58FZPOrders (other than awards of damages) to redress loss or damage—making such orders

58FZP Orders (other than awards of damages) to redress loss or damage—making such orders

Making orders

(1) The Court may, on application, make such orders (other than an award of damages) as the Court thinks appropriate against a person who:

(a) engaged in conduct (the contravening conduct) contravening a civil penalty provision of an SPF principle or a civil penalty provision of an SPF code; or

(b) is involved in the contravening conduct;

if the contravening conduct caused, or is likely to cause, a class of persons (the victims) to suffer loss or damage.

Note 1: The orders that the court may make include all or any of the orders set out in section 58FZQ.

Note 2: For the meaning of involved, see subsection 4(1).

(2) Subsection (1) applies whether or not the victims include persons (non‑parties) who are not, or have not been, parties to a proceeding (an enforcement proceeding) instituted under another provision in or referred to in this Division in relation to the contravening conduct.

(3) The Court must not make such an order unless the Court considers that the order will:

(a) redress, in whole or in part, the loss or damage suffered by the victims in relation to the contravening conduct; or

(b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the victims in relation to the contravening conduct.

Applying for orders

(4) An application for such an order may be made:

(a) by the following:

(i) if the contravening conduct contravened a civil penalty provision of an SPF principle—the SPF general regulator;

(ii) if the contravening conduct contravened a civil penalty provision of an SPF code for a regulated sector—the SPF sector regulator for the sector; and

(b) even if an enforcement proceeding in relation to the contravening conduct has not been instituted; and

(c) at any time within 6 years after the day on which the cause of action that relates to the contravening conduct accrues.

Working out whether to make an order

(5) In working out whether to make such an order against a person referred to in paragraph (1)(a) or (b), the Court may have regard to the conduct of:

(a) the person; and

(b) the victims;

in relation to the contravening conduct since the contravention occurred.

(6) However, the Court need not make a finding about either of the following matters:

(a) which persons are victims in relation to the contravening conduct;

(b) the nature of the loss or damage suffered, or likely to be suffered, by such persons.