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High Court clarifies the personal advice test

We have conducted training programs for fund managers for some years to help identify what communications with investors are authorised by their general advice authorisation and what may inadvertently stray into personal advice.  

However we were never really able to provide any certainty about how the courts would interpret the second limb of the personal advice definition in section 766B(3)(b) of the Corporations Act 2001 because it had never been considered by the superior courts.

We now have decisions from both the High Court and the Full Court of the Federal Court about how to interpret section 766B(3).

Section 766B(3) provides:

(3)  For the purposes of this Chapter, personal advice is financial product advice that is given or directed to a person (including by electronic means) in circumstances where:

(a)  the provider of the advice has considered one or more of the person's objectives, financial situation and needs (otherwise than for the purposes of compliance with the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 or with regulations, or AML/CTF Rules, under that Act); or

(b)  a reasonable person might expect the provider to have considered one or more of those matters.

Before this High Court decision, we did not know how the words “might expect the provider to have considered” would be interpreted.

The ASIC v Westpac proceedings

In October 2019 the Full Court of the Federal Court looked at the phone campaign conducted by Westpac and BT Funds Management with a view to ‘encouraging’ existing customers to roll their other superannuation accounts into the ones held by Westpac or BT.  The general advice warning had been provided each time.  All three judges found that Westpac had provided personal advice and our November 2019 article about that decision can be found here

Westpac appealed that decision to the High Court.  The High Court has now looked at section 766B(3) and provided the following interpretation of what it means:

  • The test is objective and will be assessed at the time the financial product advice was given and having regard to the circumstances in which that advice was given.  What would a reasonable person standing in the shoes of the person receiving the advice understand had been considered? 
  • The court will ask what a reasonable person might expect, not would expect. The standard is one of reasonable possibility, and not reasonable probability. 
  • “Considered” is given its ordinary meaning and is broadly construed to included where a reasonable person might expect the adviser to have “taken into account”, “had regard to”, or “given attention to” one or more of their objectives, financial situation or needs. 
  • A client’s objectives, financial situation and needs must be personal to them as opposed to being universal or generic. However, this does not mean advice would not be personal advice because it also applies to all or most other people in the client’s position.  

What does this mean for your business?

  • If your investors tell you anything about their objectives or their financial situation or their needs in the context of talking to them about a potential investment in one of your funds, then there is a significant risk the personal advice provisions of the Act will be triggered.
  • General advice disclaimers will not prevent a determination that the advice provided is personal advice in circumstances where a reasonable person might expect you to have considered one or more of the client’s objectives, financial situation or needs. 
  • Even if advice is not specifically charged for this will not preclude it from being construed as personal advice. Instead, the overall relationship between the adviser or fund manager and the client must be considered. 

Summary

ASIC Commissioner Danielle Press has stated that “[This] judgment will provide clear guidance to those financial institutions that develop campaigns to sell financial products through direct approaches to retail clients,” and confirmed ASIC is willing to bring enforcement against incorrectly and improperly-given personal financial product advice. 

Please contact Brendan Ivers, Brit Ibanez, James Crinion or Emily Pendlebury to discuss the delivery of general advice in your business or the case more generally.