Military Superannuation and Benefits Board of Trustees No 1 v Drake

In the matter of Military Superannuation and Benefits Board of Trustees No 1 v Drake, the Court was asked to determine whether the Superannuation Industry Tribunal had the jurisdiction to make a determination that the complainant, who had been a member of the Military Superannuation and Benefits Scheme, was not entitled to the continued payment of a pension. The complainant had been retrenched from the Australian Army and had elected to receive a pension instead of a lump sum payment. Upon re-enlisting with the Defence Force, the complainant was informed that he was no longer entitled to the pension. The complainant argued that he had not been properly informed of the consequences of re-enlisting and sought to have the Tribunal’s determination set aside.

The Court considered whether the Tribunal had the jurisdiction to make the determination and whether it had properly exercised its jurisdiction. The Court found that the Tribunal had indeed erred in law in its construction and application of Rule 64(5) of the Trust Deed, which governed the circumstances in which a member was entitled to a pension. The Court concluded that the Tribunal had not properly exercised its jurisdiction and that the determination was not authorised by the Trust Deed. The Court therefore set aside the Tribunal’s determination.

The Court also considered whether it was appropriate to remit the matter back to the Tribunal. The Court found that it was not appropriate to do so, as the only outstanding issue between the parties was whether the complainant wished to cancel his election under Rule 64(5). The Court concluded that it was for the complainant to decide if he wished to make an application under Rule 64(5) and that it was appropriate for the trustee to consider the application prior to it coming before the Tribunal.

In conclusion, the Court found that the Tribunal had erred in law in its construction and application of Rule 64(5) and that the determination was not authorised by the Trust Deed. The Court set aside the Tribunal’s determination and declined to remit the matter back to the Tribunal. The Court expressed its gratitude to the complainant’s pro bono counsel for their well articulated submissions.