David v Superannuation Complaints Tribunal
[2005] FMCA 1919
•22 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DAVID v SUPERANNUATION COMPLAINTS TRIBUNAL & ORS | [2005] FMCA 1919 |
| ADMINISTRATIVE LAW − Administrative Decisions (Judicial Review) Act Complaint to Superannuation Complaints Tribunal against trustee of superannuation fund − whether Tribunal failed to make a decision − whether there was unreasonable delay by Tribunal. |
| Superannuation (Resolution of Complaints) Act1993 (Cth) Evans v Superannuation Complaints Tribunal [2002] FCA 79 |
| Applicant: | ATHIP G DAVID |
| Respondent: | SUPERANNUATION COMPLAINTS TRIBUNAL & ORS |
| File Number: | MLG 1277 of 2005 |
| Judgment of: | Phipps FM |
| Hearing date: | 9 November 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 22 December 2005 |
REPRESENTATION
| The Applicant in person |
No appearance for the First or Second Respondent
| Counsel for the Third Respondent: | Mr Connellan |
| Solicitor for the third Respondent: | Andrew Mitchell, Legal Counsel |
ORDERS
That the application against the first and second respondents is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1277 of 2005
| ATHIP G DAVID |
Applicant
And
| SUPERANNUATION COMPLAINTS TRIBUNAL & ORS |
Respondent
REASONS FOR JUDGMENT
The Superannuation (Resolution of Complaints) Act1993 (Cth) provides for a system of external review of decisions made by a trustee of a superannuation fund. Section 6 of the Act establishes the first respondent, the Superannuation Complaints Tribunal. The second respondent is the chairperson of the Tribunal. The third respondent is the trustee of the Universal Superannuation Scheme. The applicant is a member of the scheme. The applicant has made a complaint to the Tribunal that the trustee has not credited correct amounts to his superannuation accounts.
On 22 August 2005, the applicant filed an application in the Federal Court of Australia under s.7(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The proceeding was transferred to the Federal Magistrates Court by order of Sundberg J on 7 October 2005.
Section 7(1) provides:
Where:
(a) a person has a duty to make a decision to which this Act applies;
(b) there is no law that prescribes a period within which the person is required to make that decision; and
(c) the person has failed to make that decision;
a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision.
The applicant lodged his complaint with the Tribunal on 8 February 2005. His complaint is that his superannuation accounts should be credited with an additional amount of $796.16 for the financial years ending 30 June 2000 and 30 June 2001. In his application to the Court, he applies for an order that the Tribunal deal with his complaint expeditiously and an order that the Tribunal provide him with an explanation for the delay and an expected completion date.
Against the trustee, the applicant applies for an order directing the trustee to provide the necessary assistance to the Tribunal including access to documents and personnel to facilitate the resolution of his complaint.
The applicant has filed an affidavit in which he sets out the basis of his complaint. He complains that based on the performance figures for two portfolios in which he has units he should have been credited with extra amounts. He sets out his expectation of how the Tribunal and the trustee should deal with his complaint. He considers that the Tribunal has not been dealing with his complaint expeditiously and that the trustee has not been providing assistance as it should.
The Tribunal and the chairperson have filed a submitting appearance. At the hearing on 9 November 2005, the trustee appeared by Counsel. Counsel for the trustee advised that if the application against the trustee was dismissed on that day, it would not seek an order for costs.
I dismissed the application against the trustee and advised that I would deliver my reasons for the dismissal together with dealing with the application against the first and second respondent.
The second respondent, the chairperson of the Tribunal, sets out in an affidavit the history of the complaint and the steps the Tribunal has taken. They are:
a)8 February 2005 -The Tribunal received a complaint made by the Applicant against the Universal Superannuation Scheme.
b)9 February 2005 -the Applicant made an additional submission relating to his complaint.
c)9 February 2005-The Tribunal wrote to the Applicant requesting that he completes a Registration of Complaint Form.
d)14 February 2005 -The Tribunal received the completed Registration of Complaint Form from the Applicant.
e)28 February 2005 -Assistant Director completed the Application Checklist.
f)28 February 2005 -The complaint file was allocated to the Complaints Analyst by the Assistant Director.
g)1 March 2005-Complaints Analyst issued a notice under Section 17 of the Superannuation (Resolution of Complaints) Act 1993 to the Applicant and the Trustee.
h)31 March 2005 - The Trustee's response to the Section 17 Notice was received by the Tribunal.
i)4 April 2005 -Post Section 17 Checklist was completed by the Complaints Analyst.
j)12 April 2005 -the Tribunal sent a letter to the Trustee requesting copies of the 2000, 2001, 2002, 2003 and 2004 Annual Reports. The Trustee was given 14 days from receipt of the letter to provide these documents.
k)12 April 2005 -The Tribunal sent a letter to the Applicant advising him that his complaint was still under investigation.
l)5 May 2005 - The Tribunal received from the Trustee the annual reports requested in its letter of 12 April 2005.
m)20 May 2005 -Following analysis of the Annual Reports by the Complaints Analyst, the Tribunal sent a letter to the Trustee requesting further information relating to how the additional 504 units credited to the Applicant's account were calculated.
n)25 May 2005 -The Tribunal sent a letter to the Applicant advising that his complaint was still under investigation.
o)15 June 2005 -the Tribunal sent a letter to the Trustee requesting a response to the Tribunal's letter of 20 May 2005. The Tribunal gave the Trustee 5 further days from the receipt of the letter to respond.
p)22 June 2005 -The Tribunal received an e-mail from the Trustee giving details how the additional 504 units have been calculated.
q)5 July 2005 -The Tribunal sent an e-mail to the Trustee seeking clarification of the investment returns for the National Balanced option stated in the 2001 Annual Report compared to those shown on the Applicant's Annual Benefit Statement.
r)28 July 2005 -The Tribunal received an e-mail from the Trustee advising that a response to the 5 July 2005 emails could be expected by 29 July 2005.
s)1 August 2005 -The Tribunal sent a letter to the Applicant advising him that his complaint was still under investigation and additional information had been requested from the Trustee
t)3 August 2005 -The Complaints Analyst completed the Complaint Report and provided it to the Director for her action.
The chairperson then says they had been advised by the Director of the Tribunal that since the completion of the Analysts Report, legal advice has been sought as to whether the matter is outside the Tribunal's jurisdiction due to the operation of s.14(6) of the Complaints Act.
The legal advice obtained is to the effect that at least some aspects of the subject matter of the complaint lie within the jurisdiction of the Tribunal. The chairperson says this is because some aspects of the complaint involves specific communications made to the Applicant by the trustee, as opposed to matters that only involve the management of the fund as a whole, issues that are excluded from the Tribunal's jurisdiction under s.14(6).
The chairperson then says that no further progress relating to the complaint has been made since the service of the Federal Court proceedings on 25 August 2005 because s.20 of the Complaints Act prevents the Tribunal from dealing with the complaint if the subject matter of the complaint is the subject of any Court proceedings.
The question is whether the Tribunal has failed to make a decision or whether there has been unreasonable delay in making a decision. The history set out in the chairperson’s affidavit shows regular steps being taken in investigating the complaint. The longest periods between steps is while the Tribunal is waiting for a response from the Trustee.
Between 1 March 2005 and 31 March 2005, the Tribunal was waiting for the Trustee's response to the Section 17 Notice. Between 12 April 2005 and 5 May 2005, the Tribunal was waiting for the requested copies of Annual Reports. Between 20 May 2005 and 22 June 2005, the Tribunal was waiting for a response to its request for further information about calculations for the additional 504 units. An additional letter was sent by the Tribunal on 15 June 2005 requesting a response to the Tribunal's letter of 20 May 2005. Between 5 July 2005 and 1 August 2005, the Tribunal was waiting for a response to its queries about calculations of returns.
The applicant's complaint is that the investment returns shown in the Annual Reports are inconsistent with the amounts credited to his account. The chairperson does not say so specifically, but clearly an essential part of the Tribunal's investigation is to obtain information from the Trustee. This information needs to include copies of the Annual Reports, how investment returns in them are calculated and how returns to the applicant’s fund are calculated. This information must be analysed. The Tribunal must consider whether the complaint, or whether some parts of it, are within its jurisdiction, and obtain advice as it sees necessary. Whether the process could be quicker is not the point. The question is whether the Tribunal has failed to make a decision or whether there has been unreasonable delay.
Unreasonable delay by the Tribunal is not shown. Delay is not shown. Nor is it shown that the Tribunal has failed to make a decision. The facts necessary for an order under s.7(1) of the Administrative Decisions (Judicial Review) Act are not established. The application applies for orders directing how the Tribunal conducts the investigation of the complaint, and directing the trustee to give assistance. Even if the Administrative Decisions (Judicial Review) Act gives the power to make directions of this sort, the basis for acting under s.7(1) has not been established.
The third respondent, the trustee, may be a necessary party (Evans v Superannuation Complaints Tribunal [2002] FCA 79. Even if it is, again, there is no basis for an order against it.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Sherryn Kwong
Date: 22 December 2005
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