FEDERAL COURT OF AUSTRALIA

McAtamney v Superannuation Complaints Tribunal [2016] FCA 1062

ORDERS

THE COURT ORDERS THAT:

1.    The time within which the applicant is to file this proceeding is extended until 24 July 2014.

2.    The decision made on 14 October 2007 and confirmed on 14 January 2009 by the respondent to treat the applicant’s complaint under the Superannuation (Resolution of Complaints) Act 1993 (Cth) as withdrawn is set aside.

3.    The complaint made by the applicant on 8 January 2007 under the said Act is remitted to the respondent for determination in accordance with law.

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

REASONS FOR JUDGMENT

NORTH J:

INTRODUCTION

1    The applicant, Thomas Joseph McAtamney, started work for Nylex Corporation Pty Ltd on 1 November 1975. He worked as a process worker in that business for its various owners for 31 years until he was retrenched on 1 September 2006. During the whole of his employment the applicant contributed to a superannuation fund. Following his retrenchment the fund paid him a total of $149,494.48 in several instalments.

2    On 4 October 2006, the applicant lodged a complaint with the respondent, the Superannuation Complaints Tribunal, concerning his superannuation payment. For reasons not presently relevant that complaint was not pursued. On 8 January 2007, the applicant lodged a second complaint with the Tribunal. The second complaint is the relevant complaint in this proceeding. In essence, the complaint was that the amount of the payment was inadequate.

3    During 2007 the Tribunal conducted extensive investigations into the calculation of the payment and into numerous peripheral matters. For this purpose the Tribunal corresponded with the Trustee and reported back to the applicant.

4    On 17 October 2007, the Tribunal determined under s 22(3)(b) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Act) to treat the complaint as withdrawn on the basis that it was lacking in substance. However, in view of further information it received the Tribunal reopened the complaint. But on 14 January 2009, the Tribunal confirmed the decision made on 17 October 2007.

5    On 24 July 2014, the applicant commenced proceedings in this Court against the Tribunal.

6    At all times in the Tribunal and in this Court the applicant’s complaint was prosecuted with his consent by his partner, Ms Ada Webb. The applicant was not legally represented. He was prevented from dealing with the matter by reason of ill health.

7    On 26 August 2014, the respondent filed a submitting appearance and took no part in the proceedings thereafter. That course was taken in conformity with the principle articulated in R v The Australian Broadcasting Tribunal and others; Ex parte Hardiman and others (1980) 144 CLR 13.

8    Although the applicant did not formulate the legal basis of the challenge in technical legal terms, the matter has been dealt with as an application for relief against the decision of the Tribunal under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (Judiciary Act), and for an order of review of that decision under s 5 of the Administrative Decision (Judicial Review) Act 1977 (Cth) (ADJR Act).

9    These reasons for judgment explain that the Tribunal made a number of errors in arriving at its decision to treat the applicant’s complaint as withdrawn. The Tribunal failed to fulfil its statutory function because it did not ascertain for itself whether there was substance in the applicant’s complaint, but rather accepted the view expressed by the Trustee that the amount paid to the applicant was correct. Further, the Tribunal erred by placing an onus on the applicant to establish that the payment was fair and reasonable, whereas no onus applied to the applicant. Finally, the decision of the Tribunal was unreasonable in the legal sense in two respects. First, on the material available to it there was no evident and intelligible justification for the conclusion that there was no substance in the complaint that the payment was unfair and unreasonable. Second, the Tribunal failed to make enquiries into several critical matters concerning the calculation of the amount due to the applicant when those matters could readily be determined.

10    Insofar as the application is brought under the ADJR Act, the applicant sought an extension of time within which to institute the application. The circumstances justify granting that extension of time. Insofar as the application is brought under s 39B(1A)(c) of the Judiciary Act the delay does not warrant the refusal of relief.

11    Consequently, the applicant is entitled to orders setting aside the decision of the Tribunal and referring the complaint back to the Tribunal for consideration according to law.

RELEVANT PROVISIONS OF THE SUPERANNUATION (RESOLUTION OF COMPLAINTS) ACT

12    The objectives of the Tribunal are found in s 11, which provides that:

The Tribunal must, in carrying out its functions or exercising its powers under this Act, pursue the objectives of providing mechanisms for:

(a)    the conciliation of complaints; and

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

that are fair, economical, informal and quick.

13    Some relevant functions of the Tribunal are found in s 12, which provides that:

(1)     The functions of the Tribunal are:

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

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

14    The right of a member of a regulated superannuation fund (which is defined in s 19 of the Superannuation Industry (Supervision) Act 1993 (Cth)) to make a complaint to the Tribunal is found in s 14, which relevantly provides that:

(1)    This section applies if the trustee of a fund has made a decision (whether     before or after the commencement of this Act) in relation to:

(a)    a particular member or a particular former member of a regulated     superannuation fund; or

…

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

[Emphasis added.]

15    Under s 16, the Tribunal is obliged to assist a complainant as follows:

If the Tribunal thinks that:

(a)    a complainant wishes to make a complaint; and

(b)    the complainant needs help to make the complaint or to put it in writing;

the Tribunal must take reasonable steps to help the complainant.

16    Under s 18, the parties to the complaint are, relevantly, the complainant and the trustee.

17    Section 19 provides that the Tribunal may not deal with a complaint unless the complainant has attempted to have the matter resolved under arrangements dealing with complaints stipulated in the conditions governing the fund.

18    Section 21 provides that a complainant may withdraw a complaint at any time.

19    Section  22(3) provides for a type of summary dismissal procedure as follows:

(3)    The Tribunal may also decide to treat a complaint as if it had been withdrawn under section 21, in the following cases:

…

(b)    if the complaint has been made to the Tribunal--the Tribunal thinks that the complaint is trivial, vexatious, misconceived or lacking in substance;

[Emphasis added.]

20    Then, s 22(4) requires the Tribunal to notify the complainant of the decision and provide reasons as follows:

If the Tribunal decides to treat a complaint as withdrawn under subsection (3), the Tribunal must give notice in writing of that decision and of the reasons for that decision:

(a)    To the complainant; and

(b)    To the other party, or each of the other parties, to the complaint.

[Emphasis added.]

21    Where the summary process is not applied to the complaints, the following provisions govern the way the Tribunal must deal with the complaint.

22    Under s 24, the trustee is obliged to provide the Tribunal with all documents or parts of documents in the possession or under the control of the trustee which the trustee considers relevant to the complaint.

23    Section 27 requires the Tribunal to enquire into the complaint and try to settle it by conciliation. Section 28 gives the Tribunal power to require the attendance of parties and others at a conciliation conference.

24    If the conciliation is not successful, the Tribunal is required by s 32 to fix a date for a review meeting. Under s 34(1) the review meeting is conducted without oral submissions from the parties.

25    Section 36 provides that:

The Tribunal, in reviewing a decision or conduct:

(a)    Is not bound by technicalities, legal forms and rules of evidence; and

(b)    Is to act as speedily as proper consideration of the review allows, having regard to:

(i)    The objectives laid down by section 11; and

(ii)    If the complaint relates to a fund – the interests of all the members of the fund; and

(c)    may inform itself of any matter relevant to the review in any way it thinks appropriate.

The review meeting is held in private: s 38(1).

26    The Tribunal’s power to review a decision of a trustee in relation to a complaint made under s 14 is found in s 37, which relevantly provides that:

(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;

(c)    varying the decision; or

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

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

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

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

(a)    the complainant; and

…

was fair and reasonable in the circumstances.

[Emphasis added.]

27    By s 40, the Tribunal is required to give written reasons for its decision on the review.

28    Appeals to this Court are governed by s 46 which provides:

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

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

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

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

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

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

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

THE DECISION OF THE TRIBUNAL

29    The decision of the Tribunal challenged in this proceeding was recorded in a notice dated 14 January 2009 given under s 22(4) of the Act indicating that the Tribunal had decided to treat the complaint made by the applicant as withdrawn (the second notice). The notice read thus:

SUPERANNUATION (RESOLUTION OF COMPLAINTS) ACT 1993

NOTICE UNDER SECTION 22(4)

OF COMPLAINT HAVING BEEN WITHDRAWN

Dear Ms Webb

Thomas Joseph McAtamney & lNG Master Fund- ANZ Super Advantage Member No. 5156459

I refer to the Tribunal’s letter of 26 November 2008 concerning your complaint about the calculation of Mr McAtamney’s retirement benefit.

Your complaint was reopened because it was considered that NSP Buck’s letter to Mr McAtamney dated 25 May 2000 may have been misleading in that it referred to his Transfer Value at 19 May 2000 ($120,984.20) as “your benefit”. It was felt that this letter may have led Mr McAtamney to believe that this amount was his actual benefit entitlement at that date, resulting in the expectation of a higher final benefit.

Following the reopening of the complaint, the Tribunal sought further information from ING about NSP Buck’s letter. ING’s response stated that whilst NSP Buck’s letter contained a number of errors and omissions, and was unclear in the information provided, subsequent benefit statements for the years ended 1 July 2001 and 1 July 2002 provided to Mr McAtamney showed the correct benefit entitlements.

Accordingly, the Tribunal is now satisfied that it has adequate evidence of correct information being provided to Mr McAtamney subsequent to the NSP Buck letter and that those statements should have negated any expectation of a higher final benefit.

For this reason, the Tribunal has determined to maintain its decision to treat your complaint as withdrawn under subsection 22(3)(b) of the Superannuation (Resolution of Complaints) Act 1993, on the basis that it is lacking in substance.

Yours faithfully

Jocelyn Furlan

Acting Chairperson

14 January 2009

[Emphasis added.]

30    The second notice confirms an earlier notice dated 17 October 2007 (the first notice). As the second notice cannot be readily understood without reference to the first notice, the first notice is reproduced below:

    SUPERANNUATION (RESOLUTION OF COMPLAINTS) ACT 1993

NOTICE UNDER SECTION 22(4)

OF COMPLAINT HAVING BEEN WITHDRAWN

Dear Ms Webb

Thomas Joseph McAtamney & ING Master Fund- ANZ Super Advantage Member No. 5156459

I refer to the Tribunal’s letters of 23 July, 13 August, 15 August, 28 August, 12 September and 8 October 2007 concerning your husband's complaint about the actions of the ING Master Fund - ANZ Super Advantage. I also refer to your letters of 14 August, 27 August, 4 October and 9 October 2007 and to various telephone discussions you have had with Mr Phil McGrath of this Tribunal.

I also acknowledge receipt of your telephone message dated 10 October 2007 asking me to call you because you were not happy with Mr McGrath’s dealing with your complaint. Before I responded to your request, I decided to review the file, as is my standard practice. I have now completed my file review and advise that I have decided to withdraw your complaint as lacking in substance because you have not provided any evidence to establish your assertion that an error has been made in the calculation of your husband’s benefit.

I refer in particular to Mr McGrath’s letter dated 13 August 2007 in which he advised you that the Tribunal was considering this action and the reasons why it was considering this action, namely, that the Tribunal’s letter of 23 July 2007 resolved your complaint about the absence of detail and that you had not demonstrated that any error had been made in the calculation of the benefit. Mr McGrath’s letter gave you 21 days in which to respond.

Your various responses since Mr McGrath’s letter of 13 August 2007 have raised various new and particular questions (most of which have been answered by either the Tribunal or the fund) but have not provided any information or argument to establish that the benefit had been calculated incorrectly, which is the essential subject matter of the complaint brought before the Tribunal.

In relation to any suggestion that Mr McGrath has not dealt satisfactorily with your complaint, I disagree. My file review leads me to the conclusion that he has paid meticulous attention to your complaint and has done his very best in his letters and telephone conversations with you to explain that your husband’s benefit has been calculated correctly, in all cases providing reasons as to why the Tribunal has reached that conclusion.

Consequently, for the reasons above and those explained in the Tribunal’s earlier letters, the Tribunal is treating the complaint as withdrawn under subsection 22(3)(b) of the Superannuation (Resolution of Complaints) Act 1993, on the basis that it is lacking in substance.

I regret that a more satisfactory resolution could not be achieved for you.

Yours faithfully

Margaret McDonald

Director

17 October 2007

[Emphasis added.]

31    Section 22(4) of the Act requires the Tribunal to give notice of its decision to treat a complaint as withdrawn and of the reasons for that decision.

32    Section 25D of the Acts Interpretation Act 1901 (Cth) provides that where a tribunal is required to give reasons for a decision, the instrument giving the reasons must “also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.” As a statement of reasons for the decision, the two notices are inadequate. They amount to no more than an unparticularised conclusion that the amount paid was correct.

33    However, the two notices refer to prior communications between the Trustee and Ms Webb. Reference to those communications and also to the flow of events recorded in the file of the Tribunal provides a picture of the consideration given to the complaint culminating in the Tribunal giving the second notice. Those communications and events are described in the next section of these reasons for judgment.

HOW THE TRIBUNAL DEALT WITH THE COMPLAINTS

34    Although in the end it is possible to identify the applicant’s essential concerns, a significant number of peripheral issues intruded into the communication between the Tribunal, the applicant and the Trustee. Many tangential issues were raised by Ms Webb seemingly out of frustration that she could not get satisfactory answers to the central questions she raised. Although those tangential issues do not, in the end, bear on the matter central to this proceeding, it is necessary to chronicle the full history of the process of the consideration of the complaints by the Tribunal in order to understand the way in which the Tribunal undertook its statutory role. That history must be seen against the background of the applicant’s employment and fund membership.

The applicant’s employment and fund membership history

35    Although the applicant did the same work for 31 years in the same business, the ownership of the business changed a number of times. On each of those changes the applicant’s superannuation fund membership also changed.

36    Initially, when the applicant was employed by Nylex Corporation Ltd he was a member of the Nylex Corporation Superannuation Fund. When the Nylex business was acquired by BTR in 1984, the applicant was transferred from the Nylex Corporation Superannuation Fund to the BTR Nylex Limited Superannuation Fund. That fund was administered by NSP Buck Pty Ltd. In 1999 when the BTR Nylex business was sold to Austrim the applicant was transferred to the Austrim Nylex Group Superannuation Plan later called the Nylex Group Superannuation Plan. This plan was administered by Watson Wyatt. In 2004, the Nylex Group Superannuation Plan was incorporated into the ANZ Super Advantage Superannuation Fund. In December 2005, the ANZ Super Advantage Fund was made part of the ING Masterfund Trust. On 16 December 2005, the Austrim Nylex business was sold to Huon Corporation. The applicant was transferred to become a member of the Huon Superannuation Plan within ANZ Super Advantage. On 30 June 2006, Huon Corporation went into voluntary administration and Sims and Partners were appointed the joint and several administrators.

The initial request for payment of the applicant’s benefits

37    Following the applicant’s retrenchment on 1 September 2006, the applicant’s primary complaint to the Tribunal was initially concerned with the delay in payment of his benefits.

38    On 4 October 2006, the applicant lodged a Registration of Complaint Form with the Tribunal, stating that no details had been made available and no payment had been made in relation to an ANZ Super Advantage Benefit account. On 20 October 2006 the Tribunal advised the applicant that his complaint could only be dealt with by the Tribunal after the Trustee had had the opportunity to deal with the complaint, and that the applicant's complaint had accordingly been forwarded to the Trustee.

39    On 8 January 2007, following unsuccessful attempts to resolve the complaint directly with the Trustee, the applicant lodged a second Registration of Complaint Form with the Tribunal. Throughout the complaint process, the Tribunal dealt with Ms Liz Hamilton, the National Customer Service Manager in the Customer Liaison Personal Investments division of ING Australia Limited. Ms Hamilton’s correspondence with the Tribunal were variously sent on the letterhead of ING Australia Limited and the Australia and New Zealand Banking Corporation Limited. For the purposes of the following chronology, the Tribunal’s communications with Ms Hamilton will be referred to as communications with the Trustee.

40    On 16 January 2007 the Tribunal wrote to the Trustee to request all documents and information relevant to the complaint.

41    On 24 January 2007, Ms Webb called the Tribunal to advise that the Trustee would be paying the applicant approximately $140,000. On 30 January 2007, the Tribunal called the Trustee who confirmed that two per cent of the benefit would be withheld due to outstanding employer contributions to the fund. The Trustee also confirmed that the account was a defined benefit fund, and that accrued interest as a result of the late payment of the applicant's benefit amounted to about $9,000.

42    On 1 February 2007, the applicant wrote to the Tribunal attaching documents that confirmed that $142,214.30 was rolled over from his ANZ Super Advantage account on 23 January 2007.

43    In the same letter, the applicant requested that Ms Webb be allowed to represent him in the complaint. Approval of that request was granted by the Tribunal on the same day.

Post-payment inquiries about the amount of the benefit payable

44    On 1 February 2007, Ms Webb called the Tribunal to say that the applicant still had concerns about his superannuation entitlement, including that the applicant had received no information about the tax component of his payment. The Tribunal asked Ms Webb to state those concerns in writing, and the applicant did so in a letter dated 2 February 2007 (First List of Concerns). Those concerns, including the concern raised verbally on the telephone, were that:

(a)    The applicant had not received any information about the tax component of his payment;

(b)    It was unclear what interest had been paid on the monies owed to the applicant from the date of the applicant's retrenchment to the date the payment was finally made;

(c)    It was unclear what would happen to the two per cent of the payment which was withheld;

(d)    There was no record of the applicant's personal weekly contribution to the fund of five per cent of his salary, despite those contributions being shown on his payslips;

(e)    The applicant had not received a final statement since the fund closed on 1 September 2006; and

(f)    There had been no mention of entry and exist fees, nor of any ongoing management fees.

45    On 5 February 2007, the Trustee called the Tribunal to provide clarification about concern a) in the First List of Concerns. The Tribunal then called Ms Webb and advised her of the tax breakdown of the $142,214.30 payment. The Trustee’s advice was recorded in a Tribunal filenote as follows:

Pre-1983 $35,611.21

Post tax $81,721.37

Undeducted $24,881.72

Total $142,214.30

46    On 6 February 2007, the applicant wrote a letter to the Tribunal raising further concerns (Second List of Concerns). The letter also attached an ANZ Leaving Member report dated 29 January 2007, confirming that $142,729.92 had been paid from the applicant’s ANZ Super Advantage account into his personal bank account. That payment included a growth of $515.62 in the applicant’s portfolio from the opening balance of $142,214.30. The Second List of Concerns raised only one new concern, that:

(a)    The attached ANZ Leaving Member report stated that the pre-1983 component was $35,004.03. Why was that different from the amount stated by the Trustee to the Tribunal on 5 February 2007, namely $35,611.21?

47    On 12 February 2007, the Trustee provided the Tribunal with the requested documents and information. The Trustee advised the Tribunal that it had not received a completed Benefit Payment form from the applicant until 5 January 2007. The Trustee also advised that a further payment of $1,458.49 would be made to account for an unreported change to the applicant’s salary prior to retrenchment, bringing the total amount paid to the applicant to $144,188.41. That payment was made on 23 February 2007. The Trustee’s letter stated that the applicant was transferred to the personal division of ANZ Super Advantage prior to retrenchment. The Trustee’s letter attached undated correspondence from the Trustee to the applicant which answered concern c) in the First List of Concerns, namely that the two per cent of the payment withheld would be paid once “top up” contributions were received from the Administrator of Huon Corporation.

48    On 5 March 2007, Ms Webb called the Tribunal to raise a new concern (‘Third List of Concerns’). The concern was recorded in a Tribunal filenote and related to the employer’s contributions to the applicant’s superannuation fund, namely that the Trustee had not informed the applicant of the amount that the employer was contributing to the fund. The Tribunal advised Ms Webb that concerns about the employer were a matter for the Australian Tax Office. Ms Webb also confirmed that a further amount of around $1,400 had been paid by the Trustee.

49    On 7 March 2007, the Tribunal received a copy of the applicant’s Member Exit Advice at 1 September 2006, created on 1 February 2007, which stated that the total benefit payable to the applicant was $143,672.79. This figure evidently did not take into account the $515.62 growth in the applicant’s portfolio referred to above. The document also stated that interest to be paid on late payment(s) totalled $10,049.02. Therefore, on the face of the document, the total payment owed to the applicant was $153,721.81. This document answered concerns b) and e) in the First List of Concerns, regarding the interest to be paid and the provision of a final statement.

50    On 18 May 2007, the Tribunal called the Trustee to request copies of Benefit Request forms sent by the applicant to the Trustee on 18 March 2005, 1 August 2005 and 28 November 2005. The Trustee delivered the requested information to the Tribunal on the same day via fax, confirming that benefit requests had been made on or around those dates. In response to the first request in March 2005, the Trustee sent a quote and redemption form to the applicant. In response to the second request in August 2005, a benefit quote was sent to the applicant, but no withdrawal form was sent as the applicant was still employed. In relation to the third request in November 2005, the Trustee’s records indicated that the applicant was adamant that the unpreserved portion of his benefit be withdrawn. The records then noted that by 28 November 2005 a “BPR” form had not been received, but that by 29 November 2005 a “BPA” had been faxed to the Trustee’s Cranbourne office. The records did not indicate why the unpreserved portion of the applicant’s benefit was not withdrawn.

51    On 24 May 2007, Mr Phil McGrath, an officer of the Tribunal, prepared an internal document outlining what he regarded to be unresolved questions in relation to the applicant's complaint (Tribunal's First List of Concerns). The list also contained new unresolved questions, which were:

(a)    Is 1 September 2006 the applicant’s true exit date, or is it a transfer date only;

(b)    The applicant's benefit statements at 31 December 2005 and 30 June 2006 show a previous Withdrawal Benefit of $0.00, and show accumulation style accounts; and

(c)    The Leaving Member report dated 29 January 2007 shows the benefit at 1 July 2006 as $0.00.

52    On 25 May 2007, the Tribunal called Ms Webb to discuss the unresolved issues. Ms Webb raised the following new concerns (Fourth List of Concerns):

(a)    The applicant had not been told how the benefit was calculated;

(b)    22 years ago, in 1985, the applicant had approximately $86,000 in preserved benefits. How had this amount not at least doubled over 22 years;

(c)    The applicant wants an explanation for why he did not receive proper statements;

(d)    Why were two different account numbers quoted in correspondence from the Trustee to the applicant; and

(e)    The applicant has been trying to access his funds for five years, but has always been told that that is not possible. However, when Huon Corporation bought part of Nylex's business, the applicant was offered the pre-1983 component of his benefit, which he did not accept. This suggests that there was always an unpreserved amount that should have been available to him. The applicant had not wanted his funds transferred to another superannuation fund. Instead he wanted the funds to be released to him.

53    On 28 May 2007, the applicant raised fresh concerns with the Tribunal in a phone call from Ms Webb and a letter dated that day (‘Fifth List of Concerns’). A Tribunal filenote recorded a concern that the applicant’s superannuation statements did not make sense. Ms Webb claimed that a 1983 statement showed an amount of $76,523.76, a 1996 statement showed an amount of $92,000, and a letter showed a transfer to NSP Buck in 2000 of $87,619 (concern a).

54    It is not clear from where these figures are drawn, as there are no documents on the Tribunal’s file matching these descriptions. The amount of $76,523.76 appears to correspond with the “immediate benefit” as stated in various Huon Superannuation Plan Member Exit Advices. The 1996 statement provided by the applicant to the Tribunal shows a resignation benefit of $48,330.32. There is no letter on the Tribunal file showing a transfer to NSP Buck in 2000. There is a letter sent by NSP Buck stating that $120,984.20 was transferred from the applicant’s BTR Australia Superannuation Fund administered by NSP Buck to the applicant’s Austrim Nylex Superannuation Fund. That letter is discussed in further detail below.

55    The 28 May 2007 letter raised the following further concerns:

(b)    The applicant’s benefit was miscalculated. Based on the existing total in 1983 of $76,523.76, plus a personal contribution of 5% of his salary and the employer’s contribution of 9% of his salary, the benefit should have been $224,523.76 plus interest; and

(c)    Nowhere in the statements received from the Austrim Nylex Superannuation Fund does it state that it was a defined benefit fund.

56    On 29 May 2007, the Tribunal wrote two letters to the Trustee raising a number of concerns (Tribunal's Second List of Concerns). Those concerns were that:

(a)    At 16 December 2005, when Nylex sold part of its business to Huon, was the applicant employed by the part of the business that was sold off?;

(b)    At July 2006 when assets of ex-Nylex Huon members were transferred to Huon, was the applicant now an ex-Nylex Huon member of a stand-alone Huon fund, or a Huon sub-plan of ANZ Super Advantage?;

(c)    At 27 July 2006, why was the applicant transferred first to ANZ Super Advantage Personal Division if he was still employed, and then transferred to Nylex Category 1 if he was now a Huon member?;

(d)    How was the multiple calculated, and how was the total benefit at 1 September 2006 calculated?;

(e)    Is the applicant now an accumulation style member of the Personal Division or Nylex Category 1?;

(f)    If the applicant is now an accumulation style member, what were his opening accumulation style account balances?;

(g)    In an undated letter from the Trustee (later shown to be from 9 October 2006) why don't the accumulation style accounts add up to the withdrawal benefits shown?

(h)    How were the applicant's total benefits at 31 December 2005 and 30 June 2006 calculated?

(i)    Why was the applicant transferred on 22 January 2007 from Nylex Category 1 to ANZ Super Advantage - Personal Division in preparation for withdrawal (i.e. why from Nylex, and why now)?; and

(j)    The figure given in a 2002 statement for the applicant's Early Retirement Benefit was less than the figure given in a 2001 statement for the applicant's Resignation Benefit, and that lower 2002 figure was carried forward, possibly leading to a mistake in the calculation of the applicant's benefit.

57    On 26 June 2007, the Trustee wrote to the Tribunal to answer the Tribunal’s Second List of Concerns. The Trustee’s responses effectively answered concern b) and c) of the Tribunal’s First List of Concerns (that benefit statements at 31 December 2005 and 30 June 2006 show a previous Withdrawal Benefit of $0.00 and that the Leaving Member report dated 29 January 2007 showed a benefit of $0.00 at 1 July 2006), and concerns a) - i) of the Tribunal's Second List of Concerns (as listed in the preceding paragraph). Those responses were that:

(a)    The applicant was transferred to the Huon Plan effective 16 December 2005;

(b)    Huon held an employer sponsored plan with ANZ Super Advantage and the applicant became a member of this fund. The applicant’s assets were transferred from Nylex to Huon in July 2006 without any change to the benefit design. The benefit continued accruing as with the Nylex plan;

(c)    ANZ processes are that when a member ceases to be a member, they are moved to the personal division to enable rollover or withdrawal. The applicant was transferred to the personal division of ANZ Super Advantage for former Nylex members. The Trustee resiled from a previous statement made in a letter dated 12 February 2007 that the applicant was transferred prior to retrenchment;

(d)    The calculation of the applicant's benefit at particular times was stated by the Trustee as follows (ERB refers to Early Retirement Benefit, ARM refers to Accrued Retirement Multiple, and FAS refers to Final Average Salary):

31/12/2005:

Formula used: member account + member account x 5% for each complete year of membership in excess of 5 years, subject to a maximum of 100% - surcharge

63960.7 + 63960.7 x 5% x 20 - 194.09 = $127,727.31

- ERB Calculation for comparison: 3.346 (ARM) x 33419 (FAS) - 194.09 = $111,625.88

30/06/2006:

Formula used: member account + member account x 5% for each complete year of membership in excess of 5 years, subject to a maximum of 100% - surcharge

65976.25 + 65976.25 x 5% x 20 - 198.13 = $131,754.37

- ERB Calculation for comparison: 3.41 (ARM) x 34463 (FAS) - $198.13 = $117,320.70

(e)    The calculation of the benefit that was paid was as follows:

This is the formula which provided the member with the highest benefit.

Minimum benefit = Member Account x Vesting - Surcharge + Late payment interest

Member Benefit = $68,129.10 (member account) x 2 (vesting) - $203.20 (surcharge) = $136,055.00 + $9,061.63 (late payment interest) = $145,116.63

Then we need to reduce the payment to 98% of the benefit;

= $145,116.63 x 98% = $142,214.30

The gross amount received by the member was $172,729.92 and incorporated interest for the period 23.1.07 (the date the benefit was calculated) and 29.1.07 (the date of payment).

[footnote omitted]; and

(f)    The applicant was transferred to ANZ Super Advantage Personal division in preparation for payment of benefits, and his account continued to attract a higher interest rate of 17%.

The reference to the applicant receiving $172,729.92 appears to be a typographical error, as the actual amount received by the applicant was $142,729.92.

58    On 5 July 2007, the Tribunal wrote to the Trustee stating that the Trustee’s letter dated 26 June 2007 “filled in almost all of the blanks” except for one remaining concern (Tribunal’s Third List of Concerns). That concern was that:

A Statement issued to McAtamney (on ANZ letterhead) on 29/09/2005 confirms the amounts transferred to his account as follows:

DB Member: $56,708.45

DB Deemed Member: $0.00

DB Member @01/07/1992: $68,042.51

The DB Member @01/07/1992 account does not appear to have been taken into account in the calculation of his final benefit.

59    On 16 July 2007, the Trustee responded to the Tribunal’s Third List of Concerns by providing the three calculation methods used by Aon Corporation Australia Limited, an actuary engaged for the calculation of the benefit. That response was as follows:

T J McAtamney

(i) Rule 12.3(a)(i) becomes Rule 12.6(a)(i) (A) & (B):

Part (A) = 68379.91

Part (B) #1 = 5% * 68379.91 * (24 - 5)

= 64960.91

Part (B) #2 = 1 * 68379.91

= 68379.91 using Vesting 5 scale which is 100% after 10 years using DJPF of 1/11/1975

Total (A) & (B) #2 = 136759.82

(ii) Rule 12.3(a)(ii) (A), (B) & (C)

Part (A) = 78008.93

Part (B) = 1.05017 * 34829

= 36576.37

Total (A) & (B) = 114585.30

Part (C) = 10% * (3.431 * 34829 - 114585.30) * (20 - 10)

= 10% * 4912.99 * 10

= 4912.99

Total (A), (B) & (C) = 119498.29

(iii) Age 35 Minimum Benefit to Rule 12.3(a)(I and ii): 3.431 * 34829 * 1

Total = 119498.29

Greater of (i), (ii) and (iii) = 136759.82

60    At this stage in the investigation by the Tribunal, the rules referred to by the Trustee had not yet been provided to the Tribunal. However from subsequent materials it appears that the rules referred to here are the rules contained in the Benefit Specification referred to in the ANZ Super Advantage section of the ING Masterfund Trust Deed.

61    This response from the Trustee answered concern a) from the Fourth List of Concerns, about the method used to calculate the benefit. However, the Trustee’s response did not directly address the Tribunal’s Third List of Concerns about the DB Member @01/07/1992 account, nor did it directly address concern b) from the Fifth List of Concerns about the miscalculation of the benefit.

Production of the superannuation deed

62    On 18 July 2007, the Tribunal emailed the Trustee requesting further information about the deed (Tribunal's Fourth List of Concerns). The information requested was:

(a)    Confirmation of the deed relied upon; and

(b)    Whether or not Clause or Rule 18.4.1 of Schedule 5 of the ANZ Super Advantage section was the equivalent of Rule 12.3 used to calculate the benefit.

63    On 20 July 2007, the Trustee emailed the Tribunal attaching the Nylex Group Superannuation Plan Benefit Specification. The Benefit Specification contained Rule 12.3 referred to above in the calculation of the applicant's benefit. From the subsequent letter sent by the Tribunal to the applicant, it appears that that the Tribunal was satisfied that this response from the Trustee answered concerns a) and b) of the Tribunal's Fourth List of Concerns about the deed and rule relied upon.

64    On 23 July 2007, the Tribunal wrote to Ms Webb confirming that the Successor Fund Transfer Deed dated 8 June 2006 was the relevant deed which transferred the applicant from ANZ Super Advantage to the ANZ Super Advantage Division of the ING Masterfund. The Tribunal also confirmed that the rules of the fund are provided in Part C of Schedule 5 of the ANZ Super Advantage Division of the ING Masterfund Trust Deed, and that Rule 18.4.1 stated:

…the amount of the Benefit payable in respect of the Member…shall be determined by the Trustee…having regard to the Benefit Specification made in respect of the Member.

65    The Tribunal then informed Ms Webb that the Trustee claimed that the Benefit Specification provided by the Trustee was the document relied upon by the actuary to calculate the applicant's benefit, and that more specifically Rule 12.3 was the rule relied upon. The Tribunal then set out the detail of the calculation in the following terms:

12.3(a) provides for a lump sum equal to the greater of:

(i)    in the case of a Member who was a Nylex Member of the Previous Fund, the amount calculated according to Rule 12.6(a)(i) or, in the case of any other Member ...

Given the Trustee has also referred to Rule 12.6(a)(i), it is assumed the Complainant was a Nylex Member of the Previous Fund.

12.6(a)(i) is equal to the sum of:

(A) the Member's contributions to the Plan and the Previous Fund (other than those contributions credited to the Member's Supplementary Accounts, if any) with Investment Income; and

(B) in respect of a Member who completed at least five (5) years of Membership (including Previous Fund Membership):

5% x Z x (N -5)

where:

Z is the amount calculated pursuant to Rule 12.6(a)(i)(A); and

N is the Member's total period of Membership and Previous Fund Membership measured in completed years with a maximum of twenty-five (25) years.

According to the Trustee:

(A) is equal to $68, 379.91

(B) is equal to 5% x $68,379.91 x (24- 5) = $64,960.91 (In other words, 95% of Z)

Therefore, one would expect 12.3(a)(i) to equal $68,379.91 + $64,960.91 = $133,340.82.

However, the Trustee has used 100% of Z such that (B) is equal to $68,379.91.

Therefore, 12.3(a)(i) = $68,379.91 + $68,379.91 = $136,759.82

(ii) the sum of:

(A) the accumulation of all contributions made or deemed to have been made by the Member to the Previous Fund up to 1 July 1992 (other than those credited to the Member's Supplementary Account, if any) with Investment Income; and

(B) X% x n x FAS

where:

X% is 5%, 6.25%, 7.5% or 10% for each year during which the Member's contribution rate to the Plan or the Previous Fund after 1 July 1992 was 2.5%, 3.75%, 5% or 7.5% of Salary respectively; and

n is the Member's total period of Membership and Previous Fund Membership after 1 July 1992 but measured in years and completed days.

FAS is the Member's Final Average Salary

(C) in respect of a Member who has completed ten (10) or more years of Membership (including Previous Fund Membership),

10% x (ARBM x FAS-Z) x (N -10)

where:

(ARBM x FAS - Z) is subject to a minimum of zero; and

ARBM is the Member's Accrued Retirement Benefit Multiple;

FAS is the Member's Final Average Salary;

Z is the sum of the amounts calculated pursuant to Rule 12.3(a)(ii)(A) and Rule 12.3(a)(ii)(B); and

N is the Member's total period of Membership and Previous Fund Membership measured in complete years and complete months and is calculated in the case of a Member who was a Nylex Member of the Previous Fund from the later of 1 July 1982 and the date the Member joined the Previous Fund, and is in all cases subject to a maximum of twenty (20) years.

According to the Trustee:

(A) is equal to $78,008.93

(B) is equal to 1.05017 (% x n) x $34,829 = $36,576.37

(C) is equal to 10% x (3.431 x $34,829- $114,585.30) x (20 -10) = $4,912.99

Therefore, 12.3(a)(ii) = $78,008.93 + $36,576.37 + $4,912.99 = $119,498.29

PROVIDED THAT in relation to Rule 12.3(a)(ii) in respect of a Member who joined the Previous Fund after his or her thirty fifth (35th) birthday, or in the case of a Member who was a Nylex Member of the Previous Fund, who had reached the thirty-fifth (35th) birthday by the later of 1 July 1982 or the date the Member joined the Previous Fund, the amount calculated pursuant to this Rule shall not be less than:

ARBM x FAS x N/N55

where

ARBM is the Member's Accrued Retirement Benefit Multiple;

FAS is the Member's Final Average Salary;

N55 is the period measured in years and completed months from the date the Member joined the Previous Fund to the Member's fifty-fifth (55th) birthday, or in the case of a Member who was a Nylex Member of the Previous Fund, from the later of 1 July 1982 or the date the Member joined the Previous Fund.

N calculated in the case of a Member who was a Nylex Member of the Previous Fund from the later of 1 July 1982 or the date the Member joined the Previous Fund, measured in years and completed months and is in all cases subject to a maximum of N55.

According to the Trustee: 3.431 x $34,829 x 1 = $119,498.29

Therefore, the benefit at 1 September 2006 under Rule12.3(a); that is the greater of $136,759.82, $119,498.29 and $119,498.29, was: $136,760

Plus, Interest of $8,882

The total benefit with Interest on 29 January 2007 was $145,642

Finally, as you know, 2% of the benefit was withheld pending the finalisation of the Fund, therefore, the benefit paid to the Complainant on 29 January 2007 was: $145,642 x 98% = $142,730

The Trustee has advised the Tribunal, as recently as 20 July 2007 that "an additional payment will be made to members in respect of the 2% which was withheld".

66    In its letter dated 23 July 2007, the Tribunal further informed the applicant that it considered enough information had now been provided, and that that aspect of the complaint was therefore resolved. It advised the applicant that if he believed there had been an error in the calculation of the benefit, then the applicant should contact the Trustee in the first instance.

67    On 25 July 2007, Ms Webb called the Tribunal to raise ongoing concerns (Sixth List of Concerns). The Tribunal agreed to investigate those matters. Those concerns were recorded in a Tribunal filenote and were that:

(a)    The Accrued Retirement Multiple of 3.431 used to calculate the benefit was incorrect. The correct multiple should have been more like 4 or 5; and

(b)    In late 2004, before the applicant's funds were to be moved from the Nylex Group Superannuation Fund to ANZ Super Advantage, the applicant was told that his funds could be rolled over to a fund of his choice. The applicant chose his union superannuation fund, but was then told that rollover was not possible.

68    On 26 July 2007, the Tribunal emailed the Trustee requesting further detail about the calculation of the multiple, including details of the relevant page, section, part and rule of the Benefit Specification. On 8 August 2007, the Trustee provided the Tribunal with the following details about the calculation of the multiple:

Accrued Mult = (Rate of Increase) * (Years and Complete Months from 01/12/2004) + Accrued Mult @ 01/12/2004)

Using Date of Termination as = 01/09/2006

Rate of Increase = 0.1275p.a.

Years and Complete Months from 01/12/2004 = 1 year 9 months = 1.75

Accrued Mult @ 01/12/2004 = 3.19800 Received from previous administrator

Hence the

Accrued Mult using this formula = 3.1675

Actual Mult = 3.43112

Difference = 0.01437 (42 Days increase in member's favour)

Difference due to Huon Transfer giving an extra month worth of Accrual for half a month.

Transfer was on 16/12/2005 and rounding. However this rounding hasn't effected [sic] the benefit as the multiple wasn't used in the final calculation (IE the benefit with the multiple was less than a built in minimum)

The Trustee did not provide details of the relevant page, section, part of rule. This information responded to concern a) of the Sixth List of Concern, namely about the calculation of the multiple.

Notification by the Tribunal of its intention to consider declining to proceed with the complaint

69    On 13 August 2007, the Tribunal wrote to Ms Webb stating that the multiple used to calculate the benefit was the correct one. The Tribunal also notified the applicant that it was considering declining to proceed with the complaint, and gave the applicant 21 days to respond in writing before the complaints would be treated as withdrawn. The letter read as follows:

Dear Ms Webb

Thomas Joseph McAtamney & lNG Master Fund - ANZ Super Advantage Member No. 5156459

I refer to Mr McAtamney’s complaint against the lNG Master Fund - ANZ Super Advantage.

The Tribunal is currently considering declining to proceed with this complaint. The Tribunal is able to treat complaints as withdrawn under section 22(3)(b) of the Superannuation (Resolution of Complaints) Act 1993 (the SRC Act) if, for example, it considers them to be misconceived or lacking in substance.

The purpose of this letter is to explain why the Tribunal is considering this action and to give you an opportunity to make any comments or provide further information relevant to this consideration.

As mentioned previously, it is considered that the information contained in our letter dated 23 July 2007 resolved your complaint about the absence of detail. In that letter, you were asked to contact the Trustee in the first instance if you felt the Trustee had made an error when calculating your benefit but instead, you called the Tribunal claiming that:

• the multiple of 3.431 was incorrect; and

• you had an old Statement showing a multiple greater than 5.000 .

You have not produced a copy of the Statement showing a multiple greater than 5.000, and the accrued multiple of 3.431 appears to be consistent with the Normal Retirement Multiple of 4.080/4.079 shown on Mr McAtamney’s Statements since 1996.

For the purposes of sub-s.22(3)(b) of the SRC Act, the Tribunal is of the opinion that the expression ‘lacking in substance’ means that the complaint brought before the Tribunal is unsupported by the evidence.

Based upon this interpretation, the Tribunal is of the view that this complaint should be withdrawn under section 22(3)(b) of the SRC Act as lacking in substance because you have not demonstrated that an error has been made. It is simply not enough to claim that Mr McAtamney’s benefit “can't be right” as you did in a phone call on 25 July 2007. You may wish to engage the services of an actuary to assist you, but that would be at your own expense.

Written Submission

If you wish to make any fu1ther comment on why Mr McAtamney considers that his complaint should not be withdrawn, please provide it to the Tribunal in writing within 21 days of the receipt of this letter. If you do not contact the Tribunal within this period we will assume you do not wish to respond. The Tribunal will then make its decision and advise you accordingly.

If you require more time to respond, please contact me (within 21 days) to request an extension. You will need to provide reasons why you require more time so that the Tribunal can consider your request.

Please contact me on 03 8635 5510 if you have any questions (or on 1300 780 808 for the cost of a local call).

Yours faithfully

Phil McGrath

phil.mcgrath@sct.gov.au

Inquiries and Conciliation

13 August 2007

[Emphasis added.]

70    On 14 August 2007, Ms Webb called the Tribunal to discuss the complaints. The Tribunal explained that the pre-1983 amounts shown on statements did not show the balance of the account in 1983, but were instead a tax-related figure. The Tribunal also explained that the 1992 amounts shown on statements related to the amount as at 1992 plus the interest up to the date of the relevant statement. The Tribunal further explained that the “Member @ 01/7/1992” amount of $78,008.93 was taken into account under Rule 12.3(a)(ii) as set out in the Tribunal’s letter dated 23 July 2007. These explanations answered concern a) from the Second List of Concerns about the lack of explanation of the pre-1983 tax component, and the concern from the Tribunal’s Third List of Concerns, that the @01/07/1992 account had not been taken into account.

71    On 27 August 2007, the applicant wrote to the Tribunal stating that he had engaged an actuary. The applicant said that the actuary had asked the following questions (Actuary's List of Concerns):

(a)    Why has the accrual date changed to 1 July 1992 when the applicant was with BTR Nylex Superannuation from 1 November 1975 to 18 July 1999?;

(b)    It appears unlikely that the retirement benefit would equal the immediate benefit and the preserved amounts; and

(c)    Why is interest being paid into the preserved monies and not the retrenchment payout when the Trustee said it was a retrenchment?

72    The Actuary’s List of Concerns was forwarded to the Trustee by the Tribunal on 28 August 2007. On 10 September 2007 the Tribunal noted in a filenote that given the applicant had engaged an actuary at considerable expense, the complaints would not be withdrawn at this point. Also on 10 September 2007, the Trustee emailed the Tribunal confirming that the Early Retirement and Retrenchment Benefits payable to the applicant would have been the same, being $119,498.29, and that that amount was less than the Minimum Benefit. The Trustee confirmed that the applicant was paid the Minimum Benefit. This response answered concern b) of the Actuary’s List of Concerns, about the likelihood of the retirement benefit equalling the immediate benefit and the preserved amounts.

73    On 12 September 2007, the Trustee emailed the Tribunal explaining that the accrual date was recorded from 1992 because that was the date the data about contributions began. The multiplier took into account pre-1992 contributions for that reason. The Trustee also explained that the amount of $1,456.87 paid into the preserved monies was not interest at all, but an additional benefit payable due to changed information about the applicant's salary. This response was forwarded to the applicant on that same day. The Tribunal's letter, quoting the Trustee, stated:

The reason the date joined fund is 1992 is because we only received actual contribution/category history from the previous administrator who held the fund from 1992 to 1999 (Watson Wyatt). The category history was only held for the period back to 1992 and the multiplier reflects the period prior to that. To our knowledge Watson Wyatt also do not have the previous contribution histories and this is why the multipliers were provided as part of the transition. The other unusual thing is that the members could change their contributions which is unusual for a DB fund and again the multiplier encapsulates this info.

The reference to Watson Wyatt being the administrator of the relevant fund from 1992 to 1999 appears to be an error. Other documents before the Tribunal show that NSP Buck was the administrator from 1992 to 1999, and that Watson Wyatt was the administrator from 2000 to 2004. The information provided to the applicant responded to concerns a) and c) of the Actuary’s List of Concerns, regarding the 1992 accrual date and the interest being paid into the preserved monies.

74    On 8 October 2007, the Tribunal wrote to the applicant giving him seven days to respond in writing about an extension of time or the complaint would be withdrawn (Second Notification of Withdrawal). The applicant responded that same day making a complaint about the Tribunal officer, Mr McGrath. The applicant also reiterated concern a) from the Second List of Concerns, concern b) from the Fourth List of Concerns and concern b) from the Actuary's List of Concerns, being concerns about the lack of information about pre-1983 monies, the alleged $86,000 in preserved benefits in 1985 and the likelihood that the retirement benefit would equal the immediate benefit and the unpreserved amounts. In a further letter dated the same day, the Tribunal provided an outline of the history of the Tribunal’s handling of the complaint, including details of when the Tribunal responded to various concerns, and reiterated the seven day deadline for the applicant to raise a new issue.

75    On 9 October 2007, the applicant wrote to the Tribunal requesting an extension of time. In that letter, the applicant raised again questions about the pre-1983 monies, and the account balance given for 1992.

76    On 10 October 2007, the Tribunal noted in a filenote that both it and the Trustee did not believe that the applicant had engaged either an actuary or forensic accountant.

77    On 12 October 2007, Mr McGrath received a phone call from the applicant's accountant requesting an extension of time, but Mr McGrath stated that he could not grant an extension of time because the complaint had been taken out of his hands due to the complaint made against him.

The First Notice under s 22(4) of the complaint having been withdrawn

78    On 17 October 2007, the Tribunal gave Ms Webb the First Notice under s 22(4) of the Act that the complaint had been withdrawn on the basis that it was lacking in substance. The first notice is set out at [30] of these reasons for judgment.

79    On 19 October 2007, the applicant’s accountant, M. F. Bassal of Bunnett & Bassal Pty Ltd, wrote to the Tribunal requesting that the matter be reopened. The accountant attached a letter to Ms Webb dated 16 October 2007, in which the accountant wrote that:

1. Mr T. J. McAtamney joined the Company on 01.11.1975 as a permanent employee and joined the BTR Nylex Superannuation Fund on that date.

2. The Resignation benefit as at 01.07.1999 amounted to $80,125.76. Consist of preserved amount of $3,602.00 plus $76,523.76 restricted non preserved amount.

3. The Retrenchment benefit at 01.09.2006 amounted to $119,498.30.

4. The Tribunal advised in its letter of 23.07.2007 that the interest due was $8,882.00 while the interest due on Huon Superannuation Fund amounted to $10,049.02.

5. The Tribunal advised in its letter dated 8 October 2007 that the trustee agreed to calculate the Retrenchment benefit.

6. You advised me that the Retrenchment benefits were not paid and you received no indication that it will be paid to you.

The letter then raised three concerns (Accountant’s List of Concerns):

1. The Retrenchment benefit needs to be paid in accordance with the Tribunal letter of 08.10.2007 plus interest due from the date it was originally due until the date it is paid.

2. The interest of $8,882.00 paid should be adjusted to $10,049.02 together with the interest from the date it was due until the date it is paid.

3. The 2007 ETP Payment Summary shows that the pre-July 1983 component was $35,004.00 but the paper work provided does not show the calculations.

80    On 22 October 2007, the Tribunal wrote to the applicant again explaining that the pre-1983 amount was tax related and was not based on accrual. The Tribunal advised the applicant that the matter was final and that the complaint was closed.

81    On 12 January 2008, Ms Webb wrote to the Tribunal enclosing a letter from Anthony Whyburn, Corporate Counsel for the Trustee to Ms Webb dated 9 January 2008. Mr Whyburn’s letter offered the applicant a payment of $4,650.06 as a gesture of goodwill without any admission of liability on the Trustee’s part and on condition that a Deed of Release be executed by the applicant releasing the Trustee from all claims and complaints relating in any way to the applicant’s superannuation entitlements and his membership of the fund. The letter set out the calculation of the settlement figure as follows:

On its face, the Exit Statement of 1.2.2007 says that Mr McAtamney will be paid:

    The immediate benefit of $76,523.76

    The preserved benefit of $67,149.03; and

    Interest on late payments of $10,049.02

    Totalling $153,721.81

Mr McAtamney was paid a total of $149,494.48. The difference is $4,227.33. If 10% interest is added to the difference, for a 12 month period, the total comes to $4,650.06.

82    The applicant’s letter to the Tribunal dated 12 January 2008 also raised a further concern (Seventh List of Concerns):

Why did the Retrenchment Benefit calculation fail to take into account the applicant's 31 years of service for the company, when the calculation for the benefit that was paid did take those 31 years into account?

83    On 14 January 2008, Ms Webb called the Tribunal but was told that the complaint was closed.

84    On 27 June 2008, Ms Webb wrote to the Tribunal requesting the complaint be reopened. She raised one further concern (Eighth List of Concerns):

About why there is no reference to the NSP Buck transfer of $120,984.20 as a non-preserve [sic] but restricted to Watson and Wyatt as stated on a letter on the 25th May 2000 that he would receive this on ceasing employment?

85    The NSP Buck letter to which Ms Webb referred was sent by the administrator of the BTR Nylex Superannuation Fund to the applicant in relation to his transfer to the Austrim Group Superannuation Fund, referred to elsewhere in these reasons for judgment as the Austrim Nylex Superannuation Fund. It stated:

BTR AUSTRALIA SUPERANNUATION FUND

Transfer of Benefits to Austrim Group Superannuation Fund

Further to your request to transfer into the Austrim Group Superannuation Fund We wish to confirm that your totalling $120,984.20 has been froward [sic] to the administrator of the Austrim Group Superannuation Fund.

Your Benefit is equal to your transfer value as at 18 November 1999

with interest paid until 19 May 2000

Please note the non preserved portion of your benefit is restricted. This means it is not available to you until you cease employed [sic].

…

Luisa Amati Administrator

86    On 30 June 2008, the Tribunal recorded in a filenote a decision not to respond to the applicant given the complaint was closed.

Complaint reopened

87    Following Ms Webb’s 27 June 2008 letter, and notwithstanding the initial decision not to respond to Ms Webb, it appears that the Tribunal decided to pursue the NSP Buck letter matter further. On 19 November 2008, the Tribunal noted in a filenote that the NSP Buck letter was poorly constructed, and that the reference to a transfer of $120,984.20, if accurate would cast doubt on the correctness of the benefit paid to the applicant. In the same filenote, the Tribunal recorded a decision to pursue the matter in the following way:

Appears we have insufficient evidence to accurately categorise the amount of $120,984.20. Please pursue.

88    On 26 November 2008, the Tribunal reopened the complaint by writing to the Trustee requesting more information about the NSP Buck letter and the transfer of $120,984.20 (Tribunal's Fifth List of Concerns). The Tribunal's concern was expressed in the following way:

While it seems likely that the $120,984.20 was the transfer value calculated by an actuary rather than the complainant's benefit entitlement at that date, there is nothing on file that would enable the Tribunal to categorise the amount with certainty.

If the complainant's "benefit" at 19 May 2000 was in fact $120,984.20, his final benefit would appear to be less than might be expected.

89    On 9 December 2008, Corporate Counsel for the Trustee, Mr Whyburn, wrote to the Tribunal stating that it was unable to explain the NSP Buck letter or the figure of $120,984.20. The letter stated:

I have reviewed the file held by me ion [sic] relation to Mr McAtamney and have been unable to find any records which shed light on the apparent calculation by NSP Buck of the amount said to have been transferred to Austrim Group Superannuation in 2000. You will appreciate that both due to the number of years that have passed, and to the fact that the fund was subsequently transferred from Austrim Nylex to the ANZ Super Advantage fund, locating such documents is not always possible.

I note that the letter said to have been sent to Mr McAtamney by NSP Buck on 25/5/2000 contains some formatting and grammatical errors.

The letter says "We wish to confirm that your totalling $120,984.20 has been forwarded ... " meaning that the subject noun which should appear between "your" and "totalling" is missing.

Further, the ends of the first and second lines of the second paragraph end abruptly and mid-line. The letter also says that the non-preserved restricted portion of the superannuation "is not available to you until you cease employed" (sic).

The numerous errors in and omissions from the letter of 25/5/2000 make it difficult to understand precisely what is being said or intended to be conveyed by that letter. There is no description of what the transferred amount of money represented. There is no breakdown of the preserved and non-preserved portions of Mr McAtamney's superannuation. It is not possible to draw from the limited information in that letter a conclusion that the final benefit paid to Mr McAtamney was less than would be expected, and certainly not that it was less than he was entitled to.

What is clear, however, is that the records from Austrim Nylex from 2001 and 2002 demonstrate that the resignation benefit particularised by that trustee was significantly lower than the amount of $120,984.20 referred to in the NSP Buck letter.

Mr McAtamney has previously provided the Tribunal with copies of the Austrim Nylex statement of benefits as at 1/7/2001 and 1/7/2002. I attach copies of those documents again for your records. Those statements record the resignation benefit at 1/7/2000 as $90,708.78, and at 1/7/2001 as $99,067.72.

Unfortunately I cannot account for what NSP Buck meant by the contents of their letter of 25/5/2000.

The Second Notice under s 22(4) of complaint having been withdrawn

90    On 14 January 2009, the Tribunal gave Ms Webb the Second Notice indicating that the Trustee’s letter dated 9 December 2008 adequately answered concern a) of the Eighth List of Concerns and concern a) of the Tribunal’s Fifth List of Concerns, being the concerns related to the NSP Buck letter, and accordingly, that the Tribunal had determined to maintain its earlier decision to treat the complaint as withdrawn under s 22(3)(b) of the Act. The second notice is set out at [29] of these reasons for judgment.

91    From this date onwards, the Tribunal did not respond to the substance of any further correspondence from the applicant.

Post withdrawal concerns

92    On 15 January 2009, the applicant wrote to the Tribunal raising one new concern (Ninth List of Concerns):

(a)    If the applicant’s pre-1983 value of $76,523.76 was his immediate benefit and his preserved benefit was $67,149.03, was the latter figure equal to 24 years of service?

93    In letters dated 18 March 2014 and 26 March 2014, and an email on 14 April 2014, all addressed to the Tribunal, the applicant again raised a number of concerns (Tenth List of Concerns). New concerns raised were:

(a)    If there were two separate accounts, why was one account closed in December 2005 when the applicant was not retrenched until September 2006?;

(b)    Why did the Trustee refer to the applicant receiving the “Preserved Account” and the Tribunal refer to the applicant receiving the “Retrenchment Value”?;

(c)    Did the applicant receive the Early Retirement Benefit or the Retrenchment Benefit?;

(d)    The sum of $4,560.50 offered by the Trustee on 9 January 2008 was still owing; and

(e)    Why did the Tribunal ignore the applicant’s accountant and his recommendation that the complaint be reopened?

THE PROCEEDING IN THE FEDERAL COURT

Procedural steps

94    On 24 July 2014, the applicant filed an application for an extension of time together with a draft originating application for judicial review of the Tribunal’s decision made on 17 October 2007, and subsequently confirmed on 14 January 2009.

95    On 5 September 2014, at the first directions hearing, the Court ordered that the Tribunal produce its file relating to this matter to the Court by 6 October 2014. The Tribunal did so on 25 September 2014. The Court also ordered that by 3 November 2014, the applicant file and serve an amended originating application identifying the errors alleged to have been made by the Tribunal and the grounds on which the application relies. On 2 October 2014 the applicant filed an amended draft originating application.

96    On 8 December 2014, the Court ordered that the matter be referred to Registrar Caporale for a case management conference. That conference was conducted on 13 January 2015. Following the case management conference, on 29 January 2015, the applicant filed a notice of appeal which set out the following questions of law which are reproduced in the form in which they were filed:

    Was denied natural justice When the Tribunal refused his request for final statement on the accounts held by Mr McAtamney.

    Siding with Mr Whyburns on a refusal of a Mediation meeting when asking why the Tribunal the ANZ/ING and the Tax documents differ greatly to what was paid without an explanation.

    An explanation for Mr Whyburn letter of outstanding money still owed.

    Which payment did he received his retrenchment or a pre-1983 account or early retirement.

    What interest did Mr McAtamney receive for the Five months he was forced to wait for his superannuation

    The defamatory remarks to Miss Webb as found in the Tribunal files.

    Missing documents including the first request to the Tribunal for a review of Mr McAtamney complaint.

    Including paperwork from ANO without inform us of the existence of this paperwork.

97    On 21 April 2015, the applicant filed a second notice of appeal which set out the following questions of law which are again reproduced in the form in which they were filed:

    That the Tribunal Aided and Abated the ANZ Bank and the Liquidator to defraud Mr McAtamney of over $300,000 dollars from his accounts

    Aided and Abated the ANZ Bank and the Liquidator in alteration the documents over the time it was under review by the Tribunal

    Aided and Abated the ANZ Bank and the Liquidator to defraud the Fund by withholding the Final Statements of the Fund to Mr McAtamney.

98    On 29 July 2015, at a further directions hearing, the Court determined that, given the technicality of the superannuation transactions, the Trustee would be asked to attend in order to clarify certain aspects of the calculation and payment of the applicant’s benefit.

99    On 7 September 2015, at a directions hearing, Mr Hanak, of counsel, appeared for the Trustee. Ms Webb applied for an order that the Trustee be joined as a party to the proceedings. Mr Hanak submitted that the Trustee would provide further information to the Court about the calculation of the applicant’s benefit, and that it may then be unnecessary to join the Trustee as a party. This was the course adopted. On 30 November 2015, the Trustee provided the Court with a document containing the information sought (the 30 November 2015 information). That information will be referred to later in these reasons for judgment.

100    On 14 December 2015, at a directions hearing, Mr Hanak appeared again for the Trustee. He explained the information provided by the Trustee on 30 November 2015. Ms Webb was then given the opportunity to raise any remaining concerns she had about the Trustee’s explanation. In the course of raising those concerns, Ms Webb referred to and produced a number of documents that had not been before the Tribunal. These documents were marked as exhibits in this proceeding and will be referred to later in these reasons for judgment.

101    At that same directions hearing on 14 December 2015, the Court sought further information from the Trustee. The Trustee provided that further information on 9 February 2016 (the 9 February 2016 information). Again, that information will be referred to later in these reasons for judgment.

102    On 29 April 2016, the matter was listed for a final hearing. Ms Webb attended on the applicant’s behalf and explained the applicant’s concerns to the Court. Judgment was then reserved.

103    Before delivering judgment the Court was concerned to verify that the applicant agreed with the concerns argued on his behalf by Ms Webb. On 14 July 2016, the applicant, now well enough to attend Court, confirmed to the Court in person that he had consented to Ms Webb speaking on his behalf in this proceeding.

The evidence

104    The evidence before the Court in this proceeding comprised the file of the Tribunal, four affidavits of Ms Webb relating to the delay in bringing the application, the exhibits tendered by Ms Webb and the information provided by the Trustee to the Court.

105    Reference has already been made to the material in the Tribunal files. It is now necessary to refer to the exhibits tendered by the applicant, and the information provided by the Trustee to the Court.

Exhibits tendered by the Applicant

106    The first document produced by Ms Webb, exhibit E, was a letter from the Trustee to the applicant dated 13 November 2006, attaching the applicant's Benefit Quote as at 30 June 2006. Exhibit E was tendered in the course of a discussion about the applicant's personal contributions and the contributions of the employer. Ms Webb submitted that the attached Benefit Quote showed that the applicant had a pre-1 July 1983 immediate benefit of $19,124.11 and preserved benefit of $13,870.20.

107    Exhibit F was a bundle of income tax assessments for the applicant for the years 2001 to 2006 inclusive. These were tendered in the course of a discussion about the applicant's salary for the purposes of calculating his contributions. The income tax assessments show the applicant’s taxable income was as follows:

    Year ending 30 June 2006 - $63,890;

    Year ending 30 June 2005 - $66,883;

    Year ending 30 June 2004 - $76,376;

    Year ending 30 June 2003 - $82,098;

    Year ending 30 June 2002 - $85,048;

    Year ending 30 June 2001 - $77,036.

108    Exhibit G was a bundle of the applicant’s payroll records from 13 November 2005 to 3 September 2006 and payslips from 1996 to 1999. This bundle was also tendered in the course of the discussion relating to the applicant's salary for the purposes of calculating his contributions. The payroll records and payslips show the applicant’s superannuation contributions.

109    These exhibits were not admissible as evidence to allow the Court to investigate the applicant’s contributions. They were admissible to establish that there are sources available which allow such an investigation.

Information Provided by the Trustee

110    The 30 November 2015 information explained the formula used to calculate the applicant’s benefit, the details of the calculation, and the total payments made to the applicant by the Trustee. The information included, inter alia, the following attached documents:

    The Employer Application Form dated 31 August 2004 by which Nylex employees, including the applicant, became members of the Nylex Group Superannuation Plan within ANZ Super Advantage;

    The ING Masterfund Trust Deed which took effect on 31 December 2005, as amended by the ING Masterfund Supplemental Deed dated 12 December 2005;

    The ING Masterfund Supplemental Deed dated 12 December 2005, including Schedule 5 ANZ Super Advantage Section;

    The applicant's retrenchment certificate; and

    The Benefit Specification referred to in clause 18.4 of Schedule 5 ANZ Super Advantage Section.

111    The 30 November 2015 information explained the derivation of the formula used to calculate the applicant's benefit as follows:

Mr McAtamney was a Nylex employee and was a member of the Austrim Nylex Group Superannuation Fund (Former Fund). The Former Fund was administered by Watson Wyatt Australia Limited. Mr McAtamney was included in a list of employees provided by Watson Wyatt Australia Limited, administrator of the Former Fund.

On 1 September 2004 the Nylex employees became members of the Nylex Group Superannuation Plan within ANZ Super Advantage. ANZ Super Advantage is a fund managed by ANZ Managed Investments Limited (Trustee).

The Nylex employees were then transferred between sub plans of ANZ Super Advantage (from the Nylex Group Superannuation Plan to the Huon Corporation Staff Superannuation Plan) on 16 December 2005.

Mr McAtamney was one of the employees transferred from the Former Fund to the Huon Corporation Staff Superannuation Plan.

Mr McAtamney is listed as a Category 2F:5 member. Mr McAtamneys member category is relevant to the calculation of his benefit as set out below.

In December 2005 ANZ Super Advantage was rolled into the ING MasterFund (Master Fund).

The Master Fund is governed by the ING MasterFund Trust Deed as amended from time to time. The relevant trust deed took effect on 31 December 2005.

The ING MasterFund Trust Deed created separate ‘sections’ under Clause 3.1. The ANZ Super Advantage Fund is a ‘section’ of the Master Fund. It is described in Clause 3.1(d) of the ING MasterFund Trust Deed.

The rules of the ANZ Super Advantage Section of the Master Fund are contained in Part C of Schedule 5 to the ING Master Fund Trust Deed.

Rule 18.4.1 provides that the amount of the benefit payable upon events such as retrenchment must be determined by the Trustee having regard to the Benefit Specification made in respect of the member.

The Retrenchment Certificate dated 17 January 2007 confirms that:

(a)    Mr McAtamney was employed by Huon Corporation Pty Ltd at the time of his retrenchment;

(b)    Huon Corporation Pty Ltd was a participating employer in the Huon Corporation Staff Superannuation Plan; and

(c)    Mr McAtamney was retrenched on 1 September 2006.

The Benefit Specification made in respect of Mr McAtamney is therefore the Huon Corporation Staff Superannuation Plan, of which he became a member on 16 December 2005.

Mr McAtamney’s member category for the purpose of the Huon Benefit Specification is confirmed as 2F:5 by the Huon Superannuation Plan Member Exit Advice at 1 September 2006.

[Footnotes and paragraph numbers omitted]

112    The 30 November 2015 information also set out some further explanation of the calculation itself, in addition to the information already provided to the applicant by the Tribunal in a letter dated 23 July 2007 and set out at [64]-[66] of these reasons for judgment. Regarding the first part of the calculation, “the accumulation of all contributions made or deemed to have been made by the Member to the Previous Fund up to 1 July 1992 (other than those credited to the Member’s Supplementary Account, if any) with Investment Income”, the Trustee said:

This amount is $78,008.93. There is no objective data for this amount beyond what was provided to the Trustee at the time the previous fund was rolled into the current fund.

The amount is evidenced by the screenshots of the Trustee's superannuation calculation program, specifically Account No. 36 - Member Account at 1 July 1992.

We note that there was no Supplementary Account or Investment Income.

113    With respect to the applicant’s contribution rate, the Trustee said:

Mr McAtamney’s contribution accrued at different rates across his years of membership.

While Mr McAtamney’s latest contribution rate was 5%, as evidenced by his member category identifier ‘2F:5%’ in Watson Wyatt’s member database and the Huon Corporation Exit Advice at 1 September 2006, his contribution rate for the period 1 July 1992 to 30 June 1994 was 3.75%.

It is not possible to provide evidence for Mr McAtamney’s contribution rate from 1 July 1992 to 30 June 1994 because this data was not provided to the Trustee upon change of fund.

Therefore, X is 6.25% for 2 years and 7.5% for the remaining 12.169863 years ending 1 September 2006.

Weighting to take account of the relevant timeframes reveals an average X% of 7.4113.

[Footnotes omitted]

114    For the purposes of calculating the applicant's minimum benefit under Rule 12.6(a)(i), which was the benefit the applicant was eventually paid, the Trustee said of the first part of the calculation, “the Member’s contributions to the Plan and the Previous Fund (other than those contributions credited to the Member’s Supplementary Accounts, if any) with Investment Income” that:

There is no objective data for this amount beyond what was provided to the Trustee at the time the previous fund was rolled into the current fund.

The amount on record is $68,379.91. This is evidenced by the screenshots of the Trustee’s program, Superb.

[Footnotes omitted]

115    No explanation was given for the discrepancy between the figure given for “the accumulation of all contributions made or deemed to have been made by the Member to the Previous Fund up to 1 July 1992 (other than those credited to the Member’s Supplementary Account, if any) with Investment Income” being $78,008.93, and the figure given for a longer time period, “the Member’s contributions to the Plan and the Previous Fund (other than those contributions credited to the Member’s Supplementary Accounts, if any) with Investment Income”, being $68,379.91.

116    The 30 November 2015 information also confirmed that the total payment made to the applicant was $149,494.48. The payment history was given as follows:

Mr McAtamney was not paid anything until 29 January 2007. Under the Benefit Specification the Trustee may calculate and pay interest in relation to any period between the due date and the date of payment.

Interest was paid at 15.805% per annum for the period 1 September 2006 and 29 January 2007 (150 days). Interest thus totalled $8,882.96, producing a total benefit of $145,642.78.

Mr McAtamney was paid 98% of this amount, being $142,729.78, on 29 January 2007, pending finalisation of the fund.

A further payment of $1,456.87 was made to Mr McAtamney on 23 February 2007 as an additional payment to take account of a salary increase.

A further payment of $5,307.69 was made to Mr McAtamney on 18 September 2007.

Information about the final payment of $5,307.69 was not provided to the Tribunal by the Trustee or the applicant, although the Trustee did refer to a total payment of $149,494.48 in its letter to Ms Webb dated 8 January 2008, a copy of which was received by the Tribunal on 12 January 2008.

117    In relation to the applicant’s contributions, the 9 February 2016 information noted that the Trustee’s available records, along with the applicant’s payslips which were provided to the Court, are consistent with a contribution rate of 5% of the applicant's salary. Further, the Trustee also provided an attachment which it stated showed the following:

Attachment 3 [to the 9 February 2016 document] is a copy of the full Nylex combined data as at 5 March 2004. This information was provided by the previous trustee when the present Trustee was taking over the Fund. This document records that Mr McAtamney’s contributions to the Fund as at 5 March 2004 totalled $46,751.98.

[Paragraph number omitted]

118    The Trustee then provided a screenshot of the applicant’s account balance at two different times, being 1 December 2004 and 16 December 2005. The figure given for 1 December 2004 was $56,708.45, and the figure given for 16 December 2005 was $63,468.26. According to the Trustee, these records “demonstrate a steady increase over time.”

119    The 9 February 2016 information also provided further material about the applicant’s employer’s contributions, namely that, the employer made contributions equivalent to 10.5% of the applicant’s salary which were allocated to the Fund’s reserves to provide for the defined benefits. The employer’s contributions were not payable to the applicant.

120    The 9 February 2016 information also provided further material about the Trustee’s records in relation to the applicant’s salary. A printout showing the applicant’s salary as reported by his employer between 1999 and 2006 showed that the applicant’s salary increased from $27,432 in 1999 to $38,712 in 2006. The document further stated that:

ANZ is unable to produce documents recording the reporting of Mr McAtamney’s salary due to the time that has elapsed since the benefit was paid and any complaint was made by Mr McAtamney.

…

In defined benefit plans such as this, the Trustee relies on the salary information provided by the member’s employer. This is usually provided once a year. In Mr McAtamney’s case, salary information was provided to the Trustee on 1 July each year. This information was also recorded in the annual statements sent to Mr McAtamney.

[Paragraph numbers omitted]

121    The 9 February 2016 information then responded to the contention made by Ms Webb at the directions hearing on 14 December 2015 that the applicant’s salary was significantly higher than the amounts reported to the Trustee as evidenced by exhibit F being the Notices of Assessment issued to the applicant. In response, the Trustee stated that:

The Notices relied on by Ms Webb do not provide a breakdown of how the taxable income was derived. Absent a breakdown which identifies the sources of income, it is entirely possible that Mr McAtamney was deriving taxable income from other sources during the relevant years.

…

Finally, a member’s PAYG income may be substantially different from his “salary” as defined under the Benefit Specification. The Benefit Specification defines Salary or Salaries of a Part 2 Member as:

…the Member’s wage or salary (calculated as an annual wage or salary) including directors fees but excluding commission sums paid for overtime work or for other special services or by way of a bonus such other regular or recurring components (if any) of the Member’s remuneration from the Employer as the Employer wishes to include…

…

In Mr McAtamney’s case, his salary as defined by the Benefit Specification will be substantially less than the taxable income he derived from his employer. This is because Mr McAtamney received a considerable number of payments in addition to his base salary, in the form of night shift, holiday and weekend loadings. These are recorded in the pay slips contained in Exhibit G.

These additional amounts are excluded from the calculation of Mr McAtamney’s final average salary under Rule 12.3(b)(ii) of the Benefit Specification.

[Paragraph numbers excluded]

122    In relation to the amount of $120,984.20 referred to in the NSP Buck letter, the 9 February 2016 information stated:

Unfortunately the Trustee cannot clarify this issue further. It had no involvement in the drafting of this letter.

123    The 9 February 2016 information then addressed three concerns raised in correspondence between the applicant and the Tribunal. The first of these concerns was the applicant’s assertion that the pre-1983 component of his benefit had not been paid. The third of these concerns was the applicant’s assertion that he had received his retirement benefit but not his retrenchment benefit. In response to both these concerns the Trustee stated:

This is not correct. The Trustee has paid Mr McAtamney the full amount of his entitlement as required under the Benefit Specification.

124    The second concern addressed by the document was the applicant’s assertion that there were two superannuation accounts, and that the balance of one of the accounts was still owed to him. In response the Trustee stated:

This is incorrect. The Trustee used two account numbers relevant to Mr McAtamney. The primary account (number 5156709) was the account into which contributions were paid. The secondary account (number 5156459) was a “shell” account maintained solely for administrative purposes. This was not an additional account which held funds payable to Mr McAtamney.

CONSIDERATION

The legal basis of the application

125    The applicant disagreed with the decision of the Tribunal to treat his complaint as withdrawn on the basis that it was lacking in substance.

126    The legal basis of his challenge to the decision was not clearly disclosed in the four attempts to articulate it, first, in the originating application, then in the amended originating application, then in the notice of appeal and, finally, in the subsequent amendment to the notice of appeal, those steps being described in [94] – [97] of these reasons for judgment. That is not surprising because the applicant was not legally represented and the legal basis of the claims has some technical complexity.

127    Section 46 of the Act provides for an appeal from a decision of the Tribunal. That applies when, for instance, the Tribunal acts under s 37 to make what is there described as a determination. In Ray v Superannuation Complaints Tribunal [2004] FCA 1120; 138 FCR 548 (Ray) Goldberg J held that an appeal under s 46 does not lie from a decision of a Tribunal that it does not have jurisdiction for the reason that the complaint was made after the expiration of a statutory time limit. His Honour said at [49]:

When the context in which s 46(1) of the SRC Act, is considered, it is apparent that what is contemplated by the term “determination of the Tribunal” is the ultimate or final disposition of the substance of the complaint or matter which has been brought before it. I do not consider that it encompasses a preliminary or threshold decision that the Tribunal does not have jurisdiction to consider or determine a complaint before it.

128    His Honour said at [50] that in s 37 “a reference to ‘determination’ is clearly a reference to a final substantive decision or resolution concluding the complaint”. Gray J reached the same conclusion at [62] in Merkel v Superannuation Complaints Tribunal [2010] FCA 564 (Merkel). That was another case involving a decision that the Tribunal did not have jurisdiction to deal with the complaint.

129    In both cases the Court accepted that the Court had jurisdiction under s 39B(1A)(c) of the Judiciary Act to grant mandamus as the application raised matters arising under a law of the Commonwealth. In Merkel Gray J also regarded the ADJR Act as an available basis for the intervention of the Court in relation to a decision of the Tribunal.

130    These cases suggest by analogy that s 39B(1A)(c) of the Judiciary Act and the ADJR Act are available in the circumstances of this case. It is appropriate to treat the applicant as having intended to rely on those provisions. Although Ray and Merkel did not involve decisions under s 22(3)(b) of the Act, the reasoning probably applies equally to such a decision. If, however, a decision under s 22(3)(b) of the Act is amenable to an appeal under s 46 of the Act, the errors identified in these reasons for judgment raise questions of law as required by that section. The outcome of the proceeding is the same whichever form the claim to relief takes.

Discharge of the Stautory Duty by the Tribunal

The Nature of the Statutory duty

131    The nature of a complaint which engages the functions of the Tribunal is a complaint that a decision of a trustee is or was unfair or unreasonable (s 14(2)). The Tribunal may, as it did in this case, treat a complaint as having been withdrawn if it thinks that the complaint is lacking in substance (s 22(3)(b)). If the complaint proceeds the Tribunal is required to enquire into it and to try to settle it by conciliation (Pt 5 of the Act). If the complaint is not resolved by conciliation, the Tribunal must undertake a review of the trustee’s decision and make a determination to affirm the decision, to remit the matter for reconsideration, to vary the decision or to set aside the decision and substitute a decision for the decision so set aside (s 37(3)). The power to make a determination rests on the conclusion of the Tribunal as to whether the trustee’s decision was fair and reasonable.

132    The review function of the Tribunal was explained in the judgment of Kenny and Lander JJ in Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; 119 ALR 272 (Edington) as follows:

45.    Various provisions of the Complaints Act show that, relevantly, a function of the Tribunal is to conduct a form of administrative review of decisions made by trustees of regulated superannuation funds, which are challenged by relevant persons as unfair or unreasonable: … A hearing before the Tribunal is a hearing de novo, following which the Tribunal makes findings of fact relevant to its deliberations: …

46    Under the Complaints Act, the Tribunal is not called on to make the same kind of determination as the Administrative Appeals Tribunal under its governing legislation. That is, in contrast to the Administrative Appeals Tribunal, the Tribunal under the Complaints Act is not called upon to determine whether the trustee made the correct or preferable decision: … Rather, the Tribunal stands in the shoes of the trustee and determines, based on all the information before it, whether or not a decision taken by the trustee was fair or reasonable in the circumstances. In Jevtovic 217 ALR at 321, Sundberg J held that the words “the decision … was fair and reasonable” in s 37(6) were directed to whether the actual decision, rather than the process that led to it, was fair and reasonable, a proposition that has subsequently been accepted as correct: …

…

48    As Kirby J said in Breckler 197 CLR at 129 [89], with respect to a decision made by the Tribunal in substitution for that of the trustee:

… What is involved is not a determination that the trustees misapplied the law to the facts. Nor that they mistook their powers and obligations under the governing rules of the fund. Rather it is a determination by the Tribunal of its own opinion that the trustees' decision is, or was, unfair, unreasonable or both. … The object of the determination is to effect the purpose of removing the unfairness and unreasonableness which the Tribunal has determined to exist …

If, however, the Tribunal is satisfied that, in the circumstances, the decision of the trustee was fair and reasonable in its operation in relation to the complainant, it must affirm the decision: see s 37(2) and (6).

…

50    Furthermore, since the Tribunal hearing is a hearing de novo, the Tribunal is not “restricted to the documents which were before the trustee, nor is it confined to the manner in which the applicant addressed the subject matter”: … As Mansfield J said in Lykogiannis 97 FCR at 372 [48]:

Ultimately, whatever findings the Tribunal must make standing in the shoes of the trustee … s 37(6) requires the Tribunal to decide whether the decision under review, in its operation, was fair and reasonable in the circumstances. The focus of s 37(6) is upon the consequence or outcome of the decision in its practical operation, rather than upon the process by which the decision under review came to be made.

    …

51    … The Tribunal may, of course, accept the findings made by the trustee if it agrees with them, but the Tribunal’s function is not discharged merely by forming a view that the trustee’s factual findings were fair and reasonable. Rather, the Tribunal must ascertain the facts for itself upon the material before it and satisfy itself by reference to these facts whether the trustee’s decision was fair and reasonable in the circumstances. Moore J expressed the same idea in Marks v CSS Board of Trustees [2005] FCA 797 at [23], saying:

[Section] 37(6) of the Complaints Act does not authorise … 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.

See also Edwards v Postsuper Pty Ltd [2006] FCA 1380 at [30] (Moore J).

[Emphasis added.]

133    Under the statutory scheme, when the Tribunal addresses the question under s 22(3)(b) whether to treat a complaint as withdrawn because it is lacking in substance, the Tribunal must examine whether there is substance in the complaint that the decision of the trustee was unfair or unreasonable. In the same way that the Tribunal is required, when making a determination under s 37, to decide for itself whether the outcome of the trustee’s decision was fair and reasonable, so it must, when considering whether to treat the complaint as withdrawn under s 22(3)(b), form a view itself whether the complaint that the decision was unreasonable or unfair, lacks substance.

134    In other words, the consideration under s 37(3) and the consideration under s 22(3)(b) share the same characteristic, namely, that the Tribunal must come to its own view of the quality of the outcome. The difference between the two sections is that s 22(3)(b) is designed to provide a process for clear cases and hence a mechanism to avoid the need for conciliation and review when those processes are not warranted by the weakness of the complaint.

135    Furthermore, the terms of the Act make it clear that the role of the Tribunal is to assist superannuation fund members and to ensure fair dealing with them by superannuation fund trustees. The Tribunal has a function which is rather different from the usual function of most administrative tribunals. In the context of the Act the role of the Tribunal is focused on assisting one party to a transaction by ensuring that that party has been dealt with fairly and reasonably. In fulfilling this function there is less of the element of determining a controversy between two contending parties as might be seen, say, when the Administrative Appeals Tribunal determines a social security or veterans’ claim. Such controversies bear an essential character of inter partes disputation. The focus in this statutory context is well illustrated by the requirements of s 16 of the Act which impose on the Tribunal an obligation to assist the complainant in making a complaint. This statutory context then influences the way in which the Tribunal is required to go about its work. It might be required to investigate on its own initiative more than would be required in other statutory contexts, and the obligation to make enquiries even in the absence of material provided by the complainant is higher than the obligation to make further enquiry where the statutory context is concerned with ordinary inter partes disputation. Crennan J captured the purpose of the Act in HEST Australia Ltd v Sykley [2005] FCA 1381; 147 FCR 248 at [49] as "to ensure members and beneficiaries are not adversely affected by unfair and unreasonable decisions of insurers and trustees: see ss 14 and 37".

Did the Tribunal perform its duty under s 22(3)(b) of the Act

136    Under s 22(4) the Tribunal was bound to provide reasons for its decision to treat the complaint as having been withdrawn. The only apparent source of those reasons is in the notice provided to Ms Webb on 14 January 2009. In order to understand the approach of the Tribunal conveyed in this notice it is necessary to read it in conjunction with the earlier notice dated 17 October 2007, and with the letter dated 13 August 2007 which signalled the Tribunal’s intention to consider treating the complaint as withdrawn. Further, the first notice incorporated by reference a number of earlier communications between the Tribunal and Ms Webb. In the absence of written reasons in the form normally produced by an administrative tribunal in such circumstances, the only way to ascertain whether the Tribunal discharged its statutory function is by a consideration of the documents in the Tribunal file and an assessment as to whether they disclose the reasoning of the Tribunal.

137    Whether attention is directed solely to the second notice, or to the other sources referred to above, it is apparent that the Tribunal saw its function as gathering from the applicant and Ms Webb the details of their concerns, passing those on to the Trustee, and then reporting back to the applicant and Ms Webb the answers provided by the Trustee. The Tribunal did not generally approach the matter on the basis that it was obliged to evaluate the material provided by the Trustee and make an assessment whether there was substance in the complaint that the payment made was not fair or reasonable. The question in that form is not raised in any of the material from the Tribunal, nor does the approach taken as evidenced by the Tribunal’s file suggest that the matter was considered on that basis.

Onus of Proof

138    Further, some insight into the approach taken by the Tribunal can be gained from several references such as the reference in the letter dated 13 August 2007 to the view that the complaint “should be withdrawn under s 22(3)(b) of the SRC Act as lacking in substance because you have not demonstrated that an error has been made” (emphasis added).

139    This approach does not reflect the statutory function. The Tribunal erroneously placed an onus of proof on the applicant when there was no onus of proof on him: McDonald v Director-General of Social Security [1984] FCA 59; 1 FCR 354 at 356-357. Rather, the Tribunal was bound to consider whether there was substance in the complaint that the outcome was not fair or reasonable.

Unreasonableness

140    Finally, by reference to the second notice and the Tribunal file it is apparent that the Tribunal, acting reasonably, could not be satisfied that the complaints lacked substance. That matter is best examined in four areas –the applicant’s personal contributions, the calculation of the multiple, the NSP Buck letter and the total payments made to the applicant.

The applicant’s personal contributions

141    The total amount of the applicant’s superannuation contributions is a crucial issue in the calculation of the payment due to him.

142    On 27 August 2007, the applicant raised concern a) of the Actuary's List of Concerns, which related to the accrual date for contributions being 1 July 1992 rather than 1 November 1975. On 12 September 2007, the Trustee explained to the Tribunal in an email that there was no data available about the applicant's contribution history prior to 1992 at all, including amongst the data provided by the previous administrator. Instead, the Trustee claimed that that data was encapsulated in the multiple used in the calculation of the applicant's benefit. The Trustee further claimed that the fund members were able to vary their contributions, and that the multiple encapsulated that information. Concerns about the calculation of the multiple are discussed below.

143    The material before the Tribunal regarding the applicant’s personal contributions was limited. The details of the applicant’s total personal contributions, and contribution rates, were provided by the Trustee in an email dated 20 July 2007, and forwarded by the Tribunal to the applicant in a letter on 23 July 2007, in the form of the completed formula used by the Trustee to calculate the applicant’s benefit. The completed formula reveals that the applicant’s personal contributions amounted to either $68,379.91, being “the Member’s contributions to the Plan and the Previous Fund (other than those contributions credited to the Member’s Supplementary Accounts, if any) with Investment Income” or $78,008.93, being “the accumulation of all contributions made or deemed to have been made by the Member to the Previous Fund up to 1 July 1992 (other than those credited to the Member’s Supplementary Account, if any) with Investment Income”. The completed formula also reveals that the applicant’s contribution rate was 5% of his income.

144    There was no further material before the Tribunal relating to the applicant’s personal contributions, other than the bare statement in the benefit calculation formula of his total contribution amount and contribution rate. The Tribunal did not ask the Trustee how it arrived at the total contribution amounts used in the formula. Further, the applicant referred to a 5% contribution rate in his First List of Concerns but the Tribunal did not investigate that aspect.

145    As the information obtained by the Tribunal about the contributions made by the applicant and the rate of those contributions was known by the Tribunal to be incomplete, the Tribunal could not rationally conclude that the contribution figure used by the Trustee to payout the applicant was fair and reasonable.

146    The information provided by the Trustee to the Court confirmed that the information available to it was limited. The Trustee had also advised the Tribunal of the limitations. The Trustee repeated those limitations in the 30 November 2015 and 9 February 2016 information provided to the Court as follows:

    “There is no objective data for [the figure of $78,008.93] beyond what was provided to the Trustee at the time the previous fund was rolled into the current fund”;

    “It is not possible to provide evidence for Mr McAtamney’s contribution rate from 1 July 1992 to 30 June 1994 because this data was not provided to the Trustee upon change of fund”;

    “There is no objective data for [the figure of $68,379.91] beyond what was provided to the Trustee at the time the previous fund was rolled into the current fund”; and

    “ANZ is unable to produce documents recording the reporting of Mr McAtamney’s salary due to the time that has elapsed since the benefit was paid and any complaint was made by Mr McAtamney”.

147    The paucity of records available to the Trustee is probably the result of the many changes of fund which flowed from the various sales of the business in which the applicant was employed over his very many years of work.

148    It is not the function of the Court to investigate the proper contribution rate or the amount of the contributions made by the applicant in order to test the fairness and reasonableness of the payment made. However, the 30 November 2015 information and 9 February 2016 information demonstrate that there is further information available which warrants examination and which may throw light on the calculation rate or figure. For example, the 9 February 2016 information stated the applicant's account balance at three different dates was as follows:

    5 March 2004: $46,751.98;

    1 December 2004: $56,708.45;

    16 December 2005: $63,468.26.

149    The payroll material tendered by Ms Webb also demonstrated that there are other sources from which the applicant’s contributions or rate of contribution might be reconstructed.

The calculation of the multiple

150    The alternative benefit calculations under cl 12.3(a)(ii) of the Benefit Specification depend on the Accrued Retirement Benefit Multiple. On 29 May 2007, in the Tribunal’s Second List of Concerns, the Tribunal asked the Trustee how the multiple was calculated (concern d).

151    On 16 July 2007 and 20 July 2007, the Trustee responded to the Tribunal by providing the calculation methods used by the actuary for the calculation of the benefit. These calculations showed that the multiple as at the applicant’s retrenchment date, and as used to calculate his benefit, was 3.431. However, the Trustee did not explain how the multiple was calculated.

152    On 25 July 2007, Ms Webb called the Tribunal and stated, as part of the applicant’s Sixth List of Concerns, that the figure of 3.431 given for the multiple was incorrect. The Tribunal agreed to investigate the matter further. On 8 August 2007, the Trustee provided the Tribunal with the formula for the calculation of the multiple: Accrued Mult = (Rate of Increase) * (Years and Complete Months from 01/12/2004) + Accrued Mult @ 01/12/2004. Given the date of termination of 1 September 2006, the Trustee filled out the formula as follows:

Rate of Increase = 0.1275p.a.

Years and Complete Months from 01/12/2004 = 1 year 9 months = 1.75

Accrued Mult @ 01/12/2004 = 3.19800 Received from previous administrator

153    On 12 September 2007, as referred to in [73], the Trustee provided further information to the Tribunal about the multiple, stating that the multiple encapsulated information about the applicant's contributions, including prior to 1992 and encapsulating any variation in contribution rate.

154    On the material in the hands of the Trustee, the calculation of the multiple was dependent on information received from the previous administrator. The investigation of the correct multiple was incomplete. How it was arrived at was not explained and is not clear.

155    The 30 November 2015 information provided by the Trustee to the Court had details of the calculation of the multiple as follows:

The Accrued Retirement Benefit Multiple (ARBM) was calculated pursuant to Rule 1.1(b)(iii) of Part 2 of the Benefit Specification to be 3.431.

156    Rule 1.1(b)(iii) in the attached The Benefit Specification stated:

Benefit A plus in respect of a Category F Member 7.75%, 10.25%, 12.75% or 17.75% of the Member’s Final Average Salary for each year of Membership during which the Member’s contribution rate pursuant to Rule 1A is 2.5%, 3.75%, 5% or 7.5% of Salary respectively.

157    Benefit A was defined by Rule 1.1(a), which provided that:

The Member’s Previous Fund Multiple as specified in Part 2 - Schedule A (Attached at the end of this Part 2) multiplied by the Member’s Final Average Salary (which amount is referred to as Benefit A for the purposes of this Rule 1.1) plus the Member's Supplementary Account as at the date of retirement;

158    However, Part 2 - Schedule A in the Benefit Specification attached to the Trustee’s document dated 30 November 2015 did not list any members or their Previous Fund Multiples. Further, the Benefit Specification provided to the Tribunal by the Trustee on 20 July 2007, which the Trustee claimed to be the “benefit schedule relied on by the actuary in making the calculations for Mr McAtamney’s payment”, lists a number of members in Part 2-Schedule A along with their Previous Fund Multiples, but does not list the applicant. It is therefore unclear where the figure of 3.198 referred to above as the accrued multiple as at 1 December 2004 obtained from the previous administrator, was derived from. Again, the state of this information shows that there was further investigation to be done to establish whether the amount paid to the applicant was fair and reasonable.

The NSP Buck letter

159    It will be recalled that NSP Buck was the administrator of the BTR Nylex Limited Superannuation Fund. The letter dated 25 May 2000 to the applicant was to advise him on his transfer to the Austrim Group Superannuation Fund which is also referred to as the Austrim Nylex Superannuation Fund.

160    The figure referred to in the NSP Buck letter was first raised as a concern in the applicant’s Fifth List of Concerns and was next raised in the applicant’s Eighth List of Concerns, after the First Withdrawal.

161    This latter occasion was sufficient for the Tribunal to reopen the matter, and state in its letter dated 26 November 2008 to the Trustee that “there is nothing on file that would enable the Tribunal to categorise the amount with certainty.”

162    The Trustee’s subsequent responses did not answer the question posed by the Tribunal. The first response, dated 9 December 2008, pointed out a number of formatting and grammatical errors in the construction of the NSP Buck Letter. It then referred to Austrim Nylex benefit statements in 2001 and 2002, which particularised the applicant’s benefit at significantly lower amounts than the $120,984.20 referred to in the NSP Buck letter. Watson Wyatt was the administrator of the Austrim Nylex Superannuation Fund at the time that those benefit statements were produced.

163    However, subsequent statements, produced by a different administrator, do not establish that the amount referred to in the NSP Buck letter was an error. There is no reason to assume that those statements were correct. The Trustee was unable to provide prior statements showing that the amount referred to in the NSP Buck letter was an error. In the latest document provided to the Court, on 9 February 2016, the Trustee confirmed its position in relation to the NSP Buck letter that:

Unfortunately the Trustee cannot clarify this issue further. It had no involvement in the drafting of this letter.

164    Although the NSP Buck letter caused the Tribunal to reopen the matter, the Tribunal concluded that the NSP Buck letter was incorrect, that the subsequent statements provided by the Trustee were correct, and that the provision of the subsequent statements to the applicant negated any expectation of a higher benefit.

165    However, the Tribunal did not resolve an issue concerning the accuracy of the later statements which it had raised with the Trustee in the Tribunal’s Second List of Concerns on 29 May 2007, namely that the figure given in a 2002 statement for the applicant’s Early Retirement Benefit was less than the figure given in a 2001 statement for the applicant’s Resignation Benefit (concern j). The Tribunal was concerned that the lower 2002 figure was carried forward, possibly leading to a mistake in the calculation of the applicant’s benefit. The Trustee’s response on 26 June 2007 was to provide the Tribunal with details of the formula used to calculate the applicant’s benefit. That formula did not reference the 2001 or 2002 statement, or indeed, any previous statements. The accuracy of the latter statements was left unresolved even though they were said by the Tribunal to be the answer to the figure in the NSP Buck letter.

Total payments made to the applicant

166    On 29 January 2007, the applicant was initially paid $142,729.78. On 23 February 2007, a further payment of $1,456.87 was made to take into account a salary increase, taking the total payment to $144,186.65. On 18 September 2007, a final payment of $5,307.69 was made, bringing the total payment to $149,494.48. No information about this final payment was made available to the Tribunal by the Trustee or the applicant. However, the letter from the Trustee’s corporate counsel to Ms Webb dated 8 January 2008 referred to a total payment amounting to $149,494.48. It is therefore possible to infer that the Tribunal was aware of payments to the applicant totalling either $144,186.65 or $149,494.48.

167    On 7 March 2007, the Tribunal received a copy of the applicant’s Member Exit Advice dated 1 September 2006. On its face, the document states that the applicant will be paid $143,672.79 plus $10,049.02 in interest on late payment(s), totalling $153,721.81. In its handling of the complaint, the Tribunal did not address the discrepancy between what the applicant was paid and what the 1 September 2006 document said he should have been paid. On 12 January 2008, the Tribunal was explicitly alerted to this discrepancy when it received a copy of the Trustee’s 8 January 2008 letter. The discrepancy amounts to evidence that the applicant had not received his full benefit. Thus, the Tribunal could not rationally conclude that there was no substance to the claim that the applicant’s payment was unfair or unreasonable.

Relief

Failure to fulfil the Tribunal’s statutory function

168    These reasons for judgment have explained that the Tribunal took the approach that it should obtain from the applicant his concerns about the payment made by the Trustee, transmit those concerns to the Trustee, and then report back the Trustee’s answers to the applicant. However, the statutory function vested in the Tribunal, when it was considering whether to treat the complaint as withdrawn because it lacked substance, required the Tribunal to determine for itself whether there was substance in the allegation that the outcome of the Trustee’s decision was unfair or unreasonable. The Tribunal did not address that statutory task.

Onus of proof

169    These reasons for judgment have also explained that the Tribunal placed an onus on the applicant to establish that the payment made by the Trustee was unfair or unreasonable. That approach was inconsistent with the duty of the Tribunal to make an assessment whether the outcome of the decision of the Trustee was fair or reasonable. There was no onus on the applicant to satisfy the Tribunal that the outcome of the decision of the Trustee was unfair or unreasonable.

170    In both these respects the Tribunal mistook its function under the Act. It asked itself the wrong question when considering to apply s 22(3)(b). It applied the wrong test.

171    These were errors of law. In Craig v South Australia [1995] HCA 58; 184 CLR 163 Brennan, Deane, Toohey, Gaudron and McHugh JJ said at [14]:

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

[Emphasis added.]

See also: Minister for Immigration v Yusuf [2001] HCA 30 at [82]; 206 CLR 323 at 351 and Kirk v Industrial Court (NSW) [2010] HCA 1 at [66]; 239 CLR 531 at 571.

172    In an application brought under s 39B(1A) of the Judiciary Act, the Court may order the issue of a writ of mandamus to compel the performance of the duty in accordance with law. In R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 Rich, Dixon and McTiernan JJ said at 242-3:

A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo¸ at any rate if a sufficient demand or request to do so has been made upon him. In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void.

    [Emphasis added.]

173    Further, the failure of the Tribunal to perform its statutory function is an error of law within the meaning of s 5(1)(f) of the ADJR Act even if the error is not a jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [57]. If that ground is established the Court has powers to grant relief under s 16, including the power to quash the decision and refer the matter back to the Tribunal for further consideration. Relief of the same type is available if the proceeding was properly brought as an appeal under s 46 of the Act.

Unreasonableness

174    In two respects the decision of the Tribunal was unreasonable in the legal sense. On the material provided by the Trustee to the Tribunal critical elements in the calculation of the amount of the payment due to the applicant were the contributions made by him, and also the multiple used in the alternative formulae for the calculation of the entitlement. The Trustee told the Tribunal that there was no objective data available to the Trustee to substantiate these components. Without an examination of such data the Tribunal could not rationally conclude that the amount of the payment to the applicant was fair and reasonable. Further, the Tribunal did not consider the discrepancy between the amount the applicant was paid and the amount said to be payable in the 1 September 2006 Member Exit Advice. The Tribunal could not rationally conclude that there was no substance to the claim that the applicant’s payment was unfair or unreasonable when there was uncontradicted evidence that he had not received his full benefit. There was no evidence and intelligible justification for the conclusion that the complaint lacked substance. Unless the missing elements of the calculation were substantiated the Tribunal could not rationally conclude that the amount paid was fair and reasonable and it could not rationally form the view that there was no substance to the complaint. A decision which lacks an evident and intelligible justification is legally unreasonable: Minister for Immigration and Citizenship v Li [2013] HCA 18 at [76]; 249 CLR 332 at 367.

175    Further, a decision may be unreasonable in the legal sense where the decision maker fails to make enquiries into factual matters which may be readily determined and are of critical significance to the decision made under statutory authority: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 and Minister for Immigration and Citizenship v Le [2007] FCA 1318; 161 FCR 151 at [63] – [66]. The principle applies both where there is an absence of material before the Tribunal and where there is material but it is ambiguous or obscure: Yang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 258; 132 FCR 571 at 579.

176    In Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 46; 6 FCR 155 Wilcox J said at [33] that where a decision maker fails to acquire such information the Court “on judicial review should receive evidence as to the existence and nature of that information”.

177    In the present case the material provided to the Tribunal by the Trustee did not substantiate the amount of the applicant’s contributions or the basis upon which the multiple was arrived at. That material simply asserted the amounts and multiple from statements which had been produced by predecessor trustees. But those statements were shown by the material provided by the Trustee to the Tribunal to be inconsistent and unreliable. Albeit to a limited extent, the primary evidence of the necessary information was produced by Ms Webb to the Court in the form of wage records and tax returns for limited periods within the relevant 31 years. Those are resources which the Tribunal properly exercising its power should have called for and examined. It is a reasonable inference that further enquiries will uncover similar primary source material for the remaining parts of the relevant period.

178    A decision maker which arrives at a decision that is unreasonable in the legal sense falls into jurisdictional error. That error may be addressed by the issue of a writ of mandamus compelling the decision maker to reconsider the matter in accordance with the law. Further, the exercise of a power that is so unreasonable that no reasonable person could have exercised the power is a ground of review under s 5(1)(e) and (2)(g) of the ADJR Act. If that ground is established the Court has powers under s 16 including the power to quash the decision and refer it back to the Tribunal for further consideration. And again relief of the same type is available if the proceeding was properly brought as an appeal under s 46 of the Act.

Delay

179    An application for an order to review a decision under the ADJR Act must be made within 28 days of the receipt of the decision in question (s 11(1) of the ADJR Act). The applicant may apply to the Court for an extension of time within which to file such an application (r 31.02 Federal Court Rules 2011(Cth)). An appeal under s 46 must be instituted within 28 days unless the time is extended under s 46(2)(a). There is no prescribed time limit on the making of an application for constitutional writs under s 39B(1A) of the Judiciary Act. Nonetheless, the grant of those remedies is discretionary. Undue delay in certain circumstances would provide a discretionary reason to refuse relief.

180    The power to extend time for the filing of an application for an order for review under the ADJR Act, on appeal under s 46 of the Act, and the factors relevant to the effect of delay in bringing an application under s 39B(1A) of the Judiciary Act are similar.

181    The discretion to allow time is wide but must be exercised judicially. In the end the Court must determine whether it is in the interests of justice to extend the time or refuse the application. In the case of a specified time limit under the ADJR Act and the Act the starting point is that the time limit is to be observed. Attention must be given to the principle that there must be finality in litigation. It will usually be relevant to consider if there is an acceptable explanation for the delay in bringing the application, and whether anyone would suffer prejudice if further time were granted. An important consideration in the assessment of the interests of justice is an evaluation of the merits of the application should the extension be granted: AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193; 238 FCR 341 at [10].

182    In the present case the decision in question was notified to the applicant on 14 January 2009. The application for relief was filed on 24 July 2014, that is to say, over five years after the decision was notified.

183    Ms Webb filed four affidavits which addressed the reason for the delay. One affidavit was affirmed on 23 July 2014, one was affirmed or sworn on 27 November 2014, and two were sworn on 20 April 2015. In those affidavits Ms Webb chronicled a series of health problems suffered by the applicant from 2009 until 2014. Until 2009 the applicant and Ms Webb lived in Cranbourne on an estate adjacent to landfill. Over years methane gas leaks from the landfill affected their health. In 2006, shortly after he was retrenched, the applicant had an accident at home which damaged his throat. The injury required ongoing surgery to maintain his airway. The applicant suffered stress and depression as a result of the events relating to the challenge to his superannuation payment. He is a diabetic. He has four hernias and is overweight. He found walking difficult. In 2011, the applicant had surgery for prostate cancer. Then in 2011 and 2012 he had two operations to remove cancer from his left eye. This surgery involved reconstruction to replace bone removed from around the eye. As a result he had difficulty in reading and watching television. The accumulation of these problems made it difficult for the applicant to pursue this matter. These health problems explain why the applicant was limited in the steps he could take to challenge the Tribunal decision.

184    The Trustee cooperated with the Court to provide information concerning the superannuation payment, but did not seek to become a party to the proceeding. Consequently, there was no occasion for it to address the question of prejudice which might result to it as a result of the extension of time. The possibility of such prejudice should be treated as a neutral factor in this assessment.

185    The applicant has a strong case for relief on the merits. This factor outweighs the considerations that there should be a finality to litigation and that the specified time limits should be observed. The interests of justice favour extending until 24 July 2014 the time within which the applicant might bring this proceeding.

THE WAY FORWARD

186    It follows from these reasons for judgment that the decision of the Tribunal made on 14 January 2009 to treat the applicant’s complaint as withdrawn under s 22(3)(b) of the Act is set aside and the complaints are referred to the Tribunal to be determined in accordance with law.

187    Upon the reconsideration the Tribunal has all the powers provided by the Act. If the material before the Tribunal does not justify treating the complaint as withdrawn, the Tribunal would be bound to try to settle the matter by conciliation, and if that failed, then to determine for itself whether the payment made was fair and reasonable.

188    The function of the Court is complete upon the making of the orders setting aside the decision of the Tribunal and referring the complaints back for reconsideration by the Tribunal. The Court has no power to intervene at this stage in the reconsideration of the matter by the Tribunal.

189    Nevertheless, some observations may assist the resolution of the issues between the applicant and the fund hereafter. The observations follow from the close investigation of the circumstances which has been necessary in order to determine the proceeding.

190    This may be a case in which the law and justice do not coincide. If so, conciliation is a process which may provide the necessary flexibility to achieve a fair outcome.

191    First, there is a difficulty faced by the applicant and the Trustee in establishing the amount of the applicant’s contributions. They were made over such a long period that records are difficult to obtain. Further, the Trustee has only occupied that role since 2004 and has limited material for the lengthy period during which the fund was administered by previous trustees. A conciliation provides a forum in which the interests of both the applicant and the Trustee can be addressed against this significant disadvantage faced by both of them.

192    Even if the amount of the payment made by the Trustee accords with the formula in the deed, there is a question whether the terms of the deed amount to a fair bargain. The formula applied by the Trustee provided, in this case, for the payment of the applicant’s contributions and a further amount of five per cent of the contributions for each year of service up to a maximum of 20 years. That is to say, the applicant would receive his contributions and a further amount equal to one hundred percent of the contributions. The defined benefit can therefore be characterised as a guaranteed return on the member’s contributions, with the rate of return being determined by the member’s years of service. Such a calculation disadvantages a person such as the applicant who served beyond 20 years, and in this case, 31 years. The limit of 20 years means that in the last 11 years of his service the applicant’s return on his contributions did not increase. Additionally, the Trustee has had the use of the applicant’s contributions on an increasing basis in some cases for a period of up to 31 years.

193    Then the fund has retained the employer contributions amounting to about ten per cent of the applicant’s wages. It is true that in a defined benefit fund the fund bears the risk of meeting the amount of the benefit and must ensure that it generates a return sufficient to allow it to meet that obligation. But even allowing for the risks associated with generating a sufficient return, the reward to the fund appears in the circumstances of this case to be generous to the point of unfairness. On the face of it, it seems unjust that no part of the employer contributions deducted from the modest but very long term earnings of a process worker do not find their way back to his benefit on retirement. That fact may explain why Ms Webb continued to press for an account of the fees taken to administer the fund, a matter which the Tribunal did not investigate although requested to do so. When one takes into account the personal circumstances concerning the health of the applicant any injustice is magnified.

194    It must be emphasised that the current Trustee only took over the role on 1 September 2004. Because the conciliation stage in the Tribunal did not arise, the Trustee and the applicant did not get to sit down to seek to resolve the situation. It is to be hoped that that might now happen.

195    Finally, it is useful to offer a view as to how matters reached this unfortunate state of complication.

196    The file of the Tribunal reveals that it made very conscientious efforts to address each of the issues raised by Ms Webb. The Tribunal devoted much time, patience, and care for Ms Webb and the applicant. However, the Tribunal faced a particularly complex and challenging task. Not only is there a difficulty documenting the history of the applicant’s payments, but the Tribunal’s efforts did not avail because Ms Webb had a burning sense that the applicant had been wronged. She does not have the technical expertise to understand how he came to be unjustly treated, but she was determined to see him properly treated. Her persistence and determination was testing for the Tribunal. Many issues raised by her were peripheral but they were raised by her perhaps in frustration that a fair result had not been reached. She would not be deterred from questioning every element. She would not settle for any answer which she did not understand. Ms Webb cannot be criticised for pursuing questions which required answers when answers were not forthcoming.

197    The Trustee has cooperated fulsomely but within the constraints set by the circumstance that it become Trustee 29 years after the applicant joined the fund.

198    In the end, Ms Webb, the Tribunal and the Trustee have each acted understandably. It may be they were forced into this situation of contention by a transaction which is one sided and unfair. If that be so, the processes of the Tribunal are now available to rectify the situation.

Associate:

Dated:    2 September 2016