SUPREME COURT OF QUEENSLAND
CITATION:
Re QSuper Board [2021] QSC 276
PARTIES:
QSUPER BOARD
(applicant)
FILE NO/S:
BS No 8365 of 2021
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
27 October 2021
DELIVERED AT:
Brisbane
HEARING DATE:
1 October 2021
JUDGE:
Kelly J
ORDER:
1. Pursuant to s 96(1) of the Trusts Act 1973 (Qld), I direct that the QSuper Board is justified in consenting to the proposed amendment to the Superannuation (State Public Sector) Deed 1990 (Qld) (Deed) as set out in paragraph 97 of the Amended Statement of Facts.
2. Pursuant to s 8(2) Supreme Court of Queensland Act 1991 (Qld):
(a) each of the following documents, being the documents included in exhibit DW-1 to the affidavit of Deanne Wilden sworn 28 September 2021, namely:
(i) the confidential opinion of counsel dated 24 June 2021;
(ii) the confidential opinion of counsel dated 24 September 2021;
(iii) the confidential letter dated 22 September 2021 from the QSuper Board to APRA and its enclosure, being a draft proposed Amendment Statement of Facts;
is to be:
(A) placed on the court file in a sealed envelope marked ‘Confidential – not to be opened without an order of a judge of the court’; and
(B) not made available for inspection without an order of a judge of the court.
(b) the affidavit of Deanne Wilden sworn 18 October 2021 and the accompanying exhibit DW-2 is to be:
(i) placed on the court file in a sealed envelope marked ‘confidential – not to be opened without an order of a judge of the court’; and
(ii) not made available for inspection without an order of a judge of the court.
(c) the affidavit of Deanne Wilden sworn 26 October 2021 and the accompanying exhibit DW-3 is to be:
(i) placed on the court file in a sealed envelope marked ‘confidential – not to be opened without an order of a judge of the court’; and
(ii) not made available for inspection without an order of a judge of the court.
(d) the paragraphs of the Amended Statement of Facts described at paragraphs 8(a) to 8(e) of the affidavit of Deanne Wilden sworn 28 September 2021 is to be:
(i) kept confidential and will not be published;
(ii) not made available for inspection without an order of a judge of the court; and
(iii) to the extent the Amended Statement of Facts is to be otherwise published, redacted.
(e) paragraph 99C of the Amended Statement of Facts is to be:
(i) kept confidential and will not be published;
(ii) not made available for inspection without an order of a judge of the court; and
(iii) to the extent that the Amended Statement of Facts is to be otherwise published, redacted.
(f) paragraph 80 of the submissions filed by APRA on 29 September 2021 is to be:
(i) kept confidential and will not be published;
(ii) not made available for inspection without an order of a judge of…
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- AGLC
- Re QSuper Board [2021] QSC 276
- Case
- [2021] QSC 276
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the QSuper Board was justified in consenting to the proposed amendment, whether wider notification of members was required, and whether documents should be sealed on the court file or otherwise subject to redactions. The court found that the QSuper Board was justified in consenting to the proposed amendment. The court also found that wider notification of members was not required. The court further found that certain documents should be sealed on the court file and subject to redactions.
The court reasoned that the QSuper Board had a power vested in it by the QSuper Act to consent to the proposed amendment. The amendment was in respect of the management of trust property, namely the QSuper Fund. The court found that the QSuper Board was justified in consenting to the proposed amendment because it was in the best financial interests of its beneficiaries. The court found that wider notification of members was not required because it would be impractical and costly. The court found that certain documents should be sealed on the court file and subject to redactions to protect commercially sensitive information and legal advice.
The court ordered that the QSuper Board was justified in consenting to the proposed amendment to the Superannuation (State Public Sector) Deed 1990 (Qld). The court further ordered that certain documents be sealed on the court file and subject to redactions. The court also ordered that the QSuper Board’s costs of this application be paid or reimbursed out of the assets of the fund administered under the Deed on an indemnity basis.
Orders
Orders of the court
1. Pursuant to s 96(1) of the Trusts Act 1973 (Qld), I direct that the QSuper Board is justified in consenting to the proposed amendment to the Superannuation (State Public Sector) Deed 1990 (Qld) (Deed) as set out in paragraph 97 of the Amended Statement of Facts.
2. Pursuant to s 8(2) Supreme Court of Queensland Act 1991 (Qld):
(a) each of the following documents, being the documents included in exhibit DW-1 to the affidavit of Deanne Wilden sworn 28 September 2021, namely:
(i) the confidential opinion of counsel dated 24 June 2021;
(ii) the confidential opinion of counsel dated 24 September 2021;
(iii) the confidential letter dated 22 September 2021 from the QSuper Board to APRA and its enclosure, being a draft proposed Amendment Statement of Facts;
is to be:
(A) placed on the court file in a sealed envelope marked ‘Confidential – not to be opened without an order of a judge of the court’; and
(B) not made available for inspection without an order of a judge of the court.
(b) the affidavit of Deanne Wilden sworn 18 October 2021 and the accompanying exhibit DW-2 is to be:
(i) placed on the court file in a sealed envelope marked ‘confidential – not to be opened without an order of a judge of the court’; and
(ii) not made available for inspection without an order of a judge of the court.
(c) the affidavit of Deanne Wilden sworn 26 October 2021 and the accompanying exhibit DW-3 is to be:
(i) placed on the court file in a sealed envelope marked ‘confidential – not to be opened without an order of a judge of the court’; and
(ii) not made available for inspection without an order of a judge of the court.
(d) the paragraphs of the Amended Statement of Facts described at paragraphs 8(a) to 8(e) of the affidavit of Deanne Wilden sworn 28 September 2021 is to be:
(i) kept confidential and will not be published;
(ii) not made available for inspection without an order of a judge of the court; and
(iii) to the extent the Amended Statement of Facts is to be otherwise published, redacted.
(e) paragraph 99C of the Amended Statement of Facts is to be:
(i) kept confidential and will not be published;
(ii) not made available for inspection without an order of a judge of the court; and
(iii) to the extent that the Amended Statement of Facts is to be otherwise published, redacted.
(f) paragraph 80 of the submissions filed by APRA on 29 September 2021 is to be:
(i) kept confidential and will not be published;
(ii) not made available for inspection without an order of a judge of the court; and
(iii) to the extent those submissions will otherwise be published, redacted.
(g) paragraph 78 and footnotes 107, 108, 109 of the submissions filed by the QSuper Board on 1 October 2021 in reply to the APRA submissions filed on 29 September 2021 will be:
(i) kept confidential and will not be published;
(ii) not made available for inspection without an order of a judge of the court; and
(iii) to the extent those submissions will otherwise published, redacted.
3. Within seven (7) days of the making of these orders, the QSuper Board is to file, in conformity with order 2:
(a) a redacted copy of the Amended Statement of Facts;
(b) a redacted copy of the APRA Submissions filed on 29 September 2021; and
(c) a redacted copy of the QSuper Board’s submissions filed on 1 October 2021.
4. The QSuper Board’s costs of this application are to be paid or reimbursed out of the assets of the fund administered under the Deed on an indemnity basis.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Proposed Amendment is in the following form:“Remuneration[1.1] The Trustee is entitled to be paid (and retain for its own benefit) such reasonable remuneration as is determined by the Trustee.[1.2] The Trustee’s remuneration may be deducted, in the manner determined by the Trustee, from the assets of the Fund.[1.3] The Trustee may charge a different fee or amount to any Member (or class of Members) based on such criteria as it determines is fair and reasonable.[1.4] In addition to the remuneration under clause [1.1], the Trustee is entitled to charge and retain for its own benefit from the Fund an amount equal to any fee that it would be entitled to charge any person under the Family Law (Superannuation) Regulations 2001 (Cth).”[6][6]Section 90XY of the Family Law Act 1975 (Cth) provides that regulations may allow a trustee to charge reasonable fees. Pursuant to regulation 59 of the Family Law (Superannuation) Regulations 2001 (Cth), a trustee can charge reasonable fees in respect of certain identified payments arising in the family law context.Section 96 of the Trusts Act Section 96 of the Trusts Act is in the following terms:“96 Right of trustee to apply to court for directions (1) Any trustee may apply upon a written statement of facts to the court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee. (2) Every application made under this section shall be served upon, and the hearing thereof may be attended by, all persons interested in the application or such of them as the court thinks expedient.”Matters of jurisdiction and discretion The QSuper Board has filed a detailed Amended Statement of Facts and affidavit material. I am satisfied that the information contained within the Amended Statement of Facts and affidavit material sufficiently identifies the relevant factual matters which are to be assumed to exist for the purpose of answering the Question.[7] [7]Nofz v Kane [2015] QSC 372, 6. To engage s 96, the QSuper Board must establish the existence of a question respecting the management or administration of the trust property or the exercise of any power or discretion vested in the trustee. These requirements, if established, confer jurisdiction on the court under the Trusts Act to provide relief under s 96.[8] The QSuper Deed is subordinate legislation.[9] It may be amended by regulation.[10] The QSuper Act provides that the Governor in Council must not make a regulation amending the QSuper Deed without the consent of the QSuper Board.[11] The source of the Board’s power to consent is the QSuper Act and the power is properly regarded as a power conferred by law and vested in the QSuper Board. I am satisfied that the application for advice is made in respect of a power vested in the QSuper Board as a trustee and is also in respect of the management of trust property, namely the QSuper Fund. [8]Macedonian Orthodox Community Church St Peka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 (“Macedonian Church”), 89 [58]; Ban v Public Trustee of Queensland [2015] QCA 18 [59].[9]QSuper Act, s 12(2). [10]QSuper Act, s 12(3).[11]QSuper Act, s 12(4). Subsections 12(2)-(4) were introduced by amendments made by the Superannuation (State Public Sector) Amendment Act 2007 (Qld) s 17.