Australian Securities and Investments Commission v GetSwift Limited (Penalty Hearing)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 16 February 2023
• Neutral Citation: [2023] FCA 100
• Date: 16 February 2023

Federal Court of Australia

Australian Securities and Investments Commission v GetSwift Limited (Penalty Hearing) [2023] FCA 100

File number:	VID 146 of 2019
Judgment of:	LEE J
Date of judgment:	16 February 2023
Catchwords:	CORPORATIONS – the GetSwift saga – spectacular fall of market darling ‘tech start-up’ – liability judgment 2,618 paragraphs long – declarations of scores of contraventions of ss 180 and 674 of Corporations Act 2001 (Cth) by company and three directors – company re-domiciled to Canada during currency of regulatory proceeding – company placed into voluntary liquidation despite undertakings given to Court – no appearance by company, ringleader and second in command CORPORATIONS – Australian Securities and Investments Commission (ASIC) seeking imposition of pecuniary penalties on company and three directors in respect of contraventions of civil penalty provisions – ASIC seeking disqualification orders against three directors – survey of principles of penalty and disqualification – contraventions serious and materially prejudicial to the market – contrition non-existent for two contraveners – general and specific deterrence warrant disqualification and penalty orders
Legislation:	Australian Securities and Investments Commission Act 2001 (Cth) s 12DA Corporations Act 2001 (Cth) ss 180(1), 206C(1), 206E(1),674, 674(2A), 600K, 1041H, 1317E, 1317DA, 1317G(1A), 1317G(1B), 1317G(1), 1657, Sch 2 (Insolvency Practice Schedule (Corporations)) ss 90-10, 90-15, 90-20 Fair Work Act 2009 (Cth) s 546 Federal Court of Australia Act 1976 (Cth) s 37P Federal Court Rules 2011 (Cth) r 10.24 Corporate Law Reform Bill 1992 (Cth)
Cases cited:	Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1 Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 96 ALJR 426 Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd [2019] FCA 786; (2019) 370 ALR 637 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 Australian Competition and Consumer Commission v Samsung Electronics Australia Pty Ltd [2022] FCA 875 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 Australian Competition and Consumer Commission v Yazaki [2018] FCAFC 73; (2018) 262 FCR 243 Australian Institute of Professional Education Pty Ltd (in liq) [2017] FCA 521 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 Australian Securities and Investments Commission v Adler [2002] NSWSC 483; (2002) 42 ACSR 80 Australian Securities and Investments Commission v Beekink [2007] FCAFC 7; (2007) 238 ALR 595 Australian Securities and Investments Commission v Blue Star Helium Ltd (No 4) [2021] FCA 1578; (2021) 158 ACSR 196 Australian Securities and Investments Commission v Citrofresh International Limited (No 3) [2010] FCA 292; (2010) 268 ALR 303 Australian Securities and Investments Commission v Flugge (No 2) [2017] VSC 117; (2017) 342 ALR 478 Australian Securities and Investments Commission v GetSwift Limited (Liability Hearing) [2021] FCA 1384 Australian Securities and Investments Commission v Healey (No 2) [2011] FCA 1003; (2011) 196 FCR 430 Australian Securities and Investments Commission v Lindberg [2012] VSC 332; (2012) 91 ACSR 640 Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714; (2009) 259 ALR 116 Australian Securities and Investments Commission v MobiSuper Pty Limited [2022] FCA 990 Australian Securities and Investments Commission v Newcrest Mining Ltd [2014] FCA 698; (2014) 101 ACSR 46 Australian Securities and Investments Commission v Rio Tinto Limited (No 2) [2022] FCA 184 Australian Securities and Investments Commission v Sino Australia Oil and Gas Ltd (in liq) [2016] FCA 1488; (2016) 118 ACSR 43 Australian Securities and Investments Commission v Squirrel Superannuation Services Pty Ltd [2022] FCA 702 Australian Securities and Investments Commission v Westpac [2019] FCA 2147 Australian Securities Commission v Donovan (1998) 28 ACSR 583 Cruickshank v Australian Securities and Investments Commission [2022] FCAFC 128; (2022) 403 ALR 67 Djordjevich v Rohrt [2021] VSC 178 Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296 Hall v Poolman [2009] NSWCA 64; (2009) 75 NSWLR 99 LM Investment Mgmt Ltd v Drake [2017] QSC 34 Murrihy v Betezy.com.au Pty Ltd (No 2) [2013] FCA 1146; (2013) 221 FCR 118 Registrar of Aboriginal and Torres Strait Islander Corporations v Murray [2015] FCA 346 Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 Trade Practices Commission v CSR Limited (1991) ATPR 452,135 viagogo AG v Australian Competition and Consumer Commission [2022] FCAFC 87
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub‑area:	Regulator and Consumer Protection
Number of paragraphs:	162
Date of hearing:	30–31 January 2023
Counsel for the Plaintiff:	Mr P Solomon KC, Ms N Moncrief and Ms G Westgarth
Solicitor for the Plaintiff:	Johnson Winter & Slattery
Counsel for the First Defendant:	The First Defendant did not appear
Counsel for the Second Defendant:	The Second Defendant did not appear
Counsel for the Third Defendant:	The Third Defendant did not appear
Counsel for the Fourth Defendant:	Ms B Ng
Solicitor for the Fourth Defendant:	Baker McKenzie

ORDERS

		VID 146 of 2019
BETWEEN:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Plaintiff
AND:	GETSWIFT LIMITED (ACN 604 611 556) First Defendant ; BANE HUNTER Second Defendant ; JOEL RICHARD STUART MACDONALD Third Defendant ; BRETT EAGLE Fourth Defendant

order made by:	LEE J
DATE OF ORDER:	16 FEBRUARY 2023

THE COURT ORDERS THAT:

GetSwift Limited (in liq)

1. Leave be granted nunc pro tunc pursuant to s 500(2) of the Corporations Act 2001 (Cth) (Corporations Act) to continue this proceeding against GetSwift Limited (in liq).

2. GetSwift Limited (in liq) pay to the Commonwealth of Australia, within 30 days of the date of these Orders, a pecuniary penalty of $15,000,000, pursuant to s 1317G(1A) of the Corporations Act, in respect of the contraventions of s 674(2) of the Corporations Act identified in Orders 1–22 of the Orders dated 26 November 2021.

Mr Hunter

3. Bane Hunter pay to the Commonwealth of Australia, within 30 days of the date of these Orders, a pecuniary penalty of $2,000,000, pursuant to s 1317G(1) and s 1317G(1A) of the Corporations Act in respect of his contraventions of s 180(1) and s 674(2A) of the...