Australian Securities and Investments Commission v MLC Nominees Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judge: YATES J
• Judgment Date: 11 September 2020
• Neutral Citation: [2020] FCA 1306
• Date: 11 September 2020

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v MLC Nominees Pty Ltd [2020] FCA 1306

File number:	NSD 1654 of 2018
Judge:	YATES J
Date of judgment:	11 September 2020
Catchwords:	CORPORATIONS – admitted contraventions of the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act) related to the charging and deductions of fees and representations about the right to charge fees from members of superannuation funds – imposition of penalties pursuant to s 12GBA of the ASIC Act – where quantum of penalties is contested
Legislation:	Australian Securities and Investments Commission Act 2001 (Cth) ss 12BA(1), 12BAB, 12BAA(7)(f), 12DA, 12DB(1)(g), 12DB(1)(i), 12GBA Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) Corporations Act 2001 (Cth) ss 761E, 912A(1)(a), 912A(1)(c), 1012B(3), 1013C, 1022A, 1022B(2), 1041H(1), 1041H(2) Corporations Regulations 2001 (Cth) regs 7.9.11N, 7.9.11O Crimes Act 1914 (Cth) s 4AA Evidence Act 1995 (Cth) s 191 Federal Court of Australia Act 1976 (Cth) s 21 Superannuation Industry (Supervision) Act 1993 (Cth) ss 10, 52(2) Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019 (Cth)
Cases cited:	Attorney-General v Tichy (1982) 30 SASR 84 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; 327 ALR 540 Australian Competition and Consumer Commission v Pental Limited [2018] FCA 491 Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 634; 317 ALR 73 Australian Securities and Investments Commission v Westpac Banking Corporation [2018] FCA 751; 266 FCR 147 Australian Competition and Consumer Commission v Optus Mobile Pty Limited [2019] FCA 106 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 Australian Competition and Consumer Commission v BAJV Pty Ltd [2014] FCAFC 52 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157 Australian Securities and Investments Commission v Camelot Derivatives Pty Limited (in Liquidation); In the matter of Camelot Derivatives Pty Limited (in Liquidation) [2012] FCA 414; 88 ACSR 206 Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd [2018] FCA 155 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; 262 ALR 417 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1 Director of Consumer Affairs, Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118 Finch v Telstra Super Pty Ltd [2010] HCA 36; 242 CLR 254 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Markarian v The Queen [2005] HCA 25; 228 CLR 357 McDonald v Australian Building and Construction Commissioner [2011] FCAFC 29; 202 IR 467 Mill v The Queen (1988) 166 CLR 59 Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; 168 FCR 383 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Royer v Western Australia [2009] WASCA 139; 197 A Crim R 319 Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 Setka v Gregor (No 2) [2011] FCAFC 90; 195 FCR 203 SingTel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2; 127 FCR 170 Trade Practices Commission v CSR Ltd [1991] ATPR 41-076
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	315
Date of hearing:	16 March 2020 and 19 June 2020
Counsel for the Plaintiff:	Mr T Faulkner SC, Ms J Shepard and Ms A Garsia
Solicitor for the Plaintiff:	Australian Securities and Investments Commission
Counsel for the Defendants:	Mr D Thomas SC, Ms M Ellicott and Mr M Forgacs
Solicitor for the Defendants:	Herbert Smith Freehills

Table of Corrections
9 October 2020	In the third sentence of paragraph 276, “service plan” has been replaced with “plan service”.
9 October 2020	In the third sentence of paragraph 278, “advising” has been replaced with “advised”.
9 October 2020	In the first sentence of paragraph 235, “that” has been inserted before “they”.
9 October 2020	In the fourth sentence of paragraph 309, “Declarations 39” has been replaced with Declaration 39”.
9 October 2020	In the list of cases cited on the cover page, the words “at [39]-[41]; ABCC v CFMEU” have been deleted.

ORDERS

		NSD 1654 of 2018
BETWEEN:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Plaintiff
AND:	MLC NOMINEES PTY LTD (ACN 002 814 959) First Defendant ; NULIS NOMINEES (AUSTRALIA) LIMITED (ACN 008 515 633) Second Defendant

JUDGE:	YATES J
DATE OF ORDER:	11 SEPTEMBER 2020

THE COURT:

First Defendant (MLC Nominees Pty Ltd): no-adviser members

1. Declares that during the period 8 September 2012 to 30 June 2016, while MLC Nominees Pty Ltd (MLC Nominees) was trustee of The Universal Super Scheme, MLC Nominees failed to do all things necessary to ensure that the financial services covered by its Australian Financial Services Licence Number 230702 were provided efficiently, honestly and fairly, and thereby contravened s 912A(1)(a) of the Corporations Act 2001 (Cth) (the Corporations Act), in that:

(a) during that period, the administrator retained by MLC Nominees to administer The Universal Super Scheme on behalf of MLC Nominees, being MLC Limited, made monthly deductions from the account balances of approximately 220,000 members’ accounts in the MasterKey...