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

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

Taking into account the extensive number of contraventions (831), but that they arose from two courses of conduct and actual loss was negligible, that Firstmac’s conduct was objectively reckless, that general and specific deterrence require a substantial but not oppressive penalty, and comparing with similar cases...

Source-derived case information.

Parties
Plaintiff: Australian Securities and Investments Commission; Defendant: Firstmac Limited
Jurisdiction
Australia
Judgment Date
24 January 2025
Procedural Posture
Civil Penalty Proceeding / Penalty Hearing
Outcome
Penalty of $8 million imposed; defendant to pay costs
Legal Topics
Civil Penalties, Design and Distribution Obligations, Financial Products Regulation, General and Specific Deterrence
Corporations Law Commercial Law Banking and Finance Law Civil Penalties Design and Distribution Obligations Financial Products Regulation General and Specific Deterrence

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Parties

Australian Securities and Investments Commission

Plaintiff

Firstmac Limited

Defendant

Procedural Posture

Civil Penalty Proceeding / Penalty Hearing

Legal Issues

  1. 1 What is the appropriate quantum of penalty for Firstmac Limited's contraventions of s 994E(3) of the Corporations Act 2001 (Cth)?
  2. 2 Whether Firstmac 'courted the risk' of contravening the design and distribution obligations (DDO).

Ratio Decidendi

Taking into account the extensive number of contraventions (831), but that they arose from two courses of conduct and actual loss was negligible, that Firstmac’s conduct was objectively reckless, that general and specific deterrence require a substantial but not oppressive penalty, and comparing with similar cases (notably ASIC v American Express Australia Limited [2024] FCA 784), an $8 million penalty is appropriate, together with an order for ASIC’s costs.

Court Disposition

Penalty of $8 million imposed; defendant to pay costs

Orders

  • Within 60 days, Firstmac Limited to pay to the Commonwealth of Australia a pecuniary penalty of $8,000,000 in respect of contraventions of s 994E(3) of the Corporations Act 2001 (Cth).
  • Firstmac Limited to pay the plaintiff’s (ASIC’s) costs of the proceeding as agreed or to be taxed.