Matsen v Superannuation Complaints Tribunal

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FEDERAL COURT OF AUSTRALIA

Matsen v Superannuation Complaints Tribunal [2017] FCA 765

File number: NSD 608 of 2015
Judge: PERRY J
Date of judgment: 6 July 2017
Catchwords: SUPERANNUATION – Application to set aside consent orders – application dismissed
Legislation: Federal Court Rules 2011 (Cth) r 39.05
Cases cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Harvey v Phillips (1956) 95 CLR 235

Huddersfield Banking Co. Ltd. v Henry Lister & Son Ltd (1895) 2 Ch 273

Date of hearing: 6 July 2017
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 31
Counsel for the Applicant: The Applicant appeared in person
Solicitor for the Second Respondent: Mr M Corkhill, TurksLegal
Counsel for the Third Respondent: Mr G Smith
Solicitor for the Third Respondent: Martin Trisley Lawyers
Counsel for the Fourth Respondent: The Fourth Respondent did not appear

ORDERS

NSD 608 of 2015
BETWEEN:

KENNETH MATSEN

Applicant
AND:

SUPERANNUATION COMPLAINTS TRIBUNAL

First Respondent

RETAIL EMPLOYEES SUPERANNUATION PTY LIMITED

Second Respondent

CHERIE LEE BENNETT

Third Respondent

ELIZABETH PEARSALL

Fourth Respondent

JUDGE:

PERRY J

DATE OF ORDER:

6 JULY 2017

THE COURT ORDERS THAT:

1.The applicant’s application to set aside the orders made by consent on 29 July 2016 is dismissed.

2.The applicant is to pay the costs of the third respondent as agreed or assessed.   

3.There otherwise be no order as to costs.

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


REASONS FOR JUDGMENT

(Revised from transcript)

PERRY J:

1.               INTRODUCTION

  1. This is an interlocutory application by Mr Kenneth Matsen filed on 5 October 2016 to set aside final orders made by consent on 29 July 2016 following a court ordered mediation.  The application was filed with a supporting affidavit that was signed by Mr Matsen on 29 September 2016.  The application is opposed by the third respondent, Ms Cherie Lee Bennett.  The other respondents have not filed any documents in response to the application.  The solicitor for the second respondent, Retail Employees Superannuation Pty Limited, appeared at the hearing in order to assist the Court with any queries that may arise but indicated that the second respondent would abide the decision of the Court save as to costs.

    2.               EVIDENCE

  2. Mr Matsen filed three affidavits in support of his application, namely:

    (1)an affidavit sworn on 29 September 2016;

    (2)an affidavit sworn and filed on 8 March 2017; and

    (3)an affidavit sworn on 8 May 2017 (filed 9 May 2017).

  3. While these were read without objection in the sense that the third respondent did not seek to have any part of the evidence excluded, nonetheless counsel for the third respondent explained that his client had a “blanket objection” to the disclosure of settlement discussions with the third respondent.  Such negotiations are confidential and the objection was properly made. Nor did the content of the negotiations themselves appear to be relevant to any part of the grounds for…

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Details
Case
[2017] FCA 765
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court, Mr Kenneth Matsen applied to set aside final orders made by consent on 29 July 2016, following a court-ordered mediation. The orders related to the distribution of superannuation benefits from the estate of Mr Matsen’s deceased son, Timothy Matsen. The application was opposed by Ms Cherie Lee Bennett, the third respondent, while the other respondents did not file any documents in response. The court had to decide whether the consent orders could be set aside based on the applicant's claims of duress and misunderstanding of the mediation process.

The court considered the legal principles governing the setting aside of consent orders, noting that such orders are generally binding unless there is a valid ground for invalidating them. The court rejected the applicant's claims of duress, finding that the alleged circumstances did not meet the high threshold required to establish such a serious allegation. The court also dismissed the applicant's concerns about the mediation process, ruling that the mediator was not required to provide legal advice and that the process followed was not unusual. The court concluded that the applicant's misunderstanding of the mediation process did not justify setting aside the consent orders.

The court dismissed the application to set aside the consent orders, holding that the applicant had not provided sufficient grounds for invalidating the orders. The court also ordered the applicant to pay the costs of the third respondent, Ms Cherie Lee Bennett, as agreed or assessed. There was no order as to costs with respect to the other respondents.

This decision reinforces the principle that consent orders are binding and should only be set aside on valid grounds. The court emphasized that concerns about the mediation process or misunderstandings do not generally provide sufficient grounds for setting aside consent orders, particularly when the mediator acted independently and without interest in the outcome. The court's ruling also highlights the importance of ensuring that parties fully understand the implications of entering into consent orders, but it also underscores the finality of such agreements once they are properly entered into.

Orders

Orders of the court

1. The applicant’s application to set aside the orders made by consent on 29 July 2016 is dismissed.

2. The applicant is to pay the costs of the third respondent as agreed or assessed.

3. There otherwise be no order as to costs.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

This is an interlocutory application by Mr Kenneth Matsen filed on 5 October 2016 to set aside final orders made by consent on 29 July 2016 following a court ordered mediation. The application was filed with a supporting affidavit that was signed by Mr Matsen on 29 September 2016. The application is opposed by the third respondent, Ms Cherie Lee Bennett. The other respondents have not filed any documents in response to the application. The solicitor for the second respondent, Retail Employees Superannuation Pty Limited, appeared at the hearing in order to assist the Court with any queries that may arise but indicated that the second respondent would abide the decision of the Court save as to costs.2. EVIDENCE Mr Matsen filed three affidavits in support of his application, namely:(1)an affidavit sworn on 29 September 2016; (2)an affidavit sworn and filed on 8 March 2017; and(3)an affidavit sworn on 8 May 2017 (filed 9 May 2017). While these were read without objection in the sense that the third respondent did not seek to have any part of the evidence excluded, nonetheless counsel for the third respondent explained that his client had a “blanket objection” to the disclosure of settlement discussions with the third respondent. Such negotiations are confidential and the objection was properly made. Nor did the content of the negotiations themselves appear to be relevant to any part of the grounds for the application. Counsel for the third respondent also submitted that evidence annexed to the applicant’s affidavit dated 8 March 2017 in relation to the substantive issues which would arise if the consent orders were set aside was not relevant. I agree. The Court is presently seized only of the application to set aside the consent orders and at this stage only evidence bearing upon that application is relevant. I also ruled against an oral application by the applicant to adduce further evidence of a tax ruling post-dating the making of the consent orders on the ground that the evidence could not have any relevance to the circumstances in which the consent orders the subject of the application came to be made. The third respondent relied upon the affidavit of Martin Trisley, the solicitor for the third respondent, affirmed on 13 April 2017 (Trisley affidavit) which was read without objection. 3. BACKGROUND Consent orders were made in proceedings instituted on 27 May 2015 and in an appeal later instituted by the third respondent. In the initial proceedings, Mr Matsen appealed a decision of the Superannuation Complaints Tribunal (the Tribunal) dated 8 May 2015. The decision related to Mr Matsen’s deceased son, Mr Timothy Matsen, who died without leaving a will or indicating a beneficiary to his superannuation fund. On the application of Timothy Matsen’s former partner, Ms Cherie Lee Bennett, the Tribunal substituted a decision by the trustee of the fund to pay the whole of the death benefit payable under Timothy Matsen’s superannuation policy to his father, with a decision to distribute the death benefit to Ms Pearsall who was the son’s mother, Ms Bennett, and Mr Matsen. A related proceeding was subsequently instituted as I have mentioned by Ms Bennett to which Mr Matsen was also a party.

Decision

Reasons for decision

Finally, while the authorities do not suggest that I have any discretion in the matter, nonetheless in all of the circumstances I consider that the conclusion which I have reached is in the interests of justice. In this regard, I note that the third respondent agreed to her detriment to withdraw her appeal as a part of the agreement embodied in the consent orders, and that the funds from the son’s superannuation fund have since been dispersed at least in part. This result also furthers the principle of the finality of litigation, as the third respondent submitted. In so saying, I also understand, as I have earlier indicated, that the matters which Mr Matsen would seek to litigate if the consent orders were set aside, are matters about which he feels very strongly. 6. CONCLUSION For these reasons the application is dismissed. The applicant is to pay the costs of the third respondent as agreed or assessed. There be no order as to costs with respect to the second respondent.

Ratio Decidendi

Legal Principle Established

Absent a ground on which the consent order can be invalidated, “the consent order is good”: ibid (citing Huddersfield Banking Co. Ltd. v Henry Lister & Son Ltd (1895) 2 Ch 273 at 280 with approval.5. CONSIDERATION The grounds on which Mr Matsen seeks to set aside the consent orders were conveniently summarised by the third respondent as follows (being a summary with which I agree):(a)The applicant informed the mediator that it was “an unfair situation” as the applicant had no assistance and that he was not “up to the task”.(b)The applicant was “locked in a most unsuitable room”.(c)The applicant informed the mediator that at the time he was unable to negotiate as the travel had rendered him unable to protect his interests.(d)The mediator refused to respond to that situation and “pressurised” the applicant to continue the process.(e)The mediator advised the applicant that he was unable to leave until the applicant “wrote out the reasons” for leaving the negotiations, and that the applicant was in no condition to do so as he had been travelling “for a day”.(f)The applicant was in physical pain.(g)The applicant had had eyesight problems.(h)The applicant had most of his teeth removed.(i)There was no “face to face with the other parties”.(j)The applicant only signed, presumably the Short Minutes, to enable him to leave the Federal Court building. A concern about the manner in which the mediation was held and the fact that it may not have accorded with the applicant’s expectations in that regard, do not provide a basis on which to set aside the consent judgment in line with the principles to which I have earlier referred. Rather, as the third respondent submitted, the highest that the applicant’s case can be put is that he entered into the agreement under duress from the Registrar. That allegation is of the utmost seriousness and to be established, it would be necessary for the Court to be satisfied that the ground was made out in line with the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J), namely: …reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences … In this case, the inherent unlikelihood of the allegations made against the Registrar are increased also by reason of the fact that the Registrar had no interest in the outcome of the mediation, no association with any party, and is an independent officer of the Court. It became apparent during the hearing that the applicant’s concerns at least to some extent arose because of his misunderstanding of the mediation process, including the criticism that the Registrar had not advised of certain consequences of entry into the agreement, as well as the applicant’s concern that the mediation was not “face to face”. As to the first matter, quite apart from the lateness of the allegation, it is not the role of the mediator to provide legal advice to the parties as the respondent submitted. Nor is there any evidence suggesting that the applicant did not understand the effect of the agreement. Furthermore, there is nothing unusual in a mediation being conducted with the parties in different rooms as occurred here. None of these matters could approach establishing duress; nor, even assuming that it was the case, could a requirement that the applicant identify in writing the reasons why he did not wish to proceed with the court ordered mediation before bringing the mediation to a close.