Riseley v Suncorp Portfolio Services Ltd

Link copied
Case Copied 45 min read

FEDERAL COURT OF AUSTRALIA

Riseley v Suncorp Portfolio Services Ltd [2022] FCAFC 8   

Appeal from: Riseley v Suncorp Portfolio Services Ltd [2021] FCA 472
File number: WAD 134 of 2021
Judgment of: BANKS-SMITH, STEWART AND CHEESEMAN JJ
Date of judgment: 4 February 2022
Catchwords: SUPERANNUATION – insurance – complaints under the Superannuation (Resolution of Complaints) Act 1993 (Cth) – judicial review of decision by the Superannuation Complaints Tribunal to deal with them as if they had been withdrawn because it thought that the complaints were “lacking in substance” – whether jurisdictional error or error of law by the Tribunal in concluding that a complaint that is unsupported by the evidence is “lacking in substance” – whether the Tribunal’s consideration of the evidence in support of the complaints amounted to a review of the complaints on their merits not permitted prior to conciliation – nature of the task of the Tribunal – no error
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(f)

Judiciary Act 1903 (Cth) s 39B

Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 11, 12, 14, 14AA, 15, 16, 17A, 18, 21, 22, 24A, 25, 27, 32, 37 39

Superannuation Legislation Amendment (Resolution of Complaints) Act 1998 (Cth)

Explanatory Memorandum, Superannuation Legislation Amendment (Resolution of Complaints) Bill 1998
Cases cited:

Assal v Department of Health, Housing and Community Services (1992) EOC 92-409

Attorney-General v Breckler [1999] HCA 28; 197 CLR 83

Board of Trustees of State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; 119 ALD 472

Burtaleea v AustralianSuper Pty Ltd [2016] FCA 521

Kristoffersen v Superannuation Complaints Tribunal [2014] FCAFC 63

Ludowyk v Superannuation Complaints Tribunal [2013] FCA 692

Manu Chopra v Department of Education and Training [2019] VSCA 298

McAtamney v Superannuation Complaints Tribunal [2016] FCA 1062

Nagasinghe v Worthington [1994] FCA 1387; 53 FCR 175

Owners Corporation of Strata Plan 4521 v Zouk [2007]; NSWCA 23; 69 NSWLR 61

Riseley v Suncorp Portfolio Services Ltd [2021] FCA 472

State Electricity Commission of Victoria v Rabel [1998] 1 VR 102

Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd [1998] FCA 51; 152 ALR 332

Division: General Division
Registry: Western Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 108
Date of hearing: 4 November 2021
Counsel for the Appellants: N Wallwork (pro bono)
Counsel for the First Respondent: G Crafti
Solicitor for the First Respondent: Moray & Agnew
Counsel for the Third Respondent: J G Duncan
Solicitor for the Third Respondent: Clyde & Co

ORDERS

WAD 134 of 2021
BETWEEN:

JOHN RANDLE RISELEY

First Appellant

COLLEN ROBYN RISELEY

Second Appellant
AND:

SUNCORP PORTFOLIO SERVICES LTD

First Respondent

SUPERANNUATION COMPLAINTS TRIBUNAL

Second Respondent

ASTERON LIFE SUPERANNUATION LTD (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

BANKS-SMITH, STEWART AND CHEESEMAN JJ

DATE OF ORDER:

4 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Riseley v Suncorp Portfolio Services Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2022] FCAFC 8
Decision Date

CaseChat Overview and Summary

The case of Riseley v Suncorp Portfolio Services Ltd concerns the judicial review of a decision by the Superannuation Complaints Tribunal (SCT) to treat certain complaints as if they had been withdrawn because it deemed them to be "lacking in substance". The appellants, Mr and Mrs Riseley, had filed complaints about their superannuation accounts, alleging mismanagement and failure to provide promised insurance policies. The SCT treated the complaints as withdrawn, leading to the present appeal seeking judicial review on the basis of alleged jurisdictional error or error of law by the SCT.

The primary legal issues before the court were whether the SCT had erred in concluding that the complaints were "lacking in substance" and whether its consideration of the evidence in support of the complaints amounted to a review of the complaints on their merits, which was not permitted prior to conciliation. The appellants argued that the SCT's decision to treat the complaints as withdrawn constituted a jurisdictional error, as it had exceeded its authority by making findings of fact that should not have been made at that stage of the proceedings.

The court examined the statutory framework governing the SCT’s jurisdiction and found that the SCT's power to treat a complaint as withdrawn if it deemed the complaint to be "lacking in substance" was within its authority. The court held that the SCT was entitled to consider the evidence in support of the complaints to determine whether they were "lacking in substance". This consideration did not amount to a review of the complaints on their merits, as the SCT's task was limited to assessing whether the complaints had sufficient substance to warrant further proceedings. The court found no error in the SCT's decision, as it had properly exercised its discretion under the Superannuation (Resolution of Complaints) Act 1993 (Cth).

The appeal was dismissed, and the decision of the SCT was upheld. The court ordered that the appeal be dismissed with costs.

Orders

Orders of the court

1. The appeal be dismissed with costs.

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

Background

Background to the litigation

It is to be noted, however, that the withdrawal of a complaint by a complainant under s 21 may be made “at any time”. Also, given that there is no express temporal limitation on when the Tribunal may exercise the power under s 22 to treat a complaint as if it had been withdrawn, and that when it does so the complaint is to be treated as if it had been withdrawn under s 21 (which expressly has no temporal limitation), the power under s 22 can also be exercised at any time.Background and history of complaint The following events are drawn from the primary judgment where the background matters are set out in some detail: J[11]-[60]. The background matters up until the Tribunal’s notice of the withdrawal of the complaints are not in dispute. 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 TPD policies on an ongoing basis and that there would be a surplus that would be available for their retirement. They said that their accounts had not been operated in the manner indicated to them at the time the accounts were established: J[11]. The appellants were not provided with TPD cover and over a number of years the funds invested were used up paying for life insurance and other fees and charges: J[12]. The payment of the $10,000 occurred in January 2000 when Mr and Mrs Riseley applied to become members of the Connelly Temple Super Savings Plan. The arrangements were made by an advisor who was known to the appellants. He was not a representative of Connelly Temple. He was licenced to provide advice as a representative of another entity (MLC): J[13]. The advisor recommended that the insurance be arranged through superannuation accounts. The appellants each signed application forms that had been provided by Connelly Temple and were completed by the advisor. Mr Riseley contributed $6,000 and Mrs Riseley contributed $4,000. As can be seen from the form which is reproduced in part below, in response to the question, “Do you require death or death and TPD cover?”, each applicant answered “Yes” and specified a “Death cover amount” of $250,000. There was a further question: “I wish to have an amount of TPD cover equal to the amount of my death cover”. For each appellant, the box next to that further question was not ticked: J[14]. As an aside, it can be mentioned at this stage that the appellants complain that ambiguity arises from the way in which the form was presented. The ambiguity is said to be that a binary option of “yes” or “no” was given for the question “Do you require death or death and TPD cover?” which admits of three possible answers, being “no”, or “yes, death only”, or “yes, death and TPD”. There is, however, no ambiguity there because on a fair reading and proper analysis, in particular taking into account and giving effect to the notation “enter details below”, the question only admits of two answers, namely, “no”, or “yes, death or death and TPD, the details of which will be given below”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Following those decisions as to the limitation of the Tribunal’s review jurisdiction to discretionary decisions, the Complaints Act was amended (with effect from 11 December 1998 by item 8 of Sch 1 to the Superannuation Legislation Amendment (Resolution of Complaints) Act 1998 (Cth)) by the insertion of s 14AA (see Explanatory Memorandum, Superannuation Legislation Amendment (Resolution of Complaints) Bill 1998 at 9) to make it clear that non-discretionary decisions are also included within the Tribunal’s jurisdiction:14AAComplaints may be made about discretionary or non‑discretionary decisions(1)To avoid doubt, a complaint may be made under this Part about a decision whether or not the decision involved the exercise of a discretion.(2)However, a decision that did not involve the exercise of a discretion is taken to have been unfair and unreasonable if the decision was contrary to law. Section 15(1) identifies who may make a complaint under s 14. Relevantly, that includes a member or former member of the regulated superannuation fund or a beneficiary or former beneficiary of the approved deposit fund. There is no dispute that the appellants qualified to make their complaints. Section 16 provides that the Tribunal must take reasonable steps to help the complainant if it thinks that a complainant wishes to make a complaint and they need help to make the complaint or to put it in writing. There is, however, no obligation on the Tribunal to assist a complainant to present their case to the Tribunal at the determination stage of the procedure to which we will come: Kristoffersen v Superannuation Complaints Tribunal [2014] FCAFC 63 at [66] per Dowsett, Collier and Rangiah JJ. Under s 18(1), the parties to a complaint under s 14 are the complainant and the trustee, and if the subject matter of the complaint relates to a benefit under a contract of insurance between the trustee and an insurer and the Tribunal decides that the insurer should be a party to the complaint, then also the insurer. The joinder of the insurer is referred to in the note to s 14(2) quoted above (at [11]). As this case concerns the (deemed) withdrawal of a complaint, it is helpful to set out the provisions dealing with that subject:21 Withdrawal of complaint A complainant may withdraw a complaint at any time. 22 Power to treat a complaint as having been withdrawn (1) If:(a) a complainant makes a complaint; and(b) the Tribunal is satisfied, either after having communicated with the complainant, or having made reasonable attempts to contact the complainant and having failed to do so, that the complainant does not intend to proceed with the complaint;the Tribunal must deal with the complaint as if it had been withdrawn by the complainant under section 21.…(3)The Tribunal may also decide to treat a complaint as if it had been withdrawn under section 21, in the following cases: …(b)if the complaint has been made to the Tribunal—the Tribunal thinks that the complaint is trivial, vexatious, misconceived or lacking in substance; …

Ratio Decidendi

Legal Principle Established

The appellants submit that the test of “lacking in substance” provides a mechanism by which the Tribunal’s resources may be preserved and respondents not vexed by complaints that are unimportant or insignificant, or complaints that have no basis in reality or fact. ConsiderationThe applications before the primary judge Before each ground is considered it is helpful to consider the nature of the review that each application invoked. First, review under s 5(1)(f) of the ADJR Act requires there to be an error of law. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 353, Mason CJ (Brennan and Deane JJ agreeing, Toohey and Gaudron JJ saying much the same at 384) said in relation to s 5(1)(f):A decision does not “involve” an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different. The critical question on this aspect of the case is whether, but for the alleged error of law on which the respondents rely, the decision might have been different by reason of the possibility that the Tribunal would not have made the findings of fact relating to the settlement in the terms in which they were made. The appellants were thus required to establish an error of law by the Tribunal that was material to its decision. Secondly, an application under s 39B of the Judiciary Act for a writ of certiorari quashing the decision of the Tribunal and a writ of mandamus requiring the Tribunal (or its successor) to consider the complaint according to law requires the establishment of jurisdictional error. In Craig v South Australia [1995] HCA 58; 184 CLR 163 at 179, Brennan, Deane, Toohey, Gaudron and McHugh JJ held that if an administrative tribunal falls into an error of law which causes it to identify a wrong issue or to ask itself a wrong question and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [29], Kiefel CJ, Gageler, Keane and Gleeson JJ explained that to say that a decision is affected by jurisdictional error is to say no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision. The relevant decision in this proceeding is the decision by the Tribunal under s 22(3)(b) to treat the complaint as withdrawn. In Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [30]-[31] it was explained by Kiefel CJ, Gageler and Keane JJ that the threshold of materiality must be met for jurisdictional error to arise; a breach of a condition is not material unless compliance with the condition could have resulted in the making of a different decision. In MZAPC it was held (at [60]) that where materiality of a breach of an express or implied condition of a conferral of statutory decision-making authority is in issue in an application for judicial review of a decision on the ground of jurisdictional error, the onus of proving by admissible evidence on the balance of probabilities historical facts necessary to satisfy the court that the decision could realistically have been different had the breach not occurred lies unwaveringly on the applicant.