FEDERAL COURT OF AUSTRALIA
Mills v Superannuation Complaints Tribunal [2013] FCA 1375
Citation: Mills v Superannuation Complaints Tribunal [2013] FCA 1375 Parties: THOMAS ERIC MILLS v SUPERANNUATION COMPLAINTS TRIBUNAL and GOVERNMENT EMPLOYEES SUPERANNUATION BOARD File number: WAD 241 of 2012 Judge: GILMOUR J Date of judgment: 16 December 2013 Catchwords: COSTS – whether the Court should exercise its discretion and make an order that there be no order as to costs – whether special circumstances exist Legislation: Superannuation (Resolution of Complaints) Act 1993 s 14AA(2), 37(5)-(6)
State Superannuation Regulations 2001 (WA) reg 12
Federal Court of Australia Act 1976 (Cth) s 43Cases cited: Colonial Mutual Life Assurance Society Limited v Brayley [2002] FCA 1333
Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359
Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd (1998) 79 FCR 469
Merkel v Superannuation Complaints Tribunal [2010] FCA 564Date of hearing: Determined on the papers Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 28 Counsel for the Applicant: Ms L B Price Solicitor for the Applicant: Darren Jones, Barrister and Solicitor Counsel for the First Respondent: Ms J Furlan Solicitor for the First Respondent: Superannuation Complaints Tribunal Counsel for the Second Respondent: Mr C S Bydder Solicitor for the Second Respondent: State Solicitor's Office
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 241 of 2012
BETWEEN: THOMAS ERIC MILLS
ApplicantAND: SUPERANNUATION COMPLAINTS TRIBUNAL
First RespondentGOVERNMENT EMPLOYEES SUPERANNUATION BOARD
Second Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
16 DECEMBER 2013
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The second respondent pay the applicant’s costs of the appeal, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 241 of 2012
BETWEEN: THOMAS ERIC MILLS
ApplicantAND: SUPERANNUATION COMPLAINTS TRIBUNAL
First RespondentGOVERNMENT EMPLOYEES SUPERANNUATION BOARD
Second Respondent
JUDGE:
GILMOUR J
DATE:
16 DECEMBER 2013
PLACE:
PERTH
REASONS FOR JUDGMENT
The “appeal” in this matter, which is in the Court’s original jurisdiction, was allowed by consent, by order dated 8 April 2013 and the hearing of the appeal scheduled to commence on the following day was vacated. The matter was remitted to the first respondent (the Tribunal) to be determined in accordance with the law. The question of costs was stood over to be dealt with on the papers. These are the reasons for judgment on the question of costs.
The applicant seeks an order that the second respondent (GESB) pay his costs of the appeal. GESB submits that there should be no order as to costs. The Tribunal filed a submitting appearance save as to costs.
Background
The Notice of Appeal sought an order that the appeal be allowed and that the Court set aside the determination of the Tribunal and remit the matter back to the Tribunal…
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- Case
- [2013] FCA 1375
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the SCT had jurisdiction to review the decision, and if so, whether it had exercised that jurisdiction correctly. The applicant argued that the SCT had not properly interpreted the regulation and had not considered the relevant facts. GESB conceded that the SCT had committed jurisdictional error, but argued that the appeal should not result in an order for costs as the questions of law posed in the Notice of Appeal were not answered, and the applicant had not raised s 14AA(2) of the Superannuation (Resolution of Complaints) Act 1993 (Cth).
The court found that the SCT had indeed failed to exercise its jurisdiction correctly by not considering s 14AA(2) of the Complaints Act. This section was critical to the case as it provided that a non-discretionary decision was taken to have been unfair and unreasonable if it was contrary to law. The court rejected GESB's argument that the questions of law posed were not capable of being answered by the court, as they were directed towards whether the SCT had determined whether the covert allowance was a "special allowance" within the meaning of the regulation. The court also rejected GESB's argument that the error was not its own, as it had conceded the jurisdictional error.
The court held that the appeal should be allowed and that the matter should be remitted back to the SCT to determine the applicant’s complaint according to law. The court also held that the applicant was entitled to his costs of the appeal. GESB's concession that the SCT had failed to exercise its jurisdiction meant that the appeal was determined in favour of the applicant, and the applicant's omissions had not caused GESB to undertake extra work. The court found that the applicant's failure to raise s 14AA(2) did not preclude an order for costs, as the provision was critical to the case and the SCT had failed to consider it.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
I will deal with these in turn.Consideration Questions of law I cannot determine, where the matter was never argued, whether, as GESB submits, the questions of law posed were capable of answer by the Court although I accept that the questions of law were not conceded by GESB. The questions are directed toward, understandably enough, the provisions of s 37(5)-(6) of the Complaints Act. These provisions are directory as to the Tribunal’s duties. Whilst they could have been more elegantly drafted I consider that the applicant’s questions were directed, in substance, as to whether the Tribunal determined whether the covert allowance was a “special allowance” within the meaning of reg 12 of the SS Regulations. Section 14AA(2) of the Complaints Act Section 14AA was inserted into the Complaints Act following the decision of the Full Court in Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd (1998) 79 FCR 469 where it was held that the Tribunal’s jurisdiction was confined to reviewing the exercise of a trustee’s discretionary powers. As GESB submits correctly, s 14AA was a critical provision for the purposes of this case because of what it has to say about the Tribunal’s jurisdiction. However, GESB additionally submits that the provision was also an essential provision for the purposes of this case because it is concerned with how the Tribunal should deal with a complaint that a non-discretionary decision was unfair and unreasonable because the provision specifies that the decision will be taken to have been unfair and unreasonable if it was contrary to law. If the decision was not contrary to law, the Tribunal is obliged to affirm the decision: Colonial Mutual Life Assurance Society Limited v Brayley [2002] FCA 1333 at [29]-[30]. A different reasoning process applies to discretionary decisions: Brayley at [31]-[33]. It then submits that it is apparent from the Tribunal’s failure to refer to s 14AA, or to determine whether the covert allowance was a “special allowance” within the meaning of reg 12 of the SS Regulations, that the Tribunal did not consider s 14AA in determining the applicant’s complaint. It submits that this must be so, given the importance of s 14AA. Likewise it submits that the provision ought to have been mentioned by the applicant in his Notice of Appeal. I do not agree. It was not necessary for the Tribunal, in my opinion, to expressly mention s 14AA(2). As Allsop J (as he then was) observed in Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 at [29]: [29]. . . I would prefer not to use any dichotomy between discretionary and non-discretionary decisions as a tool in this analysis. I do not think that the presence of s 14AA mandates it. The presence of s 14AA is to be understood for reasons other than any which make the terminology used within it a compulsory tool for analysis of the understanding by the Tribunal of its task. I respectfully agree. Section 14AA is declaratory in its effect that the jurisdiction of the Tribunal is not confined to discretionary decisions. Its provisions are required to be observed, but not necessarily mentioned, in its Reasons for Determination, by the Tribunal. The error was not GESB’s