Australian Securities and Investments Commission v Firstmac Limited (Penalty Hearing) [2025] FCA 12

Federal Court of Australia Australian Securities and Investments Commission v Firstmac Limited (Penalty Hearing) [2025] FCA 12 File number(s): QUD 467 of 2022

Judgment of: DOWNES J

Date of judgment: 24 January 2025

Catchwords: CORPORATIONS – established contraventions of s 994E(3) of the Corporations Act 2001 (Cth) concerning design and distribution obligations relating to financial products for retail clients – dispute as to quantum of penalty – whether defendant was objectively reckless and 'courted the risk' of engaging in unlawful conduct – where defendant has made changes to its systems and processes

Legislation: Australian Securities and Investments Commission Act 2001 (Cth) s 33 Corporations Act 2001 (Cth) ss 760A, 912A, 912C, 994B, 994C, 994E, 1317G

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113 Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450; [2022] HCA 13 Australian Communications and Media Authority v Clarity1 Pty Ltd (No 2) (2006) 155 FCR 377; [2006] FCA 1399 Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169; [2002] FCA 559 Australian Competition and Consumer Commission v ACM Group Ltd (No 3) [2018] FCA 2059 Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2017) 258 FCR 312; [2017] FCAFC 159 Australian Competition and Consumer Commission v HJ Heinz Company Australia Limited (No 2) [2018] FCA 1286 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181 Australian Competition and Consumer Commission v SmileDirectClub LLC [2022] FCA 1343 Cases cited: Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243; [2018] FCAFC 73 Australian Securities and Investments Commission v American Express Australia Limited [2024] FCA 784 Australian Securities and Investments Commission v Bit Trade Pty Ltd (No 2) [2024] FCA 1422 Australian Securities and Investments Commission v Firstmac Limited [2024] FCA 737 Australian Securities and Investments Commission v Westpac Securities Administration Ltd (2021) 156 ACSR 614; [2021] FCA 1008 Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1; [2010] FCAFC 39 Couch v Attorney-General (No 2) (on appeal from Hobson v Attorney-General) [2010] 3 NZLR 149; [2010] NZSC 27 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249; [2012] FCAFC 20 Trade Practices Commission v CSR Ltd [1991] ATPR 41‑076 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 284 FCR 24; [2021] FCAFC 49