Telstra Super Pty Ltd v Flegeltaub

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 6380 of 1995

TELSTRA SUPER PTY. LTD.
	Appellant
v.
GLENDA FLEGELTAUB	Respondent

---

JUDGES:	ORMISTON, CALLAWAY and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	4 and 5 September 2000
DATE OF JUDGMENT:	28 September 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 180

---

TRUSTS – Superannuation – Entitlement to benefit on "Total and Permanent Invalidity" – Meaning of definition, especially the words "unreasonable refusal to submit to treatment" – Whether trustee exercising a discretion – Extent of trustee's duties in forming opinion as to question of fact.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D. Maclean	Phillips Fox
For the Respondent	Mr J. Burnside, Q.C. and Mr P. Bingham	Maurice Blackburn Cashman

ORMISTON, J.A.:

1. The facts and circumstances relating to this appeal appear in the judgment of Callaway, J.A.  Although it is a matter of some difficulty about which I had some doubts, I agree, for the reasons he has stated, in the interpretation of the clause of the trust deed which he has reached.

1. Each side has agreed, whatever be the result, that the matter should be remitted to the trustee for its decision according to the construction which the Court places upon the terms of this clause.  In a number of senses that is unsatisfactory inasmuch as a beneficiary has come to the Court to seek an interpretation of a deed of trust which, at least in the broadest sense, was thought uncertain in its operation, although the trustee considered and considers itself correct as to the application of the terms of the clause to the particular circumstances of the respondent.  Unfortunately, the terms of the trust deed leave so many matters to the opinion of the trustee in various ways that the only consequence of the present dispute must be that it be remitted to the trustee to consider the respondent’s entitlement according to law. 

1. The parties had hoped, though in rather different ways, that the Court might express its views as to how the trustee should conduct any further enquiry into the respondent’s entitlement, at least so as to obviate the necessity for any further application to the Court. 

1. There are many reasons why I am loath to enter upon any such discussion.  It is not that I would wish to express disagreement with the valuable observations of Callaway, J.A. or with those of Batt, J.A. in his judgment.  It is simply that I am unwilling to embark upon a general discussion, in a case where it is not strictly necessary, in relation to a further consideration of the question when so many matters relating to the review of trustees’ decisions have not been finally settled.  Hardly any of the decisions cited and which were decided in the last 20 years or so have been decisions of appellate courts and trial judges have been struggling to deal with disputes which have arisen out of circumstances quite different from those which were raised in earlier authorities.  One particular…