Pope, Jayne Maree v Lawler, John William

[1996] FCA 1080

CATCHWORDS

ADMINISTRATIVE LAW - appeal from particular authority - superannuation - Superannuation Complaints Tribunal - whether decisions should be remitted to the Tribunal

PRACTICE and PROCEDURE - costs - whether costs payable from death benefit

Administrative Appeals Tribunal Act, s44
Superannuation (Resolution of Complaints) Act 1993, s46

Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209

JAYNE MAREE POPE, PETER GLENN DOBRICH, SALLY ANNE POLLARD, DAVID JOHN DOBRICH v JOHN WILLIAM LAWLER, KIYOAKI KONDO, RICHARD LAWRENCE SPAULL, SCOTT STEWART CARRUTHERS AS TRUSTEE OF THE CABLE SANDS STAFF SUPERANNUATION PLAN and VALERIE ANNE DOBRICH                   
NO WAG 84 OF 1995

R D NICHOLSON J
PERTH
10 DECEMBER 1996

IN THE FEDERAL COURT OF AUSTRALIA   )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION                   )     NO WAG 84 OF 1995

B E T W E E N:  JAYNE MAREE POPE

PETER GLENN DOBRICH

SALLY ANNE POLLARD

DAVID JOHN DOBRICH

Applicants

and

JOHN WILLIAM LAWLER

KIYOAKI KONDO

RICHARD LAWRENCE SPAULL

SCOTT STEWART CARRUTHERS

AS TRUSTEE OF THE CABLE

SANDS STAFF

SUPERANNUATION PLAN

First Respondents

and

VALERIE ANNE DOBRICH

Second Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:     R D NICHOLSON J

DATE OF ORDER:         10 DECEMBER 1996

WHERE MADE:            PERTH

THE COURT ORDERS THAT:

1. Determinations D95/4/5/6/7 of the Superannuation Complaints Tribunal made on 27 June 1995 in respect of the death benefit arising from the death of Mr G F Dobrich be set aside.

1. The matter be remitted to the Tribunal to be determined again by it in accordance with the reasons of the Court given on 7 May 1996.

1. The costs of the parties be taxed and paid by way of deduction from the total death benefit prior to distribution of the benefit in accordance with the orders of the Tribunal. 

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

IN THE FEDERAL COURT OF AUSTRALIA   )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION                   )     NO WAG 84 OF 1995

B E T W E E N:  JAYNE MAREE POPE

PETER GLENN DOBRICH

SALLY ANNE POLLARD

DAVID JOHN DOBRICH

Applicants

and

JOHN WILLIAM LAWLER

KIYOAKI KONDO

RICHARD LAWRENCE SPAULL

SCOTT STEWART CARRUTHERS

AS TRUSTEE OF THE CABLE

SANDS STAFF

SUPERANNUATION PLAN

First Respondents

and

VALERIE ANNE DOBRICH

Second Respondent

CORAM:R D NICHOLSON J

DATE:10 DECEMBER 1996

PLACE:PERTH

REASONS FOR JUDGMENT

Reasons in this matter were delivered on 7 May 1996.  The definitions used in those reasons are continued in these reasons.

As a consequence of those reasons the appeal was allowed.  Directions were made to enable the parties to make submissions concerning how the equities could be properly recognised.  Submissions were sought on the basis this was not an appropriate case for reference back to the Tribunal and the Court should, having set aside the decision under review, make a decision in substitution. 

The applicants filed submissions on 21 May 1996.  The submissions of the first respondent were filed on 31 May 1996.  A further affidavit for the second respondent was filed on 4 June 1996 and supported by submissions dated 5 June 1996.  On 11 June 1996 the applicants' submissions in reply were received.

It was apparent from the submissions for the second respondent factual assertions were being made concerning the means of other persons interested in the death benefit, which assertions had no foundation in evidence before the Tribunal or before the Court.  Accordingly, on 26 August 1996 the Court made directions designed to obtain affidavits as to means where such evidence was sought to be relied upon.  Through her new solicitors the second respondent then filed a motion dated September 1996 seeking that the directions of 26 August 1996 be vacated on the grounds that the Court has neither the power nor the jurisdiction to make the directions or to consider any evidence adduced pursuant to them. 

The supporting submissions to the motion rely in particular upon the decision of the Full Court in Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 which considered the nature of appeals brought pursuant to s44 of the Administrative Appeals Tribunal Act ("the AAT Act"). For the applicants it is submitted s46 of the SRCA is in significantly different language to s44(1)(4) and (5) of the AAT Act and in particular authorises through s46(2) this Court to hear and determine the appeal and "make such order as it thinks appropriate". In Gungor at 220 Sheppard J recognised that a power to make "such order as it thinks appropriate by reason of its decision" is much more restrictive than a power "to make such order as it sees fit...". It is unnecessary in the circumstances to further consider these submissions.

For the first respondents it is submitted that, consistently with the provisions of s46(1) and (4) of the SRCA, the appropriate course is for the Court to make an order remitting the matter to be determined again by the Tribunal in accordance with the directions of the Court so that the determination of the question of distribution of the death benefit is remitted to the Tribunal. In my opinion the submissions for the first respondent are correct. That course of action is specifically envisaged by s46(4) of the SRCA. It would be a course consistent with the need to resolve the questions of fact which have now arisen. No issue of bias in the trustees could be relevant because it is to the Tribunal the matter is remitted.

It follows I do not accept the further submission by way of reply for the second respondent that the Court should determine the entitlements to the death benefit having regard to the evidence which was before the Tribunal.  As appears from the submissions, that evidence does not presently contain a factual foundation upon which to properly determine the equities.  It will be necessary for the Tribunal to obtain that factual foundation by way of evidence in order to make the determination.

As a consequence of considering the submissions invited by the reasons of 7 May 1996, I am no longer of the opinion that the Court itself should make the decision in substitution.  The proper course is for the Court to set aside the decision under review and remit the matter to the Tribunal for it to determine the proportions in which the death benefit payable under the Plan is to be distributed to the second respondent and the applicants.  The determination of the Tribunal should be made in view of the Court's reasons published on 7 May 1996 and to such further evidence as may be called by the Tribunal. 
In relation to costs, it is submitted on behalf of the first respondent the basis upon which the appeal was argued was different to the grounds of appeal filed by the applicants.  It is submitted in the circumstances the applicants ought to bear their own costs and pay the costs of the first respondents by way of deduction from any distribution to the applicants.  Alternatively, the first respondents submit their costs of the appeal ought to be met out of the death benefit before any distribution is made. 

The applicants contest the first of these submissions but accept that an appropriate order for costs would be that all the parties costs of the appeal be taxed and paid out of the benefit.  I accept these submissions because they provide a means of equitably awarding costs in the circumstances.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.

Associate:

Date: 10 December 1996

APPEARANCES

Counsel for the Applicant:           Mr M J McCusker QC

Solicitors for the Applicant:           Young & Young

Counsel for the First Respondent:     Mr M L Bennett

Solicitors for the First Respondent:  Bennett & Co

Counsel for the Second Respondent:      Mr A Barrie

Solicitors for the Second Respondent: Ternes & Salier

Date of Hearing:                   29 October,

5, 6 & 12 November 1996

Date of Judgment:                  10 December 1996