Wow! I didn't see this coming. The Full Federal Court has dismissed what was effectively a joint appeal by Volkswagen and the ACCC to reduce Judge Foster's $125 million penalty to the agreed Volkswagen / ACCC penalty of $75 million. The Full Court held that the $125 million penalty was ‘was not excessive, let alone manifestly excessive’.Given that there is $50 million at stake you would expect a Volkswagen appeal but it looks like a very strong Full Federal Court bench, consisting of Justices Wigney, Beach and O’Bryan so I doubt the High Court would grant leave.
It is also a pretty embarrassing outcome for the ACCC who appear to have been off the mark in terms of penalty by a cool $50 million!