Australian Securities and Investments Commission v Accounts Control Management Services Pty Ltd (No 2) [2012] FCA 1317

Australian Securities and Investments Commission v Accounts Control Management Services Pty Ltd (No 2) [2012] FCA 1317

The Court declined ASIC's proposed mandatory orders because their operation was not sufficiently certain to make enforcement meaningful, and there was force in ACM's submission that such relief could not be granted without amendment to the originating process. The Court also omitted the word 'permanently' from the injunctions because both parties accepted the injunctions were permanent in effect and the word did no work.

Jurisdiction
Australia
Judgment Date
23 November 2012
Procedural Posture
Practice and Procedure Concerning the Form of Final Declarations and Injunctions / Form of Orders Following Primary Judgment
Outcome
Declarations and injunctions were made in the form proposed by ACM; ASIC's proposed mandatory orders and the inclusion of the word 'permanently' were declined.
Legal Topics
['form of Orders' 'injunctive Relief' 'misleading and Deceptive Conduct' 'undue Harassment and Coercion' 'debt Collection Conduct']
['practice and Procedure' 'consumer Protection' 'corporations and Financial Services Regulation'] ['form of Orders' 'injunctive Relief' 'misleading and Deceptive Conduct' 'undue Harassment and Coercion' 'debt Collection Conduct']

Case Brief

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Procedural Posture

Practice and Procedure Concerning the Form of Final Declarations and Injunctions / Form of Orders Following Primary Judgment

Legal Issues

  1. 1 ["Whether the injunctions should include the word 'permanently'." "Whether the Court should make ASIC's proposed mandatory orders requiring training manuals, regular training sessions and monitoring of communications." "Whether ASIC's proposed mandatory orders were too uncertain to be enforceable and whether they could be made without amendment to the originating process."]

Ratio Decidendi

The Court declined ASIC's proposed mandatory orders because their operation was not sufficiently certain to make enforcement meaningful, and there was force in ACM's submission that such relief could not be granted without amendment to the originating process. The Court also omitted the word 'permanently' from the injunctions because both parties accepted the injunctions were permanent in effect and the word did no work.

Court Disposition

Declarations and injunctions were made in the form proposed by ACM; ASIC's proposed mandatory orders and the inclusion of the word 'permanently' were declined.

Orders

  • ["Between 24 November 2008 and 21 June 2010, the Defendants engaged in misleading and deceptive conduct in contravention of section 12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth), by representing to eight debtors who it pursued for payment of credit card and personal loan debts it had...