Pecuniary civil penalties & ‘agreed’ fines (pre hearing)

ASIC v Ingleby [2013] VSCA 49

Issue:

Approach to agreed penalty taken in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 doubted.

Weinberg JA with whom Harper JA and Hargaves AJA concurred:

15. Any negotiated settlement that is placed before a court for approval must recognise the fact that sentencing an offender (or, for present purposes, the imposition of a pecuniary penalty) is quintessentially an exercise of judicial power. Courts have stated repeatedly that they do not merely ‘rubber stamp’ agreements entered into by parties, and no one suggests that they should.

28. The views expressed by the Full Federal Court in both NW Frozen Foods and Mobil Oil are entitled to be given due weight, and appropriate respect. That said, and as the High Court has made clear, this Court is not bound to follow decisions of other intermediate appellate courts which it regards as ‘plainly wrong’. I have previously said that I consider both NW Frozen Foods and Mobil Oil to represent bad law. I am still of that opinion.

29. NW Frozen Foods and Mobil Oil were, in my opinion, wrongly decided because they treat the trial judge, who is to impose the pecuniary penalty, as though he or she is exercising an appellate role. Under the approach adopted in those cases, the judge is not independently arriving at the appropriate penalty, but rather asking an entirely different question — whether the agreed figure falls within the range of penalties reasonably available. That is, in substance, an appellate question, and not a first instance question. If the judge is unable to say that the agreed penalty is ‘wholly outside’ the range,[29] he or she is bound to impose that penalty irrespective of whether it is considered appropriate. That is, in my view, a fundamental departure from the judicial function in relation to sentencing, and one that simply ought not to be countenanced.

30. That is not to say that a judge faced with a negotiated settlement in a pecuniary penalty matter should not give due weight to any agreed figure, if one happens to be put forward.[30] However, that figure should be regarded as nothing more than a submission. It should have no binding force of any kind, even if it happens to fall ‘within the range’.

Harper JA

95 Senior counsel for Mr Ingleby submitted, in the hearing below, that his client’s failure to see what he ought to have seen was a consequence of the demands placed upon him by his job; demands which did not allow for a sufficiently careful reading of correspondence or attention to the detail which would, if known, have led to the truth. I am unimpressed with this argument. It is essential that those who accept the rewards of important offices also accept the responsibilities which go with them. Proper corporate and professional behaviour depends upon that acceptance, and must be supplemented by the knowledge that the courts will play their part in the maintenance of appropriate standards.

Brisbane Barrister – David Cormack

 

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