Agnew v Westscheme Pty Ltd [2004] FCA 1675

FEDERAL COURT OF AUSTRALIA

Agnew v Westscheme Pty Ltd [2004] FCA 1675 SUPERANNUATION – appeal from a decision of Superannuation Complaints Tribunal – extension of time – whether any arguable case that Tribunal in error of law Superannuation (Resolution of Complaints) Act 1993 (Cth) s 46, 46(2) Federal Court Rules O 53 r 7(3) Gallo v Dawson (1990) 93 ALR 479 cited Attorney-General for the Commonwealth v Breckler (1999) 197 CLR 83 cited WAYNE AGNEW v WESTSCHEME PTY LTD W50 of 2004 RD NICHOLSON J 17 DECEMBER 2004 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W50 OF 2004

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL CONSTITUTED BY N CULLEN AND B SHARPE

BETWEEN: WAYNE AGNEW

APPLICANT

AND: WESTSCHEME PTY LTD

RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 17 DECEMBER 2004

WHERE MADE: PERTH

THE COURT ORDERS THAT: The applicant's application for extension of time to file and serve a notice of appeal be dismissed, with no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W50 OF 2004

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL CONSTITUTED BY N CULLEN AND B SHARPE

BETWEEN: WAYNE AGNEW

APPLICANT

AND: WESTSCHEME PTY LTD

RESPONDENT

JUDGE: RD NICHOLSON J

DATE: 17 DECEMBER 2004

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant applies for an extension of time in which to file and serve a notice of appeal from a decision of the Superannuation Complaints Tribunal ('the Tribunal'). The decision was given on 2 February 2004. 2 The application for extension of time is made necessary by the provisions of s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) ('the Act'). That provides for a right of appeal to the Federal Court 'on a question of law' from the determination of the Tribunal. However, it also provides that the appeal is to be instituted not later than the 28th day after the day on which a copy of the determination of a tribunal is given to the person 'or within such further time as the Federal Court (whether before or after the end of that day) allows'. 3 In the course of his oral submissions the applicant referred to the Attorney-General for the Commonwealth v Breckler (1999) 197 CLR 83 and particularly at 116, at [60] in the reasons for judgment of Kirby J. There it is stated that the Act expressly contemplates that the Tribunal will have a relationship with the courts and be subordinate to them. Reference is made to the right of 'appeal' to the Federal Court on a question of law from a determination of the Tribunal. In that paragraph and in par [62], to which the applicant also made reference, his Honour is describing the affect of the Act and the scheme which it establishes in relation to the Tribunal. It does not add to the applicant's case in terms of making out the availability of an arguable case.