Full Court rules against agreed penalties

Published On 01/05/2015 | By Peta Stevenson | Enforcement

The Full Court of the Federal Court of Australia has this afternoon delivered an important judgment about the ability of parties to agree penalties, holding that the Barbaro line of authority applies in civil penalty cases.

The Court has held the High Court’s reasoning in Barbaro v R (a criminal case) applies to civil penalty cases, such that a Court may not receive, or act on, an agreed penalty or submisions as to the range within which a penalty should fall.

The judgment would however still permit the Court to receive the facts (including agreed facts), as well as submissions about comparable penalties from prior cases.

The unanimous judgment of Justices Dowsett, Greenwood and Wigney in Director, Fair Work Building Industry Inspectorate v CFMEU can be seen here: http://www.austlii.edu.au/au/cases/cth/FCAFC/2015/59.html.

While the case was in the industrial context, it has very broad ramifications including in relation to penalties under the Competition & Consumer Act 2010 and the Corporations Act, and is therefore relevant to all companies.

The Commonwealth intervened (with the ACCC acting as lead agency) in the proceeding in relation to issues arising from the Barbaro v R decision and, as the Director and the CFMEU both supported the Commonewalth’s submissions, the Court appointed Cameron Moore SC to act as contradictor to the Commonwealth’s position.

A decision is yet to be made on whether special leave will be sought.

Our full alert is available here.

About The Author

is a partner in the Sydney office of King & Wood Mallesons where she specialises in competition litigation with experience in a wide range of jurisdictions. Peta also advises clients on the application of the anti-competitive conduct, consumer protection and access provisions of the Competition & Consumer Act 2010 (Cth) and related state legislation. In 2001/02 she undertook her LLM at the University of Cambridge, during which time she developed a passionate if fleeting interest in rowing.

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