Federal Court of Australia

Connor v Australian Financial Complaints Authority [2024] FCA 711

ORDERS

THE COURT ORDERS THAT:

1.    The further amended notice of appeal be dismissed.

2.    The parties are to file and serve any submissions as to costs, not exceeding three pages in length, and any affidavits in support, by 4.30 pm on Wednesday, 17 July 2024, and any dispute as to costs will be determined on the papers unless a party seeks an oral hearing.

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

REASONS FOR JUDGMENT

HALLEY J:

A.     Introduction

1    By a further amended notice of appeal, the applicant (more correctly, the appellant), Paul Connor, appeals from a decision of the first respondent, the Australian Financial Complaints Authority (AFCA) pursuant to s 1057 of the Corporations Act 2001 (Cth) (Corporations Act).

2    This appeal raises for resolution the construction of two provisions of the Corporations Act concerning the determination of superannuation complaints by AFCA. First, the meaning to be given to the “contrary to law” stipulation in s 1055(7) of the Corporations Act. Second, the scope and content of appeals that might be made to this Court on a “question of law” pursuant to s 1057(1) of the Corporations Act.

3    Mr Connor is a member of the Commonwealth Superannuation Scheme (CSS), which is managed by the second respondent, the Commonwealth Superannuation Corporation (CSC), as trustee of the CSS.

4    By an error on the part of the CSC, Mr Connor was able to elect to receive a portion of his superannuation benefits as a lump sum upon his retirement. The lump sum was paid to him upon his retirement, at the age of 55. Mr Connor, however, had not reached the relevant “preservation age” of 60 years required under legislation, and therefore this option was not actually available to him and the amount was paid in error.

5    The CSC accepted the error, took steps to disclose the error to affected members (including Mr Connor) and relevant regulators, and ultimately also offered to pay Mr Connor’s Div 293 tax liability in the amount of $1,621.90, that had likely been incurred due to the CSC’s error.

6    Mr Connor, however, believes that he is entitled to further compensation, by way of lost investment earnings, on the basis that he would not have changed his fund earning rate from the “Default” option with a higher risk and higher return, to the “Cash” option with a lower risk and lower return, had he not been provided with and chosen the invalid retirement option that the CSC allowed him to select. Mr Connor sought further information from the CSC, including calculations of his potential investment earnings had he remained under the “Default” option.

7    The CSC declined to provide any further compensation and declined to provide some of the further information requested (CSC’s decisions).

8    Mr Connor made a complaint to AFCA. AFCA issued a determination dated 8 September 2022 (Determination), finding that the CSC’s decisions were fair and reasonable, and affirmed the CSC’s decisions.

9    The principal issue arising on this appeal is whether AFCA made an error of law in forming the opinion that the CSC’s decisions were fair and reasonable in all the circumstances, in relation to:

(a)    the CSC’s decision not to pay Mr Connor any compensation beyond the additional taxation liability of $1,621.90 (Compensation Decision); and

(b)    the CSC’s decision not to provide certain information to Mr Connor (Information Request Decision).

10    Mr Connor seeks for the Determination to be set aside, and for the matter to be remitted to AFCA for determination in accordance with the law.

11    For the reasons that follow, I have determined that the appeal must be dismissed, and AFCA’s determination is to be affirmed.

B.     Background

12    Mr Connor was born in 1965.

13    On 19 January 1984, Mr Connor joined the CSS and made contributions up to his retirement on 2 January 2020.

14    On 10 November 2014, Mr Connor was provided with a formal benefit estimate statement from the CSC, which provided the following retirement benefit options available to him for 31 March 2015: (a) preserved benefit, (b) payment of a transfer value to another eligible scheme, (c) full lump sum with no pension, (d) maximum pension plus refund of productivity component, or (e) standard pension plus refund of member and productivity components.

15    In July 2015, the definition of “preservation age” in the Superannuation Industry (Supervision) Regulations 1994 (Cth) (SIS Regulations) was changed, relevantly for Mr Connor, from 55 years to 60 years, pursuant to the Tax and Superannuation Laws Amendment (Release Conditions for Non-concessional Contributions) Regulation 2015 (Cth).

16    The CSC did not immediately incorporate this definition change in its systems, and therefore, for a period of time, members who had not yet reached the “preservation age”, as amended, were able to select a retirement option to receive their productivity benefit as a lump sum payment, contrary to the requirements in the SIS Regulations. Mr Connor was one of these members.

17    On or about 6 April 2018, Mr Connor changed his investment profile with the CSC from the default option with a higher risk and higher return (Default) to the cash option with a lower risk and lower return (Cash).

18    On 23 August 2019, the CSC provided Mr Connor with another benefit estimate which provided three retirement options available to Mr Connor for 2 January 2020: (a) a preserved benefit, (b) a payment of a transfer value to another eligible scheme, or (c) a full lump sum payment with no pension. Mr Connor elected to take the full lump sum payment with no pension.

19    On 2 January 2020, Mr Connor retired from employment.

20    On 7 January 2020, Mr Connor reached the age of 55.

21    On 15 January 2020, the CSC made a lump sum payment to Mr Connor, in the amount of $128,165.75 (gross).

22    On 27 February 2020, the CSC identified that it had incorrectly interpreted the legislation, and that the lump sum option should have been rolled over until Mr Connor reached his preservation age of 60 years old.

23    By a letter dated 17 March 2020, the CSC reported the error to the Australian Taxation Office (ATO) and requested the Commissioner of Taxation (Commissioner) to exercise their discretion under s 304-10(4) of the Income Tax Assessment Act 1997 (Cth) so that the incorrectly paid lump sum productivity benefits could remain subject to concessional superannuation lump sum tax rates, as opposed to marginal tax rates. This would have the effect that the 306 incorrectly paid members would not incur any negative tax effects because of the CSC’s error. The Commissioner acceded to that request.

24    On 29 July 2020, the CSC notified Mr Connor that the lump sum was incorrectly paid to him, and advised that it had contacted the ATO to seek a tax exemption on Mr Connor’s behalf, which has been approved. The email also noted “[w]e will not be seeking to recover this amount”.

25    On 30 July 2020, Mr Connor responded to the CSC’s email, noting that, (a) he was “seriously surprised”, (b) the assertion that he was erroneously paid the lump sum was “entirely inconsistent” with the information reviewed by him or provided to him in the last several years, (c) he “made several long term plans of [his] finances based on this history of information”, (d) “if there was an error, then it is a systematic failure of your organisation in repeatedly providing false and misleading advice”, (e) he took issue with the fact that he was not immediately advised of the error and instead, the CSC approached the ATO on his behalf without his approval, (f) he may have made more financial decisions which could have affected his situation, and (g) he “resents having a waiver on [his] tax file” due to the CSC’s failure and that he is unclear how this would affect his future dealings with the ATO.

26    Mr Connor requested that the CSC provide him with, (a) a “comprehensive explanation as to how CSC failed in their responsibility to provide accurate information in all of the above listed information exchanges”, (b) all correspondence between the CSC and the ATO regarding the waiver, and (c) all internal correspondence within the CSC as to how the error was identified and how it was decided it would be remediated.

27    On 31 July 2020, the CSC provided a response to Mr Connor’s email. There then ensued a series of correspondence between Mr Connor and the CSC. For present purposes, it is sufficient to note the following correspondences summarised below.

28    On 20 November 2020, the ATO provided Mr Connor with a Div 293 notice of additional tax concession contributions, in the amount of $1,621.90 (Div 293 tax liability).

29    On 25 November 2020, a customer care officer at the CSC emailed Mr Connor, advising that she had been asked to make contact to provide Mr Connor with the details to enable Mr Connor to make a formal complaint with the CSC. The email relevantly provided:

I understand you may desire to raise formal complaint with the Commonwealth Superannuation Corporation (CSC).

If this is the case, would you please respond to this email detailing your concerns and any desired outcome you hope for. Once I have this information I will be able to provide you with a formal complaint acknowledgement and begin investigating your concerns and formulating a response that addresses what you have mentioned.

Alternatively, you may lodge a complaint with the AFCA …

30    On 1 February 2021, Mr Connor responded, repeating his concerns raised in previous correspondence, and seeking the following outcomes:

(a)    assurance from the ATO and the CSC that the ATO acknowledges that the incorrect payment was due to the CSC’s systematic errors and providing incorrect advice;

(b)    assurance that the waiver from the ATO would not affect Mr Connor’s future dealings with the ATO;

(c)    assurance from the ATO, not the CSC, that they will not pursue recovery of the unpaid tax; and

(d)    compensation from the CSC in the form of $20,000, for the “anguish and stress” caused by the CSC.

31    On 10 March 2021, the CSC provided a response to Mr Connor, which among other things, advised that he is entitled to request a change of election to allow his productivity benefit to be converted to an additional non-indexed pension or as a roll over to another superannuation fund, or alternatively, he may decide to take no further action. The letter also noted:

(a)    the waiver is held by the ATO, and that the CSC does not have consent from the ATO to provide the waiver document to Mr Connor;

(b)    the waiver simply exists to indicate that the ATO is prepared to honour the taxation treatment of benefits paid under the arrangement before the CSC identified its error;

(c)    the CSC does not offer compensation unless the CSC is satisfied that there has been a demonstrable financial loss because of the CSC’s acts or omissions, and that compensation is not available for non-economic loss such as inconvenience or pain and suffering;

(d)    if further information is provided to demonstrate there is “some material substance” to Mr Connor’s claim for compensation, then the matter may be referred to the legal team for consideration; and

(e)    if Mr Connor is not satisfied with the response, he may lodge a complaint with AFCA.

32    By an email from Mr Connor sent on 21 June 2021 to the CSC, and others including the ATO, the Australian Prudential Regulatory Authority, and AFCA, Mr Connor, among other things, (a) claimed that his reliance on the incorrect information provided by the CSC caused him to switch from Default to Cash based earnings, which put him in a worse financial position than if he were provided with correct advice, and (b) requested the CSC to provide calculations to ascertain what his benefits would have been if he did not switch from Default to Cash earnings.

33    On 26 July 2021, the CSC responded to Mr Connor stating, among other things, that the CSC does not typically provide its members with calculations of hypothetical benefits, but noted that it would be appropriate to provide these if they are relevant to a valid claim for compensation, and requested further details and evidence with respect to a possible claim for compensation. Mr Connor responded to this letter on 1 August 2021.

34    By way of a letter dated 16 August 2021, the CSC offered to “settle” the matter in the amount of $1,621.90, reflecting the Div 293 tax liability. The letter relevantly provided:

As you are aware, a Division 293 tax liability arises where a person’s total Division 293 income exceeds $250,000 in a given financial year. The tax liability is then calculated on the basis of the person’s concessional superannuation contributions for that year.

…

Had you chosen not to receive your lump-sum productivity benefit … and selected to roll it over to another superannuation fund, you likely would not have exceeded the $250,000 threshold for a Division 293 tax debt. Had you chosen to convert your productivity benefit to a full pension on the other hand, it is likely that you would still have exceeded the threshold and been liable for an amount of Division 293 tax. Nevertheless, CSC is willing to offer compensation of $1,621.90 representing your full Division 293 tax liability for the 2019-20 year.

…

Again, I acknowledge that CSC provided you with incorrect information with respect to you taking your productivity benefit as a lump sum at age 55. The fact remains however, that CSC gave effect to the choice that you made and the assumption that you held based on that information. … Leaving aside the issue of the Division 293 tax liability, CSC ensured you were in the exact same position you would have been in had that information been correct. In these circumstances, it is difficult to see what basis you would have for claiming compensation from a legal standpoint.

I have carefully considered the reasons you put forward for requesting certain hypothetical calculations based on the assertion you would have made different investment choices in respect of your CSS benefits. …

As it stands, I consider that you still have not provided an explanation as to why these calculations are relevant to such an assessment, or why they could be relevant to any claim for compensation.

35    On 26 August 2021, Mr Connor rejected the CSC’s offer, and made a formal complaint to AFCA pursuant to s 1053 of the Corporations Act, claiming that (a) the CSC provided invalid retirement options to him which influenced his investment decisions, (b) in making his investment decisions, one aspect considered by Mr Connor was the immediacy of available cash of the concessional lump sum payment, as it related to his personal financial position, and (c) if correct options had been provided to him, he would not have switched from Default to Cash and would have pursued a more aggressive investment strategy to secure a higher pension in the earlier years of his retirement, as the lump sum would not have been available.

36    On 23 September 2021, Mr Connor and the CSC attended a conciliation session.

37    On 16 December 2021, AFCA issued its recommendation in favour of the CSC, that its decision only to offer compensation for Mr Connor’s Div 293 tax liability is fair and reasonable, and recommending that the CSC credit the amount of $1,621.90 to Mr Connor’s nominated bank account.

C.     AFCA’s Determination

38    On 13 January 2021, Mr Connor rejected AFCA’s recommendation, and accordingly, the matter was referred to determination.

39    On 8 September 2022, AFCA issued its Determination, concluding that the CSC’s decisions were fair and reasonable. By way of summary, AFCA concluded:

(a)    the CSC provided Mr Connor with an invalid retirement option, which he ultimately selected, and which resulted in the CSC incorrectly paying Mr Connor a lump sum amount of $128,165.75, to which Mr Connor should not have had access to until he reached the preservation age;

(b)    once the CSC identified its error, it obtained a waiver from the ATO, which it felt addressed the only financial detriment of its error, but nevertheless, Mr Connor received the notice from the ATO of the Div 293 tax liability, which he believes was attributable to the CSC’s error;

(c)    despite the CSC providing Mr Connor with an invalid retirement option, and releasing funds to him contrary to legislation, it did not seek to retrieve the funds, that is, the invalid retirement option was “honoured” by the CSC;

(d)    having reviewed all the material provided, AFCA was satisfied that the CSC’s offer to compensate Mr Connor in the amount of his Div 293 tax liability, and obtaining a waiver from the ATO, is reasonable in terms of remediating Mr Connor, and rectifies any direct financial loss caused by the CSC’s error;

(e)    Mr Connor is not entitled to any compensation beyond the CSC’s payment of his Div 293 tax liability;

(f)    although an invalid retirement option was provided by the CSC and elected by Mr Connor, the CSC still honoured the invalid option, and as such, any decisions Mr Connor made around the invalid option did not cause him any further detriment, and it is unreasonable for Mr Connor to request further compensation based on outcomes of the other, valid, options, as he did not choose these at the relevant time; and

(a)    in those circumstances, the CSC’s decision not to provide Mr Connor with all his requested information or any further compensation are fair and reasonable in their operation in relation to Mr Connor in all the circumstances.

D.     Legislative framework

40    Part 7.10A of the Corporations Act contains provisions providing for the authorisation of an external dispute resolution scheme.

41    Division 3 of Pt 7.10A of the Corporations Act provides additional provisions relating to superannuation complaints made to AFCA. These provisions mirror provisions in the Superannuation (Resolution of Complaints) Act 1993 (Cth) (Superannuation Complaints Act) that applied to decisions of the predecessor to AFCA with respect to superannuation complaints, the Superannuation Complaints Tribunal (Tribunal).

42    Section 1053(1)(a) of the Corporations Act relevantly provides that a complaint may be made relating to superannuation under the AFCA scheme, if the complaint is a complaint:

(a)     that the trustee of a regulated superannuation fund, an AFCA regulated superannuation scheme or 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 an AFCA regulated superannuation scheme; or

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

that is or was unfair or unreasonable; …

43    Section 1055 of the Corporations Act relevantly provides:

Making a determination

(1)    In making a determination of a superannuation complaint, AFCA has, subject to this section, all the powers, obligations and discretions that are conferred on the trustee, insurer, RSA provider or other person who:

(a)     made a decision to which the complaint relates; or

(b)    engaged in conduct (including any act, omission or representation) to which the complaint relates.

Affirming decisions or conduct

(2)     AFCA must affirm a decision or conduct (except a decision relating to the payment of a death benefit) if AFCA is satisfied that:

(a)     the decision, in its operation in relation to the complainant; or

(b)     the conduct;

was fair and reasonable in all the circumstances.

…

Varying etc. decisions or conduct

(4)     If AFCA is satisfied that:

(a)     a decision (except a decision relating to the payment of a death benefit), in its operation in relation to the complainant; or

(b)     conduct;

is unfair or unreasonable, or both, AFCA may take any one or more of the actions mentioned in subsection (6), but 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.

…

(6) AFCA may, under subsection (4) or (5), do any of the following:

(a)     vary the decision;

(b)     set aside the decision and:

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

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

…

Limitations on determinations

(7)     AFCA must not make a determination of a superannuation complaint that would be contrary to:

(a)     law; or

(b)     subject to paragraph (6)(c), the governing rules of a regulated superannuation fund, an AFCA regulated superannuation scheme or an approved deposit fund to which the complaint relates; or

(c)     subject to paragraph (6)(d), the terms and conditions of an annuity policy, contract of insurance or RSA to which the complaint relates.

44    Section 1057 of the Corporations Act provides:

(1)     A party to a superannuation complaint may appeal to the Federal Court, on a question of law, from AFCA’s determination of the complaint.

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

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

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

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

(4)     Without limiting subsection (3), the orders that may be made by the Federal Court on an appeal include:

(a)     an order affirming or setting aside the determination of AFCA; and

(b)     an order remitting the matter to be determined again by AFCA in accordance with the directions of the Court.

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

E.     Principles on appeal

45    An appeal to the Federal Court from a determination made by AFCA is on a question of law, not judicial review of a decision made by a superannuation trustee. The Court is limited to determining whether AFCA erred in law: Wan v BT Funds Management Ltd and Ors (2022) 160 ACSR 81; [2022] FCA 302 at [87] (Anastassiou J); Rauchle v Q-Super Board [2022] FCA 1537 at [79] (Thomas J).

46    The Full Court of this Court explained in Board of Trustees of the State Public Sector Superannuation Scheme v Edington (2011) 119 ALD 472; [2011] FCAFC 8 at [36] (Kenny and Lander JJ) in relation to the application of s 46(1) of the Superannuation Complaints Act to the former Tribunal:

The jurisdiction invoked by Mr Edington in the proceeding before the primary judge was that conferred by s 46(1) of the Complaints Act, which provides that a party to a proceeding before the tribunal may appeal to the Federal Court on a question of law. 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: see, for example, Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 12 (Sharp) per Davies and Beazley JJ and at 162 per Hill J. 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: see Sharp at 12.

(Emphasis in original.)

47    As Thomas J set out in Rauchle at [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.

48    In considering whether a question of law has been identified, it is necessary to review the whole of the context in which the decision was made: Rauchle at [94]. As Thomas J explained in Rauchle at [95]-[97]:

[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.

49    The “determining factor” for AFCA in making a determination is not the lawfulness of the decision, but its fairness or reasonableness in its operation in relation to the complaint: QSuper Board v Australian Financial Complaints Authority (2020) 276 FCR 97; [2020] FCAFC 55 at [64]-[65] (Moshinsky, Bromwich and Derrington JJ). This standard confers “wide decisional freedom” such that “a broad range of decisions might legitimately be made from a single set of facts”: QSuper at [64].

50    In Rushton v Commonwealth Security Corporation (No 3) [2021] FCA 358 at [50], Rares J said:

The determining factor for the exercise of the Authority’s powers under s 1055(3) is not the lawfulness of the trustee’s decision, but its fairness and reasonableness in relation to the complainant and any joined person. However, s 1055(7) requires that, if it grants a remedy under s 1055(5), the Authority must exercise the powers of the trustee within legal confines and does so in accordance with the terms of the trust deed and any applicable statutory provisions.

(Citations omitted.)

F.     Grounds of appeal

51    Mr Connor identified the following questions of law for determination in the further amended notice of appeal:

1.    Whether the First Respondent (by its Ombudsman) failed to consider submissions of substance, adequately or at all, which were capable of affecting the outcome of the complaint, contrary to law.

2.    Whether the Determination is contrary to law and therefore contravenes s 1055(7)(a) of the Corporations Act 2001 (Cth).

3.    Whether the Determination failed to have regard to relevant legal principles.

4.    Whether the Determination was plainly unjust or lacked an evident and intelligible justification and therefore was legally unreasonable.

5.    Whether the Determination was illogical and irrational.

52    Mr Connor relied on the following grounds of appeal:

1.    The Determination did not address and resolve the Applicant’s ‘principal complaint’ regarding the selection of his ‘Investment Profile’ in April 2018 in reliance on the wrong information the Second Respondent provided to him in relation to his superannuation options upon retirement.

2.    The Determination concluded that because the Second Respondent ‘honoured’ the incorrect advice they provided the Applicant, he therefore cannot have suffered any financial loss (other than the Division 293 debt which they compensated him for) as a result of the wrong advice or information he was provided (the conclusion re loss) and therefore the decision not to provide him with further compensation or the information he had requested was fair and reasonable.

3.    The conclusion re loss is:

a.    is contrary to the clearly established legal principle relating to damages for tortious acts or omissions;

b.    failed to refer to or correctly apply this relevant legal principle and thereby amounted to a misunderstanding of the law;

c.    is therefore ‘contrary to law’ and s 1055(7)(a) of the Corporations Act 2001 (Cth);

d.    is plainly unjust and lacks an evident and intelligible justification and therefore is legally unreasonable; and

e.    is illogical and irrational; and

f.    amounts to an error of law justifying relief pursuant to s 1057 of the Corporations Act 2001 (Cth).

53    In substance, Mr Connor raised three grounds (a) AFCA’s determination was “contrary to law”, (b) AFCA’s determination was unreasonable, illogical and irrational, and (c) AFCA did not consider submissions of substance, being his complaint regarding the selection of his investment profile in April 2018 (from Default to Cash), which he characterised as his “principal complaint”.

F.1.     Contrary to law ground

54    In this ground, Mr Connor contends that AFCA’s conclusion that Mr Connor did not suffer any financial loss other than the Div 293 tax liability, and the corresponding Information Request Decision, is contrary to “clearly established legal principle relating to damages for tortious acts or omissions”, and is therefore “contrary to law” pursuant to s 1055(7)(a) of the Corporations Act.

F.1.1.     Mr Connor’s submissions

55    Mr Connor submits that AFCA’s conclusion that because the CSC “honoured” the incorrect advice he could not have suffered any financial loss was contrary to law in that it failed to enunciate or correctly apply the common law principles relevant to this conclusion.

56    Mr Connor submits that this is the same type of error McElwaine J considered in Sharma v H.E.S.T. Australia Ltd (2022) 159 ACSR 635; [2022] FCA 536 at [93]-[96]. He seeks to rely on the statement by McElwaine J in Sharma at [96] where his Honour suggested, in obiter, that AFCA had contravened the implicit requirement of s 1055(7) by not correctly identifying and stating the relevant legal principle. He submits that by analogy to the position in Sharma, AFCA had misunderstood the limits of its statutory jurisdiction, because of its conclusion that Mr Connor could not have suffered any financial loss, without correctly identifying and stating the relevant legal principles or otherwise demonstrating that it correctly understood the law to be applied.

57    Mr Connor submits that the CSC accepted, and AFCA determined, that the CSC incorrectly advised Mr Connor in relation to the superannuation options available to him upon retirement. Mr Connor submits that the possibility of this amounting to a negligent misstatement therefore clearly arises. He also submits that the CSC’s failure to update its forms, processes and payment systems to prevent Mr Connor and other members from being able to wrongly rely on and select an invalid option also raises the possibility of the negligent infliction of economic loss.

58    Mr Connor submits that it is clearly settled law that an award of damages in tort seeks to restore the plaintiff to the position in which they would have been if the wrongful act and not been committed. Mr Connor submits that (a) this principle applies to damages for negligent misstatement as well as other torts, and (b) the compensable loss arising from a negligent misrepresentation is that resulting from the change of position the misrepresentation induces, rather than what would have been the position if the misrepresentation had in fact been correct.

59    Mr Connor submits that the loss he potentially suffered because of the CSC’s acts and omissions is the difference between the position he is in now, and the position he would have been in if the wrong information had not been provided. On this counterfactual, Mr Connor submits he would not have changed from the Default option to the Cash option, but would instead have pursued a more aggressive investment strategy to secure a higher pension in the earlier years of his retirement.

60    Mr Connor submits that both the CSC and AFCA wrongly proceeded on the basis that because the CSC “honoured” the incorrect advice, he therefore could not have suffered any financial loss other than the Div 293 tax liability for which they had compensated him. Mr Connor submits that this conclusion is contrary to the clearly established legal principle relating to damages for tortious acts or omissions.

61    Mr Connor submits that as this conclusion was the basis for both the Compensation Decision and the Information Request Decision, the Determination is “contrary to law” and one that AFCA was unable to make.

F.1.2.      AFCA’s submissions

62    AFCA limited its submissions to matters concerning its powers and procedures, and made no submissions concerning Mr Connor’s arguments in relation to the claimed deficiencies with the Determination, consistently with the principle stated by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).

63    AFCA submits that to the extent that Mr Connor is contending that AFCA would be acting “contrary to law” if it failed to render the same outcome that would have occurred had a complaint been pursued through traditional inter partes litigation in a Court, the contention is not consistent with the proper construction of the Corporations Act and is inconsistent with the policy underlying the AFCA scheme, for the following principal reasons.

64    First, AFCA submits that the process required by s 1055 of the Corporations Act does not adjudicate on existing legal rights in the sense understood in traditional inter partes litigation, nor is it concerned with the legality or the veracity of the exercise of power by the CSC. AFCA submits that it is only concerned with the manner in which the decision operates in practice. AFCA submits that its powers are directed to the identification and then (if identified) the removal of any unfairness or unreasonableness in the practical operation of a decision. It is not a judicial determination.

65    Second, AFCA submits that the power conferred on it by s 1055(4) of the Corporations Act involves a discretionary power exercisable upon fulfilment of a subjective jurisdictional fact, namely whether AFCA is satisfied that unfairness and/or unreasonableness exists. It submits that if it does not identify unfairness or unreasonableness, it is required to affirm the decision.

66    Third, AFCA submits that its statutory task is to identify whether the impact of a trustee’s conduct is fair or reasonable, not whether the trustee’s reasoning leading up to that conduct was correct at law, or to adjudicate potential common law claims as between the trustee and the complainant.

67    Fourth, AFCA submits that subject to governing rules, a trustee’s decision to deny liability for a potentially meritorious legal claim may be unfair or unreasonable, and may be so where the complainant has a strong legal basis to claim damages, but that does not mean that a decision to deny liability is “contrary to law” within the meaning of s 1055(7)(a) of the Corporations Act. It submits that the proper construction of a determination which is “contrary to law” is a determination which would oblige the trustee to act in a matter which contravenes the law.

68    Fifth, AFCA submits that a decision which does not apply certain legal principles may still be considered to be fair and reasonable in relation to its application to a complainant.

69    Sixth, AFCA submits that if s 1055(7)(a) of the Corporations Act required it to rigidly determine a complainant’s rights in the style of an adjudication of legal rights, this may deprive AFCA of the ability to craft remedies which exceed those available through conventional judicial means. AFCA submits that such a result would be contrary to the policy underpinning the AFCA scheme.

F.1.3.     The CSC’s submissions

70    The CSC submits that AFCA is not a tribunal or a court that determines or adjudicates between legal or equitable rights of a trustee and a complainant and therefore in reaching a state of satisfaction that a decision is fair and reasonable it is not required to apply a potential common law principle that might be available.

71    The CSC submits that “contrary to law”, for the purposes of s 1055(7) of the Corporations Act, is to be construed as extending to matters such as acting contrary to statutory and contractual provisions, making findings of fact in the absence of any evidentiary support, failing to provide procedural fairness, acting on wrong principles of law and failing to take account of relevant mandatory principles and unreasonableness. It submits that in the present case, there is no suggestion of a contract or trust deed being misinterpreted or misapplied and the only ground potentially available to Mr Connor is unreasonableness.

72    The CSC submits that up until July 2015, the retirement option for Mr Connor to receive his benefits as a lump sum was a valid one. The CSC submits that the estimate provided to Mr Connor in November 2014, upon which he relied in changing his investment from the Default option to the Cash option, was not affected by any error. The CSC submits that Mr Connor did not seek financial advice (general or personal) prior to changing his investment.

73    The CSC submits that Mr Connor sought a wide range of information from the CSC, including (a) all correspondence between the CSC and the ATO regarding the error, (b) all internal correspondence within the CSC regarding the error, (c) details of advice provided to the board of directors, (d) written responses to a significant number of questions relating to the error, (e) documents which Mr Connor had misplaced, (f) calculations by the CSC of Mr Connor’s hypothetical benefits if he repaid the lump sum and had not switched from the Default option to the Cash option, and (g) historical metadata demonstrating how many times Mr Connor accessed the CSC website and recording the various scenarios Mr Connor executed on the “i-Estimator” system. The CSC submits that while it sought to respond to many of these queries where possible, a number of these requests were inappropriate or would have been unduly burdensome for the CSC to respond to.

74    The CSC submits that Mr Connor proceeds on a misunderstanding of the role of AFCA and the jurisdiction of this Court to review its determinations.

75    The CSC submits that s 1055(7) of the Corporations Act does not limit AFCA to make determinations strictly in compliance with the law, let alone specifically in accordance with compensation principles applicable to the tort of negligent misstatement.

76    The CSC submits that whether a court properly assessing the strict legal rights and liabilities of the parties may have reached a different conclusion is insufficient to demonstrate that a decision is “contrary to law”.

F.1.4.     Consideration

77    The contention that AFCA must apply legal and equitable principles applicable to the determination of compensation in negligent misstatement cases in determining whether a decision is fair and reasonable for the purposes of s 1055 of the Corporations Act is not supported by the text, context or legislative purpose of that provision and the other provisions in Div 3 of Pt 7.10A of the Corporations Act.

78    The statutory text of s 1055 of the Corporations Act is directed at the concepts of “fairn[ess]” and “reasonable[ness]”.

79    Most relevantly, ss 1055(2), (4) and (6) of the Corporations Act provide that AFCA (a) must affirm a decision or conduct if it is satisfied that the decision or conduct was “fair and reasonable in all the circumstances”, and (b) may, if it is satisfied that a decision or conduct is “unfair or unreasonable, or both,” vary or set aside the decision, and (c) may only vary or set aside a decision for the purpose of placing the complainant, as nearly as practicable, in such a position that any “unfairness, unreasonableness, or both” no longer exists.

80    Placing a complainant in a position where, as nearly as practicable, any unfairness or unreasonableness no longer exists does not carry with it any necessary implication that the concepts of fairness and reasonableness are constrained by equitable and common law principles for the assessment of loss.

81    Further, s 1055(7) of the Corporations Act provides that AFCA must not make a decision that “would be contrary to law”. It is a negative stipulation, it does not impose a positive obligation to make determinations consistently with any legal and equitable principles. It naturally speaks to the terms of the relevant trust deed or statutory provisions, as identified by Rares J in Rushton at [50].

82    The Revised Explanatory Memorandum to the Treasury Laws Amendment (Putting Consumers First – Establishment of the Australian Financial Complaints Authority) Act 2018 (Cth) stated that (a) the AFCA scheme will provide a “fast and fair” resolution of disputes between consumers and providers of financial and credit services (at [1.4]), (b) the AFCA scheme will be based on an ombudsman model (at [1.14]), (c) AFCA members will be contractually bound to comply with AFCA’s operating rules (at [1.15]), (d) although the operational aspects of the AFCA scheme will be based on contractual obligations between AFCA and the financial firms who are members of the scheme, AFCA will be provided with certain statutory powers to enable it to manage superannuation complaints effectively (at [1.25]), and (e) a right of appeal on a question of law to the Federal Court will be maintained for superannuation complaints given the compulsory nature of superannuation and the obligation imposed on trustees to act in the best interests of all the beneficiaries of a fund (at [1.36]).

83    The predecessor to s 1055(7) of the Corporations Act, was the former s 37(5) of the Superannuation Complaints Act. As explained at [41] above, the decision maker under the Superannuation Complaints Act, was the Tribunal. The decision making framework that applied to the Tribunal is materially indistinguishable from the framework that applies to AFCA, including s 1055(7) of the Corporations Act, with respect to superannuation complaints.

84    Section 37(5) of the Superannuation Complaints Act provided:

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

85    As Allsop J explained in Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359; [2001] FCA 1330:

[21]     The central task of the Tribunal was to review the decision of the Trustee and, since the Insurer had been joined under s17A and s18, to review any decision of the Insurer: para37(2)(a). In carrying out this task the Tribunal had all the powers, obligations and discretions conferred on the Trustee and the Insurer: para37(1)(a) and para37(2)(b). In carrying out this task the Tribunal was required to make a determination in accordance with subs37(3). The Tribunal's task was to decide for itself whether the Trustee's decision and any decision of the Insurer was and is unfair or unreasonable. This flows from, first, the nature of the subject matter of review - a complaint under subs14(2) as to the unfairness or unreasonableness of the Trustee's decision, secondly, the exhaustive universe of possible determinations in subs37(3), thirdly, the nature of the limitations on the exercise of the powers in subs37(3) set out in subs37(4) and, fourthly, the requirement under subs37(6) to affirm the decision under subs37(3) if the Tribunal is satisfied that the decision in its operation in relation to the complainant was fair and reasonable in the circumstances.

[22]    While the determination of the Tribunal was required to be predicated upon its view as to whether the relevant decision was unfair or unreasonable, the Tribunal was enjoined by subs37(5) from doing anything under subs37(3) that would be contrary to law, or to the governing rules of the fund or to the terms of the relevant insurance policy, here the Prudential policy.

…

[27]    The task of the Tribunal and the meaning of the phrase “unfair or unreasonable” are inextricably intertwined and both are governed by the Act, and, especially, by s37. It is the decision of the Trustee, recognising its obligation to act in conformity with the governing rules of the fund, and the decision of the Insurer, recognising its obligation (and entitlement) to act in conformity with the terms of the relevant policy, which must be reviewed for unfairness or unreasonableness. The unfairness or unreasonableness must be of the decision (as expanded by s4) under, and in conformity with, the governing rules or the terms of the policy. It is not some other perceived (rightly or wrongly) unfairness or unreasonableness in and about the conduct of the fund.

[28]    The question as to whether a decision was unfair or unreasonable cannot be judged otherwise than by having regard to the conformity of the decision with the governing rules of the fund and the terms of the policy. The conformity of the decision with those matters is therefore a relevant consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-40 and see Telstra Corp Ltd v Seven Cable Television Pty Ltd (2000) 178 ALR 707 (special leave refused on 20 August 2001). If conformity with the governing rules or the terms of the policy required the very decision, which was made, to be made, the strictures of subs37(5), the universe of possible conduct under subs37(3) and the balance of the Act, including subs37(6), would require a conclusion of the Tribunal that the decision was not unfair or unreasonable. It could not be otherwise, as it would, on this hypothesis, be the only decision capable of being reached by the Trustee or the Insurer in the light of the governing rules or terms of the policy; or, put another way, any determination under para37(3)(b), para37(3)(c) or para37(3)(d) would involve the Tribunal doing an act contrary to the governing rules or the terms of the policy.

…

[31]    The Tribunal’s task is not to engage in ascertaining generally the rights of the parties, nor is it to engage in some form of judicial review of the decision of the trustee or insurer. Rather it is to form a view, from the perspective of the trustee or insurer, as to whether the decision of either was (recognising the overriding framework given by the governing rules and policy terms, respectively) unfair or unreasonable.

86    Requiring AFCA not to make a decision that is contrary to the governing rules of a fund and the terms of a policy falls squarely within the rubric of making decisions that are not contrary to law. Such obligations are fundamentally different to requiring AFCA, when assessing whether a decision is fair and reasonable, to apply legal and equitable principles relevant to the determination of compensation for negligent misstatement and analogous torts.

87    Mr Connor has sought to invoke the informal, no cost, simplified dispute resolution procedure provided by the AFCA Scheme. AFCA is not conferred with the power to adjudicate legal claims as a Court would, nor was it intended that AFCA would perform the functions and role of a Court. Mr Connor remains free to pursue a conventional legal claim against the CSC in the courts.

88    Further, and in any event, by not requiring Mr Connor to repay the lump sum for the productivity benefit, notwithstanding that he had not yet obtained the “preservation age”, the CSC honoured, and therefore in effect, corrected the erroneous advice constituting the negligent misstatement or alternatively corrected the erroneous assumption that might have otherwise given rise to a promissory estoppel. Given that the CSC has compensated Mr Connor and otherwise sought a waiver from the ATO for any adverse taxation implications arising from the decision by the CSC to honour the invalid election, subject to the alleged further compensation sought by Mr Connor that I address below, he has not suffered any loss by reason of the decision of the CSC not to require him to repay the lump sum productivity benefit.

89    The position may have been very different had the CSC demanded a return of the lump sum productivity benefit, or not provided compensation to him for adverse taxation implications, or had the Commissioner refused to exercise their discretion for the payment to be taxed at concessional rates rather than marginal rates.

90    Moreover, Mr Connor’s reliance on the obiter remarks of McElwaine J in Sharma at [95] do not provide any support for the proposition that AFCA must have regard to legal principles relating to damages for tortious acts or omissions. His Honour’s remarks were directed at the narrow proposition that to speculate as to what the law might be, in that case potential additional common law or equitable rights, does not establish that AFCA would have correctly understood the law applicable to the issue to be considered.

91    Nor do the following observations by McElwaine J in Sharma at [96] provide any support for that proposition:

Moreover, the statutory requirement not to make a determination of a superannuation complaint that would be contrary to law (s 1055(7)) implicitly requires that AFCA, where it considers a legal principle to be relevant to its decisional task, proceed by correctly identifying and stating the principle in order to comply with that obligation.

92    The requirement to identify and state a legal principle correctly is stated to arise only when AFCA considers it to be relevant to its “decisional task”. Relevantly, AFCA’s decisional task is to determine whether the decision is fair and reasonable in all the circumstances. The focus of the enquiry, as explained in QSuper at [64] is the fairness or reasonableness of the decision in its operation in relation to the complainant. So much is made clear by the terms of s 1055(2) and s 1055(4) of the Corporations Act. The enquiry is not directed at the process by which a decision may have been reached. Section 1055(7) of the Corporations Act mandates that AFCA must not make a decision, that is a determination of a superannuation complaint, that would be contrary to law. It does not speak to the process by which that decision may have been reached.

93    For the foregoing reasons, AFCA was not required to apply or otherwise have regard to legal principles relating to damages for tortious acts or omissions in determining whether a decision of the CSC was fair and reasonable in all the circumstances. As this erroneous proposition was the basis for the contention that AFCA erred in law in making the Compensation Decision and the Information Request Decision, it follows that the “contrary to law” ground is not made out.

F.2.     Unreasonable, illogical and irrational ground

94    In this ground, Mr Connor contends that the Determination is plainly unjust and lacks an evident and intelligible justification and therefore is legally unreasonable, and is illogical and irrational.

F.2.1.     Relevant principles

95    The relevant principles for setting aside a decision on the ground of legal unreasonableness are well established.

96    The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [63] (Hayne, Kiefel and Bell JJ).

97    In Li, the plurality said at [76]:

As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

(Footnotes omitted.)

98    The Determination can also be set aside if it is unreasonable in the Wednesbury sense: Rauchle at [89]. The test is such that the decision maker’s opinion must not be unreasonable, in that it must be an honest opinion at which a reasonable person could honestly arrive in a bona fide and rational exercise of its powers: Investors Exchange Ltd v Australian Financial Complaints Authority Ltd [2020] QSC 74 at [26]-[27] (Applegarth J).

99    A decision which is “illogical” or “irrational” is one at which no rational or logical decision maker could arrive on the same evidence. It is an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary”, “capricious” or “unreasonable”: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130] (Crennan and Bell JJ). As Crennan and Bell JJ said in SZMDS at [135]:

Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

F.2.2.     Mr Connor’s submissions

100    Mr Connor submits that AFCA’s conclusions that Mr Connor did not suffer any financial loss other than the Div 293 tax liability, and that it was fair and reasonable for the CSC not to provide the information and calculations requested by him, are contrary to the clearly established legal principle relating to damages for tortious acts or omissions.

101    Mr Connor also submits that the refusal by the CSC to provide him with various information that he had requested, including the number of times that he had signed on to the i-Estimator system of the CSC, place him in an impenetrable and unfair “catch 22”. He submits that he needed the information to (a) demonstrate that he would not have made the decision to switch from the Default option to the Cash option had he not been offered the invalid productivity benefit lump sum option, and (b) calculate the amount of his loss had he otherwise remained in the Default option. He submits that the information in the i-Estimator system would show the retirement option scenarios he was running, the assumptions he was making, the calculations that he was undertaking and how the incorrect option (productivity benefit lump sum) presented to him was affecting his overall retirement decisions, in particular, the decision to move from the more aggressive Default option to the more conservative Cash option.

102    Mr Connor submits that for the foregoing reasons, the Compensation Decision and Information Request Decision were plainly unjust and lacked an evident and intelligible justification and therefore were (a) legally unreasonable in the manner articulated in Li; Minister for Immigration & Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 at [64]-[65] (Allsop CJ, Griffiths and Wigney JJ), and (b) were illogical and irrational, in the sense stated in SZMDS at [135]; Ekinci v Civil Aviation Safety Authority (2014) 227 FCR 459; [2014] FCAFC 180 at [72] (Bennett, Nicholas and Griffiths JJ).

103    Mr Connor submits that the Determination can also be set aside if it is unreasonable in the Wednesbury sense. Mr Connor submits that the CSC’s submissions as to why the Determination should not be set aside on this basis are unpersuasive, because they do not address Mr Connor’s central complaint and therefore do not provide support for AFCA’s conclusion that the Compensation Decision and Information Request Decision were fair and reasonable.

F.2.3.     The CSC’s submissions

104    The CSC submits that a reasonable decision maker could form the opinion that the Compensation Decision and the Information Request Decision were fair and reasonable in all the circumstances, for the following reasons.

105    First, the CSC submits that the benefit estimate provided in 2014 which Mr Connor relied on in changing his investment from the Default option to the Cash option did not contain an error at the time that was provided to him.

106    Second, the CSC submits that Mr Connor had elected to access a portion of his benefits as a lump sum, even though he had the other valid retirement options available to him. It submits that Mr Connor did not seek personal financial advice in making this election.

107    Third, the CSC submits that it had offered to pay, and has now paid, Mr Connor’s Div 293 tax liability for FY2019-20.

108    Fourth, the CSC submits that on multiple occasions between March and July 2021, the CSC informed Mr Connor that he could repay the lump sum and change his election to a valid option, allowing his productivity benefit to be converted to a pension. The CSC submits that while it declined to perform and provide him with additional calculations of his hypothetical performance under alternative investment options, (a) the information required to perform these calculations is publicly available on the CSC’s website and was in fact used by Mr Connor in preparing his response to AFCA’s preliminary assessment, and (b) the CSC indicated that it would consider providing calculations if he provided further information to the CSC, but Mr Connor did not do so.

109    The CSC submits that in these circumstances, and mindful of the “wide decisional freedom” imported into the concepts of fairness and reasonableness, it was open to a decision maker acting reasonably to form the requisite opinion and affirm the CSC’s decisions. The CSC submits that the Determination does not “lack an evident and intelligible justification” and is not unreasonable in the Wednesbury sense.

F.2.4.     Consideration

110    Mr Connor’s contentions that the Determination was unreasonable, illogical or irrational are principally advanced on two grounds, neither of which has been established.

111    First, that AFCA was required to apply legal and equitable principles governing the assessment of loss for negligent misstatement and other tortious conduct. For the reasons explained above in response to the contrary to law ground, that ground is misconceived.

112    Second, that AFCA failed to address in the Determination Mr Connor’s principal complaint. For the reasons explained below in response to AFCA’s alleged failure to address the further loss alleged to have arisen from his decision to switch from Default to Cash, that ground is also misconceived.

113    Further, in circumstances where the CSC has honoured Mr Connor’s selection of the invalid option to take the productivity benefit as a lump sum and compensated him for any additional taxation liability he might otherwise have incurred, the conclusion that the CSC’s decision was fair and reasonable in its operation to Mr Connor in all the circumstances was not a decision lacking any evident or intelligible justification, an illogical or irrational decision or a decision that no reasonable decision maker could make.

114    Nor, did the “catch 22” challenge made by Mr Connor to the Information Request Decision establish that it lacked any evident or intelligible justification, was an illogical or irrational decision or a decision that no reasonable decision maker could make. The CSC did not provide all of the information requested by Mr Connor on the basis that it would only provide members with information from the i-Estimator to the extent that it was relevant to a valid claim for compensation, the information would be time consuming to retrieve and would not assist Mr Connor in demonstrating he would not have switched from the Default option to the Cash option. The explanation provided by the CSC, in particular the last proposition, appears to be coherent, compelling and logical. The information sought by Mr Connor to demonstrate how he relied on the “incorrect advice” would have relevantly disclosed scenarios, assumptions and calculations being undertaken by him on the understanding that he was entitled to receive a productivity benefit lump sum payment, not on the basis that such a lump sum payment was not available.

115    It follows that the unreasonable, illogical and irrational ground has not been made out.

F.3.     Principal complaint ground

116    In this ground, Mr Connor alleges the Determination did not address and resolve his “principal complaint” regarding the selection of his investment profile in 2018, when he changed from the Default option to the Cash option, in reliance on the wrong information provided to him by the CSC.

117    A failure to respond to a substantial, clearly articulated argument relying upon established facts is at least to failure to afford natural justice: Danichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 197 ALR 389; [2003] HCA 26 at [24] (Gummow and Callinan JJ); SZRBA v Minister for Immigration and Border Protection (2014) 142 ALD 211; [2014] FCAFC 81 at [11] (Siopis, Perram and Davies JJ).

F.3.1.     Mr Connor’s submissions

118    Mr Connor submits that further matters were raised with AFCA that were central to his complaint, and therefore constituted submissions of “substance” that were “worthy of serious consideration”. These matters were alleged to be:

(a)    factors that Mr Connor was considering when making his investment decision including the immediacy of available cash of the concessional taxed lump sum payment on retirement as it related to his personal financial position and other aspects such as his health; and

(b)    if correct options had been provided to him at the time of deciding to switch his investment from Default to Cash, he would not have done so and would have pursued a more aggressive investment strategy to secure a higher pension in the earlier years of his retirement, as the lump sum would not have been available.

119    Mr Connor submits that these submissions were not addressed and resolved by the Determination, and therefore this amounts to a further error of law, citing Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 (Robertson J); SZRBA; Australian Postal Corporation v Hughes (2009) 111 ALD 579; [2009] FCA 1057 (Flick J).

120    Mr Connor submits that while AFCA’s Determination cited the matters central to his complaint, it was in no way addressed or resolved by the Determination. Mr Connor submits that the suggestion that he had presumably selected the invalid option the CSC had wrongly presented to him “because he felt it most suited his needs at the time of election” says nothing whatsoever about his principal complaint.

121    Mr Connor submits that the basis upon which this error permits the Court to interfere is that a failure to address such a central complaint is a denial of procedural fairness and a constructive failure to exercise jurisdiction. Mr Connor submits that such a jurisdictional error entitles him to relief pursuant to s 1057 of the Corporations Act.

F.3.2.     The CSC’s submissions

122    The CSC submits that the basis upon which this error, if established, would permit this Court to interfere is not identified.

123    The CSC submits that AFCA plainly took the matters into account in making the Determination.

124    The CSC submits that the totality of the reasons must be considered before drawing an inference that matters have not been considered, and “not with an eye clearly focus on an ear keenly attuned to the perception of error”.

125    The CSC submits that when looking at AFCA’s reasons for its Determination as a whole, it is clear that it considered the matters raised by Mr Connor, but was persuaded that the outcome of Mr Connor retaining the lump sum he selected and valued, with no adverse tax consequences, was fair and reasonable in all the circumstances.

F.3.3.     Consideration

126    Decisions of AFCA are not intended to resemble curial decisions and must be read fairly and broadly and not analysed “minutely and finely with an eye keenly attuned to the perception of error”: QSuper at [89], citing Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

127    In my view, read in that context, AFCA not only identified the alleged submissions of substance but also addressed and resolved them in the Determination.

128    AFCA acknowledged in the Determination that Mr Connor’s contentions included a further claim for compensation arising from “his decision to change his investment option to Cash in April 2018, based on the trustee’s invalid retirement option he chose”. Moreover, AFCA included in the Determination the following claim made by Mr Connor:

As the invalid Option 2A provided by the IE appeared to provide greater funds at 55, this was a key influence in [complainant’s] decision to switch from the Default category to the Cash category for the fund earning rate. Had 2A not been provided, it is indisputable that [complainant] would have maintained his aggressive investment strategy (Default) in order to maximise his benefits at 55, ie a bigger pension as no lump sum option was legally available without a rollover to 60.

129    AFCA rejected the claim for further compensation on the basis that given the CSC had honoured the invalid option “[i]t is unreasonable for the complainant to request further compensation based on outcomes of the other, valid options, as he did not choose those at the relevant time” and “the complainant cannot use the benefit of hindsight to say he would have chosen another option at the time, when he in fact did not when these were available to him”.

130    AFCA’s reasoning, that appears at the top of page 3 of the Determination, must be read in the context of its articulation of Mr Connor’s further claim for compensation at the foot of page 2 of the Determination. Read together, it is tolerably clear that AFCA is saying that it rejected the claim for further compensation for the switch from Default to Cash because the selection of the invalid option “was a key influence” to make that switch and at the time was assessed by Mr Connor as the most beneficial option for him to select. When faced with a choice, that included both the invalid option and valid options, Mr Connor chose the invalid option and made a consequential decision to switch from Default to Cash. The rationale for the switching decision advanced by Mr Connor was the benefits achieved by the invalid “Option 2A”, as is evident from his assertion that had the option not been provided it is “indisputable” that he would have maintained his “aggressive investment strategy” and remained in the Default option because no lump sum would have been available until he was 60. Given that the CSC has now honoured the invalid option, AFCA concluded that the decision not to provide the further compensation was fair and reasonable in its operation in relation to Mr Connor in all the circumstances.

131    It follows that the principal complaint ground has also not been made out.

G.     Disposition

132    For the foregoing reasons, the further amended notice of appeal is to be dismissed.

133    I note that in the event that Mr Connor was unsuccessful, AFCA has foreshadowed that it would not seek a costs order against Mr Connor, but the CSC has asked to be heard on costs and Mr Connor has indicated he should not be ordered to pay the costs of the CSC. The parties will each be permitted to file and serve short written submissions, together with any affidavit evidence on which they seek to rely, in support of any costs orders which they seek.

Associate:

Dated:    3 July 2024