Australian Securities & Investments Commission v AMP Financial Planning Pty Ltd (No 2) [2020] FCA 69

FEDERAL COURT OF AUSTRALIA

Australian Securities & Investments Commission v AMP Financial Planning Pty Ltd (No 2) [2020] FCA 69 File number: NSD 1124 of 2018

Judge: LEE J

Date of judgment: 5 February 2020

Catchwords: CORPORATIONS – financial advice – "best interests obligations" – ss 961B, 961G and 961J of the Corporations Act 2001 (Cth) where six representatives of defendant licensee breached ss 961B, 961G and 961J (part of the best interests obligations) by providing advice to 40 clients to generate higher commissions ("churning") – where some contravening conduct by representatives belatedly admitted by defendant licensee CORPORATIONS – financial advice – obligation of financial services licensee under s 961L of Corporations Act 2001 (Cth) to take reasonable steps to ensure that its representatives comply with ss 961B, 961G and 961J – whether defendant licensee committed two, six, 18 or 120 contraventions of s 961L PRACTICE AND PROCEDURE – pleadings – procedural fairness – whether it is open to Court to find number of contraventions not contended for until time of hearing PRACTICE AND PROCEDURE – declarations – sufficient utility – where declarations of contraventions of s 912A(1) will not form basis for pecuniary penalties – whether there is a public interest in declaring that a person who has engaged in certain conduct has contravened the law – importance of the Court's reasons in indicating Court's disapprobation PRACTICE AND PROCEDURE – contravening companies selecting large accounting firms to conduct remediation programmes – presentation of fait accompli to Court – dangers of subconscious partisanship and selection bias