Australian Securities and Investments Commission v LGSS Pty Ltd [2024] FCA 587

Federal Court of Australia

Australian Securities and Investments Commission v LGSS Pty Ltd [2024] FCA 587 File number(s): NSD 847 of 2023

Judgment of: O'CALLAGHAN J

Date of judgment: 5 June 2024

Catchwords: BANKING AND FINANCIAL INSTITUTIONS – application by Australian Securities and Investments Commission (ASIC) alleging that defendant contravened ss 12DB(1)(a) and 12DF(1) of the Australian Securities and Investments Commission Act 2001 (Cth) by making false or misleading representations, and engaging in conduct liable to mislead the public in relation to investments made by the superannuation fund in the nature of what is colloquially called "greenwashing" – where defendant trustee of superannuation fund – whether various representations that defendant would not make or hold investments in gambling, tobacco, oil tar sands, coal mining or in Russia were conveyed by the statements on which ASIC relied – whether the representations were made "in trade or commerce" – whether defendant engaged in conduct contrary to the representations – whether ordinary and reasonable member would have read representations as being subject to the fund's sustainable investment policy on its website – whether ordinary and reasonable member would understand the fund's "overlay" process – whether ordinary and reasonable member would draw a distinction between directly holding shares in a company and indirect exposures through a pooled fund – whether the representations were as to future matters and whether defendant had a reasonable basis for making them – meaning of "gambling" considered – whether lotteries a form of gambling PRACTICE AND PROCEDURE – undesirability of use of concise statements in cases of complexity, or where multiple representations are said to have been conveyed by or in myriad places – concise statements not intended to be a substitute for conventional pleadings