- In the Final Report from the Banking Royal Commission, Commissioner Hayne gives an instructive discussion about the role of ASIC and how litigation is to be used in relation to enforcement, including why settlement may not be a
desirable outcome. However, much of what is said also applies more generally to civil litigation.
- Effective litigation requires clarity as to what is sought to be achieved by the client, the facts that can be proved and the ramifications in law of demonstrating those facts.
- Effective dispute resolution, consistent with court and ethics rules, requires consideration of whether there are non-litigious avenues that could achieve a more effective and efficient outcome, i.e. an outcome that would better satisfy the client’s interests and reduce cost and delay.
Most of 2018 was punctuated with revelations of misconduct by bankers and financial advisers at the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. The Royal Commission was presided over by Kenneth Hayne, former justice of the High Court of Australia. The final report from the Royal Commission was released on 4 February 2019.
The Report spends many pages addressing the misconduct revealed in the hearings and laying out recommendations for reform. Of interest here is Commissioner Hayne’s consideration of the Australian Securities and Investment Commission’s (‘ASIC‘) approach to enforcement, and in particular, its predisposition towards negotiated outcomes rather than litigation.