Australian Securities and Investments Commission v Dover Financial Advisers Pty Ltd (No 3) [2021] FCA 170

Australian Securities and Investments Commission v Dover Financial Advisers Pty Ltd (No 3) [2021] FCA 170

The Court held that Dover's contraventions were serious and had real potential to mislead consumers about their legal rights, but the 19,402 contraventions were best characterised as a single course of conduct arising from the decision to use the Client Protection Policy. The statutory maximum was therefore of...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
05 March 2021
Procedural Posture
Civil Penalty Proceeding for Contraventions of S 12 Db(1)(i) of the Australian Securities and Investments Commission Act 2001 (cth) / Penalty Hearing After Liability Judgment and Declaratory Relief Judgment
Outcome
Pecuniary penalties imposed on both defendants and costs ordered against the defendants.
Legal Topics
['pecuniary Penalty' 'misleading Representations Concerning Legal Rights' 'australian Financial Services Licensee' 'accessorial Liability by Knowing Concern' 'course of Conduct Principle' 'totality Principle' 'general Deterrence' 'specific Deterrence']
['consumer Law' 'corporations and Financial Services Regulation' 'civil Penalties'] ['pecuniary Penalty' 'misleading Representations Concerning Legal Rights' 'australian Financial Services Licensee' 'accessorial Liability by Knowing Concern' 'course of Conduct Principle' 'totality Principle' 'general Deterrence' 'specific Deterrence']

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Procedural Posture

Civil Penalty Proceeding for Contraventions of S 12 Db(1)(i) of the Australian Securities and Investments Commission Act 2001 (cth) / Penalty Hearing After Liability Judgment and Declaratory Relief Judgment

Legal Issues

  1. 1 ['What pecuniary penalties should be imposed on Dover for 19,402 contraventions of s 12DB(1)(i) of the ASIC Act.' "What pecuniary penalty should be imposed on Mr McMaster for being knowingly concerned in Dover's contraventions." 'Whether the contraventions should be treated as a single course of conduct for penalty assessment.' 'What weight should be given to the statutory maximum, absence of proven loss, cooperation, enforceable undertaking, reputational and health effects, and lack of contrition.']

Ratio Decidendi

The Court held that Dover's contraventions were serious and had real potential to mislead consumers about their legal rights, but the 19,402 contraventions were best characterised as a single course of conduct arising from the decision to use the Client Protection Policy. The statutory maximum was therefore of limited practical assistance. Taking into account the absence of likely consumer loss, no proven financial gain, no prior similar conduct, the defendants' cooperation, inadequate compliance processes, senior management responsibility, the lack of deliberateness, limited relevance of extra-curial detriment, and the importance of general deterrence, the appropriate aggregate penalties...

Court Disposition

Pecuniary penalties imposed on both defendants and costs ordered against the defendants.

Orders

  • ['The first defendant pay a pecuniary penalty to the Commonwealth of $1,200,000 in respect of its contraventions of s 12DB(1)(i) of the Australian Securities and Investments Commission Act 2001 (Cth) set out in the declaration made on 20 December 2019.' "The second defendant pay a pecuniary penalty to the...