Australian Securities and Investments Commission v AMP Financial Planning Proprietary Limited [2022] FCA 1115

FEDERAL COURT OF AUSTRALIA Australian Securities and Investments Commission v AMP Financial Planning Proprietary Limited [2022] FCA 1115 File number: VID 420 of 2021

Judgment of: MOSHINSKY J

Date of judgment: 20 September 2022

Catchwords: CORPORATIONS – financial services – fees for no services – where the defendants deducted a plan service fee (PSF) to which they were not entitled from the accounts of members of a superannuation plan for a period of over three years – where the applicable rules of the plan provided that the defendants were not entitled to the PSF after a member ceased employment with the employer-sponsor – where the defendants continued to deduct the PSF after members ceased employment with the employer-sponsor – where the defendants received many complaints from members and authorised representatives about the deduction of the PSF, but this did not (for a long time) trigger an investigation into whether there was a systemic issue – where the defendants admitted contravening the relevant legislative provisions and the parties jointly proposed declarations of contravention – where the plaintiff sought the imposition of pecuniary penalties totalling $17.5 million and the defendants proposed penalties totalling $4.6 million – held: declarations made and penalties totalling $14.5 million imposed

Legislation: Australian Securities and Investments Commission Act 2001 (Cth), ss 12DB, 12DI, 12GBA, 12GLB Corporations Act 2001 (Cth), ss 761A, 912A Federal Court of Australia Act 1976 (Cth), s 21 Trade Practices Act 1974 (Cth)

Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599 Australian Competition and Consumer Commission v AGL South Australia Pty Ltd (2015) 146 ALD 385; [2015] FCA 399 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2017) 258 FCR 312 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2015) 327 ALR 540 Australian Competition and Consumer Commission v Energy Australia Pty Ltd (2014) 234 FCR 343 Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 Australian Competition and Consumer Commission v Trivago N.V. (No 2) (2022) 159 ACSR 353 Australian Competition and Consumer Commission v Woolworths Limited [2016] ATPR ¶42-251; [2016] FCA 44 Australian Securities and Investments Commission v AMP Financial Planning Pty Ltd (2020) 377 ALR 55 Australian Securities and Investments Commission v Commonwealth Bank of Australia [2020] FCA 790 Australian Securities and Investments Commission v Westpac Banking Corporation (2022) 159 ACSR 381 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Trade Practices Commission v CSR Ltd [1991] ATPR ¶41-076; [1990] FCA 762