Case: Australian Securities and Investment Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290
Outcome: cited
Putting to one side their form, the alleged questions of law in (2) of the notice of amended appeal, even if reformulated as questions, would not be questions of law with the possible exception of (2)(b); they would be questions of fact or, at best, mixed questions of fact and law. Mixed questions of fact and law will not found an appeal: Australian Securities and Investment Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 per Branson J at [84] and Jacobson and Bennett JJ at [107], and even if (2)(b) was reformulated into a question as to whether the Trustee failed to comply with Clause 10.1(b) of the MLC Master Key Superannuation Trust Deed, that question, if a question of law, raises two difficulties: 1. The issue was not raised below and in those circumstances the Tribunal was not required to deal with it by specific reference to the trust deed in its reasons. 2. The clause itself is permissive rather than mandatory so that the failure of the Trustee to require a claimant for payment of a benefit to comply with the terms of Clause 10.1(b) before payment would not amount to a failure on the part of the Trustee to comply with the provisions of the trust deed. 6 During the course of the first day's hearing of the appeal, I indicated to the parties that the only issue which caused me concern was whether the Trustee was entitled to pay the applicant's benefit into a joint bank account in the names of himself and his wife in the face of regs 6.17(2) and 6.22 of the Superannuation Industry (Supervision) Regulations 1994 (Cth), which, relevantly, were in the following terms at the relevant date: '6.17 (2) A member's benefits in a fund: (a) may only be paid by: (i) being cashed in accordance with Division 6.3; or (ii) being rolled over or transferred in accordance with Division 6.4 or 6.4A; and (b) must not be paid except when, and to the extent that, the fund is required or permitted under this Part to pay them; and (c) must be paid when, and to the extent that, the fund is required under this Part to pay them. ... 6.22 (1) Subject to regulation 6.22(B) , a member's benefits in a regulated superannuation fund must not be cashed in favour of a person other than the member or the member's legal personal representative unless: (a) the member has died; and (b) the conditions of subregulation (2) or (3) are satisfied. (2) The conditions of this subregulation are satisfied if the benefits are cashed in favour of either or both of the following: (a) the member's legal personal representative; (b) one or more of the member's dependants. (3) The conditions of this subregulation are satisfied if: (a) the trustee has not, after making reasonable enquiries, found either a legal personal representative, or a dependant, of the member; and (b) the person in whose favour benefits are cashed is an individual.' 7 I acknowledged that this particular issue was not raised below and that it was not encompassed by the applicant's notice of appeal. Nevertheless, I indicated to the parties that I would be prepared to hear them on the issue of whether, if the applicant should apply for leave to further amend his notice of amended appeal to raise this issue, leave should be granted. For this purpose, I adjourned the proceedings to enable the parties to consider and address the issue and to file written submissions in support of their respective positions.