Australian Securities and Investments Commission v Retail Employees Superannuation Pty Ltd

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.

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

                              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.                                                                                                                                                                                                                                                                                                                                                                               RST.0116.0001.3783 (source)
                                                                                                                                                                                                                                                                                                                                                                                                             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.

                              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

                              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.                                                                                                                           RST.0116.0001.3719
                                                                                                                                                                                                                                                                                                                                                                                                             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.

                              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.                                           RST.0116.0001.3903 (source)
                                                                                                                                                                                                                                                                                                                                                                                                             REST refers to its submissions above at items 1-2.

                              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)

                              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.                                                                                                                                                                                                                                                                                                                                                                                RST.0116.0001.3826
                                                                                                                                                                                                                                                                                                                                                                                                             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.

Documents produced by MinterEllison 7. 7 September 2016 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 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 10. 15 September 2016 11. 31 October 2016 MIN.500.001.0697 MIN.500.001.0702 MIN.500.001.0706 12. 31 October 2016 MIN.500.001.0807 MIN.500.001.0808 MIN.500.001.0809 MIN.500.001.0810 13. 7 November 2016 MIN.500.002.0016 MIN.500.002.0022 14. 8 November 2016 15. 8 November 2016 16. 17 November 2016 17. 6 December 2016 18. 13 December 2016 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 MIN.500.001.0182 MIN.500.001.0194 20. 19 December 2016 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 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 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 24. 16 February 2018 25. 16 February 2018 26. 16 February 2018 27. 16 February 2018 28. 16 February 2018 29. 16 February 2018 30. 16 February 2018 31. 23 February 2018 MIN.500.001.0376 32. 23 February 2018 MIN.500.001.0383 33. 23 February 2018 34. 23 February 2018 35. 24 February 2018 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 MIN.500.001.0406 MIN.500.001.0410 MIN.500.001.0414 MIN.500.001.0418 MIN.500.001.0463 37. 26 February 2018 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 MIN.500.001.0584 39. 28 February 2018 MIN.500.001.0587 40. 28 February 2018 MIN.500.001.0592 41. 28 February 2018 42. 28 February 2018 43. 28 February 2018 44. 1 March 2018 45. 1 March 2018 46. 2 March 2018 MIN.500.001.0610 47. 2 March 2018 MIN.500.001.0615 48. 5 March 2018 MIN.500.001.0633 MIN.500.001.0637 49. 5 March 2018 50. 5 March 2018 51. 5 March 2018 MIN.500.001.0658 MIN.500.001.0662 52. 6 March 2018 MIN.500.001.0672 53. 14 March 2018 54. 14 March 2018 55. 20 March 2018 56. 28 March 2018 57. 9 April 2018 MIN.500.001.0715 58. 9 April 2018 MIN.500.001.0727 59. 9 April 2018 MIN.500.001.0739 60. 9 April 2018 61. 10 April 2018 62. 16 April 2018 MIN.500.001.0762 63. 16 April 2018 MIN.500.001.0766 MIN.500.001.0771 MIN.500.001.0796 64. 17 April 2018 MIN.500.001.0801 65. 18 April 2018 66. 30 April 2018 67. 30 May 2018 68. 21 August 2018 Documents produced by DLA Piper 69. Unknown 70. Unknown 71. 9 September 2005 DLA.0002.0001.0007 (hard copy) 72. 14 September 2005 73. 19 September 2005 DLA.0002.0001.0099 (contains attachment) DLA.0002.0001.0124 (different attachment) 74. 9 December 2005 75. 23 December 2005 76. 9 February 2006 77. 13 September 2007 78. 19 September 2007 79. 8 December 2008 (4:45pm) 80. 10 December 2008 DLA.0001.0001.0081 DLA.0002.0001.0326 DLA.0002.0001.0408 81. 27 January 2009 82. 29 January 2009 83. 8 November 2012 84. 12 November 2012 85. 14 November 2012 86. 23 January 2013 REST has produced to ASIC a redacted copy of Similarly, the mark-up of REST's policy The BMP file is privileged as it attached to 87. 23 January 2013 (attachment) 88. 23 January 2013 (attachment) 89. 23 January 2013 (attachment) 90. 23 January 2013 (estimated) 91. 25 January 2013 92. 15 July 2014 93. 21 July 2014 94. 22 July 2014 95. 22 July 2014 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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) 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 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) 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 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 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 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 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 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 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) 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 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 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 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 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 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. DLA.0001.0001.0103 (host) 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. is wholly unrelated to the proceedings as it relates to anti-money laundering and counter-terrorism financing. a privilege host. 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: 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: Embedded BMP BMP file. DLA.0001.0001.0185 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 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 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) 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) 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) 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)

At a glance

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Before

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (7)