Director of Biosecurity v Chi

MCELWAINE J: 1 On 19 April 2024, I delivered judgment in Director of Biosecurity v Chi [2024] FCA 388. The case concerned the unlawful importation of live freshwater fish into Australia, on two separate occasions by the first respondent (Mr Chi) and on one occasion by the second respondent (Ms Chau) (together, the respondents) in contravention of s 186(1) of the Biosecurity Act 2012 (Cth) and on one occasion by each of the respondents being the production of a false or misleading Incoming Passenger Card (IPC) in breach of s 533 of the Biosecurity Act. 2 The Director of Biosecurity sought declaratory relief and civil penalties for the respondents' contraventions of the Biosecurity Act, liability for which was admitted by the respondents. Pursuant to s 82(3) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth), I ordered on 19 April 2024 (the orders) that the following pecuniary penalties be paid to the Commonwealth of Australia: (1) The first respondent: a. for contravening s 186(1) of the Biosecurity Act on 29 December 2019, $12,000; b. for contravening s 186(1) of the Biosecurity Act on 29 January 2020, $20,000; and c. for contravening s 533(1) of the Biosecurity Act on 29 January 2020, $5,000. (2) The second respondent: a. for contravening s 186(1) of the Biosecurity Act on 29 January 2020, $12,000; and b. for contravening s 533(1) of the Biosecurity Act on 29 January 2020, $5,000. 3 Paragraph 10 of the orders provided for any application by the respondents for time to pay or for payment by instalments of the penalties imposed to be made in writing with any supporting affidavits by 4 pm on the day that is 14 days from the date of the orders, and for the applicant to respond thereto in writing with any supporting affidavits by 4 pm on the day that is 14 days from being served with any application made by the respondents. This timetable was subsequently extended by orders made on 9 May and 3 June 2024. 4 On 17 May 2024, the respondents each provided an affidavit, dated "May 2024" to the Court by email. The affidavits each deposed as to the respondents' financial circumstances and requested "that the court allow the payment of pecuniary penalties by me to the Commonwealth of Australia to be paid in instalments at the discretion of the Court". On 7 June 2024, the applicant filed submissions responding to the application for payment of the pecuniary penalties in instalments. 5 The respondents' affidavits deposed as to the respondents' financial circumstances, with particular reference to their joint operation of a hair salon from November 2014 to November 2020 and the closure of the business due to financial pressures precipitated by the Covid-19 pandemic and associated lockdowns. The second respondent deposed to a financial loss of approximately $40,000.00 and default on a $10,000.00 loan as result of the failure of the business. 6 The respondents each stated that they were in receipt of Centrelink benefits following the closure of the business and provided evidence of receipt of those benefits. The second respondent deposed that she continues to be in receipt of the Newstart Allowance from Centrelink in the amount of $758.00 per fortnight. The second respondent's weekly expenses are deposed to in the amount of $517.00. The second respondent also provided quite personal medical evidence, which it is not appropriate to record publicly. 7 The first respondent deposed that he is currently self-employed as an online coach and personal trainer, from which he derives a pre-tax income of between $1,000.00 - $2,000.00 per week. The first respondent's fortnightly expenses were deposed to in the amount of $1,110.00. 8 On 7 June 2024, the applicant filed submissions which, in essence, accepted that there is sufficient financial information for the Court to be satisfied that an order for payment of the pecuniary penalties by instalments is appropriate and proposed a payment schedule. 9 The applicant proposed to apply "the post-judgment interest rate in force until 30 June 2024" to the pecuniary penalties across the term of the proposed payment arrangement". 10 The post-judgment interest rate effective for the period 1 January 2024 to 30 June 2024, as imposed by operation of s 52 of the Federal Court of Australia Act 1976 (Cth) and Rule 39.06 of the Federal Court Rules 2011 (Cth), was 10.35%. Interrogation of the proposed payment schedule set out paragraph 8 of the applicant's submissions, and the amounts in payment of principal and interest therein, demonstrates that the applicant's formulation applies the 10.35% interest rate to the total amount in pecuniary penalties imposed on each respondent and spreads the repayment of the principal and interest across the sixteen-month duration of the payment plan. In practice, this imposes payment in instalments over the course of a sixteen-month plan: (1) By the first respondent in the total amount of: a. $37,000.00 in principal; and b. $3,829.50 in interest. (2) By the second respondent in the total amount of: a. $17,000.00 in principal; and b. $1,759.50 in interest. 11 It is open to the Court to order payment of penalties by instalments where there is sufficient financial material to justify the instalment arrangement: ACCC v Humax Pty Ltd [2005] FCA 706 at [12]. On the basis of the evidence provided in the respondents' affidavits and the applicant's submissions dated 7 June 2024, I am satisfied that an order for the payment of the pecuniary penalties in instalments is appropriate and as proposed by the applicant and I order accordingly. 12 The respondents are to make payment of the pecuniary penalties in accordance with the below schedule: I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine.

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