Commonwealth Superannuation Scheme Board v Dexter

Federal Court of Australia|2004-12-02|Before: Gray J

The nature and history of the proceeding 1 This appeal from a decision of the Superannuation Complaints Tribunal ('the Tribunal') concerns the extent of the powers of the Tribunal. The question is whether the Tribunal has the power to decide that a decision of a trustee of a superannuation fund was not fair and reasonable, because of the circumstances attending it, although the decision itself is correct in law. 2 Pursuant to ss 14 and 37 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) ('the SRC Act'), the Tribunal was dealing with a complaint about a decision of the Commonwealth Superannuation Scheme Board ('the CSS Board'), made on 4 February 1999. The CSS Board's decision was that accumulated contributions to the Commonwealth Superannuation Scheme ('the CSS') fund made by the respondent, Ms Dexter, in respect of a previous period of contributory service, which had been effectively refunded to her at the end of that period and then repaid by her to the CSS fund, only commenced to accrue interest from the date they had been repaid to the CSS fund. 3 Ms Dexter sought review by the Tribunal of the CSS Board's decision. On 3 July 2002, the Tribunal declined to affirm the CSS Board's decision, because it was not satisfied that the decision was fair and reasonable in the circumstances. It remitted the complaint back to the CSS Board for consideration in accordance with the directions of the Tribunal. The directions were that the CSS Board consider settling or compromising Ms Dexter's claim for interest, and that it should consider whether there are any other items of significant detriment to Ms Dexter arising from misleading and erroneous advice given to her and, if so, how they might best be remedied so as to remove any unfairness or unreasonableness. 4 The CSS Board appealed to the Court. Ms Dexter, who has left Australia, played no part in the hearing of the appeal, apart from providing the Court with a written submission, which canvassed in detail a number of factual issues and put arguments about her case. Counsel for the CSS Board made it clear that the purpose of the appeal was to clarify the powers of the Tribunal. Accordingly, the CSS Board did not seek an order for its costs of the appeal if it should be successful.

The facts 5 From 9 February 1976 to 8 December 1978, Ms Dexter was employed by the Australian National University ('ANU'). On 15 January 1979, she commenced employment with the Australian Public Service ('APS') in the Department of Administrative Services ('DAS'). She remained in this employment until 5 December 1985, although from 18 March 1983 she was on leave without pay. The period of her leave without pay was excluded from the calculation of her eligible service for superannuation purposes. From the time of her employment with the APS, she became a member of the CSS. 6 After her resignation on 5 December 1985, if Ms Dexter wished to preserve her entitlements within the CSS fund, she was required by s 137(1) of the Superannuation Act 1976 (Cth) ('the 1976 Act') to elect to do so within 21 days, by notice in writing to the Commissioner for Superannuation ('the Commissioner'). Ms Dexter did not so elect. She claims that she was advised that she had not served a sufficiently long period of employment in the public sector to permit her to preserve her entitlement. Accordingly, on 26 March 1987, Ms Dexter signed a form stating that she applied for a refund of her accumulated contributions. She also signed documents authorising the 'rollover' of her accumulated contributions to a particular approved deposit fund. Her entitlement in the CSS fund was thus effectively withdrawn and transferred. 7 On 2 February 1992, Ms Dexter rejoined the APS, this time with the Department of Finance and Administration ('DoFA'). She joined, and made contributions to, the Public Sector Superannuation Scheme ('the PSS'), which had replaced the CSS as the scheme for new public servants, pursuant to the Superannuation Act 1990 (Cth) ('the 1990 Act'). 8 In fact, as is now recognised, Ms Dexter was eligible to preserve her entitlements in the CSS fund on 5 December 1985. This was because her prior service with the ANU ought to have been taken into account. When added to her service with DAS, this clearly gave her a total period of eligible service in excess of the five-year threshold, so as to entitle her to preserve her benefits. It also would have entitled her to rejoin the CSS on re-entering the public service on 2 February 1992. She would not have been compelled to join the PSS at that time. 9 On 22 November 1993, Ms Dexter applied to make a late election to preserve her CSS entitlements, pursuant to s 157(1) of the 1976 Act. The Commissioner made the same mistake that had been made earlier and decided that Ms Dexter was not eligible to preserve her benefits because she had less than five years' eligible service at the time of her resignation on 5 December 1985. 10 On 10 September 1996, Ms Dexter made a further application to make a late election to preserve her CSS benefits. On 26 February 1997, a delegate of the CSS Board decided to allow the late election, recognising that Ms Dexter's period of employment with DAS, aggregated with her earlier employment with the ANU, counted as eligible service for CSS purposes, and totalled more than five years. 11 On 13 March 1997, Ms Dexter repaid $8094.18, the total of her refunded contributions from the CSS fund, to the CSS fund. She thereby became a deferred benefit member of the CSS and was treated as having re-entered the CSS from 2 February 1992, when she commenced employment with DoFA. 12 On 24 March 1997, Ms Dexter elected to transfer from the CSS to the PSS. Such a transfer involved the calculation of the value of the benefits transferred. That calculation was made, taking into account the repaid contribution. 13 On 4 April 1997, Ms Dexter left the APS as a result of retrenchment. 14 On 18 March 1997, Ms Dexter wrote to the Commissioner and the CSS Board. Her letter referred to the terms of a CSS leaflet entitled 'Preservation of Benefits'. Her letter contained arguments that Ms Dexter had been disadvantaged unfairly because of wrong advice at various points. The letter complained about a decision not to apply interest to the repaid contributions for the period between their withdrawal in 1987 and the 1992 date of re-entry into the CSS. The letter also contained the following: 'If the interest due to me would cause undue hardship to CSS members if paid through the CSS, then I consider that the Commonwealth should consider making an ex gratia payment to cover the amount, in recognition of its appallingly misleading advice and wrongful actions relating to this case over the years. ... I am therefore now lodging this appeal with the Board of Trustees to consider my application for my case to be treated in all ways as if my original request to DAS to preserve my benefit as a deferred benefit had been acted on in 1987, including, in accordance with Comsuper's published CSS policy, that:

The $8094.18 which I have now repaid to the CSS should be treated as if it had been credited as a deferred benefit to the CSS on 3 February 1992, when I rejoined Commonwealth employment and therefore reentered the CSS. As of that date my CSS superannuation should receive credit for my previous CSS membership and the accumulated amounts of my benefit; and
Interest should be applied to the $8094.18 from the date in 1987 when it should have become a deferred benefit (ie the date DAS withdrew it against my objections) to 3 February 1992, when it should be credited to the CSS.' 15 The CSS Board received advice from two persons from the Review and Legal Services Branch of ComSuper, dated 6 August 1997. They recommended that the 'claim for lost interest should be denied.' Their reasoning was summarised in the written recommendation as follows: '2. For the following reasons it is advised that Ms Dexter's claim should be denied: · the CSS Interest Regulations/Determinations do not provide for interest on backdated contributions to the CSS Fund - interest only accrues from when those contributions are remitted to the CSS Fund; there is no provision for interest on amounts not in the Fund; · this result is consistent with the concept of "interest" as being compensation by a third party to a person for the use of that person's money; · the Interest Regulations/Determinations amount to an exclusive code governing the payment of interest on benefits which excludes any common law rights a person may have to claim interest - for example, as compensation for a negligence claim; · any statements in the CSS leaflet "Preservation of Benefits" regarding the payment of interest on preserved benefits cannot found legal rights inconsistent with the Interest Regulations/Determinations. In any event, Ms Dexter has misread the leaflet and what it says about the payment of interest.

In relation to Ms Dexter's alternative request for an ex gratia payment, the basis for such a payment would be as compensation for a negligent misstatement. Ms Dexter alleges she was misadvised by her employer the Department of Administrative Services ("DAS"). To the extent that Ms Dexter may have been provided with incorrect information by DAS, her remedy is with DAS which allegedly provided the incorrect information knowing that Ms Dexter was relying on it.' 16 On 14 August 1997, one of the two persons from the Review and Legal Services Branch wrote to Ms Dexter, on the letterhead of ComSuper, advising her: 'Your request for interest was treated by this Office as a legal claim for interest. Your claim has been denied because payment of interest on monies in the CSS Fund is governed by the CSS Interest Regulations/Determinations made under the Superannuation Act 1976 ("the 1976 Act") which do not provide for retrospective interest on contributions remitted to the CSS Fund. Interest only accrues from when those contributions are remitted to the CSS Fund. In the situation of a member, such as yourself, who has been successful in an application for a late election for preservation, interest is calculated according to the Interest Regulations/Determinations from the date the monies are remitted to the CSS Fund. The amount you repaid pursuant to section 140(2) of the 1976 Act is treated as "contributions" for purposes of the Interest Regulations/Determinations and accrues interest from when it is repaid into the Fund, and not from any point in time before that occurs.' 17 The letter went on to advise that Ms Dexter had misunderstood the terms of the CSS leaflet, and pointed out that no statement in a leaflet could override the position that the interest regulations and determinations made under the 1976 Act did not provide for retrospective interest. The letter also said: 'In your letter of complaint you made an alternative request for an ex gratia payment, the basis for such a payment would be as compensation for a negligent misstatement. You alleged that you were misadvised by your former employer the Department of Administrative Services ("DAS") concerning your options upon resignation. The alleged misadvice is with regard to the required minimum length of "eligible employment" of five years to enable you to have preserved your superannuation rights at the time of ceasing your employment with DAS. According to ComSuper records this Office only became aware of your prior employment with the Australian National University ("ANU") when you applied for a late election to preserve your superannuation rights by letter dated 22 November 1993. However, to the extent that you consider you were misadvised by DAS, you should pursue the matter with that Department.'

18 By letter dated 10 September 1997, Ms Dexter advised the Commissioner, the CSS Board and ComSuper that she was complaining and requesting the CSS Board to reconsider ComSuper's 'superficial negative response' dated 14 August 1997 to the complaint of 18 March 1997. In that letter, she said: 'Comsuper's lack of understanding of the whole basis of my appeal is initially apparent in the opening paragraphs, where my appeal is equated to a simple request for payment of interest on a deferred benefit following a straightforward late election to preserve benefits, uncomplicated by any other special considerations. Comsuper reduces my appeal to a simple request that: "... you be paid interest on your deferred benefit while it was not in the CSS fund ..." and notes that "... your request for interest was treated by this Office as a legal claim for interest ... governed by the CSS Interest Regulations/Determinations made under the Superannuation Act 1976 ...". This trivialises my appeal. I am already well aware of the provisions of that Act governing retrospective interest, and had my late election to preserve benefits been a normal case I would not have wasted my time appealing. By equating my appeal to a request for interest "... while [my deferred benefit] was not in the CSS fund ..." Comsuper has totally ignored the central fact, recognised by the Board of Trustees in its positive decision of 26 February 1997, that the only reason why my superannuation benefit was not in the CSS fund was because of the unjustified action of DAS, as Comsuper's agent, in denying me the opportunity to preserve my benefit upon my resignation in 1985. Comsuper has ignored the actual matter of my appeal, which, to repeat what I have previously stated, involves very serious issues of personal disadvantage arising solely from Commonwealth negligence, misleading and wrong advice, and failure of the Commonwealth in its duty of care owed to an APS and Comsuper member. The matter of my appeal was clearly stated more than once in my letter as the restitution by Comsuper of my full rights as a deferred benefit CSS member, rights which: ♦ would automatically have been accorded to me had DAS, as Comsuper's agent, acted correctly in 1987 on my express request to preserve my superannuation benefit; and

♦ were denied to me solely because of DAS' misleading, ignorant and negligent insistence that not only could I not preserve my superannuation benefit in the CSS, but that such an option actually did not exist, except in the form of deposit of a lump sum into a rollover fund.' [Emphasis in original] 19 Ms Dexter drew attention to the terms of her letter of 18 March 1997, quoting a substantial passage from it. Further, her letter of 10 September 1997 said: 'The resolution that I seek is that my case be treated in all ways as if my original request to Comsuper's agent, DAS, to preserve my benefit upon my resignation as a deferred benefit had been correctly acted on in 1987. This involves the restitution by Comsuper of my full rights as a deferred benefit CSS member, dating from 1987 when DAS acted to withdraw my benefit and deposit it in a rollover fund despite my expressly stated desire that my benefit should be preserved in the CSS. The resolution of my complaint includes as a corollary the reconsideration and quashing of the decision, communicated in Comsuper's letter of 21 March 1997, to devalue my already unfairly reduced superannuation benefit by treating my deferred benefit as a special payment, and basing calculations on a CSS to PSS transfer which legally never actually took place. The implications of my appeal include, in accordance with Comsuper's published CSS policy, that: ♦ the $8094.18 deferred benefit which I have repaid to the CSS should be treated as if it had been credited as a deferred benefit to the CSS on 3 February 1992, when I rejoined Commonwealth employment and therefore reentered the CSS. As of that date my CSS superannuation should receive credit for my previous CSS membership and the accumulated amounts of my benefit; ♦ my start date for contributory service should be the date I first joined DAS, which was 15 January 1979. Comsuper staff advised me of this implication, and I mentioned it in my letter to Comsuper dated 7 March 1997; ♦ my start date for tax purposes is now the date I first joined ANU, which was 9 February 1976. Comsuper staff also advised me of this implication, and I mentioned it also in my letter to Comsuper dated 7 March 1997; and

♦ interest should be applied to the $8094.18 from the date in 1987 when it should have become a deferred benefit (ie the date DAS withdrew it against my wishes) to 3 February 1992, when it should be credited to the CSS.' [Emphasis in original] 20 The letter also advised that Ms Dexter had referred the matter to the Tribunal. 21 On 4 February 1999, the CSS Board met and accepted a recommendation that it: 'affirm the decision that Ms Dexter's accumulated contributions in respect of a previous period of contributory service, refunded on 19 March 1987 and repaid under subsection 140(2) of the Superannuation Act 1976 (the Act) on 13 March 1997, only commenced to accrue interest again in accordance with the Superannuation Act 1976 (Interest) Determination from the date that they had been repaid to the Superannuation Fund'. 22 The Board also approved an instrument setting out a statement of reasons for its decision. That statement of reasons dealt only with the issue of retrospective interest. 23 Ms Dexter's application to the Tribunal for review was dealt with by written decision and reasons dated 3 July 2002. Under the heading 'Tribunal's Determination', the Tribunal said: 'Pursuant to sub-ss.37(1)(a) of the Complaints Act, the Tribunal has all the powers, obligations and discretions of the Trustee. Sub-ss.37(6) of the Complaints Act provides that the Tribunal must affirm the Trustee 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)(b), (4) and (5) of the Complaints Act, the Tribunal remits the complaint back to the Trustee for consideration in accordance with the following directions of the Tribunal, namely (1) that the Trustee is to consider settling or compromising the Complainant's claim for interest pursuant to the powers conferred on it under section 27D of the Act or otherwise and having regard to the Tribunal's comments above. (2) that the Trustee should consider whether there are any other items of significant detriment to the Complainant arising from the misleading and erroneous advice given to her, and if so, how they might best be remedied so as to remove any unfairness or unreasonableness.'

The legislation 24 The CSS Board is established by s 27A of the 1976 Act. Its full title is the Commonwealth Superannuation Board of Trustees No. 2. Section 27C confers on the CSS Board various functions. The principal function is found in s 27C(1)(a): 'to manage and invest the Fund so as to maximise the return earned on the Fund, having regard to: (i) the need to make provision for payments out of the Fund under this Act; and (ii) the need for equity among eligible employees; and (iii) the need to exercise reasonable care and prudence in order to maintain the integrity of the Fund'. 25 The CSS Board also has the power to give various directions and certificates, and to make decisions, determinations and declarations under sections specified in the subsequent paragraphs of s 27C(1). In particular, par (k) gives the CSS Board power to reconsider decisions in accordance with Pt XA. Section 27D provides: 'Subject to this Act, the Board has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.' 26 The term 'eligible employee' is defined in s 3(1) of the 1976 Act. The definition is extensive, but it may be taken for present purposes that it applied to Ms Dexter when she was employed by DAS and a member of the CSS. The 1976 Act provided two alternatives upon a person ceasing to be an 'eligible employee'. The first alternative, found in s 80, was the payment of a lump sum benefit of an amount equal to the person's accumulated contributions. The second alternative was the making of an election, by notice in writing, pursuant to s 137(1), to preserve the existing benefit. 27 Preservation of benefits offered two advantages to a person who subsequently again became an eligible employee. Pursuant to s 8(2) of the 1976 Act, the previous period of contributory service was added to the subsequent period. The second advantage was that, pursuant to s 7A(2), the value of the person's accumulated contributions at the time of preservation, plus interest accrued while the benefit was preserved, were added to the person's subsequent accumulated contributions. 28 Section 137(1) of the 1976 Act required that, if an election to preserve existing benefits was to be made, it must be made 'not later than 21 days after the person so ceases to be an eligible employee'. Despite this provision, s 157(1) empowered the Commissioner to direct that an election made after the expiration of the period allowed should be treated as if it had been made within that period, if the Commissioner was satisfied that such treatment was desirable in all the circumstances. 29 In the case of a late election, after a former eligible employee had received a lump sum benefit pursuant to s 80, s 140(2) provided that: 'the election does not have effect unless an amount equal to that amount or the aggregate of those amounts, as the case requires, is paid to the Commissioner within 7 days after the date of the election or within such further period as the Commissioner, in special circumstances, allows.' 30 By s 140(3), the amount paid was paid into the Consolidated Revenue Fund and an equivalent amount was required to be paid into the CSS fund out of the Consolidated Revenue Fund. 31 Section 154A(1) of the 1976 Act provided: 'Where, under any provision of this Act, interest is payable in respect of an amount, the interest must be calculated, and is payable, in accordance with a determination made by the Board for the purposes of that provision.' 32 Section 154A(4) provided: 'Regulations in force immediately before 1 July 1990 and making provision in relation to interest for the purposes of any of the provisions in relation to which this subsection applies: (a) remain in force on and after that date; and (b) are taken, for the purposes of those provisions as in force on and after that date, to be determinations made by the Board; and (c) may be amended or repealed by such determinations.' 33 The regulations to which s 154A refers are the Superannuation (Interest) Regulations (Cth) ('the Interest Regulations'). Regulation 5 of the Interest Regulations prescribes the manner of calculation of interest, for the purpose of adding it as part of accumulated contributions, pursuant to s 7A of the 1976 Act. Regulation 5 also prescribes the period in respect of which interest is to be calculated. For present purposes, it is unnecessary to examine in more detail the provisions of the Interest Regulations. 34 The PSS was established by the 1990 Act. By s 244 of the 1976 Act, an eligible employee may in writing declare a wish to become a member of the PSS and elect to cease to be an eligible employee. In that event, the PSS Board calculates a 'transfer multiple', representing the credit to be given in the PSS in respect of transferred entitlements from the CSS. The calculation is by reference to the person's accumulated contributions. 35 The Tribunal is established by s 6 of the SRC Act. By s 11, the Tribunal is obliged to pursue the objectives of providing mechanisms for the conciliation of complaints and, if a complaint cannot be resolved by conciliation, the review of a decision or conduct to which the complaint relates, or the arbitration of the complaint, that are fair, economical, informal and quick. 36 The foundation for the Tribunal's power to deal with a complaint is found in the following provisions: '14AAComplaints may be made about discretionary or non-discretionary decisions (1) To avoid doubt, a complaint may be made under this Part about a decision whether or not the decision involved the exercise of a discretion. (2) However, a decision that did not involve the exercise of a discretion is taken to have been unfair and unreasonable if the decision was contrary to law. 14 Complaints about decisions of trustees other than decisions to admit persons to life policy funds (1) This section applies if the trustee of a fund has made a decision (whether before or after the commencement of this Act) in relation to: (a) a particular member or a particular former member of a regulated superannuation fund ... (2) Subject to subsection (3) and section 15, a person may make a complaint (other than an excluded complaint) to the Tribunal, that the decision is or was unfair or unreasonable.' 37 Section 37 of the SRC Act sets out the powers of the Tribunal in dealing with complaints under s 14. It provides relevantly as follows: '(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). ... (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.'

The Tribunal's reasons 38 From submissions made by Ms Dexter, the Tribunal was aware that she saw her problems as stemming from an incorrect refusal to recognise that, in 1987, she had a right to preserve her benefits, and from the continuing refusal to recognise that right. Ms Dexter was complaining that she had not been placed in the same position as if she had been advised correctly in 1987. As the Tribunal said: 'One example of this is that retrospective interest (which would have accrued if her benefit had been left in the Fund) was denied for the period 1987-1992, which had a detrimental affect on her benefits and the Transfer Multiple applicable to her right to transfer to another fund. Other alleged failures to restore her position have been set out previously.' 39 The Tribunal then referred to Ms Dexter's appeal against the decision to deny her retrospective interest and to an alleged right to damages. It also referred to an application by Ms Dexter for an act of grace payment from the relevant department, stating that the Tribunal had no jurisdiction in relation to such payments. The Tribunal also referred to the CSS Board's submission, which contended that the decision on interest was mandated by the 1976 Act and the Interest Regulations. The Tribunal then referred to Ms Dexter's submission in reply, in which she pointed out that the CSS Board's submission 'seeks to unduly restrict the Tribunal's review of her complaint, whereas the real causes of the complaint should be considered.' Ms Dexter submitted to the Tribunal that the CSS Board should have considered alternative means of meeting her claim, instead of relying on legal technicalities. She submitted that the Tribunal should consider the ethics of the actions of the CSS Board and the fund administrator. 40 In its reasoning, the Tribunal said: 'The Tribunal agrees with the Trustee's submission that the Tribunal has no power under the Complaints Act to make any determination regarding the Complainant's election and rollover of benefits in 1985/6 (because the Fund was not then a 'regulated fund') or regarding the 1997 Decision (because it is not the subject of the complaint now before the Tribunal). However, this does not in the Tribunal's view prevent it from having regard to those matters to the extent that they are relevant to this complaint. The Tribunal notes that, in fact, the Complainant has no desire to have the 1997 Decision altered. Rather, she seeks to have perceived shortcomings in the way in which the Trustee has implemented that decision remedied.' 41 The Tribunal then referred to ss 27C and 27D of the 1976 Act and to the beneficial purpose of the legislation. It continued: 'Accordingly, the Tribunal considers that s.27D would include powers: (a) to rectify or prevent any unintended inequity that may arise from a strict application of the Act or Regulations to it or from any failure by the Trustee to carry out its functions under s.27C. (As will be seen below, the Trustee has effectively used such a power in relation to a perceived oversight in the Interest Determination.) (b) to compromise claims made in relation to the Fund, especially where this is done to better achieve the purposes of the Act and to remove an inequity.' 42 The Tribunal then turned to the question of interest on the money refunded to the fund. The Tribunal accepted that, from 1985 through to at least 1994, Ms Dexter was misinformed by 'appropriate official sources' on which she should have been able to rely as to her rights. It accepted that, in 1987, her employer withdrew her superannuation benefit from the fund and deposited it in a rollover fund, despite her expressed wish to preserve her benefit in the fund. The employer wrongly claimed that she did not have the required period of public employment to preserve her superannuation. The Tribunal accepted that the employer was one of the 'appropriate official sources' on which Ms Dexter should have been able to rely. The Tribunal accepted that Ms Dexter in fact elected for preservation, as she was entitled to do, but was prevented from putting this in writing, as required by s 137 of the 1976 Act, by the insistence of the relevant official persons that this was impossible. It found that, against her will, she was forced to roll over her contributions into another fund, where they accrued interest at a rate similar to that which they would have accrued had they remained in the fund. It said that representations to Ms Dexter that preservation under the 1976 Act was the same thing as a rollover were wrong and potentially detrimental to her. The Tribunal found that she was continually misled and frustrated by misstatements and lack of relevant knowledge by officers who should have known better and that the CSS Board did not appear to give her adequate information to advise her of her rights at the time. 43 The Tribunal acknowledged that it had no jurisdiction to make a determination affecting what occurred in 1985 or 1987. It nevertheless found that it was plain that Ms Dexter should never have been 'improperly exited' from the fund 'as appears to have occurred' and that her election to roll over and the rollover of her contributions were not accompanied by any real will on her part. 44 The Tribunal said: 'The Tribunal considers that it is only fair and reasonable that any detriment to the Complainant arising from such circumstances should be remedied to the maximum extent possible. The 1997 Decision found only that it was desirable that the Complainant's election under s.137(1) made in 1996 should be recognised and 'treated as if made within the period allowed and have effect' (such words directly reflecting the final words of s.157(1)). It did not mention the question of remedying any detriment to the Complainant. This complaint arises because the steps taken by the Trustee do not fully place the Complainant in a similar position to that which she would have had if she had been allowed to carry out her decision to preserve in 1985/6. One aspect of this is that, if the Complainant had been allowed to carry out her wish to preserve originally, her money would have remained in the Fund accruing interest, which would have been included when subsequently calculating her entitlements from the Fund, including her 'Transfer Multiple' when exercising a right to transfer to a particular new fund.' 45 The Tribunal observed that all Ms Dexter sought was to be placed in the same position as she would have enjoyed had her original election to preserve been permitted to proceed. For this purpose she had offered to pay into the CSS fund all interest accrued on the benefit that she was forced to roll over. Because this interest was almost identical in amount to that which would have accrued to Ms Dexter in the fund, this would not seem to involve any financial loss to the CSS fund. 46 The Tribunal then referred to three possible alternative ways in which the CSS Board might have approached Ms Dexter's complaint. It suggested that the CSS Board might have accepted, as well as the refund of the amount previously paid out, the payment into the CSS fund of the interest accrued on that sum in the fund to which it had been rolled over. This would have avoided the need for resorting to the Interest Regulations at all. Second, the Tribunal drew attention to one respect in which the CSS Board had declined to be bound by the literal words of the Interest Regulations, and had applied them in a manner not wholly in accordance with their apparent meaning, in order to produce what the CSS Board regarded as a reasonable result. The Tribunal expressed agreement with this, saying that the CSS Board seemed to have applied s 27D of the 1976 Act. The Tribunal had difficulty with the fact that the CSS Board, having effectively changed the meaning of 'prescribed amount' in a commonsense way to meet the particular circumstances, proceeded to apply the literal words of the Interest Regulations to defeat a claim that had obvious merit. It recognised that the CSS Board could not just ignore the Interest Regulations without good reason, but pointed to the inconsistency. It also made some criticism of the CSS Board's reasoning in relation to the meaning of 'contributions'. The third possibility to which the Tribunal pointed was related to another instance of the exercise of flexibility by the CSS Board, by which it avoided an inequity in relation to the calculation of the relevant transfer multiple. Again, this was an instance of inconsistency, but the CSS Board stopped short of truly remedying the inequity. The Tribunal admitted that there 'is a limit to the extent to which this kind of power should be used, but the Tribunal would have thought that in such a clear case as this, using some extra flexibility to meet the Complainant's position would be fair and reasonable.' 47 The Tribunal then said: 'The Tribunal does not consider that it is appropriate for it to make a determination binding on the Trustee as to which, if any, of the above alternative methods should be adopted in this case. They are advanced only as possible ways in which a fair and reasonable result might have been achieved.' 48 The Tribunal then referred to the issues of damages and act of grace payments. It recognised that it did not have unlimited powers to rectify complaints. It did not have power to award damages, even though not satisfied that the CSS Board duly carried out its functions under s 27C. The Tribunal said: 'However, the Tribunal does have power to require the Trustee to consider the use of its powers to compromise the claim under the Trustee's powers under s.27D (Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330, at p. 33, 34. [sic]' 49 The Tribunal also recognised that it had no power to make any determination in relation to applications for an act of grace award or decisions on such applications. 50 In summarising its reasoning on the claim for interest, the Tribunal said: 'In all the circumstances, the Tribunal considers that the decision of the Trustee not to allow interest on the amount refunded by the Complainant was unfair and unreasonable in its application in relation to the Complainant. However, the Tribunal considers that the Complaints Act does not permit it either to make a finding of damages against the Trustee, or to direct the Trustee that it is to act on the basis of directions that the Tribunal might make as to how the Trustee should implement provisions of the Act or the Interest Determination other than in accordance with their apparent meaning (because the Tribunal cannot act contrary to the law). The Tribunal therefore has no option in order to remedy the unfairness and unreasonableness to the Complainant but to refer the decision back to the Trustee for further consideration in the light of the directions set out below. The Tribunal is aware that, regrettably, this will further delay the resolution of this matter and trusts that the Trustee will see its way clear to dealing with it with a greater degree of expedition and compassion than has been evident in the past.' 51 The Tribunal then turned its attention to what it called the subsidiary claim, which appears to have been its description of Ms Dexter's claims with respect to the starting date for her contributing service and the starting date for tax purposes. The Tribunal remarked that it remained unclear precisely what result Ms Dexter was seeking in regard to this claim. It referred to a submission on behalf of the CSS Board with respect to the claims. The Tribunal noted that Ms Dexter's submission in reply did not comment on that submission and it might be that she was satisfied on those points. The Tribunal then said: 'Nevertheless, in light of the Tribunal's strongly-held view that the Trustee should, in the circumstances of this case, do all in its power to prevent the Complainant's superannuation position being damaged by the errors of the 'appropriate official sources' referred to above, the Tribunal proposes to include in its directions to reconsider the complaint a direction that consideration be given to whether there are any outstanding significant items of detriment to the Complainant and, if so, how they might best be remedied. The Tribunal can do no more.' 52 The Tribunal then expressed its determination, the terms of which I have set out in [23].

The CSS Board's case 53 The CSS Board's notice of appeal raised what were said to be a number of questions of law arising from the Tribunal's decision: '2.1 the proper construction of: (a) the 1976 Act; (b) the Interest Determination made under s 154A of the 1976 Act (the Interest Determination); and (c) the Superannuation Act 1990 (the 1990 Act); 2.2 whether the Interest Determination, on its proper construction, authorised the CSS Board to add to Ms Dexter's accumulated contributions re-paid into the CSS Fund an amount of interest in respect of the period from the date when those contributions were refunded to Ms Dexter the date from which the CSS Board treated Ms Dexter as having re-paid those contributions into the CSS Fund (the relevant period);

2.3 whether it is open to the Tribunal to make a determination under s 37(3)(b) of the SRC Act remitting a matter to a trustee for reconsideration unless the Tribunal concludes that the trustee's construction of the trustee's legal obligations under the relevant legislation was erroneous; 2.4 whether, on the proper construction of the Interest Determination, it was incumbent on the Tribunal to: (a) find that the decision of the CSS Board, not to add interest to Ms Dexter's accumulated contributions in respect of the relevant period, was fair and reasonable in its operation in relation to Ms Dexter in the circumstances within s 37(6) of the SRC Act; and (b) pursuant to s 37(4) and (6) of the SRC Act, to affirm the CSS Board's decision not to add to Ms Dexter's accumulated contributions re-paid into the CSS Fund an amount of interest in respect of the relevant period; 2.5 whether the Interest Determination or the 1976 Act, on its proper construction, authorised the CSS Board to accept, as a payment into the CSS Fund, "the original sum [the refund of Ms Dexter's accumulated contributions] augmented by the amount of the interest which has accrued upon it" (the augmented payment); 2.6 whether, on the proper construction of the Interest Determination, it was incumbent on the Tribunal to: (a) find that the decision of the CSS Board, not to accept the augmented payment, was fair and reasonable in the circumstances in its operation in relation to Ms Dexter within s 37(6) of the SRC Act; and (b) pursuant to s 37(4) and (6) of the SRC Act, to affirm the CSS Board's decision not to accept the augmented payment; 2.7 whether it was open to the Tribunal, consistent with the limitations on its decision-making powers under s 37(3), (4) and (6) of the SRC Act and the limitations on the powers of the CSS Board under the 1976 Act and Interest Determination, to direct the CSS Board to exercise its powers under the Interest Determination and the 1976 Act to remedy and remove "any other items of significant detriment to [Ms Dexter] arising from the misleading and erroneous advice given to her"; 2.8 whether it was incumbent on the Tribunal to affirm the PSS Board's decision to calculate Ms Dexter's "transfer multiple" for the purpose of the superannuation scheme established pursuant to the Superannuation Act 1990 on the basis of the CSS Board's determination of Ms Dexter's accumulated contributions in the CSS Fund as at the commencement of Ms Dexter's membership of the PSS Fund'. 54 Submissions made on the appeal were critical of the Tribunal's suggestions as to possible ways in which the CSS Board might remedy Ms Dexter's situation. The CSS Board also contended that a decision in relation to interest did not involve any discretion, and that the effect of s 14AA(2) was that a non-discretionary decision which is not contrary to law must be taken to be fair and reasonable. Accordingly s 37(6) of the SRC Act obliged the Tribunal to affirm the decision under review. 55 The CSS Board submitted that the Tribunal could not form the view that the decision under review was unfair and unreasonable by reference to Ms Dexter's earlier history in the CSS and without regard to the 'governing rules of the fund', which were the 1976 Act and the Interest Regulations. The CSS Board also submitted that the Tribunal misconstrued s 27D of the 1976 Act, the powers in which are expressed to be subject to other provisions of the 1976 Act. Section 27C conferred functions on the CSS Board which could not be exercised by ignoring the terms of the 1976 Act. No claim could be compromised if that compromise involved administering the 1976 Act in a manner inconsistent with its terms. 56 The CSS Board's submissions pointed to the limitation placed by s 37(4) of the SRC Act on the Tribunal's powers under s 37(3). It contended that the Tribunal lacked the power to direct the CSS Board to undertake a consideration of other items of significant detriment to Ms Dexter, which it contended referred to items of detriment other than those associated with the decision under review, and to attempt to remedy those. It also submitted that the other items of detriment included those arising from decisions made by the PSS Board under the 1990 Act, which were not the subject of any complaint to the Tribunal, nor of the Tribunal's review and were decisions for which the CSS Board has no responsibility. 57 The CSS Board submitted that the Tribunal's conclusion that the CSS Board's decision was not fair and reasonable was vitiated by: · the Tribunal's failure to determine whether the CSS Board's application of the provisions of the 1976 Act and the Interest Regulations was contrary to law; · the Tribunal's consequential failure to determine that the decision under review, that interest on Ms Dexter's payment into the CSS commenced from the day when the amount was paid in, was unfair and unreasonable in its operation in relation to the respondent; · the Tribunal's resort to the perceived unfairness and unreasonableness of other aspects of the conduct of the CSS and the PSS; and · the Tribunal's failure to distinguish between the decision of the CSS Board that was under review and other matters, including 'other items of significant detriment' and decisions of the PSS Board.

The Tribunal's powers 58 In Colonial Mutual Life Assurance Society Limited v Brayley [2002] FCA 1333 at [27] - [34], Branson J reviewed the provisions of ss 14AA, 14 and 37 of the SRC Act and a number of authorities relating to those provisions and set out in a very useful summary the manner in which the Tribunal is intended to function. I respectfully adopt what her Honour said, without repeating it in these reasons for judgment. Her Honour seems to have accepted, as did R D Nicholson J in Alcoa of Australia Retirement Plan Pty Ltd v Thompson [2002] FCA 256 (2002) 116 FCR 139 at [45], that the first task of the Tribunal is to determine whether the decision under review is fair and reasonable. As Branson J said at [32] and [33] in Brayley, if the Tribunal is not satisfied that the decision was fair and reasonable in the circumstances, it must then proceed to determine whether, consistently with the general law, the governing rules of the fund concerned and any contract of insurance between an insurer and a trustee, the unfairness or unreasonableness that the Tribunal has identified can be addressed in whole or in part. If the Tribunal concludes that it cannot address, in whole or in part, the unfairness or unreasonableness identified by it without acting in a manner that is contrary to law, the Tribunal is required by s 37(5) to leave the perceived unfairness or unreasonableness unaddressed. If it can address it, the Tribunal is obliged to act in accordance with s 37(4), by exercising its powers under s 37(3) for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness or unreasonableness no longer exists. 59 In so doing, the Tribunal has the power to look beyond the actual formal decision of the trustee. In Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330 (2001) 48 ATR 359, Allsop J dealt with a case in which a trustee had taken a narrow view as to how it would deal with a controversy as to the entitlement of a member of its superannuation fund. Under cl 7(c) of its trust instrument, the trustee had a power to compound any claim. At [132] - [133], Allsop J said: 'The Trustee decided to reject Ms Crocker's claims without a consideration of whether it should act under cl 7(c). In that sense, the Trustee made no decision under cl 7(c). Thus it was said by the Trustee that the Tribunal had (and would have) no jurisdiction to entertain any such matter. I do not accept this. It is true that if the matters thrown up by events and circumstances, including correspondence from the member, do not properly raise anything beyond what was in fact decided by the Trustee, it is not appropriate for the tribunal, with a matter before it received by way of s 14 and under Pt 4 of the Superannuation (Resolution of Complaints) Act 1993 (Cth), to take the opportunity to deal with other aspects of the relationship between the member and the Trustee foreign to the decision for review: see Hay v Briffa. However, the correspondence of the kind from Ms Crocker and Mr Woodgate and her complaint to the Trustee should not be read, parsed and analysed with the eye of a pleader. This is especially so in a case such as this where it is patent from an examination of the relevant correspondence, which would have been on the Trustee's file, that one aspect of Ms Crocker's position was that she had been told a number of times over the years that she did have disability cover. In those circumstances, I do not think that the fact that the Trustee limits its decision to one basis of examination of her entitlements confines the task of the tribunal, when one appreciates the scope of para 37(1)(a). Indeed, it might well be said that the limitation of the Trustee's decision to the legal ground of entitlement under the policy is the source of the unfairness or unreasonableness of the decision since it is made to seem (it not being the case) that the conformity of the decision with r 5A.1 of the trust rules meant that the decision to reject the claim was required by the trust deed when, in fact, it was open to the Trustee to consider compounding the claim, if that were thought appropriate in all the circumstances.' 60 It is apparent from what his Honour said that the Tribunal is not confined in its examination of the fairness and reasonableness of a decision by the manner in which the original decision-maker has treated the subject.

The approach of the Tribunal 61 The CSS Board's appeal in the present case seeks to confine the Tribunal to the way in which the CSS Board itself dealt with Ms Dexter's claims. Because the CSS Board chose to deal with Ms Dexter's claim as one for interest and to confine its attention to s 154A of the 1976 Act and to the Interest Regulations, it contended that the Tribunal was obliged to do the same. This was the very argument that was rejected by Allsop J in Crocker. In that case, his Honour held that the Tribunal ought to have taken a broader view, and to have considered whether it should exercise, pursuant to s 37(1)(a) of the SRC Act, the power to compound a claim available to the trustee. In the present case, the Tribunal did the opposite. It acknowledged that the decision of the CSS Board on the question of interest was correct, and that the Tribunal could not overturn that decision. The Tribunal took the view that the CSS Board ought to have had a broader look at the problems raised by Ms Dexter and to have asked itself whether it had powers that it might have used to remedy those problems. In other words, the Tribunal identified unfairness and unreasonableness in the CSS Board's decision as a result of its finding to the effect that Ms Dexter had a lesser entitlement in the CSS than she would have had, if she had been given the correct advice and her wishes had been put into effect when she was entitled to have them put into effect. The Tribunal recognised that it could not address so much of that unfairness and unreasonableness as depended upon the CSS Board's decision with respect to the appropriate amount of interest. It could not do this because the decision with respect to interest was not a decision involving the exercise of discretion and, as the Tribunal recognised, it was not made contrary to law. 62 The Tribunal also reached the conclusion that it was not prohibited from giving effect to that aspect of the unfairness and unreasonableness of the CSS Board's decision, which the Tribunal also identified, that arose from the narrow way in which the CSS Board had dealt with the issues raised by Ms Dexter. This aspect of the CSS Board's decision was a matter of discretion. Like the Tribunal in Crocker, the CSS Board in the present case could have chosen to attempt to resolve so many of Ms Dexter's problems as it could resolve, instead of confining its attention to the question of interest. The decision to confine itself to the question of interest was a discretionary decision. The Tribunal was empowered to give effect to its view that this exercise of discretion was unfair and unreasonable, and to exercise its powers accordingly. 63 It may be that the CSS Board could do nothing about the wrong advice given to Ms Dexter in the aftermath of her first period of employment as a public servant, when her attempts to preserve her benefits in the CSS fund were thwarted. It is by no means so clear, however, that the CSS Board could do nothing to remedy the disadvantage to Ms Dexter brought about by the refusal to accept her first attempt to make a late election to preserve her benefit, in 1993. It would have been open to the CSS Board to recognise that, as a matter of fact, if that application had been granted, it would have been likely that Ms Dexter would have refunded her rolled-over lump sum benefit to the CSS fund some four years before she did so, with the consequence that she would have earned four years' more interest on that sum in the CSS fund than she did. Taking into account Ms Dexter's offer to bring into account, by paying into the CSS fund, the interest she actually received from the fund into which her earlier lump sum benefit had been rolled over, the CSS Board might have surveyed its powers, including those pursuant to s 27D of the 1976 Act, for the purpose of determining whether it could find a solution that would eliminate, or minimise, the disadvantage suffered by Ms Dexter. It might have found that the rejection of Ms Dexter's application to make a late election in 1993 was the result of the same error that had led to the rejection of her attempts to retain her benefit in the CSS fund in 1985, namely the error of ignoring her earlier employment at the ANU. 64 On this reasoning, some of the questions of law raised in the notice of appeal do not arise in this case at all. There is no doubt that the Interest Regulations authorised the CSS Board to make the decision it made in respect of the amount of interest in respect of the period following the repayment of the contributions into the CSS fund. Questions 2.2, 2.4, 2.5 and 2.6 appear to be based on the assumption that the Tribunal found that the CSS Board's decision on the matter of interest was incorrect. The Tribunal did not so find. It accepted the correctness of that decision. It merely took the view that that decision was not a complete answer to the task of the CSS Board in dealing with Ms Dexter's case and found that the exercise of the discretion of the CSS Board to deal with that case only as a question of interest was unfair and unreasonable. Question 2.7 does not arise, because the Tribunal did not purport to direct the CSS Board to exercise its powers in relation to interest in any particular way. The Tribunal made certain suggestions to the CSS Board, which may or may not have been suggestions that the CSS Board had power to adopt. They were, however, suggestions and not directions. If to adopt them would have involved exceeding the powers of the CSS Board, then the CSS Board had an obligation not to adopt the suggestions. What the Tribunal was seeking to produce was that the CSS Board would recognise that its decision in relation to interest left untouched issues raised by Ms Dexter as to her past treatment, and determine whether, within its powers, it had the capacity to do anything to relieve the disadvantage suffered by Ms Dexter. Of course, the Tribunal could not direct the CSS Board to exercise powers it did not have. It could not, and did not, direct the CSS Board to usurp the powers of the PSS Board, or to seek to undermine the powers of the PSS Board. 65 The only question of law that appears to me to be relevant is that raised by 2.3 in the notice of appeal. In the light of my reasoning in this case, I would answer that question by saying that it is open to the Tribunal to exercise its powers under s 37(3)(b) of the SRC Act to remit a matter to a trustee for reconsideration even if the trustee's view of its legal obligations was not erroneous. The Tribunal may exercise that power if it has found that a decision, or an aspect of a decision, was unfair or unreasonable as a result of the exercise of a discretion. Crocker leads to this conclusion. The present case was such a case.

Conclusion 66 It follows that the appeal must be dismissed. As I have said, Ms Dexter participated only by forwarding extensive written submissions. Those written submissions canvassed many issues of fact, which are not issues for the Court on an appeal on a question of law. The submissions did have the effect of emphasising that Ms Dexter desired the CSS Board to consider her claims in a context broader than simply determining the amount of interest to which she was entitled in consequence of the refund of her previous contributions to the CSS fund. In the circumstances, it would be appropriate to make an order for costs against the CSS Board, to compensate Ms Dexter for out of pocket expenses she has incurred in the appeal. The Court has power to make such an order. See Cachia v Hanes (1994) 179 CLR 403 and Goldie v Commonwealth of Australia [2002] FCA 433 (2002) 117 FCR 566 at [20] per Gray and Lee JJ. 67 It is impossible to part from this case without a comment. Counsel for the CSS Board informed me that the amount at stake in this case is between $27 000 and $35 000, depending on how Ms Dexter takes out her benefits from the PSS scheme. This is not a large amount of money for a party with the backing of the Australian government. It might well be a significant amount of money for Ms Dexter. I am not certain whether it takes into account her offer to bring into consideration the interest accrued on her lump sum benefit in the rollover fund. On any view, the amount in issue is not particularly large, compared with the costs to the CSS Board of the appeal. Counsel for the CSS Board told me that, in the event that the CSS Board were successful on the appeal, it did not seek costs against Ms Dexter. The CSS Board took the view that it was appealing in order to clarify the powers of the Tribunal. In my view, those powers are clear enough from cases such as Brayley and Crocker. It would have been appropriate for the CSS Board to have devoted its resources to the task set for it by the Tribunal, of seeking out a way or ways in which it might have eliminated or minimised the disadvantage suffered by Ms Dexter, rather than seeking to justify the position that the CSS Board took in the first place. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Solicitor for the applicant: Australian Government Solicitor

Counsel for the respondent: The respondent did not appear and was not represented

Superannuation Act 1976(Cth)ss 137, 157(1), 27A, 27C, 27D, 3(1), 80, 8(2), 7A, 140(2), 140(3), 154A, 244

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