Australian Securities and Investments Commission v Retail Employees Superannuation Pty Ltd [2022] FCA 438
ORDERS
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Plaintiff | ||
AND: | RETAIL EMPLOYEES SUPERANNUATION PTY LTD (ACN 001 987 739) Defendant | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The plaintiff have leave to amend paragraphs 2, 3 and 4 of its interlocutory application filed 17 September 2021 in accordance with the document entitled “Revised alternative wording of discovery categories 2, 3 and 4” provided to the court at the hearing.
2. The time for the parties to have completed the mediation of this proceeding be extended to a date to be fixed.
3. The plaintiff’s applications filed 17 September 2021 and 29 November 2021 be dismissed.
4. The plaintiff pay the defendant’s costs of the applications.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
O’CALLAGHAN J:
INTRODUCTION
1 By application filed 17 September 2021, the Australian Securities and Investments Commission (ASIC) seeks discovery of seven categories of documents (Discovery Application). The defendant (REST) claims, and ASIC does not dispute, that the documents are protected by legal professional privilege. ASIC asserts, however, that REST has in its defence filed on 26 May 2021 put in issue its state of mind and reliance upon legal advice and thereby waived that privilege.
2 By application filed 29 November 2021, ASIC seeks orders to permit it to uplift and inspect documents produced in response to three subpoenas (Subpoena Application). REST objects to inspection on the basis of legal professional privilege. The same issue as to waiver arises.
3 At the hearing, ASIC did not press the first category of documents in its Discovery Application. For reasons that I will explain, as to the second to sixth categories of documents, the Discovery Application will be refused, including because it is premature and duplicative. The parties agreed that I should inspect the 22 documents the subject of the seventh category, the list of which is attached to these reasons marked “A”. Having done so, I have formed the clear view that they are irrelevant to any issue in the proceeding. I will not therefore order that they be discovered.
4 The Subpoena Application will also be refused. There has been no relevant waiver. Having at the invitation of the parties inspected the documents produced, I have formed the view that they are irrelevant to any issue in the proceeding. As I shall explain, that is a product of the fact that the subpoenas issued by ASIC and directed to REST’s different legal advisers over the relevant time cast a very wide net that went far beyond any issue in dispute between the parties.
THE APPLICATIONS
The Discovery Application
5 At the hearing, ASIC sought, without objection, to amend the Discovery Application. I will accordingly grant leave to amend it. In its amended form, ASIC did not press the first category in its Discovery Application and sought orders that REST discover, and “if applicable”, permit inspection of unredacted copies of the following documents:
2. Any and all documents evidencing communications with legal advisers from whom legal advice was sought or obtained from 2005 to 3 May 2018:
(a) relating or referring to reg 6.34, 6.34A or 6.35(1)(b) of the Superannuation Industry (Supervision) Regulations 1994 (Cth); or
(b) relating to REST’s practices, policies, procedures or business rules in relation to applications or requests to rollover:
(i) the whole of a member’s superannuation account balance out of the Retail Employees Superannuation Trust (Trust); or
(ii) an amount of a member’s superannuation account balance out of the Trust, such that less than $5,000 would be left in the account,
to the extent not already provided by REST to ASIC in response to notices.
3. Correspondence and any and all documents evidencing communications to and from MinterEllison between 1 February 2018 and 3 May 2018:
(a) relating or referring to reg 6.34, 6.34A or 6.35(1)(b) of the Superannuation Industry (Supervision) Regulations 1994 (Cth); or
(b) relating to REST’s practices, policies, procedures or business rules in relation to applications or requests to rollover:
(i) the whole of a member’s superannuation account balance out of the Retail Employees Superannuation Trust (Trust); or
(ii) an amount of a member’s superannuation account balance out of the Trust, such that less than $5,000 would be left in the account, or
(c) relating to correspondence with APRA in 2018 regarding REST’s rollover practices.
4. Correspondence and any and all documents evidencing communications to and from Phillips Fox, DLA Phillips Fox and/or DLA Piper (including Peter Charteris) from between around September 2005 to 3 May 2018:
(a) relating or referring to reg 6.34, 6.34A or 6.35(1)(b) of the Superannuation Industry (Supervision) Regulations 1994 (Cth); or
(b) relating to REST’s practices, policies, procedures or business rules in relation to applications or requests to rollover:
(i) the whole of a member’s superannuation account balance out of the Trust; or
(ii) an amount of a member’s superannuation account balance out of the Trust, such that less than $5,000 would be left in the account.
5. The legal advice or communication referred to by Michelle Levy in an email to Brenda Mills dated 12 March 2018.
6. Any and all documents evidencing communications between 1 February 2018 and 3 May 2018 relating to the documents in category 5 above.
7. [30 listed documents, the list of which is attached to these reasons marked “A”.]
6 ASIC relied on the affidavit of Mr Yu-chiao Hsueh affirmed 6 September 2021 in support of the Discovery Application.
The Subpoena Application
7 The Subpoena Application sought orders that ASIC “have leave to uplift and inspect the documents listed in the Schedule produced pursuant to the following subpoenas:
(a) subpoena to Allens dated 17 September 2021;
(b) subpoena to MinterEllison dated 20 September 2021; and
(c) subpoena to DLA Piper dated 20 September 2021.”
8 ASIC relied on a second affidavit of Mr Hsueh affirmed 26 November 2021 in support of the Subpoena Application. REST relied on two affidavits, one of Ms Brenda Mills, the other of Mr David Ephraums, each sworn 15 December 2021, in relation to both applications.
9 The MinterEllison subpoena sought production of documents evidencing:
(a) any requests for advice or legal services received from REST in relation to its rollover practices and/or correspondence with the Australian Prudential Regulation Authority (APRA); and
(b) any corresponding advice or the provision of legal services, or internal communications recording that advice or legal services.
10 The Allens subpoena sought production of documents evidencing:
(a) external legal advice provided by REST or its lawyers to Allens for review or comment in connection with REST’s rollover practices, business rules concerning rollovers or correspondence with APRA;
(b) any requests for advice or legal services received from REST in relation to (a) above; and
(c) legal advice or legal services provided by Allens, or internal communications recording that advice or legal services, concerning (a) above, REST’s rollover practices, REST’s business rules concerning rollovers or REST’s correspondence with APRA.
11 The DLA Piper subpoena sought production of documents evidencing:
(a) requests for advice or legal services received from REST in relation to its business rules regarding rollovers or its rollover practices; and
(b) any corresponding advice or the provision of legal services, or internal communications recording that advice or legal services.
12 Copies of the documents listed in the Schedule to the Subpoena Application were provided to me by agreement and, at the invitation of the parties, I have inspected them. The 95 documents described in the Schedule are a subset of the documents produced under the subpoenas. I was told by Mr CM Caleo QC, who appeared with Mr AM Dinelli of counsel for REST, that that was so because many of the documents produced on subpoena had already been produced by REST to ASIC through the process of the service of, and response to, statutory notices served by ASIC on REST.
THE ISSUES IN THE PROCEEDING
13 By its statement of claim dated 28 April 2021, ASIC alleges, and by its defence REST admits, that REST is required to operate subject to the relevant provisions of the Superannuation Guarantee (Administration) Act 1992 (Cth) (the SGA Act), the Superannuation Industry (Supervision) Act 1993 (Cth) (the SIS Act), and the Superannuation Industry (Supervision) Regulations 1994 (Cth) (the SIS Regs).
14 The statement of claim further alleges:
3. At all material times, including between at least 2 March 2015 and 2 May 2018 (the Relevant Period), REST was and remains the trustee of the Retail Employees Superannuation Trust (the Trust) which provides superannuation benefits for members (Members) consistent with the terms of the Trust Deed.
4. As trustee of the Trust, at all material times REST owed duties including to act honestly and in good faith in its dealings with Members.
Particulars
The duties arise at law, in equity and pursuant to s 52 (2)(a) of the SIS Act.
5. By providing superannuation benefits to Members, REST provides a financial service within the meaning of s 12BAB(1)(g) of the ASIC Act in relation to a financial product within the meaning of s 12BAA(7)(f) of the ASIC Act.
6. By providing superannuation benefits to Members, REST deals with beneficiaries of a superannuation fund such that it engages in conduct in relation to a financial product within the meaning of s 1041H(2)(b)(vi) of the Corporations Act 2001 (Cth) (Corporations Act).
THE STATUTORY SCHEME
7. Since July 2005 and during the Relevant Period, Members had the right under the SGA Act, the SIS Act and the SIS Regs to transfer all or part of the balance held in their member account (Superannuation Balance) to another superannuation fund.
8. From at least July 2013 and during the Relevant Period, any Member of REST was entitled to request, in writing, that the whole or part of the Member’s Superannuation Balance be rolled over or transferred to a “receiving fund”.
Particulars
SIS Regs, reg 6.33(1).
9. From at least July 2013 and during the Relevant Period, when REST received a request from a Member to rollover or transfer the whole or part of a Member’s Superannuation Balance to another regulated superannuation fund, or approved deposit fund, an RSA provider or an EPSSS, it was required to rollover or transfer the amount in accordance with the request provided the information referred to in reg 6.34(1)(b) or (c) (as appropriate) of the SIS Regs was provided.
Particulars
(a) SIS Regs, reg 6.34(2).
(b) For a request to transfer all of the Member’s Superannuation Balance, the information that was required was that specified as mandatory in the form in:
(i) Schedule 2A referred to in reg 6.33(2)(b) of the SIS Regs if the receiving fund was not a self-managed superannuation fund; and
(ii) Schedule 2B referred to in reg 6.33(3)(b) of the SIS Regs in any other case.
(c) For a request to transfer part of the Member’s Superannuation Balance, the information that was required was that which would be required by the form in:
(i) Schedule 2A referred to in reg 6.33(2)(b) of the SIS Regs and any other information that was reasonably required to give effect to the rollover or transfer if the receiving fund was not a self-managed superannuation fund; and
(ii) Schedule 2B referred to in reg 6.33(3)(b) of the SIS Regs and any other information that was reasonably required to give effect to the rollover or transfer in any other case.
10. From at least July 2013 and during the Relevant Period, when a request for transfer was received in accordance with the SIS Regs, REST was required to effect the transfer as soon as practicable but in any case no later than 3 business days after the receipt of the transfer request (where that request includes the information required by the SIS Regs).
Particulars
SIS Regs, reg 6.34A.
11. By reason of the foregoing, from at least July 2013 and during the Relevant Period, REST was not permitted to require Members who requested to transfer the whole of their Superannuation Balance to maintain a minimum balance of $5,000.
12. By reason of the foregoing, from at least July 2013 and during the Relevant Period, REST was not permitted to require Members to obtain a declaration from their employer:
(a) that the Member had “choice of fund rights”; and
(b) of the date upon which the REST employer ceased making contributions to REST,
prior to processing their transfer request (either in whole or in part).
13. By reason of the foregoing, from at least July 2013 and during the Relevant Period, REST was not permitted to require Members who sought to transfer the whole of their Superannuation Balance to provide:
(a) a separation certificate from the Member’s employer; or
(b) a date of termination of employment,
prior to processing their whole of balance transfer request.
15 It is then pleaded that REST made four representations to members between 2 March 2015 and 2 May 2018 contrary to ss 12DB(1)(i) and 12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth) and s 1041H of the Corporations Act 2001 (Cth).
16 The representations alleged are:
(1) Partial Transfer Representation: REST represented to members who sought to transfer the whole of their superannuation balance out of the Retail Employees Superannuation Trust (Trust) that, if they remained employed by a REST employer and the REST employer would continue to make contributions to the Trust, then the member could only partially transfer their superannuation balance out of the Trust;
(2) $5,000 Transfer Representation: REST represented to members who sought to transfer the whole of their superannuation balance out of the Trust that, if they continued to be employed by a REST employer, then they were required to maintain a minimum balance of $5,000 in their REST account;
(3) Declaration Requirement Representation: REST represented to members who sought to transfer the whole of their superannuation balance out of the Trust that they were required to obtain a declaration from their employer:
(a) that the member had “choice of fund rights”; and
(b) of the date upon which the REST employer ceased making contributions to REST,
as a pre-requisite to effecting the transfer, and that a failure to provide the declaration meant the request could be refused by REST; and
(4) Certificate Requirement Representation: REST represented to members who sought to transfer the whole of their superannuation balance out of the Trust that the transfer could only be processed where they:
(a) obtained a separation certificate from the member’s employer; or
(b) provided a date of termination.
17 REST’s defence makes various denials and also pleads that:
(a) even if made, the representations were a statement of REST’s opinion of the law, which was honestly and reasonably held (at paragraphs 17(a)(ii), 26(a)(ii), 35(a)(iii) and 44(b)(iii)); and
(b) REST’s particular practice was consistent with external legal advice (at paragraph 54(b)).
18 REST provided particulars to paragraph 54(b), identifying advice given by, variously, Allens and DLA Piper (which was previously known as Phillips Fox and DLA Phillips Fox).
19 Mr Caleo explained the relevance of the different pleas in reliance on legal advice as follows:
[Y]our Honour made the observation, “Well what does this go to as a matter of defence?”
The relevance is this: if the proper way to characterise the conduct that is relied upon as constituting the representations is that it is better characterised as a statement of REST’s opinion of the law, and that opinion is honestly and reasonably held, then the prospect of that being held to be misleading or deceptive is significantly reduced because it is a statement about the fact that you hold an opinion and if you hold an opinion and it is on reasonable grounds then under the legislation the ability for it to be held to be misleading or deceptive is affected. And so, in that respect that part of the plea is capable of going to liability. The additional allegation – quite separate, in 55b – goes to mitigation because the response is, “Well in response to the whole of the pleading we also want to bring to account these factors in A and B”. [One], what we did was done over a period of time through liaising with [APRA]. And secondly, we had legal advice.
And it’s pleaded in the defence so that for the purpose of any trial the fact that that will be contended at any penalty phase if my client fails on liability is known then. Not simply left to penalty. So while the allegations in the defence are plainly related to each other, they appear in different places for different reasons.
20 As REST’s written submissions made clear, REST accepts (as it obviously must) that it has put into issue its understanding of the law and state of mind prior to 2 May 2018 in relation to the subject matter of the four representations.
WAIVER: RELEVANT LEGAL PRINCIPLES
21 There was no dispute between the parties about the relevant waiver principles.
22 This is an interlocutory dispute, so the common law governs the disposition of the issues, not the Evidence Act 1995 (Cth). See Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 59–63 [17]–[28] (Gleeson CJ, Gaudron and Gummow JJ), 73–74 [64] (McHugh J); Mann v Carnell (1999) 201 CLR 1 at 12 [27] (Gleeson CJ, Gaudron, Gummow and Callinan JJ), 16–17 [41] (McHugh J), 45 [143]–[144] (Kirby J).
23 An intention to waive privilege will be implied where “the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect”. See Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 at 315 [30] (French CJ, Kiefel, Bell, Gageler and Keane JJ).
24 As the plurality of the High Court (Gleeson CJ, Gaudron, Gummow and Callinan JJ) said in Mann v Carnell (1999) 201 CLR 1 at 13 [28]ff, including under the heading “Waiver of privilege at common law”:
28. At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that “waiver” is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege …
29. Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is “imputed by operation of law”. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege … What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
30. In Goldberg v Ng [(1995) 185 CLR 83] this Court considered a case in which there was disclosure of a privileged communication to a third party, for a limited and specific purpose, and upon terms that the third party would treat the information disclosed as confidential. The Court was divided upon whether, in the circumstances of the case, privilege was waived. However, the reasoning of all members of the Court was inconsistent with the proposition that any voluntary disclosure to a third party necessarily waives privilege. No application was made on the present appeal to re-open Goldberg or any of the earlier authorities on the subject. In Goldberg, reference was made to the statement of Jordan CJ in Thomason v The Council of The Municipality of Campbelltown [(1939) 39 SR (NSW) 347 at 355]:
“The mere fact that a person on some one occasion chooses to impart to another or others advice which he has received from his solicitor indicates no intention on his part to waive his right to refuse on other occasions to disclose in evidence what that advice was, and supplies no sufficient reason for depriving him of a form of protection which the law has deemed it specially necessary to throw around communications between solicitor and client.”
(Footnotes omitted.)
25 See also DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 at 519 [58], 529 [115] (Allsop J, as the Chief Justice then was) (the test to apply at common law is whether the privilege holder has made an assertion (express or implied) as part of its case that lays open the privileged communication to scrutiny, with the consequence that inconsistency arises between the making of the assertion and the maintenance of the confidentiality of the communication), cited with approval in Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at 359 [61], 360 [65] (Kenny, Stone and Edmonds JJ) and Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117 at [30] (Middleton, Robertson and Gleeson JJ).
THE SUBPOENA APPLICATION
26 I will deal with the subpoena application first.
27 ASIC submitted as follows:
Each of Minter Ellison, Allens and DLA Piper produced documents in response to the subpoenas. …
As with the Discovery Application, ASIC contends that privilege has been waived because of either or both of issue waiver … and/or associated document waiver … [I]n respect of the documents the subject of whole claims of privilege, save to say that by reason of their descriptions, each of these documents appear to be relevant, however, given its ignorance as to the content of the documents, ASIC cannot advance that submission further. ASIC urges the Court to inspect the documents [listed in Annexure “B” to these reasons] and form its own view.
The documents
28 As I said, I have inspected the disputed documents.
29 Not one of the documents has any relevance to the issues in dispute on the pleadings. No issue of waiver thus arises. As I said earlier, the fact that they are irrelevant is largely the product of the fact that the subpoenas were cast in such broad terms – requiring, for example, production of legal advice provided or internal communications recording that advice or legal services concerning REST’s “rollover practices”, “business rules concerning rollovers” and “REST’s correspondence with APRA” – that were calculated to result in the production of documents that have nothing to do with the relatively narrow case that ASIC makes in its pleading about REST’s alleged breach or breaches of the SIS Regs.
30 Having inspected each of the documents, I accept without qualification or exception the submissions made by senior and junior counsel for REST that each of the disputed documents, or the redacted parts thereof, is irrelevant to any issue in the proceeding for the reasons they gave in Schedule 1 to their written submissions, which is attached to these reasons marked “B”.
THE DISCOVERY APPLICATION
31 It was explained to me during the hearing that the docket judge has not yet made any order in relation to discovery. I was told that it is contemplated that after the resolution of these applications, the proceeding is to be the subject of a mediation – and that the only thing standing in the way of that mediation is the resolution of the applications before me.
32 In the end, there was no real issue between the parties that it would be premature to rule upon privilege claims before discovery has even been ordered and a schedule of documents the subject of privilege claims produced. Indeed, counsel for ASIC (Mr MW Wise QC, who appeared with Mr AL Ounapuu) expressly said so in relation to categories 1 to 6 of the Discovery Application in footnote 48 of their written submissions.
33 I also accept the submission made on behalf of REST that there is a near complete overlap between the documents produced on subpoena the subject of the Subpoena Application, and the documents sought in ASIC’s Discovery Application. It is thus unlikely that REST would produce documents on discovery that have not already been produced by its external legal advisers. Further, it is passing strange, in my view, to ask a court to rule on questions of privilege at the same time as making an order that discovery be provided. One would have thought that the conventional approach, requiring a party to discover documents and make a claim for privilege, which may then be challenged or not, is to be preferred. In any event, as I say, in the end there was no real dispute that it is premature to make any decision in respect of categories 2 to 6 of the discovery application.
34 The parties agreed that I should, however, inspect the documents the subject of category 7. ASIC ultimately did not press for production of documents numbered 3, 5, 9, 10, 11, 14, 16, and 17. And REST did not press its redactions to:
(1) document 4, the redaction on page 31; and
(2) document 6, the redaction of the last sentence on page 45, and the redactions on pages 46 and 48.
35 That left 22 documents to be inspected, less those non-pressed redactions (see annexure “A” referred to in [5] above).
36 Having inspected each of the documents, I have formed the view that each of those documents, or the redacted parts thereof, is irrelevant to any pleaded issue in the proceeding.
37 I should also say something specifically in addition in relation to documents numbered 21, 22 and 23, which have never been produced to ASIC and about which some time was spent in the course of oral submissions. By its application, ASIC seeks discovery of unredacted copies of advice received from Ms Rebecca Devon, who was REST’s senior legal counsel at the relevant time. Although the documents provided by Ms Devon are correctly described as “advices”, the documents contain an express disclaimer by Ms Devon which on its face, takes anything that is said in the advices out of the realm of any issue in dispute between the parties in this proceeding. As REST submitted, there is no foundation for a finding that anything contained in those documents materially contributed to REST’s pleaded state of mind.
DISPOSITION
38 For those reasons, the Discovery Application and the Subpoena Application will be dismissed, save in so far as order 2 of the Discovery Application seeks an adjournment of the mediation, which was an agreed position between the parties. I will order that ASIC pay REST’s costs of both applications.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan. |
Associate:
ANNEXURE A
No. | Document | Doc ID |
1. | RE: Draft APRA response | RST.0116.0001.0622 |
2. | 2005 05 26 Board paper - item 9.4 Choice of Fund.pdf | RST.0103.0001.0697 |
3. | Not pressed | |
4. | REST board minutes 260505.pdf | RST.0113.0001.0240 |
5. | Not pressed | |
6. | 2009 02 12 ARCC Final Minutes.pdf | RST.0116.0001.0655 |
7. | 2009 02 12 ARCC papers - item 7.2 portability with legal advice.pdf | RST.0116.0001.0665 |
8. | 2009 05 20 ARCC Final Minutes.pdf | RST.0116.0001.0679 |
9. | Not pressed | |
10. | Not pressed | |
11. | Not pressed | |
12. | 2009 02 20 Board papers - item 10.6 APRA portability matter.pdf | RST.0116.0001.0825 |
13. | 2009 03 24 Final Board Minutes.pdf | RST.0116.0001.0874 |
14. | Not pressed | |
15. | 2009 06 26 Board papers - item 9.2 matters arising | RST.0116.0001.0929 |
16. | Not pressed | |
17. | Not pressed | |
18. | benefit payment & rollover out business rules - PL.DOCX | RST.0106.0102.2374 |
19. | benefit payment & rollover out business rules - PL.DOCX | RST.0106.0101.8764 |
20. | FW: E-Rollover Business Rules Meeting Summary | RST.0106.0096.7089 |
21. | Advice provided by Rebecca Devon of Rest on 7 February 2013 | - |
22. | Advice provided by Rebecca Devon of Rest on 26 April 2013 | - |
23. | Advice provided by Rebecca Devon of Rest on 7 August 2013 | - |
24. | Audit Risk and Compliance Committee (ARCC) paper dated 12 February 2009 | RST.0141.0001.0058 |
25. | [A]n ARCC minute dated 12 February 2009 containing redactions under item 7.2 | RST.01410.0001.0099 |
26. | An Agenda bundle for the 12 February 2009 ARCC meeting | RST.0141.0001.0403 |
27. | An Agenda bundle for a 20 February 2009 board meeting | RST.0141.0001.0669 |
28. | A board paper for the 20 February 2009 board meeting | RST.0141.0001.0072 |
29. | A board minute for the 20 February 2009 board meeting | RST.0141.0001.0109 |
30. | Agenda bundle for a 24 March 2009 board meeting | RST.0141.0001.0138 |
ANNEXURE B
No. | Date | Document | Further information provided by REST in a letter to ASIC dated 24 November 2021 | REST’s submissions | Document ID |
Documents produced by Allens | |||||
1. | 19 April 2018 | Email from Michelle Levy (Allens) to Brenda Mills (REST) re “RE: 2018 04 19 MESC APRA and rollovers SW review.docx” | This correspondence relates to the drafting of a Member and Employer Services Committee (MESC) paper regarding REST’s response to APRA on its rollover processes. | This email and attachment relate to the drafting of the MESC paper. In this communication, Ms Levy is not advising on whether REST complied with the SIS regulations but rather advising on the drafting of the committee paper. As discussed above at paragraph 57, there is a real distinction between the two. This advice does not constitute external legal advice described in para 54(b) of the Statement of Defence, being external advice in relation to its rollover practices. Moreover, the advice REST received on drafting the committee paper does not contribute to REST’s understanding of the law or state of mind. | RST.0116.0001.3783 (source) |
2. | 19 April 2018 | Attachment: 2018 04 19 MESC APRA and rollovers SW review (2).DOCX | This correspondence relates to the drafting of a MESC paper regarding REST’s response to APRA on its rollover processes. | RST.0116.0001.3785 | |
3. | 30 April 2018 | Email from Michelle Levy (Allens) to Brenda Mills and Maria Li (REST) re “Confidential and privileged - APRA rollovers” | This correspondence relates to submitting a breach report where REST may have failed to rollover within the required time period. | Whether REST failed to process rollovers within the required time period is irrelevant to the proceedings. ASIC’s case is that REST made Representations which were misleading or deceptive, or false and misleading. ASIC has not pleaded that REST breached its obligations to rollover within a certain time period. Therefore, external legal advice on this topic is not subject to scrutiny in these proceedings. It does not contribute to REST’s state of mind nor is it external legal advice referred to in para 54(b) of the Statement of Defence. | RST.0116.0001.3719 |
4. | 30 April 2018 | Email from Michelle Levy (Allens) to Maria Li, Brenda Mills and Andrea Comini (REST) re “RE: Suggested changes and confirmation from business” | This correspondence relates to the drafting of a MESC paper and letter to APRA regarding the new business rules relating to Determination Member rollovers. | This correspondence relates to the drafting of a letter to APRA announcing REST’s resolution to amend the business rules in line with APRA’s interpretation of Division 6.5. A copy of the final letter sent to APRA on 3 May 2018 has previously been produced to ASIC. In addition, this correspondence also relates to drafting announcing the MESC’s endorsement of a change to the business rules. REST refers to its submissions above at items 1-2. | RST.0116.0001.3903 (source) |
5. | 30 April 2018 | Attachment: 2018 04 26 APRA rollovers.DOCX | This correspondence relates to the drafting of a letter to APRA regarding the new business rules relating to Determination Member rollovers. | RST.0116.0001.3905 (attachment) | |
6. | 1 May 2018 | Email from Michelle Levy (Allens) to Maria Li and Brenda Mills (REST) re “RE: Confidential and privileged - APRA rollovers” | This correspondence relates to submitting a breach report where REST may have failed to rollover within a required time period. | This email chain is a continuation of the communication at item 3. In this communication, Ms Levy is advising on whether REST has an obligation to prepare an incident report and whether the matter is reportable to APRA. This advice is irrelevant to the proceedings. | RST.0116.0001.3826 |
Documents produced by MinterEllison | |||||
7. | 7 September 2016 | Email from B Mills to M Girgis, “FW: Incidents for review/assessment” with attachments | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0075 MIN.500.001.0076 MIN.500.001.0079 MIN.500.001.0081 MIN.500.001.0082 MIN.500.001.0083 MIN.500.001.0084 MIN.500.001.0085 MIN.500.001.0089 MIN.500.001.0094 MIN.500.001.0095 MIN.500.001.0098 MIN.500.001.0103 MIN.500.001.0107 MIN.500.001.0111 |
8. | 12 September 2016 | Email from M Girgis to A Bradley, “FW: Incidents for review/assessment” with attachments | This correspondence relates to various incidents. | This is an internal communication of MinterEllison. It relates to various incidents unrelated to the proceedings. REST refers to its submissions above at paragraphs 44-45. | MIN.500.001.0330 MIN.500.001.0331 MIN.500.001.0334 MIN.500.001.0336 MIN.500.001.0337 MIN.500.001.0338 MIN.500.001.0339 MIN.500.001.0340 MIN.500.001.0344 MIN.500.001.0349 MIN.500.001.0350 MIN.500.001.0353 MIN.500.001.0358 MIN.500.001.0362 MIN.500.001.0366 |
9. | 14 September 2016 | Email from A Bradley to B Mills, “RE: Incidents for review/assessment” | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0481 |
10. | 15 September 2016 | Email from B Mills to A Bradley, “RE: Incidents for review/assessment” | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0619 |
11. | 31 October 2016 | Email from M Li to M Girgis, “estimates to review incident reports” with attachments | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0696 MIN.500.001.0697 MIN.500.001.0702 MIN.500.001.0706 |
12. | 31 October 2016 | Email from M Girgis to A Bradley, “Fwd: estimates to review incident reports” with attachments | This correspondence relates to various incidents. | This is an internal communication of MinterEllison. It relates to various incidents unrelated to the proceedings. REST refers to its submissions above at paragraphs 44-45. | MIN.500.001.0805 MIN.500.001.0807 MIN.500.001.0808 MIN.500.001.0809 MIN.500.001.0810 |
13. | 7 November 2016 | Email from A Bradley to M Li, “FW: estimates to review incident reports” with attachments | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.002.0001 MIN.500.002.0016 MIN.500.002.0022 |
14. | 8 November 2016 | Email from A Bradley to M Li, “RE: estimates to review incident reports” | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0832 |
15. | 8 November 2016 | Email from M Li to A Bradley, “RE: estimates to review incident reports” | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0836 |
16. | 17 November 2016 | Email from M Li to A Bradley, “RE: Incidents for review/assessment” | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0840 |
17. | 6 December 2016 | Email from A Bradley to B Mills, “RE: Incidents for review/assessment” | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0115 |
18. | 13 December 2016 | Email from B Mills to A Bradley, “Fwd: REST Breach Assessment” with attachments | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0127 MIN.500.001.0129 MIN.500.001.0130 MIN.500.001.0131 MIN.500.001.0133 MIN.500.001.0134 MIN.500.001.0135 MIN.500.001.0136 MIN.500.001.0137 |
19. | 13 December 2016 | Email from A Bradley to B Mills, “RE: Incident/Breach update please” with attachments | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0179 MIN.500.001.0182 MIN.500.001.0194 |
20. | 19 December 2016 | Email from M Li to A Bradley, “REST Breach Assessment” with attachments | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0197 MIN.500.001.0199 MIN.500.001.0200 MIN.500.001.0202 MIN.500.001.0203 MIN.500.001.0204 MIN.500.001.0205 MIN.500.001.0206 MIN.500.001.0207 MIN.500.001.0208 MIN.500.001.0209 MIN.500.001.0211 MIN.500.001.0215 MIN.500.001.0219 MIN.500.001.0223 MIN.500.001.0227 MIN.500.001.0228 MIN.500.001.0234 MIN.500.001.0238 MIN.500.001.0241 |
21. | 20 December 2016 | Email from A Bradley to A Choi, “FW: REST Breach Assessment” with attachments | This correspondence relates to various incidents. | This is an internal communication of MinterEllison. It relates to various incidents unrelated to the proceedings. REST refers to its submissions above at paragraphs 44-45. | MIN.500.001.0851 MIN.500.001.0853 MIN.500.001.0854 MIN.500.001.0856 MIN.500.001.0857 MIN.500.001.0858 MIN.500.001.0859 MIN.500.001.0860 MIN.500.001.0861 MIN.500.001.0862 MIN.500.001.0863 MIN.500.001.0865 MIN.500.001.0869 MIN.500.001.0873 MIN.500.001.0877 MIN.500.001.0881 MIN.500.001.0882 MIN.500.001.0883 MIN.500.001.0889 MIN.500.001.0893 MIN.500.001.0896 |
22. | 22 December 2016 | Email from A Choi to A Bradley, “RE: REST Breach Assessment” with attachments | This correspondence relates to various incidents. | This is an internal communication of MinterEllison and has not been seen by REST. In addition, it relates to various incidents wholly unrelated to the proceedings. REST refers to its submissions above at paragraphs 44-45. | MIN.500.001.0243 MIN.500.001.0253 MIN.500.001.0256 MIN.500.001.0258 MIN.500.001.0262 MIN.500.001.0263 MIN.500.001.0265 MIN.500.001.0266 MIN.500.001.0267 MIN.500.001.0268 MIN.500.001.0269 MIN.500.001.0270 MIN.500.001.0271 MIN.500.001.0272 MIN.500.001.0274 MIN.500.001.0278 MIN.500.001.0282 MIN.500.001.0286 MIN.500.001.0290 MIN.500.001.0291 |
23. | 23 December 2016 | Email from A Bradley to M Li, “RE: REST Breach Assessment” | This correspondence relates to various incidents and REST’s compensation methodology. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0307 |
24. | 16 February 2018 | Email from B Mills to M Girgis, “FW: REST portability request for information” | This correspondence relates to historic correspondence with APRA on REST’s portability arrangements. | REST refers to its submissions at paragraphs 47-55. | MIN.500.001.0316 |
25. | 16 February 2018 | Email from B Mills to M Girgis, “FW: REST portability request for information” | This correspondence relates to historic correspondence with APRA on REST’s portability arrangements. | REST refers to its submissions at paragraphs 47-55. | MIN.500.001.0320 |
26. | 16 February 2018 | Email from M Girgis to B Mills, “RE: REST portability request for information” | This correspondence relates to historic correspondence with APRA on REST’s portability arrangements. | REST refers to its submissions at paragraphs 47-55. | MIN.500.001.0325 |
27. | 16 February 2018 | Email from B Mills to M Girgis, “FW: REST portability request for information” | This correspondence relates to historic correspondence with APRA on REST’s portability arrangements. | REST refers to its submissions at paragraphs 47-55. | MIN.500.001.0001 |
28. | 16 February 2018 | Email from B Mills to M Girgis, “FW: REST Rollover process [DLM=For-Official-Use- Only]” | This correspondence relates to historic correspondence with APRA on REST’s portability arrangements. | REST refers to its submissions at paragraphs 47-55. | MIN.500.001.0370 |
29. | 16 February 2018 | Email from B Mills to M Girgis, “FW: REST portability request for information” | This correspondence relates to historic correspondence with APRA on REST’s portability arrangements. | REST refers to its submissions at paragraphs 47-55. | MIN.500.001.0006 |
30. | 16 February 2018 | Email from B Mills to M Girgis, “FW: REST Rollover process [DLM=For-Official-Use- Only]” | This correspondence relates to historic correspondence with APRA on REST’s portability arrangements. | REST refers to its submissions at paragraphs 47-55. | MIN.500.001.0010 |
31. | 23 February 2018 | Email from B Mills to M Girgis, “FW: REST Rollover process [DLM=For-Official-Use-Only]” with attachment | This correspondence relates to drafting a letter to APRA regarding its rollover practices. | REST refers to its submissions at paragraphs 47-55. | MIN.500.001.0373 MIN.500.001.0376 |
32. | 23 February 2018 | Email from M Girgis to I Mukarev, “FW: REST Rollover process [DLM=For-Official- Use-Only]” with attachment | This correspondence relates to drafting a letter to APRA regarding its rollover practices. | This is an internal communication of MinterEllison. REST refers to its submissions at paragraphs 44, 47-55. | MIN.500.001.0380 MIN.500.001.0383 |
33. | 23 February 2018 | Email from M Girgis to I Mukarev, “FW: REST Rollover process [DLM=For-Official- Use-Only]” | This correspondence relates to a draft email to APRA seeking an extension to respond to APRA regarding REST’s rollover practices. | This is an internal communication of MinterEllison. REST refers to its submissions at paragraphs 44, 47-55. | MIN.500.001.0387 |
34. | 23 February 2018 | Email from M Girgis to B Mills, “RE: REST Rollover process [DLM=For-Official-Use- Only]” | This correspondence relates to a draft email to APRA seeking an extension to respond to APRA regarding REST’s rollover practices. | REST refers to its submissions at paragraphs 47-55. | MIN.500.001.0391 |
35. | 24 February 2018 | Email from B Mills to M Girgis, “Re: REST Rollover process [DLM=For-Official-Use- Only]” with attachments | This correspondence relates to a draft email to APRA seeking an extension to respond to APRA regarding REST’s rollover practices. | REST refers to its submissions at paragraphs 47-55. | MIN.500.001.0394 MIN.500.001.0398 MIN.500.001.0399 MIN.500.001.0400 MIN.500.001.0401 MIN.500.001.0402 MIN.500.001.0403 |
36. | 26 February 2018 | Email from M Taylor to A Bradley and M Girgis, “Incidents” with attachments | This correspondence relates to various incidents and a class action. | This communication relates to various incidents, and a class action funding agreement for a shareholder class action against the Commonwealth Bank. This communication is wholly unrelated to the proceedings. REST refers to its submissions above at paragraph 45. | MIN.500.001.0404 MIN.500.001.0406 MIN.500.001.0410 MIN.500.001.0414 MIN.500.001.0418 MIN.500.001.0463 |
37. | 26 February 2018 | Email from A Bradley to I Mukarev, “Fwd: Incidents” with attachments | This correspondence relates to various incidents and a class action. | This is an internal communication of MinterEllison and has not been seen by REST. In addition, it relates to various incidents wholly unrelated to the proceedings. REST refers to its submissions above at paragraphs 44-45. | MIN.500.001.0489 MIN.500.001.0491 MIN.500.001.0492 MIN.500.001.0493 MIN.500.001.0494 MIN.500.001.0495 MIN.500.001.0496 MIN.500.001.0497 MIN.500.001.0498 MIN.500.001.0499 MIN.500.001.0500 MIN.500.001.0501 MIN.500.001.0505 MIN.500.001.0506 MIN.500.001.0510 MIN.500.001.0511 MIN.500.001.0515 MIN.500.001.0516 |
38. | 26 February 2018 | Email from I Mukarev to M Girgis, “RE: REST Rollover process [DLM=For-Official- Use-Only] [ME-ME.FID4265679]” with attachment | This correspondence relates to drafting a letter to APRA regarding its rollover practices. | This is an internal communication of MinterEllison and has not been seen by REST. REST refers to its submissions at paragraphs 44, 47-55. | MIN.500.001.0581 MIN.500.001.0584 |
39. | 28 February 2018 | Email from I Mukarev to A Bradley, “RE: Incidents [ME-ME.FID3514119]” with attachment | This correspondence relates to various incidents. | This is an internal communication of MinterEllison and has not been seen by REST. In addition, it relates to various incidents wholly unrelated to the proceedings. REST refers to its submissions above at paragraphs 44-45. | MIN.500.001.0585 MIN.500.001.0587 |
40. | 28 February 2018 | Email from I Mukarev to A Bradley, “RE: Incidents [ME-ME.FID3514119]” with attachment | This correspondence relates to various incidents. | This is an internal communication of MinterEllison and has not been seen by REST. In addition, it relates to various incidents wholly unrelated to the proceedings. REST refers to its submissions above at paragraphs 44-45. | MIN.500.001.0590 MIN.500.001.0592 |
41. | 28 February 2018 | Email from B Mills to M Girgis, “FW: REST rollover process” | This correspondence relates to further correspondence with APRA re SIS obligations. | REST refers to its submissions at paragraphs 47-55. | MIN.500.001.0595 |
42. | 28 February 2018 | Email from M Girgis to I Mukarev, “FW: REST rollover process” | This correspondence relates to further correspondence with APRA re SIS obligations. | REST refers to its submissions at paragraphs 47-55. | MIN.500.001.0598 |
43. | 28 February 2018 | Tax Invoice from Minters to REST | Not necessary. | This invoice relates to work undertaken in relation to the incident reports, which are wholly unrelated to the proceedings. REST refers to its submissions above at paragraph 45. | MIN.500.001.0019 |
44. | 1 March 2018 | Email from A Bradley to M Taylor, “RE: Incidents” | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0601 |
45. | 1 March 2018 | Email from A Bradley to M Taylor, “RE: Incidents” | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0605 |
46. | 2 March 2018 | Email from M Girgis to B Mills, “REST’s response to APRA regarding rollover procedures [ME-ME.FID4265679]” with attachment | This correspondence relates to drafting a letter to APRA regarding REST’s SIS obligations. | REST refers to its submissions at paragraphs 47-55. | MIN.500.001.0609 MIN.500.001.0610 |
47. | 2 March 2018 | Email from I Mukarev to M Girgis, “REST’s response to APRA regarding rollover procedures [ME-ME.FID4265679]” with attachment | This correspondence relates to drafting a letter to APRA regarding REST’s SIS obligations. | REST refers to its submissions at paragraphs 47-55. | MIN.500.001.0614 MIN.500.001.0615 |
48. | 5 March 2018 | Email from M Taylor to A Bradley, “RE: Incidents 137092 and 137150” with attachments | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0628 MIN.500.001.0633 MIN.500.001.0637 |
49. | 5 March 2018 | Email from B Mills to M Girgis, “Rollover letter” with attachment | This correspondence relates to drafting a letter to APRA regarding REST’s SIS obligations. | REST refers to its submissions at paragraphs 47-55. | MIN.500.001.0641 MIN.500.001.0643 |
50. | 5 March 2018 | Email from M Girgis to B Mills, “FW: Rollover letter [ME-ME.FID4265679]” with attachment | This correspondence relates to drafting a letter to APRA regarding REST’s SIS obligations. | REST refers to its submissions at paragraphs 47-55. | MIN.500.001.0647 MIN.500.001.0649 |
51. | 5 March 2018 | Email from A Bradley to I Mukarev, “FW: Incidents 137092 and 137150” with attachments | This correspondence relates to various incidents. | This is an internal communication of MinterEllison and has not been seen by REST. In addition, it relates to various incidents wholly unrelated to the proceedings. REST refers to its submissions above at paragraphs 44-45. | MIN.500.001.0653 MIN.500.001.0658 MIN.500.001.0662 |
52. | 6 March 2018 | Email from I Mukarev to A Bradley, “RE: Incidents 137092 and 137150 [ME- ME.FID3514119]” with attachment | This correspondence relates to various incidents. | This is an internal communication of MinterEllison and has not been seen by REST. In addition, it relates to various incidents wholly unrelated to the proceedings. REST refers to its submissions above at paragraphs 44-45. | MIN.500.001.0666 MIN.500.001.0672 |
53. | 14 March 2018 | Email from A Bradley to M Taylor, “RE: Incidents 137092 and 137150 [ME- ME.FID3514119]” | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0675 |
54. | 14 March 2018 | Email from A Bradley to M Taylor, “RE: Incidents 137092 and 137150 [ME- ME.FID3514119]” | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0682 |
55. | 20 March 2018 | Email from M Taylor to A Bradley, “FW: Incidents 137092 and 137150 [ME- ME.FID3514119]” | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0689 |
56. | 28 March 2018 | Tax Invoice from Minters to REST | Not necessary. | This invoice relates to work undertaken in relation to the incident reports, which are wholly unrelated to the proceedings. REST refers to its submissions above at paragraph 45. | MIN.500.001.0024 |
57. | 9 April 2018 | Email from M Taylor to A Bradley, “RE: Incidents 137092 and 137150 [ME-ME.FID3514119]” with attachment | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0707 MIN.500.001.0715 |
58. | 9 April 2018 | Email from A Bradley to I Mukarev, “FW: Incidents 137092 and 137150 [ME- ME.FID3514119]” with attachment | This correspondence relates to various incidents. | This is an internal communication of MinterEllison and has not been seen by REST. In addition, it relates to various incidents wholly unrelated to the proceedings. REST refers to its submissions above at paragraphs 44-45. | MIN.500.001.0719 MIN.500.001.0727 |
59. | 9 April 2018 | Email from I Mukarev to A Bradley, “RE: Incidents 137092 and 137150 [ME- ME.FID3514119]” with attachment | This correspondence relates to various incidents. | This is an internal communication of MinterEllison and has not been seen by REST. In addition, it relates to various incidents wholly unrelated to the proceedings. REST refers to its submissions above at paragraphs 44-45. | MIN.500.001.0731 MIN.500.001.0739 |
60. | 9 April 2018 | Email from A Bradley to M Taylor, “RE: Incidents 137092 and 137150 [ME- ME.FID3514119]” | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0741 |
61. | 10 April 2018 | Email from A Bradley to M Taylor, “RE: Incidents 137092 and 137150 [ME- ME.FID3514119]” | This correspondence relates to various incidents. | REST refers to its submissions above at paragraph 45. This correspondence relates to various incidents which are unrelated to the proceedings. | MIN.500.001.0750 |
62. | 16 April 2018 | Email from I Mukarev to A Bradley, “RE: Minor trust, SCT and Incident assistance [ME-ME.FID3514119]” with attachment | This correspondence relates to establishing minor trusts, death benefit payment and an incident report. | This is an internal communication of MinterEllison. Moreover, it relates to subject matters which are wholly irrelevant to the proceedings, namely establishing minor trusts, death benefit payments and a technical incident. [REST] refers to its submissions above at paragraphs 44-45. | MIN.500.001.0760 MIN.500.001.0762 |
63. | 16 April 2018 | Email from M Taylor to A Bradley, “Consulting Agreement and Incident” with attachments | This correspondence relates to an incident and a consulting contract. | This correspondence relates to a technical incident and a consulting contract to provide facilities maintenance. These documents are wholly irrelevant to the proceedings. REST refers to its submissions above at paragraph 45. | MIN.500.001.0764 MIN.500.001.0766 MIN.500.001.0771 MIN.500.001.0796 |
64. | 17 April 2018 | Email from I Mukarev to A Bradley, “RE: Consulting Agreement and Incident [ME- ME.FID3514119]” with attachment | This correspondence relates to an incident and a consulting contract. | This is an internal communication of MinterEllison. Moreover, it relates to subject matters which are wholly irrelevant to the proceedings, namely a technical incident and consulting contract for facilities maintenance. REST refers to its submissions above at paragraphs 44-45. | MIN.500.001.0799 MIN.500.001.0801 |
65. | 18 April 2018 | Email from A Bradley to M Taylor, “RE: Consulting Agreement and Incident” | This correspondence relates to an incident and a consulting contract. | This correspondence is a continuation of the email chain at item 63. It concerns subject matter wholly irrelevant to the proceedings. REST refers to its submissions above at paragraphs 44-45. | MIN.500.001.0802 |
66. | 30 April 2018 | Tax Invoice from Minters to REST | Not necessary. | This invoice relates to work undertaken in relation to the incident reports, which are wholly unrelated to the proceedings. REST refers to its submissions above at paragraph 45. | MIN.500.001.0058 |
67. | 30 May 2018 | Tax Invoice from Minters to REST | Not necessary. | This invoice relates to work undertaken in relation to the incident reports, which are wholly unrelated to the proceedings. REST refers to its submissions above at paragraphs 45 and 59. | MIN.500.001.0045 |
68. | 21 August 2018 | Email from A Bradley to M Li, “RE: Draft reply to APRA” | This correspondence relates to drafting a letter to APRA regarding remediation of customers. | See paragraph 60 above. This communication relates to a further draft letter to APRA. This communication was brought into existence after 2 May 2018 and could not have contributed to the formation of REST’s state of mind and does not constitute external legal advice relied on by REST. | MIN.500.001.0829 |
Documents produced by DLA Piper | |||||
69. | Unknown | 12.1.3 Unapplicable Transfer Protocol Out Claims | Not necessary. | This communication sets out the rules the administrator must follow in respect to unapplicable transfer protocol out claims in a variety of scenarios. REST has already produced to ASIC portions of the document which it considered privilege had been waived. The redacted sections relate to irrelevant scenarios. | DLA.0002.0001.0358 |
70. | Unknown | Document titled ‘REST Lost Members’ by Peter Charteris | This document is a mark-up of REST’s Lost Members Guide for AAS. | The document is a draft of REST’s Lost Members Guide for REST’s administrator. It has been annotated by Peter Charteris and therefore is an internal communication. It is irrelevant to the proceedings. | DLA.0002.0001.0519 |
71. | 9 September 2005 | Letter from Peter Charteris (Phillips Fox) to Brenda Mills (REST) re Portability rules | Not necessary. | This communication is a cover letter by Peter Charteris to enclose the draft business rules. REST has already produced portions of the document which are relevant to the proceedings. The redacted sections relate to release of liabilities and a signed acknowledgement form, which are topics irrelevant to the proceedings. | DLA.0001.0001.0076 (electronic) DLA.0002.0001.0007 (hard copy) |
72. | 14 September 2005 | File prepared by Peter Charteris titled 115033832_1 | This document is a portability acknowledgement form. | This communication is a portability acknowledgement form. This document is wholly irrelevant to the proceedings and does not relate to the Representations alleged by ASIC. | DLA.0001.0001.0074 |
73. | 19 September 2005 | Emails between Deirdre Nhan (DLA Piper) and Joanne Pelc (REST) re “REST Industry PDS – unconditional sign-off” | Not necessary. | This communication is an email chain between REST and its advisers regarding the sign-off of its PDS. REST has already produced portions of the document which it considers privilege has been waived. Redactions relate to advice or requests for advice regarding “Family Law Fee” and unrelated amendments to the PDS. | DLA.0001.0001.0011 (email chain only) DLA.0002.0001.0099 (contains attachment) DLA.0002.0001.0124 (different attachment) |
74. | 9 December 2005 | Document titled “Request for more information AMP Flexible Lifetime Super Plan No 919672165” | This correspondence relates to AMP’s rejection of the REST transfer protocol form. | This is a letter from AMP informing REST that it had rejected REST’s transfer protocol form as AMP considered that it did not contain information required under the SIS Regulations. The letter has been annotated by Peter Charteris and is therefore an internal communication. It is irrelevant to the proceedings and does not at all relate to the Representations alleged by ASIC. | DLA.0002.0001.0064 |
75. | 23 December 2005 | Document titled “AMP rejection of REST transfer form” | This correspondence relates to AMP’s rejection of the REST transfer protocol form. | This is a letter of advice from Peter Charteris regarding AMP’s rejection of the REST transfer protocol form on the basis that AMP considered that it did not contain information required under the SIS Regulations. It is irrelevant to the proceedings and does not at all relate to the Representations alleged by ASIC. | DLA.0002.0001.0051 |
76. | 9 February 2006 | Document titled “115257212_1” prepared by Peter Charteris (Phillips Fox) to Brenda Mills (REST) | This is correspondence regarding notification obligations on rollover or transfer of withdrawal benefits. | This communication is a letter of advice from Peter Charteris regarding REST’s notification obligations to members when they request to rollover or transfer their withdrawal benefits. It is irrelevant to the proceedings and does not at all relate to Representations alleged by ASIC. | DLA.0001.0001.0280 |
77. | 13 September 2007 | Document titled “RE: Emailing: BHA Response to 9 Jul letter.zip” from Peter Charteris to Brenda Mills | This correspondence relates to the Boots Health Care Australia Plan. | This communication is an email chain enclosing a revised letter to APRA. REST is corresponding with APRA in regards to the Boots Health Care Australia Plan sub-plan of REST and its surplus. It is irrelevant to the proceedings and does not relate to Representations alleged by ASIC. | DLA.0002.0001.0195 |
78. | 19 September 2007 | Document titled “Super Update September 2007” from Peter Charteris to Brenda Mills | This correspondence relates to the Super Update – personalise the portability form. | This correspondence relates to a SuperUpdate on personalising the portability form by applying a logo. It is irrelevant to the proceedings and does not at all relate to Representations alleged by ASIC. | DLA.0002.0001.0295 |
79. | 8 December 2008 (4:45pm) | Email from Maria Li (REST) to Peter Charteris (DLA Phillips Fox) forwarding written queries from APRA concerning portability | Not necessary. | The redaction in this document is over an annotation by Peter Charteris in connection with “AML KYC rules”. The annotation has not been seen by REST and is irrelevant to the proceedings | DLA.0002.0001.0189 |
80. | 10 December 2008 | Letter from DLA Phillips Fox to REST re “REST portability procedures” | Not necessary. | This communication is a draft letter of advice from Peter Charteris. REST has already produced to ASIC portions of the document which it considers privilege has been waived. The redacted section relates AML KYC rules, which is irrelevant to the proceedings. | DLA.0001.0001.0057 (attachment) DLA.0001.0001.0081 DLA.0002.0001.0326 DLA.0002.0001.0408 |
81. | 27 January 2009 | Document titled “RE: Superannuation transfer form” from Tze Ting Liew to Brenda Mills and Peter Charteris | This correspondence relates to insurance declarations on the Superannuation transfer form. | This communication relates to insurance declarations on the Superannuation transfer form. Insurance declarations are irrelevant to the proceedings. | DLA.0002.0001.0009 |
82. | 29 January 2009 | Email from Leanne North on behalf of Peter Charteris (DLA Phillips Fox) to Brenda Mills (REST) re “APRA portability complaint investigation – breach of ancillary regulation” | Not necessary. | The cover email encloses two letters. The first letter is a letter of advice from Peter Charteris. REST has redacted this letter as it relates to REST’s obligation to rollover within a certain time period pursuant to SIS reg 6.33. This subject is irrelevant to the proceedings. The second letter is draft letter to APRA prepared by Peter Charteris. The redaction refers to external legal advice received in relation to SIS reg 6.33. | DLA.0002.0001.0149 |
83. | 8 November 2012 | Document titled “Stakeholders sign off” | This correspondence relates to stakeholder sign off for various application forms. | This communication is a stakeholder signoff by Peter Chateris in relation to various application forms. For example, there is an application form to make an investment choice. This proceeding relates to rollover forms not application forms. | DLA.0002.0001.0567 |
84. | 12 November 2012 | Document titled “FW: Seeking legal advice re incident AAS/12-261” | This correspondence relates to an incident involving Superannuation Surcharge. | This communication relates to an incident involving Superannuation Surcharge, which is wholly unrelated to the proceedings. | DLA.0002.0001.0283 |
85. | 14 November 2012 | Document titled “Stakeholders sign off” | This document relates to the REST Pension Form to transfer part of the member’s Superannuation and Tax File Number Declaration. | This communication is a stakeholder sign off by Peter Charteris in relation to the Tax File Number Declaration form and the REST Pension form to transfer part of the member’s super fund into their REST Pension, REST Personal or REST superannuation. These forms are irrelevant to the proceedings. | DLA.0002.0001.0545 |
86. | 23 January 2013 | Email from Leanne Harvey on behalf of Peter Charteris (DLA Piper) to Brenda Mills (REST) re New portability rules in Division 6.5 of the SIS Regs and AML | This cover email encloses legal advice. | The host email attaches a letter of advice from Peter Charteris regarding “New Portability Rules in Division 6.5 of the SIS Regs and AML”, a mark-up of REST’s AML/CTF program, and a BMP file. REST has produced to ASIC a redacted copy of the letter of advice as REST considers privilege to be waived over certain portions. REST maintains privilege over other aspects of the advice which deal with subject matter unrelated to the proceedings, such as anti-money laundering. Similarly, the mark-up of REST’s policy is wholly unrelated to the proceedings as it relates to anti-money laundering and counter-terrorism financing. The BMP file is privileged as it attached to a privilege host. | DLA.0001.0001.0103 (host) |
87. | 23 January 2013 | Attachment: Letter from Peter Charteris (DLA Piper) to Brenda Mills (REST) re New Portability Rules in Division 6.5 of the SIS Regs and AML | Not necessary | DLA.0001.0001.0104 (attachment) | |
88. | 23 January 2013 | Attachment: Document titled 1202335021_1_AUMatters(REST AML-CTF Program 2012 (for 2013 – Draft Copy – 18 12 11) Part I) | Mark-up of REST’s AML/CTF Policy. | DLA.0001.0001.0109 (attachment) | |
89. | 23 January 2013 | Attachment: Embedded BMP | BMP file. | DLA.0001.0001.0185 (attachment) | |
90. | 23 January 2013 (estimated) | Title “New portability rules in Division 6.5 of the Regs and AML”. Large bundle which includes above letter from Charteris dated 23 January 2013 | For reference, this document is duplicate of DLA.0001.0001.0103 and its attachments (see row 87 above). | See above item 87. | DLA.0002.0001.0429 |
91. | 25 January 2013 | Document titled 1202195449_2 prepared by Peter Charteris (DLA Piper) to Brenda Mills (REST) | This document is an early working draft of DLA.0001.0001.0104 (see item 87 above). | This document is an internal working draft. As it is an internal document, it has not been seen by REST and therefore could not have impacted REST’s state of mind and does not constitute external legal advice received by REST. See paragraph 44 above. | DLA.0001.0001.0186 |
92. | 15 July 2014 | Email from Paul Howard (REST) to Peter Charteris (DLA Piper) re REST – Members covered under EB’s – SCT jurisdiction. | Not necessary. | REST had already produced to ASIC portions of this communication over which REST considered privilege to be waived. The redacted content relates to separate advice regarding SCT’s authority. | DLA.0001.0001.0202 (source) |
93. | 21 July 2014 | Attachment: Letter of advice from Peter Charteris (DLA Piper) to Paul Howard (REST) re Coles Bilo Victoria EBA and Fund Portability. | Not necessary. | DLA.0001.0001.0200 (attachment) | |
94. | 22 July 2014 | Attachment: Revised letter of advice from Peter Charteris (DLA Piper) to Paul Howard (REST) re Coles Bilo Victoria EBA and Fund Portability. | Not necessary. | See above items 92 and 93 | DLA.0001.0001.0197 (attachment) |
95. | 22 July 2014 | Attachment: Final letter of advice from Peter Charteris (DLA Piper) to Paul Howard (REST) re Coles Bilo Victoria EBA and Fund Portability. | Not necessary. | DLA.0001.0001.0276 (attachment) | |
