Superannuation & Financial Services

Dominique Hogan-Doran SC frequently acts for major banks and superannuation fund trustees, wealth advisory businesses and industry bodies.

She provides expert advice & representation across a wide range of issues, including contested compliance & regulatory matters, corporate & organisational governance, directors’ & trustee duties, as well as entity & D&O insurance coverage and indemnity arrangements.

Dominique contributes her expert insights on legislative changes and standards of professional conduct as a member of the Law Committee of the Australian Institute of Company Directors (AICD) and the Professional Conduct Committee of the Chartered Accountants of Australia & New Zealand (CAANZ).

Dominique uniquely brings operational experience as a former trustee director of RSE/AFS licensee Club Plus Super, an industry superfund for the clubs, hospitality, and related industries with $2.7bn FUM (2015-2017). During her term she gained key insights through her membership of the trustee’s Audit, Risk & Compliance Committee, the Investment Committee, and the Insurance & Claims Committee.

In June 2019, Dominique was appointed by Cricket Australia & the Australian Cricketers Association as an Independent Director of the Australian Cricketers’ Retirement Account Board, which is responsible for the investment management of the deferred remuneration scheme for Australia’s First Class cricketers.

Current & recent matters of note:

2019

- Commonwealth Superannuation Corporation ats Martin, NSW Supreme Court proceedings, acting for trustee of the Public Sector Superannuation Scheme defending claim by beneficiary, briefed by Ashurst Canberra

- Australian Securities & Investments Commission v RM Capital Ltd, Federal Court civil penalty proceedings, for Australian financial services licensees defending allegations of contravention of the conflicted remuneration prohibition, briefed by Hall & Wilcox

- National Australia Bank, briefed by MinterEllison

- OnePath Custodians (ANZ Group retail superannuation trustee) briefed by MinterEllison

- NULIS Australia/MLC Nominees (NAB Group retail superannuation trustees) briefed by Minter Ellison

- Australian Institute of Company Directors & Governance Institute of Australia, briefed direct

- Law Society of South Australia & Law Claims Management, briefed direct

- ASIC investigation into suspected contraventions of s 101 Superannuation Industry (Supervision) Act 1993 (Cth), for examinee, briefed by MinterEllison

2018

- Commonwealth Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry

- Consumer Lending Round for Commonwealth Bank of Australia & its mortgage broking subsidiary Aussie Home Loans, briefed by Clayton Utz

- Superannuation Round, for trustee of the Energy Industries Superannuation Scheme, briefed by Hall & Wilcox

- Australian Securities & Investments Commission ats Kender [2018] AATA 4555 Administrative Appeals Tribunal - for ASIC (administrative review application by disqualified director)

- NAB Group (NULIS Australia & MLC Nominees), briefed by Minter Ellison & K&L Gates

- Aon Hewitt Financial Advisory, briefed by Sparke Helmore (remediation scheme)

- Trustee of Industry Super Fund (defined benefits scheme calculations of entitlements by reference to ‘superable salary’)

Earlier matters

·    Superior Court regulatory proceedings: for ASIC in James Hardie Civil Penalty Proceedings: ASIC v Macdonald (No 11) [2009] NSWSC 287; (2009) 256 ALR 199; (2009) 230 FLR 1; (2009) 71 ACSR 368 (liability phase); James Hardie Industries NV v ASIC [2009] NSWCA 18 (continuous disclosure appeal); ASIC v Macdonald (No 12) [2009] NSWSC 287; (2009) 256 ALR 199; (2009) 230 FLR 1; (2009) 71 ACSR 368 (penalty phase); Westpac v ASIC [2009] FCA 1506; (2009) 181 FCR 379 (for ASIC, re issue of Westpac Debit Mastercards); X v Australian Prudential Regulation Authority [2007] HCA 4; (2007) 226 CLR 630; (2007) 81 ALJR 611; Applicant Y v APRA [2006] FCAFC 37Applicant X v APRA [2005] FCA 1288 (challenge to disqualification of senior insurance managers)

·    Superior Court general proceedings: In re MF Global Australia (in liq) (No 2)[2012] NSWSC 1426; (2012) 267 FLR 27, In re MF Global Australia (in liq) [2012] NSWSC 994; (2012) 267 FLR 27 (insolvency of financial services firm); Mews Scheme Winding up: ASIC v GDK (No 4) [2008] FCA 858(2008) 169 FCR 497AVS Property v McMaster [2010] FCAFC 81; (2010) 79 ACSR 89 (Full Court appeal); ASIC v GDK [2010] FCA 710 (priority dispute); ZMB Australia P/L v Warne [2011] FCA 311; ZMB Australia P/L v Warne [2011] FCAFC 65 (Full Court appeal)

·   Administrative Appeals Tribunal applications: The Sharemarket College v ASIC [2016] AATA 1057 (for licensee, stay application re licence cancellation & banning orders); Tarrant v ASIC [2013] AATA 926; (2013) 62 AAR 192 (financial planner banning appeal); Tarrant v ASIC [2011] AATA 945; (2011) 56 AAR 257; (2011) 128 ALD 376 (successful application for stay of publication); Graeber and Anor and Australian Prudential Regulatory Authority [2007] AATA 1966; (2007) 46 AAR 115

·    ASIC investigations:  ASX listed company director (2016) (alleged insider trading contrary to s 1043A of the Corporations Act 2001 (Cth) - no further action letter successfully obtained); Responsible Entity of registered investment scheme (2012-2013) (alleged non-compliance with s 601FC duties); Senior Executive (2012) (alleged insider trading & other alleged criminal offences - committed to trial); Rodney Adler (2012) (alleged management of corporation whilst disqualified and on parole following conviction for role in collapse of HIH Insurance Ltd & FAI Insurance - no further action letter obtained); various earlier investigations for ASIC including Australian Consumer Lending Centre (2010-2011), Ezybonds Limited Partnership (2007-2009); Offset Alpine & Renee Rivkin (2005-2006).

·    APRA investigations: Trustee of Corporate Super fund (‘fit and proper’ requirement)

·   ASIC administrative hearings: ASIC v Hickman (2015) (banning hearing for unlicensed discretionary trading & falsification of records by Macquarie Equities trader, contrary to Parts 7.6 & 7.12 Corporations Act 2001 (Cth))

·   Fair Work Commission application for listing of a standard MySuper product on the Default Superannuation List in accordance with section 156A of the Fair Work Act 2009, and as a default superannuation fund for all modern awards in accordance with s 157(1) of that Act  


Dominique has provided specialised advice to superannuation trustees in relation to the operational requirements of the trustee and their funds:

·      General duties of trustees under the Superannuation Industry (Supervision) Act 1993 (Cth) and the general law

·      Procedures for trust deed amendments, including amendments in the context of defined benefit schemes

·      The limits of the ‘sole purpose’ test in s 62 of the Superannuation Industry (Supervision) Act 1993 (Cth) in the context of trustee sponsorship, advertising and marketing

·      The likely operation of s 68A of the Superannuation Industry (Supervision) Act 1993 (Cth) following amendments by the Treasury Laws Amendment (Improving Accountability and Member Outcomes in Superannuation Measures No. 1) Bill 2019

·      Duties of a trustee in relation to a proposed Successor Fund Transfer

·      ASIC investigation into alleged receipt of conflicted remuneration by a corporate authorised representative in contravention of s 963G of the Corporations Act 2001 (Cth) with respect to advice to establish an SMSF to acquire real property investments

·      Potential liability of a trustee for contravention of s 1017B(1A)(a) of the Corporations Act 2001 (Cth) (re ongoing disclosure of material changes and significant events)

·      Potential liability of a trustee for contravention of s 29WA(1) of the Superannuation Industry (Supervision) Act 1993 (Cth) (re election to switch to MySuper product)

·      Trustee’s obligation to move account balances of members into MySuper products and to otherwise remediate members

·      Adequacy of trustee’s insurance governance arrangements for handling TPD claims, including with respect to APRA Superannuation Prudential Standard SPS 250 - Insurance in Superannuation

·      Response to APRA ‘show cause’ notice concerning management of corporate superannuation fund and whether trustee ‘fit and proper’

·      Ongoing liability of trustee for payment of grandfathered commissions to adviser licensees for distribution of trustee’s superannuation and pension products

·      Issues arising from actuarial assessment of sufficiency of funding for liabilities of defined benefits scheme on a Vested Benefits Index (VBI) basis

·      Interaction between the Superannuation Industry (Supervision) Act 1993 (Cth) and the APRA Superannuation Prudential Standard SPS 160 – Defined Benefit Matters with the Electricity Network Assets (Authorised Transactions) Act 2015 (NSW)

·      Method of accession of new employers to trust deed via deed poll of adherence and mechanism for indemnification of defined benefit liabilities

·      Consultation on Treasury Laws Amendment (Protecting Superannuation) Bill 2018 in particular concerning insurance for members in hazardous occupations

·      Whether remuneration of trustee directors requires shareholder approval, and requirements for achieving that approval, including with respect to APRA Superannuation Prudential Standard SPS 510 - Governance

·      Determinations of death benefit distributions in absence of binding nomination

·      Superannuation Complaints Tribunal matters (including death benefit distribution)