Civil Penalty Law & Practice and Procedure
Whether the lead applicant in class action should be intervener, an amicus curiae or contradictor in ASIC civil penalty proceedings
In Australian Securities and Investments Commission v RAMS Financial Group Pty Ltd [2025] FCA 1087 (4 September 2025), Top Ryde Financial Services Pty Ltd (TRFS), a franchisee of RAMS (RFG), sought to intervene or be appointed as a contradictor or an amicus curiae in the civil penalty proceedings as between the Australian Securities and Investments Commission (ASIC) and the respondent, RAMS (Civil Penalty Proceedings).
In the Civil Penalty Proceedings, ASIC sought declarations and pecuniary penalties against RFG for contraventions of the National Consumer Credit Protection Act 2009 (Cth), primarily s31 (prohibition on conducting business with unlicensed persons) and s47(1) (general conduct obligations). ASIC and RFG reached agreement in the Civil Penalty Proceedings, filing statements of agreed facts and admissions and joint submissions as to a proposed penalty.
TRFS is the lead applicant in representative proceedings, on behalf of some but not all the former RAMS franchisees against RFG (Class Action Proceedings), alleging that RFG breached a contractual and statutory obligation to deal with them in good faith, engaged in unconscionable conduct under s21 of the Australian Consumer Law and/or s12CB of the Australian Securities and Investments Commission Act 2001 (Cth), and s51ACB of the Competition and Consumer Act 2010 (Cth). Various assertions made by TRFS in the Class Action Proceedings were denied by RFG.
TRFS wished to be heard in the final hearing of the Civil Penalty Proceedings. While TRFS accepted that it did not have a direct legal interest in the determination of the Civil Penalty Proceedings, it submitted that its interests were sufficiently affected to justify the grant of leave to intervene or, at least, by its appointment as amicus curiae (at [31]–[48]). ASIC and TRFS disputed central aspects of TRFS’s submissions. They submitted that TRFS’s proposal to call evidence to dispute the agreed facts would result in the Civil Penalty Proceedings being “hijacked” and turned into a “dress rehearsal” of the Class Action Proceedings (at [49]).
The Court addressed the principles for the Court to exercise a discretion to grant a person leave to intervene or appoint a person as a contradictor or amicus curiae (at [8]–[14]). The Court held that TRFS had not established any ground upon which leave to intervene should be granted (at [50]). Nothing to be decided in the Civil Penalty Proceedings would decide any question of law that arises in the Class Action Proceedings (at [52]).
The facts that have been agreed in the Civil Penalty Proceedings were agreed as between ASIC and RFG – they do not give rise to res judicata or issue estoppel as between RFG and TRFS and the group members in the Class Action Proceedings (at [55]).
Shariff J explained:
“That is not to say that there is no overlap at all. In one sense, both proceedings relate to a similar subject matter, but that is to cast a simplistic eye over both Proceedings and place a gloss on the substantive legal and factual differences between them … To put this in crude terms, TRFS and the other group members will have their day in Court and will not be affected by anything that is found and determined in the Civil Penalty Proceedings” (at [61]).
The Court also held there were no grounds to appoint TRFS as a contradictor or amicus curiae (at [67]–[68]).
Industrial Law & Civil Penalty Law
Recipients of civil penalty under industrial legislation
In Transport Workers’ Union of Australia v Qantas Airways Ltd (Penalty) [2025] FCA 971 (18 August 2025), the Court determined the quantum of the civil penalty to be imposed on the respondent (Qantas) under s546(1) of the Fair Work Act 2009 (Cth) (FWA) for a significant contravention of the general protections provisions of Part 3–1 of the FWA.
The contravention related to Qantas’s decision, during the COVID-19 pandemic, to “outsource” Qantas’s ground handling operations work at 10 Australian airports to several third-party ground handling companies (outsourcing decision). The implementation of the outsourcing decision meant that the vast majority of the Qantas-employed ground handlers lost their jobs.
The applicant (Union) challenged the outsourcing decision, and, in July 2021, the trial found that the outsourcing decision was “adverse action” against Qantas employees in contravention of s340 of the FWA, which provides that a person must not take adverse action against another person to prevent the exercise of a workplace right by the other person. Qantas’s appeals to the Full Court and then the High Court were dismissed.
The Court applied the established factors for the assessment of civil penalties and ultimately imposed a civil penalty of $90 million on Qantas (at [321]). An interesting issue was to whom the penalty should be paid in whole or in part (at [231]ff). Under s546(3) of the FWA, the Court may order that the pecuniary penalty – or a part of the penalty – be paid to one of the Commonwealth, a particular organisation or a particular person.
Reference was made to Full Court authority, where it has been explained that the provision is part of the so-called “common informer” legislation that, in one form or another, has long been a part of the industrial relations framework of the Commonwealth (at [247]).
While there is no absolute rule, generally, where there is a common informer, the discretion is exercised in favour of the person responsible for the bringing of the case (at [272]). Even if the principled approach involved identifying whether there are “extraordinary circumstances” to depart from the “usual course”, such circumstances manifestly existed in the present case (at [280]). This was the largest and most significant contravention of Part 3–1 of the FWA (or its predecessor provisions) in more than 120 years, and the $90 million penalty vastly exceeds any other penalty recovered by a common informer (at [281]).
There were factors that strongly militated in favour of a substantial part of the penalty being paid to the Union (at [290]). These included that an arm of the executive government did not show any interest in investigating or prosecuting Qantas, and the Union, as a common informer, has alone borne the burden of prosecuting this litigation. If the Union had not commenced and prosecuted, Qantas’s significant contravening conduct would never have been exposed, and it would never have been held to account for its unlawful conduct. The litigation was hard fought, and its prosecution required not only the expenditure of significant resources, but also determination and skill. The payment of a significant sum of the penalty to the Union would strongly incentivise it and other trade unions to bring prosecutions under the FWA. In all the circumstances, the payment of at least a large part of the penalty to the Union will facilitate and promote both specific and general deterrence (at [299]). Lee J held it appropriate that $50 million of the penalty be paid to the Union (at [324]).
The Court did not accept the evidence established that the affected workers will necessarily be “fully compensated” on the material before the Court (at [300]–[313]). Lee J reserved, for later consideration, the making of further orders for the payment of the $40 million balance of the penalty. Acknowledging the real competing interests between the Union and the affected workers (or at least some of them), Lee J’s preliminary view was that a case management hearing be held to appoint amici curiae and to consider whether an order should be made under either or both s545(4) of the FWA and s54A of the Federal Court of Australia Act 1976 (Cth), providing for a referee to inquire into and report on certain issues to be specified relating to the circumstances of some or all the affected workers (at [325]–[327]).
