R v Allianz Australia Insurance Ltd (ACN 000 122 850); R v AWP Australia Pty Ltd (ACN 097 227 177) (No 2)

[2025] NSWSC 202

Supreme Court

New South Wales

Medium Neutral Citation:

R v Allianz Australia Insurance Ltd (ACN 000 122 850); R v AWP Australia Pty Ltd (ACN 097 227 177) (No 2) [2025] NSWSC 202

Hearing dates:

28 February 2024

Date of orders:

13 March 2025

Decision date:

13 March 2025

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

Reasons for judgment in this matter issued on 28 February 2025 are amended.

Legislation Cited:

Crimes Act 1914 (Cth), s 4K

Crimes (Sentencing Procedure) Act 1999 (NSW), s 43

Judiciary Act 1903 (Cth), s 68

Cases Cited:

Akkawi v R (No 2) [2013] NSWCCA 72

Alramadan v DPP (NSW) (No 2) [2008] NSWCCA 69

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Putland v The Queen (2004) 218 CLR 174

R v Jones; R v Hili(No 2) [2010] NSWCCA 195

Category:

Procedural rulings

Parties:

Proceedings 2020/362580
Rex (Crown)
Allianz Australia Insurance Ltd (Accused)

Proceedings 2020/362564
Rex (Crown)
AWP Australia Pty Ltd (Accused)

Representation:

Counsel:
Proceedings 2020/362580
N Robinson KC / T Epstein / N Morrissey (Crown)
T Game SC / K Edwards SC / S Palaniappan (Accused)

Proceedings 2020/362564
N Robinson KC / T Epstein / N Morrissey (Crown)
R Higgins SC / S Callan SC / R McEwen (Accused)

Solicitors:
Proceedings 2020/362580
Commonwealth Director of Public Prosecutions (Crown)
Allens Solicitors (Accused)

Proceedings 2020/362564
Commonwealth Director of Public Prosecutions (Crown)
Herbert Smith Freehills Solicitors (Accused)

File Number(s):

2020/362580; 2020/362564

JUDGMENT

1. HIS HONOUR: On 28 February 2025, the Court issued reasons for judgment and orders imposing upon Allianz Australia Insurance Ltd a total fine of $13.5 million relating to six offences. The Court purportedly did so pursuant to the terms of s 4K(4) of the Crimes Act 1914 (Cth).

2. The Court has had drawn to its attention the judgment of the High Court in Putland v The Queen. [1] As Kirby J points out, the terms of s 4K(4) of the Crimes Act refer to a person convicted of two or more offences referred to in subs (3) of that section which refers to charges against the same person being joined in “the same “information, complaint or summons”. While the issue was agreed before the High Court, the acceptance by the High Court of the agreement and the comments of the learned judges, if obiter, are the kind of obiter that is required to be followed by other courts. [2] The approach adopted by the High Court in Putland has been followed in the Court of Criminal Appeal. The Court, as presently constituted, overlooked the provisions and the reference in s 4K(4) of the Crimes Act to the limitations in s 4K(3) thereof.

   1. (2004) 218 CLR 174 at [9] (Gleeson CJ), [50] (Gummow and Heydon JJ) and [86] (Kirby J).

   2. Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22.

3. While the Court adheres to the comments made as to the amendments to judgments and reasons for judgment previously made, [3] the provisions of s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which are picked up by s 68 of the Judiciary Act 1903 (Cth), expressly allows a Court to reopen proceedings in circumstances where a penalty has been imposed otherwise than in accordance with the law, in order to impose a penalty that is in accordance with the law.

   3. Akkawi v R (No 2) [2013] NSWCCA 72; R v Jones; R v Hili (No 2) [2010] NSWCCA 195; Alramadan v DPP (NSW) (No 2) [2008] NSWCCA 69.

4. Pursuant to the terms of s 43 of the Crimes (Sentencing Procedure) Act, as rendered applicable pursuant to the terms of s 68 of the Judiciary Act, the Court amends the penalty imposed upon Allianz Australia Insurance Ltd (ACN 000 122 850) so that a penalty is imposed in relation to each of the six offences of which the company has been convicted and imposes for each such offence a fine of $2.25 million, which totals a sum for the entirety of the criminal conduct described by the six offences, of $13.5 million.

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Endnotes