FEDERAL COURT OF AUSTRALIA

Ray v Superannuation Complaints Tribunal [2004] FCA 1120

ADMINISTRATIVE LAW – superannuation – claim for disability benefit – application for review – decision that Superannuation Complaints Tribunal had no jurisdiction to hear complaint – time limit on making complaint to Tribunal – whether a ‘decision’ was in fact made by Trustee – proper decision‑maker – delegation of authority – presumption of regularity.

WORDS AND PHRASES – “determination” within meaning of s 46 of Superannuation (Resolution of Complaints) Act 1993 (Cth)

Judiciary Act 1903 (Cth), s 39B

Superannuation Industry (Supervision) Act 1993 (Cth), s 101

Superannuation (Resolution of Complaints) Act 1993 (Cth), ss 14, 19, 37

Superannuation (State Public Sector) Act 1990 (Qld), s 6F

Superannuation (State Public Sector) Deed 1990 (Qld), ss 4, 32, 46, 49, 59

The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, followed

BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246, referred to

TXU Electricity Ltd v Office of the Regulator‑General (2001) 3 VR 93, referred to

Geographical Indications Committee v O’Connor (2000) 64 ALD 325, referred to

Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, followed

Morris v Kanssen [1946] AC 459, followed

DALE PATRICK RAY v SUPERANNUATION COMPLAINTS TRIBUNAL, FIONA POWER and BOARD OF TRUSTEES OF THE STATE PUBLIC SECTOR SUPERANNUATION SCHEME

V 73 of 2003

GOLDBERG J

30 AUGUST 2004

MELBOURNE

REASONS FOR JUDGMENT

Introduction

1                     The applicant, Mr Dale Patrick Ray, seeks to review and appeal from a decision of the first respondent, the Superannuation Complaints Tribunal (“the Tribunal”) or the second respondent on behalf of the Tribunal, that it had no jurisdiction to deal with Mr Ray’s complaint concerning the conduct of the third respondent, the Board of Trustees of the State Public Sector Superannuation Scheme (“the Board”).  Mr Ray’s complaint arose from what is said to be a decision by the Board that Mr Ray was entitled to a permanent and partial disablement benefit under s 49 of the Superannuation (State Public Sector) Deed 1990 (Qld) (“the Deed”).  Mr Ray disputed the decision contending that he had a total and permanent disability.  The Board affirmed its decision and a complaint to the Tribunal was met with the Tribunal’s decision that it had no jurisdiction as the complaint had been lodged outside the prescribed time limit.

Background

2                     Mr Ray lodged a form dated 5 February 2001 and headed “Claim for Permanent Disablement Benefits” with the Board, in which he set out a description of a medical condition, an injury to his lower back, which he claimed prevented him from performing all the duties of his employment.  The claim form was received by the Board on or about 16 February 2001. 

3                     By letter dated 13 September 2001 a senior case manager employed by the Board, Ms Marina Denysiv, informed Mr Ray’s solicitors that the Board had delegated its authority to determine whether or not a disability benefit was payable to Mr Ray to “the Manager, Disability Claims Management Group,” pursuant to s 6F of the Superannuation (State Public Sector) Act 1990 (Qld) (“the State Public Sector Act”).  In the letter, the senior case manager said:

“QSuper has assessed the medical evidence available.  Under the terms of the QSuper trust deed, Mr Ray is considered permanently and partially disabled.  A statement of reasons is attached, along with copies of medical evidence considered.” 

The letter also stated:

“If Mr Ray is not satisfied with the decision he may appeal to the Superannuation Complaints Tribunal after appealing to QSuper for review…The Tribunal can only hear Mr Ray’s case after he has made use of Q Super’s review process.  Mr Ray should also be aware that the Superannuation Complaints Tribunal imposes time limits, within which complaints must be lodged.  He may wish to seek advice from the Tribunal now with regard to the Tribunal’s time limits.” (emphasis in original)

4                     There were two attachments to the letter, one consisting of copies of medical evidence that had been considered and the other being a document entitled:

“STATEMENT OF REASONS FOR THE DECISION OF THE

MANAGER, DISABILITY CLAIMS MANAGEMENT GROUP,

THE AUTHORITY DELEGATED BY THE BOARD OF TRUSTEES OF THE

STATE PUBLIC SECTOR SUPERANNUATION FUND

IN THE CASE OF DALE PATRICK RAY”

(“the statement of reasons”). 

The statement then set out text under a number of headings.  The statement of reasons concluded:

“DECISION & REASONS FOR DECISION:

It is the determination of the Manager, Disability Claims Management Group, the authority delegated by the Board of Trustees of the State Public Sector Superannuation Fund, that the medical evidence establishes that Mr Ray suffers with a disability of a degree which is such as to render him permanently unfit to discharge or incapable of discharging the duties of his office efficiently but the medical evidence does not establish that the disability is such as to render him unlikely ever to be able to work again in a job for which he is reasonably qualified by education, training or experience.  It is recommended on the medical evidence available, Mr Ray be considered Permanently and Partially Disabled.  It is also recommended that the medical evidence used in this submission be released to the member.”

5                     The statement of reasons which Mr Ray received through his solicitors was undated and unsigned. 

6                     There was evidence before the Court of another document which the Board submitted was the original decision of the delegate of the Trustee dated 13 September 2001 in relation to Mr Ray’s claim.  This document was never sent to, or received by, Mr Ray or his solicitors.  It was given to the Tribunal by the Board under cover of a letter dated 4 November 2002.  The letter stated, inter alia:

“I refer to your letter dated 29 October 2002 regarding the complaint by the above named.

Please find enclosed the following documents as requested:

·                A copy of Mr Ray’s claim for permanent disablement benefits.

·                A copy of the Trustee delegate’s original decision dated 13 September 2001 in which it was determined Mr Ray is entitled to a Permanent  and Partial Disablement benefit (and not a Total and Permanent Disablement benefit).

Mr Ray’s claim for a permanent disablement benefit was dated 5 February 2001 and received by QSuper on 6 February 2001.”

7                     The document was headed:

SUBMISSION TO:

THE BOARD’S DELEGATE

QSUPER DEFINED BENEFIT ACCOUNT

SUBJECT        :           DETERMINATION AS TO DEGREE OF DISABILITY

The document then set out a number of headings which contained text in identical terms to the statement of reasons save for the last section.  The identical headings were “Background”, “Legislative Provisions”, “Issue to be Resolved”, “Evidence” and “Summary of Evidence”.  The last section, however, was in the following form:

“RECOMMENDATION:

Submitted for approval that the medical evidence establishes that Mr Ray suffers with a disability of a degree which is such as to render him permanently unfit to discharge or incapable of discharging the duties of his office efficiently but the medical evidence does not establish that the disability is such as to render him unlikely ever to be able to work again in a job for which he is reasonably qualified by education, training or experience.  It is recommended on the medical evidence available, Mr Ray be considered Permanently and Partially Disabled.  It is also recommended that the medical evidence used in this submission be released to the member.”

SUBMISSION INITIATED

(Signature)                                      11/9/01

Signature                                        Date

DECISION:                                       approved              (initials) 13/9/01”

On the last line, opposite “DECISION:”, the word “approved”, the initials and “13/9/01” appeared in handwriting.

8                     Mr Ray’s solicitors, by letter dated 27 May 2002, lodged a complaint with the Board pursuant to s 101 of the Superannuation Industry (Supervision) Act 1993 (Cth) (“the SIS Act”) in the following terms:

“We are instructed to lodge a complaint pursuant to section 101 of the Superannuation Industry (Supervision) Act.  Our complaint is the assessment of our client as permanently and partially disabled and we seek review of that decision on the basis of the contention that our client is totally and permanently disabled.

In support of our contention we enclose a report that we have obtained from Occupational Therapists, Therapy Solutions dated 10 May 2002.”

9                     At a meeting of the Board on 18 September 2002 the Board affirmed what it said was the previous decision of the Board’s delegate that Mr Ray was permanently and partially disabled at the time of his retirement. 

10                  Under cover of a letter dated 23 October 2002 Mr Ray’s solicitors lodged with the Tribunal a “Registration of Complaint Form” signed by Mr Ray on 14 October 2004 pursuant to s 14 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (“the SRC Act”) regarding the conduct of the Board in failing to pay Mr Ray a total and permanent disablement benefit under s 46 of the Deed.  The covering letter stated, inter alia:

“…The board in a decision communicated to us in a letter dated 19 September 2002 received on 20 September 2002 affirmed the previous decision to classify our client as permanently and partially disabled.  Implicit in that decision is a declining of our client’s application to be classified as totally and permanently disabled.

We are unsure whether it is necessary to lodge a further Section 101 Complaint/Review in respect of the decision dated 19 September 2002 nevertheless an application is lodged herewith.  If it is the Tribunal’s view that a further Section 101 Complaint/Review is required to vest the Tribunal with jurisdiction, we would be happy to lodge it.”

11                  By letter dated 14 November 2002 the Tribunal told Mr Ray’s solicitors that the Tribunal did not consider it had jurisdiction to deal with Mr Ray’s complaint.  The Tribunal said:

“I refer to the above complaint and wish to advise that it appears the Superannuation Complaints Tribunal is unable to assist your client with his complaint. 

The Superannuation (Resolution of Complaints) Act 1993 (the SRC Act) outlines the circumstances in which the Tribunal can deal with a complaint.  Subsections 14(6A) – 14(6D) of the SRC Act (see enclosed extract) impose certain time limits on the jurisdiction of the Tribunal to deal with disability complaints.

Essentially, the Tribunal cannot deal with a complaint about a decision of a trustee relating to the payment of a disability benefit because of total and permanent disability unless:

(i)      the Fund Trustee’s decision was made on or after 1 November 1994; and

(ii)     the complaint is made to the Tribunal within a period of one year after the making of the decision to which the complaint relates.

Moreover, the Tribunal cannot deal with such a complaint if:

(a)     before the making of the decision, the person permanently ceased particular employment because of the physical or mental condition that gave rise to the claim for disability;

(b)     the claim was not lodged with the Fund Trustee within one year after the person permanently ceased that employment.

I refer to information provided in relation to this complaint.  It appears that the Trustee made a decision in relation to your client’s claim on 13 September 2001.  Your client’s complaint was lodged with the Tribunal on 28 October 2002 over 12 months later.

Under these circumstances it appears that (i) and (ii) may apply and as a consequence, the Tribunal is prevented from dealing with your client’s complaint.  Please note that the Tribunal has no discretion regarding these time limits imposed by the SRC Act.

However, if you still believe the complaint is within the Tribunal’s jurisdiction please provide a written response within 14 days setting out why you think the matter should be considered to be within jurisdiction.  If you do not contact the Tribunal within this time the file will be closed.”

12                  The Tribunal did not respond to the solicitors’ query in their letter of 23 October 2002 as to whether it was necessary to lodge a further s 101 Complaint or Review.

13                  Mr Ray’s solicitors responded by letter dated 25 November 2002 contending that the Tribunal did in fact have jurisdiction to deal with Mr Ray’s complaint.  The letter stated, inter alia:

“By letter dated 16 February 2001, our client made application for ‘a disability benefit’, under the Q‑Super Fund.

By letter dated 13 September 2001, Q‑Super accepted our client’s application for ‘a disability benefit’, by determining that our client was permanently and partially disabled.

Crucially in our submission, Q‑Super’s letter of 13 September 2001, made no reference at all to our client having made application for a total and permanent disablement benefit, and that claim being denied.

By letter dated 27 May 2002, our client sought a determination from Q‑Super that our client was, totally and permanently disabled.  This was the first occasion upon which the issue of TPD had squarely been put.

By letter dated 19 September 2002, the Trustee rejected our client’s claim for total and permanent disablement, and in doing so, stated that our client was permanently and partially disabled in its view.

Accordingly, in our submission, our client’s Application for Total and Permanent Disablement was in fact made, by letter dated 27 May 2002, after the Board concluded that he was permanently and partially disabled on 13 September 2001.

Therefore in our submission, the initial rejection of our client’s total and permanent disablement claim, was made on 19 September 2002.

Accordingly, it is submitted that our client have until 19 September 2003 within which to lodge his complaint to the Superannuation Complaints Tribunal, and as the complaint was lodged under cover of our letter of 23 October, 2002 and would have been received by the Tribunal within two or three days after that date, we are well within time.

As indicated in our letter of 23 October, with which the Application was filed, if it is necessary to lodge a further Section 101 Complaint/Review, we are happy to do so, but would now seek a response on the substantive issue of jurisdiction.”

14                  The second respondent, Ms Fiona Power, Assistant Director of the Tribunal, wrote to Mr Ray’s solicitors by letter dated 21 January 2003 stating that the Tribunal had considered the comments expressed in their letter but remained of the view that Mr Ray’s complaint was outside the Tribunal’s jurisdiction due to the time limits imposed by the SRC Act.

15                  On 17 February 2003 Mr Ray filed an application and notice of appeal with the Court in which he sought the following relief:

·                    an order quashing or setting aside the Tribunal decision;

·                    to the extent that the Tribunal decision constituted a “determination” within the meaning of the SRC Act, an order that the appeal be allowed;

·                    a declaration that the Tribunal has jurisdiction to deal with his complaint and to review the Board’s conduct, and is not prevented by ss 14(6A)‑14(6D) of the SRC Act from reviewing the Board’s conduct;

·                    an order that the matter be remitted to the Tribunal;

·                    an order that the Tribunal deal with Mr Ray’s complaint and proceed with reviewing the Board’s conduct under, and in accordance with, the SRC Act.

16                  The Board, with the consent of the other parties, acted as contradictor in the proceeding.  The Tribunal and Ms Power, in her capacity as a member of staff of the Tribunal (collectively “the Tribunal”), made limited submissions that only related to issues of the Court’s and the Tribunal’s jurisdiction.  Such a role departs from the usual position of a tribunal on a review of its decision, that is that statutory bodies submit to the orders of the Court and do not present substantive argument:  The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 36.  But the role of the Tribunal would appear to fall within the exception recognised in Hardiman at 36 and discussed in BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 at 265.  See also, TXU Electricity Ltd v Office of the Regulator‑General (2001) 3 VR 93 and Geographical Indications Committee v O’Connor (2000) 64 ALD 325 at [35]‑[43].  That is, an exception may be made in order to allow the Tribunal to make limited submissions going to the powers and procedures of the Tribunal.

jurisdiction of the COURT

17                  Mr Ray’s application invoked the jurisdiction of the Court pursuant to s 5, s 6, s 7 and s 8 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”), s 39B of the Judiciary Act 1903 (Cth) and s 46 of the SRC Act.  The Tribunal accepted that the Court had jurisdiction to deal with the matters raised by the appeal under s 39B(1A)(c) of the Judiciary Act and submitted that it was therefore unnecessary to examine any limitations that might be imposed upon the Court’s jurisdiction under the ADJR Act.  However, the Tribunal contended that the Court did not have jurisdiction to entertain the application under s 46 of the SRC Act.  Such jurisdiction was conferred in respect of a “determination” of the Tribunal.  The Tribunal submitted that a determination could only be made after the Tribunal had conducted a review of a decision of the Board, that the Tribunal had decided it had no jurisdiction to enter upon a review, and accordingly it never made any determination which could be the subject of review by the Court.

The legislative scheme

18                  The Board is established under the State Public SectorAct and is the trustee of the Fund, which is a “regulated superannuation fund” within the meaning of s 4A of the SRC Act.  The Board is thus regulated by the SRC Act.  The Fund was established by the Deed, as provided for in the State Public Sector Act.  The Tribunal is established by the SRC Act, inter alia, to review the decisions or conduct of trustees of regulated superannuation funds concerning members in relation to which a complaint to the Tribunal has been made.

19                  Section 46 of the Deed provides for the payment of a benefit to certain members of the Fund who become totally and permanently disabled.  “Total and permanent disablement” is defined in s 4 of the Deed to mean:

“disablement of a degree which, in the opinion of the board after obtaining the advice of not fewer than 2 medical practitioners, is such as to render the member unlikely ever to be able to work again in a job for which the member is reasonably qualified by education, training or experience.”

20                  Section 59 of the Deed provides for the payment of a benefit to certain members of the Fund who become permanently and partially disabled. “Permanent and partial disablement” is defined in s 32 of the Deed to mean:

“disablement of a degree which in the opinion of the board is such as to render an employed member permanently unfit to discharge or incapable of discharging the duties of the member’s office efficiently, but is not total and permanent disablement.”

21                  A member of the Fund can make a complaint to the Tribunal about a decision of the Board concerning the member pursuant to s 14 of the SRC Act.  Section 14 relevantly 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.

…

(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.

…

(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 unless:

(a)     the decision is made on or after 1 November 1994; and

(b)     the complaint is made within a period of one year after the making of the decision to which the complaint relates.”

It is s 14(6A) of the SRC Act which is important for present purposes.

22                  Prior to making a complaint to the Tribunal under s 14 of the SRC Act, a member must utilise the internal complaint procedure put in place by the Board pursuant to s 101 of the SIS Act.  That section obliges the Board to have arrangements in place whereby members of the Fund can make complaints about the operation or management of the Fund.  Section 101 provides:

“(1)     The trustee of a regulated superannuation fund … must take all reasonable steps to ensure that there are at all times in force arrangements under which:

(a)         a person referred to in subsection (1A) has the right to make an inquiry or a complaint of the kind specified in that subsection in relation to that person [such as a beneficiary of a regulated superannuation fund who wishes to make a complaint about the operation or management of a fund in relation to themselves]; and

(b)     an inquiry or complaint so made will be properly considered and dealt with within 90 days after it was made.”

23                  Relevantly, s 101(1)(b) requires the Board to deal with the complaint within 90 days of the day on which the complaint to the Board was made.

24                  Section 19 of the SRC Act provides:

“(1)     The Tribunal cannot deal with a complaint under section 14 or 14A unless the complainant satisfies the Tribunal that:

(a)     a complaint about the same subject matter was previously made to an appropriate person under arrangements for dealing with such complaints made under section 101 of the Supervision Act [the SIS Act]; and

(b)     the complaint so made was not settled to the satisfaction of the complainant within 90 days or such longer period as the Tribunal allows.”

The issues

25                  Mr Ray made a number of submissions based on four alternative general propositions.  The first proposition was that s 14(6A) of the SRC Act did not apply to the present circumstances, and accordingly the time limit for making a complaint to the Tribunal prescribed by that section was not relevant.  The second proposition was that no valid decision had been made by the Tribunal in relation to jurisdiction because the Tribunal itself never made a valid determination, or because the Tribunal improperly dealt with Mr Ray’s complaint summarily.  The third proposition was that if s 14(6A) of the SRC Act did in fact apply, time should either have ceased to run or the time limit should have been extended because it was by reason of the Board’s delay in dealing with Mr Ray’s complaint to it that Mr Ray failed to bring his complaint to the Tribunal within time.  The fourth proposition was that if the time limit of one year in s 14(6A) of the SRC Act did apply, Mr Ray had made his complaint to the Tribunal within time because the date of the relevant decision of the Board was in fact 18 September 2002, being the date of the decision relating to total and permanent disablement, and the earlier decision of 13 September 2001 was irrelevant because it related to permanent and partial disablement only.

26                  Mr Ray submitted that, in order for s 14(6A) of the SRC Act to apply, the Tribunal had to be satisfied that a number of pre-conditions had been met, namely that there was:

·                    a decision,

·                    of a trustee,

·                    relating to the payment of a disability benefit,

·                    because of total and permanent disability.

27                  Mr Ray submitted that no “decision” was made on 13 September 2001 whether by the Board’s delegate or by the Board.  He submitted further that, if a decision was made on 13 September 2001 by the Board or its delegate, it did not relate to the payment of a “disability benefit.”  Finally, Mr Ray contended that the decision of the Board was not made in relation to total and permanent disability; rather its decision assessed permanent and partial disability only.

28                  A “Recommendation” was made on 11 September 2001 by an unnamed person, being the Manager, Disability Claims Management Group.  The Board contended that a decision was made on 13 September 2001 and was evinced in two stages:

-           first, the decision as contained in the document entitled ‘Submission to the Board’s Delegate’;

-           secondly, the notification of the decision, which was contained in the letter to Mr Ray’s solicitors dated 13 September 2001. 

The Board submitted that the Submission to the Board’s Delegate was prepared by the Senior Case Manager, Ms Denysiv, and contained background to the claim, a summary of the medical evidence and finished with a recommendation as to the outcome.  The Board relied on the delegate’s signature and notation “approved” on the bottom of the sixth page of the submission as raising the inference that the delegate had considered all of the material and the recommendation and come to a decision to approve the recommendation in its entirety.

29                  I am not satisfied that a decision was made by the Board or by any delegate of the Board on 11 or 13 September 2001.  What was given to Mr Ray as the decision was in fact only a recommendation by an unnamed delegate and it was not signed off or otherwise authenticated by that delegate.  The statement of reasons sent to Mr Ray’s solicitors on 13 September 2001 purported to be the statement of reasons of the Manager, Disability Claims Management Group, the person to whom the Board said it had delegated authority to determine whether a disability payment was payable to Mr Ray.  Ms Denysiv did not hold that position, she was a Senior Case Manager. 

30                  Section 6F of the State Public Sector Act provides:

“(1)  The board may delegate its powers under this Act to the executive officer, a trustee or an appropriately qualified person.

(2)     A delegation of a power may permit the subdelegation of the power to the executive officer, a trustee or an appropriately qualified person.

(3)     In subsection (1) –

‘appropriately qualified’ means having the qualifications, experience or standing appropriate to exercise the power.”

There was no evidence of any delegation to that unnamed person, nor was there any evidence that such manager had made the decision.  The document sent to Mr Ray’s solicitors on 13 September 2001 concluded with a recommendation.  But a recommendation to whom?  And from whom?  It was not signed off or otherwise authenticated.  Although the last section of the document commences with the formulation of a decision or determination, any decision that was purported to be made was overtaken or succeeded by language that formulated only a recommendation.  The covering letter dated 13 September 2001 made it clear that the Board had delegated its authority to determine whether or not a disability benefit was payable.  The delegate did not make that decision or determination.

31                  Even if the statement of reasons is read in conjunction with the document sent to the Tribunal on 4 November 2002, the “Submission to the Board’s Delegate”, the matter is not advanced any further.  There was no evidence as to the identity of the author of the submission, the person who apparently signed it on 11 September 2001 or as to the person who apparently approved it on 13 September 2001.  If it was approved by “The Board’s Delegate” the identity of that person is unknown and there is no evidence of any delegation to that person.

32                  It follows that no decision was made on 11 or 13 September 2001 by a delegate of the Board or by the Board itself in relation to Mr Ray’s claim for a permanent disablement benefit. 

33                  The Board relied on the presumption of regularity, the maxim omnia praesumitur rite esse acta,to support the proposition that its delegate had made a decision in respect of Mr Ray’s claim.  This presumption operates in respect of public and official acts and duties so that they are presumed to have been regularly and properly performed and that the persons acting are properly appointed:  Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 163‑165 per McHugh JA. 

34                  The Board submitted that where the presumption is not met by any rebutting evidence, the presumption will prevail and that the person alleging the invalidity of appointment carries the burden of proving the invalidity.  The Board relied on the presumption to argue that the decision made on 13 September 2001 was a ‘decision of a trustee’ within the meaning of s 14(6A).  It submitted that although the presumption is mainly applied in matters of public law, the presumption is of general application, being applicable to public and commercial matters.  It relied on Morris v Kanssen [1946] AC 459 at 475; Hardess v Beaumont [1953] VLR 315 at 320 per Dean J; McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 at 850; R v Brewer (1942) 66 CLR 535 at 548; R v Arrowsmith [1950] VLR 78; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164.  It submitted that there was no rebutting evidence in this case that would establish any lack of regularity.

35                  I do not consider that this is a case where presumption should apply.  This is so, particularly in circumstances where the issue of the delegation is put in issue, where there is no evidence of any instrument or other form of delegation to any particular person and where there is no evidence from the delegate as to the decision he or she made. 

36                  The maxim omnia praesumitur rite esse acta was explained in Morris v Kanssen [1946] AC 459 at 475 by Lord Simonds in the following terms (at 475):

“It has many applications.  In the law of agency it is illustrated by the doctrine of ostensible authority.  In the law relating to corporations its application is very similar.  The wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order.  But the maxim has its proper limits … It is a rule designed for the protection of those who are entitled to assume, just because they cannot know, that the person with whom they deal has the authority which he claims.  This is clearly shown by the fact that the rule cannot be invoked if the condition is no longer satisfied, that is, if he who would invoke it is put upon his inquiry.  He cannot presume in his own favour that things are rightly done if inquiry that he ought to make would tell him that they were wrongly done.”

As McHugh JA pointed out in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at (164):

“The natural home of the maxim is public law.  Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled … And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion for granting the permit …”

37                  The presumption is a public law doctrine (see McHugh JA in Minister for Natural Resources v NSW Aboriginal Land Council (supra)) and I do not consider that it can be drawn in aid in relation to a complaint by an individual about non‑payment of superannuation benefits where the existence of the authority to make the decision on 13 September 2001 or 18 September 2002 is in issue.

38                  Even if the maxim were to be applied, it is not immediately clear to which fact or circumstance it is to be applied.  If it is to be applied to the “decision” made by the delegate as contained in the statement of reasons, the decision itself is problematic as the statement of reasons contained a mere recommendation.  If it is to be applied to the decision as contained in the submission to the Board’s delegate and sent to the Tribunal under cover of a letter of 4 November 2002, then one does not know the identity of the delegate or decision‑maker in favour of whom one is to apply the presumption.

39                  In any event, even if there was evidence of the instrument of delegation and the identity of the delegate, Mr Ray’s solicitors were only informed, by the letter on 13 September 2001, that the delegate had made a recommendation.  There was no evidence of the person or entity to whom the recommendation was made, nor was there any evidence as to the ultimate decision.  There is also no congruity between the statement of reasons accompanying the letter to Mr Ray’s solicitors of 13 September 2001 and the delegate’s “original” decision sent to the Tribunal under cover of the letter dated 4 November 2002. 

40                  Further, I do not consider as the Trustee contended, that s 27A of the Acts Interpretation Act 1954 (Qld) takes the matter any further as it presupposes the existence of an identifiable delegation.  Section 27A(3), for example, requires a delegation to be in, or evidenced in writing.

41                  As there was no decision of the Board made on 13 September 2001 the basis for the Tribunal’s decision, or conduct evidenced in its letter of 14 November 2002, that it could not consider or deal with Mr Ray’s complaint, is removed.  The Tribunal refused to consider or deal with Mr Ray’s complaint because it was lodged with the Tribunal on 28 October 2002, over twelve months after what the Tribunal perceived was the date of the decision of the Board.  Once the date, 13 September 2001, falls away, the date relied on by Mr Ray remains, namely 18 September 2002.  If 18 September 2002 be the date of the decision by the Board then the Tribunal was bound to consider it and deal with Mr Ray’s complaint.  That consideration would have to take into account whether s 19(1) of the SRC Act had been complied with.  If s 19(1) has been complied with then the relevant time period starts to commerce at the time of the original decision of the Board.  Section 14 provides:

“(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

42                  Whether s 19(1) was complied with is a matter for the Tribunal, but it must give Mr Ray the opportunity to satisfy the Tribunal that he has complied with s 19(1).  Section 19(1) contemplates that a person lodging a complaint with the Tribunal will have that opportunity.

43                  As I have reached the conclusion that there was no decision made by the Board on 11 or 13 September 2001, it follows that the Tribunal has not undertaken its statutory obligation of considering and dealing with Mr Ray’s complaint.  Included within that obligation is a requirement to give Mr Ray the opportunity to satisfy the Tribunal of the matters referred to in s 19(1) of the SRC Act. 

44                  It is not necessary therefore to resolve the issue whether the Tribunal made a valid or effective decision that it could not deal with Mr Ray’s complaint.  Mr Ray submitted that the Tribunal as constituted under the SRC Act had not made the decision that it had no jurisdiction to deal with his complaint.  That submission is effectively answered by the finding that the Tribunal must undertake its statutory obligation.

45                  The matter, that is Mr Ray’s complaint, must go back to the Tribunal so that the Tribunal can consider it and deal with it according to law and consistently with these reasons.

46                  I do not consider that the manner in which the complaint was refused by the Tribunal, that is on the basis that the complaint was out of time, constitutes a summary dismissal of Mr Ray’s claim.  The refusal to consider and deal with Mr Ray’s complaint was a decision that was not open to the Tribunal.  It constituted a failure to exercise jurisdiction.

47                  It is not necessary to consider the remaining submissions made by the parties which preceded on the basis that a decision had in fact been made by the Board on either 11 or 13 September 2001.

48                  Mr Ray sought relief under the provisions of the ADJR Act, the Judiciary Act and the SRC Act.  The relief sought under s 46 of the SRC Act is dependent upon a finding that there has been a “determination” of the Tribunal.  The Tribunal acknowledged that it had made a decision that it had no jurisdiction to consider or deal with Mr Ray’s complaint but it rejected the proposition that there had been a “determination”.  The term “determination” is not defined in the SRC Act.  It has been the subject of judicial interpretation in a number of cases, albeit in different contexts.  Frequently the context equates the definition of “determination” with a “ decision”.  Some of the definitions of “determination” in the Macquarie Dictionary are “the act of coming to a decision”, “the fixing or settling of a purpose”, “the settlement of a dispute, etc. by authoritative decision” and “the decision arrived at or pronounced”; and in the Oxford English Dictionary (2^nd edition), “the ending of a controversy or suit by a decision of a judge or arbitrator; judicial or authoritative decision or settlement (of a matter at issue)”; “the decision arrived at or promulgated” and “the settlement of a question by reasoning or argumentation; discussion”.

49                  When the context in which s 46(1) of the SRC Act, is considered, it is apparent that what is contemplated by the term “determination of the Tribunal” is the ultimate or final disposition of the substance of a complaint or matter which has been brought before it.  I do not consider that it encompasses a preliminary or threshold decision that the Tribunal does not have jurisdiction to consider or determine a complaint before it. 

50                  The SRC Act contains procedures for the conciliation of complaints made to it.  If a complaint cannot be settled by conciliation, the Tribunal must hold a review meeting in accordance with the provisions of Pt 6 of the SRC Act.  Section 37 provides:

“(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)       …

(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.”

In this section a reference to “determination” is clearly a reference to a final substantive decision or resolution concluding the complaint.  There are provisions similar to those in s 37 found in ss 37A, 37B, 37C, 37D, 37E, 37F and 37G which set out the procedure to be followed by the Tribunal in relation to particular complaints under various sections of the SRC Act.  It is apparent from each of them that the reference to “determination” is a reference the final substantive decision on the complaint brought before the Tribunal:  see also ss 41, 43, 44:  cf Svecova v Industrial Commission of New South Wales (1991) 24 ALD 732.

51                  It follows that Mr Ray cannot resort to s 46 of the SRC Act as there has been no “determination” of the Tribunal.  However the Tribunal accepted that the Court had power to grant appropriate relief against it pursuant to s 39B(1A)(c) of the Judiciary Act as Mr Ray’s application for review had raised matters arising under a law of the Commonwealth, namely the SRC Act.

52                  The Tribunal contended that an order in the nature of mandamus would only be useful if the Court accepted Mr Ray’s submission that the time limits did not prevent the Tribunal from considering the complaint.  This would involve a finding that the Board had made the decision which had been the subject of a complaint to the Tribunal within twelve months of the Board’s decision.

53                  The Tribunal submitted that if the Court were to accept Mr Ray’s submissions that there was no decision on 11 or 13 September 2001 or relevant delegation to make the 11 or 13 September 2001 decision, and that the original decision was therefore the decision made on 18 September 2002, then there would be no compliance with s 19 of the SRC Act and the Tribunal would be precluded from dealing with the matter.  Both the Tribunal and the Board submitted that any remitter to the Tribunal in such circumstances would be futile and that any relief should be framed so as to ensure that it does not require the Tribunal to do something that it cannot do under the SRC Act.

54                  I do not consider that it is futile for the matter to be remitted to the Tribunal for further consideration according to law and consistently with these reasons.  The position may well be that the Tribunal cannot deal with the complaint made by Mr Ray because he is unable to satisfy the Tribunal in the terms of subss (a) and (b) of s 19(1) of the SRC Act.  However, the issue of the lodging of a further s 101 Complaint/Review was raised by Mr Ray’s solicitors in the correspondence to which I have earlier referred and the Tribunal had not responded to that matter.  Having regard to the correspondence which has passed between Mr Ray’s solicitors and the Trustee and the Tribunal, it may well be open to Mr Ray to satisfy the Tribunal that it can deal with his complaint in accordance with s 19(1) of the SRC Act.  That is not a matter for me to resolve at this stage, but s 19(1) requires that the Tribunal give him that opportunity.

55                  I will give the parties the opportunity to speak to the form of orders to be made.

Associate:

Dated:              30 August 2004