FEDERAL COURT OF AUSTRALIA

Rhodes v Tower Superannuation Fund [2004] FCA 510

SUPERANNUATION – appeal from Superannuation Complaints Tribunal – termination of membership – exit fee – whether reviewable by Tribunal – non-discretionary – fixed by terms of insurance policy – no basis for Tribunal to interfere – appeal dismissed.

Superannuation (Resolution of Complaints) Act 1993 (Cth) s 6, s 12, s 14, s 14AA, s 37

Attorney-General (Cth) v Breckler (1999) 197 CLR 83 cited

Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd (1998) 79 FCR 469 cited

Briffa v Hay (1997) 75 FCR 428 cited

Retail Employee Superannuation Pty Ltd v Crocker [2001] FCA 1330 cited

Colonial Mutual Life Assurance Society Limited v Brayley [2002] FCA 1333 cited

ALLYSON JANE RHODES v TOWER SUPERANNUATION FUND

W87 OF 2003

FRENCH J

27 APRIL 2004

PERTH

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The parties to file and serve written submissions as to the costs of the proceedings within 14 days.

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

REASONS FOR JUDGMENT

Introduction

1                     Allyson Jane Rhodes, a schoolteacher, entered into a superannuation plan with the FAI Life group in 1994.  In 1999 she decided to transfer her benefit into another superannuation policy as she had three such policies and regarded the level of their fees as uneconomic.  Her account with the FAI Plan had a balance of approximately $29,000 at the time.  She was told however that there would be an exit fee in excess of $13,000 which would be retained by the insurer if she were to transfer the benefit.

2                     Eventually Ms Rhodes lodged a complaint with the Superannuation Complaints Tribunal (‘the Tribunal’).  The complaint was made on various grounds relating to the bases upon which she was induced to enter into the FAI superannuation plan and the level of exit fee.  Ultimately the Tribunal affirmed what it described as the Trustee’s decision, holding that the exit fee was equitable.  She then appealed to this Court against the Tribunal’s decision on the basis that there was no evidence to support its finding that the exit fee was equitable.  Counsel for the Trustee, however, took a threshold point that there was no relevant decision by the Trustee which could be reviewed by the Tribunal as the exit fee was required to be deducted under the terms of the policy and the Rules comprising the Trust Deed.

3                     For the reasons that follow, I am satisfied that that threshold point is correct and fatal to the applicant’s appeal.

Factual Background

4                     Allyson Jane Rhodes was born on 10 November 1959.  She lives at Serpentine in Western Australia.  On 1 September 1994, she applied for membership of a superannuation plan under which FAI Australian Superannuation Limited was the Trustee of the relevant fund.  FAI Life Insurance Society Limited was the fund manager under the plan.  Both companies were part of the FAI Life group.  At the time she joined the plan her annual salary as a teacher was $29,000.  She committed to monthly contributions of $500.  The class of plan which she joined involved a fund which was called a ‘performance fund’.  It was called the FAI Superannuation Fund. 

5                     A Customer Information Brochure current in 1994 described the FAI Life Personal Superannuation Plan as:

‘… a regular contribution plan which may return less than the premiums paid if you terminate the plan during the early years.’

The plan essentially comprised a policy taken out by the Trustee in favour of Ms Rhodes and held on trust for her by the Trustee.  It provided no contribution charge, no policy fee and no entry fee.  However, according to the Customer Information Brochure:

‘An exit fee applies to your account balance in respect of:-

-           Regular contributions cashed in prior to attaining the Target Account Balance; and

-           Additional contributions (such as transfers or casual deposits), cashed in within 5 years of investment.’

According to the Customer Information Brochure after taking out a policy and receiving policy schedules from FAI Life, the member would have fourteen days to check that the policy met her needs.  Within that period the policy could be cancelled by contacting FAI Life in writing and all of the money paid would be returned.

6                     Ms Rhodes commenced making contributions under the plan and as at 30 June 1999 her account had a balance of approximately $29,226.  In 1999 she decided she wanted to amalgamate three superannuation policies and contacted FAI Life to inquire about transferring her benefit.  She was told that if her account were closed and rolled to another fund on 30 June 1999 the payout figure to which she was entitled would have been approximately $16,000.  This meant that some $13,226 would be retained by the insurer.

7                     Ms Rhodes wrote to the Complaints Manager at FAI Life on 23 August 1999.  She said she had decided to amalgamate her three superannuation policies as each was being eaten away by fees.  She complained that certain information had not been disclosed to her prior to becoming a member of the Fund.  One of these matters was the level of exit fees.  She complained that she had not been told that she could lose half her superannuation as a fee based upon a formula that a lay person would not understand. 

8                     Companies in the Tower Life group succeeded FAI Life as Trustee and Insurer.  There was no dispute that the new Trustee and Insurer had taken over the rights and liabilities of their predecessors in FAI Life. Tower Australian Superannuation Limited succeeded FAI Australian Superannuation Ltd as the Trustee.  It acknowledged Ms Rhodes’ letter on 1 October 1999 and responded substantively to it on 22 November 1999.  It pointed out that the current exit fee only applied if she were to roll over her investment at that time.  The fee was not an ongoing charge against the policy as it had no effect on the growth of the account balance.  The exit fee, it said, did not represent a loss against the value of Ms Rhodes’ investment as the value of the investment at any time was the current account balance.  Although the formula for calculation of the exit fee was complicated they believed the effect of ‘this penalty’ was clearly demonstrated in the Illustrative Retirement Benefit Projection set out at p 4 of the Policy Information Statement.

9                     On 17 April 2000, Ms Rhodes lodged a complaint with the Tribunal in relation to the Fund.  She raised a number of matters of complaint.  The first of these was the exit fee.  In respect of this her complaint was in the following terms:

‘Exit Fee – ½ of the balance of my account – Fund states there is no loss against the value of my account.  Advisor never made us aware of the extent of the ramification of the exit fees.’

In answer to a request on the complaint form to state why she believed that the Fund’s decision was unfair or unreasonable she said:

‘I want to rollover this fund and two x other super funds into a more effective fund with better returns.  If I rollover this FAI Fund I lose ½ of my contributions.’ (sic)

10                  Tower Life responded to the Tribunal on 11 May 2000 and said, inter alia:

‘On reaching the revised Target Account Balance an exit penalty no longer applies to withdrawal benefits paid on retirement after aged 60.  The revised target account balance for this policy is $48,000 and so far we have received Qualifying Regular Contributions of $31,560.  Based on the past contribution level of $6,000 per annum this Target could be reached in 3 years of similar contributions.’

11                  The Tribunal subsequently organised a conciliation conference.  This was  unsuccessful.  The Tribunal then reviewed the complaint on the papers under s 23 of the Superannuation (Resolution of Complaints) Act 1993 (Cth).  The initial review meeting, held on 28 June 2002, was adjourned to seek clarification from the Trustee of the Fund regarding the governing rules of the Fund and the issue of exit fees.  There was a further exchange of correspondence between the Tribunal and Ms Rhodes.  The Tribunal again wrote to the Trustee on 9 October 2002 seeking further details on exit costs.  The Trustee responded on 29 October 2002.  On 26 March 2003, the Tribunal affirmed the Trustee’s decisions.

The Tribunal’s Reasons for Decision

12                  It is sufficient for present purposes to refer only to those parts of the Tribunal’s reasons for decision which relate to the matter of the exit fee.  The Tribunal found that Ms Rhodes had set up a personal superannuation plan through her agent on 6 September 1994 and that following its inception her employer made regular monthly contributions of $500 so that at 30 June 1999 the account had a balance of $29,226.  It also found that if the account were closed and rolled over to another fund on 30 June 1999 the payout figure would be approximately $16,000.

13                  The Tribunal referred to Ms Rhodes’ allegations which included a contention that she was not properly advised about the extent of the exit fees.  The Tribunal noted that the Trust Deed which applied on the date when Ms Rhodes joined the Fund was a Deed amended to 6 June 1994.  The Trustee advised the Tribunal that it had not been able to find a copy of that Deed.  The Trustee also advised that an undated consolidated deed was prepared after an amendment dated 10 May 2000.  The Tribunal then referred to relevant provisions of the consolidated deed.

14                  In relation to the exit fee the Tribunal referred to submissions made on behalf of Ms Rhodes which included the following:

‘The allegation that the exit fee is a penalty was fairly raised as an issue on the 9^th August 2001.  For [the Trustee] to properly meet that allegation it was necessary for [the Trustee] to either adduce evidence of its true loss arising out of any earlier exit or justify its formula. 

…

[The Trustee] has elected to justify the formula.  However its attempt to justify the formula in its letter dated the 9^th August is circular and ought to be rejected by the Tribunal.

In the absence of evidence as to its true loss or a proper justification for the exit formula the Tribunal, in the complainant’s submission should make a finding that the exit fee is void because it is a penalty.  The consequence of that finding is that the complainant should be permitted to exit the fund without any exit fee.’

15                  The Trustee’s submission on the exit fee was to the effect that the policy value on early termination of the contract was in accordance with terms and conditions agreed on commencement and the relevant trust deeds.

16                  In response, Ms Rhodes put to the Tribunal that the fact that the exit fee was calculated in accordance with the policy was irrelevant.  The question was whether it constituted a penalty.  The Trustee had produced no evidence that the fees were reasonable.  In a  further submission made on behalf  of Ms Rhodes it was said that the Trustee had not put into evidence Actuarial Standard 4.01 upon which it evidently relied nor any of the costs relating to the policy such as commission and administration costs.

17                  In a further response from the Trustee in a letter of 9 October 2002, it said:

‘The ‘exit fee’ is charged by the insurer and the Trustee merely deducts that fee from the account balance in accordance with clause 7.3 of the Trust Deed.  The Trustee does not charge any fees or administration expenses other than those built into the policy fees.  Accordingly, clause 9.2 is irrelevant to the matter of the exit fee charged under the policy.

Furthermore we would reiterate that the exit fee is in accordance with actuarial standard 4.01.

Although we believe it is irrelevant to the matter in hand and that commission was disclosed in the brochure provided to the client before her policy commenced we now confirm that the total amount of commission paid to the adviser concerning policy [Policy No] is as follows:

Total Commission $3,857.92’

18                  The Tribunal then referred to a final submission on behalf of Ms Rhodes to the effect that cl 9.2 of the Rules of the Fund (which comprised part of the Trust Deed between the Trustee and the Manager/Insurer) applied to exit fees and required the Trustee to allocate the expense in an equitable manner.  The exit fee was clearly a penalty for leaving the fund and was therefore inequitable.  If the exit fee were $15,468.78 and the commission only $3,857.92, then the difference, namely $11,610.86, could not represent an equitable distribution of the costs of a withdrawal.

19                  The Tribunal’s decision was by majority with one dissentient.  It dealt first with the complaint that Ms Rhodes was not properly advised about the extent of the exit fees.  It referred to her concern about the large difference between her account balance and the amount available as a cash transfer net of exit fees.  It appeared to the Tribunal that the actual reduction in her case between those two figures was roughly in accordance, for her length of membership in the Fund, with the forecast in the Illustrative Retirement Benefit Projection provided to her.  The terms of her policy were not uncommon for such policies taken out at the same time.  The nature of those policies always involved high fees (including exit fees) in the early years to recoup expenses.  Commission was regarded as an establishment cost and therefore allowable under the Trust Deed. 

20                  The Tribunal was of the view that the product entered into by Ms Rhodes could not be compared to current superannuation funds.  Nor could the cost structure.  It was a long term product, costed and designed for people to remain in for a long period of time which in her case would have been thirty years.  Superannuation funds are now structured differently and products of the type entered into by Ms Rhodes were said now not to be available.  The Tribunal observed that such products were, however, very common in the late 1980s and early 1990s.  Members of such products brought into it and the expenses and profits were allocated equitably across members on the assumption that they would remain members for the term of the contract.  The Tribunal said:

‘Products such as these were costed by actuaries and took into account all charges that apply during the term of the contract.  These charges included ongoing maintenance costs, insurance, commission and the issuing company’s profit.  If the member did not remain for the term of the contract, then a surrender value was payable that took into account the remaining costs including the issuing company’s profit.  It was not intended to constitute a penalty rather it represented an equitable portion of such costs.  The actuary making such a calculation would have to comply with Actuarial Standard 4.01 that covered Minimum Surrender Values and Paid Up values.  The Trustee submitted to the Tribunal that the calculation of the complainant’s exit fee complied with this actuarial standard and the Tribunal had no evidence before it that it did not.’

The Tribunal went on to conclude that the exit fee payable by Ms Rhodes did not constitute a penalty.  It represented her equitable portion of the costs which, if not borne by her, would have to be borne by the remaining members of the product.  Such costs could not be compared with the administration costs associated with rolling over a benefit from a superannuation fund of the type available today.  The Tribunal said:

‘In all the circumstances the Tribunal concluded that the Trustee had properly advised the Complainant about the extent of the exit fees and that the exit fee was not in excess of the amount which could be properly charged under the Fund’s Trust Deed.’

One of the members wrote a dissenting opinion.

The Formal Determination of the Tribunal

21                  The Tribunal determined that the decisions of the Trustee were fair and reasonable in their operation in relation to the complainant in the circumstances.  The decisions of the Trustee were affirmed.

The Grounds of the Appeal

22                  A notice of appeal against the decision of the Tribunal was filed on 24 April 2003.  A minute of proposed amended notice of appeal was filed on 28 October 2003, two days prior to the hearing which was on 30 October.  The grounds of the appeal were expressed in the following terms:

‘The Superannuation Complaints Tribunal erred in law in finding that the exit fee referred to in the applicant’s policy was an equitable portion of the costs in circumstances where there was no evidence, information or explanation or specialist knowledge that could justify the level of the exit fee that would apply if the applicant was to rollover her funds to an approved fund.’

23                  The order sought in the minute of proposed amended notice of appeal was an order that Ms Rhodes be allowed to exit the fund without payment of an exit fee.  The question whether the appeal grounds should be amended was stood over to judgment.  In the event, I will allow the grounds to be amended although the amendment has no effect on the outcome of the appeal.  There was in any event, in my opinion, no prejudice to the respondent arising out of the amendment.

Statutory Framework

24                  The Superannuation Complaints Tribunal is established by s 6 of the Superannuation (Resolution of Complaints) Act 1993.    Its relevant functions are set out in s 12(1) of that Act:

‘12(1)  The functions of the Tribunal are:

(a)       to inquire into a complaint and to try to resolve it by conciliation; and

(b)       if the complaint cannot be resolved by conciliation:

            (i)         to review the decision or conduct to which the complaint relates; or

            (ii)        if an arbitration agreement refers the complaint to the Tribunal for arbitration – to conduct an arbitration in respect of the complaint; and

(c)       any functions conferred on the Tribunal by or under any other Act.’

25                  Ms Rhodes’ complaint to the Tribunal was framed as a complaint about a decision of a trustee.  Such complaints are dealt with under s 14 which provides in the relevant parts:

‘14(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.

...

   (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.

...

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

The other provisions of s 14 relate to complaints about decisions to admit persons to life policy funds, time limits for making complaints and complaints about excluded subject matter. 

26                  Section 14AA of the Act provides:

‘14AA(1)  To avoid doubt, a complaint may be made under this Part about a decision whether or not the decision involved the exercise of a discretion.

        (2)  However a decision that did not involve the exercise of a discretion is taken to have been unfair and unreasonable if the decision was contrary to law.’

27                  Section 15 sets out the classes of person who may make complaints to the Tribunal.  It is not disputed that Ms Rhodes was a person who could make a complaint under s 13 of the Act.  Section 18 identifies the parties to a complaint.  The primary parties are the complainant and the trustee.  If the subject matter of the complaint concerns 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, then the insurer will be a party. 

28                  Powers of the Tribunal in relation to complaints under s 14 are set out in s 37:

‘37(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.’

29                  The Tribunal is required to give written reasons for its determination (s 40).  A party may appeal to the Federal Court on a question of law from a determination of the Tribunal (s 46(1)).  The Federal Court is to hear and determine the appeal and ‘may make such order as it thinks appropriate’ (s 46(3)).  This is, of course, an exercise of the jurisdiction of the Court notwithstanding the statutory description of the procedure as an ‘appeal’.  

The Terms of the Policy and the Trust Deed

30                  In applying for membership of the FAI Life Superannuation Plan, Ms Rhodes completed an application form.  Section O of that form was headed ‘Application for Superannuation Fund Membership with FAI Australian Superannuation Limited as Trustee of the Fund’.  She then ticked boxes indicating that she was applying to be a member of the FAI Superannuation Fund.  Also in this section of the form appeared the following:

‘1.        I/We consent to FAI Australian Superannuation Limited acting as Trustee of the Fund.

2.         I/We agree to be bound by the rules of the Trust Deed governing the Fund and I understand that FAI Australian Superannuation Limited owns the policy applied for on my life but in trust for me/us until the benefit is payable under the terms of the Fund.  Benefits cannot be paid until I the Applicant have retired and attained the age of 55 (or other age as required by legislation or regulation), except on my death or in circumstances approved by the Insurance and Superannuation Commissioner or other relevant authority.

3.         I/We declare that I/we will not make any tax deductible contributions to the Fund other than those that are within the limits permitted under the Occupational Superannuation Standards Act, the regulations, the Income Tax Assessment Act, and any other relevant legislation.’

The application form also included a debit authority to allow a direct debit from Ms Rhodes’ account to FAI Life Insurance Society Limited.

31                  A document entitled ‘Personal Superannuation Plan Terms & Conditions’ set out the conditions of the Plan which was described in its terms and conditions as a ‘policy’.  The Plan was a document issued by the insurer, FAI Life Insurance Society Limited.  Clause 1 provided:

‘1.1      This policy is a superannuation deferred annuity policy issued to the trustee named in the Schedule.

1.2       The trustee holds the policy in trust for the life insured named in the Schedule, as a member of the superannuation plan referred to in the Schedule.’

32                  Clause 2 set out a number of definitions including that of the word ‘plan’:

‘“plan” is the superannuation plan shown in the Schedule, or such other plan notified by the trustee to us.’

33                   

Clause 4 described the character of the policy thus:

‘4.1      This policy is an annuity under which payments are deferred until retirement of the member, but not later than the date specified under the legislative requirements.

4.2       The period from the commencement of the policy to the commencement of the annuity payments is referred to in the policy as the deferment period.’

34                  Clause 10.4 provided for termination of the policy thus:

‘At any time during the deferment period, the trustee may terminate the policy and apply the account balance, less the exit fee (if any) in accordance with the trust deed governing the plan.’

There was provision for the payment of the insured benefit in the event of the death or disablement of the member if covered for those contingencies.

35                  Clause 15 provided for withdrawal of the account balance as follows:

‘At any time during the deferment period, the trustee may withdraw all or part of the account balance less the exit fee (if any).’

36                  Clause 17 dealt with the charges to be paid in respect of the management of the account and in the event of exit from the fund.  Relevant provisions were cls 17.3 to 17.7 inclusive:

‘17.3    An exit fee is payable if:-

            - a withdrawal is made (Clause 15); or

            - annuity payments commence (Clause 11.1).

            before the account balance equals the target account balance explained in Clause 17.4.  In determining the account balance for the purposes of this Clause, that part of the account balance derived from additional contributions made during the 5 years before annuity payments commence, or the withdrawal is made, is excluded.

            The exit fee applicable to that part of the account balance derived from additional contributions is explained in Clause 17.6.

17.4     The first target account balance is shown in the Schedule, but a separate target account balance is calculated for each increase in regular contributions and is added to the first target account balance.  The target account balance for increases in regular contributions is calculated by applying this formula:-

            (t + 1) x 2.5 x RC

            where:             t is the number of years between the member’s age next birthday when regular contributions increase and age 60 (or such lesser number as we may apply) but not exceeding 20 years, and

                        RC is the annualised increase in regular contributions reduced by the cost of insured benefits if applicable.

17.5     The exit fee is calculated by applying this formula:-

            Account balance x (T + 1) x 0.02375 x

            {1 – (Account Balance/Target Account

            Balance)}

            -           “Account Balance” is the account balance less that part of the account balance derived from additional contributions; and

            -           T is the money weighted average number of years between the member’s age next birthday after:-

                       (a)        the policy commencement date in respect of the regular contributions when the policy began; and

                       (b)        the date each increase in regular contributions (if any) occurred in respect of each increase in regular contributions;

                       and age 60 (or such lesser number as we apply) but not exceeding 20 years.

17.6     The exit fee for that part of the account balance in respect of each additional contribution is 5% (or such lesser percentage we advise) reducing by 0.25% every 3 months after receipt to nil after 5 years.’

37                  The Rules of the FAI Superannuation Fund comprised part of the Trust Deed originally between FAI Life Insurance Society Limited and FAI Australian Superannuation Limited.  The original Trust Deed, dated 15 May 1986, established the FAI Superannuation Fund.  While the original Trust Deed was not before the Court, a Deed of Amendment was and as appears from that Deed the provisions of the Constituent Deed were deleted and replaced by the provisions of the Amendment Deed and the attached Rules and Appendices.  The Amendment Deed provided that the Fund is managed and administered in all respects in accordance with the Rules.  Relevantly for present purposes, r 7.1(a) provided:

‘The Trustee shall invest the Fund in one or more Life Insurance Policies which may provide for the segregation of such investments into separate sub-funds with differing investment objectives.’

Rule 7.3 provided:

‘Premiums for Insured Benefits, and fees charged, under a Life Insurance Policy will be deducted by the Trustee from the member’s account or the Allocated Pension Account, as the case may be, and remitted to the insurer.’

38                  Clause 9.2 provided:

‘All costs, charges and expenses incurred in connection with the establishment, maintenance, administration, and operation of the Fund may be deducted from the Member’s Accounts or the Allocated Pension Accounts, as appropriate, on the basis determined by the Trustee, subject to the Relevant Law, to be the most appropriate and equitable manner of allocating expenses under the Fund.’

Whether the Application of the Exit Fee was a Decision of the Trustee

39                  Counsel for the Trustee submitted, as a threshold point, that the decision of which Ms Rhodes complained to the Tribunal was not a decision of the Trustee at all but a term of the relevant insurance policy.  This point was evidently a late discovery for it did not appear in the written submissions.  As put to the Court, it was linked to the proposition that the Tribunal, by virtue of s 37(5) of the Act, could not do anything contrary to the terms of the insurance contract between the Trustee and the insurer.

40                  It appears that the superannuation plan essentially comprised an insurance policy the beneficiary of which was Ms Rhodes and the management of which was governed by the Trust Deed and Rules.  Ms Rhodes was the ‘member’ for the purposes of the Plan.  That term is defined in cl 2.1 of the Plan’s Terms and Conditions as ‘...the life insured named in the Schedule, being a member of the plan’.  The policy, although for her benefit, was held on trust for her by the Trustee.  However the Trustee had no discretion in relation to the exit fee which was defined by the terms of the policy.  There was no basis upon which the trustee could waive the exit fee although no doubt, as a matter of contract law, the insurer could.

41                  The Tribunal’s reasoning did not bring this point out with any clarity.  It found that the exit fee represented an equitable portion of the costs of the fund, which if not borne by Ms Rhodes, would have to be borne by remaining members.  It held that the exit fee was ‘not in excess of the amount which could properly be charged under the Fund’s Trust Deed’.  It is not apparent what the Tribunal could have done had it come to a contrary conclusion.

42                  Counsel for Ms Rhodes initially attacked the Tribunal’s decision on the basis that there was no evidence to ground its conclusion that the exit fee was equitable in the context of the kind of superannuation plan entered into by Ms Rhodes.  At times counsel’s submissions seemed to invite little more than a review of the Tribunal’s decision on the merits.  To rise to the level of a question of the law counsel would have had to show that there was no basis before the Tribunal upon which it could have reached the conclusion which it did.

43                  In endeavouring to deal with the point taken by counsel for the Trustee, Ms Rhodes’ counsel argued that the exit fee while ‘payable’ under cl 17 of the policy did not have to be deducted.  He argued that r 9.2 applied to the exit fee and attracted a requirement by the Tribunal to make a judgment as to the ‘most appropriate and equitable manner of allocating expenses under the Fund’.  In my opinion however, that rule cannot overcome the contractual entitlement of the insurer to payment of the exit fee which would be deductible under r 7.3.  Such deduction is not a matter of discretion.  Nor is it a matter of evaluation of assessment.

44                  Counsel argued that the Trustee was ‘... just rubber-stamping the fee at an excessive level’.  But that presupposes some power on the part of the Trustee which it failed to exercise in relation to the exit fee.  No basis for the existence of such a power was demonstrated.  The level of the exit fee was set by the terms of the policy.  It was not a matter which the Trustee could vary.  Nor, having regard to the provisions of s 37(5) of the Act, was it a matter within the power of the Tribunal to affect.

45                  In Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 109, the joint judgment of six of the Justices of the High Court, endorsed the observation of Heerey J in Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd (1998) 79 FCR 469 at 484 that the rights of members of superannuation funds arise from and are governed by the general law which is enforceable in the ordinary courts and that the rights of members of such funds are not derived from a statute which itself confers an administrative power of modification or destruction. 

46                  The Tribunal stands ‘in the shoes of’ the Trustee and, where the insurer is a party to the proceedings, in the shoes of the insurer – Briffa v Hay (1997) 75 FCR 428 at 443 and Retail Employee Superannuation Pty Ltd v Crocker [2001] FCA 1330 per Allsop J.  In the latter case, Allsop J observed (at [24]):

‘Thus the strictures of subs 37(5) can be seen not only to prevent, at the point of remedy, something unlawful being ordered to be done, but as an essential reflection of the task being undertaken: a consideration of a decision of the Trustee, qua trustee, that is of the Trustee acting in accordance with law and the terms of its governing trust and making a determination, as if the Tribunal were the Trustee, to affect, vary or substitute a decision.  The same applies to the task in relation to the Insurer and its decision.’

His Honour also said (at [28]):

‘The question as to whether a decision was unfair or unreasonable cannot be judged otherwise than by having regard to the conformity of the decision with the governing rules of the fund and the terms of the policy.... If conformity with the governing rules or the terms of the policy required the very decision, which was made, to be made, the strictures of subs 37(5), the universe of possible conduct under subs 37(3) and the balance of the Act, including subs 37(6), would require a conclusion of the Tribunal that the decision was not unfair or unreasonable.  It could not be otherwise, as it would, on this hypothesis, be the only decision capable of being reached by the Trustee or the Insurer in the light of the governing rules or terms of the policy; or, put another way, any determination under paras 37(3)(b), (c) or (d) would involve the Tribunal doing an act contrary to the governing rules or the terms of the policy.’

47                  In considering the operation of s 14AA Branson J in Colonial Mutual Life Assurance Society Limited v Brayley [2002] FCA 1333 said (at [33]):

‘If the Tribunal concludes that it cannot address, in whole or in part, the unfairness or unreasonableness identified by it without acting in a manner that is contrary to the general law, the governing rules of the fund concerned or the terms of a relevant contract of insurance between an insurer and the trustee, the Tribunal is required to leave the perceived unfairness or unreasonableness unaddressed (s 37(5)).’

In her Honour’s opinion, although all complaints made to the Tribunal under s 14 of the Act may be, in form, complaints that a decision is unfair or unreasonable, the Tribunal is not empowered to remedy all unfairness or unreasonableness that it may perceive (at [34]):

‘In particular, the Tribunal lacks power to remedy any perceived unfairness or unreasonableness that is a necessary consequence of the application in the particular case of the governing rules of the fund concerned or the terms of a contract or insurance between an insurer and the trustee.’

48                  The present case does not involve a discretionary decision nor does it involve an evaluative decision of a kind which might be varied consistently with the provisions of s 37(5). 

Conclusion

49                  For the preceding reasons, in my opinion, this appeal must be dismissed.  In so saying, I express some sympathy with Ms Rhodes in that the level of the exit fee does appear to be surprisingly high.  The Tribunal is not, however, the forum in which that question and the question whether she was misled about it, can be canvassed.  If, as she maintains, she was misled in entering into the policy then there are consumer protection agencies which may be able to examine that question. 

50                  Having regard to the basis upon which the Trustee has succeeded in this appeal I will allow the parties time to consider my reasons and to make written submissions as to the costs of the appeal.

Associate:

Dated:              27 April 2004