FEDERAL COURT OF AUSTRALIA

Southwell v Equity Trustees Limited [2015] FCA 536

THE COURT ORDERS THAT:

1.    Mr Southwell’s appeal be dismissed.

2.    Mrs Southwell’s appeal be allowed and the matter be remitted to the Superannuation Complaints Tribunal for the purpose of determining according to law the decision it will substitute under s 37(3)(d) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) for the decision of Equity Trustees Limited.

3.    The parties are to file agreed short minutes of order with respect to costs by 12 June 2015 or, failing agreement, the parties may file by that date submissions of no longer than three pages each concerning the orders they seek as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Southwells are husband and wife. They lodged separate appeals under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (“Complaints Act”) from determinations made by the Superannuation Complaints Tribunal (“Tribunal”) on 13 December 2013 in relation to decisions made by the respondent (“Equity Trustees” or “Trustee”). The appeals were heard together.

2    Unless otherwise specified, a reference in these reasons to a legislative provision is a reference to a provision of the Complaints Act.

3    The Tribunal’s determinations concerned Equity Trustees’ decisions not to uphold complaints made by each of the Southwells about the administration of their investments in the NSW Bookmakers Superannuation Fund (“Fund” or “BSF”). The Fund has since changed its name to “Progress Superannuation Fund” but for ease of reference I will use the original name.

4    The Southwells’ main complaints concerned the failure of the Fund to act on their investment switching forms lodged with the Fund’s manager on 2 March 2009 (“Switching Forms”). Mr and Mrs Southwell each wished to switch from the “Balanced” option to the “Conservative” option. Equity Trustees’ decisions not to uphold the complaints were communicated to the Southwells by letters dated 28 July 2011. Equity Trustees refused to compromise the Southwells’ claims by adjusting the accounts of Mr and Mrs Southwell to the position they would be in if their investments had been switched to the “Conservative” option as at 1 April 2009.

5    A conciliation meeting held on 10 May 2012 failed to resolve the Southwells’ complaints. The “review meeting” to consider the Southwells’ complaints was held by the Tribunal on 28 October 2013 (having been deferred from 25 October 2013) and the Tribunal’s decision was made “on the papers” despite requests from the Southwells to be afforded the opportunity to attend and make oral submissions by their legal representatives.

6    In summary, the Tribunal held that:

    In relation to Mr Southwell’s complaint, it was fair and reasonable for the Fund to rely on oral instructions not to act on the Switching Forms given by Mr Southwell in a telephone conversation on 15 April 2009 with Mr Peter Hayes-Williams, an employee of the Fund’s administrator. The Tribunal therefore affirmed Equity Trustees’ decision in relation to Mr Southwell in accordance with s 37(6).

    In relation to Mrs Southwell’s complaint, the Tribunal held that it was not fair and reasonable for the Fund to rely on Mr Southwell’s oral instructions to Mr Hayes-Williams in respect of her request to switch investment options. The Tribunal refused to affirm Equity Trustees’ decision in relation to Mrs Southwell and it substituted its own decision in accordance with s 37(3), (4) and (5). The Tribunal required Equity Trustees to adjust Mrs Southwell’s account for the period 1 April 2009 to 1 March 2010 on the basis that Mrs Southwell knew as at 29 January 2010 that the investment had not been switched and could have taken steps to switch which would have been effective on 1 March 2010, but she had not done so. The Trustee was also required to adjust her account for interest which would have accrued to the account from 1 March 2010 until the date Equity Trustees implemented the Tribunal’s decision.

7    For completeness, I note that the Tribunal also dismissed a complaint made by the Southwells that member fees increased without giving proper prior notice to the members.

8    On 14 March 2014, after the period for lodging an appeal from the Tribunal’s decision had expired, Equity Trustees advised Mrs Southwell that the amount of the adjustment to her account was $16,226.46; she was advised of the basis of calculation on 2 April 2014. Equity Trustees consented to the grant of an extension of time to Mrs Southwell to appeal the Tribunal’s determination. Counsel for the appellants submitted that Mrs Southwell would be entitled to approximately $390,000 if her account was compensated from 2 March 2009 to the date of the hearing.

Application

9    The hearing in this Court was conducted on the basis of a notice of appeal filed by Mrs Southwell and an amended notice of appeal filed by Mr Southwell each filed on 29 May 2014. At the end of the hearing, counsel for the Southwells sought leave to file an amended notice of appeal on behalf of Mrs Southwell and a further amended notice of appeal on behalf of Mr Southwell.

10    Counsel for Equity Trustees did not object to leave being given to the Southwells to make the amendments on the basis that the amendments reflected the conduct of their case during the hearing to which Equity Trustees had the opportunity to respond; I granted leave.

11    The amended applications seek orders setting aside the Tribunal’s decisions and remitting the matters back for decision in accordance with the directions of the Court and declarations that by failing to act on the Southwells’ written instructions of 2 March 2009, Equity Trustees remains in continuing breach of its obligations.

12    The details of the questions of law and grounds set out below reflect the amendments made.

Mrs Southwell’s questions of law and grounds

13    The questions of law for determination raised by Mrs Southwell are (as written):

1.    The Tribunal erred in law by denying the applicant procedural fairness.

1A.    The Tribunal erred in law by failing to take into account a relevant consideration

2.    The tribunal erred in law by taking an irrelevant consideration into account.

3.    The Tribunal erred in law by failing to take into account a relevant consideration when substituting its own decision

4.    The tribunal erred in law by failing to take into account a further relevant consideration when substituting its own decision.

5.    The Tribunal erred in law by substituting a decision that was so unreasonable that no reasonable decision maker could have made it.

14    Mrs Southwell’s grounds for review are (as written):

1.     The applicant sought to have her account adjusted from 1 April 2009 with interest accruing until the time of the tribunal’s decision. The Tribunal failed to grant an oral hearing to the applicant in circumstances where the Tribunal was considering only adjusting the applicant’s account for the 11 months from 1 April 2009 to 1 March 2010 and the Tribunal had not put the applicant on notice of the fact.

1A    The Tribunal failed to take into account the relevant consideration that the applicant had provided written reasons seeking an oral hearing.

2.     The tribunal took into account the irrelevant consideration that the applicant failed to react to the respondent’s information of about 1 March 2010 that her Investment Switching Form had not been acted on.

3.     The Tribunal failed to take into account the relevant consideration that on or around 1 March 2010 the applicant was occupied by the obligations she undertook arising from the serious illness of her daughter-in-law.

4.     The Tribunal failed to take into account the further relevant consideration that even if the applicant did not react to the respondent’s information of about 1 March 2010 that her Investment Switching Form had not been acted on, the applicant inquired, and continued to inquire, as to what had happened to her Investment Switching Form from about 3 November 2010 onwards.

5.     The substituted decision is so unreasonable that no reasonable decision maker could have made it because the decision validates and excuses, from 1 March 2010 onwards, the respondent’s on-going failure to act on the written instructions contained in the applicant’s Investment Switching Form.

Mr Southwell’s questions of law and grounds

15    The questions of law raised for determination by Mr Southwell are:

1.    The Tribunal erred in law by denying the applicant procedural fairness.

1A.    The Tribunal erred in law by failing to take into account a relevant consideration.

2.    The Tribunal erred in law by failing to make its own finding of fact necessary to support its decision in relation to the applicant.

3.    The Tribunal erred in law by failing to consider an issue raised by the applicant.

4.    The Tribunal erred in law by failing to find that the respondent’s failure to comply with its own published standards invalidated its subsequent conduct.

16    The grounds as amended are (as written):

1.    The Tribunal failed to grant an oral hearing to the applicant in circumstances where the applicant requested an oral hearing before the Tribunal, and there was a significant issue of fact as to whether or not the applicant gave oral instructions to the respondent.

1A.    The Tribunal failed to take into account the relevant consideration that the applicant had provided written reasons seeking an oral hearing.

2.    The Tribunal failed to make its own finding of fact as to whether or not the applicant gave oral instructions to the respondent.

3.    The Tribunal failed to consider the issue raised by the applicant, that in acting on the applicant’s alleged oral instructions the respondent failed to act on the applicant’s written instructions, and the Tribunal failed to consider the consequence of the respondent failing to act on the applicant’s written instructions.

4.    The Tribunal failed to find that in acting on the applicant’s alleged oral instructions in breach of its own published standards, the respondent’s conduct was invalid.

Background

17    There was a significant flow of correspondence between the Southwells, the Fund, Equity Trustees and the Tribunal canvassed in submissions. What follows does not purport to be a complete summary and some factual matters will be referred to in consideration of the individual grounds.

18    Mr Southwell retired from the NSW Police on a medical pension in 1999. He was due to turn 60 in early 2006. He had the choice of remaining on the medical pension, at that time $90,000 per annum increasingly yearly with inflation, or converting the pension into a lump sum of $1.1 million in order to invest it in superannuation. Following advice from Mr Ian Buxton, a fellow member of Mr Southwell’s golf club, Mr Southwell became a member of the Fund in 2006; Mrs Southwell was also a member in 2006.

19    The Fund was established by the NSW Bookmakers Co-operative Society Limited on 10 June 1974. In about July 2004, the Society was replaced as trustee by Equity Trustees and the Fund became a public offer fund. At about this time, individuals who had been involved with the Fund and the Society established companies offering administration and promotion services to Equity Trustees. These individuals included Mr Buxton, Mr John Kennedy, Mr Peter Mueller and Mr Peter Hayes-Williams.

20    On 2 March 2009, Mr Southwell lodged two documents titled “Bookmakers Superannuation Fund Investment Switching Form (Form BSF5)” (the Switching Forms) signed by Mr and Mrs Southwell respectively to change all of their respective investments from the “Balanced” option to the “Conservative” option.

21    By letter dated 9 March 2009, Mr Hayes-Williams advised “Mr & Mrs R Southwell” that the Switching Forms had been received and that:

This request will usually be actioned within 30 days of the date of receipt of a fully completed switching form.

You will be informed in writing once the switch has been completed.

22    The copy of the letter on the administrator’s file has a handwritten annotation “PHW phoned Ray on 15/04/09 – Ray to stay in balanced until further notice”. Mrs Southwell’s Switching Form bears the annotation “Janette to stay in balanced until further notice. 15/4/09”. Both annotations appear to be initialled. The Switching Forms were never acted upon.

23    Equity Trustees issued “Significant Event Notices” in July, August and November 2009 which affected members in the “Balanced” option, and a circular was sent to members concerning them dated 15 December 2009. The Fund deferred processing of requests for redemption or transfers from the “Balanced” option. In its June 2010 client update, Equity Trustees said that this was because liquidity came under pressure as a result of the impact of the global financial crisis on investment markets. Equity Trustees indicated that some restrictions were to be lifted: one part of the “Balanced” option would be liquid while the other part would remain illiquid and be released progressively as cash requirements allowed. The Fund was not in fact re-opened until 1 March 2011.

24    The Periodic Members Statements sent to the Southwells dated 29 January 2010 related to the Fund’s “Balanced Investment Strategy”.

25    Mr Southwell wrote to the management of the Fund on 26 August and 16 September 2010 and to Equity Trustees on 19 September 2010 raising a range of complaints about the performance of the “Balanced” option and its illiquid state.

26    Mr Southwell enquired about what happened to the two Switching Forms for the first time in a letter to the Management of the Fund dated 3 November 2010. The letter relevantly said:

I have been going through my papers and found that on 2/3/09 I forwarded you a facsimile with two Investment Switching Forms from Balanced to Conservative. Can you tell me what happened with those Switching Forms.

27    Mr Hayes-Williams responded on 5 November 2010 by email:

I advise that we have a note on file indicating that we had a telephone conversation on the 15 April 2009 where you decided to “stay in the balanced option until further notice”. Copies of the switching forms remain in your individual files.

28    Mr Southwell raised a number of complaints about the Fund in correspondence with the Tribunal between February and April 2011. By a letter dated 18 February 2011 Mr Southwell told the Tribunal (as written):

I also attach two Bookmakers Super Fund (BSF) Investment Switching forms dated 2/3/09, in my name and that of my wife Janette Anne Southwell, to switch full amount from both accounts to the ‘Conservative Option’. I forwarded these forms to BSF on that date, expecting them to be switched without question. My wife and I had made a final decision to switch to the conservative fund.

On 15/4/09 a member of BSF Mr. Peter Hayes-Williams rung me and stated the worst was over and that I would loose a lot of money if I switched. The conversation was long and in the end talked me into not switching from the Balanced Fund. My wife never spoke to any person at BSF re her switching form.

29    Following advice from the Tribunal about the process which would be required for it to consider a complaint, Mr Southwell wrote to Equity Trustees on 27 April 2011 advising that he wished to make a complaint to be considered as part of the Fund’s arrangements under s 101 of the Superannuation Industry (Supervision) Act 1993 (Cth) (“Supervision Act”) saying (among other things) (emphasis in original):

•    Problem 1 – Switching Form BSF5 be acknowledged:

Prior to 2/3/09 I spoke to Peter Hayes-Williams, Bookmakers Superannuation Fund (BSF) and advised him I wished to switch all my investments from the Balanced Fund to the Conservative Fund. He advised I had to complete and sign BSF Investment Switching Form (Form BSF5). …

On 15/4/09 (some 30 days after receipt of the Form BSF5) Mr Peter Hayes-Williams rung me respecting my submission of that form. We had a long conversation about finances and he stated the worst was over with losses in the Balanced Fund and advised me not to switch from that fund to the Conservative Fund. This was a very long conversation and it took a lot of badgering for [sic] Mr Hayes-Williams for me to reluctantly change my mind.

Mr. Peter Hayes-Williams is not a licensed financial advisor therefore his advice should be ignored and the Form BSF5 dated 2/3/09 submitted by me should be acted upon.

When a completed Switching Form is received by BSF they should act on that without question. They should not wait 30 days and then phone their client.

After BSF have received a complete and signed switching form they should adhere to that until they have another completed switching form negating the first.

30    Mr Southwell claimed that his loss was the difference between the losses in the Balanced Fund and the gains in the Conservative Fund and asked that all of his investments be placed in the Conservative Fund and that his entitlement be adjusted to reflect having been in the Conservative Fund since 2 March 2009.

31    Mrs Southwell also wrote a letter to Equity Trustees on 27 April 2011 in a similar format to Mr Southwell and making the same claim to loss and asking for her entitlement to be adjusted to reflect having been in the Conservative Fund since 2 March 2009. Under the same heading as Mr Southwell she said (among other things):

… I agreed that all my investments with BSF be switched to the Conservative Fund and signed that form.

My husband advised me Mr. Peter Hayes-Williams had advised him to forward both completed and signed forms by facsimile to BSF. My husband told me he had done this.

I never gave my husband permission to revert the orders in the Form SBF5 I signed on 2/3/09.

I have never spoken to any person at BSF to change the instructions as per BSF 5.

32    On 28 July 2011, Equity Trustees responded with letters to each of Mr and Mrs Southwell. Equity Trustees told Mr Southwell that:

    “We are advised that following your discussion with Peter Hayes-Williams, you decided against proceeding with the switch. Consequently, the switch request was not acted upon due to your verbal instructions that you wanted to remain in the “Balanced” strategy until further notice”;

    as an employee of the administrator which does hold an Australian Financial Services Licence, Mr Hayes-Williams was authorised to provide general advice to members of the Fund and “Mr Hayes-Williams has advised us that he did not provide “personal” advice to you as this advice had previously been provided to you via a Statement of Advice from Mr John Kennedy”; and

    as the Fund had been re-opened on 1 March 2011, Mr Southwell was free to request a switch from the “Balanced” option to the “Conservative” option, although switching from the illiquid strategies was not possible.

33    Equity Trustees’ response to Mrs Southwell on 28 July 2011 repeated the advice about the availability of switching investment options now that the Fund had re-opened. It advised her:

The switching form was not acted upon due to “verbal” instructions from your husband that you wanted to remain in the “Balanced” strategy until further notice. Due to your husband’s close relationship with the directors of the Fund’s administrator, it was assumed that he could provide instructions on your behalf. We believe that this assumption was reasonable and was an accepted practice. We particularly note in your letter of 27 April where you instructed your husband to contact BSF on your behalf and advise them of your wishes rather than you actually giving the instructions. We would have expected that your husband would have conveyed the substance of his discussion with Peter Hayes-Williams to you. Should you not have been happy with this, you or your husband, on your behalf, would have contacted Peter and advised him that you wished the switch to proceed.

34    On 9 August 2011 Mr Southwell wrote to Equity Trustees asking why he had been contacted, unsolicited, by Mr Hayes-Williams after the receipt of the Switching Forms and asking why Mr Hayes-Williams had not simply acted on the instructions contained within the Forms. Equity Trustees responded on 26 August 2011 saying they were not able to answer these questions.

35    On 9 August 2011 Mrs Southwell lodged a complaint form with the Tribunal. Mrs Southwell said (as written):

I am not satisfied with the Fund’s decision…

not to transfer all monies in both balanced accounts to conservative fund after forwarding relevant signed ‘switching form’ on 2/3/09.

I believe the Fund’s decision is unfair/unreasonable because…

1.     I have never signed another Switching Form to go back to the Balanced Fund. I have never spoken to any employee of the Bookmakers Superannuation Fund since that time, nor have I ever given any person permission to change the decision on my switching form of 2/3/09. If I had to sign and submit a switching form to go from Balanced to Conservative Fund the reverse should apply and I never signed any further form.

2.     the fund increased management fees from 1.1% to 1.478% without advising members.

…

The resolution I seek is that…

1.     That my all my finvestments be placed in Conservative Fund from the date thethe signed switching form was submitted to them on 2/3/09. Bookmakers Superannuation Fund pay the difference between losses in Balanced Fund and gains in Conservative Fund from the date of submitting signed ‘Switching Form’ on 2/3/09. All monies now held in ‘illiquid’ funds be released.

2.    That Bookmakers Superfund re-imburse the difference between management fees of 1.1% and 1.478%.

36    On 29 August 2011 Equity Trustees wrote to the Tribunal responding to the complaints made by Mr Southwell and saying that:

    Equity Trustees had reviewed the decision to make no further adjustments to Mr Southwell’s fund on the basis of the oral instructions received by Mr Hayes-Williams and determined that the decision should be upheld; and

    if Mr Hayes-Williams had provided financial product advice to Mr Southwell, he was doing so as an agent of the management company and not as an agent of Equity Trustees.

37    On 27 October 2011, Mr Southwell changed all of his liquid funds from the Fund to an unrelated fund manager following advice from the Tribunal that he could do so while his complaint was being considered.

38    At the instigation of the Tribunal (having regard to technical aspects of matters raised), Mr Southwell lodged a further “Registration of Complaint” form on 28 October 2011. Its contents were essentially the same as the letter of 27 April 2011 to Equity Trustees referred to at [29], save that he referred to the time period between lodgement of the Switching Form and contact from Mr Hayes-Williams as being 45 days.

39    Equity Trustees wrote to the Tribunal on 26 October 2011 responding to Mrs Southwell’s complaints indicating that its views had not changed since its letter to her of 28 July 2011 (see [33] above), that it upheld the decision to make no further adjustments to her account and saying:

Notwithstanding that Mrs Southwell did not speak personally with Mr Hayes-Williams, we believe that Mrs Southwell made this request through Mr Southwell.

40    In response to a query raised by Mr Southwell through the Tribunal in relation to service standards to be adhered to by service providers, Equity Trustees wrote to the Tribunal on 30 March 2012 in the following terms:

The Performance Standard is the timeframe in which the relevant service is expected to be usually delivered by the fund’s administrator in the ordinary course of administering the fund. The Service Standards are not contractually binding but provide guidance for the parties so that the fund can be administered in an orderly manner. Members of a fund do not contract with a trustee or administrator for delivery of services in accordance with the indicative timeframes.

Obviously the relevant services must be delivered in accordance with applicable legislative and regulatory requirements and it is the trustees [sic] and administrators [sic] obligation to comply accordingly.

Would you please advise if Mr & Mrs Southwell believe that the Performance Standards are personally applicable to them.

41    Mr Southwell received an email on 5 April 2012 from Equity Trustees. It stated:

I am unable to advise why Peter Hayes-Williams may have contacted you, either within a reasonable time frame or at all. Equity Trustees as trustee of the fund, have not provided instructions to the fund’s administrator to contact members other than to provide the updates and significant event notices regarding the restructure of the fund.

42    By letter dated 22 June 2012, Mrs Southwell advised the Tribunal that she authorised her husband to represent her in her complaint.

43    By letter dated 12 July 2012, Mr Damien Tse from the Tribunal enquired of the Southwells why the failure to process the Switching Forms was first followed up in Mr Southwell’s letter to the Fund of 3 November 2010, approximately 19 months after the request was made.

44    On 10 September 2012, the Tribunal approved the Southwells’ request to be legally represented in the matter. Mr John Cassidy of Fox O’Brien Lawyers acted for the Southwells.

45    By letters dated 16 August 2013, Equity Trustees and Mr Cassidy were advised that the review meeting would be held on Friday 25 October 2013 and the Tribunal invited written submissions by no later than 13 September 2013. The Tribunal advised that all submissions would be exchanged and “each party will have the opportunity to comment on the submission of the other” and noted that “[i]n the interests of procedural fairness and for the purposes of dealing with the complaint” the Tribunal furnishes each party to the complaint with copies of all materials which have been provided to the Tribunal by the other party. The letters advised that the review meeting would be conducted on the papers and parties may only attend and make oral submissions if an order is made to that effect.

46    By a letter dated 3 September 2013 from Mr Cassidy, the Southwells sought leave for counsel to appear for them at the review meeting to consider the Southwells’ complaints. Ms Carmen Cerlo from the Tribunal made a file note of a conversation with Mr Cassidy on that day which says (among other things):

… John Cassidy was requesting to appear in person and handle the complainants [sic] submissions in person for Review. I explained to him under the Tribunal’s Act Section 34, the Tribunal will conduct the Review on the papers, however, the Tribunal may consider allowing oral submissions if it believes they are necessary. He would need to provide his reasons in writing for consideration by the Tribunal’s Chairperson.

John Cassidy said he will be speaking to his Barrister and may consider putting the reasons in writing.

47    By a letter dated 5 September 2013, Equity Trustees advised that it did not want to make further submissions but it did wish to highlight a number of matters; there followed eight dot points. These points were primarily to the effect that Equity Trustees had not authorised the Fund’s administrator to provide financial product advice on its behalf and the administrator had its own AFS Licence. The concluding point was:

The complainants agreed to, and acted upon the advice provided on behalf of the fund’s administrator Peter Hayes-Williams.

48    Mr Southwell made a statutory declaration on 12 September 2013. In it he described the circumstances of his telephone call on 15 April 2009 with Mr Hayes-Williams and the circumstances of his family in 2009-2010:

13.    [Evidence of telephone call concluding:]

PHW:    Well I will stop the switch and leave your investments in the Balanced Fund.

RS:    No, I want it in the Conservative.

PHW:     You will consolidate your losses – you will not get back what you have lost.

He then went on again about the stock market going up and the mortgage loans coming good and said:

PHW:    You are being foolish not to stay in the Balanced Fund.

RS:    Peter, I have to go, I have something urgent to do.

PHW:    Well are you going to take my advice and stay in the Balanced Fund?

RS:    Peter, I have to go.

The phone call was then terminated.

14.    …

15.    When I became aware that my wife and I were sustaining very heavy losses with our superannuation investment I became very depressed. I was devastated emotionally by the loss of our money set aside for our retirement. When I received letters from the BSF I tended to simply file them away as I could not bring myself to read them, let alone act on them.

16.    As well, in May 2009, my daughter-in-law was diagnosed with cancer. Over the next 18 months she was hospitalised numerous times for treatment. My wife and I were focussed on caring emotionally and physically for our grand children aged 10 and 8 at the time, our daughter in law, and son. Our family during this stressful time took priority over all other matters.

49    Mrs Southwell also made a statutory declaration of the same date in which she confirmed that she had signed a Switching Form on 2 March 2009, that she never gave her husband authority to give further instructions about it but that she did give him authority to act on her behalf “for the purposes of procedural matters” in the Tribunal. It did not address the issues at [15] and [16] of Mr Southwell’s affidavit.

50    These statutory declarations were provided to the Tribunal on 12 September 2013 together with submissions on behalf of Mr and Mrs Southwell. The submissions, among other things:

    At [11] noted that:

… Mr Southwell reiterated that he wanted to switch his account balance … and that he was acting on the advice of his accountant. Mr Hayes Williams [sic] continued to insist that Mr Southwell not switch options. The call lasted about 45 minutes…

    At [14], submitted that:

Mr Southwell, relying on his written instructions faxed on 2 March 2009, did not inquire further about the status of his account. Mr Southwell was distressed by the losses he and Mrs Southwell had incurred and found it difficult to deal with the correspondence from BSF. Further, in May 2009, shortly after the phone conversation with Mr Hayes Williams [sic], Mr Southwell and Mrs Southwell learned that their daughter in law had been diagnosed with cancer, requiring intensive treatments in hospital over the next 18 months. Mr Southwell and Mrs Southwell became focused on their family over this time...

    At [67], submitted that:

The Tribunal should also give leave for Mr Southwell and Mrs Southwell’s legal representatives to make oral submissions to the [Tribunal] on 25 October 2013.

51    On 13 September 2013, the Tribunal wrote to each of Equity Trustees and the Southwells, providing with the letter a copy of the other party’s submissions. Each letter contained the following advice:

[You][Your clients] are not required to provide a response, however, if [you][your clients] wish to provide a response on the basis of this material, this must reach the Tribunal by Monday 7 October 2013. A copy of your [client’s] response, which should not include any new information, will be sent to the [Complainant][Trustee].

52    By letter dated 20 September 2013 to the Tribunal, Mr Cassidy responded to the issues raised in Equity Trustees’ 5 September 2013 submissions to the Tribunal and said, among other things:

•    Mr and Mrs Southwell did not agree to, and did not act upon advice provided by Peter Hayes-Williams. The only phone call to Mr Southwell by Peter Hayes-Williams apart from returning a call to Mr Southwell was the one where he attempted to unsuccessfully talk Mr Southwell out of transferring funds to the Conservative Fund.

•    Mrs Southwell never gave the administrator authority for her husband to act on her behalf.

53    By letter dated 30 September 2013 to the Tribunal, Equity Trustees responded to the issues raised by the Southwells. Among other things, the letter asserted that “PHW discussed the switch request with [Mr Southwell] and subsequently decided not to proceed with the switch until further notice” and that in his letter to Equity Trustees of 27 April 2011, Mr Southwell stated that he “reluctantly” changed his mind about the switch. The letter went on:

The Trustee accepts that PHW is its agent in respect of the administration of the Fund and that an investment switch form lodged with PHW is effectively lodged with the Trustee. However, the critical issue is whether or not [Mr Southwell] in fact changed his mind about the investment switch on 15 April 2009 when speaking with PHW.

…

The Trustee questions why the Statutory Declaration provided by [Mr Southwell] omits to state that he changed his mind. Rather, his description of the telephone conversation between him and PHW would give the impression that he did not decide to stop the switch, but merely rushed away from the conversation.

The Trustee has no reason to believe that [Mr Southwell] did not change his mind and decide not to switch out of the Balanced option, despite his statutory declaration. This is because the fact that he had changed his mind is consistent with past correspondence that he had sent to the Trustee and is also contrary to a file note made by PHW on a copy of the switching form which indicates that he was to stay in the Balanced option until further notice.

…

At paragraph 14 of the Complainants’ submission, it says that “Mr Southwell, relying on his written instructions faxed on 2 March 2009, did not inquire further into the status of his account.” However, the Trustee made no representation at any time that it had effected a switch to the Conservative option and the subsequent conduct of [Mr Southwell] suggests that he was well aware that the switch had not been made:

(a)    The administrator’s letter acknowledging receipt of the investment switch forms in respect of the Complainants stated that they would be advised once the switch is processed. Consistent with its reasonably held view that [Mr Southwell] had changed his mind, at no time has such confirmation been provided and the Trustee is not aware of any further correspondence with PHW after the verbal change of instructions by [Mr Southwell] to question why the switch had not been processed.

(b)    Letters were received from [Mr Southwell] in August and September 2010 about losses sustained in the Balanced option but he did not mention the switching forms submitted in March 2009 until his letter of 3 November 2010. (We enclose copies of these letters for the Tribunal’s reference.) This correspondence raises a reasonable inference that [Mr Southwell] had indeed decided to remain in the Balanced option (otherwise, why would he have complained about its investment performance?) and only decided to re-visit his instructions to make an investment switch as an afterthought.

For completeness, the Trustee notes that there are no legal requirements requiring trustees to obtain a revocation of investment switch in writing.

…

[Equity Trustees then canvassed whether advice given by Mr Hayes-Williams had been general advice or personal advice]

In summary:

•    Despite the Statutory Declaration, the evidence demonstrates that, on the balance of probabilities, [Mr Southwell], acting on behalf of himself and [Mrs Southwell], changed his mind about making the requested investment switch from the Balanced option to the Conservative option in April 2009 (and did not, in fact, follow up on the issue until some 18 months later in November 2010).

•    The Trustee is not responsible for any advice given by PHW to [Mr Southwell] but to the extent that advice was given in the telephone conversation of 15 April 2009, it was general advice only. PHW did not breach any duty in the provision of such advice.

54    By letter dated 8 October 2013, Mr Cassidy provided to the Tribunal calculations in relation to the Southwells’ losses. The letter stated: “The Southwells calculate their combined losses at somewhere between $500,000.00 and $600,000.00.”

55    On 9 October 2013, the Tribunal advised Mr Cassidy that the date for the review meeting had been changed to 28 October 2013. It enclosed Equity Trustees’ further submissions and the letter contained the following:

Submissions exchange

The Trustee has provided an additional submission and in the interest of procedural fairness and for the sake of completeness, please find enclosed a copy of the Trustee’s additional submission. This is provided for your information only. No response is sought.

However, if a response submission contains new material, and the Chairperson or the Tribunal decides to refer to that new material in its decision making process, the Tribunal will contact you and invite your comments for its consideration before issuing the Determination.

56    A letter in the same terms was written to Equity Trustees in relation to the further submission of the Southwells on the same date.

57    On 14 October 2013, Mr Cassidy sent a fax to the Tribunal saying (emphasis added):

Our instructions are that our client seeks permission for his Counsel to appear at the hearing of this matter, with him, to make oral Submissions, particularly having regard to the latest Submissions by the Trustee.

58    On 15 October 2013, Mr Tse from the Tribunal responded to this request (as written):

Following on from my telephone message with Samantha [from Mr Cassidy’s office] today 15 October 2013, I note that your client’s seek permission for Counsel to appear in person at the hearing regarding their complaints.

I respectfully advise that this request was previously made to the Tribunal under your previous correspondence dated 3 September 2013. As a result of this letter, Carmen, from our office telephoned and spoke to you advising that the Tribunal conducts its Reviews on paper, therefore, the Tribunal would need reasoning from your client’s as per why they would need Counsel to appear in person. I confirm no reasoning was received.

If your client’s seek permission for Counsel to appear in person during the Review Meeting set for 28 October 2013 at 1.00pm (EST), reasoning would need to be put in writing and if received, would be reviewed by our Chair who will approve or decline your client’s request.

59    On 16 October 2013, Mr Tse advised the Tribunal members of the Southwells’ request to be represented by Counsel to make oral submissions at the review meeting; he said no reasoning had been received.

60    On 16 October 2013, in an apparent reference to the request to have a legal representative for the Southwells appear to make oral submission contained in item [67] of the Southwells’ submissions lodged on 12 September 2013 (which has a hand marked number of 386 in the top right hand corner), the Chairman of the panel of the Tribunal assigned to the Southwells’ complaint, Mr Christie, wrote an email to the other Tribunal members as follows (as written):

At folio 386 on the main file the lawyer acting for the Complainants is seeking leave to make oral submissions to the Tribunal on 28 October 2013. (its submission says 25 October in a number of places in error). My reading of the file so far does not cause me to believe that we should do other than decide on the papers. If you have a different view let me know when you can. If we were of the view that there was a need for oral submissions then I think that would be better at an adjourned meeting sometime later – if you agree with this bit then we can hold our final decision until the review meeting on 28 October 2013.

The other Tribunal members agreed with that position.

61    By fax on 17 October 2013, Mr Cassidy complained about the length and legal argument contained in Equity Trustees’ submission lodged after 5 September 2013 on the basis that Equity Trustees’ letter of 5 September 2013 had said that “we do not wish to make any further submissions in regard to this matter”. The letter also said (as written) (emphasis added):

In the writers previous correspondence he referred to the further submissions made by Equity Trustees without elaborating on those further submissions.

…

Each of the parties made a primary submission and this later submission appears to be an attempt by ET to shore up its initial submission and introduces legal arguments to which the complainants should have a right to reply. To provide otherwise restricts, unduly, the complainant’s rights.

…

Furthermore your Mr Tse notes that the Tribunal is allowing the further submission of ET “in the interests of fairness and for the sake of completeness”. Well that should apply to both sides should it not?

We look forward to your response.

62    Mr Tse responded to Mr Cassidy on behalf of the Tribunal on 18 October 2013 at 9.33 am:

Though the Tribunal asks for submissions not to contain any new information, nor did our last correspondence to all parties seek a response submission, the Tribunal can not prevent parties from lodging additional submissions that may or may not contain new material.

As such, the Tribunal will not seek for any party to provide any further information, however, should the Trustee and your clients enter into continuous submissions, rebuttal/response submissions etc, the Tribunal will simply exchange all documents received.

The Tribunal will not advise any party that they can not provide any further information.

Having regard to these submissions, should any submission contain information that the Review Panel may rely on in forming their Determination, correspondence will be issued to all parties inviting them to make comment on the material.

63    On 21 October 2013 at 9.48 am, Mr Cassidy sent a fax to the Tribunal attaching a copy of the letter dated 17 October 2013 “[i]n case you didn’t receive same” and ending: “We need to know about personal representation as soon as possible please.”

64    A file note of Mr Tse’s dated 21 October 2013 at 12.23 pm indicates that he also received a call from Mr Southwell on the topic of whether the Southwells would be allowed representation at the review meeting. Mr Tse went on to say:

…

2.    I advised Ray that we had twice received the request and initially, we responded by telephoning John [Cassidy] advising that for us to consider this request, we require reasoning, and that no reasoning had been received.

3.    I advised Ray that recently, John had placed another request and again without reasoning, so I telephoned the office leaving a message with his receptionist and emailing his office advising that we require reasoning, and no reasoning had been received to date.

4.    Ray noted this and advised he would organise John to telephone myself.

65    At 3.21 pm on 21 October 2013, Mr Tse sent an email to the Tribunal members attaching correspondence “from the Complainant’s [sic] solicitor”, noting that the Complainants are seeking approval for the presence of their Counsel at the review meeting to provide an oral presentation, pointing out that he has telephoned, emailed and faxed the Tribunal’s response seeking reasoning for this and concluding that should reasoning be received it would be given to the Tribunal members.

66    By letter dated 21 October 2013 sent by Mr Tse to Mr Cassidy, Mr Tse reiterated his attempts to contact Mr Cassidy and attached copies of his emails of 15, 17 and 18 October 2013, and noted that the 17 October email was an exchange of further material received from the Trustees.

67    At 3.57 pm on 21 October 2013, Mr Cassidy wrote to Mr Tse acknowledging receipt of the “copy emails” sent to him that afternoon and saying that:

We intended sending Counsel to the proposed hearing. We would like a straight answer as to whether our Counsel can attend. Yes or No - and if no - the reason why.

68    On the same day at 4.38 pm, Mr Tse wrote to Mr Cassidy:

The answer to your question is no, however, should reasoning be received, the request will be reviewed by our Chair who will approve or decline your client’s [sic] request.

Section 34(2) of the Superannuation (Resolution of Complaints) Act 1993 (the SRC Act) provides that the Tribunal may allow, if necessary, an order to allow a party to make an oral submission to the Tribunal at the Review Meeting.

I respectfully state that the Tribunal communicated to you verbally and in writing that it requires reasoning as per why you seek Counsel to attend the Review Meeting, and to date, no reasoning has been provided.

As such, the Tribunal is unable to determine if an oral submission by your Counsel is necessary.

Please note that I will be out of the office tomorrow. I have copied in my work colleague, Paul Anderson, who will be able to assist in my absence.

69    A file note of Mr Tse’s which appears to have been written at 4.39 pm indicates that this advice was based on an informal discussion with “Jocelyn [Furlan], Chairperson”.

70    On the same day at 6.49 pm, Mr Christie wrote to Mr Tse (and the other members of the panel indicated their agreement):

My reading of the document submitted by the Trustee, to which the Complainant refers, is that it can be correctly classified as a response submission. The legal arguments seem to me to be in response to the lawyers for the Complainants seeking to link the Officer of the Administrator to the Trustee in respect of any personal financial advice he may have given. I do not see any new matters. Having said that clearly the Complainants are free to submit further arguments – to do so by the end of the week would be ideal.

In respect of the request to appear I think lawyers for the Complainant need to make a clear case – at this stage all that can be done is to say that if a case is accepted by the Tribunal then the hearing would have to be adjourned given the location of each Tribunal member on 28 October 2013. Given the nature of our notice they probably think we are all in Melbourne.

71    In an email chain commencing on 22 October 2013, Mr Cassidy wrote to Mr Tse:

We have your email of yesterday afternoon. Are you saying our letter dated 17 October 2013 has been read and rejected?

Seven minutes later, Mr Cassidy wrote to Ms Cerlo of the Tribunal:

We have been corresponding with Damien and require an urgent answer.

Please see my email below together with email from Damien yesterday. Could you please pass it onto Paul Anderson urgently?

On 23 October 2013, Mr Anderson responded to Mr Cassidy:

I have discussed your email below with the Chairperson.

The Tribunal does not consider that it is necessary in all the circumstances for an oral submission to be made at the Review Meeting.

As such the Tribunal will conduct the Review Meeting on the basis of the papers on the Tribunal’s file.

72    On 24 October 2013, Mr Tse wrote to the panel members indicating that he had been out of the office and was “playing catch up”. Concerning Mr Christie’s email (at [70] above), he confirmed that he had discussed the matter with the Chair who declined the request for oral submissions because no reasoning had been provided.

Complaints Act

73    A person may make a complaint to the Tribunal that a decision made by the trustee of a fund in relation to a particular member or a particular former member of a regulated superannuation fund is or was unfair or unreasonable: s 14.

Powers of Tribunal in relation to a complaint under s 14

74    The powers of the Tribunal in relation to a complaint under s 14 are set out in s 37 which relevantly provides:

37    Tribunal powers—complaints under section 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; …

was fair and reasonable in the circumstances.

75    The role of the Tribunal was explained by Moore J in Marks v CSS Board of Trustees [2005] FCA 797 (“Marks”) at [23]):

… the Tribunal should assess the evidence itself and make findings. That is not to say, of course, that it cannot accept findings made by the prior decision maker if it agrees with them. However, s 37(6) of the Complaints Act does not authorise, in my opinion, the Tribunal simply reviewing all factual issues and indicating that findings by the prior decision maker were fair and reasonable. That subsection is intended to operate on the ultimate decision made by the prior decision maker, namely the decision under review. What the Tribunal must do is form a view about necessary facts, determine what the facts are and then by reference to those ascertained facts determine whether the decision of the prior decision maker was fair and reasonable in the circumstances. The facts ascertained by the Tribunal constitute “the circumstances” by reference to which the Tribunal makes that evaluation.

Review meetings

76    If the Tribunal has attempted to settle a complaint by conciliation but has been unsuccessful, the Tribunal must fix the date, time and place for a “review meeting”, the Tribunal must invite the parties to make submissions by the date specified in the notice and the date specified for the meeting must allow a reasonable period for the parties to make written submissions: s 32.

77    A “review meeting” is a “meeting under Part 6 to review the decision of the trustee or superannuation provider to which the complaint relates”: s 3.

78    The heading of Pt 6 Div 2 is “How the Tribunal informs itself about the decision or conduct under review”. The division relevantly provides:

    That a party to a review meeting may make written submissions to the Tribunal for the purposes of the review meeting: s 33.

    The Tribunal must conduct a review meeting without oral submissions from the parties but it may, if it thinks necessary, make an order allowing the parties to make oral submissions at the meeting. If it makes such an order, the Tribunal must give the parties written notice of the date, time and place fixed for making oral submissions. If a party or its representative does not attend at that time, the review meeting may be conducted without oral submissions: s 34(1), (2), (3) and (5).

    The Tribunal may allow oral submissions by telephone, closed circuit television or other means of communication: s 35.

79    The meeting procedure specified by s 36 is that in reviewing a decision or conduct, the Tribunal is not bound by technicalities, legal forms or rules of evidence; it is to act as speedily as proper consideration of the review allows having regard to the objects laid down in s 11 and the interests of all the members of the fund; and it may inform itself of any matter relevant to the review in any way it thinks appropriate.

Appeals to Court

80    A party may appeal to the Federal Court on a question of law: s 46(1). The Court may make such order as it thinks appropriate, including 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 directions of the Court: s 46(3) and (4).

81    It is not the role of the Court to review the merits of the Tribunal’s decision. It is the role of the Court to determine whether legal error has been demonstrated on the part of the Tribunal.

Trust Deed

82    The original trust deed for the Fund dated 10 June 1974 could not be located, so Equity Trustees made a declaration on 8 May 2007 of the terms on which it would administer the Fund. It has subsequently been amended and the parties agreed that those amendments are not relevant for the purposes of this application.

83    Clause 6 of the Trust Deed deals with the division of the Fund into “Strategies”, and the entitlement of members to choose the “Strategy” in which to invest. The clause relevantly provides:

6.     STRATEGIES

6.1     Strategies

The Trustee may divide the Fund into Strategies and determine what forms of investment are to apply to each Strategy. If the Trustee does so, contributions to the Fund are allocated to the Strategies to which the Member or the Member’s Employer has requested that the contributions be allocated. A Member has an interest in each Strategy into which contributions and other amounts have been paid for the Member.

…

6.3    Allocation of Assets and Liabilities to Strategies

The Trustee must maintain the records of the Fund to identify which assets and liabilities are attributed to a Strategy and credit income and outgoings to the Strategy to which they are, in the opinion of the Trustee, attributable.

…

6.5     Switching of Strategies

A Member may request the Trustee to switch amounts between one Strategy and another and the Trustee has an absolute discretion to decide whether to give effect to such a request.

84    Clause 10 deals with Accounts. It provides in part:

10.1    Members’ Accounts

The Trustee must maintain for each Member a Member’s Account to which contributions in respect of that Member, investment earnings, insurance proceeds and other amounts attributable to the Member are credited and to which fees, expenses, taxation, insurance premiums, benefits paid and other amounts attributable to the Member are debited.

10.2    Allocation of Interim Earning Rate

The Trustee may allocate to the Member’s Account of a Member, in respect of whom a benefit is being paid, an interim earning rate determined by the Trustee to apply from the date in respect of which an allocation to that account was last made to the date on which the benefit is being paid.

85    Clause 21 of the Trust Deed deals with the powers and discretions of the trustee. It provides, in part:

21.     POWERS AND DISCRETIONS OF TRUSTEE

21.1     Powers

The Trustee shall have complete management and control of the Fund and shall, in addition to the powers otherwise granted by this Deed and conferred on trustees by statute and general law, exercise any of the following powers:

…

21.1.11    to act on a direction given by a Court, the Regulator or the Superannuation Complaints Tribunal established under the Superannuation (Resolution of Complaints) Act 1993 (Cwlth);

21.1.12    to comply with covenants of trustees imposed by the Superannuation Industry (Supervision) Act 1993 (Cwlth);

Tribunal Decision

86    The Tribunal held that the Trust Deed “does not have a specific power allowing the Trustee to compromise a claim and therefore that power is derived from the relevant Trustee Act”. In New South Wales, the power of a trustee to compromise a claim is provided in s 49(1)(d) of the Trustee Act 1925 (NSW).

Decisions under review

87    The Tribunal described the decisions under review as follows:

2.    The decisions under review are those of the Trustee refusing to compromise the claims of [Mr Southwell] and [Mrs Southwell] (‘the Complainants’) for losses incurred as a result of the failure on the part of the Trustee to activate investment switch requests made by the Complainants and the losses due to the alleged increases in fees without prior advice to members.

3.    The Trustee notified the Complainants of its decisions by an email to [Mr Southwell] dated 5 November 2010 and, following review, by letters to [Mr Southwell] and [Mrs Southwell] dated 28 July 2011.

Mr Southwell

88    The Tribunal noted:

    A letter to the Trustee in April 2011, in which Mr Southwell told the Trustee that “it took a lot of badgering for (sic) [Mr Hayes-Williams] for me to reluctantly change my mind”;

    The hand-written notation concerning staying in the “Balanced” option “until further notice”;

    The statutory declaration of 12 September 2013 in which Mr Southwell had declared that no instruction to remain in the “Balanced” option was given to Mr Hayes-Williams; and

    The claims made by the Southwells that the Administrator did not adhere to the Trustee’s published standards by not processing the Switching Forms by 1 April 2009 and that Mr Hayes-Williams had no authority from the Trustee to place the call to Mr Southwell on 15 April 2009 or to provide financial advice.

89    The Tribunal’s view was that “no weight” could be placed on the fact that Mr Hayes-Williams called Mr Southwell on 15 April 2009. Noting that the Southwells claimed that the administrator did not adhere to the Trustee’s published standards and that Mr Hayes-Williams had no authority from the Trustee to call Mr Southwell or give financial advice, the Tribunal determined that it was not inappropriate for Mr Hayes-Williams as a representative of the Trustee to contact a member if he thought there was an issue to be discussed. Even though the call occurred after 1 April 2009, had Mr Southwell confirmed that the Switching Forms should be acted on, the Administrator would be required to process the Switching Forms effective on that date. Accordingly, the “key question” was whether the Trustee’s decision that Mr Southwell had given Mr Hayes-Williams an instruction that he remain in the “Balanced” option was a fair and reasonable one.

90    Having noted that there was “conflicting evidence” from Mr Southwell about what he said to Mr Hayes-Williams, the Tribunal went on to consider that Mr Southwell received a benefit statement for the year ending 30 June 2009 on 29 January 2010 which clearly showed that he was in the “Balanced” option and Mr Southwell wrote letters on 26 August 2010 and 16 September 2010 raising issues about the investment performance of the “Balanced” option. The Tribunal found that those communications indicate that Mr Southwell believed that he was still in the “Balanced” option and therefore Equity Trustees’ decision that Mr Southwell gave a direction that he remain in the “Balanced” option was fair and reasonable. Whether the advice Mr Hayes-Williams gave Mr Southwell constituted general or personal advice (as to which Mr Southwell may have remedies against the Trustee or the Administrator respectively) did not alter the Tribunal’s view that Equity Trustees’ decision that the instruction was given was fair and reasonable.

Mrs Southwell

91    The Tribunal found there was no evidence that Mr Southwell was authorised to act on Mrs Southwell’s behalf. It found at [29]:

… Close cooperation between two parties cannot be construed as transferring authority from one to the other; each party retains its own authority unless it is clearly assigned. The original switch form was signed by [Mrs Southwell] and it would be unreasonable to suggest that this direction could be countermanded verbally by a third party no matter how close to [Mrs Southwell]. The Tribunal considers that the decision of the Trustee that [Mr Southwell] had the authority to direct the Trustee on behalf of [Mrs Southwell] was unfair or unreasonable.

92    However, the Tribunal did not adjust Mrs Southwell’s account balance to what it would have been had she been switched to the “Conservative” option from 1 April 2009 to the date of the determination. It decided that Equity Trustees must adjust Mrs Southwell’s account balance to give the result that would have occurred if Equity Trustees had processed her investment switch to the “Conservative” option on 1 April 2009 and held it in that option until 1 March 2010. It reasoned as follows at [30]:

The Trustee sent [Mrs Southwell] a statement of her benefits as at 30 June 2009. The covering letter was dated 29 January 2010. In that statement it was clear that [Mrs Southwell] was invested in the Balanced Option. At that stage it was open to [Mrs Southwell] to raise her concerns with the Trustee if she believed she should have been in the Conservative Option. Had [Mrs Southwell] done this then she could have given the Trustee new instructions and such instructions could have been implemented effective 1 March 2010.

Common issue – Tribunal’s failure to allow oral submissions

93    Mr Southwell’s first ground of appeal is that the Tribunal erred in law by denying him procedural fairness when it failed to grant an oral hearing in circumstances where there was a significant issue of fact as to whether or not he had given oral instructions to Equity Trustees by way of the telephone conversation with Mr Hayes-Williams on 15 April 2009.

94    Mrs Southwell’s first ground of appeal as it was originally cast was that an oral hearing should have been ordered by the Tribunal in order for the procedural fairness requirement to be met in relation to the quantum by which her account would be adjusted. The parties’ written submissions addressed her first ground from that angle.

95    Each of the Southwells now say that the Tribunal erred in law by failing to take into account the relevant consideration that they had provided written reasons seeking an oral hearing; ground 1A was added to each of the Southwells’ grounds of appeal at the end of the hearing.

96    It is convenient to deal with these grounds together because they address the common issue of whether the Tribunal should have acceded to the Southwells’ repeated requests to be legally represented at the Tribunal’s review meeting and be afforded the opportunity to make oral submissions.

Legal principles

97    There is a common law duty to observe procedural fairness where the exercise of power is liable to affect a person’s rights, interests or legitimate expectations, subject only to a clear manifestation of a contrary statutory intention: Kioa v West (1985) 159 CLR 550 at 584 per Mason J. An appeal on the ground of denial of procedural fairness is an appeal on a question of law: Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8] per Gray ACJ and North J; Employers First v Tolhurst Capital Ltd (2005) 143 FCR 356; [2005] FCA 616 (“Employers First v Tolhurst Capital”) at [63] per Branson J. It is accepted by this Court that the doctrine of procedural fairness is applicable to decisions made by the Tribunal: Smith v Superannuation Complaints Tribunal [2008] FCA 1528 at [19] per Collier J.

98    The content of the obligation of procedural fairness varies according to the circumstances of the case. The statutory provisions governing the exercise of a body’s jurisdiction is a relevant circumstance informing the content of the procedural fairness obligation: R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553.

99    There is no right to an oral hearing in administrative proceedings: NAHF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359 at [33] per Hely J. An oral hearing may be required where there is a factual dispute between the parties, or where the credibility of material witnesses is at issue.

100    Where a ground of review is that a relevant consideration has not been taken into account, it is necessary first to see whether the decision-maker’s discretion is confined by the terms of the statute. Where it is not, the Court must then consider whether the decision-maker is bound to take a particular matter into account by implication found from the subject-matter, scope and purpose of the statute: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J.

Consideration

101    Section 34 of the Complaints Act deals with the conduct of Tribunal meetings. It relevantly provides:

34    Tribunal meetings

(1)    Subject to subsection (2), the Tribunal must conduct a review meeting without oral submissions from the parties.

(2)    The Tribunal may, if it thinks necessary, make an order allowing the parties to make oral submissions to the Tribunal at the review meeting.

102    The correspondence from the Tribunal and the parties concerning the possible timing of a review hearing emphasises the very high volume of complaints with which it must deal. The scheme prescribed for the conduct of review meetings under the Complaints Act (summarised at [76]-[79]) is designed to accommodate this volume of complaints by emphasising a paper based process except where the Tribunal “thinks [it] necessary” to depart from that standard.

103    The Tribunal must accept oral submissions in circumstances where procedural fairness requires it. If the parties have a fair opportunity to be heard through their written submissions, then there will be no error on the part of the Tribunal in refusing to allow oral submissions: Samaras v Australian Retirement Fund Pty Ltd [2007] FCA 1323 at [55] per Gordon J.

Grounds 1A

104    For the purpose of forming a view as to whether oral submissions are necessary, it is entirely appropriate for the Tribunal to require the party proposing that course to articulate clearly the reasons supporting the request. Having regard to the fact that much of the work of the Tribunal is done through staff in advance of a review meeting, it would be appropriate that the reasons for requesting an oral hearing be addressed in writing so that those reasons can be communicated to the Tribunal members so that they can make a decision.

105    Counsel submitted that Mr Cassidy’s letters of 14 and 17 October 2013 were a request for a right to reply to Equity Trustees’ submissions (presumably the written submissions of 5 and 30 September 2013) and for that right to be exercised orally; the course of correspondence indicates to me that that meaning was not conveyed to the Tribunal: see [57], [58], [59] and [62] above. The letter of 14 October appears to be confirmation of instructions in relation to the request to make oral submissions made on 3 September 2013 (see [46] above), although I note that this request was also made in the Southwells’ written submissions of 12 September 2013. The Tribunal was entitled to understand the additional words “particularly having regard to the latest submissions by the Trustee” as recognition of the impetus for the instructions being given rather than the reasons requested by the Tribunal. It is apparent that the Tribunal understood Mr Cassidy’s complaints in the 17 October letter to be about the fact that Equity Trustees had submitted a lengthy submission dated 30 September 2013 (having said it would not make further submissions on 5 September 2013) to which they wanted the opportunity to respond. In my view the Tribunal was entitled to understand the 17 October letter as a simple request to be allowed to respond which was not obviously directed at oral submissions. The Tribunal responded by saying that the Southwells were free to respond to Equity Trustees’ submissions in writing.

106    It is difficult to understand why Mr Cassidy did not give a plain answer to the Tribunal’s repeated requests for reasons which would justify an order that there be oral submissions at the review meeting. When he invited the Tribunal to be blunt, it was: the answer by email on 21 October 2013 was “[t]he answer to your question is no, however, should reasoning be received, the request will be reviewed by our Chair who will approve or decline your client’s [sic] request” (see [67] and [68] above). This email plainly indicated that the Tribunal was willing to consider the request when the Southwells provided reasons for it to adopt a course which the statute directs it to take only when the Tribunal “thinks [it] necessary” but that it did not think it had been given those reasons. Mr Cassidy’s apparent failure to understand the answer and his response “[a]re you saying our letter dated 17 October 2013 has been read and rejected” is obscure and did not advance the matter. It was always open to Mr Cassidy to say clearly “I have given the Tribunal reasons in my letters of 14 and 17 October; if you think they are inadequate please tell me what you need in order to make a decision in light of the repeated requests for reasons”. The Southwells never clearly articulated to the Tribunal why they thought oral submissions were necessary or what oral submissions could achieve which written submissions could not.

107    For completeness, I do not accept the Southwells’ argument that Mr Tse purported to exercise the Tribunal’s power to accept or reject an application for an order to make oral submissions; he was performing a secretarial function in communication with and under the direction of the Tribunal. Mr Tse exhibited remarkable patience and grace in attempting to facilitate the Southwells’ request to be allowed to make oral submissions.

108    Last, even if I had been satisfied that the Southwells had clearly articulated their reasons to be allowed to make oral submissions, the failure of the Tribunal to consider the reasons with the result that it refused them an oral hearing would not vitiate the Tribunal’s ultimate decision in relation to the resolution of the Southwells’ complaints. The ground for vitiating the Tribunal’s determinations would be that the Tribunal failed to accept oral submissions or hold a hearing in person in circumstances which required either course for the purposes of procedural fairness.

109    Grounds 1A of the appeals have not been made out.

Mr Southwell’s ground 1

110    I accept that Mr Southwell’s statutory declaration of 12 September 2013 and the submissions of that date lodged with the Tribunal on behalf of both of the Southwells raised the issue of whether Mr Southwell did act on advice provided by Mr Hayes-Williams in the telephone call which occurred on 15 April 2009 or whether he simply hung up without acceding to Mr Hayes-Williams’ suggestions that he should change his mind. I also accept that Equity Trustees’ submissions to the Tribunal provided on 30 September 2013 expressly took issue with the perceived change of position from Mr Southwell’s earlier correspondence with Equity Trustees and the Tribunal. However, I do not accept that procedural fairness requires this issue to be addressed in oral submissions.

111    Counsel for the Southwells submitted that:

    Mr Southwell had made repeated requests for an oral hearing and he was entitled to make oral submissions because the Tribunal made an adverse finding on an issue of Mr Southwell’s credit in circumstances where Mr Southwell was at risk of the loss of a significant proportion of his superannuation;

    Mr Southwell could develop in oral submissions the argument that even if the Tribunal found that he had said words to Mr Hayes-Williams which indicated that he did not want his investment to be switched, the spoken words did not indicate “true consent”; and

    It was reasonable to seek an opportunity to make oral submissions to tie everything up in a situation where paperwork was going back and forth between the parties in a very confusing way.

112    I reject these submissions.

113    This is not a case where the Tribunal was called upon to make a decision about who was to be believed as between conflicting witness statements. Counsel did not suggest that the purpose of the request to make oral submissions was to test any witness by oral evidence.

114    The evidence which the Tribunal had to consider was Mr Southwell’s statutory declaration of 12 September 2013 and the conflicting documents which it said it took into account including: Mr Southwell’s letter to the Trustee of 27 April 2011 (see [29] above), Mr Southwell’s benefit statement of 29 January 2010 which indicated he was still in the “Balanced” option at that date and letters dated 26 August and 16 September 2010 in which Mr Southwell complained about the performance of the “Balanced” option: see [25] of the Tribunal’s reasons. To this might have been added, Mr Southwell’s letter to the Tribunal of 18 February 2011 and his formal complaint of 28 October 2011 (see [28] and [38] above). Oral submissions could not change that evidence, nor is it apparent what function they could perform which written submissions could not. Mr Southwell was on notice that it was Equity Trustees’ view that the “critical issue” was whether Mr Southwell gave Mr Hayes-Williams an instruction that he remain in the “Balanced” option on 15 April 2009: that was raised in its submission of 30 September 2013 and Mr Southwell’s legal advisers also plainly understood this to be in issue as at 20 September 2013: see [52] and [53] above. Mr Southwell had adequate opportunity to address this issue in writing before the review meeting.

115    Second, an argument about “true consent” could be made as easily in writing as orally; it would be inappropriate for that issue to be raised for the first time at the review meeting in oral argument.

116    Third, the discharge of the procedural fairness obligation does not require the Tribunal to provide an opportunity to parties to “tie everything up” in oral submissions. The obligation is to ensure the opportunity for the parties to be heard. If that is able to be done on the papers, as s 34 contemplates will be the ordinary course, then that is sufficient.

117    I am satisfied that Mr Southwell had adequate opportunity to put his evidence and arguments to the Tribunal and accordingly his first ground of appeal has not been made out.

Mrs Southwell’s appeal

118    The other questions of law and grounds of appeal relied on by Mrs Southwell are set out in full at [13]-[14]. I will deal with them together, because they are interrelated.

119    Counsel for the appellants submitted that Mrs Southwell thought that the issue she had to meet was whether Mr Southwell had the authority to change the investment option on her behalf. He submitted that even though the Tribunal found that Equity Trustees’ decision was not fair and reasonable, the Tribunal made a decision adverse to Mrs Southwell because the Tribunal decided to adjust Mrs Southwell’s account balance only for the limited period of 1 April 2009 until 1 March 2010. Counsel submitted that procedural fairness required the Tribunal to put Mrs Southwell on notice that any relief might be limited by reason of delay in bringing to Equity Trustees’ attention the administrator’s failure to switch her investment from the “Balanced” option to the “Conservative” option and give her an opportunity to be heard on that issue.

120    Counsel submitted that associated with that want of procedural fairness, the Tribunal failed to take into account the relevant considerations of her reason for delay in complaining that her Switching Form had not been acted on and the fact that she did continue to enquire as to what happened to her Switching Form from about 3 November 2010.

121    On the question of whether Mrs Southwell had adequate notice that delay would be relevant to the Tribunal’s consideration of her application for review, argument centred on Mr Tse’s letter to the Southwells dated 12 July 2012 which is mentioned at [43]. The letter stated (as written):

I refer to your complaints against the Bookmakers Superannuation Fund and acknowledge your correspondence dated 22 June 2012.

… I note that the you both originally raised several issues to the Trustee and the Tribunal, of which some have been resolved, leaving two outstanding issues of which are as follows:

1.    Both your investment switches of 2 March 2009; and

2.    The alleged increase in Management Fees.

Representation

Please note that the Tribunal has exercised its discretion under section 23 of the Superannuation (Resolution of Complaints) Act 1993 to allow Janette Southwell to be represented by Ray Southwell. Having regard to this, the Tribunal will be corresponding to both of you in one correspondence.

The Tribunal will now continue its investigation and requires the following information:

1.    The Tribunal acknowledges both your investment switch forms of 2 March 2009, and the cancellation of your investment switches via a telephone conversation of 15 April 2009 between Mr Ray Southwell and Mr Peter Hayes-Williams (topic of complaint).

Documentation provided by the Trustee and you both indicates that the first time the non processing of your investment switches was raised to the Trustee was via Ray Southwell’s correspondence dated 3 November 2010.

Please confirm why this was only followed up approximately 19 months later?

122    Counsel for the Southwells submitted that this document used insufficiently plain words to put Mrs Southwell on notice that her conduct in the period from 29 January 2010 to March 2010 was relevant to its decision in respect of her complaint. Counsel noted that although the letter from Mr Tse was addressed to both of the Southwells, the salutation was “Dear Mr Southwell”, it did not employ the word “delay” and it did not expressly say that the delay might count against her. Counsel relied on the decision of the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2 in which the Court (Northrop, Miles and French JJ) noted that, in the circumstances of particular cases, the subject of a decision is entitled to (1) have his or her mind directed to “the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it”, and (2) respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material.

123    Counsel submitted that Mrs Southwell did not have adequate opportunity to give evidence to the Tribunal which would establish that she had good reasons not to have sufficient regard to the balance of account advice sent to her on 29 January 2010 which indicated that her investment was in the “Balanced” option. I will, for convenience, refer to this advice as “Account Advice”. Mrs Southwell swore an affidavit of 19 June 2014 for the purposes of these proceedings; Equity Trustees did not object to its admission. Mrs Southwell deposed that if her lawyers “were made aware of the Tribunal’s intention to make an adverse finding about my failure to respond to the Trustee’s correspondence of 29 January 2010”, she would have given her lawyers instructions to provide details of the illness of her daughter-in-law, the breakdown of her son’s marriage and the calls that her support of her son’s family made on her time. Her evidence included:

14.    This whole time, Rebecca and her family needed a lot of extra support. The period following Rebecca’s operation was quite stressful for me. In hindsight, during this period, I began to suffer onset symptoms relating to Parkinsons Disease. I became very tired physically, and affected emotionally by the breakup of my son’s marriage. I devoted a lot of time assisting as much as possible with my grandchildren.

15.    My major concern was the emotional and physical well being of my daughter-in-law, my son, and my 2 grandchildren. I had little time to think about my own affairs.

124    There are some difficulties with Counsel’s propositions.

125    First, Mr Tse’s letter of 12 July 2012 is addressed to both of the Southwells. While the salutation in the letter refers to Mr Southwell, under the heading “Representation” Mr Tse advised that “the Tribunal will be corresponding with both of you in one correspondence”, having regard to Mrs Southwell’s recent (22 June 2012) request to be represented by Mr Southwell: see [42] above. I am satisfied that the Tribunal was communicating with Mrs Southwell in a manner which she requested about her complaint.

126    Second, while the language of Mr Tse’s letter does not use the term “delay”, on a plain reading that is the issue which it raises. The Southwells’ legal advisers understood that that was the issue. Mr Southwell’s statutory declaration of 12 September 2013 at [15]-[16] and the submissions of that date on behalf of Mr and Mrs Southwell at [14] were directed to the issue of delay: see [48]-[50] above.

127    Having said that, I accept that the Tribunal’s decision not to require Mrs Southwell’s account to be adjusted for the whole period after 1 April 2009 as if her investment had been switched to the “Conservative” option on that date is relevantly adverse to her interests.

128    I do not accept that Mr Tse’s letter of 12 July 2012 was adequate to put Mrs Southwell on notice as to how “delay” was relevant to the Tribunal in substituting a decision which would remedy the unfairness or unreasonableness of the Trustee’s decision of 28 July 2011 in accordance with s 37(4). There is nothing in the Tribunal’s correspondence which indicates how the Tribunal proposed to address the issue of delay; it is highly unlikely that the Tribunal had formed a view at that stage in July 2012 when the investigation was not yet complete and so far in advance of the review hearing which had not yet been set down.

129    I do not accept Equity Trustees’ submission that the issue was sufficiently raised because the Southwells’ lawyers were made aware by an email from Mr Tse at 3.57 pm on Friday, 25 October 2013 that the Tribunal had requested the Trustee to “provide a copy of Mr Ray Southwell’s 2009 statement, and confirmation of when the 2009 and 2010 statements were issued” and the fact that the information would be “forwarded to our Review Panel for their perusal”. The Tribunal neither told the parties why it sought the information nor invited submissions concerning it. The review meeting was scheduled for the following Monday, so there was no time for the information to be evaluated and submissions made.

Conclusion

130    The procedural fairness obligation requires the Tribunal not to make a determination adverse to the interests of a party to a review without giving that party a reasonable opportunity to provide evidence and make written submissions to the Tribunal on the approach that the Tribunal is contemplating: Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321; [1999] FCA 1277 at [35] per Spender, Drummond and Mansfield JJ; Employers First v Tolhurst Capital Ltd at [69].

131    Because she did not have notice of how delay might be relevant to the Tribunal in substituting its decision for the Trustee’s decision of 28 July 2011, Mrs Southwell was not in a position to provide submissions concerning the approach the Tribunal proposed to take including as to the appropriateness of any period of delay on which the Tribunal proposed to rely and the consequences which should flow from the delay having regard to the Tribunal’s obligations under s 37(4). I am therefore satisfied that the Tribunal did not afford Mrs Southwell procedural fairness. Once the Tribunal decided that delay was a relevant factor (whether at or before the review meeting), it was appropriate to seek submissions from Mrs Southwell and Equity Trustees as to the matters relevant to the exercise of its power to substitute its decision under s 37(3) having regard to s 37(4) before making a determination to substitute its own decision.

132    The Tribunal’s decision that the Trustee’s decision of 28 July 2011 was not “fair and reasonable” was not challenged; I will remit the matter back to the Tribunal for the purpose of determining the decision it will substitute for the decision made by the Trustee on 28 July 2011. For that purpose, there are some issues which remain to be addressed.

133    First, Mrs Southwell challenged why delay was a relevant consideration because there is nothing in the Trust Deed, any relevant product disclosure statement, application form, switching form or an account statement which puts members on notice that delay in advising the Trustee of an apparent error in relation to his or her investment prejudices the member’s right to claim remedies rectifying or compensating for the error. To the contrary, there are statements in the product disclosure statement and Mr Hayes-Williams’ letter to the Southwells of 9 March 2009 which indicate that switching forms will normally be processed within 30 days. Counsel submitted that a consideration based on delay in making a complaint inappropriately throws the onus onto Mrs Southwell when the onus should have been on the Trustee to justify its failure to act upon Mrs Southwell’s Switching Form.

134    The Complaints Act does not specify the considerations that the Tribunal is bound to take into account but one of its purposes which is apparent from its subject-matter and scope is to ensure members and beneficiaries are not adversely affected by unfair and unreasonable decisions of trustees: Board of Trustees of the State Public Sector Superannuation Scheme v Edington (2011) 119 ALD 472; [2011] FCAFC 8 (“Edington”) at [49]. Having regard to the power to be exercised by the Tribunal under s 37(3) and (4), in my view the Tribunal can legitimately take into account delay by a superannuation fund member to take action to rectify an error in the administration of the member’s account after the member becomes aware of it. In determining what is necessary to remove the effect of an unfair or unreasonable decision by a trustee, it might be expected that the Tribunal would take into account any express provisions in documents of a kind referred to in [133]. Even when there is no express provision, as the Complaints Act is directed to relief from unfair or unreasonable decisions, it would be appropriate for the Tribunal to adopt similar considerations to a court of equity in granting equitable relief; laches has long been regarded as a relevant disqualifying factor. In my view the Tribunal would not err in considering whether a member of a superannuation fund acted reasonably in his or her own interests by taking action to correct the error within a timeframe which is reasonable in all relevant circumstances. Otherwise it would be open to a member to “wait and see” for an indeterminate period what option would turn out to his or her best advantage and the Tribunal’s jurisdiction does not mandate that sort of advantage.

135    Contrary to Mrs Southwell’s arguments, I do not consider that any failure by the Trustee or administrator to act on a “switch” request in accordance with a timeframe set out in a published standard or guideline as that which will be applied in the usual course must be determinative in Mrs Southwell’s favour. My view that the Tribunal is entitled to take into account the member’s delay in raising a complaint would not be altered even if the Southwells’ argument were found to be correct that the failure of the Trustee or administrator to act on Mrs Southell’s switching form (or to advise her that it had not) constitutes a breach of any covenant to act diligently implied by s 52(2)(b) of the Supervision Act or in breach of fiduciary duty. Mrs Southwell may have recourse for any such breach against the Trustee or the administrator but I make no finding as to whether that is so.

136    Second, Mrs Southwell challenged why the fact that she did complain “on 3 November 2010” was not relevant. It was not relevant because Mrs Southwell did not complain on that date: while Mr Southwell enquired what happened with the Switching Forms there is no submission or evidence which indicates that Mr Southwell was authorised to act for Mrs Southwell in her dealings with the Trustee. Mrs Southwell first complained to the Trustee on 27 April 2011, as to which see below.

137    Third, having regard to s 37(4), if the Tribunal thinks that delay is a relevant consideration, it would be appropriate for the Tribunal to consider mitigating or otherwise relevant circumstances. These might include:

    Statements made by the Trustee or administrator that “switches” will usually be effected within 30 days;

    The fact that, and reason why, Mrs Southwell did not follow up with the Fund’s administrator about whether her Switching Form had been acted upon after 1 April 2009 as Mr Hayes-Williams’ letter of 9 March 2009 had advised that the Southwells would be informed in writing when the switch occurred (see [21] above);

    In light of the evidence that correspondence with Mrs Southwell was not returned to the Fund’s administrator and that the Southwells lived at the same address at all relevant times, what the appropriate timeframe would be after the Account Advice was despatched for Mrs Southwell to have raised the issue that the Account Advice indicated that her investment was in the “Balanced” option. I note that since “switch” requests were usually “actioned” within 30 days, it is not clear that Mrs Southwell could have acted within a timeframe which resulted in a switch being effected by 1 April 2010 even if the Account Advice of 29 January 2010 was despatched on its date since February had only 28 days and some time must be allowed for postal delivery. It is unclear when the Account Advice might have been received in the normal course of the mail, and it might be appropriate to allow a period for the member to consider and act on the information in the Account Advice;

    Whether there should be impact on the Tribunal’s decision from the fact that the “freeze” on investments in the “Balanced” option had been in place since mid-2009 with the result that the Trustee was not implementing switch requests to the “Conservative” option. Even at the time the Trustee rejected Mrs Southwell’s complaint on 28 July 2011, switches from the “illiquid” portion of the “Balanced” fund were still not available;

    The fact that Mrs Southwell did ultimately complain to Equity Trustees by letter dated 27 April 2011 and has taken no action to revoke the Switching Form;

    The fact that on 28 July 2011 the Trustee refused to act on Mrs Southwell’s Switching Form in the erroneous belief that it was entitled to act on Mr Southwell’s direction given to Mr Hayes-Williams on 15 April 2009; and

    The likely impact on Mrs Southwell’s account of any period or periods selected by the Tribunal for adjustment; it may be appropriate for the Tribunal to seek evidence from Equity Trustees in that regard before finalising a determination.

138    The weight which the Tribunal accords any of these factors or any other factors which the Tribunal or the parties suggest may be relevant for its consideration or any evidence or submissions it receives upon remittal back to the Tribunal is a matter within its jurisdiction in making a determination having regard to s 37(4).

139    For completeness I note that:

    In my view, the Tribunal is entitled to treat as irrelevant Mr Hayes-Williams’ motivation for, and the fact that he made, the telephone call to Mr Southwell on 15 April 2009 without direction from the Trustee; and

    Mr Southwell’s evidence at [16] of his statutory declaration or the submissions made at [14] of the Southwells’ submissions each dated 12 September 2013 set out evidence of the Southwells’ family circumstances. The matters addressed are to similar effect to those which Mrs Southwell said she would wish to have been able to put to the Tribunal in her affidavit of 19 June 2014. There is nothing in [30] of the Tribunal’s reasons which indicates that the Tribunal took that evidence or submission into account. The weight to be given to that evidence and whether or not the Tribunal accepts it as an adequate reason for delay in any submissions put to the Tribunal upon its reconsideration of its substituted decision is a matter for the Tribunal.

140    In the circumstances, there is no need for me to address Mrs Southwell’s fifth ground, but I note that I would dismiss this ground because I consider that a reasonable decision-maker in the Tribunal’s circumstances is entitled to take delay into account for the reasons set out at [134] above.

Mr Southwell’s appeal

141    The questions of law and grounds of appeal relied on by Mr Southwell are set out in full at [15]-[16]. I have already addressed grounds 1 and 1A.

Ground 2: Failure to make own finding of fact

142    Mr Southwell claims that the Tribunal erred in law by failing to make its own finding of fact necessary to support its decision in relation to him. He claims that the Tribunal did not make its own finding of fact as to whether or not Mr Southwell changed his mind about switching and gave an oral instruction to Mr Hayes-Williams on 15 April 2009 that he should remain in the “Balanced” option in the telephone call initiated by Mr Hayes-Williams.

143    Mr Southwell relies on [20], [25] and [28] of the Tribunal’s reasons. In considering Mr Southwell’s submissions, it is useful to set out the relevant context in which they appear (as written):

Tribunal’s Deliberations

20.    The Tribunal’s role is to determine whether the decisions of the Trustee to reject the Complainants’ claims for losses arising from fee increases and its failure to give effect to investment switch instructions given by the Complainants were fair and reasonable in their operation in relation to the Complainants in the circumstances. The issue is not what decision the Tribunal would have made on the evidence before it. In reaching its determination, the Tribunal took the whole of the evidence and submissions into account.

21.    There is no dispute that both [Mr Southwell] and [Mrs Southwell] completed investment switch forms which were dated 2 March 2009. The instructions given were to switch their account balances from the Balanced Option to the Conservative Option. These forms were faxed to the Administrator on that day. Under the procedures of the Fund the Complainants would have expected that their instructions would have been implemented on 1 April 2009.

22.    On 15 April 2009 the Manager called [Mr Southwell] and had a long discussion and made representations to [Mr Southwell] that by switching his account he would ‘consolidate his losses’ and that the markets would ultimately recover. Clearly the Trustee was of the view that [Mr Southwell] had at the end of this conversation told the Manager that he would remain in the balanced Option and not to process his request. [Mr Southwell] in a letter to the Trustee dated 20 April 2011 [sic: 27 April 2011] said that ‘it took a lot of badgering for (sic) [the Manager] for me to reluctantly change my mind’. In a statutory declaration dated 12 September 2013 [Mr Southwell] declared that no instruction to remain in the Balanced Option was given to the Manager.

23.    The Trustee provided the Tribunal with a copy of [Mrs Southwell’s] switch form on which was a hand written note ‘[Mrs Southwell] to stay in balanced until further notice’. The Trustee advised that this note was signed by the Manager. In a statutory declaration dated 12 September 2013 [Mrs Southwell] declared that she never gave [Mr Southwell] authority to give any further instructions to the Fund about switching her investment.

24.    The Complainants raised a number of concerns about the events that occurred on 15 April 2009. They claimed that the Administrator did not adhere to the Trustee’s published standards, the Manager had no authority to ring [Mr Southwell] and he had no authority from the Trustee to provide financial advice. The Tribunal is of the view that no weight can be placed on the fact that the Manager called [Mr Southwell]. As a representative of the Trustee this was not an inappropriate action if there was a matter he thought should be discussed with the member. Had [Mr Southwell] confirmed to the Manager that he wished the switch to go ahead then the Trustee would still have been required to process the Complainants’ switch instructions effective 1 April 2009. The fact that the conversation took part after that date does not, in the view of the Tribunal, somehow negate any instruction [Mr Southwell] may have given.

25.    The key question is whether the Trustee’s decision that [Mr Southwell] had given the Manager an instruction that he remain in the Balanced Option was a fair and reasonable decision. There is conflicting evidence from [Mr Southwell] about what he said to the Manager. Whilst he indicated on 20 April 2011 [sic: 27 April 2011] that he had given the instruction that he remain in the Balanced Option this was later contradicted in his statutory declaration. On 29 January 2010 the Trustee sent [Mr Southwell] his benefit statement for the year ending 30 June 2009. This clearly showed that he was in the Balanced Option. [Mr Southwell] wrote letters to the Trustee on 26 August 2010 and 16 September 2010 raising issues about the investment performance of the Balanced Option. The Tribunal is of the view that such letters and the lack of any reaction by [Mr Southwell] to his benefit statement tend to suggest that [Mr Southwell] believed he was still in the Balanced Option. The Tribunal therefore considers that the decision of the Trustee that [Mr Southwell] gave a direction that he remain in the Balanced Option was fair and reasonable.

26.    On the day the Manager called [Mr Southwell] it was clear that he was providing advice to [Mr Southwell] about his investment switch. [Mr Southwell] has stated that such advice was provided in a forceful manner. One of the questions raised was whether the advice was personal financial advice or general fund related product advice. Lawyers acting for [Mr Southwell] submitted that it was personal financial advice and that the Manager had no authority from the Trustee to give such advice.

…

28.    The Tribunal is of the view that if the Manager gave personal advice he was not acting as an agent for the Trustee. If it can be established that the Manager was negligent or that he had failed to subsequently provide [Mr Southwell] with a Statement of Advice then [Mr Southwell’s] remedy if any is not with the Trustee. None of the conduct of the Manager altered what the Tribunal sees as a fair and reasonable decision by the Trustee that [Mr Southwell] issued a verbal instruction on which it was reasonable for it to act.

29.    The position in respect of [Mrs Southwell] is in the view of the Tribunal quite different. The Trustee has been unable to provide any evidence that [Mr Southwell] was authorised to act on her behalf. Whilst [Mr Southwell] may have done much of the work that resulted in [Mrs Southwell] signing an investment switch form the authority for such action remained with [Mrs Southwell]. Close cooperation between two parties cannot be construed as transferring authority from one to the other; each party retains its own authority unless it is clearly assigned. The original switch form was signed by [Mrs Southwell] and it would be unreasonable to suggest that this direction could be countermanded verbally by a third party no matter how close to [Mrs Southwell]. The Tribunal considers that the decision of the Trustee that [Mr Southwell] had the authority to direct the Trustee on behalf of [Mrs Southwell] was unfair or unreasonable.

…

32.    For the reasons outlined above and having regard to the evidence submitted, the Tribunal considers that the decision of the Trustee to reject [Mr Southwell’s] claim for compensation for losses suffered as a result of not implementing his investment switch request was fair and reasonable in its operation in relation to [Mr Southwell] in the circumstances. The Tribunal considers that the decision of the Trustee to reject [Mrs Southwell’s] claim for compensation for losses suffered as a result of not implementing her investment switch request was not fair and reasonable in its operation in relation to [Mrs Southwell] in the circumstances.

144    Counsel for Mr Southwell submitted that [20] of the Tribunal’s reasons, and in particular the words “[t]he issue is not what decision the Tribunal would have made on the evidence before it”, is contrary to the authority of the Full Court in Edington at [46] and [51]. In Edington, the Full Court held that (1) standing in the shoes of the trustee, the Tribunal must make its own assessment of the evidence and other information to make its own findings of fact to determine whether the trustee’s decision was fair and reasonable in the circumstances; and (2) the Tribunal may accept a trustee’s finding of fact but the Tribunal does not discharge its functions by merely forming a view that the trustee’s findings were fair and reasonable. Counsel also relied on Marks at [23] (see [75] above).

145    Counsel submitted that the Tribunal erred at [20] because the hearing by the Tribunal is a hearing de novo which means that “it is entirely a question of what decision the Tribunal would have made on the evidence before it”. This submission is contrary to authority and I do not consider that the Tribunal misinformed itself at [20]. While I accept that the cited passages of Edington and Marks are authority for the proposition that the Tribunal must make its own findings of fact which are necessary, directed to the fundamental question for determination (whether the decision of the trustee under review was fair and reasonable), I do not accept that the fact finding is for the purpose of determining the decision the Tribunal would have made on the evidence before it; that would be inconsistent with the direction in s 37(6). It is not the Tribunal’s task to ask itself whether the trustee’s decision was the correct or preferable decision. Nor should the Tribunal act as if the trustee’s decision had not been made. Rather, the only purpose of the fact finding is to determine whether the decision the trustee made was, in its operation in relation to the complainant, fair and reasonable in the circumstances: see Cameron v Board of Trustees of the State Public Sector Superannuation Scheme (2003) 130 FCR 122 per Whitlam, Kiefel and Dowsett JJ at [42]-[43] and the cases there cited. Because the Tribunal’s hearing is a hearing de novo, the Tribunal is entitled to take into account evidence which was not available to the primary decision maker: see Edington at [50]. Even where the facts found by the Tribunal are different from the facts found by primary decision-maker, the Tribunal might nonetheless be satisfied that the decision under review was fair and reasonable in the relevant way: see Edington at [53].

146    Having said that, Edington at [46] and [51] and Marks at [23] are authority for the proposition that, although it is open to the Tribunal to adopt the trustee’s view of the facts, the Tribunal does not discharge its functions under s 37(6) merely by forming a view that the trustee’s findings on factual matters were fair and reasonable. The focus of s 37(6) is directed to whether the actual decision, rather than the process which led to it, was fair and reasonable.

147    Counsel for Mr Southwell submitted that the language employed by the Tribunal in [25] and [28] of its reasons indicates that the Tribunal fell into the error identified in Marks.

148    In Marks, the Tribunal expressly abdicated its fact finding role when it stated: “It is not the responsibility of the Tribunal to decide which is the ‘correct’ version, but rather to determine whether the Trustee’s decision was fair and reasonable in its operation in relation to the Complainant in the circumstances”. The Tribunal relied on the trustee’s views that the trustee’s own conduct had been “fair and reasonable”: see Marks at [14]-[16].

149    There is undoubted similarity between some of the language employed by the Tribunal in this case and in Marks. The language used by the Tribunal in [25] and [28] raises the same dilemma as that considered by Moore J in Marks at [18]. Does the language employed by the Tribunal in this case indicate that it viewed its task as determining whether the Trustee’s determination of factual issues is fair and reasonable as part of determining whether the ultimate decision was fair and reasonable? If so, on the authorities it would be a legal error. Alternatively, is the formulation employed by the Tribunal its way of expressing that it adopted the views of the Trustee or of expressing its own finding? In the latter case, it would be consistent with the obligation of this Court not to scrutinise decisions of administrative tribunals with an eye keenly attuned to error (see: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (“Wu Shan Liang”)) to find no error of law despite the infelicity of the language.

150    In isolation, the language of [25] of the Tribunal’s reasons would tend to support Mr Southwell’s contention: “The key question is whether the Trustee’s decision that [Mr Southwell] had given the Manager an instruction that he remain in the Balanced Option was a fair and reasonable decision.” Having made a finding of fact along the way that Mr Southwell did not react to advice that his investment was in the “Balanced” option on 29 January 2010 and his complaints were about investment in the “Balanced” fund in August and September 2010, the Tribunal appears to answer that question at the end of [25]: “The Tribunal therefore considers that the decision of the Trustee that [Mr Southwell] gave a direction that he remain in the Balanced Option was fair and reasonable.”

151    The question posed at the beginning of [25] of the Tribunal’s reasons was not the key question because it was not a decision of the Trustee at all: it was an issue of factual inquiry. The Tribunal correctly identified the decision it was called upon to review at [2], [20] and [32] of its reasons.

152    In forming a view of whether the Trustee’s refusal to compensate Mr Southwell for its failure to act on the Switching Form was fair and reasonable in its operation in relation to Mr Southwell, it was relevant for the Tribunal to form a view whether Mr Southwell had in fact given the instruction not to switch or whether Mr Southwell’s conduct was such that it was not unfair or unreasonable to Mr Southwell that he be treated as though the instruction had been given despite the content of his 12 September 2013 statutory declaration. Although badly crafted, that is the issue to which the first sentence of [25] is addressed and the answer is at the end of [25] by reference to the evidence referred to in [25].

153    On a reading of [20]-[29] as a whole, I have formed the view that the language used by the Tribunal does not indicate deference to decisions of the Trustee. Instead, “fair and reasonable” or “not fair and reasonable” is used in an evaluative sense indicating whether the Tribunal adopted or rejected a proposition. For instance, in [29] the Tribunal says: “… and it would be unreasonable to suggest that this direction could be countermanded verbally by a third party no matter how close to [Mrs Southwell]. The Tribunal considers that the decision of the Trustee that [Mr Southwell] had the authority to direct the Trustee on behalf of [Mrs Southwell] was unfair or unreasonable.” In my view, the Tribunal is expressing a finding that the Trustee was not entitled to act on an instruction given without authority. The use of the term “decision” and concepts of “reasonableness” in [29] was wholly inappropriate and unnecessary to the context. Similarly, the last sentence of [28] is very oddly constructed but it indicates to me that the Tribunal adopted the view that a verbal instruction was given by Mr Southwell and the final words “on which it was reasonable for it to act” go to the validity of the instruction rather than the conduct of the Trustee.

154    It is unfortunate that the language the Tribunal used opened up this line of argument and the Tribunal should avoid the use of the words “decision” and “fair and reasonable” in deliberations other than in the final determination as to the decision under review.

155    For completeness, Counsel for Equity Trustees submitted that a number of contentions in Mr Southwell’s written submissions raised issues in relation to this ground which were outside the scope of the articulated ground for review. I accept this submission and note that many of those issues were addressed under other grounds.

156    This ground has not been made out.

Ground 3: Failure to consider issue; Ground 4: Failure to find

157    Grounds 3 and 4 are interrelated so I will address them together, as Counsel for Mr Southwell did in his written submissions.

158    Mr Southwell claims that the Tribunal erred in law by failing to consider an issue raised by him because the Tribunal failed to consider the issue that in acting on his alleged oral instructions the Trustee failed to act on his written instruction, and the Tribunal failed to consider the consequence of Equity Trustees failing to act on his written instructions: ground 3.

159    Mr Southwell also claims that the Tribunal erred in law because it did not find that by acting on Mr Southwell’s alleged oral instructions Equity Trustees’ failed to comply with its own published standards, Equity Trustees’ conduct was invalid: ground 4.

160    Counsel for Mr Southwell submitted that the Tribunal did not fully deal with the submissions he advanced. He considered [24] of the Tribunal’s reasons (set out at [143] above) to be inadequate to deal with the submissions which had been made essentially on the points that:

    The Trustee did not act on Mr Southwell’s Switching Form within the timeframes specified in a product disclosure statement dated 1 July 2008 or at all;

    Mr Hayes-Williams called Mr Southwell on 15 April 2009 after the Switching Form should have been acted on in the ordinary course and in breach of fiduciary duty and duties owed at common law and unconscionable conduct under s 12CB of the Australian Securities and Investments Commission Act 2011 (Cth);

    The Trustee’s response of 28 July 2011 was unreasonable because it gave no credible explanation for why Mr Southwell’s Switching Form had not been acted on within represented timeframes; and

    The rationale for the Trustee’s decision on 28 July 2011 “crumbled over time” in light of the Trustee’s inability to produce alleged written instructions given by Mr Southwell confirming his verbal instruction; confirmation that Mr Hayes-Williams was not authorised by the Trustee to contact Mr Southwell and as a result the Trustee should not be able to rely on the outcome of that contact; and the fact that there are limits at law on the discretion of the Trustee under clause 6.5 of the Trustee with respect to processing switch requests.

161    In support of grounds 3 and 4, Mr Southwell effectively repeated the submissions made to the Tribunal and submitted:

    Mr Southwell submitted a written request in the approved form to switch his investment option to the “Conservative” option on 2 March 2009;

    The “service levels” annexure to the deed of assignment of 31 March 2009 under which Super Promoters Pty Ltd effectively took on the role of administrator of the Fund provides for a target benchmark of five days and a maximum of 10 days after receipt of a member instruction within which to arrange investment switches;

    What appears to be a document setting out procedures for the Fund, “ML11 Member Investment Choice Processing” which provides for investment switches to be processed “with an effective date of the first day of the month, from when the form is received, but only once the month end distribution is realised”. The document creation date is 9 September 2011 so it was not in force in April-May 2009.

    The product disclosure statement for the Fund prepared dated 1 July 2008 provides:

A switching request will usually be processed on the first Business Day of the month following that after which a switching request is deemed to have received [sic] by the Fund and after the crediting rate for the year to date to the end of that month has been applied to a member’s benefit.

Although there is no authority that such a statement would be binding on the Trustee, having regard to Part 7.9 of the Corporations Act 2001 (Cth) the submission was made that “product disclosure statements are taken incredibly seriously”. This document post-dates Mr Southwell’s investment.

    No credible explanation was given for why Mr Hayes-Williams called Mr Southwell.

    The Tribunal made no finding in relation to Equity Trustees’ failure to meet the timeframes for processing switching forms in its own guidelines.

162    The failure of a tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review can constitute a failure of procedural fairness or a failure to conduct the review required by the relevant legislation amounting to jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24]-[25] per Gummow and Callinan JJ, Hayne J agreeing at [95]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63]. I accept that Mr Southwell’s third question of law is to this effect notwithstanding its language.

163    The Tribunal must give reasons for its determination: s 40. However, a Tribunal’s reasons are not to be construed minutely and with an eye keenly attuned to error; they are to be read fairly and as a whole. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Wu Shan Liang at 271-272. Reasons are not required to refer expressly to every argument and all the evidence that might be relevant to its determination of factual issues: Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 52-53. The weight to be given to material before the decision-maker is a matter for the decision-maker; otherwise judicial review may too readily stray into merits review, which is the province of the decision-maker: Wu Shan Liang at 291-292 per Kirby J.

164    The Tribunal accepted that Mr Southwell completed a Switching Form dated 2 March 2009 and faxed it to the Fund’s administrator on that day and that under the Fund’s procedures; Mr Southwell would have expected to have his written instructions implemented on 1 April 2009: [21].

165    The Tribunal noted at [24] the concerns raised by Mr Southwell about the events of 15 April 2009 including: (1) the claim that the Trustee did not adhere to its published standards; and (2) the claim that Mr Hayes-Williams had no authority to ring Mr Southwell and no authority from the Trustee to provide financial advice.

166    The Tribunal said that it placed no weight on the fact that Mr Hayes-Williams called Mr Southwell and it was not an inappropriate action for a call to be made: [24]. Although Mr Southwell’s submissions made much of the fact that the Trustee had been unable to explain the reason for the call, Mr Southwell equally did not provide any basis for why it might matter. In my view the Tribunal acted reasonably and within jurisdiction in determining the weight to be given to this factor.

167    The Tribunal found that the fact that the conversation (which was not denied by Mr Southwell) took place after 1 April 2009 would not negate any instruction given by Mr Southwell. This was because if Mr Southwell had affirmed his desire to proceed with the course set out in the written instruction, the Trustee would have been obliged to effect the switch as at 1 April 2009: [24]. This demonstrates that the Tribunal took account of the evidence of the Trustee’s usual procedures and the fact that the conversation occurred after the time at which the switch would have been effected in accordance with the procedures. The Tribunal found, contrary to Mr Southwell’s submissions, that the oral instruction, if given, was relevant to whether the Trustee was obliged to act on the written instruction: see the last sentence of [24]. That view was open to the Tribunal and does not indicate any failure to deal with Mr Southwell’s claim (in effect) that the fact that the written instruction was given and not acted on within the usual time frame before the telephone conversation occurred should be given primacy.

168    Mr Southwell did not point to anything in the Trust Deed or otherwise which prohibited or rendered ineffective an oral instruction that the Trustee not act on a document lodged with the administrator. While Mr Southwell’s written submissions asserted breach of standards by reason of the failure of the administrator to make the switch within the “usual” 30 days timeframe set out in the product disclosure statement, Mr Southwell’s submissions to the Tribunal did not assert invalidity of the Trustee’s actions as a consequence and there was therefore no basis on which the Tribunal should make such a finding. Ground 4 therefore must fail. It is not now open to Mr Southwell to invite the Court to make a finding of law that the guidelines and statements in the product disclosure statement bound the Trustee despite the discretion contained in clause 6.5 of the Trust Deed so that its conduct in not acting on the switch was invalid and I decline to do so.

169    To the extent that Mr Southwell’s submissions asserted breach of fiduciary duty or unconscionable conduct or breach of covenants implied by s 52 of the Supervision Act, the submissions also acknowledged that s 55(2) of the Supervision Act specifically provides that breach of a covenant does not result in invalidity. The other claims would need to be prosecuted in a court of law against either the Trustee or the administrator and the fact that Mr Southwell made that claim was not a basis for the Tribunal to find that the Trustee’s actions were invalid nor did the Southwells’ submissions request it to do so. The matter for the Tribunal was consideration of all the circumstances itself for the purpose of making a determination under the Complaints Act.

170    The Tribunal’s reasons (at [27] and [28]) expressly dealt with the claims made by Mr Southwell that Mr Hayes-Williams’ advice to him on 15 April 2009 was personal advice and, correctly in my view, suggested that the appropriate recourse was to the administrator and that advice did not vitiate an oral instruction given by Mr Southwell to Mr Hayes-Williams.

171    I find that there was no failure on the part of the Tribunal to consider Mr Southwell’s claim. The Tribunal did consider the issue that the Trustee failed to act on Mr Southwell’s Switching Form, but it made a determination within jurisdiction having regard to Mr Southwell’s oral instruction to affirm Equity Trustees’ decision not to compensate Mr Southwell.

172    Mr Southwell’s grounds 3 and 4 have therefore not been made out.

Conclusion

173    As none of Mr Southwell’s grounds of appeal have been made out, I will dismiss his appeal.

174    I order that Mrs Southwell’s appeal be allowed and her matter be remitted to the Tribunal for the purpose of determining the decision it will substitute under s 37(3)(d) for the decision made by the Trustee on 28 July 2011 according to law.

175    I will direct the parties to file agreed short minutes of order with respect to costs by 12 June 2015 or failing agreement, the parties may file by that date submissions of no longer than three pages as to the orders as to costs they propose that I should make.

Associate:

Dated:    29 May 2015