David v Superannuation Complaints Tribunal [2006] FCA 389 (7 April 2006)

Last Updated: 10 April 2006

FEDERAL COURT OF AUSTRALIA

David v Superannuation Complaints Tribunal [2006] FCA 389

ADMINISTRATIVE LAW – appeal – whether Federal Magistrate erred in holding that the Superannuation Complaints Tribunal had not failed to make a decision, or delayed unreasonably in making a decision






Administrative Decisions (Judicial Review) Act 1977 (Cth) s 7(1)
Superannuation (Resolution of Complaints) Act 1993 (Cth) s 20












ATHIP GEORGE SANJEY DAVID v SUPERANNUATION COMPLAINTS TRIBUNAL and MR GRAHAM MCDONALD

VID 18 OF 2006














MARSHALL J
7 APRIL 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 18 OF 2006

ON APPEAL FROM A JUDGMENT
OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	ATHIP GEORGE SANJEY DAVID APPELLANT
AND:	SUPERANNUATION COMPLAINTS TRIBUNAL FIRST RESPONDENT MR GRAHAM MCDONALD SECOND RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	7 APRIL 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 18 OF 2006

ON APPEAL FROM A JUDGMENT
OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	ATHIP GEORGE SANJEY DAVID APPELLANT
AND:	SUPERANNUATION COMPLAINTS TRIBUNAL FIRST RESPONDENT MR GRAHAM MCDONALD SECOND RESPONDENT

JUDGE:	MARSHALL J
DATE:	7 APRIL 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 Mr David has a grievance with the Superannuation Complaints Tribunal. The grievance stems from his concern that the Tribunal has not dealt with a complaint he lodged with it to the effect that the trustee of his superannuation fund has not credited his superannuation accounts with the correct figures.

2 Mr David filed an application under s 7(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in this Court. His concern is that the Tribunal has not made a decision dealing with his complaint. He claims to be aggrieved by the failure of the Tribunal to make a decision on the matters raised in his complaint. Mr David named the chairperson of the Tribunal as the second respondent and MLC Nominees Pty Ltd as the third respondent. MLC is the trustee of Mr David’s superannuation fund.

3 Sundberg J transferred the application to the Federal Magistrates Court. The application was heard by Federal Magistrate Phipps on 9 November 2005. On 22 December 2005 his Honour published reasons of judgment dismissing the application. The issue for determination in this proceeding is whether his Honour erred in holding that the Tribunal had not failed to make a decision, or delayed unreasonably in making a decision, in relation to Mr David’s complaint.

4 The Federal Magistrate noted that Mr David lodged his complaint with the Tribunal on 8 February 2005. His Honour also noted the following relevant events, amongst others:

• 14 February 2005 – The Tribunal received a Registration of Complaint Form from Mr David;
• 28 February 2005 – the Assistant Director of the Tribunal allocated the complaint file to a Complaints Analyst;
• 1 March 2005 – the Complaints Analyst issued a notice under s 17 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) to Mr David and the trustee of his superannuation fund;
• 12 April, 20 May and 5 July 2005 – the Tribunal requested certain information from the trustee;
• 1 August 2005 – the Tribunal wrote to Mr David advising him that his complaint was still being investigated and that it had asked for information from the trustee.
• 3 August 2005 – the Complaints Analyst completed the Complaint Report and provided it to the Director for action;
• Later in August 2005, the Tribunal sought legal advice concerning whether the subject matter of Mr David’s complaint was beyond the power of the Tribunal to investigate; and
• On 25 August 2005 Mr David’s application was served on the Tribunal.

5 Since 25 August 2005, the Tribunal has not been able to deal with the complaint due to the operation of s 20 of the Superannuation (Resolution of Complaints) Act 1993 (Cth).

6 Section 20(1) of that Act provides:

"The Tribunal cannot deal with a complaint if a proceeding has been begun in a court about the subject matter of the complaint and the proceeding has not been finally disposed of."

7 The Tribunal was in the course of investigating the complaint by seeking information from the trustee and seeking advice as to the extent of its powers in relation to the complaint when Mr David filed his proceeding, the subject of this appeal. The filing of that proceeding ensured that the Tribunal could not take any further step to investigate the complaint. It was Mr David’s own action in bringing his application which has resulted in nothing further happening in relation to his complaint. The filing of the instant appeal has further prolonged the delay.

8 The Court below correctly determined that the Tribunal had not failed to make a decision. It also correctly determined that the Tribunal had not engaged in unreasonable delay. The only delays which occurred between the lodging of the complaint and the filing of the application arose as a consequence of the time taken for the trustee to respond to the Tribunal’s requests for information.

9 For the above reasons, I consider that the Federal Magistrate made no legal error in dismissing Mr David’s application under s 7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The evidence before his Honour did not establish that the Tribunal had failed to make a decision but rather that Mr David’s own action stymied its efforts to do so. The evidence before the Federal Magistrate also did not disclose any unreasonable delay by the Tribunal.

10 It is appropriate to dismiss the appeal insofar as it affects the first and second respondents. The Court dismissed the appeal against the third respondent on 14 March 2006 when it upheld its notice of motion to strike out the appeal insofar as it affected MLC. The Court made that order because it considered MLC to be an unnecessary party to the appeal.

11 On 14 March 2006 the Court ordered that Mr David pay MLC’s costs. No further costs order is necessary as the remaining respondents took no active part in the appeal.

12 The Court will order that the appeal is dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated: 7 April 2006

The appellant appeared for himself.

There was no appearance by the 1st or 2nd Respondents

Date of Hearing:	7 April 2006
Date of Judgment:	7 April 2006