David Feint v First State Super FSS Trustee Corporation

First State Superannuation Act 1992 LEGISLATION CITED: First State Superannuation Amendment (Conversion) Act 2005 Superannuation Administration Act 1996 Superannuation (Resolution of Complaints) Act 1993 (Cth)

Druery v First State Super FSS Trustee Corporation (2005) NSWIRComm 255 CASES CITED: Gedeon v First State Super Trustee Corporation (2005) NSWIRComm 62 JR Exports Pty Limited v Australian Trade Commission (1986) 71 ALR 717

APPELLANT: Mr M Gollan of counsel SOLICITORS: Firths, The Compensation Lawyers

LEGAL REPRESENTATIVES: RESPONDENT: Mr A J McInerney of counsel SOLICITORS: Turks Legal

• 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Staunton J DATE: 9/10/2007

Matter No IRC 517 of 2007 David Feint v First State Super FSS Trustee Corporation

Application by David Feint to appeal against the decision of First State Super FSS Trustee Corporation given on 25 September 2005

1 The appellant appeals pursuant to s 40 of the Superannuation Administration Act 1996 (SA Act) against a decision by the respondent to refuse the appellant's claim for payment of Total and Permanent Disablement (TPD) benefits. 2 Before that matter can be considered, the respondent has challenged the Commission's jurisdiction to hear and determine the matter. Relevant factual background

3 There is essentially no dispute in relation to the underlying factual circumstances grounding this appeal. 4 The appellant was a former employee of the Northern Sydney Area Health Service and, at the relevant time, was a full member of the First State Superannuation Scheme as defined by s 5 of the First State Superannuation Act 1992 (FSS Act). 5 On 8 July 1998, while travelling home from his place of work, Mr Feint was involved in a motor vehicle accident in which he sustained a number of injuries. He fractured his left hip, his left shoulder was dislocated and he sustained fractures to his ribs. In 1999 he returned to work on light duties and rehabilitation, particularly with respect to the fractured left hip. He was unable to return to full duties and was ultimately terminated by his employer on 21 September 2001. He made application for TPD benefits on or about 18 August 2003. 6 By letter dated 26 September 2005, the respondent rejected the appellant's TPD claim. The decision of the FSS Trustee Corporation (FTC) together with the respondent's insurer was that, in their opinion, having reviewed the relevant facts and circumstances together with the medical reports relied upon in support of Mr Feint's claim, he did not fit the definition of TPD as defined in the respondent's insurer's policy. 7 In the correspondence of 26 September 2005, the respondent also advised the appellant's solicitors of the appellant's right to dispute its decision in the following terms: Members right to dispute this decision

If you or your client are dissatisfied with this decision and believe there is a case to dispute the decision, you or your client may lodge a dispute with the Trustee, FTC in writing. The address for the lodgement of disputes is: Operations Manager FSS Trustee Corporation PO Box R1827 Royal Exchange NSW 1225

This letter should provide full details of the reasons for the dispute, including whatever additional, previously unseen medical or other documentary evidence you or your client wish to have considered.

As a dispute this matter would go before the Claims Review Committee who will make a determination. If you or your client are still dissatisfied after that review, you may lodge an appeal with the NSW Industrial Relations Commission (in Court Session) within 6 months of the determination. Because FSS is exempt from the Commonwealth regulatory regime, it does not come within the jurisdiction of the Commonwealth Superannuation Complaints Tribunal. 8 The appellant's solicitors did not activate the dispute provisions as set out in the above letter from the respondent. Equally, it is clear they did not agree with it. Instead, they continued to correspond with the respondent, raising matters going to additional medical reports to support the appellant's claim. On 6 September 2006, the appellant's solicitors wrote to the respondent, enclosing further medical reports and formally requesting the respondent and the respondent's insurer reconsider the appellant's claim with a 'view to accepting it within 28 days'. In that correspondence the appellant's solicitors stated, inter alia, 'unless you and the insurer accept liability within 28 days, we will have no alternative than to commence proceedings.' 9 The respondent acknowledged the above letter on 21 September 2006, indicating that, having received the additional medical evidence, it had been forwarded to the Scheme's insurer for further assessment and that they (the insurer) had 'undertaken to review the file and advise their decision by 4 October 2006. When we have been informed of their decision you will be advised accordingly.' 10 Further correspondence between the parties discloses that on 20 November 2006, the respondent wrote to the appellant's solicitors, inter alia, in the following terms: As you are aware this claim was originally declined on 26 September 2005. Upon receipt of additional information from you on 6 September 2006, the Scheme's insurer (CommInsure) was requested to review its original decision.

We will monitor the progress of the review and keep you informed. 11 Further, on 9 January 2007, the respondent wrote to the appellant's solicitors relevantly as follows: We are writing to provide you with the current status of the assessment of your client's Total and Permanent Disablement claim.

Unfortunately, the Trustee is not in a position to issue you with a final decision in this matter at this stage.

We have conducted a thorough review of the material and we have referred certain aspects of the claim back to the Claims Resolution Unit at CommInsure.

The Trustee is mindful of the time taken to assess Total and Permanent Disablement claims but it's overriding concern is that all relevant aspects are thoroughly considered. 12 Finally, on 8 February 2007, the respondent wrote to the appellant's solicitors relevantly as follows: We are writing to advise you that we have finalised our review of this previously declined claim in response to your letter of complaint dated 6 September 2006.

The result of our review is that we are maintaining our previous decision made on 26 September 2005 to decline this claim.

In undertaking a thorough review of the file, we took into account the Statement of Claim prepared by your client on 2/11/05 and the report that you arranged from Dr Cavanagh dated 15/5/06. The Musician's Union was also contacted to ascertain details of what would be considered to be the equivalent of full time working hours for a musician. The matter has also been referred back to the Claims Resolution Unit at CommInsure.

If you are not satisfied with the outcome of your complaint concerning FTC's declinature of Mr Feint's TPD claim, we have set out below the Disputes procedure for FSS.

You may dispute the decision by writing to the Trustee. If your dispute is in regard to insurance, the Trustee will advise the insurer and the Claims Review Committee within five days of receiving the dispute. All other disputes will be referred to the Disputes Committee.

To lodge a notice of dispute with the Trustee, please write to: Operations Manager FSS Trustee Corporation PO Box R1827 Royal Exchange NSW 1225

Reasonable steps will be taken to ensure a decision is made within 90 days of having received the dispute. Sometimes more time or further information is required for complicated matters. If more time or information is needed you will be contacted. You will be sent a letter when a decision is made within 10 days of the decision having been made.

If you have submitted a complaint, you have the right to state your case, provide and request all relevant information to the complaint. You also have the right to be informed of the criteria, process and decision reasons where appropriate. Appeals

If you are not satisfied with the Trustee's response, or do not receive a response within 90 days, you may lodge a complaint with the Superannuation Complaints Tribunal (SCT).

The SCT can only handle your complaint if you have made use of the Trustee's internal complaint and dispute resolution process.

For more information, please contact: Superannuation Complaints Tribunal Locked Bag 3060 GPO Melbourne VIC 3001 Telephone: 1300 780 808 Website: www.sct.gov.au

Alternatively, you have a right of appeal to the NSW Industrial Relations Commission (IRC).

You may lodge an appeal with the IRC if you have made a complaint to the Trustee, the matter has been addressed and you still disagree with the Trustee's decision in relation to your dispute . This appeal must be made with the IRC (in Court Session) within 6 months of being notified of the outcome of the review or within a further period of time allowed by the Commission. (emphasis added)

To lodge an appeal against a Trustee decision, please contact: NSW Industrial Relations Commission 50 Phillip Street SYDNEY NSW 2000 Telephone: (02) 9228 7766. Please find enclosed Fact Sheet No. 17 - 'Complaint, Disputes and Appeals' to give you an overview of the Complaint, Disputes and Appeals process in its entirety. 13 On 7 May 2007, the appellant's solicitors filed the present appeal. Relevant legislative provisions

14 The jurisdictional arguments raised by the respondent arise, in part, from the repeal of certain provisions in the SA Act relevant to superannuation appeals. The repeal of those provisions was effected by the First State Superannuation Amendment (Conversion) Act 2005 (FSS Conversion Act). That Act amended the SA Act and the FSS Act for the purposes of converting the respondent to a proprietary company limited by shares and to convert the First State Superannuation Fund to a superannuation fund regulated under Commonwealth legislation. 15 Included in the amendments to the SA Act was the repeal of s 40 of that Act. Section 40, along with other now repealed provisions, is the legislative basis of the appellant's appeal to the Commission. 16 The amendments made to the SA Act and the FSS Act included the repeal of ss 7- 47 of the SA Act. Transitional provisions to take account of that repeal were inserted into the FSS Act. Those transitional provisions relevant to this appeal are to be found in Schedule 3 of the FSS Act in the following terms: 16 Existing disputes A dispute relating to or in respect of FTC or a member or former member of the Fund, 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. 17 Superannuation appeals Nothing in the amending Act affects: (a) an appeal made under section 40 of the Superannuation Administration Act 1996 and not determined before the repeal of that section by the amending Act, or (b) a right to make an appeal in respect of a dispute or other matter that arose under that section before that commencement, or (c) the jurisdiction of the Industrial Relations Commission to determine any such appeal. 17 The amendments made by the FSS Conversion Act, including the repeal of ss 7 - 47 of the SA Act, took effect on and from 1 May 2006. 18 Before turning in more detail to the transitional provisions and their applicability to the current proceedings, the relevant repealed provisions of the SA Act provided:

(1) FTC is the trustee for the FTC schemes and is to hold in trust for the persons who are or will be entitled to benefits under the FTC schemes all assets held by, and all contributions and other money paid or payable to, FTC under this Act and any Act under which an FTC scheme is constituted or established. (2) FTC is a trustee for the purposes of the Trustee Act 1925. Accordingly, subject to this Act, and unless this Act, the Trustee Act 1925 or any other Act otherwise provides, FTC has the obligations, rights and duties of a trustee under Division 2 of Part 2 of the Trustee Act 1925.

9 Principal functions of FTC (1) The principal functions of FTC are: (a) to administer the FTC schemes, and (b) to invest and manage the FTC funds, and

(c) to provide for the custody of the assets and securities of FTC schemes, and (d) to ensure that benefits payable to the persons entitled to receive benefits under the FTC schemes are paid in accordance with the Acts under which the schemes are established or constituted, and

(f) to exercise such other functions with respect to the FTC schemes and FTC funds as the Minister may from time to time approve by order in writing. ... 22 Determination of disputes (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. (2) Regulations made for the purposes of this section may require that a dispute concerning the entitlements or obligations of an employee or beneficiary arising in respect of service by the employee with an employer that: (a) was responsible for the payment of benefits under an FTC scheme of which the employee was a member or to which the employee was a contributor, and (b) has ceased to be responsible for the payment of benefits under that scheme but is responsible for the payment of benefits under a new superannuation scheme created in accordance with section 127, be determined, not by FTC or an FTC disputes committee, but by the trustee of the new superannuation scheme. (3) In determining a dispute, FTC, an FTC disputes committee or the relevant trustee may inform itself on any matter in such manner as it thinks fit and, in so doing, is not bound to observe rules of law relating to evidence. (4) A trustee acting in accordance with regulations referred to in subsection (2) and an FTC disputes committee have and may exercise the powers conferred on FTC by sections 21 and 23.

... 40 Appeals (1) 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 ). (2) 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. (3) In dealing with the appeal, the Commission may exercise any function that could have been exercised by FTC or the FTC disputes committee, as the case may be, in making the determination the subject of the appeal. (4) In dealing with the appeal, the Commission is to have regard to this Act and any other relevant provisions regulating the superannuation scheme concerned and such other matters as it considers to be relevant. (5) In dealing with the appeal, the Commission is not bound by the rules of evidence and may inform itself in any manner it thinks fit. (6) The final determination made by the Commission on the appeal is to be given effect as if it were a determination of the Board. 19 Section 4, Definitions of the SA Act at the relevant time defines FTC to mean the FSS Trustee Corporation, the respondent to this appeal. As well, also in s 4 of that Act, the expressions FTC Fund and FTC Scheme are defined to mean a superannuation fund or superannuation scheme established or constituted under the First State Superannuation Act 1992 (FSS Act) or any other Act declared under s 5 to be an Act for the purposes of the definition. 20 It is not disputed that the Fund of which the appellant is a member is a FTC Fund and a FTC Scheme for the purposes of the SA Act. Section 18(1) of the FSS Act requires the respondent to maintain and administer the First State Superannuation Fund in accordance with the FSS Act and the Trust Deed. The respondent is the Trustee of the Fund. 21 Section 13 of the FSS Act provides for the making of a Trust Deed as between the Minister and the FTC. The Trustee is required to make provision for the entitlements and obligations of the Trustee and members of the Scheme, of which the appellant is one. Section 13 provides: (1) The Minister and FTC are to enter into a trust deed that makes provision for or with respect to the workings of the superannuation scheme established by this Act, including the entitlements and obligations of members and the obligations of employers. (2) The trust deed is to include provision for the following: (a) the benefits that are payable to members, and the payment of those benefits,

(c) the procedures for claiming benefits and making other applications and elections under the Scheme , (emphasis added)

(d) the contributions that may be paid by employees, (e) the variation of employee contributions, (f) insured benefits for members, (g) the procedure for amendment of the trust deed,

(h) such other matters as are required to be included in the trust deed by the regulations. ... 22 Finally, s 20 of the FSS Act provides that the FTC may make rules on a number of matters. That provision is expressed in the following terms: (1) FTC may make rules, not inconsistent with this Act or the trust deed: (a) for or with respect to any matter for which it is by this Act or the trust deed required or permitted to make rules, and (b) for or with respect to any matter that is necessary or convenient for the purpose of giving effect to the trust deed. (2) In particular, FTC may make rules for or with respect to the following: (a) the circumstances in which employees are taken to have ceased to be employed for the purposes of this Act, (b) the calculation of salary and wages for the purpose of calculating any death or invalidity benefits, (c) the payment of employee contributions (such as the periods for which contributions are to be made and the manner of payment),

(d) the payment and preservation of benefits, (e) applications for payments of benefits, (emphasis added)

(f) the provision of information to members and other persons, (g) the provision of information to FTC from time to time by employers as to employees and contributions for employees, (h) the remittance and collection of contributions to the Fund,

(j) agreements or arrangements with employers and employees as to optional contributions. Considerations 23 Overall, the respondent submitted the Commission does not have jurisdiction to hear and determine the present appeal on the following grounds: (i) The right to appeal under s 40 of the SA Act is only preserved by the transitional provisions contained in the FSS Act and then only if the determination the subject of the appeal was made prior to 1 May 2006. In the present circumstances, the respondent, it is asserted, has not made a 'determination' within the meaning of s 40 of the SA Act. The reason for that, it is contended, is that no decision has been sought on behalf of the appellant from, or made by, the Disputes Committee or the Claims Review Committee of the respondent. Accordingly, it is said, the Commission lacks jurisdiction to determine the appeal; (ii) In the alternative, it is asserted that even if a determination had been made, it was made on 8 February 2007, which is well after the period ending 1 May 2006 as prescribed by the transitional provisions in the FSS Act. Again, the consequences of that being the Commission lacks jurisdiction to determine the appeal; (iii) In a further alternative, even if the determination was made on 25 September 2005, which is not agreed to, the appellant has no right to make an appeal within the meaning of the transitional provisions before 1 May 2006. The reason being the appellant had not set in train the relevant machinery by lodging such an appeal before 1 May 2006 or lodging an application to extend time within which to lodge an appeal. The consequences again being that the Commission lacks jurisdiction to determine the appeal. 24 It is also worthwhile noting and not disputed that a finding the Commission lacks jurisdiction to hear the present appeal does not deny the appellant a remedy. The appellant retains the right to seek a review of the decision made by the respondent on 8 February 2007 by the Disputes Committee or the Claims Review Committee of the respondent and, if necessary, to appeal the determination by either of those bodies to the Superannuation Complaints Tribunal pursuant to the provisions of the Superannuation (Resolution of Complaints) Act 1993 (Cth). There is a right of appeal on a point of law from the Superannuation Complaints Tribunal to the Federal Court. 25 The respondent's primary argument that the Commission does not have jurisdiction is based on the interaction between ss 22 and 40 of the SA Act together with the provisions of the Trust Deed and the Rules in relation to the operation of the Scheme when considered in light of the transitional provisions. 26 In the first instance, clause 27 of the Trust Deed sets out the procedure for dealing with disputes in the following terms: 27.1 Determination of disputes

The Trustee must, in accordance with sections 22 and 23 of the Administration Act, determine any dispute relating to the Fund . Such disputes may be determined in accordance with a procedure contained in the rules. (emphasis added)

A person aggrieved by the determination of a dispute by the Trustee under clause 27.1 may appeal that determination in accordance with section 40 of the Administration Act. ... 27 Further, consistent with clause 27.1 of the Trust Deed above, the manner in which disputes are to be determined by the respondent is set out in clause 12.3 of the Rules in the following terms: 12.3 Disputed decisions

For the purposes of clause 27.1, where a dispute between the Trustee and a Member arises:

(a) from a decision of the Trustee, the dispute will be reviewed by the disputes committee of the Trustee; and

(b) from a decision of an insurer under or in relation to an insurance policy effected under clause 20.1, the dispute will be reviewed by the Claims Review Committee of the Trustee comprising:

(ii) a representative of the relevant insurer; and (iii) an independent third person selected by agreement between the Trustee and the insurer. 28 Clause 12.4 of the Rules sets out the powers of the Claims Review Committee and provides in sub-paragraph (c) 'that the decision of the Committee shall be binding on the insurer.' 29 What the respondent asserts is that the appellant has no right of appeal to the Commission under s 40 of the SA Act because he has not observed the provisions contained within the Trust Deed and the Rules to effect a determination by the respondent in order to ground any appeal under s 40 of the SA Act. In other words, no decision has been sought or made by the Disputes Committee or the Claims Review Committee of the respondent. Instead, the appellant relies simply on the letter sent by the respondent to the appellant's solicitors on 26 September 2005 in which they (the respondent and its insurer) initially rejected the appellant's claim for a TPD benefit. 30 On behalf of the appellant, it is asserted that the dispute with the respondent falls squarely within the transitional provisions and there is no need to have recourse to the Trust Deed or the Rules in order to ground the Commission's jurisdiction. 31 In support of its primary contention that there has been no determination made by the respondent within the meaning of s 40 of the SA Act, the respondent relies on the observations made by Marks J in Gedeon v First State Super Trustee Corporation (2005) NSWIRComm 62 as follows:

In these proceedings the appellant, Jo Gedeon, appeals pursuant to s 40 of the Superannuation Administration Act 1996 ("the Act") from a decision of First State Super to reject a claim for a total and permanent disability benefit. The appeal documents were filed on 23 August 2000. The appeal was initiated as a result of a letter from First State Super to Mr Gedeon dated 13 June 2000 advising him that his claim had been rejected. However that letter did not represent the final stage in the process of determination of Mr Gedeon's claim by First State Super. There is a mechanism within the Trust Deed and Rules for any dispute arising from the refusal by the Trustee to pay a benefit to be reviewed by a Claims Review Committee. I shall refer in more detail to the provisions of the Trust Deed and Rules shortly, but for present purposes I observe that the Claims Review Committee determined to reject the appellant's claim on 31 October 2000, and Mr Gedeon was advised by letter addressed to solicitors then acting for him, dated 1 November 2000, that his claim was declined. His attention was drawn to the provisions of s 40 of the Act in that letter. Accordingly, strictly, the superannuation appeal filed by the appellant who initially was self-represented was premature . However the parties have agreed that the appeal should proceed on the basis that it was properly constituted and that the appeal document filed would, in effect, operate so as to apply to the subsequent decision of the Claims Review Committee dated 1 November 2000. (emphasis added) 32 Further, reliance was also placed on my decision in Druery v First State Super FSS Trustee Corporation (2005) NSWIRComm 255 at [20] and [21] where I stated: [20] The Claims Review Committee determined the dispute in terms of section 22 of the Superannuation Administration Act 1996 ... [21] That refusal triggered the appeal now before the Commission. 33 Those passages, it was submitted, make it clear it is necessary for a determination to be made by the Claims Review Committee in order to trigger the appellant's appeal rights to the Commission. 34 Section 16 of the transitional provisions provides that a 'dispute' relating to the respondent and a member of the Fund that arose before the commencement of the transitional provisions 'is to continue to be dealt with under the FSS Act and the SA Act as in force before the commencement of this clause'. 35 Did the respondent's letter of 26 September 2005 rejecting the appellant's claim for a TPD benefit and the appellant's refusal to accept that rejection establish a dispute between the appellant and the respondent? I believe it did. 36 The Compact Oxford English Dictionary (new edition) defines a dispute as: The act of disputing or arguing against; active verbal contention, controversy, debate. ... An occasion or instance of the same; an argumentative contention or debate, a controversy; also, in weakened sense, a difference of opinion;

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.

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