Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369

Advised and appeared for key witness, Ms Fiona Brown, former Chief of Staff to Senator Linda Reynolds and Director of Operations for the Prime Minister Scott Morrison, instructed by Russell Kennedy.

Also acted for Ms Brown in connection with the 2021 Australian Federal Police investigation of the alleged sexual assault of Ms Higgins, the inquiry by the Secretary of the Department of Prime Minister and Cabinet (the ‘Gaetjens Inquiry’), and related issues.

Judgment:

Media coverage:

ASIC v RM Capital & The SMSF Club [2024] FCA 151

Appeared for The SMSF Club, instructed by Hall & Wilcox.

Enforcement proceedings for pecuniary penalties & compliance orders in connection with alleged contraventions of s 963G Corporations Act 2001 (Cth) in relation to acceptance of conflicted remuneration by authorised representative.

Heard on July 2021 and March 2022. Further hearing to be listed in November 2024.

Judgment:

Media coverage:

Muffett v Qantas Superannuation Ltd [2024] FCA 39

Appeared for Qantas Superannuation Ltd as trustee of Qantas Super, instructed by King & Wood Mallesons.

Successful defence of appeal by member of the Australian and International Pilots Association against determination by the Australian Financial Complaints Authority to confirm trustee’s decision was fair and reasonable as to the calculation of defined benefit entitlements for long haul crews.

Heard by Yates J on 15 November 2023.

Judgment:

Media coverage:

Re AUSCOAL Superannuation atf the Mine Superannuation Fund [2024] NSWSC 32

Appeared for the trustee of Mine Super, instructed by Mills Oakley.

Successful application pursuant to s 63 of the Trustee Act 1925 (NSW) for the Court’s opinion, advice or direction as to the administration and management of Mine Super and merger with TWUSuper.

Heard by Robb J (sitting as Equity Duty Judge) between 6 and 17 November 2023.

Judgment:

Media coverage:

Nature's Care Holdings v Chen [2024] NSWSC 14

Appeared for Nature’s Care Group, instructed by Clifford Chance.

Successful interlocutory injunction in support of claim for breaches of fiduciary duty involving former directors and officers of a vitamin manufacturer and exporter.

Heard by Rees J on 22 and 23 January 2023, sitting as Vacation Judge.

Judgment:

Media coverage:

Royal Commission into the Robodebt Scheme

Advised and appeared for the Commonwealth of Australia, leading a team of 9 junior counsel, instructed by the Australian Government Solicitor, supported by Clayton Utz (Services Australia), Minter Ellison (Department of Social Services) and Ashurst (Australian Taxation Office).

Public hearings were held in Brisbane, Queensland between 31 October - 11 November 2022; 5 - 16 December 2022; 23 January - 3 February 2023; and 20 February - 10 March 2023.

The Royal Commissioner, the Hon. Catherine Holmes SC (former Chief Justice of Queensland), delivered her report to the Governor-General on 7 July 2023.

The Robodebt Scheme was a method of automated debt assessment and recovery implemented as part of he Australian Government’s Centrelink payment compliance program. The Scheme aimed to replace the formerly manual system of calculating overpayments and issuing debt notices to welfare recipients with an automated data-matching system that compared Centrelink records with averaged income data from the Australian Taxation Office.

The Scheme had been the subject of an investigation by the Commonwealth Ombudsman, two Senate committee inquiries and several legal challenges. Ultimately, the Federal Court declared the Scheme unlawful and approved a A$1.8 billion settlement including repayments of debts paid, wiping of outstanding debts, and legal costs.

https://robodebt.royalcommission.gov.au

Media coverage:

abrdn Australia Ltd & abrdn Asia PLC (NSWSC Proceeding No. 2023/00185684)

Appeared for the abrdn Group, instructed by Minter Ellison.

Successful application for consent pursuant to s 249E of the Crimes Act 1900 (NSW) to the offering, receiving, giving and soliciting of financial benefits as part of a change in responsible entity across the Australian fund book of global investment managers abrdn Australia and its Singapore parent company abrdn Asia, comprising 10 registered managed investment schemes and $1.5 billion funds in management.

Heard by Rees J on 20 June 2023 (judgment unreported).

Media coverage:

Sweeney v AFCA & NULIS Nominees (Australia) Ltd [2022] FCA 1525

Appeared for the trustee of the MLC Super Fund, instructed by Minter Ellison.

Successful defence of purported appeal of decision by the Australian Financial Complaints Authority.

APPEAL – notice of objection to competency – where applicant filed a notice of appeal pursuant to s 1057 of the Corporations Act 2001 (Cth) – proceeding dismissed

Judgment:

Mercy Super v Attorney-General for the State of Queensland & Attorney-General for the State of Victoria [2022] QSC 221

Appeared for the Mercy Super Trustee, instructed by Ashurst.

Successful application for declaratory relief and judicial advice.

STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – DECLARATIONS – APPROPRIATE FORM OF RELIEF – DISCRETION OF COURT – where the applicants are both trustees for registrable superannuation entities, Mercy Super and the HESTA Superannuation Fund – where the applicants propose to effect a successor fund transfer of the members of Mercy Super Fund and their assets to the HESTA Superannuation Fund – where the proposed successor fund transfer involves the transfer of Mercy Super members, their benefits and matching assets to HESTA – where the transferred assets are not impressed with the first trust, but rather a new trust defined and constituted by the terms of the successor fund transfer deed and the governing rules of the successor fund – where neither trustee relies on a power of appointment in the transaction documents – where s. 442F of the Criminal Code (Qld) and s. 180 of the Crimes Act 1958 (Vic) prohibit secret commissions to trustees in return for substituted appointment – where the applicants seek a declaration that the proposed successor fund transfer is not a substituted appointment – where the applicants argue that the proposed successor fund transfer does not involve the replacement or substitution of a trustee – where the parties and APRA did not submit that the Court lacked jurisdiction to make the declaration sought – whether a declaration should be made that the proposed successor fund transfer is not a substituted appointment for the purposes of s. 442F of the Criminal Code (Qld) and s. 180 of the Crimes Act 1958 (Vic)

EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – where the applicants alternatively seek assent or directions of the Court in respect of the proposed successor funds transfer – whether the Court should direct that the applicants are justified in effecting the proposed successor funds transfer

Judgment:

Media coverage:

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Re Energy Industries Superannuation Scheme [2022] NSWSC 1202

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Appeared for trustee, instructed by Dentons.

Successful application for judicial advice.

EQUITY — Trusts and trustees — Judicial advice under s 63 of the Trustee Act 1925 (NSW) — Whether trustee may insert amendments to trust deed of superannuation fund to give power to charge fee — Where capital reserve sought to enable trustee to meet potential liabilities from recent changes to regulatory environment

Also acted in relation to regulatory investigations by the Australian Securities and Investments Commission and the Australian Prudential Regulation Authorities, instructed by Dentons.

Judgment:

Media coverage:

Re SCS Super Pty Limited atf Australian Catholic Superannuation and Retirement Fund [2022] NSWSC 686

Appeared for the trustee, instructed by Minter Ellison.

Successful application for judicial advice.

EQUITY –Trusts and trustees – Judicial advice under s 63 of the Trustee Act 1925 (NSW) – Where proposed amendment to Trust Deed to give trustee power to insert trustee remuneration clause – Where application responds to recent changes to legal and regulatory environment and is sought to enable trustee to meet potential liabilities against it and its directors – Where trustee is not-for-profit company with nominal capital – Whether proposed amendments consistent with recent amendments to ss 56(2) and 57(2) of the Superannuation Industry (Supervision) Act 1993 (Cth) and duties of the trustee.

Judgment:

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ICAC Operation Ember (Roads and Maritime Services) (2019-2022)

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Appeared for the Roads and Maritime Services agency (Transport for NSW), instructed by Norton Rose Fulbright.

This public inquiry by the NSW Independent Commission Against Corruption was part of an investigation into the State Government’s Roads and Maritime Services agency (subsequently part of Transport for NSW) and allegations concerning two employees and how they exercised their official functions when awarding government contracts for the Heavy Vehicle Safety program.

The contract work included scoping studies, field trials and the supply of equipment and parts. Two contracts awarded in 2018 for the replacement of RMS’ portable weigh scale assets totalled over $9 million in value. The ICAC also investigated the adequacy of RMS’ corruption prevention policies and procedures. 

Public hearings were conducted between May and October 2019. Extensive written submissions were exchanged between the parties in 2020. The report of the Commissioner was published on 20 May 2022.

Also appeared in related civil proceedings, initially commenced on an urgent ex parte basis, in which RMS/TfNSW successfully obtained injunctions and freezing orders against contractors the subject of the ICAC investigation. Those proceedings were ultimately resolved favourably, securing repayment of substantial amounts of public money.

https://www.icac.nsw.gov.au/investigations/current-investigations/2019/operation-ember

https://www.icac.nsw.gov.au/media-centre/media-releases/2022-media-releases/icac-finds-former-rms-manager-corrupt-for-awarding-over-12-2-million-in-work-to-benefit-friends-and-himself

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ASIC v Westpac Banking Corporation [2022] FCA 515; (2022) 159 ACSR 381

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Appeared for ASIC, instructed by Australian Government Solicitor.

CORPORATIONS – provision of financial services – regulatory proceedings – six proceedings brought by the Australian Securities and Investments Commission – contraventions by Westpac Banking Corporation and its subsidiaries – numerous breaches of the Corporations Act 2001 (Cth) and Australian Securities and Investments Commission Act 2001 (Cth) – dealings with de-registered company accounts and funds held therein – charging of advice fees to accounts of deceased customers – charging of contribution fees with respect to investment or superannuation products without proper disclosure documents – improper provision and charging for duplicate insurance policies to customers – insurance policies issued without consent – false and misleading representations and misleading and deceptive representations concerning the sale to debt purchasers of customers’ debts relating to Westpac-branded cards, Westpac-branded loans and St George-branded cards – improper deduction of insurance fees including commissions – conflicted remuneration – assessment of pecuniary penalties and other relief – financial services laws – breaches of Australian financial services licence – non-compliance with s 912A of the Corporations Act – contraventions of ss 12CB, 12DA, 12DB, 12DI and 12DM of the ASIC Act – contraventions of ss 912A, 962P, 963K and 1041H of the Corporations Act – orders and declarations made in each of the six proceedings.

Judgment:

Media coverage:

CFMEU v Master Builders Queensland and Building Unions Superannuation Scheme (Queensland) Pty Ltd [2022] FCA 283 and related actions by APRA

Appeared for trustee of BUSSQ superannuation scheme, instructed by Thomson Geer.

CORPORATIONS – consideration of the question of costs in relation to a proceeding concerning the Trustee of a superannuation scheme and provisions in relation to the filling of vacancies on the Board of the Trustee of the Scheme

COSTS – consideration of the principles to be applied in exercising the discretion as to costs in circumstances where a proceeding has been resolved and a notice of discontinuance filed (subject to costs) a relatively short time prior to the date for the hearing of the proceeding

Judgment:

Media coverage:

Re NGS Super [2021] NSWSC 1694

Appeared for trustee of Non-Government Schools superannuation scheme, instructed by Minter Ellison.

Successful application for judicial advice.

EQUITY – Trusts and trustees – Judicial advice under s 63 of the Trustee Act 1925 (NSW) – where proposed amendments to trust deed of industry superannuation fund give trustee power to be paid and retain remuneration – where amendments sought to enable trustee to meet potential liabilities against it and its directors – where trustee is not-for-profit company with nominal capital – where trust deed contains existing remuneration power – whether proposed amendments consistent with recent amendments to ss 56(2) and 57(2) of the Superannuation Industry (Supervision) Act 1993 (Cth) and duties of the trustee

Judgment:

Media coverage:

Re Care Super (No 2) [2021] VSC 854

Appeared for trustee of Clerical Administrative and Retail Employees superannuation scheme, instructed by Mills Oakley.

Successful application for judicial advice as to exercise of remuneration power.

EQUITY – Judicial advice – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 54.02 – Trust Deed provided for trustee to be remunerated for the bona fide provision of services to the Fund on such basis as the trustee determines to be ‘fair and reasonable’ – Whether trustee justified in determining a fair and reasonable fee for services including by reference to a risk that penalties may be imposed under Commonwealth legislation for which the trustee cannot be indemnified under the Superannuation Industry (Supervision) Act 1993 (Cth) ss 56(2) and 57(2) – Whether the trustee satisfied the Court to a reasonable degree of satisfaction that the exercise or the proposed exercise of the power under the remuneration clause was not improper for the purpose of giving judicial advice – Whether the trustee satisfied the Court to a reasonable degree of satisfaction that the exercise or proposed exercise was consistent with the judicial advice sought – Advice provided.

Judgment:

Media coverage:

Re Care Super (No 1) [2021] VSC 805

Appeared for trustee of Clerical Administrative and Retail Employees superannuation scheme, instructed by Mills Oakley.

Successful application for judicial advice as to lost trust deed and ownership of trustee shares.

EQUITY – Judicial advice – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 54.02 – Jurisdiction of court to provide advice – Factors relevant to discretion to provide advice – Degree of satisfaction required before the court should give advice – When court may provide advice even though advice affects persons not represented at hearing.

JUDICIAL ADVICE – Advice sought that consolidated deed the operative deed of the trust – Not all copies of amending deeds available – Degree of satisfaction required before the court should give advice – Presumption of regularity – Court satisfied to a reasonable degree of satisfaction on inferences and presumption of regularity – Advice provided.

JUDICIAL ADVICE – Advice sought that shares in plaintiff trustee held by directors of plaintiff personally and not on behalf of trust – Court satisfied to a reasonable degree of satisfaction that shares held personally – Advice provided.

JUDICIAL ADVICE – Whether trustee justified in determining a fee for services including by reference to a risk that penalties may be imposed under Commonwealth legislation for which the trustee cannot be indemnified under Superannuation Industry (Supervision) Act 1993 (Cth) ss 56(2) and 57(2) – Fee so determined not in contravention of the Superannuation Industry (Supervision) Act 1993 (Cth) – Whether plaintiff established that it intended to determine fee in accordance with judicial advice – Whether court would exercise discretion to give advice when the plaintiff did not establish that it intended to determine fee in accordance with judicial advice – Advice refused.

Judgment:

Re QSuper Board [2021] QSC 276

Appeared for the statutory trustee of QSuper, the Queensland Public Sector Superannuation Scheme, instructed by King & Wood Mallesons.

Successful application for judicial advice.

SUPERANNUATION – PUBLIC SERVICE FUNDS – where the applicant board is a body corporate board created by the Superannuation (State Public Sector) Act 1990 (Qld) – where the board administered a scheme established by a deed for the provision of superannuation benefits from a fund – where the board acted as the trustee for the fund – where the individual members of the board are themselves trustees by the same Act – where the deed can be amended by the board – where the board owed covenants to act in the best financial interests of its beneficiaries and prioritise those beneficiaries’ interests over others in the event of a conflict – where, due to amendments to relevant legislation, the breach of trustee covenants attracted increased civil penalties under the Superannuation Industry (Supervision) Act 1993 (Cth) – where the same reforms prohibited the trustees from obtaining an indemnity or exemption from such liability from the trust fund – where the applicant proposed to amend the deed to allow it to remunerate itself from the trust fund to create a contingency fund that could be used to pay fines, penalties and similar liabilities arising from the new legislation – whether the board is justified in consenting to the proposed amendment

SUPERANNUATION – PUBLIC SERVICE FUNDS – where s 96(2) of the Trusts Act 1973 (Qld) refers to “all persons interested in the application or such of them as the court thinks expedient” – where the fund has over 600,000 members – where the applicant notified each of the member associations that nominated board members about the application – where notifying all members of the fund would cost around $275,000.00 – whether wider notification of members is required.

EVIDENCE – NON-PUBLICATION OF EVIDENCE – PARTICULAR CASES – where the applicant relied upon legal advice, including the opinions of counsel, in the judicial advice application – where the applicant relied on commercially sensitive information in the judicial advice application – whether documents should be sealed on the court file or otherwise subject to redactions

Judgment:

Media coverage:

In re DSHE Holdings Limited [2021] NSWSC 608

Appeared for the deed administrators McGrath Nicol, instructed by Norton Rose Fulbright.

Successful application for termination of DOCA and administrator’s remuneration.

CORPORATIONS — deed of company arrangement — scope of power under s 90-15 of the Insolvency Practice Schedule — application for orders to facilitate the deregistration of the company without any intervening winding up — orders refused

CORPORATIONS — deed of company arrangement — orders terminating the deed of company arrangement — orders under s 447A of the Corporations Act 2001 (Cth) modifying the operation of the winding up regime created by s 446AA in relation to reporting to creditors

CORPORATIONS — deed of company arrangement — remuneration of deed administrator – where the remuneration claimed exceeds the total creditors’ claims

Judgment:

In re Ovato Print Group (application for scheme of arrangement)

Advising the Commonwealth, instructed by Norton Rose Fulbright.

By its implementation of the scheme established by the Fair Entitlements Guarantee Act 2012 (Cth), the Commonwealth Government provides financial assistance to eligible employees who lose their job due to the liquidation of their employer. The underlying public policy objective of the FEG Scheme is for it to constitute a safety net scheme of last resort for eligible, redundant workers.

These proceedings raised potentially significant public policy implications in the interplay between schemes of arrangement proposed pursuant to sections 411 and 413 of the Corporations Act 2001 (Cth) and the implementation of the FEG Scheme, particularly in the context of the fiscal support provided by the Commonwealth Government to corporate Australia during the COVID-19 pandemic. Whilst the Court recognised the novel nature of the interplay between the Ovato Schemes and the FEG Scheme, ultimately the Commonwealth did not oppose the application for approval of these schemes of arrangement, and the Court decided not to refuse to approve the Ovato Schemes on public policy grounds.

For further information, see NRF’s note and the judgments of Black J following the initial Convening Hearing and final Sanction Hearing.

Contact Clerk (Sarah Tiffen): Email: clerk@5wentworth.com Phone: +61 2 8066 6111 Urgent Assistance: +61 416 697 853