Australian civil penalty settlement agreements: a new approach – ASIC v Ingleby

The recent decision of ASIC v Ingleby in the Victorian Supreme Court of Appeal signals a new approach by Victorian courts to negotiated settlements of civil penalty proceedings. This is a departure from the approach previously taken by the Federal Court of Australia. The Court of Appeal held that the generally accepted approach regarding negotiated settlements, which was endorsed by the Full Federal Court in NW Frozen Foods Pty Ltd v ACCC  is ‘plainly wrong’.

The decision may lead to courts in different jurisdictions take different approaches to approval of agreed penalties. This may in turn affect regulators’ decisions about which jurisdiction (being in the Federal Court or State Supreme Court) they choose to prosecute civil penalty proceedings. Unlike the previous Federal Court position, the Victorian Court of Appeal was of the view that instead of just ensuring that agreed settlements are ‘within range’, the court should instead itself determine what it thinks the appropriate civil penalty amount should be, though the court should have regard to any agreement with the regulator. 

For more information, please see our Legal Briefing Insight article.