Finch v Telstra Super Pty Ltd [2010] HCA 36

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HEYDON, CRENNAN AND BELL JJ

ALAN MICHAEL FINCH APPLICANT

AND

TELSTRA SUPER PTY LTD RESPONDENT

Finch v Telstra Super Pty Ltd [2010] HCA 36

20 October 2010

M5/2010

ORDER

1. Special leave to appeal granted.

2. Leave to file proposed amended draft notice of appeal granted.

3. Proposed amended draft notice of appeal treated as filed in the appeal and appeal treated as instituted and heard instanter and allowed with costs.

4. Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 23 December 2009 and 23 February 2010, and in their place order that the appeal to that Court from the order of Byrne J made on 28 November 2008 be dismissed with costs.

On appeal from the Supreme Court of Victoria

Representation

J P Brett with M C Wall for the applicant (instructed by Arnold Thomas & Becker)

A G Uren QC with R J Harris for the respondent (instructed by Freehills)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Finch v Telstra Super Pty Ltd

Superannuation – Construction of superannuation trust deed – Applicant applied for total and permanent invalidity ("TPI") benefit under superannuation trust deed – Definition of TPI required continuous absence from "all active Work" for six months – Whether "all active Work" limited to work for employer responsible for superannuation fund ("Telstra") – Whether period of absence assessed at date applicant left Telstra or date of trustee's determination.

Trusts – Superannuation – Review of decisions of trustees of superannuation trusts – Trustee required to determine whether applicant was "unlikely ever to engage in any gainful Work" – Whether Karger v Paul [1984] VR 161 applies to superannuation trusts – Whether trustee's decision discretionary – Whether trustee gave genuine consideration to application – Whether trustee failed to comply with duties to make inquiries.