Event Register

Identifying and complying with fiduciary duties in the financial sector

Halfday seminar 20 September, 2024

Hon Justice Ashley Black, Supreme Court of NSW; Associate Professor Scott Donald, School of Private and Commercial Law, UNSW Law & Justice; Professor Simone Degeling, School of Private and Commercial Law, UNSW Law & Justice; Professor Dimity Kingsford Smith, UNSW; Sarah Yu, Partner, King Wood Malllesons; Joanna Bird, Regulatory Consultant; Sarah Hill, 4 Selborne Chambers (Chair)

Dixson Room, Mitchell Wing, NSW State Library

09:00AM to 12:30PM

Please note that in-person bookings have closed. However, online streaming bookings are still open. If you're happy to attend via Zoom, please contact memberservices@cla.org.au

Speakers and Program:
Welcome
Sarah Hill, 4 Selborne Chambers; President, Commercial Law Association (Chair)

Session one:
Keynote address
Hon Justice Ashley Black, Supreme Court of NSW
Fiduciary duties in the financial sector


Session two:
Variations on a theme, or a melodic scale?
Customer-regarding duties in the Australian financial services sector

Associate Professor Scott Donald, School of Private and Commercial Law, UNSW Law & Justice


Parliament has repeatedly sought over the past three decades to give statutory protection to customers of the financial services industry using terminology or concepts that have echoes in equitable doctrine. This paper considers the superannuation, financial advice, investment funds, consumer credit and life insurance regimes in particular. It argues that they can be arrayed across a spectrum spanning from caveat emptor at one extreme to something beyond fiduciary obligation at the other. The paper further argues that each regime’s place on the spectrum represents a normative judgment that has emerged from intense contestation in the reform process about the extent of personal responsibility that customers ought to take in different circumstances. Finally, the paper identifies the complexity arising in more recent times from regulatory initiatives (including licensing and FAR) that create additional, but not wholly harmonious, layers of obligation for market participants.


Session three:
Financial sector and fiduciaries panel discussion focussing on:
• Compliance

• Enforcement
• Remediation

Professor Simone Degeling, School of Private and Commercial Law, UNSW Law & Justice (Panel Chair)
Professor Dimity Kingsford Smith, 
School of Private and Commercial Law, UNSW Law & Justice
Sarah Yu, Partner, King & Wood Mallesons
Joanna Bird, Regulatory Consultant and Adjunct Professor, 
School of Private and Commercial Law, UNSW Law & Justice

Closing remarks
Sarah Hill and Professor Simone Degeling


The seminar will be recorded. 3 CPD points

In collaboration with the UNSW School of Private and Commercial Law



Speaker biographies:
Hon Justice Ashley Black
His Honour was previously a dispute resolution partner at Mallesons Stephen Jaques where he practised primarily in commercial litigation and financial services regulation. He was admitted as a solicitor in 1987 and was a Judge's Associate in the Federal Court of Australia in 1988.
 
Associate Professor Scott Donald
Scott Donald is an Associate Professor in the School of Private and Commercial Law at UNSW. Scott joined the faculty in 2010 after a successful career in the funds management industry advising governments, superannuation funds, insurance companies and fund managers on investment strategy, governance and regulation. Scott teaches corporations, trusts and superannuation law at both undergraduate and post-graduate level. He regularly presents at academic, professional and industry conferences in Australia and overseas and publishes in both the academic and professional press on research related to financial services regulation, governance and superannuation policy.
 
Professor Simone Degeling
Simone Degeling is a Professor of Law at UNSW Law, Australia. She is an expert in private law specialising in equity & trusts, remedies, the law of restitution and unjust enrichment and the intersection of civil procedure and private law doctrine.
Simone is a Fellow of The Australian Academy of Law and the General Editor of the Journal of Equity.  Additionally, she is a member of the Editorial Board of the Journal of Commonwealth Law, the Advisory Board of the SSRN eJournal of Fiduciary Law, a Fellow of The Australian Centre for Private Law, University of Queensland and a member of the Academic Committee of the Banking and Financial Services Law Association. She is the Co-Director of the UNSW Law Private Law Policy & Research Group and was previously the Private Law Research Leader of the IMF Bentham Class Actions Initiative at UNSW Law.
Simone has written, co written or co-edited books on unjust enrichment and restitution law, equity and trusts, tort, remedies and contract. She has also published articles and essays on equity and trusts, unjust enrichment and restitution law, contract, tort and remedies. Simone teaches and accepts research students in equity and trusts, remedies and the law of restitution and unjust enrichment. Prior to her academic career, Simone worked as a commercial lawyer specialising in Banking and Finance law.
 
Professor Dimity Kingsford Smith
Professor Kingsford Smith’s research and publication is in the areas of corporate law and governance, financial regulation and regulatory theory and policy. The subject matter of her research ranges from director’s duties, through theory and practice of financial regulation, to empirical work on online investing and more recently the deterrent effects of enforcement using enforceable undertakings.
 
Professor Kingsford Smith joined UNSW Law in January 2005.Before joining UNSW Law Professor Kingsford Smith was professor and Director of the Centre for Law in the Digital Economy at Monash Law from 2001-2004. She previously held appointments at the University of Sydney (1990-2000) and in the UK at University College London (1986-1989) and University of Warwick (1985-1986). She was a sabbatical visitor at the London School of Economics and Political Science Law Department in 1999 and at the University of British Columbia in 2012.
 
Professor Kingsford Smith has also served on a variety of policymaking, professional and regulatory bodies. She contributed to the Wallis Inquiry submission of the NSW Law Society in 1996. In 2013 and 2014 she made submissions to the Senate Inquiry into the Performance of ASIC and two written submissions to the Murray Inquiry into the Australian Financial System, focusing on fairness and the position of the financial consumer. From 2011-2017 she was a member of the Code Committee of the New Zealand Financial Markets Authority. From 2007-2014 she was the inaugural independent Chair of the Conduct Review Commission, a professional disciplinary panel in the financial services industry. From early 2015 until late 2017 she was the first independent Customer Advocate to the wealth business of the National Australia Bank.
In the development of the Future of Financial Advice program Professor Kingsford Smith served on an ASIC taskforce considering the establishment of a professional standards body for financial advisers, and reforms to their education and professional formation. From 2015 – 2019 Professor Kingsford Smith was a member of the ASIC External Advisory Panel. She served on a Taskforce considering ASIC Enforcement for Australian Commonwealth Treasury (2016-2017) and was an independent expert on a panel reviewing enforcement for APRA (2018-2019). From 2018-2021 Prof Kingsford Smith held the Minter Ellison Chair in Risk and Regulation. Since mid-2022 She has been the Director of Higher Degree Research in the Faculty of Law & Justice. 
 
Sarah Yu
Sarah is a market leading financial services Partner at King & Wood Mallesons who specialises in superannuation and insurance, with an impressive legal practice of more than 25+ years spanning regulatory, advisory, transactional and disputes work. She advises leading wealth management institutions, banks, life and general insurance companies, and retail, industry and corporate superannuation funds. Sarah helps financial institutions simplify complex legal issues and navigate technical and strategic regulatory aspects of legal work. Her commitment extends to the wider industry and sector, through her active contribution to ASFA and CALI through their education programs and advocacy.
 
Joanna Bird
Joanna has had a successful career as a regulator at the Australian Securities and Investments Commission, holding senior roles in the Strategy, Regulatory Policy and Supervisory areas.  She was the Executive Director Financial Services and Wealth, leading a multi-disciplinary team of over 300, with responsibility for the Banking and Payments, Insurance, Superannuation, Investment Management, Financial Advice and Licensing teams. 
 
Joanna’s career as a regulator is underpinned by an academic career, lecturing and writing in the areas of financial services law, regulation and corporate governance.
 
She is currently working as a regulatory consultant, advising foreign financial services regulators, and teaching at the University of New South Wales and Monash University. 
 
Sarah Hill
Sarah Hill was admitted as a Lawyer in 2003 before being called to the NSW Bar in 2004. She graduated from Sydney University with Honours. Sarah practises in a variety of areas including equity, commercial law, wills & probate, and trusts.


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