Australian Securities and Investments Commission v Ferratum Australia Pty Limited (in liq) [2023] FCA 1043

Federal Court of Australia

Australian Securities and Investments Commission v Ferratum Australia Pty Limited (in liq) [2023] FCA 1043 File number: NSD 1137 of 2021

Judgment of: KENNETT J

Date of judgment: 7 September 2023

Catchwords: CONSUMER LAW – alleged contraventions of the National Consumer Credit Protection Act 2009 (Cth) and National Credit Code – where respondent held an Australian Credit Licence under the Act and carried on a business providing small amount credit contracts (SACCs) – whether respondents entered into SACCs that imposed impermissible fees and charges – whether activities in relation to SACCs engaged in efficiently, honestly and fairly as required by s 47(1)(a) – contraventions made out – hearing as to liability only – declarations made PRACTICE AND PROCEDURE – Application for non-publication orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) – financial and other personal information of consumers – whether order necessary to prevent prejudice to the proper administration of justice – consideration of duration for which order should operate

Legislation: Constitution ss 51(xxxvii), 122 Consumer Credit Legislation Amendment (Enhancements) Act 2012 (Cth) Corporations Act 2001 (Cth) ss 500(2), 912A Federal Court of Australia Act 1976 (Cth) ss 37AI, 37AF, 37AG, 37AJ, 50 National Consumer Credit Protection Act 2009 (Cth) ss 3, 5, 29, 47, 49, 55, 166, 267, Sch 1 (National Credit Code) ss 17, 23A, 24, 31A, 82

Cases cited: Ali v Insurance Australia Limited [2022] NSWCA 174 Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 Australian Securities & Investments Commission v AMP Financial Planning Pty Ltd (No 2) [2020] FCA 69; 377 ALR 55 Australian Securities and Investments Commission v Camelot Derivatives Pty Ltd (in liq) [2012] FCA 414; 88 ACSR 206 Australian Securities and Investments Commission v Commonwealth Bank of Australia [2022] FCA 1422 Australian Securities and Investments Commission v Membo Finance Pty Ltd (No 2) [2023] FCA 126 Australian Securities and Investments Commission v National Australia Bank Ltd [2022] FCA 1324 Australian Securities and Investments Commission v Westpac Banking Corp (No 2) [2018] FCA 751; 266 FCR 147 Australian Securities and Investments Commission v Westpac Banking Corporation (Omnibus) [2022] FCA 515 Bayles by his litigation representative Bayles v Nationwide News Pty Limited (No 3) [2020] FCA 1397 Cline Capital v UGL Pty Limited (No 2) [2020] FCA 257 Giddings v Australian Information Commissioner [2017] FCAFC 225 Global Specialty SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296; 104 NSWLR 634 Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 Legal Services Board v Gillespie-Jones [2013] HCA 35; 249 CLR 493 Nationwide News Pty Ltd v JS and SD [2022] NSWSC 774 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 Oreb v Australian Securities and Investments Commission [2016] FCA 321; 154 ALD 124 Porter v Dyer [2022] FCAFC 116; 402 ALR 659 R J Elrington Nominees Pty Ltd v Corporate Affairs Commission (SA) (1989) 1 ACSR 93 Re Hres and Australian Securities and Investments Commission (2008) 105 ALD 124 Story v National Companies and Securities Commission (1988) 13 NSWLR 661 Leeming M, Common Law, Equity and Statute: a Complex Entangled System (Federation Press, 2023)