Collier, Robert John & Anor v First State Super Trustee Corp [1998] FCA 1520

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG1284 of 1998

BETWEEN: robert john collier

First Applicant

MARION LOUISE COLLIER

Second Applicant

AND: FIRST STATE SUPER TRUSTEE CORPORATION

Respondent

JUDGE: HELY J

DATE OF ORDER: 25 November 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed. 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 NG 1284 of 1998

BETWEEN: robert john collier

First Applicant

MARION LOUISE COLLIER

Second Applicant

AND: FIRST STATE SUPER TRUSTEE CORPORATION

Respondent

JUDGE: HELY J

DATE: 25 november 1998

PLACE: SYDNEY

EXTEMPORE REASONS FOR JUDGMENT HELY J: I think it's better if I give a decision in this matter immediately because the matter is obviously of some importance so far as Mr and Mrs Collier are concerned, and of some urgency so far as they are concerned. As I understand it, Mr Collier was, at least until recently a member of the First State Superannuation Fund. He had standing to the credit of his account in that fund the sum of approximately $4000. Proceedings were instituted in the Family Court of Australia between Mr and Mrs Collier which resulted in the making of some orders by consent. One of the orders which was made by consent on 10 November 1998 was to the following effect: "3. By consent both applicant and respondent agree to have an order made requiring First State Superannuation Trust to release to the applicant within seven days of today's date two thirds of the amount held in the name of the respondent (due to extreme financial hardship) of the applicant." The financial hardship to which reference was made is that Mrs Collier is apparently a tenant of some premises. There are considerable arrears of rent due in relation to those premises and the Residential Tenancies Tribunal has made an order for the payment of those arrears, and I assume that the consequence of non-payment is that Mrs Collier will either be evicted from or at least be at risk of eviction from those premises, which I infer are the place in which she lives. That order was served on the trustee of the fund but the trustee declined to act in conformity with it because it took the view that it was not entitled, having regard to the constitution of the fund, to release the moneys in question. Mr and Mrs Collier have applied to this Court, in effect, for an order for the immediate release of the funds, or at least for an order for the immediate release of two thirds of the funds, in conformity of the terms of settlement. Leave to file short notice of the application was given yesterday and the matter came on for hearing this morning. The superannuation fund was established pursuant to the First State Superannuation Act 1992. Section 36 of that Act deals with the circumstances in which a benefit or a preserved benefit is payable. Shortly put, the effect of sections 36(2) and (3), is that a benefit may be paid under the State Act if it is permitted or required to be paid under the Superannuation Industry (Supervision) Act 1993 (Cth) ("SIS Act") to be paid by a trustee in comparable circumstances. That, in turn, takes one to section 31(1) and to section 31(2)(g)(h) of the SIS Act which in turn refers one to regulations made pursuant to the Act to determine entitlement to payment. Regulation 6.19A of the regulations made under the SIS Act deals with release of benefits on compassionate grounds. The regulation provides and I quote, rr 6.19A(1): "A person may apply to APRA for a determination that an amount of the person's preserved benefits, or restricted non‑preserved benefits, in a superannuation entity may be released on the ground that it is required: (a) to pay for medical treatment or medical transport for the person or a dependent; or (b) to enable the person to make a payment on a loan, to prevent: (1) foreclosure of a mortgage on the person's principal place of residence; or (2) exercise by the mortgagee of an express, or statutory, power of sale over the person's principal place of residence; or (c) to modify the person's principal place of residence, or vehicle, to accommodate the special needs of a person, or a dependent, arising from severe disability; or (d) to pay for expenses associated with the person's palliative care, in the case of impending death; or (e) to pay for expenses associated with a dependent's: (1) palliative care, in the case of impending death; or (2) death; or (3) funeral; or (4) burial; or (f) to meet expenses in other cases where the release is consistent with a ground mentioned in paragraphs (a) to (e,) as APRA determines." The circumstances of the present case do not fall within any of the paragraphs (a) to (e) of regulation 6.19A(1). If any of those paragraphs was to operate it would be paragraph (f). But the operation of that paragraph is dependent upon a determination by APRA that a particular type of case is consistent with one of the grounds mentioned in paragraphs (a) to (e). (I should interpolate that APRA is the successor to the Insurance and Superannuation Commission as the Federal body generally charged with the regulation of the superannuation industry.) No determination has been made by APRA which would authorise the payment in circumstances such as the present. The Insurance and Superannuation Commission has issued guidelines which, I am informed, are currently operative, which include guideline 29, as follows: "Another example where release would not be permitted under [sub]paragraph (f) would be where release is requested to enable a tenant to pay overdue rent to a landlord, who was threatening eviction from premises which the tenant considers to be his/her principal place of residence. The rented premises may be the principal place of residence, but the purpose of such a release (viz to prevent eviction from rented premises), is not compatible with the purpose of preventing foreclosure or power of sale over a home which is owned by an applicant." Thus not only has APRA not made a determination which would favour the position of Mr and Mrs Collier, the determination which it has made is adverse to their position. Mrs Collier has submitted that the APRA determination is invalid as being without parliamentary approval or authority. It is not necessary for me to determine that submission, because even if it were correct, it would simply annihilate paragraph 29 as an operative provision. That is not sufficient to meet the needs of Mr and Mrs Collier because they require a positive determination of APRA before paragraph (f) will apply. As no route than Regulation 6.19A has been identified as the basis for an entitlement to be paid these moneys, it follows that, in my opinion, Mr and Mrs Collier have not made out any entitlement to be paid the moneys in question. A booklet issued by First State Super styled "Your Member Guide" contains a section on page 23 dealing with complaints and disputes. Under the heading of Complaints and Disputes the following appears: "If you feel that you have been treated unfairly or disadvantaged by a decision of the administrator or the insurer, you may lodge a notice of dispute with the Trustee, First State Super Trustee Corporation (FTC). The FTC will review the matter and make a determination. If you are still unsatisfied following that review, you may lodge an appeal with the New South Wales Industrial Relations Commission (in Court Session) within six months of the determination. Because of the comprehensive nature of the complaints and disputes resolution procedures within FTC and SAA, First State Super does not come within the jurisdiction of a Commonwealth Superannuation Complaints Tribunal. If you wish to make a formal complaint about any aspect of the service you have received, you should contact FTC or the SAA." Because this matter is being heard urgently I do not have before me any more information about complaints and disputes that is contained in this booklet. I would however be prepared to infer upon the basis of the booklet that the passages which I have quoted are operative in relation to the relevant scheme. Mr and Mrs Collier have not followed the procedures to which I have referred, and Mr Matthews, who appeared for First State Superannuation has submitted that this failure goes to the jurisdiction of the Court to make any orders in the proceedings instituted by Mr and Mrs Collier. I am not sure whether that is right, but having regard to the conclusion to which I have come on the merits, it is not necessary for me to pursue that matter any further. The existence and the failure to follow those procedures could be highly relevant to the exercise, for example, of a discretion whether or not to give declaratory relief; they may also be relevant to the question as to whether at this particular point in time Mr and Mrs Collier have established an entitlement to be paid the moneys in question (assuming that they were otherwise payable) without first having followed the complaints and disputes procedures. Again, because of the conclusion to which I have come on the merits, it is not necessary to investigate this matter further. Mr and Mrs Collier have appeared this morning without the benefit of legal assistance. I do not want to make any orders that would preclude any approach that they may wish to make to any administrative authority in the future and I do not want by anything I do this morning, to diminish their ability to approach any such authorities for the making of determinations that might assist them. That being so, I think it best that I simply decline to make any order on the application, rather than taking any more determinative steps. Mrs Collier has asked me not to proceed in that way, but to determine the application so that she can appeal. Accordingly, the application is dismissed. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely