Genikas v Statewide Superannuation Trust

THE TRIBUNAL'S DECISION 9 On the issue upon which the Tribunal is said to have erred in law, and which is the subject of this appeal, the Tribunal said: The final issue is the suitability of the Complainant to be the Trustee of the benefit on behalf of the infant son. The Tribunal accepts the Trustee's submission concerning the fees charged by the Public Trustee. The fact that the Complainant did not check this, and made no mention of the legitimate on costs submitted by the Trustee in its response, perhaps reveals a casualness inconsistent with the duty of such a Trustee not only in assessing the costs associated with the making of a form of investment he proposed but also an inconsistency in understating the need to have access to the money for a present purpose (the education of the infant son) rather than in the tying up of that money in a longer term investment in real estate. While the above is a consideration, the determinative factor is that the material would establish to the satisfaction of a reasonably operating trustee that the Complainant has at least one conviction for an offence involving dishonesty. The Tribunal took into account that the offence involved a third party and not a member of the Complainant's family, but the offence is of such a nature that it would be remiss of the Trustee if it had not considered this aspect when reaching its decision that the benefit ought be managed by the Public Trustee rather than the Complainant. It is of concern that the Complainant has not sought to dispute the commission of the offence. It is an offence which renders him unsuitable to be a trustee of the benefit and there is, in the circumstances, nothing unfair and unreasonable to the Complainant in the operation of the Trustee's decision to appoint the Public Trustee to fulfil that function. Clearly the Trust Deed gives the Trustee power to reach such a decision in clause 27(g). 10 The complaint to the Tribunal was made under s 14 of the Act. Its determination is expressed in that way because s 37 of the Act required it to do so. Section 37(1) gives the Tribunal all the powers, obligations and discretions conferred on the Trustee, but then provide that, subject to s 37(6) it must make a determination in accordance with s 37(3). That is, its determination must be in writing either affirming the decision of the Trustee, varying it, setting it aside and substituting a fresh decision, or remitting the matter to the decision-maker for reconsideration in accordance with the directions of the Tribunal. Section 37(6) provides: The Tribunal must affirm a decision referred to under subsection (3) if it is satisfied that the decision, in its operation in relation to: (a) the complainant; and (b) so far as concerns a complaint regarding the payment of a death benefit - any person (other than the complainant, a trustee, insurer or decision-maker) who: (i) has become a party to the complaint; and (ii) has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person having an interest in the death benefit; was fair and reasonable in the circumstances. 11 The process of decision-making has been explained in a number of cases including Briffa v Hay (1997) 75 FCR 428; National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562; and Cullinane v Mercer Benefit Nominees Ltd (2006) 152 FCR 1. For the purposes of determining this appeal, it is not necessary to refer in detail to those decisions.

THE GROUNDS OF APPEAL 12 As noted, Mr Genikas' appeal from the Tribunal's decision is confined to questions of law: s 46 of the Act. His notice of appeal asserts three general grounds: (1) SST through the Trustee failed to properly apply cl 26 and cl 27 of the Trust Deed by recognising that it had a discretion to pay the benefit to Mr Genikas as Trustee for Nathan, and that the Tribunal had somehow perpetuated that error. (2) The Tribunal failed to accord procedural fairness to Mr Genikas in relation to the allegations made by Ellen Appleby concerning his character including the existence of an alleged criminal offence for dishonesty, as it gave him no opportunity to respond to those allegations. (3) The Tribunal failed to have regard to Mr Genikas' plan as trustee to combine the monies from SST together with those received on behalf of Nathan from AGEST to invest in a real estate property which could generate rental income for Nathan's future education and other needs and could leave him with a substantial capital asset at the time he turns 18. That, he said, was a better form of investment than Public Trustee could offer, considering its costs of running the estate. 13 I shall deal with each of those matters in turn.

CONSIDERATION 14 Nathan, as the child of Ms Appleby, was a dependant (as defined) in the Trust Deed. Under cl 26 of the Trust Deed, the Trustee (because no death benefit notice had been given by Ms Appleby) was empowered to pay or apply the SST benefit to one or more of Ms Appleby's dependants in such proportions, form, manner and at such times as the Trustee shall from time to time in its discretion determine. 15 Clause 27(g) of the Trust Deed dealt with payments to others on behalf of beneficiaries. It provided: When any Beneficiary is under the age of 18 years or is under any legal disability or when in the opinion of the Trustee it would be in the best interests of the Beneficiary, the Trustee may pay all or part of any Benefit in such one or more of the following ways as the Trustee shall determine: (i) to or towards the maintenance, education, advancement, support or benefit of the Beneficiary in such manner and on such terms and conditions as the Trustee shall determine; or (ii) to any other person who appears to the Trustee to be a trustee for the Beneficiary or Spouse, child, parent or guardian or a person having custody of the Beneficiary for application on behalf of the Beneficiary, and the receipt of the person to whom the Benefit is paid shall be a complete discharge of the Trustee for the payment in respect of the Beneficiary and the Trustee shall not be bound or concerned to see to the application of the Benefit so paid. 16 Consequently, the Trustee was clearly entitled to determine to pay the whole of the SST benefit arising on the death of Ms Appleby to the benefit of Nathan, and to pay that benefit to Public Trustee in trust for Nathan. This appeal challenges the exercise of that power, upheld by the Tribunal, rather than the existence of that power. 17 I agree with the contention that the Trustee did fail properly to apply cl 27(g) of the Trust Deed. It is clear that it had a discretion as to whether to appoint Public Trustee or some other person to be trustee for the SST benefit: see cl 27(g)(ii). It does not appear to have exercised that discretion, because it has said in its letter of 25 October 2006 that it simply applied a rule or policy without regard to the particular circumstances of the case. See Croft v Minister for Health (1983) 45 ALR 449; Mendoza v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 405. 18 However, that is not the end of the issue. Section 37(6) of the Act indicates that the Tribunal is obliged to affirm the decision if it is satisfied that the decision in its operation was fair and reasonable in the circumstances. The Tribunal concluded that it was fair and reasonable in the circumstances for Public Trustee to be appointed trustee of the SST benefit notwithstanding the competing claim of Mr Genikas to be so appointed. Its reasons are set out in [9] above. 19 The Tribunal's reasons recognised that the Trustee had a discretion as to who to appoint as trustee of the SST benefit for Nathan, and then considered (as it was required to do by s 37(6) of the Act) whether the proper exercise of that discretion could fairly and reasonably have led to the appointment of Public Trustee. It did not treat the policy of the Trustee as decisive, or indeed as relevant. Consequently, the Tribunal did not err in law in its understanding or application of cl 27(g)(ii) of the Trust Deed of SST even though the Trustee may have done so. 20 The second ground of appeal requires consideration of the Tribunal's processes. Section 32 of the Act directs the Tribunal to conduct a "review hearing" if a complaint has not been resolved by conciliation. It must give the parties the opportunity to make written submissions by a specified date, and generally then conduct the review without oral submissions: s 34(1). In this case, the Tribunal conducted its review without oral submissions. 21 Mr Genikas' complaint is that he was not given the opportunity to respond to material presented to the Tribunal by Ellen Appleby. Although there is some duplication in her presentation of material, it comprises the following:

1. Letter of 19 April 2006 to the Tribunal.
2. Letter of 30 May 2006 to the Tribunal.
3. Copy of submissions made to the Tribunal dated 27 January 2006 and 2 February 2006, apparently concerning the review of the application of benefits under the AGEST fund which were the subject of a Tribunal decision of 4 April 2006.
4. Letter of 19 August 2006 to SST (apparently copied to and received by the Tribunal by facsimile on 23 August 2006).
5. Further submission received by the Tribunal on 2 November 2006. 22 Certain of those submissions were sent to support Ellen Appleby's application to be joined as a party to the complaint, so that she could be awarded the benefits or some of the benefits under the SST fund. Indeed, in her submissions, and in the submissions from Mr Genikas, there was extensive communication as to the relationship between Mr Genikas and Ms Appleby after they had separated in 1994, at least to the extent to which she had access to Nathan and had contributed to his maintenance and support, as well as to the nature of their ongoing relationship. There is also extensive material addressing the extent to which, if at all, Ellen Appleby was dependent upon Ms Appleby at the time of Ms Appleby's death, and as to the relative needs of Nathan and Ellen Appleby at the time of Ms Appleby's death. There is no need to refer to that material, as the Tribunal rejected Ellen Appleby's claim to participate in the SST benefit. I shall refer to that material only in so far as it touches upon Mr Genikas' suitability to be Trustee of the SST benefit on behalf of Nathan. 23 On 17 July 2006, in accordance with s 32 of the Act, the Tribunal duly notified SST, Mr Genikas and Ellen Appleby of the intended review hearing date of 21 September 2006 and invited each of them to make written submissions by 10 August 2006. It gave each of them copies of all material it had received from the other parties, and which had not already been provided. It pointed out that all submissions then received would be exchanged for further comment. The Tribunal forwarded to Mr Genikas with his copy of that notification the letters of 19 April 2006 and 30 May 2006 from Ellen Genikas, together with the enclosures, and a copy of the submissions of 27 January and 2 February 2006 which had been sent to the Tribunal by her apparently in about mid-2006. 24 There was some difficulty with each of Mr Genikas and Ellen Appleby receiving those notices. The time for the review hearing and for written submissions in relation to it was extended to 20 November 2006 and 9 October 2006 respectively. The time for submissions was then later extended to 30 October 2006, by letter from the Tribunal of 11 October 2006. In that last mentioned letter, Mr Genikas received a copy of the further letter of Ellen Appleby of 19 August 2006 (copied to the Tribunal by facsimile on 23 August 2006) for his comment. 25 On 3 November 2006, the Tribunal sent to Mr Genikas the further response of SST to its letter of 11 October 2006. The response of SST identified the fees to be charged by Public Trustee, by way of contrast with those asserted in general terms by Mr Genikas in his submission of 20 September 2006. The Tribunal's letter of 3 November 2006 said expressly that the contents were provided for information only and that no further response was sought. Strictly speaking, therefore, Mr Genikas was not given the opportunity to respond to what SST said about the fees to be charged by Public Trustee. He did not, however, complain about that on this appeal so I do not need to further consider that aspect. The SST information appears to have been prompted by Mr Genikas' submission of 20 September 2006 (sent to SST as part of the letter package of 11 October 2006) in which he asserted his understanding that Public Trustee charged a rate of 6% per annum, which (he said) would have the effect of cancelling out any or a substantial proportion of income fixing the amount for four years. As noted above, the Tribunal accepted that Public Trustee's fees would be those as identified by SST. 26 In response to the letter of 11 October 2006, Ellen Genikas also sent a further lengthy submission, received by the Tribunal on 2 November 2006. It addressed matters raised by Mr Genikas in his submission of 20 September 2006. 27 It is clear that Mr Genikas was aware that Ellen Appleby had put in issue his suitability to be trustee of the SST benefit to be granted to Nathan. He was also given copies of all material that she provided to the Tribunal touching upon all issues, including that issue, other than her final response received by the Tribunal on 2 November 2006. He did not identify on this appeal any element of that final submission which raised new allegations not previously raised in her earlier submissions. Her final response joined issue, so far as relevant, with a number of matters which he had asserted in his submission of 20 September 2006 by quoting extensively from a diary apparently kept by Ms Appleby. I shall comment upon the general procedure below, but subject to one qualification, I do not think that the diary references advance the contention of Mr Genikas of a want of procedural fairness in this instance as they relate principally to the issue upon which Mr Genikas was successful (that Nathan should receive 100% of the SST benefit payable) and only incidentally to his own character. His trustworthiness had been put in issue by Ellen Appleby from an early point in time. 28 In one respect, the information provided in Ellen Appleby's document received by the Tribunal on 2 November 2006 is a little more precise than her earlier allegations concerning another criminal charge of which (she asserts) Mr Genikas was found guilty. Otherwise, the allegations as to his trustworthiness are general ones made in a way which had previously been expressed and to which Mr Genikas had had the opportunity to respond. In this instance, the Tribunal, as its reasons show, did not have regard to that additional material. It had regard only to the offence regarding dishonesty concerning an insurance fraud. On this appeal, Mr Genikas did not dispute the fact of that conviction, but said that due to the period of time since it had occurred (some years ago) and its circumstances, it was not of relevance to the assessment which the Tribunal was required to make. 29 The Tribunal's reasons for affirming the decision of the Trustee concerned Mr Genikas' preparedness to assert a level of fees to be charged by Public Trustee which was greater than is the case, his lack of detail about the costs involved in the making of the proposed real estate investment, the desirability of having a capital fund as distinct from interest available to Nathan in the next few years, and the insurance fraud conviction as demonstrating his unsuitableness for being a trustee of the SST benefit on behalf of Nathan. 30 The material upon which Mr Genikas was given the opportunity to comment squarely raised his suitability to be a trustee in the light of the insurance fraud conviction. The letter of 19 April 2006 by which Ellen Appleby applied to be joined as a party to the complaint, focused upon her position and her claimed dependency. It also asserted that Mr Genikas was not trustworthy in part due to a criminal conviction. Her letter of 30 May 2006 was a response to the Tribunal seeking documentary confirmation of her allegations about Mr Genikas' trustworthiness. She said that she did not have documentary material to support her allegations, but identified in particular the insurance fraud conviction and "other charges in regards to" another entity, as well as domestic violence restraint orders allegedly procured against Mr Genikas by Ms Appleby. The Tribunal responded by letter of 8 June 2006 indicating that it was up to Ellen Appleby to substantiate her allegations. The submissions of 27 January and 2 February 2006 for the earlier Tribunal review, and the submissions of 19 August 2006, contained in essence the same material. The submission of 19 August 2006 is in effect a copy of the earlier submission with minor revisions to claim 50% of the SST benefit on behalf of Ellen Appleby. Its focus is on the dependency of Ellen Appleby upon Ms Appleby, but it also encloses material relating to the insurance fraud conviction. 31 In those circumstances, even assuming that the Tribunal should have given Mr Genikas a further opportunity to comment upon that new material, there was no operative breach of the obligation to accord procedural fairness: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 - 147; Turner v Official Trustee in Bankruptcy (1996) 71 FCR 418 at 420; Sommer v NM Superannuation Pty Ltd [2001] FCA 923 at [34]. That is, even if strictly speaking the Tribunal should have given Mr Genikas the opportunity to comment further on that additional material, its failure to do so in the particular circumstances did not in fact cause him any unfairness as the Tribunal (as its reasons show) did not in fact have regard to that additional material in making its decision. In all other respects, Mr Genikas was given a copy of the material which Ellen Appleby had provided to the Tribunal and the opportunity to respond to it. 32 Consequently, I do not consider that Mr Genikas has established legal error on the part of the Tribunal as raised in his second ground of appeal. 33 The third ground of appeal requires consideration of the Tribunal's reasons for reaching its conclusion. As noted, it had regard to Mr Genikas' assessment as to the fees to be charged by Public Trustee, his assessment of the costs of the proposed investment, and the desirability of having funds available, including capital funds, for Nathan's ongoing maintenance and support until he turned 18. It also had regard to what it called "the determinative factor", namely the insurance fraud conviction. 34 It is not shown to have erred in law in any way in its analysis or consideration of the first three of those four issues. 35 In my view, the Tribunal's assessment of Mr Genikas' approach to Public Trustee's fees was reasonably open to it. In his submission of 20 September 2006 to the Tribunal, Mr Genikas said that Public Trustee would charge 6% per annum, and that would cancel out "any or a substantial proportion" of income earned over a four year period by investing the SST benefit. As the Trustee asserted and the Tribunal found, Public Trustee would charge about $5060 on the initial receipt of the SST benefit and thereafter about $732 per annum. If the SST benefit was $106,000 and was to earn (say) 10% per annum, a fee of 6% on income would be only $636 of $10,600 and so would not represent a substantial proportion of the income. In that context the Tribunal was entitled to have regard to his assertion as to Public Trustee's fees without having checked on them as indicating, as it said, "a casualness inconsistent with the duty of such a Trustee". 36 In my view, it was also legitimate for the Tribunal to have regard to the fact that the proposed investment on behalf of Nathan which Mr Genikas had in mind would tie up all available capital, so that capital could not be applied towards his education for the next four years until he turned 18 and so that the revenue stream available for his maintenance and support during that period would be limited to the rental income from the property after expenses. It was also legitimate to have regard to the fact that Mr Genikas had not presented to the Tribunal any detailed budget analysis, supported in any relevant way by independent advice or documentation, as to the prospects of acquiring an investment property, the costs of so doing, the costs of servicing and maintenance of that property, assuming no borrowing, and the rental revenue. His figures were all very general. 37 The fourth factor to which the Tribunal had regard was that Mr Genikas had one conviction for an offence involving dishonesty. It said that it is an offence which renders him unsuitable to be a trustee of the benefit. I have some concerns at the ease with which the Tribunal reached that conclusion. The criminal conviction, which Mr Genikas did not dispute, concerned an insurance claim made in mid 1994, some 12 years before the Tribunal's decision. The material before the Tribunal indicated that he and Ms Appleby had been driving a car towing a caravan which began to sway in the wind, and eventually ran off the road, causing damage both to the car and to the caravan. The caravan was uninsured. It was towed back to Adelaide. Mr Genikas then arranged for it to be insured, and made a claim on the insurer, reporting that the incident causing damage to the caravan had occurred some time later and after the commencement of the period of insurance. The claim of $6500 was then met. 38 It is clear that that issue played large in the Tribunal's mind. It described it as "the determinative factor" and said that the offence itself rendered him unsuitable to be a trustee of the benefit. I am concerned that the Tribunal has taken the view that a 12 year-old criminal conviction of that nature indefinitely renders Mr Genikas unsuitable to be a trustee of a trust fund, or alternatively that irrespective of any other consideration it would render him unsuitable to be the trustee of the SST benefit. I will deal with the latter concern first. 39 I do not think I should read the Tribunal's reasons as saying that the insurance fraud conviction was the only reason for its selection of Public Trustee as the trustee of the SST benefit for Nathan. The Tribunal refers to three other considerations. Consequently, although it uses the words "the determinative factor" for the insurance fraud conviction, in context I do not think that can mean that it was the only factor it considered. I proceed on the basis that it took into account those other three matters. 40 If the Tribunal is to be taken as having said that such a conviction rendered Mr Genikas unfit to be a trustee, irrespective of circumstances of the offence and irrespective of the time that has elapsed since the offence was committed and irrespective of Mr Genikas' good character otherwise, then in my judgment it would have fallen into legal error. There is no statutory or common law rule that a person, by reason of a criminal conviction involving dishonesty is necessarily and indefinitely ineligible to be appointed the trustee of a trust. By contrast, s 206B(1) of the Corporations Act 2001 (Cth) disqualifies a person convicted of certain types of offences from managing corporations for a specified period, generally five years, although that period may be extended by up to 15 years on the application of the Australian Securities and InvestmentsCommission under s 206BA. However, as I have indicated, I do not think the Tribunal was so single-minded. 41 The former issue is, in effect, whether the Tribunal erred in law by placing weight upon the insurance fraud conviction either at all or to too great a degree. 42 The important consideration for the Trustee and, subject to s 37(6) of the Act, for the Tribunal is the best interests of the beneficiary or the beneficiaries and the security of the trust property: Miller v Cameron (1936) 54 CLR 572 at 580 - 581. In circumstances such as the present, it would be appropriate for the Trustee to be guided by the sorts of considerations to which the Court might have regard when exercising its powers under s 36 of the Trustee Act 1936 (SA). The Trustee must therefore have regard to all the particular facts; cf Re Estate of Roberts (1983) 20 NTR 13 at 17 - 18; Re Henderson [1940] Ch 764. In Re Grace [1955] QWN 81 the trustee was appointed showed that the putative trustee could secure a better income than the existing trustee. 43 The Tribunal's reasoning about the insurance fraud conviction is hard to understand. It appears to have regard to the circumstances of the offence, as it noted that it did not involve Mr Genikas' family. Although it does not say so, it cannot have overlooked that the conduct giving rise to the offence took place in 1994. It then says that it "renders him unsuitable to be a trustee" of the SST fund on behalf of Nathan. Implicitly it must be of the view that, because of the offence, the SST fund if held by Mr Genikas as trustee for Nathan might be at risk of Mr Genikas somehow misapplying the fund. I think that there is little warrant for such a conclusion. However, it is not possible to say as a matter of law that the Tribunal could not have thought, even after so long a time and even in the light of Mr Genikas' apparently good character since, including his custody and upbringing of Nathan since 1994, that there was some risk of misappropriation which still existed, even a slight one. There is therefore no basis for saying the Tribunal erred in law by taking that factor into account. As it was mentioned fourth, the description of the insurance fraud conviction as the "determinative factor" might be read as the factor which tipped the discretionary decision to one side of the scales rather than the other. On balance, bearing in mind that the Tribunal first referred to the three other factors to which I have referred, that is how I read the Tribunal's reasons. I do not read it as saying that the insurance fraud conviction would have dictated the decision irrespective of any other factors or was so significant that the other three factors were of little significance. I regard the use of the word "determinative" as indicating the further, but firm, tilting of the scales in favour of Public Trustee as the trustee of the SST benefit. 44 There remains my worry about the Tribunal's description of that offence as rendering Mr Genikas "unsuitable to be a trustee of the benefit" under the SST fund. The Tribunal also expressed "concern" that Mr Genikas did not seek to dispute the commission of the offence. I am unclear why that should be a concern, as distinct from the fact of the offence itself. Mr Genikas did not dispute on this appeal the fact of the offence. In his submissions to the Tribunal, his response was somewhat cryptic. It is sometimes a disadvantage of written submissions and untested written material that the parties do not join issue clearly. In response to the submission of Ellen Appleby enclosed with her letter of 19 August 2006, Mr Genikas said in his submission of 29 October 2006, "Re page 258 - 264 I do not understand the relevance of this. It is unnecessary to bring up offences that may have been committed by the deceased." The pagination is the Tribunal's pagination of all material on its file; pages 258 - 264 included an information against Ms Appleby for the same offence and her statement which clearly implicated Mr Genikas as the principal offender. In its context, I think the Tribunal's remark is directed to Mr Genikas not having clearly acknowledged his commission of the offence, even though consistently that was an allegation Ellen Appleby had made against him. 45 The Tribunal has not misunderstood Mr Genikas' position. It has referred to the factors relevant to whether he should be appointed trustee which he raised, as well as those which it otherwise regarded as appropriate. If it has not placed as much weight upon what Mr Genikas as trustee might have achieved on behalf of Nathan compared to what Public Trustee might achieve, that may be because Mr Genikas did not present any detailed analysis of his proposed investment and the costs and rental revenue associated with it. It has placed weight upon the insurance fraud conviction, but for the reasons given I do not consider it fell into legal error in doing so. 46 The issue on this appeal is whether the Tribunal erred in law in being satisfied that the decision of the Trustee, in its operation in relation to Nathan or to him, was fair and reasonable in the circumstances. For the reasons given, I am not persuaded that it fell into legal error. Accordingly, the appeal is dismissed. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 17 July 2007 Counsel for the Appellant: The appellant appeared in person