Case: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Outcome: cited
In relation to proposed pecuniary penalties, Burchett and Kiefel JJ said in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 (at 291): 'There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all the circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case.' 102 In Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2002] FCA 619 , Weinberg J referred to what he considered to be the 'somewhat undesirable practice on the part of the ACCC in presenting this Court with a specific figure as an 'agreed pecuniary penalty'' (at [32]). While acknowledging that both the ACCC and Colgate had accepted that the figure proposed was in no way binding upon the Court, his Honour could not find a single instance when the Court had not in the past endorsed such a figure. His Honour went on (at [34]): 'It is difficult to imagine that the parties would propose a pecuniary penalty that is so clearly beyond the permissible range that the Court will depart from it. As the authorities presently stand, the Court is bound to impose an agreed pecuniary penalty, save in such circumstances.' His Honour acknowledged the importance of the principles enunciated in NW Frozen Foods and, in particular, the need for corporations to have certainty of outcome if they were to be encouraged to engage in negotiated settlements. He was bound by those principles and the well-established line of authority to accept that the Court would not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure. His Honour said: 'However, there are dangers associated with this approach. The Court may be seen, perhaps not altogether incorrectly, to act as a 'rubber stamp' in simply approving a decision taken at an executive level by a body charged with investigating and prosecuting contraventions of the Act, but having no role in actually imposing particular sanctions for those contraventions. Negotiated settlements are an important vehicle for resolving complex matters such as those involving the present case. It must be borne in mind, however, that there is a public interest in ensuring that corporations that engage of behaviour of the kind that occurred in this case are dealt with appropriately, and that proper recognition is given to the need for specific and general deterrence. There are important parallels between the fixing of a pecuniary penalty under s 76 , and the ordinary sentencing process which is quintessentially a matter for the courts.' His Honour made clear that he was not critical of a joint submission between regulator and contravenor about what might be the appropriate range of pecuniary penalties to be imposed. A submission couched in those terms could assist in achieving a measure of certainty and consistency of treatment with other like cases. 103 I agree, with respect, with the remarks of Weinberg J. In the end, however, no 'agreed penalty' can bind the Court. Consistently with NW Frozen Foods the Court will apply a principle of judicial restraint in deciding whether or not to make orders in the terms proposed by the parties. But that principle of judicial restraint is not a self imposed constraint equating the role of the Court to one of judicial review of a sentencing discretion. Such a self imposed limitation could amount to an abdication of the duty that the Court has to exercise the jurisdiction which is invoked and the powers conferred upon it by the Parliament. NW Frozen Foods does not, in my opinion, confine the Court to the imposition of a penalty differing from the agreed penalty only where the agreed penalty would be outside the range of penalties which could be imposed in the proper exercise of a sentencing discretion. The restraint which is applied by the Court to regulatory settlements is informed by practical considerations which differ from the principles and criteria informing its judicial review function or the exercise of its appellate jurisdiction in relation to discretionary judgments.