FEDERAL COURT OF AUSTRALIA

Sherrah v Commonwealth Superannuation Corporation [2015] FCA 698

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Commonwealth Superannuation Corporation”.

2.    The time within which the applicant may institute an appeal under s 46(1) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) be extended up to and including 15 October 2014.

3.    The first respondent’s notice of objection to competency be dismissed.

4.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

Introduction

1    The applicant in this proceeding seeks an extension of time within which to appeal from a determination of the Superannuation Complaints Tribunal (“the Tribunal”). His application for an extension of time was made approximately eight weeks after the period for instituting an appeal had expired. This Court’s power to extend time is contained in s 46(2)(a) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (“the Act”). If he is granted an extension of time, the applicant seeks to appeal against the determination of the Tribunal on a question of law under s 46(1) of the Act. The first respondent has filed a notice of objection to competency in which it claims that the applicant’s draft notice of appeal does not identify a question of law “as required by s 46(1) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) so as to enliven the Court’s jurisdiction”.

2    The application for an extension of time was set down for hearing on the basis that, if an extension of time was granted, the appeal would be heard instanter. The first respondent’s opposition to the application and to the appeal includes its notice of objection to competency.

3    The applicant named the first respondent as the Commonwealth Superannuation Scheme. The correct description of the trustee of the relevant fund is the Commonwealth Superannuation Corporation. I will make an order amending the name of the first respondent. The Tribunal was joined as a respondent and filed a submitting appearance.

4    For the reasons which follow, the extension of time should be granted, the notice of objection to competency should be dismissed, and the appeal should be dismissed.

The Facts

5    The applicant joined the Commonwealth Superannuation Scheme (“the Fund”) on 20 December 1974. His benefit in the Fund was the subject of what the Tribunal described as a “family law split” on 4 November 2004, and his former spouse received a base amount of $88,000. On 2 March 2007, the applicant’s employment was terminated and, on 5 March 2007, he elected to preserve his benefit in the Fund. On 5 May 2007, the first respondent or Fund administrator advised the applicant by letter that his application to preserve his benefit in the Fund had been processed. By an email dated 19 July 2011, the applicant requested what the Tribunal described as a “benefit estimate”.

6    On 27 July 2011, the applicant signed an application for an age retirement benefit. On 19 August 2011, the applicant’s benefit was paid and he received a lump sum of $208,107.59 (which he rolled over into another fund), and an annual pension of $37,159.84. Later, there was a small upwards adjustment to these figures, but the details are not relevant for present purposes.

7    In calculating the applicant’s benefit, the first respondent applied a negative earning rate between the date the applicant applied for his benefit on 28 July 2011, and the date upon which the benefit was paid to him (i.e., 19 August 2011).

8    The applicant was given incorrect advice by the first respondent or administrator of the Fund about the calculation of his benefit prior to lodging his application for an age retirement benefit. He was told that his benefit would be calculated using the earning rate applicable on the day after he lodged his application (i.e., 28 July 2011), or the date upon which his benefit was paid, whichever was the greater. The Tribunal said that this advice was incorrect because the rules of the Fund required that the earning rate on the date of payment be used.

9    The first respondent notified the applicant of the application of the earning rate on 10 December 2011 and, following review, by letter dated 10 February 2012. The applicant said that had he received the correct advice, he would have switched his account from the Default investment option to the Cash option pending the payment of his benefit. On 1 March 2012, he made a complaint to the Tribunal under s 14(2) of the Act. In October 2012, the first respondent made an offer of compromise to the applicant. The rules of the Fund allowed a member of the Fund, who believed that he or she had suffered financial detriment, to lodge a claim for compensation from the Fund. The first respondent’s offer in October 2012 was to make a payment to the applicant of $12,897.61 gross, being the difference between the benefit the applicant received, and the benefit he would have received had he switched his account to the Cash option, using life expectancy tables for the pension component of the benefit. In a letter from the first respondent’s solicitors dated 18 October 2012, the trustee explained to the applicant the basis of the offer. The first respondent acknowledged that the applicant had been given incorrect advice. It said that the applicant’s claim for a benefit had been processed by it in accordance with the rules of the Fund, having regard to the definition of “termination day” in the Superannuation Act 1976 (Allocated Interest – CSS) Determination 2007 (“the Determination”). The first respondent said that it did not have the power to process the applicant’s benefit in the way he sought, that is, by calculating his benefit based on an earning rate as at 28 July 2011. It said that it had calculated the applicant’s loss as the difference between the benefit he received, and the benefit he would have received had his account been invested in the Cash option from 28 July 2011.

10    The applicant objected to the first respondent’s offer of compromise. By letter dated 8 August 2013, the first respondent revised the offer by increasing it to $21,290.20 after it had indexed the pension at 1.5% per annum.

11    The applicant rejected the revised offer claiming that his benefit should be recalculated using the earning rate applicable on 28 July 2011. He also claimed he would be out of pocket because of tax and he sought a payment of $30,310.51.

The Tribunal’s Reasons

12    The Tribunal began its consideration of the applicant’s complaint by identifying certain functions and powers of a trustee under the Superannuation Act 1976 (Cth) (ss 27C(1) and 27D), and the section of that Act which requires that where interest is to be calculated on an amount, that interest is to be calculated in accordance with a determination made for the purposes of the relevant provision (s 154A(1)). The Tribunal identified the relevant Determination in this case as the Determination identified earlier in these reasons (at [9]). The Tribunal referred to the definition of “termination day” in s 6 of the Determination, to which I will return, and sections dealing with switching between the Default Fund and Cash Option (ss 27 and 28). Finally, the Tribunal referred to the Superannuation Industry (Supervision) Act 1993 (Cth) and, in particular, the section providing for the covenants taken to be included in the governing rules of a superannuation entity (s 52).

13    The Tribunal then summarised the submissions of the applicant and the first respondent respectively.

14    The Tribunal identified the issue which it had to decide as being whether the decision of the first respondent to offer to compromise the applicant’s claim for the loss suffered by him as a result of the incorrect advice provided to him regarding the applicable earning rate on his benefit by an offer of $21,290.20 was fair and reasonable in its operation in relation to the applicant in the circumstances. The Tribunal said the issue was not what decision it would have made on the evidence before it.

15    The first respondent’s offer of compromise was calculated by reference to the difference between the benefit the applicant received and the benefit he would have received had he switched his account to the Cash option with effect from 31 July 2011. By reason of the fact that the applicant took part of his benefit as a pension, the first respondent applied life expectancy tables, an annual indexation rate of 1.5%, and a discount rate of 3% in calculating the lump sum value of the pension.

16    The Tribunal addressed first, the applicant’s argument that the Determination was in breach of the first respondent’s obligation to manage and invest the Fund so as to maximise the return earned on the Fund, having regard to, among other matters, the need for equity among eligible employees and associate members (s 27C(1)(a)(ii) of the Superannuation Act), and the covenant by the first respondent in the governing rules of the Fund to ensure its duties and powers are performed and exercised in the best interests of the beneficiaries (s 52(2)(c) of the Superannuation Industry (Supervision) Act). The applicant’s argument was that the Determination could result in two identical members receiving different benefits if their benefits were paid on different days, and that that would not be managing the Fund, having regard to the need for equity between members or performing duties and exercising powers in the best interests of the beneficiaries.

17    The Tribunal rejected this submission. It referred to the definition of “termination day” in s 6 of the Determination which is as follows:

The termination day in respect of:

(a)    a benefit that has become payable on the day on which a person ceases to be an eligible employee; or

(b)    any benefit that has become payable, whether in full or in part, to a person who has ceased to be a former eligible employee;

is the day before the day on which [the Trustee] determines the benefit or part of the benefit that has become payable.

18    The Tribunal said that this definition meant that the investment period ends on the day the trustee “determines”, that is to say, calculates and processes, the amount of the benefit that is payable. The Tribunal said that allowing members to retrospectively lock in earning rates would allow arbitrage against the Fund and disadvantage other members of the Fund. The Tribunal said that its interpretation of the Determination did not involve a breach of the legislation which the applicant had identified because the treatment of each member’s application for benefits would be in accordance with the Determination.

19    The Tribunal concluded that the first respondent acted fairly and reasonably in compromising the applicant’s complaint by offering a settlement amount, rather than recalculating his benefits.

20    The Tribunal then turned to consider the four arguments which the applicant advanced in support of the proposition that the first respondent’s offer was not a fair and reasonable one. First, it considered that it was fair and reasonable for the first respondent to use life expectancy tables in the absence of knowing how long the applicant would live. It rejected the applicant’s argument that the first respondent should have used a longer period because of the applicant’s family history of longevity. Secondly, it said that the first respondent was not required to have regard to a claim for a reversionary spouse pension in the absence of “the identification of a potential spouse”. The Tribunal rejected the applicant’s argument that, as he is desirous of finding a suitable spouse in the future, the offer of compromise should have, but did not, include any amount in relation to a reversionary spouse pension. Thirdly, the Tribunal said that it was not unfair and unreasonable that the first respondent’s offer of compromise did not include an allowance for capital gains tax. The first respondent had received advice that the applicant would not be liable for capital gains tax on the settlement offer, but might be liable for income tax on the amount. He has not suffered a financial detriment as a result of that latter circumstance because he would have otherwise been liable for income tax on the pension payments and, of the offer amount of $21,290.20, the amount of $18,302.42 was for the difference in pension payments. Finally, the Tribunal said that the first respondent’s offer was not unfair and unreasonable because it did not include an allowance for interest, having regard to the fact that any interest on the lump sum difference of $2,987.78 was well and truly outweighed by the earnings he could receive on the $18,302.42 income stream “received up front”. Furthermore, it noted that the pension amount had been indexed at 1.5% per annum.

21    The Tribunal considered that the offer was fair and reasonable and, under s 37(3) of the Act, it affirmed the Trustee’s decision.

The Applicant’s Application to this Court

22    The Tribunal’s determination is dated 23 July 2014. By letter from the Tribunal to the applicant dated the same date, the determination was given to the applicant. If the letter was sent by post, then service is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of post (Acts Interpretation Act 1901 (Cth) s 29). There is no evidence from the first respondent as to the means by which the letter and determination was given to the applicant.

23    The applicant said that he checks his post office box weekly on a Friday. It is in Littlehampton, South Australia, which is about 80 kilometres from his house. He received the Tribunal’s determination on Friday, 2 August 2014.

24    The applicant said that he spoke to a staff member of the Tribunal on 6 June 2014, and was told that the Tribunal would make its decision on the written submissions, and that he was not required to give evidence. He was told that the Tribunal’s deliberations could take three months. He arranged to travel to South America from 6 August 2014 to 24 September 2014 believing that he would be “back in time for the decision”. He did not have time between 2 August 2014 and 6 August 2014 to get advice and consider his position. On his return from overseas, there was further delay between 24 September 2014 and 15 October 2014 when he lodged his application for an extension of time, and the applicant said that that was due to an error he made in trying to contact one of the legal firms whose name he had been given by “SA Legal Services”.

25    The applicant’s draft notice of appeal identifies the following questions of law:

1.    How should the word payable be interpreted when determining the Termination day in Determination 2007.

2.    The Tribunal at para 48 has taken an irrelevant matter into consideration as no retrospective locking in of earning rates has been attempted.

3.    If payable in Determination does mean calculated is Determination 2007 in breach of S 27C(1)(a)(ii) of the Superannuation Act or the SIS Act S52(2)(c)

4.    Can the Tribunal extinguish a members future chose in action without compensation or does this breach its obligations and discretions under S.37(1)(a) of the Complaints Act?

5.    Can the Tribunal incorrectly calculate the tax implications of its decisions; is this a breach of its obligations and discretions under S.37(1)(a) of the complaints Act?

6.    Has the Tribunal understated the CSS pension indexation and is this a breach of its obligations and discretions under S.37(1)(a) of the Complaints Act?

26    Although not identified as a question of law in his draft notice of appeal, the applicant also complains in his draft notice of appeal about the Tribunal’s decision not to allow an amount for “my reversionary spouse benefit”.

27    The applicant seeks an order that his pension and lump sum be recalculated based on a termination date of 28 July 2011. If that is not possible, then the applicant seeks an order that that part of the offer of compromise which comprises the difference in the pension be increased from $18,302.39 to $27,405.16, and there be an allowance of compensation for the loss of a reversionary spouse benefit, and for income tax at the marginal rate on the combined amount.

Issues on the Application and the Appeal

28    I start with the applicant’s application for an extension of time. The relevant factors are well-known: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J. As I have said, the length of the delay in this case is approximately eight weeks. The applicant’s explanation for the delay is fairly general and not entirely satisfactory. Unsurprisingly, he was not given an unequivocal assurance by the Tribunal staff member as to when the decision would be handed down, and if he chooses to arrange his affairs in a particular way, then he must bear the consequences of his decision. Furthermore, his delay after returning from overseas is not clearly explained. The prejudice to the applicant if he is not granted an extension of time is that he will not be able to pursue his appeal. The respondent did not identify any prejudice to it if an extension of time is granted. I do not think the appeal is so hopeless that the extension of time should be refused on that ground. There is some public interest in the resolution of the issue raised by the applicant concerning the proper construction of “termination day” in s 6 of the Determination. On balance, I consider it appropriate to grant an extension of time.

29    Before addressing the notice of objection to competency and the appeal, I will identify the function of the Tribunal when dealing with a complaint by a member or former member of a regulated superannuation fund about a decision of the trustee of a fund. Section 14(2) of the Act provides that a person may make a complaint to the Tribunal that a trustee’s decision is or was unfair or unreasonable. Section 14AA provides that a complaint may be made about a decision whether or not the decision involved the exercise of a discretion. A decision that does not involve the exercise of a discretion is taken to be unfair and unreasonable if the decision was contrary to law. Section 37(1) provides that, for the purpose of reviewing a decision of the trustee of a fund that is the subject of a complaint under s 14, the Tribunal has all the powers, obligations and discretions that are conferred on the trustee and, subject to subs (6), must make a determination in accordance with subs (3). Section 37(3) provides that, on reviewing a decision, the Tribunal must either affirm the decision, or remit the matter to which the decision relates to the decision-maker for reconsideration in accordance with the directions of the Tribunal, or vary the decision, or set aside the decision and substitute a decision for the decision so set aside. Section 37(6) provides (relevantly) that if the Tribunal is satisfied that the decision under review in its operation in relation to the complainant is fair and reasonable in the circumstances, then it must affirm the decision. Section 37(4) provides that if the Tribunal determines that there is unfairness or unreasonableness in relation to a trustee’s decision, then it may only exercise its powers under subs (3) for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both, no longer exists. Finally, s 37(5) provides (relevantly) that the Tribunal must not do anything under subs (3) that would be contrary to law or the governing rules of the Fund.

30    The Full Court of this Court considered the Tribunal’s function under s 37 of the Act in Board of Trustees of the State Public Sector Superannuation Scheme v Edington (2011) 119 ALD 472; [2011] FCAFC 8 (“Edington”). In that case, Mr Edington made a claim on the superannuation scheme of which he was a member for a total and permanent disablement benefit. An incident involving two dogs had occurred when Mr Edington was on a property and this incident (according to Mr Edington) had resulted in an injury to his right foot, and either a post-traumatic stress disorder or an anxiety disorder. It is unnecessary to set out the details of the trust deed or the terms of insurance in this case. The issue before the trustee was whether Mr Edington’s permanent and total disablement was related to Mr Edington’s pre-existing condition of schizophrenia. The trustee decided that issue against Mr Edington relying on the report of one of the consulting psychiatrists which had been placed before it. On review, the Tribunal affirmed the trustee’s decision and it relied on the opinions of a treating psychiatrist in addition to the consulting psychiatrist relied on by the trustee.

31    On appeal to this Court, a judge of the Court held that the Tribunal had committed an error of law in that it did not properly review the trustee’s decision. The judge said that the Tribunal had not examined the trustee’s reasons in sufficient detail as shown by the fact that it relied on evidence which was different from that relied on by the trustee.

32    On a further appeal to the Full Court, the Court reversed the judge’s decision. The principal reasons were delivered by Kenny and Lander JJ. Their Honours said that the Tribunal’s function involved a hearing de novo following which the Tribunal makes findings of fact in relation to the matter before it. Their Honours said that the Tribunal’s function is different from that of the Administrative Appeals Tribunal which is required to make the correct or preferable decision. The Tribunal’s function is to stand in the shoes of the trustee and to decide on all the information before it whether the trustee’s decision was fair and reasonable in the circumstances. It is the decision, not the process of reasoning which led to it, which must be examined for fairness and reasonableness (at 484-485, [44]-[47]). Their Honours said that the Tribunal is to have regard to the trust deed and, where relevant, the insurance terms, and it is not restricted to the material before the trustee or to the approach to the relevant issues taken before the trustee. Nevertheless, the primary question before the Tribunal is whether the trustee’s decision was fair and reasonable (at 486-487, [49]-[50]). On the one hand, the Tribunal must make its own findings of fact and it does not discharge its review function by doing no more than concluding that the trustee’s findings were fair and reasonable. On the other hand, once the Tribunal has made its findings, the question for it is whether the trustee’s decision was fair and reasonable (at 487, [51]). In the result in Edington, the Court said that it was open to the Tribunal to reach a conclusion that a trustee’s decision was fair and reasonable even though its reasoning was different from that of the trustee. The Tribunal was not required to focus on the reasoning of the trustee and take the “extra step” of comparing the trustee’s reasoning with its own (at 488, [54] per Kenny and Lander JJ; at 496, [86] per Logan J).

33    In National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562 at 570-571, the Full Court of this Court said that whether a decision, or its operation in relation to a person is fair and reasonable in the circumstances, involves a value judgment, the making of which is committed to the Tribunal. A decision which involves elements of fact, degree, opinion or judgment is capable of being characterised as unfair and unreasonable.

34    In a case involving an allegation that the Tribunal had failed to take relevant matters into account (HEST Australia v Sykley (2005) 147 FCR 248), Crennan J sitting as a judge of this Court said (at 261, [48]-[49]):

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

The Complaints Act does not expressly identify specific considerations which the Tribunal is bound to consider. The relevant considerations are therefore determined by the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40. The purpose of the Complaints Act is to ensure members and beneficiaries are not adversely affected by unfair and unreasonable decisions of insurers and trustees: see s 14 and s 37. ...

35    In Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359; [2001] FCA 1330 at [28], Allsop J (as his Honour then was) said:

The question as to whether a decision was unfair or unreasonable cannot be judged otherwise than by having regard to the conformity of the decision with the governing rules of the fund and the terms of the policy. The conformity of the decision with those matters is therefore a relevant consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-40 and see Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 178 ALR 707 (special leave refused on 20 August 2001). If conformity with the governing rules or the terms of the policy required the very decision, which was made, to be made, the strictures of subs 37(5), the universe of possible conduct under subs 37(3) and the balance of the Act, including subs 37(6), would require a conclusion of the Tribunal that the decision was not unfair or unreasonable. It could not be otherwise, as it would, on this hypothesis, be the only decision capable of being reached by the Trustee or the Insurer in the light of the governing rules or terms of the policy; or, put another way, any determination under paras 37(3)(b),(c) or (d) would involve the Tribunal doing an act contrary to the governing rules or the terms of the policy.

36    The way in which a provision which limits an appeal to an appeal on a question of law affects the procedural and substantive law attending such an appeal was considered by the Full Court of this Court in the recent decision of Haritos v Commissioner of Taxation [2015] FCAFC 92 (“Haritos”). That case concerned the scope and operation of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). Section 46(1) of the Act is in materially similar terms to s 44(1) of the Administrative Appeals Tribunal Act and the same approach should be taken to it. The relevant principles to emerge from Haritos are summarised by the Court at [62] and, relevant to this case, are as follows:

(1)    The subject-matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.

(2)    The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.

(3)    The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.

(4)    Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.

(5)    In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.

(6)    Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.

(7)    A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.

(8)    The expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s 44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.

...

(see also May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93).

37    I turn now to examine the questions which the applicant identifies as question of law in his draft notice of appeal ([25]).

38    The first four questions identified by the applicant relate to the construction of the Superannuation Act, the Superannuation Industry (Supervision) Act, and the Determination. In one form or another, the central issue raised by these questions is whether the applicant’s benefit could be calculated in accordance with the earnings rate on 28 July 2011. The first respondent says that it could not be, and that decision was upheld by the Tribunal. The applicant says that it could be, and that a recalculation of his benefits on that basis was the only fair and reasonable response to the incorrect advice given to him by the first respondent. It is not entirely clear to me how this response (i.e., as if the advice the applicant was given is correct) fits in with his claim of what he would have done had he been given the correct advice (i.e., he would have switched to the Cash option), but that difference was not developed in submissions, and I do not think it appropriate for me to pursue it any further. In my opinion, the applicant’s submission that his benefit could and should be calculated on the basis of the earnings rate on 28 July 2011 raises a question of law because it raises a question of the proper construction of the two superannuation Acts and the Determination. It is a question of the nature of the point, not how strong it is. The appeal is competent and the notice of objection to competency must be dismissed.

39    As to the fifth and sixth questions, I take those questions to raise the issue of whether an allowance for capital gains tax should have been included in the settlement offer and whether the rate of indexation used by the trustee was correct. The former issue was raised before the Tribunal and is identified as a question of law in the draft notice of appeal. The latter issue does not appear to have been raised before the Tribunal, but is identified by the applicant as a question of law in the draft notice of appeal. The issue of the reversionary spouse benefit was raised before the Tribunal and is the subject of complaint in the draft notice of appeal, although not identified by the applicant as a question of law. As the applicant represents himself, I will not decline to consider the issue because it is not formally identified as a question of law. The Tribunal’s approach to the applicant’s life expectancy was not the subject of the draft notice of appeal. It was referred to by the applicant in his submissions, but, I think, ultimately abandoned. If not, it ought to be rejected in any event. It was not an error, let alone an error of law, for the trustee and then the Tribunal to proceed by reference to life expectancy tables, rather than speculating about how long the applicant may live.

40    There is nothing in the superannuation Acts about the basis for formulating an offer of compensation. I was not referred to anything in the rules of the Fund dealing with that topic. The guiding light is whether the offer is fair and reasonable. This is not to say that the Tribunal might not commit an error of law in its consideration of a settlement offer. It might make a finding for which there is no evidence, its reasons might be illogical or irrational, or it might fail to take into account a relevant consideration.

41    I turn now to examine the merits of the applicant’s questions.

42    The applicant submits that the Tribunal’s construction of the definition of “termination day” in s 6 of the Determination is erroneous. In expanding on this submission, he pointed to the following:

(1)    The Tribunal’s construction means that the benefit payable will depend on when it is determined, and that is arbitrary and could result in differences between members whose position is essentially the same. This construction of the Determination should not be adopted in light of general obligations imposed on a trustee by the superannuation Acts to ensure equity and fairness between members and to act in the best interests of members;

(2)    A reason advanced by the Tribunal for the construction of the Determination which it adopted, namely, it was undesirable that a member be able to lock in rates retrospectively did not apply in the applicant’s case as he did not try and lock in rates retrospectively;

(3)    If the Tribunal’s construction of the definition of “termination day” is the correct one, then the Determination is invalid because it is contrary to the provisions of the superannuation legislation.

43    I reject these arguments. In my opinion, the proper construction of the definition of “termination day” in s 6 of the Determination is clear. It seems to me that, in the context of a calculation of interest and the determination of a benefit, “determines” means to define or fix or to settle (Concise Oxford Dictionary of Current English (8th ed, Clarendon Press, Oxford, 1990) p 318), and that the Tribunal did not err in interpreting the word to mean the act of calculating and processing. I do not think the Tribunal was suggesting that the applicant was trying to lock in rates retrospectively; rather the Tribunal was saying that the construction advanced by the applicant could have that consequence. I do not think that is an error. Finally, assuming it is open to the applicant in this proceeding to submit that the Tribunal erred in law in deciding that the offer was fair and reasonable because it relied on a Determination which is invalid, I do not think that the Determination is invalid. One can assume, I think, that the decision-maker will calculate and process benefits in the ordinary course of business. There is nothing to suggest that the date would be manipulated. There is nothing inherently unfair in selecting as the relevant day, the day of calculation and processing. As important as the general obligations in the superannuation Acts are, there is nothing to suggest that they should be given an operation which would bring down all or part of the Determination.

44    As to the matters raised by the applicant which go to the quantum of the offer, I do not think any of these raise a question of law. First, I think that the Tribunal was entitled to rely on the information provided by the trustee about whether capital gains tax would be payable on any settlement amount. It was part of its function to receive that advice and act on it if satisfied it was appropriate to do so. Secondly, it was open to the Tribunal to find that an offer based on an annual indexation rate of 1.5% was fair and reasonable. The fact that the Tribunal did not proceed on the basis of the indexation rate over the past 27 years does not mean that it committed an error of law. Finally, the Tribunal cannot be said to have erred in law in deciding that the trustee was not bound to have regard to a reversionary spouse pension in the absence of the identification of a potential spouse.

Conclusions

45    For these reasons, the application for an extension of time should be granted, the notice of objection to competency should be dismissed, and the appeal should be dismissed. I will hear the parties as to costs.

Associate:    

Dated:    10 July 2015