Finch v Telstra Super Pty Ltd (No 2)

Case [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

---

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

---

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

---

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:

  1. 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. 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.

  1. 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].

  1. 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.

  1. 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…

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

Sign in free to access the full text

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

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

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.