Federal Court of Australia

Riseley v Suncorp Portfolio Services Limited [2021] FCA 472

ORDERS

THE COURT ORDERS THAT:

1.    The applications are dismissed.

2.    The applicants pay the costs of the first and third respondents to be assessed if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The functions of the Superannuation Complaints Tribunal (Tribunal) include inquiring into any complaint by a member of a regulated superannuation fund (fund) that a decision by the trustee of the fund in relation to the member was 'unfair or unreasonable': s 12 and s 14(1) of the Superannuation (Resolution of Complaints) Act 1993 (Cth).

2    If a complaint is made by a member, the Tribunal has a statutory power to proceed to review the decision of the trustee of the fund and make a determination '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': s 37.

3    However, the Tribunal may decide to treat the complaint as withdrawn (and not proceed to undertake a review) where 'the Tribunal thinks that the complaint is trivial, vexatious, misconceived or lacking in substance': s 22(3)(b).

4    Within that structure, in deciding whether to treat a complaint as withdrawn because it is lacking in substance, the Tribunal must evaluate whether there is substance in the claim that the decision made by the fund was unfair or unreasonable: McAtamney v Superannuation Complaints Tribunal [2016] FCA 1062 at [133]-[134].

Complaints to the Tribunal by Mr and Mrs Riseley

5    Complaints were made to the Tribunal by Mr John Riseley and his wife Mrs Colleen Riseley against Suncorp Portfolio Services Limited (Suncorp). The subject matter of the complaints concerned the management of two superannuation accounts between 2000 and about 2016, particularly the arrangements for insurance that were put in place as part of establishing the accounts and the payment of insurance from the accounts. The Tribunal joined the provider of the insurance now known as Asteron Life & Superannuation Limited (Insurer) to the complaints.

The outcome of the complaints and the applications in this Court

6    The Tribunal has exercised its power to treat the complaints as withdrawn (Tribunal Decisions). Mr and Mrs Riseley now bring two applications in this Court in respect of the Tribunal Decisions, namely:

(1)    an application pursuant to s 39B of the Judiciary Act 1903 (Cth) alleging jurisdictional error by the Tribunal; and

(2)    an appeal under s 44(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) which must be confined to a question of law.

7    The same five grounds are raised in support of the two applications, although the basis upon which they may be upheld are different.

8    Since the making of the Tribunal Decisions certain laws have been passed which will bring the statutory authority of the Tribunal as to the complaints to an end. The relevant laws are to take effect on the earlier of 22 March 2022 and a date to be proclaimed. In those circumstances, Mr and Mrs Riseley seek orders setting aside the Tribunal Decisions and remitting their complaints for consideration by the Tribunal's expected statutory successor, the Australian Financial Complaints Authority Limited (AFCA). The relief sought would require AFCA to proceed to deal with the complaints according to its procedures.

9    The Tribunal did not appear in the proceedings. AFCA filed a submitting appearance.

Outcome

10    For the following reasons no error has been demonstrated in the Tribunal Decisions and the applications should be dismissed with costs. Had I been persuaded that it was appropriate to grant relief then I would have been inclined to invite written submissions from the statutory respondent before making final orders. However, in the result, issues arising from the terms in which relief was sought need not be considered.

History of the complaint by Mr and Mrs Riseley

11    In 2015, Mr and Mrs Riseley made complaints about their superannuation accounts to the then trustee. Broadly speaking, the complaints were founded on their claim that they had paid $10,000 as an upfront payment into superannuation and that they had done so on the basis that they had been told that the funds would be sufficient to provide life and total and permanent disability (TPD) policies on an ongoing basis that there would be a surplus that would be available for their retirement. They said that there accounts had not been operated in the manner indicated to them at the time the accounts were established.

12    It is common ground that they were never provided with TPD policies and over a number of years the funds invested were used up paying for life insurance and other fees and charges.

13    It is also not in dispute, that the payment of the $10,000 occurred in January 2000 when Mr and Mrs Riseley made application to become members of the Connelly Temple Super Savings Plan. At that time, Mr and Mrs Riseley were on holiday. They wanted to make arrangements for insurance cover because they had found out that the cover that had been provided by their former employer was no longer in place. The arrangements were made with some urgency. They were made by an advisor who was known to them (Advisor). He was not a representative of Connelly Temple. He was licenced to provide advice as a representative of another entity (MLC).

14    The Advisor recommended that the insurance be arranged through superannuation accounts. Mr and Mrs Riseley each signed application forms that were completed by the Advisor. Mr Riseley contributed $6,000 and Mrs Riseley contributed $4,000. On the forms, in response to the question, 'Do you require death or death and TPD cover?', each applicant answered 'Yes' and specified a 'Death cover amount' of $250,000. There was a further question: 'I wish to have an amount of TPD cover equal to the amount of my death cover'. In both cases the box next to that further question was not ticked.

15    In response to the applications, Mr and Mrs Riseley were sent letters dated 24 March 2000, by Connelly Temple (Welcome Letters). They set out details about their proposed investments in the Connelly Temple Super Savings Plan. The letters began:

It is important that we administer your investment in accordance with your wishes, and to ensure that this occurs, we ask that you review the following information:

16    In the case of Mr Riseley, the information set out the details of an investment that had been accepted. As to the insurance details, the letter stated clearly as to Insurance Type, 'Death Only' and Sum Insured, '$250,000.00'.

17    In the case of Mrs Riseley, there was no information about insurance in the Welcome Letter. It stated:

Due to incomplete information, we have been unable to finalise your account at this stage. In order to finalise your account, please complete the attached document and return to us in the reply paid envelope provided.

18    Enclosed with the letter to Mrs Riseley was a form which included the following:

To enable us to correctly administer your investment, we require the following information:

•    Upon reviewing your application form, we found that you have omitted to provide us with your salary details. This information is required to enable us to assess your request for Total and Permanent Disability. Please complete the details below.

What is your current salary?

•    In order for the insurer to assess the requested insurance cover, they require details of your occupation, and occupation duties. This section was incomplete on your application form. Please complete the details below.

19    Both queries were responded to by Mrs Riseley completing and returning the form. It is formally admitted that the Welcome Letters formed part of the material that was before the Tribunal, but as will emerge the content of the letters was not adverted to nor relied upon in any way as part of the complaints raised by Mr and Mrs Riseley. It was only when pro bono counsel agreed to act on their behalf in the present proceedings after they had been commenced that some significance was sought to be given to the Welcome Letter sent to Mrs Riseley after her application was submitted to Connelly Temple. In particular, no contention was raised that the request for information that was made of Mrs Riseley about her current salary supported the claims made by Mr and Mrs Riseley that they had sought death and TPD insurance cover.

20    With effect from 27 January 2000, $250,000 in death cover for each of Mr and Mrs Riseley was arranged and paid for using the contributed funds and returns on investing the balance. Mr and Mrs Riseley received regular reports and information as to the balance of their superannuation accounts all of which showed that the insurance coverage was for death only.

21    It appears that after a number of years, further monthly contributions were also requested to be made and were made by Mr and Mrs Riseley to ensure that the accounts were put into sufficient funds to meet the cost of the insurance. It is not altogether clear when this commenced. I note that detailed information provided to Mr and Mrs Riseley by Suncorp on 27 October 2017 showed that there were no personal contributions to the accounts in FY2005, FY2006 and FY2007. However after the global financial crisis in 2007, personal contributions were made.

22    After a number of years, the making of the additional contributions became too burdensome and were not continued.

23    On 6 December 2016, the superannuation accounts of Mr and Mrs Riseley with Connelly Temple were closed and moved to 'a brand new Suncorp Super account'. The death cover insurance appears to have lapsed before the rollover to the new accounts.

24    On 11 February 2017, Mr and Mrs Riseley sent an email to customer service at the then trustee of the fund. It was in the following terms:

Following recommendation and prior to lodging a complaint with Ombudsmen [sic] we would voice again our displeasure at the performance and the treatment we have been subjected to.

In January 2000, after corporate servitude ended, we were advised to organize our own life insurance, as we were no longer covered by prior corporate employer arrangements. We were away from home, traveling at the time and in Darwin. We made a phone call to a family friend and insurance agent for the company at the time … He suggested after we conveyed what we required, was a 250k death & permanent disability policy.

[The Advisor], recommended we purchase these policies and it would be a once only payment of $10,000.00 and of course it would be self-funding and the companies investments from our $10,000.00 would see no further contributions required. This did not last too long and we were being invoiced monthly at a rate for myself higher, than the rate struck for my wife.

This we accepted while were working but we are now on a pension and increase in rates sees we cannot afford to keep payments up.

We contend we were somewhat mislead in what was offered and what has been delivered. As [the Advisor] and now his son are still in the industry, we intend to call on their input to support our claims here. We have never been offered any solid reasoning and feel we have been dealt harshly and if we were told we would at some time in the future pay more money, we would have taken a far closer look and called for competitive quotes, thoroughly addressing terms & conditions rather than taking advice on face value from a family friend (your companies representative).

25    On 24 June 2017, Mr Riseley sent a further letter of complaint by email and post. It said:

I refer to our last communication regarding this account and our request for following information since, without any substantive response.

On the 27th January 2000, my wife and I had left corporate life and needed a policy to give us the security, we felt was required at that time, $250,000 each. We purchased from your colleague/partner [Advisor's entity, Advisor]. It was purchased on basis we would pay $10,000.00 and that would cover our life insurance, with a view to also covering our funeral costs etc. and this $10,000.00 being invested would be self-generating income covering the ongoing insurance premiums.

Of course, it did not cover future premiums and my wife & I, had to start paying different premiums, to keep up the insurance. We have never received an acceptable reason as to;

1)    What churned up our initial capital and it is this we have been chasing. An audit trail and commentary as to how our loss of capital occurred?

2)    What practices took place to see this loss of capital?

3)    Why was my wife and I paying different premiums?

At our age & time in life, this cover was important and since we stopped employment and could not afford to keep up the premiums, we have attempted to get from you the answers

We would ask the;

a)    alternatives once again, we asked for when notifying you we could not meet the premiums after August/September 2015?

b)    A complete audit trail of how our capitol [sic] was churned up

c)    The signed copy of our policy at time of entering into this agreement

A simple written communication, this is a very complicated request and will take more time, will not cut it this time. We need immediate confirmation and a firm timeline we expect to be kept to, prior to initiating a formal complaint with the ombudsman.

The longer this goes on, the more concerned we are we have been treated poorly and need to address in another forum.

26    On 14 July 2017, a 'Customer Relations Specialist - Internal Dispute Resolution' at Suncorp responded to Mr Riseley. In the response, the Complaint and the Outcome were summarised as follows:

Your Complaint

You sought personal financial advice from [Advisor] of [Advisor entity] in January 2000 as you knew him personally.

[The Advisor] recommended you to purchase Asteron Connelley [sic] Temple Super Savings Plan and there would be a one off payment of $10,000.00.

[The Advisor] told you the investment would be self-funding and no further contributions would be required as the return from your investment would be sufficient. You were subsequently invoiced on monthly basis.

When you received the advice in January 2000 you were about to travel or were travelling and did not have any urgency [sic], and all of the arrangements being made over the phone.

You believe that you were misled by [the Advisor] when you received the advice.

You subsequently closed the fund around August 2015 as you could no longer afford the payments.

Outcome

Our investigation has revealed [the Advisor] was licenced under MLC as such any concern you have in relation to the advice provided by [the Advisor] should be referred to MLC.

MLC can be contact on: [email address supplied]

Asteron were the product provider however we are not in a position to review or assess personal financial advice provided to you by [the Advisor]. Please refer any further questions you may have regarding the advice to MLC.

Thank you for giving me the opportunity to address your concerns. If you have any questions about this letter or the decision, I can be contacted on [telephone number and email address supplied].

27    On 9 August 2017, Suncorp was notified that a dispute against Suncorp had been lodged in the name of Mr Riseley with the Financial Ombudsman Service. The notification set out the following as a summary of the dispute (which appears to be in the form of matters stated by Mr Riseley directed to Suncorp in reply to the response from the Customer Relations Specialist of 14 July 2017):

Your response is inaccurate in detail, consistent with all previous responses and does not address the issues. Though, I guess I should be pleased on this occasion I have had a response. This complaint is not leveled [sic] at [the Advisor] who sold us a policy, a policy your company was promoting, a policy at the time was supposedly fit for purpose, fit for our purpose. [The Advisor] did recommend your policy as fit for purpose and a one $10,000.00 payment would fund my wife and my life insurance, we have no reason to question [the Advisor] provided us with a product in good faith, fit for our purpose. When we received the advice, agreed to in this policy, we were in Darwin and given advise [sic] our corporate cover was expiring, situation was rather urgent and yes was done over the phone. We do not believe we were misled by [the Advisor], in fact the ducking and diving, we have faced from your company for past 2 years indicates policy; 1) was poorly structured 2) poorly managed 3) fee structure was not conveyed accurately to customers 4) obviously, customers have been misled by your company, expecting the $10,000.00 investment would take care of and maintain their future life assurance cover The fact, your company, despite numerous requests and attempts to get a signed copy of this policy signed off on by my wife and I, has been ignored/avoided, underpins our belief you are misleading my wife & myself. Why would this be so?

28    There were then some further communications. They included the following email from Mr Riseley to Suncorp:

These policies were signed by wife and myself while on holidays in Darwin, after we left corporate life, they were to be life & TPD policies, self-funding and a superannuation savings plan. All, we can see from the transactions, is our money being snaffled by your company in fees and commissions, to no benefit of my wife and myself? This is not what we agreed to, now in retirement, we cannot afford further payments and we have wasted all those funds we have put into them.

Can we have an explanation before we move on to other forums to express dissatisfaction with what has happened here?

29    And the following response from Suncorp:

Please find attached detailed transaction histories of you and your wife's Connelly Temple Super Savings Plan accounts.

Your premiums over the life of your insurance were based on premiums rates calculated using your age, gender and smoking status.

30    There was no resolution between the parties. On 12 September 2017, Mr Riseley was informed that he could pursue his dissatisfaction regarding his investment by contacting the Tribunal. However, for a time, he continued to press his complaints with Suncorp directly.

31    On 16 October 2017, Mr Riseley sent the following email to Suncorp:

At time we contacted [the Advisor], January 2015, we were in Darwin, in caravan traveling, after leaving corporate servitude of 25 years. We were taking a break when informed our Life & TPD corporate cover was ceasing end of month.

We needed cover immediately and as we knew [the Advisor] who lived locally and involved in same kids sporting community, we relied on his advice. Forms signed you have.

Only advise we received from [the Advisor], was his recommendation, we go for a Life, TPD and super fund whereby if we deposited $10,000.00, this particular fund would then be self-funding, company would invest our $10,000.00 and returns annually would cover policy and contribute to our own superannuation part of the policy.

Did we deal with [the Advisor]? Not in any capacity would we deal with [the Advisor] again;

1.    After finding out after a few years our $10,000.00 was lost and we had to pay monthly premiums on top of that;

2.    We found out [the Advisor] was receiving ongoing commission on this policy,

3.    Add insult to injury, since August 2015, it has taken 2 years to get any information and eventually spreadsheets / audit trail,

4.    We now find that while we knew [Advisor's entity (Advisor)], were still enjoying commission on this dud policy,

5.    They and whoever have just been blundering our $10,000.00 & contributions since, we intend holding to account.

It has become clear & self-explanatory why no one interested in discussing with us and avoiding our inquiries!

We are only now interested in how we glean some compensation for the gross misleading, deceptive behaviours, by whoever in dealing with our $10,000.00 or seek our own independent advise, to allow us to assess our legal options moving forward.

32    It can be seen that notwithstanding the earlier statement that the complaint was not about the Advisor's conduct, by this point it is very much the Advisor's conduct that was being called into question by Mr and Mrs Riseley.

33    Later in October 2017, Mr Riseley was provided with detailed responses by Suncorp. They included the following explanation:

Progressively, each plan had:

•    deductions in the form of administration fees and insurance premiums;

•    additions in the form of personal contributions you and your wife made to your respective plans; and,

•    and, combination of additions and deductions pending whether the investments had positive or negative return.

34    Also, as to the way the initial funds were applied, Suncorp explained:

Effectively, the initial contributions of $6,000 and $4,000 with the largely positive investment returns and personal contributions were not sufficient to maintain the plans because of the ongoing administration fees and insurance premiums. To aid in understanding this, the following is a table I have put together from the annual statements which I have been able to readily attain:

35    The table then set out detailed information as to how the funds had been applied. At no time was the accuracy of this information questioned by Mr and Mrs Riseley. Their complaint was expressed in more general terms and was to the effect that the money they had provided at the outset had been used up and this was contrary to what they had been told when the accounts were set up.

36    Mr and Mrs Riseley were also provided with copies of the relevant part of their original applications which showed that they had not ticked the box for the TPD cover and were provided with the following further response by Suncorp:

I recognise that based on your statements throughout your complaints that you had intended to and believed that you had purchased both Death and TPD cover. I acknowledge that in your need to have coverage promptly established that you did so when you were travelling, that you and Colleen may have inadvertently not ticked the option for TPD cover. This is another aspect that the MLC advisor acting under the National Australia Bank licence could have identified and made sure was corrected for you prior to submission of the application forms to Asteron. Again, I underscore that your dissatisfaction with the actions of [the Advisor] is able to be directed to his firm and the financial institution that he was licenced with.

Separate to the apparent oversight of you and Colleen not ticking the box to purchase TPD cover, in each of the annual statements which you were issued during your membership of the plan, which you have not denied receiving, the type of insurance cover you have is clearly outlined as Death cover only. I have attached the 2015 statement which demonstrates such in full …

37    After that, Suncorp provided a very detailed notice of response to the Ombudsman as to the complaint. It maintained the distinction between the advice provided by the Advisor for which Suncorp disclaimed responsibility (on the one hand) and the responsibility to administer the accounts in accordance with instructions and terms of the fund (on the other hand). As to the latter, the position of Suncorp (supported by detailed information) was that there had been regular annual reporting to Mr and Mrs Riseley and financial information was provided as to how the funds had been applied and the premiums for the death cover insurance charged. In effect, it was Suncorp's position that the accounts had been administered in accordance with their instructions and fees and charges had been charged that were permitted under the terms of the trust instrument and were reasonable and had been fully disclosed at all times.

38    Copies of annual statements as to their superannuation accounts that had been sent to Mr and Mrs Riseley from 2005 (being the earliest available records of such statements held by Suncorp) were provided to them. They detailed the opening balance, every charge that had been made in each year, the way in which funds had been invested, the return (positive or negative) on those investments and the balance of funds at year end. Each statement also clearly stated that the insurance cover that was in place as part of the superannuation account was for death cover.

39    Some of the communications by Mr Riseley with Suncorp refer to the difficulties that he came to face in November 2014 when his lower left leg was amputated and the fact that he was being cared for by Mrs Riseley after having finished work on 31 July 2015 without any benefit from the monies that had been contributed to the superannuation accounts. On 18 August 2017, he put his complaint in the following terms:

I am particularly interested in, how the premiums were calculated and an audited statement of transactions which include payments made on My Account and my wife's Account, we had to surrender, as we could no longer afford the policies and were ignored in conveying same.

I am quite frankly, investigating how we can get these policies reinstated at a reasonable rate, how we can afford these policies, to ensure we have the funeral costs and retain the benefits, we visualized when we first purchased these policies.

40    Then, on 27 October 2017 he sent an email to Suncorp in the following terms:

My wife and I ceased work 31st July 2015 and at that point our company was unable to afford payments and thus when we started to look for some relief.

On the 26th of November 2014 I had my lower left leg amputated and worked right up to July 31st 2015, when my medical situation deteriorated, it meant I could no longer work. I applied to centrelink for a TPD pension & my wife (my carer) was put on a carer pension as I need 24/7 care. As such I still want to know what I am entitled to based on the fact I was covered by this policy which we had been paying for from January 2000?. Poor advise is only one aspect of my dissatisfaction with this policy!

Proceedings in the Tribunal

41    In November 2017, the complaint of Mr and Mrs Riseley was referred to the Tribunal. They registered their complaint on 10 January 2018. The form by which Mr and Mrs Riseley registered their complaint in the Tribunal asked them to state the information or representation that they relied upon and in response they said:

Our long relationship through local community sports with [Advisor - Advisor entity] we accepted his recommendation based on his presentations to us. We had no reason [to] suspect anything other than [what] was presented to us

42    They then set out the history and provided the following statement of their complaint:

1)    We were deceptively dealt with at time we were sold policy

2)    Provider misrepresented situation in that;

a.    10k paid up front would cover all premiums and interest generated would be contribution for our future superannuation - This was deceptive & Dishonest

b.    Despite policy presented as and agreed with [Advisor entity] to be a death & TPD policies we have ended up now due to continued dodging & weaving over the years with a death only policies or so we are told - This was deceptive & Dishonest, the company & [Advisor entity] had over 15 years to rectify at any time and especially at time we queried costs and commissions we were paying and reinstated on many occasions our expectations!

c.    If as customers, we were appropriately maintained, as any reasonable person would expect, we would have been advised of this 'death only' situation, instead it has been all take and avoid uncomfortable questions about commissions and costs endured by customer, a minimum of customer service provision and we would not be in this position - This behavior [sic] has been deceptive & dishonest

d.    Our specific question since August 2015, now we can not work and are on a disability & carer pension, what can be done to avoid the waste of all the monies we have paid to the company over 15 years, as we feel tough is not an adequate response

43    The reference to 'Provider' derives from the language of the form. It uses the term 'provider' to refer to the party the subject of the complaint. However, it is apparent from the manner in which the form was completed that the complaints made by Mr and Mrs Riseley were about the Advisor as 'provider'. It is the misrepresentation of the Advisor that they say they relied on. In registering their complaint, they did not point to any conduct on the part of the trustee of the fund that caused them to be misled or dealings in which the trustee had said that the accounts would have the characteristics that Mr and Mrs Riseley said the Advisor had explained to them.

44    This focus on what Mr and Mrs Riseley were told by the Advisor is confirmed by a number subsequent communications in which Mr Riseley expressed the complaint being made as being to the effect that the [Advisor entity] received a monthly fee, for which there has been 'no service'.

45    On 5 April 2019, the Tribunal communicated to Mr Riseley its understanding of the complaint that he had made in the following terms:

We understand your complaint is about the conditions/terms of the insurance policy you entered into in 2000. The resolution you seek is the reinstatement of your $250,000.00 death cover and payment of a $250,000.00 TPD benefit.

The Tribunal will proceed with its investigation and analysis of the complaint based upon the above understanding. Therefore, should you feel that our understanding is not correct, please inform me within 7 days of receipt of this letter.

46    Mr Riseley responded in a wide-ranging manner as follows:

Your understanding of our requirements is somewhat correct. It is not reinstatement at any cost, as we will take opportunity to compare rates with alternative providers, what we do want is;

1.    a credit for undeclared trailing commissions (fees for no service) collected for Broker, hidden, undeclared fees, a broker, who has provided no service, in fact the opposite, along with other spurious fees inflated and charged,

2.    In my case, we want the payment appropriate for loss of my left leg below knee,

3.    an explanation how we (my wife and myself) were sold for $10,000, a once only bulk payment, which we were told would provide, Life & TPD cover and interest earned over and above, a super contribution,

My wife and myself, want to see what formula/evidence used by [Advisor entity] to calculate and used as a basis for the policy being an investment type policy, funding our Life & TPD coverage plus super contribution.

As previously conveyed, my wife and I were in Darwin traveling in a caravan, not due home for several months, when we received notice, our corporate life & TPD cover was to cease 31st January 2000, as both my wife and I had just left Corporate Servitude, my wife 6 years and myself 25 years.

We knew [Advisor] from local sporting club, as his children participated in same club. We were challenged in that we were 5,000 klm from home, not back for several months and [Advisor] we thought was best option, we;

1.    were told/sold at $10,000 we would have a self-funding Life & TPD cover, once only charge,

2.    were sent brochure already forwarded to SCT, shows policy Life & TPD,

3.    traded detail by Phone and Fax from Caravan Park,

4.    signed where told to sign and faxed back,

5.    first were displeased within a few years we were paying a premium, we were told originally, we would not have to,

6.    on 26.11.2014, I had my leg amputated, I had been quite ill,

7.    on 31st July 2019, we were forced to sell our business, I could no longer work due to complications from amputation,

My wife and I are now on a disability and carer pension. We could not afford rising costs of the coverage after 31st July 2015, and spent months trying to communicate with insurance provider, without success, in the end went to ombudsman & now SCT.

In my case we believe I am entitled to at least a credit for the fees for no service fees, ending with Broker who has deceptively hidden them from us at time, appropriate compensation for the amputation and an affordable policy which would cover my funeral expenses.

NB: I am currently 67 years of age, I am rehabilitating from amputation but still unable to walk without crutches, I may not be eligible for Life cover, however, may be prepared to consider any favourable funeral insurance offered in negotiating a confidential settlement.

47    It is at this point that there commences to be some reference in the ongoing communications by Mr Riseley to the brochure or documents about the accounts that were provided by the trustee. At no point was any part of any document provided by the trustee identified as containing statements to the effect attributed to the Advisor. I observe that the disclosure documents relating to the Connelly Temple Super Savings Plan do refer to the possibility of five different types of insurance being paid for using funds from the superannuation account. One of those is death cover, another is death and TPD cover. However, the documentation makes clear that a selection had to be made as to the type of cover. In that regard, as has already been noted, the annual statements provided to Mr and Mrs Riseley identified the insurance that they had arranged as death cover. Those statements also indicated that options were available for other insurance including TPD cover and arrangements could be made to put those other options in place.

48    However, the complaints as articulated by Mr Riseley continued to focus very much on what he and his wife were said to have been told by the Advisor.

49    It was necessary for the Tribunal to try and extract from such statements (and the overall history of the complaint) the underlying nature of the complaint that was made and specifically the extent to which it was a complaint about the decisions made by the trustee of a superannuation fund. As the complaint was against Suncorp on the basis that it was the trustee of the superannuation accounts, the Tribunal's statutory powers were confined to dealing with complaints about Suncorp.

50    In February 2020, the Insurer was given notice of joinder to the complaint by the Tribunal and Suncorp and the Insurer were requested by the Tribunal to provide a number of documents relating to the complaint.

51    In response to those requests from the Tribunal, detailed information was provided to the Tribunal by Suncorp and the Insurer to effect that Mr Riseley did not have TPD cover at any time and all documentation showed that the premiums paid were only for death cover of $250,000. The information included a log of a series of telephone calls with Mr Riseley in 2010 when his insurance had lapsed and he complained that the cover should be reinstated. It also showed issues with direct debit payments at certain times. Those payments were being applied to meet the insurance cover being provided as part of the superannuation accounts.

52    To summarise, the documentation and details of the complaint disclosed that there was a long history of dealings over many years with the trustee concerning the insurance arrangements during which regular statements in which the cover that was provided was consistently described as death cover. During much of that time (apparently from at least FY2007), contributions were being made to the account by Mr and Mrs Riseley in order to ensure that there were funds in the account to cover the insurance premiums. There was no indication of any complaint being raised until 2015, some 15 years after the arrangements were made at which time it was said that the Advisor had told Mr and Mrs Riseley that the initial contributions were all that would be required and that the cover would be death and TPD cover. There was no basis articulated for any claim that the trustee (as distinct from the Advisor) did anything at any time to suggest that the accounts and the attached insurance arrangements would operate in the manner in which it was alleged that the Advisor had described them. There was no identification of any basis upon which the actions of the Advisor might be attributed to Suncorp as trustee.

53    It was in those circumstances that the Tribunal gave notice to each of Mr and Mrs Riseley by letter dated 6 May 2020 that it was considering exercising its power to treat the complaint as withdrawn (May Notice Letters). Each letter stated that the Tribunal was considering treating the complaints as withdrawn and the purpose of the letter was to provide an opportunity to make any comments or provide further information. Under the heading 'your complaint' the following was stated (quoted from the letter the Mr Riseley, both letters being in substantially the same terms):

In your complaint you state your broker sold you and your wife a life and total and permanent disablement (TPD) policy that with a once only payment of $10,000.00, you and your wife would get the cover you both required and the interest would cover future premium payments and generate interest defaulting to you and your wife's respective superannuation accounts with the Fund.

Specifically, you consider the circumstances unfair and unreasonable because:

-    You and your wife were deceptively dealt with at the time you were sold the policy;

-    the provider misrepresented the requirements of the policy and Fund membership to you and your wife;

-    the policy you and your wife agreed to was for death and TPD, however you and your wife have been provided with a death only policy;

-    the Fund had over 15 years to rectify the circumstances and provide you and your wife with a death and TPD policy;

-    the Fund should have advised you and your wife of the death only cover;

-    you and your wife queried the costs and commissions you were paying on your respective member accounts.

The resolution you seek is to re-instate you and your wife's death cover and a TPD benefit payment to you in the sum of $250,000.00.

54    It can be seen that the complaint was summarised in terms that reflected the many articulations of the complaint that had been expressed by Mr Riseley in previous communications. It described the complaint about the overall nature of the account, the complaint about the lack of a TPD policy and the complaint about the costs and commissions being paid on the accounts. It also sought to summarise the outcome that was sought by Mr and Mrs Riseley.

55    The May Notice Letters then went on to state the matters as 'Background'. The terms in which those matters were set out in the letter to Mr Riseley are set out below. The opening words are important. They signify the provisional view that had been reached by the Tribunal subject to information that might thereafter be provided by Mr and Mrs Riseley. By the May Notice Letters they were being given an opportunity to respond to each of the factual matters stated. The letter to Mr Riseley was in the following terms:

Based on the information provided, the Tribunal is satisfied with the following circumstances relevant to the subject matter of your complaint:

-    On 27 January 2000 you joined Connelly Temple Super Savings Plan, by way of application signed and dated 21 January 2000, and a contribution of $6,000.00. The application form notes your address details to be [address stated], and notes Death cover for $250,000.00 was elected.

-    On 24 March 2000 the Fund mailed to you your notification of having joined the Fund. This fund notification was addressed to you at [address stated], and states 'Insurance Details, Insurance Type Death Only'.

-    On 15 July 2015 the Fund mailed to you, notification of your insurance cover with the Fund lapsing on 13 September 2015. This Fund notification was addressed to you at [address stated], and states 'Your current sum insured for death is $250,000.00. If you become totally and permanently disabled, you are insured for $0.00. Your current Income Protection sum insured is $0.00. This insurance cover will cease on 13 September 2015'.

-    On 16 September 2016 the Fund mailed to you, notification of your insurance cover having lapsed. This Fund notification was addressed to you at [address stated]. Your Member Exit Statement accompanied this letter.

Your member exit statement titled Final Statement On Account Closure 01 July 2015 to 16 September 2015 shows a closing balance of $0.00.

-    On 11 February 2017; 8 August 2017; 1 September 2017 and 6 October 2017 you made complaints to the Fund. On 12 September 2017 and 30 October 2017, the Fund responded to the complaints. On 23 November 2017 you lodged a complaint with the Tribunal.

56    As to these factual matters, it can be seen that there is express reference to the Welcome Letter to Mr Riseley sent in response to his application to establish the superannuation account. It drew attention to the fact that the letter, the first communication after the arrangements were made, referred to 'Death cover'.

57    In the separate May Notice Letter sent to Mrs Riseley, as to the above factual matters, the letter was in the same terms, save as to the Welcome Letter as to which it said:

On 24 March 2000 the Fund mailed to you your notification of having joined the Fund with a request for further information. This Fund notification was addressed to you at [address stated]. On 18 April 2000 the Fund received your further information.

58    The May Notice Letters also set out a summary of the position maintained by each of Suncorp and the Insurer and the Tribunal's analysis. In effect, each letter set out draft reasons and invited a response.

59    To these very detailed statements, Mr Riseley responded in the following terms by email to the Tribunal of 9 May 2020:

It is not mine or my Wife's intentions to withdraw our claim on Suncorp. We have at all times been open to negotiation and a fair settlement, our allegations and losses are real, and a legitimate claim, we had been taken advantage of by a company who obviously were at best, deceptive in actions and behaviors [sic].

Connelly Temple & their broker were involved in what the banking royal commission clearly identified as sale of 'Junk Policies'. The only possible outcome was the fraudulent profiteering, free ranging fraud played out on their Customers. Referencing attached Connelly Temple Savings Plan.

Connelly Temple & their broker, deliberately misled their clients, to benefit CT and their brokers clear advantage, and when they had sucked off all customers capital, they sold to Suncorp. Referencing transactions spreadsheet attached and attached Connelly Temple Savings Plan.

Analysis of trailing fees for no service, no return from the capital invested, we were sold the policy on, are all the solid evidence we require. The attached CT Super Savings Plan clearly spelt out, guaranteeing and underwriting CT & Brokers statements of no insurance premiums would be needed and in fact we would have a superannuation policy at the end of the day.

The Spreadsheet Referencing transactions spreadsheet attached and attached Connelly Temple Savings Plan, where is there any evidence of Superannuation, any interest being credited to account, from such investments, we were guaranteed at the end of the day, no chance from day one, we reference the two prominent descriptions of transactions?

These were 'Junk Polices' and we were deliberately misleading.

As we have been provided with an excellent blow by blow description of how CT had stripped out ours, likely many other customers cash, then profiteered from these 'Junk Policies' by selling them to Suncorp who again demonstrates how legally they can strip customers cash in offering 'Junk Policies'!

From the lead up to conciliation, we have been provided all the evidence, we need. A blow by blow description of how a Suncorp profited from purchase of these 'Junk Policies' by clinically sanitizing, legitimized these 'Junk Policies', all the costs worn by their clients, like my wife and myself, these 'Junk Policies' made legitimate, legal by Suncorp.

I am quite capable of communicating our case in the appropriate forums, as a disabled pensioner I have the time to undertake in whatever court we need to pursue this matter. There must be 100's maybe 1000's out there who have been dealt with unconscionably by the likes of Suncorp and we will be also seeking/sharing support on our particular issue.

We still are keen to be rid of the anxiety and stress associated with pursuing this matter and are open to a negotiated settlement, we want the $4,000 and the $6,000 a total of $10,000.00 returned/refunded to us with the interest we could of earned on that $10,000.00 . The interest rate?

A good start would be the interest rate of the day, at that time CT & Broker were working on when they sold all the benefits of the policy to us.

We retain the right to use this communication, in any court we end up in, as evidence we have exhausted all avenues to settle this matter civilly in cost effective manner. Our further action we reserve right to seek consideration of the TPD compensation I feel we are entitled to.

60    It can be seen at this point that Mr Riseley described the Advisor as Connolly Temple's broker. There is no factual basis advanced for this claim. It is simply asserted in the face of the repeated earlier accounts given by Mr Riseley that he and his wife approached the Advisor and the references in the materials to the Advisor being licensed as a representative of MLC. The references to Junk Policies are no more than a label applied by way of assertion. There is no dispute that Mr and Mrs Riseley were issued with death cover insurance for $250,000. The complaint is not about those policies but the failure to provide TPD cover funded by the initial contributions according to the description attributed to the Advisor.

The Decisions by the Tribunal

61    The Tribunal made separate decisions on each of the complaints by Mr and Mrs Riseley. Having regard to the grounds of review, the following aspects of the reasons may be noted.

62    The reasons begin by summarising the complaint in the same terms as were expressed in the May Notice Letters. The description or summary captured the two main aspects of the complaints by Mr and Mrs Riseley. First, a complaint that they should have been provided with an insurance arrangement that was a death and TPD policy, the premiums for which would be covered by the initial contributions to the account. Second, they had been charged extensive costs and commissions which used up their original contributions.

63    The reasons then stated that the Tribunal was satisfied as to the matters it had listed in the May Notice Letters (noting again the difference between the contents insofar as they deal with the March letters sent to Mr and Mrs Riseley after their initial applications were made to establish the two accounts).

64    After making the factual findings, the Tribunal described the position of each of Suncorp and the Insurer. Then, under the heading 'The Tribunal's analysis', the Tribunal reasoned by the following steps (noting that they are taken from the version of the letter sent to Mr Riseley with added emphasis by way of italics to highlight passages which are said by Mr and Mrs Riseley to be of significance on their review applications in these proceedings):

(1)    The Tribunal observed that it understood that the Complainant was dissatisfied with (a) his insurance arrangement; (b) the fact that his initial contribution of $6,000 was eroded by insurance premiums, fees and charges; and (c) the investment performance which did not provide each of them with a superannuation benefit for their retirement as well as offsetting the costs associated with the account.

(2)    It observed that the powers of the Tribunal were limited and that it 'can only exercise its determination-making power for the purpose of placing the complainant as nearly as practicable in such a position that unfairness, unreasonableness, or both, no longer exist'.

(3)    It then stated that it 'can only return the Complainant to the position he would be in if not for error'.

(4)    The Tribunal then stated that 'the complaint material does not show the Complainant applied for TPD cover in his application to join the fund or during his membership of with the fund. Without corroborating evidence, the Tribunal is not able to arrive at a sound conclusion about whether the Complainant should have been provided with TPD cover'.

(5)    By annual member statements the Complainant was provided with information about the financial movement in the account, including details about the ongoing fees and charges, taxes and the insurance premiums being deducted for the cost of cover as well as details about the investment performance.

(6)    After dealing further with the information that had been provided, the Tribunal said: 'With respect to the resolution being sought and the expectation of a retirement benefit, [t]here is no material to confirm that the Complainant applied for TPD cover and that the initial contribution of $6,000.00 was to provide for a retirement benefit'.

(7)    The Tribunal then dealt with the matters stated by Mr Riseley in his email of 9 May 2020 which had been sent in response to the May Notice Letters. The Tribunal referred to information that had been provided to Mr and Mrs Riseley to the effect that continuation of insurance was subject to regular contributions being made at least once a year and there being sufficient account balance to meet the premium and information about the costs and fees.

(8)    At the end of the section dealing with the 9 May 2020 email, the Tribunal said:

The Tribunal finds that no new material was provided by the Complainant to show that he has applied for TPD cover.

(9)    The Tribunal then expressed the following conclusion:

Based on all the information and documentation on file,

-    there is no evidence to show the Complainant applied for TPD cover with the Fund; and

-    the evidence shows that the Complainant's insurance cover with the Fund ceased on 13 September 2015; and

-    the evidence shows that the Fund regularly disclosed the benefits and entitlements, investment performance and costs associated with the account to the complainant; and

-    there is no evidence to show that the initial contribution of $6,000.00, along with the investment performance, was intended to offset the management of the account and provide the Complainant with a retirement benefit.

65    The same reasoning was expressed in the separate letter dealing with the complaint by Mrs Riseley.

66    For the above reasons, the Tribunal decided to treat the complaints of Mr and Mrs Riseley as withdrawn.

The Tribunal's statutory task

67    In submissions for Mr and Mrs Riseley something was sought to be made of the reference to the words 'if not for error' as used in the Tribunal's reasons (quoted above). It was submitted that those words indicated a misconception of the Tribunal's task because it suggested that the Tribunal was confined to reviewing the decisions of the trustee 'for error'. Reading the reasons with an eye that is not attuned to finding error, as I must, I do not accept that submission. The reference to 'error' follows immediately after the description of the Tribunal's power on review that is set out in [64](2). Those words sufficiently capture the nature of the Tribunal's task on review. In particular, they attribute to the Tribunal the responsibility of determining whether there is unfairness or unreasonableness in a decision by the trustee. The words 'if not for error' as used in that context should be read as meaning 'if not for the Tribunal finding that the trustee made a decision that was unfair or unreasonable or both'.

68    It may be accepted that, if the complaints were to proceed to a review hearing, the Tribunal would be required to 'make its own assessment of the evidence and other information before it, in order to determine whether or not it is satisfied that the decision under review was, in its operation in relation to the complainant, fair and reasonable in the circumstances': Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8 at [53] (Kenny and Lander JJ). Therefore, the task for the Tribunal in deciding whether to treat the complaint as withdrawn was to undertake such evaluation as was reasonably necessary for it to reach a conclusion as to whether it thinks the complaint 'is lacking in substance' in the sense that it does not have enough substance to justify the matter proceeding to conciliation and review 'when those processes are not warranted by the weakness of the complaint': McAtamney at [134].

69    It is important to note that the evaluative task as to whether the complaints were lacking in substance is one entrusted to the Tribunal. In undertaking that task, the Tribunal must bear in mind the nature of its ultimate authority if the complaint was to proceed, being an authority to determine whether to its satisfaction the decision the subject of the complaint was fair and reasonable. However, that is not to say that the way in which that evaluative task must be undertaken is to identify discrete decisions the subject of the complaint. Indeed, in cases where the complaint is weak, one reason it may be so is precisely because it fails to adequately articulate a decision the subject of complaint or a respect in which a decision gave rise to the matters complained of by the complainant.

Ground 1: Alleged failure to identify the decision

70    The first ground raised is to the effect that the Tribunal failed to identify the decision about which the complaint was made. It was contended that given the long history of interactions between Mr and Mrs Riseley and Suncorp, precise identification of the relevant 'decision' was critical. It was said that the Tribunal did not undertake that task.

71    It may be accepted that the relevant statutory authority of the Tribunal is to deal with a complaint about a decision by the trustee of a superannuation fund (noting that there is power to join an insurer as was done in the present case). In some instances, the relevant decision may be quite specific such as the exercise of a particular discretion conferred by a trust instrument or a decision to roll-over funds into a particular account or a decision to allocate the funds to a particular investment. In such cases, the Tribunal must properly identify the nature of the decision in order to then undertake the statutory task of evaluating whether the decision was unfair or reasonable (or, where the issue is whether the complaint is to be treated as withdrawn because it lacks substance, whether it does so because there is no disclosed basis to claim that the decision was unfair or unreasonable).

72    However, in the circumstances of the present case, Mr and Mrs Riseley did not themselves complain about a discrete decision. They complained about a course of conduct which involved the making of many decisions. They included a complaint that they were not issued with TPD insurance over a considerable period (in effect, an ongoing decision), a complaint that fees were charged for no service (in effect, a series of decisions to make alleged charges), a complaint that the account was not operated in the manner that had been represented by the Advisor (a complaint about ongoing decisions as to how to administer the account).

73    In order to evaluate whether the very many decisions involved were unfair or unreasonable it was not necessary for the Tribunal to identify each and every decision. If, as was the case, every disputed decision was challenged on the basis of the same footing, then if the foundational allegation was not established it would follow that it could not form a basis upon which the fairness and reasonableness of the trustee's decisions might be questioned.

74    In such instances, it is appropriate for the Tribunal to address the nature of the overall complaint.

75    Significantly, the Tribunal began its analysis by accurately describing the nature of the complaints raised by Mr and Mrs Riseley (being complaints not themselves expressed by reference to any specific decision by the trustee). The description of the complaint as formulated by the Tribunal was put to Mr and Mrs Riseley in the May Notice Letters and they did not disagree with it in any fundamental way.

76    The complaint was then expressed in the following terms in the reasons (followed by the more detailed list that has already been quoted):

The Complainant has stated that his broker sold him and his wife a Life and Total and Permanent Disablement (TPD) policy that with a once only payment of $10,000.00, the Complainant and his wife would get the cover they both required, and that the interest would cover future premium payments and generate interest defaulting to their respective superannuation accounts with the Fund.

77    In effect the complaint was that the trustee had not made decisions to give effect to that position. The reasoning by the Tribunal was to the effect that no real basis for the complaint had been established. The trustee had not agreed to the kind of arrangement that Mr and Mrs Riseley said they had discussed with the Advisor. This is reflected in the terms of the conclusion (quoted above).

78    Therefore, if the Tribunal formed the conclusion that there was no real merit in the complaint as a basis for complaining about the many decisions that had been made by the trustee in administering the accounts then, on that basis, it could reach a conclusion as to whether the statutory power to treat the claims as withdrawn should be exercised.

79    Subject to one aspect to be discussed shortly, the contentions in support of the ground of review did not seek to identify a respect in which the summary of the complaint was inaccurate in a material manner or omitted a material part of the complaint made by Mr and Mrs Riseley. Rather, the complaint was only that the Tribunal did not identify 'the decision'. For reasons that have been given, it was not necessary for the Tribunal to approach the exercise of the statutory power to treat the complaints as withdrawn in that manner. Therefore, there was no error of law or jurisdictional error in the manner in which the Tribunal formed its view that it thought the complaints were lacking in substance.

80    The additional aspect to be considered is a submission to the effect that the Tribunal's approach meant that it failed to undertake its evaluation with an eye to further inquiries it might make if the matter proceeded, particularly (a) inquiries that may have attributed significance to the Welcome Letter to Mrs Riseley; and (b) by requiring the trustee to provide information about the charges that it had made and the returns that had been earned on the investments. It was submitted, in effect, that if the Tribunal had asked what decision was under review then it would have focussed on such matters because they were relevant to particular decisions under challenge by the nature of the Mr and Mrs Riseley's complaints.

81    I do not accept that these matters lead to a conclusion that a 'decision based' consideration was required to be undertaken by the Tribunal. Such matters are equally exposed by focussing, as the Tribunal did, on the foundation for the underlying complaint that is the basis for questioning all of the decisions made by the trustee in administering the accounts and considering whether there any real basis for the complaint.

82    Further, the submission misconceives the nature of the complaint and the manner in which it questions the decisions made by the trustee. The complaints did not rely upon the terms of the Welcome Letter to Mrs Riseley in any way. Mr and Mrs Riseley relied upon what they said they were told by the Advisor. It was not suggested that it was the Welcome Letters that caused Mr and Mrs Riseley to draw a conclusion about whether they had TPD insurance.

83    Likewise, no aspect of the complaint articulated any basis for a view that particular fees or charges were excessive or there was no entitlement to charge them or some other basis that might lead to a conclusion that the charges were unreasonable. That was not the nature of the complaint. The complaint was to the effect that the account was not operated in the manner described by the Advisor in circumstances where no part of the dealing with the trustee pointed to a basis upon which the trustee might be said to have presented the superannuation accounts as working in that way.

84    I note that the Tribunal has an express obligation to take reasonable steps to help a complainant where the Tribunal thinks that a complainant wishes to make a complaint and thinks that complainant needs help to make the complaint or put it in writing. There was no separate ground seeking review on the basis of an alleged failure to meet this statutory requirement that had consequences for the decision (but see ground 2 below).

85    In any event, such was not the nature of the complaint raised by ground 1 and understandably so. Mr and Mrs Riseley had been given every opportunity to express their complaint. They were aware of the terms of the Welcome Letters. They had been given detailed information about how the fees and charges had been calculated and information about the returns on the accounts. As to the former they raised no case that the Welcome Letters and the inquiry made of Mrs Riseley was of any significance for the views they formed concerning the provision of TPD insurance. As to the fees and charges and returns there was no articulation at all of any particular complaint about any fee or charge or return that might indicate a basis for a conclusion that there had been unreasonableness or unfairness as to such matters (aside from the overall complaint that the accounts had not been operated in the way they had been told by the Advisor that it would operate).

86    For those reasons, ground 1 has not been made out.

Ground 2: Alleged misunderstanding by the Tribunal of the nature of its task

87    The next ground alleged error by the Tribunal in reasoning that it was necessary for the applicants to show, prior to any conciliation and review that there was 'evidence' to establish that (a) they had applied for TPD insurance; and (b) it was intended that their initial contributions would offset the management of the accounts and provide a retirement benefit.

88    The ground focusses upon particular aspects of the reasons given by the Tribunal. It was said that they revealed that the Tribunal engaged in an evaluative process of all the material advanced and formed its own view that there was a lack of substance in the complaints. This was said to be an exercise of the Tribunal's ultimate task on review and was not a proper exercise of the statutory power to treat the complaints as withdrawn.

89    There were two themes to the submissions advanced in support of the ground.

90    First, it was said that the Tribunal's function was to gather materials and pass them on to the trustee to obtain answers and only undertake its evaluation after that process had been undertaken.

91    Second, it was said that the Tribunal required Mr and Mrs Riseley to establish too high a standard that the complaints had substance. It was said that s 22(3)(b) called for a threshold assessment of the merits that was low and the Tribunal erroneously applied a high standard by inquiring into whether Mr and Mrs Riseley would ultimately succeed.

92    As to the first theme, the terms of s 16 were called in aid to support the ground. It was said that the discharge of that obligation was inconsistent with reasoning that the complaints were lacking in substance because there was no evidence of certain matters. In effect, the submission was that the Tribunal should have recognised that there may have been evidence of such matters if the review proceeded. However, the submission based upon s 16 misconceives its terms. The obligations under s 16 apply at the point where the Tribunal thinks a person wishes to make a complaint and needs help to do so. It is a statutory provision that speaks to what should occur in order to facilitate the bringing of a complaint. Once a complaint has been brought (with or without such assistance), then the complaint is subject to the exercise of the power conferred by s 22. Significantly, there was no separate ground that there was error by reason of a failure to conform to the requirements of s 16.

93    Otherwise, it may be accepted that the process to be followed by the Tribunal requires inquiry. However, to the extent that it was said that the reasons were not preceded by inquiries of Mr and Mrs Riseley and of Suncorp and the Insurer that submission is not borne out by the course of the steps taken by the Tribunal.

94    Nor were the complaints of a kind that invited further inquiries beyond that which the Tribunal undertook. The Tribunal made requests for information to be provided by each of Suncorp and the Insurer. Those requests focussed upon the insurance documents, the application documents and the Welcome Letters to Mr and Mrs Riseley. No submission was made on the application as to any deficiency in the requests concerning these matters which related to the complaints that had been raised. Rather what was said was that there should have been further inquiry about the fees and charges. For reasons already given, the nature of the complaints did not invite investigation as to whether particular fees or charges were reasonable. The complaint was about the disconformity between what Mr and Mrs Riseley had been told by the Advisor and how the accounts were administered, not a complaint that there were fees and charges that were unreasonable even if those complaints were not substantiated as a basis upon which the trustee should have administered the accounts.

95    It was submitted that there should have been further inquiry as a result of the request for information of Mrs Riseley in the Welcome Letter sent in response to her application. However, the Welcome Letter had been obtained by requests made by the Tribunal. It was identified in the material put to Mrs Riseley by the May Notice Letters. It was not suggested that it was material that had any significance for the complaints being advanced by Mr and Mrs Riseley.

96    As to the second theme, it focussed upon the following statements in the course of the Tribunal reasons:

Without corroborating evidence, the Tribunal is not able to arrive at a sound conclusion about whether the Complainant should have been provided with TPD cover.

Without any corroborating evidence to show the Complainant applied for TPD cover, the Tribunal is not able to arrive at a sound conclusion about whether the Complainant should have been provided with TPD cover.

[T]here is no evidence to show the Complainant applied for TPD cover …

[T]here is no evidence to show that the initial contribution of $6,000.00 [or $4,000.00], along with the investment performance, was intended to offset the management of the account and provide the Complainant with a retirement benefit.

(applicants' emphasis)

97    These passages must be considered in the context of the Tribunal's reasons as a whole, particularly the section headed 'The Tribunal's analysis'. As has been noted, that analysis began by describing the form of the Tribunal's ultimate power. The reasons that follow, in effect, consider the available material and look forward to when a review would be conducted and consider what would happen, taking Mr and Mrs Riseley's material at its highest. The reasoning is to the effect that as there is no real basis for the complaint as against the trustee (or the insurer), as distinct from the Advisor, the power to treat the complaints as withdrawn should be exercised.

98    The analysis begins by stating:

In the circumstances of this complaint, the Tribunal notes the complaint material indicates the Complainant applied for Death cover only in his application to join the Fund. The complaint material does not show the Complainant applied for TPD cover in his application to join the Fund or during his membership with the Fund. Without corroborating evidence, the Tribunal is not able to arrive at a sound conclusion about whether the Complainant should have been provided with TPD cover.

99    The reference to the outcome that would follow 'without corroborating evidence' is a way of expressing the problem that arises because there is no material of that kind pointed to by Mr and Mrs Riseley. It is looking forward to the type of consideration that would be undertaken on review and pointing out what would be the necessary conclusion if there was nothing to 'corroborate' a claim that Mr and Mrs Riseley should have been provided with TPD cover (that is, it was unreasonable for a decision to be made to that effect). The word corroborate is here perhaps used inaptly. Nevertheless it is apparent that it is describing an absence of any material that could lead to a sound conclusion that Mr and Mrs Riseley should have been provided with TPD cover.

100    Reasoning in that manner is not to undertake the kind of adjudication that would ultimately be undertaken on review. It is to look forward to what would happen at that point as a way of exposing that the claim lacks substance because there is no material to support it. The observation is entirely correct in circumstances where the complaints by Mr and Mrs Riseley pointed only to the conversations with the Advisor and, as to the trustee's documentation, made assertions as to matters that were not to be found in any of the documents.

101    Each of the statements referred to is to like effect and the same response applies.

102    Separately, submissions were made concerning the following passage in the reasons:

The Tribunal can only exercise its determination-making power for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both, no longer exist.

(applicants' emphasis)

103    It is said that the reference to the ultimate determination-making power of the Tribunal demonstrates that it adopted an incorrect approach. For reasons I have already given, the above passage was no more than a description of the power that could ultimately be exercised on review as a way of framing the analysis as to whether there was any substance in the complaints.

104    Otherwise, in effect, it was contended that no view could be formed by the Tribunal about the evidence concerning the complaint because that task was to be undertaken as part of conciliation and review. Taken to its logical conclusion, s 22 could not be exercised on the basis of a view that there was insufficient evidence to justify the complaint proceeding. Mere assertion would suffice because the evaluation of the evidence was a task that could only be undertaken at the review stage.

105    It is not the case that the power conferred by s 22(3)(b) must be exercised, in effect, on an assumption that the alleged factual basis for the complaint will be established. No doubt it will be difficult for the Tribunal to 'think' that a complaint lacks substance where there is a contest on the evidence or there is sufficient evidence to establish a basis for a claim but an issue as to whether the available material is a sufficient to conclude that a decision was unreasonable or unfair. However, there is no error of law or jurisdictional error where the Tribunal thinks a complaint lacks substance on the basis of an evaluation that the available material lacks substance, is devoid of credibility, is mere assertion or is supported by material that, even taken at its highest, would not persuade the Tribunal that a decision was unfair or unreasonable. Nor is a list of that kind capable of being exhaustive. All will depend upon the circumstances.

106    As has already been observed the repository of the statutory power is the Tribunal and the power is conditioned on what the Tribunal 'thinks'. No doubt the usual qualification of reasonableness will apply. However, it is not the case that an exercise of the power on the basis of a view that is formed concerning the quality of the evidence or material that is presented by the complainant when invited to make submissions as to whether the power under s 22(3)(b) should be exercised is erroneously exercised as a matter of law or is beyond the scope of the statutory power conferred on the Tribunal.

107    For completeness, I note that in the course of submissions it was suggested that analogies might be drawn as between the correct approach under s 22(3)(b) of the Superannuation (Resolution of Complaints) Act and the test that is properly applied in assessing the merits of a claim for the purpose of determining whether to extend time in the exercise of the statutory power conferred by under s 477 of the Migration Act 1958 (Cth). On that basis, the submission advanced was to the effect that the Tribunal should undertake no more than an impressionistic assessment of the merits of the complaint.

108    There are two reasons why that submission should not be accepted. First, the statements to that effect concerning s 477 are not expressed as a matter of statutory interpretation. They are a consequence of the fact that the power there conferred is to be exercised where it is necessary to do so in the interests of justice. Accordingly, the repeated statements to that effect may be no more than judicial guidance as to the appropriate approach to be adopted in most cases in order to do that which is necessary in the interests of justice: CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57 at [19].

109    Second, the different language and context in which the power is conferred upon the Tribunal to treat the complaint as withdrawn must take account of the subject matter of such complaints and the overall statutory scheme. In particular the power is not to be exercised as a judicial power in the interests of justice in court proceedings. Rather, it requires the Tribunal to form a view as to whether it thinks the complaint is lacking in substance and to do so as the repository of a statutory power to determine whether a decision to vary or set aside the decision should be made on the basis of its assessment as to what is required to place the complainant in a position that removes unfairness or unreasonableness that the Tribunal has determined to exist. In that context, the question involves an evaluation as to whether the complaint has sufficient substance to justify the complaint proceeding to conciliation, and if not there resolved, to review for the purpose of considering whether to exercise that statutory power.

110    Similar observations may be made to the extent that the submissions for Mr and Mrs Riseley relied upon cases concerned with applications for summary judgment.

111    No doubt the proper exercise of the statutory power conferred by s 22(3)(b) required due consideration to be given to the fact that the purpose of conferring a right to conciliation and review was for the merit of the basis for the complaint to be evaluated by processes of that kind. For that reason, it may be expected that the power will only be exercised taking due account of whether there was material that had sufficient substance (the relevant statutory inquiry being as to whether the complaint 'is trivial, vexatious, misconceived or lacking in substance') for the complaint to go forward to conciliation and review. For reasons I have given, that is what the Tribunal did.

112    Ground 2 has not been made out.

Ground 3: Onus allegedly placed on Mr and Mrs Riseley

113    It was submitted that the manner in which the Tribunal dealt with the evidence was to place some form of onus on Mr and Mrs Riseley to establish their complaint. I do not accept this characterisation of the Tribunal's reasoning. Rather, the Tribunal simply reasoned that the power conferred by s 22(3)(b) should be exercised because there was a lack of evidence to support a claim of unfairness or unreasonableness by the trustee. To reason in that manner is not to impose an onus of any kind on Mr and Mrs Riseley. Rather, it is to undertake an evaluation as to whether there is material that might provide a basis upon which there is a concern that should be conciliated and, if not resolved, for a favourable exercise of the power on review.

Grounds 4 and 5: Alleged error in findings that there was 'no evidence'

114    The final two grounds are to the effect that the Tribunal was in error because at two points it found that there was no evidence of two matters when in fact there was evidence.

115    The first part of the reasoning that is challenged is the statement already quoted that there was no evidence to show that the complainant applied for TPD cover. Contrary to the submissions advanced, this reasoning did not ignore the continuous statements by Mr and Mrs Riseley about what they were told by the Advisor. The significant word used by the Tribunal is 'applied'. In context, the statement in the reasons is to the effect that there was no evidence to show that the application made to the trustee was for TPD cover. That statement was correct. The application form did not include any such application and there was no evidence that an application was made for such cover in some other way or at some other time.

116    Further, it was not the case that the statement in the Welcome Letter to Mrs Riseley was evidence that she had applied for TPD cover. The box concerning TPD cover was not ticked. There was no evidence that after the Welcome Letter was received, Mrs Riseley applied for TPD cover. The evidence was that she completed the form and returned it. Significantly, there was no suggestion that, by doing so, she considered she made application for TPD cover. The whole complaint was based on what Mr and Mrs Riseley were told by the Advisor. Thereafter, for many years every communication was to the effect that it was death cover that had been arranged.

117    A submission was advanced to the following effect:

… in their applications to open the Plan accounts, the applicants had answered 'yes' in response to the question, 'Do you require death or death and TPD cover?'. They did not tick the box next to the words 'I wish to have an amount of TPD cover equal to the amount of my death cover'. But, as alluded to above, that combination of answers left open the possibility of an amount of TPD cover that was not equal to the amount of death cover. TPD cover in an amount not equal to the amount of death cover was available under the Plan.

118    A claim of that kind was not suggested to the Tribunal and for good reason. The only option provided on the application form to indicate the TPD cover amount request was by ticking next to the box marked 'please tick' in response to the question 'I wish to have an amount of TPD cover equal to the amount of my death cover'. It was common ground that the box was not ticked. All communications with the trustee over many years referred only to death cover.

119    The fact that the detail within the application booklet indicated that it was possible to apply for TPD cover that was less than the level of death cover and that in certain instances, depending on the level of earnings, the TPD cover may have to be less than the death cover did not mean that there was ambiguity in the intention that was manifested when the box was not ticked.

120    Further, as was submitted for the trustee, the statements by Mr and Mrs Riseley were not to the effect that they sought TPD cover in a lesser amount. Rather, their claim was that they were told that they would have both death and TPD cover for $250,000. When that material is brought to account, there is no basis for the submission that there was evidence in the form of some type of uncertainty created by the nature of the questions stated in the application that supported the claim by Mr and Mrs Riseley.

121    The second part of the reasoning that is challenged on a 'no evidence' basis is the statement in the reasons, already quoted, that there was no evidence to show that the initial contribution of $6,000.00 (or $4,000.00), along with the investment performance, was intended to offset the management of the accounts and provide a retirement benefit.

122    This is said to be incorrect because Mr and Mrs Riseley had held that intention. The submission is misconceived. The statement in the reasons, properly construed, is not about the intentions of Mr and Mrs Riseley. Given the repeated statements made by Mr and Mrs Riseley to the Tribunal it could hardly be thought to be saying as much. Plainly, that was their intention. Indeed, the Tribunal made an observation substantially to that effect in its reasons as part of its analysis when it said:

The Tribunal notes the Complainant's comment that he and his wife were deceptively dealt with at the time they were sold the policy, that the provider misrepresented the nature of the policy and Fund membership and that he was advised his initial $6,000.00 contribution would provide him [her initial $4,000.00 contribution would provide her] with insurance cover and a superannuation benefit into retirement. However, the Tribunal also notes, by way of the annual member statements, the Fund regularly informed the Complainant of the costs associated with his account, of the insurance premiums deducted from the account and the investment performance.

123    There is a statement to similar effect by the Tribunal in its reasons when it describes the complaint.

124    In the above context, the statement by the Tribunal in its conclusion about no evidence is to the effect that there was no evidence that the account was intended to be operated by the trustee in that manner. That is to say, there is no evidence that that the account was to operate in the manner said to have been described by the Advisor.

125    For those reasons grounds 4 and 5 are not made out.

Other matters

126    Issues in relation to materiality were also raised. Given the conclusions I have reached on the grounds it is not necessary to consider those matters. Further, it is difficult to do so in any meaningful manner unless it is by way of considering a particular error that has been demonstrated. For those reasons, other than noting that they were raised, I do not address them.

127    There were also issues raised as to the appropriate relief and the terms in which it might be expressed given the expected transition to AFCA. Those matters were not addressed by the statutory bodies by reason of the submitting appearances. If it had been necessary to consider the terms of relief I would have invited submissions from the statutory bodies as to whether the relief sought was appropriate within the statutory structure. In the result, it is not necessary to do so.

Orders and costs

128    It was accepted that costs on the applications should follow the event. There should be an order to the effect that the applications are dismissed with costs.

Associate:

Dated:    7 May 2021