Collins v AMP Superannuation Limited

THE APPLICATION FOR EXTENSION OF TIME 1 This is an application for an extension of time in which to file and serve a notice of appeal from a judgment of Finn J, given on 8 March 2000: Collins v AMP Superannuation Ltd [2000] FCA 290. His Honour granted the present applicants an extension of time in which to file and serve an appeal against a decision of the Superannuation Complaints Tribunal ("the Tribunal"), given on 27 October 1997. Nonetheless, Finn J dismissed the appeal. 2 The effect of Finn J's orders was to leave in place the determination of the Tribunal. By that determination, the Tribunal dismissed complaints made by the applicants concerning a decision made by the first respondent ("the Trustee") as trustee of the Maritime Officers Superannuation Fund. The Tribunal took this course on the ground that the applicants lacked standing under the Superannuation (Resolution of Complaints) Act 1993 (Cth) ("the Complaints Act") to make a complaint to it. 3 To understand the current application for an extension of time, some background information is necessary. Rodney Collins ("the deceased") died on 19 June 1994. At the date of his death, the deceased had four children. Two were adult sons from a marriage which had been dissolved. They are the second respondents to the current application. The other two children were infant daughters who were born at a time when the deceased was in a de facto relationship. The daughters are the applicants, who proceed by their next friend, their mother. 4 The deceased was a member of a plan established under the AMP Master Plan Group Deed ("the Deed") made on 1 February 1990. On the deceased's death, a benefit of approximately $181,000 was payable by the Trustee under the plan. Each of the deceased's four children was a "Dependant" for the purposes of the plan. 5 Prior to his death, the deceased nominated his two adult sons as beneficiaries in respect of any benefit payable upon his death. The Trustee decided that, under the Deed, as amended, the two nominated beneficiaries were entitled to the death benefit to the exclusion of the two other children. 6 The applicants lodged a complaint with the Tribunal, pursuant to s 14 of the Complaints Act. The substance of the complaint was that the Trustee had acted unfairly and unreasonably in excluding the two infant daughters of the deceased from any entitlement to the death benefit: Complaints Act, s 14(2). 7 On 13 November 1996, the Tribunal upheld the complaint and determined that: · the nomination by the deceased of his two sons as the beneficiaries entitled to his death benefit was invalid, and; · accordingly, the death benefit was payable under the plan to the legal personal representative of the deceased, being his former wife. 8 The Trustee then appealed to the Federal Court against the determination of the Tribunal on a question of law, pursuant to s 46 of the Complaints Act. The Trustee contended that the Tribunal had erred in law in concluding that the nomination was invalid and, in any event, challenged the standing of the daughters to make a complaint under the Complaints Act. 9 Merkel J upheld the Trustee's appeal: Collins v AMP Superannuation Ltd (1997) 75 FCR 565. His Honour held that the Tribunal had erred in law in a number of respects. The errors included taking into account amendments to the Deed that had come into force only after the deceased's death and in failing to consider the question of the standing of the two daughters to make a complaint to the Tribunal. 10 Significantly for the purposes of the present application, Merkel J held that the Tribunal had erred in law by failing to give effect to the nomination form executed by the deceased. According to his Honour, the Deed, as a matter of construction, gave the Trustee no discretion as to the distribution of the death benefit unless the nominations were revoked or were otherwise ineffective. Since the nomination form had not been revoked and was not otherwise ineffective, the decision of the Trustee to pay the death benefit to the two sons of the deceased was the only decision open to it. In these circumstances, as a matter of construction of the Complaints Act, the Tribunal was obliged to affirm the decision as fair and reasonable. In the result, Merkel J set aside the decision and remitted the matter to the Tribunal to be determined in accordance with law. His Honour's reasons made it clear that it was to be open to the Tribunal to consider the standing of the daughters to lodge their complaint. 11 In the course of argument on this application, there was some discussion about the purpose of Merkel J's order remitting the matter to the Tribunal, having regard to the conclusions of law reached by his Honour. Mr Crowe, who appeared on behalf of the Trustee, suggested that one reason was to give the applicants an opportunity to adduce further material relevant to the validity of the nomination made by the deceased. In the event, the applicants adduced no further material before the Tribunal bearing on this question. 12 The Tribunal, on the remittal of the proceedings, concluded (consistently with Merkel J's judgment) that the deceased's nomination of his two sons as beneficiaries had been valid. It followed that the Trustee's decision to pay the death benefit to the two sons was the only decision open to it as a matter of law. 13 The Tribunal also found that the complainant, acting on behalf of the deceased's two daughters, lacked standing to lodge a complaint under s 14 of the Complaints Act. It therefore dismissed the complaint for want of standing. The Tribunal pointed out in its reasons that, even if it had found that the daughters had standing to lodge a complaint, it would have been obliged to affirm the decision of the Trustee as fair and reasonable, since that decision was the only one open. 14 As we have already noted, Finn J granted the applicants an extension of time in which to file and serve an appeal against the Tribunal's decision, but his Honour dismissed the appeal. His Honour observed that it was "astonishing" that the applicants, by their next friend, had challenged Merkel J's view as to the construction of the Deed (at [8]-[9]). He thought that Merkel J's view was clearly right. He also thought that Merkel J's opinion that the applicants lacked standing was clearly right. 15 Notwithstanding these views, Finn J considered that the Tribunal had failed to accord procedural fairness to the applicants because it had not taken into account certain submissions made by them. Those submissions, however, had not gone to any issue properly before the Court and his Honour concluded that they amounted merely to criticisms of the Trustee. Since a further remittal to the Tribunal would have been futile, his Honour dismissed the appeal. 16 Federal Court Rules, O 52 r 15(2) empowers the Court "for special reasons" to grant leave at any time to file and serve a notice of appeal. The well known principles governing the exercise of this power were stated by the Full Court in Jess v Scott (1986) 12 FCR 187, at 195. There is no need to repeat the principles here. 17 The fundamental difficulty facing the applicants, in our view, is that there is no reasonable prospect of any appeal from Finn J succeeding. The proposed notice of appeal does not identify with any clarity the errors said to have been made by Finn J. In any event, an appeal could not achieve any result of practical benefit to the applicants unless they were able to show that Merkel J had been wrong in his construction of the Deed or of the Complaints Act. Finn J thought that Merkel J's construction was plainly correct and we share that view. Any appeal would therefore be futile. 18 We should add that, in the course of oral submissions, Ms Piscioneri (who appeared as the next friend of the applicants) referred to the written submissions which Finn J said the Tribunal had not taken into account. In our opinion, those written submissions do not take the matter any further. As we have noted, Finn J characterised those submissions as mere criticisms of the Trustee and expressed the opinion that they were not relevant to any of the issues that the Tribunal had to decide. Nothing has been said that suggests that Finn J was incorrect in so characterising the submissions. 19 It is perhaps understandable that the applicants should wish to criticise the manner in which the Trustee discharged its responsibilities under the Deed, in particular the use of a nomination form that, in certain respects, was misleading. That issue was, however, addressed fully by Merkel J in his reasons and provided the basis for the costs order against the Trustee. The criticisms made by the applicants in their written submissions simply do not address the issues that the Tribunal had to determine in dealing with the matter conformably with the orders made by Merkel J. 20 We should add one further observation. Although the point was not taken before Finn J, even if the applicants had an arguable case on the issue of construction of the Deed and of the Act, they would appear to be precluded from relying on it in these proceedings by reason of the principle of issue estoppel. It must be remembered that the applicants did not appeal from the judgment of Merkel J. His Honour decided that the Trustee had no choice but to give effect to the deceased's nomination of beneficiaries and that the Tribunal had been wrong in overturning the Trustee's decision. These holdings would seem to have been the legal foundation for the orders made by his Honour. 21 In Blair v Curran (1939) 62 CLR 464, at 532, Dixon J stated that issue estoppel arises where: "for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied, the existence of which is a matter necessarily decided by the prior judgment, decree or order." See also Rogers v The Queen (1994) 181 CLR 251, at 261-262, per Brennan J. In the circumstances identified in Blair v Curran, the person adversely affected by the decision is prevented from reagitating the same legal issues in later proceedings between the same parties. It is not easy to see why those principles would not apply in the present case. 22 In our opinion, the application for an extension of time should be dismissed.