37 Once the respondent notified its rejection of the appellant's claim in September 2005, which the appellant did not accept, it created a contest between the parties centred on ongoing argument and/or debate as to the appellant's entitlement to a TPD benefit. That much is clear by the correspondence of the appellant's solicitors to the respondent dated 11 November 2005. In short, once the appellant refused to accept the respondent's decision of 26 September 2005 rejecting his claim, a dispute arose between the parties. At the same time, the respondent advised the appellant of his appeal rights pursuant to ss 22 and 40 of the SA Act then in force.
38 In my view, given the provisions of s 16 of the transitional provisions earlier detailed, the existence of a dispute between the parties that arose on 26 September 2005 (or shortly thereafter) when the appellant disputed the respondent's decision, enlivens the jurisdiction of the Commission as provided in the SA Act and the FSS Act then in force.
39 The relevant provisions of clause 22 of the SA Act in force as at September 2005 provided in s 22(1):
A dispute under this or any other Act concerning an FTC scheme is to be determined by FTC or an FTC disputes committee, except as otherwise provided by the regulations.
40 Counsel for the appellant has raised the provisions of s 17(b) in the transitional provisions as vesting the Commission with jurisdiction. Section 17(b) provides that nothing in the amending Act affects:
a right to make an appeal in respect of a dispute or other matter that arose under that section before that commencement ; (emphasis added)
41 As is clear by reference to the above provisions in s 17(b), the right to appeal in respect of a 'dispute or other matter' is related to a dispute or other matter that arises ' under that section'. It seems apparent to me that 'under that section' refers to s 40 of the SA Act then in force and particularly s 40(1) which is in the following terms:
A person aggrieved by a determination of FTC or an FTC disputes committee under section 22 (relating to determination of disputes) may appeal against the determination to the Industrial Relations Commission in Court Session (the Commission ).
42 It seems clear to me that the appeal right provided in s 40(1) of the SA Act requires a dispute to be determined as a condition precedent to an appellant's right to appeal to the Commission.
43 Counsel for the appellant submitted that the letter written by the respondent to the appellant on 26 September 2005 is, in effect, indicative of a dispute between the parties as to the payment of a benefit and, further, is representative of a determination made by the respondent to that effect. Further, that it has not been determined by the Claims Review Committee as provided by the provisions of the Trust Deed and the Rules is not, it was submitted, a relevant consideration.
44 I do not agree the dispute that arose between the parties on or about 26 September 2005 has been determined as contemplated by ss 22 and 40 of the SA Act. Further, I do not agree that the provisions of the Trust Deed and Rules are not a relevant consideration in these proceedings. I will elaborate on that latter issue later in this judgment.
45 Section 22(1) of the SA Act refers to 'a dispute ... determined by FTC or an FTC disputes committee' and in s 40(1) 'a person aggrieved by a determination of FTC or an FTC disputes committee' may appeal. What the appellant says is that if the letter of 26 September 2005 does not constitute a determination for the purposes of s 22 of the SA Act, then it constitutes a dispute between the parties as provided for in s 16 of the transitional provisions and is therefore amenable to the jurisdiction of the Commission.
46 I would agree with the submission of counsel for the respondent that ss 16 and 17 of the transitional provisions are directed towards different ends. That is, s 16 is concerned with the determination by the Trustee of a dispute that arose before 1 May 2006 whereas s 17 is a specific provision expressly concerned with an appeal already instituted but not determined before 1 May 2006 with the right to appeal under s 40 of the SA Act.
47 I have determined that as at 26 September 2005 a dispute arose between the appellant and the respondent as to the appellant's entitlement to a TPD benefit payment. Further, as s 16 of the transitional provisions provides, that dispute 'is to continue to be dealt with' under the FSS Act and the SA Act then in force.
48 The question arises as to whether the appellant has the right of appeal to this Commission against that background notwithstanding that no formal determination has been made by the Claims Review Committee as provided in the Trust Deed and the Rules of the Fund, when taken together.
49 I am not persuaded that it does. I say that because I am not persuaded the appellant can simply put aside, for present purposes, the provisions clearly contained within the Trust Deed and the Rules, which the respondent is bound procedurally to observe, to enable the correspondence of 26 September 2005 and following to constitute a determination for appeal purposes as specified in s 40(1) of the SA Act.
50 It seems to me that what the letter of 26 September 2005 represented was the catalyst for a dispute, if that was to occur. In other words, the appellant had made a claim and, in its letter of 26 September 2005, the respondent rejected that claim in the terms as set out in that letter. On one view, that could have been the end of the matter. Alternatively, it was open to the appellant, if he disputed the decision made by the respondent, as he clearly did, to contest that decision. The process by which that dispute was to be determined was advised in that correspondence. That was that the appellant (or his solicitors) were to advise that a dispute existed and to have it determined by the Claims Review Committee as advised in that correspondence. It seems to me, until that latter process was observed, a dispute existed between the appellant and the respondent but it had not been determined.
51 Once the letter of 26 September 2005 was received the appellant did not accept the respondent's decision. He sought a further review of that decision and raised questions about a number of medical reports that, in his opinion, should have been pursued by the respondent. In short, the dispute was ongoing. In August 2006, nearly twelve months later, the appellant's solicitors again sought a further decision by the respondent as to the payment of a TPD benefit. The respondent replied, albeit in February 2007, again rejecting the appellant's claim and again notifying the appellant of his right to dispute that decision by seeking a review and determination by the Claims Review Committee of the respondent.
52 In that respect, the respondent was following the procedure as laid down in clause 27 of the Trust Deed. Clause 27 of the Trust Deed provides that the Trustee must determine disputes in accordance with ss 22 and 23 of the SA Act and, in doing so, provides that the Trustee 'may' determine to deal with such disputes in accordance with the procedure contained in the Rules. In this case it is clear the Trustee did have a provision in the Rules, that being clause 12.3, Disputed decisions. That is, a dispute between the Trustee and a member is to be dealt with either by a Disputes Committee of the Trustee or, in relation to the nature of the dispute before me, by the Claims Review Committee of the Trustee.
53 In the current situation that has not been done.
54 It seems to me it is not possible to activate the appeal rights to the Commission until such time as the dispute has been determined in accordance with the provisions contained in the Trust Deed. The Trust Deed sets out the rights and obligations of the parties to the Scheme, being the employer and the member. The Trust Deed in turn refers to and includes the Rules. It is to the Trust Deed and Rules together with the insurance policy of the respondent's insurer that the appellant turns to in order to ground his claim.
55 If that be the case, as it is, then it seems to me the appellant is obliged to observe the dispute determination process referred to in the Trust Deed and provided for in the Rules. To do otherwise would suggest it would be open to the respondent to ignore its obligations under the Trust Deed and the Rules in dealing with claims made by members and the processes it is required to follow. In my view, that is simply not a tenable proposition.
56 In my view, while clause 22(1) of the SA Act refers to a 'dispute', it requires the dispute to be determined by the FTC or the FTC disputes committee. Likewise, s 40(1) of the SA Act refers to 'a person aggrieved by a determination ... under s 22 (relating to determination of disputes) may appeal ...'
57 In the present case, the respondent, as the FTC, has provided for disputes to be determined as expressed in the Trust Deed by reference to the Rules.
58 The decision of the respondent made in February of this year represents the final decision in a dispute between the parties that has been ongoing since September 2005. It seems to me, however, the appellant is, at this point, unable to rely on the transitional provisions to vest this Commission with jurisdiction because it does not yet have a determination made by the respondent in accordance with the relevant provisions of the Trust Deed and the Rules of the Scheme. For the appellant to bring himself within the jurisdiction of the Commission, he must do so in accordance with those provisions.
59 The dispute between the appellant and the respondent arose on or about 26 September 2005. It now requires the appellant to formally request the dispute be determined by the Claims Review Committee of the respondent. If the Committee determined to reject the appellant's claim, that determination would then trigger the appellant's right to appeal to this Commission under s 40 of the SA Act in accordance with the transitional provisions in the FSS Act.
60 The question then arises as to whether, in all the circumstances, leave would be required. In my view, such leave would not be required because of the provisions of s 40(2) of the SA Act that provides:
The appeal must be made within 6 months after the appellant is notified of the determination or within such further period as the Commission allows.
61 It seems to me, once the appellant requests the respondent to refer the dispute to the Claims Review Committee and it is determined adversely to the appellant, then the Commission is seized with jurisdiction based on the dispute that arose on or about 26 September 2005. Accordingly, the out of time provisions contained within s 40(2) would not require to be activated. Instead, the appellant would rely on the situation that would appear to have arisen in Gedeon where, as Marks J observed, while Mr Gedeon's appeal had been initiated as a result of a letter from First State Super to Mr Gedeon, in his Honour's view, that appeal was 'premature'. However, there was a subsequent decision of the Claims Review Committee in November 2000. It was on that basis it was agreed the appeal should proceed in that it was properly constituted, Mr Gedeon's claim having been considered by the Claims Review Committee in November 2000. Such would be the case here. Mr Feint's dispute not having been determined, his appeal is 'premature'.
62 On this point, I would agree with the submission of counsel for the appellant that the power of the Commission to grant leave out of time is retained by the operation of the transitional provisions, specifically s 16 that provides that 'a dispute ... that arose before the commencement of this clause is to continue to be dealt with under this Act and the Superannuation Administration Act 1996, as in force before the commencement of this clause.'
63 The power of the Commission to extend leave to appeal is a power contained within s 40(2) of the SA Act which continues to operate by virtue of the transitional provision referred to. It is not an application for an 'indulgence' as contemplated in JR Exports Pty Limited v Australian Trade Commission (1986) 71 ALR 717 at 719.
64 In my view, for the reasons discussed, the Commission is seized with jurisdiction by virtue of the dispute that arose between the parties on or about 26 September 2005. However, that dispute has not been determined by the respondent in accordance with its Disputes procedure as provided under the Trust Deed and the Rules of the Scheme. Once that is done, and if adverse to the appellant, the determination of the Claims Review Committee may be appealed to this Commission, relying on s 16 of the transitional provisions in Schedule 3 of the FSS Act. I rule accordingly.
65 I will hear further from the parties on the question of costs.