Tort of Misfeasance in Public Office – the ASIC Case

In the Tort of Misfeasance in Public Office the following needs to be proven.

Firstly the plaintiff must prove that the defendant is a “public officer”. This is clearly the case with respect to the former Chairman of ASIC

Secondly the plaintiff must also prove that the defendant acted in the exercise or purported exercise of his office . This requires a positive act, or an act of omission. The act of omission was the failure to enforce Section 1017C and associated Regulations of the Corporations Act 2001 in the manner that the Parliament intended. The positive act was the “doubleultra vires {no Jurisdiction and no power} “investigation” of the company that had no legal obligation to pay superannuation benefits, yet was, at the time, a company in relation to which the former Chairman had a clear real or apparent Conflict of Interests given his undeclared direct pecuniary interest in his person business endeavours.

The power must have a statutory or public origin. The Corporations Act 2001.

Thirdly the plaintiff must further prove that the defendant acted with malice towards the plaintiff  or with knowledge that he or she was acting invalidly. In the former case the official is exercising power that they actually possess but for improper purpose ; in the latter, they are knowingly exceeding their authority or power.

Lastly, the plaintiff must prove that the plaintiff or plaintiffs suffered damage as a result of the defendant’s conduct . ASIC sought to deny not only a particular Member of a Government Regulated Superannuation Fund, but my implication all other members and beneficiaries of this Government Regulated Superannuation Fund, access to information that would ground claims for a Breach of Trust action running into the $100 millions of dollars.

Bad Faith – the Former Chairman

The “state of mind” element is always the hard one for plaintiff to establish, but when a former Chairman of ASIC has failed to disclose his pecuniary interest to not one but two Responsible Ministers and improperly disclosed to a third, in this case the mental element is a “lay down misere”.

The former Chairman Mr D’Aloisio failed not only to disclose his pecuniary interest in Oakridge Wines Pty Ltd to a Complainant and seek “waiver” as required by Section 124 of the ASIC Act 2001, Mr D’Aloisio also failed to provide written disclosure notices to two Responsible Minsters during the period I was dealing with Mr D’Aloisio {and improperly disclosed to a third Minister}.

Therefore since this Complainant,like Mr Ferando,  had been denied procedural fairness (in this case the rule against bias), Mr D’Aloisio had “no power” to deal with the Complainant’s Complaint and he knew it, since the ASIC has well defined procedures for dealing with real or perceived conflicts of interests.

A public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful. Failure to disclose to the Responsible Ministers has sealed Mr D’Aloisio’s fate. If Mr D’Alioisio had disclosed as required by Section 123 then relying solely on Section 124 would have been much more difficult.

The failure to disclose under Section 123 has confirmed the mental state of Mr D’Aloisio.

Mr D’Aloisio was “recklessly indifferent” as to whether the Trust Documents the Member of a Government Regulated Superannuation Fund sought from the Trustee would reveal one or more Breaches of Trust that would then confirm an economic loss to this Member and other Members and Beneficiaries of this Fund.

The very fact that this Member had to seek Mr D’Alsoisio’s and ASIC’s assistance in the first instance, after the Trustee had refused to comply with the Trustee’s disclosure obligations over a two year period would have indicated that the Trustee was attempting to conceal one or more Breaches of Trust. To take no action in such a circumstance is to be “recklessly indifferent” to the welfare of the Members and Beneficiaries of the Fund. Officers of the Trustee had committed a criminal offence, yet Mr D’Aloisio was “recklessly indifferent” as to what the outcome of these criminal offences  might have been for members and beneficiaries of the Fund in question.

This is thrown into stark relief when a previous Chairman, Mr Lucy took the appropriate and lawful action in similar circumstances.

Further Evidence of Targeted Malice by ASIC

The Letter of 25 October 2010

When ASIC failed to enforce the disclosure of the audited accounts of the Fund. The Member of the Government Regulated Superannuation Fund complained to his local MP and the Responsible Minister, the Hon Bill Shorten MP. On Officer from The Treasury made inquires on behalf of the Responsible Minister.

In a letter dated 25 October 2010 (Your Ref: CCU- 10\0386) an Officer of ASIC stated:

“Mr X has also subsequently asserted that he has a right to be provided with copies of the audited trust accounts of the Trust under section 1017C of the Act. However although section 1017C requires that trustees give members or former members information that the person reasonably requires to understand any benefit entitlements that the person may have or to understand the main features of the fund, ASIC considers that this right does not extend to obtaining the audited accounts, and that the Fund has complied with its reporting requirements under the Act.”

However Regulation 7.9.45 of the Corporations Regulations 2001, states in “Black And White” that members and beneficiaries are entitles to copies of the audited accounts and the auditor’s report, even if they do not specifically ask for the auditor’s report. Furthermore under Schedule 10A subsection 11.1 the Trustee must provide copies of these Trust Documents to a member or a beneficiary “free-of-charge”.

The Letter of 5 July 2011

In a letter dated 5 July 2011 (Your Ref: CCU-11\0297) in response to a Section 8(1) Notice issued to the current Chairman Mr Greg Medcraft under the Ombudsman Act 1976, another Officer of ASIC claimed that this Member was not entitled have a copy of the Deed of Amendment executed on 20 December 1982 since this Officer of ASIC claimed that Section 1017C only applied:

to a “concerned person” as defined in subsection 1017C(9) to be a person who is or was within the preceding 12 months, a member of the superannuation entity. As Mr X ceased to be a concerned person a year after receiving his pay out from the Fund in 2007 it is arguable that s1017C would not operate to apply to a person in his circumstances”.

Now what does subsection 1017C(9) actually state?


(9)  In this section:

“concerned person” :

(a)  in relation to a superannuation product–means a personwho:

(i)  is, or was within the preceding 12 months, a memberof the superannuation entity; or

(ii)  is a beneficiary of the superannuation entity;

In an Act of Omission, this Officer of ASIC failed to mention in her submission to the Office of the Commonwealth Ombudsman that a “beneficiary” is also a “concerned person” and is entitled to copies of any Deed of Amendment that forms the set of documents that are the Fund’s Governing Rules.

Furthermore the Trust Document that this Officer of ASIC was seeking to deny this Member of a Government Regulated Superannuation Fund confirms that since 20 December 1982, RETRENCHMENT is no longer a condition of release for Members of this Fund, therefore many Members now have individual claims running into the $100,000s for their Membership of this Fund being unlawfully terminated.

The Letter of 6 December 2011

In the first letter from ASIC since proceedings in the Federal Court of Australia before the Honourable Justice Kenny on 25 May 2011, another ASIC Officer sent a letter dated 6 December  2011 (Your Ref: MRZ2011/22327), in which this ASIC Officer repudiated the undertakings made by ASIC before the Honourable Justice Kenny.

As well as committing an act of  Contempt of Court, the ASIC Officer proposed yet another reason why  a Member of a Government Regulated Superannuation Fund should not be entitled to documents under Section 1017C of the Corporations Act 2001.

That reason is that if a Trustee of a regulated superannuation fund pays a “peppercorn” payment to a member of the fund, whether a condition of release has been satisfied or not, then that payment then abrogates the member or beneficiaries right to have access to the very Trust Documents that the member of beneficiary needs to confirm as to whether:

(i)                  A condition of release had been satisfied in the first instance, and/or

(ii)                Whether the “peppercorn” payment was actually in accordance with the Governing Rules of the Fund.

This ASIC Officer referred to no legal authority as to why the payment of a “peppercorn” amount would abrogate a member or beneficiaries legal right to have access to the Trust Documents, because there is none.

The duty of Trustees to render accounts and provide prescribed Trust Documents cannot be excluded by the trust instruments because it is one of the core obligations of trusteeship {Armitage v Nurse [1998] Ch 241 ,253 per Millet LJ}.

So yet another ASIC Officer has proffered yet another bogus reason as to why ASIC should deny access to Trust Documents and Information that would reveal not just one fraudulent Breaches of Trust but several!

Letter dated 2 July 2010.

Following the double ultra vires sham investigation into a legal entity that had no legal obligation to pay superannuation benefits, in a letter dated 2 July 2010 (Your ref: CCU-10/0195), another senior ASIC Officer stated:

there is nothing to suggest that the Trustee has acted improperly

Yet the Officers of the Trustee had been in contravention of Section 101C for some three and a half years when this Senior ASIC Officer made this statement and had committed a criminal offence by doing so.

Furthermore this Senior ASIC Officer failed to obtain any copies of the Trust Deed and Governing Rules, any copies of the audited accounts and auditor’s reports, nor any copies of the periodic actuarial reports from the Trustee before making the above statement.

Instead this senior ASIC Officer just proceeded to fabricate evidence based on hearsay material.

Do you believe you Super is Safe when a Member who seeks the assistance of the Regulator ASIC is subject to a concerted campaign of targeted malice by several Officers of ASIC?

If you do not want dishonest Trustees and corrupt Public Servants stealing your hard earned superannuation entitlements then become a Member of Australian Guardians today.

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