McAtamney v Superannuation Complaints Tribunal [2021] FCA 1539

Federal Court of Australia

McAtamney v Superannuation Complaints Tribunal [2021] FCA 1539 Appeal from: Application for an extension of time to appeal from: McAtamney v OnePath Custodians Pty Ltd (Superannuation Complaints Tribunal Determination 23 October 2017)

File number: VID 96 of 2021

Judgment of: MOSHINSKY J

Date of judgment: 8 December 2021

Catchwords: SUPERANNUATION – application for extension of time to appeal from a decision of the Superannuation Complaints Tribunal – whether acceptable explanation provided for the delay – whether proposed appeal had merit – application dismissed

Legislation: Superannuation (Resolution of Complaints) Act 1993 (Cth), s 46

Cases cited: McAtamney v Superannuation Complaints Tribunal [2016] FCA 1062

Division: General Division

Registry: Victoria

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 17

Date of hearing: 6 December 2021

Counsel for the Applicant: Ms Webb appeared on behalf of the applicant

Counsel for the Respondent: The respondent did not appear

ORDERS VID 96 of 2021

BETWEEN: THOMAS JOSEPH MCATAMNEY Applicant

AND: SUPERANNUATION COMPLAINTS TRIBUNAL Respondent

order made by: MOSHINSKY J DATE OF ORDER: 8 DECEMBER 2021

THE COURT ORDERS THAT:

1. The application for an extension of time be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MOSHINSKY J: 1 The applicant seeks an extension of time to file a notice of appeal from a decision of the Superannuation Complaints Tribunal (the SCT) dated 23 October 2017. Under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Complaints Act), an appeal to this Court is to be instituted not later than the 28th day after the day on which a copy of the determination of the Tribunal is given to the relevant party, or within such further period as the Court allows. Therefore, ordinarily, any appeal was required to be instituted by approximately 20 November 2017. The application for an extension of time was filed on 24 February 2021, which is more than three years after that date. 2 The application for an extension of time has been the subject of a number of case management hearings, which dealt with service of the application on the SCT and the trustee of the superannuation fund, OnePath Custodians Pty Ltd (OnePath or the Trustee). Service on the SCT was complicated by the fact that, while it still exists, from a practical point of view its remaining functions are now carried on by the Australian Financial Complaints Authority Ltd (AFCA). The application for an extension of time was provided to AFCA. On 22 June 2021 and 11 August 2021, Becketts Lawyers (on behalf of AFCA) sent letters to the Court and the applicant stating that: if the matter were to be remitted, it would be appropriate for it to be remitted to AFCA; AFCA would be prepared to consent to an order to be joined as an additional respondent to the proceeding, so that the Court could make an order remitting the matter to AFCA if it determined this to be appropriate; and, if joined as a respondent, AFCA's current intention would be to refrain from taking an active role in the proceeding. 3 The applicant also served the application for an extension of time on OnePath. On 11 August 2021, K&L Gates (on behalf of OnePath) sent a letter to the Court indicating that OnePath did not seek to be heard on the application for an extension of time. 4 At the hearing of the application for an extension of time, the applicant was (with leave) represented by Ms Webb, who is not a legal practitioner. The applicant filed four affidavits of the applicant in support of the application. They are dated 6 January 2021, 8 May 2021, 20 July 2021 and 30 July 2021. No outline of submissions was provided. 5 There is a long history to the present application. Many of the facts are set out in the judgment of North J in McAtamney v Superannuation Complaints Tribunal [2016] FCA 1062 (McAtamney (2016)). In brief outline: (a) In 1975, the applicant started to work for Nylex Corporation Pty Ltd. He worked as a process worker in that business for its various owners for 31 years. During the whole of his employment he contributed to a superannuation fund. (b) On 1 September 2006, the applicant was retrenched. At this time, the applicant was a member of the Huon Superannuation Plan within ANZ Super Advantage. (c) On 29 January 2007, the applicant was paid $142,729 from his ANZ Super Advantage account. In February 2007, a further payment of approximately $1,456 was made. In September 2007, a final payment of $5,307 was made, bringing the total payment to $149,494. (For ease of expression, I have omitted cents in setting out these figures.) (d) The applicant made a complaint to the SCT. (e) On 14 January 2009, the SCT confirmed an earlier decision to treat the matter as withdrawn. (f) On 24 July 2014, the applicant applied for an extension of time to appeal to this Court from the SCT's decision. (g) On 2 September 2016, North J published his reasons in McAtamney (2016) and made orders setting aside the SCT's decision of 14 January 2009, and remitting the applicant's complaint to the SCT for determination in accordance with law. (h) On 23 October 2017, the SCT made a decision on the applicant's complaint (the Decision). The SCT determined to set aside the decision of the Trustee and substitute its own decision. The substituted decision was to compromise the complaint in the amount delineated in the Conclusion section of the determination. The effect of the SCT's decision was to substitute for the decision of the Trustee that the applicant be paid a benefit of $149,494, a decision that the applicant be paid a benefit of $292,777. In addition, the applicant was entitled to interest on the portion of that amount that had not previously been paid. 6 The applicant seeks an extension of time to appeal to this Court from the Decision. Under s 46(1) of the Complaints Act, a party may appeal to this Court, on a question of law, from a determination of the SCT. Section 46(2) of the Complaints Act provides that an appeal under s 46(1) must be instituted not later than the 28th day after the day on which a copy of the determination of the SCT is given to the person, or within such further period as the Court (whether before or after the end of that day) allows. 7 The applicant has provided a draft notice of appeal. Some allowance needs to be made for the fact that it has not been prepared by a lawyer. Under the heading "Questions of law", various sections of legislation are identified. However, no question of law is stated. Under the heading "Findings of fact that the Court is asked to make", the following appears: 1. Considering the Nylex Superannuation Deed 2. Payment of all benefits that are yet to be paid. 3. A full statement of the fund considering it closed in September 2007 4. That the Annexe added to the Deed that appeared before Justice North should be considered as the Government Superannuation Guarantee, which is yet to be paid. 8 Apart from the above, the draft notice of appeal does not identify any grounds of appeal. 9 The principles relating to an application for an extension of time were set out by North J in McAtamney (2016). As his Honour stated at [181], it will usually be relevant to consider if there is an acceptable explanation for the delay in bringing the application, and whether anyone would suffer prejudice if further time were granted. Further, as his Honour stated, an important consideration in the assessment of the interests of justice is an evaluation of the merits of the appeal should the extension of time be granted. 10 In the present case, I am not satisfied that an acceptable explanation for the delay has been provided. The period of the delay is lengthy. The affidavits do not explain the delay. At the hearing, Ms Webb said that the applicant had been given advice that he needed to commence a proceeding in the Supreme Court of Victoria, and he had attempted to do so without success. It was also stated that the applicant had unsuccessfully sought to be heard at the Banking Royal Commission. I am not satisfied that these matters provide an acceptable explanation for the delay, which is lengthy. While it is true that the applicant does not have legal representation, I note that he has some familiarity with Court processes as a result of the proceeding before North J. 11 In relation to the merits of the proposed appeal, it does not appear to me that there is an arguable basis to appeal on a question of law from the Decision. The SCT's decision carefully and thoroughly considers all the relevant issues. The SCT was mindful of the four matters raised in the judgment of North J: see the Decision at [9]. The SCT addressed each of those issues under the following headings: (a) Calculation of the multiple; (b) Personal contributions; (c) The Letter; and (d) The Calculation. 12 I do not accept the submission on behalf of the applicant that the SCT failed to consider each of these issues. While the SCT's treatment of the first issue was brief, I am satisfied that the issue was properly considered. 13 The SCT examined the personal contributions issue in some detail. The SCT did not accept the Trustee's position as to the amount of the applicant's contributions to the current fund and all former funds. The SCT concluded that, rather than the applicant's contributions being $68,379 (as contended by the Trustee), the total contributions were more likely the sum of $78,008 and $68,379, bringing total contributions to $146,388: see the Decision at [56]-[59], [72]. 14 The SCT expressed the view that the Trustee's calculation was not fair and reasonable in the circumstances: see the Decision at [77]. The SCT recalculated the amount of the benefit, concluding that it should be $292,777: see the Decision at [84]. 15 The SCT stated that, deducting the amount previously paid by the Trustee, this left an amount of $142,828, to which must be added interest from 2007 to the date of the determination, calculated by reference to the 10 year average of the Reserve Bank's cash rate. At the hearing, Ms Webb on behalf of the applicant, confirmed that the applicant had been paid this amount. 16 None of the matters raised in the course of the hearing suggest a basis to challenge the Decision on a question of law. In broad summary, it was submitted on behalf of the applicant that there were many questions outstanding that had not been fully investigated. I am not satisfied that this criticism of the Decision is justified. It appears to me that the SCT did address all relevant issues. In particular, insofar as it was submitted that the SCT had regard to the wrong trust deed, there is no reason to think that the SCT applied an incorrect benefit schedule. 17 For these reasons the application for an extension of time is to be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky.

Associate: Dated: 8 December 2021