Edwards v Postsuper Pty Ltd [2007] FCAFC 83 (5 June 2007)

SUPERANNUATION – function of Superannuation Complaints Tribunal –definition of "dependent" – whether limited to persons who are financially dependent – consideration of Tribunal’s reasons – whether Tribunal satisfied s 40 of the Superannuation (Resolution of Complaints) Act 1993 (Cth).

Acts Interpretation Act 1901 (Cth), s 25D
Superannuation (Resolution of Complaints) Act 1993 (Cth), ss 14, 37, 40, 46

Cameron v Board of Trustees [2003] FCAFC 214; (2003) 130 FCR 122 followed

BRIAN EDWARDS AND JEANETTE EDWARDS v POSTSUPER PTY LTD AND ANOR

NSD2250 OF 2006

TAMBERLIN, EMMETT & MIDDLETON JJ
5 JUNE 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2250 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	BRIAN EDWARDS First Appellant JEANETTE EDWARDS Second Appellant
AND:	POSTSUPER PTY LTD First Respondent SUPERANNUATION COMPLAINTS TRIBUNAL Second Respondent

JUDGES:	TAMBERLIN, EMMETT & MIDDLETON JJ
DATE OF ORDER:	5 JUNE 2007
WHERE MADE:	SYDNEY

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2250 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	BRIAN EDWARDS First Appellant JEANETTE EDWARDS Second Appellant
AND:	POSTSUPER PTY LTD First Respondent SUPERANNUATION COMPLAINTS TRIBUNAL Second Respondent

JUDGES:	TAMBERLIN, EMMETT & MIDDLETON JJ
DATE:	5 JUNE 2007
PLACE:	SYDNEY

1 The appellants are the parents of a postal worker who died on 6 March 2003. At the time of his death, the deceased was a member of the Australia Post Superannuation Scheme (the Scheme). The trust deed pursuant to which that scheme was established (the Trust Deed) provided that a benefit payable on the death of a member was to be paid or applied by the trustee of the Scheme to or for the benefit of, relevantly, the dependents of the deceased member. This appeal concerns the exercise of that power by paying a benefit to the de facto spouse and infant daughter of the deceased. The appellants claim that they should have been paid at least part of the benefit.

2 The matter comes before the Full Court by way of an appeal from orders made by a judge of the Court dismissing an appeal by the appellants under s 46(1) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Complaints Act). An appeal under s 46(1) of the Complaints Act from a determination of the Tribunal is limited to a question of law.

3 Clause 11.6(a) of the Trust Deed relevantly provides that any benefit payable on the death of a member of the Scheme at the time of his death is to be paid or applied to or for the benefit of, relevantly, the member’s dependents. Under clause 2 of the Trust Deed, dependent means, in relation to a member:

Child includes an ex-nuptial child and spouse includes a person who, at the date of death of a member, was in the opinion of the trustee, ordinarily living with the member as his wife on a permanent and bona fide domestic basis. Clause 2 also provides that beneficiary means a person who is presently entitled to receive a benefit under the Scheme in accordance with the Trust Deed.

4 Section 14(2) of the Complaints Act permits a person to make a complaint to the Superannuation Complaints Tribunal established by s 6 of the Complaints Act (the Tribunal) that a decision of the trustee of a superannuation scheme was unfair or unreasonable. Under s 27 of the Complaints Act, if a complaint has been made to the Tribunal, the Tribunal must inquire into the complaint and try to settle it by reconciliation. Under s 32(1), if the Tribunal has tried to settle a complaint by conciliation but has not been successful, a date, time and place for a review meeting must be fixed. The Tribunal must write to the parties inviting written submissions and a party may make written submissions to the Tribunal for the purposes of the review meeting. Under s 34, the Tribunal may make an order allowing the parties to make oral submissions to the Tribunal at the review meeting but otherwise the Tribunal must conduct a review meeting without oral submissions from the parties.

5 Under s 37(1) of the Complaints Act, for the purpose of reviewing a decision that is the subject of a complaint under s 14, the Tribunal has all the powers, obligations and discretions conferred on the trustee and must make a determination, on reviewing the trustee’s decision:

However, under s 37(6) the Tribunal must affirm a decision if it is satisfied that the decision was fair and reasonable, in the circumstances, in its operation in relation to any person who has become a party to the complaint and has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person who has an interest in the death benefit.

6 The first respondent (the Trustee), who is the trustee of the Scheme, notified the appellants on 21 April 2004 that it had decided to pay 75% of the benefit payable on the death of the deceased to the de facto spouse of the deceased and the remaining 25% to the deceased’s daughter by that spouse. The appellants were dissatisfied with that decision and lodged a complaint pursuant to s 14(2) of the Complaints Act. It is not disputed that the appellants had standing to do so. On 17 January 2006, the Tribunal affirmed the Trustee’s decision to pay 75% of the death benefit to his de facto spouse and 25% to his daughter.

7 On 20 February 2006, the appellants filed a notice of appeal pursuant to s 46 of the Complaints Act. An amended notice of appeal was filed on 16 August 2006. On 24 October 2006 a judge of the Court ordered that the appeal be dismissed. On 21 November 2006 the primary judge ordered that the appellants pay half of the Trustee’s costs of the proceeding. The appellants filed a notice of appeal from those orders on 14 November 2006. A further amended notice of appeal was filed on 15 February 2007.

8 After setting out the relevant provisions of the Trust Deed, the Tribunal observed that, according to the Trust Deed, the potential beneficiaries of the deceased’s death benefit included his de facto spouse and daughter. The Tribunal then observed that the appellants would need to show that they were "in some way dependent" on the deceased at the time of his death in order to qualify as dependents under the Trust Deed. The appellants pointed out that the Trust Deed refers to a person who was "in any way" dependent. However, any difference in meaning is of no significance.

9 After summarising the claims and the submissions made on behalf of the parties, the Tribunal set out brief reasoning that led to its conclusion that the Trustee’s decision was fair and reasonable in its operation in relation to the parties. In doing so, the Tribunal characterised its task as being to determine whether the decision of the Trustee was fair and reasonable in its operation in relation to the parties, rather than to consider what decision the Tribunal would have made on the evidence before it. The Tribunal said that the matters that were relevant to its determination were:

10 In considering the wishes of the deceased, the Tribunal observed that the deceased had not completed a Nomination of Beneficiary form in respect of the Scheme. However, the Tribunal was satisfied that there was evidence that the deceased intended sharing his future with his de facto spouse and daughter and that he would have wished to support them.

11 The Tribunal then considered the financial circumstances of the potential beneficiaries. It was satisfied, on all the evidence before it, that both the de facto spouse and the daughter were financially dependent on the deceased. However, the Tribunal was not satisfied that the appellants or their family were financially dependent on the deceased. While the Tribunal accepted that the deceased provided many gifts to his family, it did not consider that that would make the appellants and their family financially dependent on the deceased.

12 Next, the Tribunal considered the nature of the relationship between the parties. The Tribunal was satisfied that the deceased and his de facto spouse were in a loving, committed relationship with all intentions of purchasing a house together and building a future. The Tribunal also accepted that the deceased was very generous with both his time and money towards the appellants and his siblings and probably spent a great deal of time with them.

13 The Tribunal then said that, having taken into account the financial status of the potential beneficiaries, the nature of the relationship between the deceased and the parties, the wishes of the deceased and the lack of evidence to prove any financial dependency of the appellants and their family on the deceased, it concluded that the Trustee’s decision was fair and reasonable in its operation in relation to the appellants, his de facto spouse and his daughter.

14 There appear to be two questions of law relied upon by the appellants as being raised in the appeal. The questions are as follows:

15 The role of the Tribunal under s 37 of the Complaints Act is not to decide for itself the correct or preferable decision: it must affirm a decision if it is satisfied that the operation of the decision the subject of review was fair and reasonable in the circumstances. The Tribunal may have to make its own findings of fact for the purpose of determining whether the decision is fair and reasonable in its operation in the circumstances. However, such findings of fact are necessary only for that purpose. The Tribunal does not decide afresh all matters of fact found by the primary decision maker as if that decision had not been made. Thus, the Tribunal does not simply stand in the shoes of the primary decision maker. Its task is not to engage in ascertaining generally the rights of the parties. Further, it is not required to engage in a form of judicial review of the decision of the primary decision maker. Rather, it is to form a view, from the perspective of the primary decision maker, as to whether the decision was unfair or unreasonable (see Cameron v Board of Trustees [2003] FCAFC 214; (2003) 130 FCR 122 at [42]- [43]).

16 The thrust of the first complaint is that, while dependent is defined in Clause 2 of the Trust Deed as a person who is "in any way dependent" on the deceased, the Tribunal excluded the appellants because it concluded that they were not financially dependent on the deceased. The appellants contend that the Tribunal erred in so far as it did not make any findings about the financial needs of the appellants but merely noted that the deceased was generous to his family in terms of gifts, money and time.

17 The appellants say that the consequence or outcome of the Tribunal’s determination affirming the Trustee’s decision was contrary to the Trust Deed, which, by reason of what they characterised as "an extremely broad definition", contemplated dependents in the ordinary sense. They say that the Tribunal, in effect, limited entitlement to benefits to a dependent who is financially dependent on a deceased member, irrespective of whether evidence of dependence in the ordinary sense was established. Therefore, the appellants say, the Tribunal misconceived its task in so far as it merely concluded that the appellants were not dependent on the deceased in a financial sense: the Tribunal did not make a finding as to whether the appellant’s were dependent "in an ordinary sense".

18 The appellants’ contentions, however, are not borne out by the Tribunal’s reasons. The Tribunal outlined its task as requiring a consideration of, not only the financial circumstances and needs of the potential beneficiaries, but also the nature of the relationship between the potential beneficiaries and the deceased. The Tribunal examined each of those matters separately. It concluded that the appellants were not financially dependent upon the deceased. That was a finding of fact. The Tribunal then considered the nature of the relationship between the parties. It made a finding about the relationship between the deceased and his de facto spouse and, in that context, the Tribunal accepted that the deceased was very generous with both his time and money towards the appellants and probably spent a great deal of time with them. Those findings have nothing to do with financial dependence but are clearly directed to dependence in the broader sense relied upon by the appellants.

19 There is nothing in the reasons of the Tribunal that leads to the conclusion that it limited its consideration of the claims of the appellants to a consideration of whether or not they were financially dependent. The first ground is not made out.

20 Under s 25D of the Acts Interpretation Act 1901 (Cth), reasons contemplated by s 40 of the Complaints Act must include findings on material questions of fact and refer to the evidence or other material on which those findings are based. The appellants say that there are no relevant findings on material questions of fact as to the degree of dependency that they had on the deceased and, as a consequence, there has been a failure to satisfy s 40 of the Complaints Act.

21 The appellants contend that it was incumbent on the Tribunal to explain why the appellants were not dependent in the ordinary sense and, if they were dependent in the ordinary sense, why it was fair and reasonable that they were not entitled to a distribution of the benefits. The appellants accepted that the Tribunal is not obliged to set out its findings on every question of fact. Nevertheless, they say, a failure to do so gives rise to an inference that any matter not mentioned was not considered to be material. The Tribunal must give adequate reasons and act judicially when reviewing a decision.

22 The appellants say that, by simply identifying financial dependents as dependents in some way, or even in any way, the Tribunal failed to have proper regard to the fact that the appellants may have been dependent in the ordinary sense. The Tribunal did not, in its reasons, say that it had regard to evidence that established dependence in the ordinary sense. They say that, before the Court could be satisfied that the Tribunal had regard to evidence as to dependence in the ordinary sense, the Tribunal must engage in some active intellectual process in relation to that matter: the appellants say that the Tribunal failed to do so.

23 The Tribunal’s reasons are not fulsome. However, the Tribunal stated the contentions of the parties and made findings on the basis of those contentions. The material findings of fact so far as the Tribunal was concerned were its findings concerning financial dependence and its findings concerning the relationship between the parties. The findings on those matters formed the foundation for the Tribunal’s conclusion that the decision of the Trustee was fair and reasonable in the circumstances in its operation in relation to the parties. The Tribunal did not fail to comply with s 40. The second ground is not made out.

24 There was no error on the part of the Tribunal. There was no error on the part of the primary judge. The appeal should be dismissed with costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Emmett & Middleton.

Counsel for the Appellant:	Dr J Azzi SC
Solicitor for the Appellant:	Herbert Weller Solicitor
Counsel for the First Respondent:	Mr AG Bell SC with Mr RJ Carruthers
Solicitor for the First Respondent:	Allens Arthur Robinson
Date of Hearing:	10 May 2007
Date of Judgment:	5 June 2007

Federal Court of Australia - Full Court Decisions

Edwards v Postsuper Pty Ltd [2007] FCAFC 83 (5 June 2007)