Edwards v Postsuper Pty Ltd [2007] FCAFC 83

FEDERAL COURT OF AUSTRALIA

Edwards v Postsuper Pty Ltd [2007] FCAFC 83 SUPERANNUATION – function of Superannuation Complaints Tribunal –definition of "dependent" – whether limited to persons who are financially dependent – consideration of Tribunal's reasons – whether Tribunal satisfied s 40 of the Superannuation (Resolution of Complaints) Act 1993 (Cth). Acts Interpretation Act 1901 (Cth), s 25D Superannuation (Resolution of Complaints) Act 1993 (Cth), ss 14, 37, 40, 46 Cameron v Board of Trustees (2003) 130 FCR 122 followed BRIAN EDWARDS AND JEANETTE EDWARDS v POSTSUPER PTY LTD AND ANOR NSD2250 OF 2006

TAMBERLIN, EMMETT & MIDDLETON JJ

5 JUNE 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD2250 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: BRIAN EDWARDS

First Appellant

JEANETTE EDWARDS

Second Appellant

AND: POSTSUPER PTY LTD

First Respondent

SUPERANNUATION COMPLAINTS TRIBUNAL

Second Respondent

JUDGES: TAMBERLIN, EMMETT & MIDDLETON JJ

DATE OF ORDER: 5 JUNE 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The Appellants pay the First Respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD2250 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: BRIAN EDWARDS

First Appellant

JEANETTE EDWARDS

Second Appellant

AND: POSTSUPER PTY LTD

First Respondent

SUPERANNUATION COMPLAINTS TRIBUNAL

Second Respondent

JUDGES: TAMBERLIN, EMMETT & MIDDLETON JJ

DATE: 5 JUNE 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT:

THE PROCEEDING 1 The appellants are the parents of a postal worker who died on 6 March 2003. At the time of his death, the deceased was a member of the Australia Post Superannuation Scheme (the Scheme). The trust deed pursuant to which that scheme was established (the Trust Deed) provided that a benefit payable on the death of a member was to be paid or applied by the trustee of the Scheme to or for the benefit of, relevantly, the dependents of the deceased member. This appeal concerns the exercise of that power by paying a benefit to the de facto spouse and infant daughter of the deceased. The appellants claim that they should have been paid at least part of the benefit. 2 The matter comes before the Full Court by way of an appeal from orders made by a judge of the Court dismissing an appeal by the appellants under s 46(1) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Complaints Act). An appeal under s 46(1) of the Complaints Act from a determination of the Tribunal is limited to a question of law. 3 Clause 11.6(a) of the Trust Deed relevantly provides that any benefit payable on the death of a member of the Scheme at the time of his death is to be paid or applied to or for the benefit of, relevantly, the member's dependents. Under clause 2 of the Trust Deed, dependent means, in relation to a member: · the spouse or child of the member, and · any other person who, in the opinion of the trustee of the Scheme, was at the time of the death of the member, in any way dependent on the member. Child includes an ex-nuptial child and spouse includes a person who, at the date of death of a member, was in the opinion of the trustee, ordinarily living with the member as his wife on a permanent and bona fide domestic basis. Clause 2 also provides that beneficiary means a person who is presently entitled to receive a benefit under the Scheme in accordance with the Trust Deed. 4 Section 14(2) of the Complaints Act permits a person to make a complaint to the Superannuation Complaints Tribunal established by s 6 of the Complaints Act (the Tribunal) that a decision of the trustee of a superannuation scheme was unfair or unreasonable. Under s 27 of the Complaints Act, if a complaint has been made to the Tribunal, the Tribunal must inquire into the complaint and try to settle it by reconciliation. Under s 32(1), if the Tribunal has tried to settle a complaint by conciliation but has not been successful, a date, time and place for a review meeting must be fixed. The Tribunal must write to the parties inviting written submissions and a party may make written submissions to the Tribunal for the purposes of the review meeting. Under s 34, the Tribunal may make an order allowing the parties to make oral submissions to the Tribunal at the review meeting but otherwise the Tribunal must conduct a review meeting without oral submissions from the parties. 5 Under s 37(1) of the Complaints Act, for the purpose of reviewing a decision that is the subject of a complaint under s 14, the Tribunal has all the powers, obligations and discretions conferred on the trustee and must make a determination, on reviewing the trustee's decision: · affirming the decision; · remitting the matter to the trustee for reconsideration; · varying the decision; or · setting aside the decision and substituting its own decision for the decision so set aside. However, under s 37(6) the Tribunal must affirm a decision if it is satisfied that the decision was fair and reasonable, in the circumstances, in its operation in relation to any person who has become a party to the complaint and has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person who has an interest in the death benefit. 6 The first respondent (the Trustee), who is the trustee of the Scheme, notified the appellants on 21 April 2004 that it had decided to pay 75% of the benefit payable on the death of the deceased to the de facto spouse of the deceased and the remaining 25% to the deceased's daughter by that spouse. The appellants were dissatisfied with that decision and lodged a complaint pursuant to s 14(2) of the Complaints Act. It is not disputed that the appellants had standing to do so. On 17 January 2006, the Tribunal affirmed the Trustee's decision to pay 75% of the death benefit to his de facto spouse and 25% to his daughter. 7 On 20 February 2006, the appellants filed a notice of appeal pursuant to s 46 of the Complaints Act. An amended notice of appeal was filed on 16 August 2006. On 24 October 2006 a judge of the Court ordered that the appeal be dismissed. On 21 November 2006 the primary judge ordered that the appellants pay half of the Trustee's costs of the proceeding. The appellants filed a notice of appeal from those orders on 14 November 2006. A further amended notice of appeal was filed on 15 February 2007.