Australian Securities and Investments Commission v Select AFSL Pty Ltd (No 3) [2023] FCA 723

Australian Securities and Investments Commission v Select AFSL Pty Ltd (No 3) [2023] FCA 723

Considering the nature, extent, and seriousness of the contraventions, the competitive sales environment, failures in compliance, vulnerability of consumers affected, and the need for specific and general deterrence, substantial pecuniary penalties, disqualification, declarations, and compliance regime orders are...

Source-derived case information.

Parties
Plaintiff: Australian Securities and Investments Commission; First Defendant: Select AFSL Pty Ltd; Second Defendant: BlueInc Services Pty Ltd; Third Defendant: Insurance Marketing Services Pty Ltd; Fourth Defendant: Russell Howden
Jurisdiction
Australia
Judgment Date
04 July 2023
Procedural Posture
Civil Penalty Proceeding / Final Orders and Relief Hearing
Outcome
Applicant succeeded; pecuniary penalties, declarations, disqualification and compliance orders made.
Legal Topics
Conflicted Remuneration, Directors' Duties, Unconscionable Conduct, False or Misleading Representations, Financial Services Compliance, Civil Penalties, Corporate Governance, General Deterrence
Corporations Law Consumer Law Conflicted Remuneration Directors' Duties Unconscionable Conduct False or Misleading Representations Financial Services Compliance Civil Penalties +2 more

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Summary, issues, holding and outcome

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Parties

Australian Securities and Investments Commission

Plaintiff

Select AFSL Pty Ltd

First Defendant

BlueInc Services Pty Ltd

Second Defendant

Insurance Marketing Services Pty Ltd

Third Defendant

Russell Howden

Fourth Defendant

Procedural Posture

Civil Penalty Proceeding / Final Orders and Relief Hearing

Legal Issues

  1. 1 Appropriate penalties for conflicted remuneration under Corporations Act 2001 (Cth)
  2. 2 Appropriate penalties and remedies for consumer law contraventions under ASIC Act 2001 (Cth)
  3. 3 Whether and for how long Russell Howden should be disqualified from managing corporations

Ratio Decidendi

Considering the nature, extent, and seriousness of the contraventions, the competitive sales environment, failures in compliance, vulnerability of consumers affected, and the need for specific and general deterrence, substantial pecuniary penalties, disqualification, declarations, and compliance regime orders are warranted under the relevant provisions of the Corporations Act and ASIC Act. The penalties and orders are apportioned according to the degree of involvement, legal responsibility, and overlap between defendants, but the inability to pay does not justify reduction given the public interest in deterrence.

Court Disposition

Applicant succeeded; pecuniary penalties, declarations, disqualification and compliance orders made.

Orders

  • Declarations of contraventions as specified in paragraphs 1-34 and 271 above.
  • Select AFSL Pty Ltd ordered to pay $1,200,000 for conflicted remuneration and $6,500,000 for consumer contraventions.