Military Superannuation & Benefits Board of Trustees No 1 v Drake [2003] FCA 78

FEDERAL COURT OF AUSTRALIA

Military Superannuation & Benefits Board of Trustees No 1 v Drake [2003] FCA 78

SUPERANNUATION – complaint to Superannuation Complaints Tribunal – whether the complaint to the trustee was about the same subject matter as the complaint to the Tribunal – whether a determination by the Tribunal to vary or substitute a decision of the trustee is invalid if it is not authorised by the rules of the Trust Fund – whether a determination is invalid when it relies upon a head of power that did not authorise the determination and does not rely upon a head of power that could have authorised the determination

Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 4(b), 19(1)(a) and 37

Briffa v Hay (1997) 75 FCR 428 - considered Seafarers' Retirement Fund Pty Ltd v Oppenhuis (1999) 94 FCR 594 – considered Lykogiannis v Retail Employees Superannuation Board (2000) 97 FCR 361 - cited Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330 - cited Collins v AMP Superannuation Ltd (1997) 75 FCR 565 - cited MILITARY SUPERANNUATION AND BENEFITS BOARD OF TRUSTEES NO 1 v PHILIP GRAHAM DRAKE V 691 OF 2001 MERKEL J 18 FEBRUARY 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 691 OF 2001

On Appeal from the Superannuation Complaints Tribunal constituted by Ms Carol Foley, Acting Deputy Chairperson, Ms Katy Adams, Member and Mr Robert Putnam, Member

BETWEEN: MILITARY SUPERANNUATION AND BENEFITS BOARD OF TRUSTEES NO 1

APPELLANT

AND: PHILIP GRAHAM DRAKE

RESPONDENT JUDGE: MERKEL J

DATE OF ORDER: 18 FEBRUARY 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT the determination of the Superannuation Complaints Tribunal made on 25 May 2001 be set aside. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.