Australian Securities and Investments Commission v Dover Financial Advisers Pty Ltd (No 3) [2021] FCA 170

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Dover Financial Advisers Pty Ltd (No 3) [2021] FCA 170 File number: VID 1141 of 2018

Judge: O'BRYAN J

Date of judgment: 5 March 2021

Catchwords: CONSUMER LAW – pecuniary penalty for infringement of s 12DB(1)(i) of the Australian Securities and Investments Commission Act 2001 (Cth) – appropriate approach to assessment of civil penalty – whether a single penalty is required to be imposed for each contravening act – the circumstances in which an aggregate penalty may be ordered for multiple contraventions – relevance of contrition to deterrence – relevance of damage to health and reputation

Legislation: Australian Securities and Investments Commission Act 2001 (Cth) ss 12BG, 12DA(1), 12DB(1)(i), 12GBA Competition and Consumer Act 2010 (Cth) s 76 Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) s 224 Corporations Act 2001 (Cth) ss 912A, 917D, 1041H(1)

Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 Australian Competition and Consumer Commission v Telstra Corporation Ltd (2010) 188 FCR 238 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243 Australian Securities and Investments Commission v Dover Financial Advisers Pty Ltd [2019] FCA 1932; 140 ACSR 561 Australian Securities and Investments Commission v Dover Financial Advisers Pty Ltd (No 2) [2019] FCA 2151; 140 ACSR 635 Australian Securities and Investments Commission v GE Capital Finance Australia, in the matter of GE Capital Finance Australia [2014] FCA 701 Australian Securities and Investments Commission v Healy (No 2) (2011) 196 FCR 430 Australian Securities and Investments Commission v Wooldridge [2019] FCAFC 172 Commonwealth v Director, FWBII (2015) 258 CLR 482 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1 Director, Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118 Director, Consumer Affairs Victoria v Gibson (No 3) [2017] FCA 1148 Markarian v The Queen (2005) 228 CLR 357 Re HIH Insurance Ltd (in prov liq) and HIH Casualty and General Insurance Ltd (in prov liq); Australian Securities and Investments Commission v Adler [2002] NSWSC 483; 42 ACSR 80 Singtel Optus Pty Ltd v ACCC [2012] FCAFC 20; 287 ALR 249 Stuart v Construction, Forestry, Mining and Energy Union (2010) 185 FCR 308 Trade Practices Commission v CSR Limited [1990] FCA 762; (1991) ATPR 41-076 Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 Transport Workers' Union of Australia v Registered Organisations Commissioner (No 2) (2018) 267 FCR 40