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Australian Securities and Investments Commission (ASIC) filed a suit against Fiducian Investment Management Services Limited (FIMSL) on October 2, 2025, in the Supreme Court of New South Wales, alleging that FIMSL breached its duties by engaging in misleading and deceptive conduct about its environmental, social, and governance (ESG) fund. ASIC claims that while the Product Disclosure Statement about the Diversified Social Aspirations Fund (DSAF) stated with details how the DSAF would only make investments in companies that were considered to be positive for society and the environment, FIMSL invested in a number of coal mining and petroleum related businesses. ASIC seeks, under the ASIC Act, that FIMSL pay a pecuniary penalty or penalties for its violations and disclose to the public its wrongdoings. 

This is the fourth greenwashing civil penalty action taken by ASIC, and the first against a responsible entity (RE) for alleged failures in governance and compliance with RE duties.

The case was brought by the Commissioner of Police under the Summary Offences Act 1988 (NSW) §25, seeking an order from the court to prohibit two public assemblies notified to the Commissioner. Justice Fagan ordered the assemblies to be prohibited on November 7, 2024. 

Originally, two public assemblies were notified to the police by Rising Tide, a group of individuals focused on defending the climate. The first assembly was to take place at Horseshoe Beach, Newcastle, and adjoining parkland, intended to continue for approximately eight days with an expected attendance of 10,000 people. This assembly was agreed to be shortened to four days after the second day of hearing. The second assembly was to take place on the waters of Newcastle Harbour off Horseshoe Beach, over three days that overlap with the first protest, with an expected attendance of 1,000 people. Both assemblies were purposed to "protest against [the Australian] governments’ continuing approval of new coal projects, and to call for an urgent transition away from coal exports, funded by a tax on the profits of those exports."

Justice Fagan, in prohibiting both assemblies, noted the unusually long duration and potential safety concerns. He pointed out that protests on shipping channels raise safety issues for both protesters and police, an issue that would not arise in a conventional assembly or street march. Justice Fagan further noted that an assembly on the water can preserve police powers to keep the port open by arresting any protesters who impede safe navigation. Because police cannot arrest protesters protected under the Summary Offences Act 1988 (NSW) §24, the court found that allowing the protest in water would practically be allowing the protestors "to blockade the harbour" without the risk of arrests under the Marine Safety Act 1988 (NSW) even after infringing the law. The court, in reaching the decision, also considered Rising Tide's civil disobedience in a previous protest, and a public statement made by that protest's organizer that "[e]ffective protest means pushing the boundaries and we needed to disrupt the Newcastle coal port as long as we possibly could. We were scheduled to finish our 30 hour blockade but the cops didn’t know we were going to keep it going longer than we had planned for." Overall, based on the potential inconvenience to the public based on duration and location, safety concerns, and previous interaction between the parties, the court found that the assemblies should be prohibited.

On September 29, 2023, the Maules Creek Community Council Incorporated, a community association concerned about mining impacts in the Leard State Forest region, filed proceedings in the Land and Environment Court of New South Wales. The case challenged the Environment Protection Authority’s (EPA) June 2, 2023 renewal of an Environment Protection Licence (EPL) for Maules Creek Coal Pty Ltd (MCCPL)’s open-cut coal mine.

The applicants argued the renewal was unlawful under section 45 of the Protection of the Environment Operations Act 1997 (POEO Act). Section 45 requires the EPA to consider: (1) the pollution caused or likely to be caused by the licensed activity and its impact on the environment; (2) practical measures to mitigate pollution; and (3) whether the licensee is a “fit and proper person.” Section 83 provides further guidance on assessing fitness. The applicants claimed that the EPA failed to adequately consider these factors, relying on the limited content of the “License Review Record.”

The applicants emphasized the mine’s emissions of harmful air pollutants—including PM2.5, ozone, metals and metalloids, carbon monoxide, nitrogen oxides, sulfur dioxide, and greenhouse gases (GHGs) such as carbon dioxide and methane. They argued that the EPL did not expressly regulate these pollutants, particularly fine particulate matter and GHG emissions, which are linked to human health risks and climate change. By failing to address these pollutants or require mitigation measures, they argued, the EPA had not satisfied its statutory obligations.

MCCPL, supported by the Attorney General of New South Wales, defended the EPA’s process. It argued that decision-makers were not required to provide reasons and that the review must be understood in the broader context of the EPA’s ongoing regulatory oversight, including numerous compliance actions, licence variations, and inspections. On climate and air pollution, MCCPL submitted that industry-wide or regional audits under section 78(4A)—rather than variation of individual EPLs—were the appropriate mechanism to address pollutants such as GHGs.

On July 18, 2024, Chief Judge Preston dismissed the case. The Court held that the applicants had not proven that the EPA failed to consider the fitness of the licensee or the pollution impacts required under section 45. It ruled that the absence of detail in the License Review Record did not support an inference of non-consideration, given the broader regulatory context, including the EPA’s risk-based licensing system, ongoing enforcement, and licence variations. The Court found it reasonable that the EPA might decide not to vary the licence if air pollutants were better addressed through industry-wide mechanisms.

In a subsequent order on November 21, 2024, the Court directed that each party bear its own costs. While the proceedings were unsuccessful, the Court recognized they were brought in the public interest.

On September 29, 2023, the Maules Creek Community Council Incorporated, a community association concerned about mining impacts in the Leard State Forest region, filed proceedings in the Land and Environment Court of New South Wales. The case challenged the Environment Protection Authority’s (EPA) June 2, 2023 renewal of an Environment Protection Licence (EPL) for Maules Creek Coal Pty Ltd (MCCPL)’s open-cut coal mine. The applicants argued the renewal was unlawful under section 45 of the Protection of the Environment Operations Act 1997, which requires the EPA to consider: (1) the pollution caused or likely to be caused by the licensed activity and its impact on the environment; (2) practical measures to mitigate pollution; and (3) whether the licensee is a “fit and proper person.”

The applicants claimed that the EPA failed to adequately consider these factors, relying on the limited content of the “License Review Record.” The applicants emphasized the mine’s emissions of harmful air pollutants—including PM2.5, ozone, metals and metalloids, carbon monoxide, nitrogen oxides, sulfur dioxide, and greenhouse gases (GHGs) such as carbon dioxide and methane. They argued that the EPL did not expressly regulate these pollutants, particularly fine particulate matter and GHG emissions, which are linked to human health risks and climate change. By failing to address these pollutants or require mitigation measures, they argued, the EPA had not satisfied its statutory obligations. 

MCCPL, supported by the Attorney General of New South Wales, defended the EPA’s process. It argued that decision-makers were not required to provide reasons and that the review must be understood in the broader context of the EPA’s ongoing regulatory oversight, including numerous compliance actions, license variations, and inspections. On climate and air pollution, MCCPL submitted that industry-wide or regional audits under section 78(4A)—rather than variation of individual EPLs—were the appropriate mechanism to address pollutants such as GHGs. 

On July 18, 2024, Chief Judge Preston dismissed the case. The Court held that the applicants had not proven that the EPA failed to consider the fitness of the licensee or the pollution impacts required under section 45. It ruled that the absence of detail in the License Review Record did not support an inference of non-consideration, given the broader regulatory context, including the EPA’s risk-based licensing system, ongoing enforcement, and license variations. The Court found it reasonable that the EPA might decide not to vary the license if air pollutants were better addressed through industry-wide mechanisms. 
In a subsequent order on November 21, 2024, the Court directed that each party bear its own costs. While the proceedings were unsuccessful, the Court recognized that the suit was brought in the public interest.

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