Bennett v SAS Trustee Corporation & Anor (No 2) [2008] NSWIRComm 89 (2 May 2008)

New South Wales Industrial Relations Commission

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Bennett v SAS Trustee Corporation & Anor (No 2) [2008] NSWIRComm 89 (2 May 2008)

Last Updated: 30 May 2008

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Bennett v SAS Trustee Corporation & Anor (No 2) [2008] NSWIRComm 89



FILE NUMBER(S):
IRC 1492

HEARING DATE(S):
22 April 2008

DATE OF JUDGMENT:
2 May 2008

PARTIES:
PAUL GRAHAM BENNETT
Applicant

SAS TRUSTEE CORPORATION
First Respondent

MARGARET ANNE SCHOFIELD
Second Respondent


CORAM:
Schmidt J


CATCHWORDS: Superannuation - Appeal - determination of SAS Trustee Corporation Disputes Committee in relation to superannuation allowance paid to de facto spouse of a deceased police officer under s 11AA of the Police Regulation (Superannuation) Act 1996 - appeal by son of deceased police officer and executor of officer's estate - whether applicant has standing to bring appeal - whether applicant a 'person aggrieved' within the meaning of s 88 of the Superannuation Administration Act 1996 - standing established

LEGAL REPRESENTATIVES
APPLICANT:
Mr P Bennett, self represented

FIRST RESPONDENT:
Mr TM Ower of counsel
SAS Trustee Corporation

SECOND RESPONDENT
Mr B Watson, solicitor (as agent)
SOLICITORS:
Hennikers


CASES CITED:
Australian Conservation Foundation (Incorporated) v Commonwealth of Australia and Ors (1978) 146 CLR 493
Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1986) 13 FCR 124
Bennett v SAS Trustee Corporation [2008] NSWIRComm 39
Commissioner of Police v SAS Trustee Corporation (2002) 131 IR 243
Onus and Anor v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27

LEGISLATION CITED:
Administrative Decisions (Judicial Review) Act 1977
Police Regulation (Superannuation) Act 1906
Superannuation Administration Act 1996


TEXTS CITED:




JUDGMENT:

- 18 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Schmidt J

2 May 2008

Matter No IRC 1492 of 2007

PAUL GRAHAM BENNETT v SAS TRUSTEE CORPORATION & ANOR

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

JUDGMENT

(No 2) [2008] NSWIRComm 89

1 These proceedings, commenced in September 2007, concern an appeal brought by Mr Paul Graham Bennett under s 18B of the Police Regulation (Superannuation) Act 1906, against a determination made on 4 April 2007, by the Disputes Committee ('the Committee') of the SAS Trustee Corporation ('the Corporation'). The Committee's determination was made pursuant to s 67 of the Superannuation Administration Act 1996. It affirmed a decision to pay Ms Margaret Schofield a superannuation allowance by way of pension, in accordance with s 11AA(1)(b) of the Police Regulation (Superannuation) Act.

2 In advising Mr Bennett of the decision, by letter dated 5 April 2007, the Corporation drew his attention to the provisions of s 88 of the Superannuation Administration Act. That section provides:

88 Appeals

(1) A person aggrieved by a determination of STC or an STC disputes committee under section 67 (relating to determination of disputes) may appeal against the determination to the Industrial Relations Commission in Court Session (the Commission).

(2) The appeal must be made within 6 months after the appellant is notified of the determination or within such further period as the Commission allows.

(3) In dealing with the appeal, the Commission may exercise any function that could have been exercised by STC or the STC disputes committee, as the case may be, in making the determination the subject of the appeal.

(4) In dealing with the appeal, the Commission is to have regard to this Act and any other relevant provisions regulating the superannuation scheme concerned and such other matters as it considers to be relevant.

(5) In dealing with the appeal, the Commission is not bound by the rules of evidence and may inform itself in any manner it thinks fit.

(6) The final determination made by the Commission on the appeal is to be given effect to as if it were a determination of STC.

3 Despite this advice, in these proceedings the Corporation challenged Mr Bennett's standing to bring this appeal. It was agreed between the parties that this question should be determined, before the merits of the appeal were considered.

4 It was common ground that Mr Bennett is the son of a deceased police officer, who was a contributor to the Police Superannuation scheme, established under the Police Regulation (Superannuation) Act. Mr Bennett senior was medically discharged from the police force, in circumstances which entitled him to an annual superannuation allowance, in accordance with the provisions of s 10(1A) of the Police Regulation (Superannuation) Act. Under s 11AA, a proportion of this allowance became payable to any 'surviving spouse or de facto partner', upon Mr Bennett senior's death. That section provides:

11AA Grant of superannuation allowance to the surviving spouse or de facto partner of a former member of the police force who dies after the commencement of Schedule 1.4 [10] to the Superannuation Legislation Amendment Act 1997

(1) If a former member of the police force to whom a superannuation allowance has been granted dies on or after the commencement of Schedule 1.4 [10] to the Superannuation Legislation Amendment Act 1997, and that former member is survived by a person who:

(a) was the spouse or de facto partner of that former member both at the time of the former member’s death and at the time of the former member’s retirement (whether by disablement or otherwise), or

(b) in the case of a former member who retired because of disablement, was the spouse or de facto partner of that former member:

(i) both at the time of the former member’s death and for at least the preceding 3 years, and

(ii) became the spouse or de facto partner of the former member before the former member attained the age of 60 years,

that spouse or de facto partner is entitled to receive a superannuation allowance equivalent to 62.5 per cent of the superannuation allowance that would have been payable to that former member from time to time if that former member had not died.

(2) A superannuation allowance under subsection (1):

(a) is not payable to the surviving spouse or de facto partner of a deceased former member of the police force, if a superannuation allowance is payable to that spouse or de facto partner under section 12 or a gratuity is payable or has been paid to that spouse or de facto partner under section 12 (1A), and

(b) is not payable to the surviving spouse or de facto partner of a deceased former member of the police force who has wholly commuted a superannuation allowance under Division 3, and

(c) is subject to section 23.

(3) If a superannuation allowance payable to a former member of the police force was partially commuted under Division 3, the allowance payable under subsection (1) in respect of the death of the member is to be reduced by the proportion that the commuted part of the superannuation allowance bears to the whole of the superannuation allowance.

5 The Committee's determination was made pursuant to s 67 of the Superannuation Administration Act. It provides:

67 Determination of disputes

(1) A dispute under this or any other Act concerning an STC scheme is to be determined by STC or an STC disputes committee, except as otherwise provided by the regulations.

(2) Regulations made for the purposes of subsection (1) may require that a dispute concerning the entitlements or obligations of an employee or beneficiary arising in respect of service by the employee with an employer that:

(a) was responsible for the payment of benefits under an STC scheme of which the employee was a member or to which the employee was a contributor, and

(b) has ceased to be responsible for the payment of benefits under that scheme but is responsible for the payment of benefits under a new superannuation scheme created in accordance with section 127,

be determined, not by STC or an STC disputes committee, but by the trustee of the new superannuation scheme.

(3) In determining a dispute, STC, an STC disputes committee or the relevant trustee may inform itself on any matter in such manner as it thinks fit and, in so doing, is not bound to observe rules of law relating to evidence.

(4) A trustee acting in accordance with regulations referred to in subsection (2) and an STC disputes committee have and may exercise the powers conferred on STC by sections 66 and 68.

(5) This section does not apply to a dispute in respect of which an application may be made to the District Court under section 21 of the Police Regulation (Superannuation) Act 1906.

6 The Corporation's case was that Mr Bennett was not 'a person aggrieved', by the Committee's determination, within the meaning of s 88 of the Superannuation Administration Act. It was argued that there is no provision in the Police Regulation (Superannuation) Act, which would permit the benefit currently being paid to Ms Schofield, to be paid to any other person or entity, other than a spouse or de facto partner of Mr Bennett senior. No person, other than Ms Schofield, has claimed to have been his spouse or de facto partner.

7 It followed that neither Mr Bennett, nor Mr Bennett senior's estate, could receive any tangible benefit, as a consequence of Ms Schofield being disentitled to the benefit she is currently receiving, as the result of this appeal. Mr Bennett had no pecuniary interest in the determination the subject of the appeal, despite what appeared to be a misunderstanding as to the entitlements of the estate, evident both in his initiating process and written submissions.

8 Ms Schofield, who was joined in the proceedings by a decision given on 29 February 2008, appeared at the hearing to support the submissions made for the Corporation. (See Bennett v SAS Trustee Corporation [2008] NSWIRComm 39).

9 Mr Bennett's notice of appeal referred to s 18B of the Police Regulation (Superannuation) Act. It provides:

18B Payment without grant of probate etc

(1) Where a person dies and:

(a) a gratuity is or becomes payable from the Fund in relation to the deceased,

(b) production to STC of probate of the will, or letters of administration of the estate, of the deceased has not been arranged, and

(c) STC has not, within the period of 3 months that next succeeds the death of the deceased, received a notice of intention to apply for a grant of probate of the will, or letters of administration of the estate, of the deceased,

STC may, if it so decides, make a payment of the whole or a part of the gratuity in accordance with subsection (2), being a payment that does not exceed $50,000 or, where some other amount is prescribed by the regulations for the purposes of this section, that other amount.

(2) Where STC makes a decision under subsection (1), STC may:

(a) pay the whole or any part of the amount of the gratuity to an eligible person within the meaning of the Family Provision Act 1982,

(b) after paying the funeral expenses of the deceased or reimbursing a person who has paid those expenses—pay the whole or any part of the balance to a person referred to in paragraph (a), or

(c) in special circumstances, pay the whole or any part of the amount of the gratuity, or the balance referred to in paragraph (b), to some other person.

(3) Where a member or former member of the police force dies and STC is of the opinion that proceedings might be instituted under the Family Provision Act 1982 in relation to the estate, or notional estate, of the deceased, STC may, despite any other provision of this Act, pay to the personal representatives of the deceased any gratuity that, but for this subsection, would have been paid to some other person.

10 It was submitted for the Corporation that reference to this section in the notice of appeal was in error. Section 18B is concerned with decisions as to certain gratuities. The determination under appeal in these proceedings, was not such a decision. For his part, Mr Bennett confirmed that the determination under appeal, was that made on 4 April 2007, concerning Ms Schofield's entitlement to a superannuation allowance.

11 Mr Bennett's case was that he was one of his father's beneficiaries and an executor of his estate. In the dispute brought to the Corporation, Mr Bennett sought to establish that Ms Schofield had not been his father's de facto partner and so had no entitlement to a superannuation allowance under s 11AA of the Police Regulation (Superannuation) Act.

12 In his submissions, Mr Bennett argued that he should have administered his father's superannuation, as executor of his father's estate and that the Corporation had denied him the right to do so. Mr Bennett complained that the Corporation had not acted honestly and had been 'giving away my late father's superannuation to an ineligible person since 2003'. Ms Schofield was not named as a beneficiary in his father's will, or in his superannuation. The Corporation had ignored relevant information when making its decision and as the result of its conduct, had abetted a fraud, contrary to the obligations imposed by ss 51 and 121 of the Superannuation Administration Act. Those sections provide:

51 Duties relating to functions

(1) STC must:

(a) act honestly in all matters relating to its functions relating to the STC schemes, and

(b) exercise, in relation to all matters affecting the STC schemes, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide, and

(c) ensure that its functions relating to the STC schemes are exercised in the best interests of persons entitled to receive benefits under the STC schemes, and

(d) not enter into any contract or arrangement, or do anything else, that would prevent STC from, or hinder STC in, properly exercising STC’s functions as a trustee.

(2) In exercising its functions, STC must have regard to:

(a) the interests of persons entitled to receive benefits under the STC schemes, and

(b) the Heads of Government Agreement, commencing 1 July 1996, relating to the exemption of certain State public sector superannuation schemes from the Superannuation Industry (Supervision) Act 1993 of the Commonwealth, and

(c) the future liabilities of the STC funds, and

(d) any statement in writing of the policy of the Government on any matter that is relevant to the functions of STC given by the Minister to STC.

(3) Subsection (1) (d) does not prevent STC from entering into a contract or an arrangement under section 53.

121 Contraventions of trustee duties

(1) A person (other than STC) who suffers loss or damage as a result of conduct of another person who was engaged in a contravention of, or failed to comply with, section 51 or 73 may recover the amount of the loss or damage by action against that other person or any other person knowingly involved in the contravention.

(2) An action under this section may be begun at any time within 6 years after the day on which the cause of action arose.

(3) For the purposes of this section, a person is knowingly involved in a contravention if, and only if, the person:

(a) has aided, abetted, counselled or procured the contravention, or

(b) has induced, whether by threats or promises or otherwise, the contravention, or

(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention, or

(d) has conspired with others to effect the contravention.

13 It followed that there was a sufficient basis upon which to conclude that Mr Bennett is a 'person aggrieved', by the determination, within the meaning of s 88 of the Police Regulation (Superannuation) Act.

Consideration

14 The phrase 'person aggrieved by a determination of STC or an STC disputes committee under section 67' is not defined in the Superannuation Administration Act. The meaning of the term 'person aggrieved' was considered by his Honour Justice Wright, then President of the Commission, in Commissioner of Police v SAS Trustee Corporation (2002) 131 IR 243. In those proceedings it was the Commissioner of Police, who sought to establish that he was a 'person aggrieved', by the decision of the Corporation in question. That argument was rejected by his Honour, it being concluded, at [57], that while the Commissioner was given certain roles under the legislation in question, the Commissioner was not a person aggrieved by decisions made by the Corporation, under the legislation.

15 In coming to that conclusion, his Honour referred to the approach of Gummow J in Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1986) 13 FCR 124, in considering the term 'a person who is aggrieved' in s 5 of the Administrative Decisions (Judicial Review) Act 1977. There the applicant had sought a statement of reasons for a decision made by the respondent. His Honour accepted at p 439:

... the force of the observations (frequently adopted in this Court) by Ellicott J in Tooheys case [1981] FCA 121; (1981) 54 FLR 421 at 437-8 to the effect that the meaning of 'a person aggrieved' is not encased in any technical rules and that much depends upon the nature of the particular decision and the extent to which the interest of the applicant rises above that of an ordinary member of the public.

16 In the case of the Administrative Decisions (Judicial Review) Act, Gummow J also noted at p 439 that:

It also has to be born in mind that the ADJR Act is ambulatory in its operation and draws within its scope a diverse and extensive collection of decision making processes, truly an unclosed class. Too rigid a criterion of locus standi will threaten to stultify the utility of the procedures of the ADJR Act.

17 In coming to these conclusions, Gummow J also referred, at p 438, to the common law, observing that 'grievance' did not 'necessarily involve injury to property or present legal interests or 'special damage' in any technical sense.' Nor was it essential that the aggrieved person be a 'party to the administrative decision he sought to have quashed by certiorari, if he otherwise had sufficient standing.'

18 At p 439, Gummow J said as to equity, that 'The result is that standing here does not now require special damage in the traditional sense, and that whilst a mere belief or concern is not sufficient, a 'special interest' over and above that enjoyed by the public will suffice'.

19 It was these observations which led Wright J to observe, in Commissioner of Police v SAS Trustee Corporation that:

40 I agree, with respect, with the importance his Honour placed on phrases such as “a person aggrieved” not being construed on the basis of any technical rules but rather by reference to the nature of the particular decision under consideration and the extent to which the interest of the applicant may be said to rise above that of an ordinary member of the public. In saying this, his Honour, of course, emphasised the importance of the particular statutory context in determining the relevant issue. I am, however, prepared to accept that the phrase may be considered as one which is to be construed broadly and that although, in strict terms, it may be said to be a phrase with somewhat narrower scope than the cognate phrase “a person interested”, the making of a fine distinction on that basis may infringe his Honour’s admonition against too ready resort to technical rules. Accordingly, the starting point of my consideration of the statutory scheme is that the phrase “a person aggrieved” should not be readily construed narrowly.

41 Recently, the High Court in Allan v Transurban City Link [2001] HCA 58; (2001) 75 ALJR 1551 at 1555 in paragraph [15] and [16] had occasion to consider a “standing” provision in a particular Commonwealth statute, the Development Allowance Authority Act 1992. The phrase considered in that case was “affected by”. The majority of the Court (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ) said:

[15] The expression “affected by” and cognate terms appear in a range of laws of the Commonwealth. This is not the occasion for a disquisition of that topic. It is necessary to answer the questions posed above in respect of s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as “standing”. “Standing” is a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies.

[16] In Re McHattan and Collector of Customs (New South Wales) (1977) 1 ALD 67 at 70 Brennan J stated that “[a] cross the pool of sundry interest, the ripples of affection may widely extend”. However, as Davies J pointed out in Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd [1994] FCA 996; (1994) 49 FCR 250 at 259, Brennan J “did not propose that any ripple of affection would be sufficient to support an interest”. A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute. The present case involves such a statute. The starting point, as indicated by several authorities in the Full Court of the Federal Court, is the construction of the Authority Act with regard to its subject, scope and purpose.” (footnotes omitted)

42 In addition to the matters referred to by the High Court, it is also relevant in a case as complex as the present to have particular regard to the mandate of the legislature as to purposive construction to be found in s 33 of the Interpretation Act 1987 where courts are required to prefer a construction which would promote the purpose or object underlying the statute (whether that purpose or object is expressly set out in the statute) to a construction which would not promote the purpose or object. See, for example, the judgment of McHugh J in Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 21 and also the reference in Commonwealth Bank v Hadfield [2001] NSWCA 440 at [57], to another judgment of McHugh J, Malakai Holdings v Stretton [2001] HCA 14; (2001) 178 ALR 218 at 225.

43 True it is in this case that the purpose or object of the complicated scheme itself presents some difficulties. As the appellant noted at p 9 of his submissions of 10 December, Cullen J observed in the unreported judgment of 3 November 1993 in Quinn v State Authorities Superannuation Board:

The right to such a pension is a valuable and expensive right and should not be granted unless the statutory requirements are met.

44 However, the important cautionary observation of Cullen J does not necessarily mean that once the requirements are met there should be any greater burden imposed upon a person to establish the entitlement or there should be implied in the legislation an extraordinary means of challenge to a person’s entitlement.

45 I consider that the purpose or object of the legislation, or at least so far as is relevant to the present proceedings, is to provide valuable benefits to police officers and former police officers in relation to retirement arising from “hurt on duty” situations but to do so in a measured and careful way which allots certain responsibilities for the rather complex process involved, which are, and are to be seen to be, commensurate with the important rights and responsibilities granted to the STC and to the Commissioner of Police.

46 It may be that the rather complex scheme attempts to achieve a balance, on the one hand, between the valuable rights and the need, on the other hand, for caution in too readily extending those rights if that might result in inappropriate receipt of the allowance. There seems also to be an attempt to balance the recognition of the valuable role of police officers for their service in the public interest (with the consequent entitlement for officers subject to an adverse decision to have certain rights of appeal), with corresponding rights of appeal by the relevant authorities in the case of a decision in favour of police officers. However, it would be expected that any mechanism for appeal would reflect the allocation of responsibilities earlier referred to and not be so great as to become burdensome to the officers concerned or involve a level of complexity beyond that which could be seen to be reasonable to protect the interests or roles allocated by the legislation.

20 Neither the Corporation nor Mr Bennett submitted that his Honour's conclusions as to the meaning of the term 'aggrieved person' in the Superannuation Administration Act were incorrect, although Mr Bennett did observe that Mr Ower, counsel for the Corporation in these proceedings, had appeared in that case. It should be noted that there Mr Ower was arguing that the Commissioner of Police was an 'aggrieved person', an argument which the Corporation opposed and which Wright J rejected. Nothing turns on that situation.

21 I accept the force of his Honour's approach to the question of determining who is a 'person aggrieved' by a decision under challenge pursuant to s 88 of the Superannuation Administration Act.

22 On the material here before the Court, there is no question that Mr Bennett is concerned about and disagrees with, the determination which the Committee made, as the Corporation's letter of 5 April 2007 advised, in relation to his 'dispute over the payment of a pension from the Police Superannuation Scheme to Margaret Schofield following the death of your father'.

23 That letter advised that the Corporation's Disputes Committee had determined the dispute pursuant to s 67 of the Superannuation Administration Act. The Committee affirmed a decision earlier made by a delegate, to pay Ms Schofield a superannuation allowance in accordance with s 11AA of the Police Regulation (Superannuation) Act. The decision was made on the basis that "Ms Schofield was the de facto partner of the late Mr Bennett at the time of his death and for at least the preceding 3 years".

24 The question of whether or not Ms Schofield had such a relationship, was crucial to the Corporations' decision to make a payment to Ms Schofield, given the provision of s 11AA of the Police Regulation (Superannuation) Act. That was the subject of the dispute, Mr Bennett had brought to the Corporation, which was determined by the Corporation's Disputes Committee.

25 In bringing this appeal from that determination, Mr Bennett is concerned that the claim made by Ms Schofield was false, and that as a result, she has obtained valuable benefits under the Police Regulation (Superannuation) Act, to which she is not, in fact, entitled.

26 Are these circumstances, namely the fact of Mr Bennett's concern; his relationship with Mr Bennett senior and his estate and the resolution of the dispute which he brought about these matters to the Corporation, sufficient to give Mr Bennett standing in relation to the determination the subject of the appeal, as a 'person aggrieved' by the determination?

27 Given the statutory scheme, the Corporation's submission, that the Committee's determination in relation to Ms Schofield's claim, has no impact on Mr Bennett, in any financial sense, notwithstanding that he was a beneficiary and executor of his father's will, must be correct. If Mr Bennett is found to have standing to bring the appeal and is able to demonstrate that the Committee erred in not determining that the claim was wrongly accepted, Ms Schofield will lose the superannuation allowance she presently receives. That, however, will not give rise to any entitlement to any allowance or other benefit, on the part of Mr Bennett or the estate, under the Police Regulation (Superannuation) Act.

28 The provisions of the Police Regulation (Superannuation) Act from which the superannuation allowance, the subject of the determination from which this appeal flowed, are concerned with creating a regime for the benefit of police officers, who are injured in the performance of their duties (s 10). In the event of the death of such an officer, the legislation gives the surviving spouse or de facto partner, certain ongoing benefits, described by the Corporation in its letter of 5 April 2007, as a 'pension' (s11AA). These provisions are not concerned with creating other benefits for the children of such officers, or the beneficiaries of their estates.

29 So far as Mr Bennett is concerned, the Corporation's submission, that given this legislative scheme, nothing tangible can flow, to his benefit, from the appeal proceedings he has commenced, must be accepted. He has no pecuniary interest in the outcome of these proceedings. It was, nevertheless, accepted for the Corporation, that a person may be a 'person aggrieved' by its determination, or that of the Disputes Committee, even though there is no such pecuniary interest in the determination made. On the authorities, that concession was properly made.

30 It was argued, nevertheless, that Mr Bennett's concerns were not sufficient to permit the conclusion that he had an interest sufficient to bring him within the term 'person aggrieved', that is, an interest which, on the approach of Gummow J, 'rises above that of an ordinary member of the public'.

31 In support of that submission reference was made to the decision of the High Court in Australian Conservation Foundation (Incorporated) v Commonwealth of Australia and Others (1978) 146 CLR 493 where Gibbs J, (as he then was), observed at p 530:

I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.

32 Also relevant are the observations of Gibbs CJ in Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 at pp 35 - 36:

Moreover, ideal rules as to standing would not fail to take account of the fact that it is desirable, in an adversary system, that the courts should decide only a real controversy between parties each of whom has a direct stake in the outcome of the proceedings. The principle which has been settled by the courts does attempt a reconciliation between these considerations. That principle was recently stated in Australian Conservation Foundation Inc. v. The Commonwealth (1980) 146 C.L.R. 493. A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action (1980) 146 CLR, at pp 530-531, 537, 547-548.

33 In this case, any 'special interest', which Mr Bennett might have in the determination under appeal, flows from his relationship to Mr Bennett senior, his position as an executor of his will and a beneficiary of his estate and the fact that it was the determination made by the Disputes Committee under s 67 of the Superannuation Administration Act, in relation to the dispute which he brought to the Corporation, which is the subject of the appeal.

34 In his submissions Mr Bennett explained his concern that Ms Schofield had engaged in a course of conduct which commenced as long ago as 1999, when false information was provided, at a time when Mr Bennett senior was suffering from a diagnosed mental illness. The result was that upon his death, Ms Schofield was able to, again, advance a false claim, that she was the de facto partner of Mr Bennett senior, to the ultimate detriment of Mr Bennett's estate. Mr Bennett also referred to a decision made in 1999, not to make a lump sum payment to Mr Bennett senior, under the Police Regulation (Superannuation) Act. Had it then been made, Mr Bennett senior's estate would have benefited.

35 That Mr Bennett is in vehement disagreement with the determination under appeal, was not in dispute. He has outlined a host of concerns which he has with the determination and the Corporation's conduct, in his notice of appeal and submissions. That determination, it may not be overlooked, was made by the Corporation's Disputes Committee, in relation to the dispute which Mr Bennett had brought to the Corporation, over the payment of the pension Ms Schofield was receiving. There was no suggestion that Mr Bennett had no entitlement to bring such a dispute under the Superannuation Administration Act. That the person who brought a dispute forward under this legislative scheme, was not a 'person aggrieved', by the determination finally made in relation to that dispute, would be a curious feature of such a legislative scheme. After all, the legislation creates a right to appeal the determination of such a dispute, so long as the person appealing, was a 'person aggrieved' by the determination. On the approach of Gummow J, in determining that question, it is relevant that Mr Bennett was a party to that dispute, indeed, he initiated it.

36 Mr Bennett's dispute concerned what he still claims to be a false claim by Ms Schofield, who is in receipt of a statutory superannuation allowance under the Police Regulation (Superannuation) Act, to which she has no entitlement. Mr Bennett's interest in that subject, is an interest unlikely to be shared by members of the public, other than in the sense that any member of the public would have a general concern, that a person with no entitlement to benefits provided for police officers and their families under this legislative scheme, should not receive such benefits.

37 Presumably, the Corporation accepted Mr Bennett's right to dispute the payment Ms Schofield was receiving, because, given his relationship with Mr Bennett senior and his estate, Mr Bennett, unlike other members of the public, was not only likely to be interested in Ms Schofield's receipt of a superannuation allowance, having claimed that she was Mr Bennett senior's de facto partner, but also likely to be in a position where he could shed light on the validity of Ms Schofield's claim. Undoubtedly, the matters Mr Bennett sought to raise with the Corporation were regarded to be serious. Otherwise, it seems unlikely that they would have been accepted by the Corporation as amounting to a dispute, which ought to be referred to the Disputes Committee under the Superannuation Administration Act. The Disputes Committee resolved Mr Bennett's dispute, at its meeting on 4 April 2007, by reaffirming the decision to pay a superannuation allowance to Ms Schofield. This led the Corporation to advise Mr Bennett on 5 April, of his right to appeal the Committee's determination, under s 88 of the Superannuation Administration Act. In my view, that advice was properly given.

38 Mr Bennett disputes the correctness of the determination of his dispute. He complains that the Committee has come to the wrong conclusion, and is, as a result, paying a benefit to Ms Schofield, to which she has no entitlement under the Police Regulation (Superannuation) Act.

39 I am satisfied, in all of the circumstances, that Mr Bennett has a special interest in the Committee's determination of his dispute, in which he claimed that Ms Schofield did not have the necessary relationship with Mr Bennett senior, so as to give her an entitlement to a superannuation allowance under s 11AA of the Police Regulation (Superannuation) Act. It follows that it must also be accepted that Mr Bennett has established that he is a 'person aggrieved' by the Committee's determination, in the sense in which that term is used in s 88 of the Superannuation Administration Act.

Orders

40 For the reasons given, the Corporation's argument, supported as it was by Ms Schofield, that Mr Bennett has no standing to bring these proceedings must be rejected. The hearing on the merits will accordingly proceed.

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LAST UPDATED:
2 May 2008