Michael May appeared for the Second and Third Respondents, instructed by McInnes Wilson Lawyers.
In this case, the Applicant appealed under s 1057 of the Corporations Act 2001 (Cth) against a determination of the Australian Financial Complaints Authority (the Authority). The impugned determination affirmed the decision of the Third Respondent (the Insurer) to decline her total and permanent disability claim, which the Second Respondent (the Trustee) agreed with. By urgent interlocutory application, the Applicant sought orders compelling the Trustee to process the Applicant’s partial rollover request of all but $10,000 with disability superannuation tax treatment, interrogatories against the Authority and the Trustee, and indemnity costs.
The Court considered the nature and scope of s 1057A(2) of the Corporations Act (which only permits orders such as stays which ensure the effectiveness of the appeal) and reasoned that the rollover order fell outside that power, as it would, in practical effect, grant the relief sought on appeal. Also considered were the general powers of the Court under s 23 of the Federal Court of Australia Act 1976 (Cth), which cannot permissibly operate to circumvent the limitations imposed by s 1057A(2). Interrogatories were held to be inappropriate given they concerned questions of fact, not questions of law to which the appeal was confined.
The interlocutory application was refused. Costs were not reserved due to the rollover request failing on the threshold issue of power, which was a separate issue from the merits of the appeal. The Applicant was ordered to pay the Insurer’s and Trustee’s costs.
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