Australian Securities and Investments Commission v Select AFSL Pty Ltd (No 3) [2023] FCA 723

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Select AFSL Pty Ltd (No 3) [2023] FCA 723 File number(s): NSD 1447 of 2019

Judgment of: ABRAHAM J

Date of judgment: 4 July 2023

Catchwords: CORPORATIONS – conflicted remuneration – consumer law – banking and financial institutions – directors' duties – contraventions by corporate defendants and individual defendant – numerous breaches of Corporations Act 2001 (Cth) and Australian Securities and Investments Commission Act 2001 (Cth) – assessment of pecuniary penalties and other relief – where individual defendant did not give evidence during liability hearing – where defendants did not deliberately contravene laws – where defendants sought to downplay seriousness of conduct – where insufficient evidence to determine financial position of defendants – where defendants have no prior contraventions of similar conduct – where failures in compliance system to be seen in context of competitive sales environment – where deterrence must be dominant consideration – advertising orders not made – declarations, restraining orders, probation order and disqualification order made – pecuniary penalties imposed COSTS – where defendants sought apportionment of costs – usual order as to costs made

Legislation: Australian Securities and Investments Commission Act 2001 (Cth) ss 12CB(1), 12DA, 12DB(1)(a), 12DB(1)(d), 12DB(1)(e), 12DB(1)(g), 12DB(1)(i), 12DJ(1), 12GBA, 12GD, 12GLA(2)(b), 19 Competition and Consumer Act 2010 (Cth) Sch 2 s 13 Corporations Act 2001 (Cth) ss 79, 180, 206C, 206E, 912A(1)(a), 912A(1)(c), 963E, 963F, 963J, 963K, 1317E, 1317G(1), 1317G(1E), 1317G(1F), 1324 Corporations Amendment (Life Insurance Remuneration Arrangements) Act 2017 (Cth) Evidence Act 1995 (Cth) s 55 Federal Court of Australia Act 1976 (Cth) s 21, 43