Burtaleea v AustralianSuper Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Burtaleea v AustralianSuper Pty Ltd [2016] FCA 521

File number: NSD 375 of 2015
Judge: BUCHANAN J
Date of judgment: 13 May 2016
Catchwords: SUPERANNUATION – whether “determination” made by the Superannuation Complaints Tribunal in treating a complaint as withdrawn – whether applicant could appeal to Federal Court of Australia – Tribunal’s decision that complaint be treated as withdrawn not a “determination” under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) – no right of appeal – appeal dismissed
Legislation:

Insurance Contracts Act 1984 (Cth), ss 58, 58(1), 59

Superannuation (Resolution of Complaints) Act 1993 (Cth), ss 14, 21, 22, 22(1), 22(3), 22(3)(b), 22A, 22A(2), 27, 32, 37, 37(5), 46, 46(1)

Cases cited:

Kowalski v Superannuation Complaints Tribunal [2010] FCA 473

Ludowyk v Superannuation Complaints Tribunal [2013] FCA 692

Merkel v Superannuation Complaints Tribunal [2010] FCA 564

Ray v Superannuation Complaints Tribunal (2004) 138 FCR 548

Date of hearing: 21 April 2016
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 62
Counsel for the Applicant: Mr M R Lawson (Pro Bono)
Solicitor for the Applicant: Remington & Co Solicitors (Pro Bono)
Counsel for the First Respondent: Mr S Robertson
Solicitor for the First Respondent: Thomson Geer Lawyers
Counsel for the Second Respondent: The second respondent filed a submitting notice

ORDERS

NSD 375 of 2015
BETWEEN:

MAMODE SANAUAZ BURTALEEA

Applicant
AND:

AUSTRALIANSUPER PTY LTD

First Respondent

SUPERANNUATION COMPLAINTS TRIBUNAL

Second Respondent

JUDGE:

BUCHANAN J

DATE OF ORDER:

13 MAY 2016

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs in favour of the first respondent.

2.Any application for costs by the second respondent be made within seven days. 

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


REASONS FOR JUDGMENT

BUCHANAN J:

  1. These proceedings were initiated as a statutory appeal against a determination of the Superannuation Complaints Tribunal (the second respondent), established under the Superannuation (Resolution of Complaints) Act 1993 (Cth) (“the Act”). Such an appeal is available, under the Act, only on a question of law (s 46(1)).

  2. The applicant relied on an amended notice of appeal filed on 9 September 2015, supported by “Points of Claim” filed on the same date.  The first respondent (hereafter the respondent) filed a notice of objection to the competency of the appeal on 1 October 2015. 

  3. This judgment deals with the competency of the appeal, pursuant to an agreement by the parties that the issue of competency should be dealt with at the outset. 

    The initial points of claim

  4. The applicant’s initial points of claim (as filed on 9 September 2015) advanced the following argument. 

  5. The contract in question was an “Australian Super Fund Group Life Insurance Policy” which applied to the applicant from 1 October 2005, as an incident of his employment.  Premiums were sent on the applicant’s behalf by his employer until 27 October 2006, the month in which the applicant…

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Details
Case
[2016] FCA 521
Decision Date

CaseChat Overview and Summary

The case of Burtaleea v AustralianSuper Pty Ltd involved the applicant, who sought to appeal a decision of the Superannuation Complaints Tribunal (SCT) that treated his complaint as withdrawn. The dispute centred on the applicant's claim for Total Permanent Disability (TPD) benefits, which was rejected by the respondent, AustralianSuper Pty Ltd. The applicant's complaint to the SCT was ultimately treated as withdrawn by the Tribunal, which found that it was trivial, vexatious, misconceived or lacking in substance. The applicant then sought to appeal this decision to the Federal Court of Australia, arguing that the Tribunal's decision constituted a "determination" under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth), thereby entitling him to appeal to the Federal Court.

The central legal issue before the court was whether the SCT's decision to treat the applicant's complaint as withdrawn constituted a "determination" within the meaning of s 46 of the Act, thereby granting the applicant the right to appeal to the Federal Court. The court considered the language of the statute and the nature of the SCT's decision, ultimately finding that the SCT's decision did not constitute a "determination" for the purposes of s 46. The court held that the SCT's power to treat a complaint as withdrawn under s 22(3)(b) of the Act did not amount to a "determination" that could be appealed to the Federal Court. Consequently, the applicant did not have a right of appeal.

The court dismissed the applicant's appeal, finding that the SCT's decision was not a "determination" under s 46 of the Act, and therefore, no right of appeal existed. The court also refused the applicant's application to amend the notice of appeal to rely on s 58 of the Insurance Contracts Act. The final orders of the court were that the appeal be dismissed with costs in favour of the first respondent, and that any application for costs by the second respondent be made within seven days.

Orders

Orders of the court

1. The appeal be dismissed with costs in favour of the first respondent.

2. Any application for costs by the second respondent be made within seven days.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I refused one further application, towards the end of the hearing, to amend the notice of appeal again to rely on s 58 of the Insurance Contracts Act. I refer to that question later. The claim and the Tribunal decision After the applicant’s claim to TPD benefits, which was made to the respondent as trustee of the fund, he was advised by the respondent that benefits were not payable because his TPD cover had ceased in November 2007. Records of the respondent also indicated that a “system generated” letter had been sent in October 2007 to the applicant at his address then on file, which was not returned, advising him that cover would cease the following month. Member statements sent to the applicant’s recorded address from 2008 onwards showed that death and TPD cover was “0”. After receipt of the claim, and its initial rejection, the claim was internally reviewed by the respondent but was again refused. A complaint to the Tribunal was then made on 5 June 2014. After considering the complaint, the Tribunal wrote to the applicant on 29 January 2015 informing him that it was considering whether to deal with his complaint under s 22(3)(b) of the Act. Section 21 and s 22(3)(b) of the Act provide: 21Withdrawal of complaintA complainant may withdraw a complaint at any time. 22Power to treat a complaint as having been withdrawn… (3)The Tribunal may also decide to treat a complaint as if it had been withdrawn under section 21, in the following cases: … (b)if the complaint has been made to the Tribunal—the Tribunal thinks that the complaint is trivial, vexatious, misconceived or lacking in substance; … In its letter of 29 January 2015, the Tribunal referred to the respondent’s “system generated” records of advice to him, although it acknowledged his assertions of non‑receipt. The Tribunal also referred to cl 10.20(b) of the policy: End of Cover10.20Cover for an insured member will end on the earliest of: … (b)subject to condition 11, thirteen months following the end of the month in respect of which employer contributions were last received by the Employer Sponsored Division of the fund on time (as agreed between you and us) from an employer in respect of the insured member; … (Italics in original.) The Tribunal then drew attention to cl 10.9 of the policy: Recommencement of Cover after 1 November 200610.9If: (a)a member ceases employment with their employer; and (b)insured cover ceased for the person under paragraphs (b), (c) or (g) of condition 10.20; then, cover will recommence after the changeover date once employer contributions for the person to the Employer Sponsored Division are subsequently received by you for that person and will be deemed to take effect again from the commencement of the period for which the employer contribution was received, subject to condition 10.11. (Italics in original.) [“you” is the respondent] and said: In accordance with the policy the insurance cover could only recommence upon receipt of an employer contribution. The evidence available shows that the Fund did not receive any further employer contributions after 27 October 2006, therefore, there was no provision under the Insurance Policy enabling the Trustee to reinstate your insurance cover. I have enclosed a copy of your Member Statements from 2008 to 2012 as evidence that no further employer contributions were received.

Ratio Decidendi

Legal Principle Established

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