Australian Securities and Investments Commission v Kobelt [2017] FCA 387

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Kobelt [2017] FCA 387 File number: SAD 100 of 2014

Judge: WHITE J

Date of judgment: 13 April 2017

Catchwords: CONSUMER LAW – penalties to be imposed for a contravention of s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and for contraventions of s 29(1) of the National Consumer Credit Protection Act 2009 (Cth) (NCCP Act) - penalty imposed for a single contravention of s 12CB by engaging in a system of conduct which was unconscionable – 92 contraventions of s 29 of the NCCP Act but the contraventions formed part of a course of conduct – consideration of ss 166-7 of the NCCP Act – penalties imposed for 45 contraventions – consideration of the totality principle as applied to civil penalties

Legislation: Australian Securities and Investments Commission Act 2001 (Cth) ss 12 CB, 12GBA, 12GD(1) Building and Construction Industry Improvement Act 2005 (Cth) Crimes Act 1914 (Cth) ss 4AA, 4K National Consumer Credit Protection Act 2009 (Cth) ss 5, 6(1), 29, 37, 45, 47, 50, 51, 54, 88, Ch 3, 166, 167 National Credit Code s 5 Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) s 29

Cases cited: Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 326 ALR 476 Trade Practices Commission v CSR Limited [1991] ATPR 41-076 Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226, (2005) 148 FCR 132 Director, Fair Work Building Industry Inspectorate v Cradden [2015] FCA 614 Director of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 Hamberger v Construction, Forestry, Mining and Energy Union [2002] FCA 585 Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70, (2008) 168 FCR 383 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181, (2017) 340 ALR 25 Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd [2016] FCA 698 Director Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59; (2015) 229 FCR 331 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen [1998] HCA 57, (1998) 194 CLR 610 Johnson v The Queen [2004] HCA 15, (2004) ALR 346 The Queen v Bibaoui (1997) 2 VR 600 The Queen v Finnie [2002] NSWCCA 533 Thorn v The Queen (2009) 198 A Crim R 135 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, (2015) 326 ALR 476 Royer v Western Australia [2009] WASCA 139 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39, (2009) 269 ALR 1 The Attorney General v Tichy (1982) 30 SASR 84 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383 Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247; [2006] ATPR 42-091