Westpac Securities Administration Ltd v Australian Securities and Investments Commission

The High Court of Australia considered an appeal by Westpac Securities Administration Ltd and BT Funds Management Ltd (collectively, "Westpac") against a decision of the Full Federal Court. The dispute concerned whether financial product advice provided by Westpac to members of superannuation funds, of which Westpac was trustee, constituted "personal advice" under section 766B(3)(b) of the Corporations Act 2001 (Cth). Westpac had conducted a campaign to encourage existing members to roll over external superannuation accounts into their BT accounts, aiming to increase funds under management.

The central legal issue before the High Court was to determine the meaning and application of section 766B(3)(b) of the Corporations Act, which defines "personal advice" to include financial product advice given in circumstances where a reasonable person might expect the provider to have considered one or more of the recipient's objectives, financial situation, and needs. The Court was required to assess whether the interactions between Westpac's representatives and 14 members of the BT superannuation funds, which involved offering rollover services and discussing potential benefits, met this definition.

The High Court reasoned that the ordinary and natural meaning of the text of section 766B(3)(b) was paramount. It noted that the Supplementary Explanatory Memorandum to the relevant Bill indicated that the provision was intended to capture situations where advice was given that, while not explicitly detailing the client's financial situation, was presented in a manner that suggested such consideration. The Court found that the communications and telephone calls from Westpac's Super Activation Team, despite including disclaimers about the general nature of the advice, were structured in a way that a reasonable person would expect their personal circumstances to have been considered, particularly given the offer to facilitate rollovers and the discussion of benefits. The Court agreed with the Full Federal Court's interpretation that the advice given was personal advice.

The appeal was dismissed with costs.