Military Superannuation & Benefits Board of Trustees No 1 v Drake [2003] FCA 78 (18 February 2003)

Last Updated: 18 February 2003

FEDERAL COURT OF AUSTRALIA

Military Superannuation & Benefits Board of Trustees No 1 v Drake

[2003] FCA 78

SUPERANNUATION - complaint to Superannuation Complaints Tribunal - whether the complaint to the trustee was about the same subject matter as the complaint to the Tribunal - whether a determination by the Tribunal to vary or substitute a decision of the trustee is invalid if it is not authorised by the rules of the Trust Fund - whether a determination is invalid when it relies upon a head of power that did not authorise the determination and does not rely upon a head of power that could have authorised the determination

Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 4(b), 19(1)(a) and 37

Briffa v Hay (1997) 75 FCR 428 - considered

Seafarers' Retirement Fund Pty Ltd v Oppenhuis [1999] FCA 1683; (1999) 94 FCR 594 - considered

Lykogiannis v Retail Employees Superannuation Board [2000] FCA 327; (2000) 97 FCR 361 - cited

Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330 - cited

Collins v AMP Superannuation Ltd (1997) 75 FCR 565 - cited

MILITARY SUPERANNUATION AND BENEFITS BOARD OF TRUSTEES NO 1 v PHILIP GRAHAM DRAKE

V 691 OF 2001

MERKEL J

18 FEBRUARY 2003

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 691 OF 2001

On Appeal from the Superannuation Complaints Tribunal constituted by Ms Carol Foley, Acting Deputy Chairperson, Ms Katy Adams, Member and Mr Robert Putnam, Member

BETWEEN:	MILITARY SUPERANNUATION AND BENEFITS BOARD OF TRUSTEES NO 1 APPELLANT
AND:	PHILIP GRAHAM DRAKE RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	18 FEBRUARY 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT the determination of the Superannuation Complaints Tribunal made on 25 May 2001 be set aside.

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	V 691 OF 2001

On Appeal from the Superannuation Complaints Tribunal constituted by Ms Carol Foley, Acting Deputy Chairperson, Ms Katy Adams, Member and Mr Robert Putnam, Member

BETWEEN:	MILITARY SUPERANNUATION AND BENEFITS BOARD OF TRUSTEES NO 1 APPELLANT
AND:	PHILIP GRAHAM DRAKE RESPONDENT
JUDGE:	MERKEL J
DATE:	18 FEBRUARY 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1 The appellant ("the trustee"), which is the trustee of the Military Superannuation and Benefits Scheme ("the MSBS"), has appealed to the Court on a question of law from a determination of the Superannuation Complaints Tribunal ("the Tribunal") made pursuant to s 37 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) ("the Superannuation Complaints Act").

2 The determination conferred an entitlement on the respondent ("the complainant") to make a new election concerning the employer benefits to which he was entitled upon his retrenchment from the Defence Force.

3 The trustee claims that the Tribunal had no jurisdiction or power to make the determination and has applied to the Court for an order setting it aside.

Background

4 On 30 December 1993 the complainant, who enlisted in the Australian Army on 29 June 1982, was retrenched. Upon his retrenchment the complainant, as a member of the MSBS, was entitled to member benefits in respect of his contributions and employer benefits based upon his salary. On 29 September 1993 the complainant elected to receive a full lump sum payment in respect of his member benefits and to convert his employer benefits to a pension. The lump sum payment in respect of the complainant's net member benefit was $25,397.87 and the pension was $4,074.07 per annum, the first payment of which was made on 20 January 1994.

5 In June 1995 the complainant re-enlisted as a member of the Defence Force. Over one year later, on 16 October 1996 the complainant was advised that as he had re-enlisted as a member of the Defence Force, he was no longer entitled to receive a pension under the MSBS. The complainant was requested to remit the amount of the pension he had been receiving since his re-entry, being $5,734.24. Under s 43(3)(a) of the Military Superannuation and Benefits Act 1991 (Cth) ("the MSB Act") the trustee was entitled to recover the overpayment in a court of competent jurisdiction.

6 The complainant made a number of complaints concerning the request to remit the overpayments, claiming that when he elected to take his employer benefits as a pension, and when he applied to re-enter the Defence Force, he ought to have been, but was not, informed that he would lose his entitlement to receive his pension during any period of re-employment as a member of the Defence Force.

7 The complainant's written complaint to the trustee dated 22 March 1997 was treated by the trustee as a complaint made in accordance with the procedures required by s 101 of the Superannuation Industry (Supervision) Act 1993 (Cth) ("the Superannuation Supervision Act"). The complainant's complaint was that he elected to take his pension, instead of rolling it over or transferring it to another fund, because it enabled his family to make financial arrangements on the basis that the pension would be payable for life. The complainant complained that the pension he believed was "guaranteed for life" had been taken away from him. He also complained about being forced to remit the overpayments. The complainant set out his claim as follows:

"What I want is not only my pension reinstated but back paid from 24^th October 1996 when payments ceased, as you have failed in your `duty of care' to inform me of all the conditions relating to my pension. I feel because of inadequate information being given to me by MSBS when I was contemplating my redundancy options in regard to superannuation options I was not able to make an informed decision, I certainly would not have left my money with an organisation which displays such incompetence. You have informed me that you overpaid me and want the money back but once again you have failed to inform me what is happening to the money that I entrusted to your authority and what you intend doing with it. I can only assume that someone is benefiting from it and that someone is certainly not me."

8 The complainant enclosed copies of letters of complaint that he had sent to his local Federal Member of Parliament and a copy of the correspondence his local member had sent to the Minister for Defence, which were substantially to the same effect as his complaint to the trustee. The complainant's complaint was treated by the trustee as a complaint about the cessation of his pension and about the repayment of "overpayments" of the pension.

9 On 22 April 1997 the complainant was informed that his letter of 22 March 1997 had been accepted as a complaint made in accordance with s 101 of the Superannuation Supervision Act. A decision was subsequently made by a delegate of the trustee approving the recovery of the overpayments by instalments at a rate to be determined. The complainant was informed that the delegate of the trustee had considered his complaint and decided that there was "no case for defective administration" and there was "no option but to seek recovery of the pension paid to you following your re-entry to the MSBS in June 1995". The complainant was advised that the trustee was prepared to give consideration to any reasonable offer to repay the overpayments by instalments. The complainant was also advised that he may request the trustee to reconsider the delegate's decision or, if he was not satisfied with the handling of his complaint, he could lodge a complaint with the Tribunal under the Superannuation Complaints Act.

10 On 19 December 1997 the complainant lodged a complaint with the Tribunal stating, inter alia, that he would not have converted his employer benefit to a pension if he had known that the pension would cease to be payable upon his re-enlistment. The complainant outlined the history of the matter and reiterated that his decision to convert the employer benefit to a pension was based upon the fact that he had a guarantee that the pension would be payable for "the rest of our lives". The complaint concluded with the complainant seeking that those who had failed to properly inform him of his rights be held "accountable for their actions" and he appealed to the Tribunal to reinstate his pension as from the date from which the trustee had ceased to pay it.

11 On 15 June 2000 the complainant was informed that the circumstances of his case had been reconsidered and that the Commissioner of Superannuation, acting on behalf of the trustee, had decided to waive recovery of the amount of $5,734.23, which had been overpaid to the complainant. The complainant was also advised that his claim for compensation of $100,000 under the Defective Administration Scheme had been denied. By letter dated 21 June 2000, the complainant wrote to the Tribunal requesting it investigate the situation.

12 It appears to be common ground that, when the complaint came before the Tribunal, it was treated as relating to three "decisions" of the trustee in relation to the complainant's entitlement to a pension under the MSBS. The three "decisions" were identified in the trustee's submissions to the Tribunal as follows:

"(i) The decision of the Trustee to suspend [the complainant's] pension pursuant to Rule 35 of the MSB Rules upon his re-entry into the Defence Force on 28 June 1995.

(ii) The decision of a delegate of the Trustee taken under s.43(3) of the MSB Act to recover pension entitlements which were overpaid to the complainant.

(iii) The conduct of the Trustee in failing to inform [the complainant] of the MSB Act or Rules, or of the status of his MSB pension upon discharge from or re-entry into the Defence Force in 1995 or during a telephone enquiry which he allegedly made prior to his re-enlistment."

13 The conduct referred to in the third decision is deemed to be a "decision" by s 4(b) of the Superannuation Complaints Act which provides that, for the purposes of the Act, a trustee makes a decision if a trustee or a person acting for the trustee, engages in any conduct, or fails to engage in any conduct, in relation to making a decision. Section 3(2) of the Superannuation Complaints Act defines "conduct" as including omissions.

The determination of the Tribunal

14 The Tribunal described the complaint as a complaint that the decision of the trustee that the complainant had not been entitled to receive a pension after his re-enlistment and that he must repay the overpayments of pension was:

"unfair or unreasonable because the Complainant had not been advised and had no way of knowing that he would lose his pension if he returned to employment with the Employer."

15 The Tribunal concluded that, with the benefit of hindsight, it was unclear as to which of the available options the complainant would have taken had he been aware that the pension would have been suspended if he had returned to employment with the Defence Force. The Tribunal stated:

"The Tribunal is of the view that a fair and reasonable Trustee would have considered that the decision made by the Complainant appears to have been made without all necessary information.

The Tribunal therefore considers that the Trustee should give the Complainant the opportunity to cancel the election to take the pension (without any obligation on the Complainant so to do) in accordance with Rule 64(5) of the Fund's Rules."

16 The determination of the Tribunal is expressed in the following terms:

"Pursuant to sub-ss.37(1)(a) of the Complaints Act, the Tribunal has all the powers, obligations and discretions of the Trustee. Sub-section 37(6) of the Complaints Act provides that the Tribunal must affirm the Trustee's decision if it is satisfied that its operation, in relation to the Complainant, was fair and reasonable in the circumstances. The Tribunal is not so satisfied. Consequently, in accordance with the requirements of sub-ss.37(3)(d), (4) and (5) of the Complaints Act, the Tribunal determines to set aside the decision of the Trustee to not offer the Complainant an opportunity to revoke his earlier election to take a pension and substitutes its own decision that, in accordance with Rule 64(5) of the Rules the Trustee is to permit the Complainant to make a new election in respect of the benefit payable at the time he exited the Fund."

17 The trustee has appealed to the Court against the determination of the Tribunal primarily on the ground that the Tribunal had no jurisdiction or power to make the determination.

The Superannuation Complaints Act

18 Under s 14(2) of the Superannuation Complaints Act a member of a regulated superannuation fund may make a complaint to the Tribunal that a decision of the Trustee in relation to the member is or was unfair or unreasonable. Section 19(1) provides:

"The Tribunal cannot deal with a complaint under section 14 or 14A unless the complainant satisfies the Tribunal that:

(a) a complaint about the same subject matter was previously made to an appropriate person under arrangements for dealing with such complaints made under section 101 of the Supervision Act; and

(b) the complaint so made was not settled to the satisfaction of the complainant within 90 days or such longer period as the Tribunal allows."

19 The Tribunal's powers, for the purpose of reviewing a decision of a trustee, are set out in s 37 of the Superannuation Complaints Act:

"TRIBUNAL POWERS - COMPLAINTS UNDER SECTION 14

(1) For the purpose of reviewing a decision of the trustee of a fund that is the subject of a complaint under section 14:

(a) the Tribunal has all the powers, obligations and discretions that are conferred on the trustee; and

(b) subject to subsection (6) must make a determination in accordance with subsection (3).

(2) If an insurer or other decision-maker has been joined as a party to a complaint under section 14:

(a) the Tribunal must, when reviewing the trustee's decision, also review any decision of the insurer or other decision-maker that is relevant to the complaint; and

(b) for that purpose, has all the powers, obligations and discretions that are conferred on the insurer or other decision-maker; and

(c) subject to subsection (6), must make a determination in accordance with subsection (3).

(3) On reviewing the decision of a trustee, insurer or other decision-maker that is the subject of, or relevant to, a complaint under section 14, the Tribunal must make a determination in writing:

(a) affirming the decision; or

(b) remitting the matter to which the decision relates to the trustee, insurer or other decision-maker for reconsideration in accordance with the directions of the Tribunal; or

(c) varying the decision; or

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

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

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

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

(a) the complainant; and

(b) so far as concerns a complaint regarding the payment of a death benefit - any person (other than the complainant, a trustee, insurer or decision-maker) who:

(i) has become a party to the complaint; and

(ii) has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person having an interest in the death benefit;

was fair and reasonable in the circumstances."

20 The Tribunal, when reviewing the decision of a trustee, has all the powers, obligations and discretions conferred on the trustee and, in substance, stands "in the `shoes' of the trustee": see Briffa v Hay (1997) 75 FCR 428 at 443, see Seafarers' Retirement Fund Pty Ltd v Oppenhuis [1999] FCA 1683; (1999) 94 FCR 594 at 598-599; Lykogiannis v Retail Employees Superannuation Pty Limited [2000] FCA 327; (2000) 97 FCR 361 at 372 and Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330 ("Crocker") at [24]. In Collins v AMP Superannuation Ltd (1997) 75 FCR 565 ("Collins") at 578 I observed:

"It is an essential part of [the statutory] scheme that, in so far as a determination [by the Tribunal] under s 37(3) varies or becomes a substituted decision of the trustee, the varied or substituted decision must be one which is authorised by the governing rules of the fund. Likewise, a remittal with directions must also result in a decision which is authorised by those rules."

In Crocker at [33] Allsop J stated that:

"Certainly, what the Tribunal is not entitled to do is to make a determination reflecting its view of the rights of the parties inter se, if that is contrary to the terms of the governing rules"

The Trust Deed

21 The Trust Deed was established in the form set out in the Schedule to the MSB Act. Rule 13 of the Trust Deed confers an entitlement on a member, who is retired on the ground of retrenchment, to elect to convert that person's employer benefit into a pension. Rule 35 provides that where a person who is in receipt of a pension under Rule 13 becomes a member of the MSBS:

"the pension is suspended for the duration of his or her membership and is not payable while it is suspended."

22 When the complainant was re-employed as a member of the Defence Force he became a member of the MSBS (see s 6(1)(a) of the MSB Act) and under Rule 35 his pension entitlement was suspended for the duration of his membership.

23 Rule 64(1) sets out the provisions applicable to elections made under the Trust Deed. Rule 64(5), which was relied upon by the Tribunal in making its determination, provides:

"Where:

(a) an election under Part 3, 4 or 5 is made by the person entitled to make the election or, in accordance with subrule (3), by another person on behalf of the first-mentioned person; and

(b) the person who made the election made an application to the Board not later than 3 months after the day on which the election is made or within such further period as the Board, in special circumstances, allows requesting that the Board cancel the election; and

(c) the Board having regard to such matters as it considers relevant, is satisfied that the election should be cancelled;

the Board may direct that the election is cancelled and if it does so these Rules have effect as if the election had not been made."

24 Finally, Rules 66 provides:

"Where, in a particular case, the Board is of the opinion that:

(a) the operation of these Rules, other than this rule, with regard to a point at issue produces a result in relation to a person that is not in the spirit of the Rules; and

(b) the relevant circumstances of the case are unusual or exceptional;

the Board may, in relation to that case, having regard to the circumstances of the case, the principles in these Rules and the need to maintain equity between members, determine the point at issue in favour of that person."

25 The main issues arising on the appeal are:

* whether, in accordance with the requirement in s 19(1)(a) of the Superannuation Complaints Act, the complaint made to the Tribunal was "about the same subject matter" as the complaint made to the trustee;

* whether the Tribunal had jurisdiction or power to require the trustee to permit the complainant to make a new election in respect of the employer benefit payable to him at the time of his retrenchment as a member of the Defence Force.

Section 19(1)(a) of the Superannuation Complaints Act

26 The trustee contends that the complaint made to and considered by the trustee was a complaint that, as the complainant had never been informed of the right of the trustee to suspend his pension upon his re-enlistment in the Defence Force, his pension should be reinstated from the date upon which it was suspended. The trustee claimed that the complainant's complaint did not in fact raise the issue of the cancellation of his election under Rule 64(5). Accordingly, so it was argued, s 19(1)(a) prevented the Tribunal from dealing with any alleged failure by the trustee to permit the complainant to cancel his election as it was not "a complaint about the same subject matter".

27 It is clear that the complainant had not applied to the trustee under Rule 64(5) to cancel his election to convert his employer benefit into a pension and, as a consequence, the trustee did not make a decision concerning that matter.

28 Section 19(1)(a) requires that the complaint to the Tribunal be "about the same subject matter" as the complaint to the trustee. It is significant that the statutory requirement in s 19(1)(a) is not that the complaint to the Tribunal and to the trustee be the same complaint or be a complaint that makes the same claim for relief. The two complaints may still be about the same subject matter, notwithstanding that the way in which a complainant may wish to have the complaint resolved might differ in each complaint.

29 The purpose of s 19(1) is to ensure that the Tribunal does not deal with the complaint unless the trustee has had an opportunity to consider and settle that complaint: see cl 29 of the Explanatory Memorandum to the Superannuation (Resolution of Complaints) Bill 1993 (Cth). Thus, provided the trustee is fully apprised of the subject matter of a complaint, the trustee will be well placed to consider and endeavour to settle the complaint in a manner that is authorised by the Rules of the Trust Fund. Accordingly, in each case it is necessary to identify the subject matter of the complaint before the Tribunal and enquire whether a complaint about the same subject matter had previously been made to the trustee. In determining that matter the complaint "should not be read, parsed and analysed with the eye of a pleader" (see Crocker at [132] per Allsop J).

30 In the present case the subject matter of the complaint made by the complainant to the trustee and to the Tribunal was that at the time of his election to convert his pension, and at the time he was re-employed in the Defence Force, he ought to have been, but was not, informed that his pension entitlement would be suspended if he was re-employed in the Defence Force. In substance, the complainant was claiming that the trustee, and later the Tribunal, should take steps to rectify his situation by re-instating his pension, not claiming any overpayments and compensating him for the harm he was suffering as a result of the suspension of his pension. When the complaint was before the Tribunal and it became apparent that Rule 35 of the Trust Deed required suspension of his pension, the complainant claimed he was entitled to "compensation".

31 While the ultimate outcome the complainant was seeking may have altered, it does not follow that the complaint he made to the Tribunal was not about the same subject matter as the complaint he made to the trustee. The subject matter of the complaint to the trustee and to the Tribunal was the same. That subject matter related to the harm caused to the complainant by the suspension of his pension where he ought to have been, but had not been, informed of that risk. It was open to the trustee to consider and settle that complaint in a number of ways. It may have:

* invited the complainant to make an application for cancellation of his election under Rule 64(5) and, if such an application were made, the trustee would have to consider whether it should exercise its discretion to cancel the election;

* also considered whether the fact that pension payments were paid, made it preferable for the complaint to be dealt with under Rule 66 if it fell within the terms of that Rule;

* determined that Rule 35 operated to suspend the pension entitlement of the complainant and, in the circumstances, continued to take steps to recover the pension overpaid to the complainant since his re-enlistment.

32 Although the trustee elected to resolve the complaint by seeking to recover the overpayments of the pension and the Tribunal resolved the complaint by offering the complainant a "new election", the subject matter of the complaint, as described above, did not change.

33 Accordingly, s 19(1) did not prevent the Tribunal from dealing with the complaint the complainant made to it concerning the three "decisions" of the trustee.

Section 37 of the Superannuation Complaints Act

34 By its determination the Tribunal purported to confer an entitlement "in accordance with Rule 64(5) of the Rules" on the complainant to make a "new election" in respect of the employer benefit payable upon his retrenchment from the Defence Force. Rule 64(5) does not provide for a new election; rather, it provides that if an election is cancelled under the Rule "these Rules have effect as if the election had not been made". It may well be that a "new election" might be available under Rule 66 but a pre-condition for any "new" election, if one is available, is an application by the member that his or her previous election be cancelled. A further pre-condition is that, as any such application in the present case would be made more than three months after the day on which the earlier election was made, the Board must be satisfied that "special circumstances" exist so that it can cancel the election out of time.

35 The Tribunal did not have before it an application by the complainant to cancel his election and therefore did not address the question of "special circumstances". Rather, it determined to set aside the conduct of the trustee, which, pursuant to s 4(b) of the Superannuation Complaints Act, it deemed to be a decision "to not offer the Complainant an opportunity to revoke his earlier election to take a pension". However, under Rule 64(5) the only relevant power of the trustee is a power to cancel the earlier election if that has been applied for by a member of the MSBS. At all times the complainant had an opportunity, and he still has the opportunity, to make such an application, which, being out of time, would require "special circumstances" to be granted. However, no such application has been made.

36 The absence of an application for cancellation in the present case is a matter of substance rather than form. If such an application were to be made it would require the complainant and the trustee to consider the consequences of cancelling the election ab initio (see Rule 64(5)). As the cancellation effectively nullifies the election, any consideration of whether to cancel the election would involve consideration being given to the fact that payments of the pension were made. Also, as explained above, questions may arise as to whether the matter should be dealt with under Rule 66, rather than Rule 64(5). As no application for cancellation has been made to the trustee, or to the Tribunal, none of these questions have been considered.

37 The failure of the Tribunal to consider the above matters has occurred because it has purported to exercise a power under Rule 64(5) (ie, to confer on the complainant a right to make a "new election") which it does not have and, in doing so, has acted contrary to the terms of the Trust Deed. Put another way, the Tribunal, standing in the "shoes" of the trustee, made a determination that the trustee was not empowered to make and, accordingly, it made a determination that is not authorised by the Trust Deed.

38 Counsel for the complainant submitted that the determination should be construed as a determination entitling the trustee to have his election cancelled if he so applies and, as such, is not inconsistent with Rule 64(5). Even if that submission were accepted, the Tribunal would have still erred in law by failing to consider the matters to which I have referred, which are plainly relevant considerations that must be considered in the event that the discretion to cancel the election is exercised. In any event, the Tribunal's determination was not simply to enable cancellation but, rather, it permitted the complainant to make "a new election in respect of the benefit payable at the time he exited the Fund". As explained above the power that can be exercised under Rule 64(5) is the power to cancel an election which, when exercised, would result in the preservation of the employee's benefit under Rule 13(1)(b). If the Tribunal intended to enable some other election to occur it was necessary for it to define with precision the election entitlement it was intending to confer and, also, it would have to be satisfied that that election was authorised by the Trust Deed.

39 The alternative submission of counsel for the complainant was that the Tribunal's powers were not confined by the Trust Deed but, rather, under s 37(4) of the Superannuation Complaints Act the Tribunal was entitled to place the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both that the Tribunal determined to exist in relation to the trustee's decision no longer existed. As explained above, under the statutory scheme the Tribunal's determination must be one which is authorised by, and not contrary to, the governing rules of the Trust Fund.

40 Finally, counsel for the complainant submitted that the Tribunal was entitled to make the determination in exercise of the trustee's powers under Rule 66, which conferred upon the trustee a broad discretion to determine a particular member's rights in a manner that may not be provided for under the Trust Deed. While it can be accepted that Rule 66 confers such a power on the trustee, and therefore on the Tribunal, the Tribunal has not purported to exercise, nor has it purported to consider the exercise, of the power conferred by Rule 66.

41 The Tribunal did not refer to Rule 66 in its decision nor did it purport to form the opinions Rule 66(a) and (b) require to be formed in relation to the operation of the Rules and the circumstances of the case. As I explained in Collins at 570, it can be accepted that a decision need not necessarily refer to the power being exercised and may even incorrectly or incompletely describe the power being exercised "if the intention to exercise the power is otherwise clear". However, I also observed that a quite different situation arises where the exercise of the power "relies upon a head of power which is materially different to the power conferred". A power would be materially different if it required different preconditions to be satisfied prior to the exercise of the power. In the present case I am satisfied that the Tribunal intended to rely upon, and did rely upon, the power conferred under Rule 64(5) and did not intend to rely upon, and did not rely upon the materially different head of power under Rule 66. In those circumstances Rule 66 is of no avail to the complainant in the present case.

Conclusion

42 It follows from the foregoing that I have concluded that the Tribunal erred in law in its construction and application of Rule 64(5) and, as a consequence, made a determination that was not authorised by the Trust Deed. It must follow that the determination of the Tribunal is to be set aside. That raises the question of whether it is appropriate to remit the matter back to the Tribunal.

43 The outstanding issue between the parties can now only relate to whether the complainant wishes to cancel his election under Rule 64(5). As explained above, in the first instance, it is for the complainant to decide if he wishes to make an application under Rule 64(5). If he wishes to make such an application it is appropriate that the trustee be given the opportunity to consider the application prior to it coming before the Tribunal. Accordingly, it is not appropriate to exercise the power of the Court under s 46(4) of the Superannuation Complaints Act to remit the matter to the Tribunal.

44 Finally, I would like to express the Court's gratitude to Ms M Gordon and Ms R Orr, who appeared as pro bono counsel for the complainant, for the carefully considered and well articulated submissions they made on behalf of the complainant.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated: 14 February 2003

Counsel for the Applicant:	Ms D Mortimer
Solicitor for the Applicant:	Australian Government Solicitor
Counsel appearing pro bono for the Respondent:	Ms M Gordon and Ms R Orr
Date of Hearing:	6 February 2003
Date of Judgment:	18 February 2003