Onus of Proof

Many cases have come before the Courts in relation to decisions made by the trustees of superannuation funds.

A common decision is whether to grant payments on the basis that a fund member has become totally and permanently disabled.

As the Victorian Court of Appeal stated in Alcoa of Australia Retirement Plan Pty Ltd v Frost (2012) 36 VR 618 at [59]:

“As the decision in Finch has enabled us better to understand, trustees of superannuation funds are no longer to be conceived of in the same way as custodians of charitable or family settlements through the exercise of whose absolute discretion settlors have chosen to channel their beneficence. The economic, industrial and ultimately social imperatives which inform the advent of the superannuation industry, not to mention that beneficiaries of the kind with which we are concerned in one way or the other invariably purchase their entitlements, are productive of legitimate expectations which the law will enforce”

If a fund member or beneficiary can establish a prima facie claim then the onus of proof does not rest with the member or beneficiary. The trustee must give properly informed consideration to applications fro entitlements and if that necessitates further inquires, then the trustee must make them.

If the claim turns on the construction of the Regulations of the fund, then further inquiries will involve seeking advice from the Court as to the interpretation of the Regulations of the fund.

A trustee cannot simply claim that the trustee is relying on legal advice as to the construction of the Regulations of the fund.

Onus of Proof