Webb v Teeling

Federal Court of Australia|2009-09-29|Before: Jagot J

REASONS FOR JUDGMENT 1 This appeal from a decision of the Superannuation Complaints Tribunal (the Tribunal) concerns the distribution of a death benefit in a superannuation fund. 2 The parties to the appeal are potential beneficiaries from the fund. Rebecca Webb is the only child of the late Christopher Webb. Jill Teeling claimed to be Christopher's de facto wife and dependant. Audrey Duckworth and Richard Webb are the executors of the estate of the late Olive Webb, Christopher's mother. They took no part in the appeal. Kim Webb is Rebecca's mother and Christopher's estranged wife. 3 I frequently refer to the parties and the deceased, Christopher Webb, by their first names in these reasons. I do so only in order to ensure that my references to the parties do not cause confusion given that most share the same surname. 4 An appeal from the Tribunal may only be brought on a question of law (s 46(1) of the Superannuation (Resolution of Complaints) Act 1993 (Cth)). The identification of questions of law is a jurisdictional requirement for the appeal. The fact the questions may involve questions of law is insufficient. The questions must be questions of law (Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321; [2003] FCAFC 232 at [10]-[18] and Comcare v Etheridge (2006) 149 FCR 522; [2006] FCAFC 27 at [11]-[17]). 5 Many of the so-called questions (in fact, grounds) in the further amended notice of appeal are not pure questions of law. They are also difficult to comprehend and repetitive. Many do not accord with the submissions made on Rebecca Webb's behalf. The problems with the further amended notice of appeal go beyond mere infelicitous drafting. Despite this, and mindful that the dispute is about the distribution of money, I have determined the appeal by reference to the issues as they emerged by the completion of the hearing. Those issues (cross-referencing the related paragraphs of the further amended notice of appeal) are as follows: (1) Did the Tribunal err in concluding that Olive Webb, by reason of her death on 20 October 2007, was not a "dependant" of Christopher Webb (paras 2A, 2B, 2C, 2D and 4 of the further amended notice of appeal)? (2) Was the Tribunal precluded from making a determination affecting the allocation of benefits to Olive Webb by the trustee of the superannuation fund given that no complaint had been made about that allocation (paras 2A, 2B, 2C, 2D and 4 of the further amended notice of appeal)? (3) Did the Tribunal wrongly focus on the trustee's reasoning process and thus fail to apply the requirements of ss 37(4) and (6) of the Superannuation (Resolution of Complaints) Actby not considering whether the actual decision of the trustee was fair and reasonable in the circumstances (paras 1 and 2 of the further amended notice of appeal)? (4) Did the Tribunal apply a policy resulting in an inflexible and mathematically exact apportionment and thus fail to apply the requirements of ss 37(4) and (6) of the Superannuation (Resolution of Complaints) Act(paras 1 and 2 of the further amended notice of appeal)? (5) Did the Tribunal fail to consider a relevant matter, being the effect of Christopher's death on the financial position of the beneficiaries, specifically Kim Webb (para 3 of the further amended notice of appeal)? (6) Did the Tribunal fail to deal with the complaint and, in giving excessive weight to the beneficiaries' financial dependence on Christopher, thereby ignore Christopher's nomination that his daughter, Rebecca, should receive half of the entitlement (paras 5 and 6 of the further amended notice of appeal)? (7) Did the Tribunal's apportionment of the death benefit go outside its power under s 37(4) of the Superannuation (Resolution of Complaints) Act by taking more than necessary from Rebecca Webb's share to remove the unfairness to Jill Teeling (paras 2E and 7 of the further amended notice of appeal)?

BACKGROUND TO THE APPEAL 6 Christopher and Kim married in 1981. Rebecca, their only child, was born in 1984. Christopher joined the National Mutual Tailored Superannuation Fund on 5 February 1988. Christopher and Kim separated in 1994. Christopher returned to live with his mother, Olive. Christopher and Kim never divorced. Nor did they divide their assets. They retained joint tenancies over the family home and a holiday home. Christopher and Jill Teeling began a relationship in 1997. 7 On 29 February 2000 Christopher completed a form (change to member details) by which he left 25% of the benefit from the fund that would accrue on his death to his wife, Kim, 25% to his mother, Olive, and 50% to his daughter, Rebecca. Under the terms of the trust deed this nomination was not binding on the trustee. Clause 4(b) of Appendix A to the trust deed provided for the death benefit to "be paid to or for the benefit of the Dependants of that Member or of such one or more of them and to the exclusion of the other or others of them and in such proportions and manner as the trustee in its absolute discretion shall think fit". 8 Christopher died on 28 August 2006. His wife, Kim, therefore automatically became the sole owner of the family home and the holiday home. 9 The trustee of the fund wrote to the potential beneficiaries under Christopher's policy on 7 September 2007. There is a dispute about the effect of this letter. The relevant parts of it are as follows: We have now completed our deliberations and after a thorough evaluation of the information supplied, we have formed the preliminary view that the proceeds available in the fund… are to be apportioned as follows: $250,000.00 to OLIVE MAY WEBB, the deceased's mother; $547,712.00 to KIM LORRAINE WEBB, nee BIRCHELL, the deceased's widow; $100,000.00 to JILL TEELING as a financial dependant; and $1,293,137.00 to REBECCA LOUISE WEBB, the deceased's daughter. … We are also advising the other parties of our preliminary decision. If your clients are not satisfied with our preliminary determination, please advise us in writing as to why they think the death benefit should not be paid in this way. Their objections must reach us within 28 days of receiving this letter. Should your clients decide not to lodge an objection within the 28 period, it will result in them having no right to complain to the Superannuation Complaints Tribunal. … In accordance with legislation, the Trustee is required to advise you of the date of this decision and in this instance, the date of the decision is the date of this letter, i.e. 7th September 2007. 10 By a letter dated 25 September 2007 from her solicitors Jill Teeling made a complaint about the preliminary determination and requested that the trustee reconsider. This letter is over seven pages long. It sets out a detailed series of submissions on Ms Teeling's behalf. Much of the letter involves a submission explaining why Ms Teeling should be accepted to have been Christopher Webb's de facto partner and not merely his financial dependant. As part of this, the letter refers to the financial contributions Christopher gave to Jill in money and kind and the fact that adequate provision should be made for her from the fund. The letter also deals with other considerations. The solicitors submitted that the allocation to Kim Webb was grossly unfair, particularly having regard to her ownership of the family home and the holiday home and her long estrangement from Christopher. The letter requests an apportionment of the fund that more accurately reflected Christopher's planned use including his planned retirement with Jill. 11 Olive Webb, Christopher's mother, died on 20 October 2007. 12 The trustee of the fund responded to the complaint by a letter dated 13 December 2007. Again, there is a dispute about the effect of this letter. The letter includes the following: We have completed our deliberations in light of the objection you have lodged on behalf of Ms Jill Teeling and advise that our preliminary determination is now confirmed. Accordingly, our final decision is to apportion the benefit… as follows: $250,000.00 to OLIVE MAY WEBB, the deceased's mother; $547,712.00 to KIM LORRAINE WEBB, nee BIRCHELL, the deceased's widow; $100,000.00 to JILL TEELING as a financial dependant; and $1,293,137.00 to REBECCA LOUISE WEBB, the deceased's daughter. … … We are also advising the other parties [of] our final decision… If your client is not satisfied with the Trustee's final determination, she is entitled to lodge a complaint with the Superannuation Complaints Tribunal within 28 days of receiving this notice. Failure to lodge a complaint with the Tribunal within that period will result in it being prohibited from reviewing the complaint. 13 Ms Teeling made a complaint to the Tribunal on 21 December 2007. Section 14 of the Superannuation (Resolution of Complaints) Actpermits a complaint to be made and is in these terms: (1) This section applies if the trustee of a fund has made a decision (whether before or after the commencement of this Act) in relation to: (a) a particular member or a particular former member of a regulated superannuation fund; or (b) a particular beneficiary or a particular former beneficiary of an approved deposit fund. (1A) This section does not apply to a decision of a trustee in respect of which a complaint can be made to the Tribunal under section 14A. (2) Subject to subsection (3) and section 15, a person may make a complaint (other than an excluded complaint) to the Tribunal, that the decision is or was unfair or unreasonable. (3) If a person has been given a written notice by the trustee of a fund setting out: (a) the trustee's decision in relation to the person's objection to the payment of a death benefit; and (b) the prescribed period within which the person must complain to the Tribunal about the decision; the person may only make a complaint under this section to the Tribunal within that period. 14 Section 15, which is referred to in s 14(2), is as follows: (1) A person may make a complaint under section 14 only if: (a) in the case of a decision that relates to the payment of a death benefit: (i) the person has an interest in the benefit; or … (2) A person does not have an interest in a death benefit for the purposes of paragraph (l)(a) unless: (a) the person: (i) has been given written notice by the trustee of the proposed payment of the benefit; and (ii) has been given written notice by the trustee of the prescribed period within which the person may object; and (iii) has objected to the trustee within the prescribed period; or 15 Ms Teeling's complaint to the Tribunal identified that she was not satisfied with the trustee's failure to recognise her as a financial dependant and her future loss as Christopher's de facto partner. Ms Teeling claimed that the apportionment did not adequately provide for her future financial security. She complained about the apportionment to Christopher's wife, Kim, and to the estate of his mother, Olive. She described the apportionment as unfair and sought a greater share of the fund. 16 Other provisions of the Superannuation (Resolution of Complaints) Act are also relevant. 17 Section 19(1) is as follows: (1) The Tribunal cannot deal with a complaint under section 14 or 14A unless the complainant satisfies the Tribunal that: (a) a complaint about the same subject matter was previously made to an appropriate person under arrangements for dealing with such complaints made under section 101 of the Supervision Act; and (b) the complaint so made was not settled to the satisfaction of the complainant within 90 days or such longer period as the Tribunal allows. 18 The Supervision Act is the Superannuation Industry (Supervision) Act 1993 (Cth). Section 101 of the Supervision Act requires a trustee of a regulated superannuation fund to establish arrangements to enable a person to make an inquiry or complaint and for proper consideration of any such inquiry or complaint. 19 Section 37 of the Superannuation (Resolution of Complaints) Act is a key provision because it identifies the powers of the Tribunal in respect of a complaint under s 14. Section 37 is as follows: (1) For the purpose of reviewing a decision of the trustee of a fund that is the subject of a complaint under section 14: (a) the Tribunal has all the powers, obligations and discretions that are conferred on the trustee; and (b) subject to subsection (6), must make a determination in accordance with subsection (3). (2) If an insurer or other decision-maker has been joined as a party to a complaint under section 14: (a) the Tribunal must, when reviewing the trustee's decision, also review any decision of the insurer or other decision-maker that is relevant to the complaint; and (b) for that purpose, has all the powers, obligations and discretions that are conferred on the insurer or other decision-maker; and (c) subject to subsection (6), must make a determination in accordance with subsection (3). (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) The Tribunal may only exercise its determination-making power under subsection (3) for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both, that the Tribunal has determined to exist in relation to the trustee's decision that is the subject of the complaint no longer exists. (5) The Tribunal must not do anything under subsection (3) that would be contrary to law, to the governing rules of the fund concerned and, if a contract of insurance between an insurer and trustee is involved, to the terms of the contract. (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.

THE TRIBUNAL'S DECISION 20 The Tribunal determined to set aside the trustee's decision and to substitute its own decision distributing the fund as follows: 52% to Kim Webb ($1,139,241), 26% to Rebecca Webb ($569,620) and 22% to Jill Teeling ($481,987). The estate of Olive Webb received no benefit from the fund. 21 The Tribunal reviewed the circumstances of each potential beneficiary, particularly by reference to the financial support they received from Christopher (at [19]-[31]). After considering the submissions (at [35]-[50]), the Tribunal identified (at [51]) that it must determine whether the trustee's decision: …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. 22 The Tribunal observed (at [52]) that "[r]elevant to this determination are the wishes of the Deceased Member, the financial circumstances and needs of the potential beneficiaries and the nature of the relationship between the beneficiaries and the Deceased Member". 23 The Tribunal then dealt with each potential beneficiary. 24 First (at [55]-[59]), with respect to the estate of Olive Webb, the Tribunal considered that a payment to the executors of the estate, who were not dependants of Christopher as defined in the trust deed, would not be a payment "to or for the benefit of the Dependants" as the deed required. Nor would such a payment satisfy legislative requirements (referring to reg 6.22 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) which provides for fund benefits to be cashed in favour of either the member's legal personal representative or the member's dependants). The Tribunal concluded (at [59]) that: Even if the Trustee were correct and was able to pay $250,000 of the benefit to the Mother's estate consistently with the Trust Deed and the legislation, the decision would still appear to be inconsistent with the Trustee's own reasoning. In the Tribunal's view, the Trustee's decision to pay $250,000 to the Mother's estate was not fair and reasonable in the circumstances. 25 Second (at [60]-[62]), with respect to Jill Teeling, the Tribunal concluded that she was Christopher's dependant and would have continued to receive about $15,000 a year in support from him had he not died. 26 Third (at [63]-[64]), with respect to Kim Webb, the Tribunal concluded that she was Christopher's dependant and would have continued to receive about $36,000 a year in support from him had he not died. 27 Fourth (at [65]-[66]), with respect to Rebecca Webb, the Tribunal concluded that she was Christopher's dependant and received about $18,000 a year from him in support. The Tribunal considered it fair and reasonable to assume that this level of support would decrease when Rebecca ceased to be a full-time student and started work. The Tribunal noted that under the trustee's decision Rebecca was to receive far more than her mother Kim, even though her mother was more financially dependant on Christopher than Rebecca. 28 The Tribunal (at [67]) said that: …a fair and reasonable distribution of the death benefit would have taken into account all the circumstances above, including the likelihood and quantum of future financial support. The Tribunal is of the view that the Trustee did not do this and this has resulted in an unfair and unreasonable distribution to each of the beneficiaries. 29 After reminding itself of its powers under s 37(3) of the Superannuation (Resolution of Complaints) Act (at [68]), the Tribunal determined the complaint in the following terms: 69 Sub-section 37(6) of the Complaints Act provides that the Tribunal must affirm the decision of the Trustee 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 not so satisfied. 70 In accordance with the requirements of sub-ss.37(3), (4) and (5) of the Complaints Act, the Tribunal determines to set aside the decision under review on the grounds that it was not fair and reasonable and substitute its own decision that the death benefit be paid as follows: · 52% to the Spouse; · 26% to the Daughter; and · 22% to the Complainant. 71 The Tribunal has determined this distribution based on the following: · the Mother should not have received any part of the distribution as she died prior to the final determination of the Trustee and for the reasons stated above; · the benefit should be distributed between the other three potential beneficiaries; · the Deceased Member showed no indication that the level of support he was providing to each of these beneficiaries would reduce in the future. It appears to the Tribunal that the pattern of support was embedded and unlikely to change in the future. The Tribunal considers that this is a fair basis for the distribution of the benefit as it reflects the most likely future support each would have received; and · specifically, the Tribunal has used the amount of the regular support provided by the Deceased Member to each of these beneficiaries as an indication of what would most likely have continued in the future had he lived and continued to share his income with all three of them, whether his income derived from superannuation or personal exertion; · while there was a Nomination of Beneficiary form completed in early 2000, the circumstances of the nominated beneficiaries had changed as at the date of death, particularly the Daughter's future education expenses and ability to support herself.

(1) Was Olive Webb Christopher's dependant? 30 The submissions on Rebecca's behalf asserted that the Tribunal erred in law in concluding that Olive Webb was not Christopher's dependant at the relevant time. According to this submission the trustee made its allocation decision as required by the trust deed on 7 September 2007 and as notified in the letter of that date to the potential beneficiaries. Olive Webb was alive and dependant on her son, Christopher, for financial support at that time. This decision was preliminary only in the sense that it was subject to a process of appeal. The decision of 13 December 2007 was a further and separate decision. Further or alternatively, under the terms of the trust deed, a person's status as a dependant is to be determined at the date of the member's death. Olive Webb was still alive when Christopher died. The Tribunal thus misdirected itself in law. 31 These arguments lack substance. 32 The first argument is untenable on any reading of the correspondence from the trustee of 7 September and 13 December 2007. The terms of the letter of 7 September 2007 convey a preliminary, in the sense of a proposed, decision only. This preliminary decision was not subject to any right of appeal. It was subject to a right to make a complaint to the trustee about the preliminary allocation. As required by s 101 of the Supervision Act, the trustee would then have to consider that complaint. The reference to the Tribunal in the letter of 7 September 2007 is to put the recipient on notice that, unless the recipient make a complaint or objection to the trustee, the recipient cannot make a complaint to the Tribunal. Given s 19(1), this advice was correct. Accordingly, the letter of 7 September 2007 did not convey any operative decision of the trustee under the trust deed. To the contrary, the trustee made its decision on 13 December 2007, being a date after the death of Olive Webb. 33 It follows that the Tribunal was required to "stand in the shoes" of the trustee as at 13 December 2007, not 7 September 2007. On that date, Olive Webb had already died. 34 The second aspect of this argument requires consideration of the terms of the trust deed. Payment of the death benefit is to be determined by the trustee in accordance with cl 4 of Appendix A to the trust deed which provides: 4. … (b) Any amount which becomes payable pursuant to the provisions of this Deed on the death of a Member shall at the option of the Trustee: (1) be paid to or for the benefit of the Dependants of that Member or of such one or more of them and to the exclusion of the other or others of them and in such proportions and manner as the Trustee in its absolute discretion shall think fit…; or (2) be paid to the legal personal representatives of that Member; or (3) be paid to any other person to whom payment of the benefit is permitted in accordance with the Applicable Requirements. 35 The definition of "Dependant" in cl 4 of the trust deed includes: (c) any person who in the opinion of the Trustee is at the relevant date (or in the case of a deceased Member was at the date of the death of the deceased Member) wholly or partially dependent financially on that Member. [Emphasis added] 36 It was submitted that this definition demonstrates that the question whether Olive Webb is a dependant must be determined as at the date of Christopher's death. If the construction advanced is correct, then it was submitted that the subsequent death of Olive Webb was not relevant. 37 There are two answers to this argument. 38 First, the question whether Olive was Christopher's dependant depends on the operation of the definition of that word in the trust deed. But the power of the trustee (and thus also the Tribunal) to make a payment depends on the operative provisions of the trust deed and the legislation (specifically reg 6.22 of the Superannuation Industry (Supervision) Regulations as referred to by the Tribunal). The trustee may only pay the benefit to the nominated classes including to or for the benefit of the dependants. A payment to a person's estate after their death, as the Tribunal correctly acknowledged, is difficult to reconcile with this requirement. To the extent that it involves ambiguity, the terms of the trust deed are to be construed as a whole in order to give effect to a harmonious scheme. Once this approach is adopted, I am satisfied that although Olive Webb was Christopher's dependant at the time of his death, the trustee did not have power to make a payment to Olive's estate consistent with its obligations to make payments only to or for the benefit of the dependants. 39 Second, even if this be incorrect, it must also be recognised that the Tribunal's decision about the allocation to Olive Webb did not turn upon these issues of construction. This is because the decision, as the terms of [59] of the Tribunal's reasons disclose, depended on the Tribunal's view that it was not fair and reasonable in the circumstances for money to be paid to the estate of Olive Webb. This was a conclusion which the Tribunal was entitled to reach in all of the circumstances and is unassailable in this appeal. 40 It follows that the questions in the further amended notice of appeal relating to this matter (paras 2A, 2B, 2C, 2D and 4) must each be answered in the negative. No error of law as asserted is apparent from the Tribunal's reasons.

(2) Was any complaint made about Olive Webb's share? 41 The submissions on Rebecca's behalf asserted that, by reason of s 19(1) of the Superannuation (Resolution of Complaints) Act, the Tribunal had no jurisdiction to deal with Olive Webb's share of the fund as decided by the trustee because no complaint by Jill Teeling had been made about her share. 42 This argument is untenable. It misconceives the complaint made. It also misconceives the powers and obligations of the Tribunal. 43 As to the former (the scope of the complaint), it cannot be said that the complaint made by Jill Teeling's solicitors was limited to the trustee's failure to recognise her as Christopher's de facto partner. That was one of the complaints, but even that submission, properly understood, was a means to an end. The essence of the complaint was that the trustee's proposed distribution did not adequately provide for Jill's financial needs. She wanted a greater share of the fund in order to reflect her position as Christopher's de facto partner and to meet her needs. As there is one fund only, increasing the share given to Jill must decrease the share available to the other potential beneficiaries. It may be accepted that the complaint stressed that the share proposed to be given to Kim Webb, Christopher's estranged wife, was grossly unfair. But that was not the essence of her complaint. The complaint's essence was the unfairness of the amount Jill herself was proposed to receive from the fund. 44 As to the latter (the Tribunal's powers and obligations), s 37(6) of the Superannuation (Resolution of Complaints) Act explicitly recognises that where one potential beneficiary seeks a greater share of a fund, then the interests of one or more of the other beneficiaries will require adjustment. It is for this reason that the Tribunal must affirm a decision if it is satisfied that the decision is fair and reasonable in the circumstances not only in relation to the complainant, but also in relation to any other person who has an interest in the death benefit. 45 Further, s 19 of the Superannuation (Resolution of Complaints) Act does not advance the argument. The section serves to establish a procedure under which the Tribunal is not to deal with a complaint unless the complainant has attempted to have the matter resolved. This procedure was followed in the present case. 46 It follows that the questions in the further amended notice of appeal relating to this matter (paras 2A, 2B, 2C, 2D and 4) must each be answered in the negative. No error of law as asserted is apparent from the Tribunal's reasons.

(3) Did the Tribunal wrongly focus on the trustee's reasoning process? 47 The submissions on Rebecca's behalf asserted that the Tribunal erred in law by failing to consider whether the actual decision of the trustee was fair and reasonable in the circumstances. Instead, the Tribunal asked itself whether the trustee's reasoning process was somehow flawed. By these submissions it was sought to both demonstrate that the Tribunal had not acted in accordance with the statutory requirement to affirm the decision if satisfied that is fair and reasonable in accordance with the terms of s 37(6) and to engage the observation in Lykogiannis v Retail Employees Superannuation Pty Ltd (2000) 97 FCR 361; [2000] FCA 327 at [48] in which Mansfield J, after considering numerous decisions (including Briffa v Hay (1997) 75 FCR 428), observed that: Ultimately, whatever findings the Tribunal must make standing in the shoes of the trustee …s 37(6) requires the Tribunal to decide whether the decision under review, in its operation, was fair and reasonable in the circumstances. The focus of s 37(6) is upon the consequence or outcome of the decision in its practical operation, rather than upon the process by which the decision under review came to be made. 48 According to the submissions, a fair reading of the Tribunal's reasons, particularly [67] and [71] (3rd and 4th dot points), discloses that the Tribunal failed to consider the consequence or outcome of the trustee's decision in terms of its practical operation. Instead, the Tribunal considered that the process by which the trustee had reached its decision was flawed in that the trustee did not give weight to the likelihood and quantum of financial support. 49 These arguments cannot be sustained. 50 The first argument involves a strained reading of a few paragraphs of the Tribunal's reasons taken in isolation. The Tribunal was well aware of the requirements of s 37(6). It recited them in terms at [69] of its reasons. Its recognition of the limitation in the section is also apparent from the observation in [51] that the issue is not what decision the Tribunal would have made on the evidence, but whether the trustee's decision was fair and reasonable in all the circumstances in relation to its operation. The Tribunal did not set aside the trustee's decision because of any concern about inadequacies in the trustee's reasoning process. As it said in [69], the Tribunal was not satisfied that the decision was fair and reasonable in the circumstances in its operation in relation to the complainant, Jill Teeling, and the other beneficiaries. It was not fair and reasonable because it did not reflect the likelihood and quantum of future financial support those beneficiaries would have received had Christopher not died. The Tribunal's reasons simply do not reflect the error said to have arisen. 51 It may be accepted that "[t]he role of the Tribunal under s 37(6) of the Complaints Act is not to decide for itself the correct or preferable decision: it must affirm a decision if it is satisfied that the operation of the decision the subject of review was fair and reasonable in the circumstances" (Edwards v Postsuper Pty Ltd [2007] FCAFC 83 at [15]). In so doing the "Tribunal may have to make its own findings of fact for the purpose of determining whether the decision is fair and reasonable in its operation in the circumstances". However, this is precisely the approach that the Tribunal took, as its observations in [51] disclose. 52 It follows that the questions in the further amended notice of appeal relating to this matter (paras 1 and 2) must each be answered in the negative. No error of law as asserted is apparent from the Tribunal's reasons.

(4) Did the Tribunal apply a policy resulting in an inflexible and mathematically exact apportionment? 53 The submissions on Rebecca's behalf asserted that the Tribunal erred in law because its decision resulted from the application of its own policy identifying factors relevant to an apportionment of a death benefit thereby replacing the test under ss 37(6) and (4) with something "inflexible and mathematically exact". The submissions drew attention to the Tribunal's reliance on a published policy which states that "[t]he Tribunal has found that a useful test in cases of contested distribution is to ask who would have continued to benefit from the member's income if the member had not died". 54 In respect of this argument the submissions (properly, given the facts) disavowed any suggestion that the Tribunal had inflexibly applied this policy without considering the merits of the individual case. Instead the argument, insofar as I can understand it, suggested that the Tribunal erred by applying a precise mathematical approach to the apportionment rather than applying the test set out in s 37(6). This was said to follow from the fact that the Tribunal reached its percentage apportionments (52%, 26% and 22%) by reference to the relationship between the amount of financial support each beneficiary, other than the late Olive Webb, received (being $15,000, $36,000 and $18,000 or a total of $69,000). 55 I am unable to discern any error or question of law arising from these submissions. The Tribunal had decided that it was not satisfied that the trustee's decision was fair and reasonable in the circumstances in its operation in terms of s 37(6). The Tribunal was entitled to take into account its published policy in order to discharge its obligation under s 37(4) (that is, exercising its powers for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both, that the Tribunal has determined to exist in relation to the trustee's decision that is the subject of the complaint no longer exists). 56 It follows that the questions in the further amended notice of appeal relating to this matter (paras 1 and 2) must each be answered in the negative. No error of law as asserted is apparent from the Tribunal's reasons.

(5) Did the Tribunal fail to consider the effect of Christopher's death? 57 The submissions on Rebecca's behalf asserted that the Tribunal erred in law by failing to consider that Christopher's death would change the needs and level of dependency of the beneficiaries. According to this submission Christopher had carefully planned his financial arrangements including the fact that Kim Webb, his estranged wife, would receive the family home and holiday home valued at $350,000 and $700,000 respectively. The Tribunal failed to take this into account and instead applied its policy (see [53]-[54] above). 58 These submissions, properly analysed, are nothing more than a challenge to the merits of the Tribunal's determination. The submissions identify no matter which the Tribunal was bound to consider or not to consider consistent with the principles identified in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-41, which were sought to be invoked. Further, and contrary to the submission, the Tribunal did take into account this factor. At [22] the Tribunal noted: "[Kim Webb] owned two properties as joint tenant with [Christopher]… These properties passed to her by survivorship". 59 It follows that the question in the further amended notice of appeal relating to this matter (para 3) must be answered in the negative. No error of law as asserted is apparent from the Tribunal's reasons.

(6) Did the Tribunal fail to deal with the complaint and ignore Christopher's nomination? 60 The submissions on Rebecca's behalf asserted that the Tribunal erred in law by ignoring the terms of the complaint. According to these submissions the complaint claimed that the trustee should have recognised Jill Teeling's status as Christopher's de facto and taken money from Kim Webb, Christopher's estranged wife, to give to Jill. The complaint did not seek any reduction of the share granted to Olive Webb, Christopher's mother, or to Rebecca Webb, his daughter. By these submissions it was sought to engage the principle that the Tribunal's function relates to the complaint. As it was put in National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562; [2000] FCA 852 at [15]: When exercising its powers under s 37(3) the Tribunal is engaged in a task that results from a complaint that the decision being reviewed is or was unfair or unreasonable, or both. The claimed unfairness or unreasonableness, which was the subject of the complaint, is the central object of the review. The terms of s 37(4) confirm that this is so. 61 And further, at [32], that: The issue is whether the s 14(2) complaint has been made out and whether, for the purposes of s 37(6) the Tribunal is satisfied that the decision, in its operation in relation to the respondent, was fair and reasonable in the circumstances. 62 The submissions also asserted that the Tribunal placed excessive weight on the financial dependence of the beneficiaries to the exclusion of all other factors, including Christopher's nomination that his daughter Rebecca should receive half of his entitlement. 63 These submissions confront a number of difficulties. 64 First, and as discussed above, the complaint cannot be read so narrowly. The complaint did say that the share given to Kim Webb was grossly unfair but it did not ask for money to be taken from Kim Webb and given to Jill Teeling. It asked that the apportionment adequately provide for Jill Teeling's future financial security. The Tribunal did not ignore the complaint. The Tribunal correctly recognised that the question of Jill Teeling's status as a de facto partner was immaterial because the evidence established that she was Christopher's dependant. The Tribunal then considered the practical consequences of the trustee's apportionment in terms of the complaint. The Tribunal upheld the complaint by reason of the Tribunal's express finding in [69] that it was not satisfied that the trustee's decision was "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". In other words, the Tribunal in terms did that which the submissions assert it did not. The fact that the Tribunal's determination resulted in a substantial decrease in Rebecca Webb's share does not disclose any error or question of law. Again, properly considered, the submissions involve a challenge to the merits of the Tribunal's determination. 65 Second, the submission about the Tribunal ignoring Christopher's nomination that his daughter Rebecca should receive half of his entitlement failed to explain why the Tribunal was bound to consider this factor in discharging its statutory function. Moreover, and contrary to the claim, it is apparent that the Tribunal did consider this factor as its reasons in [32] and [66] disclose. 66 To the extent that these submissions asserted that the Tribunal placed excessive weight on the financial dependence of the beneficiaries they manifestly sought to trespass on the merits of the Tribunal's decision when the appeal is confined to questions of law. Further, and in any event, the factor of financial dependence is not irrelevant. Indeed, as the submissions for Rebecca Webb pointed out, the Tribunal was acting in accordance with its published policy which states that "[t]he Tribunal has found that a useful test in cases of contested distribution is to ask who would have continued to benefit from the member's income if the member had not died". The Tribunal's reasons do not disclose it taking into account this factor to the exclusion of other relevant factors. As the Tribunal stated at [67]: The Tribunal is of the view that a fair and reasonable distribution of the death benefit would have taken into account all of the circumstances above, including the likelihood and quantum of future financial support. 67 This reference to "all of the circumstances" indicates that the Tribunal did not exclude other relevant considerations in determining whether the trustee's determination resulted in a fair and reasonable distribution of the death benefit. Indeed, The Tribunal expressly acknowledged other relevant considerations at [52] of its reasons for decision, namely "the wishes of the Deceased Member, the financial circumstances and the needs of the potential beneficiaries and the nature of the relationship between the beneficiaries and the Deceased Member". 68 It follows that the questions in the further amended notice of appeal relating to this matter (paras 5 and 6) must each be answered in the negative. No error of law as asserted is apparent from the Tribunal's reasons.

(7) Did the Tribunal's apportionment go outside its power? 69 The submissions on Rebecca's behalf asserted that the Tribunal erred in law by making a determination outside of its power as confined by s 37(4) of the Superannuation (Resolution of Complaints) Act. The Tribunal concluded that Jill Teeling should receive 22% of the death benefit. By operation of s 37(4), according to the submissions, the Tribunal's power to remove the unfairness was limited to an apportionment which took the proportion required from the shares granted to Kim and Olive Webb to increase Jill Teeling's share to this figure of 22% and no more. Instead the Tribunal varied the whole decision going far beyond what was necessary to ensure that the unfairness to Jill Teeling no longer existed. 70 This submission cannot succeed in the face of the terms of s 37(4) construed in context, including s 37(6). 71 Section 37(4) refers to unfairness or unreasonableness that the Tribunal has determined to exist in relation to the trustee's decision that is the subject of the complaint. It does not and could not rationally limit the Tribunal's power to a decision which ensures that unfairness or unreasonableness in relation to the complainant alone no longer exists. The reason it could not do so is obvious. Making a decision fair and reasonable for the complainant may make it unfair or unreasonable in relation to another potential beneficiary. This is why s 37(6) establishes a statutory requirement that the Tribunal affirm a decision if satisfied it is fair and reasonable in relation to not only the complainant but also other potential beneficiaries. 72 In this case the Tribunal was not so satisfied (at [69]). As such, its powers under s 37(3) were enlivened but only in accordance with s 37(4). In accordance with that section the Tribunal had to exercise its powers for the purpose of placing the complainant as nearly as practicable in a position that the unfairness the Tribunal determined to exist in relation to the trustee's decision no longer exists. The unfairness the Tribunal determined to exist in this case was that the trustee's apportionment did not recognise either: - (i) that the late Olive Webb was no longer a dependant so that the money allocated to her was available for re-allocation, or (ii) the levels of financial dependence of Jill Teeling or the other dependants. Having found this unfairness to exist in relation to the trustee's decision it was open to the Tribunal to ensure that the unfairness to Jill Teeling, so far as practicable, no longer existed by the apportionment it proposed. The fact that this resulted in Rebecca's share decreasing to the benefit of Jill Teeling and Kim Webb does not disclose any error or question of law. Again, the submissions are a challenge to the merits of the Tribunal's decision. 73 Insofar as these submissions reiterated that the Tribunal's decision was inconsistent with the requirement that the central object of the review be the complaint (as referred to above by reference to National Mutual Life Association of Australasia Ltd v Campbell at [15] and [32]), they overlook the scope of the complaint and the Tribunal's related factual findings. In particular, at [39] of its reasons the Tribunal recorded that Jill Teeling's complaint included that: … the Trustee's decision failed to adequately take into account the properties that passed to the Spouse by survivorship, the Daughter's future earnings and the fact that the Mother had died. It was submitted that the Trustee should have considered the future superannuation plans of the Deceased Member in respect of the Complainant. 74 The financial support given by Christopher Webb to the beneficiaries and the consequent likelihood and quantum of future financial support was within the scope of the complaint. It cannot be said the Tribunal misdirected itself as to the central object of the review for the purposes of s 37(4). This is particularly so in light of s 37(6)(b)(ii) which specifically directs the Tribunal to take into account the operation of the trustee's decision in respect of any person who has an interest in the death benefit. The Tribunal's task under s 37 is to determine whether the trustee's decision was fair and reasonable in the circumstances. Indeed, this is what the Tribunal did, as it stated in [67] of its reasons for decision. 75 It follows that the questions in the further amended notice of appeal relating to this matter (paras 2E and 7) must each be answered in the negative. No error of law as asserted is apparent from the Tribunal's reasons.

CONCLUSION 76 The applicant, Rebecca Webb, has not identified any question of law the answer to which would vitiate the Tribunal's decision. It follows that the appeal must be dismissed with costs. I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate: Dated: 29 September 2009 Counsel for the Applicant: Mr G M McGrath

Counsel for the First Respondent: Mr L J Ellison SC

Counsel for the Third Respondent: Mr A R R Vincent

Solicitor for the Applicant: Isho & Associates

Solicitor for the First Respondent: Marsdens Law Group

Solicitor for the Third Respondent: Bowring Macaulay & Barrett

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