Smith v Superannuation Complaints Tribunal - [2008] FCA 1528

FEDERAL COURT OF AUSTRALIA
Smith v Superannuation Complaints Tribunal [2008] FCA 1528
SUPERANNUATION – appeal from decision of Superannuation Complaints Tribunal – Tribunal denied jurisdiction to hear complaint – procedural fairness
Held: appeal allowed – Tribunal failed to act in accordance with procedural fairness by failing to give applicant opportunity to make submissions regarding jurisdiction – case upon remission to Tribunal not hopeless
Superannuation (Resolution of Complaints) Act 1993 (Cth) s 14(6B), s 46
Auspine Staff Superannuation Pty Ltd v Henderson [2006] FCA 1281 cited
Clements v Independent Advisory Committee [2003] FCAFC 143 followed
Cole v Cunningham (1983) 49 ALR 123 cited
Cullinane v Mercer Benefit Nominees Ltd (2006) 152 FCR 1 cited
Employers First v Tolhurst Capital Ltd (2005) 143 FCR 356 followed
Kioa v West (1985) 159 CLR 550 cited
Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 cited
Santa Sabina College v Minister for Education (1985) 58 ALR 527 cited
SHAUN SMITH v SUPERANNUATION COMPLAINTS TRIBUNAL and LOCAL GOVERNMENT SUPERANNUATION SCHEME (NSW)
QUD 5 OF 2008
COLLIER J
15 OCTOBER 2008
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 5 OF 2008

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL CONSTITUTED BY PRESIDING MEMBER, NOEL DAVIS AND MEMBERS, JOHN HART AND COLIN CASSIDY

BETWEEN:

SHAUN SMITH
Applicant

AND:

SUPERANNUATION COMPLAINTS TRIBUNAL
First Respondent

LOCAL GOVERNMENT SUPERANNUATION SCHEME (NSW)
Second Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

15 OCTOBER 2008

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The decision of the first respondent be set aside.
2.The Complaint be referred to the Tribunal for hearing and determination according to law.
3.The second respondent pay the applicant’s costs on and incidental to this application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 5 OF 2008

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL CONSTITUTED BY PRESIDING MEMBER, NOEL DAVIS AND MEMBERS, JOHN HART AND COLIN CASSIDY

BETWEEN:

SHAUN SMITH
Applicant

AND:

SUPERANNUATION COMPLAINTS TRIBUNAL
First Respondent

LOCAL GOVERNMENT SUPERANNUATION SCHEME (NSW)
Second Respondent

JUDGE:

COLLIER J

DATE:

15 OCTOBER 2008

PLACE:

BRISBANE

REASONS FOR JUDGMENT
Introduction

This is an appeal from a decision of the Superannuation Complaints Tribunal (“the Tribunal”) given on 7 December 2007. The Tribunal found that it did not have jurisdiction to deal with the applicant’s complaint pursuant to s 14(6B) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (“the Act”) and it is from this decision that the applicant appeals.
A party may appeal to the Federal Court, on a question of law, from a determination of the Tribunal: s 46 of the Act. Such proceedings come before the Court for hearing and determination in the exercise of its original, rather than appellate, jurisdiction: Cullinane v Mercer Benefit Nominees Ltd (2006) 152 FCR 1.
The applicant, through its Further Amended Application for an Order of Review, seeks the following orders:
1.The decision of the first respondent be set aside.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FCA 1528
Decision Date: 15 October 2008

CaseChat Overview and Summary

In the Federal Court of Australia, Smith sought judicial review of a decision of the Superannuation Complaints Tribunal, arguing the Tribunal lacked jurisdiction to refuse his complaint. Smith had previously been employed by Penrith City Council and was a member of the First State Superannuation Scheme. He was injured at work in 1995, and subsequently terminated from employment in 1996. Smith applied for a disability benefit in 2003, which was approved. In 2005, Smith made a claim for total and permanent disability insurance, which was refused by the second respondent. Smith lodged a complaint with the first respondent, which was found to be out of time by the Tribunal. Smith appealed the Tribunal’s decision to the Federal Court.

The key legal issue before the court was whether the Tribunal had jurisdiction to hear Smith's complaint. The court noted that under the relevant legislation, the Tribunal cannot deal with a complaint about a decision of a trustee relating to the payment of a disability benefit if the claim was not lodged within two years of the person permanently ceasing employment. The Tribunal found that Smith’s complaint was out of time and therefore lacked jurisdiction. The court was required to determine whether the Tribunal’s finding of lack of jurisdiction was correct and whether procedural fairness was observed in reaching that decision.

The court found that the Tribunal had erred in not notifying Smith that the question of jurisdiction was a live issue and in not affording him an opportunity to make submissions on the matter. The court also found that the Tribunal’s determination was unreasonable and could have made a difference to the outcome of the case. Accordingly, the court set aside the decision of the Tribunal and remitted the matter to the Tribunal for further consideration. The court also ordered the second respondent to pay Smith’s costs on and incidental to this application.

Orders

Orders of the court

1. The decision of the first respondent be set aside.

2. The Complaint be referred to the Tribunal for hearing and determination according to law.

3. The second respondent pay the applicant’s costs on and incidental to this application.

Background

Background to the litigation

The applicant, through its Further Amended Application for an Order of Review, seeks the following orders:1.The decision of the first respondent be set aside.2.The Complaint be referred to the Tribunal for hearing and determination according to law.3.The respondents pay the applicant’s costs on and incidental to this application.Background facts The background facts to this matter can be found in the Tribunal’s “Review Determination and Reasons” (the Determination and Reasons) and the applicant’s Chronology of Events. They may be summarised as follows:·in May 1994 the applicant was employed by Penrith City Council (employer) as a labourer and became a member of the First State Superannuation Scheme (the former fund);·in January 1995 the applicant was injured at work;·in early 1996 the applicant returned to work on light duties;·in July 1996 the applicant injured his back at work;·in October 1996 the applicant received a letter from his employer stating that his employment would be terminated on 1 November 1996 due to a lack of medical evidence as to when he could return to his pre-injury employment;·in early 1997 the applicant purportedly telephoned an officer of the former fund enquiring about payment of benefit application;·on 1 July 1997 liability for the applicant was transferred from the former fund to the second respondent;·in late 1999 the applicant settled a workers’ compensation claim;·on 6 November 2003 the applicant applied to the former fund for payment of a benefit on the basis that he was permanently incapacitated. The application was accompanied by two incapacity certificates by medical practitioners;·on 18 November 2003 the applicant’s payment of his account balance was approved by the former fund on the basis the applicant was totally and permanently incapacitated. The balance was paid on 21 November 2003;·on 20 January 2005 the applicant was informed by the former fund that the second respondent should be contacted regarding total and permanent disability insurance;·in February 2005 the applicant received and completed a statement of claim from the second respondent;·in April 2005 the second respondent drew the applicant’s attention to time limits in making a claim and invited him to provide the second respondent with information why the statement of claim was outside the proscribed time. The applicant provided information;·in July 2005 the applicant completed a statement of claim;·on 1 May 2006 the applicant was informed by the second respondent that his application for benefit was refused;·on 10 December 2006 the applicant lodged a complaint with the first respondent;·on 15 February 2007 the first respondent wrote to the applicant stating that it had “established its jurisdiction to deal with your complaint”;·in its determination and reasons handed down on 7 December 2007 the Tribunal found that it did not have jurisdiction to deal with the applicant’s complaint because the complaint was out of time;·the applicant appealed the Tribunal’s decision by application to the Federal Court filed on 7 January 2008.The decision of the Tribunal

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

COLLIER J

The background facts to this matter can be found in the Tribunal’s “Review Determination and Reasons” (the Determination and Reasons) and the applicant’s Chronology of Events. They may be summarised as follows:·in May 1994 the applicant was employed by Penrith City Council (employer) as a labourer and became a member of the First State Superannuation Scheme (the former fund);·in January 1995 the applicant was injured at work;·in early 1996 the applicant returned to work on light duties;·in July 1996 the applicant injured his back at work;·in October 1996 the applicant received a letter from his employer stating that his employment would be terminated on 1 November 1996 due to a lack of medical evidence as to when he could return to his pre-injury employment;·in early 1997 the applicant purportedly telephoned an officer of the former fund enquiring about payment of benefit application;·on 1 July 1997 liability for the applicant was transferred from the former fund to the second respondent;·in late 1999 the applicant settled a workers’ compensation claim;·on 6 November 2003 the applicant applied to the former fund for payment of a benefit on the basis that he was permanently incapacitated. The application was accompanied by two incapacity certificates by medical practitioners;·on 18 November 2003 the applicant’s payment of his account balance was approved by the former fund on the basis the applicant was totally and permanently incapacitated. The balance was paid on 21 November 2003;·on 20 January 2005 the applicant was informed by the former fund that the second respondent should be contacted regarding total and permanent disability insurance;·in February 2005 the applicant received and completed a statement of claim from the second respondent;·in April 2005 the second respondent drew the applicant’s attention to time limits in making a claim and invited him to provide the second respondent with information why the statement of claim was outside the proscribed time. The applicant provided information;·in July 2005 the applicant completed a statement of claim;·on 1 May 2006 the applicant was informed by the second respondent that his application for benefit was refused;·on 10 December 2006 the applicant lodged a complaint with the first respondent;·on 15 February 2007 the first respondent wrote to the applicant stating that it had “established its jurisdiction to deal with your complaint”;·in its determination and reasons handed down on 7 December 2007 the Tribunal found that it did not have jurisdiction to deal with the applicant’s complaint because the complaint was out of time;·the applicant appealed the Tribunal’s decision by application to the Federal Court filed on 7 January 2008.The decision of the Tribunal In its written determination of 7 December 2007 the only substantive issue identified by the Tribunal in its determination and reasons was whether it had jurisdiction to determine the complaint of the applicant. The Tribunal noted that under s 14 of the Act, a person can bring a complaint to the Tribunal that a decision of a Trustee of a regulated superannuation fund is unfair or unreasonable, however the Tribunal also noted s 14(6B) of the Act which provides as follows:(6B) The Tribunal cannot deal with a complaint under this section about a decision of a trustee relating to the payment of a disability benefit because of total and permanent disability if:(a) before the making of the decision, the person permanently ceased particular employment (whether before or after commencement of this subsection) because of the physical or mental condition that gave rise to the claim for disability benefit; and(b) the claim was not lodged, or is not lodged, with the trustee, within 2 years after the person permanently ceased that employment.

Ratio Decidendi

Legal Principle Established

Established by: COLLIER J

The submissions of the applicant may be summarised as follows:·There is a common law duty to observe procedural fairness where the exercise of power is liable to affect a person’s rights, status, interests or legitimate expectations (Kioa v West (1985) 159 CLR 550 at 584). The applicant in this case was not afforded procedural fairness in relation to the question of whether the Tribunal had jurisdiction to hear the complaint. This is a question of law and may be appealed to this Court pursuant to s 46 of the Act.·The applicant must be given an opportunity to address issues that are troubling the Tribunal (Cole v Cunningham (1983) 49 ALR 123 at 128). At the time of its hearing the Tribunal failed to inform the applicant that the question of jurisdiction was a live issue. In fact, the Tribunal had conceded in correspondence that it did have jurisdiction as follows:oIn a letter from the Tribunal to the applicant on 16 November 2006, the Tribunal raised the question of jurisdiction with the applicant. It was submitted by the applicant that this reference to jurisdiction was clearly referring to s 14(6B) of the Act. Paragraph 3 of the letter stated:The Act imposes certain time limits on dealing with disability complaints so it is very important that you provide these workers compensation details so that the Tribunal can determine whether or not your complaint is within its jurisdiction.oIn his letter to the Tribunal of 24 November 2006 the applicant stated he had tried to claim the benefit from the time his employment was terminated, but was informed by the former fund to wait until after the court case.oIn its letter to the applicant of 15 February 2007 the Tribunal stated at para 2:I wish to confirm that the Tribunal has established its jurisdiction to deal with your complaint and has now sought additional information from the Fund to assist with our inquiry into your complaint.oNo issues of jurisdiction of the Tribunal, whether as a result of expiration of time or otherwise, were raised by the Tribunal at the hearing, and the applicant was not invited to make submissions relating to jurisdiction at the Tribunal hearing.oFollowing the Tribunal’s letter dated 15 February 2007, jurisdiction was not raised by the Tribunal until publication of the Tribunal’s determination and reasons on 7 December 2007.·The applicant submitted that for the Tribunal to have acted fairly in the circumstances in this case, the Tribunal would have been required, at the least, to have notified the applicant that jurisdiction was a live issue and afforded the applicant the opportunity to make submissions on the jurisdiction question.·Finally, the applicant acknowledged that whether relief was granted to the applicant was at the discretion of the Court, and if the return of a matter to the Tribunal would be futile or where the error relied upon by the Tribunal could not have made a difference to the outcome of the case, the court should refuse to grant relief (Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206). In this case however the applicant submitted that the Court should exercise its discretion in favour of the applicant because:othe Tribunal did not make findings of fact beyond those set out at [8] of the determination and reasons (which were only background facts);othere is a significant amount of medical evidence that has not been considered by the Trustee or the Tribunal. This could add weight to the applicant’s case before the Tribunal, making it “possible” the end result might not be the same at a further hearing (Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540).Consideration

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 5 OF 2008

JUDGE:	COLLIER J
DATE OF ORDER:	15 OCTOBER 2008
WHERE MADE:	BRISBANE

JUDGE:	COLLIER J
DATE:	15 OCTOBER 2008
PLACE:	BRISBANE