Mornington Inn Pty Ltd v Jordan

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 07 May 2008
• Neutral Citation: [2008] FCAFC 70

FEDERAL COURT OF AUSTRALIA

Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70

APPEAL – sentence – totality principle – whether appellable error in exercise of judicial discretion – approach taken by primary judge legitimately available – no error demonstrated

INDUSTRIAL LAW – whether multiple contraventions amounted to a single course of conduct – whether totality principle should reduce aggregate sentence

PRACTICE AND PROCEDURE – sentencing principles – discount for plea of guilty not available only because it saves the cost of a contested hearing – need to show a willingness to facilitate the course of justice and/or acceptance of wrongdoing

WORDS AND PHRASES – ‘Course of conduct’

Crimes Act 1914 (Cth) s 4K

Evidence Act 1995 (Cth) s 191

Trade Practices Act 1974 (Cth) s 79(2)

Workplace Relations Act 1996 (Cth) ss 400(5), 792, 824

Jordan v Mornington Inn Pty Ltd [2007] FCA 1384; 166 IR 33, upheld

Alfred v Walter Construction Group Limited [2005] FCA 497

Attorney-General v (SA) Tichy (1982) 30 SASR 84

Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36

Australian Competition and Consumer Commission v Chubb Security Australia Pty Ltd [2004] ATPR 42-041,[2004] FCA 1750

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8

Cameron v R (2002) 209 CLR 339

Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683

Carr v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2005] FCA 1802

Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194

Dinsdale v R (2000) 202 CLR 321

Hamberger v Construction Forestry Mining and Energy Union [2002] FCA 585

House v R (1936) 55 CLR 499

Johnson v R (2004) 78 ALJR 616

L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157

Markarian v R (2005) 228 CLR 357

McDonald v R (1994) 48 FCR 555

Mill v R (1988) 166 CLR 59

Pearce v R (1998) 194 CLR 610

Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543

R v Holder [1983] 3 NSWLR 245

R v Sgroi (1989) 40 A Crim R 197

Trade Practices Commission v TNT Australia Pty Limited [1995] ATPR 41-375

MORNINGTON INN PTY LTD v GLENN JORDAN

TAD 34 OF 2007

GYLES, STONE AND BUCHANAN JJ

7 MAY 2008

SYDNEY (VIA VIDEO LINK TO HOBART) (HEARD IN HOBART)

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TAD 34 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MORNINGTON INN PTY LTD (ACN 116 830 703) Appellant
AND:	GLENN JORDAN (A WORKPLACE INSPECTOR) Respondent

JUDGE:	GYLES, STONE AND BUCHANAN JJ
DATE OF ORDER:	7 MAY 2008
WHERE MADE:	SYDNEY (VIA VIDEO LINK TO HOBART) (HEARD IN HOBART)

THE COURT ORDERS THAT:

The appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TAD 34 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MORNINGTON INN PTY LTD (ACN 116 830 703) Appellant
AND:	GLENN JORDAN (A WORKPLACE INSPECTOR) Respondent

JUDGE:	GYLES, STONE AND BUCHANAN JJ
DATE:	7 MAY 2008
PLACE:	SYDNEY (VIA VIDEO LINK TO HOBART) (HEARD IN HOBART)

REASONS FOR JUDGMENT

GYLES J

1 This is an appeal against the imposition of penalties for admitted breaches of s 400(5) and s 792 of the Workplace Relations Act 1966 (Cth) (the Act) based upon an agreed statement of facts. Those facts are summarised in the judgment below (Jordan v Mornington Inn Proprietary Limited (2007) 166 IR 33, [2007] FCA 1384 at [5]–[87]) and need not be repeated in full. I would join Stone and Buchanan JJ in dismissing the appeal against the penalties imposed were it not for one issue – the failure of the trial judge to apply the totality principle, firstly, to the contraventions in relation to Sharon Ann Thompson and, secondly, overall, leading to a result that is manifestly excessive.

2 The events occurred in relation to a hotel motel with associated gaming facilities in Mornington, an Eastern Shore suburb of Hobart, conducted by the appellant company, which also operated another five hotels. It took over ownership and control of the hotel in November 2005. The appellant was controlled by Emmanuel Kalis. The hotel had approximately 39 employees. In early 2006 the decision was taken to employ casual staff on Australian Workplace Agreements (AWAs). The contravening conduct was aimed at implementing that decision.

3 A brief chronology of events for present purposes is as follows:

3 July 2006	An AWA distributed to all casual employees with a request to sign and return it by 5.00 pm Monday 10 July 2006.
10 July 2006	John Barry commenced employment as Hotel Manager.
On or about 10 July 2006	Contravening conduct by Barry towards Sharon Ann Thompson.
11 or 12 July 2006	Contravening conduct by Barry towards Thompson.
Week commencing 10 July 2006	Contravening conduct by Barry towards Thompson.
14 July 2006	Contravening conduct by Barry towards Alice Louise Bruce.
14 July 2006	Contravening conduct by Barry towards Debby Maree Hyland.
Week beginning 17 July 2006	Contravening conduct by Barry towards Thompson.
Week beginning 17 July 2006	Contravening conduct by Barry towards Karen Mary Lucas.
21 July 2006	Contravening conduct by Barry towards Thompson.
24 and 25 July 2006	Contravening conduct by Barry towards Thompson.
July 2006	Contravening conduct by Barry towards Fabian Di Domenico.

4 The conduct of Barry in relation to Thompson, Bruce, Hyland and Lucas on behalf of the appellant, contravened both s 400(5) and s 792 of the Act. Each was held to be a separate contravention, even if it could be described as part of, or arising out of, the same course of conduct. The conduct in relation to Di Domenico contravened s 792.

5 In Mill v R (1988) 166 CLR 59 the High Court said (at 62–63):

‘The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57 as follows (omitting references):

“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’.”

See also Ruby, Sentencing, 3rd ed. (1987), pp. 38–41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.’

(See also R v Holder [1983] 3 NSWLR 245 per Street CJ at 260 and McDonald v R (1994) 48 FCR 555.) Another, related, principle is that it is wrong to punish an offender twice for the commission of elements of offences that are common (Pearce v R (1998) 194 CLR 610 at [40] per McHugh, Hayne and Callinan JJ). The Pearce principle was accommodated here as penalties were imposed for only the most serious of the two offences arising out of the same facts where both were applicable (Jordan166 IR 33, [2007] FCA 1384 at [92], [93] and [119]). These principles were discussed in Johnson v R (2004) 205 ALR 346; 78 ALJR 616 per Gleeson CJ at [3]–[5] and per Gummow, Callinan and Heydon JJ at [18]–[35]. They were developed in relation to sentencing to imprisonment, with particular reference to concurrence of sentences. Nonetheless, the principle of totality was held to be applicable where the penalty imposed is by way of fine (R v Sgroi (1989) 40 A Crim R 197 at 203; cf Kirby P in Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 704).

6 L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157 concerned the imposition of pecuniary penalties pursuant to the Customs Act 1901–1960 (Cth). The trial judge (Kitto J) held that each step in importation was a separate and distinct piece of conduct, each being a contravention. The Full Court approved that reasoning, adding (120 CLR at 168):

‘… we agree that, in determining the appropriate penalties to be imposed in respect of the numerous offences, it was material to take into consideration—as his Honour did—that, though the offences in each group were separate offences in law, they were substantially contemporaneous and connected.’

7 Burchett J expressly applied that approach to the imposition of civil penalties in Trade Practices Commission v TNT Australia Pty Limited [1995] ATPR 41-375 at 40,169 as did Goldberg J in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at 53. The principle has been applied since then in civil penalty cases too numerous to mention. Jessup J recently applied the principle in Ponzio v B & P...