Australian Securities and Investments Commission v ACBF Funeral Plans Pty Ltd, in the matter of ACBF Funeral Plans Pty Ltd [2023] FCA 1041

Federal Court of Australia

Australian Securities and Investments Commission v ACBF Funeral Plans Pty Ltd, in the matter of ACBF Funeral Plans Pty Ltd [2023] FCA 1041 File number(s): NSD 1182 of 2020

Judgment of: GOODMAN J

Date of judgment: 5 September 2023

Catchwords: CONSUMER LAW –misleading or deceptive conduct – insurance product marketed by a company (representor) to Aboriginal persons – whether the representor engaged in conduct in contravention of s 12DA and 12DB of the Australian Securities and Investments Commission Act 2001 (Cth) by making representations that: (1) the provider of the funeral product was an Aboriginal owned and managed entity; (2) the insurance product had the approval of the Aboriginal community; (3) the insurance product was more beneficial to Aboriginal persons than other insurers' products; (4) upon the death of a nominated person, there would be a payout of all of the "Chosen Benefit Amount" –whether the parent company of the representor was liable to a pecuniary penalty as a party knowingly involved in, or a party to, contraventions of s 12DB by the representor –contraventions of civil penalty provisions – appropriate penalty

Legislation: Australian Securities and Investments Commission Act 2001 (Cth), ss 12BAA, 12BAB, 12BB, 12DA, 12DB, 12GBA, 19 Evidence Act 1995 (Cth), s 140 Federal Court of Australia Act 1976 (Cth), s 21 Trade Practices Act 1974 (Cth), s 75B

Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liq) [2007] FCAFC 146; (2007) 161 FCR 513 Australian Competition and Consumer Commission v Lactalis Australia Pty Ltd (No 2) [2023] FCA 839 Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (t/as Captain Cook College) (ACN 085 570 547) (No 3) [2021] FCA 737; (2021) 154 ACSR 472 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 Australian Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 7) [2016] FCA 484 Australian Competition and Consumer Commission v SIP Australia Pty Limited [2003] FCA 336; (2003) ATPR 41-937 Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243 Australian Competition and Consumer Commission v Employsure Pty Ltd [2023] FCAFC 5; (2023) 407 ALR 302 Australian Consumer and Competition Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; (2015) 327 ALR 540 Australian Securities and Investments Commissions v Wilson (No 3) [2023] FCA 1009 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 647; (2021) 287 FCR 109 Love v Commonwealth [2020] HCA 3; (2020) 270 CLR 152 Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 McHugh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 223; (2020) 283 FCR 602 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 Productivity Partners Pty Ltd (trading as Captain Cook College) v Australian Competition and Consumer Commission [2023] FCAFC 54 Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661