Christine Swinfield v The Trustee for First State Superannuation Fund

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Monday 2 February 2004

Matter No IRC 6718 of 2003 Christine Swinfield v The Trustee for First State Superannuation Fund JUDGMENT [2004] NSWIRComm 4

1 Christine Swinfield, formerly an employee at the Garrawarra Centre Nursing Home, was a member of the First State Superannuation Scheme ("FSS"). In March 2001 she applied for a Total and Permanent Disablement ("TPD") benefit under the scheme. The trustee of the scheme, FSS Trustee Corporation ("FTC" - "the respondent"), declined the application.

2 On 7 May 2003 Ms Swinfield's lawyers wrote to FTC requesting information in order that they might advise their client regarding her claim. No reply was received. Ms Swinfield's lawyers wrote again to the respondent on 29 May 2003 seeking the information. On 3 June 2003, in what appears to be a reply to a letter from the administrators of the scheme, Pillar Administration, Ms Swinfield's lawyers indicated that they did not consider it necessary to make an application for the information they sought under the Freedom of Information Act 1989 and reiterated their request for the information. On 27 June 2003 the lawyers made a further written request for the information.

3 On 4 July 2003 the respondent wrote to Ms Swinfield's lawyers advising that their letter of 7 May 2003 had "now been provided to the Trustee … by the administrator of FSS …" and apologised on behalf of the administrator for their failure to respond. The respondent's letter indicated that it supported the original decision to decline Ms Swinfield's application for a TPD benefit, however, there was the opportunity to dispute this decision by lodging a dispute with the trustee.

4 On 17 July 2003 Ms Swinfield's lawyers again wrote to the administrator seeking the information set out in its letter of 7 May 2003 noting that "we are at least entitled to medical reports which were relied upon by yourself or the insurer in declining our client's claim."

5 On 24 November 2003, not having heard further from the trustee or the administrator regarding the information sought in the letters of 7 May 2003 and 17 July 2003, Ms Swinfield's lawyers filed an application pursuant to s 154 of the Industrial Relations Act 1996 seeking certain declaratory relief, an order that the respondent provide a copy of all material that the respondent used to consider Ms Swinfield's claim, and an order for costs.

6 On 1 December 2003 the trustee wrote to Ms Swinfield's lawyers in response to a letter of 28 October 2003, enclosing a number of medical reports and certificates. On 3 December 2003 there was a telephone conversation between Mr Brian Matthews representing the trustee and Mr Carl Mickels, solicitor for Ms Swinfield. The conversation followed receipt of documents enclosed with the trustee's letter of 1 December 2003. Mr Mickels indicated in the telephone conversation that having received the necessary documents "the only issue which remains outstanding is the issue of the Respondent's paying the Applicants' costs."

7 The only matter, therefore, that I need to determine in these proceedings is the question of costs. In that respect, the respondent submitted that had the applicant's application proceeded there would have been "a real question as to whether the Commission had jurisdiction". The respondent contended that as matters presently stood there was no issue between the parties in the sense that there has been no final determination under s 22 of the Superannuation Administration Act 1996 regarding Ms Swinfield's claim and, therefore, no right of appeal to the Industrial Relations Commission in Court Session has yet arisen under s 40 of that statute. The respondent submitted that by its letter of 28 October 2003 the applicant had "in effect raised a dispute for determination by the Respondent and provided further medical opinion that includes a modification of earlier medical opinion about the extent of her capacity to work".

8 As I understand the respondent's submission it was that the respondent was still considering the applicant's application for a TPD benefit and as there was no "matter" in existence in relation to which the Commission had jurisdiction (i.e., no determination under s 22 of the Superannuation Administration Act), there was no jurisdiction to provide declaratory relief. It followed, it was submitted, there was no jurisdiction to make a costs order. The applicant, on the other hand, submitted that "Since the Respondent produced the documents it has not challenged the jurisdiction of the Commission and this point is respectfully moot."

9 That the respondent handed over certain documents following the filing of the application for declaratory relief does not amount to a concession by it that the Commission in Court Session has jurisdiction to make the orders sought in the application. In order to determine whether there is jurisdiction to make the cost order sought by the applicant it is necessary for me to consider whether there was jurisdiction to make the substantive orders sought in the application for declaratory relief.

10 Section 154 of the Industrial Relations Act provides that: 154. Declaratory jurisdiction

(1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed.

(2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought.

11 The declaratory power under s 154 is not contingent upon the existence of proceedings which are otherwise within jurisdiction as the power arises in relation to a "matter" as opposed to "proceedings": Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 at 126-127; "A" v Commission for Children and Young People & Anor [2001] NSWIRComm 194 at [8]. In Ford v SAS Trustee Corporation (2000) 98 IR 444 at 476 Hungerford J said: A declaration of right may be made once there be identified a matter otherwise within the Commission's or the Court's jurisdiction, regardless whether any proceedings exist as to that matter, provided the declaration as sought relates to it. 12 The Commission in Court Session has jurisdiction pursuant to s 40 of the Superannuation Administration Act to hear appeals against a determination made by the FTC under s 22 of that Act. No determination has been made under s 22 in relation to Ms Swinfield's application, therefore, no appeal lies. However, it does not seem to me that the Commission is precluded from dealing with the claim for a benefit of the nature sought by Ms Swinfield. Whilst there were no proceedings on foot before the Commission involving the applicant and the respondent, there was clearly a controversy or dispute between the two parties concerning an entitlement to disability benefits (at the time the applicant filed her claim for declaratory relief she had not been advised that the respondent was prepared to consider the letter of 28 October 2003 as a notification of a dispute to be dealt with under s 22 of the Superannuation Administration Act.) Incidental to the claim for disability benefits was a claim by the applicant's lawyers for certain documents to be provided in order that the applicant could be advised as to whether a case could be made out for challenging the respondent's failure to provide the TPD benefit. Until the applicant filed her claim for declaratory relief the respondent had failed to positively respond to repeated requests by the applicant for the documentation.

13 In my opinion, the Commission would have jurisdiction to deal with the matter under its dispute resolution powers in Ch 3 of the Industrial Relations Act, there being in existence what I consider to have been an industrial dispute regarding an industrial matter. That being the case, jurisdiction also exists to make binding declarations of right under s 154 of that Act in relation to those matters that may be dealt with pursuant to Ch 3 of the Act. It may also be the case that jurisdiction exists under Div 2 of Pt 9 of Ch 2 (unfair contracts) of the Industrial Relations Act to make orders providing for relief, although that is by no means clear: See Wreckair Pty Limited v Fernance (1994) 58 IR 343. It may be noted that no submission was made by the respondent regarding any conflict between the provisions of the Industrial Relations Act and the provisions of the Superannuation Administration Act concerning the power of the Commission to deal with disputes regarding disability benefits as claimed by Ms Swinfield. 14 In light of the respondent's failure to provide the documents the applicant sought orders to the following effect: 1. An order that the respondent provide the documents sought by the applicant. 2. A declaration that the applicant was a beneficiary of the FSS Scheme and entitled to copies of the documents sought. 3. A declaration that the respondent had administered the Fund in a harsh, unfair and unconscionable manner in failing to provide the necessary documents. 4. An order for costs.

15 Order 1 does not appear to me to be an order seeking a declaration of right. I do not consider it would have been an order open to me to make under s 154 of the Act. However, order 1 may be regarded as consequential relief that would clearly be within the Commission's discretion to make if it determined that the applicant was entitled to the documents that she sought. As to order 2 there was clearly a dispute between the parties regarding the provision of information considered by the applicant to be relevant to the pursuit of a claim for a TPD benefit and, despite repeated requests, up to the time when the respondent filed her application for declaratory relief, the respondent had failed to provide the information. I consider I would have had jurisdiction to make a declaration to the effect of order 2 because it may relevantly have related to a matter within the Commission's jurisdiction, for example, under Pts 1 and 2 of Ch 3 (industrial disputes) of the Industrial Relations Act. I hold the same view in relation to order 3. As to an order for costs, there is clearly jurisdiction under s 181 of the Industrial Relations Act.

16 In the respondent's letter of 4 July 2003 to Ms Swinfield's lawyers no mention was made of the documentation that the lawyers had sought in their letter of 7 May 2003. The letter advised that if Ms Swinfield wished to dispute the decision to decline her claim for a TPD benefit she could lodge a dispute with the trustee. In its submissions in these proceedings the respondent contended that the applicant should have followed the advice in the letter of 4 July and if she had done so relevant documents, including medical reports would have been provided to her as part of the normal process for dealing with disputes under s 22 of the Superannuation Administration Act. That may be so, however, it may also have been the case that before initiating the dispute proceedings and thereby incurring costs, Ms Swinfield's lawyers may have wished to obtain the information they sought in their letter of 7 May 2003 in order to determine whether such a course was worthwhile.

17 If the relevant documentation was available as a matter of course to be provided to the applicant if she had lodged a dispute with the FTC, I fail to see why the FTC could not have simply provided the information as requested in order that the applicant's lawyers could advise their client. If it considered the information sought in the letter of 7 May 2003 was not all relevant then following the applicant's revised request in July for medical reports only, the information could have been provided with no prejudice to the respondent. It seems that the respondent was only moved to provide the documents because the applicant took steps to bring proceedings for declaratory relief.

18 It should have been quite unnecessary for the applicant to have to bring proceedings in order to obtain information relevant to her claim in circumstances where there is no apparent reason, and no satisfactory reason offered by the respondent, as to why the material could not have been provided at least following the letter of 17 July, which confined the scope of the information sought to relevant medical reports.

19 I consider that in the circumstances the respondent should pay the applicant's costs and I so order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.