Tim Mullaly leads the ASIC teams that faked evidence and engaged in numerous other misleading and deceptive behaviours to get Dover to the Royal Commission. Tim Mullaly then has the hypocritical gall to publicly write that Terry McMaster is of poor fame and character and is likely to breach the law.

Think about that for a few moments… Tim knows his team  faked evidence. Tim has not done anything about it.

In late June 2018 ASIC forced Terry McMaster to sign an enforceable undertaking under section 93AA of the ASIC Act. ASIC threatened that if Terry did not sign this document ASIC would take more serious legal action against him. Terry had no choice but to sign. Tim Mullaly signed for ASIC. You can read the enforceable undertaking here: Enforceable Undertaking.

 

ASIC faked most of the evidence underpinning the enforceable undertaking 

ASIC’s investigators faked most of the evidence underpinning the enforceable undertaking. This included the evidence ASIC provided to the Hayne Royal Commission. This is detailed in earlier Friday Reflections on this website. We invite you to spend a few minutes browsing these documents and getting a handle on how bad the situation is before reading any further. Example of ASIC faking evidence: Example 3 – The advice of Terry McMaster is particularly blatant. Every sentence in ASIC’s Example 3 is a lie. Read it for yourself. The ASIC investigators made it up.  (Dover complained to ASIC about this months ago. Eric Alexiades from ASIC’s Professional Standards Unit is investigating. Eric is not making any progress.)

It is a breach of section 6 of the Royal Commission Act to provide misleading or deceptive evidence to a Royal Commission. The penalty is up to two years imprisonment. It’s a very serious matter. Because Royal Commissions are very serious matters.

What would Terry have done if he knew ASIC had faked its evidence?

If Terry had known then what he knows now he would never have signed ASIC’s enforceable undertaking. Terry would have referred ASIC to the Attorney General’s Office for investigation. That would have been the end of it. This is because ASIC based its statements in the enforceable undertaking on evidence it faked in 2016. ASIC then used its fake evidence for several sinister purposes. These included asking Treasury for increased powers and painting a  false picture about Dover and Terry at the Hayne Royal Commission. And creating a false base for the threats against Terry and the enforceable undertaking.

What would ASIC have been investigated for?

Tim Mullaly leads ASIC’s Financial Services Enforcement, or FSE, Unit. Tim’s title is “Executive Director Financial Services Enforcement”. Tim is well qualified: he has degrees in law and accounting, and is experienced in ASIC matters. Tim works closely with Joanna Bird. Her title is “Executive Director Wealth Management”, and she was previously the joint leader with ASIC’s Financial Advice, or FA, group. Joanna Bird is well qualified too. Joanna has a masters degree in law from Oxford University and previously worked as an academic at Sydney University. Tim Mullaly and Joanna Bird are smart operators. They know what they are doing. Tim Mullaly and Joanna Bird appear next to each other on ASIC’s organisational structure. They feature as senior and responsible ASIC executives

 

Tim Mullaly and Joanna Bird are fully informed of what went on with Dover before and after the Royal Commission. Tim Mullaly and Joanna Bird both know that:

  1. ASIC’s FA staff faked the evidence provided to ASIC’s FSE staff in late 2016 and early 2017. The provision of this evidence is described here: Stakeholder Referral to Financial Services Enforcement dated 29 March 2017. As you can read at paragraph 5, Tim’s team and Joanna’s team planned some very heavy action against Terry McMaster in late 2016 and early 2017. They recommended ASIC use Federal Court injunctions under section 1101B and 1324 of the Corporations Act to stop Terry providing financial advice and to close Dover. You can read an example of how ASIC’s FA staff faked the evidence for this recommendation here: Example of ASIC faking evidence: Example 3 – The advice of Terry McMaster. As you can read, ASIC’s Financial Advice investigators basically just made it all up. Not one sentence is true
  2. ASIC’s FSE staff then used this faked evidence to build a false case against Terry McMaster and Dover, and ultimately provided that fake evidence to the Hayne Royal Commission in late 2017. You can read about how they did this here: Financial Advice (FA) Unit’s Dover Discussion Paper dated 12 December 2016. This document includes the five faked case studies detailed elsewhere on this website.

To make it clear: each of the five case studies created by ASIC about Terry McMaster and Dover Financial Advice (FA) Unit’s Dover Discussion Paper dated 12 December 2016 is faked. How this happened is explained and detailed in the Friday Reflections posted on www.dover.com.au over the last few months.

Terry McMaster’s enforceable undertaking is based on evidence faked by ASIC

It follows that Terry McMaster’s enforceable undertaking is invalid because ASIC relied on faked evidence.

Tim Mullaly says some pretty nasty stuff about Terry McMaster. He says this nasty stuff even though he knows it is not true. For example, at paragraph 19 Tim writes that Terry is not of good fame and character, has impaired Dover’s ability to provide the Financial Services covered by its AFSL and is likely to contravene a Financial Services Law in the future.

Tim writes this despite knowing its based on faked evidence. What sort of a person does that?

So who is of poor fame and character?

Just reflect on that one for a moment. Ask who is of poor fame and character? Who has impaired their employer’s abilities under the financial services law? Who is likely to contravene the law again. Hint: it’s not Terry McMaster. Terry has not faked evidence. Terry has not provided  faked evidence to a Royal Commission. Terry has not used faked evidence to maliciously ruin someone’s business and reputation. Terry was not pleased to have unnecessarily damaged the business and reputation of 410 related financial planners but maliciously cutting their time to find a new AFSL to just 28 days. But ASIC was.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Terry McMaster requests a variation to his enforceable undertaking

Over the last six months or so Terry McMaster has written constantly to various persons at ASIC . This includes each of the seven ASIC Commissioners and most of ASIC’s Executive Directors including Tim Mullaly and Joanna Bird. These letters and emails proved ASIC faked the evidence it provided to the Royal Commission.

None of the seven ASIC Commissioners responded to Terry’s letters. They are too busy lecturing the public on how to behave. There is no time left to supervise their subordinate ASIC colleagues faking evidence, providing faked evidence Royal Commissions, and things like that. That is, for monitoring ASIC’s behaviours. Which is of course what they are paid to do. The seven ASIC Commissioners are ultimately responsible for ASIC’s behaviours and culture. But there is no evidence of that here: none have stepped up to own the problem.

Terry’s e-mail dated 6 July 2019

On Saturday 6 July 2018 Terry McMaster wrote to the seven ASIC Commissioners. Terry requested the ASIC Commissioners vary the enforceable undertaking. He asked them to delete the statements made by Tim Mullaly that Terry is not of good fame and character, had impaired Dover’s ability to provide the Financial Services covered by its AFSL and was likely to contravene a Financial Services Law in the future.

Terry explained Tim had no evidence for his statements. Tim had based his statements on evidence he knew was faked. Tim had just made it up. This, Terry explained, is serious stuff. Terry’s request included other reasons too This included Tim always being aware none of Dover’s 19,402 clients were misled by the client protection policy, but making it sound like there was massive damage when he knew there was none. And that Tim’s subordinates, ie ASIC’s FSE in-house lawyers, intentionally withheld their concerns about the client protection policy when Terry McMaster undertook to rectify any concerns they may have had on 1 June 2016. (ASICs’ FSE lawyers did this despite deciding a year earlier  the client protection policy was misleading and deceptive. They just did not bother to tell anyone, least of all Dover. They saved it for the Royal Commission. ASIC’s FSE lawyers worked under the close supervision of Tim Mullaly.)

You can read Terry’s email to the seven ASIC Commissioners below. It is reproduced in full.

Some good news at last

The good news is ASIC’s Commissioners finally responded. Not personally, of course. But via ASIC’s General Counsel, Chris Savundra. The Commissioners passed the section 93AA ASIC Act request to vary the enforceable undertaking on to ASIC’s in-house legal group. Chris is the boss of this group.

Chris is also overseeing the complaints lodged by Dover on 27 April 2018. This is a series of serious complaints about individual ASIC staff members, and an over-arching complaint that ASIC conspired to close Dover, using faked evidence. This complaint is being handled internally by ASIC’s Professional Standards Unit therefore we do not believe the investigation will be competent. ASIC will just try to whitewash itself.

Chris also oversees the ASIC lawyers who were involved with the fake evidence.

It will be interesting to see how Chris Savundra, and his boss Daniel Crennan QC, deal with the faked evidence issue. At a number of different levels. It’s a criminal offence to provide misleading or deceptive evidence to a Royal Commission, and this is what ASIC did. It’s also a criminal offence to cover up a criminal offence. So let’s see what happens next at ASIC.

Chris Savundra’s email dated Monday 8 July 2019

You can read Chris’s email dated Monday 8 July 2019 here:

 

You can read Terry McMaster’s email of Saturday 6 July 2019 here:

REPRODUCTION OF TERRY MCMASTER’S EMAIL REQUESTING A VARIATION TO HIS ENFORCEABLE UNDERTAKING

From: Terry McMaster <terry@tmclegal.com.au>
Date: Saturday, 6 July 2019 at 4:27 pm
To: “James.shipton@asic.gov.au” <James.shipton@asic.gov.au>, “daniel.crennan@asic.gov.au” <daniel.crennan@asic.gov.au>, “sean.hughes@asic.gov.au” <sean.hughes@asic.gov.au>, “karen.chester@asic.gov.au” <karen.chester@asic.gov.au>, “john.price@asic.gov.au” <john.price@asic.gov.au>, “danielle.press@asic.gov.au” danielle.press@asic.gov.au

Subject: Request to vary terms of an enforceable undertaking

This is a request for you to vary the enforceable undertaking Tim Mullaly signed on 28 June 2018. This request is made under section 93AA of the Australian Securities and Investments Commission Act 2001.

Any decision by you to not vary the enforceable undertaking will be referred to the Administrative Appeals Tribunal for administrative review. I hope you are sensible and agree the enforceable undertaking should be varied as set out below. This will save ASIC a large amount of costs and public shaming and criticism for faking its evidence. To be frank, I want the matter to go to the AAT. It will allow me to access the documents your FSE team have blocked via their control of my FOI requests.

You are requested to delete clause 19 of the enforceable undertaking and in particular to delete your concerns that I:

  1. am not of good fame and character
  2. impaired Dover’s ability to provide financial services and
  3. am likely to contravene a Financial Services Law in the future.

You are also requested to delete clauses 27 to 30 of the enforceable undertaking.

The reasons for this request are as set out in the following paragraphs.

Absence of evidence to support your statements

There is no genuine evidence to support your concerns as stated in clause 19. The evidence used by ASIC to make these statements was faked by ASIC staff.

Falsification of evidence by your ASIC colleagues

The evidence used by your colleagues in Examples 1 to 5 of the ASIC document “Parties with leave to appear workspace – Round 2” also known as “20161115 Dover Discussion Paper” is faked. The ASIC staff responsible for this faked evidence are Andrew Davison and Leah Sciacca. They and their FA and FSE supervisors, including Peter Kell and numerous other ASIC staff are involved in the creation and the suppression of the truth about this faked evidence.

The details of this faking of evidence have been provided to you previously. You can read it here: www.dover.com.au.

Dover’s solicitors were not concerned about the CPP

As you can read here: www.dover.com.au Dover engaged AFSL specialist law firms Sophie Grace, iMac Legal, Holley Nethercote and MLA Lawyers. None expressed any concerns that the Client Protection Policy was misleading and deceptive.

Sophie Grace was even good enough to red ink some suggested wording changes.

 

ASIC’s Financial Services Enforcement lawyers were not concerned about the CPP

As you know, when Terry McMaster asked ASIC to inform Dover of its compliance concerns, ASIC’s in-house lawyers stated its concerns “were around”:

  1. the appointment and on-going monitoring of representatives
  2. the quality of advice provided by representatives
  3. the steps taken by Dover to remediate any representative misconduct.

You can read what they had to say here:

 

No mention of Dover’s CPP or the 5 examples of fabricated evidence referred to above:

ASIC’s FSE lawyers did not mention all the nasty things Terry McMaster was supposed to be up to either. ASIC wanted to use section 1101B and section 1324 injunctions to close Dover down in 2016 and 2017. But for some strange reason Mr McAllister-Harris and his FSE colleagues choose to not mention these concerns in their letter of 6 June 2017. Matters they earnestly engaged in just a few months earlier, serious concerns about ASIC wanting to close Dover, were strangely omitted from ASIC’s 6 June 2017 letter: no mention of this at all.

Proposed enforcement action was based on faked evidence

The proposed enforcement action detailed above was based on evidence that had been fabricated by your colleagues. This breached numerous laws. It was also provided to the Royal Commission. This is a breach of the Royal Commission Act.

Peter Kell told your colleagues that he wanted Dover to be shut down based on the false evidence

Peter Kell told his team he wanted Dover to be shut down. You, Louise Macaulay and Joanna Bird’s teams did the rest. Faking ASIC evidence was just one small part of it.

(Strangely ASIC’s Freedom if Information team insist there is no further documentation about this engagement. Personally I do not believe them. It seems pretty weird that Peter Kell would direct the Financial Advice team and the Financial Services Enforcement team to close a very large AFSL and there would be no other written record of him doing so.)

ASIC’s Professional Standards Unit was not concerned about the CPP 

Eric Alexiades is the senior ASIC executive who leads your independent Professional Standards Unit. Eric insists the CPP was not of concern to ASIC, and that at 6 June 2017 ASIC’s concerns were only as expressed in its 6 June 2017 letter as reproduced above. Eric has confirmed this in writing. Eric is quoted as saying on or about 24 June 2019 in a letter to the Victorian Legal Services Board:

“At the time of the letter of 6 June 2017, ASIC’s concerns were as expressed in that letter. The letter also states that the concerns may change during the course of the investigation. The CPP was not the focus of the investigation in the early stages of the investigation.”

Eric is referring to the 6 June 2017 email prepared by  ASIC’s FSE lawyers and signed off by James McAllister-Harris as reproduced above. Eric confirms that at 6 June 2017 ASIC’s concerns were as expressed in that letter, ie ASIC’s concerns did not include the CPP (or, strangely, examples 1 to 5, ie the faked evidence).

ASIC’s Financial Advisory Operations Committee was not concerned by the CPP

On 20 November 2017 ASIC lawyers Christopher Newby and Lisa Saunders, with ASIC analyst Denise Dawson, reviewed dozens of Dover statements of advice. Many included the CPP. These senior ASIC investigators were looking for trouble if they could find it. Significantly, they did not raise any concerns about the CPP. They instead reached conclusions like:

“The file is comprehensive and well documented and there is a clear record of regular communication between the adviser and the clients. The advice is appropriate and in the best interests of the clients.”

In fact more than three hundred Dover statements of advice were reviewed this way up to late November 2017. More than three hundred times ASIC’s investigators concluded Dover’s advice was good without mentioning the CPP.

You can read this ASIC report here: ASIC’s findings on the work of Dover adviser Andrew Smith. This committee was trying hard to ban Andrew Smith. So its silence and acceptance of the CPP in his work, without adverse comment, is very significant. The date of 20 November 2017 is also significant: just before the Hayne Royal Commission was announced.

No one at ASIC was concerned about the CPP

Not one word about the CPP until the Royal Commission. No one at ASIC had any concerns about it. Contemporaneous documents from the Financial Advisory Group and the Financial Services Enforcement Group prove ASIC was not concerned about it. Eric Alexiades 24 June 2019 letter to the Victorian Legal Services Board confirms this is the case: Eric says the FSE group was not concerned about the CPP.

Dover provided legally privileged lawyers’ reports to ASIC in good faith in 2016. ASIC failed to advise Dover of its concerns. ASIC acted in bad faith.

ASIC’s misleading and deceptive conduct

As you know, (names deleted) made false, misleading and deceptive statements to the media to hide the fact your colleagues forced Dover to close.

As you know, other ASIC executives made similarly false, misleading and deceptive statements about the closure of Dover. They blatantly broke the law. These include (names deleted). It does not now lie in ASIC’s mouth to suggest I am of poor fame and character and likely to breach the financial services law.

More information

I have written an ebook on the above matters. This has been provided to you. Let me know if you need another copy.

Terry McMaster