondent has not expressed any contrition. That is a matter that ought not weigh heavily. As Kenny J observed in Cahill v Construction, Forestry, Mining and Energy Union (No 4) [2009] FCA 1040; (2009) 189 IR 304 at 322:

“The applicant noted that there was no evidence of any regret, contrition or remorse on the part of [the respondents] for their contravening conduct, and there was no apology. The respondents replied (and I accept) that this was not an aggravating circumstance that justified an increase in the level of the penalty: compare BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 at [10] per Kiefel J.”

  1. In any event, there is an affidavit from Mr Blauensteiner addressing his regret that these events have occurred. Understandably, there is some regret, and although the term itself may not be entirely effusive with its expression of contrition, it is, I think, a statement made of a contrite character.
  2. Perhaps, more importantly, actions speak louder than words. On that note, the respondent has taken corrective action. As I earlier noted, the processes in this instance have failed, and to a large extent these events have been occasioned by some element of human error. Clearly, it is incumbent upon large corporations to ensure that their processes are designed to circumvent human error, but often such error will only be evident upon the undertaking of activities which highlight deficiencies in process.
  3. In my view, this appears to be such a case. I note that the respondent has included in its material a new process. The applicant has identified deficiencies in the new process. Those deficiencies have been pointed out today in the course of argument and one can only expect that the respondent would consider those submissions and, of course, if these events were to reoccur and the matters which were identified by the applicant today in submissions were seen to be the cause of any subsequent contravention, then that matter would be relevant in the imposition of any subsequent penalty.
  4. There is no doubt in this instance that the respondent has cooperated. It very quickly admitted that the error had occurred. It has attempted to make whatever retribution it possibly can at an early stage, initially by engaging with the applicant and providing it with the information it ought properly have provided to it before concluding the agreement with the contractor.
  5. Finally, that leads to the question of general and specific deterrence. I accept the applicant’s submission, which I do not believe to be challenged by the respondent, that there is a need for some general deterrence. In particular, I am mindful that enterprise agreements govern many arrangements between large employers and unions. They are, as I stated at the outset, agreements between parties, and whether a breach gives rise to abstract or actual damages is, in my view, immaterial.
  6. A contract is a contract and it is important that courts make orders that reflect the importance and sanctity that ought be afforded an executory contract between two parties. The imposition of a penalty that reflects that principle would provide deterrence to others to ensure compliance with similar obligations and, moreover, obligations which have the benefit and force of statute, as contracts of this kind do.
  7. As was submitted by the applicant, the penalty must reflect the objective seriousness of a failure to consult and act as a general deterrent to others who might be likely to engage in a similar contravention. Having said that, I am conscious that some recognition has to be made for the fact that this contravention has as its genesis a systematic failure which was highlighted by the intervention of human error.
  8. In any event, like-minded respondents should be directed to pay greater attention to ensure that human error does not intervene to create problems with established systems, or, at least, to ensure that such systems are better designed to avoid the prospect of human error. So far as specific deterrence is concerned, I think that the events of this contravention are unlikely to be subject to any need for great specific deterrence.
  9. No doubt, the personnel involved in the contravention will be reasonably embarrassed in a professional sense by the occurrence of these events and would take the respondent’s approach to these proceedings today as a significant professional admonishment, which of itself would flow through the corporation and infect its culture, thereby giving rise to specific deterrence.
  10. Overall, having regard to each of the matters that I am required to consider and reviewing all matters subject to an instinctive synthesis, I have come to the view that an appropriate penalty in this case would be $4500.00. I intend to impose a penalty of that sum. I accede to the submissions made by the applicant that the sum should be paid to the applicant and I will direct accordingly.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Burnett.

Date: 5 February 2014

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