Gale v Australian Financial Complaints Authority

• Jurisdiction: Australia Federal only
• Judgment Date: 15 May 2023
• Neutral Citation: [2023] FCA 470
• Date: 15 May 2023
• Court: Federal Court

Federal Court of Australia

Gale v Australian Financial Complaints Authority [2023] FCA 470

File number(s):	VID 501 of 2022
Judgment of:	MCEVOY J
Date of judgment:	15 May 2023
Catchwords:	SUPERANNUATION – appeal from a decision of the Australian Financial Complaints Authority – the Authority approved a decision of the second respondent (Trustee) that the applicant was not entitled to a pension payable from his superannuation fund commencing from the date he turned 55 – the Trustee and the Authority found that the applicant did not meet a condition of release in item 108 of Sch 1 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) as the pension benefit was not a non-commutable benefit – appeal allowed – the Authority erred in finding that the pension benefit was commutable – the Authority did not properly consider the plan rules for the superannuation fund, which only allowed commutation of the benefit on the approval of the Trustee – Authority ought to have engaged more meaningfully with the question of whether the Trustee’s decision to not compromise the claim was fair and reasonable in the circumstances
Legislation:	Acts Interpretation Act 1901 (Cth) s 25D Corporations Act 2001 (Cth) ss 1055, 1055A,1057 Superannuation Industry (Supervision) Act 1993 (Cth) Superannuation Industry (Supervision) Regulations 1994 (Cth) regs 1.03, 1.06, 6.01, 6.17, 6.17C, 6.18, sch 1
Cases cited:	Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28 Board of Trustees of the State Public Sector Superannuation Scheme v Edington (2011) 119 ALD 472; [2011] FCAFC 8 Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 Brown v Repatriation Commission (1985) 7 FCR 302; [1985] FCA 236 Carter v Commissioner of Taxation (2020) 279 FCR 83; [2020] FCAFC 150 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456 Edser v QSuper Board [2021] FCA 1437 EEU20 v Meat Industry Employees' Superannuation Fund Pty Ltd (Trustee) (No 2) [2020] FCA 1536 Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 Lykogiannis v Retail Employees Superannuation Pty Limited (2000) 97 FCR 361; [2000] FCA 327 Mercer Superannuation (Australia) Ltd v Billinghurst (2017) 255 FCR 144; [2017] FCAFC 201 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 QSuper Board v Australian Financial Complaints Authority (2000) 276 FCR 97; [2000] FCAFC 55 Reeves v Nulis Nominees (Australia) Limited (Trustee) [2022] FCA 627 Repatriation Commission v Owens (1996) 70 ALJR 904 Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359; [2001] FCA 1130 Rushton v Commonwealth Superannuation Corporation (No 3) [2021] FCA 358 Seafarers’ Retirement Fund Pty Ltd v Oppenhuis (1999) 94 FCR 594; [1999] FCA 1683 Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6; [1995] FCA 707 Wan v BT Funds Management Limited [2022] FCFCA 189 ; Thomas G, Thomas on Powers (2nd ed, Oxford University Press, 2012)
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	71
Date of hearing:	21 April 2023
Counsel for the applicant:	Ms Suzanne Mackenzie
Solicitor for the applicant:	KHQ Lawyers
Counsel for the first respondent:	The first respondent filed a submitting notice save as to costs
Solicitor for the first respondent:	Becketts Lawyers
Counsel for the second respondent:	The second respondent filed a submitting notice save as to costs
Solicitor for the second respondent:	AMP Services Limited

ORDERS

		VID 501 of 2022
BETWEEN:	ANDREW GALE Applicant
AND:	AUSTRALIAN FINANCIAL COMPLAINTS AUTHORITY First respondent ; NM SUPERANNUATION PTY LTD Second respondent

order made by:	MCEVOY J
DATE OF ORDER:	15 May 2023

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The determination of the Australian Financial Complaints Authority be set aside and the matter remitted to the Authority to be determined in accordance with s 1055 of the Corporations Act 2001 (Cth) according to law and the governing rules of the applicant’s superannuation fund.

3. On or before 4.00pm on 22 May 2023, the applicant file and serve written submissions on the question of costs, not exceeding three pages.

4. On or before 4.00pm on 5 June 2023, the respondents file and serve written submissions on the question of costs (if any), not exceeding three pages.

5. The question of costs be determined on the papers pursuant to s 20A of the Federal Court of Australia Act 1976 (Cth).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCEVOY J:

1. By an amended notice of appeal dated 13 February 2023 the applicant, Mr Andrew Gale, appeals pursuant to s 1057(1) of the Corporations Act 2001 (Cth) against the determination of the first respondent, the Australian Financial Complaints Authority, given on 8 August 2022 pursuant to s 1055 of the Corporations Act. The Authority affirmed a decision of the second respondent, NM Superannuation Pty Ltd (NM Super), that the applicant was not entitled to a pension payable from the superannuation fund of which NM Super is trustee, commencing from the date he turned 55 years of age.

2. It is relevant to note that the applicant made his original complaint to the Authority against AMP Superannuation Limited (AMP Trustee), as the maker of the relevant decision. However, for the purposes of the determination the final decision of the AMP Trustee was taken to be a decision of NM Super, being the trustee of the fund to which the applicant’s entitlements were transferred during the course of his complaint to the AMP Trustee. In these reasons, unless indicated otherwise, a reference to “the Trustee” is a reference to the AMP Trustee or NM Super (as applicable).

3. Neither the Trustee nor the Authority have chosen to participate in this appeal and have filed submitting notices, save as to the question of costs. On the subject of submitting notices in these circumstances and the absence of active contradiction, see: EEU20 v Meat Industry Employees' Superannuation Fund Pty Ltd (Trustee) (No 2) [2020] FCA 1536 at [12]-[14] (Mortimer J).

4. The Authority affirmed the decision of the Trustee not to commence payment of the applicant’s early retirement pension until he satisfies a condition of release, being when he reaches his preservation age of 60 years, if the Trustee is reasonably satisfied that he intends never again to become gainfully employed on either a full or part-time basis.

5. As the applicant submits, the principal reasons for the determination which are relevant to the questions of...