Affidavit related to Dr Ken Henry AC - NAB Chairman: NSD 1654/2018
Phillip Sweeney made this Freedom of Information request to Federal Court of Australia
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Dear Federal Court of Australia,
On the 15 August 2019, an Affidavit was affirmed by PHILLIP CHARLES SWEENEY (not sworn) and was received by the Federal Court on 19 August 2019, however, an electronic copy was NOT filed on the Court File of NSD1654/2018 {ASIC v NAB Superannuation Trustees}.
Included in this Affidavit was as Affidavit Exhibit PCS31 which was a copy of a letter dated 15 August 2019 that had been sent to Dr Ken Henry, the Chairman of the National Australia Bank. This letter was titled “Should NULIS pay pensions to the Widows”.
Reference was also made to a previous letter to Dr Ken Henry dated 26 September 2014 attached to which was a consolidation Deed of Variation dated 6 May 1958 for a superannuation scheme now administered by NAB which had been criminally concealed from APRA in order to obtain fund registration.
Dr Henry should have ensured that a construction summons was filed with the Federal Court similar to that recently before the Federal Court - VID 527 of 2019 National Australia Bank Limited v Nautilus Insurance Pte Ltd (no. 2) [2019] FCA 1543. Such a summons would have confirmed (or not confirmed) the entitlement of the widows in question to be paid survivorship pensions by NAB’s superannuation trustee, NULIS Nominees (Australia) Ltd.
Dr Henry even opined when testifying before Royal Commissioner Hayne of the importance of NAB initiating such judicial proceedings when appropriate.
Royal Commissioner Hayne in his final report stated:
“Having heard from the CEO, Mr Thorburn, and the chair, Dr Henry, I am not
confident as I would wish to be that the lessons of the past have been learned….
Overall, my fear – that there may be a wide gap between the public face NAB seeks
to show and what it does in practice – remains”
So why had Affidavit Exhibit PCS31 not be placed on the Court file when it had been received on the 19 August 2019?
No mention was made in the Order by Justice Yates as to a specified way as to how this document which had not been filed on the Court file should be dealt with.
Therefore, the District Registrar must direct how this document must be stored pursuant to Federal Court Rule 2.28(3)(b). This is now a document of public interest.
I do not seek a copy of the Affidavit nor Affidavit Exhibit PCS31.
The document(s) I seek are copies of any email, phone log or other documents that would reveal how the original affirmed paper document and electronic copy were to be stored pursuant to Federal Court Rule 2.28(3)(b) after removal from the Court File on 19 September 2019 of other filed Affidavits.
These document(s) will assist in obtaining advice as to how ASIC may be held accountable to honour the undertaking given before the Honourable Justice Kenny in VID 323 of 2011 and so that current proceedings where ASIC is the Applicant/Plaintiff cannot be impugned as an "Abuse of Process" should these proceedings not be stayed until such time as the undertaking has been honoured by ASIC or the Court has discharged this undertaking given before the Honourable Justice Kenny by ASIC and its Counsel .
Yours faithfully,
Phillip Sweeney
UNCLASSIFIED
Dear Mr Sweeney,
Please find a letter acknowledging receipt of your request attached to this email.
Kind regards
FOI Officer
Federal Court of Australia
-----Original Message-----
From: Phillip Sweeney <[FOI #5655 email]>
Sent: Sunday, 29 September 2019 2:16 PM
To: External FOI <[email address]>
Subject: Freedom of Information request - Affidavit related to Dr Ken Henry AC - NAB Chairman: NSD 1654/2018
Dear Federal Court of Australia,
On the 15 August 2019, an Affidavit was affirmed by PHILLIP CHARLES SWEENEY (not sworn) and was received by the Federal Court on 19 August 2019, however, an electronic copy was NOT filed on the Court File of NSD1654/2018 {ASIC v NAB Superannuation Trustees}.
Included in this Affidavit was as Affidavit Exhibit PCS31 which was a copy of a letter dated 15 August 2019 that had been sent to Dr Ken Henry, the Chairman of the National Australia Bank. This letter was titled “Should NULIS pay pensions to the Widows”.
Reference was also made to a previous letter to Dr Ken Henry dated 26 September 2014 attached to which was a consolidation Deed of Variation dated 6 May 1958 for a superannuation scheme now administered by NAB which had been criminally concealed from APRA in order to obtain fund registration.
Dr Henry should have ensured that a construction summons was filed with the Federal Court similar to that recently before the Federal Court - VID 527 of 2019 National Australia Bank Limited v Nautilus Insurance Pte Ltd (no. 2) [2019] FCA 1543. Such a summons would have confirmed (or not confirmed) the entitlement of the widows in question to be paid survivorship pensions by NAB’s superannuation trustee, NULIS Nominees (Australia) Ltd.
Dr Henry even opined when testifying before Royal Commissioner Hayne of the importance of NAB initiating such judicial proceedings when appropriate.
Royal Commissioner Hayne in his final report stated:
“Having heard from the CEO, Mr Thorburn, and the chair, Dr Henry, I am not
confident as I would wish to be that the lessons of the past have been learned….
Overall, my fear – that there may be a wide gap between the public face NAB seeks
to show and what it does in practice – remains”
So why had Affidavit Exhibit PCS31 not be placed on the Court file when it had been received on the 19 August 2019?
No mention was made in the Order by Justice Yates as to a specified way as to how this document which had not been filed on the Court file should be dealt with.
Therefore, the District Registrar must direct how this document must be stored pursuant to Federal Court Rule 2.28(3)(b). This is now a document of public interest.
I do not seek a copy of the Affidavit nor Affidavit Exhibit PCS31.
The document(s) I seek are copies of any email, phone log or other documents that would reveal how the original affirmed paper document and electronic copy were to be stored pursuant to Federal Court Rule 2.28(3)(b) after removal from the Court File on 19 September 2019 of other filed Affidavits.
These document(s) will assist in obtaining advice as to how ASIC may be held accountable to honour the undertaking given before the Honourable Justice Kenny in VID 323 of 2011 and so that current proceedings where ASIC is the Applicant/Plaintiff cannot be impugned as an "Abuse of Process" should these proceedings not be stayed until such time as the undertaking has been honoured by ASIC or the Court has discharged this undertaking given before the Honourable Justice Kenny by ASIC and its Counsel .
Yours faithfully,
Phillip Sweeney
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #5655 email]
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UNCLASSIFIED
Dear Mr Sweeney,
Please find, attached to this email, correspondence in relation to your FOI request.
Kind regards
FOI Officer
Federal Court of Australia
-----Original Message-----
From: Phillip Sweeney <[FOI #5655 email]>
Sent: Sunday, 29 September 2019 2:16 PM
To: External FOI <[email address]>
Subject: Freedom of Information request - Affidavit related to Dr Ken Henry AC - NAB Chairman: NSD 1654/2018
Dear Federal Court of Australia,
On the 15 August 2019, an Affidavit was affirmed by PHILLIP CHARLES SWEENEY (not sworn) and was received by the Federal Court on 19 August 2019, however, an electronic copy was NOT filed on the Court File of NSD1654/2018 {ASIC v NAB Superannuation Trustees}.
Included in this Affidavit was as Affidavit Exhibit PCS31 which was a copy of a letter dated 15 August 2019 that had been sent to Dr Ken Henry, the Chairman of the National Australia Bank. This letter was titled “Should NULIS pay pensions to the Widows”.
Reference was also made to a previous letter to Dr Ken Henry dated 26 September 2014 attached to which was a consolidation Deed of Variation dated 6 May 1958 for a superannuation scheme now administered by NAB which had been criminally concealed from APRA in order to obtain fund registration.
Dr Henry should have ensured that a construction summons was filed with the Federal Court similar to that recently before the Federal Court - VID 527 of 2019 National Australia Bank Limited v Nautilus Insurance Pte Ltd (no. 2) [2019] FCA 1543. Such a summons would have confirmed (or not confirmed) the entitlement of the widows in question to be paid survivorship pensions by NAB’s superannuation trustee, NULIS Nominees (Australia) Ltd.
Dr Henry even opined when testifying before Royal Commissioner Hayne of the importance of NAB initiating such judicial proceedings when appropriate.
Royal Commissioner Hayne in his final report stated:
“Having heard from the CEO, Mr Thorburn, and the chair, Dr Henry, I am not
confident as I would wish to be that the lessons of the past have been learned….
Overall, my fear – that there may be a wide gap between the public face NAB seeks
to show and what it does in practice – remains”
So why had Affidavit Exhibit PCS31 not be placed on the Court file when it had been received on the 19 August 2019?
No mention was made in the Order by Justice Yates as to a specified way as to how this document which had not been filed on the Court file should be dealt with.
Therefore, the District Registrar must direct how this document must be stored pursuant to Federal Court Rule 2.28(3)(b). This is now a document of public interest.
I do not seek a copy of the Affidavit nor Affidavit Exhibit PCS31.
The document(s) I seek are copies of any email, phone log or other documents that would reveal how the original affirmed paper document and electronic copy were to be stored pursuant to Federal Court Rule 2.28(3)(b) after removal from the Court File on 19 September 2019 of other filed Affidavits.
These document(s) will assist in obtaining advice as to how ASIC may be held accountable to honour the undertaking given before the Honourable Justice Kenny in VID 323 of 2011 and so that current proceedings where ASIC is the Applicant/Plaintiff cannot be impugned as an "Abuse of Process" should these proceedings not be stayed until such time as the undertaking has been honoured by ASIC or the Court has discharged this undertaking given before the Honourable Justice Kenny by ASIC and its Counsel .
Yours faithfully,
Phillip Sweeney
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #5655 email]
Is [Federal Court of Australia request email] the wrong address for Freedom of Information requests to Federal Court of Australia? If so, please contact us using this form:
https://www.righttoknow.org.au/change_re...
This request has been made by an individual using Right to Know. This message and any reply that you make will be published on the internet. More information on how Right to Know works can be found at:
https://www.righttoknow.org.au/help/offi...
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.
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Dear Federal Court of Australia,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Federal Court of Australia's handling of my FOI request 'Affidavit related to Dr Ken Henry AC - NAB Chairman: NSD 1654/2018'.
Clearly any Affidavit which confirms that Dr Ken Henry AC as the Chairman of NAB was privy to evidence of fraud involving a NAB superannuation trustee well before the Hayne Royal Commission would be key evidence for ASIC to bring to the attention of Justice Yates.
Adele Ferguson in her book "Banking Bad" on page 372 writes:
"The most startling part of the report was Hayne’s dressing-down of NAB executives Ken Henry and Andrew Thorburn. As well as singling them out for public shaming. Hayne noted that, with regard to the behaviour of its most senior executives ‘NAB stands apart from the other major banks’.
Now it will be a matter of public interest if ASIC and its counsel Mr Tim Faulkner SC, conceals the complicity of Dr Henry in a case of breach of trust by NULIS Nominees (Australia) Ltd in NSD 1654 of 2018, when ASIC is at the same time in Contempt of the Federal Court in failing to honour the undertaking given to the Honourable Justice Kenny in VID 323 of 2011.
The default position to be assumed from the response to this FOI request is that the evidence provided to the Federal Court confirming that Dr Henry was privy to a fraud involving a NAB superannuation trustee has been put through the shredder in the Federal Court office.
It that is not the case then what happened to this evidence is of considerable public interest, especially after the comments of Royal Commissioner Hayne as reported by Adele Ferguson in her book "Banking Bad"?
An internal review may answer that question.
Otherwise, the Administrative Appeals Tribunal may be able to provide an answer.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/a...
Yours faithfully,
Phillip Sweeney