Queensland Local Government Superannuation Board v Superannuation Complaints Tribunal

The Queensland Local Government Superannuation Board (LG Super) appealed a decision of the Superannuation Complaints Tribunal (SCT) concerning the distribution of a surplus in a superannuation fund. The dispute arose from the wind-up and transfer of the City Super fund to LG Super, and how an anticipated surplus, to be determined after the end of the financial year and accounting for tax implications, should be distributed. The core of the disagreement was whether LG Super, as the incoming trustee, was bound by the distribution policy established by the former trustee of City Super.

The SCT was required to determine whether it had jurisdiction to hear a complaint made by Ms. Davies regarding a decision of the trustee, and whether the decision complained of was a "decision" within the meaning of section 14 of the Superannuation (Resolution of Complaints) Act. Furthermore, the SCT had to consider the legal effect of the former trustee's resolution and the subsequent actions of LG Super, specifically whether LG Super was fettered in its discretion regarding the distribution of any surplus.

The court found that while the notice of 2 April 2012 was not itself a decision, both parties were aware of the decision being complained of, and the complaint was made within the prescribed time. Therefore, the SCT did not err in law by accepting jurisdiction. The court also considered the letter of 23 May 2011 from the former trustee of City Super to LG Super, which outlined a policy for dealing with an anticipated surplus, including the creation of an operational risk reserve and funding for the merger. The former trustee requested confirmation that LG Super would adhere to this policy. The court indicated that the question of whether LG Super was bound by this policy was central to the SCT's determination.

The court ultimately held that there was no fetter on the incoming trustee's discretion regarding the distribution of the surplus. The outgoing trustee's request for confirmation did not create a binding obligation on the incoming trustee to follow the specific policy.