Australian Securities and Investments Commission v SunshineLoans Pty Ltd

In the case of Australian Securities and Investments Commission v SunshineLoans Pty Ltd, the Australian Securities and Investments Commission (ASIC) initiated proceedings against SunshineLoans Pty Ltd for alleged contraventions of the National Credit Code. The dispute centred on whether certain sections of the National Credit Code constituted civil penalty provisions and ASIC's standing to apply for enforcement orders under the National Consumer Credit Protection Act 2009. The matter was heard in the Federal Court, where the court was required to determine two primary issues: whether the requirement in Federal Court Rules 2011 (Cth) r 30.01(2) could be dispensed with to allow certain questions to be heard separately by the Full Court, and whether s 24(1A) of the National Credit Code was a civil penalty provision, thereby granting ASIC the authority to seek enforcement orders.

The court found that the application to dispense with the requirement in Federal Court Rules 2011 (Cth) r 30.01(2) was inappropriate, given the advanced stage of trial preparations. The court held that a trial would be necessary regardless of the determination of the separate questions, making it impractical to hear the questions separately. Furthermore, the court concluded that s 24(1A) of the National Credit Code was indeed a civil penalty provision, thereby granting ASIC the standing to apply for enforcement orders under the Act. The court also dismissed the application to have certain orders vacated and directed the parties to engage in further procedural steps, including the notification of objections to evidence and the preparation of a joint or separate list of issues in dispute.

The court's orders included the dismissal of the application filed by SunshineLoans Pty Ltd on 18 May 2023 and the vacating of certain prior orders. The court also mandated that SunshineLoans notify ASIC of any objections to the affidavit material by 8 June 2023 and required the parties to confer and file a Schedule of Objections by 15 June 2023. Additionally, the court set a date for the hearing of any objections and directed SunshineLoans to respond to the list of issues in dispute and provide any further issues by specified dates. The final orders also addressed the entry of orders in accordance with Rule 39.32 of the Federal Court Rules 2011.