Madsen v Power

REASONS FOR JUDGMENT 1 This is a judgment about costs. 2 By way of background, the applicant is the biological sister of the deceased James Pope. James Pope died without leaving a will and, in accordance with the succession laws, his estate, including his superannuation fund, was paid to his parents, as he did not have dependents. His two sisters are challenging that decision. In the deceased's original member application form, he nominated his two sisters as his preferred beneficiaries. 3 On or about 9 October 2009, the applicant lodged a complaint with the Superannuation Complaints Tribunal regarding the payment by HEST Australia of the death benefit of James David Pope, deceased, to the legal representative of the estate of James Pope. By reason of the operation of s 22(3)(b) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Act), the second respondent may decide to treat a complaint as if it had been withdrawn if the second respondent thinks that the complaint is trivial, vexatious, misconceived or lacking in substance. 4 On or about 2 December 2009, Fiona Power, who is the first respondent and director of the second respondent, informed the applicant that the second respondent was treating the complaint as withdrawn on the basis that it was misconceived, because the applicant did not meet the definition of "dependent", and the applicant was not the "legal personal representative" of James Pope. 5 On 26 March 2010, I upheld the application by the applicant against the Superannuation Complaints Tribunal, and ordered that the decision of the Superannuation Complaints Tribunal be set aside; the complaint be remitted to the Superannuation Complaints Tribunal to be dealt with according to law; and, in that consideration, the applicant be entitled to put further material before the Superannuation Complaints Tribunal, directed to establishing that her complaint has merit and deposing to information on which she argues that she has established an interdependent relationship with the deceased, and that she meets the definition of "dependent". 6 The respondents had filed a submitting appearance, except as to costs, on 18 February 2010. 7 On 26 March 2010, I delivered ex tempore reasons for judgment for the orders which I made on that day, and I reserved the question of costs. 8 On 17 May 2010, I directed the parties in the following terms: 1. The applicant file and serve written submissions, indicating what orders as to costs the applicant wants the Court to make, and why she says the Court should make that order. These submissions should be filed and served by 4 pm on 28 May 2010. 2. The respondent is to file and serve written submissions in response, indicating what orders as to costs the respondent wants the Court to make, and why the respondent says the Court should make that order. These submissions should be filed and served by 4 pm on 11 June 2010. 3. The Court will consider these submissions, and give judgment on the question of costs at 9.30 am on Thursday, 1 July 2010. 9 On 24 May 2010, in response to a query from the applicant, I made a further direction that: 2A. I direct that any submissions by the applicant in reply to the submissions of the respondent be filed and served by 4 pm on 18 June 2010. 10 The applicant's submissions were filed on 28 May 2010; the respondents filed submissions on 11 June 2010; and the applicant filed submissions in reply on 18 June 2010.