Secrecy surrounds ANZ court challenge to FMA

Monday, 27 November 2017

ANZ clashed with the Financial Markets Authority over the extent of the regulator's powers at Auckland High Court on Monday.

ANZ Bank has gone to court in a move that could hinder a Financial Markets Authority (FMA) investigation.

But the High Court in Auckland has pulled a temporary veil of secrecy over the judicial review brought by ANZ against the FMA.

ANZ wants to prevent the Financial Markets Authority from using some documents it got from the bank in a 'confidential conference' to help it decide whether to take a live investigation further.

In a hearing in Auckland on Monday, the court heard the FMA had used its powers to force the ANZ to hand over bank account records as part of a live investigation.

The financial markets watchdog wants to 'disclose' the documents in a confidential consultation with an external expert to help decide whether it should take its investigation further.

ANZ said the Financial Markets Act, which governs the use of the FMA's extensive evidence-gathering powers, did not permit the FMA to do that.

The FMA said it was within its rights to do so, while the ANZ opposed disclosure and said the FMA would be 'in breach of confidence' if it did.

After the hearing, the FMA said pending a further court order, only limited detail from the case could be reported.

This included that ANZ had brought the judicial review application and breach of confidence claim against the FMA, concerning the interpretation of the FMA's powers under the Financial Markets Act.

Media was also allowed to report that the FMA had obtained documents – bank records and documents derived from those records – from ANZ, and intended to disclose some of the documents to other parties, which it said was for 'confidential consultation in a current investigation, including consultation about a possible action by them'.

This included a 'Section 34' case, where the FMA is able to take a case on behalf of investors, whether they want it to or not.