Friar v Brown

[2014] FCA 1275

FEDERAL COURT OF AUSTRALIA

Friar v Brown [2014] FCA 1275

Citation:	Friar v Brown [2014] FCA 1275
Appeal from:	D14-15\075 [2014] SCTA 223
Parties:	CHINA MAY FRIAR v MARIAN PATRICIA BROWN (ON BEHALF OF LIAM FRIAR), MARIAN PATRICIA BROWN (ON BEHALF OF CARMICHAEL FRIAR) and AMANDA CHANCELLOR (ACTING ON BEHALF OF JYDEN BRUMMELL)
File number(s):	NSD 1146 of 2014 NSD 1147 of 2014
Judge(s):	GRIFFITHS J
Date of judgment:	25 November 2014
Catchwords:	SUPERANNUATION – review of decision of Superannuation Complaints Tribunal – appellant self-represented – whether Tribunal should be joined as respondent to proceedings – whether substituted service permitted.
Legislation:	Federal Court Rules 2011 (Cth) r 10.24 Superannuation (Resolution of Complaints) Act 1993 (Cth) s 45
Date of hearing:	25 November 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	10
Counsel for the appellant:	The appellant appeared in person
Counsel for the respondents:	The respondents did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1146 of 2014 NSD 1147 of 2014

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL

BETWEEN: CHINA MAY FRIAR
Appellant

AND:

MARIAN PATRICIA BROWN (ON BEHALF OF LIAM FRIAR)
First Respondent

MARIAN PATRICIA BROWN (ON BEHALF OF CARMICHAEL FRIAR)
Second Respondent

AMANDA CHANCELLOR (ACTING ON BEHALF OF JYDEN BRUMMELL)
Third Respondent

JUDGE:	GRIFFITHS J
DATE OF ORDER:	25 NOVEMBER 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave is granted to the appellant to amend the notice of appeal so as to join the Superannuation Complaints Tribunal as an additional respondent in the appeal.

2.The appellant file and serve the amended notice of appeal and supporting documents, including the interlocutory application, these reasons for judgment and the orders made herein, within seven days hereof.

3.Under r 10.24 of the Federal Court Rules 2011 (Cth), service by the appellant of any documents be achieved by way of registered post.

4.The appellant file and serve, within 14 days hereof, an affidavit which describes the steps which she has taken to achieve the substituted service as ordered above.

5.The appellant file and serve a bundle of the documents upon which she proposes to rely for the purposes of the appeal, together with an outline of written submissions in support of her appeal, not exceeding 10 pages, by 24 December 2014.

6.Any respondent who wishes to do so should file and serve any additional documents upon which he, she or it intends to rely upon in the appeal by no later than 30 January 2015, together with an outline of written submissions not exceeding 10 pages in length.

7.The matter be listed for further directions before Griffiths J at 9.30 am on 3 February 2015, at which time a hearing date may be allocated for the hearing of the appeal.

8.Leave is given to any party to the appeal to seek to have the matter relisted on the giving of 48 hours’ notice.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1146 of 2014 NSD 1147 of 2014

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL

BETWEEN: CHINA MAY FRIAR
Appellant

AND:

MARIAN PATRICIA BROWN (ON BEHALF OF LIAM FRIAR)
First Respondent

MARIAN PATRICIA BROWN (ON BEHALF OF CARMICHAEL FRIAR)
Second Respondent

AMANDA CHANCELLOR (ACTING ON BEHALF OF JYDEN BRUMMELL)
Third Respondent

JUDGE:	GRIFFITHS J
DATE:	25 NOVEMBER 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter came before me for first directions this morning.  It involves an appeal by Ms Friar against a decision of the Superannuation Complaints Tribunal (Tribunal).

2. The Tribunal gave reasons for its decision under cover of a letter dated 7 October 2014. The appeal is brought under s 45 of the Superannuation (Resolution of Complaints) Act 1993 (Cth). Such an appeal only lies to the Federal Court from a determination of the Tribunal on a question of law.

3. None of the respondents to the appeal appeared today. That is because, as Ms Friar confirmed from the bar table, they have not yet been served. Ms Friar has filed an interlocutory application which asks that she be able to serve the relevant documents on the respondents by registered post because of the difficulties of her accomplishing service by personal service. Ms Friar has indicated that one of the proposed respondents lives in Queensland and the other lives on the Central Coast. I am minded to make an order under r 10.24 of the Federal Court Rules 2011 (Cth) directing that service be made in this case by way of registered post.

4. There is a further issue which I have raised with Ms Friar this morning.  It relates to the fact that the notice of appeal at present does not name the Tribunal as a respondent.

5. I explained to Ms Friar that the limitations which apply to an appeal to this Court from a decision of the Tribunal, not only in terms of the scope of such an appeal being confined to a question of law, but also in respect of the type of relief which the Court is empowered to give on an assumption that some legitimate appeal point is established at the final hearing.

6. I explained that the likely relief, if that event were to occur, would be to set aside the Tribunal’s decision and remit it for consideration according to law.  Because of that possibility, it seems to me necessary that the Tribunal be joined as a respondent in the proceedings, while recognising that in the normal course of events, it is likely that the Tribunal will file a submitting appearance in the appeal, save as to costs.

7. I will direct that Ms Friar have leave to amend her notice of appeal so as to add the Tribunal as an additional respondent.  The order that I will make for substituted service will apply not only to the existing respondents but also to the Tribunal.

8. I also explained to Ms Friar the risk that she carries as to costs in the event that her appeal is unsuccessful.  The normal course in a matter like this, where an appellant is unsuccessful, is that costs follow the event.  In other words, I explained that if she were not to persuade the Court of an error of law, as opposed to an error of fact, in the Tribunal’s decision, it may be that an order for costs is made against her by any respondent who is an active respondent in the appeal. 

9. I also indicated to Ms Friar that I will make directions which affect not only her, but also the respondents, to enable her appeal to be heard as soon as is practicable and fair to all parties concerned.  With that in mind, I will make directions for the filing of evidence in support of or in defence of the appeal, as well as outlines of written submissions.  I will then have the matter back before me for directions at 9.30 am on 3 February 2015, at which point I anticipate that a hearing date of no more than one day will be allocated for the hearing of the appeal.  I also explained that I would make an order enabling any party to have the matter relisted before 3 February 2015.

10. Orders will be made accordingly.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Associate:

Dated:       25 November 2014