Agnew v Westscheme Pty Ltd

[2004] FCA 1675

FEDERAL COURT OF AUSTRALIA

Agnew v Westscheme Pty Ltd [2004] FCA 1675

SUPERANNUATION – appeal from a decision of Superannuation Complaints Tribunal – extension of time – whether any arguable case that Tribunal in error of law

Superannuation (Resolution of Complaints) Act 1993 (Cth) s 46, 46(2)

Federal Court Rules O 53 r 7(3)

Gallo v Dawson (1990) 93 ALR 479 cited
Attorney-General for the Commonwealth v Breckler (1999) 197 CLR 83 cited

WAYNE AGNEW v WESTSCHEME PTY LTD
W50 of 2004

RD NICHOLSON J
17 DECEMBER 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W50 OF 2004

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL CONSTITUTED BY N CULLEN AND B SHARPE

BETWEEN:	WAYNE AGNEW APPLICANT
AND:	WESTSCHEME PTY LTD RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	17 DECEMBER 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

The applicant’s application for extension of time to file and serve a notice of appeal be dismissed, with no order as to costs. 

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W50 OF 2004

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL CONSTITUTED BY N CULLEN AND B SHARPE

BETWEEN:	WAYNE AGNEW APPLICANT
AND:	WESTSCHEME PTY LTD RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	17 DECEMBER 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant applies for an extension of time in which to file and serve a notice of appeal from a decision of the Superannuation Complaints Tribunal (‘the Tribunal’).  The decision was given on 2 February 2004.

2. The application for extension of time is made necessary by the provisions of s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (‘the Act’). That provides for a right of appeal to the Federal Court ‘on a question of law’ from the determination of the Tribunal. However, it also provides that the appeal is to be instituted not later than the 28^th day after the day on which a copy of the determination of a tribunal is given to the person ‘or within such further time as the Federal Court (whether before or after the end of that day) allows’. 

3. In the course of his oral submissions the applicant referred to the Attorney-General for the Commonwealth v Breckler (1999) 197 CLR 83 and particularly at 116, at [60] in the reasons for judgment of Kirby J. There it is stated that the Act expressly contemplates that the Tribunal will have a relationship with the courts and be subordinate to them. Reference is made to the right of ‘appeal’ to the Federal Court on a question of law from a determination of the Tribunal. In that paragraph and in par [62], to which the applicant also made reference, his Honour is describing the affect of the Act and the scheme which it establishes in relation to the Tribunal. It does not add to the applicant’s case in terms of making out the availability of an arguable case.

   TRIBUNAL DECISION

4. The complainant before the Tribunal was the applicant.  The respondent was the trustee.  The ‘joined parties’ were the elder and younger son of the applicant and his late wife, who was the deceased member of the fund.  In addition, the Tribunal referred to the guardian of the joined parties who was the sister of the deceased member and the guardian’s representative who was the brother of the deceased member. 

5. The decision under review before the Tribunal was one made by the trustee on 6 November 2002.  It there decided to pay the death benefit on trust and in equal shares to the two children of the deceased member with the guardian as trustee.  The complainant objected to the guardian being trustee and submitted that the benefit should be paid to a public trustee but did not oppose the proposed distribution of the benefit.  On 12 February 2003 the trustee, after reviewing the complaint and additional documents, resolved to uphold its original decision.  Its reasons were dated 2 February 2004. 

6. The reasons record that, on 5 March 2003, the complainant lodged a complaint to the effect that the decision of the trustee was unfair or unreasonable.  In the complainant’s view the money should not be held in trust by the guardian of the children but should be placed in a public trust for the children’s future.  

7. The Tribunal recited that the background to the complaint was that the deceased member was born on 21 June 1965 and died intestate on 17 December 1999.  The complainant was her de facto spouse.  He was convicted of her murder and was then and is now serving a life sentence in an Australian prison with a minimum of ten years before eligibility for parole.  The elder son of the complainant and the deceased member was born on 21 May 1990 and the younger on 24 December 1993. 

8. In setting out the submissions before it, the Tribunal said that in the Registration of Complaint Form lodged with the Tribunal the complainant has expressed his dissatisfaction with the trustee’s decision as follows:

   ‘The Fund wishes to make [the Guardian] who has a guardianship interim order trustee of the childrens money.  I feel [the Guardian] placing the boys in boarding school does not have the boys interest at heart.  I believe if you or anyone had our boys interest at heart would want this money placed in trust for their future (a public trust).  I am currently an appeal class prisoner my appeal will be in the June sittings of this year.  [The Deceased Member] would be angry if our boys were placed in boarding schools or the fund was not put away for their futures.

   …

   If [the Deceased Member] had wanted anyone else to have access to these funds [she] would have expressed this.  To give these funds to someone who places our boys in boarding school is erroneous.’  (sic)

9. In the course of its reasons the Tribunal concluded there was no evidence before it to suggest that the guardian was not a suitable choice of trustee of the funds or that she did not have an appropriate level of concern for the interests of the children.  It found that the Tribunal had acted in an exemplary manner in reaching its decision and considered that its decision to pay the trust funds to the guardian on trust for the children was ‘fair and reasonable’. 

10. It referred to the complainant’s concern that the guardian had attempted to access the death benefit within two months of the death of the deceased member.  However, it was said to be reasonable for her to seek prompt access to funds to be used for the children’s benefit. 

11. The Tribunal referred to two identical deeds of trust drafted by the trustee for execution by the guardian in respect of each child.  It said that there was no doubt whatsoever that the guardian, once in receipt of the death benefit, was bound to use the funds for the benefit of the children and not for her own purposes.  Further, it found that the Tribunal was satisfied that the guardian had demonstrated a clear understanding of the nature of her trustee role vis-a-vis the use of the funds for the benefit of the children. 

12. Reference was also made by the Tribunal to the concern of the complainant in relation to the schooling arrangements for the children made by the guardian.  It said that it was not for the Tribunal to comment on the appropriateness or otherwise of such arrangements, the only issue for it being the fairness and reasonableness of the trustee’s decision.

13. Being of the view that the trustee’s decision was ‘fair and reasonable’, the Tribunal affirmed that decision. 

    BAD FAITH

14. The first submission made by the applicant is that the trustee acted in bad faith.  This is based on the assertion that the trustee had a legally binding contract with the deceased member on which her beneficiaries were named as her children.  However, as the respondent points out, that was not an issue raised before the Tribunal.  The Tribunal cannot, therefore, have been in any error of law in failing to consider that matter. 

    CONTRACTUAL OBLIGATION

15. The applicant then contends that the alleged failure by the trustee to honour her contractual obligations with the deceased member that the two sons would be the beneficiaries of the death benefit establishes an error of law in the reasoning of the Tribunal.  This contention evidences a lack of understanding by the applicant of the role of the deceased member’s sister as guardian and trustee.  The fact that the death benefits will be paid to her on the children’s behalf in equal shares (the latter matter being one to which he does not object) does not make the children any less the beneficiaries given that both of them are in their minority and have a guardian. 

    BEST INTERESTS OF THE CHILDREN

16. The applicant states that the trustee failed to take into account the best interests of the children.  That again involves a misunderstanding on the part of the applicant of the role of the guardian.  As appears from the reasons of the Tribunal, the guardian is bound to act as a trustee in respect of each child and may only apply funds for their benefit.  Her role is governed by requirements of the law.  She, as the guardian on their behalf, was represented by a lay person before the Tribunal and was referred to in the reasons of the Tribunal.  In that way each of the children were represented before the Tribunal.  The issue of representation is dealt with further below in relation to alleged procedural unfairness. 

17. What the applicant is asserting is in fact what he asserted before the Tribunal at its hearing, namely, that the funds should be placed in trust with a public trustee for each of the children without the intervention of the guardian.  That, however, was a matter for the Tribunal when it reviewed the trustee’s decision.  It did not accept the applicant’s submission in this respect.  He now seeks to re-argue the same issue on the hearing of the application if an extension of time is granted.  However, the right of appeal only exists in relation to a question of law.  An appeal cannot be used nor time extended to permit re-argument of the merits.

    DISPARITY OF RESOURCES

18. The applicant contends that there is a disparity of resources between himself as complainant and the other parties involved.  This derives from the fact that he is indigent, in prison, not possessed of legal textbooks or other legal resources.  This does not establish a question of law justifying an extension of time.  He has been given opportunities to make submissions at hearings, during which he has stated his case fully and with reference to some law.

    PROCEDURAL FAIRNESS

19. Following an adjournment the applicant was given the opportunity to develop further submissions in relation to alleged procedural unfairness in his treatment before the Tribunal.  There were two aspects to those contentions.

    ALLEGED UNFAIRNESS IN PREPARATION TIME

20. The applicant points to correspondence which he received from the Tribunal dated 10 September 2003 advising him that the Review meeting would be held within four months from that date. On 24 September 2003 he was given a notice by the Tribunal under s 32 of the Act that the Review meeting would be held on 28 November 2003. That required his written submission by no later than 17 October 2003. He complied with that date, although he said it left him with only approximately 14 days in which to review all the documents before him, prepare the submission and have it mailed in time for receipt on the due date. In view of the volume of the material which he was required to review, he considers this was an unfair timeframe.

21. Additional to this he points to the fact that the Tribunal advised him in writing by a letter dated 6 November 2003 that the trustee and the joint parties had not provided written submissions.  However, by a letter dated 25 November 2003, the Tribunal forwarded to him a copy of the joined parties’ response submission.  Additionally, by letter dated 25 November 2003, the trustee had stated circumstances which made the appointment of the guardian as trustee appropriate. 

22. The respondent points to evidence that once submissions were filed, the Tribunal invited submissions in response.  The letter dated 25 November 2003 from the trustee to the Tribunal was itself a response to the applicant’s submission.  The reference to ‘further submission’ in the submissions from the joined parties is in this context not open to the inference that there was a prior submission that the applicant did not receive, the reference being to the fact that it was a response submission. 

23. I agree with the submissions for the respondent that neither in the length of time allowed to the applicant to prepare his written submission nor in the way in which the submissions were handled by the Tribunal and made available to the applicant was there any element of procedural unfairness.  While the applicant may have had difficulties in preparing his submission within the allowed time limit, he had, nevertheless, 14 days to do so even given the restricted nature of the circumstances in which he worked.  His written submissions did not evidence any lack of his ability to address pertinent matters.  No procedural unfairness can be made out by any of these contentions made by the applicant. 

24. In the letter dated 30 September 2003 from the trustee to the Tribunal, the insurance and claims manager of the trustee drew the Tribunal’s attention to (1) Minutes of the Claims Committee meetings held on 6 November 2002 and 12 February 2003 and (2) his letter to the applicant dated 10 December 2002.  At the hearing of this application for extension of time, the applicant contended that these documents had not been made available to him, although an undertaking had been given that all papers would be copied to him.  Opportunity was, therefore, provided for these documents to be forwarded to the applicant and for him to file written submissions on what difference receipt by him of these documents would have made to his case.

25. In his supplementary submissions the applicant submits the documents would have required an individual response and would have led to a change in his grounds.  He does not say, however, in what respect they would have actually made a difference.  His submissions broadly repeat the grounds addressed in these reasons.  Nor is it apparent from the documents how they could have made a difference.  I do not consider the applicant has or can establish any procedural unfairness arising from the documents referred to in the previous paragraph. 

    ALLEGED UNFAIRNESS CONCERNING REPRESENTATION OF THE CHILDREN

26. By a letter dated 10 September 2003, the Tribunal advised the applicant that it had exercised its discretion under s 23 of the Act to allow his children to be represented by the guardian’s brother. Later, in view of the commitments of the guardian, permission was given for the guardian to be represented at the Tribunal hearing by her brother. The applicant contends that this resulted in the interests of children not being properly represented before the Tribunal and consequently resulted in procedural unfairness. He argues that the reason no contentions were made for the joined parties (i.e. the children) by the representative was that he was also representing the guardian. He contends that the brother was therefore in a conflict of interest.

27. On 19 August 2002, in the Family Court in New Zealand, a custody order was made pursuant to s 11 (and s 24) of the Guardianship Act 1968 (NZ) appointing the sister of the deceased member to have the custody of the applicant’s children. While the applicant contends that the order was only sought to strengthen her position in relation to the payments due under the Act, the fact is that order was made on that date. It therefore follows that the sister of the deceased member was not appearing personally in the Tribunal but was appearing as guardian and in the interests of the children.

28. On 17 June 2003, the Tribunal had given notice to the trustee that it had joined each of the applicant’s children as a party to the applicant’s complaint. In doing so the Tribunal acted under s 17A(1) of the Act.

29. The consequence is that when the guardian’s brother represented the guardian before the Tribunal he was not in conflict with the interests of the children. This is because the sister of the deceased member was a party before the Tribunal in her capacity as guardian and not in her personal capacity. There is no evidence whatsoever that the sister of the deceased member sought to obtain the benefit of monies due under the Act for her own benefit. In its reasons the Tribunal said that there was no evidence to suggest that the guardianship order in her favour should be criticised. Prior to the payment of the monies, as has been stated, she would be required to execute the deeds of trust applicable to each of the children to give effect to her role as guardian and trustee in relation to those monies and so would be subject to the requirements of the trust.

30. On 26 May 2003, by way of an email message from the Tribunal, it was stated that the Tribunal did not consider it appropriate for the sister of the deceased member to be joined as a party to the complaint in her own right as she did not meet the definition of a dependent under the Fund’s trust deed.  Her only role, therefore, was as representative of the children. 

31. It follows that no error of law by way of procedural unfairness can be contended for in respect of the guardian’s brother having represented the guardian and the joined parties at the hearing.  Their interests were not in conflict because the guardian had no interest other than to act in the interest of the children.

    EXERCISE OF DISCRETION

32. In exercising the discretion to extend, it is necessary for the Court to have regard to any explanation for delay, including the history of the proceedings, the conduct of the parties and the nature of the proceedings, the merits of the appeal, and the effect of the grant or refusal of the extension of time on each of the parties:  Cf Gallo v Dawson (1990) 93 ALR 479 at 480. The Court is also to have regard to any affidavit filed by the applicant pursuant to O 53 r 7(3) of the Federal Court Rules deposing as to the nature of the case, the questions involved and the reasons why an extension of time should be given. The Court has had regard to the affidavit of the applicant which is in similar terms to his written submissions.

33. It follows from what has already been said that the applicant’s affidavit and his written submissions do not disclose any arguable case that the Tribunal was in error of law in reaching its decision that the trustee’s decision was fair and reasonable.  It is also patently clear that the application for extension of time seeks only to obtain an opportunity to re-argue his view of the matter on which he failed to succeed before the Tribunal.  In the absence of an error of law in the Tribunal’s reasoning, it is not open for him to have an extension of time to enable him to file and serve a notice of appeal.  It follows that if the extension of time were granted the appeal would have no prospects of success. 

34. In these circumstances, therefore, the application for extension of time must be refused. 

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate:

Dated:             17 December 2004

The Applicant represented himself.
Counsel for the Respondent:	BC Smith
Solicitor for the Respondent:	Ilberys
Date of Hearing:	7 September 2004
Date of Last Written Submission:	21 October 2004
Date of Judgment:	17 December 2004