FEDERAL COURT OF AUSTRALIA
Rushton v Commonwealth Superannuation Corporation [2020] FCA 777
File number: ACD 1 of 2020 Judge: GRIFFITHS J Date of judgment: 9 June 2020 Catchwords: PRACTICE AND PROCEDURE – appeal from a decision of the Australian Financial Complaints Authority in relation to the applicant’s eligibility for a spouse pension – objection to competency by the first respondent – interlocutory application by the first respondent seeking summary dismissal, a permanent stay or strike out of the originating application – notice of appeal struck out – applicant given an opportunity to file an amended notice of appeal Legislation: Acts Interpretation Act 1901 (Cth), s 2CA
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Corporations Act 2001 (Cth), ss 1055(2), 1057(1)
Federal Court of Australia Act 1976 (Cth), ss 23, 31A
Judiciary Act 1903 (Cth), ss 33, 39B(1A)(c)
Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)
Superannuation Amendment (PSS Trust Deed) Instrument 2018
Federal Court Rules 2011 (Cth), rr 1.32, 16.21, 26.01, 33.12, 33.34Cases cited: Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018]
C v Commonwealth of Australia [2015] FCAFC 113; 234 FCR 81
Chen v Secretary, Department of Social Services (No 2) [2020] FCA 384
Coshott v Kam Tou Mak
Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315
John Holland Pty Ltd v Maritime Union [2009] FCA 437
Matheson Engineers Pty Ltd v El Raghy (1992) 37 FCR
Mulhern v Bank of Queensland [2015] FCA 44
Quirk v Construction, Forestry, Mining and Energy Union [2017] FCA 1576
Date of hearing: Determined on the papers Date of last submissions: 21 April 2020 Registry: Australian Capital Territory Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 53 Counsel for the Applicant: The applicant was self-represented Counsel for the First Respondent: S. Palaniappan Solicitor for the First Respondent: Ashurst Australia Solicitor for the Second Respondent: The second respondent was previously removed as a party Solicitor for the Third Respondent: Clarendon Lawyers ORDERS
ACD 1 of 2020 BETWEEN: BEN ANTHONY RUSHTON
Applicant
AND: COMMONWEALTH SUPERANNUATION CORPORATION
First Respondent
THE AUSTRALIAN FINANCIAL COMPLAINTS AUTHORITY
Third Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
9 JUNE 2020
THE COURT ORDERS THAT:
1.The notice of objection to competency filed on 17 February 2020 be dismissed.
2.The notice of appeal filed on 24 December 2019 be struck out.
3.The applicant have leave to file and serve within three weeks hereof an amended notice of appeal which properly conforms with the relevant legal requirements and which adds his three children as respondents to the proceeding.
4.The interlocutory application filed on 25 February 2020 otherwise be dismissed.
5.Subject to order 6, there be no order as to costs.
6.If either party wishes to dispute order 5, the party should file and serve within five business days hereof an outline of written submissions, not exceeding three pages in length, on costs. The other…
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- Case
- [2020] FCA 777
- Decision Date
CaseChat Overview and Summary
The court was required to determine the validity of the appeal against AFCA's decision. Specifically, it had to consider whether the notice of appeal complied with the legal requirements and whether the applicant was a spouse under the relevant rules. The court also had to decide on the objection to competency by the first respondent and the interlocutory application by the first respondent seeking summary dismissal, a permanent stay, or striking out of the originating application.
The court held that the amendment to the definition of "marital or couple relationship" in the Rules was not in force when the trustee made its relevant decisions. However, the amendment was in force when AFCA made its determination dated 4 December 2019. AFCA evidently proceeded on the basis that in performing its review function and in determining whether the trustee's decisions were "fair and reasonable in all the circumstances", regard was to be had to the substantive law as in force at the time the trustee made the relevant decisions. The applicant did not contest this approach. The court found that AFCA correctly determined that it was fair and reasonable for the trustee to conclude that the applicant did not satisfy either limb of the definition of "spouse" when read with the related definition of "marital or couple relationship". The court also found that AFCA correctly determined that the trustee's decision to decline to reconsider the earlier decision was fair and reasonable. The court struck out the notice of appeal and gave the applicant leave to file an amended notice of appeal within three weeks.
The court dismissed the notice of objection to competency and the interlocutory application. It noted that if either party wished to dispute the order on costs, they should file and serve an outline of written submissions on costs within five business days. The court also noted that there was a separate order concerning the costs of the case management hearing held on 25 February 2020.
Orders
Orders of the court
1. The notice of objection to competency filed on 17 February 2020 be dismissed.
2. The notice of appeal filed on 24 December 2019 be struck out.
3. The applicant have leave to file and serve within three weeks hereof an amended notice of appeal which properly conforms with the relevant legal requirements and which adds his three children as respondents to the proceeding.
4. The interlocutory application filed on 25 February 2020 otherwise be dismissed.
5. Subject to order 6, there be no order as to costs.
6. If either party wishes to dispute order 5, the party should file and serve within five business days hereof an outline of written submissions, not exceeding three pages in length, on costs. The other party is to file and serve an outline of written submissions on costs in response, not exceeding three pages in length, within a further five business days therefrom. The issue of costs will then be heard and determined on the papers without a further oral hearing.
7. Liberty to apply on the giving of 72 hours notice.
THE COURT NOTES THAT:
1. There is a separate order dated 25 February 2020 concerning the costs of the case management hearing held on that day.
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
The amendment to the definition of “martial or couple relationship” in the Rules was not in force when the trustee made its relevant decisions. But the amendment was in force when the Authority made its determination dated 4 December 2019. The Authority evidently proceeded on the basis that in performing its review function and in determining whether the trustee’s decisions were “fair and reasonable in all the circumstances”, as required by s 1055(2) of the Corporations Act 2001 (Cth), regard was to be had to the substantive law as in force at the time the trustee made the relevant decisions. The applicant has not contended that the Authority erred in taking that approach. The Authority found that it was fair and reasonable for the trustee to determine that the applicant did not satisfy either limb of the definition of “spouse”, when read with the related definition of “marital or couple relationship”. As to the first limb, the Authority said that not only did the applicant and his wife have to be married as at the date of her death but they also had to be living together as husband and wife on a permanent and bona fide domestic basis for a continual period of at least three years up to that date. The Authority found that the evidence established that the applicant and the deceased had been separated and lived in separate residences in both Queensland and, immediately before the deceased’s death, in Canberra. It found that it was not sufficient that the applicant and the deceased remained legally married, nor that he provided care for her at the time of her death. The Authority reasoned that the relationship needed to be considered as a whole and that, while the couple were legally married when the wife died, they were not living in a marital or couple relationship at that time. The Authority determined that it was also fair and reasonable for the trustee to conclude that the applicant did not satisfy the second limb of the definition because he was not financially dependent upon the deceased. Reference was made to the fact that the couple had separate financial arrangements at the time of the deceased’s death, and that her bank accounts were in her own name, as was her Canberra property. It was also noted that in her Will the deceased made no provision for the applicant, other than that he could live in her house in Queensland for as long as he desired or until he started a domestic relationship. The deceased’s estate was bequeathed to the three children. The Authority noted that, after the couple separated (according to various protection orders and Magistrates Court documents dated between February and October 2014, it appears that the couple had separated on 28 February 2014), there was no evidence that the deceased provided any financial support to the applicant, but there was some evidence that the applicant was paying a small amount of child support to his wife. The Authority also determined that the trustee’s decision dated 13 December 2017, in which it declined to reconsider the trustee’s earlier decision dated 13 October 2016, was fair and reasonable. This was because, under the Rules, a reconsideration could occur only if there was new evidence and the trustee considered that the new evidence supported the reconsideration request. The only new evidence provided by the applicant was found by the trustee not to support his claim that he was a spouse under the Rules. It appears from the Authority’s reasons for decision that the new evidence included evidence supporting the grant of a carer’s allowance to the applicant. The Authority concluded, however, that the mere granting of a carer’s allowance did not of itself establish that the applicant was a spouse or was dependent upon the deceased.