Australian Building and Construction Commissioner v Pattinson [2022] HCA 13

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

AUSTRALIAN BUILDING AND CONSTRUCTION

COMMISSIONER APPELLANT

AND

KEVIN PATTINSON & ANOR RESPONDENTS

Australian Building and Construction Commissioner v Pattinson

[2022] HCA 13

Date of Hearing: 7 December 2021

Date of Judgment: 13 April 2022

M34/2021

ORDER

1. Appeal allowed.

2. Set aside the orders of the Full Court of the Federal Court of Australia made on 16 October 2020 and, in their place, order that the appeal to that Court be dismissed.

On appeal from the Federal Court of Australia

Representation

S P Donaghue QC, Solicitor-General of the Commonwealth, and T M Begbie QC with J D Watson for the appellant (instructed by MinterEllison)

R M Doyle SC with P A Boncardo and B Bromberg for the respondents (instructed by Construction, Forestry, Maritime, Mining and Energy Union)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Australian Building and Construction Commissioner v Pattinson

Industrial law (Cth) – Pecuniary penalties – Determination of appropriate penalty – Where s 349(1) of Fair Work Act 2009 (Cth) ("Act") relevantly provided that person must not knowingly or recklessly make false or misleading representation about another person's obligation to engage in industrial activity – Where s 546 of Act empowered Federal Court of Australia to order person to pay pecuniary penalty that court considered "appropriate" in respect of contravention of civil remedy provision – Where first respondent union officer and second respondent union each contravened s 349(1) of Act twice – Where second respondent had longstanding history of contraventions of Act – Whether discretion under s 546 of Act constrained by notion of proportionality drawn from criminal law – Whether statutory maximum penalty for civil remedy provision may be imposed only for worst category of contravening conduct.