FEDERAL COURT OF AUSTRALIA

Kowalski v Superannuation Complaints Tribunal [2010] FCA 473

THE COURT ORDERS THAT:

1.                  The applicant’s application by notice of appeal dated 13 October 2009 be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     On 14 October 2009, Mr Kazimir Kowalski filed a notice of appeal in which he named the Superannuation Complaints Tribunal and AMP Superannuation Limited (ABN 31008 414 104) as respondents. The Tribunal filed a notice of appearance submitting to the jurisdiction of the Court, save and except in relation to costs.

2                     On 30 December 2009, AMP Superannuation Limited (the second respondent) filed a notice of motion seeking an order pursuant to O 20 r 5(1)(a) of the Federal Court Rules that the proceeding be dismissed. At the hearing, the second respondent submitted that it relied on O 20 r 5(1)(b) rather than O 20 r 5(1)(a). The second respondent sought, in the alternative, an order that judgment be entered in its favour pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth). The ground of the application, as stated in the second respondent’s notice of motion, is that the decision complained of by the applicant is not a “determination” of the Superannuation Complaints Tribunal within the meaning of s 46(1) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (“the Act”). It is alleged that the decision is an anterior administrative decision of an officer of the Tribunal from which no “appeal” arises under s 46 of the Act.

3                     The applicant’s notice of appeal contains the following statement:

“1.        Take notice that the applicant appeals from the decision or determination of the Superannuation Complaints Tribunal given on 9 October 2009 at level 15, 31 Queen Street, Melbourne, Victoria, 3001, by which the Tribunal decided or determined that ‘in your case, the original decision was made on 18 August 1992. As described above, for the purposes of section 14(6A), any later decisions are taken to have been made on the same date, ie 18 August 1992. On this basis, section 14(6A) precludes the Tribunal from dealing with your complaint because the trustee’s decision was made prior to 1 November 1994. ”

4                     The applicant’s notice of appeal goes on to identify what are said to be four questions of law which are raised on the appeal. The notice of appeal is said to be in the form of Form 55A of the Rules and contains a reference to O 53 r 2 and O 59 r 1. Order 53 r 2 deals with appeals from the Administrative Appeals Tribunal. Appeals from the Superannuation Complaints Tribunal are governed by O 53B of the Rules and that order picks up, with necessary changes, the rules in O 53. The effect of the Rules is that if the applicant has an appeal from the Superannuation Complaints Tribunal then he has used the correct form.

5                     The “decision” under challenge is embodied in a letter from Mr Joe Faife, who is described as the Acting Assistant Director of the Superannuation Complaints Tribunal, to the applicant dated 9 October 2009. It is necessary to set out the whole of the letter:

“I refer to your facsimiles dated 29 September 2009 regarding this matter.

The Tribunal has considered your arguments and must confirm that it does not have jurisdiction to deal with your complaint.

Firstly, the Tribunal notes that you have not provided any evidence to support your allegation that the decision made on 18 August 1992 to decline your disability claim was not in respect of your membership in the Mitsubishi Motors Australia Staff Superannuation Fund.

As advised in the Tribunal’s letter dated 25 September 2009, you were advised in each of your previous complaints (SCT file numbers 99-C0903\1 & 03-01486) that the Tribunal is prevented by section 14(6A) of the Superannuation (Resolution of Complaints) Act 1993 (SRC Act) from dealing with your complaints because the Trustee’s decision was made prior to 1 November 1994.

The effect of sections 14(6C) and 14(6D) of the SRC Act, is that, where more than one decision has been made by a Trustee in regards to a TPD benefit, the date of the decision for the purposes of section 14(6A) is that of the original decision.

Section 14(6C) specifies that the decision for the purposes of section 14(6A) is the original decision. Section 14(6D) further specifies that, where a later decision has been made as a result of a complaint about the original decision, the new decision is taken to have been made at the time when the original decision was made.

In your case, the original decision was made on 18 August 1992. As described above, for the purposes of section 14(6A), any later decisions are taken to have been made on the same date, ie 18 August 1992. On this basis, section 14(6A) precludes the Tribunal from dealing with your complaint because the Trustee’s decision was made prior to 1 November 1994.

In relation to your comments regarding Mr David Cowdroy’s letter of 13 June 2003 and Mr G Cox’s application to SGIC Superannuation Services on 3 March 1992, please note that your comments have no bearing to the Tribunal’s decision that it does not have jurisdiction to deal with your complaint. The Tribunal’s decision is based on evidence on file which shows that the Trustee of the Mitsubishi Motors Australia Staff Superannuation Fund declined your TPD claim on 18 August 1992.

Appeal Rights

If you are dissatisfied with the Tribunal’s decision that the complaint is outside the Tribunal’s jurisdiction you may apply to the Federal Court for judicial review of that decision. An application for review must be made not later than the 28th day after the day on which a copy of the Tribunal’s decision is given to you or within such further period as the Federal Court allows.

The Tribunal cannot advise you whether you should apply to the Federal Court for judicial review. You may wish to consult a Solicitor, the Legal Aid Commission or a Community Legal Service to obtain further advice.

If you are not satisfied with our investigation of your complaint, you can contact the Commonwealth Ombudsman. The Ombudsman has an office in every State and Territory. Complaints can be made in writing, by telephone or by using the Ombudsman’s on-line complaint form.

The Ombudsman’s office can be contacted by telephone on 1300 362 072 for the cost of a local call. The addresses and further information about the Ombudsman can be found on the Internet at www.comb.gov.au.”

6                     The assertion made in the second respondent’s notice of motion is that the “decision” under challenge was made by an officer of the Tribunal rather than the Tribunal itself. The only evidence before me as to that matter is the letter itself, and it is not clear from the letter that the decision was made by an officer of the Tribunal rather than the Tribunal itself. I will proceed on the assumption most favourable to the applicant, namely, that the “decision” was made by the Tribunal rather than an officer of the Tribunal. In either event, for reasons I will give, the purported appeal must be dismissed.

7                     In Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18, Perram J made the point that O 53 does not contain a rule allowing a respondent to file a notice of objection to competency as does the Order dealing with applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (O 54 r 4) or the Order dealing with migration decisions under the Migration Act 1958 (Cth) (O 54B r 3). Nor does O 53 itself contain a rule which provides for summary judgment, a stay or dismissal of a proceeding. Order 54 r 6 and r 7 provide:

“6        Staying or dismissal of applications

            In applying Order 20, rule 4 to an application under the Administrative Decisions (Judicial Review) Act 1977, the rule must be interpreted as if paragraph (1) (a) of the rule read ‘no reasonable basis for the application is disclosed’.

7          Application for summary judgment, stay or dismissal

(1)        A party may apply to the Court:

(a)        for a judgment in an application for an order of review under Order 20, rule 2 or section 31A of the Act; or

(b)        to have an application for an order of review stayed or dismissed:

(i)         under Order 20, rule 4 or 5; or

(ii)        on a ground set out in section 10 of the Administrative Decisions (Judicial Review) Act 1977; or

(iii)        in the exercise of the Court’s discretion.

(2)        An application under this rule must be made within 14 days after the party is served with the application for an order of review.”

Order 54B contains broadly similar rules (O 54B r 5 and r 6).

8                     Nevertheless, his Honour considered that it was open to him to utilise s 31A(2) of the Federal Court of Australia Act 1976 (Cth) where the facts fell within the terms of that subsection.

9                     In this case, I can proceed in the same way and there is in fact an application under s 31A(2). Where, as here, the facts fall within the subsection it is open to me to make an order of dismissal.

Issues on the application

10                  The Tribunal’s letter dated 9 October 2009 refers to various subsections in s 14 of the Act. The relevant subsections of s 14 are as follows:

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

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

…

(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 2 years after the making of the decision to which the complaint relates.

…

(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.”

Section 37 is also relevant. It deals with complaints under s 14 and 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).

…

(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.

…

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

(a)        the complainant; and

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

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

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

was fair and reasonable in the circumstances.”

On the face of it, the Tribunal’s decision here was not an exercise of its “determination-making power”.

11                  Section 46 provides:

“46  Appeals to Federal Court of Australia from determinations of the Tribunal

(1)        A party may appeal to the Federal Court, on a question of law, from the determination of the Tribunal.

(2)        An appeal by a person under subsection (1) is to be instituted:

(a)        not later than the 28th day after the day on which a copy of the determination of the Tribunal is given to the person or within such further period as the Federal Court (whether before or after the end of that day) allows; and

(b)        in accordance with rules of court made under the Federal Court of Australia Act 1976.

(3)        The Federal Court is to hear and determine the appeal and may make such order as it thinks appropriate.

(4)        Without limiting by implication the generality of subsection (3), the orders that may be made by the Federal Court on an appeal include an order affirming or setting aside the determination of the Tribunal and an order remitting the matter to be determined again by the Tribunal in accordance with the directions of the Court.

(5)        The Federal Court must not make an order awarding costs against a complainant if the complainant does not defend an appeal instituted by another party to the complaint.”

12                  In Ray v Superannuation Complaints Tribunal (2004) 138 FCR 548 at 560 [48], [49], Goldberg J said:

“[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 (2nd ed), ‘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.”

Goldberg J’s decision is directly on point. With respect, I think it is correct and I would follow it.

13                  The applicant’s appeal has no reasonable prospect of success and it should be dismissed (see s 31A(2) of Federal Court of Australia Act 1976 (Cth)).

14                  The applicant’s “appeal” is an application in the original jurisdiction of this Court. It is not part of a proceeding which is arguably within the jurisdiction of this Court. It is the proceeding. Plainly, it is a purported appeal under s 46 of the Act and neither party has suggested that it can be treated as some other form of proceeding. In those circumstances, I decline the second respondent’s invitation to rule that, having regard to the facts and the provisions of s 14 of the Act, no other form of proceeding would have reasonable prospects of success.

Conclusion

15                  The order of the Court will be that the applicant’s application by notice of appeal dated 13 October 2009 be dismissed.

Associate:

Dated:         14 May 2010