Whistleblower Timeline

1985

On the 25 March 1985 accepted offer of employment with a subsidiary company of Elders IXL Limited after a promise was made as to my superannuation entitlements. Contract of Employment confirms entitlement to become a member of the Elder IXL Superannuation Fund after a qualifying period of employment with a member contribution rate of 5% of salary.

2006

Contact of Employment terminated on 18 October 2006 after over 21 years of service.

2007

Contacted the purported corporate Trustee, CCSL Limited, seeking access to the original Trust Deed made on the 23 December 1913 plus access to all Deeds of Variation executed on or before 25 March 1985 which would confirm the promise that had been made to me as to what my superannuation entitlement would be before I accepted the offer of employment.

In December 2013 lodged a Complaint with Superannuation Complaints Tribunal, however discovered Tribunal lacks jurisdiction to deal with complaints alleging Breach of Trust, since the “separation of powers” doctrine derived from the Australian Constitution prevents the Tribunal which is established under Chapter II from dealing with complaints where a trustee has acted unlawfully. The Tribunal can only deal with complaints where a trustee has acted lawfully, but has made a decisions that may be impugned on the grounds that while lawful was “unfair or unreasonable”.

The Complaint was withdrawn due to a lack of jurisdiction.

Tribunal recommends contacting APRA.

2008

After contacting APRA, I received a letter dated 15 July 2008 from the former Fund Secretary confirming request received a year earlier in January 2007. However instead of providing a copy of the original Trust Deed and copies of all Deeds of Variation executed on or before 25 March 1985 (or being allowed to photocopy these documents) pursuant subsection 1017C(5) of the Corporations Act 2001, the former Fund Secretary makes the following representation:

Lodge further complaints with APRA who then advise that ASIC should be contracted concerning the contravention of the Corporations Act 2001.

2009

Contacted ASIC in March 2009 seeking to ASIC enforce subsection 1017C(5) of the Corporations Act 2001.

Receive letter dated 21 August 2009 from former Fund Secretary making the following representation:

Received letter dated 13 November 2009 from former Fund Secretary dishonestly claiming that “the Trustee is not under any obligation under Section 1017C of the Corporations Act 2001 to provide copies of information and documents pertaining to the Fund”.

2010

Wrote a letter of complaint to APRA citing the letter from CCSL Limited dated 21 August 2009 and the representation that the purported Trustee was not in possession of the original Trust Deed or any Deeds of Variation executed before 26 August 1986.

In a letter dated 24 June 2010 from the former CEO of CCSL Limited, Mr Nicholas Brookes, to Mr Bradley Johnston, Manager Specialist Institutions Division – APRA marked “Strictly Confidential” obtained pursuant to the Freedom of Information Act 1982, Mr Brookes confirmed to Mr Johnston that the purported Trustee did have possession of the original Trust Deed and all subsequent Deeds of Variation.

Mr Brookes makes the following representation to Mr Johnston:

“You are aware that CCSL became Trustee of the Fund on 3 April 2006 and at that time received a copy of the Rules relating to the Fund which were represented to CCSL to be complete and in full force and effect.”

However an incoming trustee should not accept the office of trustee unless the outgoing trustee can hand over the original Trust Deed that established the trust and copies of all instruments of variation that purport to amend the terms of the original Trust Deed.

Palmer J in Chang v Tjiong & Ors [2009] NSWSC 122 stated at [45]:

“It is the duty of a trustee to ensure that beneficiaries are made aware of their rights: see In re Emmet’s Estate (1881) 17 Ch D 142, at 149; Hawkesley v May [1956] 1 QB 304, at 322. A trustee can hardly comply with this duty unless he or she keeps the terms of the trust readily available so that they may be explained, or produced, to beneficiaries and made known to successor trustees: see Ford & Lee Principles of the Law of Trusts [9150].”

All of these documents would need to be tabled before a Court if the beneficiaries or a successor trustee sought a “true construction” of the terms of the trust.

In any event CCSL Limited should have provided APRA with a copy of the original Trust Deed and copies of all instruments of variation pursuant to Section 29L of the Superannuation Industry (Supervision) Act 1993 as required to have this fund registered by APRA.

However a purported “Deed” dated 26 August 1986 was misrepresented to APRA as the “Trust Deed” of the fund, even though the 26 August 1986 document recites the original Trust Deed made on the 23 December 1913 and so could not possibly be the “Trust Deed”. At best the document dated 26 August 1986 would have been a Deed of Variation that amended the terms of an established trust.

In the letter dated 24 June 2010 Mr Brookes makes the following representation:

“However, as a result of additional requests of parties such as Foster’s, the previous Fund Administrator (“Mercer”) the previous Fund Trustee (Foster’s Group Superannuation Limited), the previous lawyers for the Fund (Corrs Chambers Westgarth) and the previous Fund Actuary (Mitchell & Co), we have been provided with a set of deeds dating back to 1913.”

However if this was the case, the why did not Mr Brookes now provide copies of these documents to APRA which should have been provided back in 2006 as required for the Fund registration process?

Instead Mr Brookes again provides APRA with a copy of purported Rules dated 19 August 1985 along with a copy of an unsigned actuarial certificate dated earlier on 12 August 1985 which references a set of purported Rules dated 9 August 1985.

Instead of providing copies of the original Trust Deed and genuine Deeds of Variation to APRA, Mr Brookes advises APRA: “All amendments to the Rules since 1913 ……… are available for inspection.”

2011

On 21 March 2001 received a response from APRA pursuant the Freedom of Information Act 1982 confirming that the earliest executed Deed that had been lodged with APRA was a purported “Deed” dated 26 August 1986 to which had been attached a set of purported “Rules” dated 19 August 1985.

The original Trust Deed that established the occupational pension trust dated 23 December 1913 should have been lodged with APRA pursuant Section 29L of the Superannuation Industry (Supervision) Act 1993 as required for the Fund registration process.

On 31 March 2011, Fairfax Media publishes expose on the private business interests of the previous Chairman of ASIC, Tony D’Aloisio, which involved the purchase of commercial winery placed into receivership by the ANZ. ASIC was conducting an investigation into the Opes Prime Collapse in which ANZ was the largest secured creditor.

{http://www.smh.com.au/business/the-watchdog-his-wife-and-their-winery-20110330-1cgca.html}

Commenced legal proceedings in the Federal Court of Australia against the former Chairman of ASIC, Tony D’Aloisio, for the contravention of Section 124 of the ASIC Act 2001 and Section 13 of the Public Service Act 1999 {VID 323 of 2011}.

Withdrew these proceedings when ASIC gave an undertaking to the Hon Justice Kenny to review and assess future evidence provided to ASIC in good faith. ASIC now in contempt of the Federal Court.

2012

Received response from APRA pursuant the Freedom of Information Act 1982 dated 31 October 2012 {APRA ref. 12/002924} confirming that APRA was not in possession of a copy the founding Deed, Resolutions , Deeds of Amendment and Amending Deeds executed from 12 December 1913 to 30 April 1980.

2013

Letter dated 13 February 2013 from the Deputy Premier and Attorney-General of South Australia, the Hon John Rau MP, confirming the right of persons with a beneficial interest in a trust established in South Australia to inspect prescribed trust records pursuant to Section 84B of the Trustee Act 1936 (SA).

Received response from APRA pursuant the Freedom of Information Act 1982 dated 18 February 2013 {APRA ref. 13/000854} confirming that APRA was not in possession of a copy the Trust Deed made on 23 December 1913 that established the occupational pension scheme.

APRA should not have registered this Fund without obtaining a copy of this Trust Deed. {Refer to Section 29M of the Superannuation Industry (Supervision) Act 1993}.

Letter dated 18 April 2013 from Anthony Beasley – Parliamentary Office – Legislative Council providing a copy of Reports, Minutes of Proceedings and Evidence related to the Select Committee of the Elder Smith and Co Limited Provident Funds Bill 1963 (SA).

Letter dated 15 April 2013 from Mr Mark Sorgini from the Attorney-General’s Department providing a copy of the Regulations of the Fund provided to the Department pursuant the Elder Smith and Co Limited Provident Funds Bill 1963 (SA).

2014

On the 20 January 2014 a purported “Successor Fund Transfer” purportedly occurred, where the Trust Estate of the 1913 Fund was transferred to the Trust Estate of the Plum Superannuation Fund.

Active members still in the service were not advised of this purported transfer of their membership until October 2014.

{Refer to letter from PFS Nominees Pty Ltd dated 1 October 2014}.

The purported wind-up accounts made the following representation.

{Refer to purported wind-up accounts for the period 1 July 2013 to 20 January 2014}

In a letter dated 3 March 2014 to Senator John Williams who was making inquiries on behalf of several victims, Mr Gerard Fitzpatrick, Senior Executive Leader- ASIC dishonestly claimed in breach of Section 13 of the Public Service Act 1999 that only the “current compilation of the rules” can be accessed pursuant to subsection 1017C(5) of the Corporations Act 2001 and that members and beneficiaries are not entitled to have access to the original Trust Deed that established the Fund.

  ASIC 3 March 2014 P1     ASIC 3 March 2014 p2

2015

In January 2015 a colleague still in the service of the Employer obtained copies of all the genuine Deeds of Variation.

With all the genuine Deeds of Variation now available after eight years since access was first requested the history of entitlements for a typical male officer retrenched at the age of 52 can be determined.

McBride vs Elliott

Class Action initiated.