Civil penalties litigation
A civil penalty is a pecuniary penalty imposed by the court in civil proceedings (as distinct from a fine in criminal proceedings). In matters involving Commonwealth agencies, the penalty is usually payable to the Commonwealth. Substantial civil penalties are an increasingly important enforcement tool for a range of regulatory agencies, to deter both a particular respondent, and others more generally, from contravening conduct.
AGS has continued to broaden its civil penalties litigation practice throughout 2012–13. This is a long-established and important part of our dispute resolution practice, and one in which AGS has a particular depth of expertise.
We also launched AGS's inaugural series of civil penalties forums, which brought together regulators from 29 different agencies across the country to discuss common and developing issues in Commonwealth civil penalty cases. Coordinated and convened by Tim Begbie (Senior General Counsel), Katrina Close (Senior Executive Lawyer) and Justine Knowles (Senior Executive Lawyer), these forums will be held annually.
Some of the civil penalty proceedings we successfully conducted in the course of the year are highlighted below.
- Clean Energy Regulator v MT Solar Pty Ltd – the first civil penalty case brought by the Clean Energy Regulator. Penalties were imposed upon solar power installation companies, their directors and a fraudulent electrician for the improper creation of Renewable Energy Certificates under the Renewable Energy (Electricity) Act 2000. Tim Begbie was counsel on the matter, with Zita Rowling (Senior Executive Lawyer) as solicitor.
- Australian Competition and Consumer Commission v Kingsland Meatworks and Cellars Pty Ltd – penalties imposed for misleading representations as to the place of origin of food products. AGS's lead lawyers on this matter were Emma Gill (Senior Executive Lawyer) and David Ablett (Senior Executive Lawyer).
- Australian Communications and Media Authority v Bytecard Pty Ltd – penalties imposed for contraventions of the Telecommunications Act 1997. AGS's lead lawyers on this matter were Andrew Berger (Senior General Counsel) and Tim Begbie.
- Australian Competition and Consumer Commission v Cotton on Kids Pty Ltd – penalties of $1 million for breaches of product safety laws to children's nightwear. AGS's lead lawyer on this matter was Annamie Hale (Senior Lawyer).
- Minister for Sustainability, Environment, Water, Population and Communities v Woodley – penalties imposed on a company and its director under the Environment Protection and Biodiversity Conservation Act 1999 for undertaking commercial rock lobster fishing activities within the Tasman Fracture Commonwealth Marine Reserve. AGS's lead lawyers on this matter were Tim Begbie as counsel and Nathan Sinnathurai (Senior Lawyer) as solicitor.
- Tax Practitioners Board v Munro – penalties and related relief for contraventions of the Tax Agent Services Act 2009, involving provision of tax agent services by a person who was not a registered tax agent. AGS's lead lawyer on this matter was David Sutherland (Senior Lawyer).
- Australian Competition and Consumer Commission v AirAsia Berhad Company – penalties imposed for contravention of Australian Consumer Law involving the publication of the price of air travel services without specifying the total price in a prominent way and as a single figure. The AGS team on this matter was led by David Ablett.
- Tax Practitioners Board v Campbell – penalties and related relief for contraventions of the Tax Agent Services Act 2009, involving provision of tax agent services by a person who was not a registered tax agent. AGS's lead lawyer on this matter was Stephen Vorreiter (Senior Executive Lawyer).
- Australian Competition and Consumer Commission v Hewlett-Packard Australia Pty Limited – penalties and related relief were obtained following agreement with the respondent, for breaches of the Australian Consumer Law by Hewlett Packard for making misrepresentations to consumers in connection with consumer guarantees for desktop and notebook computers, laptops and printers. In addition to injunctions, disclosure and adverse publicity orders and an order for a compliance training program, a pecuniary penalty of $3 million was imposed upon Hewlett Packard Australia. Sarah Tormey (Senior Lawyer) conducted the matter.
This is an extract from the 2012–13 AGS annual report