FEDERAL COURT OF AUSTRALIA

Rushton v Commonwealth Superannuation Corporation [2020] FCA 777

ORDERS

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 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.

REASONS FOR JUDGMENT

GRIFFITHS J:

1    These reasons for judgment concern a notice of objection to competency and an interlocutory application, both filed by the first respondent, in respect of a notice of appeal filed on 24 December 2019. The interlocutory application seeks an order dismissing the proceeding under s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and/or r 26.01 of the Federal Court Rules 2011(Cth) (2011 FCRs). In the alternative, an order is sought that the proceeding be permanently stayed pursuant to s 23 of the FCA Act and/or r 1.32 of the 2011 FCRs. In the further alternative, an order is sought that the originating application be struck out pursuant to s 23 of the FCA Act and/or r 1.32 of the 2011 FCRs.

2    For the reasons that follow, the objection to competency will be dismissed, but the originating application in the form of the notice of appeal will be struck out. The applicant will be given an opportunity to file an amended notice of appeal within three weeks hereof, which should also join his three children as respondents to the proceeding.

Procedural history of the proceeding

3    By a notice of appeal filed on 24 December 2019, the applicant appealed from a decision dated 4 December 2019 of the Australian Financial Complaints Authority (Authority).

(a) The Authority’s determination and reasons

4    The central issue was whether the trustee’s decisions were fair and reasonable in all the circumstances. There were two decisions of the trustee under the Trust Deed relating to the Public Sector Superannuation Scheme (PSSS) which were reviewed by the Authority. The first is a decision dated 13 October 2016 in which the trustee set aside an earlier decision and decided that the applicant did not meet the definition of spouse under the Rules for the Administration of the Superannuation Scheme (Rules), which are a Schedule to the PSSS Trust Deed. The second decision is that dated 13 December 2017, in which the trustee rejected the applicant’s request to reconsider the 13 October 2016 decision.

5    At the heart of the matter is the definition of “spouse” in the Rules relating to the PSSS. The Rules contained two relevant definitions in r 1.2.1 concerning the related expressions “spouse” and “marital or couple relationship” respectively. It is convenient to set out the relevant parts of those definitions (emphasis in original):

6    For completeness, it might be noted that, following the enactment of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), the PSSS Trust Deed was amended by the Superannuation Amendment (PSS Trust Deed) Instrument 2018, which commenced on 5 June 2018. One of the amendments was to add the following statement at the end of the definition of “marital or couple relationship”:

Despite the definition of “spouse” in Rule 1.2.1, the reference to spouse in this definition is a reference to spouse within the meaning of section 2CA of the Acts Interpretation Act 1901.

Section 2CA was inserted into the Acts Interpretation Act 1901 (Cth) on 9 December 2017 and provides that, for the purposes of an Act, a person is the spouse of another person (whether or not of the same sex) if the person is legally married to the other person.

7    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.

8    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.

9     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.

10    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.

11    As will shortly emerge, it is apparent that the applicant provided various submissions and other material in support of his claims to the various decision-makers, but copies of some of that material was not put in evidence before the Court. In particular and as elaborated on below, it should be noted that some of the material which the applicant provided to the trustee in support of his reconsideration request dated 3 April 2017 was not in evidence. More significantly, as will emerge, the trustee did not refer to some of the applicant’s material when the applicant’s reconsideration request was rejected on 13 December 2017.

(b) The notice of appeal

12    The notice of appeal totals 19 pages. It was said to have been prepared by “Lord of the Chancery”. It is patent that it was not prepared by a legal practitioner. The document is prolix and discursive. It purports to identify five questions of law, but none is stated with any clarity or certainty. It is evident, however, from the introductory parts of the document, that the burden of the appeal relates to the Authority’s decision that the applicant did not satisfy the definition of “spouse” as defined in the Rules.

13    As filed, the notice of appeal identifies the applicant as Ben Anthony Rushton, the first respondent as the Commonwealth Superannuation Corporation, the second respondent as the Trustee of the Public Sector Superannuation Scheme and the third respondent as the Registrar of the Australian Financial Complaints Authority. The notice of appeal also identifies as a cross-claimant the “Lord of the Chancery”. On the penultimate page of the notice of appeal, there is a stamp or seal which bears the following words: “OFFICE of the GENERAL EXECUTOR” and below those words appear the following words “RUSHTON, Ben Anthony, Estate”. The notice of appeal is signed with a thumb print and the words “Ben-Anthony” have been handwritten over the thumb print. Below the thumb print it is stated:

His Lordship :Ben-Anthony: Von Rushton, in rerum natura, jus in personarum, equitable beneficial interest entitlement holder, without prejudice in formal equity, ex officio jus soli subject of the Queen, making a special visitation before court. Exo. 18:21, 2 Tim. 2:19.

Minister for Our Lord’s Kingdom of Heaven, Beneficent Bond-servant for God and Christ. 1 Cor. 7:22-23 Jam. 1:1, Col. 3:17, Mat. 6:9-13.

14    The notice of appeal identifies several findings of fact which the Court is asked to make. The so-called facts are described in such a rambling and uninformative manner that it is impossible to identify with any confidence precisely what findings of fact are sought.

15    In the section of the notice of appeal relating to “orders sought”, there are references to a “‘declaratory order’ of Judicial Review (common law and statutory right) subject to the Administrative Decisions (Judicial Review) Act 1977”, the inherent jurisdiction of the Court, an order “declaring the Aggrieved party widowed dependant spouse’s right as the matrimonial legal usufruct and formal equitable beneficial interest ‘security entitlement’ [UCC § 8-102.(17)] holder with inalienable, natural and common law fundamental rights and freedoms subject to this Commonwealth of Australia Constitution Act, 1900…”. An order is sought for “‘full and adequate compensation’ awarded to the Aggrieved party for unlawful tortious common law trespass, interference with one’s property, rights, breach of the aggrieved party’s binding signed privity of estate contract, economic duress, acquisition of property on unjust terms… false and misleading claims…”. An order is also sought for “reinstatement, relief, remedy, restitution, damages and discharge or other order as the court considers appropriate for the “administration of justice”, as that may be affected by the violation of constitutional rights and freedoms to do natural justice for the Aggrieved party”. It is impossible to make any sense of the orders sought.

16    Another section of the notice of appeal identifies the grounds relied on. That material is approximately two pages in length. Again it is impossible to make any sense of what is written there other than to note, strangely, that there are references to relief under both the Administrative Decisions (Judicial Review) Act 1977 (Cth) as well as ss 33 and 39B(1A)(c) of the Judiciary Act 1903 (Cth).

(c) Case management and related matters

17    On 17 February 2020, the first respondent filed the notice of objection to competency. On 25 February 2020, the first respondent filed the interlocutory application which is outlined above.

18    The matter came before the Court for a first case management hearing on 25 February 2020. A person who identified himself as “Ben Anthony” announced his appearance as the applicant’s “agent”. Although he was asked several times by the Court to confirm or deny whether he was in fact the applicant the person refused to identify himself as the applicant. The person informed the Court that he was not a legal practitioner. After several unsuccessful attempts to have the person state unambiguously whether or not he was the applicant, the Court put the person on notice that unless it received an unequivocal answer to that simple question, the case management hearing would be adjourned and the applicant would be ordered to pay the respondents’ costs. The person persisted in neither confirming nor denying that he was the applicant, thus orders were made as foreshadowed.

19    The matter next came before the Court for another case management hearing held by telephone on 31 March 2020. Prior to that hearing taking place, the applicant filed a statement of the orders which he sought at that case management hearing. I shall set that document out in full, apart from redacting the applicant’s stated email and postal address (for convenience, the footer on the first page has been moved to the end of the document).

1.    A declaratory order of Judicial Review (common law and statutory right) subject to the Administrative Decisions (Judicial Review) Act 1977, sect. 16, invoking the 'inherent jurisdiction' of the proper court of law (not a statutory administrative inferior court) seeking the 'administration of justice' for the automatic 'entitlement to relief from an injustice' to have the ‘ultra vires (beyond power) act of the Superannuation determination decision of the AUSTRALIAN FINANCIAL COMPLAINTS AUTHORITY, ABN 38 620 494 340 (SUPERANNUATION COMPLAINTS TRIBUNAL) for case number 608382 dated 04/12/2019 quashed or set-aside as a matter of right (ex debito justiciae) as null and void from the beginning with due regard ‘declaring the rights’ of the Aggrieved party married spouse in law or suspend the operation of the decision from the beginning subject to the Administrative Decisions (Judicial Review) Act 1977, sect. 15 without more ado.

Authorities: In Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399 at paragraph 89, Kirby J. said that the declaration's development (declaratory order) "is one of the most important and beneficial adventures in the “administration of justice” during this century."

In R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, at p.253 Evatt J said: “In these circumstances, it is obvious that the applicant had made a "prima facie case" within the meaning of the proviso… For some reason which is very difficult to understand, still less accept, the Tribunal seems to have entertained a contrary opinion.”

Commonwealth of Australia v Davis Samuel Pty Limited and Ors (No 11) [2017] ACTSC 2, Refshauge J at [103-110]; Craig v South Australia [1995] HCA 58; 184 CLR 163; Anlaby v Praetorius at 768-9; Craig v Kanssen (1943) KB 256 at 259; Bellinger v Bellinger [2003] UKHL 21; Deuteronomy 10:18, 27:19.

2.    An order declaring the Aggrieved party widowed dependant Spouse’s right as the matrimonial legal usufruct and formal equitable beneficial interest ‘security entitlement’ [U.C.C. § 8-102. (17)] holder with inalienable, natural, and common law fundamental rights and freedoms subject to this Commonwealth of Australia Constitution Act, 1900 [63 & 64 Vict.] (U.K./P.G.A.), sect. 51, (xxi.) as defined in The Annotated Constitution of the Australian Commonwealth, sect. 51 (xxi.) § 200. Marriage, with the Aggrieved party being the eligible beneficiary entitled to receive the reversionary ‘Spouse Benefit pension under the Superannuation Act 1990’ in full with backdated claim entitlement payments to the date of abrogation for the releif of the Aggrieved party beneficiary, from the superannuation fund of the deceased estate of his wife Kelli Maree RUSHTON (nee DICKERSON) as a matter of right (ex debito justiciae) subject to the Administrative Decisions (Judicial Review) Act 1977, sect. 16 or alternatively an order or constitutional writ of mandamus to the COMMONWEALTH SUPERANNUATION CORPORATION (ABN 48 882 817 243) to reinstate the initial contract terms and conditions of the approved aggrieved widowed dependant Spouse’s right as the eligible beneficiary entitled to receive the reversionary ‘Spouse Benefit pension under the Superannuation Act 1990’ in full with backdated claim entitlement payments to the date of abrogation for the releif of the Aggrieved party, under sect. 33 (Mandamus Prohibition Ouster of office) and 39B(1A)(c) (Original jurisdiction) of the Judiciary Act 1903 (Cth) that re-enacts sect. 75(v) of the Commonwealth of Australia Constitution Act, 1900 [63 & 64 Vict.] (U.K./P.G.A.).

Authorities: R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, at p.253; Deuteronomy 10:18, 27:19.

3.    Such further order defined by the High Court of Australia as 'full and adequate compensation' awarded to the Aggrieved party for unlawful tortious common law trespass, interference with one’s property, rights, breach of the Aggrieved party beneficiary binding signed privity of estate contract, economic duress, acquisition of property on unjust terms under s.49c of the Australian Human Rights Commission Act 1986 and sect. 51 (xii), (xvi), (xx), (xxi), (xxii), and (xxiiiA), 75(v), 80, 109, 116, 117, inter alia of the Commonwealth of Australia Constitution Act, 1900 [63 & 64 Vict.] (U.K./P.G.A.) as the Respondent Trustee false and misleading claims have caused harm to the Aggrieved party beneficiary rights, reputation and continues to inflict ongoing physiological and insidious emotional distress, emotional trauma, mental anguish, pain, suffering causing homelessness, an alleged financial debt that is hereby disputed [15 U.S. Code § 1692g(b) – Validation of debt], in harmony with ‘the principles of customary (common) law and formal equity, including the law merchant, also causing distress, hardship, loss, defamation and slander of character, insult and humiliation of the Aggrieved party beneficiary by the Respondent Trustee arbitrary and capricious interpretation of the laws of the Commonwealth with the dolus malus, ultra vires (beyond power) unfair and unconscionable breach of binding contracts, commercial securities [U.C.C. § 8-102. (4)] fraud and corporations law decision “to which it gives rise by implication of the common law is to pay monetary compensation to the other (Aggrieved) party for the loss sustained by him in consequence of the breach.”

Authorities: Photo Production Ltd v Securicor Transport Ltd [1980] 2 WLR. 283; AC 827, UKHL; State of New South Wales v Ibbett [2006] HCA 57; (2006) 81 ALJR 427 at [33]; Morro, N & Ahadizad v Australian Capital Territory [2009] ACTSC 118. at [52]; M. (A.) v. Ryan, 1997 (SCC), [1997] 1 S.C.R. 157 at [30][80] Trespass in common law equals an infringement or denial of a fundamental right or freedom; Universe Tankships v ITF [1983] 1 AC 366, at 385 per Lord Diplock “damages in tort.”; Luke 19:8, Lev. 7:1.

Lord Edmund-Davies in Morris v. Beardmore, at p. 461. “If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person's rights, particularly when the invader is a government official. The appellant is entitled to have his right of property vindicated by a substantial award of damages.”

In Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC at [79] “a plaintiff is no longer restricted to an action in damages based on the general law of civil liability. Thus, the government and its representatives are required to exercise their powers in good faith and to respect the “established and indisputable” laws that define the constitutional rights of individuals. Thus it is only in the event of conduct that is clearly wrong, in bad faith or an abuse of power that damages may be awarded.”

In Northern Territory of Australia v. Mengel (1995), 129 A.L.R. 1 (H.C.), Brennan J. wrote as follows, at p. 25: The tort is not limited to an abuse of office by exercise of a statutory power.” [25] “…it may, I think, now be accepted that the tort of abuse of public office will be made out in (Canada) where a public official is shown either to have exercised power for the specific purpose of injuring the plaintiff (i.e., to have acted in “bad faith in the sense of the exercise of public power for an improper or ulterior motive”) or to have acted “unlawfully with a mind of reckless indifference to the illegality of his act” and to the probability of injury to the plaintiff.” [30] “…intentionally exceeded his powers for the express purpose of interfering with a citizen’s economic interests.” Maxim: ‘According to the laws of nature, it is just that no one should be enriched by the detriment and injury of another.‘

Measure of damages in Proulx v. Quebec (Attorney General), [2001] 3 S.C.R. 9, 2001 SCC 66 at [58-60] Letarte J. “assessed the quantum of damages” for tort that included “Loss of earnings capacity: $814,347.86, Moral damages: $250,000.00, ordered the Attorney General of Quebec to pay that amount, plus interest and the additional indemnity provided by the Quebec Civil Code.”

4.    Such further order for reinstatement, relief, remedy, restitution, damages and discharge or other order as the court considers appropriate for the ‘administration of justice’, as that may be affected by the violation of constitutional rights and freedoms” to do natural justice for the Aggrieved party beneficiary.

Annexure: Short Minutes of Order

1.    Mandatory notice that all intermeddling Respondents immediately present, file and serve a higher priority usufructuary proof of claim in affidavit form and ‘exhibit the instrument’ [U.C.C. § 3-501(2)(i)] that is a ‘matter of fact’ public record “evidence that will prove a fact in a dispute” for compulsory judicial and administrative notice of official records (under section 144 and 158 of the Evidence Act 1995 (Cth)) alleged to cure by setting forth substantive evidence that the Aggrieved party beneficiary legal usufruct ‘does not satisfy the definition of spouse’, finalised in the form of sealed ‘divorce orders’ issued by the Family Court of Australia or Federal Circuit Court or sealed ‘certificate of divorce’, property or financial ‘settlement agreement’ in relation to the alleged legal or lawful divorce that allegedly dissolved or annulled the Aggrieved party matrimonial privity in estate, resulting trust and ‘bilateral signed consent binding matrimonial contract’, sealed ‘certificate of marriage’ being ‘prima facie proof evidence [U.C.C. § 1-307] that will prove a fact in a dispute’, ‘on the basis of evidence that has probative force’ of the nature of the valid material cause of action, verifiable ‘claim on which relief may be granted’ [28 U.S.C. § 1915(e)(2)] exists in law for the administration of justice and relief of the Aggrieved party beneficiary from the Trustee arbitrary and capricious interpretation of the law.

2.    By 4.00 pm on 21 April 2020, all intermeddling Respondents file and serve any higher priority usufructuary proof of claim in affidavit form and ‘exhibit the instrument’ [U.C.C. § 3-501(2)(i)] that is a ‘matter of fact’ public record ‘evidence that will prove a fact in a dispute for compulsory judicial and administrative notice of official records, limited to 12 pages.

3.    If Respondent[s] fail to file and serve a higher priority usufructuary proof of claim in affidavit form and ‘exhibit the instrument’ [U.C.C. § 3-501(2)(i)] that is a ‘matter of fact’ public record ‘evidence that will prove a fact in a dispute for compulsory judicial and administrative notice of official records by 4.00 pm on 21 April 2020 to cure, then as an operation of law, summary judgement admission of the formal equitable beneficial interest facts set forth in the Instrument by the Aggrieved party beneficiary through tacit assent and consent to the instrument that no bona fide, lawful, verifiable higher priority usufructuary claim exists and the whole matter shall be deemed res judicata and stare decisis, thereby comprising a ‘confession of judgment on the merits is warranted’ and Respondent[s] lawfully binding permanent and irrevocable estoppel by tacit acquiescence agreement and final orders may be made in Chambers and the appeal hearing vacated so as to alleviate the need for parties to attend.

4.    The matter be listed for a one day hearing on a date to be fixed after 21 April 2020 for the hearing of any Respondent[s] alleged higher priority usufructuary proof of claim in affidavit form and ‘exhibit the instrument’ [U.C.C. § 3-501(2)(i)] that is a ‘matter of fact’ public record ‘evidence that will prove a fact in a dispute for compulsory judicial and administrative notice of official records for the appeal.

Date: 26 March 2020.

20    The applicant’s document entitled “Orders Sought” was stamped with the same seal as was his notice of appeal.

21    Prior to the case management hearing on 31 March 2020, the first and third respondents filed brief submissions in which they identified the case management orders sought by them for the future conduct of the matter. The first respondent stated that the applicant had not yet appeared before the Court and that he should be required to do so before the matter progressed any further. It foreshadowed that if the applicant failed to appear at the scheduled telephone case management hearing on 31 March 2020, it would make an oral application that the proceeding be dismissed under rules 5.23 or 33.33 of the 2011 FCRs, with costs.

22    When the case management hearing was called on 31 March 2020, the applicant announced his appearance and identified himself as the applicant.

23    At the end of the case management hearing on 31 March 2020, the second respondent (Trustee of the Public Superannuation Scheme) was removed as a party to the proceeding as also was the cross-claimant (being “Lord of the Chancery”). It was also ordered that the question of the competency of the appeal, together with the interlocutory application, be heard and determined on the papers before the determination of the appeal. Orders were made for the applicant and the first and third respondents to file and serve any evidence and written submissions in relation to those matters. The name of the third respondent was updated to “The Australian Financial Complaints Authority”.

24    Subsequently, the first respondent filed and served two affidavits by Melanie Cameron McKean affirmed on 24 February 2020 and 21 April 2020 respectively. The first of those affidavits described the history of the matter leading up to the Authority’s decision. Various relevant documents were also annexed to the affidavit, including the applicant’s application form dated 24 April 2015 (which is headed “Spouse of a Deceased Pensioner – Reversionary pension application form”). In that form, the applicant said that he was married to the deceased at the time of her death but that they were not living together at that time because of illness, hospitalisation or long-term medical care. He said that the deceased was last admitted to hospital or a care facility on 29 March 2015 and that they had not been separated for more than 30 days.

25    Also annexed to Ms McKean’s first affidavit were copies of the delegate’s decision dated 1 May 2015, the deceased’s Will, a statement of reasons in respect of the trustee’s decision dated 13 October 2016, a 23 page set of submissions dated 3 April 2017 by the applicant, the couple’s certificate of marriage and the deceased’s death certificate, as well as a Centrelink document dated 20 April 2015 which recorded that the applicant had recently successfully claimed Carer’s Allowance for the care he provided to the deceased and that such an allowance had been granted to him for the period 16 February 2015 to 8 April 2015.

26    The statement of reasons in respect of the trustee’s decision dated 13 December 2017, in which the applicant’s reconsideration request was rejected on the ground that the evidence he had provided was “lacking in substance which was relevant” to the trustee’s decision, contains a reference to a “[s]upporting affidavit with attached documentation” dated 1 June 2017. This is a different document to the 23 page submissions dated 3 April 2017, which the applicant provided to the trustee in support of his request for reconsideration. Conspicuously, there is no reference in the decision dated 13 December 2017 to the body of any part of the submissions dated 3 April 2017, nor does the trustee say whether or not those submissions constituted “new evidence”.

27    The applicant’s affidavit dated 1 June 2017 was not included in the evidence adduced before the Court. The trustee concluded that the “information” provided did not meet the requirements of r 13.3.3 of the Rules. That rule required that the trustee must not proceed with a request for reconsideration that does not include new evidence or, if in the opinion of the trustee, the evidence included in the request does not support the grounds specified for the request.

28    Ms McKean’s first affidavit also attached a copy of the Authority’s determination dated 4 December 2019.

29    It is desirable to say something more about the applicant’s lengthy and somewhat turgid submissions dated 3 April 2017, which contained a section headed “Statement of Facts”. As mentioned, the submissions were provided in support of the applicant’s request dated 3 April 2017 that the trustee’s decision dated 13 October 2016 be reconsidered. The submissions are difficult to understand, but it is plain that they contained a claim (which was repeated more than once) by the applicant that the definition of “marital or couple relationship” was met in his case because he said that he had lived for at least 17 years with the deceased, including 9 years from their marriage date. He claimed at page 12 (and elsewhere) of the submissions that he had provided (emphasis in original):

…full-time home based care for the terminally ill (wheelchair and bedridden) disabled “substantially dependent” pensioner and their three children with the consent of the pensioner for the majority (22 out of 36 months) of “a continuous period of at least the last three years of the pensioners life on a “bona fide domestic basis” and (27 out of 36 months) by “mutual consent” for more than 15 hours per day, 7 days per week (living together for substantially more time than average spouses) to enable the pensioner to stay in the matrimonial family home with their three young children instead of being admitted to Clare Holland House.

30    The applicant also claimed that he continued to live in the matrimonial family home on a ““bona fide domestic basis”: caring for their three young children present for 24 hours a day during regular periods of hospitalisation of the pensioner”. The applicant referred to a Hospital Discharge Summary relating to the deceased’s hospitalisation in August 2014 and December 2014 to January 2015 (it is unclear whether a copy of that document was provided to the trustee).

31    Later, at page 15 of the submissions, the applicant challenged the proposition that he had not provided full-time daily care for the three children seven days per week in the matrimonial family home and 24 hours per day when his wife was regularly admitted to hospital. He referred to a letter written by Ruth Carter on 7 May 2015, whom he described as a social worker employed by Calvary Health Care ACT. Again, it is unclear whether a copy of that letter was provided to the trustee.

32    In his submissions, the applicant also challenged the proposition that on 13 November 2014 the deceased had not informed him that she wanted to relocate back to Canberra from Queensland with their three children. He said that he accepted that decision because his wife wanted to be closer to “their family for extra assistance and support”.

33    Ms McKean’s second affidavit annexed copies of ASIC searches concerning the third respondent.

34    The first respondent filed an outline of written submissions in the present proceeding. Neither the applicant nor the third respondent filed any additional evidence, nor did either provide an outline of written submissions in respect of the objection to competency or interlocutory application.

Consideration and determination

35    As noted, only the first respondent provided an outline of written submissions. To avoid adding unnecessarily to the length of these reasons, I will not summarise them here but will address them, where relevant, in explaining why the notice of objection to competency should be dismissed, but the interlocutory application upheld, at least in part.

(a) Objection to competency

36    The appeal is brought under s 1057(1) of the Corporations Act and rr 33.34 and 33.12 of the 2011 FCRs. Under s 1057(1), a “party to a superannuation complaint may appeal to the Federal Court, on a question of law, from AFCA’s determination of the complaint”. Rules 33.12(b) and (e) of the 2011 FCRs require the applicant to identify “the precise question or questions of law to be raised on the appeal” as well as “briefly but specifically, the grounds relied on in support of the relief or variations sought”.

37    As the first respondent pointed out, important guidance as to what constitutes a question of law is to be found in the Full Court’s decision in Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [62], which includes attention to the following matters:

(a)    whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form;

(b)    a question of law is not confined to jurisdictional error; and

(c)    the expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal”, should not be read as if the words “pure” or “only” qualified the expression “question of law”. Importantly, not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.

38    Further helpful guidance is provided by Abraham J’s judgment in Chen v Secretary, Department of Social Services (No 2) [2020] FCA 384 at [36], where her Honour emphasised the need to consider the notice of appeal, the alleged questions of law, the grounds raised, the statutory context and the reasons for decision appealed from in determining whether there is in fact a question of law. Her Honour also indicated that it was relevant to take into account if the applicant is unrepresented. I respectfully agree with that approach.

39    As I have explained above, it is impossible to divine any clear question of law from the five alleged questions of law in the notice of appeal. I accept the first respondent’s description of the notice of appeal as “impenetrable”.

40    It is important to note, however, that the first respondent, acting consistently with its status as a model litigant, acknowledged that there was “a possible question of law” which might be available, namely “whether AFCA erred in its application of the definition of spouse to the applicant (and therefore erred in upholding the first respondent’s decision as fair and reasonable)”. In accepting that there is such a possible question of law, I take into account that the applicant is not a legal practitioner, which may partly explain the numerous deficiencies and shortcomings in the existing notice of appeal.

41    As will shortly emerge, it will be necessary for the applicant to reformulate his notice of appeal and to clearly identify a question of law and related grounds of appeal.

42    Although the notice of objection to competency also included claims that the appeal is “frivolous, vexatious, or otherwise an abuse of the process of the Court” and that it had “no reasonable prospect of success”, these allegations were not developed in respect of the notice of objection to competency. Rather, they were developed in the context of the first respondent’s interlocutory application, to which I will now turn.

(b) The interlocutory application

43    The relevant principles applying to the application of s 31A(2) of the FCA Act and the particular 2011 FCRs relied upon by the first respondent are well established. They are to be found in authorities such as Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at [60] and C v Commonwealth of Australia [2015] FCAFC 113; 234 FCR 81 at [56]-[60]. The principles were helpfully summarised by McKerracher J in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 at [3]:

3.    Without reference to all the well-known authorities, the parties agree that it is well established that the Court may give judgment for a defending party in relation to the whole or any part of a proceeding where the Court is satisfied that the prosecuting party has no reasonable prospects of successfully prosecuting the proceeding or a part of the proceeding. Further:

•    the claim need not be hopeless or bound to fail for it to have no reasonable prospects of success: s 31A of the Federal Court Act;

•    a reasonable prospect of success is one which is real, not fanciful or merely arguable: Rogers v Assets Loan Co Pty Ltd (2008) 250 ALR 82 per Logan J (at [41]);

•    there will be no prospect of success in circumstances where there is a defect in the pleadings which cannot be cured: Ship “Sam Hawk” v Reiter Petroleum Ltd (2016) 246 FCR 337 per Kenny and Besanko JJ (at [269]);

•    s 31A is amenable to resolving straightforward questions of law: Luck v University of Southern Queensland [2008] FCA 1582 per Logan J (at [16]). However, summary judgment may still be appropriate if a question raised is of some complexity: SK Foods LP v SK Foods Australia (in liq) (No 3) (2013) 214 FCR 543 per Flick J (at [115]);

•    if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 per Gordon J (at [127]);

•    it is clear that the legislature’s intention in enacting s 31A was to lower the bar for obtaining summary judgment, including summary dismissal, below that fixed by previous authorities: Spencer v Commonwealth of Australia (2010) 241 CLR 118 per Hayne, Crennan, Kiefel and Bell JJ; Jefferson Ford per Gordon J (at [127]);

•    s 31A permits dismissal of a proceeding where an inquiry into the merits of the issues of law demonstrates the arguments are insufficiently strong to warrant the matter going to trial: McAleer v University of Western Australia (No 3) (2008) 171 FCR 499 per Siopis J (at [39] and the cases therein cited);

•    summary dismissal will not apply to ‘a real question of law that is serious, important or difficult, involves conflicting authority, or is apparently arguable yet novel’: Nichol v Discovery Africa Ltd (2016) 343 ALR 594 per Greenwood, McKerracher and Moshinsky JJ (at [134]);

•    the moving party bears the onus of persuading the Court the application has no reasonable prospects of success. The assessment of whether a proceeding has no reasonable prospects of success necessitates the making of a value judgement in the absence of a full and complete factual matrix and argument, with a result that the provision vests a discretion in the Court. That discretion includes whether to deal with the motion at once or at some later stage in the proceedings, when the legal and factual issues have been more clearly defined: Kimber v The Owners of Strata Plan No 48216 [2017] FCAFC 226 per Logan, Kerr and Farrell JJ (at [62]) quoting with approval Eliezer v University of Sydney (2015) 239 FCR 381 per Perry J (at [37]);

•    despite the threshold for summary dismissal having been lowered, it must still be exercised with caution. The power is not to be exercised lightly: Spencer v Commonwealth per Hayne, Crennan, Kiefel and Bell JJ (at [60]);

•    the Court does not, in such an application, conduct a ‘mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial’. Rather, it ‘requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial’: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 per Reeves J (at [46]); and

•    each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant facts and circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect materials available to the Court for considering the application, for example, where the pleadings have been exchanged, or discovery of documents has occurred: Cassimatis per Reeves J (at [46]).

44    As previously mentioned, the first respondent applies in the alternative under s 23 of the FCA Act and r 1.32 of the 2011 FCRs to have the originating application struck out. Those provisions empower the Court to make orders which the Court considers appropriate in the interests of justice. Presumably no reliance is placed upon r 16.21 of the 2011 FCRs (which confers a power on the Court to strike out pleadings) because the originating application in the present proceeding is not to be viewed as a “pleading”. I accept, however, that similar principles apply to the application of s 23 and r 1.32. In an appropriate case, all or part of an originating application may be struck out if, for example, it is unintelligible, ambiguous or vague, such that the other party is not given notice of the substance of a claim or fails to disclose a reasonable cause of action.

45    The powers under these provisions are discretionary and should only be exercised in a clear case and where it is necessary in the interests of justice to make the order (see John Holland Pty Ltd v Maritime Union [2009] FCA 437 at [60] per Graham J). Moreover, unless it would be futile, the Court will ordinarily grant leave to a party to replead those parts of a pleading which have been struck out, or even grant leave to file an entirely amended document (see Matheson Engineers Pty Ltd v El Raghy (1992) 37 FCR 6 at 10 per French J and Coshott v Kam Tou Mak [1998] FCA 147 per Wilcox J). An important difference between dismissing a proceeding under s 31A of the FCA Act and striking out part of a pleading is that the latter leaves the proceeding on foot.

46    In Quirk v Construction, Forestry, Mining and Energy Union [2017] FCA 1576, Perram J proceeded on the basis that the Court had a power to strike out parts of an originating application, in the form of an application for a rule to show cause. His Honour stated at [13] that he would proceed on the basis “that the strike out application raises no different issues to those raised by s 31A… because if the Applicants can survive s 31A they can survive a strike out application”. I respectfully agree with his Honour’s approach which recognises that the Court has a power to strike out parts or all of an originating application. His Honour’s additional observations concerning the relationship between s 31A and a strike out application reflect the particular circumstances of that case, which concerned the removal from office of two union officials on the basis of “gross misbehaviour”.

47    In Mulhern v Bank of Queensland [2015] FCA 44, Gleeson J helpfully summarised the relevant principles applicable to an application to strike out pleadings under r 16.21, which I gratefully adopt and apply as guiding principles in considering the application of s 23 of the FCA Act and r 1.3.2 of the 2011 FCRs:

53.    The power to strike out a pleading (in this case, the statement of claim) requires a consideration of the terms of that document. A pleading may be struck out if it is unintelligible, ambiguous or so vague that it fails to identify the material factual allegations to the extent that the other party is not given notice of the real substance of the claim: Priest v State of New South Wales [2006] NSWSC 12 at [34].

54.    It must be apparent on the face of the statement of claim that the facts pleaded, if proved, would establish the cause of action relied upon by the relevant plaintiff or plaintiffs. In Wride v Schulze [2004] FCAFC 216 at [25], a Full Court said:

…the pleadings must disclose a reasonable cause of action against the party against whom the cause of action is brought and must state all material facts necessary to establish that cause of action and the relief sought. A “reasonable cause of action"” for this purpose means one which has some chance of success if regard is had only to the allegations and the pleadings relied on by the applicant.

55.    The power to strike out a pleading because it discloses no reasonable cause of action will be exercised only in a plain and obvious case, where it is clear that no reasonable amendment can cure the alleged defect and there is no reasonable question to be tried: Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; (2012) 203 FCR 325 at [43].

56.    In contrast, an application for summary judgment requires consideration of matters outside the pleading: Takemoto v Moodys Investors Service Pty Ltd [2014] FCA 1081 at [4] and the cases there cited.

57    Both powers are to be exercised with caution.

48    The first respondent carries the burden of persuading the Court as to why any of the relief sought in its interlocutory application should be granted. As mentioned, the Court was not provided with copies of all the materials which were before either the trustee or the Authority when they made their relevant decisions. As matters stand at present, the Court is - unable to determine on the basis of the existing materials whether the applicant has no reasonable prospect of successfully prosecuting the proceeding, particularly in circumstances where the first respondent acknowledges that the proceeding presents a possible question of law concerning the meaning and application of “spouse” and the applicant will be given an opportunity to file an amended notice of appeal. In particular, noting the applicant’s claims in his 23 page submission relating to the care he provided to the deceased (which is not limited to his reliance upon his receipt of a Carer’s Allowance) and the material referred to therein in support of those claims, the Court is not in a position to determine whether or not he has no reasonable prospects of challenging the Authority’s determination that both decisions of the trustee were “fair and reasonable”. All the more so in circumstances where, as mentioned, the trustee made no reference in the 13 December 2017 decision to the applicant’s 23 page submission provided in support of his reconsideration request. It is difficult to see how the Authority could conclude that the refusal to conduct a reconsideration was “fair and reasonable” without knowing the trustee’s attitude to the claims raised in those submissions. It appears that the submissions were overlooked by the trustee in concluding that it was not satisfied that the requirements of r 13.3.3 of the Rules had been met. It is also worth reiterating that the applicant’s affidavit dated 1 June 2017 referred to in the 13 December 2017 decision was not provided to the Court.

49    For similar reasons, nor am I satisfied that the first respondent has established that the proceeding is frivolous or vexatious, discloses no reasonable cause of action or is an abuse of process.

50    For the reasons set out above concerning the impenetrability of the existing notice of appeal, I am satisfied, however, that the current notice of appeal is unintelligible, ambiguous and so vague that it fails currently to identify the real substance of the applicant’s claim. It should be struck out but the applicant should be given an opportunity to file and serve an amended notice of appeal within three weeks hereof, which properly identifies one or more questions of law and clearly sets out the grounds relied upon. The applicant needs to make plain whether he challenges the Authority’s findings in respect of both limbs of the relevant definition of spouse and on what grounds. For example, if he contends that the Authority erred in finding that it was insufficient that he provided care to his wife at and before her death, he should make that clear in the amended notice of appeal.

51    The amended notice of appeal must also conform with other relevant requirements pertaining to such an originating application. The applicant needs to take a much more disciplined and focussed approached than previously, or else any amended notice of appeal may be challenged along similar lines to the interlocutory application filed by the first respondent.

52    The applicant’s three children should be joined as respondents to the proceeding because their existing rights and interests are at risk if the applicant succeeds in the appeal. As they are all minors, appropriate steps will need to be taken to have them represented by one or more litigation representatives (see Div 9.6 of Pt 9 of the 2011 FCRs).

53    On the issue of costs, my tentative view is that there should be no order as to costs. That is because the first respondent failed in its notice of objection to competency and succeeded in respect of only part of its interlocutory application. If either party wishes to contend to the contrary on the question of costs, it should file and serve an outline of written submissions not exceeding three pages in length within five business days hereof. The other party should file an outline of written submissions 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 and without a further oral hearing. If neither party disputes order 5 within the stated time periods, order 5 will come into force. Appropriate orders will be made accordingly.

Associate:

Dated:    9 June 2020