Bennett v SAS Trustee Corporation [2008] NSWIRComm 39

Industrial Court of New South Wales

CITATION: Bennett v SAS Trustee Corporation [2008] NSWIRComm 39

PAUL GRAHAM BENNETT Applicant PARTIES: SAS TRUSTEE CORPORATION Respondent

FILE NUMBER(S): IRC 1492 of 2007

CORAM: Schmidt J

CATCHWORDS: Superannuation - notice of motion seeking joinder - not opposed - order for joinder made

LEGISLATION CITED: Police Regulation (Superannuation) Act 1906 Superannuation Administration Act 1996

HEARING DATES: 28 February 2008

DATE OF JUDGMENT: 29 February 2008

APPLICANT: Mr P Bennett, self represented LEGAL REPRESENTATIVES:

RESPONDENT: Mr TM Ower of counsel

JUDGMENT:

- 3 - INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Schmidt J

29 February 2008

Matter No IRC 1492 of 2007

PAUL GRAHAM BENNETT v SAS TRUSTEE CORPORATION

Application by Paul Graham Bennett to appeal against the decision of the SAS Trustee Corporation given on 4.4.2007

JUDGMENT

[2008] NSWIRComm 39

1 Paul Graham Bennett commenced these proceedings in September 2007, seeking to appeal a decision of the SAS Trustee Corporation Disputes Committee, given in April 2007. The Committee had affirmed a decision to pay Margaret Schofield a pension, in accordance with s 11AA(1)(b) of the Police Regulation (Superannuation) Act 1906, on the basis that Ms Schofield was the de facto partner of Mr Bennett's father, at the time of his death and for at least the preceding 3 years. 2 In communicating the Committee's decision to Mr Bennett, the Corporation also advised Mr Bennett of the provisions of s 88 of the Superannuation Administration Act 1996, which permitted a person aggrieved by such a determination, to appeal to this Court. 3 By motion filed in October 2007, Mr Bennett sought orders joining Ms Schofield as a party to the proceedings. In November, the joinder application was consented to by the respondent, but somewhat surprisingly, was opposed by Ms Schofield, whose solicitors were then represented by an agent, Mr Watson. 4 The joinder application was consequently listed for hearing, with directions given as to the steps to be taken by way of preparation for that hearing. The matter was relisted on 20 February, on Mr Bennett's application, because Ms Schofield had failed to comply with the Court's directions. There was then no appearance for Ms Schofield, who may have been unaware of the listing, given that there had been a failure to file a notice of appearance, as had been undertaken during the proceedings in November. A notice of appearance was filed for Ms Schofield on 21 February 2008, under cover of a letter which stated that the notice had been filed 'to enable us to be joined'. 5 When the matter came on for hearing on 28 February, the position was that Mr Watson had asked that the respondent mention Ms Schofield's appearance, in order to advise the Court that the joinder application was no longer opposed. Neither Mr Bennett nor the respondent, had received prior notice of that position. 6 I was satisfied, in the circumstances, that the joinder order should be made. Ms Schofield's interest in the application was beyond doubt, as she latterly accepted. She is the beneficiary of the decision which Mr Bennett seeks to challenge. The respondent properly consented to the joinder application from the outset. Ms Schofield's initial opposition to the order sought was difficult to understand, given the potential consequences of the proceedings, as I raised with her legal representative in November 2007. Regrettably, the failure to comply with the undertaking then given, to file a notice of appearance for Ms Schofield within 7 days, as well as the failure to comply with the Court's directions, or to inform the Court and the other parties, when Ms Schofield's attitude to the joinder application altered, was not only discourteous to the other parties to the proceedings, but resulted in unnecessary delay of these proceedings, as well as a waste of costs and court time. These are matters which may require consideration in due course, in relation to the question of costs. 7 By agreement, the matter has now been listed for hearing of the question of whether Mr Bennett has standing to bring these proceedings, on 22 April 2008. Orders 8 For the reasons given, I order the joinder of Ms Schofield as a respondent to the proceedings. ------------------------