Edwards v Postsuper Pty Ltd (No 2)

[2006] FCA 1540

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 preparation time had therefore been required to understand the factual material so as to enable it to be able to properly address the distinction between Wednesbury unreasonableness and mere questions of weight.  The respondent submitted that it should not be deprived of its costs where such time was required by reference to a question of law which it did not fail and which had been raised by the appellants.

3. The appellants submitted that there should be no order as to costs in favour of the respondent.  The respondent had failed on the issue of whether, as a matter of construction, it was necessary to determine whether the word "Dependant" and notions of dependency in the trust deed, concerned only financial dependency.

4. In relation to the shifting articulation point raised by the respondent, the appellants submitted that they had always asserted, and maintained throughout the hearing and in the amended notice of appeal, the primary contention that the Tribunal erred by narrowly focusing on financial dependence in ascertaining whether the appellants were in any way dependent on the deceased.  The respondents had in effect confirmed the appellants' submissions by the respondent's extensive and "unnecessary" submissions in relation to the notion of dependency.

5. The appellants also disagreed with the respondent's contention that the meaning of dependency was only one of the grounds of appeal.  They submitted that all grounds concerned, either directly or indirectly, the meaning of dependency and whether the Tribunal applied the right test in affirming the trustee's decision.  The respondent had failed on the dependency issue in circumstances where its primary contention was that the regulatory context of the trust deed concerned only financial dependency.  It had failed to support the Tribunal's decision on its face as the Court did and had therefore made "unnecessary" submissions on the issue.

6. The appellants further submitted that the issue of unreasonableness and alleged failure on the part of the Tribunal to take into account irrelevant considerations was not a significant part of their case, but merely an alternative ground of review intricately related to the dependency issue.  They also countered that this ground was never asserted on the basis of Wednesbury unreasonableness but rather in the Peko-Wallsend sense (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41).

7. Ultimately, I am satisfied that some adjustment should be made in relation to costs having regard to the position adopted by the respondent on the question of what is a "Dependant".  While it is unnecessary and undesirable for me to engage in a detailed consideration of the respondent's argument, it did not strike me as a particularly persuasive one.  In addition, it was probably not necessary for the respondent to have developed the argument as fully as it did because it was clear from the Tribunal's reasons that it had not determined the matter on a narrow view of the meaning of the word “Dependant”.  Whether it is necessary or desirable to adopt a particular meaning in the context of the superannuation industry more generally is really beside the point.  This case involved an unfortunate contest between individuals.  As I made clear when I suggested mediation, it is a contest which ideally would not be fought out in the courts.

8. I propose to order that the appellants pay half the respondent's costs of the appeal.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:        21 November 2006

Counsel for the Appellants:

Dr J Azzi

Solicitor for the Appellants:

H H Weller, solicitor

Counsel for the First Respondent:

Mr R J Carruthers

Solicitor for the First Respondent:

Last date of Submissions:

Date of Judgment:

Allens Arthur Robinson

14 November 2006

21 November 2006