Australian Securities and Investments Commission v Commonwealth Securities Limited [2022] FCA 1253

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Commonwealth Securities Limited [2022] FCA 1253 File number(s): NSD 150 of 2021

Judgment of: ABRAHAM J

Date of judgment: 25 October 2022

Catchwords: BANKING AND FINANCIAL INSTITUTIONS – proceeding for civil contraventions of Corporations Act 2001 (Cth) and Australian Securities and Investments Commission 2001 (Cth) – whether appropriate for court to make declarations of contravention, impose civil penalties and order defendants to implement a compliance plan – where conduct serious and unacceptable and where defendants have previously faced proceedings before the Market Disciplinary Panel – where defendants cooperated with regulator, remediated harm caused to customers, expressed contrition and have taken steps and made investments to improve future compliance – where parties agree on proposed relief – where parties agree that a discount from headline penalty is appropriate – where court satisfied that agreed penalty is appropriate having regard to all relevant matters

Legislation: Corporations Act 2001 (Cth) ss 798G, 798H, 912A, 912C, 1101B 1317E and 1317G Australian Securities and Investments Commission 2001 (Cth) ss 12DB, 12GBA, 93AA and 102 Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019 (Cth) s 48 Federal Court of Australia Act 1976 (Cth) s 21B Banking Act 1959 (Cth) s 5 Corporations Regulations 2001 (Cth) r 7.2A.10

Cases cited: ASIC v National Australia Bank Limited [2020] FCA 1494 ASIC v Pegasus Leverages Options Group Pty Ltd [2002] NSWSC 310; (2002) 41 ACSR 561 ASIC v Westpac Banking Corporation (No 3) [2018] FCA 1701; (2018) 131 ACSR 585 ASIC v Westpac Securities [2019] FCAFC 187; (2019) 272 FCR 170 Australian Building and Construction Commission v Pattinson [2022] HCA 13; (2022) 399 ALR 599 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] FCAFC 181; (2016) 340 ALR 25 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243 Australian Securities and Investments Commission v AGM Markets Pty Ltd (in liq) (No 3) [2020] FCA 208; (2020) 275 FCR 57 Australian Securities and Investments Commission v Avestra Asset Management Limited (in liq) [2017] FCA 497; (2017) 348 ALR 525 Australian Securities and Investments Commission v Camelot Derivatives Pty Ltd (in liq) [2012] FCA 414; (2012) 88 ACSR 206 Australian Securities and Investments Commission v Cassimatis (No 8) [2016] FCA 1023; (2016) 336 ALR 209 Australian Securities and Investments Commission v Commonwealth Bank of Australia [2020] FCA 790 Australian Securities and Investments Commission v Fisher & Paykel Customer Services Pty Ltd [2014] FCA 1393 Australian Securities and Investments Commission v Gallop International Group Pty Ltd [2019] FCA 1514; (2019) 138 ACSR 395 Australian Securities and Investments Commission v MLC Nominees Pty Ltd [2020] FCA 1306; (2020) 147 ACSR 266 Australian Securities and Investments Commission v Monarch FX Group Pty Ltd [2014] FCA 1387; 103 ACSR 453 Australian Securities and Investments Commission v Stone Assets Management Pty Ltd [2012] FCA 630; (2012) 205 FCR 120 Australian Securities and Investments Commission v Warrenmang [2007] FCA 973; (2007) 63 ACSR 623 Australian Securities and Investments Commission v Westpac Banking Corporation (No 2) [2018] FCA 751; (2018) 266 FCR 147Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 Fair Work, NW Frozen Foods Pty Ltd v Australian Competition Commission [1996] FCA 1134; (1996) 71 FCR 285 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; (2004) ATPR 41-993 Seven Network Ltd v News Ltd [2009] FCAFC 166; (2009) 182 FCR 160 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 Story v National Companies and Securities Commission (1988) 13 NSWLR 661 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49; (2021) 284 FCR 24