FEDERAL COURT OF AUSTRALIA

H.E.S.T. Australia Ltd v Sykley [2005] FCA 1381

SUPERANNUATION – Superannuation Complaints Tribunal – whether Superannuation Complaints Tribunal has jurisdiction – whether complainant had standing – whether the Tribunal erred.

Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 15, 20, 37

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 applied

Briffa v Hay (1997) 75 FCR 428 referred to

Cabal v Attorney-General of the Commonwealth (2001) 113 FCR 154 referred to

Collector of Customs v Pozzolanic (1993) 43 FCR 280 referred to

Collins v AMP Superannuation (1997) 75 FCR 565 followed

Colonial Mutual Life Assurance Society Ltd v Brayley [2002] FCA 1333 referred to

Commonwealth Superannuation Scheme Board v Dexter [2004] FCA 1434 referred to

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 followed

Hourn v Farm Plan Pty Ltd [2003] FCA 1122followed

Karalis v Australian Community Pharmacy (1998) 90 FCR 473 followed

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed

Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 followed

National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562 referred to

National Mutual Life Association of Australia Ltd v Jevtovic (unreported, Sundberg J, 8 May 1997) referred to

Parisienne Basket Shoes Pty Ltd v Whyte (1983) 59 CLR 369

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 cited

Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 referred to

Seafarers’ Retirement Fund v Oppenhuis (1999) 94 FCR 594 referred to

Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 referred to

H.E.S.T AUSTRALIA LTD (ACN 006 818 695) v JULIE-ANNE SYKLEY

VID 1065 of 2004

CRENNAN J

27 SEPTEMBER 2005

MELBOURNE

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL

THE COURT ORDERS THAT:

1.      The determination of the Superannuation Complaints Tribunal dated 4 August 2004 be affirmed.

2.      The application be dismissed.

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

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL

REASONS FOR JUDGMENT

1                     This was an application in the nature of an appeal brought pursuant to s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (‘the Complaints Act’).  The appeal was from a decision of the Superannuation Complaints Tribunal given on 4 August 2004. 

2                     The applicant is the trustee of the Health Employees Superannuation Trust of Australia (‘the Fund’), a regulated superannuation fund within the meaning of the Complaints Act.  The respondent is the former de facto partner of Mr Terrence Hibberd (‘the deceased’), who died on 6 November 2001.  The deceased was a member of the Fund and under the rules of the Health Employees Superannuation Trust Australia Deed (‘the Deed’) a benefit was payable in the event of his death.  At the time of his death the sum of $58,128.98 (‘the benefit’) was payable in accordance with the terms of the Deed.  The benefit consisted of an insured component of $45,000.00 and an account balance of $13,128.98.

3                     The applicant decided to pay the whole of the benefit to the deceased’s estate (‘the estate’).  A dispute arose between the applicant and the respondent, as the respondent claimed she was the proper person to receive the benefit.  The respondent lodged a complaint in respect of the decision with the Superannuation Complaints Tribunal (‘the Tribunal’), pursuant to s 14 of the Complaints Act.  The Tribunal upheld the complaint and determined that the decision of the Trustee to pay the benefit to the estate was not fair and reasonable in the circumstances.  The applicant has appealed to this Court against the determination of the Tribunal.

The background facts

4                     The deceased commenced as a member of the Fund on 19 November 1992.  He died intestate on 6 November 2001.  The respondent was not living with the deceased at the date of his death.  The respondent sent a facsimile on 28 December 2001 to the applicant advising of the deceased’s death (the ‘facsimile’).  The facsimile requested that a claim form for payment of the benefit be forwarded to the deceased’s ‘mother and beneficiary’ Mrs Theresa Hibberd.  In the facsimile, the respondent identified herself as the deceased’s ‘former partner’ and provided her contact details. 

5                     On 12 February 2002 the Fund wrote to Mrs Hibberd and provided her with a claim form to enable her to make an application for payment of the benefit.  Mrs Hibberd returned the completed claim form to the applicant on 22 February 2002.  It is relevant to note Mrs Hibberd was required to include information in relation to any ‘dependants’ who had survived the deceased in Section B of the claim form.  Mrs Hibberd wrote ‘N/A’ (which abbreviation commonly means ‘not applicable’) in Section B and she omitted to sign the foot of the section to certify that the information in Section B was ‘true and correct to the best of [her] knowledge’. 

6                     On 19 March 2002 the applicant decided to pay all of the benefit in respect of the deceased to the estate.  The applicant did not notify the respondent of its decision.  Mrs Hibberd was granted letters of administration in respect of the estate on 5 June 2002 and the full amount of the benefit was paid to the estate by the Fund on 19 June 2002. 

7                     On 6 January 2003 the respondent sent a letter to the Fund advising that she wanted to make a complaint under s 101 of the Superannuation Industry (Supervision) Act 1993 (Cth).  The respondent indicated in the letter that she had been in a de facto relationship with the deceased for 12 years until his death and that she believed she had a valid claim to the benefit, but had not been contacted or considered by the respondent before the benefit was paid.  The applicant replied by letter dated 28 January 2003 advising the respondent that the original decision had been reviewed and it had decided to reaffirm the decision to pay the benefit to the estate. 

8                     On 3 March 2003 the respondent lodged a complaint with the Tribunal contesting the applicant’s decision to pay the benefit to the estate.  Mrs Hibberd was joined to the complaint to the Tribunal as ‘Joined Party 1’ and Ms Forest Paolucci, who also claimed to be in a de facto relationship with the deceased at the time of his death, was joined as ‘Joined Party 2’.  In making a complaint to the Tribunal, the respondent claimed that the applicant’s decision ‘was unfair and unreasonable because it did not include her in the “claim-staking process” and, therefore, had not given due consideration to her claim that she was in a de facto relationship with the deceased for 12 years until his death.’

9                     On 4 August 2004, the Tribunal set aside the decision of the applicant on the ground that the Trustee’s decision was not fair and reasonable and held that the respondent was entitled to payment of the whole of the benefit from the Fund.  The applicant lodged an appeal from the Tribunal’s decision on 1 September 2004, under s 46(1) of the Complaints Act, which permits an appeal ‘on a question of law’.  The respondent contends that the decision of the Tribunal is not impugned by any error of law, the appeal should be dismissed and the decision of the Tribunal affirmed.

10                  It is relevant to note that the respondent also commenced proceedings on 14 August 2003 in the District Court of Queensland.  In this action the respondent sought provision from the estate as the deceased’s spouse pursuant to s 41(1) of the Succession Act 1981 (Qld).  On 15 July 2004 Mrs Hibberd made an application to the District Court seeking orders that the respondent’s application be dismissed, on the basis that it had not been brought within the prescribed time limit and there was no satisfactory explanation for the delay or reasonable prospects of success.  Bradley DCJ dismissed the proceedings on 13 September 2004, after the Tribunal’s determination, indicating in his reasons that the Tribunal’s decision in the respondent’s favour was ‘pivotal’ to his decision to dismiss the application.

Relevant provisions of the Deed

11                  The version of the Deed that applied on the date when the deceased died was that amended on 19 April 2000.  The specific provisions relevant to this matter are set out below.

12                  Rule 13.3 of the Deed relates to payment of benefits in the event of the death of a member of the Fund.  It provides that:

‘Subject to Rule 13.5, if a Member dies . . . the Trusteeshall hold the Benefit of that Member UPON TRUST to pay that Benefit . . . to or for the benefit of such one or more of the following persons to the exclusion of the other or others and in such manner and proportions as the Trustee in its discretion determines –

(a)   the Dependants of that Member, and

(b)   subject to production of Grant of Probate or Letters of Administration, or Enduring Power of Attorney as is appropriate, one or more of the persons who are the Legal Personal Representatives of that Member.’

13                  The words ‘Dependant’ and ‘Legal Personal Representative’ are defined in Rule 1 of the Deed as follows:

‘“Dependant” in relation to a Member means

(a)   a spouse of the Member, which expression shall include a person who although not legally married to the Member lives (or in the case of a deceased Member was at the date of death of the Member living) with the Member on a bona fide domestic basis as the husband or wife of the Member; or

(b)   a child of the Member including adopted child, step-child and ex nuptial child; or

(c)    any person who in the opinion of the Trustee is at the relevant date (or in the case of a deceased Member was at the date of death of that deceased Member) wholly or partially dependent on that Member or

(d)   any person who in the opinion of the Trustee has or has at the relevant date a legally enforceable right to look to that Member for financial support . . .

“Legal Personal Representative” means the executor of the will or administrator of the estate of a deceased Member, the trustee of the estate of a person under a legal disability or a person who holds an enduring power of attorney granted by a Member.’ 

14                  Rule 36.2(2)(a) is concerned with the circumstance in which a person ceases to be a member of the Fund and it provides:

‘A person will cease to be a Member upon ceasing to be entitled to a Benefit under the Plan.’

The Tribunal’s Decision

15                  The Tribunal identified the decision under review as being the decision of the applicant, on 19 March 2002, to pay all of the benefit in respect of the deceased to the estate.  The respondent was not notified of this decision.  The Tribunal indicated that it had conducted its review on all the documents submitted by the parties.  It then outlined the circumstances in which the complaint was made and accepted certain background facts. 

16                  In reliance on s 19 of the Complaints Act, the Tribunal found it had jurisdiction.  The Tribunal also considered whether the respondent had standing under s 15(2)(b) of the Complaints Act, on the basis that she was not notified of the applicant’s decision and its failure to notify her was unreasonable.  The Tribunal held that the respondent had standing, as the Trustee had been put on notice of the possibility of the respondent having an interest in the benefit when it received notification from the respondent of the death of the deceased.  Accordingly, it found the failure of the applicant to notify the respondent was unreasonable.  The Tribunal also considered whether it was prohibited from dealing with the complaint under s 20 of the Complaints Act because of the respondent’s action in the District Court of Queensland (the ‘District Court’) seeking distribution of funds from the estate.  The Tribunal held that the subject matter of the complaint was the distribution of a benefit from the Fund, which was not a matter before the District Court.

17                  After setting out the submissions made by each party, the Tribunal held that its role was ‘to determine whether the decision of the Trustee was fair and reasonable in its operation in relation to the [respondent] and any interested party in the circumstances’.  The Tribunal indicated that it ‘took the whole of the evidence and submissions into account’.  It decided that this material supported a conclusion that the applicant had received the abovementioned facsimile.  The Tribunal held that the fact that the respondent described herself in the facsimile as the ‘former partner’ of the deceased should have alerted the applicant to the fact that the respondent may have had an interest in the benefit so that she should have been included in its further enquires in relation to the deceased.  In particular, the use of the word ‘former’ could mean that the respondent’s partnership with the deceased was terminated by death or at some earlier time, which raised the possibility of some dependency at the time of death.  The Tribunal held that it was not fair and reasonable for the applicant to take the respondent’s request to send the claim form to Mrs Hibberd as an indication that the respondent ‘knew she had no rights under the Trust Deed or alternatively if she had rights that she was happy for them to be foregone’.

18                  The Tribunal found that it was not fair and reasonable for the applicant to suggest that the direction in the facsimile to deal with Mrs Hibberd implied that Mrs Hibberd would complete the applicant’s requirements accurately or that the rights of the respondent were eliminated if such information were inaccurate.  This is because even if the applicant sought to rely on the information received from Mrs Hibberd its obligations to other parties under the Deed remained.

19                  The Tribunal held that the applicant failed to give much consideration to the evidence subsequently provided by the parties, which went to the fundamental question of entitlements under the Deed.  The Tribunal indicated that the evidence was ‘extensive’ and could only be ‘briefly summarised’ in its determination.  On the evidence, the Tribunal found that Joined Party 1 or 2 were not dependants.  However, it was clear that the respondent was in a de facto relationship with the deceased up until the time he left the capital city where they resided together and that the deceased may have left that city because of his health problems, rather than as a result of any breakdown of the de facto relationship.  The Tribunal held that given the level of personal and financial interaction that existed between the respondent and the deceased up until the date of his death it was fair and reasonable to conclude that the respondent was in a de facto relationship with the deceased up until his death.  The Tribunal also held that there was a ‘substantial level of financial interdependency’ and this indicated that the respondent was either wholly or partially dependent on the deceased. 

20                  The Tribunal ultimately concluded (at 10) that:

‘From all the information before it the Tribunal concludes that the decision of the Trustee to pay the benefit to the Estate was not fair and reasonable as the Complainant was able to demonstrate that she was the only party to the complaint that satisfied the definition of “Dependant” under the Trust Deed.  Whilst the Trustee had the discretion to consider a payment to the Estate, in light of all the circumstances of all the parties of the complaint, such a payment would not have been fair and reasonable.’

21                  Given that the Tribunal was satisfied that the decision was not fair and reasonable it then decided to substitute its own decision that the respondent was entitled to the whole of the benefit.

Grounds of appeal

22                  The following grounds of appeal were listed in the applicant’s amended notice of appeal as follows:

‘a)       The Tribunal erred in determining that the Complainant had standing to make the complaint to the Tribunal pursuant to s 15(2)(b) of the Complaints Act . . .  [there were four complaints under this ground]

b)         The Tribunal did not have jurisdiction to hear the complaint by virtue of s 20 of the Complaints Act . . .  [there were four complaints under this ground]

c)         The Tribunal erred in determining that the decision of the Applicant was not in its operation, in relation to the Complainant, fair and reasonable in the circumstances . . .  [there were four complaints under this ground]

d)         In determining whether the decision of the Applicant was not in its operation, in relation to the Complainant, fair and reasonable in the circumstances, the Tribunal did not consider all relevant facts.

e)         The Tribunal’s decision to substitute its own decision for that of the Applicant was contrary to law and/or contrary to the governing rules of the Fund.  Accordingly, such decision was contrary to s 37(5) of the Complaints Act.

f)         The Tribunal did not provide its reasons in writing for determining that the Complainant was entitled to the whole of the benefit from the Fund and that such benefit should be paid to the Complainant, contrary to s 37(3) of the Complaints Act.

g)         The Tribunal did not inform itself of the correct inquiry to be made pursuant to s 37(6) of the Complaints Act and/or had regard to irrelevant considerations . . .  [there were two complaints under this ground]

h)         [deleted]

i)          The Tribunal’s determination that the whole of the benefit be paid to the Complainant was contrary to law in that:-

                                                                           i.      Such determination was contrary to s 37(4) of the Complaints Act as it was not directed at placing the Complainant in a position where the unfairness and/or unreasonableness identified, no longer exists; and/or

                                                                         ii.      Such determination was, in all the circumstances, impractical and accordingly contrary to s 37(4) of the Complaints Act.

j)         [withdrawn].’

23                  Grounds (c) and (g) will be considered together, as these are both related to the argument that Tribunal erred in determining that the decision of the applicant was not fair and reasonable.  Grounds (e), (f) and (i) will also be considered together because all of these grounds relate to the applicant’s contention that the Tribunal erred when it decided to substitute its own decision for that of the applicant.  Grounds (a), (b) and (d) will be considered separately.

Ground (a) - Standing under s 15(2)(b) of the Complaints Act

24                  The respondent lodged a complaint of the type dealt with by s 14 of the Complaints Act.  Standing to bring a complaint under s 14 is dealt with in s 15.  To establish standing in this case the respondent relied upon s 15(1)(a)(i) and s 15(2)(b), which relevantly provide as follows:

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

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

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

(2)       A person does not have an interest in a death benefit for the purposes of paragraph (1)(a) unless:

            (a) . . .

(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 . . . ’

25                  In its oral submissions the applicant argued that the factual reference in s 15(2)(b) is a reference to a jurisdictional fact to be determined by the Court.  The approach taken by the High Court in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 (‘Enfield’) is binding on me.  There, at [28] the Court said:

‘The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision‑maker to exercise a discretion.’

If the applicant’s submission is correct, this Court would have to consider all the evidence on matters which go to the question of whether the failure to notify the respondent was unreasonable.  The applicant submitted that s 15(2)(b) provides that the Tribunal’s power to embark on an inquiry is contingent upon the actual existence of a state of facts: see, for example, the discussion by Dixon J (as he was then) in Parisienne Basket Shoes Pty Ltd v Whyte (1983) 59 CLR 369 at 391.  In addition, unlike other sections in the Complaints Act, this section is not expressed by explicit reference to the opinion, belief or satisfaction of the Tribunal: Cabal v Attorney-General of the Commonwealth (2001) 113 FCR 154 at 172 (‘Cabal’). 

26                  The respondent contended that s 15(2)(b) does not make the Tribunal’s powers conditional upon the actual existence of a state of facts.  The respondent points to the following four factors to support that submission: 

            (i)         The express wording of the legislation and the nature of the task committed to the Tribunal tend against the applicant’s submission.  For example, there is a requirement for the Tribunal to provide fair, informal and prompt dispute resolution (ss 7A, 9, 11).  Also relevant are the Tribunal’s broad powers and discretions to determine complaints under s 14 (s 37), the fact that it is not bound by technicalities, legal form or rules of evidence and may inform itself of any matter in any way it thinks appropriate (s 36) and that it must be satisfied that it can deal with a complaint (s 27(c)). 

            (ii)        Also significant is the factor that the question of unreasonableness referred to in s 15(2)(b) must involve a matter of judgment, therefore it is not a factor capable of objective determination: see Karalis v Australian Community Pharmacy (1998) 90 FCR 473 at 483-484. 

            (iii)       Inconvenience would result if a Tribunal decision under s 15(2)(b) were only provisional.  A Court would have to conduct another merits review of the same evidence. 

            (iv)       Requiring a Court to make a determination in relation to unreasonableness in all cases where s 15(2)(b) is raised would cause serious abuse and delay in those matters, which could not have been intended by Parliament as it would seem contrary to the objects of the Complaints Act. 

27                  These four factors taken together appear to me to be persuasive.  In particular, the Tribunal’s power to embark on exercising its jurisdiction is contingent on it forming an opinion on the unreasonableness of a failure to give notice and not an establishment of an objective fact.  The task committed to the Tribunal under s 15(2)(b) requires some level of value judgment on the part of the Tribunal in deciding what is reasonable.  Accordingly, following relevant authorities, I find s 15(2)(b) does not operate as the applicant contended: Enfield; Cabal. 

28                  In the alternative to its argument concerning jurisdictional fact, the applicant argued that the Tribunal erred in the way it framed and applied the test under s 15(2)(b) in respect of standing.  The issue of standing is a question of law: see Collins v AMP Superannuation (1997) 75 FCR 565 at 576E, see the cases referred to therein.  It was accepted that the respondent did not notify the applicant of the proposed payment of the benefit to Mrs Hibberd.  The main issue on appeal was whether the applicant’s failure to notify the respondent of the proposed payment was unreasonable.  The applicant submitted that the section of the decision entitled ‘Jurisdiction of the Tribunal’ (at 3) should be considered a separate and discrete section dealing with the threshold issue of jurisdiction and that in this section the Tribunal erred because it only considered whether the applicant was put on notice of the possibility of the claimant having an interest in the benefit.  The applicants said the Tribunal should have asked whether the Trustee’s failure to notify the respondent was unreasonable, which is a broader question.  The respondent contends that the Tribunal clearly identified and applied the correct test under s 15(2)(b). 

29                  The proposition that administrative decisions should be read as a whole and without ‘an eye keenly attuned to the perception of error’ is well settled: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (‘Wu Shan Liang’), affirming the test in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287 (‘Pozzolanic’).  Consideration of the whole of the Tribunal’s decision demonstrates that the Tribunal correctly identified the test in relation to standing and did not confine its inquiry with respect to unreasonableness only to the question of whether the Trustee was notified of the possibility of the respondent’s interest in the benefit.  The Tribunal considered not only the conclusions which can be drawn from the notification in the facsimile, but also included those arising from the claim form which Mrs Hibberd submitted to the applicant and the evidence subsequently provided by the parties which went to the question of entitlements under the Deed.  These findings cannot be divorced from the conclusions of the decision in relation to unreasonableness made in the section of the decision under the heading ‘Jurisdiction of the Tribunal’.

30                  In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 at [14] Gleeson CJ held:

‘Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from others.  Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything.  Expression of conclusions in a certain sequence does not indicate a failure to consider evidence as a whole.’

31                  In this case, although the Tribunal’s conclusion with respect to standing was made in the section of the decision headed ‘Jurisdiction of the Tribunal’, the Tribunal’s findings based on evidence and submissions relevant to the issue of determining whether the applicant’s decision was unreasonable are referred to throughout the decision.  The Tribunal did not apply the wrong test in relation to standing under s 15(2)(b) even though it considered what the applicant calls ‘the overall matrix of facts and circumstances’ in another part of the decision and considered the facts and circumstances relevant to s 15(2)(b) and to s 37(4) in its determination of whether the Trustee’s decision was unreasonable.

Ground (b) - Jurisdiction under s 20 of the Complaints Act

32                  The jurisdiction of the Tribunal to deal with a complaint is limited by s 20 of the Complaints Act which provides:

‘20(1)  The Tribunal cannot deal with a complaint if a proceeding has been begun in a court about the subject matter of the complaint and the proceeding has not been finally disposed of.

20(2)   If, after a complaint has been made to the Tribunal, a proceeding is begun in a court about the subject matter of the complaint, the Tribunal cannot deal with the complaint until the proceeding is finally disposed of.’

33                  The applicant submitted that the Tribunal erred in failing to find that s 20(2) prohibited it from dealing with the complaint until the proceedings commenced by the respondent in the District Court had concluded.  It was argued that the District Court proceedings could be properly characterised as proceedings ‘about the subject matter of the complaint’ because both proceedings related to the respondent’s claims in respect of the same funds.  The applicant paid the benefit to the estate on 19 June 2002.  Therefore, at the commencement of the proceedings in the District Court on 11 August 2003, the benefit formed the main asset of the estate.  The applicant also submitted that the District Court proceeding was ‘about the subject matter of the complaint’ because in both proceedings the fundamental issue or claim advanced by the respondent was that she was a dependant of the deceased. 

34                  The respondent submitted that the Tribunal made no error in determining that it had jurisdiction under s 20 of the Complaints Act because the District Court and the Tribunal were asked to determine different questions.  The respondent also argued that as at the date of the Tribunal’s decision the respondent’s application to the District Court was out of time and leave to proceed with the application had not been granted which meant that, in substance, the proceedings had not ‘begun’.  Furthermore, on 9 September 2004 the District Court application was dismissed, therefore even if the Tribunal erred in making its determination before the resolution of the District Court proceeding it would be futile to remit the complaint to the Tribunal on this ground.

35                  Even though the two proceedings could be viewed very broadly as different ways of obtaining access to what is essentially the same money, the respondent’s submission that the subject matter of each case was different is plainly correct.  In the District Court the respondent sought orders under s 41(1) of the Succession Act 1981 (Qld) which provides:

‘If any person (the “deceased person”) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its direction, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.’

36                  Accordingly, the District Court proceedings related to whether adequate provision had been made from the estate for proper maintenance and support of the respondent.  By way of contrast, the subject matter of the Tribunal complaint was whether the applicant’s decision to pay the whole of the benefit to the estate was fair and reasonable in its operation in relation to the respondent.  The subject matter of the District Court proceeding was therefore different from that before the Tribunal and the respondent was entitled to have both matters adjudicated.  This finding renders it unnecessary to decide between competing submissions as to whether s 20 should be narrowly construed so as to apply only where a continued proceeding before the Tribunal would or could constitute an interference with the administration of justice or a contempt.  That question of statutory construction is better left until an occasion arises where findings of fact oblige pursuit of the issue.

Grounds (c) and (g) - Fairness and reasonableness of the applicant’s decision

37                  Under s 37 of the Complaints Act the Tribunal must determine whether the decision of the applicant was unfair or unreasonable, or both.  The applicant submitted that the Tribunal erred in its approach to this task.  The respondent argues that there was no error.

38                  The manner in which the Tribunal should approach its review of the Trustee’s decision under the Complaints Act has been considered by the Court on a number of occasions: see National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562; Noel v Cook [2004] FCA 479; Briffa v Hay (1997) 75 FCR 428; Seafarers’ Retirement Fund v Oppenhuis (1999) 94 FCR 594; Lykogiannis v Retail Employees Superannuation Pty Ltd (2000) 97 FCR 361; Commonwealth Superannuation Scheme Board v Dexter [2004] FCA 1434; Haematite Pty Ltd v Ristevski (2002) 189 ALR 685; Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139.  In particular, there is a useful and convenient summary of how the Tribunal is intended to function in Colonial Mutual Life Assurance Society v Brayley Ltd [2002] FCA 1333 at [27]–[34].

39                  These authorities make it clear that the Tribunal must first consider whether the actual decision of the Tribunal was fair and reasonable.  It does so by ‘standing in the shoes’ of the applicant: Briffa v Hay (199) 75 FCR 428 at 437, 443.  The applicant contends that the Tribunal failed to do this when it concluded that the decision of the applicant was not fair and reasonable because the respondent was able to demonstrate that ‘she was the only party to the complaint that satisfied the definition of “Dependant” under the Trust Deed’.  The failure occurred because the applicant never considered whether the respondent was a dependant; indeed the applicant made its decision in ignorance of anything relating to the respondent because it appears to have lost any record it may have had of her communications.  The respondent argues that the Tribunal’s finding of dependency was one of a number of findings of fact which were relevant to its deliberations, that the finding was open to the Tribunal on the evidence before it and that it was necessary to make this finding in order to determine whether the decision of the Trustee was unfair and unreasonable in its operation in relation to the respondent. 

40                  The issue of dependency was relevant to the unfairness and unreasonableness of the applicant’s decision.  The applicant did not consider whether the respondent was a dependant at the time it made the decision to pay the benefit to the estate because it had no record of the respondent’s facsimile (or her subsequent phone calls to the applicant).  However, the Tribunal is not restricted to the documents which were before the Trustee, nor is it confined to the manner in which the applicant addressed the subject matter: Commonwealth Superannuation Scheme Board v Dexter [2004] FCA 1434 at [59]-[60]; Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 at 387, at [132]-[133]; Seafarers’ Retirement Fund v Oppenhuis (1999) 94 FCR 594 at 598-599.

41                  In this case the Tribunal had before it not only the facsimile, but also substantial documentation evidencing the respondent’s emotional and financial dependency on the deceased.  It was open to the Tribunal to make a finding of dependency based on this additional evidence, particularly given the applicant’s implied concession (in its submissions in a letter to the Tribunal dated 27 April 2004) in relation to this evidence as follows:

‘While we now see that there are several people who could have staked a claim in respect of [the deceased’s] superannuation entitlement . . .  We do not believe that communications or correspondence subsequent to the payment are relevant to this Review.’    

42                  The applicant also argued that the Tribunal erred by determining whether the applicant’s decision in relation to dependency was the ‘correct and preferable’ one, rather than whether it was fair or reasonable.  In National Mutual Life Association of Australia Ltd v Jevtovic (unreported, Sundberg J, 8 May 1997), an appeal from the Tribunal in relation to a decision about whether a member was totally and permanently disabled, Justice Sundberg concluded that the Tribunal’s decision showed it failed to understand the nature of its task under s 37.  In particular, the Tribunal said that the ‘role of a tribunal is to decide whether or not the correct or preferable decision has been made’ and Sundberg J held that this was erroneous.  It showed that the Tribunal did not ask itself whether the decisions complained of were fair and reasonable in the circumstances, but whether in its opinion the respondent was totally and permanently disabled.  In this case, however, the Tribunal does not expressly characterise its role in this way, nor does the reasoning in the decision support such a reading.  The Tribunal directed its mind to the task imposed upon it by s 37(6) and to its function under s 37(3).  A fair reading of the Tribunal’s decision as a whole shows that it was aware of the nature of its task under s 37.  There is no basis for concluding otherwise.

43                  The applicant also suggested that the Tribunal erred by taking into account the ‘claim staking’ process.  The applicant submitted that the ‘claim staking’ process was irrelevant because it preceded the Trustee’s decision and, according to the authorities, the Tribunal should have limited itself to considering whether the actual decision of the Trustee was fair and reasonable, as opposed to the process by which the decision was reached: Colonial Mutual Life Assurance Society Ltd v Brayley [2002] FCA 1333; National Mutual Life Association of Australia Ltd v Jevtovic (unreported, Sundberg J, 8 May 1997). 

44                  The applicant’s contention in this respect is not correct.  The Tribunal’s determination refers to the Trustee’s decision not to ‘claim stake’ the respondent (at 9) to explain why the applicant only relied on the claim forms completed by Mrs Hibberd and failed to consider the extensive evidence subsequently submitted by the respondent.  The Trustee had obligations under the Deed to consider paying certain persons and the evidentiary findings of fact, which support such obligations, are relevant.  Therefore, the claim staking process is relevant because it impacted on the applicant’s decision to pay the benefit to Mrs Hibberd, which the Tribunal found was unreasonable.

45                  Finally, it was submitted by the applicant that the Tribunal took an irrelevant consideration into account when it found that the respondent was a dependant because there was a ‘substantial level of financial interdependency’ between the respondent and the deceased (p 10), on the ground that Rule 13.3 of the Deed makes no reference to ‘financial interdependency’.  However, when the whole of the determination is taken into account (including the reference to ‘financial dependency’ on p 3 of the decision) it is clear that the words ‘financial interdependency’ are used in the context of the full definition of ‘dependant’ in Rule 1.  This definition includes a person who is wholly or partially dependent on the deceased and someone who has a legally enforceable right to look to the member for financial support (see subsection (c) and (d) of definition in paragraph 13).  

46                  The Court should not be concerned with ‘looseness of language’ or ‘unhappy phrasing’ when the substance of a finding is clear: see Wu Shan Liang at 272; Pozzolanic at 287.  The issue of ‘financial interdependency’ is a relevant consideration.  Further, the respondent’s submission that even if the issue of ‘financial interdependency’ constitutes an irrelevant consideration the Tribunal’s error would not have materially affected the Tribunal’s determination appears correct because the Tribunal had already decided that the respondent was a dependant on the basis that she was a de facto partner of the deceased and was the only party who satisfied the definition of ‘dependant’.

Ground (d) - Failure to consider relevant facts

47                  The applicant submitted that the Tribunal failed to have regard to a number of relevant matters when making its decision, including that:

(a)        the facsimile was not acted upon by the applicant;

            (b)        Mrs Hibberd was identified by the deceased as the sole beneficiary to the benefit and although this nomination was not binding on the applicant it appeared regularly on statements provided to the deceased and remained unaltered.  Accordingly it was reasonable for the applicant to send Mrs Hibberd the claim form;

            (c)        the claim form Mrs Hibberd completed did not contain any details of dependants, even though this had been specifically requested in the cover letter sent out with the claim form and in Section B of the form itself.  The applicant was entitled to rely on the information provided in the claim form when making its decision;

            (d)                    the death certificate of the deceased stated that he had never married and had no children;

            (e)        the contention that the Tribunal failed to consider the respondent’s direction to ‘[p]lease send a copy of the Claim Form at your earliest convenience, to his mother and beneficiary’ in the facsimile.  Also, it was alleged that the Tribunal failed to consider the facsimile in light of respondent’s letter dated 18 December 2001 to the former employer of the deceased asking for advice as to which Fund covered the deceased with ‘so that his family can administer his estate’ and the respondent’s letter of 9 December 2002 to Mrs Hibberd, where the respondent says ‘I’m wondering how Terry’s superannuation has progressed and whether you are still agreeable to sharing some.’;

            (f)         that payment of the benefit was in accordance with the Rules in the Deed and the Superannuation Industry (Supervision)Regulations 1994; and

            (g)        the length of time between payment of the benefit and lodgement of the complaint by the respondent (8 months).

48                  The ground of failure to take into account relevant considerations is only made out if the decision-maker fails to take into account a consideration it is bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39.  The respondent argued that the matters identified above are matters the Tribunal was entitled, but not bound, to take into account.  In reply, the applicant said that it could be implied that it was necessary for the Tribunal to consider these matters because they are fundamental to the assessment of whether the failure to notify the applicant of the payment was unreasonable. 

49                  The Complaints Act does not expressly identify specific considerations which the Tribunal is bound to consider.  The relevant considerations are therefore determined by the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40.  The purpose of the Complaints Act is to ensure members and beneficiaries are not adversely affected by unfair and unreasonable decisions of insurers and trustees: see s 14 and s 37.  The Complaints Act does not require, either expressly or by necessary implication, that the above matters have to be taken into account by the Tribunal in its assessment of whether the failure to notify the applicant of the payment was unreasonable. 

50                  In any event, it is clear that the Tribunal did consider each of the matters referred to by the applicant.  The Tribunal’s decision expressly states that it considered all submissions and took all evidence into account (at 8) and all of the matters referred to above formed part of this evidence.  The Tribunal expressly considered matters arising from the facsimile, the content of the claim form completed by Mrs Hibberd and the applicant’s reliance on this information. 

51                  The Tribunal also stated that the evidence before it was extensive and could only be briefly summarised in the determination (at 9).  The fact that a Tribunal does not refer, or does not refer in detail, to some particular aspect of the case does not mean that it has escaped the Tribunal’s attention: in Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 Fox J held that ‘It is not in anyone’s interests that that the . . . Tribunal be expected to set out every consideration which passes through [its] mind, although some, and usually the most significant, will be expressly dealt with’.  In this case the Tribunal clearly considered all of the most significant aspects of the matter before it.

52                  Moreover, even if the matters referred to by the applicant were not considered and were relevant considerations, I am of the opinion that they were not so material as to have affected the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40. 

53                  The applicant also made further submissions in relation to the approach which the Tribunal took to the facsimile.  These submissions essentially go to the weight, which the applicant contends ought to have been given to certain aspects of the evidence, not relevancy.  Issues of weight to be given to evidence do not generally give rise to a question of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357; Hourn v Farm Plan Pty Ltd [2003] FCA 1122 at [16].  The weight the Tribunal placed on the evidence and the inferences it drew from the material were open to it. 

Grounds (e), (f) and (i) - Tribunal’s decision to substitute its own decision

54                  Essentially, the applicant submitted the Tribunal’s decision to substitute its own decision and find that the respondent was entitled to the whole of the benefit as contrary to s 37(3), (4) and (5) of the Complaints Act

55                  Section 37(3) relevantly provides that the Tribunal must make a determination in writing either affirming the decision, remitting the decision for reconsideration, varying the decision or setting aside the decision and substituting one of its own.  Further, s 40 requires that the Tribunal ‘give written reasons for its determination’.  Under Rule 13.3 of the Deed the applicant has the power to pay the deceased’s dependants and/or his legal personal representative ‘to the exclusion of the other or others and in such manner and proportions as the Trustee in its discretion determines’ and the Tribunal has the same power: s 37(1).  The applicant submitted that, in light of these provisions, once it determined that the decision of the applicant should be set aside the Tribunal was obliged to separately consider the persons who should be paid the benefit and the relative proportions of such payment between those persons.

56                  The applicant’s submission is incorrect.  The Tribunal is not required to set out in writing all of the decisions that could flow from the exercise of its discretion under Rule 13.3 and its reasons for not reaching each of the possible decisions: Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 at 346.  The statutory requirement is to give written reasons for its determination and this requirement has been satisfied.  In its reasons the Tribunal considered all of the evidence and submissions and held that the respondent was the only party to the action who satisfied the definition of a dependant and she was therefore entitled to payment of the benefit.  It also held that Mrs Hibberd was not a dependant and Ms Paolucci was not a de facto partner or a dependant.  Having regard to these findings, the Tribunal was not required to separately consider whether each of the joined parties should be paid the benefit; it was sufficient for the Tribunal to find that the respondent had an entitlement and to set out the basis for that entitlement.

57                  Under s 37(4) the Tribunal’s power to make a determination may only be exercised ‘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’.  The applicant submitted that the Tribunal’s decision that the respondent was entitled to the whole of the benefit went beyond ensuring that the unfairness and unreasonableness it identified no longer existed, given that under the Deed a dependant has no automatic right to payment of the benefit nor any basis for priority payment.  There is no basis for this submission, as the decision that the respondent was entitled to the whole of the benefit was clearly open to the Tribunal on the material before it.

58                  The applicant also argued that the Tribunal erred because payment of the benefit to the respondent would not be practical.  This submission was based the fact that the benefit has already been paid to Mrs Hibberd and she has paid tax due on that amount, which means that the applicant could only give effect to the decision if it instituted recovery proceedings against Mrs Hibberd or made a second payment of the benefit.  This submission does not take into account the fact that the focus of the practicability enquiry under s 37(4) is on the complainant, not on the Trustee.  In this case, the substituted decision places the complainant/respondent in the same position she would have been in if the unfairness or unreasonableness did not exist.  The Complaints Act contemplates decisions being varied and substituted decisions being made.  There are courses open to the applicant.

59                  Another argument advanced by the applicant was that the Tribunal contravened Rule 36.2 of the Deed and, accordingly, s 37(5) of the Complaints Act.  Under Rule 36.2 a person ceases to be a member of the Fund when ceasing to be entitled to a benefit.  Section 37(5) provides that in exercising its powers the Tribunal must not do anything that would be ‘contrary to law, to the governing rules of the fund concerned’.  The applicant argued that the deceased ceased to be member on the date the benefit was paid to the estate, therefore, the Tribunal could not grant an entitlement to the respondent when it made its determination because the deceased was no longer a member of the plan.  The respondent contends that these submissions are incorrect and misconceive the operation of the statutory scheme. 

60                  The applicant’s submissions ignore the fact that under s 41(3)(b) of the Complaints Act the decision of the Tribunal is taken to have had effect ‘on and from the day on which the original decision has or had effect’, i.e. the applicant’s decision to pay the benefit is set aside and substituted by the Tribunal’s decision with retrospective effect.  Further, the Complaints Act expressly contemplates complaints about decisions in respect of former members of a fund.  If the applicant’s interpretation were correct the Tribunal’s powers to vary or substitute an unfair and/or unreasonable decision of a trustee would be rendered nugatory in all cases concerning a former member of a plan and in relation to a death benefit that had been paid.  This cannot have been intended by Parliament as it would defeat the purpose of the Complaints Act.

61                  The applicant also submitted that if it were required to pay a second death benefit in relation to the deceased this would constitute an award of damages and be contrary to Rules 40.1 and 8 of the Deed.  These rules stipulate how a benefit is to be calculated and debited or credited to an account and do not allow for a benefit to be increased or paid twice.  Again, this misconceives the operation of the statutory scheme.  The Tribunal set aside the original decision to pay the benefit to the estate; it did not order a change in the way the benefit is paid, nor that the amount be increased or paid twice.  It is not an award of damages.  The Tribunal’s decision is consistent with its statutory function and the Rules must be interpreted subject to the statutory right of the Tribunal to vary and substitute a trustee’s decision in respect of the payment of a death benefit. 

Conclusion

62                  In summary, there is no error in the Tribunal’s decision and none of the grounds of appeal are made out.  The appeal will be dismissed. 

Associate:

Dated:              27 September 2005