Australian Securities and Investments Commission v Mercer Financial Advice (Australia) Pty Ltd [2023] FCA 1453

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Mercer Financial Advice (Australia) Pty Ltd [2023] FCA 1453 File number(s): VID 366 of 2022

Judgment of: MCEVOY J

Date of judgment: 23 November 2023

Catchwords: CORPORATIONS – where defendant holds an Australian financial services licence – defendant contravened ss 962P, 962S(1), 912A(1)(a) and (c) of the Corporations Act 2001 (Cth) and ss 12DB(1)(a), (e) and (i) of the Australian Securities and Investments Commission Act 2001 (Cth) – defendant charged ongoing fees to certain clients after the deemed termination of their arrangement, failed to give certain clients a "fee disclosure statement" and made certain false and misleading representations – where defendant admitted contravening the relevant legislative provisions and parties jointly proposed declarations of contravention – where plaintiff sought imposition of single pecuniary penalty of $20 million and defendant proposed single penalty of $8.5 million – consideration of whether the proposed declarations appropriate – consideration of appropriate penalty in the circumstances – penalty of $12 million found to be appropriate – consideration of adverse publicity order – adverse publicity order made in form of a press release

Legislation: Australian Securities and Investments Commission Act 2001 (Cth) ss 12BAB(1), 12DB(1), 12GBA, 12GBB, 12GBCA, 12GLB Corporations Act 2001 (Cth) ss 761A, 766B(3), 962A(1), 962C(1), 962F, 962G, 962H, 962P, 962S(1), 912A(1), 1101B, 1317E, 1317G, Pt 7.7A Corporations Amendment (Future of Financial Advice) Act 2012 (Cth) Crimes Act 1914 (Cth) s 4AA Evidence Act 1995 (Cth) ss 191 Federal Court of Australia Act 1976 (Cth) s 21 Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019 (Cth)