Retirement Savings Accounts Act 1997

PART 13 - POWERS OF COURTS  

SECTION 163   INJUNCTIONS  

163(1)   Restraining injunctions.  

If a person (the perpetrator ) has engaged, is engaging or is proposing to engage, in conduct that constituted, constitutes or would constitute:

(a)    a contravention of this Act; or

(b)    attempting to contravene this Act; or

(c)    aiding, abetting, counselling or procuring a person to contravene this Act; or

(d)    inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene this Act; or

(e)    being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act; or

(f)    conspiring with others to contravene this Act;

the Court may grant an injunction in accordance with subsection (2) .

163(2)   Nature of injunction.  

If granted, the injunction:

(a)    is to restrain the perpetrator from engaging in the conduct; and

(b)    if in the opinion of the Court it is desirable to do so, may also require that person to do any act or thing.

The Court may only grant the injunction on the application of the Regulator, or of a person whose interests have been, are, or would be, affected by the conduct and may grant it on such terms as the Court thinks appropriate.

163(3)   Performance injunctions.  

If a person (the unwilling person ) has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing that the person is required by this Act to do, the Court may, on the application of:

(a)    the Regulator; or

(b)    any person whose interests have been, are or would be affected by the refusal or failure to do that act or thing;

grant an injunction, on such terms as the Court thinks appropriate, requiring the unwilling person to do that act or thing.

163(4)   Consent injunctions.  

If an application for an injunction under subsection (1) or (3) has been made, the Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that that subsection applies.

163(5)   Interim injunctions.  

If in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1) .

163(6)   Variation or discharge of injunctions.  

The Court may discharge or vary an injunction granted under subsection (1) , (3) or (5) .

163(7)   Restraining injunctions.  

The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:

(a)    whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and

(b)    whether or not the person has previously engaged in conduct of that kind; and

(c)    whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.

163(8)   Performance injunctions.  

The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:

(a)    whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and

(b)    whether or not the person has previously refused or failed to do that act or thing; and

(c)    whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.

163(9)   Damages undertakings.  

If the Regulator applies to the Court for the grant of an injunction under this section, the Court must not require the applicant or any other person, as a condition of granting an interim injunction, to give an undertaking as to damages.

163(10)   Section 161 orders.  

In proceedings under this section against a person, the Court may make an order under section 161 in respect of the person.

163(11)   Damages orders.  

If the Court has power under this section to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do a particular act or thing, the Court may, either in addition to or in substitution for the grant of the injunction, order that person to pay damages to any other person.

163(12)   Definition.  

In this section:

do an act or thing
includes:

(a) give effect to a determination made under the AFCA scheme (within the meaning of the Corporations Act 2001 ); or

(b) reconsider a matter in accordance with a determination made under that scheme.