Federal Court of Australia

Rauchle v Q-Super Board [2022] FCA 1537

ORDERS

THE COURT ORDERS THAT:

1.    The appeal will not be dismissed for want of competency.

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

REASONS FOR JUDGMENT

THOMAS J:

1    The applicant appeals on questions of law from the second respondent, the Australian Financial Complaints Authority’s (AFCA) determination of the complaint (s 1057(1) of the Corporations Act 2001 (Cth) (the Act)) to affirm the decision of the first respondent, the Q-Super Board (QSuper).

QUESTIONS OF LAW

2    The following questions of law are set out in an amended notice of appeal filed on 10 December 2021:

1.    Were any or all of the complaints identified in sub-paragraphs [2(b)-(f)] of the Grounds below a “superannuation complaint” pursuant to s1053(3) of the Corporations Act 2001 (Cth) (the Act), having regard to s1053(5) of the Act?

2.    If the answer to Question 1 is yes (to some or all), was AFCA required to determine all the superannuation complaints identified in sub-paragraphs [2(a)-(f)] as part of the same process under s1055 of the Act?

3.    If the answer to Question 2 is yes (to some or all), was AFCA required by s1055 of the Act to make a determination in relation to each superannuation complaint identified in sub-paragraphs [2(a)-(f)] at the same time?

(emphasis and italics in original)

GROUNDS

3    From the amended notice of appeal, the grounds relied on are as follows:

1.    On or about 11 September 2019, the [a]pplicant made a verbal complaint to AFCA by telephone, which was allocated Case No.666349.

2.    On or about 18 September 2019, in response to AFCA providing a summary of the verbal complaint, the [a]pplicant detailed the extent of his complaint as comprising –

a.    that [QSuper] had determined the [a]pplicant was permanently and partially disabled (PPD) and not totally and permanently disabled (TPD);

b.    the process by which [QSuper] commenced making its initial decision of 3 July 2008 the [a]pplicant was PPD in 2008 (the initial decision);

c.    the adequacy of the process by which [QSuper] made the initial decision in 2008;

d.    the adequacy of the process by which [QSuper] made its review decision on 25 September 2014 upholding the initial decision (the review decision);

e.    the non-compliance of [QSuper] with the principles of natural justice and procedural fairness in making each of the initial decision and the review decision;

f.    whether [QSuper] had reasonably complied with its own claims handling philosophy and codes of practice in making the initial decision and review decision.

(together, the Complaints)

3.    On or about 6 January 2020, AFCA assessed the Complaints as being within its jurisdiction.

4.    On or about 20 May 2020, AFCA advised the [a]pplicant that it has gathered the further information to it required from both the [a]pplicant and [QSuper] and was therefore proceeding to make a preliminary assessment of the Complaints.

5.    On or about 13 August 2020, at the request of AFCA, the [a]pplicant supplied AFCA with a copy of the [a]pplicant’s National Disability Insurance Scheme approval letter.

6.    On or about 17 August 2020, AFCA advised the [a]pplicant it was seeking further information from [QSuper], and also provided further documentation not previously supplied to the [a]pplicant for submissions.

7.    On or about 21 September 2020, AFCA issued a copy of a preliminary assessment, (the Preliminary Assessment) in relation to the Complaints, which included a recommendation in favour of [QSuper].

8.    On or about 5 October 2020, the [a]pplicant advised AFCA he was not accepting the recommendation.

9.    In the period January to August 2021, the [a]pplicant and [QSuper] provided further submissions to AFCA in relation to the recommendation.

10.    On 22 October 2021, AFCA provided to the [a]pplicant its determination in Case No.666349, which –

a.    determined the date the [a]pplicant was to be assessed as either PPD or TPD was 16 July 2008;

b.    determined that the weight of evidence was that the [a]pplicant was PPD;

c.    determined the decision of [QSuper] that the [a]pplicant was PPD on 16 July 2008 was fair and reasonable in all the circumstances;

d.    failed to determine whether the process by which [QSuper] made its initial decision in 2008 was fair and reasonable;

e.    failed to determine whether the process by which [QSuper] made its review decision in 2014 upholding the initial decision was fair and reasonable;

f.    failed to determine whether the non-compliance of [QSuper] with the principles of natural justice and procedural fairness in making each of the initial decision and the review decision was fair and reasonable in all the circumstances; and

g.    failed to determine whether [QSuper] had reasonably complied with its own claims handling philosophy and codes of practice in making the initial decision and review decision, such as to make the decisions fair and reasonable in the circumstances.

11.    AFCA erred in law by not considering and making a determination pursuant to s1055 of the Act on all the complaints at the same time such that the determinations made are infected with error at law.

(emphasis and italics in original)

NOTICE OF OBJECTION TO COMPETENCY

4    In response to the amended notice of appeal, QSuper objected to the competency of the appeal in the following terms:

Grounds of objection

1.    Section 1057(1) of the Corporations Act 2001 provides that a party may appeal to the Federal Court of Australia only on “a question of law, from the” Second Respondent’s (“AFCA”) “determination of the complaint”. Without such a question of law, the appeal is incompetent.

2.    The Amended Notice of Appeal (“ANOA”) does not state a question, or questions, of law, from AFCA’s determination of the complaint.

3.    The questions in the ANOA:

(a)    do not pose questions of law but are broad enquiries about whether there is a superannuation complaint, and then, (and only then), if so, and only to the extent so found, what process is to be adopted in determining any such complaint;

(b)    poses an open enquiry as to whether this is a question of law;

(c)    poses cascading questions as a result of an initial open enquiry to determine if, and to what extent, there is a question of law;

(d)    do not precisely identify a question of law from the determination of AFCA;

(e)    comprise or imply questions of mixed fact and law or of fact.

(emphasis in original)

BACKGROUND

5    The parties filed a statement of agreed facts. A court book was filed. The following is sourced from the statement of agreed facts and the court book.

6    The applicant was a defined benefit member of the QSuper Fund, of which QSuper was trustee.

7    In November 2006, the applicant made an income protection claim for depression and anxiety and received income protection benefits from 16 July 2006 until 16 July 2008. At the time, the trustee assessed the applicant to be permanently and partially disabled rather than totally and permanently disabled.

8    A complaint was made to AFCA.

9    After the complaint was lodged, The “Complaint information summary” described the summary of the complaint as follows [Court Book pp 971-972]:

The [applicant] suffers from severe depression, fatigue and short term memory loss which was caused by workplace harassment in 2006.

He was diagnosed with permanent and partial disability in 2006.

He was enrolled to participate in return to work in 2006. He had a relapse.

He was then meant to participate in return to work in 2007. But no return to work program was offered.

In 2008 the [applicant]’s decided to terminate his employment because of his ill health.

He was still employed until 2010.

The [applicant] approached QSuper at the end of 2013 after they denied the claim as they believed he would be able to return to work but did not offer any return to work program.

10    The statement of agreed facts records (at [26]) that, “[o]n 18 September 2019, in response to [AFCA] providing a complaint summary, the [a]pplicant in an email to [AFCA], provided further details on the extent of the [a]pplicant’s complaint”. A copy of the email dated 18 September 2019 and sent at 7:21 PM is attached to the statement of agreed facts.

11    The email recorded the applicant’s complaints as follows:

There are several concerns and/or cause for complaint arising from the process of assessing my claim.

These include but are not limited to:

The process by which the initial decision was commenced.

The adequacy of the initial decision.

The adequacy of the review decision.

Compliance with the principles of natural justice and procedural fairness.

Whether QSuper has reasonably complied with its claims philosophy and/or other applicable codes of practice and like. https://qsuper.qld.gov.au/about/disclosure#GuideContent13

I note that a cases should be assessed thoroughly, fairly and objectively. The purpose of a statement of reasons is to make explicit the reasoning by which (all) material has been assessed and weighed to reach conclusions and the ultimate decision. This has not occurred.

My complaint, in the first instance will focuses on one specific matter.

…

It is my contention that the significant fatigue alone, if not in combination with depressed mood and impacts on short-term memory function, is sufficient to support a finding of total and permanent disability.

I note that, in the circumstances, it is absurd to contend that I am capable of employment as a contract farm machinery operator, even if it were shown that I was otherwise sufficiently experienced to gain such employment. Such employment consistently requires engagement over long hours.

(errors in original; italics in original)

12    The applicant sent an email dated 18 September 2019 at 7:25:19 PM saying [Court Book p 973]:

I am disappointed that the complaint, as documented, has not captured the substance of what I was attempting to communicate.

I have sent an email regarding this.

It might be appropriate to discuss what I have sent before taking further action.

13    In communications between the applicant and AFCA, on 23 March 2020 at 11.59:07 PM, the applicant indicated [Court Book p 998]:

My initial complaint identified a primary issue of the ultimate decision and a complaint that this was incorrect in that, it did not adequately consider the matter of fatigue and that fatigue (if not alone in respect to other symptoms) is sufficient to overturn QSuper’s decision.

I have, in my initial complaint, also identified broadly, secondary matters of complaint:

The process by which the initial decision was commenced.

The adequacy of the initial decision.

The adequacy of the review decision.

Compliance with the principles of natural justice and procedural fairness.

Whether QSuper has reasonably complied with its claims philosophy and/or other applicable codes of practice and like …

14    The applicant also added other matters concerning the conduct of QSuper.

15    On 24 March 2020 at 9:46 AM, AFCA responded to the applicant in the following terms [Court Book p 997]:

Thank you for your email and for providing additional information relating to your concerns. Ill [sic] review this new information and make any relevant inclusions into your complaint. Once completed, ill [sic] issue my letters out to all parties in order to progress with your complaint. If you have any questions or concerns, please do not hesitate to contact me.

16    AFCA sent a letter on 8 April 2022. It explains AFCA’s understanding of the complaint as follows [Court Book pp 1002-1003]:

You hold a superannuation account with QSuper. You submitted a claim for TPD which was declined by QSuper.

You mentioned your TPD claim had not been assessed fairly. You believe your combined conditions support your claim for a TPD benefit under the QSuper insurance policy.

QSuper say the claim was declined as you did not meet the relevant TPD definition or the terms of the policy.

To resolve this complaint, you request the TPD claim be approved and a TPD benefit paid.

17    The letter indicates that AFCA would investigate the following issues to determine if the trustee decision was fair and reasonable in the circumstances [Court Book p 1003]:

1.    Was QSuper’s decision to decline the TPD claim fair and reasonable?

2.    If no, is [the applicant] eligible to be a paid a TPD benefit under the policy?

18    The letter continues [Court Book p 1004]:

…

5.    You mentioned you consider QSuper has treated you unfairly. In its statement of reasons for the decision of the Senior Board Delegate, QSuper explained that all medical evidence obtained were taken into account to make its decision to deny your claim.

Please tell us:

•    Reasons you consider you have not been treated fairly

•    Reasons you consider you are entitled to the TPD benefits

SUBMISSIONS

Submissions on behalf of QSuper in relation to the notice of objection to competency

19    The submissions of QSuper can be summarised as follows.

20    The applicant may only appeal “on a question of law from the AFCA’s determination of the complaint”. The question of law on which the appeal is brought is the very subject matter of the appeal (see Board of Trustees of the State Public Sector Superannuation Scheme v Edington (2011) 119 ALD 472; [2011] FCAFC 8 (Edington) at [36] per Kenny and Lander JJ).

21    The question of law must be clearly stated. As Logan J put it in Edington (at [71]), “the question of law is the very subject matter of such an appeal. Insistence on the formulation of a question of law is not therefore a matter of semantics in relation to pleading but goes to the very existence of jurisdiction to entertain the proceeding”.

22    The occasion of legal error is not the same as a question of law (Edington at [37]). Not every alleged procedural or legal error, if questionable, will be from the determination, as is required by the legislation.

23    The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law, at least where a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words (Friar v Brown (2015) 12 ASTLR 573; [2015] FCA 135 (Friar) at [72]). The question of whether something falls within a definition can be a question of law (transcript p 10 ll 14-22).

24    Each of the putative questions of law are posed as broad open inquiries as to whether there was (or was not) a superannuation complaint and, if so, and only to the extent so found, an open inquiry as to whether a process was required to be adopted. At best, they are open inquiries as to whether they are questions of law.

25    It is not a question of law to ask whether there is a legal question or a question of law – it begs the question.

26    What is required is a statement of the precise question of law or a statement precisely of the legal question.

27    The cascading fashion of the proposed questions 2 and 3 raises issues. The form of the questions suggests there may be some questions of law and some not. The form of the questions implies that there may be mixed questions of law and fact.

28    The objection is not one of form, but substance. There is a failure to identify the precise question of law.

29    The question does not identify how the question of law is open “from the determination” of AFCA.

30    The questions are so vague that they do not afford any proper or due notice to QSuper as to what the alleged question of law is.

31    The appeal from AFCA does not involve an inquiry into the decision-making process. The question is whether the decision, in the way it operates, is fair and reasonable to the applicant. It is the outcome which must be fair and reasonable (transcript p 9 ll 14-18). It is not a question of law in this type of appeal to consider the rights and wrongs of the decision-making process. This was not the nature of the role of AFCA (transcript p 9 ll 32-37).

32    An appeal brought as a result of AFCA not determining the complaints identified as part of the same process would not be on a question of law because AFCA is not concerned with error in process per se ((transcript p 11 ll 32-44). If the appeal were based upon the Tribunal failing to follow the requirements of the Act, that would raise a question of law if it involved AFCA acting outside of its authority or not acting within its charter under s 1055 in not exercising its statutory function. This would include what AFCA should have done in exercise of the statutory function (transcript p 12 ll 7-29).

33    In relation to the first question of law, “[w]ere any or all of the complaints identified in sub-paragraphs [2(b)-(f)] of the Grounds below a ‘superannuation complaint’ pursuant to s1053(3) of the [Act], having regard to s1053(5) of the Act?”:

1.    As to [2(b)], [2(c)] and [2(d)], it does not identify the error, it fastens upon the process and it lacks definition. It does not identify a question of law.

2.    As to [2(e)], it refers to non-compliance with principles of natural justice and procedural fairness without any particularity nor identifying a question of law.

3.    As to [2(f)], it has a focus on process with no elicitation of a question of law.

34    As to the failures outlined in [10(d)], [10(e)], [10(f)] and [10(g)], what the Court is invited to consider is the fairness and reasonableness not of the decision, but of the process that led to the decision. Paragraph 7 of the applicant’s submissions also makes it clear that the attack is on the process, as opposed to the fairness and reasonableness of the decision. What seems to be asserted by the amended notice of appeal is that AFCA not only should have determined the matter relating to total and permanent disability (as it did), but also had to consider the process at the same time and consider all of the complaints at the same time which relate to fairness and reasonableness of the process. These do not give rise to a question of law (transcript p 17 ll 1-11, p 18 ll 1-4).

35    Based upon the wording of the legislation and authorities such as Edington, considering the decision, AFCA must consider whether the operation of the decision was fair and reasonable. What is excluded from AFCA’s consideration, according to the authorities, is the process (transcript p 20 ll 1-6). Given that the amended notice of appeal fixes upon the process, it does not identify a question of law (transcript p 20 ll 15-20).

36    The matters raised in the amended notice of appeal cannot be a question of law because they are not pertinent to the issue about which AFCA is concerned (transcript p 27 ll 10-14). What seems to be attacked is the actual process.

37    In focusing on the process leading to the decision, the Court is being asked to consider a matter which was not in the ambit of AFCA’s consideration and so could not ground a question of law.

Submissions by the applicant as to QSuper’s notice of objection to competency

38    The submissions of the applicant can be summarised as follows.

39    Section 1057 of the Act provides for an appeal following a decision by AFCA. The appeal is only on a question of law and must relate to the conduct of AFCA within its powers and responsibilities under the Act. The only limitation is that the appeal be on a question of law so as to limit any capacity to review factual findings only.

40    The three questions posed together identify the alleged relevant failure of AFCA, being the refusal to deal with all complaints made by the applicant.

41    The question of law identified in question 1 is whether certain complaints fall within s 1053 of the Act. The question is not general or open-ended, but refers to specific paragraphs in the grounds.

42    The specific complaints of concern are identified in [2(b)]-[2(f)] and by reference to the response by the applicant on 18 September 2019. From the reference to [2.4] of the AFCA determination, it is clear that these matters were not considered and that AFCA refused to make a determination on those particular complaints.

43    Question 1 asks whether each identified complaint falls within the statutory definition of superannuation complaint in s 1053 of the Act. In Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 (Vetter), Gleeson CJ, Gummow and Callinan JJ concluded (at [24]) that “[w]hether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law”.

44    The fact that one question has been asked with respect to five areas of complaint, rather than five separate questions being asked, each relating to one area of complaint, does not affect the ability of the Court or QSuper to understand the question. It is not relevant whether the Court finds that some complaints are not “a superannuation complaint”.

45    Question 2 is a purely legal question as to whether AFCA was required to consider multiple complaints as part of the process instituted under s 1055 of the Act.

46    Question 2 raises the legal question whether AFCA was required to determine complaints part of the same process. That is a question for a trial, not a question for competency. It is, however, a question of law.

47    Question 3 is a purely legal question as to whether AFCA was required to make a determination on the multiple complaints identified considered as part of the same process as part of the same determination. The question is not general, being directed towards the specific determination of AFCA and the reference to “the superannuation complaints”.

48    It is evident from the determination that, if the complaints listed in [2(b)]-[2(f)] are superannuation complaints, AFCA has failed to deal with those complaints in the way required by the legislation.

49    The questions are not broad inquiries. They pose targeted questions directly relevant to the specific sections of the Act. They relate directly to the applications of ss 1053 and 1055 of the Act to the particular circumstances of the applicant.

50    Questions 2 and 3 involve the consideration of whether the decision-maker adopted the wrong approach in the exercise of its power. Such a question was identified as a question of law by Kenny and Lander JJ in Edington (at [36]).

51    There is no principle which prevents questions of law being posed in a cascading form as has been done in questions 1 to 3.

52    The AFCA process and decision and the QSuper process and decision are separate things, and the questions posed are clear, and clearly raise a question of law as to whether AFCA, in making its determination, complied with the statutory requirements.

53    The superannuation complaint is defined by reference to s 1053(1)(i) and s 1053(3). Section 1053(5) provides that a decision-maker makes a decision if the decision-maker makes or fails to make a decision or engages in any conduct or fails to engage in any conduct in relation to the making of a decision.

54    The matter concerns the legal question as to whether the complaints identified in grounds [2(b)]-[2(f)] fall within the definition of superannuation complaint having regard to those provisions of s 1053 of the Act.

55    In Friar, it was concluded that the question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law (at [72]).

56    QSuper has made submissions regarding whether or not the process leading to a decision can be the subject of an appeal given that AFCA must decide whether or not the decision of QSuper was fair and reasonable in its operation.

57    The applicant does not appeal on that basis. The appeal raises whether AFCA, in undertaking the task, was required to consider all of the complaints so that it could make a proper determination. The applicant would submit that, in failing to consider the complaints (superannuation complaints as identified in the email of 18 September 2019), AFCA has not properly exercised its power or fulfilled its obligations under the legislation. AFCA is obliged to consider all complaints made.

58    The questions raised are not hypothetical. They are not a broad or hypothetical inquiry. The questions are targeted questions of law. They are questions involving whether AFCA has adopted the wrong approach. In Edington (at [36]), Kenny and Lander JJ observed that “the question is whether the decision-maker in answering questions of fact failed to take into account a relevant consideration, had regard to an irrelevant consideration, adopted a wrong approach, or reached a decision so unreasonable that no reasonable decision-maker could have come to it”. In this case, the decision-maker, namely AFCA, adopted a wrong approach. Questions relating to that issue are questions of law.

THE AFCA DECISION

59    Section 2.4 of the decision is as follows:

2.4    Is the trustee’s decision fair and reasonable?

AFCA does not review the trustee’s decision-making process

The [applicant] has raised a number of issues about the trustee’s decision-making process. However, it is AFCA’s role to review the outcome of the decision, not the trustee’s decision-making process that led to the decision.

AFCA must affirm a trustee’s conduct (being conduct relating to a decision) if AFCA is satisfied the conduct was fair and reasonable in its operation in relation to the [applicant] in all the circumstances …

The test for a superannuation complaint is whether a trustee’s decision was fair and reasonable in its operation to the [applicant] in all the circumstances.

The trustee’s decision is fair and reasonable

I am satisfied the trustee’s decision is fair and reasonable in its operation in relation to the [applicant] in all the circumstances. This is because the evidence supports the [applicant] was PPD and not TPD as at 16 July 2008.

2.5    Determination

This determination affirms the trustee’s decision that the [applicant] was PPD and not TPD as at the date of assessment.

(emphasis in original)

COMPLAINT RELATING TO SUPERANNUATION

60    Chapter 7 Part 7.10A of the Act deals with external dispute resolution.

61    Insofar as it is relevant to these proceedings, s 1053 – “When complaints relating to superannuation can be made under the AFCA scheme” – provides:

(1)    A person may, subject to section 1056, make a complaint relating to superannuation under the AFCA scheme only if the complaint is a compliant:

(a)    that the trustee of a regulated superannuation fund or of an approved deposit fund has made a decision (whether before or after the commencement of this section) relating to:

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

(ii)    a particular beneficiary or a particular form of beneficiary of an approved deposit fund;

that is or was unfair or unreasonable …

…

(5)     For the purposes of this section, a trustee, an insurer, an RSA provider or another decision‑maker, makes a decision if:

(a)    the trustee, insurer, RSA provider or other decision‑maker, or a person acting for the trustee, insurer, RSA provider or other decision‑maker, makes, or fails to make, a decision; or

(b)    the trustee, insurer, RSA provider or other decision‑maker, or a person acting for the trustee, insurer, RSA provider or other decision‑maker, engages in any conduct, or fails to engage in any conduct, in relation to making a decision;

whether or not the decision or conduct involved the exercise of a discretion.

62    A complaint made in accordance with s 1053(1) is a superannuation complaint (s 1053(3)).

63    In making a determination of a superannuation complaint, AFCA has all the powers, obligations and discretions that are conferred on the trustee who made the decision to which the complaint relates (s 1055(1)).

64    AFCA must affirm a decision or conduct if AFCA is satisfied that the decision, in its operation in relation to the complainant, or the conduct, was fair and reasonable in all the circumstances (s 1055(2)). If AFCA is satisfied that a decision in its operation in relation to the complainant or conduct is unfair or unreasonable or both, it may, only for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness or both no longer exists (s 1055(4)), take one or more of the following actions (s 1055(6)):

(a)    vary the decision;

(b)    set aside the decision and:

(i)    substitute a decision for the decision so set aside;

(ii)    remit the decision to the person who made it for reconsideration in accordance with any directions or recommendations of AFCA …

…

65    Pursuant to s 1055(7), AFCA must not make a determination of a superannuation complaint that would be contrary to:

1.    law; or

2.    … the governing rules of a regulated superannuation fund to which the complaint relates.

66    AFCA must give written reasons for its determination of a superannuation complaint. If AFCA varies a decision or substitutes a decision, the decision as varied or submitted (s 1055B(3)):

(a)    is, for all purposes (other than the making of a complaint about the decision) taken to be a decision of the other person; and

(b)    on the coming into operation of the determination by AFCA, unless AFCA otherwise orders has effect, and is taken to have had effect, on and from the day on which the original decision has or had effect.

67    The effect of s 1055B is that, essentially, the decision is binding upon the decision-maker, but not of the complainant, who, for example, would retain the right to challenge the decision.

68    In brief, AFCA’s task is to determine whether the trustee’s decision was fair and reasonable in all the circumstances in its operation in relation to the complainant and other parties joined to the complaint: s 1055(3) of the Act.

69    That review function is directed to whether the actual decision, rather than the process that led to it, was fair and reasonable: Edington at [46] (per Kenny and Lander JJ); and Cummins v Petterd [2021] FCA 646 at [12] (per Flick J).

70    As Kenny and Lander JJ outlined in Edington, AFCA must make its own assessment of the evidence and other information with a view to making its own findings of fact directed to the fundamental question for determination, which was whether the decision of the trustee was in its operation fair and reasonable (at [51]). As it was put, “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”. In my view, the circumstances include the facts determined and the decision which would have been reached by AFCA. Their Honours in Edington referred to comments made by Moore J in Marks v CSS Board of Trustees [2005] FCA 797 when he observed (at [23]):

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.

71    In Edwards v Postsuper Pty Ltd [2007] FCAFC 83, the Full Court (Tamberlin, Emmett and Middleton JJ) said (at [15]):

The role of the [Superannuation Complaints Tribunal, being the precursor to AFCA] … is not to decide for itself the correct or preferable decision: it must affirm a decision if it is satisfied that the operation of the decision the subject of review was fair and reasonable in the circumstances. The Tribunal may have to make its own findings of fact for the purpose of determining whether the decision is fair and reasonable in its operation in the circumstances. However, such findings of fact are necessary only for that purpose … the Tribunal does not simply stand in the shoes of the primary decision maker. Its task is not to engage in ascertaining generally the rights of the parties. Further, it is not required to engage in a form of judicial review of the decision of the primary decision maker. Rather, it is to form a view, from the perspective of the primary decision maker, as to whether the decision was unfair or unreasonable.

72    In QSuper Board v Australian Financial Complaints Authority (2020) 276 FCR 97; [2020] FCAFC 55, the Court (Moshinsky, Bromwich and Derrington JJ) said (at [64]-[65]):

64    The powers conferred by [Corporations Act] s 1055 permit AFCA to set aside or vary a decision made by a trustee in relation to a fund member even where the decision was authorised by the trust deed and any regulating statute. The determining factor is not the lawfulness of the decision, but its fairness or reasonableness “in its operation in relation to the complainant”. Such a power is more aptly applied in relation to discretionary powers which, by their nature, confer wide decisional freedom on the repository such that a broad range of decisions might legitimately be made from a single set of facts. In any event, under the scheme where a complainant is aggrieved by a trustee’s decision, AFCA can consider the relevant circumstances and exercise the power or discretion of the trustee afresh so as to correct any perceived unfairness or unreasonableness arising from the original decision’s operation.

65    Despite the width of AFCA’s remedial powers, subsection (7) requires that it exercise the powers of the trustee or other authorised person within legal confines. It is not entitled to make a decision which is contrary to the terms of the trust or beyond the limits of any relevant statutory regulation. For instance, AFCA could not, standing in the shoes of a trustee, exercise a power in a manner which breached the trustee duty to observe the terms of the trust.

THE APPEAL TO THE FEDERAL COURT

73    A party to a superannuation complaint may appeal to the Federal Court, on a question of law, from AFCA’s determination of the complaint (s 1057). The Federal Court may make such order as it thinks fit, including, without limitation, an order affirming or setting aside the determination of AFCA and an order remitting the matter to be determined again by AFCA in accordance with the directions of the Court (s 1057(3) and (4)).

74    Whilst called an appeal, proceedings pursuant to s 1057(1) of the Act are in the original jurisdiction of the Court.

75    Decisions in relation to appeals from the Administrative Appeals Tribunal (the Tribunal) to the Court are instructive as the Court’s powers in those circumstances are very similar to those applicable in the case of an appeal pursuant to s 1057 of the Act.

76    Of course, in the case of the Tribunal, the Tribunal is required to determine the “correct or preferable decision” whereas AFCA is required to determine whether the decision, in its operation in relation to the complainant, or the conduct, was fair and reasonable in all the circumstances.

77    In each case, the appeal to the Court is on a question of law.

78    The AFCA appeal is limited to a question of law, which is the issue before the Court and must be the subject matter of orders made consequent on appeal. The order which can be properly made must reflect the Court’s view on the alleged or found error of law (see Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 at 220 (per Sheppard J)).

79    The appeal is on a question of law from AFCA’s determination of the complaint, not judicial review of a decision by a trustee. The appellate court’s function is limited to determining whether AFCA erred in law (see Wan v BT Funds Management Limited [2022] FCA 302 at [87] (per Anastassiou J)).

80    In Edington, Kenny and Lander JJ observed (at [36]), in relation to the question of jurisdiction (under the former s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth)):

The jurisdiction is thus a limited one. The appeal for which s 46(1) provides is a proceeding in the original jurisdiction of the Court. The subject matter of an appeal under this provision is the question or questions of law on which the appeal is brought… No appeal under s 46(1) will lie from the Tribunal’s findings of fact, unless those findings were reached in a manner giving rise to a question of law … Accordingly, if the question is whether the decision-maker in answering questions of fact failed to take into account a relevant consideration, had regard to an irrelevant consideration, adopted a wrong approach, or reached a decision so unreasonable that no reasonable decision-maker could have come to it, then that question is a question of law …

81    In Edington, Logan J observed (at [71]):

The question of law is the very subject matter of such an appeal. Insistence on the formulation of a question of law is not therefore a matter of semantics in relation to pleading but goes to the very existence of jurisdiction to entertain the proceeding.

82    The requirement that the appeal be “on a question of law” does not go to the existence of the jurisdiction of the Court, rather than the exercise of jurisdiction. In Barghouthi v ING Custodians Pty Ltd [2003] FCA 1272 (Barghouthi), Allsop J (as his Honour then was) said (at [25]):

I do not understand anything in Birdseye or Saxby Bridge to support any proposition that the requirements of s 44 of the AAT Act (here s 46 of the Act) or the procedural regime in O 53 (even if the latter, as a rule of Court, could) go to the existence of the jurisdiction of the Court, as opposed to the exercise of jurisdiction …

83    In terms of considering whether an error of law is sufficiently disclosed, the issue must be considered as a matter of substance, not form. As the Court in Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 (Haritos) at [94] said:

In our opinion, the issue must be approached as one of substance. In cases of doubt, the Court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal’s reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law.

84    Again, as the Court in Haritos observed (at [97]), as an ordinary incident of the Court’s status as a superior court of record, the Court has jurisdiction to decide whether or not it has jurisdiction and this carries with it the authority to decide whether a notice of appeal states a question of law and does so with sufficient precision and, if it does not, whether an applicant should have leave to amend the notice of appeal to remedy the defect.

85    This approach was adopted by Flick J in HGMZ v Secretary, Department of Social Services [2021] FCA 280 and approved by the Full Court on appeal from that decision (Salah (formerly HGMZ) v Secretary, Department of Social Services [2022] FCAFC 186. The Full Court (Rares, Katzmann and Cheeseman JJ) recognised that the primary judge had approached the matter as a question of substance, and not of form, in accordance with the Court’s reasoning in Haritos despite inadequate drafting of the notice of appeal.

86    In that case, the Flick J distilled questions of law, having considered all surrounding documents.

87    Another approach was taken in Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 (Raptis), where Gummow J determined that the issue regarding the question of law could be determined satisfactorily only by a degree of examination at the level which would be required if proceedings were treated as competent and to be finally determined and so proceeded to deal with the whole matter, found no error of law by the Tribunal had been demonstrated and dismissed the appeal.

88    The Court in Haritos referred to observations made in Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 to the effect that questions of law are not to be distilled from the grounds of appeal, but concluded this is a matter of practice and procedure rather than jurisdiction, and of degree, and should not be reduced to semantics at the expense of substance (Haritos at [105]).

QUESTIONS OF LAW

89    Questions of law have included:

    a question as to the meaning of an Act

    questions of construction of the law or agreements

    a finding of fact made of which there is no evidence to support it

    a failure to afford procedural fairness

    a wrong principle of law has been applied

    a failure to take into account relevant (mandatory) considerations

    determining matters to be taken into account when making a decision by reference to the construction of the statute conferring power

    taking into account an irrelevant consideration

    the decision is so unreasonable that no reasonable decision-maker would make it.

90    In Vetter (at [24]), Gleeson CJ, Gummow and Callinan JJ observed that, “[w]hether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law”. This conclusion was also expressed by Mason J (with whom Gibbs, Stephen, Murphy and Aickin JJ agreed) in Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 7; and in Friar at [72]. When it is necessary to engage in a process of construction of the meaning of a word (or phrase) in a statute, a question of law will be involved, but the question may be one of mixed fact and law.

91    In Edington, the Kenny and Lander JJ noted that the case before the primary judge was run on the basis that the question was whether or not the Tribunal had asked itself the correct question and misdirected itself as to the nature of its powers of review and observed that a question of this kind would be capable of being characterised as a question of law (at [43]).

HAS A QUESTION OF LAW BEEN IDENTIFIED AND ADEQUATELY DESCRIBED?

92    It is important to bear in mind the nature of the application currently before the Court. This application is not a final determination of a question of law, but rather a notice of objection to competency, including the submission that the appeal be dismissed for want of competency with costs. No aspect of the consideration of this application involves consideration, or an assessment, of the likely outcome at a hearing.

93    In Barghouthi, Allsop J (as he then was) described the nature of the task of the Court in the context of such a challenge when his Honour observed (at [26]-[27]):

26    The present context in which I am dealing with this matter must be recalled. I am not being called upon to decide on a final basis whether or not an error of law was committed by the Tribunal. That question is for a final hearing (if any), the jurisdiction of the Court having been invoked, otherwise than colourably, by the assertion of the existence of questions of law: see, for example, Westpac Banking Corporation v Paterson (1995) 95 FCR 59, 61-2 [12] to [14]. What is before me is the question whether, as expressed in the notice of appeal and draft amended notice of appeal, an asserted error of law is sufficiently disclosed as to resist an application of the kind made by the respondents. I am asked by the respondents to strike out the notice of appeal and not to grant leave in respect of the amended document, in each case because of the absence of any sufficiently clearly expressed asserted error of law.

27    In this context, one should not overlook the difficulty, at times, of distinguishing between errors of law and errors of fact and of understanding the place of what are sometimes called questions of mixed fact and law in the taxonomy mandated by the terms of the legislation. See generally Morris “Law and Fact” (1942) 55 Harv LR 1303, Brown “Fact and Law in Judicial Review” (1943) 56 Harv LR 899, Stern “Review of Findings of Administrators, Judges and Juries” (1944) 58 Harv LR 70, Jaffé “Judicial Review: Question of Law” (1955) 69 Harv LR 239, Jaffé “Judicial Review: Question of Fact” (1955) 69 Harv LR 1020 , Farnsworth “‘Fact’ or ‘Law’ in cases stated under the Income Tax Acts” (1946) 62 LQR 248, Wilson “A Note on Fact and Law” (1963) 26 Mod LR 609, Johnstone v Sutton (1786) 1 TR 510, 545; 99 ER 1225, 1244 (per Lord Mansfield), Hoddinott v Newton, Chambers & Co Ltd [1901] AC 49, 56, Felix v General Dental Council [1960] AC 704, 717, Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305, 319-322 (per Windeyer J), Lombardo v Federal Commission of Taxation (1979) 40 FLR 208, 210-12, Nizich v Commissioner of Taxation (1991) 91 ATC 4,747, 4752 and Commissioner of Taxation v Roberts (1992) 37 FCR 246, 251-52. None of the subtleties and difficulties discussed by the learned authors and judges in these articles and cases attend the resolution of the matter. In particular, the circumstances here do not throw up the conceptual difficulties that can attend analysis of the distinction between fact and law and the place of the distinction in logical reasoning in this area: see especially French J in Nizich at 210-212. These considerations assist in appreciating that the existence of what is called for by s 46(1) of the Act (and s 44(1) of the AAT Act) is part of the exercise of the jurisdiction of the Court, and not (in the sense discussed by Dixon J in Parisienne Basket) a precondition of the existence of jurisdiction.

94    In considering whether a question of law has been identified and adequately described, it is necessary to review the whole of the context in which the decision of AFCA was made.

95    As was pointed out in Haritos, the issue of whether a question of law is raised must be approached as a matter of substance and not form. The Court must consider all of the relevant circumstances which include the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context and the Tribunal’s reasons.

96    Whilst the question of law to be decided must be stated clearly, in determining whether the jurisdiction of the Court has been properly invoked, form cannot prevail over substance (Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55; [2003] FCAFC 232 at [29], followed in MYVC v Director General of Security (2014) 234 FCR 134; [2014] FCA 1447, Rares J at [42]).

97    If the question as put, properly analysed, is not a question of law, no amount of labelling, such as “erred in law”, can give the question meaning as a question of law. On the other hand, a poorly drafted question, when properly analysed, may in fact reveal a question of law. It is necessary to analyse the words used, in their overall context which includes the grounds.

98    As set out in the “Background” section of these reasons:

1.    there was a dispute between the applicant and the trustee regarding a decision by the Board’s delegate on 3 July 2008, and affirmed by the Board of Trustees on 25 September 2014, that the applicant was permanently and partially disabled, but not totally and permanently disabled;

2.    on 12 September 2019, a complaint was submitted to AFCA;

3.    in response to receiving a complaint summary on 18 September 2019, the applicant forwarded an email which referred to “several concerns and/or cause for complaint arising from the process of assessing my claim”. The email referred to issues to do with process and compliance with the principles of nature justice and procedural fairness, and whether the trustee had complied with its claims philosophy and/or other applicable codes of practice and the like; and

4.    there were subsequent exchanges of emails relating to the various complaints.

99    These complaints correspond with some of the complaints outlined in [2(b)]-[2(f)] of the amended notice of appeal.

100    In its decision, AFCA said:

AFCA does not review the trustee’s decision-making process

The [applicant] has raised a number of issues about the trustee’s decision-making process. However, it is AFCA’s role to review the outcome of the decision, not the trustee’s decision-making process that led to the decision.

101    AFCA decision did not otherwise deal with those matters.

102    The grounds in the amended notice of appeal, in [10], refers to the determination by AFCA. It is asserted that the determination:

…

d.    failed to determine whether the process by which [QSuper] made its initial decision in 2008 was fair and reasonable;

e.    failed to determine whether the process by which [QSuper] made its review decision in 2014 upholding the initial decision was fair and reasonable;

f.    failed to determine whether the non-compliance of [QSuper] with the principles of natural justice and procedural fairness in making each of the initial decision and the review decision was fair and reasonable in all the circumstances; and

g.    failed to determine whether [QSuper] had reasonably complied with its own claims handling philosophy and codes of practice in making the initial decision and review decision, such as to make the decisions fair and reasonable in the circumstances.

103    Those failures broadly correspond with the descriptions of the complaints referred to in [2] of the grounds, and which are the subject of the questions raised.

104    In [11] of the grounds, the assertion is that the “AFCA erred in law by not considering and making a determination pursuant to s1055 of the Act on all the complaints at the same time such that the determinations made are infected with error at law”.

105    The allegation in [11] of the grounds seems to derive from the passage in the AFCA decision in [2.6]. In this passage, AFCA concludes it is not AFCA’s role to review such matters.

106    The first question of law asks whether the complaints identified in [2(b)]-[2(f)] are superannuation complaints. Unless the complaints identified are superannuation complaints, the requirements in Division 3 do not operate.

107    Paragraph [10] of the grounds details the alleged failures in subparagraphs (d)-(g). In each case, AFCA is said to have failed to make a determination whether the alleged subject of the complaint (which is the subject of question 1 as to whether each is a superannuation complaint in terms of the definition in the Act) is fair and reasonable in all the circumstances.

108    This formulation with respect to each of these alleged failures picks up the language used in s 1055 of the Act. Of course, s 1055 only applies to a superannuation complaint.

109    The applicant submitted that the questions involved whether AFCA had adopted the wrong approach (it seems to follow, in relation to the way in which AFCA dealt with each of the complaints). That submission flows from the form of the amended notice of appeal set out above. Question 1 is a targeted question directed to the issue of whether the complaints fell within the definition of “superannuation complaint”. This involves consideration of the effect of the legislative requirements, including the meaning of the definition used in the legislation.

110    At this point in the proceedings, it is not the Court’s role to consider, or to make any comment about, what the outcome of that question might be. At this stage, the inquiry is limited to whether the question asked is a question of law. In my opinion, when considering the substance of the appeal as a whole (including the grounds and the decision of AFCA), question 1 is a question of law.

111    Questions 2 and 3 question whether, with respect to the complaints raised in [2] of the grounds which were the subject of failures alleged in [10] of the grounds, AFCA was required to determine the complaints which were within the definition of superannuation complaints as part of the same process (question 2) and at the same time (question 3). The questions will include a consideration of the requirements of the legislation. The conduct of the determination may also involve some element of discretion in the way in which the inquiry is conducted.

112    It is not completely clear whether there is any factual element in the questions posed. For example, would any factual element be involved in the consideration of whether the complaint was a “superannuation complaint”? There may be factual issues around the complaint which was actually made in the communication from the applicant.

113    It is not possible to know, at this early stage, how that might fall. No reasons are outlined in the determination in the passage to which attention has been drawn in [2.6].

114    As appears to have been the case in Raptis (where Gummow J proceeded to deal with the whole matter), those issues are only likely to become clearer after a degree of consideration at a level which would take place if the proceedings were treated as competent.

115    Based on the respondent’s position set out in these reasons, it cannot be said that the amended notice of appeal does not disclose a question of law.

116    As to the grounds of the objection to competency:

1.    It is correct that s 1057(1) of the Act provides that a party may appeal to the Court only on “a question of law” from AFCA’s “determination of the complaint”. I agree that, without such a question of law, the appeal is incompetent.

2.    For the reasons outlined, the amended notice of appeal does state questions of law from the AFCA determination.

3.    (a)    The applicant’s case appears to be that:

(i)    the applicant made a number of separate complaints in or about 18 September 2019;

(ii)    AFCA should have treated each of those complaints as a “superannuation complaint” and investigated; and

(iii)    AFCA failed to make the relevant determinations ([10(d)]-[10(g)] of the grounds; [2.4] of AFCA’s decision).

On that basis, it is tolerably clear that the amended notice of appeal states a question which arises from AFCA’s determination.

The questions regarding whether each of those complaints is a superannuation complaint are not broad inquiries. The questions identify the matters which are said to be complaints – [2(b)]-[2(f)] of the grounds. Question 1 asks specifically whether each of those complaints is a “superannuation complaint” pursuant to s 1053(3) of the Act, having regard to s 1053(5) of the Act. Questions 2 and 3 deal with what AFCA was required to do in relation to the determination, which would only be necessary if there was a superannuation complaint defined. The questions arise from the comments made by AFCA in [2.6] of the determination. The alleged error is identified in [11].

(b)    The questions do not pose an open enquiry.

(c)    Cascading questions can be posed provided they reveal a question of law. For the reasons set out above, I believe it tolerably clear that question 1 involved a specific question of law regarding whether specified complaints fell within the statutory definition of “superannuation complaint” – this was relevant to the obligation on AFCA to hear the complaint and make a determination. The question of law was identified. Questions 2 and 3 flow from the outcome of question 1. This is not open ended in nature – it is logical, given the precondition to the AFCA process is that there exists a superannuation complaint. Questions 2 and 3 need only be considered if the answer to question 1 is in the affirmative, that is, there was a superannuation complaint.

(d)    [10] of the grounds identifies issues associated with the determination ((d)-(g)), [11] of the grounds defines the alleged error, and the questions of law arise from that alleged error in the determination.

(e)    It is possible that the questions are of mixed fact and law. That will not be clear until the position is outlined by the applicant. Again, it seems tolerably clear that, even if there are questions of mixed fact and law, there are questions of law.

117    In the circumstances, the appeal will not be dismissed for want of competency.

Associate:    

Dated:    19 December 2022