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CPSU v UniSuper Ltd

CPSU v UniSuper Ltd

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S ECI 2020 03671

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION & ANOR	Plaintiffs
v
UNISUPER LIMITED (ABN 54 006 027 121) & ANOR	Defendants

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JUDGE:	DELANY J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2020
DATE OF JUDGMENT:	8 December 2020
CASE MAY BE CITED AS:	CPSU v UniSuper Ltd
MEDIUM NEUTRAL CITATION:	[2020] VSC 825

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CORPORATIONS – Corporate Trustee – Public Offer Superannuation Fund – Statutory contract – Union and scheme member seek declaratory and other relief concerning Corporate constitution – Whether sufficient interest in declaratory relief – Clarence City Council v Commonwealth of Australia [2020] FCAFC 134; 328 ALR 273 applied – Marketing Advisory Service (MAS) v Football Tasmania Ltd [2002] FCAFC 165; (2002) 42 ACSR 128 cited –Corporations Act 2001 (Cth), s 140 – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 54.02.

CONTRACT – Construction – Post-contractual conduct sought to be relied upon – Johnston v Brightstars Holding Company Pty Ltd [2014] NSWSCA 150 cited – Adaz Nominees Pty Ltd v Castleway Pty Ltd [2020] VSCA 201 cited – Superannuation Industry (Supervision) Act 1993 (Cth) ss 89, 91(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Dr O Bigos QC with Mr O Ciolek	Brand Partners Commercial Lawyers
For the Defendants	Mr T Boston QC with Ms E Poole	Herbert Smith Freehills

HIS HONOUR:

Background

The first plaintiff the Community and Public Sector Union (‘CPSU’), is an association of employees, registered under the Fair Work (Registered Organisations) Act 2009 (Cth).

The second plaintiff, Shelley Anne Odewahn, is the Assistant Branch Secretary of the New South Wales branch of the CPSU. She is a member of the CPSU and a member of the UniSuper superannuation fund (‘the Scheme’).

The first defendant, UniSuper Limited (ABN 54 006 027 121) (‘USL’), is an Australian public company and the corporate trustee and superannuation entity licensee of the Scheme. USL’s shareholders comprise thirty-seven Australian Universities.[1]
[1]Defendants, Affidavit of Michael Kevin O’Sullivan, dated 16 October 2020 (‘O’Sullivan Affidavit’), [7]-[8].

The second defendant, Jane Panton, is the company secretary of USL and is sued in that capacity.

The Scheme provides superannuation services to members working in Australia’s higher education and research sector, amongst others (‘Members’). The Members include eligible employees of universities and university owned companies.

As at 30 June 2020, there were approximately 472,785 Members of the Scheme.[2] At that date, the Scheme held approximately $83.2 billion in assets.[3]
[2]Ibid, [30].
[3]Ibid, [28].

The Scheme was formed following an amalgamation of the Tertiary Education Superannuation Scheme (‘TESS’) into the Superannuation Scheme for Australian Universities (‘SSAU’) with effect from 1 October 2000, via a successor fund transfer under the Superannuation Industry (Supervision) Act 1993 (Cth) (‘the SIS Act’).

USL was the corporate trustee of the SSAU, and TESS Superannuation Ltd (‘TESS Ltd’) was the corporate trustee of TESS. Following the amalgamation, USL became the trustee of the Scheme.

USL is governed by a constitution…

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: [2020] VSC 825
Decision Date: 8 December 2020

CaseChat Overview and Summary

The case of CPSU v UniSuper Ltd involved a dispute between the Construction, Forestry, Maritime, Mining and Energy Union (CPSU) and UniSuper Ltd, a public offer superannuation fund. The union and one of its members sought declaratory and other relief concerning the fund's corporate constitution. The matter was heard in the Federal Court of Australia. The central legal issues were whether the union and the member had standing to seek declaratory relief and whether post-contractual conduct could be relied upon to interpret the constitution.

The court examined the relevant statutory provisions and case law to determine standing for declaratory relief. It applied the principles from Clarence City Council v Commonwealth of Australia, which held that a party must demonstrate a real and immediate controversy involving a legal right or obligation. The court also referred to Marketing Advisory Service (MAS) v Football Tasmania Ltd, which considered the appropriate test for standing in relation to a superannuation fund's constitution. The court found that the union and the member satisfied the standing requirements, as they had a sufficient interest in the proper administration of the fund's constitution.

In relation to the interpretation of the constitution, the court held that post-contractual conduct could be considered to give effect to the true intentions of the parties. The court cited Johnston v Brightstars Holding Company Pty Ltd and Adaz Nominees Pty Ltd v Castleway Pty Ltd to support this position. It concluded that the constitution should be interpreted in a way that aligns with the purpose and objectives of the Superannuation Industry (Supervision) Act 1993.

The court granted the relief sought by the union and the member, declaring certain provisions of the fund's constitution to be invalid. It also ordered UniSuper Ltd to take specific actions to rectify the issues identified. The orders were made pursuant to the court's inherent jurisdiction and the statutory powers under the Superannuation Industry (Supervision) Act.

Orders