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Section 12GNB Australian Securities and Investments Commission Act
Orders to redress loss or damage suffered by non-party consumers etc.

Division 2, subdivision G of the Australian Securities and Investments Commission Act 2001 contains enforcement and remedy provisions relating to unfair contract terms, unconscionable conduct and consumer protections relating to the provision of financial services and products.

These include offence provisions relating to consumer protections contained in subdivision D, pecuniary penalty orders (fines), provisions relating to criminal and civil proceedings, injunctions, the required state of mind (intention, knowledge, recklessness and negligence) and defences.

Section 12GNB is titled Orders to redress loss or damage suffered by non-party consumers etc. and forms part of that subdivision.

The section is extracted below.

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The Legislation

Orders to redress loss or damage suffered by non-party consumers etc.

Orders

(1) Without limiting the generality of section 12GD, if:
(a) a person:
(i) engaged in conduct (the contravening conduct ) in contravention of a provision of Subdivision C or D; or
(ii) is a party to a contract who is advantaged by a term (the declared term ) of the contract in relation to which the Court has made a declaration under section 12GND; and
(b) the contravening conduct or declared term caused, or is likely to cause, a class of persons to suffer loss or damage; and
(c) the class includes persons who are non-party consumers in relation to the contravening conduct or declared term;
the Court may, on the application of ASIC, make such order or orders (other than an award of damages) as the Court thinks appropriate against a person referred to in subsection (2) of this section.
Note: The orders that the Court may make include all or any of the orders set out in section 12GNC.

(2) An order under subsection (1) may be made against:
(a) if subparagraph (1)(a)(i) applies–the person who engaged in the contravening conduct, or a person involved in that conduct; or
(b) if subparagraph (1)(a)(ii) applies–a party to the contract who is advantaged by the declared term.

(3) The Court must not make an order under subsection (1) unless the Court considers that the order will:
(a) redress, in whole or in part, the loss or damage suffered by the non-party consumers in relation to the contravening conduct or declared term; or
(b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the non-party consumers in relation to the contravening conduct or declared term.

Application for orders

(4) An application may be made under subsection (1) even if an enforcement proceeding in relation to the contravening conduct or declared term has not been instituted.

(5) An application under subsection (1) may be made at any time within 6 years after the day on which:
(a) if subparagraph (1)(a)(i) applies–the cause of action that relates to the contravening conduct accrues; or
(b) if subparagraph (1)(a)(ii) applies–the declaration is made.

Determining whether to make an order

(6) In determining whether to make an order under subsection (1) against a person referred to in paragraph (2)(a), the Court may have regard to the conduct of the person, and of the non-party consumers in relation to the contravening conduct, since the contravention occurred.

(7) In determining whether to make an order under subsection (1) against a person referred to in paragraph (2)(b), the Court may have regard to the conduct of the person, and of the non-party consumers in relation to the declared term, since the declaration was made.

(8) In determining whether to make an order under subsection (1), the Court need not make a finding about either of the following matters:
(a) which persons are non-party consumers in relation to the contravening conduct or declared term;
(b) the nature of the loss or damage suffered, or likely to be suffered, by such persons.

When a non-party consumer is bound by an order etc.

(9) If:
(a) an order is made under subsection (1) against a person; and
(b) the loss or damage suffered, or likely to be suffered, by a non-party consumer in relation to the contravening conduct, or declared term, to which the order relates has been redressed, prevented or reduced in accordance with the order; and
(c) the non-party consumer has accepted the redress, prevention or reduction;
then:
(d) the non-party consumer is bound by the order; and
(e) any other order made under subsection (1) that relates to that loss or damage has no effect in relation to the non-party consumer; and
(f) despite any other provision of this Act or any other law of the Commonwealth, or a State or Territory, no claim, action or demand may be made or taken against the person by the non-party consumer in relation to that loss or damage.

Other

(10) Subsection (1) has effect subject to section 12GNA.
Note: Section 12GNA may limit the liability, under an order made under subsection (1) of this section, of a person for his or her contravention of section 12DA (which is about misleading or deceptive conduct) or involvement in such a contravention.

(11) This section does not apply in relation to contravening conduct that occurred before the commencement of this section.

Why Choose Sydney Criminal Lawyers®?

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with. Here are 12 reasons to choose our multi-award winning legal team:

  1. Proven Track Record of Exceptional Results

    Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.

    Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.

    Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.

    We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.

    Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

  2. Highest Level of Client Satisfaction

    We have the best and most comprehensive client review record of any law firm in Australia.

    Regular communication, accessibility and quality service are our team’s highest priorities.

    We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.

    We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.

  3. Australia’s Most Awarded Criminal Law Firm

    We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.

    The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.

  4. Fixed Fees

    We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.

    We offer fixed fees for most types of criminal cases and services.Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.

    Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.

  5. Free First Appointment

    For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.

    We also offer a free first conference to those who have received an unsatisfactory result after being represented in court by another law firm, or after representing themselves, and wish to appeal.

  6. Specialist Lawyer Guarantee

    We guarantee that only lawyers with substantial criminal defence experience will work on your case and appear for you in court.

    This ensures our clients receive the highest quality representation from an experienced, specialist criminal lawyer.

  7. All NSW Courts

    From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.

    And we offer fixed fees for most criminal and traffic law cases throughout the state.

  8. Accredited Specialists

    Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.

    All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.

    An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.

    Accredited Specialists are required to undertake more training each year than other lawyers and must be successful in having their accreditation renewed every year. Specialist Accreditation is the mark of a true specialist.

    Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.

  9. Results-Focused Law Firm

    Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.

    The absence of budgets means our lawyers are entirely focused on achieving optimal results in the shortest space of time; whether by getting charges dropped or downgraded at an early stage or having cases ‘thrown out of court’.

    Not having budgets also means our lawyers are not under pressure to engage in unscrupulous practices such as unnecessarily adjourning cases or ‘overcharging’ clients – which, sadly, is a common complaint against many other lawyers and law firms.

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    The result is a firm which delivers optimal outcomes in the shortest time periods, at the least expense and stress to our clients.

  10. Team of Lawyers Behind You

    Our clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide.

    Our lawyers regularly consult one another to stay ‘ahead of the pack’ in the ever-changing field of criminal law – constantly devising, refining and implementing specialised techniques which ensure our clients achieve the best possible outcomes.

    A team approach is particularly important when it comes to serious criminal cases such as murder, commercial drug cases, serious and sexual assaults, large-scale fraud, robbery and other ‘indictable’ cases.

    In such matters, clients reap the benefits of several lawyers devising and executing case strategies which maximise the chances of having cases dropped or downgraded at an early stage, or ‘thrown out of court’ – often saving clients a great deal of cost, time and anxiety.

  11. Familiar with Magistrates and Judges

    Each of our lawyers appears in court on a daily basis, and has done so for years. We have therefore been able to develop an understanding of, and rapport with, magistrates and judges in Sydney and indeed across the state.

    Our team’s extensive experience before the courts ensures your case is tailored to the specific nuances of individual judicial officers, maximising the likelihood of a favourable result.

  12. Convenience

    We have offices in locations across the Sydney Metropolitan Area and beyond, including:

    • the Sydney CBD, on Castlereagh Street, directly opposite Downing Centre Court,
    • Liverpool, directly opposite Liverpool Local Court, and
    • Parramatta, near the justice precinct.

    We offer free parking at our Sydney CBD and Liverpool locations, and all of our offices are close to train stations and bus terminals.

    For those who are unable to attend our offices, we offer conferences by telephone, Skye and FaceTime anywhere around the world.

    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.

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