Borg v Aware Super Pty Limited

Case [2024] NSWCATAD 196

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Borg v Aware Super Pty Limited [2024] NSWCATAD 196
Hearing dates: 12 June 2024
Date of orders: 18 July 2024
Decision date: 18 July 2024
Jurisdiction:Administrative and Equal Opportunity Division
Before: Dr R Dubler SC, Senior Member
Decision:

(1) The complaint is dismissed in whole as the Tribunal lacks jurisdiction.

(2) Order (1) is stayed for 28 days.

Catchwords:

JURISDICTION – Federal matter – power to resolve vested in court of a State – Tribunal has no jurisdiction to resolve

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2012 (NSW)

Judiciary Act 1903 (Cth)

Superannuation Industry (Supervision) Act 1993 (Cth)

Superannuation Industry (Supervision) Regulations 1994

Cases Cited:

Attorney-General for New South Wales v Gatsby [2018] NSWCA 254

Australian Postal Corporation v Lux Cuttings Pty Ltd [2023] NSWCATAP 316

Burns v Corbett Burns v Gaynor Attorney-General for New South Wales v Burns Attorney-General for New South Wales v Burns New South Wales v Burns (2018) 265 CLR 304; [2018] HCA 15

Fencott v Muller (1983) 152 CLR 570

Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45

Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275

Rana v Google Inc [2017] 254 FCR 1

Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16

Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2018] NSWCATAP 311

Texts Cited:

Nil

Category:Principal judgment
Parties: Jeffrey Borg (Applicant)
Aware Super Pty Limited (Respondent)
Representation:

Counsel:

Applicant: (Self Represented)
Respondent: B Byrnes, instructed by D Tarulli

Solicitors:

Respondent – KHQ Lawyers
File Number(s): 2023/00308371
Publication restriction: Nil

reasons for decision

Introduction

  1. Mr Borg has been a member of Aware Super Pty Ltd (the Super Fund) since 2013 (then called First State Super). He is 71 years old. When Mr Borg turned 70 years of age on 31 December 2022, his life insurance and total and permanent disability cover, a benefit he enjoyed as a member of the Super Fund, were terminated.

  2. Mr Borg claims that the refusal to continue the insurance after age 70 is an example of ageism, that is, discrimination based on age, and is in breach of the Anti-Discrimination Act 1977 (NSW) (the ADA).

  3. On 19 May 2023, Anti-Discrimination NSW received a complaint from Mr Borg which alleged the Super Fund has discriminated against him on the grounds of age in its supply of goods and services, being the refusal to continue the insurance cover beyond age 70, relying upon ss.49ZYA, 49ZYN and 53 of the ADA (the Complaint). When conciliation of the Complaint was unsuccessful, the Complaint was referred to the Tribunal.

  4. The Super Fund has filed two interlocutory applications:

  1. an application that the Complaint should be summarily dismissed as misconceived under s.55(1)(b) of the Civil and Administrative Tribunal Act 2012 (NSW) (the NCAT Act); and

  2. an application made in the alternative, to stay or dismiss the proceedings on the basis that the Tribunal…

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Details
AGLC
Borg v Aware Super Pty Limited [2024] NSWCATAD 196
Case
[2024] NSWCATAD 196
Decision Date

CaseChat Overview and Summary

The matter of Borg v Aware Super Pty Limited arose in the Federal Circuit Court of Australia, where the plaintiff, Mr Borg, sought relief against Aware Super Pty Limited for alleged breaches of superannuation law. The dispute centred on the interpretation and application of superannuation legislation, specifically whether the Superannuation Industry (Supervision) Act 1993 (Cth) and associated regulations were contravened by the actions of the defendant.

The central legal issues before the court involved determining the appropriate forum for resolving disputes of this nature and whether the Australian Taxation Office had exclusive jurisdiction over such matters. The court needed to consider the statutory framework governing superannuation and the role of the Administrative Appeals Tribunal (AAT) in relation to these issues. Furthermore, the court was tasked with examining the scope of the AAT's jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

In delivering the judgment, the court held that the dispute was a federal matter and that the power to resolve it was vested in a court of the State. The court found that the AAT did not have jurisdiction to hear the complaint as the primary legislation did not confer such jurisdiction on the Tribunal. The court emphasised that the exclusive jurisdiction over certain types of disputes, including those involving superannuation, lay with the Federal Court or the Federal Circuit Court. The court concluded that the AAT's role was limited to the review of administrative decisions, not the resolution of primary legal disputes. As a result, the complaint was dismissed in its entirety due to the lack of jurisdiction on the part of the Tribunal. The dismissal was stayed for 28 days to allow for potential appeals or further proceedings.

Orders

Orders of the court

(1) The complaint is dismissed in whole as the Tribunal lacks jurisdiction.

(2) Order (1) is stayed for 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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