FEDERAL COURT OF AUSTRALIA
Matsen v Superannuation Complaints Tribunal
[2017] FCA 1604
Appeal from: Application for extension of time and leave to appeal: Matsen v Superannuation Complaints Tribunal [2017] FCA 765 File number: NSD 1301 of 2017 Judge: RARES J Date of judgment: 3 October 2017 Legislation: Evidence Act 1995 (Cth) s 160
Federal Court Rules 2011 Pt 25, r 25.14
Cases cited: Bienstein v Bienstein (2003) 195 ALR 225
Harvey v Phillips (1956) 95 CLR 235
Jackamarra v Krakouer (1998) 195 CLR 516
Matsen v Superannuation Complaints Tribunal [2017] FCA 765
R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
Date of hearing: 3 October 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 20 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: The First Respondent filed a Submitting Notice Counsel for the Second Respondent: Ms A Lyons Solicitor for the Second Respondent: Turks Legal Counsel for the Third Respondent: Mr G Smith Solicitor for the Third Respondent: Trisley Lawyers ORDERS
NSD 1301 of 2017 BETWEEN: KENNETH LESLIE MATSEN
Applicant
AND: SUPERANNUATION COMPLAINTS TRIBUNAL
First Respondent
RETAIL EMPLOYEES SUPERANNUATION PTY LIMITED
Second Respondent
CHERIE LEE BENNETT
Third Respondent
JUDGE:
RARES J
DATE OF ORDER:
3 OCTOBER 2017
THE COURT ORDERS THAT:
1.The application for an extension of time and leave to appeal be dismissed.
2.The applicant pay the costs of the second respondent of a submitting appearance.
3.The applicant pay the costs of the third respondent on a party and party basis up to 11.00am on 22 August 2017 and on an indemnity basis thereafter.
4.The interlocutory applications filed on 9 August 2017 and 5 September 2017 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an application for an extension of time and leave to appeal from a decision by the primary judge on 6 July 2017 in which her Honour refused to set aside orders that she had made by consent on 29 July 2016 (the consent orders) that resolved the proceeding brought by Kenneth Matsen dealing with the disposition of his late son’s superannuation entitlements. Her Honour gave detailed reasons for her decision that accurately set out the history of the litigation including a mediation that occurred before a Registrar of the Court at which Mr Matsen signed consent orders on 30 March 2016 (the 30 March 2016 orders), and his subsequent two appearances before her Honour, first, on 22 June 2016, when he informed her Honour that he no longer agreed to the orders that he had…
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- Case
- [2017] FCA 1604
- Decision Date
CaseChat Overview and Summary
The central issue before the court was whether the applicant had provided sufficient grounds to warrant an extension of time to file an appeal and leave to appeal the Tribunal’s decision. The applicant argued that he had subsequently discovered that certain submissions he had sought to file with the Tribunal were not put before her Honour. He subsequently filed a plethora of affidavits and other material which, in various forms, reproduced the medical and taxation records previously submitted to the Tribunal. The court had to determine whether these materials provided sufficient grounds for an extension of time and leave to appeal.
The court held that the materials provided by the applicant did not bear on his capacity to understand or form decisions about the conduct of the litigation. The court noted that the criteria for granting leave to appeal required the applicant to establish that the decision in question was attended with sufficient doubt to warrant the grant of leave and that substantial injustice would result from a refusal of leave. The court found that the applicant had not met this criteria and dismissed the application for an extension of time and leave to appeal. The court also dismissed the interlocutory applications filed by the applicant.
The court ordered that the application for an extension of time and leave to appeal be dismissed, that the applicant pay the costs of the second respondent of a submitting appearance, that the applicant pay the costs of the third respondent on a party and party basis up to 11.00am on 22 August 2017 and on an indemnity basis thereafter, and that the interlocutory applications filed on 9 August 2017 and 5 September 2017 be dismissed.
Orders
Orders of the court
1. The application for an extension of time and leave to appeal be dismissed.
2. The applicant pay the costs of the second respondent of a submitting appearance.
3. The applicant pay the costs of the third respondent on a party and party basis up to 11.00am on 22 August 2017 and on an indemnity basis thereafter.
4. The interlocutory applications filed on 9 August 2017 and 5 September 2017 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Mr Matsen complained that her Honour erred in finding on 29 July 2016 that there was no medical evidence before her in the hearing to suggest that he was not able to give his consent. He argued that, for the purposes of the hearing on 6 July 2017, he had submitted copies of certain medical records indicating that he had, first, conditions that had caused the removal of his teeth at John Hunter Hospital on 17 June 2016, secondly, cataract problems with both of his eyes for which he required surgery on 4 May 2016 and again on 15 August 2016, and, thirdly, chronic neck and back pain had restricted his ability to travel as detailed in a letter from his treating general practitioner dated 14 October 2015. Before me, there is a subsequent patient health summary from his general practitioner’s practice dated 24 July 2017 which self-evidently was not before her Honour at any point of time.Consideration None of those materials bears in any way on Mr Matsen’s capacity to understand or form decisions about the conduct of the litigation or whether he should or should not have entered into the 30 March 2016 orders to resolve it, and to decide on 29 July 2016 to adhere to those orders leading to her Honour making the consent orders. An application for an extension of time in which to file an appeal or leave to appeal challenges a respondent’s vested right to retain the benefit of the judgment from which the appeal is sought, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] (and see also at 539-543 [66] per Kirby J). The Court deals with such an application in the way that each of their Honours said had been adopted by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F, namely:We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time. In addition, the criteria for granting leave to appeal are that the applicant must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and that substantial injustice will result from a refusal of leave: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ. Here, Mr Matsen complains that he subsequently discovered that submissions he had sought to file, so that her Honour could and would have considered them, were not put before her. He has subsequently filed a plethora of affidavits and other material which, in various forms, reproduce the medical and taxation records to which I have referred, and some handwritten submissions which he prepared that, in substance, reflect precisely material that her Honour understood was before her on 6 July 2017, including by way of his oral and other submissions and arguments, and with which she dealt.