FEDERAL COURT OF AUSTRALIA

Merkel v Superannuation Complaints Tribunal [2010] FCA 564

THE COURT ORDERS THAT:

1.                  The title to the proceeding be amended by changing the surname of the second respondent from “Powers” to “Power”.

2.                  The decision of the second respondent on behalf of the first respondent, communicated by letter to the applicant’s solicitors dated 19 June 2009, that the complaint lodged with the first respondent on or about 5 September 2008 related to the management of a fund as a whole, and therefore fell outside the jurisdiction of the first respondent by reason of s 14(6) of the Superannuation (Resolution of Complaints) Act 1993 (Cth), be set aside.

3.                  The complaint lodged by the applicant with the first respondent on or about 5 September 2008 be referred to the first respondent with a direction that the first respondent exercise its powers and functions with respect to that complaint according to law.

4.                  The first respondent and the second respondent pay one half of the applicant’s costs of the proceeding.

5.                  The third respondent pay one half of the applicant’s costs of the proceeding.

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

The nature and history of the proceeding

1                     If attention had been given to legal obligations, and some common sense had been applied, there would have been no need for the applicant, Ms Merkel, to bring this proceeding.  Ms Merkel is a widow.  Her late husband was a member of a superannuation scheme, of which Telstra Super Pty Ltd (“Telstra Super”) is the trustee.  At the date of Mr Merkel’s death, there was a substantial sum standing to his credit in the superannuation fund.  On the basis of instructions he had given while still alive, about half of the sum was invested in Telstra Super’s growth fund, and the remainder in its balanced fund.  After Mr Merkel died, there was a delay of a few months before Telstra Super made a payment to Ms Merkel, during which the sum standing to Mr Merkel’s credit increased substantially, because the value of Telstra Super’s investments in its growth fund and its balanced fund increased.  Shortly before making a payment to Ms Merkel, Telstra Super took away the increase and replaced it with an amount representing interest on the sum outstanding at the date of death.  Telstra claimed it took this step because it had a rule, or policy, that the amount to which any deceased member was entitled was to be moved into a cash management fund and to earn interest only from the date of the member’s death.  The result was that Ms Merkel received a sum substantially less than the sum that had been standing to the credit of Mr Merkel before the increase was removed.

2                     Ms Merkel lodged a complaint with the Superannuation Complaints Tribunal (“the Tribunal”).  In the exercise of a statutory power, the Tribunal requested that Telstra Super provide it with documents.  It informed Telstra Super that those documents would be made available to Ms Merkel by way of the provision of procedural fairness.  Without making the documents available to Ms Merkel, staff of the Tribunal made a decision that her complaint fell outside the Tribunal’s jurisdiction, on the basis that it related to the administration of the fund administered by Telstra Super as a whole.  Solicitors acting on behalf of Ms Merkel protested this decision, asked that it be reconsidered, and requested access to documents provided by Telstra Super.  They were not given the documents.  Staff of the Tribunal took the view that Ms Merkel would have to make an application pursuant to the Freedom of Information Act 1982 (Cth) (“the FOI Act”) to obtain the documents.  Without giving Ms Merkel any chance to be heard about the question, without making available any of the Telstra Super documents, and without any member of the Tribunal being involved in the decision-making process, the director of the Tribunal, Ms Fiona Power (the second respondent, wrongly designated as “Fiona Powers” in the title to the proceeding) affirmed the decision that the complaint was outside the jurisdiction of the Tribunal, because it related to the administration of the fund as a whole. 

3                     Because of uncertainty about whether there has been a “determination” of the Tribunal, for the purposes of s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (“the SRC Act”), the document by which Ms Merkel commenced her proceeding in this Court invokes the jurisdiction conferred on this Court by three statutes.  The first is the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).  The second is s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”).  The third is s 46 of the SRC Act itself, which permits an appeal to this Court on a question of law from a determination of the Tribunal. 

4                     The Tribunal and Ms Power, as the first and second respondents to the proceeding, entered an appearance by which they submitted to any order the Court might make, except as to costs.  Telstra Super, the third respondent, entered an appearance. 

5                     At the same time as she filed written submissions, Ms Merkel sought leave to rely on an amended application and notice of appeal.  She sought to have the Tribunal’s decision quashed or set aside.  She sought a declaration that the Tribunal ought to have determined that it could proceed with the complaint and ought to deal with the complaint in accordance with its statutory powers.  She sought an order remitting the matter to the Tribunal, an order requiring the Tribunal to deal with her complaints and to review Telstra Super’s conduct in accordance with its statutory powers.  She also sought an order for costs in her favour.  There are two principal grounds on which this relief is sought.  The correctness of the decision that the complaint is beyond the jurisdiction of the Tribunal is challenged.  Ms Merkel also alleges that the Tribunal denied her procedural fairness. 

6                     When it filed its written submissions, Telstra Super conceded that there was a denial of procedural fairness, and that the case should be remitted to the Tribunal on that basis.  Telstra Super also indicated its intention to invite the Tribunal to deal with the question whether the complaint was beyond the Tribunal’s jurisdiction upon the remitter.  It seemed to me inappropriate to deal with the case in this way.  If in fact the complaint is beyond the Tribunal’s jurisdiction there would be no point in remitting the matter to it.  To do so would only incur greater costs.  Accordingly, I requested my associate to advise Telstra Super by letter that I proposed to deal with that issue at the hearing, and to invite Telstra Super to make any submissions it wished to make about that issue.  That letter was dated 11 December 2009.  Telstra Super did not respond to it by filing any further written submissions.  At the hearing on 10 March 2010, counsel for Telstra Super informed the Court that Telstra Super conceded that the complaint was not beyond the jurisdiction of the Tribunal.

7                     Also in its written submissions, Telstra Super sought an order that the Tribunal pay the costs of both Ms Merkel and Telstra Super of this proceeding.  This was on the basis that Telstra Super was not responsible for the denial of procedural fairness on the part of the Tribunal.  As a consequence, I caused my associate to advise the Tribunal that an order for costs had been sought against it, and that it should be prepared to attend the hearing on 10 March 2010 and make any submissions it wished to make about such an order.  As a consequence, the Tribunal and Ms Power filed a notice of appearance, indicating that they intended to appear at the hearing.  The Chairperson of the Tribunal did appear at the hearing, on behalf of both the Tribunal and Ms Power.  She did not seek to address any submissions at all, either about the grounds of Ms Merkel’s application, or about the question of costs.  I requested that she address the Court about some aspects of the matter, and she did so.

The legislation

8                     The Tribunal is established by s 6 of the SRC Act.  By s 7(1), the Tribunal consists of a Chairperson, a Deputy Chairperson and at least seven other members.  By s 7A(1), the Chairperson is the executive officer of the Tribunal, responsible for the overall operation and administration of the Tribunal.  Section 9(1) of the SRC Act provides as follows:

Subject to section 10, for the purposes of the performance or exercise of its functions or powers under this Act in relation to a particular complaint, the Tribunal is to be constituted by one or more, but not more than 3, Tribunal members selected by the Tribunal Chairperson.

9                     Section 10 provides for a mechanism for dealing with conflicts of interest as a result of the financial interests of the Chairperson, a Deputy Chairperson or members of the Tribunal.

10                  Section 12(1) of the SRC Act provides:

The functions of the Tribunal are:

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

(b)        if the complaint cannot be resolved by conciliation ― to review the decision or conduct to which the complaint relates;

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

11                  Part 4 of the SRC Act contains provisions relating to the making of complaints to the Tribunal and to how those complaints are to be dealt with.  Section 14AA provides:

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

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

12                  Crucial to Ms Merkel’s case are certain provisions of s 14 of the SRC Act:

(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.

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

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

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

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

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

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

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

...

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

13                  There is a definition in s 4 of the word “decision”.  That definition makes it clear that the word “decision” in s 14(1) includes both the making and the failure to make a decision, as well as engaging in any conduct, or failing to engage in any conduct, in relation to making a decision.  The word “fund” is defined in s 3(2) to mean “a regulated superannuation fund or an approved deposit fund”.  The definitions of “excluded complaint” and “excluded subject matter” found in s 3(2) of the SRC Act allow for the making of regulations to declare that particular types of complaints, or particular subject matter, are excluded for the purposes of the SRC Act.  No reference was made to any such regulations relevant to the present case.  There is a definition in s 3(2) of “death benefit”, that appears to comprehend the amount payable to Mr Merkel’s beneficiary on or after his death.  Section 3(2) also provides that “trustee in relation to a complaint, means the trustee of the fund to which the complaint relates”.  Importantly, for present purposes, there appears to be no statutory definition that would assist in determining whether a complaint “relates to the management of a fund as a whole”, for the purposes of s 14(6). 

14                  There are other provisions in Pt 4 of the SRC Act relating to complaints of other kinds.  It is unnecessary to refer to them in detail.  Section 15(1) restricts the class of persons who may make complaints under s 14.  The class includes a person who has an interest in a death benefit.  Section 17(1) requires the Tribunal, after a complaint under s 14 is delivered to its office, to acknowledge receipt of that complaint by written notice to the complainant and to give written notice to the trustee concerned, identifying the complainant, giving details of the complainant and informing the trustee of the trustee’s obligations under s 24.  By s 18(1), the parties to a complaint under s 14 include the complainant and the trustee. 

15                  Section 24(1) of the SRC Act imposes on the trustee in relation to a complaint under s 14 an obligation, within 28 days after receiving notice of a complaint from the Tribunal, to give the Tribunal copies of all documents or parts of documents in the possession or control of the trustee, considered by the trustee to be relevant to the complaint. 

16                  Section 27 of the SRC Act provides:

If:

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

(b)        the complaint has not been withdrawn; and

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

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

17                  If conciliation has not been successful in resolving a complaint, s 32(1) of the SRC Act requires the Tribunal to fix a date, time and place for a review meeting.  By s 32(2), the Tribunal must write to the parties inviting written submissions by a specified date.  Sections 33, 34 and 35 make it clear that a review meeting will ordinarily be conducted on written submissions, but there is power to the Tribunal to allow the parties to make oral submissions, including oral submissions by telephone, closed-circuit television or other means of communication. 

18                  Section 37 of the SRC Act sets out the powers of the Tribunal in relation to a complaint under s 14:

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

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

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

...

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

(a)        affirming the decision; or

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

(c)        varying the decision; or

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

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

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

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

(a)        the complainant; and

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

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

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

was fair and reasonable in the circumstances.

19                  Section 40 requires the Tribunal to give written reasons for its determination.  Section 46(1) provides that a party may appeal to this Court on a question of law from a determination of the Tribunal.

20                  Section 59(1) of the SRC Act provides, so far as relevant to this case:

Despite subsection 9(1), the powers of the Tribunal under...and sections...27...are to be exercised on behalf of the Tribunal by the Tribunal Chairperson or Deputy Chairperson or by a member of the staff of the Tribunal who is made available to the Tribunal under subsection 62(2) and is authorised by the Tribunal Chairperson to exercise the powers concerned.

21                  Section 62(2) provides that the Australian Securities and Investments Commission (“ASIC”) must make available to the Tribunal such staff and facilities as are necessary or desirable to enable the Tribunal to perform its functions.  (For the relevant definition of ASIC, it is necessary to look at s 3(1) of the SRC Act and at s 10(1) of the Superannuation Industry (Supervision) Act 1993 (Cth).)

The facts

22                  The hearing was conducted on the basis that any necessary facts could be determined from the documents contained in a court book, prepared jointly by the legal representatives of the parties.  To some extent, the court book contains the documents supplied to the Tribunal by Telstra Super.  The facts were not controversial between the parties, to the extent that it is necessary to make findings of fact for the purposes of resolving the controversy in this proceeding, although the parties may well differ in their characterisations of the events that occurred.

23                  Mr Merkel died on 13 January 2007.  He was a member of the Telstra Superannuation Scheme, which was governed by a trust deed.  In particular, he was a member of a division of that scheme known as Telstra Super Personal Plus, which provides for accumulation benefits, determined by reference to investment earnings, as distinct from defined benefits.  At the date of his death, Mr Merkel had an account balance standing to his name in the fund of $400,787.68.  To that amount was added the proceeds of a life insurance policy, in the sum of $7,447.00, making a total of $408,234.68.  In accordance with Mr Merkel’s exercise of “Member Investment Choice”, slightly more than half of the account balance was invested in a growth option and slightly less than half in a balanced investment option.  Mr Merkel made no choice to have any part of the sum standing to his credit invested in a cash (ie interest-bearing) option. 

24                  Telstra Super learned of Mr Merkel’s death on 22 February 2007.  There was some delay in the making of a payment, the reasons for which are not material to this proceeding.  On 3 August 2007, a cheque for $418,793.44 was forwarded to Ms Merkel.  This amount was calculated by adding to the sum of $408,234.68 the sum of $10,558.76 by way of interest for the period from 13 January 2007 to 30 July 2007. 

25                  In the meantime, Ms Merkel sought financial advice from Telstra Super Financial Planning Pty Ltd, a company that counsel for Telstra Super told the Court is a subsidiary of Telstra Super.  The advice was given in a document dated 28 June 2007.  In that document, Ms Merkel was advised that there was $212,554.00 standing to the credit of Mr Merkel’s estate in the balanced investment fund, and $223,618.00 standing to the credit of Mr Merkel’s estate in the growth investment fund.  These two amounts totalled $436,172.00.  The document also advised Ms Merkel:

When John’s Death Benefit is paid, it will be re-calculated with the benefit switched to the Cash Option from John’s date of death to avoid possible negative investment returns.  This value will be lower than the amounts used in this advice due to recent strong investment returns.  We are unable at this time to provide an estimate of John’s death benefit.  Modelling may therefore not be accurate and should be re-visited when final details are known.

The figures for Mr Merkel’s entitlement were also accompanied by a note as follows:

Note - the above account balance is based on the investment mix of Balanced & Growth.  When the benefit is paid, it will be re-calculated with the benefit in the Cash Option from John’s date of death.  This will be lower than the amounts above due to recent strong investment returns.  We are unable at this time to provide an estimate of John’s death benefit and so advice has been provided on the above figures.

26                  By letter dated 28 November 2007, Ms Merkel’s solicitors made a number of complaints to Telstra Super about the manner in which Mr Merkel’s entitlements have been handled.  Among those complaints was the transfer of the benefit to a cash management account, resulting in a loss to Ms Merkel due to inferior returns.  The letter requested advice as to the date of the transfer of the benefit into the cash management account and the basis upon which the benefit was transferred, including whether such transfer was a requirement under the trust deed.  Telstra Super responded to this letter by letter dated 18 February 2008.  That letter claimed there was no evidence to support the assertion of inferior returns, no suggested basis of comparison of returns, and no quantification of loss.  It then proceeded:

In any event, and in line with industry practice, the Trustee has previously determined as a matter of policy that following the death of a member, the amount of the benefit payable be transferred to the cash investment option until the benefit is paid.  The rationale for the Trustee’s decision was to ensure that no death benefit ultimately paid would be less than the value of the benefit at the date the member died.  The transfer of the benefit to the cash investment option mitigates against the possibility of the ultimate beneficiary(ies) incurring negative returns during the period from the date of death to the date of payment of the benefit.  Part 1.4 of the Trust Deed permits the exercise of such discretion.  Accordingly, the assertion that you have suffered a loss falls away.

27                  Further correspondence passed between Ms Merkel’s solicitors and Telstra Super.  In a letter dated 14 July 2008, Telstra Super asserted that the figure paid to Ms Merkel was calculated as at the date Telstra Super determined to make a payment to her as the relevant beneficiary “and takes into account the Trustee’s policy of eliminating investment risk from a deceased member’s balance for the period from the date of death to the date of payment of the Death benefit to the beneficiary.”  On 13 August 2008, the complaints officer of Telstra Super determined Ms Merkel’s complaint in favour of Telstra Super.  The letter containing this determination included the following passage:

In February 2003, the TSPL Board resolved that following the death of a member, investment of the death benefit payable was to be transferred to the cash investment option with effect from the date of death.  The rationale underlying this decision was to ensure that the death benefit ultimately paid was not to be less than the value of the benefit at the date a member died.  It was noted in a period of negative returns that such an outcome can seriously affect the financial wellbeing of potential beneficiaries, particularly surviving spouses.  Further, it was noted that potential beneficiaries are unable to instruct the Trustee to change the investment option.  Such a policy also reflects the Trustee’s fiduciary obligation to act in the best interests of members and beneficiaries.

28                  No reference was made to a document subsequently supplied by Telstra Super to the Tribunal, entitled “Member Services Business Rules Death Claims” and dated 11 April 2006.  It is possible that no reference was made to this document, because it is labelled “Draft”.  The document also contains a description of itself as “Initial draft for comment and review”.  The document contains a rule in the following terms:

11.       Payment of Interest

Any member that has passed away will have MIC applied at the cash rate from the date of death (or the date prior to death if member is in Superb), until the date of payment.  An MIC switch to the cash rate is required upon notification of a member’s death.

Interest will be applied on all insurance amounts from the date of death (for internally insured claims) and from the date of receipt of insurance benefits (externally insured claims).

29                  By letter dated 5 September 2008, Ms Merkel’s solicitors forwarded to the Tribunal a registration of complaint form, completed and signed by Ms Merkel.  In the form, the subject of the complaint was described as “Payment Calculation of Account Balance”.  This was explained on the basis that Telstra Super “is refusing to pay the money earned on my late husband’s superannuation account from the date of his death to the date of [sic] they paid out his account balance and death insurance benefit.”  In response to a request to state why she believed that the decision was unfair or unreasonable, Ms Merkel said:

The Fund earned approximately $40,000.00 on my late husband’s superannuation contributions while it remained invested in a growth option.  The Fund did not pay me this money when they paid out my late husband’s superannuation account balance.

30                  The form also advised that further information would be provided in written submissions as part of the complaint process. 

31                  By letter dated 15 September 2008, the Tribunal acknowledged receipt of the complaint and advised that it would be dealt with as soon as possible.  By letter dated 17 November 2008, the Tribunal gave notice to Telstra Super of the complaint, in accordance with s 17 of the SRC Act.  The Tribunal also made a request for documents pursuant to s 24 of the SRC Act.  The letter advised Telstra Super that “in the interests of procedural fairness and for the purposes of dealing with the complaint, all information/ documentation provided to the Tribunal may be given to all parties to the complaint or their representatives.”  The letter also asked Telstra Super:

If you have any concerns relating to the Tribunal’s powers to deal with the complaint, or if you believe the complaint should be withdrawn, please give us your reasons and provide relevant documents on which you rely as part of your response to this Notice.

32                  Also by letter dated 17 November 2008, the Tribunal advised Ms Merkel’s solicitors that it had contacted Telstra Super and asked it to provide information.  The letter advised:

Please note that, in the interests of procedural fairness and for the purposes of dealing with the complaint, all information / documentation provided to the Tribunal may be given to all parties to the complaint or their representatives.

33                  The letter also referred to an explanatory brochure, forwarded at the same time.  This contained advice about the conciliation process.

34                  Telstra Super responded to the request for documents by letter dated 19 December 2008, enclosing a number of documents.

35                  The following passage appears twice in internal documents of Telstra Super forwarded to the Tribunal:

Case Officer:  This complaint does not appear to involve disclosure issues, because the Trustee has advised that there was no availability for potential beneficiaries to change the investment option from cash.  The Trustee’s policy as outlined by the Complaints Officer does not appear to have been exactly followed because it seems that the investment was not switched to cash after notification of the member’s death, instead it was left in the previous investment options which has created the impression of higher investment earnings.  However, if the claim was handled and the amount paid was in accordance with the Trustee’s resolution and the Fund’s standard operating procedures, the matter could be withdrawable as representing management of the fund as a whole.

36                  In a file note dated 2 April 2009, an officer of the Tribunal named Stammers wrote:

Complaint solely involves Trustee action in switching investment option to cash once a member dies.

Trustee has provided an extract of the minutes of meeting held 18/02/2003 when the cash investment policy for deceased members was passed(F 322).

Trustee has also provided a copy of the “Member Services Business Rules - Death Claims” which reflect the policy adopted by he [sic] director (F.322).

In addition the SOA and Financial plan prepared for the deceased’s widow contains advice that it is the trustee policy to pay interest at the cash rate from the date of death of the member (F.298).

There is no evidence of any variation to the policy and therefore I consider that this is a matter that relates to a class of members of the fund as a whole ie. deceased members

I recommend that the complaint be treated as out of jurisdiction because it relates to the management of the fund as a whole section 14(6).

37                  In a file note dated 6 April 2009, another officer of the Tribunal named Stasiak quoted from the Telstra Super minutes of 18 February 2003 as follows:

Following the death of a member.....investment of the benefit payable will be transferred to the cash investment option, irrespective of the actual strategy in place prior to any of the triggering events listed above.

38                  Mr Stasiak then proceeded to quote r 11 from the draft Member Service Business Rules of 11 April 2006 and the passage first quoted in [25] above from the advice given to Ms Merkel.  He recommended that a letter be written, advising that the complaint was a matter that “relates to the management of the fund as a whole” and that, “This is because the Fund’s procedures relating to its investment switching policy upon the death of a member, is [sic] a matter that applies, not specifically to the late Mr Merkel as an individual member of the Fund, but to all Fund members.”  This recommendation was acted on, and a letter signed by Mr Stammers containing those terms was sent.  The letter was dated 7 April 2009 and invited Ms Merkel’s solicitors, if they still believed the complaint was within the Tribunal’s jurisdiction, to provide a written response setting out why they thought the matter should be considered to be within jurisdiction.

39                  On 16 April 2009, Ms Merkel’s solicitor telephoned Mr Stammers twice, asserting that the matter was clearly within jurisdiction and suggesting that someone senior from the Tribunal discuss the matter with him further.  After some internal correspondence, Mr Stammers telephoned Ms Merkel’s solicitor on 28 April 2009, to advise that “our legal area had determined that the complaint was out of jurisdiction as being a matter that related to the fund as a whole.”  The file note of this conversation records that the solicitor “strongly disagreed with the Tribunals [sic] view”.  It also records that the solicitor requested a copy of Telstra Super’s response to the Tribunal’s letter to it.  The Tribunal officer advised that he would have to see what the Tribunal’s policy was.  There is then a file note of 28 April 2009, recording that Mr Stammers had spoken to Ms Power about releasing a copy of Telstra Super’s response to the letter written to it in accordance with s 17 of the SRC Act.  According to the memorandum, Ms Power “advised that I would either need to have the Trustees [sic] consent to release the information or the complainant could seek a copy of the information under FOI.” 

40                  By letter dated 25 May 2009, Ms Merkel’s solicitors made submissions on the question whether the complaint was within the Tribunal’s jurisdiction.  They asserted that the complaint was that the decision to pay a death benefit inclusive of interest, and not at the growth option rate, was unfair or unreasonable.  They submitted that the transfer of Mr Merkel’s benefit into the cash investment option did not happen at all, or did not happen when Telstra Super asserted that the transfer had occurred.  There was a submission that:

regardless of the Respondent’s investment policy, the deceased’s account balance was not in fact invested in the cash option from the date of death, and it was thereby not open to the Respondent to retrospectively do so and thereby reduce the interest that had in fact accrued to the account in paying the death benefit to the Complainant.

41                  By internal memorandum to an officer named Robert dated 26 May 2009, Mr Stammers referred to “fund policy to switch investment option to cash from date of death of member to avoid the risk of negative investment performance while decision made regarding beneficiaries.”  This memorandum said:

Complainant’s solicitor appears to be arguing that it is not reasonable for the Trustee to leave the deceased’s investment options in place until the payment is made and adjust the earnings after they have been derived.

Seems to me that this complaint essentially relates to a fund wide policy however the issue of Trustee actions needs to be considered.  Is the Trustee acting in the best interest of the member in this particular case?

42                  By a memorandum dated 26 May 2009 to Ms Power, an officer named Robert Young requested advice as to how the complaint should proceed.  This memorandum said:

The Fund’s policy is to switch the deceased’s benefit to the cash option from the date of death rather than remain in the selected option.  According to the Fund’s business rules the switch to the cash option should take place once the death has been notified...Whilst this did not happen, the Trustee paid the benefit in accordance with the business rules.

I believe that the matter still remains outside our jurisdiction as the Trustee has paid the benefit in accordance with its policy.  Also the information provided by the Financial adviser clearly indicates that the amount quotes will alter as the benefit will need to be calculated based on the cash option returns.

43                  Ms Power replied that she had reviewed the file and agreed that the complaint was outside the Tribunal’s jurisdiction on the basis that it related to the management of a fund as a whole.  The memorandum referred to the policy to switch a member’s investment to the cash option following the death of the member, “The trigger event is the member’s death and applies regardless of what point in time after the member’s death the Fund actually performed the switch.”  Ms Power requested the preparation of a letter for her signature, advising that the complaint was outside the Tribunal’s jurisdiction.  Such a letter was signed by Ms Power and dated 19 June 2009.  The letter informed Ms Merkel’s solicitors that “the Tribunal remains of the view that the complaint relates to the management of a fund as whole [sic] and that section 14(6) of the SRC Act applies.”  The sentence from Ms Power’s memorandum about the trigger event was repeated.  The two passages from the advice to Ms Merkel, quoted in [25] above, were also set out in the letter.

Denial of procedural fairness

44                  It is an unusual case in which it is necessary to cite authorities as to the fundamental principles relating to the requirements of procedural fairness in the exercise of statutory powers to make decisions affecting rights.  The principles are so well-known that, in the vast majority of cases, it is only necessary to deal with particular points of their application.  In the present case, it is necessary to go all the way to basic principles.  Those principles were stated by McHugh J in Muin v Refugee Review Tribunal [2002] HCA 30 (2002) 190 ALR 601 at [122]-[123]:

Whenever a statute confers on a public official or tribunal the power to do something that affects a person’s rights, interests or legitimate expectations, the official or tribunal must accord procedural fairness to the person affected unless the statute plainly indicates a contrary intention...

Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power.  This does not mean that the source and nature of all material that comes before the decision-maker must be disclosed.  But “in the ordinary case . . . an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made”. [Footnotes omitted]

The passage quoted in the last sentence of that extract is, of course, from the judgment of Brennan J in Kioa v West (1985) 159 CLR 550 at 629.  It is an extremely well-known passage.

45                  The Tribunal’s duty under s 27 of the SRC Act to inquire into a complaint and try to settle it by conciliation, arises when three facts are established.  The first, pursuant to s 27(a), is that a complaint has been made to the Tribunal.  The second, pursuant to s 27(b) is that the complaint has not been withdrawn.  The third, pursuant to s 27(c), is that the Tribunal is satisfied that the Tribunal can deal with the complaint under the SRC Act.  Any authority to make decisions in the exercise of the power given to the Tribunal by s 27(c) to decide whether it was satisfied that the Tribunal could deal with Ms Merkel’s complaint that Mr Stammers or Mr Stasiak had, and that Ms Power had when she affirmed the decision, could only have been derived from authorisation to them pursuant to s 59(1) of the SRC Act as members of the staff of the Tribunal made available under s 62(2), to exercise the powers of the Tribunal under s 27.  Otherwise, those officers and Ms Power had no authority to make the decisions they made at all.  Assuming the existence of the requisite authority, it was authority derived from a statute, the SRC Act.  As the exercise of the authority affected Ms Merkel’s right to make a complaint to the Tribunal, and to have that complaint dealt with, there can be no doubt at all that the exercise of the delegated authority to make a decision about the jurisdictional limits of the Tribunal in relation to the particular complaint attracted the requirement that the person exercising it afford to Ms Merkel procedural fairness.  Clear words in the statute would be necessary in order to exclude the implication of the requirement to afford procedural fairness in the making of such decisions.  Any expression of such an intention is entirely absent from the SRC Act. 

46                  In making their decisions, Mr Stammers, Mr Stasiak and Ms Power relied on material supplied to the Tribunal by Telstra Super, pursuant to the obligation imposed on it by s 24(1) of the SRC Act.  All of the material supplied by Telstra Super was credible, relevant and significant to the decision to be made.  Mr Stammers, Mr Stasiak and Ms Power referred to material concerning the existence of a rule or policy on the part of Telstra Super.  It was that rule or policy that formed the basis of the decisions that the complaint related to the management of the fund as a whole.  Interestingly, there were also references to the advice given to Ms Merkel, some months after the death of her husband, concerning that rule or policy.  It is difficult to see how that advice could have been relevant to the question whether Ms Merkel’s complaint related to the management of the fund as a whole.  The fact that Ms Merkel had been given material designed to make her aware of the application of the rule or policy in her particular case could only have been relevant to the question whether the decision of Telstra Super to apply the rule or policy to the particular case was unfair or unreasonable.  That was not something that staff of the Tribunal, including Ms Power, had any statutory authority to determine.  Whether Telstra Super’s decision was unfair or unreasonable could only have been considered by the Tribunal constituted in accordance with s 9(1) of the SRC Act, and only after the processes of conciliation and a review meeting had taken place. 

47                  The material on which the decision-makers relied had been obtained from Telstra Super on the express basis that, “in the interests of procedural fairness and for the purposes of dealing with the complaint, all information / documentation provided to the Tribunal may be given to all parties to the complaint or their representatives.”  This was made clear by the Tribunal’s letter to Telstra Super dated 17 November 2008.  Notwithstanding that the material supplied by Telstra Super came from a credible source, and was obviously relevant and significant to the decision to be made (even if that decision were only a decision that the complaint did not fall within the jurisdiction of the Tribunal), no attempt was made to afford Ms Merkel procedural fairness by providing to her or her representatives any of the material supplied to the Tribunal by Telstra Super.  Even when Ms Merkel’s representatives sought access to that material, they were not given it.  As the Tribunal’s file note of 28 April 2009 shows, Ms Power apparently took the view that the consent of Telstra Super to the release of the material was required, or Ms Merkel would have to make an application under the FOI Act.  On any view, this conclusion was erroneous.  Even if it could be said that the Tribunal could not make available information relating to a complaint that was not within its jurisdiction, the very issue confronting Ms Power was whether the complaint was within the Tribunal’s jurisdiction.  To preclude Ms Merkel’s representatives from having access to the very material on which an officer of the Tribunal had relied in concluding that the complaint was outside the jurisdiction of the Tribunal amounted to a clear denial of procedural fairness.  Ms Merkel was entitled to have access to that material when she sought review of that decision.  The circular reasoning that the material could not be made available because the complaint was outside the jurisdiction, so that Ms Merkel could not have access to the material she needed to challenge the basis of the decision, was obviously invalid.

48                  There can be no doubt that, if her representatives had had access to the material supplied by Telstra Super, Ms Merkel’s chances of persuading Ms Power that the complaint fell within the jurisdiction of the Tribunal would have been much better.  Having now had access to the relevant trust deed, Ms Merkel’s representatives wish to rely on arguments derived from the terms of that trust deed.  They wish to contend that Telstra Super had no power under the trust deed to pay interest on accumulation benefits, as distinct from defined benefits.  They wish to contend that the trust deed permits credits and debits to an accumulation benefit account after the death of a member, as well as before.  They wish to contend that the investment option chosen was entirely one for the member and the trust deed did not allow Telstra Super to dictate the investment option that applied.  They wish to contend that the trust deed contains no source of power to make a rule such as that appearing in r 11 of the draft member services business rules relating to death claims, or any policy to the same effect.  In addition, they wish to contend that, if any such rule or policy applies, it is no more than a direction by Telstra Super to its own officers as to what they are to do upon the death of a member.  The rule or policy does not, of its own force, alter the fund in which a deceased member’s investment is kept.  It would be inappropriate for me to determine these questions at the present time.  They are issues for the Tribunal, if it should reach the point of making a determination pursuant to s 37 of the SRC Act.  The significance of these arguments is that the Chairperson of the Tribunal, in addressing the Court on the question of costs, indicated that, if the Tribunal had known of these arguments it might well have taken a different view on the jurisdiction issue.  The obvious answer to that is to say that, if the Tribunal had made available to Ms Merkel the material supplied to it by Telstra Super, her representatives would have had the opportunity to formulate those arguments at that stage, and to put them to the decision-makers.  It is no answer to say that Ms Merkel could have obtained the trust deed, and perhaps other material, by different means.  The Tribunal had this material.  To discharge its obligation to afford Ms Merkel procedural fairness, the Tribunal was obliged to make the material available to her and her representatives.  No attempt was made to do so.  Even in response to a request for the material, the Tribunal was resistant to the notion that it should comply with its obligation.

49                  There is clear jurisdictional error associated with the decisions of the Tribunal and Ms Power that Ms Merkel’s complaint was outside the jurisdiction of the Tribunal.  That jurisdictional error was constituted by an obvious failure to afford procedural fairness to Ms Merkel, by making available to her the materials supplied to the Tribunal by Telstra Super.  So obvious was the denial of procedural fairness that the Tribunal ought to have taken the view that it had not made any valid decision.  The Chairperson of the Tribunal ought to have taken charge of the complaint, and to have considered afresh the question whether it fell within the jurisdiction of the Tribunal, after first affording Ms Merkel procedural fairness.  There is no doubt that the Tribunal could have taken this action at any time.  See Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597.  The fact that this was not done is a significant factor in relation to the question whether the Tribunal ought to be ordered to pay costs.

The Tribunal’s jurisdiction

50                  To be outside the jurisdiction of the Tribunal by reason of s 14(6) of the SRC Act, a complaint must relate to the management of a fund as a whole.  As Branson J pointed out in Employers First v Tolhurst Capital Ltd [2005] FCA 616 (2005) 143 FCR 356 at [74], s 14(6) “is concerned with the nature of the complaint made under the section, rather than with the nature of the determination reached by the Tribunal on that complaint.”  It is not entirely clear whether s 14(6) prevents the Tribunal from dealing with the entirety of a complaint if that complaint includes an element relating to the management of a fund as a whole, or if it is only that element that the Tribunal must not deal with.  A comparison of s 14(6) with s 14(5) suggests the former.  The words “to the extent that” are used in s 14(5), but not in s 14(6).  That question does not need to be resolved in the present case, however. 

51                  It is clear that, at least in the first place, the focus in the application of s 14(6) to a particular complaint must be the terms of that complaint itself.  So far as it appeared in the complaint form, Ms Merkel’s complaint was that the fund had earned approximately $40,000 on Mr Merkel’s superannuation contributions while it remained invested in a growth option, but that Telstra Super did not pay her that money when they paid out Mr Merkel’s account balance.  The accompanying letter from Ms Merkel’s solicitors, which was concerned with the issue of legal representation for Ms Merkel, characterised the claim in several different ways.  It was said to involve “significant issues of law and fact as to the interpretation of the Trust Deed and superannuation legislation”, as well as “significant issues of equitable law”.  There was reference to “significant technical issues as to the role and decisions of the Trustees and a knowledge and consideration of their fiduciary duties”.  On its face, the complaint did not contain anything suggesting that it related to the management of a fund as a whole. 

52                  From such reasons as Mr Stammers, Mr Stasiak and Ms Power gave, it is clear that they relied on material provided by Telstra Super in characterising the complaint as one relating to the management of a fund as a whole.  Specific reference was made in the letter of 7 April 2009 to information that Telstra Super had provided.  The letter of 19 June 2009 from Ms Power informed Ms Merkel’s solicitors that the Tribunal had “reviewed the Trustee’s policy” and quoted from a document supplied by Telstra Super.  It is not necessary to determine whether there might be cases in which it may be appropriate for the Tribunal to look at materials supplied by a trustee, in order to determine whether a complaint can be characterised properly as falling within s 14(6) of the SRC Act.  Even if such cases might exist, it is primarily the terms of the complaint itself that must govern that question.

53                  In the letter of 7 April 2009, Mr Stammers characterised the complaint as “essentially” relating to the decision to calculate the benefit on the basis of a cash investment option from the date of Mr Merkel’s death.  The letter then referred to advice that had been given to Ms Merkel by Telstra Super’s subsidiary company.  It pointed out that the policy applied not specifically to the late Mr Merkel as an individual member of the fund, but to all fund members. 

54                  In the letter of 19 June 2009, Ms Power confirmed that the policy was to switch a member’s investment to the cash option following the member’s death.  That letter asserted that the trigger event was the death, and that the policy applied regardless of the point in time after the member’s death at which the switch was actually performed.  After referring to the advice given to Ms Merkel, Ms Power pointed out that the policy applied to all members. 

55                  Nowhere in the reasons given by Mr Stammers or Ms Power, or in any of the other documents in the court book, is there any indication that any regard was had to authorities concerning the meaning of s 14(6).  Such authorities existed, in the form of appeals from determinations of the Tribunal itself.  Tribunal staff ought to have been well aware of those authorities.  In Employers First at [74], Branson J referred to the lack of judicial authority on the proper interpretation of s 14(6) of the SRC Act.  Her Honour did not attempt a complete definition.  Rather, she said:

A clear example of a complaint that relates to the management of a fund as a whole would be a complaint concerning the investment policy being adopted by the trustee of the fund.

In Vision Super Pty Ltd v Poulter [2006] FCA 849 (2006) 154 FCR 185, Young J examined more closely the effect of s 14(6).  In that case, apparently acting in accordance with a policy, the trustee of the superannuation fund had reduced the entitlements of those of its members who were entitled to deferred benefits, by applying a “negative interest” rate to those entitlements.  Young J held that the Tribunal had jurisdiction to deal with the complaints of individual members in relation to those reductions.  At [51]-[53], his Honour rejected a submission that the complaints were not distinguishable relevantly from a complaint concerning the investment policy being adopted by the trustee of a superannuation fund.  As his Honour said, each of the complaints related to debits made to the complainant’s own deferred benefit account, and none mentioned the management of the fund as a whole.  At [52], his Honour said:

Even if it be assumed that the Complaints relate to the treatment of a particular class of members, namely the deferred benefit members of the Fund, they cannot be said to relate to the management of the Fund as a whole.  The mere fact that a trustee has acted in a similar way in relation to other members does not have the consequence that the Complaints relate to the management of the fund as a whole.  Furthermore, deferred benefit members are not the whole of the members of the Fund, so it does not follow that a decision that adversely affects their particular entitlements necessarily relates to the management of the Fund as a whole.  In these cases, the Complaints concern the deduction of negative interest or negative investment returns from the respondents’ benefits in alleged contravention of cl C.4.10 of the Deed.  The Complaints cannot be likened to a complaint about the investment policy that has been adopted by a trustee.  It is not to the point to observe, as the applicant did, that other types of action by a trustee in the management of a division of a fund might be regarded as an act done in the management of the fund as a whole.

56                  At [53]-[54], his Honour referred to Employers First.  At [55]-[58], his Honour rejected contentions that Employers First was distinguishable, and that Branson J’s observations concerning s 14(6) were wrong or were not necessary to her decision.  Again, at [57], his Honour referred to the fact that each of the complaints before him concerned a decision to reduce the benefits of the particular complainant and therefore related to the particular member and to his or her entitlements.  At [59], Young J said that a complaint that a superannuation trust deed had been contravened in a way that directly and adversely affected the financial position of a particular member lodging the complaint could not be described as a complaint about “the management of a fund as a whole”.  That was the case even if it were to be assumed that the complaint should be characterised as relating only to the question whether the debiting of interest contravened the relevant provision of the trust deed.  A complaint about contravention of the trust deed in debiting interest could hardly be described as one relating to the management of the fund as a whole. 

57                  By its own terms, Ms Merkel’s complaint was about the deduction made by Telstra Super from the amount standing to her late husband’s credit in his account with Telstra Super, before the balance was paid out to Ms Merkel as beneficiary.  It was not on its face a complaint concerning management of the fund as a whole.  It bore no similarity to a decision about how the fund as a whole should be invested, or about any other matter that did not concern the account of an individual member.  As Branson J pointed out in Employers First at [74], the focus of s 14(6) of the SRC Act is on the nature of the complaint.  It is not on the nature of the decision of the trustee.  Attempts by trustees to confine complaints within the narrow terms of the decisions made by those trustees have been rejected in the past.  See Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330 (2001) 48 ATR 359 and Commonwealth Superannuation Scheme Board v Dexter [2004] FCA 1434.  There must be some doubt as to whether an officer of the Tribunal could rely on the way in which the trustee had approached the matter, to characterise the complaint as one relating to the management of the fund as a whole.  Even if it were legitimate for an officer of the Tribunal to go beyond the face of the complaint itself and rely on material supplied by Telstra Super, the characterisation of Ms Merkel’s complaint was clearly wrong.

58                  As Young J pointed out in Vision Super, the fact that a complaint is about how the particular account of a member was dealt with is of the greatest significance in ascertaining whether that complaint relates to the management of the fund as a whole.  The fact that a trustee has dealt with other members in a similar way is of no significance.  It must follow from this that the fact that a trustee has a rule or policy applying to a class of members, or perhaps even to all members, and has acted in accordance with that rule or policy, could not be relied on to establish that an individual complaint relates to the management of the fund as a whole.  The notion that a rule or policy of general application may be unfair and unreasonable in its application to a particular case is commonplace.  Ms Merkel’s case provides a prime example of a case in which the Tribunal could find that the operation of a universal rule or policy was unfair or unreasonable.  Even if it be accepted that the rationale of the rule or policy was to prevent loss to a member’s benefits after the member’s death, because of a downturn in investment returns, that rationale was clearly absent in the present case.  Because the rule or policy had not been applied at an early date after his death, the amount standing to Mr Merkel’s credit in his account appreciated substantially up to the point at which the rule or policy was applied.  The result of its application was to deprive Ms Merkel of much of that appreciation, and to provide a windfall to other members that would not have accrued to them if Mr Merkel had remained alive.  In those circumstances, the complaint that the application of a rule or policy to the particular case was unfair or unreasonable was manifestly one relating to the interests of the individual member, and not to the management of the fund as a whole.

59                  This is not to say that the complaint could not have challenged the adoption by the trustee of the rule or policy.  An obvious ground for challenge would be to the absence of power under the trust deed.  Even if it could be said that a rule or policy applying to all members of a superannuation fund relates to the management of the fund as a whole, the rule or policy at issue in the present case does not have application to all members.  It has application only to that class of members who die before their benefits are paid out to them.  As Young J said in Vision Super, the application of a policy relating to a class of members only cannot give rise to a complaint that relates to the management of the fund as a whole.  There are clear alternatives to the rule or policy adopted by Telstra Super, that might operate more fairly in relation to deceased members than the rule or policy Telstra Super actually adopted.  For instance, members might be given a choice as to whether they wish to have amounts standing to their credit at the date of death transferred to interest-bearing accounts.  Many members might be prepared to take the risk of a market downturn after they died, in order to allow their beneficiaries to take the advantage of greater returns by reference to the option chosen by the members themselves.  Considerations such as this could be the subject of a complaint to the Tribunal, which the Tribunal would have jurisdiction to hear notwithstanding s 14(6) of the SRC Act.

60                  It was therefore incorrect for Mr Stammers to characterise Ms Merkel’s complaint as solely involving the action of Telstra Super in switching the investment option to cash once a member died.  It was also wrong of Ms Power to take the view that the time elapsing between Mr Merkel’s death and the actual switching of the amount standing to his credit to an interest-only option was irrelevant to the complaint.  The date at which the switch occurred was very much a part of the complaint.  It was a legitimate fact for the Tribunal to consider in determining whether Telstra Super’s decision was unfair or unreasonable.

61                  The authorities that existed at the time of the decisions therefore made it clear that Ms Merkel’s complaint could not be characterised as one relating to the management of Telstra Super’s fund as a whole.  The complaint invoked the Tribunal’s jurisdiction correctly.  The Tribunal had a statutory obligation to deal with it.  The result of the decisions to reject the complaint was that the Tribunal failed to comply with that obligation. 

The appropriate remedies

62                  Because the ultimate decision was made by Ms Power that the complaint was outside the jurisdiction of the Tribunal, there has been no “determination” by the Tribunal within s 37(1)(b) of the SRC Act.  The right of appeal under s 46(1) of the SRC Act is conditioned on there being a determination of the Tribunal.  So far as this proceeding constitutes a purported exercise of the right to appeal, the proceeding does not invoke that right validly. 

63                  The proper course is to grant such remedies as would have the effect of setting aside the decision of Ms Power, and compelling the Tribunal to deal with Ms Merkel’s complaint.  It would be possible to have resort to the jurisdiction of the Court, conferred by s 39B of the Judiciary Act, to grant the remedy pursuant to s 75(v) of the Constitution of mandamus, directed to the Tribunal, to require the Tribunal to hear and determine Ms Merkel’s complaint according to law.  As an ancillary remedy, the Court could order the issue of a writ of certiorari, directed to the Tribunal and to Ms Power, removing Ms Power’s decision into the Court and quashing it.  Simpler and more direct remedies are available pursuant to s 16(1) of the ADJR Act.  The jurisdiction of the Court pursuant to that Act is invoked by the application in this proceeding.  Accordingly, an order should be made pursuant to s 16(1)(a) of the ADJR Act, setting aside the decision of Ms Power to reject Ms Merkel’s complaint.  An order should also be made pursuant to s 16(1)(b), referring the matter to which that decision relates to the Tribunal for further consideration, with a direction that the Tribunal proceed to exercise its jurisdiction in relation to Ms Merkel’s complaint. 

Costs

64                  The Court’s power to award costs in a proceeding is conferred by s 43(1) of the Federal Court of Australia Act 1976 (Cth).  Section 43(2) makes it clear that the power is discretionary in nature.  Principles have been developed to guide the exercise of the discretion.  Such principles should not be regarded as rules.  Ultimately, the discretion must be exercised according to the circumstances of the particular case.

65                  Foremost among the principles guiding the exercise of the discretion is that costs should normally follow the event.  This means that a successful party ought to be entitled to costs, in the absence of any disqualifying factors.  Ms Merkel has been successful in this proceeding, and it was not suggested that there are any factors that ought to disqualify her from an order for costs in her favour.  She has been forced to bring this proceeding to vindicate her right to have her complaint dealt with by the Tribunal, and justice requires that she should be compensated for the expense of doing so, by means of an order for costs in her favour.  The issue that arises in the present case is against whom to make such an order. 

66                  In the normal case, a decision-making body such as the Tribunal does not have a stake in defending its own decision.  Provided that there is a proper contradictor when an administrative decision is challenged in a court, the decision-maker ought properly to take a neutral position.  When this is done, the usual practice is for the decision-maker to do what the Tribunal and Ms Power did in the present case, to enter an appearance submitting to any order that the Court might make, save as to costs.  The usual practice is to order costs against the contradictor, if the decision is challenged successfully.  There is nonetheless a power to award costs against an administrative decision-maker in an appropriate case.  There is some authority to suggest that the discretion to award costs in such a case should ordinarily be constrained by the principle that “costs ought not to be awarded against a statutory tribunal which makes an order in excess of its powers unless it can be demonstrated that the tribunal has been guilty of serious misconduct or corruption or has acted perversely.”  See Psychologists Registration Board of Victoria v The Herald and Weekly Times Limited [2000] VSCA 118 at [11], citing a number of authorities including Charter Homes Pty Ltd v Housing Guarantee Fund Ltd (unreported, Supreme Court of Victoria, Chernov J, 10 June 1997) at 3.  Such a principle might be considered unduly restrictive.  There was no reference to it in Alice Springs Commercial Broadcasters Pty Ltd v Australian Broadcasting Tribunal (unreported, Federal Court of Australia, O’Loughlin J, 14 October 1992), in which costs were awarded against a Tribunal which had initially refused to grant a licence and then reconsidered its decision after an application had been made for judicial review of the decision to refuse.

67                  The Tribunal’s Chairperson initially declined to make a submission.  When I prompted her to do so, she referred to the Psychologists Registration Board case and also to Smith v Superannuation Complaints Tribunal [2008] FCA 1528.  In the latter case, the Tribunal was found to have denied procedural fairness to a complainant in deciding, by means of a reasoned decision, that the Tribunal did not have jurisdiction to deal with that complainant’s complaint.  Neither the Tribunal nor the trustee involved appears to have made any submission to the Court.  The trustee was ordered to pay the costs of the complainant of her successful appeal to the Court.  There is no discussion in the reasons for judgment of the question whether the Tribunal might have been ordered to pay costs, or of any principles applicable to that question.  In the present case, the Chairperson contended that the Tribunal had not been guilty of serious misconduct or corruption and had not acted perversely.  She conceded that it was regrettable that the Tribunal staff had not prompted Ms Merkel’s solicitors to make an application under the FOI Act “so we could have given them the documents.”  This submission demonstrated that the Chairperson was still of the view that Ms Merkel’s complaint had been held correctly to be outside the Tribunal’s jurisdiction, and that this somehow constituted a bar to the making available of the documents when Ms Merkel’s solicitors sought to have that decision reviewed within the Tribunal.  The Tribunal had by no means completed the performance of its functions, when it was still reviewing the initial decision about jurisdiction.  As I have said, its obligation to provide procedural fairness continued.  At any time, the Tribunal could have acknowledged that it had not made a valid decision about its jurisdiction, because of the denial of procedural fairness, and proceeded to rectify the situation by affording Ms Merkel procedural fairness and giving proper consideration to the question of jurisdiction.  The fact that the Chairperson does not appear to have understood this is disturbing. 

68                  The Chairperson informed the Court that the Tribunal receives approximately 2,500 complaints each year, of which 40 per cent, or about 1,100, are outside the Tribunal’s jurisdiction for various reasons.  These are dealt with by means of preliminary decision.  On the question of the capacity of staff to make such decisions, the Chairperson contended that, if she or another member of the Tribunal were to deal with preliminary decisions as to jurisdiction, legislative amendment would be required.  This contention is obviously incorrect.  The only way in which officers of the Tribunal are given power to exercise the function of determining whether the Tribunal is satisfied that it can deal with a complaint, to which s 27(c) refers, is by means of a delegation by the Tribunal Chairperson under s 59(1) of the SRC Act.  The exercise of a power to delegate the performance or exercise of a function or power does not prevent the performance or exercise of that function or power by the person delegating.  See s 34AB(d) of the Acts Interpretation Act 1901 (Cth).  No legislative amendment would have been required for the Chairperson to examine the question of jurisdiction herself, particularly when the initial decision was challenged by Ms Merkel’s solicitors.  The Tribunal’s Chairperson also informed the Court that the decision was made on internal legal advice.  If that is the case, it is to be assumed that the internal lawyer was aware of the authorities relating to s 14(6) of the SRC Act, particularly Vision Super, and took the view that, notwithstanding the remarks of Young J about the relationship between the adoption of a policy and the decision to apply that policy to an individual member’s case, the case was beyond the Tribunal’s jurisdiction.  If so, it might have been expected that some reference to that issue would have appeared in what were said to be the reasons for the decision in Ms Power’s letter dated 19 June 2009.  This was not the case.

69                  The picture that emerges from the Tribunal Chairperson’s submissions is one of an institution under-resourced to deal with the number of complaints it receives.  In those circumstances, there is a danger that an institutional culture will develop in which the institution’s officers strive to reject as many complaints as they can at the outset, in order to give the institution some breathing space to deal more thoroughly with the complaints that are not rejected.  If such a culture exists in the Tribunal, it would be most unfortunate.  The answer lies with those responsible for providing resources to the Tribunal.  The Tribunal exercises important functions in an area in which ordinary people are faced with substantial complexity in superannuation trust deeds and in the management of superannuation funds by their trustees.

70                  If it were necessary to find that the Tribunal had acted perversely in relation to Ms Merkel’s complaint, then the facts of the case justify such a finding amply.  The Tribunal failed to afford Ms Merkel even the most basic of procedural fairness in relation to the documents it obtained from Telstra Super, on which it relied to reject her complaint as being outside the Tribunal’s jurisdiction.  Even when a specific request was made for access to those documents, when the Tribunal was willing to have the initial decision reviewed by a more senior officer, the request was ignored.  There seems to have been a view, which was totally untenable, that the making of the initial decision prevented Ms Merkel and her representatives being given access to the documents provided by Telstra Super, unless she were to make an application under the FOI Act.  If those documents could have been made available in response to such a request, they could have been made available without one.  The scheme of the FOI Act is not to prevent the making available of documents without a request, when such documents could be made available pursuant to a request.  As I have said, the basic principles of procedural fairness required that Ms Power make available the documents she was considering before she made the decision to affirm the initial decision that the complaint fell within s 14(6) of the SRC Act.  Further, so far as the record shows, the decision was made entirely without reference to authority binding on the Court, which makes it clear that a complaint raising issues about the unfairness or unreasonableness of the application of a policy to an individual member’s case is within the jurisdiction of the Tribunal.  The characterisation of the complaint was far too narrow.  It ignored the possibility that Ms Merkel might have arguments about the power of Telstra Super to adopt a rule or policy in the terms it had purportedly adopted.  Finally, it has been open to the Tribunal at any time to recognise that Ms Power’s decision was invalid as a result of jurisdictional error, and to have invited Ms Merkel to make submissions about the Tribunal’s jurisdiction to deal with the complaint after she had access to the documents from Telstra Super.  Instead, Ms Merkel was forced to go to a hearing by this Court to vindicate her rights.  For these reasons, an order for costs against the Tribunal and Ms Power is appropriate in this case.

71                  There is also an issue as to whether an order for costs should be made against Telstra Super.  In its written submissions, filed on 17 November 2009, Telstra Super conceded that the Tribunal had denied Ms Merkel procedural fairness by not making available to her the documents Telstra Super provided to the Tribunal.  The concession was properly made.  On the basis of it, Telstra Super sought an order that the Tribunal alone pay Ms Merkel’s costs of the proceeding.  The difficulty is that, in the same written submissions, Telstra Super indicated that it wished to make submissions to the Tribunal to the effect that the complaint relates to the management of a fund as a whole within s 14(6) of the SRC Act.  The problem with this reservation is that, if it had been the case that the complaint was outside the jurisdiction of the Tribunal, it would have been futile to return the case to the Tribunal solely on the basis that it had denied Ms Merkel procedural fairness.  It was necessary for the Court to resolve the issue of jurisdiction raised in this proceeding.  Telstra Super’s further concession, that the complaint was not excluded from the Tribunal’s jurisdiction by s 14(6) of the SRC Act, was not made until the day of the hearing in this proceeding.  By that stage, Ms Merkel’s costs had been incurred.

72                  It must also be acknowledged that it has always been open, and remains open, to Telstra Super to reconsider its decision to reduce the amount standing to the credit of Mr Merkel before paying the reduced amount to Ms Merkel.  There are all sorts of reasons why that decision might be considered to have been inappropriate in the circumstances.  The Tribunal lacks power to award costs.  A trustee of a superannuation fund ought to consider its position carefully before it spends the money of its members on proceedings in the Tribunal (and on legal proceedings) and causes a member or other beneficiary to spend money on proceedings in the Tribunal (or on legal proceedings), particularly when the amount in dispute is not large.  Telstra Super always had the capacity to put an end to this proceeding at an early stage.

73                  For these reasons, it is also appropriate to make an order for costs against Telstra Super in the present case.

74                  This gives rise to the question as to how the costs should be borne as between the Tribunal and Ms Power on the one hand and Telstra Super on the other.  An assessment of the relative contributions to costs in a situation like this is necessarily a matter of impression.  Where two or more parties have been responsible for the incurring of costs, unnecessarily as it turns out, the safest course is to apportion those costs equally, unless the disparity between the respective responsibilities is so great as to dictate another outcome.  In the present case, the responsibility of the Tribunal and Ms Power has been of a different nature from that of Telstra Super.  It is difficult to say that any glaring disparity exists, because of the qualitative difference.  Accordingly, the best course is to order that the Tribunal and Ms Power be liable for one half of Ms Merkel’s costs and Telstra Super be liable for the other half.

Associate:

Dated:         4 June 2010