Qantas Superannuation Limited v McAulay [2019] FCA 109

FEDERAL COURT OF AUSTRALIA

Qantas Superannuation Limited v McAulay [2019] FCA 109 Appeal from: D17-18\119

File number: NSD 317 of 2018

Judge: PERRY J

Date of judgment: 13 February 2019

Catchwords: SUPERANNUATION – where trustee of regulated superannuation fund offset estimated future disability support pension (DSP) payments against the Total and Permanent Disablement (TPD) benefit payable to the member – where effect of offsetting DSP was to reduce the TPD payable to nil but member paid withdrawal benefit – where appeal on a question of law from decision of the Superannuation Complaints Tribunal setting aside the trustee's decision as unfair and unreasonable – consideration of what is meant by unfair and unreasonable in s 37 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) – consideration of principles governing construction of superannuation trusts – whether DSP is "income" for the purposes of the Superannuation Plan – consideration of the different purposes of the provision of a disability benefit and a TPD benefit under the Superannuation Plan – whether the trustee's construction of the offsetting provision means that the member loses the benefit of membership contrary to the prescribed statutory purposes of the regulated superannuation fund – whether Tribunal erred in reading down the offsetting provision in the Superannuation Plan by reference to the ejusdem generis principle – appeal allowed PRACTICE AND PROCEDURE – application under rule 33.29 of the Federal Court Rules 2011 (Cth) to rely upon further evidence on the appeal – where further evidence sought to be relied upon as evidence of circumstances surrounding the amendment of the relevant rule in the Superannuation Plan – where documents evidence only the trustee's subjective intention – application dismissed