High Court reinstates agreed penalties

Published On 09/12/2015 | By Emma White | Cartels, Enforcement, Litigation, Reform

The High Court has unanimously reinstated the longstanding ability for regulators and parties in civil penalty proceedings to make submissions regarding agreed penalties.

In doing so, the High Court overturned an earlier judgment of the Full Court in Director, Fair Work Building Industry Inspectorate v CFMEU which held that the decision Barbaro v R (a criminal case) applied to civil penalty cases, such that a Court may not receive, or act on, submissions in respect of an agreed penalty or appropriate penalty. Read our previous post on the Full Court’s decision here.

The High Court’s decision recognised that there is an important public policy interest in promoting the predictability of outcome in civil penalty proceedings. The High Court’s reasons noted that there was already scope in all civil proceedings for parties to agree on facts and remedies, and for the Court to be persuaded as to its appropriateness.

The High Court also confirmed that submissions made by a regulator will be considered on their merits in the same way as the submissions made by a respondent, with both sets of submissions required to be supported by evidence, agreement or concession.

As a result of the decision, Courts will again be entitled to receive submissions from parties as to agreed or proposed penalties, and then exercise their independent role in deciding whether to accept or reject those submissions.

The High Court’s decision is a welcome one as it puts an end to the uncertainty that arose following the Full Court’s judgment and provides greater incentives for parties who engage in settlement or leniency discussions with a civil regulator.

Our full alert on the High Court’s decision is available here.

Photo credit: Flickr / Flazingo / remixed

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About The Author

is a Solicitor in the Sydney office of King & Wood Mallesons

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