Marshall v Emergency Services Superannuation Board

[2021] VSC 225

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 02253

PETER MARSHALL	Appellant
– and –
EMERGENCY SERVICES SUPERANNUATION BOARD	First Respondent
UNITED FIREFIGHTERS’ UNION OF AUSTRALIA	Second Respondent

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JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May 2020. Last written submission filed 18 June 2020.
DATE OF JUDGMENT:	30 April 2021
CASE MAY BE CITED AS:	Marshall v Emergency Services Superannuation Board & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 225

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ADMINISTRATIVE LAW – Application for leave to appeal from decision of Victorian Civil and Administrative Tribunal (‘VCAT’) relating to public sector superannuation – Application argued in Court without reference to any question about VCAT’s jurisdiction – Court later perceiving reason to doubt VCAT’s jurisdiction – Matter to be relisted for further argument – Emergency Services Superannuation Act 1986 (Vic) s 23 – Victorian Civil and Administrative Tribunal Act (1998) (Vic) ss 45, 46, 148.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	MR Pearce SC with D Langmead	Davies Lawyers
For the First Respondent	SJH Ure	Hall & Wilcox
For the Second Respondent	RC Kenzie QC with TJ Dixon	Mills Oakley

HIS HONOUR:

1. This matter comes to the Court as an application for leave to appeal and, if leave be granted, an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’), on questions of law, from an order of the Victorian Civil and Administrative Tribunal (‘VCAT’) purported to have been made in the exercise of its review jurisdiction.

1. From 1984 to 1995, the appellant, Mr Peter Marshall, was an operative professional firefighter in Melbourne.  He remains an officer or employee of the Melbourne Metropolitan Fire Brigades Board.  Since 1995 he has been on unpaid leave of absence to serve as the paid Secretary of the Victorian Branch of the second respondent, the United Firefighters’ Union of Australia (‘the Union’).  For some or all of that period he has also served as the paid National Secretary of the Union.

1. The first respondent, the Emergency Services Superannuation Board (‘the Board’), administers a defined benefits superannuation scheme pursuant to the Emergency Services Superannuation Act 1986 (Vic) (‘the Act’). Mr Marshall has been a contributor to the defined benefits scheme since 1987. He has also been a member of a separate accumulation scheme administered by the Board.

1. Generally speaking, under the defined benefits scheme, monetary contributions to the scheme are required to be made by each member and by each member’s employer; and the amount of the required contributions depends to a large extent on the amount, from time to time, of the member’s ‘salary’, as that term is defined and used in the Act. Further, under the defined benefits scheme, the amount of a contributor’s retirement benefit can depend significantly on the amount of the contributor’s ‘salary’ in the two years immediately prior to retirement. Frequently, the expression ‘superable salary’ is used to refer to a contributor’s ‘salary’ within the meaning and for the purposes of the defined benefit scheme, although the expression ‘superable salary’ does not actually appear in the Act.

1. In or around the period between 2014 and 2017, Mr Marshall was contemplating retiring from his positions with the Union and taking a benefit under the defined benefits scheme and other superannuation benefits from the Board.  He and the Union made some enquiries and representations to officers of the Board about what his benefits on retirement might be. 

1. In March and April 2017 a committee of the Board, known as the Benefits and Services Committee, made decisions to the effect that certain components of Mr Marshall’s overall remuneration from the Union should not be included in his ‘superable salary’.

1. Mr Marshall and the Union were both dissatisfied with the Committee’s decisions.  What happened next is a little obscure (see further below), but ultimately both Mr Marshall and the Union lodged applications for review with VCAT in connection with the subject matter of the Committee’s decisions.  The abovementioned (final) order made by VCAT was expressed to set aside the decisions of the Committee. Otherwise, in substance, it was largely to the same effect as the Committee’s decisions, although it took the form of a declaration as to how Mr Marshall’s ‘superable salary’ was to be determined for the financial years ending 30 June 2014, 2015, 2016 and 2017 respectively.

1. VCAT’s order was accompanied by a detailed set of written reasons.[1] 

   [1]United Firefighters Union of Australia & Marshall v Emergency Services Superannuation Board (Review and Regulation) [2019] VCAT 594.

1. Mr Marshall now seeks leave to appeal from VCAT’s order; and the Union makes common cause with him. The matter has been the subject of extensive written and oral submissions in this Court relating mainly to issues concerning the proper interpretation and application of the definition of ‘salary’ in the Act, including questions as to whether VCAT properly identified and exercised any relevant discretion conferred by the Act. On the other hand, neither Mr Marshall nor the Board nor the Union suggested before this Court that VCAT lacked or may have lacked jurisdiction to entertain the applications for review which had been made to it. Nor do VCAT’s reasons indicate that any such suggestion was raised by or before it.

1. In those circumstances, after reserving my decision, I proceeded to consider in depth the complex substantive issues that had been argued before me in this matter.

1. However, for reasons I will explain below, it now seems to me that VCAT may well have had no jurisdiction to entertain the applications that were made to it or to make the order in question.  If that be so, then the proceeding in this Court will be fundamentally affected.  Its whole foundation, including VCAT’s findings of fact and law and VCAT’s exercises of perceived discretion, will have been removed.  So it would probably become inappropriate for this Court, at least for so long as this proceeding remains framed as it is presently framed, to pronounce upon any of the substantive issues between the parties that have been argued. 

1. Accordingly, in my view, the parties must be given an opportunity to be heard on the VCAT jurisdictional point, and about what might be done hereafter in this proceeding, or otherwise as between themselves, and I propose to fix a time for an oral hearing to deal with those matters.

VCAT’s jurisdiction

1. To enable the parties to focus on the point about VCAT’s jurisdiction that is concerning me, I will elaborate on it.

1. If VCAT had any jurisdiction in this matter, and if VCAT would have any jurisdiction to deal substantively with any remittal of the matter by this Court, that jurisdiction was and would be conferred by s 23 of the Act, in conjunction with the VCAT Act. Section 23 of the Act provides:

Person may request Board to reconsider decision

(1)A person who is affected by a decision of the Board which relates to the entitlement of any person to any benefit may, by written notice given to the Board within 30 days after the decision comes to the notice of the person, request the Board to reconsider the decision.

(2)The Board may, on receipt of a written application, extend or further extend, the time for the giving of notice to the Board requesting the Board to reconsider a decision.

(3)       The request must set out the grounds on which the request is made.

(4)On receipt of the request, the Board must reconsider the decision, and may confirm or vary the decision in any way the Board thinks fit.

(5)The Board must, within 30 days after receipt of the request, by written notice inform the person who made the request of the result of the Board's reconsideration of the decision.

(6)A person whose interests are affected by a decision of the Board may apply to the Victorian Civil and Administrative Tribunal for review of the decision.

(7)An application for review must be made within 28 days after the later of—

(a)       the day on which the decision is made; or

(b)if, under the Victorian Civil and Administrative Tribunal Act 1998 , the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.

1. The presently relevant question is whether VCAT has jurisdiction under ss 23(6) and (7) of the Act to review a decision of the Board other than a decision made by the Board upon the reconsideration (pursuant to a valid request made to the Board under s 23(1)) of a decision previously made by the Board.

1. Although of course my current view is entirely subject to such submissions as I may hereafter receive from the parties, my strong provisional inclination is to the view that, in this field, VCAT’s only relevant jurisdiction is to review a decision that has been made by the Board upon a reconsideration under ss 23(1) to (5) of the Act. Otherwise, s 23 as a whole would have the strange effect that, whereas a request for internal reconsideration can only be made in respect of a relatively narrow class of decision (namely a decision of the Board ‘which relates to the entitlement of any person to any benefit’), an application could be made to VCAT for the review of any decision at all of the Board.[2]  That such a result was intended by Parliament seems highly unlikely.

   [2]In each case there is a standing requirement. They are similar. Under s 23(1) a ‘person who is affected’ by a decision of the specified kind can make a request for reconsideration. Under s 23(6) a person ‘whose interests are affected’ by a decision of the Board may apply to VCAT for review.

1. Speaking more generally, a strict requirement to pursue internal reconsideration or review, or some form of relatively informal external review, of an administrative decision before a person is entitled to seek formal review by an external body like VCAT or its predecessor, the Victorian Administrative Appeals Tribunal, has not been at all uncommon in comparable Victorian and Commonwealth legislation.[3]

   [3]See, eg, Seaman v Department of Justice (General) [2009] VCAT 1444, [19] (freedom of information); Au and Le and Repatriation Commission (Veterans' Entitlements) [2020] AATA 1996, [15], [17].

1. Hence my strong provisional view is that, in s 23(6), the expression ‘a decision of the Board’ means a decision of the Board by way of reconsideration of a decision of the Board of the kind referred to in s 23(1).

1. In the written submissions that were filed on behalf of Mr Marshall in the proceeding in this Court,[4] it was asserted that there had been a request for internal reconsideration of the decisions of the Committee.  That much appears to be accurate.[5]  However, as I will indicate, it seems that no reconsideration actually took place.

   [4]Appellant’s outline of submissions dated 26 September 2019, [44].

   [5]See letter dated 21 June 2017 from the solicitors for Mr Marshall to the Board at Court Book (‘CB’) C466.

1. At much the same time as he sought internal reconsideration, Mr Marshall also purported to make a request under ss 45 and 46 of the VCAT Act for a statement of reasons for the decisions of the Committee.[6]  Whereas Mr Marshall’s submissions in this Court assert that the ‘review decision was given on 13 July 2017 by memorandum signed on the [Board’s] behalf by Mr Pearse’,[7] it now appears to me that that memorandum was no more than a statement of reasons (given voluntarily[8]) for the two decisions made by the Committee in March and April 2017.  Indeed, the document describes itself as just that – a statement of reasons for those decisions.[9]  I can find nothing in the material before the Court to indicate that there was in fact a decision made by the Board (or by any person or body associated with the Board) by way of reconsideration of the decisions of the Committee.  Moreover, in VCAT’s reasons for decision,[10] the decisions under review are expressly identified as being, first, a determination made by the Benefits and Services Committee of the Board on 9 March 2017 (in certain specified terms), and, second, a further determination made by that Committee on 18 April 2017 (in certain other specified terms).  Consistently with this, the order made by VCAT refers to and purports to set aside the ‘decisions’ (plural) of the Board.  There is no reference in VCAT’s extensive statement of reasons to any decision on internal reconsideration.

   [6]Ibid.

   [7]Appellant’s outline of submissions dated 26 September 2019, [44]: CB A23.

   [8]If my provisional reading s 23 is correct, and if (as appears to be the case) neither Mr Marshall nor the Union made any request under s 8 of the Administrative Law Act 1978 (Vic) for a statement of reasons, then there was actually no legal obligation (whether under ss 45 and 46 of the VCAT Act or otherwise) on the Board or its Committee to give a statement of reasons for the decisions of the Committee.

   [9]CB C556–C572, especially at C556.

   [10]United Firefighters Union of Australia & Marshall v Emergency Services Superannuation Board (Review and Regulation) [2019] VCAT 594, [35], [36].

1. During and after the hearing before me, I simply assumed that the appellant’s written submissions were correct insofar as they asserted that there had been a decision of the Board on internal reconsideration. I did so in circumstances where there was nothing said on behalf of the Board in this Court, either in its written submissions or otherwise, contradicting the assertion made by Mr Marshall. However, it now seems tolerably clear that the assertion was made in error. So, if my provisional interpretation of s 23 be correct, it would seem to follow that VCAT had no jurisdiction.[11]

   [11]See and cf Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250, 271–2 [51]–[54] (Bell, Gageler, Gordon and Edelman JJ); and my decision in McKechnie v Victorian Civil and Administrative Tribunal (2020) 62 VR 54, 98–115 [106]–[155], especially at 103 [118].

1. As a related matter, I would add that there may be a question about the authority of the Benefits and Services Committee to make the decisions of March and April 2017 in the first place, and/or as to whether that Committee’s decisions amounted to decisions ‘of the Board’ within the meaning of s 23 of the Act.

1. Both s 23(1) and s 23(6) refer to a decision ‘of the Board’. Section 7 of the Act provides that the Board is to consist of 12 members appointed by the Governor in Council, being persons within a series of categories specified in that section. Certain positions are reserved for contributors or members elected to the Board by fellow contributors or members. Section 12(9) of the Act provides that if a matter to be determined by the Board at a meeting is a matter affecting a benefit entitlement of a contributor or a member of the Scheme, the matter can only be determined by a resolution passed by a two-thirds majority of the total number of members of the Board that includes at least two elected members representing contributors and at least another two members representing certain other members of the scheme. It may be that any protection of contributors’ and members’ interests conferred by s 12(9) can be bypassed. Read as a whole, the Act may not require that a matter affecting a benefit entitlement of a contributor or a member of the Scheme can only be determined at a meeting of the full Board. Section 12C provides that the Board may establish one or more committees of members of the Board. (Presumably the Benefits and Services Committee was established under s 12C.) Section 12C(2) provides that the Board may by instrument of delegation delegate any of its functions or powers, other than that power of delegation, to a member of a committee. Presumably this is intended to mean that the delegation can be not only to a member of a committee but also to the Committee itself. Section 14 of the Act provides that the Board may, by an instrument of delegation under its common seal, delegate to the President, a member of the Board, the Chief Executive Officer or (in effect) a person on the staff of the Board any function, power or duty of the Board under the Act (or under certain other Acts) other than the power of delegation itself.

1. Accordingly, it seems that the decisions of the Benefits and Services Committee in Mr Marshall’s case may have been within power, but only if there was an appropriate delegation in place at the relevant time. If they were not within power, arguably they were not decisions ‘of the Board’ within the meaning of s 23 of the Act.[12]  VCAT made a passing reference to the matter of delegation of the powers of the Board, but otherwise the material before this Court does not deal with that matter.

   [12]But cf Re Brian Lawlor Automotive Pty Ltd & Collector of Customs (NSW) (1978) 1 ALD 167 and Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307.

1. Another matter that may possibly affect the jurisdiction of VCAT in this matter relates to the time limits imposed by ss 23(1) and (7) of the Act. Unfortunately, the material before this Court does not include any copies of the applications for review that were made to VCAT. Provisionally, even if there was a decision made ‘by the Board’, and even if it was made on reconsideration, it may be necessary to check that the applications to VCAT for review were made within 28 days of the decision on reconsideration, or within any extension of time that may have been granted by VCAT under s 126 of the VCAT Act. Again, there is no reference to any problem about time in VCAT’s reasons or in the material before the Court.

1. In any event, the principal jurisdictional concern is the one arising from the absence of internal reconsideration of the Committee’s decisions.

Utility of this proceeding generally

1. At the hearing I expressed a separate concern about the utility or otherwise of entertaining this application for leave to appeal. My concern was based mainly on the fact that Mr Marshall had deferred his retirement plans until at least 2021 and on the abovementioned fact that, under the Act, a principal determinant of the amount of any benefit payable under the defined benefits scheme is the amount of the contributor’s ‘superable salary’ for the two years immediately before retirement. I mentioned also that if the Court were to arrive at the view that VCAT’s approach to the substantive issues was affected by error of law such that it became necessary for the matter to be reconsidered and redetermined – and all the more so if any such error of law had been shared by the Board and had affected the development of relevant general policies of the Board – then it might be best if any reconsideration were carried out, at least in the first instance, at Board level, rather than at VCAT level. If any such reconsideration were necessary, a return to Board level would have the advantage that a fresh, comprehensive decision could be made, taking into account not only the correct legal principles and any revised policies, but also the fact of the deferral of Mr Marshall’s retirement and any other more recent events relevant to Mr Marshall’s ‘superable salary’. The abovementioned VCAT jurisdictional point only compounds my concerns in these regards.

1. Additionally, consideration may need to be given to the current legal standing of the Committee’s decisions if it turns out that VCAT had no jurisdiction or power to set them aside.

The course to be taken now

1. In view of the matters discussed, I propose to list this proceeding for further argument in the near future.  The Court would be available to hear the matter further on 13 or 14 May 2021, or on certain later days in May 2021 if desired.

1. I will order that, subject to further order, the proceeding be listed for further argument on Thursday 13 May 2021.

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