FEDERAL COURT OF AUSTRALIA

Collins v AMP Superannuation Ltd [2000] FCA 290

KIMBERLEY ELLEN COLLINS & ANOR v AMP SUPERANNUATION LIMITED & ORS

AG93 of 1997

FINN J

8 MARCH 2000

CANBERRA

THE COURT ORDERS THAT:

1.         an extension of time in which to file and serve the Notice of Appeal be granted;

2.         leave to amend the Notice of Appeal, so as to add denial of procedural fairness as a ground be granted;

3.         the application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an application that should never have been brought.  In form it is for an extension of time in which to file and serve a notice of appeal from a decision of the Superannuation Complaints Tribunal ("the Tribunal") given on 27 October 1997 at Melbourne.  The application itself is under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) ("the Act").  It has been initiated in the wrong registry:  see O 53B r 1 of the Federal Court Rules ("the Rules").  Nonetheless the three respondents have not objected to that.  Neither have they objected to treating the application as if it were a hearing of the appeal.  It has been heard accordingly.

2                     The application has been prosecuted by Gabriella Jean Piscioneri as next friend of Kimberley Ellen Collins and Emma Maria Collins.  I emphasise that particular role.  Though a party to this proceeding:  see O 43 r 1 of the Rules;  and on the position of a "next friend" see Eversley, Domestic Relations (6^th ed), 630ff;  13 Halsbury's Laws of Australia [205-1880];  Ms Piscioneri on a number of occasions in documentary material filed in this Court has described herself as their solicitor. 

3                     The dispute between the present parties has significant history involving prior proceedings before the Superannuation Complaints Tribunal and a hearing in the Federal Court.  This is set out in the reasons for judgment of Merkel J in Collins v AMP Superannuation Ltd (1997) 75 FCR 565 at 567-571.  I need not recount it here. 

4                     A central question before his Honour in that case as before me was the proper construction to be given trust and trust-related instruments executed by a Mr Rodney Collins, now deceased, who is the father of the two infants in this application, as also of the second and third respondents.  It is clear that in Mr Collins' application to join the particular superannuation plan in question in those proceedings and in this, Mr Collins nominated the persons who were to be beneficiaries of any benefit to be payable on his death.  Those beneficiaries so nominated were the second and third respondents.

5                     In the earlier Federal Court proceeding Merkel J upheld the validity of the nomination.  The effect of that nomination in the event of Mr Collins' death, fell to be determined according to the terms of the trust deed.  The relevant provisions are:

"G.      PAYMENT OF DEATH BENEFITS

G.1      Nomination

              (a)      A Member may, at any time, deliver to the Trustee a form in or to the effect of the form prescribed from time to time by the Trustee nominating one or more Dependants to receive all or part of any benefit payable on death of the Member ('the Nomination') and the Trustee shall, subject to the following, pay any benefit arising pursuant to Sub Rule F.1 according to the Nomination.

              (b)      A Nomination will, unless it provides otherwise, be wholly revoked by the subsequent marriage of the Member.

              (c)      A Nomination shall be deemed to be revoked wholly or partially, as the case may be, in respect of any Dependant who predeceases the member, a former spouse (except by reason of the death of the member) or person who is no longer a Dependant or by any express notice in writing to the Trustee to that effect and shall be deemed to be wholly revoked by any subsequent Nomination.

              (d)      Where:

                        (i)         no Nomination has been made;

                       (ii)        a Nomination is wholly or partly revoked, or otherwise ineffective;

            the Trustee shall pay any benefit arising pursuant to Sub Rule F.1, or that part which related to the partial revocation of the Nomination, to the Legal Personal Representative of the member where one has been appointed.

G.2      Dependant

            In any other case the Trustee shall pay or apply the benefits payable in accordance with this Deed and the Rules to or for the benefit of such one or more Dependants (including his Nominated Beneficiaries) of the deceased Member and in such shares and proportions and in such manner as the Trustee in its discretion determines."

6                     In relation to the construction of that deed, given the nomination that had occurred, Merkel J had this to say in respect of a nomination (at 569):

"Under the Deed the Trustee has no discretion in respect of the payment of a death benefit under cl G unless there is no valid or effective nomination and no legal personal representative of a deceased person:  see cl G.1(d).

Even in those circumstances the death benefit is only payable to such of the dependants of the deceased member as the Trustee determined.  Accordingly, on any view the statement in the nomination form that the trustee had a discretion as to benefit was quite inaccurate."

Ms Piscioneri seeks, in effect, to contest this conclusion.  The essence of what she ultimately is seeking for the infants is some participation by them as "dependants" in the death benefits in question. 

7                     Given that Merkel J concluded that the trustee and the Tribunal proceeded on a series of errors of law and misconceptions (not the least of which was the standing of Ms Piscioneri to complain to the Tribunal) such that some matters had not been considered by the Tribunal that it was bound to consider, his Honour remitted the matter to the Tribunal.  His Honour observed (at 581):

"I am concerned that the Trustee, the Tribunal and the parties have not really considered the proper operation of cl G of the Deed in light of all of the facts or material which they might have wished to adduce in evidence.  I would not wish to preclude that opportunity, which might put a different complexion on the material previously acted upon by the Tribunal, by any order I make."

On the remitter the Tribunal held that the applicant had no standing to lodge a complaint under the Act - the applicants not having an interest in Mr Collins' death benefits for the purposes of s 15 of the Act.  It went on to say in its reasons (at p 6):

"Even if the Tribunal had determined that the Complainant had standing, it would be obliged to affirm the decision of the Trustee as fair and reasonable in its operation in relation to the Complainants under s 37(6) because the Trustee had made the only decision open to it as a matter of law."

8                     It is in my view astonishing that the applicant has felt able to propound a contrary view.  The relevant provisions of the trust deed relating to the trustee's obligation to make payments of benefits on death is cl G which I have previously set out.  Despite Merkel J's ruling, Ms Piscioneri seeks to have cl G construed in the following fashion.  Having regard to the provisions of cl G.2 in which "in any other case" a trustee is provided a discretion, she contends that the clause clearly and unmistakably gives a trustee a discretion as to which dependants of the deceased member should get benefits and in what proportions notwithstanding the nomination made by Mr Collins.  The trustee is not bound, so she submits, to apply the nomination form even though it should take it into account.  Of course the provision read in its entirety is quite to the contrary and, in my view, her argument is not only untenable, it borders on the mischievous.  A trustee under the provisions of the clause is obliged, where a nomination of the entire benefit has been fully made, to pay the benefits to the persons nominated.  The trustee is without choice or discretion in the matter.  It is only in circumstances where the proper destination of the benefits in question is not determined by operation of the terms of the instrument itself or by cl G.1 that the discretion in cl G.2 becomes operative.

9                     As the trustee in the circumstances did not have a discretion to pay other than in accordance with Mr Collins’ nomination, Ms Piscioneri clearly had no standing to make the complaint.  The infants had no “interest in the benefits”:  the Act, s 15.  It was, in my view, reasonably apparent from the decision of Merkel J that such was the case at the time.  Since Merkel J gave his decision no relevant circumstance has transpired up until the time of the second Tribunal decision to change that state of affairs.  Merkel J's decision in this matter is not clearly wrong.  In consequence I would apply the comity principle in following it.  In any event I am of the view that it is clearly correct.  In the circumstances I would dismiss the application if that was the sole ground for appeal to this Court. 

10                  Ms Piscioneri however raised a new ground in her submissions.  It is this.  At page 7 of its reasons for decision dated 27 October 1997, the Tribunal noted:

“The Tribunal has given the parties the opportunity to make further submissions before this Review Meeting.”

The meeting was apparently scheduled for 18 October.  The Tribunal went on:

“The Complainants’ submissions arrived at the Tribunal too late for distribution and consideration at this review meeting [sic].”

The only inference that can be drawn from the Tribunal's reasons is that it clearly failed to consider those submissions.  Notwithstanding that they arrived a day after the date prescribed by the Tribunal, they were with the Tribunal, to its knowledge, long before it made its "Determination in writing":  see s 37(3) of the Act.

11                  In these circumstances, it clearly acted quite improperly and has denied procedural fairness to the applicant.  The Tribunal was not functus officio when the submissions were received:  cf Semuningus v Minister for Immigration & Multicultural Affairs [1999] FCA 422.  It is astonishing, in my view, that the Tribunal acted as it did.  This said, when one has regard to the content of the submissions themselves, little purpose would be served in setting aside the Tribunal's decision for the purpose of its again redetermining the matter.

12                  The submissions, which are contained in the Appeal Book, go to no issue that was properly before the Court on the matter that was remitted to it. They amount to no more than criticisms of the trustee.  In any event, for the reasons I have previously given, any remitter would be futile. Accordingly, the orders of the Court will be:

1.         I will grant an extension of time to file and serve the Notice of Appeal.

2.         I will grant leave to amend the Notice of Appeal, so as to add denial of procedural fairness as a ground.

3.                  I will dismiss the application with costs.

13                  I would add by way of postscript that whatever advantage Ms Piscioneri seeks to obtain from Mr Collins’ estate for the benefit of her two children, her prosecution of a claim under the Act has been quite misconceived.  Her persistence in it gives reason for pause.

Associate:

Dated:              15 March 2000