Farragher v PBE Rutherford Mining Pty Ltd

FedCFamC2G|2026-04-17

For the reasons already given at [148] to [152] above, there is a strong need for Mr Meyn to be deterred from conducting himself in the manner he did in relation to Mr Farragher going forward, including if he is not employed by PBE Rutherford.

The parties are agreed at penalty being set somewhere in the mid-range. Implicit within this is that the parties are agreed that penalty should in fact be imposed. The Court retains an discretion to not impose penalty. However, I agree that in this case, penalty is warranted in respect of each of the respondents.
The respondents contend for a penalty at mid-range, and Mr Farragher says "mid-range or above".
Weighing all the factors which have been outlined above, I am of the view that a penalty should be imposed on PBE Rutherford at 60% of the maximum range, which results in a total penalty of $39,960.
However, in respect of Mr Meyn, the penalty range warrants being significantly higher and, in the exercise of my discretion, that penalty should be 85% of the maximum available penalty, resulting in a total penalty imposed on him in the sum of $11,322.
In all the circumstances of this case, I am satisfied that each of the penalties imposed should be paid to Mr Farragher pursuant to s 546(3)(c), within 28 days, and I will so order.

I certify that the preceding one hundred and sixty-five (165) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

[1] Continuing from the numbering in the liability judgment

[2] Continuing from the numbering in the liability judgment

[7] Applicant's supplementary written submissions dated 17 June 2025 at [17]

[8] Second Clark report CB 495 at [11]

[9] Applicant's supplementary written submissions filed 17 June 2025 at [3]

[10] Liability judgment at [109] and [253]

[11] Respondent's supplementary written submissions dated 16 June 2025 at [25(b)]

[12] First Clark report CB 385 at [6]

[14] Transcript 10 April 2025 at T10.44 to T10.45 and T24.07 to T25.23

[15] First Farragher Affidavit at [51] to [52]

[16] Annexure "NF-2" to the fourth Farragher Affidavit at CB 580 to 582

[19] Respondents' supplementary written submissions filed 16 June 2025 at [25]

[22] Liability judgment at [140] to [141]

[26] Second Clark report CB 495 at [11]

[27] Applicant's supplementary submissions filed 17 June 2025 at [27]

[28] First Clark report CB 384 at [11]

[29] First Clark report CB 384 at [12]

[30] Letter of instruction to Ms Clark dated 13 March 2023 at [7(a)(iii)] CB 12

[31] First Clark report CB 391 to 392 at [49]

[33] First Clark report CB 399 at [86]

[34] First Clark report CB 399 at [87]

[35] First Clark report CB 399 at [88]

[36] First Clark report CB 399 at [88]

[37] First Clark report CB 400 at [92]

[38] First Clark report CB 400 at [94] to [95]

[39] First Clark report CB 399 at [96]

[40] First Clark report CB 399 at [97]

[41] First Clark report CB 399 at [98]

[42] Transcript 18 June 2025 T73.38 to T73.44

[43] Second Clark report CB 508 at [46]

[44] Second Clark report CB 508 at [49]

[45] Second Clark report CB 508 at [52]

[50] Transcript 18 June 2025 at T48.17 to 48.25

[51] Han (supra) at [132] to [134]

[52] Second Clark report CB 495 at [10] and [12(g)]

[53] Respondents' supplementary written submissions filed 16 June 2025 at [42]

[56] Fourth Farragher Affidavit at [6(c)]

[58] Transcript 18 June 2025 T49.11 to T49.12

[59] Fourth Farragher Affidavit at [17] at CB 553

[61] First Clark report CB 390 at [43]

[62] First Clark report CB 391 at [46]

[63] Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCAFC 333; (2011) 193 FCR 526 per Barker J at [442]

[64] Second Clark report CB 407 at [42]

[70] Liability judgment at [165] to [166]

[74] Transcript 18 June 2025 at T69.37, T70.01, T70.38 to T70.44 and T71.16 ti T71.19

[75] Transcript 18 June 2025 at T69.36 to T69.40

[77] Liability judgment at [116] to [117]

[78] Liability judgment at [124] and [234]

[83] Liability judgment at [132] and [228] to [230]

[90] Liability judgment at [185] to [190]

[93] Liability judgment at [203] to [207]

[94] Liability judgment at [210] to [214] and [216]

[96] Liability judgment at [109] to [117]

[97] Liability judgment at [126] to [131]

[98] Liability judgment at [173] to [175]

[99] Transcript 18 June 2025 at T71.44 to T71.47

[100] Citing Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd [1978] ATPR 40-091 at 17,896

[101] Third Meyne Affidavit at [6] to [7]

[103] Transcript 18 June 2025 at T68.22 to T68.24

[104] Liability judgment at [185] to [190]

Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025

Rights and Equal Opportunity Commission Act 1986

Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441; (2006) 160 IR 1

Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 399 ALR 599

Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCAFC 333; (2011) 193 FCR 526

Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18; (2007) 157 FCR 329

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corp Ltd [2007] FCA 1607

Dafallah v Fair Work Commission [2014] FCA 328; (2014) 225 FCR 559

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 69

Fair Work Ombudsman v Maritime Union of Australia (No 2) [2015] FCA 814; (2015) 252 IR 101

Han v St Basil's Homes (No 2) [2025] FCA 448

Kassis v Republic of Lebanon [2014] FCCA 155; (2014) 282 FLR 408

Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402; (2012) 208 FCR 178

Leggett v Hawkesbury Race Club Ltd (No 4) [2022] FCA 622; (2022) 293 FCR 608

Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120

Minister for Environment v Northern Seafoods Pty Ltd [2022] FCA 656

Patrick Stevedores Holdings Pty Limited v CFMMEU (No 4) [2021] FCA 1481

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1

Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293

Taylor v Department of Health [2020] FCA 1364

Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd [1978] ATPR 40-091

TWUA v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244

Unsworth v Tristar Steering and Suspension Australia Ltd [2008] FCA 1224; (2008) 175 IR 320

Victoria University of Technology v Australian Education Union [1999] FCA 1065; (1999) 91 IR 96

Further, the width of the power conferred by s 545(1) also allows for compensation which may not fully compensate a person for the loss suffered: see Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [94] per French and Jacobson JJ, where their Honours were considering similar statutory compensation provisions under s 46PO(4) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). In my opinion, that approach is available under s 545(1) because, as their Honours pointed out in Gama at [94], an award of compensation is discretionary. In s 545(1), the governing consideration is what the court considers "appropriate", and this in my opinion leaves room for a court to find in a given case that less than full compensation might be appropriate.

132. In other contexts, it is well settled that a judge faced with a paucity of evidence as to the assessment of damages "must simply do the best that he or she can to assess the extent of the plaintiff's loss": Harriton v Stephens [2006] HCA 15; 226 CLR 52 at [84] (Kirby J, though his Honour was in dissent, the point is well established). The Full Court (Sheppard, Morling and Wilcox JJ) in Enzed Holdings Ltd v Wynthea Pty Ltd [1984] FCA 373; (1984) 4 FCR 450 stated at [57]:

A plaintiff cannot recover substantial as opposed to nominal damages unless he proves both the fact and the amount of damage: The Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64 at 80 per Mason CJ and Dawson J; at 99 per Brennan J, at 118 per Deane J and at 137-8 per Toohey J. If he proves the fact of the loss but does not call the necessary evidence as to its amount he cannot be awarded substantial damages (McGregor on Damages, 14th ed, pp 190 and 222): he must put the tribunal in the position of being able to quantify in money the damage he has suffered: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 at p 159, per Dixon CJ So juries in personal injuries cases are often directed that the plaintiff must prove to their satisfaction what he has suffered and will suffer and what is fair and reasonable compensation in respect of that. It is often said that the amount of damage must be proved with a certainty, but this only means as much 'certainty' as is reasonable in the circumstances: Ratcliffe v Evans [1892] 2 QB 524 at pp 532-3. Where precise evidence is obtainable, the court naturally expects to have it; where it is not, the court must do the best it can: Biggin & Co Ltd v Permanite Ltd [1951] 1 KB 422 at p 438; The Commonwealth v Amann Aviation Pty Ltd (supra) per Mason CJ and Dawson J at p 83. The nature of the damage may be such that the assessment of damages will really be a matter of guess work, as in the well-known case of Chaplin v Hicks [1911] 2 KB 786, where the plaintiff had lost a chance of winning an engagement as an actress as a prize. So damages will be assessed for the wrongful detention of a race horse even though it may be necessary to guess at the amount: ; ; compare ; ...

(1) The purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with the provisions of the relevant statute by the deterrence of further contraventions of the statute: [9] and [15];

(2) "Insistence upon the deterrent quality of a penalty should be balanced by insistence that it 'not be so high as to be oppressive'. Plainly, if deterrence is the object, the penalty should not be greater than is necessary to achieve this object; severity beyond that would be oppression" (citing NW Frozen Foods at 293): [40];

(3) It is incorrect to set a penalty with reference to what is proportionate to the seriousness of the conduct that constituted the contravention: [10];

(4) The penalty should be "proportionate" in the sense that it strikes a reasonable balance between deterrence and oppressive severity: [41];

(5) It is incorrect to view the maximum penalty as being reserved for only the most serious examples of offending conduct; what is required is that there be "some reasonable relationship between the theoretical maximum and the final penalty imposed" (citing ACCC v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at [156] per Jagot, Yates and Bromwich JJ): [10];

(6) The object of imposing a penalty 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 statute: [15];

(7) "Retribution, denunciation and rehabilitation have no part to play" (citing Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Cmr (Non-Indemnification Personal Payment Case) [2018] FCAFC 97; 264 FCR 155 at [19] per Allsop CJ, White and O'Callaghan JJ): [16];

(8) A civil penalty "must be fixed with a view to ensuring that the penalty is not such as to be regarded by [the] offender or others as an acceptable cost of doing business" (citing ; at per Keane CJ, Finn and Gilmour JJ): [17].

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