Coonara Superannuation Services Pty Ltd v Simons

[2000] FCA 1369

FEDERAL COURT OF AUSTRALIA

Coonara Superannuation Services Pty Ltd v Simons [2000] FCA 1369

COONARA SUPERANNUATION SERVICES PTY LTD v REGINALD SIMONS
NG 410 OF 1997

JUDGE:         WHITLAM J
PLACE:         SYDNEY
DATE:           27 SEPTEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 410 OF 1997

On appeal from the Superannuation Complaints Tribunal

BETWEEN:	COONARA SUPERANNUATION SERVICES PTY LTD APPLICANT
AND:	REGINALD SIMONS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	27 SEPTEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The determination of the Superannuation Complaints Tribunal (“the Tribunal”) made on 27 February 1997 is set aside.

AND DECLARES THAT:

2.Upon the true construction of the Rules of the IBM Australia Limited Retirement Plan the amount of the Dutch pension payable to the respondent from 1 April 2005 is an amount payable to him within the meaning of Rule 3.1.

AND ORDERS THAT:

3.The matter be remitted to the Tribunal to be determined again in accordance with the declaration in paragraph 2 of this order.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 410 OF 1997

On appeal from the Superannuation Complaints Tribunal

BETWEEN:	COONARA SUPERANNUATION SERVICES PTY LTD APPLICANT
AND:	REGINALD SIMONS RESPONDENT

JUDGE:	WHITLAM J
DATE:	27 SEPTEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (“the Act”).

2. The applicant is the trustee of the IBM Australia Limited Retirement Plan (“the Plan”). The respondent is a former member of the Plan, who made a complaint under s 14 of the Act to the Superannuation Complaints Tribunal (“the Tribunal”). His complaint was successful.

3. This appeal has not been defended by the respondent. Section 46(5) of the Act provides that, in those circumstances, the Court must not make an order awarding costs against him. However, the respondent’s absence meant that, not only was there no contradictor at the hearing, but that the only documents included in the appeal papers were those proposed by the applicant. These comprise the respondent’s written complaint to the Tribunal (but not the attachments to that complaint), the trust deed establishing the Plan (which incorporates its Rules), the Tribunal’s determination and the written reasons for its determination. I shall now sketch the essential background to the present appeal, so far as may be gleaned from the appeal papers.

4. The respondent was born on 12 March 1940.  He was employed by IBM Nederland NV between 1 July 1963 and 31 July 1982 and by IBM Australia Limited between 21 January 1985 and 31 March 1995.  The respondent was, as I have mentioned, a member of the Plan.  As a member who retired after he attained the age of 55 years and whose “IBM Service” as at his retirement on 31 March 1995 was “at least 10 years”, he was entitled to receive an Early Retirement Pension under Rule 14.5…