Campbell v Superannuation Complaints Tribunal

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FEDERAL COURT OF AUSTRALIA

Campbell v Superannuation Complaints Tribunal [2016] FCA 808

File number: QUD 178 of 2016
Judge: LOGAN J
Date of judgment: 15 July 2016
Catchwords:

ADMINISTRATIVE LAW – where applicant in receipt of invalidity pension benefit pursuant to Military Superannuation Benefits Scheme – whether invalidity pension is a defined benefit interest – whether entitlement to invalidity pension under the Scheme is a superannuation interest – meaning of superannuation interest – whether respondent was obliged to furnish applicant with information which valued the interest as a defined benefit interest – whether Tribunal erred in affirming respondent’s decision to treat applicant’s complaint as withdrawn – Family Law Act 1975 (Cth), Pt VIIIB, Family Law (Superannuation) Regulations 2001, Military Superannuation Benefits Act 1991 (Cth)

FAMILY LAW – where applicant in receipt of invalidity pension benefit pursuant to Military Superannuation Benefits Scheme – whether invalidity pension is a defined benefit interest – whether entitlement to invalidity pension under the Scheme is a superannuation interest – meaning of superannuation interest – whether respondent was obliged to furnish applicant with information which valued the interest as a defined benefit interest – whether Tribunal erred in affirming respondent’s decision to treat applicant’s complaint as withdrawn – Family Law Act 1975 (Cth) Pt VIIIB, Family Law (Superannuation) Regulations 2001, Military Superannuation Benefits Act 1991 (Cth)
Legislation:

Defence Force Retirement and Death Benefits Act 1973 (Cth)

Family Law (Superannuation) Regulations 2001 regs 5, 5(1), 5(1)(a), 5(1)(b), 5(1A), 5(2), 11, 12, 64, 64(7), 64A

Family Law Act 1975 (Cth) ss 79, 90MB(1)(c) 90MD, 90ME, 90ME(1)(a), 90ME(2),90MZB, 90MZB(2), 90MZB(3)

Governance of Australian Government Superannuation Schemes Act 2011 (Cth) s 4

Military Superannuation and Benefits Act 1991 (Cth) s 4

Military Superannuation and Benefits Rules r 28

Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 14AA, 14AA(2), 22(3)(b), 46

Superannuation Industry (Supervision) Act 1993 (Cth)
Cases cited:

Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; (2011) 119 ALD 472

C v B-H & Anor [2005] FamCA 431

Hickey v Hickey  [2003] FamCA 395

McKenzie v McKenzie [1971] P 33

Scott v Commissioner of Taxation (No 2) (1966) 40 ALJR 265

Simpson & Simpson [2014] FamCA 521
Date of hearing: 3 May 2016
Date of last submissions: 31 May 2016
Registry: Queensland
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 55
Counsel for the Applicant: The applicant appeared in person (assisted by a McKenzie friend)
Counsel for the Respondents: Mr R C Schulte
Solicitor for the Respondents: Australian Government Solicitor

ORDERS

QUD 178 of 2016
BETWEEN:

BRADLEY JAMES CAMPBELL

Applicant
AND:

SUPERANNUATION COMPLAINTS TRIBUNAL

First Respondent

COMMONWEALTH SUPERANNUATION CORPORATION

Second Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

15 JULY 2016

THE COURT ORDERS THAT:

1.The notice of appeal from the first respondent should be read as raising the following questions of law:

(a)Is the applicant’s entitlement to receive an invalidity pension benefit, pursuant to the Military Superannuation Benefit Scheme (MSBS)…

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Details
Case
[2016] FCA 808
Decision Date

CaseChat Overview and Summary

The case of Campbell v Superannuation Complaints Tribunal involves Mr. Campbell, who is a recipient of an invalidity pension benefit under the Military Superannuation Benefits Scheme (MSBS), and the Superannuation Complaints Tribunal (SCT). Mr. Campbell sought information about his superannuation interest from the Commonwealth Superannuation Corporation (CSC), which acted as the trustee for the MSBS. The dispute arises from whether the invalidity pension is considered a defined benefit interest and if the entitlement to such a pension under the MSBS qualifies as a superannuation interest. Additionally, the case examines whether the SCT was obligated to provide Mr. Campbell with information that valued his interest as a defined benefit interest and whether the SCT correctly treated Mr. Campbell’s complaint as withdrawn.

The legal issues before the court included determining the definition of a superannuation interest and the implications of this definition for Mr. Campbell’s invalidity pension under the MSBS. Specifically, the court had to decide if the invalidity pension was a superannuation interest as defined in the Family Law Act 1975 (Cth) and if CSC was required to provide information valuing this interest as a defined benefit interest under the Family Law (Superannuation) Regulations 2001 (FLSR). Another issue was whether the SCT was correct in affirming CSC's decision to treat Mr. Campbell's complaint as withdrawn.

The court concluded that the invalidity pension was indeed a superannuation interest as defined in the Family Law Act. The court found that the SCT was incorrect in affirming CSC's decision to treat Mr. Campbell's complaint as withdrawn. The court held that CSC was obligated to provide Mr. Campbell with information valuing his interest, but it should have been based on the interest being an accumulation interest rather than a defined benefit interest. The court determined that the SCT's decision to treat the complaint as withdrawn was erroneous, leading to the conclusion that the complaint should be reconsidered.

The final orders of the court specified that the appeal should be read as raising questions regarding the nature of Mr. Campbell's entitlement to the invalidity pension benefit under the MSBS. The court answered these questions in the affirmative and established that CSC should have provided information based on the invalidity pension being an accumulation interest. Consequently, the SCT's decision to treat Mr. Campbell's complaint as withdrawn was set aside, and the matter was remitted to the SCT for reconsideration in light of the court's findings.

Orders

Orders of the court

1. The notice of appeal from the first respondent should be read as raising the following questions of law:

(a) Is the applicant’s entitlement to receive an invalidity pension benefit, pursuant to the Military Superannuation Benefit Scheme (MSBS) for which provision is made by the Military Superannuation and Benefits Trust Deed (the Deed), made by the responsible Minister in accordance with the requirement found in s 4 of the Military Superannuation and Benefits Act 1991 (Cth) a “superannuation interest” as defined by s 90MD of the Family Law Act 1975 (Cth) (Family Law Act)?

(b) If the answer to question 1(a) is, “Yes”, was the second respondent, in its capacity as the trustee of the MSBS under the Deed, in responding to a request by the applicant under s 90MZB of the Family Law Act, obliged by s 90MZB(3) of that Act and the Family Law (Superannuation) Regulations 2001 (FLSR) to furnish him with information which valued that interest on the basis that it was a “defined benefit interest” as defined by reg 5 of the FLSR or, instead, on the basis that it was, for the purposes of those regulations, an “accumulation interest”?

2. Those questions should be answered as follows:

(a) Yes; and

(b) The applicant ought to have been furnished with information by the second respondent, pursuant to its obligation under s 90MZB(3) of the Family Law Act, on the footing that this particular interest was an “accumulation interest”, not a “defined benefit interest” in terms of the definitions of those terms in the FLSR.

3. The first respondent’s decision of 1 February 2016 to treat the applicant’s complaint in respect of the second respondent’s decision as withdrawn pursuant to s 22(3)(b) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) is set aside and the matter is remitted to the first respondent for reconsideration of the second respondent’s decision in accordance with the answers given to the questions of law and the Court’s reasons for judgment.

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

It is implicit in the Tribunal’s decision that it regarded Mr Campbell’s complaint as concerning a “decision” by CSC as trustee for the purposes of the Complaints Act. By s 14AA of the Complaints Act it is provided:14AAComplaints may be made about discretionary or non-discretionary decisions (1)To avoid doubt, a complaint may be made under this Part about a decision whether or not the decision involved the exercise of a discretion. (2)However, a decision that did not involve the exercise of a discretion is taken to have been unfair and unreasonable if the decision was contrary to law.Because Mr Campbell’s application to CSC for information complied with the requirements of s 90MZB of the Family Law Act, the effect of s 90MZB(3) of that Act was that CSC was obliged, “in accordance with the regulations”, to provide information about his “superannuation interest” to him. CSC made a decision when it decided to comply this requirement, as it understood it, but that decision entailed no exercise of a discretion, only a recognition that an obligation to furnish information arose if particular circumstances existed. As CSC viewed them, those circumstances existed and, hence, an obligation to furnish information with respect to each of its two responsive advices to Mr Campbell. The effect of s 14AA(2) of the Complaints Act is that its non-discretionary decision will be taken to be unfair and unreasonable if it was contrary to law. Pursuant to s 46 of the Complaints Act, Mr Campbell has appealed to this Court, on questions of law, from the Tribunal’s determination. The principal question of law is whether the Tribunal was correct in treating his complaint as if withdrawn by virtue of a misconception and therefore, in effect, whether CSC in the circumstances was indeed obliged by s 90MZB(3) of the Family Law Act to provide him with information concerning his invalidity pension benefit? A subsidiary question is whether, in providing information, the Tribunal was correct in characterising his entitlement to an invalidity pension under the MSBS as a “defined benefit interest”, as defined? Perhaps fortunately, answering these questions does not require any excursion into the unusual nature of the review jurisdiction exercised by the Tribunal: q.v., e.g. Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; (2011) 119 ALD 472 at 485, [45] per Kenny and Lander JJ and my separate judgment on that subject in that case. Determining whether the circumstances did give rise to the obligation to furnish information for which s 90MZB(3) of the Family Law Act provides and, if so, what information, does require an excursion into both the definition of “superannuation interest” as well as the regulations to which reference is made in that subsection namely, the Family Law (Superannuation) Regulations 2001 (FLSR). Before embarking on that excursion and in fairness to Mr Campbell’s submissions, which he made in a considered and courteous way with the assistance, at his request and with my permission, of a “McKenzie’s friend” (q.v. McKenzie v McKenzie [1971] P 33) at the Bar table, the following should be stated. The essence of Mr Campbell’s submissions was that superannuation was a benefit paid in respect of age retirement, whereas his invalidity pension benefit was paid by virtue of a medical condition which occasioned a degree of incapacity to undertake remunerative work. Intuitively, with respect to what constitutes “superannuation”, this submission is not without attraction, although it gives insufficient acknowledgement to the nuance that ill-health as well as age might occasion retirement. This is apparent from a meaning given to the word “superannuation” by the Oxford English Dictionary, particularly in relation to the usage of that word in Australia and New Zealand: Money, or an allowance or pension, paid to a retired person, or one who can no longer work. Also: a fund providing this, or regular payment made towards such a fund by an employed person.

Ratio Decidendi

Legal Principle Established

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