Nowicka v Superannuation Complaints Tribunal [2008] FCA 939

FEDERAL COURT OF AUSTRALIA

Nowicka v Superannuation Complaints Tribunal [2008] FCA 939

SUPERANNUATION – Superannuation Complaints Tribunal – complaint – power to treat complaint as withdrawn where misconceived – review of Tribunal's decision to treat complaint as withdrawn – soldier absent without leave at date of death – member of superannuation scheme – death benefit not payable to spouse where member absent without leave unless absence due to sufficiently mitigating circumstances – determination by Tribunal that those circumstances existed – interest for delay in payment of benefit – date from which interest runs – whether death of member or determination of Tribunal

PRACTICE AND PROCEDURE – stare decisis – precedent – decision based on absence of power in tribunal to award interest – Judge then said that even if the tribunal had power, the requirements for its exercise were not made out – whether a second reason for decision – whether obiter – degrees of obiter Superannuation (Resolution of Complaints) Act 1993 (Cth), ss 22(3)(b), 41(3) Military Superannuation and Benefits Rules, rules 40, 69, Schedule 6 Military Superannuation and Benefits Board of Trustees No 1 v Batt (2005) 149 FCR 448 considered Jacobs v London County Council [1950] AC 361 cited Commissioners of Taxation (NSW) v Palmer [1907] AC 179 cited McBride v Monzie Pty Ltd [2007] FCA 1947 cited Brunner v Greenslade [1971] Ch 993 applied Chief Supplementary Benefit Officer v Leary [1985] 1 WLR 84 cited BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234 applied Cross and Harris, Precedent in English Law, 4th ed (1991) ANETA NOWICKA v SUPERANNUATION COMPLAINTS TRIBUNAL, MARGARET MCDONALD and MILITARY SUPERANNUATION AND BENEFITS BOARD OF TRUSTEES NO 1

VID 784 of 2007

SUNDBERG J

20 JUNE 2008