Superannuation & Financial Services Industry
Dominique Hogan-Doran SC frequently acts for fund trustees, banks and wealth advisory businesses.
She brings recent operational experience as a trustee director of Club Plus Super, an RSE licensee industry superfund trustee provider of investments, pension payments, and corporate and personal superannuation for the clubs, hospitality, and related industries (2015-2017).
During her tenure, Dominique served on the the Audit, Risk & Compliance Committee, Insurance & Claims Committee, and Investment Committee, with the fund’s MySuper investment performance successfully climbing to a national ranking of 5th (2017) and 3rd (2018).
Contested matters in which Dominique has acted & advised include:
· Royal Commissions: Consumer Lending Round of the Royal Commission into Misconduct in the Banking, Superannuation & Financial Services Industry, for Commonwealth Bank of Australia & its mortgage broking subsidiary Aussie Home Loans; Superannuation Round of the Royal Commission into Misconduct in the Banking, Superannuation & Financial Services Industry, for the Energy Industries Superannuation Scheme
· Superior Court regulatory proceedings: eg James Hardie Civil Penalty Proceedings: ASIC v Macdonald (No 11)  NSWSC 287; (2009) 256 ALR 199; (2009) 230 FLR 1; (2009) 71 ACSR 368 (liability phase); James Hardie Industries NV v ASIC  NSWCA 18 (continuous disclosure appeal); ASIC v Macdonald (No 12)  NSWSC 287; (2009) 256 ALR 199; (2009) 230 FLR 1; (2009) 71 ACSR 368 (penalty phase); Westpac v ASIC  FCA 1506; (2009) 181 FCR 379 (for ASIC, re issue of Westpac Debit Mastercards); X v Australian Prudential Regulation Authority  HCA 4; (2007) 226 CLR 630; (2007) 81 ALJR 611; Applicant Y v APRA  FCAFC 37; Applicant X v APRA  FCA 1288 (challenge to disqualification of senior insurance managers)
· Superior Court general proceedings: eg In re MF Global Australia (in liq) (No 2) NSWSC 1426; (2012) 267 FLR 27, In re MF Global Australia (in liq)  NSWSC 994; (2012) 267 FLR 27 (insolvency of financial services firm); Mews Scheme Winding up: ASIC v GDK (No 4)  FCA 858; (2008) 169 FCR 497; AVS Property v McMaster  FCAFC 81; (2010) 79 ACSR 89 (Full Court appeal); ASIC v GDK  FCA 710 (priority dispute); ZMB Australia P/L v Warne  FCA 311; ZMB Australia P/L v Warne  FCAFC 65 (Full Court appeal)
· Administrative Appeals Tribunal applications: eg Kender v Australian Securities & Investments Commission  AATA 4555 (for ASIC, stay application by disqualified director); The Sharemarket College v ASIC  AATA 1057 (for licensee, stay application re licence cancellation & banning orders); Tarrant v ASIC  AATA 926; (2013) 62 AAR 192 (financial planner banning appeal); Tarrant v ASIC  AATA 945; (2011) 56 AAR 257; (2011) 128 ALD 376 (successful application for stay of publication); Graeber and Anor and Australian Prudential Regulatory Authority  AATA 1966; (2007) 46 AAR 115
· ASIC administrative hearings: ASIC v Hickman (2015) (banning hearing for unlicensed discretionary trading & falsification of records, 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
· ASIC investigations: eg Retail Super Trustee (2018) (suspected breach of s 1017B Corporations Act 2001 (Cth), s 52 Superannuation Industry (Supervision) Act 1993 (Cth)); Corporate Authorised Representative (2017-2019) (suspected breaches of conflicted remuneration prohibition in s 963G Corporations Act 2001 (Cth); 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: eg Trustee of Industry Super Fund (2018-2019) (defined benefits scheme calculations of entitlements by reference to ‘superable salary’); Trustee of Corporate Super fund (‘fit and proper’ requirement)
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)