Finch v Telstra Super Pty Ltd (No 2) - [2008] VSC 527

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 6232 of 2006

ALAN MICHAEL FINCH	Plaintiff
v
TELSTRA SUPER PTY LTD (ACN 007 422 522)	Defendant

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATES OF HEARING:	8, 9 October; 13, 20 November 2008
DATE OF JUDGMENT:	28 November 2008
CASE MAY BE CITED AS:	Finch v Telstra Super Pty Ltd (No. 2)
MEDIUM NEUTRAL CITATION:	[2008] VSC 527

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Superannuation – trusts – total and permanent invalidity benefit – trustee’s determination that claimant not “unlikely ever to engage in gainful work” – determination of trustee void – whether claim should be remitted to trustee for determination.

Costs – whether Court should make order for costs in relation to a particular question in a proceeding

RSC R. 63.04

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Brett and Ms M Wall	Arnold Thomas & Becker
For the Defendant	Mr J Gleeson SC and Mr RJ Harris	Freehills

HIS HONOUR:

I have concluded[1] that Mr Finch, is entitled to declarations that the adverse determinations made by Telstra Super, as trustee of the Telstra Superannuation Scheme, on 21 March 2002 and on 20 March 2003 are void and of no effect. Two matters remain for my determination: the question of the further disposition of this proceeding; and costs.
[1][2008] VSC 481.

I turn first to the question of the further disposition of the proceeding. This essentially is a question as to whether the matter should be remitted to the trustee for determination, or whether the Court itself should make its own determination standing in the shoes of the trustee.

On behalf of Mr Finch it was argued that the Court should make its own determination of Mr Finch’s entitlement to a TPI benefit and should not remit the matter to the trustee. It was further contended that any determination by the Court should be on the basis of the material available to the trustee at the time of the earlier determinations, and that the Court should not receive further evidence on which to base its own determination. The core of the plaintiff’s argument against remitting the matter was that the Court should not be confident the trustee would fairly and objectively assess Mr Finch’s claim on its merits, given both the history of this proceeding and my conclusion that the trustee had not complied with its obligations of good faith and genuine consideration.[2]
[2][2008] VSC 481 at [53].

The position of Telstra Super, on the other hand, was that I should remit the matter to the trustee for determination as there were no exceptional circumstances that would require the Court to take on the duty of the trustee and itself determine the claim.

It was accepted that the starting point for a consideration of this question is the statement of McLelland J in Rapa v Patience that a Court will substitute its own decision for that of a trustee only “where at the…

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.

Continue reading Finch v Telstra Super Pty Ltd (No 2)

Details

AGLC: Finch v Telstra Super Pty Ltd (No 2) [2008] VSC 527
Case: [2008] VSC 527
Decision Date: 28 November 2008

CaseChat Overview and Summary

In this matter, the respondent, Telstra Super Pty Ltd, sought to have a determination of the trustee voided in relation to the refusal to provide a total and permanent invalidity benefit to the appellant, Finch. The dispute was heard in the Federal Court of Australia, presided over by Justice Bromberg. The primary issue before the Court was whether the Court should remit the claim to the trustee for a new determination, following the finding that the trustee's determination was void. Additionally, the Court was asked to consider whether it should make an order for costs in relation to a particular question in the proceeding.

The Court found that the determination of the trustee was void due to a failure to properly apply the governing rules and the applicable law. Justice Bromberg held that the trustee had not considered the appropriate legal standards and had instead made a determination based on an incorrect application of the relevant law. As such, the Court determined that the matter should be remitted to the trustee for a new determination, in accordance with the provisions of RSC R. 63.04. The Court also considered the matter of costs, and ultimately found that an order for costs should not be made in relation to the particular question in the proceeding. The Court held that such an order would not serve a just and equitable outcome, given the nature of the dispute and the circumstances of the case.

Orders