Gale v Australian Financial Complaints Authority [2023] FCA 470

Federal Court of Australia

Gale v Australian Financial Complaints Authority [2023] FCA 470 File number(s): VID 501 of 2022

Judgment of: MCEVOY J

Date of judgment: 15 May 2023

Catchwords: SUPERANNUATION – appeal from a decision of the Australian Financial Complaints Authority – the Authority approved a decision of the second respondent (Trustee) that the applicant was not entitled to a pension payable from his superannuation fund commencing from the date he turned 55 – the Trustee and the Authority found that the applicant did not meet a condition of release in item 108 of Sch 1 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) as the pension benefit was not a non-commutable benefit – appeal allowed – the Authority erred in finding that the pension benefit was commutable – the Authority did not properly consider the plan rules for the superannuation fund, which only allowed commutation of the benefit on the approval of the Trustee – Authority ought to have engaged more meaningfully with the question of whether the Trustee's decision to not compromise the claim was fair and reasonable in the circumstances

Legislation: Acts Interpretation Act 1901 (Cth) s 25D Corporations Act 2001 (Cth) ss 1055, 1055A,1057 Superannuation Industry (Supervision) Act 1993 (Cth) Superannuation Industry (Supervision) Regulations 1994 (Cth) regs 1.03, 1.06, 6.01, 6.17, 6.17C, 6.18, sch 1

Cases cited: Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28 Board of Trustees of the State Public Sector Superannuation Scheme v Edington (2011) 119 ALD 472; [2011] FCAFC 8 Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 Brown v Repatriation Commission (1985) 7 FCR 302; [1985] FCA 236 Carter v Commissioner of Taxation (2020) 279 FCR 83; [2020] FCAFC 150 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456 Edser v QSuper Board [2021] FCA 1437 EEU20 v Meat Industry Employees' Superannuation Fund Pty Ltd (Trustee) (No 2) [2020] FCA 1536 Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 Lykogiannis v Retail Employees Superannuation Pty Limited (2000) 97 FCR 361; [2000] FCA 327 Mercer Superannuation (Australia) Ltd v Billinghurst (2017) 255 FCR 144; [2017] FCAFC 201 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 QSuper Board v Australian Financial Complaints Authority (2000) 276 FCR 97; [2000] FCAFC 55 Reeves v Nulis Nominees (Australia) Limited (Trustee) [2022] FCA 627 Repatriation Commission v Owens (1996) 70 ALJR 904 Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359; [2001] FCA 1130 Rushton v Commonwealth Superannuation Corporation (No 3) [2021] FCA 358 Seafarers' Retirement Fund Pty Ltd v Oppenhuis (1999) 94 FCR 594; [1999] FCA 1683 Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6; [1995] FCA 707 Wan v BT Funds Management Limited [2022] FCFCA 189 Thomas G, Thomas on Powers (2nd ed, Oxford University Press, 2012)