Manglicmot v Commonwealth Bank Officers Superannuation Corporation - [2010] NSWSC 363

No judgment structure available for this case.

Reported Decision:
16 ANZ Insurance Cases 90-143
[2010] ALMD 6441
[2010] ALMD 6756
239 FLR 159

New South Wales

Supreme Court

CITATION: Manglicmot v Commonwealth Bank Officers Superannuation Corporation [2010] NSWSC 363

HEARING DATE(S): 24-26 March 2010

JUDGMENT DATE :
28 April 2010

JURISDICTION: Equity Division

JUDGMENT OF: Rein J

DECISION: 1. Judgment for the defendant.
2. Plaintiff to pay the costs of the defendant.

CATCHWORDS: EQUITY - trusts and trustees - powers, duties, rights and liabilities of trustees - general matters - rules governing exercise of discretion - where trustee entered into new insurance policy - where trustee gave reasons for decision - whether Court can review trustee's decision - whether trustee breached any duty owed to the insured under the general law - whether Superannuation Industry (Supervision) Act 1993 (Cth) alters the general law and whether breach by trustee - INSURANCE - accident, sickness and income protection insurance - total and permanent disablement or total incapacity - discussion of matters going to the question of whether there was any difference in wording between the total and permanent disablement clause in the previous insurance policy and in the new policy - causation: whether the insured suffered any loss due to any difference in wording

LEGISLATION CITED: Superannuation Industry (Supervision) Act 1993 (Cth)

CATEGORY: Principal judgment

CASES CITED: Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139
Asea Brown Boveri Superannuation Fund No 1 Pty Ltd v Asea Brown Boveri Pty Ltd [1999] 1 VR 144
Attorney-General for the Commonwealth v Breckler (1999) 197 CLR 87
Austin v Austin (1906) 3 CLR 516
Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173
Beverley v Tyndall Life Insurance Co Ltd (1999) WAR 327
Camilleri v Australian Casualty & Life [2006] NSWDC 77
Chammas v Harwood Nominees Pty Ltd [No 1] (1993) ANZ Insurance Cases 61-175
Clerical Administrative and Related Employees Superannuation Pty Ltd v Bishop (1997) 76 IR 139
Cowan v Scargill [1984] 2 All ER 750
Dundee General Hospitals Board of Management v Walker [1952] 1 All ER 896
Edge v Pensioners Ombudsman [1999] 4 All ER 546
Elder’s Trustee and Executor Company Limited v Higgins (1962) 113 CLR 426
Esso Australia Ltd v Australian Petroleum Agents’ & Distributors’ Association [1999] 3 VR 642
Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913
Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405
Hay v Total Risk Management Pty Ltd [2004] NSWSC 94
In re Beloved Wilkes’s Charity (1851) 3 Mac & G 440, 42 ER 330
In re Chapman [1896] 2 Ch 763
In re Coleman’s Depositories Limited and Life and Health Assurance Association [1907] 2 KB 798
Invensys Australia Superannuation Fund Pty Ltd v Austrac Investments Ltd (2006) 15 VR 87
Karger v Paul [1984] VR 161
Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691
Lawrence v The Accidental Insurance Company (Limited) (1881) 7 QBD 216
Meat Industry Employees Superannuation Fund v Petrucelli (unreported, Supreme Court of Victoria, Nathan J, 29 February 1992)
Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55
Rapa v Patience (unreported, Supreme Court of New South Wales, 4 April 1985)
Re Application of HIH Superannuation Ltd [2003] NSWSC 65
Re Knollys’ Trusts [1912] 2 Ch 357
Rydge v Hartigan Nominees Pty Ltd (unreported, Supreme Court of New South Wales, Young J, 12 September 1990)
Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945
Speight v Gaunt (1883) 9 App Cas 1
Szuster v Hest Aust. Ltd [2000] SADC 2
Telstra Super Pty Ltd v Finch [2009] VSCA 318
Telstra Super Pty Ltd v Flegeltaub (2000) 2 VR 276
The King v The Archbishop of Canterbury (1812) 15 East 117, 104 ER 789
White v Board of Trustees [1997] 2 Qd R 659
Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd (1998) 79 FCR 469
Wyllie v National Mutual Life Association of Australasia Ltd (1997) 217 ALR 324

TEXTS CITED: J C Campbell, ‘Exercise by Superannuation Trustees of Discretionary Powers’ (2009) 83 ALJ 159
J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia (7th ed, 2006), LexisNexis Butterworths, Sydney
E J MacGillivray et al, MacGillivray on Insurance Law (9th ed, 1997), Sweet & Maxwell, London
D Maclean, ‘Beneficiary’s Right to See Confidential Trust Documents’ (1993) 67 ALJ 703

PARTIES: Roy Manglicmot (plaintiff)
Commonwealth Bank Officers Superannuation Corporation (defendant)

FILE NUMBER(S): SC 2008/282210

COUNSEL: B W Rayment QC, G B Beauchamp (plaintiff)
A G Bell SC, J A English (defendant)

SOLICITORS: Firths The Compensation Lawyers (plaintiff)
Henry Davis York (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Rein J

Date of Hearing: 24-26 March 2010
Date of Judgment: 28 April 2010

2008/282210 Roy Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Limited

JUDGMENT

REIN J:

Background

1 In these proceedings, the plaintiff sues the defendant as trustee of a superannuation fund known as the Officers’ Superannuation Fund (“the Fund”) established for the benefit of employees of the Commonwealth Bank of Australia Limited (“the Bank”). The plaintiff was employed as a bank teller by the Bank from 1998 to 2003, and there is no dispute that he was a member of the Fund. The plaintiff claims that the trustee breached duties owed to him as a member of the Fund and that as a result, he has suffered loss and damage. Mr B W Rayment QC appears with Mr G B Beauchamp of counsel for the plaintiff. Mr A G Bell SC appears with Ms J A English of counsel for the defendant.

2 The breach alleged is that the trustee entered into a policy of insurance (“the CommInsure policy”) with CommInsure Pty Limited (“CommInsure”) which, on the plaintiff’s case, contained terms that were not customary or appropriate, significantly reduced the scope of cover and were onerous to members because of the incorporation of the words “part time” in the definition of Total and Permanent Disablement (“TPD”). It was initially claimed that the use of the words “with or without reward” was also an unfair restriction. The loss claimed is that, because of the changed and more restrictive cover, the plaintiff is not able to recover the benefit (of approximately $120,000) which he would have been entitled to recover had the previous policy (“the Hannover policy”) with NRG Victory Australia Limited, which was taken over by Hannover Life Re of Australasia Ltd (“Hannover”), been in place. That entitlement to recover is based on the plaintiff having suffered, on his case, an injury at work in January 2000, a motor accident injury in July 2000 and a further injury at work on 5 October 2000, which have rendered him unfit for full time work.

3 Following his arrival in Australia from the Philippines, the plaintiff had worked as a bank teller with another bank, prior to commencing full time work for the Bank. He had had worked as a branch examiner, a loans officer and an administration clerk. After being injured, he returned to work at the Bank after various absences, the longest of which was two and a half months. His evidence, which was unchallenged, was that he had suffered pain and disability rendering him unable to work for any more than 15 hours a week as a teller or in some other banking work, such as mortgage discharge officer or other similar clerical work. His evidence was that sometimes he had difficulty even working 15 hours a week. In July 2003, he was advised by the Bank that his employment at the Castle Hill branch of the Bank would cease, and he was invited to apply for redeployment. Before the end of the redeployment period, he was offered redundancy, which he accepted on 25 August 2003.

4 The plaintiff made a claim on the trustee for total and permanent disablement, and the matter was referred to CommInsure. There was extensive correspondence, but CommInsure declined to meet the plaintiff’s claim. A letter from CommInsure explaining its reasons for declinature of the claim is the focus of pages 642-648 of Exhibit A2. I note that the plaintiff accepts that he cannot recover under the CommInsure policy, but he does not accept that he is not able to do so for the reasons given by CommInsure, namely that:

Therefore, on the balance of probabilities, it would be fair and reasonable to state that on the weight of medical evidence, Mr Manglicmot has not satisfied the definition of Total and Permanent Disablement as contained in the contract between CommInsure and the Commonwealth Bank Officers Superannuation Fund. We are therefore declining the claim” (at page 648).

5 Aside from the plaintiff’s capacity for work, there is little in dispute about the factual background of this matter. In relation to capacity, the plaintiff’s case is that he was only fit for part time work and that the incapacity was evident from the date of his redundancy to a date six months later. The trustee does not assert that the plaintiff was fit for full time work, but it notes that the plaintiff did apply genuinely for work, which may have been on a full time basis, after he accepted redundancy from the Bank: see paragraph 40 and pages 37 to 50 of the plaintiff’s statement, which is Annexure A to the plaintiff’s affidavit dated 19 June 2009; and see also T45-T47.

6 The trustee asserts that the plaintiff was working on a part time basis at the time he accepted redundancy, that he does not meet the requirements of the CommInsure Total and Permanent Disablement clause and that he would not have met the requirements of the Hannover Total and Permanent Disablement clause.

7 The Trust Deed (pages B1-B320 of Exhibit A1) contains the following clauses:

(1) the terms and condition of the relevant policy or policies of insurance will apply in determining whether and to what extent the Supplementary Benefit is payable; …” (at page B307).

8 The Hannover policy, which was in place until 30 June 2003, contained the following clause (at page 170 of Exhibit A1) (relevantly):

which I shall refer to as “the Hannover TPD clause”.

9 Prior to the end of the 2003 financial year, Hannover wrote to the defendant indicating that it would not be prepared to renew the policy unless there was a 130 per cent increase in premium with the continuation of the current policy or a 100 per cent increase in premium if the contract were altered to a non-participating arrangement under which no premium rebate would be payable in years of good experience. Further, Hannover indicated that it would not be willing to guarantee premiums for the future. It made reference to the very extensive claims lodged on the Fund in comparison to the premiums paid: see pages A1-2 of Exhibit A1.

10 The CommInsure policy contained the following definition of Total and Permanent Disablement (“the CommInsure TPD clause”) (at pages 242-243 of Exhibit A1):

“A member is totally and permanently disabled if, as a result of sickness or injury, he or she ...

(b) has been absent from all employment for 6 consecutive months from the date of disablement and we consider, on the basis of medical and other evidence satisfactory to us, the member will not ever be able to resume any occupation, whether or not for reward ,

where: …

· date of disablement means the later of:

...

The date of disablement must occur while the member is covered under this policy.

· Occupation means an occupation that the person can perform, on a full time or part time basis, based on the skills and knowledge the person has acquired through previous education, training or experience.”

(emphasis added)

11 The Fund had some 15,000 members, increasing to 18,000 members in the relevant period.

12 There is evidence of the steps taken by the trustee to deal with the prospect of a 100 per cent rise in premium (the premium paid by the trustee for the year ending 30 June 2003 was in the order of six million dollars). The Bank was in the process of merging with Colonial Limited (“Colonial”), and the superannuation fund operated by Colonial was to be amalgamated with the Fund operated by the trustee. The Colonial fund was insured with CommInsure, at that time owned by Colonial but also to be brought into the Commonwealth Banking Group. Enquiries were made by the trustee, and CommInsure was invited to quote on the Fund’s business.

13 CommInsure was prepared to offer insurance to replace the Hannover cover at an increase of 80 per cent on the existing premium and to guarantee level premiums for of three years. The agreement reached is recorded in a letter of offer of 25 June 2003 signed by both the trustee and CommInsure: see pages 460-461 of Exhibit A2. The terms of the agreement were:

14 There is no dispute that CommInsure went on risk on 1 July 2003, but there was a period from at least July to December 2003 in which the trustee sought changes to the policy on the basis of CommInsure’s promise to “match or better the current terms and condition in the Hannover contract”: see page 460 of Exhibit A2.

15 The trustee did, by its officers, conduct a review of the differences between the CommInsure and Hannover terms, and in November 2003, the trustee requested its solicitors, Freehills, to conduct a review of the CommInsure policy compared to the Hannover policy and to advise on whether there was any gap. The review was provided in early December 2003: see pages 581-626 of Exhibit A2.

16 A copy of the CommInsure policy as finalised is found at pages 226-249 of Exhibit A2.

17 The trustee’s response to the plaintiff’s claim is that:

18 The plaintiff’s riposte to these arguments is that:

19 The parties could not agree on a Statement of Issues. I propose to use what I have set out in [17] and [18] above as the framework for my decision.

20 The trustee accepts that:

“The starting point is the duty of trustees to exercise their powers in the best interests of the present and future beneficiaries of the trust, holding the scales impartially between the different classes of beneficiaries. This duty of the trustees towards their beneficiaries is paramount. They must, of course, obey the law; but subject to that, they must put the interests of their beneficiaries first. When the purpose of the trust is to provide financial benefits for the beneficiaries, as is usually the case, the best interest of the beneficiaries are normally their best financial interests.”

supra

21 A helpful summary of the principles concerning the grounds on which the exercise of a trustee’s power can be challenged is found in a passage from the decision of Northrop J in Clerical Administrative and Related Employees Superannuation Pty Ltd v Bishop (1997) 76 IR 139, which was cited on appeal by Heerey J (Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd (1998) 79 FCR 469 at 480) and referred to by the High Court in Attorney-General for the Commonwealth v Breckler (1999) 197 CLR 87 at 99-100 ([7]) per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ:

“Where a trustee exercises a discretion, it may be impugned on a number of different bases such as that it was exercised in bad faith, arbitrarily, capriciously, wantonly, irresponsibly, mischievously or irrelevantly to any sensible expectation of the settlor, or without giving a real or genuine consideration to the exercise of the discretion. The exercise of a discretion by trustees cannot of course be impugned upon the basis that their discretion was unfair or unreasonable or unwise. Where a discretion is expressed to be absolute it may be that bad faith needs to be shown. The soundness of the exercise of a discretion can be examined where reasons have been given, but the test is not fairness or reasonableness” .

See also the judgment of Kirby J, who regarded the summary as an accurate one, at 115 ([58]).

22 The trustee points out that in cases dealing specifically with trustees of superannuation funds, no different approach has been taken: see Re Application of HIH Superannuation Ltd [2003] NSWSC 65; Breckler at 109-110 ([41]); Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691 at [21]-[25]; Telstra Super Pty Ltd v Finch [2009] VSCA 318 at [65]; and J C Campbell, ‘Exercise by Superannuation Trustees of Discretionary Powers’ (2009) 83 ALJ 159.

23 Clause A4.1 of the Trust Deed contains the following:

(6) insurance: generally insure or re-insure any risks, contingencies or liabilities of the Trustee in relation to the Fund and, without limiting the preceding words, enter into any contracts with any insurance or re-insurance company or make arrangements with the trustees or administrators of any superannuation or like scheme to provide for all or any part of the benefits that become or may become payable under this Deed and pay from the Fund all payments to be made under those contracts or arrangements”.

24 The plaintiff did not dispute that the trustee was empowered to enter into the policy offered by CommInsure. The trustee relies on the fact that the power conferred on it was one it could exercise in its absolute and uncontrolled discretion, and it was not bound to give to any person “any reason for or explanation of the exercise, non-exercise or partial exercise of a Power”.

25 However, the trustee also asserts that it has given reasons for its entry into the CommInsure policy, pointing to the various documents within Exhibit A1 and Exhibit A2. Mr Rayment did not challenge the claim that the trustee had given reasons, although he did point out that the trustee had not called any officer or agent of the trustee to explain how it approached the decision to switch to CommInsure.

26 Accepting that where no reasons are given, the test is whether there has been a failure of the trustee to act “with an absence of indirect motive, with honesty of intention, and with a fair consideration of the issues”, a phrase used in Jacobs at [1610] and one based upon Truro LC’s words in In re Beloved Wilkes’s Charity (1851) 3 Mac & G 440 at 448, 42 ER 330 at 333, cited with approval by Sheller JA in Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 at 441-442, the question is whether, when reasons are given by the trustee, a different test is to be used. Jacobs states at [1610] that if reasons are given “the court may consider the validity of such reasons and, if it feels that the reasons do not justify the decisions, may correct the decisions accordingly”. Wilkes’s and Hartigan are cited in support of this proposition.

27 In Karger v Paul [1984] VR 161, McGarvie J said at 165-166:

“It is an established general principle that unless trustees choose to give reasons for the exercise of a discretion , their exercise of the discretion can not be examined or reviewed by a court so long as they act in good faith and without an ulterior purpose: Re Beloved Wilkes’ Charity [1851] 3 Mac and G 440; 42 ER 330; Duke of Portland v Topham (1864) 11 HLC 31; 11 ER 1242. For reasons given above, I would add the further requirement, so obvious that it is often not mentioned, that they act upon real and genuine consideration. In the context, it was in that sense that Lord Truro LC used the expression “with a fair consideration” in Re Beloved Wilkes’ Charity, at (42 ER) p. 333. In the case of an absolute and unrestricted discretion such as the discretion in the present case, the general principle is given unqualified operation: Gisborne v Gisborne (1877) 2 App Cas 300, at p. 305, per Lord Cairns LC; Tabor v Brooks (1878) 10 Ch D 273; Craig v National Trustees Executors and Agency Company of Australia Ltd. [1920] VLR 569. The operation of the principle is discussed in Jacobs’ Law of Trusts in Australia, 4th ed., pp. 300-2.”

28 In addition to the obiter dictum in Karger, I have had regard, in this connection, to The King v The Archbishop of Canterbury (1812) 15 East 117, 104 ER 789; Wilkes’s; Re Knollys’ Trusts [1912] 2 Ch 357; Dundee General Hospitals Board of Management v Walker [1952] 1 All ER 896; Rydge v Hartigan Nominees Pty Ltd (unreported, Supreme Court of New South Wales, Young J, 12 September 1990), and on appeal supra; Meat Industry Employees Superannuation Fund v Petrucelli (unreported, Supreme Court of Victoria, Nathan J, 29 February 1992, BC9200730); Asea Brown Boveri Superannuation Fund No 1 Pty Ltd v Asea Brown Boveri Pty Ltd [1999] 1 VR 144; the passage from Wilkinson cited in Breckler and set out at [21] above; and a note of Mr David Maclean, ‘Beneficiary’s Right to See Confidential Trust Documents’ (1993) 67 ALJ 703, to which reference is also made in Jacobs. In Wilkes’s, Truro LC said at 448:

The King v The Archbishop of Canterbury

29 I note that the learned authors of Jacobs, after setting out the general test, said at [1610]:

“The duty of the court generally is to see that the discretion of the trustees has been exercised in this manner and not to deal with the accuracy of the conclusion at which the trustees may have arrived.”

with Wilkes’s and Hartigan in the Court of Appeal cited in support.

30 In Dundee, it was argued that when reasons are given, the Court can more readily examine and correct the trustee’s decision. Lord Normand said at 900:

Re Wilkes’s (Beloved) Charity

Lord Cohen expressed some support for the view that if the reasons given by the trustee, even on a matter for the trustee’s absolute discretion, demonstrate an approach that no reasonable person could have taken to the matter at hand, this is sufficient to demonstrate that the discretion has miscarried, but Lord Tucker did not, saying that in his view, nothing short of dishonesty on the part of the trustees in arriving at their decision would suffice (at 907). Lord Morton, whilst willing to adopt the appellant’s test for the purposes of the case, did not accept that it was an appropriate test. Lord Reid, whilst prepared to proceed on that basis, indicated that he wished to reserve his opinion on the point.

31 Even in Wilkes’s, where trustees had to determine who should be selected to be trained for the Church ministry, Truro LC, after having set out the passage referred to by Lord Normand, did consider whether there was anything in the trustees’ affidavits which laid the foundation “for any judicial conclusion that the trustees intentionally and from bad motives failed in their duty” (at 449), and his Lordship later referred to the fact that it had not been established that the trustees had adopted an exclusionary rule for which there was no warrant, which rather suggests that the Lord Chancellor was not intending to lay down a principle that the Court could, absent some established breach of the requirements, consider whether the trustees’ decision itself was erroneous or wrong. Ellenborough CJ’s approach in The Archbishop of Canterbury does not provide support for any wide power of review of the decision of the person exercising the discretion. In that case, a bishop, pursuant to a statutory provision, had to decide whether a candidate was suitable for appointment as a lecturer at a parish church, and the bishop had been ordered to provide an affidavit giving his reasons. His Lordship commented at page 141 of East’s:

“It only requires him first to approve, that is, before he licences; and in so doing, it virtually requires him to exercise his conscience duly informed upon the subject; to do which he must duly, impartially, and effectually inquire, examine, deliberate and decide. If the Court have reason to think that any thing is defectively done in this respect, it will interpose its authoritative admonition. The mandamus to license, if the party shall be found to be a fit person, is a solemn and peremptory call upon the bishop to adopt the requisite means for duly informing his conscience, in order to the correct and effectual exercise of this most important duty.”

and at page 146:

“what scales have we to weigh the conscience of the bishop?”; see also page 153 of East’s, where his Lordship said:

“Now if we were trying the validity and correctness of the bishop’s conclusions, and going into all the facts of the case (which I disclaim our authority for doing) there was before the bishop the evidence of a person who gives his information at an unsuspicious period, when there was no question depending and no interest to be served or prejudiced by it.”

32 In Esso Australia Ltd v Australian Petroleum Agents’ & Distributors’ Association [1999] 3 VR 642 at 652-653, Hayne J said that the Court “will not sit on general appeal from the decisions of the trustee”.

33 In Petrucelli, Nathan J, in setting out his views of the limits of review by the Court when reasons are advanced and after noting that the exercise of discretion means no more than arriving fairly at a conclusion from a number of options or alternatives, said at page 8 of BC9200730 that the Court’s function was to consider:

“(1) Whether the reasons relate to or are relevant to the discretion to be exercised. (2) Whether the reasons were arrived at in good faith and without an ulterior purpose (see Karger and Beloved Wilkes Charity (1851) 3 Mac and Eg 440; 42 ER 330). (3) Whether the reasons reasonably support the conclusion. (4) It is open to the court to look at evidence of the enquiries made by the trustees, the information they had and the manner of the exercise of their discretion, but only [so] far as to assess the viability of the exercise, not to impugn or replace it. (5) It is not open to the Court to examine the reasons for the purposes of exercising its own discretion. It is not open to the Court to examine the factual situation for the purposes of substituting its own discretion for that of the trustee because the Court might consider the trustee unwise or imprudent (see also Dundee Hospital v Walker (1952) 1 All ER 896). (6) It follows as a compelling matter of logic that the reviewable discretion is that which was exercised by the trustees at the time.”

34 Having regard to the authorities, and particularly what was said in Dundee, Rydge at first instance and Petrucelli, I proceed on the basis that where reasons are given, the Court can have regard to those reasons in forming a view as to whether the trustee has:

35 I am, with respect, attracted to the view expressed by Lord Normand that the principles on which the Court must proceed are the same whether reasons are given or not. When reasons are provided, the determination of whether breach has occurred may well be made easier, but this does not alter the test. I think this conclusion is consistent with the last sentence of the passage from Wilkinson cited in Breckler and set out at [21] above. From a practical point of view, I think it would be undesirable that trustees be discouraged from giving reasons for a decision, when asked, for fear that the provision of reasons would lead to a more expansive power of review than if they gave no reasons.

36 I did not understand the plaintiff to argue that the trustee’s decision to enter into the CommInsure policy was one which no trustee acting reasonably could have arrived at, so I do not need to consider whether such a formulation (which in similar terms, as I detail below, has found its way into the area of the formation of an opinion by trustees) is one which should be applied to the exercise of a discretion of the kind in question. That may be what was intended by item (4) in Nathan J’s statement in Petrucelli, because his Honour expressly rejected the possibility of the Court substituting its own discretion for that of the trustee, even where the Court considers the trustee unwise or imprudent, citing Dundee in support. I am of the view that where the reasons given by a trustee are of a kind which no trustee acting reasonably could arrive at or could rely on to justify the exercise of a discretion in the manner adopted, this would permit the inference to be drawn by the Court that the trustee had acted in one or more of the ways identified in (1)-(4) in [34] above, but once again no test of reasonableness per se is imported into the Court’s task.

37 There have been a number of cases dealing with the obligation of a trustee to form an opinion about whether an employee is disabled for the purpose of receiving a benefit. In Rapa v Patience (unreported, Supreme Court of New South Wales, 4 April 1985, BC8500888), McClelland J said at page 11 of BC8500888, in a passage which has often been cited and which was based on Karger, that there are three grounds (and in some circumstances a fourth ground) on which the performance by trustees of functions such as those involved here may be successfully challenged, and these grounds are the same as those applicable generally to the exercise by trustees of discretionary powers:

Scott on Trusts

38 In Telstra Super Pty Ltd v Flegeltaub (2000) 2 VR 276 at 284, Callaway JA expressed the view that if the decision were one which no reasonable trustee could make on the material before it, this would establish a breach. This approach was adopted by Bryson J in Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 at [62]; and see Hay v Total Risk Management Pty Ltd [2004] NSWSC 94, where these cases were reviewed and Burchett AJ said at [56]:

“the trustee’s decision, applying the test that has so far been accepted by the courts, will only be overturned if it is such as no reasonable trustee could have arrived at upon the material considered. However, a reasonable trustee would hold to a high standard in the consideration of such a matter, which involves important rights of a contractual nature.”

39 Mr Rayment described Hay, Sayseng and Telstra Super as raising questions about whether, in the context of superannuation schemes, the test for review of trustees’ decisions ought to be wider than has hitherto been adopted by the courts. The present case is not one concerned with a decision of a trustee not to form a view favourable to an employee. The decision to refuse payment under the TPD clause was made by the insurer, and it is not suggested that the insurer wrongly rejected the claim or that the trustee failed to take action against the insurer for rejecting the claim. In this case, what is attacked is the trustee’s decision to enter into the CommInsure policy.

40 In my view, there is nothing to indicate that the trustee’s decision was not exercised in good faith, or that it was not exercised upon a fair or real and genuine consideration, or that it was not exercised for the purposes for which the power was conferred. I did not understand the plaintiff to contend otherwise. The material put before the Court by the trustee does not show that the trustee did not exercise the power in an appropriate way, or that there was an indirect motive, or that there was an absence of honesty of intention, or that there was not a fair consideration of the subject. For completeness, I would add that nor does the material evidence the exercise of a discretion in a manner that no trustee acting reasonably could have adopted, or that the trustee reached a result that no trustee acting reasonably could have arrived at.

41 The trustee was bound not only to have regard to the benefits provided by any particular policy, but also to the premiums payable, which came out of the Fund. By entering into the CommInsure policy, the trustee not only obtained a 20 per cent (or better) reduction in the premium from that offered by Hannover, but it also obtained a freeze on premiums for three years. In addition, it obtained a commitment from CommInsure to match the terms of the Hannover policy. In my view, the only possible breach of duty by the trustee was a failure to discern that the TPD definition in the Hannover policy was more favourable to members than the CommInsure definition (a matter I discuss below), but even assuming that is correct, the trustee sought legal advice from a reputable firm of solicitors, and apparently no difference was discerned by that firm or drawn to the trustee’s attention.

42 I am not persuaded that the trustee has breached any duty owed to the plaintiff under the general law.

43 Although strictly not relevant, having regard to the conclusion expressed above, had there been discerned a difference in effect between the Hannover TPD clause and the CommInsure TPD clause, I think it is very likely that the matter would have been taken up by the trustee with CommInsure. Whether CommInsure would have agreed to make the change is another matter. As Mr Rayment pointed out, the terms of the TPD clause were known to the trustee prior to execution of the letter of agreement, so it is possible that CommInsure would not have been willing to amend it. On the other hand, the promise made by CommInsure was to match the Hannover cover, and if attention had been drawn to the fact or possibility that the CommInsure TPD clause was less favourable than the Hannover TPD clause, the trustee would have had a good argument that that change should be made. There is no evidence of CommInsure refusing to make any change requested of it. I find that, on the balance of probabilities, CommInsure would have made the change had the trustee sought it. If, contrary to that conclusion, CommInsure would not have agreed to make the change on the basis that the Hannover clause ought not be read as granting TPD benefits where an employee was able to work part time, it would then be necessary to consider whether the trustee would have abandoned the CommInsure policy and returned to the Hannover policy at a higher premium and without any guarantee of level premiums, or had the issue become known before 30 June 2003, not entered into the CommInsure policy, and I am not persuaded that it would have done so.

44 Section 52 of the SIS Act is in the following terms:

The covenants

Covenant referred to in paragraph (2)(e)

(9) The reference in subsection (8) to a reasonable degree of care and diligence is a reference to the degree of care and diligence that a reasonable person in the position of director of the trustee would exercise in the trustee’s circumstances.”

Section 55 of the SIS Act is in the following terms:

Section 323 of the SIS Act is in the following terms:

45 I make some general observations about s 52(2)(c). First, s 52(2) only applies to the extent that covenants set out in subsection (2) are not contained in the governing rules of the superannuation entity. Secondly, the legislation requires the governing rules to be taken as if they contained the covenants. There is a covenant in s 52(2)(e) that the trustee will not enter into any contract or do anything else that would prevent it from properly performing its functions, but this power is, by s 52(3), expressly stated to not prevent the trustee from engaging or authorising persons to do acts or things on its behalf.

46 Section 52 was considered by Byrne J in Invensys Australia Superannuation Fund Pty Ltd v Austrac Investments Ltd (2006) 15 VR 87. In that case, a superannuation fund holding a very substantial surplus of assets over accrued benefits decided that it would be appropriate to distribute a substantial part of the surplus. There was no power under the deed to do so, and the trustee therefore had to utilise a power to vary the trust deed to give itself such power by a new clause 36 and the insertion of a schedule which contained the scheme for reduction of the surplus. That scheme involved distribution of the relevant portion of the surplus to the employer, employees and former employees whose entitlement had not been finalised at a particular date. Byrne J was, in effect, asked to provide judicial advice as to: (a) whether the trustee was entitled to exercise its power to amend the trust deed to distribute the surplus; and then (b) whether it was entitled to exercise its powers to amend the trust deed to effect the particular distributions to which I have referred.

47 Byrne J had, prior to delivery of the judgment which is reported, given his views on the matter, but following delivery of his Honour’s earlier judgment, the Australian Prudential Regulation Authority (“APRA”), which had been involved in the proceedings in the early stages and received a copy of his Honour’s judgment, expressed concern about the manner in which his Honour had expressed himself. The matter was relisted before his Honour, but APRA took the position that provided its letter detailing its concerns was conveyed to the Court, it did not wish to be heard, an approach as to which Byrne J expressed concern: see [100]-[101], [118].

48 Byrne J said of s 52:

“ [102] The scheme of s 52 is to insert in the trust deed eight covenants. It was not suggested that the trust deed already contained a covenant such as that in para (c). The Parliamentary Secretary to the Treasurer informed the House of Representatives in the course of the second reading debate of the SIS Bill that these provisions were intended as codification of the existing law: “to make nice and clear the way in which we expect these people [presumably trustees of superannuation funds] to act”. The difficulty with this brave statement, in so far as it concerns para (c), is that it is not altogether clear what is here being codified and whether the drafter of the code has accurately stated the existing law.

[103] Unlike the surrounding paragraphs, para (c) is introduced by the words “to ensure that”. This means that the statute is inserting into the trust deed a covenant whereby “the Trustee agrees to ensure that the Trustee's duties and powers are performed and exercised in the best interests of the beneficiaries”. Elsewhere in the SIS Act, the word “ensure” is employed to impose an obligation upon a director to cause a company to act in a particular way or upon a person or company to achieve a stipulated objective. It is difficult to see how these words add anything to a covenant by a trustee simply to perform and exercise its duties and powers in the best interests of the beneficiaries.

[105] Perhaps the best that can be made of these apparently superfluous words “to ensure that” in para (c) is that Parliament intended that they emphasise the seriousness of this covenant and the requirement that it be strictly observed.

[106] It is worth noting at the outset that the insertion by s 52(2) of particular covenants into the trust deed does not affect the other obligations imposed upon trustees whether by the deed of trust or by the general principles of law except, perhaps, to the extent of some inconsistency.

[107] The covenant inserted into the trust deed appears to be an amalgam of two distinct obligations said to be imposed by law upon trustees of a superannuation fund. The first, which is sometimes referred to as the duty of loyalty or the duty of fidelity to the trust, is that to act in the interests of the beneficiaries; that their interests are paramount and must certainly be placed ahead of the trustee’s own interests. Nor may the trustee have regard to considerations which are extraneous to the trust. The second is to pursue to the utmost with appropriate diligence and prudence the interests of the beneficiaries. This will commonly come into play where it is a question whether the trustee of a trust whose objective is to confer financial benefits on beneficiaries has sufficiently pursued these financial interests…

49 I think it is clear that Byrne J did not see s 52(2)(c) as being different to the general law. His Honour dealt with the general law at [62]-[65], and at [117]-[120] his Honour set out his conclusions on the points raised by APRA (in reliance on s 52(2)(c)) and declined to answer the question of whether the trustee could amend the deed at all, as it was too wide: see [91] and [120].

50 I note that the learned authors of Jacobs express their view of s 52 as follows:

“Care, skill and diligence
[2921] The second covenant is ‘to exercise, in relation to all matters affecting the entity, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide’: s 52(2)(b). This standard corresponds with the test applied under the general law. It does not adopt the higher standard which the uniform legislation in the States and Territories has applied to professional trustees. However, there is no reason why that higher standard, if otherwise applicable, will not extend to superannuation trustee. The existence of an express covenant in a trust deed to attain a particular standard, or a covenant implied by s 52(1), does not of itself exclude a rule of the general law creating a higher standard. That conclusion is reinforced by s 350 of the SIS Act: ‘It is the intention of Parliament that this Act is not apply to the exclusion of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Act.’

(emphasis added)

51 One possible explanation for the words “to ensure that” in s 52(2)(c) is that since the trustees are empowered to delegate, the legislature wanted to make it clear that the trustees could not avoid responsibility for a failure by the delegate to exercise powers in the interests of members by saying that the task was delegated. I think that this explanation gives the words work to do without imposing on the trustee some kind of guarantee that whatever is done will in fact benefit the members, as the plaintiff contends. This is consistent with the general law that a trustee company discharges its duty if its officers are competent to perform properly the trust it undertakes, and it is responsible if they do not: Elder’s Trustee at 453 per Dixon CJ, McTiernan and Windeyer JJ. I do not accept that the trustee is made liable for any outcome which turns out to be unbeneficial to members, even if the original decision which led to that outcome was taken with the best interests of all members in mind. Another way of describing this approach is to say that s 52(2) is concerned with process, not outcome. Mr Rayment’s argument entailed, or came close to, a submission that the trustee was subjected to a regime of strict liability, and I do not accept that the legislative regime intended to create such a radical departure from the existing law. The wording does not suggest such an outcome, and the comments made by the Parliamentary Secretary referred to in Byrne J’s judgment provide no support for such an approach: see Invensys at [102].

52 Mr Rayment submitted that one matter encouraging an expansive view of s 52 of the SIS Act was the availability in s 323 of a defence. The defence is based on reasonable mistake, or reasonable reliance on information supplied by another person, default of another person, accident or cause beyond the defendant’s control, and reasonable precautions and due diligence to avoid the contravention. I do not accept that the existence of a defence is relevant to how s 52 is to be interpreted, or if it is, that it is of much significance. The onus is on the trustee to “establish” one or other of the grounds. I do not accept that the task of a plaintiff in establishing “contraventions” is thereby made easier.

53 In short then, I do not accept that s 52 imposes a higher standard on a trustee than the general law. The plaintiff has failed to establish a breach of the covenants derived from s 52(2). This conclusion leads to rejection of the plaintiff’s case, but I shall deal with the other issues.

The difference in wording

54 The critical difference between the wording of the Hannover TPD clause and the CommInsure TPD clause is in the words “unable ever to engage in or work for reward in any occupation or work” compared to “will not ever be able to resume any occupation … that the person can perform on a full time or part time basis” (inserting the definition of occupation).

55 The plaintiff argues that the ability to work part time is not a bar to recovery of a TPD benefit under the Hannover policy, but it is a bar under the CommInsure policy. This submission carries with it implicitly the contention that the plaintiff is a person who can work part time but cannot work full time.

56 A number of cases were cited in the course of argument on this point: Chammas, Beverley v Tyndall Life Insurance Co Ltd (1999) WAR 327; Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913; Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139; Szuster v Hest Aust. Ltd [2000] SADC 2; White v Board of Trustees [1997] 2 Qd R 659; and Wyllie v National Mutual Life Association of Australasia Ltd (1997) 217 ALR 324. I myself considered a question of this kind in Camilleri v Australian Casualty & Life [2006] NSWDC 77 (the case is reported, but not on this point).

57 In Chammas, Hodgson J (as his Honour then was) had to consider the meaning of a clause in a contract of insurance which was in the following terms:

“18.1 An employee shall be entitled to a lump sum as a death or disablement benefit upon his death or disablement in being incapacitated for further employment.”

58 Hodgson J held that the question posed in the claim form submitted on behalf of the member was the correct question, namely: has the member become incapacitated to such an extent as to render the member unlikely ever to engage in or work for reward in any occupation or work for which he was reasonably qualified by education, training or experience? The words in question were not a definition of “total and permanent disablement”, but rather “incapacitated for further employment”.

59 It seems that the insurer had applied this test in its consideration, and Hodgson J, in rejecting an argument of the member that the employment which had to be considered was employment with that employer, held that the insurer had applied the right test. Counsel for the insurer had argued that, if anything, the test applied had been more favourable to the member than required.

60 I mention this detail because it would appear that Hodgson J’s comments about full time work were obiter. His Honour said at 77,999:

“I do think that employment must be given a reasonable construction; and I think employment should be limited to full-time employment, and to employment which is reasonably open to the member. That is, I think, the employment must be employment which the member is capable of undertaking, having regard to his education, experience and training, or at least employment which he could become capable of undertaking with further training which it would be reasonable for him to undertake.”

61 His Honour went on to consider how the insurer had dealt with the medical evidence and concluded that it had not acted reasonably. The case has, on that issue, been cited on a number of occasions and followed most notably in Beverley.

62 In Szuster, on the construction point, Judge Herriman distinguished Chammas. In Camilleri, I followed Hodgson J’s approach on constructyion, although one factor which was present there was the existence of a reference, in a clause dealing with temporary disability, to part time work, which was absent in the total disability clause.

63 I do not think that Beverley can be seen as determinative of the issue of construction in question here (the wording being different and including a reference to “full time” in the context of domestic duties: see at 336 ([27]-[29])), nor does the decision refer to the view of construction expressed by Hodgson J in Chammas: see Beverley at 336-337 ([30]-[31]).

64 In Alcoa, R D Nicholson J, whilst referring “to the inconclusive nature of authority and the way in which such clauses have been seen to operate in their factual setting” (at 153), did not accept the insurer’s argument that the Superannuation Complaints Tribunal had erred in not regarding an ability to engage in part time work as inconsistent with total and permanent disablement, although he focused on the importance of the context of the factual circumstances of the worker: see at 152-153 ([66]-[67]).

65 Subsequently, in Halloran, Brereton J, considering the words “ever to engage in”, cited Chammas with approval and held that the words connoted full time work. I would add as a case relevant to this issue Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173, being a case which concerned a test of employment in “any remunerative occupation”; and also possibly, on a related point, Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55 at [64].

66 There are a number of reasons that undercut the argument that the words “unable ever to engage in or work for reward in any occupation or work…” must necessarily be construed as connoting full time work:

67 In my view, as at June 2003, whilst there was a prospect that the words “full time” would have been read into the TPD clause, it is not clear that they would have been. I think that even now it is arguable that the words “full time” should not be read into the clause generally or in its application to the plaintiff. I do not need to determine whether they ought to be, because of the conclusion I have reached on the other issues in this case.

Causation

68 There are two limbs to the issue of causation. The first is that the plaintiff has to establish that the words “full time” ought to be read into the Hannover TPD clause, and the second is that he otherwise would have been able to recover under the CommInsure policy had that policy incorporated the Hannover TPD wording (or, alternatively, the plaintiff must establish that if the Hannover policy had remained on foot, he would have recovered under that). Given that the plaintiff does not criticise the trustee for any reason other than the failure to maintain the Hannover TPD wording, and because he claims that the Hannover policy terms would have to be read down in other respects, the more appropriate test is to consider whether, apart from the inclusion of the words “part time” in the CommInsure TPD clause, the plaintiff has established that he would recover from CommInsure.

69 We know that CommInsure has declined to indemnify the plaintiff. That refusal is based on these matters:

70 I shall assume in favour of the plaintiff that he cannot work full time. This was conceded by the defendant: see paragraph 4 of the defendant’s submissions of 25 March 2010. I shall assume in favour of the plaintiff, for the purpose of considering this issue, that had the CommInsure policy adopted the Hannover wording, (2) above would not present an obstacle.

71 This then brings me to the following requirements of the CommInsure policy. Cover under that policy is expressed to end when the plaintiff ceased to be an employee of the Bank, or within 30 days thereafter: see clauses 5(e) and 10 of the CommInsure policy.

72 To qualify for the TPD benefit, the plaintiff has to have been absent from work for six months due to the injury or disablement. The plaintiff was not absent for any consecutive period of six months prior to his departure on 25 August 2003. He had been working full time between 5 October 2000 and November 2002, and part time from November 2002 to 25 August 2003. He accepted redundancy on 25 August 2003. He subsequently sought work in various companies, and says that he did so on the basis that had he been offered a position, he would have accepted it and resumed work.

73 There may be situations in which an employer, by terminating an injured employee’s position, is acting unfairly to that employee, indeed effectively depriving an employee injured at work of a benefit which would have accrued, because had his employment not been terminated, he would have qualified for the benefit at the end of six months. Not only did the bank not dismiss the plaintiff, it had employed him for more than two years since his injury, and he had worked both full time and part time in that period. His applications for work after he accepted redundancy indicate that he saw himself as fit for part time work (at the least). There is, in one sense, an inconsistency between the acceptance of redundancy and the assertion of total and permanent disability. The plaintiff ceased to be a member of the fund on 25 August 2003. He did so because he accepted redundancy, not because he was unable to work.

74 It follows, in my view, that the plaintiff would not have recovered under the CommInsure policy even had it not contained the words “part time”, and that the plaintiff has failed to make out his case against the trustee on this basis as well.

75 1. In my view, the trustee’s decision to switch cover to CommInsure is not open to attack under the general law, it being accepted that the trustee was acting in good faith and with the interests of its members in mind.

2. If the trustee’s decision under the general law is open to review, there is no breach by reason of the trustee having entered into a new policy with CommInsure.

Conclusion

76 It follows that there should be judgment for the defendant and that the plaintiff should pay the costs of the defendant.

**********

Citations

Manglicmot v Commonwealth Bank Officers Superannuation Corporation [2010] NSWSC 363

Most Recent Citation

Cases Citing This Decision

2

Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd [2011] NSWCA 204

Australian Prudential Regulation Authority v Kelaher [2019] FCA 1521

Cases Cited

20

Statutory Material Cited

1

Clerical Administrative and Related Employees Superannuation Pty Ltd v Bishop [1997] FCA 714

Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd [1998] FCA 51

Clerical Administrative and Related Employees Superannuation Pty Ltd v Bishop [1997] FCA 714

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CITATION:	Manglicmot v Commonwealth Bank Officers Superannuation Corporation [2010] NSWSC 363
HEARING DATE(S):	24-26 March 2010
JUDGMENT DATE :	28 April 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Rein J
DECISION:	1. Judgment for the defendant. 2. Plaintiff to pay the costs of the defendant.
CATCHWORDS:	EQUITY - trusts and trustees - powers, duties, rights and liabilities of trustees - general matters - rules governing exercise of discretion - where trustee entered into new insurance policy - where trustee gave reasons for decision - whether Court can review trustee's decision - whether trustee breached any duty owed to the insured under the general law - whether Superannuation Industry (Supervision) Act 1993 (Cth) alters the general law and whether breach by trustee - INSURANCE - accident, sickness and income protection insurance - total and permanent disablement or total incapacity - discussion of matters going to the question of whether there was any difference in wording between the total and permanent disablement clause in the previous insurance policy and in the new policy - causation: whether the insured suffered any loss due to any difference in wording
LEGISLATION CITED:	Superannuation Industry (Supervision) Act 1993 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139 Asea Brown Boveri Superannuation Fund No 1 Pty Ltd v Asea Brown Boveri Pty Ltd [1999] 1 VR 144 Attorney-General for the Commonwealth v Breckler (1999) 197 CLR 87 Austin v Austin (1906) 3 CLR 516 Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 Beverley v Tyndall Life Insurance Co Ltd (1999) WAR 327 Camilleri v Australian Casualty & Life [2006] NSWDC 77 Chammas v Harwood Nominees Pty Ltd [No 1] (1993) ANZ Insurance Cases 61-175 Clerical Administrative and Related Employees Superannuation Pty Ltd v Bishop (1997) 76 IR 139 Cowan v Scargill [1984] 2 All ER 750 Dundee General Hospitals Board of Management v Walker [1952] 1 All ER 896 Edge v Pensioners Ombudsman [1999] 4 All ER 546 Elder’s Trustee and Executor Company Limited v Higgins (1962) 113 CLR 426 Esso Australia Ltd v Australian Petroleum Agents’ & Distributors’ Association [1999] 3 VR 642 Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913 Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 Hay v Total Risk Management Pty Ltd [2004] NSWSC 94 In re Beloved Wilkes’s Charity (1851) 3 Mac & G 440, 42 ER 330 In re Chapman [1896] 2 Ch 763 In re Coleman’s Depositories Limited and Life and Health Assurance Association [1907] 2 KB 798 Invensys Australia Superannuation Fund Pty Ltd v Austrac Investments Ltd (2006) 15 VR 87 Karger v Paul [1984] VR 161 Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691 Lawrence v The Accidental Insurance Company (Limited) (1881) 7 QBD 216 Meat Industry Employees Superannuation Fund v Petrucelli (unreported, Supreme Court of Victoria, Nathan J, 29 February 1992) Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55 Rapa v Patience (unreported, Supreme Court of New South Wales, 4 April 1985) Re Application of HIH Superannuation Ltd [2003] NSWSC 65 Re Knollys’ Trusts [1912] 2 Ch 357 Rydge v Hartigan Nominees Pty Ltd (unreported, Supreme Court of New South Wales, Young J, 12 September 1990) Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 Speight v Gaunt (1883) 9 App Cas 1 Szuster v Hest Aust. Ltd [2000] SADC 2 Telstra Super Pty Ltd v Finch [2009] VSCA 318 Telstra Super Pty Ltd v Flegeltaub (2000) 2 VR 276 The King v The Archbishop of Canterbury (1812) 15 East 117, 104 ER 789 White v Board of Trustees [1997] 2 Qd R 659 Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd (1998) 79 FCR 469 Wyllie v National Mutual Life Association of Australasia Ltd (1997) 217 ALR 324
TEXTS CITED:	J C Campbell, ‘Exercise by Superannuation Trustees of Discretionary Powers’ (2009) 83 ALJ 159 J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia (7th ed, 2006), LexisNexis Butterworths, Sydney E J MacGillivray et al, MacGillivray on Insurance Law (9th ed, 1997), Sweet & Maxwell, London D Maclean, ‘Beneficiary’s Right to See Confidential Trust Documents’ (1993) 67 ALJ 703
PARTIES:	Roy Manglicmot (plaintiff) Commonwealth Bank Officers Superannuation Corporation (defendant)
FILE NUMBER(S):	SC 2008/282210
COUNSEL:	B W Rayment QC, G B Beauchamp (plaintiff) A G Bell SC, J A English (defendant)
SOLICITORS:	Firths The Compensation Lawyers (plaintiff) Henry Davis York (defendant)