Stock (as Executor of the Will of Mandie, Deceased) v N.M. Superannuation Proprietary Limited

Solicitor for the First Respondent: HWL Ebsworth Lawyers

Counsel for the Second and Third Respondents: Mr AP Young

Solicitor for the Second and Third Respondents: Cornwall Stodart

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 645 of 2014

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL BETWEEN: GARRY STOCK (AS EXECUTOR OF THE WILL OF DAVID MANDIE, DECEASED)

AND: N.M. SUPERANNUATION PROPRIETARY LIMITED ACN 008 428 322

JUDGE: TRACEY J DATE OF ORDER: 23 June 2015 WHERE MADE: MELBOURNE

1. The appeal be dismissed with costs.
2. Documents CRI1 and 2 be placed in an envelope and sealed, and that there be a notation on the envelope that no order be made for release of either document to a third party under rule 2.32 of the Federal Court Rules without submissions first being sought from the appellants in the present proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 645 of 2014

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL BETWEEN: GARRY STOCK (AS EXECUTOR OF THE WILL OF DAVID MANDIE, DECEASED)

AND: N.M. SUPERANNUATION PROPRIETARY LIMITED ACN 008 428 322

JUDGE: TRACEY J DATE: 23 June 2015 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Superannuation Complaints Tribunal ("the Tribunal") in which it affirmed a decision of the first respondent ("the Trustee") to pay certain benefits to the three adult children of a deceased member of a superannuation fund. The Tribunal's decision was made pursuant to s 37(6) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) ("the Act"). The appeal is brought to this Court pursuant to s 46 of the Act which provides for appeals on questions of law from Tribunal decisions.

BACKGROUND 2 The appellants are executors of the will of Mr David Mandie. 3 Mr David Mandie died in 2011. He was survived by three adult children. They were the second appellant, Ms Evelyn Danos, and her two brothers, the second and third respondents, Mr Stephen Mandie and Mr Ian Mandie. 4 At the time of his death Mr Mandie was a member of a superannuation fund of which the Trustee was the trustee. Although the trust deed provided for a member to make a binding death benefit nomination Mr Mandie had not done so. 5 Rule 11.10 of the trust deed dealt with what was to occur in such a situation. It relevantly provided that: "…the Trustee must pay or apply a Member's Death Benefit to or for the benefit of such one or more, as determined by the Trustee, of; (a) the Dependants of the deceased Member; (b) the Legal Personal Representative of the deceased Member; (c) … in such form and manner, at the times and in such proportions between them (if more than one) as the Trustee in its absolute discretion shall determine." 6 Mr Mandie held two policies in the fund which provided for the payment of substantial death benefits. Each of Mr Mandie's children were "Dependants" within the meaning of the trust deed. 7 The Trustee determined to pay each of the adult children a third of the death benefits payable from the fund. 8 The appellants sought unsuccessfully to persuade the Trustee to pay the death benefits to them as legal personal representatives of Mr Mandie's estate. The appellants appealed to the Tribunal from the Trustee's determination.

THE TRIBUNAL'S DETERMINATION 9 Having considered written submissions and supporting documentation the Tribunal affirmed the Trustee's decision. It provided written reasons for its decision. 10 The reasons commenced with procedural and factual matters. They set out relevant extracts from the trust deed, the Act and regulations made under it. 11 Under a major heading "THE WISHES OF THE DECEASED MEMBER" the Tribunal recorded that Mr Mandie had nominated his spouse as a beneficiary of one of his policies. She had, however, predeceased him and no other nominations had been made. The Tribunal also referred to the wishes of Mr Mandie and his wife relating to some aspects of the administration of their respective estates and assets and to a settlement agreement, made in December 1995, which had stated that neither of Mr Mandie's adult sons "have any further rights against [him] or [his wife] or their respective estates …" The last paragraph of this section dealt with Mr Mandie's will under which he had bequeathed fixed amounts to each of his grandchildren with the remainder of his estate passing to Ms Danos. 12 The Tribunal next devoted a series of paragraphs to summaries of the submissions made to it by the appellants, Messrs Stephen and Ian Mandie and the Trustee. 13 It then turned to its consideration of these submissions under the heading "TRIBUNAL'S DELIBERATIONS". 14 This section commenced with paragraphs 35 and 36 which read: "35. The Tribunal must determine whether the decision of the Trustee to pay the death benefit in equal shares to the three adult children of the Deceased Member was fair and reasonable in its operation in relation to the Complainant and the Joined Parties in the circumstances. The issue is not what decision the Tribunal would have made on the evidence before it. In reaching its determination, the Tribunal took the whole of the evidence and submissions into account. 36. Relevant to this determination are the identity of the beneficiaries, the wishes of the Decreased Member, the financial circumstances and needs of the potential beneficiaries and the nature of the relationship between the beneficiaries and the Deceased Member." 15 The Tribunal then restated some of the appellants' arguments relating to Mr Mandie's wishes which were said to have evinced the intention by him that his two sons be excluded from any interest in his or his wife's estates. This was said to have been reflected in the terms of the settlement agreement. Whilst acknowledging that that agreement did not deal with the proceeds of superannuation funds, it was said to be implicit in the agreement that the two sons should derive no benefit from those funds. The appellants had argued that the sons were the only parties to receive assets under the settlement agreement and that this was consistent with an intention that Ms Danos should have the benefit of all remaining wealth held by her parents at the time of their deaths. 16 The Tribunal next set out some passages which, the appellants asserted, bespoke legal error. It said: "43. In this regard, the Tribunal considered the following issues in its deliberations. 44. First, superannuation is not an asset of the estate and a trustee is not bound to follow the directions of a will. Even if superannuation is specifically mentioned in a will, it does not make it an asset subject to the terms of the will. 45. The subject matter of proceedings commenced by the Adult Sons against the executors of the Deceased Member's estate under Part IV of the Administrative and Probate Act 1958 relates to inadequate provision for their proper maintenance out of the estate of the Deceased Member. The complaint to the Tribunal concerns the distribution of the death benefit, which is not part of the estate. 46. Although the Trustee will look to a deceased member's will and any other document which purports to identify the wishes of a deceased member to assist in determining the wishes of the member, the role of the Trustee in the distribution of a death benefit is not to resolve any perceived or real issues in a deceased member's estate. 47. Second, the Trustee must decide the distribution of a death benefit unless there is in force a binding death benefit nomination. In this matter, the Deceased Member did not have a binding nomination of beneficiary for receipt of his superannuation although it was permitted under the Trust Deed. 48. Third, in general a trustee does not pay to the LPR unless there are no dependants or if there were such a direction in a binding death benefit nomination. The Trustee submitted that it follows this general procedure. It stated that it is not the practice of the Trustee to pay the benefit to a deceased member's LPR if the deceased member is survived by dependants. 49. Finally, while the Deceased Member may have been of an age where he could have received the benefit directly, the benefit remained in the superannuation system at the time of his death and subject to a decision of the Trustee. 50. The Tribunal concluded that, having identified dependants and with no binding nomination to pay to the LPR it was not unreasonable for the Trustee to follow its practice to pay to dependants." 17 There followed some references to evidence relating to some further submissions about interdependency between Mr Mandie and his daughter. 18 The Tribunal expressed its conclusions as follows: "58. The Tribunal concluded that since there was no evidence to support a greater claim on the benefit by any of the adult children it was fair for the Trustee to decide to pay the benefit, in equal shares, to the adult children of the Deceased Member as non-financial dependants. 59. For the reasons outlined above and having regard to evidence submitted, the Tribunal considers that the decision of the Trustee to pay the benefit arising from the death of the Deceased Member to the adult children of the Deceased Member in equal shares was fair and reasonable in its operation in relation to the Complainants in the circumstances." 19 Finally, it recorded that: "61. Sub-section 37(6) of [the Act] provides that the Tribunal must affirm the decision under review if it is satisfied that it was fair and reasonable in the circumstances in its operation in relation to the Complainant and any person who has become a party to the complaint and who either has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person having an interest in the death benefit. The Tribunal is so satisfied. 62. In accordance with the requirements of s 37(3), (4) and (5) of [the Act], the Tribunal therefore affirms the decision of the Trustee."

LEGISLATION 20 Section 14 of the Act provides for a person to make a complaint about a decision in relation to a regulated superannuation fund. When dealing with the complaint the Tribunal is not bound by the rules of evidence (s 36(a)) and can act on written submissions without conducting oral hearings (s 34). 21 Section 37 relevantly provides that: "(1) … (2) … (3) On reviewing the decision of a trustee, insurer or other decision-maker that is the subject of, or relevant to, a complaint under section 14, the Tribunal must make a determination in writing: (a) affirming the decision; or (b) remitting the matter to which the decision relates to the trustee, insurer or other decision-maker for reconsideration in accordance with the directions of the Tribunal; or (c) varying the decision; or (d) setting aside the decision and substituting a decision for the decision so set aside. (4) … (5) … (6) The Tribunal must affirm a decision referred to under subsection (3) if it is satisfied that the decision, in its operation in relation to (a) the complainant; and (b) so far as concerns a complaint regarding the payment of a death benefit - any person (other than the complainant, a trustee, insurer or decision-maker) who; (i) has become a party to the complaint; and (ii) has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person having an interest in the death benefit; was fair and reasonable in the circumstances." 22 Section 40 requires the Tribunal to "give written reasons for its determination." 23 An appeal lies to this Court from a determination of the Tribunal "on a question of law": see s 46(1).

THE FUNCTION OF THE TRIBUNAL 24 The function of the Tribunal under the Act has been considered on a number of occasions by this Court. The relevant principles which have emerged from these cases have helpfully been collected by Griffiths J in Friar v Brown [2015] FCA 135 at [68]-[76]. 25 Of particular relevance are observations made by two Full Courts. 26 The first of those decisions was Board of Trustees of the State Public Sector Superannuation Scheme v Edington (2011) 119 ALD 472. The Court contrasted the role of the Tribunal under the Act with that of the Administrative Appeals Tribunal under its governing legislation. While both tribunals were required to undertake de novo merits review the task of the Administrative Appeals Tribunal, on such a review, was to determine whether the decision-maker had made the correct or preferable decision. The Tribunal, on the other hand, was to decide whether the actual decision (as distinct from the process that led to it) "was fair and reasonable" (at 485). The Court continued (at 487): "As we have seen, the critical question for the tribunal was whether or not it was satisfied that the decision of the trustees - being the decision under review - was, in its operation in relation to Mr Edington, fair and reasonable in the circumstances: see s 37(6). Nothing in the … Act expressly required the tribunal to consider whether or not the reasoning process adopted by a trustee in reaching the impugned decision was fair and reasonable; and no such obligation should be implied. In so far as the reasons of the primary judge conveyed a different view, we consider that his Honour erred. This is because, in the context of s 37(6), the tribunal is required to make its own assessment of the evidence and other information before it, in order to determine whether or not it is satisfied that the decision under review was, in its operation in relation to the complainant, fair and reasonable in the circumstances." (Original emphasis.) 27 In Cameron v Board of Trustees of the State Public Sector Superannuation Scheme (2003) 130 FCR 122, another Full Court endorsed the dictum of Allsop J (as his Honour then was) in Retail Employees' Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 at [31] that: "The tribunal's task is not to engage in ascertaining generally the rights of the parties, nor is it to engage in some form of judicial review of the decision of the trustee … Rather it is to form a view, from the perspective of the trustee … as to whether the decision … was … unfair or unreasonable."

THE QUESTIONS OF LAW AND GROUNDS OF APPEAL 28 The appellants identified two purported questions of law. They were: "1. Is a superannuation trustee in general not to pay to the legal personal representative of a deceased member unless there are no dependants or a binding death benefit nomination in favour of the legal personal representative? 2. Did the Tribunal give adequate reasons for its decision?" 29 The two grounds of appeal were linked to the purported questions of law. 30 The appellants alleged that the Tribunal "erred in holding that a superannuation trustee is in general not to pay to the legal personal representative of a deceased member unless there are no dependants or a binding death benefit nomination in favour of the legal personal representative" (Ground 1). They also complained that the Tribunal had failed to give adequate reasons for its decision (Ground 2) because it failed to deal adequately or at all with certain matters which had been relied on by them. These were that: Messrs Stephen and Ian Mandie had, in 1995, entered into a settlement agreement with their deceased father under which they disclaimed or renounced any interest in the superannuation accounts held by him; it was Mr David Mandie's wish that his two sons not receive any payment from the superannuation accounts held by him; and the Trustee's decision had, improperly, been based on the fact that it had not been released by each of Mr David Mandie's children. 31 The respondents each submitted that neither of the purported questions of law was properly so characterised. They did not, however, develop their submissions in any depth. They did, however, refer to a number of authorities on the point. 32 The point is an important one because, as Griffiths J observed in Friar at [68]-[69], the Court's jurisdiction under s 46 of the Act depends on the existence of a "question of law". For this reason it is, as his Honour said, "important that the question of law be clearly formulated …" 33 It may be doubted that the appellants have identified any true question of law: see, for example, Birdseye v ASIC (2003) 76 ALD 321 at 323-8; ASIC v Saxby Bridge (2003) 133 FCR 290 at 300-302; Tarrant v ASIC (2015) 317 ALR 328 at 353-5. It is not, however, necessary that I express a concluded view on this question because, in my view, neither of the grounds relied on by the appellants has been made out.

Ground 1 34 This ground is founded on what the Tribunal said in paragraph [48] of its reasons and, to a lesser extent, in paragraph [50]. 35 Counsel for the appellants referred to a number of authorities which supported the proposition that a trustee was not at liberty to exercise a discretion, however broadly conferred, in accordance with a policy which it invariably applied: see Re Vestey's Settlement [1951] 2 All ER 891 at 895; Entrust Pension Limited v Prospect Hospice Limited [2012] EWHC 3640 (Ch) at [36]-[37]. The Tribunal, so it was submitted, had fallen into such an error when it had, at minimum, implicitly accepted the practice of a trustee of not paying funds to a legal personal representative unless the deceased had no dependants. 36 There are a number of answers to this contention. The first is that the Tribunal did not make a finding of the kind attributed to it in Ground 1. Before examining the language employed by the Tribunal it is important to note the context in which paragraphs [48] and [50] of its reasons appear. As is clear from paragraph [43], the issue referred to in paragraph [48] was one of a number raised by the parties' submissions and which were considered by the Tribunal. 37 In its submission the Trustee identified a number of considerations to which it had regard in making its decision. One of them was: "As a general rule, subject to a valid binding nomination, the trustee considers a spouse or any minor children as priority. However, in this case, the trustee determined that the deceased was survived by three adult children … As children of the deceased they meet the definition of dependant/s within the meaning of the Fund's trust deed and Superannuation Law. Further, it is not the practice of the trustee to pay the benefit to the deceased's LPR if the deceased member is survived by dependant/s." 38 In paragraph [48] the Tribunal recorded this submission and went on, in paragraph [50], to hold that it was not unreasonable for the Trustee to follow its general practice in the circumstances of the present case. 39 At no point did the Tribunal rule, as a matter of law, that, in general, a trustee should not make payments out of a superannuation fund to the legal personal representative of a deceased member unless there are no dependants or the deceased has made a binding nomination requiring payment to the legal personal representative. 40 The legality of the Trustee's general practice was not contentious. The appellants' submissions to the Tribunal did not seek to suggest that the practice was unlawful. 41 The second answer is that, even if it had done so, and the ruling was contrary to law, it does not follow that such an error had any material impact on the Tribunal's decision. 42 It is to be borne in mind that the Tribunal's task was to determine whether the decision reached by the Trustee was fair and reasonable in the circumstances. The process of reasoning which had led the Trustee to its decision was of no moment. Similarly, any views which the Tribunal may have had as to the lawfulness of the Trustee's practice had no bearing on the fairness and reasonableness of the decision reached by the Trustee. 43 This ground must fail.

Ground 2 44 The appellants' second ground was that the Tribunal had failed to give adequate reasons for its decision. The ground was particularised by reference to certain matters which the appellants asserted had been relied on by them in their written submissions but which attracted little, if any, attention in the Tribunal's reasons. 45 These inadequacies in the Tribunal's reasons were said to have given rise to a contravention of s 40 of the Act. 46 Section 40 required the Tribunal to give written reasons for its determination. 47 In order to determine the content of this obligation s 40 must be read in conjunction with s 25D of the Acts Interpretation Act 1901 (Cth) which requires that any statement of reasons "shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based." 48 The Tribunal was thus required to set out the findings which it had made and the evidence on which those findings were based: cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346. The Tribunal was not required to make all material findings of fact. The failure to make such findings may found an allegation that a decision-maker has committed a jurisdictional error such as failure to have regard to a consideration which he or she was bound to take into account. The decision thus becomes vulnerable because of legal error exposed by the reasons and not because of the inadequacy of the reasons themselves: cf Yusuf at 347-9. 49 The extent of the obligation may also be influenced by the nature of the determination which the decision-maker is called on to make. Where, as in cases such as the present, an evaluative judgment is called for it will often be difficult for a decision-maker to explain with precision the basis upon which his or her conclusion has been reached: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 224; L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [66]. 50 That is not to say that a tribunal can reduce the risk of successful judicial review of its decisions by furnishing reasons which do not comply with the requirements of s 25D of the Acts Interpretation Act 1901 (Cth) and other similar provisions. The remedy in such cases may be provided by statutory provisions which enable a court to order the furnishing of further and better reasons or by the issuing of a writ of mandamus: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64 at 76-78; Ex parte Palme at 224, 226. 51 At paragraphs [35], [36], [59] and [61] the Tribunal asked itself the correct legal question for the purposes of s 37 of the Act. It made findings of fact and proceeded to make the evaluative judgment which the Act prescribed. It explained its reasons for doing so. It did not, therefore, fail in its statutory duty to provide reasons for its determination. 52 In deference to the careful arguments of counsel I will say something shortly about the three particular deficiencies which the appellants relied on in seeking to make good this second ground. 53 The first matter to which, it was said, the Tribunal had failed to give adequate attention was the assertion "that, by a settlement agreement entered into in 1995 [Stephen and Ian Mandie] disclaimed or renounced any interest in the superannuation accounts of [their father]." 54 The settlement agreement did not, in terms, contain any such disclaimer or renunciation. 55 In their written submissions to the Tribunal the appellants advanced no such contention. They went no further than submitting that: "At the time of the 1995 Settlement Agreement, Mr Mandie no doubt considered his superannuation accounts as moneys controlled by him and, because of his age, he was free to direct payment to himself at any time prior to his death." 56 In any event the Tribunal, in its reasons, did deal with the question of Mr Mandie's intentions in relation to the distribution of death benefits, insofar as those intentions might be inferred from the provisions of the 1995 Agreement. 57 The second issue which, it was contended, had not been adequately dealt with in the Tribunal's reasons was a contention that it was Mr Mandie's wish that his sons "not receive any payment from the superannuation accounts …" 58 As can be seen, this complaint is closely linked to the first and should be rejected for the same reasons. 59 The final matter was that the Tribunal had failed adequately to deal with the appellants' contention "that the Trustee's decision was improperly based on the fact that it had not been released by the deceased member's children." 60 That submission had been made to the Tribunal. 61 The difficulty which confronts the appellants is that the Tribunal was required to make its own decision. It was under no obligation to have regard to the processes of reasoning which had led to the Trustee's decision or to form a judgment as to whether it had some how acted improperly.

DISPOSITION 62 The appeal should be dismissed with costs. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.