Australian Securities and Investments Commission v Acbf Funeral Plans Pty Ltd

The appeal concerns a proceeding brought by the Australian Securities and Investments Commission (ASIC) against Acbf Funeral Plans Pty Ltd (ACBF) and Youpla Group, alleging misleading and deceptive conduct in the marketing and sale of funeral insurance plans to Indigenous communities. The central issue revolves around representations made by ACBF that it was owned or managed by an Aboriginal person or persons during the relevant period. ASIC sought to establish the falsity of this representation and argued that ACBF's conduct contravened consumer protection laws under the ASIC Act.

The primary judge found that ASIC had not established the falsity of the Aboriginal Ownership/Management Representation, which led to the dismissal of ASIC's claims. ASIC appealed this decision, arguing that ACBF had admitted to the falsity of the representation in its Amended Defence, and thus it was unnecessary for ASIC to provide additional evidence. Furthermore, ASIC contended that the evidence presented at trial was sufficient to establish the falsity of the representation. The Full Court of the Federal Court agreed with ASIC on both counts.

In its reasoning, the Full Court noted that ACBF had indeed admitted the falsity of the representation in its Amended Defence, making it unnecessary for ASIC to provide further evidence. The Court also found that the evidence before the primary judge was sufficient to establish the falsity of the representation. The Court concluded that the primary judge had erred in finding otherwise and allowed the appeal. The matter was remitted to the primary judge for re-determination of the appropriate penalty to be imposed on ACBF.

The final orders of the Court included allowing the appeal, setting aside the relevant part of the primary judge's orders, and remitting the matter for re-determination of the penalty. The Court also decided not to order costs in the appeal, except for the costs of the contradictor, and directed that ASIC not enforce any existing cost orders without further leave of the Court.