Australian Prudential Regulation Authority v Holloway [2000] FCA 1245

FEDERAL COURT OF AUSTRALIA Australian Prudential Regulation Authority v Holloway [2000] FCA 1245 SUPERANNUATION - contravention of s 85(1) of the Superannuation Industry (Supervision) Act 1993 (Cth) by first and second respondents - imposition of monetary penalty for breach of civil penalty provision - first respondent a corporation - the second respondent an individual, employee, director and principal actor in the contravention - contravention of the Superannuation Industry (Supervision) Act 1993 (Cth) arising out of a number of different transactions - consideration of principles and factors relevant to determining level of penalty in the circumstances peculiar to each respondent. CIVIL PENALTIES - civil offences under Superannuation Industry (Supervision) Act 1993 (Cth) by corporation and by individual as working director of corporation - state of mind and actions of working director the state of mind and actions of working director - whether separate civil penalties should be imposed on corporation and on individual - consideration of level of civil penalties to be imposed on individual also liable as principal offender. COSTS - consideration of appropriate order for costs - respondents submitted that there should be no order for costs - whether circumstances warrant departure from the general rule that in the normal course a successful party should have its costs of the application - significance of applicant's failure to establish several contraventions alleged - significance of respondents' alleged failure to cooperate in applicant's investigations. Crimes Act 1914 (Cth) ss 4AA, 4B(3), 4D(1), 4F(1) Crimes Act Amendment Act 1992 s 19 Crimes and Other Legislation Act Amendment Act 1997 s 3, Sch 1 cl 9 Federal Court of Australia Act 1976 (Cth) s 43 Superannuation Industry (Supervision) Act 1993 (Cth) ss 71(1), 71(2), 76, 77, 78, 80, 85(1), 193, 194, 196, 196(4), 196(5), Pt 5 Div 2, Pt 5 Div 3, Part 21 Trade Practices Act 1974 (Cth) ss 75B, 76 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 141 ALR 640 applied J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 considered Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 considered Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091 considered Australian Securities Commission v Donovan (1998) 28 ACSR 583 considered Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 considered Trade Practices Commission v Carlton and United Breweries Ltd (1990) ATPR 41-037 considered, applied McDonald v The Queen (1994) 48 FCR 555 considered TPC v TNT Australia Pty Ltd (1995) ATPR 41-375 considered Australian Competition and Consumer Commission v Simsmetal Ltd [2000] FCA 818 applied Mallan v Lee (1949) 80 CLR 198 followed, distinguished Yorke v Lucas (1985) 158 CLR 661 considered Hamilton v Whitehead (1988) 166 CLR 121 applied Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 applied Mill v R (1988) 166 CLR 59 followed National Mutual Life Association of Australia Ltd v Windsor (1991) 28 FCR 214 considered Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 followed Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412 followed Ritter v Godfrey [1920] 2 KB 47 applied Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 applied Forster v Farquhar [1893] 1 QB 564 considered Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201 followed Cretazzo v Lombardi (1975) SASR 4 followed Cromer v Harry Rickards' Tivoli Theatres Ltd [1921] 13 SASR 325 followed Monier Ltd v Metalwork Tiling Company of Australia Ltd (No.2) (1987) 43 SASR 588 considered Tingay v Harris [1967] 1 All ER 385 considered Cheeseman v Bowaters United Kingdom Paper Mills Ltd [1971] 3 All ER 513 considered