FEDERAL COURT OF AUSTRALIA
Barghouthi v ING Custodians Pty Ltd [2003] FCA 1272
SUPERANNUATION COMPLAINTS TRIBUNAL – appeal on question of law – application struck out – no question of law disclosed.
Administrative Appeals Tribunal Act 1975 (Cth) subs 44(1)
Federal Court of Australia Act 1976 (Cth) s 32
Insurance Contracts Act 1984 (Cth)
Judiciary Act 1903 (Cth) s 39B(1A)(c)
Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 14, 37, 46(1)
Federal Court Rules
Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305
Australian Telecommunications Corporation v Lambroglou
Barghouthi v ING Custodians Pty Ltd [2003] FCA 636.
Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232
Burgundy Royale Investments Pty Ltd v Westpac (1987) 18 FCR 212
Commissioner of Taxation v Roberts (1992) 37 FCR 246
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Felix v General Dental Council [1960] AC 704
Hoddinott v Newton, Chambers & Co Ltd [1901] AC 49
Johnstone v Sutton (1786) 1 TR 510, 545; 99 ER 1225
Lombardo v Federal Commission of Taxation (1979) 40 FLR 208
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24.
National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562
Nizich v Commissioner of Taxation (1991) 91 ATC 4,747
Parisienne Basket Shoes Pty ltd v Whyte (1938) 59 CLR 369
Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330
Re Wakim; Ex parte McNaly (1998) 198 CLR 511
Waterford v The Commonwealth (1987) 163 CLR 54
Wespac Banking Corporation v Paterson (1995) 95 FCR 59
Brown “Fact and Law in Judicial Review” (1943) 56 Harv LR 899
Farnsworth “‘Fact’ or ‘Law’ in cases stated under the Income Tax Acts” (1946) 62 LQR 248
Jaffé “Judicial Review: Question of Law” (1955) 69 Harv LR 239
Jaffé “Judicial Review: Question of Fact” (1955) 69 Harv LR 1020
Morris “Law and Fact” (1942) 55 Harv LR 1303
Stern “Review of Findings of Administrators, Judges and Juries” (1944) 58 Harv LR 70
Wilson “A Note on Fact and Law” (1963) 26 Mod LR 609
RAMZI BARGHOUTHI v ING CUSTODIANS PTY LTD & OTHERS
N 505 of 2002ALLSOP J
7 NOVEMBER 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N505 of 2002
BETWEEN:
RAMZI BARGHOUTHI
APPLICANTAND:
ING CUSTODIANS PTY LTD
FIRST RESPONDENTING LIFE LIMITED
SECOND RESPONDENTPLESTEL PTY LIMITED
THIRD RESPONDENTJUDGE:
ALLSOP J
DATE OF ORDER:
7 NOVEMBER 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Paragraphs 2 and following of the notice of appeal filed on 31 May 2002 be struck out.
2.The applicant have leave to replead the notice of appeal as against the first and second respondents, any such further pleading is to be annexed to a notice of motion seeking leave to file the annexed draft amended notice of appeal, such notice of motion to be filed and served on…
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- Case
- [2003] FCA 1272
- Decision Date
CaseChat Overview and Summary
The tribunal reviewed the insurer's decision and the trustee's subsequent review, finding that the applicant did not meet the eligibility criteria for the GSC benefit. The tribunal held that the applicant's injury did not occur within the specified time frame for coverage, nor was he considered totally disabled at the relevant times under the policy terms. The tribunal further noted that the applicant's employment with Transfield after leaving Plessey further complicated his claim. Based on these findings, the tribunal upheld the decision to deny the applicant's claim for GSC benefits.
The tribunal ordered that certain paragraphs of the appeal notice be struck out and granted the applicant leave to replead the notice of appeal against the first and second respondents. Additionally, the tribunal dismissed the amended notice of motion filed by the applicant and stood over the matter for directions and argument regarding costs. This decision confirmed the rejection of the applicant's claim for GSC benefits and set the stage for further proceedings concerning the costs associated with the tribunal's decision.
Orders
Orders of the court
1. Paragraphs 2 and following of the notice of appeal filed on 31 May 2002 be struck out.
2. The applicant have leave to replead the notice of appeal as against the first and second respondents, any such further pleading is to be annexed to a notice of motion seeking leave to file the annexed draft amended notice of appeal, such notice of motion to be filed and served on or before 5 December 2003.
3. The amended notice of motion filed by the applicant on 30 June 2003 and amended by hand be dismissed.
4. The matter be stood over for directions and argument as to costs on 19 December 2003 at 9.30 am.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: ALLSOP J
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