Australian Securities and Investments Commission v American Express Australia Limited [2024] FCA 784

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v American Express Australia Limited [2024] FCA 784 File number: NSD 1038 of 2022

Judgment of: JACKMAN J

Date of judgment: 19 July 2024

Catchwords: CORPORATIONS – design and distribution obligations in Part 7.8A of the Corporations Act 2001 (Cth) – joint submissions on liability – where defendant admits two conventions of ss 994C(4) and 994C(5) of the Act – where contraventions relate to two credit cards distributed to customers in David Jones stores – whether knowledge requirement in chapeau applies to each sub-paragraph – whether subsequent reference to "first knew" in chaussette should be construed in context as meaning "first knew or ought reasonably to have known" PRACTICE AND PROCEDURE – duties of counsel to the Court – where joint submissions failed to provide reasons why the parties' proposed construction of the Act may be wrong – where the parties' proposed construction was untenable CORPORATIONS – agreed penalty

Legislation: Corporations Act 2001 (Cth) ss 994C, 1317G

Cases cited: Australian Building and Construction Commission v Pattinson [2022] HCA 13; (2022) 274 CLR 450 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1997] FCA 450; (1997) 145 ALR 36 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; (2015) 327 ALR 540 Australian Competition and Consumer Commission v Equifax Australia Information Services and Solutions Pty Ltd [2018] FCA 1637 Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (in liq) (No 3) [2017] FCA 1018 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 Australian Securities and Investments Commission v Commonwealth Bank of Australia [2020] FCA 790 Australian Securities and Investments Commission v Westpac Banking Corporation [2019] FCA 2147 Beckwith v The Queen (1976) 135 CLR 569 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 248 CLR 619 HFM043 v Republic of Nauru [2018] HCA 37; (2018) 359 ALR 176 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; (2004) ATPR 41–993 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 Qantas Airways Limited v Transport Workers Union of Australia [2023] HCA 27; (2023) 412 ALR 134 R v A2 [2019] HCA 35; (2019) 269 CLR 507 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 Volkswagon Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49; (2021) 284 FCR 24 Herzfeld, Perry and Thomas Prince, Interpretation (2nd ed, 2020)