Riseley v Suncorp Portfolio Services Limited

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FEDERAL COURT OF AUSTRALIA

Riseley v Suncorp Portfolio Services Limited [2021] FCA 472

File number: WAD 155 of 2020
Judgment of: COLVIN J
Date of judgment: 7 May 2021
Catchwords:

ADMINISTRATIVE LAW - applications for judicial review of decisions of Superannuation Complaints Tribunal - whether Tribunal failed to identify decision about which complaint was made - whether Tribunal misunderstood nature of its task - whether onus placed on applicants to establish complaint - whether Tribunal erred in findings that there was no evidence - applications dismissed

SUPERANNUATION - where Tribunal exercised power to treat complaints as withdrawn on basis that complaints lacking in substance pursuant to s 22(3)(b) of Superannuation (Resolution of Complaints) Act 1993 (Cth) - where applicants made complaints regarding management of superannuation account and that they were not issued with total and permanent disability cover - where insurance arrangements recommended to applicants by advisor - where advisor not a representative of trustee of superannuation fund or insurer
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 44

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 477

Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 12, 14, 16, 22, 37
Cases cited:

Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8

CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57

McAtamney v Superannuation Complaints Tribunal [2016] FCA 1062
Division: General Division
Registry: Western Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 128
Date of hearing: 28 April 2021
Counsel for the Applicants: Mr BD Kaplan and Mr M Varley (pro bono)
Counsel for the First Respondent: Ms G Crafti
Solicitor for the First Respondent: Moray & Agnew Lawyers
Counsel for the Second Respondent: The Second Respondent did not appear
Counsel for the Third Respondent: Mr JG Duncan
Solicitor for the Third Respondent: Clyde & Co
Counsel for the Fourth Respondent: The Fourth Respondent filed a submitting notice save as to costs

ORDERS

WAD 155 of 2020
BETWEEN:

JOHN RANDLE RISELEY

First Applicant

COLLEEN ROBYN RISELEY

Second Applicant
AND:

SUNCORP PORTFOLIO SERVICES LIMITED

First Respondent

SUPERANNUATION COMPLAINTS TRIBUNAL

Second Respondent

ASTERON LIFE SUPERANNUATION LIMITED

Third Respondent

AUSTRALIAN FINANCIAL COMPLAINTS AUTHORITY LIMITED

Fourth Respondent

ORDER MADE BY:

COLVIN J

DATE OF ORDER:

7 MAY 2021

THE COURT ORDERS THAT:

1.The applications are dismissed.

2.The applicants pay the costs of the first and third respondents to be assessed if not agreed.

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


REASONS FOR JUDGMENT

COLVIN J:

  1. The functions of the Superannuation Complaints Tribunal (Tribunal) include inquiring into any complaint by a member of a regulated superannuation fund (fund) that a decision by the trustee of the fund in relation to the member was 'unfair or unreasonable': s 12 and s 14(1) of the Superannuation (Resolution of Complaints) Act 1993 (Cth).

  2. If a complaint is made by a member, the Tribunal has a statutory power…

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Details
Case
[2021] FCA 472
Decision Date

CaseChat Overview and Summary

The applicants, Mr and Mrs Riseley, brought proceedings against the Superannuation Complaints Tribunal (SCT) and Suncorp Portfolio Services Limited (Suncorp) in the Federal Court of Australia. They sought judicial review of decisions made by the SCT to treat their complaints as withdrawn and to dismiss them. The complaints related to the management of their superannuation accounts and the failure to provide total and permanent disability (TPD) cover. The applicants alleged that they had been advised by an insurance advisor that their $10,000 upfront payment would secure life and TPD policies, but this did not occur. The advisor was not a representative of the trustee or insurer. The central legal issues in this case were whether the SCT failed to identify the decision about which the complaint was made, misunderstood the nature of its task, placed the onus on the applicants to establish their complaint, and erred in finding there was no evidence to support the complaint. The court examined these issues in the context of the SCT's exercise of its power under section 22(3)(b) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) to treat complaints as withdrawn if they lacked substance.

The Federal Court found that the SCT did not err in its handling of the complaints. The court concluded that the SCT correctly exercised its power to treat the complaints as withdrawn because there was no evidence to support the applicants' claims. The SCT's reasoning was based on the absence of corroborating evidence to establish that the applicants should have been provided with TPD cover or that the initial contributions were intended to offset account management and provide a retirement benefit. The court held that the SCT did not misunderstand its task or misplace the onus of proof. The lack of evidence meant that the SCT could not make a sound conclusion in favour of the applicants. The applicants' arguments that the SCT failed to identify the decision or erred in its findings were not substantiated.

The Federal Court dismissed both the application for judicial review and the appeal. The court held that no jurisdictional error had been demonstrated in the SCT's decisions. Consequently, the applications were dismissed with costs. The applicants' requests to set aside the SCT decisions and remit their complaints to the Australian Financial Complaints Authority (AFCA) were denied. The court noted that since the SCT decisions were made, legislation had been passed to end the SCT's statutory authority over such complaints, with the AFCA expected to take over. However, this change did not affect the outcome, as the court found no error in the SCT's decisions.

Orders

Orders of the court

1. The applications are dismissed.

2. The applicants pay the costs of the first and third respondents to be assessed if not agreed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

As to the second theme, it focussed upon the following statements in the course of the Tribunal reasons:Without corroborating evidence, the Tribunal is not able to arrive at a sound conclusion about whether the Complainant should have been provided with TPD cover.Without any corroborating evidence to show the Complainant applied for TPD cover, the Tribunal is not able to arrive at a sound conclusion about whether the Complainant should have been provided with TPD cover.[T]here is no evidence to show the Complainant applied for TPD cover …[T]here is no evidence to show that the initial contribution of $6,000.00 [or $4,000.00], along with the investment performance, was intended to offset the management of the account and provide the Complainant with a retirement benefit.(applicants' emphasis) These passages must be considered in the context of the Tribunal's reasons as a whole, particularly the section headed 'The Tribunal's analysis'. As has been noted, that analysis began by describing the form of the Tribunal's ultimate power. The reasons that follow, in effect, consider the available material and look forward to when a review would be conducted and consider what would happen, taking Mr and Mrs Riseley's material at its highest. The reasoning is to the effect that as there is no real basis for the complaint as against the trustee (or the insurer), as distinct from the Advisor, the power to treat the complaints as withdrawn should be exercised. The analysis begins by stating:In the circumstances of this complaint, the Tribunal notes the complaint material indicates the Complainant applied for Death cover only in his application to join the Fund. The complaint material does not show the Complainant applied for TPD cover in his application to join the Fund or during his membership with the Fund. Without corroborating evidence, the Tribunal is not able to arrive at a sound conclusion about whether the Complainant should have been provided with TPD cover. The reference to the outcome that would follow 'without corroborating evidence' is a way of expressing the problem that arises because there is no material of that kind pointed to by Mr and Mrs Riseley. It is looking forward to the type of consideration that would be undertaken on review and pointing out what would be the necessary conclusion if there was nothing to 'corroborate' a claim that Mr and Mrs Riseley should have been provided with TPD cover (that is, it was unreasonable for a decision to be made to that effect). The word corroborate is here perhaps used inaptly. Nevertheless it is apparent that it is describing an absence of any material that could lead to a sound conclusion that Mr and Mrs Riseley should have been provided with TPD cover. Reasoning in that manner is not to undertake the kind of adjudication that would ultimately be undertaken on review. It is to look forward to what would happen at that point as a way of exposing that the claim lacks substance because there is no material to support it. The observation is entirely correct in circumstances where the complaints by Mr and Mrs Riseley pointed only to the conversations with the Advisor and, as to the trustee's documentation, made assertions as to matters that were not to be found in any of the documents.

Decision

Reasons for decision

The Tribunal has exercised its power to treat the complaints as withdrawn (Tribunal Decisions). Mr and Mrs Riseley now bring two applications in this Court in respect of the Tribunal Decisions, namely:(1)an application pursuant to s 39B of the Judiciary Act 1903 (Cth) alleging jurisdictional error by the Tribunal; and(2)an appeal under s 44(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) which must be confined to a question of law. The same five grounds are raised in support of the two applications, although the basis upon which they may be upheld are different. Since the making of the Tribunal Decisions certain laws have been passed which will bring the statutory authority of the Tribunal as to the complaints to an end. The relevant laws are to take effect on the earlier of 22 March 2022 and a date to be proclaimed. In those circumstances, Mr and Mrs Riseley seek orders setting aside the Tribunal Decisions and remitting their complaints for consideration by the Tribunal's expected statutory successor, the Australian Financial Complaints Authority Limited (AFCA). The relief sought would require AFCA to proceed to deal with the complaints according to its procedures. The Tribunal did not appear in the proceedings. AFCA filed a submitting appearance.Outcome For the following reasons no error has been demonstrated in the Tribunal Decisions and the applications should be dismissed with costs. Had I been persuaded that it was appropriate to grant relief then I would have been inclined to invite written submissions from the statutory respondent before making final orders. However, in the result, issues arising from the terms in which relief was sought need not be considered.History of the complaint by Mr and Mrs Riseley In 2015, Mr and Mrs Riseley made complaints about their superannuation accounts to the then trustee. Broadly speaking, the complaints were founded on their claim that they had paid $10,000 as an upfront payment into superannuation and that they had done so on the basis that they had been told that the funds would be sufficient to provide life and total and permanent disability (TPD) policies on an ongoing basis that there would be a surplus that would be available for their retirement. They said that there accounts had not been operated in the manner indicated to them at the time the accounts were established. It is common ground that they were never provided with TPD policies and over a number of years the funds invested were used up paying for life insurance and other fees and charges. It is also not in dispute, that the payment of the $10,000 occurred in January 2000 when Mr and Mrs Riseley made application to become members of the Connelly Temple Super Savings Plan. At that time, Mr and Mrs Riseley were on holiday. They wanted to make arrangements for insurance cover because they had found out that the cover that had been provided by their former employer was no longer in place. The arrangements were made with some urgency. They were made by an advisor who was known to them (Advisor). He was not a representative of Connelly Temple. He was licenced to provide advice as a representative of another entity (MLC).

Ratio Decidendi

Legal Principle Established

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