Australian Securities and Investments Commission v Rent 2 Own Cars Australia Pty Ltd (No 2) [2022] FCA 491

Federal Court of Australia

Australian Securities and Investments Commission v Rent 2 Own Cars Australia Pty Ltd (No 2) [2022] FCA 491 File number(s): QUD 609 of 2018

Judgment of: GREENWOOD J

Date of judgment: 4 May 2022

Catchwords: CONSUMER LAW – consideration of the amount of a pecuniary penalty to be imposed upon a credit provider in relation to contraventions of ss 17(4), 17(5), 23(1) and 32A of the National Credit Code (the "Code"), Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth) (the "NCCP Act") – consideration of the amount of a pecuniary penalty to be imposed upon a credit provider in relation to contraventions of ss 12DB(1)(a) and 12DB(1)(g) of the Australian Securities and Investments Commission Act 2001 (Cth) CONSUMER PROTECTION – consideration of the amount of pecuniary penalties to be imposed upon the credit provider having regard to contraventions in relation to a First Tranche of contracts comprising 142 credit contracts and a Second Tranche of contracts comprising 90 contracts CONSUMER PROTECTION – consideration of the extent to which the two individual respondents as former directors of the credit provider were knowingly concerned in the credit provider's contraventions of the Code and the ASIC Act – consideration of the 133 contraventions of the ASIC Act provisions in respect of which the two individual respondents were knowingly concerned (133 contracts) CONSUMER PROTECTION – consideration of the decision of the High Court of Australia in Australian Building and Construction Commission v Pattinson [2022] HCA 13, 13 April 2022 – consideration of the principles governing civil penalties discussed by the majority (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) – consideration of the observations of the majority at [10] of the reasons that the power to impose a pecuniary penalty conferred by s 546 of the Fair Work Act 2009 (Cth) "is not subject to constraints drawn from the criminal law" and "there is no place for a 'notion of proportionality' in the sense in which the Full Court used that term" (in Pattinson v ABCC [2020] FCAFC 177; 282 FCR 580) CONSUMER PROTECTION – consideration of the period during which the individual respondents are to be restrained from engaging in activities involving credit activity