Buck and Commonwealth Superannuation Corporation - [2019] AATA 4548

Buck and Commonwealth Superannuation Corporation [2019] AATA 4548 (31 October 2019)

Division: GENERAL DIVISION

File Number: 2018/1595
Re:Maureen Buck
APPLICANT

AndCommonwealth Superannuation Corporation
RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie
Date of decision: 31 October 2019
Place:Melbourne

The Tribunal decides to affirm the decision made by the respondent dated 14 August 2017 and affirmed on 27 February 2018 to refuse to extend the prescribed period of 30 days within which the applicant might request review of its decision dated 11 February 1986.

[sgd]....................................................................

Deputy President S A Forgie

Catchwords

SUPERANNUATION – application for an extension of time within which to seek review of decision by the Commissioner of Superannuation – whether a ‘spouse’ under s 3(1) of the Superannuation Act 1976 – whether eligible under s 3(2) – whether acceptable explanation for delay – whether there are prospects of success – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975, ss 37, 42B

Family Law Act 1985; s 82, 87

Federal Court Act 1976; s31A

Superannuation Act 1976; ss 3(1) and (2), 17, 27, 40, 41, 82, 109, 154

Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011; s 3; Schedule 2, Item 15(7)

Cases

Alcoa of Australia Retirement Plan Pty Ltd v Frost [2010] HCA 36; (2010) 242 CLR 254; 271 ALR 236

Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd & Ors [1989] FCA 44

Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408

Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441; 119 ALR 85; 18 AAR 366

Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409

Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254; 271 ALR 236

Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479; 64 ALJR 458

Hawkesley v May [1956] 1 QB 304; [1955] 3 WLR 569

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315

Karger v Paul [1984] VicRp 13; [1984] VR 161

Pearce v Hornsey (1991) 29 FCR 239
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109

Segelov v Young Services Pty Ltd [2015] NSWCA 156; (2015) 89 NSWLR 431

Secondary Materials

Jacob’s Law of Trusts in Australia

REASONS FOR DECISION

Deputy President S A Forgie

Mr Empson and Ms Buck[1] were married in 1969 and had three children. Mr Empson was a qualified chartered accountant and a permanent employee of Australia Post when he joined the Commonwealth Superannuation Scheme (CSS) on 27 July 1977. That fund, which was established under the Superannuation Act 1976 (Superannuation Act) was then administered by the Commissioner for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 4548
Decision Date: 31 October 2019

CaseChat Overview and Summary

This matter concerned an application by Ms Buck for an extension of time to seek review of a decision made by the Commissioner of Superannuation. The dispute centred on whether Ms Buck qualified as a "spouse" under the *Superannuation Act 1976* and was therefore eligible for benefits. The Administrative Appeals Tribunal (AAT) was required to determine if there was an acceptable explanation for the delay in lodging the application and if there were reasonable prospects of success.

The legal issues before the AAT were whether Ms Buck met the definition of a "spouse" for the purposes of the *Superannuation Act 1976*, and if so, whether she had provided an acceptable explanation for the significant delay in seeking a review of the Commissioner's decision. The Tribunal also had to assess whether, if an extension were granted, Ms Buck had demonstrated prospects of success in her substantive application.

The Tribunal considered the evidence of Ms Buck's marriage and subsequent Family Court orders, which indicated a history of domestic violence and financial dependence. While acknowledging the severity of the abuse, the Tribunal noted that the *Superannuation Act* and general trust law principles did not impose a duty on the Commissioner to proactively inform potential beneficiaries of their rights, particularly when an application had been refused. The Tribunal distinguished the duty owed by trustees in this context from situations where a more intense duty might arise, such as in *Finch v Telstra Super Pty Ltd*. Ultimately, the Tribunal found that there was no acceptable explanation for the delay and that Ms Buck had not demonstrated sufficient prospects of success.

The Tribunal affirmed the Commissioner's decision and dismissed Ms Buck's application for an extension of time.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As to any duty to inform Ms Buck of her rights under the CSS, Ms Kay submitted that there is no such duty provided for in the Superannuation Act or in equity. She supported her submission by reference to the legislation and the following passage from Jacob’s Law of Trusts in Australia:“There is no general duty on trustees to volunteer documents or information to beneficiaries or possible beneficiaries, nor to consult their wishes. In addition to keeping and furnishing accounts, trustees must, when asked to do so, give the beneficiaries full information as to the amount of the trust property and as to its investments even if the beneficiary’s interest is only contingent. A trustee is bound to inform a beneficiary, who on attaining majority is entitled to a share in a trust fund, of that interest.”THE EVIDENCE Orders were made by Asche J in the Family Court of Australia (Family Court) on 17 May 1984. Until further order, Mr Empson and Ms Buck were to have joint guardianship of their children but she was to have their sole custody. Their house was ordered to be sold but Ms Buck had exclusive right to occupy it until it was sold. Until the house property was sold, Mr Empson was ordered to pay all mortgage payments as well as $25 each week for each of the three children. In addition, he was ordered to pay the children’s school fees. Ms Buck was ordered to meet all household expenses of the property. Joske J made other orders relating to the disposition of household furniture and chattels and of the proceeds in bank accounts as well as relating to counselling and communication. Ms Buck would meet one half of Mr Epsom’s Bankcard commitment as at 16 May 1984.[4][4] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T documents); T10 Further orders were made by Joske J on 18 June 1984. They included orders that, until further order, Ms Buck had sole use of the Commodore motor vehicle and that Mr Empson maintain the health insurance of all five of them at the current rate. Further consideration was adjourned to enable a hearing date to be set in July 1984. Ms Buck’s solicitors, Margaret Mandelert & Co, wrote to her on 19 June 1984 advising her of the orders.[5][5] T documents; T11 On 18 January 1985 and under s 87 of the Family Law Act 1985 (FLA), Asche J of the Family Court approved a Deed of Settlement (Deed) between Mr Empson and Ms Buck. Mr Shepherd represented Mr Empson at the hearing and Ms Buck was represented by Miss Lord. Before 18 January 1985, Mr Empson had been paying mortgage payments on the family home and other outgoings in respect of Ms Buck’s support. Consistently with the Deed, the Family Court ordered Mr Empson to pay maintenance for their children at the rate of $25 per week for each child as well as their private school tuition fees and other reasonable excursion expenses, uniforms and fares as well as half of all text books. The Family Court did not make a maintenance order in respect of Ms Buck.[6] Under the terms of the Deed, their family home was sold on 25 January 1985 with $49,648.25 of the net proceeds being distributed to Ms Buck. Together with an amount of $4,985.05 already paid to her, her share of the net proceeds was $54,633.30. Mr Empson received $42,244.55 of the net proceeds.[7]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Since the establishment of the Superannuation Complaints Tribunal, s 154 has been repealed and applications may no longer be made to the Tribunal. Transitional arrangements were made, however, in the Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011. Their effect was that, despite the repeal of s 154, an application may still be made to the Tribunal:“… under that section for review of a decision by the Commissioner of Superannuation or a delegate of the Commissioner, made before the commencement under:(a) the Superannuation Act; (b) the Superannuation Act 1922; or (c) regulations made under either of those Acts;if, at commencement, the period for making an application for review has not ended.”[60] [60] Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011; s 3; Schedule 2, Item 15(7)CONSIDERATION I have not included in my summary of the evidence, reference to particular acts of violence described by Ms Buck and/or her children. I accept that they occurred and that she was physically and extensively abused during the course of her marriage. She was fearful of her husband as a result as were her children. For at least one of her children, the consequences of their family environment have had a lasting effect. Mr Donald submitted that the duty of a trustee of a trust is more intense when the trust is a superannuation trust. That follows from the fact that it is extremely important to the beneficiaries of superannuation trusts that benefits are paid to those entitled to them. The CSS is a strict trust and a beneficiary is entitled as of right to a benefit provided under it. Mr Donald referred to Finch v Telstra Super Pty Ltd[61] (Finch) in support of his submission and distinguished trusts to which the principles discussed in Karger v Paul[62] applied. In the case of Ms Buck, he submitted, the Commissioner had been in breach of his duty when he did not satisfy himself that she had been fully apprised of her rights when her application was initially refused in 1986.[61] [2010] HCA 36; (2010) 242 CLR 254; 271 ALR 236 at [66]; 280-281; 254; French CJ, Gummow, Heydon, Crennan and Bell JJ[62] [1984] VicRp 13; [1984] VR 161; McGarvie J Beginning with Karger v Paul, the issue before McGarvie J arose from a will in which the testatrix left her entire estate to her husband during his lifetime with a power to her trustees. She also gave power to her trustees, in their absolute and unfettered discretion and upon her husband’s request, power to pay or transfer the whole or part of the capital of the estate to him for his own use absolutely. The residue of the estate, if any, was to be paid to Mrs Karger, who was the remainderman. The testatrix appointed her husband and her solicitor as her trustees. The husband made a written request to himself and the solicitor that they pay the entire capital of the estate to him and they did so. Soon after the transfer was complete, the husband died and Ms Karger received no benefit under the will. Ms Karger brought action against the solicitor and the executor of the husband’s will claiming that the trustees had acted wrongfully and thereby deprived her of a benefit under the will.