The Court's approach
18 The approach of the Court to proposals of this kind is now well established. It was propounded by the Full Court in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 and was summarised by Kenny J in White v Construction, Forestry, Mining and Energy Union [2011] FCA 192 at [5] as follows:
"(a) it is the responsibility of the Court to determine the appropriate penalty;
(b) determining the amount of penalty is not an exact science;
(c) within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another;
(d) there is public interest in promoting settlement of litigation, particularly where it is likely to be lengthy;
(e) the view of the regulator, as a specialist body, is a relevant, but not determinative, consideration;
(f) in determining whether the proposed penalty is appropriate, the Court examines all of the circumstances of the case; and
(g) where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure, in the Court's view, is appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if it is within the permissible range."
19 The relevance of these principles was recently endorsed by two single judges of this Court. The occasion for doing so was the decision of the Victorian Court of Appeal in ASIC v Ingleby (2013) 93 ACSR 274 in which the opinion had been expressed that the Full Court's approach in Mobil Oil was incorrect. The gist of the Court of Appeal's concern was a perception that these principles fettered the power of the Court to determine an appropriate penalty.
20 In Australian Competition and Consumer Commission v AGL Sales Pty Ltd [2013] FCA 1030 Middleton J examined the Court of Appeal's reasoning and concluded that he did not consider that the principles had this effect. His Honour observed (at [42]) that:
"No one suggests a court at first instance in determining a penalty is to undertake an 'appellate function' upon being given a range or agreed figure. I accept that there is a danger this may occur if the court becomes blinkered by approaching the determination by reference to an agreed position or agreed penalty. However, provided the Court has, as it should, an overall view of the considerations relevant to the making of appropriate orders, being given any indication of an agreed position on penalty can be of assistance. This assistance could be given preferably by the providing of an 'agreed range', or by separate submission of the parties. In asking whether an agreed figure falls within the range of penalties reasonably available does not mean the court does not need to consider independently the appropriate penalty. It must do so in order to determine whether the range is in fact appropriate. As no one precise penalty figure is necessarily the only appropriate figure, the court will often consider the matter in terms of a permissible range in arriving at a final penalty. Of course, no agreed position, whether it be to a range or agreed figure, can be binding on the court."
21 In Australian Competition and Consumer Commission v Luv-a-Duck Pty Ltd [2013] FCA 1136 at [13] Davies J agreed with Middleton J's observations and went on:
"In this Court the principles are clear. The agreed penalty will be appropriate if that penalty is, in the Court's view, within the permissible range, and there is a clear statement of the matters that [are] relevant for the Court's consideration."
22 I respectfully agree with their Honours' observations.
23 A penalty will be within the permissible range if it is neither manifestly inadequate nor manifestly excessive: see Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 at [129] (per Jessup J).
24 In Kelly v Fitzpatrick (2007) 166 IR 14 I identified a non-exhaustive range of considerations which are of potential relevance in determining a penalty for contraventions of civil penalty provisions of Chapters 5 and 6 of the BCII Act. These considerations were derived from a number of decisions of the Court under other legislation. They have been found to be relevant to the fixing of penalties under the BCII Act: see Stuart v Construction, Forestry, Mining and Energy Union (2010) 185 FCR 308 at 331-2 (per Besanko and Gordon JJ). These considerations are not, of course, to be applied rigidly regardless of the circumstances of a particular case. They may, however, provide helpful guidance. In the end, however, it is the responsibility of the Court "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": Construction, Forestry, Mining and Energy Union v Williams (2009) 262 ALR 417 at [29], citing with approval Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at [91] (per Buchanan J).
25 The following factors, in my view, have relevance in the circumstances of the present proceeding:
The nature and extent of the conduct which led to the breaches.
Whether or not the breaches were deliberate.
The circumstances in which that relevant conduct took place.
The nature and extent of any loss or damage sustained as a result of the breaches.
Whether there had been similar previous conduct by the respondent.
The size of the respondent.
Whether the respondent had exhibited contrition.
Whether the respondent had taken corrective action.
Whether the respondent had co-operated with the enforcement authority.
The need for specific and general deterrence.