Edwards v Postsuper Pty Ltd (No 2)

FEDERAL COURT OF AUSTRALIA

Edwards v Postsuper Pty Ltd (No 2) [2006] FCA 1540

PRACTICE AND PROCEDURE – costs – whether special circumstances justifying departure from usual rule that costs follow the event

BRIAN EDWARDS AND JEANETTE EDWARDS v POSTSUPER PTY LTD AND SUPERANNUATION COMPLAINTS TRIBUNAL
NSD 492 OF 2006

MOORE J
21 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 492 OF 2006

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL

BETWEEN:

BRIAN EDWARDS
First Appellant

JEANETTE EDWARDS
Second Appellant

AND:

POSTSUPER PTY LTD
First Respondent

SUPERANNUATION COMPLAINTS TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE OF ORDER:	21 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appellants pay half the first respondent's costs of the proceedings.

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	NSD 492 OF 2006

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL

BETWEEN:

BRIAN EDWARDS
First Appellant

JEANETTE EDWARDS
Second Appellant

AND:

POSTSUPER PTY LTD
First Respondent

SUPERANNUATION COMPLAINTS TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE:	21 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 24 October 2006, I dismissed the appeal from the decision of the Superannuation Complaints Tribunal and directed the appellants and first respondent to file written submissions regarding costs: Edwards v Postsuper PtyLtd [2006] FCA 1380. The Tribunal filed a submitting appearance in the proceedings.

2. The first respondent, which I refer to as the respondent, submitted that the appropriate order was that the appellants pay the first respondent's costs of the appeal.  It essentially advanced four points in support of this contention.  First, the appellants did not succeed on any of the grounds.  Secondly, five grounds of appeal were raised in the appellants' amended notice of appeal, but the grounds were articulated differently in their written submissions.  The respondent submitted that the shifting articulation should count against the appellants on the question of costs.  The third issue related to the ground of appeal concerning the meaning of "Dependant" in the trust deed.  While being a significant focus of both parties' written and oral submissions, it was ultimately not necessary to decide this issue.  The respondent submitted that it was therefore not an issue on which it had failed fin the relevant sense.  It also pointed out that the issue had been raised by the appellants and that by addressing the question, the respondent was simply meeting an argument the appellants had raised.  The respondent defended its efforts in meeting the argument by reference to the significant consequences for the respondent and the superannuation industry generally if the appellants' argument that dependency in a superannuation trust deed included emotional dependency.  It was therefore not an issue the respondent could responsibly have ignored.  The fourth point advanced by the respondent was that a significant aspect of the appellants' case had been concerned with questions of the weight of the evidence.  A significant amount of…