Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107

170. It will be seen that there is here a simple factual conflict as well as a difference of medical opinion. Accepting, as I do, that the trustee is under no general obligation to search out material, I consider that an honest and fair examination of the application before it would have involved at least putting these conflicts to Dr Stewart with an invitation that he comment upon them as seemed appropriate. As I have mentioned, I consider too that the trustee should have brought to Mrs Flegeltaub's attention and sought her response to the suggestion that she was unreasonably refusing medication. But it is not necessary that I express any final view on this matter.

173. Returning to the chronology, the trustee on 11 May 1994 wrote to Mrs Flegeltaub that it had determined that her claim be denied. She was told that "the trustee will consider an appeal against this decision only if supported by additional information". No reasons were given in the letter for this refusal. This refusal of the application is the first determination the subject of attack in this proceeding.

177. Counsel for Mrs Flegeltaub contended that, notwithstanding the absence of reasons in the trustee's letter, it had provided reasons for its decision and had thereby waived its immunity and invited an examination and review by the court of their soundness. I was invited to conclude that the trustee had given reasons which were contained in the record of telephone conversation between Mrs Flegeltaub and the trustee of 21 February 1994, in the trustee's letter of 18 April 1994 in which it sought further information, and in its letter of 11 May 1994 in which she was told of the determination. I am unable to extract from these two letters anything in the nature of a reason for the May determination. The telephone record, likewise, contains no statement by the trustee of any reasons for a decision which had yet to be made. Any submission which depends upon reasons having been given for the May determination must, therefore, fail.

181. It was next put that the trustee in making the May determination addressed the wrong question. There is a total absence of any evidence of the mental process which led to the determination. There is nothing to be found in the minute of the committee meeting of 11 May 1994. Of the five members of the committee on that date, two, Terry Colin McCredden, the Chief Executive Officer of the trustee, and Ian Eric Pullar, its manager, Death and Invalidity Benefits, gave evidence. Neither of them had any recollection of the basis of the determination. Notwithstanding this, there is much to be said for the submission, put on behalf of Mrs Flegeltaub, that her claim was rejected because the committee accepted the opinions of Dr Stern and Dr Walton that she was unreasonably refusing medication which was likely to improve her condition to the point where she would be able to work. In my opinion this is the correct inference to be drawn because there is nothing in the material to warrant the rejection of the claim on any other basis. In my opinion, these medical opinions addressed the wrong question and the committee was led by them into error. The relevant question was not about whether her refusal of medication was unreasonable; it was about whether her unreasonable refusal was a deliberate act by her for the purpose of causing the benefit to be paid to her.

184. The matter may be looked at from another perspective. It was either accepted by the trustee or demonstrated beyond any doubt that Mrs Flegeltaub satisfied paragraphs (a) and (b) of the definition and that she did not fall within proviso (2). The only rational basis for the refusal of her application was, therefore, that her refusal of medication brought her within proviso (1). The material before the trustee, taken at its highest, shows that she refused medication which was prescribed by Dr D.W. Stewart in 1992, some 12 months before she ceased her employment with Telecom and that she ceased employment, not on her decision, but by the decision of Telecom. Her stated reason for her refusal in 1992 was her fear of dependency. In 1994 she was still refusing medication and giving the same reason. Neither Dr Walton nor Dr Stern asserted that she was not genuine in her asserted reason. Their position was that her asserted reason was without rational foundation. In my opinion, no person in the position of the trustee could, upon a due and proper consideration of this material, rationally conclude that she was a person unreasonably refusing medication from 1992 to May 1994 deliberately for the purpose of obtaining the total and permanent invalidity benefit in 1994. I infer from this that the May determination of the trustee miscarried and was of no effect.

188. Counsel for Mrs Flegeltaub argued that the May determination was ineffective because it was made, not by the trustee, but by its Level 2 Benefits Committee. The response put on behalf of the trustee was that the committee was an authorised delegate of the trustee and that, in any event, its decision was ratified by the trustee. Given the conclusion I have reached it is not necessary that I deal with this submission, but, in deference to the arguments presented and in case this proceeding may go further, I shall briefly set out my views on it.

191. Clause 1.4.4 authorises the trustee to delegate any power exercisable by it and any of its duties under the deed. Notwithstanding the contrary submission put on behalf of Mrs Flegeltaub, I would be prepared to accept that, under this deed of trust, a power to determine a member's entitlement to benefit is delegable. The instrument of delegation was in evidence as Exhibit 30. So far as is relevant for present purposes, it provides:

78 Definition of 'Total and Permanent Invalidity"

Agree with the Principal Employer, either generally or in any particular case, the definition of 'Total and Permanent Invalidity' where it is not to be as provided for in the definition.

Consider any information, evidence and advice provided to the Trustee by the Employer and other relevant information to determine:

(a) whether the Member has ceased to be an Employee and whether the Member is likely to ever engage in gainful work for which the Member is reasonably qualified; and (b) whether the existence or continuation of disablement is deliberate (including an unreasonable refusal to submit to treatment) for the purpose of causing a benefit to become or to continue to be payable from the Fund.

Level 1 Assessment Committee (in accordance with any policies approved by the Level 2 Assessment Committee); or Level 2 Assessment Committee. Level 2 Assessment Committee

195. The terms of the delegation, and of the instrument of delegation generally, show that the trustee has approached the task of delegation cautiously. Doubtless, it had in mind that the settlor and, perhaps, the members, expected it, rather than some administrator or other person, to exercise the important functions of considering and determining members' claims for benefits under the superannuation scheme.

198. The determination of Mrs Flegeltaub's benefit application such required the trustee to form a view upon the following questions:

(2) Whether the applicant's disability had had the result that she had been absent from all active work for a period of six months.

(3) Whether the applicant's disability had had the result that Telecom had required her to participate in a Rehabilitation Programme.

(4) Whether the applicant's disability had had the result that she had ceased to be an employee as defined in the deed.

(5) Whether the applicant's disability had had the result that she was unlikely ever to engage in any gainful work for which she is for the time being reasonably qualified by education, training or experience.

(6) Whether the disablement of the applicant was attributable to a material extent to deliberate action, including an unreasonable refusal to submit to treatment, for the purpose of causing a benefit to become payable from the fund.

(7) Whether the applicant who had been required by Telecom to participate in a Rehabilitation Programme had done so to the satisfaction of the trustee.

(8) Whether the trustee had agreed with Telecom not to insist upon the requirements referred to in questions (2), (3) and, possibly, (7).

(9) For the purpose of deciding questions (5) and (6) the trustee was required to consider what material other than that provided by Telecom was relevant.

210. The structure of item 78 of the instrument of delegation is first, to empower the Level 2 Assessment Committee to conclude an agreement with Telecom as to "the definition of Total and Permanent Invalidity where it is not to be as provided for in the definition". Two things need to be said about this delegation. The delegate is not described in exactly the terms of the Level 2 Benefits Committee, but it may be that this is a mere misdescription and of no significance. More significant is the subject matter of the delegation. What is meant by an agreement with Telecom "as to the definition of Total and Permanent Invalidity where it is not to be as provided for in the definition" in the trust deed? Is it intended that the Level 2 Assessment Committee may, with the concurrence of Telecom, modify the definition so that an applicant who would not otherwise be entitled to a benefit may obtain a benefit or that an applicant who is entitled to a benefit should be deprived of it? Is the applicant member to be consulted about such matters? The trustee is bound by the terms of the deed. It is not for it to agree with Telecom some basis for granting or withholding a benefit other than as is contained in the deed. That which it is not empowered itself to do cannot be delegated to another.

213. The second paragraph in item 78, by part (a) delegates certain functions to the Level 1 Assessment Committee in accordance with certain policies or, generally, to the Level 2 Assessment Committee. These functions, broadly but not precisely, cover questions (4) and (5) above. There is, however, even in these functions no power to determine the causal relationship between the applicant's disability and her ceasing to be an employee or her inability ever to engage in work. Furthermore, with respect to the latter matter, the burden of proof is changed. The definition requires the trustee to form an opinion that the applicant is unlikely to engage in specified work in the future; the delegate committee is to determine whether she is likely to engage in this work. This work which the member is or is not unlikely ever to engage in is not described in the delegation in terms of the definition. It follows from these disconformities between the delegated function and the function which the trustee must perform under the deed, that the determination by the delegate in terms of the delegation is not that which is entrusted by the deed to the trustee. Again, the trustee cannot delegate to another a function which the trustee itself is not empowered to perform. Furthermore, a determination by the delegate in terms of the delegated power does not satisfy the requirements of the deed.

216. The second paragraph in item 78, by paragraph (b), appears to be directed to proviso(1) of the definition which I have summarised in question (6). It delegates to the Level 2 Assessment Committee the functions there described. Again, these functions do not match the terms of the proviso, so that a determination by the delegate in the terms of the delegation does not discharge the trustee's obligation under the deed.

219. Those questions for the trustee which I have summarised in questions (1), (2), (7) and (9) are not at all the subject of delegation.

222. Finally, I have observed that the determination of an application for total and permanent invalidity benefits requires the trustee to form an "opinion" as to a number of matters and to be "satisfied" of one matter. The existence of this requirement has been relied upon, with some success, as the basis for the trustee's contention that its determination is the exercise of a discretionary power. This contention has earned for the trustee an exemption from scrutiny which might attend a non-discretionary determination. The instrument of delegation under item 78 makes no mention of this important component in the trustee's decision-making process. It seems that the delegate is not required or expected to form the opinion that is required of the trustee.

225. I am mindful of the fact that there is, in principle, much to be said for the position that the determination of the trustee under this deed to allow or to disallow a claim for total and permanent invalidity benefit is not a true exercise of discretion.[29] It is true that the trustee in making this determination is required by the trust deed to form an opinion upon certain matters. But it cannot be said, as a matter of logic or even common sense, that the trustee is entirely at large in forming the opinion. It is not, therefore, an "absolute and uncontrolled discretion" within the meaning of cl. 1.4.1 of the deed. The trustee is not entitled to make the decision perversely, arbitrarily, capriciously, wantonly, irresponsibly, mischievously or on some basis which is irrelevant to the sensible expectation of the settlor.[30] The duty of the trustee is, plainly, to make a decision on the correct question or questions and to do so in good faith and upon a real and genuine consideration of the material. The function of the trustee in the present case, in accordance with the terms of the trust deed, is to apply the facts as it finds them to a given standard: the specified incapacity for work. If the trustee's state of mind is such that the application of these facts to the standard produces the result that it has formed the opinion that the applicant for benefits satisfies that part of the definition for which an opinion is required, then, subject to the other parts of the definition, the trustee must pay the benefit.[31] This is a very different kind of decision from, for example, that involved in the investing of the trust fund[32] or from the decision of a trustee under a non-superannuation trust to pay the fund to a beneficiary [33] or to a selected member of a class of potential beneficiaries.[34]

228. Notwithstanding this, the cases to which I have referred in paragraph [16] above, make it clear that, even in a determination of the kind presently under consideration, the distinction between a trustee's decision that a fact exists and a trustee forming an opinion that a fact exists is of great legal significance. The omission of this component from item 78 of the instrument of delegation must therefore be fatal to its effectiveness for the purpose relied upon by the trustee.

231. I conclude that the determination of Mrs Flegeltaub's claim for benefits did not fall within the terms of the instrument of delegation. The May determination made by the Level 2 Benefits Committee is, therefore, ineffective on that ground.

234. Next, it was put that the May determination was, nonetheless, ratified by the trustee at the meeting of its board of directors on 22 June 1994. This argument was permitted by the amendment which I allowed very late in the trial, when the minute of this board meeting was discovered by the defendant. Among a number of items recorded in the minutes of this meeting is the following:

"17. Benefits Committee The minutes of the Committee meeting held on 11 May 1994 were noted and accepted."

Notwithstanding some argument to the contrary, I am satisfied that the committee here referred to is the Level 2 Benefits Committee. It was at that meeting that Mrs Flegeltaub's application was rejected.

239. The difficulty with the ratification argument is that the minute does not show that the May determination was in fact ratified. The minutes of the Level 2 Benefits Committee meeting were, as I have observed, terse indeed. A person reading them would have known nothing more than the court: that Mrs Flegeltaub's claim was for total and permanent invalidity benefits and that it was denied. An examination of the minutes of the board meeting of 22 June shows that three members of the Level 2 Benefits Committee of 11 May 1994 were then present: Mr Eric Alford, Mr David Pitt and Mr McCredden. Ian John Slack, who participated in the May determination, is shown as having been present on 22 June, but not for the relevant board agenda item. Nothing appears which suggests that any of the material before the Level 2 Benefits Committee was before the directors. The board minute does not suggest that the merits or otherwise of the rejected claim were known to others present or that the board considered them in any way.[35] Indeed, the terminology of the board minute, especially when compared with other minutes of that meeting, suggests the contrary. The committee minute was, it appears, noted and accepted. There is no evidence that the directors on 22 June gave any real consideration to the matters which were required for a determination of Mrs Flegeltaub's claim. Mere formal adoption of the invalid May determination is not sufficient. [36] There is no basis for me to conclude that the board adopted as its own act the determination of the Level 2 Benefits Committee, that it treated this determination as authorised or that it otherwise ratified the May determination.

242. In paragraph 14D of its amended defence the trustee also alleges three other acts of ratification. No leave was granted to rely upon these acts but, in fairness to the trustee, I will deal with them.

245. The first suggested act of ratification was the answer of the trustee to interrogatory 2(b) and (c), sworn on behalf of the trustee by Mr Slack on 16 February 1999. Interrogatory 2 and the answer of the trustee found their way into evidence through counsel for the plaintiff, apparently to deal with the remarkably evasive plea of the trustee in paragraph 10 of its defence. To the plaintiff's allegation that the trustee on 11 May 1994 "made a decision to reject the plaintiff's application", the defence, irrelevantly, admitted that on that date the trustee advised the plaintiff that it had determined that her claim was denied. Otherwise it did not admit the allegation. Interrogatory 2 fastens upon the determination referred to in the advice of 11 May 1994. The trustee now asserts that Mr Slack's answer amounts to an adoption by the trustee of the committee's determination, which determination it declined to admit. There is no substance in this contention.

248. The next alleged act of ratification is the trustee's letter of 11 May 1994 which I have referred to in paragraph [42] above. This is the letter in which Ms Schneider informed Mrs Flegeltaub that the trustee had determined that her claim be denied. Ms Schneider is, of course, not authorised to determine the claim nor to adopt it upon behalf of the trustee.

251. Finally, reliance is placed on the fact that the trustee, prior to December 1994 paid to Mrs Flegeltaub "her basis resignation benefit". There is, I think, little if any, evidence that any payment as alleged was made at that time. It was accepted by counsel that the trustee paid to her a withdrawal benefit, but the date of payment was not given. In any event, the payment of the withdrawal benefit cannot to my mind amount to the ratification asserted. I am not satisfied that ratification on any basis has been established by the trustee.

256. It will be recalled that in its letter of 11 May 1994 the trustee invited Mrs Flegeltaub to "appeal" against the May determination if she had additional information. The concept of appeal in this context raises difficulties. The deed does not contemplate an appeal. The appeal, it would seem, was to be to the trustee which had itself previously rejected the claim. The mention of additional information suggests that the letter intended Mrs Flegeltaub to understand that there was a right to a reconsideration of the claim if new material was produced. She had no information as to what material the trustee already had. Nothing was disclosed as to the matter to which the additional information might be directed or as to what material she was to add to what was presently available to the trustee. Notwithstanding this, Mrs Flegeltaub, through her solicitors, wrote to the trustee on 15 November 1994 seeking a review of the May determination. In support of this request they enclosed a further report of Dr D.W. Stewart dated 25 October 1994. The report, not surprisingly, does not address the question of her refusal of medication. Its tenor suggests that the writer believed, mistakenly, that the trustee had formed the view that she was not unable to return to work. Dr Stewart reiterated his opinion that this was not correct. He wrote as follows:

"In regard to future capacity for work. When I last saw Mrs Flegeltaub she was clearly unfit to work. Further I consider that she will remain permanently unfit to work in an area for which she is qualified or any other area. She is barely able to cope with the duties of managing a home and children and these will constitute considerable stresses for her for some years to come. When the time does come for Mrs Flegeltaub to be relieved of the responsibility of her family, I do not believe she will be in any fit state to work. She will be a chronically anxious obsessional phobic lady, considerably lacking the self confidence that would be needed for her to be employed. Regarding future medical treatment, she is probably going to require some help from time to time such as when the symptoms of depression or anxiety may become acute. However I think it unlikely that medical treatment will be available that would so change her that her capacity for employment outside the home would be restored."

260. It seems that in November 1994, the material before the Level 2 Benefits Committee in May 1994 together with the solicitors' letter and the further medical report were referred to the Level 1 Assessment Committee. It is not clear what decision this committee was authorised to make. Mr Pullar, however, on 24 November 1994 reported to Mr Alford and Mr Greg Schott, two directors of the trustee, that the Level 1 Assessment Committee was of opinion "that there is insufficient evidence to justify the Level 2 Benefits Committee reversing its decision" and that the appeal should therefore go directly to the next full board meeting on 13 December 1994. It appears from the instrument of delegation to which I have referred that the Level 1 Assessment Committee comprised at least two of the following, the manager, Death and Disability Benefits (Mr Pullar), the operations manager (Mr Slack) and the Chief Executive Officer (Mr McCredden). Notwithstanding this decision of the Level 1 Assessment Committee, it seems that the Level 2 Benefits Committee did consider the matter, for Mr McCredden reported to the board on 13 December that this committee did not wish to alter its earlier decision.

263. Mr Pullar also prepared a file summary. It is fair to say that this summary is not at all supportive of the review application. It is a short document, presented under six headings and concludes with the following comment and recommendation:

"COMMENT The information presented with the appeal does not add significantly to the claim as it was assessed in May 1994. RECOMMENDATION I recommend that the decision by the Level 2 Benefits Committee on 11th May to deny Mrs Flegeltaub's claim for the Total and Permanent Invalidity benefit from the Telecom Superannuation Scheme not be overturned."

267. These documents and most of those which were before the Level 2 Benefits Committee in May, were placed before the board on 13 December. On the very morning of the board meeting a further letter from Mrs Flegeltaub's solicitors was received, which enclosed a report from her general practitioner, Dr D.I. Stewart, dated 23 November 1994. Again, it is regrettable that this doctor's attention had not been directed to the matter which was troubling the trustee - the applicant's unreasonable refusal to take medication. Dr Stewart concluded his short report with a plea for compassion. He referred to the opinions of Dr D.W. Stewart and Dr Stern that she was totally and permanently incapacitated. This is evidently a reference to their reports dated respectively 28 September 1993 and 19 August 1993 to which I have referred in paragraph [36] and [37] above. It seems, however, that Dr D.I. Stewart was unaware of the further information obtained from Dr Stern and the opinions, of Dr Walton given in 1994. Writing of the two 1993 reports, Dr Stewart, said this:

"Evidently the Superannuation Board did not accept either opinion and obtained an opinion favourable to them from another psychiatrist. It is impossible to say that Mrs Flegeltaub will ever [sic. Perhaps this was intended to read "never".] work again as she could be forced back to work by financial circumstances. She now has five children. If it is the intention of the Superannuation Board for this to happen I think they lack even the most minute amount of compassion. I am certain however if this situation arises she will need long term psychiatric treatment."

271. The directors of the trustee were unmoved. The relevant minute of their meeting of 13 December 1994 is short and to the point:

13.2 Glenda Flegeltaub Mr Slack tabled a letter from Mrs Flegeltaub's solicitor together with a letter from a treating doctor which were received this morning. The Directors considered all the papers and unanimously resolved to deny a total and permanent invalidity benefit to Mrs Flegeltaub."

275. Mrs Flegeltaub was informed of this determination by letter dated 14 December 1994. No reasons were given other than that the trustee had all the medical and other reports before it.

279. Again, it was argued that this was a reasoned determination and that these reasons were examinable. In the case of the December determination the reasons were said to be contained in the letter of 14 December 1994 to which I have referred. Again, I do not think this is correct. All the trustee there says is that all of an unspecified number of unspecified reports and papers were before the trustee. Nothing is said as to the basis of the decision to deny the claim.

283. As with the May determination, there is little direct evidence of the question which the board considered on 13 December. Indeed, the matter is even more confused by the approach adopted by Mr Pullar in his file summary. He presented the case to the board as one as to whether the additional material warranted the overturning of the May determination.

286. It is, however, clear that nothing was before the board which would entitle them, any more than the Level 2 Benefits Committee in May, to conclude that Mrs Flegeltaub's refusal of medication was an unreasonable refusable made deliberately for the purpose of obtaining the benefit. For the reasons which I have already set out in my consideration of the May determination, the December determination, too, miscarried and is of no effect. I am satisfied that the board in December addressed the wrong question and that, on the material before it, no reasonable person could conclude that Mrs Flegeltaub's refusal of medication fell within the terms of proviso (1).

290. After the commencement of this proceeding the solicitors for Mrs Flegeltaub renewed their application to the trustee for it to review the decisions made in 1994. The trustee declined to reopen the matter. The plaintiff, therefore, seeks declarations and orders that its decision to refuse a review was in breach of one or other of its obligations as trustee. Having regard to the conclusions which I have reached, that the determinations in 1994 were invalid and ineffective, the significance of the trustee's refusal to reopen the matter in 1999 disappears. I shall say nothing further about it.

294. I have concluded that the trustee has not validly determined Mrs Flegeltaub's application for total and permanent invalidity benefits. The choice available to me now is to remit the question to the trustee for its consideration or to determine it myself after hearing further evidence or by a decision on the material as it now stands. As to the last course, this is not a case where I might summarily, as it were, substitute my decision for that of the trustee in 1994. This course is not open for a number of reasons including the fact that some five years have been permitted to elapse since the trustee considered her application. It may well be that the present situation is very different from that obtaining in 1994.

297. The cases show that the court may and will itself execute the trust and determine the entitlement of the claimant to a benefit where there is good reason to believe that the trustee would not itself do so[37] or where the material before the trustee was such that there could be no debate about the entitlement of the claimant.[38] I am not satisfied on the material before me that the trustee would not look again at Mrs Flegeltaub's application with an open mind and assess it in accordance with its lawful obligations as trustee which I have discussed. Furthermore, the regrettable passage of some five years since her cessation of employment may mean that the circumstances today are very different from those obtaining in 1994. These will have to be investigated by the decision-maker.[39] In those circumstances I will not myself entertain the application which, under the trust deed, is for the trustee itself to determine. I am persuaded that the proper course is for me to remit the question to the trustee for it to determine in accordance with the law.

1. Declare that the following decisions, determinations and resolutions were not an effectual exercise of the power of the defendant to determine the plaintiff's claim for total and permanent invalidity benefits pursuant to the Telstra Superannuation Scheme, namely:

(a) the determination of the Level 2 Benefits Committee of 11 May 1994;

(b) the resolution of the board of directors of the defendant of 22 June 1994;

(c) the resolution of the board of directors of the defendant of 13 December 1994.

2. Order that the declaration and order sought in paragraphs B, C and D of the plaintiff's statement of claim be refused.

3. Order that the question whether the plaintiff is entitled to a total and permanent invalidity benefit pursuant to the Telstra Superannuation Scheme be remitted to the defendant for determination in accordance with the trust deed.

4. Order that the defendant pay the costs of the plaintiff including reserved costs and the costs of transcribed notes.

[1] Australian Telecommunications Corporation Act 1989, s.3.

[3] A similar course was adopted by Hodgson J in Chammas v Harwood Nominees Pty Ltd (1993) 7 ANZ Ins Cas 61-175

[4] [1984] VicRp 13; [1984] VR 161.

[5] Esso Australia Ltd v Australian Petroleum Agents' and Distributors' Association (Unreported, SC (Vic), Hayne J, 5 October 1993, BC9300733) at pp.18-20; Asea Brown Boveri Superannuation Fund No.1 Pty Ltd v Asea Brown Boveri Pty Ltd [1999] 1 VR 144 at 155, per Beach J.

[6] [1984] VicRp 13; [1984] VR 161 at 164.

[7] [1994] VR 161 at 164.

[8] [1984] VicRp 13; [1984] VR 161 at 166.

[9] [1984] VicRp 13; [1984] VR 161 at 166.

[10] Unreported, SC (NSW), 4 April 1985, BC8500888.

[11] Meat Industry Employees Superannuation Fund Pty Ltd v Petrucelli (Unreported SC (Vic), Nathan J, 28 February 1992, BC9200730); Esso Australia Ltd v Australian Petroleum Agents' and Distributors Association (Unreported SC (Vic), Hayne J, 5 October 1993, BC9300733) at p. 18; Vidovic v Email Superannuation Pty Ltd (Unreported SC (NSW), Bryson J, 3 March 1995, BC9504297); Neskovski v Rogers (Unreported, SC (NSW), McLelland CJ, 12 May 1995, BC9504722); Tonkin v Western Mining Corp Ltd (Unreported SC (WA), Scott J, 31 May 1996, BC9602306); Muinos v Johnson and Johnson Retirement Benefits Ltd (Unreported SC (NSW), McClelland CJ, 5 December 1996, BC9605916); Tonkin v Western Mining Corporation Ltd (No 3) (Unreported, SC (WA), Scott J, 19 June 1997, BC9702687); Minehan v AGL Employees Superannuation Pty Ltd [1998] ACTSC 114; (1998) 134 ACTR 1; Asea Brown Boveri Superannuation Fund No.1 Pty Ltd v Asea Brown Boveri Pty Ltd [1999] 1 VR 144.

[12] Maciejewski v Telstra Super Pty Ltd [1999] NSWSC 341 at [13], per Windeyer J.

[13] Unreported, SC (NSW), 3 March 1995, BC9504297 at p.11.

[14] Unreported, SC (NSW), 20 July 1988, BC 8801719 at pp.15- 16.

[15] Minehan v AGL Employees Superannuation Pty Ltd [1998] ACTSC 114; (1998) 134 ACTR 1 at [55].

[16] Maciejewski v Telstra Super Pty Ltd [1999] NSWSC 341 at [13] - [14], per Windeyer J; Tonkin v Western Mining Corporation Ltd (unreported SC (WA), Scott J, 31 May 1996, BC9602306) at p.10

[17] Mettoy Pension Trustees Ltd v Evans [1990] 1 WLR 1587 at 1610, per Warner J.

[18] Re Beloved Wilkes' Charity [1851] EngR 375; (1851) 3 Mac & G 440; 42 ER 330 at 333, per Lord Truro LC.

[19] Karger v Paul [1984] VicRp 13; [1984] VR 161 at 166; Pope v Lawler (1996) 41 ALD 127 at 134.

[20] Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601; Karger v Paul [1984] VicRp 13; [1984] VR 161 at 178.

[21] Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601; Minehan v AGL Employees Superannuation Pty Ltd [1998] ACTSC 114; (1998) 134 ACTR 1.

[22] Karger v Paul [1984] VicRp 13; [1984] VR 161 at 178.

[23] Unless this be implicit from the fact that the applicant bears the onus of proof: Tonkin v Western Mining Corporation Ltd (unreported SC (WA), Scott J, 31 May 1996, BC9602306) at p.13.

[24] White v Board of Trustees [1997] 2 Qd R 659 at 672, per White J.

[25] [1984] FCA 6; (1984) 1 FCR 301.

[26] [1984] FCA 6; (1984) 1 FCR 301 at 304, 305.

[27] [1984] FCA 6; (1984) 1 FCR 301 at 303.

[28] (1983) 6 ALD 244 at 249-250.

[29] In Dundee General Hospitals Board of Management v Walker [1952] 1 All ER 896 at 903, Lord Morton of Henryton regarded such a discretion as not a discretionary power in the ordinary sense of that phrase. See, too, Rapa v Patience ,unreported, SC (NSW), 4 April 1985, BC8500888 at p14 per McLelland J.

[30] Esso Australia Ltd v Australian Petroleum Agents' and Distributors' Association (Unreported, SC (Vic), Hayne J, 5 October 1993, BC9300733) at p. 22.

[33] As was the case in Karger v Paul [1984] VicRp 13; [1984] VR 161. Adopting the classification of Warner J in Mettoy Pension Trustees Ltd v Evans [1990] 1 WLR 1587 at 1613-4, the decision of the trustee in Karger v Paul is a category 1 discretion; that of the trustee in the present case is a category 3 discretion.

[34] Re Beloved Wilkes' Charity [1851] EngR 375; (1851) 3 Mac & G 440; 42 ER 330.

[35] Cf Libby v Kennedy [1999] Pensions LR 143

[36] In Re Jenner and Keighran's Contract [1925] VicLawRp 41; [1925] VLR 283 at 296, per Irvine CJ.

[37] Rapa v Patience ,unreported, SC (NSW), 14 April 1985, BC8500888 at 14, per McClelland J. See, too, Minehan v AGL Employees Superannuation Pty Ltd [1998] ACTSC 114; (1998) 134 ACTR 1 at [68], per Gallop ACJ; Dillon v Burns Philp Finance Ltd unreported, SC (NSW), 20 July 1998, BC 8801719 at p.15.

[38] Vidovic v Email Superannuation Pty Ltd (unreported SC (NSW), Bryson J, 3 March 1995, BC9504297) at p.22 per Bryson J

[39] See Neskovski v Rogers (Unreported, SC (NSW), at p.5, per McLelland CJ, 12 May 1995, BC9504722).