FEDERAL COURT OF AUSTRALIA

Edwards v Commonwealth Superannuation Corporation [2017] FCA 375

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application under rules 9.23 and 9.25 of the Federal Court Rules 2011 (Cth) be dismissed with costs.

2.    The application be dismissed with costs.

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

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application under rules 9.23 and 9.25 of the Federal Court Rules 2011 (Cth) be dismissed with costs.

2.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

MORTIMER J:

Introduction and summary

1    There are two proceedings before the Court, in which Mr Edwards is now the sole applicant. These proceedings have been attended by more procedural complexities than one might usually encounter in a matter which constitutes an appeal on a question of law from a decision of the Superannuation Complaints Tribunal, and an application for judicial review of the same decision. Those complexities have been introduced by the conduct of Mr Edwards. He has sought to make these applications an omnibus for a range of grievances he appears to have against the active respondent, the Commonwealth Superannuation Corporation (CSC), which manages the Commonwealth Superannuation Scheme Fund (CSS Fund).

2    Mr Edwards’ administrative law challenges fail for a combination of reasons including his lack of standing. Many of his other claims seek to challenge decisions or conduct I find he is not able to challenge under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) (or, for that matter, under the Superannuation (Resolution of Complaints) Act 1993 (Cth) (Complaints Act)). There is also no legal basis to his common law claims in contract and tort.

3    One judicial review argument, concerning the scope and operation of s 114 of the Superannuation Act 1976 (Cth) was an arguable claim. Ultimately, I have concluded it should fail.

4    For the reasons set out below, both applications will be dismissed.

The proceeding in this Court

5    Although the benefits at issue under the Superannuation Act 1976 were not benefits arising from any relationship he had with the deceased member of the CSS Fund, Mr Edwards has always been the active and moving party in dealings with CSC, with the Superannuation Complaints Tribunal, and with this Court. He claims to have represented his former partner, and to be entitled to press claims on behalf of his two children. Mr Edwards is legally qualified, and was the holder of a practising certificate until it was cancelled. I return to those matters below.

6    Mr Edwards commenced two proceedings. Proceeding VID 628 relies on this Court’s jurisdiction under s 46(1) of the Complaints Act. On its face, proceeding VID 629 relies on this Court’s jurisdiction under the AD(JR) Act. The Superannuation Complaints Tribunal is not named as a party in VID 628 and has filed a submitting appearance in VID 629. The active contradictor is the only respondent in VID 628 and the second respondent in VID 629, the CSC. Most of Mr Edwards’ non-administrative law allegations are made directly against CSC. In VID 628, Mr Edwards also filed a document headed “Statement of Claim”, which contains allegations travelling well outside judicial review, including breach of contract and negligence allegations. Since Mr Edwards was self-represented, I determined the most efficient course was to direct CSC to file and serve a “response” in both proceedings and a defence to the document entitled “Statement of Claim”, which it did. That process has enabled the Court to consider the substantive allegations Mr Edwards makes, and to make findings about them. Subject to any appeal, Mr Edwards will be bound by those findings.

7    There were originally four applicants in each proceeding. They were Mr Edwards, Ms Carol Harris, Ms Ashley Harris and Mr Adam Harris. For convenience, I refer in these reasons to Ms Ashley Harris and Mr Adam Harris by their first names. As I understand the evidence, Ashley and Adam are the children of Mr Edwards and Ms Carol Harris. However Ms Carol Harris was, in 2009 (a date which becomes relevant as I set out below) living with and caring for Mr Pieter Christian Paulusz. It was Mr Paulusz’s death which resulted in an application by Ms Carol Harris for spousal pension rights for herself and Adam and Ashley, who were at that stage under 18. It appears from Mr Edwards’ evidence that Ms Carol Harris and Mr Paulusz may not have been married, but Ms Carol Harris contended they were living in a spousal relationship, and Adam and Ashley should be considered the “children” of Mr Paulusz. One of the curious aspects of this proceeding is that the status of Adam and Ashley as the “children” of Mr Paulusz is what secured them the benefits under the CSC Trust Deed which are at the heart of these proceedings; yet all of Mr Edwards’ claims turn on Adam and Ashley being his children. In law this may well be possible, I simply note it as one of several curious features of these proceedings.

8    By the time of final hearing, each of Ms Carol Harris, Ashley and Adam had withdrawn as applicants in the proceeding. It is necessary to set out the circumstances in which this occurred. Initially, Mr Edwards filed originating process under s 46 of the Complaints Act and under the AD(JR) Act naming each of Ms Carol Harris, Ashley and Adam. I required each of them to appear at case management hearings as they were all competent adults. I informed Mr Edwards that he had no entitlement to “represent” them, as he often sought to do. Mr Edwards himself, at the first case management hearing, agreed that he did not hold a current practising certificate and was therefore not able to act as a legal representative for Ms Carol Harris, Ashley and Adam.

9    At the first case management hearing in June 2016, I asked each of them what their complaint was. Ms Harris indicated she was unhappy about not getting interest on her back payments and about some deductions made by CSC to the amount of back payment in order to take account of social security payments she had received during the same period. She also indicated she was unhappy about the approach of the ATO to the taxation of her spousal benefits received from CSC.

10    Adam explained his presence as an applicant the following way:

MR HARRIS:     Well, yes. There was – I do want to be an applicant, right, but that’s mainly due to all the stress and all the – or, like, the problems that related to the payments made out before my sister and myself, yes. It placed a great burden on our whole relationship as a family since then. Me and my dad have had more issues than we’ve ever had, right. It has just been completely unhealthy, right. It has been a breakdown in communication and – yes, it’s, like – if that – if that sums it up.

HER HONOUR: All right. And what about – do you have any complaints about the decision the Superannuation Complaints Tribunal made about what should be paid to you?

MR HARRIS: I think that at the time, right, going back, I thought that it was a good decision but, no, I don’t believe that it was a good decision at the time. I was still a minor, right, I didn’t know the real, like – how much I actually had at the time and all the circumstances and everything, right, and it just – it wasn’t a good call at the end of the day, right. I reckon, at the end of the day, that should have been put in the hands of either my mum or my dad, right, and saved up until the time I reached a more mature age, right, where I received that.

11    As will become apparent, this is a reference to the fact that in 2013, CSC made payments of benefits to which Adam and Ashley were entitled as “eligible children” under Ms Carol Harris’ spouse benefit directly to Adam and Ashley, rather than to Mr Edwards.

12    Ashley gave a similar explanation:

MS A. HARRIS: I would like to be an applicant in these proceedings. Why is very similar to my brother. My mother with the stresses, the financial stresses, that have been put on her by ComSuper and other governing bodies. It’s just – it has created a very big divide between us that is unrepairable. My family, with the stresses that have been put on, quite similar to what my brother had explained, it has turned our family very dysfunctional and – my complaint is actually very similar to my brother’s. I don’t think that Adam or I were of a mature age. We were under 18. We were, I think, 16 at the time that we got the payments made to us and I don’t think, at that time, we did have the maturity to spend it on the right necessities for ourselves.

13     At this point, it can be seen each of the three primary applicants was expressing a clear view that they wished to prosecute the proceeding. At this case management hearing, Mr Edwards also confirmed to me that he wished to remain a party, as he had his own interests to pursue. I informed the three primary applicants it was not appropriate or possible for Mr Edwards to represent them, and I asked each of them if they would like legal representation, if the Court could arrange it under the Court’s pro bono scheme. Each replied that they would. Contact details for each were obtained. I consider it was very clear to Mr Edwards, and to the three primary applicants, that Mr Edwards was not acting on their behalf as far as the Court was concerned, and that each person had to make individual decisions about their positon in the litigation and its conduct.

14    I raised the possibility of mediation with the three primary applicants. Counsel for CSC indicated it would participate. Ms Carol Harris and Ashley were amenable. Adam took some extra time to consider the matter, but ultimately agreed to at least attend mediation. Mr Edwards agreed to mediation. An order was made accordingly. At the conclusion of the case management hearing all three primary applicants were sent to see the Court’s self-represented litigant coordinator to ensure they provided the Court with sufficient contact details, and so they could ask any further questions.

15    A referral was made for the three primary applicants under r 4.12 of the Federal Court Rules 2011 (Cth) for them to receive legal advice about the proceedings. Counsel was retained.

16    At the next case management hearing in December 2016, each of the three primary applicants confirmed they had met with counsel and had been provided with oral advice about the proceeding. Each confirmed they understood the advice they were given. When asked, Ms Carol Harris confirmed she wished to continue as an applicant. Adam indicated he was not sure and needed some time. Ashley asked for information about the process involved in the proceeding. I explained the course the proceeding would take. I asked each of Adam and Ashley some questions to ensure they understood what I was explaining about the process – for example, what a mediation is. I also asked counsel for the CSC to give the Court an approximation of the party/party costs of these proceedings, in the context of explaining the possible exposure of the three primary applicants to a costs order.

17    After the explanations of the process, the following exchange occurred with Ashley:

HER HONOUR: Okay. Miss Harris, what about you?

MISS HARRIS: I would like to excuse myself from the hearing, the - - -

HER HONOUR: All right.

MISS HARRIS: I don’t want to go through with it.

18    Adam was less certain and asked for more time to think about the issue. After some further exchanges, the Court adjourned briefly so the three primary applicants could discuss the issue of remaining or withdrawing. On resuming, there was the following exchange:

HER HONOUR: Now, Miss Harris, what’s your position?

MISS HARRIS: I would still like to withdraw.

HER HONOUR: You would like to withdraw?

MISS HARRIS: Yes.

HER HONOUR: Mr Harris, what’s your position?

MR HARRIS: I think it would be best that I withdraw.

HER HONOUR: All right. And, Ms [Carol] Harris, you’re continuing?

MS HARRIS: That’s correct.

19    Orders were made that day removing Adam and Ashley as parties to the proceeding. The case management hearing continued with discussion about the reformulation of the claims so that they were made only in relation to Ms Carol Harris and Mr Edwards.

20    With the parties’ agreement, the matter was again referred to mediation. Ms Carol Harris was legally represented under a r 4.12 referral at this mediation. As a result of the mediation, orders by consent were proposed removing Ms Carol Harris as a party to the proceedings. Those orders were made on 30 January 2017.

21    In February 2017, the matter returned before me for further case management and Mr Edwards was given leave to file amended applications in relation to his own claims only. The matter was listed for trial on that basis.

Structure of the legislative schemes

22    The CSC is established under s 5 of the Governance of Australian Government Superannuation Schemes Act 2011 (Cth). That section provides that the CSC is established as a continuation of the Australian Reward Investment Alliance, which had been established under s 20 of the Superannuation Act 1990 (Cth).

23    The CSC is a trustee of a number of different superannuation schemes, one of which is the CSS Fund. The CSS Fund is established under s 40 of the Superannuation Act 1976 (Cth). It is necessary to set out a number of provisions of the Superannuation Act 1976 in full.

24    Section 41 provides that the CSS Fund is to be managed by CSC, and sets out the powers of the CSC in relation to the Fund:

41 Fund to be managed by CSC

(1)     The Fund shall be managed by CSC.

(2)     CSC has power to do, in Australia or elsewhere, all things necessary or convenient to be done for or in connexion with, or as incidental to, the management of the Fund, and the investment under section 42 of moneys standing to the credit of the Fund, including, without limiting the generality of the foregoing, power:

(a)     to give guarantees;

(aa)     to underwrite or sub‑underwrite any form of investment;

(ab)     subject to subsection (3), to borrow moneys;

(b)     to appoint agents and attorneys;

(c)     to act as agents for other persons;

(d)     to engage consultants and investment managers; and

(e)     to open and maintain accounts with banks.

(3)     CSC may not borrow money otherwise than in accordance with the SIS Act.

(5)     Without limiting the generality of subsection (2), the reference in that subsection to the doing of things necessary or convenient to be done as incidental to the investment under section 42 of moneys standing to the credit of the Fund includes a reference to the taking of action to control or manage, or to enhance or protect the value of, any investment made out of those moneys or to enhance or protect the return on any such investment.

(6)     Without limiting the generality of paragraph (2)(aa), the reference in that paragraph to underwriting or sub‑underwriting any form of investment includes a reference to underwriting or sub‑underwriting the issue of shares, debentures or units in a unit trust.

(7)     The reference in paragraph (2)(d) to the engagement of investment managers shall be read as a reference to the placement of funds with persons who undertake to invest, and manage the investment of, those funds on behalf of CSC.

(8)     Nothing in this section or section 42 shall be read as derogating from CSC’s duties under section 27C.

(9)     In this section:

bank has the same meaning as it has in the Public Governance, Performance and Accountability Act 2013.

25    Section 109AB of the Superannuation Act 1976 sets out a detailed regime in respect of the payment of pensions to the spouse of a deceased member where an eligible employee or retirement pensioner has died and is survived by one spouse and child not in the custody, care and control of the spouse:

109AB Eligible employee or retirement pensioner survived by one spouse and child not in the custody, care and control of the spouse

(1)     Where a person (in this section called the deceased person) who is an eligible employee or a retirement pensioner dies and is survived by one spouse and by an eligible child or eligible children, or a partially dependent child or partially dependent children, not in the custody, care and control of the spouse, benefit is only payable under Division 1, 2, 3 or 3A in accordance with this section.

(2)     The amount of spouse’s pension payable to the spouse must not exceed:

(a)     if the deceased person was, immediately before his or her death, an eligible employee who had not attained his or her maximum retiring age—the applicable percentage of the annual rate of the invalidity pension to which the deceased eligible employee would have been entitled under section 67 or 70 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to invalidity pension under that section; or

(b)     if the deceased person was, immediately before his or her death, an eligible employee who had attained his or her maximum retiring age—the applicable percentage of the annual rate of the standard age retirement pension to which the deceased eligible employee would have been entitled under section 56 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to standard age retirement pension under that section; or

(c)     if the deceased person was, immediately before his or her death, a retirement pensioner and had had a marital or couple relationship that had begun:

(i)     before he or she had become a retirement pensioner; or

(ii)     before he or she had turned 60; or

(iii)     not less than 3 years before the pensioner’s death;

—the applicable percentage of the annual rate of pension payable to the retirement pensioner immediately before his or her death.

(3)     The applicable percentage mentioned in paragraphs (2)(a) and (b) is:

(a)     if there are no eligible children of the deceased person in the custody, care and control of the spouse—67%; or

(b)     if there is one such eligible child—78%; or

(c)     if there are 2 such eligible children—89%; or

(d)     if there are 3 or more such eligible children—100%.

(3A)     The applicable percentage mentioned in paragraph (2)(c) is the percentage worked out in accordance with the following table:

(3B)     If the deceased person:

(a)     was, immediately before his or her death, a retirement pensioner; and

(b)     had had a late short‑term marital or couple relationship with his or her spouse;

the amount of the spouse’s pension payable to the spouse must not exceed such percentage of the annual rate of pension payable to the retirement pensioner immediately before his or her death as is determined by CSC.

(3C)     In making a determination under subsection (3B), CSC must take into consideration:

(a)     the extent to which spouse’s pension payable to the spouse of a deceased pensioner under Division 3 is reduced when the spouse and the deceased pensioner have been in a marital or couple relationship of the kind referred to in paragraph (3B)(b); and

(b)     whether one or more than one eligible child, or one or more than one partially dependent child, of the pensioner is or is not a child of the pensioner because of the late short‑term marital or couple relationship referred to in paragraph (3B)(b).

(4)     CSC must, having regard to:

(a)     the needs of the spouse; and

(b)     the respective needs of any eligible child or eligible children, or any partially dependent child or partially dependent children, of the deceased person; and

(c)     such other matters as CSC considers relevant;

subject to the limitations set out in subsections (5), (5A) and (7), determine the part of a benefit to which the spouse is entitled under Division 1, 2, 3 or 3A that is attributable to each such child.

(5)     Benefit attributed under subsection (4) to an eligible child or eligible children of the deceased person not in the custody, care and control of the spouse must not exceed in the aggregate:

(a)     if the deceased person was, immediately before his or her death, an eligible employee who had not attained his or her maximum retiring age—the applicable percentage of the annual rate of the invalidity pension to which the deceased eligible employee would have been entitled under section 67 or 70 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to invalidity pension under that section; or

(b)     if the deceased person was, immediately before his or her death, an eligible employee who had attained his or her maximum retiring age—the applicable percentage of the annual rate of the standard age retirement pension to which the deceased eligible employee would have been entitled under section 56 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to standard age retirement pension under that section; or

(c)     if the deceased person was, immediately before his or her death, a retirement pensioner and had had a marital or couple relationship that had begun:

(i)     before he or she had become a retirement pensioner; or

(ii)     before he or she had turned 60; or

(iii)     not less than 3 years before the pensioner’s death;

—the applicable percentage of the annual rate of pension payable to the retirement pensioner immediately before his or her death.

(5A)     If the deceased person:

(a)     was, immediately before his or her death, a retirement pensioner; and

(b)     had had a late short‑term marital or couple relationship with his or her spouse;

benefit attributed under subsection (4) to the eligible child or eligible children of the deceased person not in the custody, care and control of the spouse must not exceed in the aggregate such proportion of the applicable percentage of the annual rate of pension payable to the retirement pensioner immediately before his or her death as is determined by CSC.

(5B)     In making a determination under subsection (4) or (5A), CSC must take into consideration:

(a)     the extent to which spouse’s pension payable to the spouse of a deceased pensioner under Division 3 is reduced when the spouse and the deceased pensioner have been in a marital or couple relationship of the kind referred to in paragraph (5A)(b); and

(b)     whether one or more than one eligible child of the pensioner is or is not a child of the pensioner because of the late short‑term marital or couple relationship referred to in paragraph (5A)(b).

(6)     The applicable percentage mentioned in paragraphs (5)(a) and (b) is:

(a)     if there is one eligible child not in the custody, care and control of the spouse—45%; or

(b)     if there are 2 such eligible children—80%; or

(c)     if there are 3 such eligible children—90%; or

(d)     if there are 4 or more such eligible children—100%.

(6A)     The applicable percentage mentioned in paragraph (5)(c) is the percentage worked out in accordance with the following table:

(7)     Benefit attributed under subsection (4) to a partially dependent child or partially dependent children of the deceased person must not exceed in the aggregate the lesser of:

(a)     the annual rate of the regular maintenance payments being made, or required to be made by order of a court, in relation to the child or children by the deceased person immediately before his or her death; or

(b)     the maximum benefit that, under subsection (5) or (5A), could be attributed to the child or children if the child or children were an eligible child or eligible children, as the case may be, of the deceased person not in the custody, care and control of the spouse.

(8)     CSC must not determine that a part of spouse’s additional pension, being such pension mentioned in sections 89 and 93, is attributable to a partially dependent child or partially dependent children.

(9)     Where CSC makes a determination under subsection (4), the spouse may make any election under this Act in relation to the part of a benefit that, under the determination, is not attributable to a child or children (being a child or children not in the custody, care and control of the spouse) as if the part of the benefit were the whole of the benefit to which the spouse had become entitled.

(10)     Where a determination is made under subsection (4), CSC, having regard to the respective needs of the persons mentioned in that subsection and to such other matters as CSC considers relevant, may vary the determination from time to time.

(11)     A reference in subsection (2) to spouse’s pension does not include a reference to spouse’s additional pension mentioned in sections 89 and 93.

(12)     For the purposes of this section, in determining the needs of a spouse, disregard any need that results from an election made by the spouse under section 146E.

(13)     CSC must ensure that so much of a spouse’s pension as is commuted under section 146E is not attributed under this section to a child.

26    The term “eligible child” is defined in section 3:

eligible child, in relation to a person who has died and was, at the time of his or her death, an eligible employee or a retirement pensioner, means a person who:

(a)     is a child of the deceased person; and

(b)     is a person the 16th anniversary of whose birth has not occurred or:

(i)     the 16th anniversary of whose birth has occurred but the 25th anniversary of whose birth has not occurred;

(ii)     is receiving full‑time education at a school, college or university; and

(iii)     is not ordinarily in employment or engaged in work on his or her own account; and

(c)     immediately before the deceased person’s death:

(i)     was (except where the person is a child of a spouse of the deceased person, but not of the deceased person) living with the deceased person;

(ii)     was, in the opinion of CSC, wholly or substantially dependent upon the deceased person; or

(iii)     where the person is a child born after the deceased person’s death—would have been, in the opinion of CSC, living with the deceased person or so dependent if the person had been born before the death of the deceased person.

27    I note that in s 109AB(4), the obligation on CSC is to determine the rate of pension by reference to “the needs of the spouse” and “the respective needs of any eligible child or eligible children, or any partially dependent child or partially dependent children, of the deceased person”, and it is this determination which CSC must translate into a determination about which part of the spouse benefit should be “attributable” to each such child. The effect of s 109AB is that the spouse will (subject to s 114) receive the part “attributable” to the eligible child, but that portion is paid because of the needs of the eligible child, not because of the needs of the spouse.

28    Section 112(2) provides that any payments made will be made out of the Consolidated Revenue Fund:

(2)     Except where otherwise provided by this Act, any payment of benefit shall be made out of the Consolidated Revenue Fund, which is appropriated accordingly.

Note: An early release lump sum is paid to or for the benefit of the person out of the Superannuation Fund (instead of the Consolidated Revenue Fund) (see subsection 79C(2))

29    Section 114 is a critical provision in these proceedings. It provides for the circumstances in which part of a spouse’s pension attributable to children may be paid to someone other than the spouse:

114 Payment of part of spouse’s pension etc. attributable to children

(1)     Where, in the opinion of CSC, payment of:

(a)     the part, or any portion of the part, of an instalment of spouse’s pension attributable to an eligible child or eligible children or to an eligible child or eligible children and a partially dependent child or partially dependent children; or

(b)     an instalment, or any portion of an instalment, of extra spouse’s pension attributable to a partially dependent child or partially dependent children or to an eligible child or eligible children and a partially dependent child or partially dependent children;

should, by reason of the child or children not being in the custody, care and control of the spouse, or for any other reason which CSC thinks proper, be made to a person other than the spouse, CSC may authorize payment of that part, or a portion of the part, to be made to the other person, and payment shall be made to the other person accordingly.

(1A)     If:

(a)     CSC determines under Division 5 of Part VI that part of a lump sum benefit to which a spouse is entitled is attributable to an eligible child or eligible children or a partially dependent child or partially dependent children; and

(b)     because of the child or children not being in the custody, care and control of the spouse, or for any other reason that CSC thinks proper, CSC is of the opinion that payment of that part, or a portion of that part, of the lump sum benefit should be made to a person other than the spouse;

CSC may authorise payment of that part, or a portion of the part, to be made to the other person, and payment must be made to the other person accordingly.

(2)     A payment of the part, and a payment of a portion of the part, of an instalment of pension or of a lump sum benefit that, under this section, is paid to a person other than the child to which that part or portion is attributable, must be applied for the maintenance, education or other benefit of the child.

(3)     For the purposes of this section, where there is one, or more than one, child of a deceased eligible employee or pensioner who is a partially dependent child:

(a)     the part (if any) of an instalment of spouse’s pension that, but for this subsection, would be attributable to an eligible child or eligible children of the deceased eligible employee or pensioner is taken to be attributable to that eligible child or those eligible children and the partially dependent child or partially dependent children; and

(b)     an instalment of extra spouse’s pension is taken to be attributable to the eligible child or eligible children (if any) of the deceased eligible employee or pensioner and the partially dependent child or partially dependent children.

30    Section 116 deals more broadly with the payment of a benefit otherwise than to the person who is entitled to that benefit:

116 Payment of benefit otherwise than to person entitled

Where, in the opinion of CSC, payment of an instalment, or part of an instalment, of pension, or of an amount of any other benefit, should, by reason of the person who, but for this section, would be entitled to the payment, being a person who is insane or undergoing imprisonment or otherwise being under a disability, or for any other reason which CSC thinks proper, not be made to the person, CSC may authorise the payment to be made to the person’s legal personal representative and, if such an authorisation is made, payment is to be made in accordance with the authorisation.

31    Section 118 prohibits the assignment of benefits except where otherwise prescribed:

118 Assignment of benefits

Except as prescribed and subject to section 119, no pension or other benefit under this Act is capable of being assigned or charged or of passing by operation of law, and any moneys payable under this Act on the death of a person are not liable to be applied or made available in payment of his or her debts or liabilities.

32    Moving to the Superannuation (Resolution of Complaints) Act 1993 (Cth), s 14 of that Act allows complaints to be made to the Superannuation Complaints Tribunal in relation to certain decisions of trustees:

14 Complaints about decisions of trustees other than decisions to admit persons to life policy funds

(1)     This section applies if the trustee of a fund has made a decision (whether before or after the commencement of this Act) in relation to:

(a)     a particular member or a particular former member of a regulated superannuation fund; or

(b)     a particular beneficiary or a particular former beneficiary of an approved deposit fund.

(1A)     This section does not apply to a decision of a trustee in respect of which a complaint can be made to the Tribunal under section 14A.

(2)     Subject to subsection (3) and section 15, a person may make a complaint (other than an excluded complaint) to the Tribunal, that the decision is or was unfair or unreasonable.

Note: Although a complaint is about the decision of a trustee, the Tribunal may join an insurer or other person as a party to the complaint (see subsection 18(1)). The Tribunal may then review any decision of a person joined as a party that may be relevant to the complaint.

(3)     If a person has been given a written notice by the trustee of a fund setting out:

(a)     the trustee’s decision in relation to the person’s objection to the payment of a death benefit; and

(b)     the prescribed period within which the person must complain to the Tribunal about the decision;

the person may only make a complaint under this section to the Tribunal within that period.

(4)     The Tribunal cannot deal with a complaint under this section about a trustee’s decision that must be made within the prescribed period referred to in subsection (3) if the complaint is not made within that period.

(5)     The Tribunal cannot deal with a complaint under this section to the extent that it relates to excluded subject matter.

(6)     The Tribunal cannot deal with a complaint under this section that relates to the management of a fund as a whole.

(6A)     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 the complaint is not made within the following period:

(a)     in the case of a person who, before the making of the decision, permanently ceased particular employment because of the physical or mental condition that gave rise to the claim for disability benefit—4 years after the making of the decision;

(b)     in any other case—6 years after the making of the decision.

(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.

(6C)     Without limiting the meaning of a decision of a trustee relating to the payment of a disability benefit in any other provision of this Act, that expression means, for the purposes of subsections (6A) and (6B), the original decision of the trustee in relation to the matter.

(6D)     For the purposes of subsection (6C), if, as a result of a complaint about the original decision of the trustee under arrangements made under section 101 of the Supervision Act, the original decision was confirmed or varied, or another decision was substituted for the original decision:

(a)     the decision as so confirmed or varied, or the substituted decision, is taken to be the original decision; and

(b)     the decision as so confirmed or varied, or the substituted decision, is taken to have been made at the time when the original decision was made.

(7)     A complaint under subsection (2) is to be made by sending or delivering a written complaint to the office of the Tribunal.

Note: See section 3 for definitions of complaint, complainant, excluded complaint and excluded subject matter.

33    Section 15 of that Act sets out who is able to make a complaint under s 14:

15 Who may make a complaint under section 14

(1)     A person may make a complaint under section 14 only if:

(a)     in the case of a decision that relates to the payment of a death benefit:

(i)     the person has an interest in the benefit; or

(ii)     the person claims to be, or to be entitled to benefits through, a person referred to in subparagraph (i); or

(iii)     the person is acting for a person referred to in subparagraph (i) or (ii); or

(b)     in the case of a decision that does not relate to the payment of a death benefit—the person is:

(i)     a member or former member of the regulated superannuation fund; or

(ii)     a beneficiary or former beneficiary of the approved deposit fund; or

(iii)     a person acting for a person referred to in subparagraph (i) or (ii) or for the estate of such a person.

(2)     A person does not have an interest in a death benefit for the purposes of paragraph (l)(a) unless:

(a)     the person:

(i)     has been given written notice by the trustee of the proposed payment of the benefit; and

(ii)     has been given written notice by the trustee of the prescribed period within which the person may object; and

(iii)     has objected to the trustee within the prescribed period; or

(b)     the person has not been notified by the trustee of the proposed payment of the benefit and the failure to notify was unreasonable; or

(c)     the person has been notified by the trustee of the proposed payment of the benefit but was not notified of the prescribed period to object to the payment; or

(d)     the person has been notified by the trustee of the proposed payment of the benefit but was notified of a period less than the prescribed period for the purposes of subparagraph (a)(ii).

Note: See section 10 of the Supervision Act for definitions of approved deposit fund and superannuation fund.

34    Section 15(1)(a)(iii) may have a role to play in the standing question in this proceeding, which was not raised by either party. I deal with this below, when I consider Mr Edwards’ standing.

35    Section 18 then identifies who the parties to a complaint under s 14 are:

18 Parties to a complaint

(1)     The parties to a complaint under section 14 are:

(a)     the complainant; and

(b)     the trustee; and

(c)     if the subject matter of the complaint relates to a death benefit or a disability 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—the insurer; and

(d)     if the subject matter of the complaint relates to a disability benefit (whether under a contract of insurance or otherwise) and the Tribunal decides that a person other than a trustee or insurer is responsible for determining either or both of the existence and the extent of the disability (whether total and permanent or otherwise)—that person; and

(e)     if any other person has applied to the Tribunal to be made a party to the complaint (whether under section 24A or otherwise) and the Tribunal decides that the person should be a party to the complaint—that person.

(2)     The parties to a complaint under section 14A concerning a decision to admit a person to a life policy fund are:

(a)     the complainant; and

(b)     the trustee; and

(c)     if the Tribunal decides that the insurer who issued to the trustee a life policy covering the life of the person to whom the complaint relates should be a party to the complaint—the insurer; and

(d)     if any other person has applied to the Tribunal to be made a party to the complaint (whether under section 24A or otherwise) and the Tribunal decides that the person should be a party to the complaint—that person.

(3)     The parties to a complaint under section 15A or 15B are:

(a)     the complainant; and

(b)     the insurer; and

(c)     if any other person has applied to the Tribunal to be made a party to the complaint (whether under section 24A or otherwise) and the Tribunal decides that the person should be a party to the complaint—that person.

(3AA)     The parties to a complaint under section 15CA are:

(a)     the complainant; and

(b)     the superannuation provider; and

(c)     if any other person has applied to the Tribunal to be made a party to the complaint (whether under section 24A or otherwise) and the Tribunal decides that the person should be a party to the complaint—that person.

(3A)     The parties to a complaint under section 15E or 15F are:

(a)     the complainant; and

(b)     the RSA provider; and

(c)     if the subject matter of the complaint relates to a death benefit or a disability benefit in relation to a contract of insurance relating to an RSA, and the Tribunal decides that the insurer should be a party to the complaint—the insurer; and

(d)     if the subject matter of the complaint relates to a disability benefit (whether in relation to a contract of insurance or otherwise) and the Tribunal decides that a person other than an RSA provider or insurer is responsible for determining either or both of the existence and the extent of the disability (whether total and permanent or otherwise)—that person; and

(e)     if any other person has applied to the Tribunal to be made a party to the complaint (whether under section 24A or otherwise) and the Tribunal decides that the person should be a party to the complaint—that person.

(3B)     The parties to a complaint under section 15H or 15J are:

(a)     the complainant; and

(b)     the insurer; and

(c)     if the subject matter of the complaint relates to a death benefit or a disability benefit in relation to a contract of insurance relating to an RSA and the Tribunal decides that the RSA provider should be a party to the complaint—the RSA provider; and

(d)     if the subject matter of the complaint relates to a disability benefit (whether in relation to a contract of insurance or otherwise) and the Tribunal decides that a person other than an RSA provider or insurer is responsible for determining either or both of the existence and the extent of the disability (whether total and permanent or otherwise)—that person; and

(e)     if any other person has applied to the Tribunal to be made a party to the complaint (whether under section 24A or otherwise) and the Tribunal decides that the person should be a party to the complaint—that person.

(4)     Nothing in this section implies that a person cannot be joined under this section as a party to a complaint after the Tribunal has started to deal with the complaint.

36    Section 27 requires the Tribunal to attempt to settle the complaint through conciliation:

27 Inquiries by Tribunal

If:

(a)     a complaint has been made to the Tribunal; and

(b)     the complaint has not been withdrawn; and

(c)     the Tribunal is satisfied that the Tribunal can deal with the complaint under this Act;

the Tribunal must inquire into the complaint and try to settle it by conciliation.

37    Sections 32 deals with the arrangements of the Tribunal if a complaint is not settled by conciliation:

32 Arrangements for review meetings

(1)     If the Tribunal has tried to settle a complaint by conciliation under Part 5 but has not been successful, the Tribunal must fix the date, time and place for a review meeting.

(2)     The Tribunal must write to the parties inviting written submissions by the date specified in the notice.

(3)     The date specified for the meeting must be such as to allow a reasonable period for the parties to make written submissions.

38    Sections 34 and 36 then deal with how a review meeting is conducted:

34 Tribunal meetings

(1)     Subject to subsection (2), the Tribunal must conduct a review meeting without oral submissions from the parties.

(2)     The Tribunal may, if it thinks necessary, make an order allowing the parties to make oral submissions to the Tribunal at the review meeting.

(3)     If the Tribunal makes an order under subsection (2), the Tribunal must give the parties written notice of the date, time and place fixed for making the oral submissions.

(4)     If a party or the party’s representative has advised the Tribunal that the party does not intend to make oral submissions in accordance with an order made under subsection (2), the Tribunal may conduct the review meeting without oral submissions from the party.

(5)     If a party or the party’s representative does not attend the review meeting at the time fixed for the meeting, the Tribunal may conduct the review meeting without oral submissions from the party or the party’s representative.

(6)     If a party attending the review meeting is not proficient in English, the Tribunal may direct the use of an interpreter.

…

36 Meeting procedure

The Tribunal, in reviewing a decision or conduct:

(a)     is not bound by technicalities, legal forms or rules of evidence; and

(b)     is to act as speedily as proper consideration of the review allows, having regard to:

(i)     the objectives laid down by section 11; and

(ii)     if the complaint relates to a fund—the interests of all the members of the fund; and

(c)     may inform itself of any matter relevant to the review in any way it thinks appropriate.

39    Section 37 sets out the powers of the Tribunal in reviewing complaints made under s 14:

37 Tribunal powers—complaints under section 14

(1)     For the purpose of reviewing a decision of the trustee of a fund that is the subject of a complaint under section 14:

(a)     the Tribunal has all the powers, obligations and discretions that are conferred on the trustee; and

(b)     subject to subsection (6), must make a determination in accordance with subsection (3).

(2)     If an insurer or other decision‑maker has been joined as a party to a complaint under section 14:

(a)     the Tribunal must, when reviewing the trustee’s decision, also review any decision of the insurer or other decision‑maker that is relevant to the complaint; and

(b)     for that purpose, has all the powers, obligations and discretions that are conferred on the insurer or other decision‑maker; and

(c)     subject to subsection (6), must make a determination in accordance with subsection (3).

(3)     On reviewing the decision of a trustee, insurer or other decision‑maker that is the subject of, or relevant to, a complaint under section 14, the Tribunal must make a determination in writing:

(a)     affirming the decision; or

(b)     remitting the matter to which the decision relates to the trustee, insurer or other decision‑maker for reconsideration in accordance with the directions of the Tribunal; or

(c)     varying the decision; or

(d)     setting aside the decision and substituting a decision for the decision so set aside.

(4)     The Tribunal may only exercise its determination‑making power under subsection (3) for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both, that the Tribunal has determined to exist in relation to the trustee’s decision that is the subject of the complaint no longer exists.

(5)     The Tribunal must not do anything under subsection (3) that would be contrary to law, to the governing rules of the fund concerned and, if a contract of insurance between an insurer and trustee is involved, to the terms of the contract.

(6)     The Tribunal must affirm a decision referred to under subsection (3) if it is satisfied that the decision, in its operation in relation to:

(a)     the complainant; and

(b)     so far as concerns a complaint regarding the payment of a death benefit—any person (other than the complainant, a trustee, insurer or decision‑maker) who:

(i)     has become a party to the complaint; and

(ii)     has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person having an interest in the death benefit;

was fair and reasonable in the circumstances.

40    Finally, s 52 of the Superannuation Industry (Supervision) Act 1993 (Cth) (Supervision Act) provides for covenants in the governing rules of superannuation entities:

52 Covenants to be included in governing rules—registrable superannuation entities

Governing rules taken to contain covenants

(1)     If the governing rules of a registrable superannuation entity do not contain covenants to the effect of the covenants set out in this section, those governing rules are taken to contain covenants to that effect.

General covenants

(2)     The covenants referred to in subsection (1) include the following covenants by each trustee of the entity:

(a)     to act honestly in all matters concerning the entity;

(b)     to exercise, in relation to all matters affecting the entity, the same degree of care, skill and diligence as a prudent superannuation trustee would exercise in relation to an entity of which it is trustee and on behalf of the beneficiaries of which it makes investments;

(c)     to perform the trustee’s duties and exercise the trustee’s powers in the best interests of the beneficiaries;

(d)     where there is a conflict between the duties of the trustee to the beneficiaries, or the interests of the beneficiaries, and the duties of the trustee to any other person or the interests of the trustee or an associate of the trustee:

(i)     to give priority to the duties to and interests of the beneficiaries over the duties to and interests of other persons; and

(ii)     to ensure that the duties to the beneficiaries are met despite the conflict; and

(iii)     to ensure that the interests of the beneficiaries are not adversely affected by the conflict; and

(iv)     to comply with the prudential standards in relation to conflicts;

(e)     to act fairly in dealing with classes of beneficiaries within the entity;

(f)     to act fairly in dealing with beneficiaries within a class;

(g)     to keep the money and other assets of the entity separate from any money and assets, respectively:

(i)     that are held by the trustee personally; or

(ii)     that are money or assets, as the case may be, of a standard employer‑sponsor, or an associate of a standard employer‑sponsor, of the entity;

(h)     not to enter into any contract, or do anything else, that would prevent the trustee from, or hinder the trustee in, properly performing or exercising the trustee’s functions and powers;

(i)     if there are any reserves of the entity—to formulate, review regularly and give effect to a strategy for their prudential management, consistent with the entity’s investment strategies and its capacity to discharge its liabilities (whether actual or contingent) as and when they fall due;

(j)     to allow a beneficiary of the entity access to any prescribed information or any prescribed documents.

Superannuation trustee

(3)     In paragraph (2)(b), a superannuation trustee is a person whose profession, business or employment is or includes acting as a trustee of a superannuation entity and investing money on behalf of beneficiaries of the superannuation entity.

Obligations to beneficiaries override obligations under certain other Acts

(4)     The obligations of the trustee under paragraph (2)(d) override any conflicting obligations an executive officer or employee of the trustee has under:

(a)     Part 2D.1 of the Corporations Act 2001; or

(b)     Subdivision A of Division 3 of Part 2‑2 of the Public Governance, Performance and Accountability Act 2013 (which deals with general duties of officials) or any rules made for the purposes of that Subdivision.

Trustee not prevented from engaging or authorising persons to act on trustee’s behalf

(5)     A covenant referred to in paragraph (2)(h) does not prevent the trustee from engaging or authorising persons to do acts or things on behalf of the trustee.

Investment covenants

(6)     The covenants referred to in subsection (1) include the following covenants by each trustee of the entity:

(a)     to formulate, review regularly and give effect to an investment strategy for the whole of the entity, and for each investment option offered by the trustee in the entity, having regard to:

(i)     the risk involved in making, holding and realising, and the likely return from, the investments covered by the strategy, having regard to the trustee’s objectives in relation to the strategy and to the expected cash flow requirements in relation to the entity; and

(ii)     the composition of the investments covered by the strategy, including the extent to which the investments are diverse or involve the entity in being exposed to risks from inadequate diversification; and

(iii)     the liquidity of the investments covered by the strategy, having regard to the expected cash flow requirements in relation to the entity; and

(iv)     whether reliable valuation information is available in relation to the investments covered by the strategy; and

(v)     the ability of the entity to discharge its existing and prospective liabilities; and

(vi)     the expected tax consequences for the entity in relation to the investments covered by the strategy; and

(vii)     the costs that might be incurred by the entity in relation to the investments covered by the strategy; and

(viii)     any other relevant matters;

(b)     to exercise due diligence in developing, offering and reviewing regularly each investment option;

(c)     to ensure the investment options offered to each beneficiary allow adequate diversification.

Insurance covenants

(7)     The covenants referred to in subsection (1) include the following covenants by each trustee of the entity:

(a)     to formulate, review regularly and give effect to an insurance strategy for the benefit of beneficiaries of the entity that includes provisions addressing each of the following matters:

(i)     the kinds of insurance that are to be offered to, or acquired for the benefit of, beneficiaries;

(ii)     the level, or levels, of insurance cover to be offered to, or acquired for the benefit of, beneficiaries;

(iii)     the basis for the decision to offer or acquire insurance of those kinds, with cover at that level or levels, having regard to the demographic composition of the beneficiaries of the entity;

(iv)     the method by which the insurer is, or the insurers are, to be determined;

(b)     to consider the cost to all beneficiaries of offering or acquiring insurance of a particular kind, or at a particular level;

(c)     to only offer or acquire insurance of a particular kind, or at a particular level, if the cost of the insurance does not inappropriately erode the retirement income of beneficiaries;

(d)     to do everything that is reasonable to pursue an insurance claim for the benefit of a beneficiary, if the claim has a reasonable prospect of success.

Covenants relating to risk

(8)     The covenants referred to in subsection (1) include the following covenants by each trustee of the entity:

(a)     to formulate, review regularly and give effect to a risk management strategy that relates to:

(i)     the activities, or proposed activities, of the trustee, to the extent that they are relevant to the exercise of the trustee’s powers, or the performance of the trustee’s duties and functions, as trustee of the entity; and

(ii)     the risks that arise in operating the entity;

(b)     to maintain and manage in accordance with the prudential standards financial resources (whether capital of the trustee, a reserve of the entity or both) to cover the operational risk that relates to the entity.

Background and the second Tribunal decision

41    Mr Edwards has described himself in this proceeding and in communications with the CSC and the Tribunal as the “custodial parent” of Ashley and Adam. That description was never contested before me by Ashley or Adam, or Ms Carol Harris, nor by the CSC. Mr Edwards had produced to the CSC and to the Tribunal orders made by the Family Court of Australia on 2 October 2008 to support this description.

42    The difficulty insofar as the proceedings in this Court were concerned, was that both Adam and Ashley were adults, and Mr Edwards had no legal right to “represent” them, to be their litigation guardian under the Federal Court Rules, or otherwise to conduct these proceedings on their behalf in some kind of “custodial parent” role. Nor was he able to “represent” Ms Carol Harris. Each of Ms Carol Harris, Adam and Ashley appeared in case management hearings before me. Each appeared to be a capable and independent individual, who was able to articulate to me, with appropriate questions being asked, what they did or did not wish to do.

43    I am satisfied that each understood what it meant to be a party to this proceeding, and that the claims made were about benefits payable to them. Ashley and Adam exercised their independent judgment about what they wished to do about the claims made ostensibly on their behalf in these proceedings, and each withdrew. The same can be said of Ms Carol Harris.

44    Whatever relationship may exist on a social or day to day level between Mr Edwards, and Adam, Ashley and Ms Carol Harris, so far as the law is concerned Ms Carol Harris, Ashley and Adam are autonomous individuals who are the persons directly affected by the decisions made by CSC and the Tribunal about the payments of benefits to them. Mr Edwards cannot adopt some generalised representative role in relation to them in either of these proceedings, especially since each of them decided to withdraw. I deal at [185] to [195] below with Mr Edwards’ attempts to go behind their withdrawal by making applications under rr 9.23 and 9.25 of the Federal Court Rules.

45    Turning to the events that triggered the review in the Tribunal, Mr Paulusz was a member of the CSS Fund, having become an eligible contributor in 1964. He was born in 1932, and died on 17 May 2009.

46    Two weeks after Mr Paulusz’s death, Ms Carol Harris applied to CSC for a spouse benefit under the Trust Deed. That application was refused by CSC. That decision was challenged by Mr Edwards, on behalf of Ms Harris, after an internal complaint and review process with CSC, by way of a review application to the Tribunal in early 2013. It was as a result of that review application that benefits were paid to Ms Harris and the children. The Tribunal’s first review decision meant that there needed to be a calculation of the quantum of back payments to which each of the beneficiaries was entitled. The matter was remitted to CSC for determination in accordance with the Tribunal’s decision.

47    The circumstances of Mr Paulusz, Mr Edwards, Ms Carol Harris and Adam and Ashley were not straightforward. They were set out in the reasons for the first review decision of the Tribunal.

48    The first Tribunal’s reasons made the following statement about Mr Paulusz’s will. His testamentary circumstances also have some relevance to the claims made by Mr Edwards.

The Deceased Member executed a Will on 15 December 2008 in which he bequeathed his entire estate to [Ms Carol Harris], his ‘companion and carer’, including any Fund benefit to which she may be entitled. He noted that if she were not eligible for his Fund benefit then it was to be paid to her children.

49    On 24 July 2013, CSC made a decision that Ms Carol Harris was entitled to 67% of Mr Paulusz’s pension, and Ashley and Adam were each entitled to 11%. As set out in the Tribunal’s decision, the financial consequences of that decision were as follows:

At 11% each of Peter Paulusz’s CSS pension, Adam and Ashley would currently be entitled to $62.34 each per fortnight, effective from pension payday of 25 July 2013.

Adam and Ashley Harris would each be entitled to an amount of $6,569.86 pension arrears from Peter Paulusz’s date of death of 17 May 2009 till pension payday of 8 August 2013.

…

At 67% of Peter Paulusz’s CSS pension, Carol Harris would currently be entitled to $382.08 per fortnight, effective from pension payday of 25 July 2013,

Carole Harris would be entitled to an amount of $41,085.66 pension arrears from Peter Paulusz’s date of death of 17 May 2009 till pension payday of 8 August 2013.

(Emphasis in original.)

50    Mr Edwards sought payments of the children’s benefits by CSC to him. The asserted basis was that he was their custodial parent. In his affidavit in these proceedings, he referred to an order of the Family Court made on 2 October 2008 which he said “made me the custodial parent of the children.” In his affidavit evidence, he extracted part of the correspondence he sent to CSC about this:

‘As to the implications behind your correspondence I advise that both children have not reached the age of majority and as such I am their custodial parent and responsible (as well as liable) for their actions. You should further note that as their custodial parent I ‘stand in their shoes’ until they attain the age of 18 years. Whilst your decision (to the extent that it complies with the Act is acceptable); your application of the determination is improper given that the children are both minors and not legally accountable for legal issue, which is the very reason why at law they have a guardian.’

(Emphasis in original.)

51    At this time (July 2013), Ashley and Adam (who are twins) were aged 16 years, having been born in January 1997. CSC did not agree with Mr Edwards’ assertion, and instead exercised its powers under s 114 of the Superannuation Act 1976, which authorises the CSC, where a child or children are not in the custody, care and control of the spouse receiving the benefit, or “for any other reason which CSC thinks proper”, to make payment to a “person other than the spouse”. In this situation, CSC considered s 114 as authorising payment to be made directly to each of Ashley and Adam, if it thought that proper (which it did). The exercise of that discretion, and how the second Tribunal on review dealt with that issue, is the subject matter of part of the application by Mr Edwards in these proceedings.

52    It appears, although it is unclear, that after the decision in July 2013, Ms Carol Harris, Adam and Ashley each commenced receipt of their fortnightly pension amounts. The back payments appear to have taken CSC some time to calculate, I infer because of some disputes which made their way into this proceeding about what if anything should be deducted from those back payments. It appears that after the first Tribunal decision in July 2013, Mr Edwards (purportedly on behalf of Ashley and Adam), continued to engage with CSC about the back payments (including whether interest would be payable on them), and continued to do so for some years notwithstanding that Ashley and Adam turned 18 in January 2015. Whether or not he did so as their agent, and/or with their informed consent, is difficult to ascertain from the evidence. He certainly represented to the Tribunal and to CSC that he was acting on their behalf, with their knowledge and agreement and, as I refer to below, there was some material before the Tribunal suggesting Adam and Ashley were content for their father to agitate their review, although as will also become apparent, Mr Edwards was actually agitating a position that would see him receive the money due to Adam and Ashley rather than it being paid to them directly. The Tribunal records that Mr Edwards had “specific authorisation as a representative” acting for Ms Carol Harris.

53    During 2014, the CSC decision went through an internal review process, at Mr Edwards’ request, both as to the issue of paying the benefits due to Ashley and Adam to him, and the question of interest on the back payments due to each of Ms Carol Harris, Ashley and Adam. The reconsiderations took some time, and in his evidence Mr Edwards deposes to the numerous complaints he made about this.

54    It appears the internal review was completed in early December 2014, and reasons for rejecting the claims made by Mr Edwards (as to payment to him, and interest on the back payments) were given by letter dated 19 December 2014.

55    From approximately the middle of 2015, Mr Edwards began a complaint process to the Commonwealth Ombudsman about the conduct of CSC. In his affidavit Mr Edwards deposes that eventually

…I decided that it would be best if the Ombudsman was to withdraw from the case, and it was agreed that the Tribunal would continue to handle the complaint.

56    It appears Mr Edwards had filed a second complaint with the Tribunal on 23 August 2013.

57    As to Ashley and Adam, this complaint related to the failure by CSC to pay their back payments to Mr Edwards himself, and the failure to pay their fortnightly benefits to Mr Edwards. It did not appear that Mr Edwards limited his claim to what should have happened before they turned 18.

58    As the Tribunal also noted, by the time Mr Edwards was conducting the review before the second Tribunal, Ashley and Adam were over 18 years old, and the question of payment of benefits to someone other than them would seem moot. There was no debate that, in fact, the CSC had paid both the fortnightly benefits and the back payments to Ashley and Adam, and to Ms Carol Harris. It appears from [23] of the Tribunal’s reasons that Adam and Ashley did however consent to their father bringing the complaint and a statement before the Tribunal from Adam did contend, at least in the way it was written, that payments “attributable” to him and his sister should have been paid to their father.

59    Mr Edwards’ complaint to the Tribunal on behalf of Ms Harris also related to the failure to add interest to her back payments. The Tribunal noted in its reasons that there were deductions made by CSC for social security payments CSC said had been made to Ms Harris. The total deduction from the back payments was $3,536.00, meaning Ms Harris received $37,549.66 in back payments rather than $41,085.66. This was one of Ms Carol Harris’ principal complaints to the Court at the early stages of this proceeding.

60    Mr Edwards also sought information from CSC about the methodology calculating the back payments, and complained to the Tribunal about not receiving it, but ultimately he accepted he received this during the Tribunal review process.

61    At [17] of its reasons, the Tribunal set out the matters presented for its determination under s 37(6) of the Complaints Act:

Under section 37(6) of the Complaints Act the Tribunal must initially determine whether the decisions of the Trustee:

•    paying [Adam] and [Ashley] both their Back-Payments and their ongoing weekly pensions as Direct Payments, rather than to the Custodian;

•    refusing to pay interest on the Back-Payments in respect of [Adam], [Ashley] and [Ms Carol Harris]; and

•    refusing to provide details of the Methodology in calculating the Back-Payments made to Complainants [Adam], [Ashley] and [Ms Carol Harris]

were fair and reasonable in their operation in relation to the Complainants in the circumstances.

62    As the Tribunal correctly noted at [18]:

The issue is not what decisions the Tribunal would have made on the evidence before the Trustee but whether the decisions were fair and reasonable.

63    The Tribunal affirmed the decisions of CSC. It did so on the following bases.

64    As to the discretion under s 114, the Tribunal recorded the trustee’s submissions that on each occasion where it considered the application of s 114, it was satisfied that Adam and Ashley were not in the custody of Ms Carol Harris, and therefore s 114 could be invoked. It did not consider the children of the spouse were excluded from the scope of the term “other person” in s 114. While the CSC reasons extracted in the Tribunal’s reasons suggest that it accepted the term “other person” could include Mr Edwards, as the guardian of Adam and Ashley in 2013, it did not accept Mr Edwards’ submissions that he was the only person to whom the funds could have been paid, if not to Ms Carol Harris. He contended there was a prohibition on payments to children, a contention the Tribunal did not accept.

65    The Tribunal held (at [26]) it would be contrary to its first determination to accept Mr Edwards’ contention that he had any independent right to the payments from CSC. The right to payment was that of Adam and Ashley. It also held (at [27]) that Mr Edwards’ only suggested relief – that a second set of payments be paid to him, notwithstanding CSC had already paid Adam, Ashley and Ms Carol Harris – suggested (again) he had some standing to receive the payments directly, which he did not.

66    As to the question of interest on the back payments, it is worthwhile beginning with the thrust of Mr Edwards’ contention, reproduced by the Tribunal in its reasons at [16] and [31]:

The Complainants submit that should this be the thrust of the footnote, the Trustee has grossly failed to accept and consider the point made in CS. 1 above, the obligation date, that had actual payments of entitlements commenced as from 17 May 2009, none of these issues would have arisen at all. It is submitted that every problem and issue that has occurred, followed from the failure of the Trustee to make a reasonable decision at first instance. The result of the Trustee’s unreasonable and improper conduct caused the delay in payments and in no manner, shape or form is the Trustee able to claim that the Complainants were in any way at fault. The Trustee has only indicated that the Complainants position [sic] is fallacious and/or misconceived. The Trustee has not considered its own vested interests and how those vested interests impact upon its decisions.

….

The four years (4) that elapsed between the date of the death of the member, Mr [Deceased Member], and the commencement of actual payments of the arrears of entitlements to the entitled beneficiaries has, in the Complainants’ submissions, given rights to claim penalty interest based upon general law principles of negligence.

(Emphasis in original.)

67    The Trustee noted there was no statutory power to add any interest on arrears of pensions. It also noted that the pensions on which back payments were made, had been indexed twice annually before they were eventually paid in August 2013.

68    At [32] and [33] the Tribunal rejected Mr Edwards’ allegation that CSC had been negligent in making its decision in 2009. The fact that the first Tribunal set aside the decision and made a different one was, the Tribunal found, the proper functioning of the appeal process for which the Complaints Act provides.

69    The Tribunal accepted that neither CSC nor, therefore, the Tribunal had any statutory power to award interest. It rejected Mr Edwards’ argument that there was an occasion to apply common law principles, and noted that since it was not a court it could not award penalty interest. It concluded the CSC decision was fair and reasonable.

70    It did not examine the deduction from Ms Harris’ back payments of a sum said to be a reimbursement for social security payments received by her.

71    As to Mr Edwards’ complaint about the failure of CSC to disclose its methodology for the calculation of the back payments, the Tribunal noted at [29] that Mr Edwards conceded in submissions during the review that CSC’s correspondence to the Tribunal on 26 November 2015 included an annexure which set out what Mr Edwards described as “full disclosure of all relevant accounting”. In light of CSC’s disclosure, the Tribunal found (at [30]) that CSC’s conduct was fair and reasonable, although I note that may not be quite the task under s 37, which is limited to assessing whether “decisions” of a trustee are fair and reasonable. In any event, there is no current challenge to that conclusion of the Tribunal.

72    The Tribunal also noted that the fact Adam and Ashley were over 18 by the time of the Tribunal’s decision was problematic in terms of relief. It referred to s 37(4) which I have set out above.

73    The Tribunal noted that Ashley and Adam were no longer in Mr Edwards’ care in relation to “maintenance, education or other benefit”, even if the Tribunal were persuaded they were in his care in 2013. It also noted Adam and Ashley had already received the pension payments in any event. It concluded the passage of time, and the fact of receipt of the payments would mean, even if it was otherwise persuaded in Mr Edwards’ favour on the review (which it was not), that there was no relief it could grant to remedy the unfairness or unreasonableness. Whether or not that is the case need not be the subject of any further consideration, since in my opinion the conclusions reached by the Tribunal on Mr Edwards’ contentions were not themselves affected by an error of law.

74    In its penultimate paragraph at [38], the Tribunal refers to s 37(6) of the Complaints Act.

75    Mr Edwards referred to the referral power in s 39 of the Complaints Act. That is a discretionary power given to the Tribunal to refer a question of law to this Court. There is no basis to decide the Tribunal saw the exercise of this power as appropriate on its review of Mr Edwards’ complaint.

Mr Edwards’ arguments

76    It is difficult to break down Mr Edwards’ arguments into any manageable groupings.

77    Putting to one side his application shortly prior to the hearing under rr 9.23 and 9.25 (and a brief mention of r 9.24 which was never developed), and doing the best I can, in summary these appear to be the points Mr Edwards seeks to make (although some of these points are put in a variety of ways).

78    Mr Edwards makes a wide ranging attack on virtually all aspects of the conduct of CSC since Ms Carol Harris and Ashley and Adam applied for benefits in 2009. In a number of ways he alleges CSC failed to perform its functions and duties, failed to act honestly towards him (and perhaps towards Ms Carol Harris and the children), and generally seeks to re-agitate a challenge to the initial disallowance of the claim. That of course was the subject matter of the first review application to the Tribunal.

79    The best course in these reasons is to extract the claims summary given by Mr Edwards at the end of his written submissions:

In closing my submissions are:

(1)     The First SCT Determination made findings of fact that (i) the spouse and (ii) the children were entitled beneficiaries of the fund.

(2)     The findings of fact meant that the initial decision of the Trustee, made in July 2009, was substituted for the Tribunal's findings: Complaints Act s.37(3) and (4).

(3)     The Trustee wrongfully applied the provisions of s. 114 of the Act to make a discretionary payment of the full amount of the arrears of benefit to the children directly without considering section 116 of the Act. The Trustee has a responsibility to administer the Act fairly and reasonably and to know the provisions of the Act that it administers.

(4)     The Trustee failed in this administrative responsibility.

(5)     When challenged about the payment being made directly to the children the Trustee dishonestly and deceitfully sought to ‘cover up’ its error by failing to disclose to the Tribunal; to the Applicant and to the Ombudsman the s.116 provision. [CB File page 272j.

(5)     The Trustee was under a duty to act honestly and with the ‘utmost good faith’ towards the Applicant, and to the Tribunal.

(6)     The Trustee failed in these duties (i) ‘to make inquiries for ‘information, evidence and advice’ which is a ‘more intense’ duty than what exists under the Karger v Paul principles and (ii) the duties expressed under s.52 of the Supervision Act. In breach of these duties the Trustee acted: (a) dishonestly; (b) deceitfully towards the Tribunal by forcing the Ombudsman to withdraw when it became known to the Trustee that the Ombudsman was prepared to obtain a decision on s.114 of the Act, and (c) confirmed to the Tribunal that it had followed all its internal reconsideration obligations when it knew that it had not done so. [Affidavit material]

(7)     The Trustee's conduct, actions and behaviour fundamentally misled the Tribunal as the Tribunal was not informed that the implied covenants applicable to all Trust Deeds [s.52 Supervision Act] were not contained in the Act. The implied covenants placed priority upon the interests of the beneficiary over the interest of the Trustee.

(8)     The Tribunal failed to consider that the First SCT Determination placed the applicants into the position they were in as at May 2009.

(9)     The Tribunal made an error of law in removing the Applicant from the Second Tribunal Determination as the Trustee had not complied with the full terms of the First Tribunal Determination which was to return the Complainants to the position they were in as of 2009. [Paragraph 63 of the TR].

(10)     As the Applicant was a beneficiary of the fund at all material times, the Applicant has standing ‘as of right’ [Finch: judgment paragraph 66].

[Emphasis in original.]

80    The CSC submits part of Mr Edwards’ case has been that because he was an executor of Mr Paulusz’s deceased’s will, he became a beneficiary under the Trust Deed. Although Mr Edwards did submit he generally relied on his written submissions, and this submission did appear in those written submissions, he said very little about it during the hearing. Given the terms of s 118 of the Superannuation Act 1976, set out above at [31], there is no merit in this argument.

81    In the s 46 appeal, Mr Edwards sought the following relief:

1.    A declaration as to the Interpretation of ‘Child’ under section 3 of the Act and the application of the term ‘Child’ to section 114 of the Act.

2.     A declaration as to whom does the words ‘the other person’ referred to in section 114( 1 )(b) of the Act make reference to.

3.    A declaration that the Trustee is not permitted under the Act to make payments directly to children.

4.    A declaration that the Determination D12-13\097 applied as and from 17 May 2009 and takes effect from that date.

5.    A declaration that the eligible beneficiaries and the Executor became members of the fund as from 17 May 2009.

6.    A declaration that interest accrued upon arrears of pension payments due to the Executor as from 17 May 2009 is a contractual debt and is payable to the Executor at the penalty interest rate or as the Court may determine pursuant to sections 51 A and 52 of the Federal Court of Australia Act 1976.

7.    That the Determination of the Tribunal made 3 May 2016 be wholly set aside or such further or other order as the Court deems fit.

8.    That any ancillary loss or damage caused to the Executor by the Trustee’s actions and conduct in not paying the Executor the children’s entitlements is compensable (as submitted in CSRC ‘[E] Issues arising out of ‘Ancillary Loss’ Claim’).

9.    Such further or other order as the Court deems fit.

(Emphasis in original.)

82    In the AD(JR) Act proceeding, Mr Edwards sought the same relief as in the s 46 appeal, with the exception that he did not seek paragraph 8, as set out in [81] above.

Resolution

83    Subject to questions of standing, the valid focus of this proceeding is on the second Tribunal decision. For that reason, some basic propositions about the function of the Tribunal under the Complaints Act should be set out.

84    The propositions concerning the Tribunal’s task, and the distinction between that task and general merits review, are well established. In Webb v Teeling [2009] FCA 1094 at [51], Jagot J said:

It may be accepted that ‘[t]he role of the Tribunal under s 37(6) of the Complaints Act is not to decide for itself the correct or preferable decision: it must affirm a decision if it is satisfied that the operation of the decision the subject of review was fair and reasonable in the circumstances’ (Edwards v Postsuper Pty Ltd [2007] FCAFC 83 at [15]). In so doing the ‘Tribunal may have to make its own findings of fact for the purpose of determining whether the decision is fair and reasonable in its operation in the circumstances’.

85    In National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852; 99 FCR 562 the Court said at [15]:

When exercising its powers under s 37(3), the Tribunal is engaged in a task that results from a complaint that the decision being reviewed is or was unfair or unreasonable, or both. The claimed unfairness or unreasonableness, which was the subject of the complaint, is the central object of the review. The terms of s 37(4) confirm that this is so.

86    The limits on the power conferred on the Tribunal by s 37(4) was explained by Kenny J in Military Superannuation & Benefits Board of Trustees No 1 v Batt [2005] FCA 1865; 149 FCR 448 at [46]:

Section 37(4) presupposes that the Tribunal has power that it might otherwise exercise subject to the constraints imposed by this provision. That is, any power that the Tribunal would otherwise have by virtue of s 37(1) can only be exercised for the purpose of removing the unfairness or unreasonableness that the Tribunal perceives in the decision under review. To the extent that the Tribunal treated s 37(4) as an independent source of power, it was in error.

Standing

87    The CSC submits Mr Edwards has no standing under either s 46 of the Complaints Act, nor under the AD(JR) Act.

88    The CSC submits that in the second Tribunal decision, the Tribunal correctly identified Ashley, Adam and Ms Carol Harris as complainants and Mr Edwards as “another person”: this is evidenced from the cover sheet to the Determination. That is in contrast to the first Tribunal decision where Mr Edwards is identified as a complainant, because he was at that stage the legal guardian of Ashley and Adam.

89    It is clear that Mr Edwards was not a “party” to the review before the second Tribunal on the basis of being a beneficiary under the Trust Deed. The principal complainant was Ms Carol Harris: what was in issue was the payment of a spousal benefit to her as the “spouse” of Mr Paulusz. The children had an interest because a proportion of the spousal benefit was attributable to them under the Trust Deed. They were adults by the time of the second Tribunal decision. There was no legal basis on which Mr Edwards should have been a party in his own right, much as he may have desired to be one because he seems at all times to have been the driving force behind the complaints to the Trustee and then to the Tribunal. To acknowledge that is not to impute any adverse motives to Mr Edwards: it is clear he considered Ms Carol Harris should have been given a spousal benefit and was determined to assist her to get one and in the process assist his children to secure whatever financial benefits they were entitled to. It is understandable as the guiding force behind the complaints that Mr Edwards considered he should be a party. It may have been the case the Tribunal could or should have identified s 15(1)(a)(iii) as a basis for Mr Edwards to make a complaint to the Tribunal, but it is important to recall even on that basis he would only have been a representative of persons to whom s 15(1)(a)(i) or (ii) of the Complaints Act applied, rather than making claims in his own right.

90    I accept the CSC’s submission that Mr Edwards has no standing in the s 46 appeal because s 46 limits standing to a “party”. In my opinion a “party” in the context of the Complaints Act, means a person in one of the three categories in s 15(1)(a), read with s 14(1). Whether by s 15(1)(a)(iii) Mr Edwards should have been a “party” was not directly raised on the appeal. If it had been, I do not consider it would have assisted Mr Edwards’ standing under s 46 in this proceeding, where he sought to make his own claims and was not able to act as a “representative” for the three primary applicants for the reasons I have already explained. However it is approached, Mr Edwards has no standing to make his own claims under s 46 about the Tribunal decision. The appeal should be dismissed on that basis.

91    Outside the terms of s 46, properly construed, Mr Edwards sought to make a raft of other claims in the s 46 proceeding. The CSC made the following submission, which should be accepted:

The Applicant’s proceedings are incompetent insofar as they purport to examine the steps or decisions made by CSC over time in respect of the relevant pension entitlements. Section 46 is a strict statutory process for appeal of an SCT determination on a question of law.

92    In summary, Mr Edwards has no standing under s 46 of the Complaints Act to make his own claims and insofar as proceeding VID 628 purports to identify questions of law arising from the second Tribunal’s decision, Mr Edwards is unable to do so in his own right. He is also unable to act as any kind of “representative” of the other three primary applicants, each of whom has withdrawn. Insofar as Mr Edwards seeks to impugn the conduct of CSC in VID 628, those allegations are outside the jurisdiction conferred on this Court by s 46 of the Complaints Act.

93    Nevertheless, and putting to one side what might be described as claims extraneous to the second Tribunal decision, I propose to consider the merits of the two legal issues raised in the s 46 appeal concerning the second Tribunal’s determination, even though my principal conclusion is that Mr Edwards does not have standing to bring the appeal. I do so because as I set out below, I find Mr Edwards has standing to raise those two legal issues under the AD(JR) Act.

94    The CSC accepts the standing test is wider for the AD(JR) Act but nevertheless contends that Mr Edwards has no standing as a “person aggrieved” by the exercise of a discretionary power. The CSC accepts Mr Edwards may have an “emotional interest” (see Australian Conservation Foundation Incorporated v Commonwealth [1980] HCA 53; 146 CLR 493 at 530 per Gibbs J) but submits it does not go beyond that.

95    Mr Edwards also seeks to review the second Tribunal decision under the AD(JR) Act, and that is evident from the terms of his amended originating application for judicial review which states:

The Applicant applies to the Court to review the decisions of the Superannuation Complaints Tribunal (the Tribunal) made on 3 May 2016 being Determination Number D15-16/127 (the Review Determination).

(Emphasis in original.)

96    In Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50, Lockhart J said, at 65 to 66:

The meaning of ‘a person aggrieved’ is not encased in any technical rules; much depends upon the nature of the particular decision and the extent to which the interest of the applicant rises above that of an ordinary member of the public.

The applicant’s interest must not be remote, indirect or fanciful. The interest must be above that of an ordinary member of the public and must not be that of a mere intermeddler or busybody. The ADJR Act has selected in ss 5 and 6 as its criterion for standing the expression ‘a person aggrieved’. The word ‘interest’ is not used in ss 3 and 5. The term a ‘person aggrieved’ is not a restrictive one; it is of very wide import.

Plainly the applicant need not have a legal, financial or proprietary interest in the subject matter of the proceeding. The applicant must establish that he is a person who has a complaint or grievance which he will suffer as a consequence of the decision beyond that of an ordinary member of the public.

In order that an applicant may show that he is a person ‘aggrieved’, the element of ‘grievance’ must be special to the applicant. He must suffer more greatly or in a different way than other members of the community. It is to be noted that the definition of ‘a person aggrieved’ by a decision [as defined in s 3(4) of the AD(JR) Act] is inclusive of a person whose interests are adversely affected by the decision. It is not exhaustive and the extent of its ambit will depend on the interpretation that the courts place on the expression in the light of the ‘intention to be gathered from the provision as a whole’: YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 at 402; applied in Buckle v Josephs (1983) 47 ALR 787 at 792-793.

97    This approach to the construction of “person aggrieved” was endorsed by a Full Court of this Court in Assarapin v Australian Community Pharmacy Authority [2016] FCAFC 9; 239 FCR 161 at [50].

98    Mr Edwards has an interest above that of the ordinary member of the public in whether the second Tribunal correctly interpreted s 114(2) and whether it correctly determined that interest was not payable on the back payments. The Trustee’s decisions, which the second Tribunal was reviewing, had resulted in comparatively large sums of money being paid directly to his two children while they were still minors, rather than to him as their guardian so that he could ensure the funds were responsibly held and used. The amount which would have been available for him to hold on the children’s behalf would have been much greater if interest were payable. Both contentions depended on a construction of the Superannuation Act 1976 which he contended was the correct one: that is, both contentions had a purported legal basis. These are not grievances he has in common with members of the public. Indeed, he does not have those grievances in common with any other person: as the children’s guardian at the time of the Trustee’s decision, he was the only person who could have had such a grievance. He was the driving force behind the review application to the Tribunal: so much so that Ms Carol Harris asked for him to be granted permission to represent her as well, although she was clearly not under any legal disability. The second Tribunal referred to Mr Edwards as the “custodian” of Adam and Ashley and as the “representative” of Ms Carol Harris.

99    I am satisfied Mr Edwards has standing to bring an application under the AD(JR) Act seeking judicial review of the second Tribunal’s decision, on the basis of the question of the application of s 114 to the Trustee’s decision to make payments directly to Adam and Ashley, and on the basis of the Trustee’s refusal to make interest payments on the back payments to Adam and Ashley. As the extract in [96] demonstrates, no legal or proprietary interest is required to be a “person aggrieved”. I do not consider Mr Edwards has standing to make any wider claims than that. It was Ms Carol Harris who was, ultimately, found to be entitled to spousal benefits under s 109AB of the Superannuation Act 1976. Adam and Ashley were found, ultimately, to be “eligible children” for the purposes of s 109AB. Any broader conduct of CSC in relation to them were not matters in which Mr Edwards has a special interest. The special interest I have found he had is confined to the basis on which, before the second Tribunal, he contended he was entitled to have been paid the benefits payable to Adam and Ashley: that is, the operation of s 114 (and perhaps s 116) of the Superannuation Act 1976. Attached to this was his claim about the quantum of the payment to which he asserted a legal entitlement, which included his argument about interest. He has no standing to make claims about the payment of spousal benefit to Ms Carol Harris. He has no standing to challenge the wider conduct or decision-making of CSC, whether in relation to the reviews before the second Tribunal or otherwise.

100    There is a further matter to consider before the substance of the judicial review is addressed. Ms Carol Harris was a party to the AD(JR) Act proceeding, as well as to the s 46 appeal. She withdrew, as did Adam and Ashley. Their interests, as persons aggrieved, were orthodox interests. In the context of the withdrawal of those three individuals, and given the nature of Mr Edwards’ interests as a person aggrieved, what if anything is the applicability of the terms of s 10 of the AD(JR) Act?

101    Section 10 provides:

Rights conferred by this Act to be additional to other rights

(1)      The rights conferred by sections 5, 6 and 7 on a person to make an application to the Federal Court or the Federal Circuit Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision:

(a)      are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure; and

(b)      shall be disregarded for the purposes of the application of subsection 6(3) of the Ombudsman Act 1976 and section 40TF of the Australian Federal Police Act 1979.

(2)      Notwithstanding subsection (1):

(a)      the Federal Court or the Federal Circuit Court, or any other court, may, in a proceeding instituted otherwise than under this Act, in its discretion, refuse to grant an application for a review of a decision, conduct engaged in for the purpose of making a decision, or a failure to make a decision, for the reason that an application has been made to the Federal Court or the Federal Circuit Court under section 5, 6 or 7 in respect of that decision, conduct or failure; and

(b)      the Federal Court or the Federal Circuit Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason:

(i)      that the applicant has sought a review by the court, or by another court, of that decision, conduct or failure otherwise than under this Act; or

(ii)      that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.

(3)      In this section, review includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order.

102    Mr Edwards has sought review under s 46 of the Complaints Act, but I have found he has no standing, so it would not be appropriate to invoke the discretion in s 10 of the AD(JR) Act on that basis. Similarly, there is no adequate provision under another Act for the complaints he makes.

103    On that basis, this Court should examine the grounds of review Mr Edwards identifies under the AD(JR) Act, within the limited scope I set out at [99] above. Whether as a matter of discretion under s 16 any relief would issue even if a ground were made out, is a separate issue.

104    For completeness, there were a number of other arguments put by Mr Edwards to support his standing. They are summarised, and dealt with, in the CSC’s written submissions, in a way which I accept:

In his submissions, the Applicant appears to contend that he has standing on three different bases:

(1)     First, because the ‘Trustee is a Commonwealth Authority, as defined by the Review Act, which is sufficient to provide me with standing to bring these proceedings.’ CSC is a Statutory Corporation established under an Act. That fact does not confer standing upon the Applicant. It is irrelevant.

(2)     Second, the Applicant asserts that he was found to be a beneficiary by the First SCT Determination ‘by reason of the children being under a legal disability’. This appears to be a submission based on the proposition that by acting on behalf of people with an entitlement, Mr Edwards himself received an entitlement. That submission is without foundation and ought not be accepted. A related argument appears to be advanced along the lines that because Mr Edwards asserts that he should have received funds for the benefit of the Children, he has standing to bring the relevant proceedings. That approach is likewise misconceived, because it suggests Mr Edwards had an entitlement to funds under s 114, in circumstances where no such entitlement existed, and the right to the benefit of the funds was at all times that of the Children.

(3)     Third, the Applicant relies upon s 101 of the Supervision Act. Section 101 imposes duties upon particular kinds of superannuation funds to take reasonable steps to establish certain arrangements. Section 101(1A)(b) refers in terms to the capacity to make complaint on behalf of a former beneficiary. That is not this case.

(Emphasis in original, footnotes omitted.)

105    One further argument by Mr Edwards should be mentioned. In oral submissions Mr Edwards pointed to the leave the Court granted to CSC in its 23 June 2016 orders to apply to remove Mr Edwards as a party to the proceeding. He submitted, correctly, that no such application was ever made. As I stated during the hearing, the failure of CSC to take up that leave does not preclude it from challenging Mr Edwards’ standing at trial.

106    Finally, on the question of standing and although it was not raised in detail by either the CSC or Mr Edwards, the operation of s 15(1)(a)(iii) of the Complaints Act should be considered. That provision authorises a person to bring a complaint under s 14(1) to the Tribunal if she or he is acting on behalf of a person referred to in sub-para (i) or (ii) of s 15(1)(a). That is, on behalf of a person who has an interest in the benefit or a person who claims to be, or to be entitled to benefits through, a person referred to in subparagraph (i). Sub-paragraphs (i) and (ii) clearly comprehend the interests of Ms Carol Harris and Adam and Ashley.

107    Section 14 (1) of the Complaints Act provides:

(1)     This section applies if the trustee of a fund has made a decision (whether before or after the commencement of this Act) in relation to:

(a)     a particular member or a particular former member of a regulated superannuation fund; or

(b)     a particular beneficiary or a particular former beneficiary of an approved deposit fund.

108    Read with s 14(1), it is clear that the scope of s 15(1)(a) is intended to be limited to those people who may be entitled, themselves, to benefits under a superannuation policy. Section 15(1)(a)(iii) is facultative, so that beneficiaries (or people claiming to be beneficiaries) who cannot themselves make a complaint or (reading it generously) wish to be represented by someone else in making a complaint, can do so. It is not intended to allow a person “acting on behalf” of another to make her or his own claims.

109    Mr Edwards sought to do both. Ms Carol Harris authorised him to act on her behalf. He also sought to act on behalf of Adam and Ashley who were at the time of the complaint to the second Tribunal still minors. However, his claim “on behalf” of Adam and Ashley included a claim that he personally was entitled to payment of the portions of the spouse benefits attributable to Ashley and Adam, and that he personally was entitled to a larger sum than that which was paid by the CSC because interest should have been added.

110    In deciding not to identify him as a “party” but as an “other person”, the Tribunal does not seem to have taken account of the terms of s 15(1)(a)(iii). Nevertheless, I do not consider this matter assists Mr Edwards’ position on standing in the s 46 appeal. Even if Mr Edwards should have been a party on the basis of s 15(1)(a)(iii) (assuming in his favour that is its effect, a matter which has not been argued), Mr Edwards nevertheless does not have standing before this Court because the only basis for his standing under the Complaints Act before the Tribunal would have been as a person acting for the three primary applicants, all of whom have withdrawn from these proceedings. Even if s 15(1)(a)(iii) had been applied to him, he would not have been an independent party before the Tribunal and any appeal he could have made to this Court (assuming again in his favour that was possible, by reference to s 15(1)(a)(iii)) could not have related to his own claims, but rather to the claims of the three primary applicants, each of whom has withdrawn.

111    I turn now to consider Mr Edwards’ arguments in his AD(JR) Act application about the second Tribunal decision. There is substantial overlap with what was put in the s 46 appeal and to that extent, even if I had found Mr Edwards had standing under s 46, his appeal would have been dismissed for the reasons I give in relation to the AD(JR) Act proceeding.

The structure of these reasons

112    It is something of a challenge to disentangle and address all the various arguments made by Mr Edwards. One difficulty is that in his amended originating application in VID 629, filed after the other three applicants had withdrawn, Mr Edwards stated (at [1G] and [1H]):

Pursuant to the orders of 13 December 2016 the Applicant has filed an amended notice of appeal on his own behalf in proceeding VID628/2016 which sets out the relevant issues of the Applicant’s matters to be heard. Those matters relied on are relevant to this application and are incorporated fully with this application.

The Questions of law; Orders sought and Grounds relied on are the same for this application as the Applicant was removed from the Review Determination proceeding without his knowledge.

(Emphasis in original.)

113    The latter statement is a reference, as I understand it, to the conduct of the second Tribunal in describing Mr Edwards as an “other person” rather than a “party” in its decision on the review.

114    On one view the statements I have extracted seek to incorporate the questions of law in VID 628 into the AD(JR) Act application. On another view, if one reads the AD(JR) Act application itself, it raises a myriad of other disconnected, disjointed and opaque issues. As I have noted above, Mr Edwards’ claim, by reason of the limits on his standing under the AD(JR) Act which I have identified, is limited to the legal arguments concerning the scope and application of s 114 and s 116 of the Superannuation Act 1976, and the legal arguments concerning the CSC’s power to add interests to any back payments or arrears.

115    I consider the Court is entitled to take Mr Edwards’ written submissions, (together with what he submitted during the hearing) as a fair indication of how he puts the allegations he makes. The Court is not obliged to spend inordinate amounts of time trying to divine what arguments a party may be putting, especially when a party files lengthy, dense and sometimes inconsistent documents which on their face stray well outside the jurisdiction the party has sought to invoke – here the Court’s judicial review jurisdiction in relation to a specifically identified decision of a Tribunal.

116    Mr Edwards is a qualified lawyer, albeit he is without a practising certificate. Although self-represented, the Court is entitled given his qualifications to place more reliance on his written submissions than might otherwise be the case.

117    That approach means that where, in the AD(JR) Act application there are administrative law grounds which were not addressed at all by Mr Edwards in his written or oral submissions (such as an asserted denial of procedural fairness – see [9] of the amended originating application) I have not considered the allegation any further as it was not supported by any detailed submissions. I am not persuaded the second Tribunal’s decision is affected by any other legal error, which may have been mentioned in passing by Mr Edwards in his various documents.

118    Without any particularly discernible correlation to what was in his “Statement of Claim” or his amended originating application under the AD(JR) Act, Mr Edwards did advance in his written submission a number of allegations, said to be based on contract and tort against CSC. I have decided to address these in my reasons because Mr Edwards did include them expressly in his written submissions and they were, in the way he put his case, more central to his claims.

119    I have attempted to deal in these reasons with the arguments I consider Mr Edwards focused on in his written and oral submissions, and those which go to judicial review of the second Tribunal’s decision. That is the only jurisdiction I have found Mr Edwards has standing to invoke.

The second Tribunal decision: construction of s 114

120    Section 114 of the Superannuation Act 1976 is set out above at [29].

121    Mr Edwards submits, and submitted to the second Tribunal, that s 114 did not authorise the CSC to pay the portion of the spousal benefit attributable to the children directly to the children.

122    He also submitted (at least orally) that, assuming against his primary submission that s 114 authorised payment directly to the children, what was unfair or unreasonable about the CSC decision was that it should have been clear the children may spend what was comparatively a large sum of money in back payments unwisely, because as teenagers they were not responsible enough to be careful with such sums.

123    Mr Edwards relies on the outcome of the first Tribunal decision as the basis for this contention. He submits (see [68] of his written submissions) that:

(1)     The First SCT Determination made findings of fact that (i) the spouse and (ii) the children were entitled beneficiaries of the fund.

(2)     The findings of fact meant that the initial decision of the Trustee, made in July 2009, was substituted for the Tribunal's findings: Complaints Act s.37(3) and (4).

124    As I understood it, Mr Edwards made two connected contentions about the terms of s 114. They are set out in his AD(JR) Act application in this proceeding where he extracts a submission he made to the second Tribunal:

‘c.2    It is contended that had the children been in the custody, care and control of the eligible spouse – [Complainant 3] – that ‘Payment of part spouse’s pension etc attributable to children’ would have been paid to the eligible spouse because she would have been the eligible member and the custodial parent. The very purpose of Section 114 is to provide for the payment of children’s benefits to ‘the other person’ in whose custody, care and control the children are in. Whilst the children may become eligible children at age 16 – definition of eligible child – under the law they are not entitled to receive direct benefit payments until such child or children attains the age of 18 years. [Reference the Wills Act and the Status of Children Act. The exception to this rule is contained in the Industrial Relations Act because children may leave school at age 16 and commence work].’

(Emphasis in original.)

125    Thus, Mr Edwards relies on the fact of minority, rather than any special definition of the word “child” as part of his argument about why s 114 did not authorise the CSC to pay the monies directly to Adam and Ashley. I do not consider that argument has any force. Section 114 uses the term “eligible child” as do the entitlement provisions in the Superannuation Act 1976 (such as s 109AB) for the purpose, as the name of the term suggests, of determining which categories of children will be covered by a benefit. The age of 16 years is chosen by the legislature as the point at which payment of benefit should cease, unless the child is in full time education, so as to indicate what the legislature considers to be sufficient justification for an entitlement to ongoing support through the payment of a benefit.

126    For that reason, s 114 continues the use of the term “eligible child”, because that term is the necessary link between a child and an entitlement to payment of a spousal benefit attributable to that child. Where s 114 uses only the term “child” in my opinion it means the eligible child.

127    The real question of construction, and one that in my opinion was not easy to resolve, was whether the eligible child herself or himself was intended by the Parliament to be comprehended by the term “other person” in s 114.

128    Both s 114 and s 109AB(5) speak of portions of the spousal benefit being “attributable” to an eligible child. Plainly, what that means is that those portions of the benefit, as provided in the table in s 109AB, are intended to assist the spouse beneficiary to care for the child, there being a sufficient relationship between the child and the deceased member to justify attribution of that portion. It is for that reason that the restriction on use of the funds is imposed by s 114(2).

129    The terms of s 114(2) make it clear, in my opinion, that the legislature contemplated a payment might be made directly to a child. Otherwise, there is no work for the exclusion in s 114(2) – “other than the child to which that part or portion is attributable”.

130    The purpose of s 114 as a whole is to cater for circumstances where the eligible spouse does not, in fact, face expenses associated with the care and education of an eligible child. It authorises the trustee to redirect that portion of the spouse benefit attributable to the eligible child to another. To the extent that Mr Edwards’ submissions involve the proposition that one such person might be the legal guardian of the eligible child, and the individual who has custody of the child, he is correct. However, it is incorrect to read s 114 as mandating or requiring payment to such a person. An eligible child may be living with someone other than her or his legal guardian and someone other than the person in whose favour a custody order is made. The complexities of family life mean one does not need much imagination to see how such circumstances may arise. A parent of an eligible child divorced from the eligible spouse may have custody but the child may, in fact, reside with a grandparent: perhaps because of relationship reasons, perhaps because of practical reasons (for example, that the custodial parent is working interstate regularly). Section 114 would authorise the trustee to direct payment to the grandparent.

131    All these matters will be fact dependent.

132    It may well be the case that an eligible child (even one under 16) may be living independently, and out of home. It would frustrate the purpose of s 109AB and the attribution of portions of spousal benefit to eligible children if the trustee were not able, in an appropriate case, to re-direct payment to the child herself or himself. Whether or not the trustee had the probative material before it which would make such a decision open, and make such a decision fair and reasonable (using the language of review in the Tribunal) is another question. Those matters do not go to the existence of the power but to its exercise. And any such exercise is reviewable by the Tribunal, as occurred in the present case.

133    Mention should be made here of s 116 of the Superannuation Act 1976, which Mr Edwards submitted gave him a legal right to the pension payments. This section is set out at [30] above.

134    Mr Edwards submits that he raised this point with the Tribunal in his original application before the Tribunal (CB file p 21). While the gist of this submission was put before the Tribunal, Mr Edwards did not specifically put s 116 before the Tribunal in his original application, and instead sought to rely on s 114. He accepts he did not make a submission that the Tribunal could make an order itself under s 116. Rather, he submits the Trustee had an obligation to do so but failed, because before the Tribunal, it “switch[ed] the whole matter to section 114 of the Act”. By doing so, Mr Edwards contends that the Trustee “wilfully, deliberately and deceitfully conceal[ed] the provisions of section 116 from me and also from the Tribunal”.

135    The simple answer to Mr Edwards’ submissions about s 116 is that it is inapplicable to the circumstances of Ms Carol Harris, Adam, Ashley and Mr Edwards. Section 116 is concerned with beneficiaries who may be unable to make decisions about the disposition of a benefit received, or indeed be unable in fact to receive it. Persons who are in prison are one such example: they may in fact be unable to receive the money, or unable to spend it because of restrictions imposed by prison regulations. A person who is “insane” (to use the somewhat outdated and inappropriate language of the statute) may not have the capacity to operate a bank account, or the capacity to make choices about expenditure. Likewise, I consider where s 116 uses the word “disability” it intends to refer to a mental or physical disability.

136    I do not consider s 116 intends to capture minors. The provision does not use the term “legal disability”, which on its usual meaning, includes minors. Nor, even in relation to the people it does intend to include, does s 116 require the trustee to pay the benefit to another person. The trustee may, in its discretion, elect to pay the money to the beneficiary, notwithstanding (for example) that person is in prison. Section 116 is facultative not mandatory. Again, all will depend on the given facts of a given situation.

137    Accordingly, s 116 was not a relevant provision for the Trustee, or the second Tribunal, to consider in the present case.

The terms of the second Tribunal decision on s 114

138    The second Tribunal’s reasoning on the scope and application of s 114 is largely absent. That is an undesirable circumstance for a tribunal obliged to disclose its reasoning, especially where on any view s 114 was a key provision in Mr Edwards’ arguments. In fairness to the Tribunal, Mr Edwards made a large number of submissions on a large number of matters and it may only be with hindsight that s 114 emerges with such clarity as an important provision in the way Mr Edwards identifies the error in what the CSC did. Whatever the explanation, the absence of any real reasoning by the Tribunal has made the task on judicial review more complex than it need have been.

139    The terms of s 114 are set out at [15] of the second Tribunal’s reasons, inexplicably, under a heading “Trust Deed”. An uninstructed reader may well have been led to believe s 114 appeared in the Trust Deed itself rather than in the Superannuation Act.

140    The second Tribunal then set out the parties’ competing contentions on all issues on the review, including s 114. The extract from the CSC’s submissions reflected the submissions made on appeal to this Court.

141    In the part of its decision which is supposed to reflect its own reasoning, the Tribunal made (at [20] to [22]) the observations to which I have referred above, about the futility, in its view, of any remedy even if Mr Edwards’ contentions about s 114 were correct. At [25] it set out Mr Edwards’ proposed remedy, which was that the back payments should be paid again by the CSC, this time to him. That was also the position he maintained in this Court.

142    At [26] to [27], this was the issue on which the second Tribunal focused:

Firstly, this submission presupposes that in some manner or other the Custodian [that is, Mr Edwards] has an independent right to the Direct Payments. This is contrary to the [first] Tribunal’s Determination.

Secondly, it proposes a second set of Direct Payments by the Trustee, with the Custodian as recipient. Notwithstanding, as at December 2015, the Custodian should have been aware that he had no legal standing either with the Trustee or the Tribunal, such as would permit a second set of Direct Payments to be made to him, especially given that Complainants 1 and 2 had already been lawfully paid the Direct Payments.

143    While these observations are capable of being relevant to the second Tribunal’s conclusion about what, if anything, it might do in exercise of its power under s 37(4) if it were otherwise to find the CSC’s decision unfair or unreasonable, it would seem the second Tribunal moved in its reasoning straight to this question, rather than dealing in any substantive way with the competing arguments about the construction of s 114.

144    The CSC submitted that the second Tribunal’s conclusion at [28] that the CSC decision was fair and reasonable indicated it had accepted the CSC’s construction of s 114. That is an inference I am prepared to draw. However, a reviewing Court should be able to see a tribunal’s reasoning laid out more clearly than is the case in this decision.

145    When asked, Mr Edwards submitted that the unfairness or unreasonableness involved in the CSC decision was not paying the benefits to him because he was the children’s guardian in July 2013. He submitted it was unfair or unreasonable not to pay the money to him, when he was spending money on their upkeep and their education. He submitted the only way to remedy that unfairness or unreasonableness was to pay the money to him, even though he no longer has a role as guardian, the children are no longer minors and the basis for his original claim no longer exists.

146    I reject that submission, on several levels. The most obvious is that what Mr Edwards seeks is a windfall. The entitlement to a benefit was an entitlement of his children – not because they were his children, but in fact because the first Tribunal had determined (as he had argued) that they were the “children” of Mr Paulusz. Further, as counsel for the CSC submitted, the second Tribunal’s statutory task involved asking on the review what was the unfairness or unreasonableness in the Trustee’s decision vis-a-vis the beneficiaries: here, Adam and Ashley. That may well explain the focus at [22] in the second Tribunal’s reasons on the direct payments having been received by Adam and Ashley, and the focus on what was wrong with the remedy Mr Edwards was asking for. Correctly, the second Tribunal was in effect saying that first, in making direct payments to Adam and Ashley there was no unfairness or unreasonableness to them; and second that even if there were, to exercise the power in s 37(4) to order the Trustee to make a second set of back payments to Mr Edwards would not remedy that unfairness, but rather would be unrelated to it. I accept the second Tribunal’s reasons may be read in this way, and that reasoning involves no legal error.

The second Tribunal decision: the claim for interest

147    Mr Edwards relies on s 101 of the Supervision Act, which sets out the duties of trustees. As he points out, there are no time limits constraining the time in which those duties need to be performed. Here, the resolution of the entitlement of Ms Carol Harris (and the benefits thereafter attributable to Adam and Ashley), took a number of years. That is why Mr Edwards has pursued his arguments about interest so forcefully: he says, with some substance, that Ms Carol Harris, Adam and Ashley were denied the use of that money for a considerable period of time. He also says he was denied the use of the money but, as I have found, it was not his to use, or to demand. On the question of delayed payments however, it is not difficult to understand the frustration of beneficiaries in those circumstances. Nevertheless, it must be said, that the way Mr Edwards pursued the CSC and the amount of material and arguments with which he inundated the CSC and then the second Tribunal, was unlikely to have improved neither the clarity of decision-making nor the speed of it.

148    Curiously, although the failure to pay interest on the back payments was a prominent feature of Mr Edwards’ submissions to the second Tribunal (as recorded in the Tribunal’s reasons), and although it was a prominent feature of his oral submissions in this Court and founded his “damages” claim to some extent, there is little in Mr Edwards’ written submissions about this argument.

149    However, it would appear to lie behind what is identified as the first question in [23] of his written submissions as his challenge to the Trustee decision:

Did the Trustee act honestly towards the applicants by not returning them to the position they were in as at 2009, in breach of section 37(4), Complaints Act?

150    According to Mr Edwards, the way the CSC should have returned Ms Carol Harris, Adam and Ashley (and, on his argument, Mr Edwards himself) to the position in 2009 was by paying interest on the back payments. That is apparent from a passage further on his written submissions (at [64(e)]):

The Applicant made his complaint to the Tribunal over 2 issues that did not appear to be right. The first was that the Trustee claimed that interest was not payable on arrears of pension entitlements. The second was that payments being made to children appeared to be inconsistent with the law in the Applicant's view.

151    In his affidavit at [85], Mr Edwards deposes:

The claim for interest made by the spouse and children following the First SCT Determination, was a claim for which there was no provision in the Act.

152    That statement is correct. It is also fatal to Mr Edwards’ contentions about error of law in the second Tribunal’s decision.

153    When asked at the hearing to identify the statutory provision he contended authorised the CSC to pay interest on arrears of pensions, Mr Edwards identified s 27C(2)(g) of the Superannuation Act 1976 and what he called “the implied covenants” in ss 52 and 101 of the Supervision Act.

154    Section 27C deals with the functions of the CSC. Section 27C(2)(g) provides:

(2)    It is the duty of CSC, in the exercise of its functions under paragraph (1)(a) [which are “to manage and invest the Fund so as to maximise the return earned on the Fund”]

…

(g)     to ensure that CSC complies with its obligations under this Act and its other legal obligations

155    On its face, this provision cannot be said to confer an implied power to pay interest on arrears of any benefits payable under s 109AB. The argument that it can is circular.

156    Nor can s 52 of the Supervision Act and the general covenants be said impliedly to authorise the payment of interest. There is no basis in the text, context or purpose of those covenants to see them as supplementing the express powers given to trustees under ss 27D or 109AB. Rather their purpose is to govern the manner in which trustees exercise specific powers conferred upon them, not to supplement those powers. Section 101 of the Supervision Act does not advance Mr Edwards’ implication arguments any further either. That is a power concerning dealing with complaints – in other words, a dispute resolution provision. It is not concerned with conferring additional powers of a substantive kind on trustees in relation to the payment of benefits.

The terms of the second Tribunal decision on the claim for interest

157    The second Tribunal noted the competing arguments on the question of interest payments. At [16] it recorded the following submission by CSC:

60.     [Custodian] has submitted that the Tribunal should amend its Review Meeting Determination D12-13\097 dated 20 May 2013 to award penalty interest. It is respectfully submitted that there are a number of fallacies with this particular submission:

•    firstly, as Mr [Custodian] has noted, the concept of penalty interest is a concept under the Penalty Interest Rates Act (Vic) 1983 [citation footnote], which concerns unpaid civil judgments awarded by courts; that statute is not relevant to a benefit payment under the Act;

•    secondly, the Tribunal is a statutory body that acts in accordance with its powers under the Complaints Act. In conducting a Review Meeting, the Tribunal stands in the shoes of the Trustee. It has no statutory power to add interest to a superannuation benefit payment [footnote citation] or to award interest as part of its Review Meeting Determination. If the Trustee does not have power to add interest under its governing legislation, the Tribunal has no such power either. No purpose would be served in the Tribunal re-opening its 2013 Review Meeting Determination [footnote citation].

61.     The Trustee submits that interest on the arrears is also not appropriate in relation to the Tribunal’s conduct of the present Review Meeting. The arrears payments were made within a reasonable time after receiving the SCT Review Meeting Determination in May 2013 and making the apportionment and distribution decisions on 27 July 2013. All pensions were calculated at the date of Mr [Deceased Member’s] death on 17 May 2009 and then indexed twice-yearly thereafter until the arrears was paid in August 2013 as the Act requires - see the calculations in Appendix B.

62.     The Trustee is required to abide by the Act. As there is no discretion to add interest to an arrears payment, this is a non-discretionary decision that should be affirmed by the Tribunal.

158    At [35] to [37], the second Tribunal set out its conclusion on the arguments about interest on the back payments:

35.     The Tribunal has carefully considered the Trustee’s arguments that it (and the Tribunal standing in its shoes) is not empowered under the Act to award interest on the payment of arrears of pensions. The Tribunal agrees that is factually correct. The Custodian has attempted to circumvent this fact by submitting:

11.     In the Complainants’ responding submissions general law principles ought to be applied in the absence of any express prohibition under the Act especially when it is considered that where the Act is silent upon an issue the Trustee has construed the Act to its own advantage. It is also submitted that there is nothing in the Tribunal’s Act that prevents the Tribunal from making such a determination.

36.     As outlined above, the Tribunal determines the Trustee, in making its 2009 decision, acted carefully and diligently. Accordingly, there can be no question, as asserted by the Custodian, of looking for breaches of common law principles, specifically negligence, as a mechanism for the application of penalty interest. Even if this was not the case, as the Tribunal is not a court it cannot award penalty interest.

37.     It follows from this factual finding of the Tribunal that it considers the Trustee’s decision to not apply interest to the Back-Payments was fair and reasonable.

159    Before this Court, Mr Edwards did not appear to rely on common law principles as a source of a power in the Trustee (and/or the Tribunal) to pay interest. In a statutory entity such as CSC no such basis could exist. Clearly the Tribunal has no such power under the Complaints Act.

160    The second Tribunal made no legal error in concluding that the Trustee’s decision not to pay interest on the back payments was fair and reasonable.

The remainder of Mr Edwards’ claims

161    Aside from the administrative law challenges to the second Tribunal decision which are contained in both the s 46 appeal and the AD(JR) Act application, in the latter proceeding and through the “Statement of Claim” filed in it, Mr Edwards makes a series of further allegations, which go beyond administrative law challenges. It may well be that some the “questions of law” and grounds in the s 46 appeal raise some of these issues as well. One of the difficulties is that Mr Edwards puts the allegations rather differently every time he files another document.

162    The CSC has sought to identify the nature of those challenges in its Response to the Statement of Claim, and in its written submissions. I accept the submissions made by the CSC concerning why each of those additional claims made by Mr Edwards must fail.

163    In my view they are so clearly misconceived that it is only necessary to deal with each of the claims briefly.

Claims about the original CSC decision

164    At [22] of his written submissions, Mr Edwards sets out a substantial list of complaints about the making of the original decision in 2009 by the CSC, ranging from matters such as whether CSC acted honestly towards him, to whether the CSC “had any discretion to come to its own decision that the spouse [Ms Carol Harris] was a ‘housekeeper’”.

165    The principal answer to these challenges is that the CSC decision was set aside by the first Tribunal decision, and another decision was substituted. That was the proper working out of the review procedures in the Complaints Act, and the success of the arguments put by Mr Edwards to the first Tribunal. That was the remedy for which the law provides in relation to the first decision of the CSC. To allow Mr Edwards to go behind the first Tribunal’s decision and agitate claims concerning the conduct of CSC in reaching that first decision would be to undermine the scheme of the Complaints Act. Insofar as those claims are pressed (and nothing was said orally by Mr Edwards about them during the hearing) I consider they are an abuse of process and should be dismissed.

Claims about the CSC decision in August 2013

166    Nor can Mr Edwards challenge the CSC decision in August 2013 in this proceeding, although by a substantial list of complaints in [23] of his written submissions he seeks to do just that. He exercised, purportedly on behalf of Ms Carol Harris and the children as well as on his own behalf, review rights in relation to that decision to the Tribunal. The decision of the Tribunal affirmed the decision of the CSC and that is an end to the matter subject to rights of appeal under s 46 which Ms Carol Harris and the children eventually chose not to exercise.

167    The review application to the Tribunal and then an appeal on questions of law under s 46 was the remedy for which the law provides in relation to the second decision of the CSC. To allow Mr Edwards to go behind the second Tribunal’s decision and agitate claims concerning the conduct of CSC in reaching that second decision would, just as with the first decision, equally undermine the scheme of the Complaints Act. In the complaints about both the first and second CSC decision, the abuse of process is all the more apparent when Mr Edwards was plainly not a beneficiary under the Trust Deed, and those who were have chosen not to pursue any litigation against CSC. Insofar as those claims are pressed (and nothing was said orally by Mr Edwards about them during the hearing) I consider they are an abuse of process and should be dismissed.

Claims in contract about the second CSC decision

168    This claim appears to be put on the basis of the Insurance Contracts Act 1984 (Cth). Mr Edwards refers to the inclusion, by s 11(4) of that Act, of superannuation contracts into the definition of insurance contracts. He then relies on the good faith duties set out in ss 13 and 14, and the terms of s 5 of the Insurance Contracts Act to the effect that the Act binds the Crown, as the basis for allegations about breach of contract by CSC.

169    Mr Edwards also relies on the implied covenants set out in Part 6 of the Supervision Act, in particular those in s 52, which are, broadly speaking, covenants relating to good faith, honesty and placing the interests of beneficiaries ahead of the interests of trustees where there is a possible conflict.

170    Through these two legislative routes, he asserts a breach of contract against CSC.

171    The interstices of the arguments need not be addressed because the immediate problem for Mr Edwards is that, even assuming in his favour such contractual obligations exist in relation to the current Trust Deed and CSC’s position as trustee, there is no contractual relationship between him and CSC.

172    In Kowalski v AMP Superannuation [2010] FCA 1170, Mansfield J considered allegations made by the applicant in that case which were based on the duties in s 13 of the Insurance Contracts Act. At [78] to [79], in summarily dismissing those allegations, Mansfield J said:

A superannuation policy can be categorised as a life insurance policy that is maintained for the purposes of a superannuation scheme and is owned by the trustee of the scheme: see s 8 Life Insurance Act 1995 (Cth). That does not mean however that the members of a superannuation fund have a contract of insurance with the trustee of that fund. The case law suggests that it is one thing to find a contractual relationship between employer and employees obliging the employer to contribute to a fund, but that is a different step to find that there is a binding contract between the employee and the trustee of a fund as there is no consideration passing between them: see Tooheys Limited v Commissioner of Stamp Duties (NSW) (1960) 105 CLR 602 at 624 and Caboche v Ramsay (1993) 119 ALR 215 at 232-233.

The relevant relationship between the applicant and the respondent is one of trustee and beneficiary. The trustee must hold the trust property upon the terms of the trust and administer it accordingly. That does not constitute the giving of consideration by the applicant to the trustee for holding the trust property upon trust. The applicant is not a party to the Deed establishing the AMP Fund. He is not a party to any instrument by which the AMP Fund was established or by which it took over the role of the Fund.

173    I respectfully adopt and agree with those observations. Further, his Honour was there speaking of an applicant who was a beneficiary of the superannuation fund in question. Mr Edwards is not a beneficiary, and his argument that his status as an executor of Mr Paulusz’s will somehow converts him into a beneficiary under the CSC Trust Deed has no basis in law. For reasons I have set out above and below, Ms Carol Harris, Adam and Ashley have all elected to withdraw from these proceedings. Even if contrary to Mansfield J’s analysis, there was some kind of contractual relationship between CSC and Ms Carol Harris (or, taking the matter one step further, Adam and Ashley as children to whom part of the spousal benefit was attributable), Mr Edwards could not rely on any contractual relationship with the CSC for the purposes of making his own claims in this proceeding.

174    I should add that, if further bases were required to wholly dismiss these allegations, I can see nothing in the evidence filed on behalf of Mr Edwards that suggests CSC has acted without good faith, without honesty or in any way remotely in contravention of the terms of s 52 of the Supervision Act (or s 13 of the Insurance Contracts Act on the strained hypothesis that it applied).

Claims in tort about the second CSC decision

175    At [58] of his written submissions, Mr Edwards contends that his claim is framed:

In torts as a breach of a duty of care owed to the Applicant(s) through the persistent and constant breaches of the various duties that the Respondent owed to the Applicant(s) in the performance of its contractual duties as specified by-

(b) section 52 of the Supervision Act and the implied covenants contained therein which apply to all Trust Deeds.

176    Thus, Mr Edwards’ claim appears to be that, in making the second decision in August 2013 (and in particular by not awarding interest and by paying the back payments and monthly payments directly to the children), CSC breached a duty of care it owed to, amongst others, Mr Edwards.

177    As CSC’s submissions point out, when one examines the details of this claim, by reference to allegations in the Statement of Claim, the losses alleged by Mr Edwards relate to out of pocket expenses experienced by him in the aftermath of Mr Paulusz’s death, which somehow he appears to wish to sheet home to the CSC. They include storage costs he alleges he paid for in relation to goods belonging to Ms Carol Harris; the cost of a mobile phone bill for Adam on which he was guarantor and Mr Paulusz’s funeral expenses. Again, Mr Edwards seeks to link his incurring these expenses with either the time gap between Mr Paulusz’s death and the back payments actually being paid after the first Tribunal decision, or the decision by CSC to pay monies directly to Adam and Ashley.

178    In Sklavos v Australasian College of Dermatologists [2016] FCA 179, Jagot said at [401]:

If the relationship between the parties is not one that falls within a recognised duty of care (such as school and pupil, employer and employee, doctor and patient etc) it is necessary to focus on the ‘salient features’ of the relationship to identify if the relationship attracts a duty of care. In New South Wales v Spearpoint [2009] NSWCA 233 at [21]–[23] Allsop ACJ said:

[21]     It is clear that in ascertaining whether, in any particular circumstances, a duty of care is to be imputed and in identifying its scope and content, where the circumstances are not covered by an accepted category of liability, the task is to analyse closely the facts bearing on the relationship between the plaintiff and the putative tortfeasor. See for example Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16 at [22]; (2004) 216 CLR 515.

[22]     This close examination will involve an assessment of salient features such as foreseeability, degree of harm, vulnerability, reliance, assumption of responsibility and numerous other possible factors. These other factors will include legal policy such as coherence and conformity with other duties or legal obligations.

[23]     Whilst the ultimate question as to the existence of a duty of care is one of law (Vairy v Wyong Shire Council (2005) 223 CLR 422 ; [2005] HCA 62 at [62]) the task is one which is fact rich and fact intensive. To put it as Windeyer J did in Mount Isa Mines v Pusey (1970) 125 CLR 383; [1970] HCA 60 (at CLR 398 and 399) it is “a value judgment upon ascertained facts.

179    Her Honour also referred (at [404]) to the need to consider “issues of compatibility and coherence with the important public functions which the College performs in the Australian medical training system” and referred to New South Wales v Paige [2002] NSWCA 235; 60 NSWLR 371, a decision on which CSC also relied in its submissions in this proceeding. In the circumstances of Sklavos (which concerned allegations by a medical practitioner repeatedly but unsuccessfully seeking admission to the College as a trainee for the purposes of becoming a specialist dermatologist) and for reasons explained at [407]-[410], her Honour was prepared to proceed on the basis that a duty of care was owed by the College to one of its trainees. Those circumstances are a far cry from Mr Edwards’ position in August 2013, or earlier, and that of the CSC.

180    Similarly, Spigelman CJ in Paige said, in the context of considering the need for “coherence” between common law duty of care and the exercise of statutory powers, at [93]:

When considering the issue of coherence it is necessary to give close consideration to the statutory scheme: specifically whether a common law duty is “inconsistent” or “incompatible” with the statute and, relevantly in this case, the regulations. (See, for example, Crimmins (at 13 [3], 16 [18], 39 [93], 46 [114], 72 [203]–[213]); Sullivan v Moody (at 582 [60]).) However, issues of coherence may arise even if there is no direct inconsistency. It may be enough if the effect of imposing civil liability is to “distort [the] focus” of the statutory decision-making process. (Crimmins (at 101 [292]) per Hayne J.)

181    In Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1, McHugh J (Gleeson CJ agreeing) said, at [79] and [80]:

Common law courts have long been cautious in imposing affirmative common law duties of care on statutory authorities. Public authorities are often charged with responsibility for a number of statutory objects and given an array of powers to accomplish them. Performing their functions with limited budgetary resources often requires the making of difficult policy choices and discretionary judgments. Negligence law is often an inapposite vehicle for examining those choices and judgments. Situations which might call for the imposition of a duty of care where a private individual was concerned may not call for one where a statutory authority is involved. This does not mean that statutory authorities are above the law. But it does mean that there may be special factors applicable to a statutory authority which negative a duty of care that a private individual would owe in apparently similar circumstances. In many cases involving routine events, the statutory authority will be in no different position from ordinary citizens. But where the authority is alleged to have failed to exercise a power or function, more difficult questions arise.

In Australia, the starting points for determining the common law liability of statutory authorities for breach of affirmative duties are the decisions of this Court in Sutherland Shire Council v Heyman [(1985) 157 CLR 424] and Pyrenees Shire Council v Day [(1998) 192 CLR 330]. In Heyman [(1985) 157 CLR 424 at 459–460], Mason J, speaking with reference to a failure to exercise power, said:

‘Generally speaking, a public authority which is under no statutory obligation to exercise a power comes under no common law duty of care to do so … But an authority may by its conduct place itself in such a position that it attracts a duty of care which calls for exercise of the power. A common illustration is provided by the cases in which an authority in the exercise of its functions has created a danger, thereby subjecting itself to a duty of care for the safety of others which must be discharged by an exercise of its statutory powers or by giving a warning…’

182    In the current proceeding, the considerations in Paige and Crimmins are prominent. That would be so if what was in issue was the existence of a common law duty of care owed by CSC to beneficiaries of the superannuation fund such as Ms Carol Harris, in light of the statutory obligations imposed by the Supervision Act, the obligations imposed by the Trust Deed, together with the common law in terms of the duties of trustees and the existence of administrative law supervision through the Complaints Act (as well as, in some circumstances at least, the AD(JR) Act) of CSC’s decision-making. It would be all the more so if what were in issue was the existence of a common law duty of care owed by CSC to Adam and Ashley as incidental beneficiaries because portions of the spousal benefit were attributable to them. In either of those circumstances, for the reasons set out in Crimmins and Paige, there would be questions of real significance whether any such duty of care were owed to those individuals and if so what its content might be.

183    Insofar as Mr Edwards is concerned, he is one or more stages removed even from these possibilities. There is nothing which appropriately fits the legal description of a “relationship” between him and the CSC. There is no reliance, vulnerability or any of the other characteristics usually considered. Even in its broadest sense, there is no element of foreseeability in relation to conduct by CSC as Trustee and harm or damage alleged to have been suffered by Mr Edwards as the parent of Adam and Ashley, or the executor of Mr Paulusz’s will.

184    There is no legal basis for Mr Edwards’ claim in negligence against CSC.

Mr Edwards’ application under rr 9.23 and 9.25

185    Shortly before trial, Mr Edwards made interlocutory applications under r 9.23 and 9.25 of the Federal Court Rules.

186    Rule 9.23 provides:

9.23 Representative party—beneficiaries

(1)     A proceeding dealing with property that is subject to a trust or included in a deceased estate may be started by or against a trustee or personal representative without joining as a party a person who has a beneficial interest in the trust or estate (a beneficiary).

(2)     However, a person may apply to the Court for an order that a beneficiary be joined as a party to the proceeding.

187    Rule 9.25 provides:

9.25 Conduct of proceeding by particular party

A person may apply to the Court for an order that the whole, or any part, of a proceeding be conducted by the person or a particular party.

188    As CSC submitted, it is clear this application was made because Mr Edwards appreciated that his position as an Applicant had been weakened or imperilled by the withdrawal of Ms Carol Harris and Adam and Ashley. The following written submissions by Mr Edwards made in support of these applications capture their purpose:

The Applicant considers that the issue of standing to bring these proceedings is now immaterial to the validity of how the proceedings were commenced as the spouse was a party to the Review Determination and brought the proceedings by way of appeal to the Court pursuant to section 46(1) of the Complaints Act. The Applicant believes that by s.101 of the Supervision Act. as executor of the Deceased Member’s estate. he has standing in his own right. In the Outline of Submissions, if it is accepted that the Applicant was at all material times the guardian of the children, then by applying the high standards of duties indicated in Finch, the Applicant has standing as of right by being a beneficiary pro tanto via the children. In the further submission of the Applicant, the Rules provide a basis for standing of an executor as of right.

It is further submitted that even though the spouse has withdrawn from the proceedings, the withdrawal of the spouse is not fatal to the Applicant pursuing these proceedings in his own right as that power is conferred by Rules 9.23 and 9.24. Should this application be accepted as being a representative party proceeding on behalf of the beneficiaries then all issues of standing would be resolved.

[Emphasis added.]

189    At the hearing I rejected an oral application made by Mr Edwards to call oral evidence from Ms Carol Harris and Adam concerning their wish, as asserted by Mr Edwards, for him to represent them in this proceeding.

190    The reason I gave for that ruling is that evidence of that kind was irrelevant to the circumstances of r 9.23, and in relation to r 9.25 such evidence was inconsistent with the previous (binding) decision of Ms Carol Harris and Adam to withdraw as applicants from the proceeding.

191    Rule 9.23 applies to proceedings dealing with trust property. It permits a trustee to bring or defend such a proceeding without the need for the beneficiary or beneficiaries to be a party or parties. Similarly, it applies to proceedings dealing with property belonging to a deceased estate. This proceeding deals with a decision of the Superannuation Complaints Tribunal. It does not concern an asset of Mr Paulusz’s estate – see s 118 of the Superannuation Act 1976. The relevant trustee, if there is one, is CSC, not Mr Edwards.

192    Rule 9.25 is intended to allow the Court to ensure that the active parties to a proceeding are those who have the most appropriate interest in advancing the claims made in that proceeding. For example, the rule allows the Court to order that an admitted creditor conduct a proceeding rather than a disputed creditor: see In Re Ross; Wingfield v Blair [1907] 1 Ch 482; and that an applicant with a particular interest in the preservation of an estate conduct a proceeding in preference to an applicant who does not have an interest in the outcome of the proceeding: see Re Prime’s Estate (1883) 48 LT 208. Rule 9.25 does not provide a mechanism to avoid the principles of standing, but rather its premise is that an order will be made in relation to a person who has standing. In relation to the AD(JR) Act proceeding but not the s 46 proceeding, I have found Mr Edwards has standing to challenge the Tribunal’s decision.

193    Taking a generous approach in favour of Mr Edwards, it might be said this is sufficient to trigger consideration of r 9.25. However, an exercise of power under that rule would not avail Mr Edwards because, in relation to the grounds of review under the AD(JR) Act no advantage would be secured by him “representing” Ms Carol Harris or Adam. If he has standing, he may agitate the AD(JR) Act claims: that is what I have found. The merits of Mr Edwards’ identified judicial review grounds do not become any stronger if they are seen as being agitated on behalf of Adam, or Ms Harris.

194    Further, as a matter of discretion I would decline to make such an order. Any exercise of power under r 9.25 would be contrary to the interests of the administration of justice, in particular the interests of certainty and finality in the conduct of proceedings. It would allow the decisions of Ms Carol Harris or Adam to withdraw as applicants from this litigation to be brought into question first, through the adducing of evidence from them about why they now want, it is alleged, Mr Edwards to “represent” them. The reason or reasons why Ms Carol Harris and Adam withdrew from the litigation are not known to the Court, nor should they be. However each took those decisions in the circumstances I have set out at [18] and [20] above. The Court is entitled to infer the decisions were made freely and voluntarily.

195    Why either of them might have then been prepared to allow their decision to be undermined, avoided or frustrated, by informing the Court they wanted Mr Edwards to represent them is not an inquiry into which the Court should enter. They, like Mr Edwards, must abide the consequences of their decision made while they were parties to the proceeding. They cannot participate in an attempt to undo, or render nugatory, the effects of their decision to withdraw.

Conclusion

196    Mr Edwards’ challenges to the second Tribunal decision under the AD(JR) Act should be rejected. If I had concluded Mr Edwards had standing under s 46 of the Complaints Act (which I have concluded he does not), his challenges under s 46 should be rejected for the same reasons. Where those challenges travel outside judicial review, they are either outside this Court’s jurisdiction on judicial review, or should be rejected for the reasons I have given.

197    Both applications should be dismissed. I am satisfied there should be an order for costs in favour of CSC. If CSC wishes to have a lump sum fixed for its costs, in the absence of being able to reach agreement with Mr Edwards, it may apply for such an order. Otherwise, costs are to be taxed in the usual way.

Associate:

Dated:    12 April 2017