Australian Securities and Investments Commission v National Australia Bank Limited (No 2) [2023] FCA 1118

Federal Court of Australia

Australian Securities and Investments Commission v National Australia Bank Limited (No 2) [2023] FCA 1118 File number: QUD 54 of 2021

Judgment of: DERRINGTON J

Date of judgment: 22 September 2023

Catchwords: BANKING AND FINANCIAL INSTITUTIONS – civil penalties – contravention of financial services laws – unconscionable conduct in contravention of Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) s 12CB(1) – whether the regulator has alleged one contravention or multiple – whether potential prejudice arising from a belated change in the number of contraventions alleged – principles concerning the articulation of the regulator's case for the imposition of civil penalties considered BANKING AND FINANCIAL INSTITUTIONS – pecuniary penalties – appropriate penalty to be imposed pursuant to ASIC Act s 12GBA – whether the unconscionable conduct was "deliberate" – whether the contravenor has previously been found to have engaged in any "similar conduct" – relevant considerations and principles explained – where the maximum available penalty is inadequate given the nature and extent of the contravening conduct, the circumstances in which it took place, and the need for specific and general deterrence – maximum penalty imposed PRACTICE AND PROCEDURE – concise statement – whether principles concerning the articulation of the regulator's case for the imposition of civil penalties apply differently where a concise statement is used in place of conventional pleadings – role of concise statement in civil penalty proceedings considered

Legislation: Australian Securities and Investments Commission Act 2001 (Cth) Competition and Consumer Act 2010 (Cth) Corporations Act 2001 (Cth)