Faull v Superannuation Complaints Tribunal [1999] NSWSC 1137

New South Wales Supreme Court CITATION : Faull v Superannuation Complaints Tribunal [1999] NSWSC 1137 CURRENT JURISDICTION : Equity Division Commercial List FILE NUMBER(S) : 50091/99 HEARING DATE(S) : 29/10/99 JUDGMENT DATE : 26 November 1999

PARTIES : Maxwell John Faull - Plaintiff Superannuation Complaints Tribunal - Defendant JUDGMENT OF : Rolfe J

LOWER COURT JURISDICTION : LOWER COURT FILE NUMBER(S) : 97-C0832\1 LOWER COURT JUDICIAL OFFICER : Mr N. Wilkinson, Mr R. Putnam, Mr B. Sharpe

COUNSEL : SOLICITORS : Mr S.P. Wilde of Cowley Hearne - Plaintiff Australian Government Solicitor - Defendant CATCHWORDS : Commercial Arbitration Act 1984 (NSW) ACTS CITED : Succession Act 1981 (Qld) Supervision Act CASES CITED : Promenade Investments Pty Limited v The State of New South Wales (1992) 26 NSWLR 203 Natoli v Walker (Court of Appeal (NSW) - 26 May 1994 - unreported) DECISION : 1. Summons for leave to appeal filed on 23 July 1999 dismissed; 2. No order as to costs.

I N D E X

Page

Introduction 1

The Arbitration Award And The Reasons 4

The Grounds Of Appeal 11

The Questions Of Law Said To Be Raised 13

Was Ms Faull A Partial Dependant 14

The Personal Representative Point 16

Other Matters 17

Orders 18

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

ROLFE J

FRIDAY, 26 NOVEMBER 1999

50091/1999 - FAULL v SUPERANNUATION COMPLAINTS TRIBUNAL

JUDGMENT

HIS HONOUR:

Introduction 1 The plaintiff, Mr Maxwell John Faull, filed a Summons for leave to appeal against an Arbitral Award of the Superannuation Complaints Tribunal, ("the Tribunal"), dated 22 June 1999, pursuant to s.38 of the Commercial Arbitration Act 1984 (NSW), ("the Act"). 2 On 10 August 1999 the Tribunal filed an appearance and, on 17 August 1999, it filed a submitting appearance, submitting to such order as the Court may make, save in relation to costs. 3 It is necessary to state the facts in a little detail to understand how the proceedings arise. The plaintiff was married to Ms Alison Faull. They ceased to cohabit, initially, in about 1985 or 1987 and, finally, in about 1990, after which they were divorced. There was one child of the marriage, Mr Llewellyn John Faull, ("the deceased"), who was born on 27 February 1976 and died, as a result of injuries sustained in the course of his employment, on 16 April 1995. From the time when Mr and Ms Faull ceased to live together, the deceased lived with Ms Faull until his death. The deceased had no issue, had not married, and died intestate. 4 The deceased had contributed to a superannuation fund and, at the time of his death, the approximate value of the death benefit from that fund was $235,114.73. Ms Faull applied to Retail Employees Superannuation Trust, ("REST"), which administers the superannuation fund, for a payment out to her of the superannuation death benefit and, on 1 May 1997, the Trustee wrote to Mr Faull advising that it proposed to distribute the superannuation benefit wholly to Ms Faull, and stating that if he agreed with that proposal he need take no further action. 5 The letter continued:- "The benefit will be paid in accordance with this proposal unless REST receives advice from you, or any other person, claiming to have an interest in the distribution of this benefit, that you do not agree with this proposal. Your advice must be in writing and REST must receive it within 28 days of this letter, that is, before 30/5/1997. Unless REST receives details of your objection before this date, you will subsequently be unable to complain about the payment to the Superannuation Complaints Tribunal." 6 Solicitors acting for Mr Faull disputed the Trustee's determination and, by letter dated 28 August 1997, the Trustee affirmed its previous decision and advised that if any further complaint was to be made it should be to the Tribunal. In due course Mr Faull complained to the Tribunal, which issued its Award. 7 The Award stated, under the heading "Procedural Matters", that the Tribunal approached the determination of the matter thus:- "The Parties to the Arbitration (the Parties) have requested the Superannuation Complaints Tribunal (the Tribunal) to arbitrate the dispute in accordance with the terms and conditions of the executed Deed of Agreement (the Agreement) which is retained on the Tribunal files. The matter was originally scheduled for a Review Meeting of the Tribunal on 10 February 1998. Submissions were invited and received from all Parties and responses to those submissions. The handing down of the Decision of the Full Federal Court prevented the Review Meeting from taking place. The Tribunal conducted the Arbitration on the papers and had before it all the documents submitted by the Parties. The Trustee and the Complainant chose to make additional submissions to the Arbitration Meeting and these submissions were distributed to the other Parties. The Complainant and the Trustee responded in writing to these submissions. All documents are retained on the Tribunal file for record purposes and all documents other than the response submissions had been copied and distributed to the Parties before the Arbitration Meeting." 8 The Parties were stated to be Mr Faull, the trustee, and Ms Faull. In the present proceedings Ms Faull did not appear, although I was informed that she had been made aware of the proceedings and did not wish to be heard in relation to them.