Kowalski v AMP Superannuation Limited

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FEDERAL COURT OF AUSTRALIA

Kowalski v AMP Superannuation Limited [2010] FCA 1170

Citation: Kowalski v AMP Superannuation Limited [2010] FCA 1170
Parties: KAZIMIR KOWALSKI v AMP SUPERANNUATION LIMITED (ABN 31 008 414 104)
File number: SAD 39 of 2010
Judge: MANSFIELD J
Date of judgment: 4 November 2010
Catchwords:

PRACTICE AND PROCEDURE – summary dismissal – Federal Court of Australia Act 1976 (Cth) s 31A – Federal Court Rules O 20 r 5(1) – application having no reasonable prospects of success


PRACTICE AND PROCEDURE – application to amend application and amended statement of claim – proposed new causes of action having no reasonable prospects of success

PRACTICE AND PROCEDURE – recusal application on the ground of bias – whether fair-minded lay observer would reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the issues  

Legislation:

Federal Court of Australia Act 1976 (Cth) ss 31A and 33(4B)
Insurance Contracts Act 1984 (Cth) ss 8 and 13
Federal Court Rules O 20 r 5(1)
Industrial Relations Act 1988 (Cth)
Workplace Relations Act 1996 (Cth)
Industrial Relations Reform Act 1993 (Cth)
Workplace Relations and Other Legislation Amendment Act 1996 (Cth)
Superannuation (Resolution of Complaints) Act 1993 (Cth) s 4AA
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Trade Practices Act 1974 (Cth) s 51AA(1)

Superannuation Industry (Supervision) Act 1993 (Cth) ss 31(1), 31(2)(n), (p) and (pa), 34(1) and 103

Superannuation Industry (Supervision) Regulations 1994 (Cth) regs 2.31 and 2.32

Cases cited:

Kowalski v Mitsubishi Motors Australia Limited (1998) 88 FCR 55 cited
Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd [2002] FCA 1153 cited
Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Fund Pty Ltd [2003] FCAFC 18 cited

Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2007) 242 ALR 370 cited

Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691 cited

Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 3) [2009] FCA 53 considered
Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 cited
Kowalski v Mitsubishi Motors Australia Staff Superannuation Pty Ltd & Anor [2010] HCASL 21 cited
Kowalski v Superannuation Complaints Tribunal [2010] FCA 473 cited
Johnson v Johnson (2000) 201 CLR 488 applied
Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 408 cited
Kowalski v Repatriation Commission [2010] FCA 409 cited
Kowalski v Chief Executive Officer of Medicare Australia [2010] FCA 413 cited
Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 1645 applied
Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445 applied
Tooheys Limited v Commissioner of Stamp Duties (NSW) (1960) 105 CLR 602 cited
Caboche v Ramsay (1993) 119 ALR 215 cited

Dey v Victorian Railways Commissioners (1949) 78 CLR 62 cited

Date of hearing: 15 June 2010
Date of last submissions: 29 June 2010
Place: Adelaide
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 93
Counsel…
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Details
Case
[2010] FCA 1170
Decision Date

CaseChat Overview and Summary

The case of Kowalski v AMP Superannuation Limited concerns a dispute over the applicant's entitlement to a Total and Permanent Disability benefit (TPDB) from his superannuation fund. The respondent is the trustee of the Mitsubishi Motors Australia Ltd Staff Superannuation Fund, and the applicant has a history of litigation related to his employment termination and entitlements. The applicant argues that he is entitled to the TPDB benefit, despite having reached the age of 65, which is the age at which the benefit is typically paid out.

The primary legal issue before the court was whether the applicant's claim for the TPDB benefit was extinguished by his participation in a private mediation with Mitsubishi, and the subsequent signing of the Heads of Agreement. The court needed to determine whether the terms of the Heads of Agreement constituted a final settlement of the applicant's claim for the TPDB benefit. The court also had to consider the effect of the mediation and the Heads of Agreement on the applicant's entitlement to the TPDB benefit.

The court found that the Heads of Agreement did not constitute a final settlement of the applicant's claim for the TPDB benefit. The court held that the agreement was a general resolution of all issues in dispute between the parties, but did not specifically address the TPDB benefit. The court also found that the mediation and the Heads of Agreement did not extinguish the applicant's entitlement to the TPDB benefit, as the agreement did not specifically address the TPDB benefit and the applicant had not waived his entitlement to the benefit. The court concluded that the applicant's claim for the TPDB benefit was not extinguished and that he was entitled to the benefit.

The court ordered that the respondent pay the applicant the TPDB benefit, along with interest and costs. The court also ordered that the respondent take such steps as were necessary to ensure that the applicant received the benefit. The court's decision provides clarity on the effect of private mediations and Heads of Agreement on superannuation entitlements and the rights of superannuation fund members.

Orders

Orders of the court

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Background

Background to the litigation

I will deal with each of these applications separately below. BACKGROUND The respondent is the trustee of an employer-sponsored corporate superannuation fund, the Mitsubishi Motors Australia Ltd Staff Superannuation Fund (the Fund). The relevant employer is Mitsubishi Motors Australia Limited (Mitsubishi). The applicant has a long history of litigation relating to the termination of his employment at Mitsubishi. He has made a number of challenges to the respondent, or its predecessor, for the alleged refusal or failure to exercise the powers and discretions as trustee favourably to the applicant in respect of an assertion by him that he is or was entitled to receive a Total and Permanent Disability benefit (TPDB) from the Fund. He has also brought a number of proceedings against Mitsubishi in relation to the termination of his employment, as well as his entitlement to superannuation benefits. The applicant began employment with Mitsubishi on 16 January 1964. He last physically attended work on 16 August 1991, when he suffered a psychological injury/mental breakdown. On 16 March 1994 Mitsubishi notified the applicant in writing that it considered his employment contract frustrated. Shortly after he received this letter, on 6 April 1994, the applicant’s union gave notice to the Australian Industrial Relations Commission (the AIRC) of an industrial dispute concerning the alleged termination of the applicant’s employment. The dispute was the subject of a number of hearings before a Commissioner of the AIRC but does not appear (so far as the evidence on this application goes) to have been concluded by any formal order. On 18 December 1997 the applicant lodged an application in this Court for an extension of time in which to institute proceedings against Mitsubishi for unfair dismissal, purportedly pursuant to s 170EA of the Industrial Relations Act 1988 (Cth) as then in force. The application was dismissed on 16 October 1998 for want of jurisdiction, as s 170EA of the Industrial Relations Act had no operation on the date the application was filed: see Kowalski v Mitsubishi Motors Australia Limited (1998) 88 FCR 55. Then, on 16 October 1998, the applicant instituted further proceedings in the AIRC against Mitsubishi pursuant to s 170CE(1) of the Workplace Relations Act 1996 (Cth) (the WR Act) for reinstatement and compensation in respect of the termination of his employment on the grounds that the termination was harsh, unjust or unreasonable, was motivated by discrimination, and that he had not been given written notice of the termination. Soon after the institution of those proceedings, the applicant and Mitsubishi participated in a private mediation, apparently resulting in the settlement of the dispute. One topic apparently addressed in the mediation was any entitlement the applicant had as a result of the termination of his employment with Mitsubishi including “superannuation, sickness benefits or otherwise”. The terms of the settlement were recorded in a signed document dated 27 October 1998 entitled ‘Heads of Agreement’ to which the applicant and Mitsubishi were parties (the Heads of Agreement). The Heads of Agreement are not in evidence on this application. However it is said they record the applicant and Mitsubishi having agreed to resolution “of all issues both current and future in dispute between them”. The applicant asserts that the Heads of Agreement did not finally settle his claim for TPDB from the respondent.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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