Australian Securities and Investments Commission v BSF Solutions Pty Ltd (Evidence Rulings)

This was not the first judgment in the ASIC proceeding against BSF Solutions Pty Ltd, Cigno Australia Pty Ltd and individual respondents including Mr Harrison. By the time this ruling was delivered, Jackman J had already given a liability judgment on 24 May 2024 concerning contraventions of the National Consumer Protection Act 2009 (Cth), and the Full Court had dismissed an appeal on 10 July 2025.

The case had moved into the next usual stage for a civil penalty matter: the hearing on pecuniary penalties and final injunctive relief. In this proceeding, that later hearing was fixed to start on 7 April 2026. ASIC filed further evidence in August 2025 and later provided a letter setting out the penalties it sought and the basis for them. The respondents then asked the Court to rule in advance on objections to that evidence so they would know before the penalty hearing what material ASIC could rely on.

The commercial dispute at this stage was not about whether the respondents had contravened the law. That had already been decided. The fight was about what evidence ASIC could use to support the seriousness of the conduct, the size of any penalties, and the scope of final injunctions. That is often where the practical exposure for a business becomes most acute.

The respondents objected to substantial parts of ASIC's proposed penalty evidence. The Court listed the affidavits and the specific paragraphs challenged, but the broader point was that the objections focused on whether ASIC was trying to rely on matters that had not been properly disclosed before the earlier contravention hearing.

The disputed material fell into eight broad topics identified by the Court. These topics are useful because they show the kinds of matters a regulator may seek to use at penalty stage even where they are not the central building blocks of liability.

ASIC also proposed to tender two earlier affidavits as containing admissions. The respondents' complaint was essentially that this material had not been sufficiently articulated before the liability hearing, so allowing it in later would be unfair.

The central question was when a regulator can rely at the penalty stage on evidence that goes beyond what was conveyed to the respondent before the hearing on contravention. The Court treated that as an important question of principle because this proceeding had been commenced by concise statement rather than by a conventional statement of claim.

The Court accepted the established principle that, in a civil suit for a pecuniary penalty, a person accused of contravention should know with some precision the case to be made against them. But the Court also emphasised that a concise statement is not the same thing as a pleading. It is designed to expose the real nature of the dispute and support efficient case management, not to operate as a complete and exhaustive catalogue of every fact that may later matter.

That meant the Court had to reconcile two ideas. First, procedural fairness requires sufficient notice of the case. Second, where a concise statement broadly discloses the nature of the case, a respondent cannot simply remain passive and later insist on strict pleading-style limits if they never sought clarification before the liability hearing.

The respondents relied on three authorities. The Court explained them carefully because they show the procedural context in which fairness objections can succeed.

In ACCC v Dataline.Net.Au Pty Ltd (in liq), default judgment had produced deemed admissions based on the pleaded case. Evidence that would alter that pleaded case was not admitted when penalties were assessed. The significance of that authority was that the penalty case could not be expanded beyond the admitted pleaded facts.

In ACCC v Flight Centre Limited (No 3), Logan J dealt with a different issue: whether the ACCC could rely on unpleaded facts to engage a higher maximum penalty. His Honour held that the absence of pleading on material facts necessary to support a maximum penalty above $10 million denied the respondent the opportunity to make informed forensic choices. The Court in the present case treated that authority as important because it concerned matters affecting the maximum penalty, not merely discretionary penalty factors.

In ASIC v National Australia Bank Ltd, ASIC had pleaded one contravention but later sought to allege 74,593 contraventions at penalty stage, which would have increased the potential maximum penalty from $2.1 million to over $130 billion. Derrington J treated that as a basic procedural fairness problem and an example of trial by ambush.

Jackman J said those authorities did not control the present case because none involved proceedings commenced by concise statement, and because the disputed matters here did not concern the maximum penalty. The Court also relied on Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788 for the role of a concise statement, and on Nathanson v Minister for Home Affairs and Stead v State Government Insurance Commission for the test of materiality if there had been any breach of procedural fairness.

Jackman J dismissed the interlocutory application, except to the extent that transcript rulings recorded evidence that had been rejected or limited under s 136 of the Evidence Act 1995 (Cth), or evidence ASIC ultimately did not read. Costs of the application were ordered to be costs in the cause.

The Court held that, in a bifurcated civil penalty proceeding commenced by concise statement, the regulator will generally be precluded at penalty stage only where it seeks to depart from the heart of its case as disclosed by the concise statement or as narrowed by other communications. If a respondent thinks the concise statement is too broad to provide procedural fairness, it is generally the respondent's responsibility to seek greater specification before the hearing on contravention.

Applying that approach, the Court found there was no substance in the complaint about two topics in particular: the alleged financial benefit relationships involving Mr Harrison or Mr Swanepoel, and consumer vulnerability. On the first topic, substantial evidence had already been led at the contravention hearing and findings had already been made in the liability judgment. The new evidence simply provided more detail on a matter already conveyed. On consumer vulnerability, the Court said the concise statement and earlier evidence gave sufficiently strong indications that ASIC would rely on vulnerability at penalty stage.

As to the other six topics, the Court held they were not at the heart of ASIC's case and therefore did not need to be disclosed in the concise statement. Because the respondents had not sought further specification before the contravention hearing, the Court found no breach of procedural fairness in ASIC relying on that evidence at penalty stage.

The judgment is especially useful because it separates two different fairness questions that are often blurred together.

The first question is whether the regulator is trying to raise matters that affect the maximum available penalty. The authorities relied on by the respondents, especially Flight Centre and NAB, involved that kind of issue. The Court treated those cases as more serious because a late change to the number of contraventions or to facts needed to support a higher maximum penalty can alter the whole way a respondent runs the case.

The second question is whether the regulator is relying on additional evidence relevant only to the Court's discretionary assessment of penalty. That was the position here. The disputed topics might affect how serious the conduct appeared, but they did not alter the statutory maximum penalty. The Court said their significance fell well short of the matters in the earlier authorities.

The Court also said that even if there had been a breach of procedural fairness, the respondents still had to show materiality. The correct test was not whether there was some bare possibility that forensic choices might have been different. The question was whether the decision of the decision-maker could have been different as a matter of reasonable conjecture. Jackman J was not prepared to infer that earlier disclosure of the eight topics would reasonably have led Mr Harrison or Mr Swanepoel to give evidence, or would have led the respondents to run the contravention hearing differently in a way that could have changed the outcome.

For business owners and in-house teams, the practical lesson is procedural discipline. If a regulator starts a Federal Court case with a concise statement, do not assume that document exhaustively defines every fact that may later matter on penalty. The Court expects parties to use case management tools to clarify broad issues early if fairness requires it.

This is particularly important in regulated consumer-facing sectors. The topics ASIC sought to rely on here are familiar penalty themes: who financially benefited, whether customers were vulnerable, what complaints existed, whether consumers lacked access to dispute resolution, what the compliance culture looked like, whether remediation occurred, and how the business behaved after judgment. Those matters can shape the Court's view of seriousness even if they are not the core ingredients of liability.

The case also shows that post-judgment conduct can matter. Errors in complying with adverse publicity orders were among the topics ASIC wanted to use. That means businesses should treat compliance with court orders, corrective notices and public communications as part of litigation risk management, not as an afterthought once liability is decided.

Finally, this ruling is a warning against tactical delay. If your business believes the regulator's case is too broad, the Court may expect you to ask for particulars, a more detailed pleading or another clarifying order before the liability hearing. Waiting until the penalty stage may be too late unless the regulator is truly departing from the heart of the case or trying to raise matters that affect the maximum penalty.

These materials matter because the Court's approach was not confined to the four corners of the initiating document. It looked at whether the nature of the issue had already been conveyed before the contravention hearing, including through affidavit evidence supplementing the concise statement. That means businesses should assess the whole litigation record, not just the originating case summary.

The judgment was delivered by Jackman J on 3 March 2026. It followed the liability judgment of 24 May 2024 and the Full Court appeal decision of 10 July 2025. The penalty and final injunction hearing was fixed to commence on 7 April 2026. This ruling therefore sits between liability and final penalty, and should be read as a procedural decision about admissibility and fairness at that stage.