(c) compensate the plaintiff, in whole or in part, for the loss or damage; or
(d) prevent or reduce the loss or damage suffered, or likely to be suffered, by the plaintiff.
Note: An order may be made under this subsection whether or not a declaration of contravention has been made under section 166.
(2) Without limiting subsection (1), examples of orders the court may make include:
(a) an order declaring the whole or any part of a contract, deed or arrangement made between the defendant and the plaintiff to be void and, if the court considers it appropriate, to have been void from the time it was entered or at all times on and after a specified day before the order is made; and
(b) an order varying such a contract, deed or arrangement in such manner as is specified in the order and, if the court considers it appropriate, declaring the contract, deed or arrangement to have had effect as so varied on and after a specified day before the order is made; and
(c) an order refusing to enforce any or all of the terms of such a contract, deed or arrangement; and
(d) an order directing the defendant to refund money or return property to the plaintiff; and
(e) an order directing the defendant to pay to the plaintiff the amount of loss or damage the plaintiff suffered; and
(f) an order directing the defendant, at the defendant’s own expense, to supply specified services to the plaintiff.
When order may be made
(3) The court may make the order only if:
(a) the plaintiff or ASIC (on behalf of the plaintiff) applies for an order under this section; and
(b) the application is made within 6 years of the day the cause of action that relates to the contravention or commission of the offence accrued.
Applications for order
(4) For the purposes of paragraph (3)(a), ASIC may make an application on behalf of the plaintiff, but only if the plaintiff has given consent in writing before the application is made.
Recovery of amount as a debt
(5) If the court makes an order that the defendant pay an amount specified in the order to the plaintiff, the plaintiff may recover the amount as a debt due to the plaintiff.
Presumption in favour of certain orders
(6) Subsection (7) applies if:
(a) the defendant is a credit provider who has contravened section 133 by entering into, or increasing the credit limit of, a credit contract (the illegal contract) that is not a credit contract for a reverse mortgage; and
(b) the debtor’s obligations under the illegal contract are secured by a mortgage over the debtor’s principal place of residence; and
(c) the court is satisfied that, at any time in the period in which an assessment needed to be made to comply with section 128 in relation to the illegal contract:
(i) there was a credit provider (whether the defendant or not) offering credit through a reverse mortgage (whether or not the credit provider actually made such an offer to the debtor); and
(ii) the debtor would have been eligible to enter into a credit contract for the reverse mortgage; and
(iii) the credit contract for the reverse mortgage would not have been unsuitable for the debtor under section 133; and
(d) the plaintiff, or ASIC on behalf of the plaintiff, applies for an order under this section to let the plaintiff reside in the place to prevent or reduce loss or damage suffered or likely to be suffered by the plaintiff vacating the place.
(7) The court must consider the order appropriate to prevent or reduce the loss or damage and make the order unless the court is satisfied that the order would adversely affect a person other than the debtor and the defendant.
180 Orders in relation to unlawful credit activities
Court may make orders in relation to unlawful credit activities
(1) If:
(a) a person (the defendant) engages in a credit activity in relation to another person (the plaintiff); and
(b) the engaging in the activity contravenes any of the following:
(i) section 29 (which requires the holding of a licence);
(ii) section 124A (which prohibits the provision of credit assistance in relation to short‑term credit contracts);
(iii) section 133CA (which prohibits credit providers from entering into short‑term credit contracts etc.);
the court may make such order as the court considers appropriate against the defendant:
(c) to prevent the defendant from profiting from the plaintiff by engaging in that activity; or
(d) to compensate the plaintiff, in whole or in part, for any loss or damage suffered as a result of the defendant engaging in that activity; or
(e) to prevent or reduce the loss or damage suffered, or likely to be suffered, by the plaintiff as a result of the defendant engaging in that activity.
Note: An order may be made under this subsection whether or not a declaration of contravention has been made under section 166.
(2) Without limiting subsection (1), examples of orders the court may make include:
(a) an order declaring the whole or any part of a contract, deed or arrangement made between the defendant and the plaintiff to be void and, if the court considers it appropriate, to have been void from the time it was entered or at all times on and after a specified day before the order is made; and
(b) an order varying such a contract, deed or arrangement in such manner as is specified in the order and, if the court considers it appropriate, declaring the contract, deed or arrangement to have had effect as so varied on and after a specified day before the order is made; and
(c) an order refusing to enforce any or all of the terms of such a contract, deed or arrangement; and
(d) an order directing the defendant to refund money or return property to the plaintiff; and
(e) an order directing the defendant to pay to the plaintiff the amount of loss or damage the plaintiff suffered; and
(f) an order directing the defendant, at the defendant’s own expense, to supply specified services to the plaintiff.
When order may be made
(3) The court may make the order only if:
(a) the plaintiff or ASIC (on behalf of the plaintiff) applies for an order under this section; and
(b) the application is made within 6 years of the day the cause of action that relates to the contravention or commission of the offence accrued.
Applications for order
(4) For the purposes of paragraph (3)(a), ASIC may make an application on behalf of the plaintiff, but only if the plaintiff has given consent in writing before the application is made.
Recovery of amount as a debt
(5) If the court makes an order that the defendant pay an amount specified in the order to the plaintiff, the plaintiff may recover the amount as a debt due to the plaintiff.
180A Orders to remedy unfair or dishonest conduct by credit service providers
(1) The court may make one or more of the orders described in subsection (2) if the court is satisfied that:
(a) a person (the defendant) provided a credit service to a consumer (the plaintiff); and
(b) the defendant engaged in conduct that:
(i) was connected with the provision of the service; and
(ii) was unfair or dishonest; and
(c) the conduct had one or more of the following results:
(i) the plaintiff entered a credit contract, consumer lease, mortgage or guarantee that the plaintiff would not have entered apart from the conduct;
(ii) the plaintiff entered a credit contract, consumer lease, mortgage or guarantee whose terms were different from a credit contract, consumer lease, mortgage or guarantee the plaintiff would have entered apart from the conduct;
(iii) the plaintiff became liable to pay fees, costs or charges to the defendant or someone else.
(2) The orders are as follows:
(a) an order that the defendant take, or refrain from taking, specified action;
(b) an order that the defendant pay the plaintiff a specified amount;
(c) an order that a specified amount is not due or owing by the plaintiff to the defendant;
(d) any other order the court considers appropriate to:
(i) redress the unfairness or dishonesty; or
(ii) prevent the defendant from profiting from the plaintiff by engaging in the conduct;
except an order that affects a credit contract, consumer lease, mortgage or guarantee to which the conduct related.
Determining whether conduct was unfair or dishonest
(3) In determining whether conduct was unfair or dishonest, the court:
(a) must have regard to the extent (if any) to which one or more of the circumstances described in subsection (4) existed; and
(b) must consider it more likely that the conduct was unfair or dishonest the more any of those circumstances existed and the more any of them affected the plaintiff’s interests.
This does not limit the matters to which the court may have regard.
(4) The circumstances are as follows:
(a) the plaintiff was at a special disadvantage in dealing with the defendant in relation to the transaction involving:
(i) the conduct; and
(ii) a credit contract, consumer lease, mortgage or guarantee to which the conduct related; and
(iii) any other contract requiring the plaintiff to make payments for the purposes of which it is reasonable to expect the plaintiff would or did enter such a credit contract, consumer lease, mortgage or guarantee;
(b) the plaintiff was a member of a class whose members were more likely than people who were not members of the class to be at such a disadvantage;
(c) if the plaintiff was a member of a class referred to in paragraph (b)—a reasonable person would consider that the conduct was directed at that class;
(d) the plaintiff was unable, or considered himself or herself unable, to make:
(i) a credit contract with a credit provider other than the credit provider to which the conduct related; or
(ii) a consumer lease with a lessor other than the lessor to which the conduct related; or
(iii) a mortgage with a mortgagee other than the mortgagee to which the conduct related; or
(iv) a guarantee with a beneficiary other than the beneficiary to which the conduct related;
(e) the conduct involved a technique that:
(i) should not in good conscience have been used; or
(ii) manipulated the plaintiff;
(f) the defendant could determine or significantly influence the terms of a contract covered by subparagraph (a)(ii) or (iii);
(g) the terms of the transaction described in paragraph (a) were less favourable to the plaintiff than the terms of a comparable transaction.
When order may be made
(5) The court may make the order only if:
(a) the plaintiff or ASIC (on behalf of the plaintiff) applies for an order under this section; and
(b) the application is made within 6 years of the day the defendant first started engaging in the conduct.
Applications for order
(6) For the purposes of paragraph (5)(a), ASIC may make an application on behalf of the plaintiff, but only if the plaintiff has given consent in writing before the application is made.
Recovery of amount as a debt
(7) If the court makes an order that the defendant pay an amount specified in the order to the plaintiff, the plaintiff may recover the amount as a debt due to the plaintiff.
When this section does not apply
(8) This section does not apply to the provision of credit assistance by a person who is (or after the provision of the assistance becomes):
(a) a credit provider under the credit contract to which the assistance relates; or
(b) a lessor under the consumer lease to which the assistance relates; or
(c) a mortgagee under a mortgage in relation to the credit contract to which the assistance relates; or
(d) a beneficiary of a guarantee in relation to the credit contract to which the assistance relates.
181 Preference must be given to compensate consumers
(1) This section applies if a court considers that it is appropriate to:
(a) make a pecuniary penalty order against a person in relation to a contravention of a civil penalty provision; or
(b) make a relinquishment order against a person in relation to a contravention of a civil penalty provision; or
(c) impose a fine against a person in relation to a commission of an offence constituted by the same conduct as the conduct constituting the contravention of the pecuniary penalty order.
(2) In making the pecuniary penalty order or relinquishment order or imposing the fine, the court:
(a) must consider the effect that making the order or imposing the fine would have on the amount available to pay compensation to which persons might reasonably be expected to be entitled under section 178, 179 or 180; and
(b) give preference to making an appropriate amount available for compensation under those sections.
(3) If the court gives preference to making an appropriate amount available for compensation under paragraph (2)(b), the court may also make such orders as the court thinks fit for the purpose of ensuring that the amount remains available for the payment of compensation under section 178, 179 or 180.
182 Adverse publicity orders
(1) The court may, on application by ASIC, make an adverse publicity order against a person who has:
(a) contravened a civil penalty provision; or
(b) committed an offence against this Act.
(2) An adverse publicity order is an order that:
(a) requires a person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to; or
(b) requires a person to publish, at the person’s expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order.
(3) The court may make the order only if:
(a) ASIC applies for an order under this section; and
(b) the application is made within 6 years of the contravention or the commission of the offence.
183 Relief from liability for contravention of civil penalty provision
(1) If:
(a) proceedings for a contravention of a civil penalty provision are brought against a person; and
(b) in the proceedings it appears to the court that the person has, or may have, contravened a civil penalty provision but that:
(i) the person has acted honestly; and
(ii) having regard to all the circumstances of the case, the person ought fairly to be excused for the contravention;
the court may relieve the person either wholly or partly from a liability to which the person would otherwise be subject, or that might otherwise be imposed on the person, because of the contravention.
(2) If a person considers that proceedings for a contravention of a civil penalty provision will or may be brought against the person, the person may apply to the court for relief.
(3) On an application under subsection (2), the court may grant relief under subsection (1) as if the proceedings had been begun in the court.
184 Multiple remedies may be granted
To avoid doubt, the court may make an order under a provision of this Act in addition to one or more orders under another provision of this Act or another Act.
Part 4‑3—Jurisdiction and procedure of courts
Division 1—Introduction
185 Guide to this Part
This Part is about court jurisdiction and procedure.
Division 2 deals with civil proceedings. It confers jurisdiction on the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) and State and Territory courts, subject to specified limits. It also contains rules about the transfer of civil proceedings between courts and other matters (such as when proceedings may be dealt with as small claims proceedings and when adverse cost orders can be made).
Division 3 deals with criminal proceedings. It confers criminal jurisdiction on the State and Territory courts and sets out the laws that are to be applied in relation to criminal proceedings.
Division 4 contains rules about proceedings generally (such as ASIC’s power to intervene in proceedings and the power of courts to punish for contempt).
Division 2—Civil proceedings
Subdivision A—Application of this Division
186 Application of this Division
(1) This Division applies to the exclusion of:
(a) the Jurisdiction of Courts (Cross‑vesting) Act 1987; and
(b) section 39B of the Judiciary Act 1903.
(2) This Division does not limit the application of the provisions of the Judiciary Act 1903 (other than section 39B). In particular, it does not limit the application of subsection 39(2) of that Act in relation to matters arising under this Act.
(3) Nothing in this Division affects any other jurisdiction of any court.
(4) Despite anything else in this Division, jurisdiction is conferred on the courts of a Territory only to the extent that the Constitution permits.
Subdivision B—Conferral of civil jurisdiction
187 Civil jurisdiction of courts
(1) Jurisdiction is conferred on a court referred to in an item in the following table in relation to civil matters arising under this Act, subject to the limits on the court’s jurisdiction (if any) specified in the item:
Civil jurisdiction of courts
Item Court on which civil jurisdiction is conferred Limits of jurisdiction
1 The Federal Court No specified limits.
2 The Federal Circuit and Family Court of Australia (Division 2) The court does not have jurisdiction to award an amount for loss or damage that exceeds:(a) $750,000; or(b) if another amount is prescribed by the regulations—that other amount.
3 A superior court of a State or Territory The court’s general jurisdictional limits, including limits as to locality and subject matter.
4 A lower court of a State, or of a Territory other than Norfolk Island The court’s general jurisdictional limits, including limits as to locality and subject matter.
(2) This section has effect subject to section 188.
188 Jurisdiction—decisions to prosecute and related criminal justice process decisions made by Commonwealth officers
(1) If a decision to prosecute a person for an offence against this Act has been made by an officer of the Commonwealth, and the prosecution is proposed to be brought in a court of a State or Territory: