Court draws a sharp line between concise statements and traditional pleadings
On 3 March 2026, the Federal Court ruled ASIC can rely on penalty-stage evidence beyond what its concise statement disclosed.
In Australian Securities and Investments Commission v BSF Solutions Pty Ltd (Evidence Rulings) [2026] FCA 195, Justice Jackman dismissed the respondents' interlocutory application seeking rulings on their objections to ASIC's proposed penalty evidence, save for rulings on evidence rejected or made subject to a limitation pursuant to s 136 of the Evidence Act 1995 (Cth), and evidence ASIC chose not to read.
The respondents faced ASIC proceedings alleging contraventions of the National Consumer Protection Act 2009 (Cth). The Federal Court found them liable in May 2024. The Full Federal Court dismissed their appeal on 10 July 2025. Justice Jackman fixed the hearing on pecuniary penalties and the wider form of injunctive relief to commence on 7 April 2026.
On 22 and 25 August 2025, ASIC filed further evidence for the penalty hearing. By interlocutory application dated 17 November 2025, the respondents sought rulings on their objections to that evidence before the final hearing. The disputed evidence covered eight areas: the relationship of Mr Harrison or Mr Swanepoel respectively to various entities said to have received financial benefits from the impugned transactions; consumer vulnerability; consumer complaints; the costs involved in Cigno and BSF being regulated credit lenders; consumer detriment from lack of access to dispute resolution processes provided by the Australian Financial Complaints Authority; previous administrative steps and proceedings in relation to the Credit Act involving the respondents; the extent of cooperation with the regulator and a culture of compliance (or the lack thereof) and whether steps were taken by way of remediation; and errors in compliance with adverse publicity orders after the Liability Judgment.
The respondents argued ASIC could not rely on matters not particularised before the contravention hearing.
Justice Jackman drew a clear distinction between proceedings commenced by concise statement and those by traditional pleadings. A concise statement, his Honour explained, provides fair disclosure of the nature of the case and does not function as a comprehensive statement of all matters a party must establish.
Where a concise statement states issues broadly, a respondent cannot sit passively and later object that ASIC disclosed no detailed case. Respondents bear a duty to seek clarification or further particulars before the contravention hearing. The respondents made no such request. Justice Jackman found no breach of procedural fairness.
He also rejected the respondents' formulation of the materiality test for any alleged procedural fairness breach. He confirmed that a breach is not material unless the decision-making authority could have reached a different outcome as a matter of reasonable conjecture, not merely if a party's forensic decisions might have differed.
On the substantive objections, he found no substance in the complaints about the financial benefits evidence, as ASIC had already led substantial evidence on those matters at the contravention hearing. On consumer vulnerability, sufficiently strong indications in ASIC's earlier evidence and the concise statement meant the respondents could have held no reasonable doubt that ASIC would rely on this factor at the penalty stage. He admitted all of the evidence addressed in these reasons, namely the evidence going to the eight contested categories.
The court ordered costs of the interlocutory application as costs in the cause, noting both sides achieved a measure of success. ASIC chose not to read a significant portion of its served evidence, and some evidence drew rejection or limitation orders.
