Nowicka v Superannuation Complaints Tribunal - [2008] FCA 939

FEDERAL COURT OF AUSTRALIA
Nowicka v Superannuation Complaints Tribunal [2008] FCA 939
SUPERANNUATION – Superannuation Complaints Tribunal – complaint – power to treat complaint as withdrawn where misconceived – review of Tribunal’s decision to treat complaint as withdrawn – soldier absent without leave at date of death – member of superannuation scheme – death benefit not payable to spouse where member absent without leave unless absence due to sufficiently mitigating circumstances – determination by Tribunal that those circumstances existed – interest for delay in payment of benefit – date from which interest runs – whether death of member or determination of Tribunal
PRACTICE AND PROCEDURE – stare decisis – precedent – decision based on absence of power in tribunal to award interest – Judge then said that even if the tribunal had power, the requirements for its exercise were not made out – whether a second reason for decision – whether obiter – degrees of obiter
Superannuation (Resolution of Complaints) Act 1993 (Cth), ss 22(3)(b), 41(3)
Military Superannuation and Benefits Rules, rules 40, 69, Schedule 6
Military Superannuation and Benefits Board of Trustees No 1 v Batt (2005) 149 FCR 448 considered
Jacobs v London County Council [1950] AC 361 cited
Commissioners of Taxation (NSW) v Palmer [1907] AC 179 cited
McBride v Monzie Pty Ltd [2007] FCA 1947 cited
Brunner v Greenslade [1971] Ch 993 applied
Chief Supplementary Benefit Officer v Leary [1985] 1 WLR 84 cited
BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234 applied
Cross and Harris, Precedent in English Law, 4^th ed (1991)
ANETA NOWICKA v SUPERANNUATION COMPLAINTS TRIBUNAL, MARGARET MCDONALD and MILITARY SUPERANNUATION AND BENEFITS BOARD OF TRUSTEES NO 1
VID 784 OF 2007
SUNDBERG J
20 JUNE 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 784 OF 2007

BETWEEN:

ANETA NOWICKA
Applicant

AND:

SUPERANNUATION COMPLAINTS TRIBUNAL
First Respondent

MARGARET MCDONALD
Second Respondent

MILITARY SUPERANNUATION AND BENEFITS BOARD OF TRUSTEES NO 1
Third Respondent

JUDGE:

SUNDBERG J

DATE OF ORDER:

20 JUNE 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the third respondent’s costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 784 OF 2007

BETWEEN:

ANETA NOWICKA
Applicant

AND:

SUPERANNUATION COMPLAINTS TRIBUNAL
First Respondent

MARGARET MCDONALD
Second Respondent

MILITARY SUPERANNUATION AND BENEFITS BOARD OF TRUSTEES NO 1
Third Respondent

JUDGE:

SUNDBERG J

DATE:

20 JUNE 2008

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
BACKGROUND

On 1 April 1999 Private Robert Przydatek died while absent without leave from the Australian Defence Force. At the time of his death he was a member of the Military Superannuation Benefit Scheme (the Scheme) established by a Trust Deed and regulated by the Military Superannuation and Benefits Act 1991 (Cth) and the Military Superannuation and Benefits Rules (the Rules). The Scheme is a regulated superannuation fund for the purposes…

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: [2008] FCA 939
Decision Date: 20 June 2008

CaseChat Overview and Summary

The case of Nowicka v Superannuation Complaints Tribunal concerns a dispute over the non-payment of interest on the balance of a superannuation benefit. The applicant, Nowicka, filed a complaint with the Superannuation Complaints Tribunal against the non-payment of interest on her superannuation benefit. The Tribunal dismissed the complaint, finding it to be misconceived and treating it as withdrawn. Nowicka sought judicial review of the Tribunal's decision, arguing that the Tribunal had misapplied the relevant provisions of the law in determining the balance of the employer benefit.

The primary legal issue before the court was whether the Tribunal had correctly applied the relevant provisions of the law in dismissing Nowicka's complaint as misconceived. In particular, the court needed to determine whether the Tribunal had correctly interpreted the provisions of the law that governed the calculation of the balance of the employer benefit. The court also needed to determine whether the Tribunal had correctly followed the decision in Military Superannuation and Benefits Board of Trustees No 1 v Batt in dismissing Nowicka's complaint.

The court found that the Tribunal had correctly applied the relevant provisions of the law in dismissing Nowicka's complaint as misconceived. The court held that the balance of the employer benefit was only payable if and when the Board, or the Tribunal standing in its stead, determined that mitigating circumstances existed. The court also found that the Tribunal had correctly followed the decision in Batt, which was indistinguishable from the present case. The court therefore dismissed Nowicka's application for judicial review.

The final orders of the court were that the application be dismissed and that Nowicka pay the third respondent's costs of the application.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the third respondent’s costs of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SUNDBERG J

In December 2006 the applicant lodged a complaint with the Tribunal against the non‑payment of interest on the balance of the benefit. On 19 March 2007 the Tribunal advised her that her complaint was “based on a legal misconception and has no foundation” and was therefore “misconceived” for the purposes of s 22(3)(b) of the Act. It invited a submission as to why the complaint should not be withdrawn under s 22(3)(b) because there had been no delay in the payment of the “prospective portion” of the benefit. The applicant lodged a submission. In July 2007 the Tribunal informed her that the complaint was misconceived and it would treat it as withdrawn pursuant to s 22(3)(b).TRIBUNAL’S REASONS FOR DECISION The basis for the Tribunal’s reasons for its July 2007 decision appears from the following summary:(a)“there were two parts to the benefit payable as a result of the death of a member … being the minimum employer benefit and the balance of the employer benefit”;(b)under rule 40(4) the balance of the employer benefit is only payable, in the case of a member who was absent without leave, where there are sufficient mitigating circumstances;(c)in such a case the balance is only payable if and when the Board, or the Tribunal standing in its stead, determines that mitigating circumstances exist;(d)the determination in (c) is an “ancillary decision” that was required to be made before the balance of the employer benefit became payable;(e)Military Superannuation and Benefits Board of Trustees No 1 v Batt (2005) 149 FCR 448 (Batt) is indistinguishable from the present case and the Tribunal must follow that decision;(f)consequently the Tribunal was treating the applicant’s complaint as withdrawn under s 22(3)(b) on the ground that it was misconceived. The applicant seeks review of the Tribunal’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). She also appeals to the Court under s 46 of the Act. The appeal is on a question of law.THE RULES Under rule 40(1)(a) a deceased member’s employer benefit is payable to his or her spouse as a lump sum. Subrule (3) provides:An employer [benefit] payable under subrule (1) is calculated as if, on the date of the death of the deceased member, he or she had become entitled to invalidity benefits under Division 2 of Part 3 and had been classified as Class A under rule 22.Subrule (4) provides:Subrule (3) does not apply where:(a)a member dies and, at the time of his or her death, he or she was absent without leave and had been so absent for a period that exceeds 21 consecutive days; and(b)…;unless the Board is satisfied that the absence of the member was due to sufficiently mitigating circumstances. One element in the calculation of a person’s employer benefit is his or her years of eligible service. Schedule 6 of the Rules is in part as follows:The eligible service of a member is the sum of:(a)… service by the person as a member; and(b)in the case of a person entitled to an invalidity pension who is classified as Class A – a period equal to the period commencing on the day immediately following the last day of the person’s service and concluding on the day on which the person would have retired if he or she had not been retired on the ground of invalidity but had served until attaining:(i)his or her retiring age immediately before his or her retirement; or(ii)the age of 55 years …whichever is greater ….

Ratio Decidendi

Legal Principle Established

Established by: SUNDBERG J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 784 OF 2007

JUDGE:	SUNDBERG J
DATE OF ORDER:	20 JUNE 2008
WHERE MADE:	MELBOURNE

JUDGE:	SUNDBERG J
DATE:	20 JUNE 2008
PLACE:	MELBOURNE