Inside the Dover judgement

Dover Financial Advisers was slapped with a penalty of $1.2 million while Terry McMaster was ordered to pay $240,000 over Dover’s Client Protection Policy – despite Federal Court Justice Michael O’Bryan finding it was “unlikely that any consumers suffered loss or damage as a result of the contravening conduct”.

“In my view, the Client Protection Policy had real potential to mislead consumers into believing that they had no legal recourse against Dover in respect of financial advice given to them when that was not the case,” Justice O’Bryan said in his judgement.

“Such an erroneous belief could have caused consumers very great loss. While the evidence shows that, in the period before the conduct was stopped by the intervention of ASIC, it was unlikely that consumers had suffered loss, the seriousness of the contravention must also be assessed by the loss that the conduct had the potential to occasion.”

Justice O’Bryan had previously labelled the client protection policy “highly misleading” and “an exercise in Orwellian doublespeak” when Dover was found guilty of making false, misleading or deceptive statements in 2019.

“Throughout 2018 and 2019 ASIC’s Enforcement Group repeatedly threatened each of Dover and Terry McMaster with fines totalling well above a billion dollars. One may ask why,” Mr McMaster said.

“We note his Honour’s finding it is unlikely a consumer suffered a loss as a result of the CPP, that Dover did not derive a gain from it, was not aware the CPP breached the law and that Dover co-operated with ASIC (although obviously Dover defended itself in court).”

Mr McMaster said that Dover accepted the decision and will pay fines and costs as directed, but cannot comment further due to “Dover’s ongoing legal action against its former legal advisers”. In deciding the penalty, Justice O’Bryan said that Mr McMaster had displayed “little if any contrition for the wrongdoing”.

“In cross-examination at the penalty hearing, Mr McMaster maintained that if ASIC had expressed its concerns about the Client Protection Policy to Dover in a timely manner, Dover would have stopped its misleading conduct immediately at that time. Mr McMaster maintained that ASIC was at least partially to blame for Dover’s contraventions,” Justice O’Bryan said in his decision.

“Mr McMaster continues to hold the views expressed above. Given the lack of documentary support for those views, I find that the views have arisen from Mr McMaster’s unwillingness to accept responsibility for the wrongdoing the subject of this proceeding and desire to blame others, particularly ASIC, for the events that occurred.”

ASIC welcomed the judgement, saying the purpose of the client protection policy was “to exclude or limit Dover’s liabilities to clients to its own financial benefit”.

“The significant penalties handed down today demonstrate the seriousness of this misconduct and will act as a deterrent to others who believe they can get away with similar behaviour,” said ASIC commissioner Danielle Press.