Gilberg v Maritime Super Pty Ltd - [2009] NSWCA 325

New South Wales

Court of Appeal

CITATION: Gilberg v Maritime Super Pty Ltd [2009] NSWCA 325

HEARING DATE(S): 31 August 2009

JUDGMENT DATE:
8 October 2009

JUDGMENT OF: Allsop P at 1; Hodgson JA at 2; Campbell JA at 40

DECISION: (1) Appeal allowed.
(2) Orders of primary judge set aside.
(3) Order that the respondent consider the appellant’s application to reopen his claim under Rule 17 in accordance with these reasons.
(4) Respondent to provide within seven days any submissions to the effect that the ordinary result as to costs should not follow either at first instance or on appeal, and the appellant to provide submissions in response within a further seven days.

CATCHWORDS: TRUSTS AND TRUSTEES – Superannuation trust – Entitlement to benefit – Rules requiring supporting reports from medical practitioners – Non-satisfaction of requirement and rejection of claim – Whether trustee has power to consider a further claim by the same member – What is the duty of the trustee when a further claim is made – Whether that duty was breached – Whether relief should be granted.

LEGISLATION CITED: Superannuation (Resolution of Complaints) Act 1993 (Cth) s 14
Superannuation Industry (Supervision) Act 1995 (Cth) s 52

CATEGORY: Principal judgment

CASES CITED: Stevedoring Employees Retirement Fund Pty Ltd v Gilberg [2006] FCA 1590

PARTIES: John GILBERG (Appellant)
MARITIME SUPER PTY LIMITED (Respondent)

FILE NUMBER(S): CA 40041/09

COUNSEL: B W RAYMENT QC/ M J GOLLAN (Appellant)
V M HEATH (Respondent)

SOLICITORS: Firths – The Compensation Lawyers (Appellant)
Mallesons Stephen Jaques (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 50121/08

LOWER COURT JUDICIAL OFFICER: McDougall J

LOWER COURT DATE OF DECISION: 25 November 2008

LOWER COURT MEDIUM NEUTRAL CITATION: John Gilberg v Stevedoring Employees Retirement Fund Pty Ltd [2008] NSWSC 1318

- 14 -

CA 40041/09
SC 50121/08

ALLSOP P
HODGSON JA
CAMPBELL JA
8 OCTOBER 2009

John GILBERG v MARITIME SUPER PTY LIMITED

Judgment

1 ALLSOP P: I agree with Hodgson JA.

2 HODGSON JA: On 25 November 2008 McDougall J decided proceedings in which the appellant had claimed against the respondent a declaration that he was entitled to benefit under the Stevedoring Employees Retirement Fund (the Fund) on the basis that he was totally and permanently disabled within the meaning of the Rules forming part of the Trust Deed of the Fund, and sought consequential and alternative relief.

3 For reasons given on that day, the primary judge dismissed the proceedings and ordered the appellant to pay the respondent’s costs of the proceedings. The appellant appeals from those orders.

Circumstances

4 For some years prior to 12 May 2001, the appellant was a waterside worker. On that date, he sustained an injury. He has not worked since.

5 The appellant had been a member of the Fund since 1982. The Fund’s Rules are contained in a Schedule to the Trust Deed made on 16 October 1967, but they have been amended on a number of occasions since then. At times…

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.

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Details

Case: [2009] NSWCA 325
Decision Date: 8 October 2009

CaseChat Overview and Summary

The appeal in *Gilberg v Maritime Super Pty Ltd* concerned a dispute over an entitlement to a superannuation benefit. The appellant, Mr Gilberg, had his claim rejected by the trustee, Maritime Super Pty Ltd, because he failed to provide supporting reports from medical practitioners as required by the trust's rules. Mr Gilberg subsequently sought to make a further claim, and the central question was whether the trustee had the power to consider this further claim and what its duties were in relation to it.

The Court of Appeal was required to determine whether the trustee had a power to consider a further claim by the same member after an initial claim had been rejected for non-compliance with the rules. It also had to consider the nature of the trustee's duty when such a further claim was made, and whether that duty had been breached. Finally, the court had to decide whether any relief should be granted to the appellant.

The Court of Appeal reasoned that the trustee's duty of good faith and reasonableness extended to considering a further claim, even if the initial claim was rejected for a formal defect. The court found that the trustee had acted unreasonably in refusing to consider Mr Gilberg's further application to reopen his claim under Rule 17, which the court interpreted as allowing for such reconsideration. The trustee's duty was to act fairly and to afford the member an opportunity to rectify the defect. The court allowed the appeal, set aside the orders of the primary judge, and ordered that the respondent consider the appellant’s application to reopen his claim in accordance with the court's reasons.

Orders

Orders of the court

(1) Appeal allowed.

(2) Orders of primary judge set aside.

(3) Order that the respondent consider the appellant’s application to reopen his claim under Rule 17 in accordance with these reasons.

(4) Respondent to provide within seven days any submissions to the effect that the ordinary result as to costs should not follow either at first instance or on appeal, and the appellant to provide submissions in response within a further seven days.

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.

CITATION:	Gilberg v Maritime Super Pty Ltd [2009] NSWCA 325
HEARING DATE(S):	31 August 2009
JUDGMENT DATE:	8 October 2009
JUDGMENT OF:	Allsop P at 1; Hodgson JA at 2; Campbell JA at 40
DECISION:	(1) Appeal allowed. (2) Orders of primary judge set aside. (3) Order that the respondent consider the appellant’s application to reopen his claim under Rule 17 in accordance with these reasons. (4) Respondent to provide within seven days any submissions to the effect that the ordinary result as to costs should not follow either at first instance or on appeal, and the appellant to provide submissions in response within a further seven days.
CATCHWORDS:	TRUSTS AND TRUSTEES – Superannuation trust – Entitlement to benefit – Rules requiring supporting reports from medical practitioners – Non-satisfaction of requirement and rejection of claim – Whether trustee has power to consider a further claim by the same member – What is the duty of the trustee when a further claim is made – Whether that duty was breached – Whether relief should be granted.
LEGISLATION CITED:	Superannuation (Resolution of Complaints) Act 1993 (Cth) s 14 Superannuation Industry (Supervision) Act 1995 (Cth) s 52
CATEGORY:	Principal judgment
CASES CITED:	Stevedoring Employees Retirement Fund Pty Ltd v Gilberg [2006] FCA 1590
PARTIES:	John GILBERG (Appellant) MARITIME SUPER PTY LIMITED (Respondent)
FILE NUMBER(S):	CA 40041/09
COUNSEL:	B W RAYMENT QC/ M J GOLLAN (Appellant) V M HEATH (Respondent)
SOLICITORS:	Firths – The Compensation Lawyers (Appellant) Mallesons Stephen Jaques (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 50121/08
LOWER COURT JUDICIAL OFFICER:	McDougall J
LOWER COURT DATE OF DECISION:	25 November 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	John Gilberg v Stevedoring Employees Retirement Fund Pty Ltd [2008] NSWSC 1318