Gomes v United Super Pty Ltd

REASONS FOR JUDGMENT BUCHANAN J: 1 Section 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) ("the Act") provides for an appeal to this Court, on a question of law, from a determination of the Superannuation Complaints Tribunal ("the Tribunal") established under the Act. The present proceeding seeks to rely on s 46 of the Act. 2 The first difficulty that the appellant faces is the requirement that his appeal be "on a question of law". The further difficulty is that the facts are against him. 3 Mr Gomes worked as a plasterer for some years for Lidcombe Plastering Services (Syd) Pty Ltd. During that employment he was a member of the Construction and Building Unions Superannuation Fund ("CBUS"). He was a member of CBUS from 1 September 1995. On that date he completed an application form to give to CBUS. In that application form he nominated that he wished to take, and pay for, 1 unit (rather than 4 units) of insurance cover as part of his superannuation arrangements. From that time, for the duration of his membership of CBUS, Mr Gomes' annual statements from CBUS showed that he held 1 unit of insurance cover. 4 Mr Gomes suffered an injury to his back at work on 31 October 2005. He injured both knees at work on 10 January 2007. The result of the later injuries was that he became totally and permanently disabled for his work as a plasterer. As a result, the trustee's insurer paid the trustee $17,500 to settle Mr Gomes' TPD (total and permanent disablement) claim. That represented the value of insurance cover of 1 unit of such cover. When $17,500 was added to his superannuation account balance the total payment to Mr Gomes was $60,216.20. Mr Gomes was informed by the trustee of CBUS by letter dated 25 September 2009 that payment of that total amount had been approved. Mr Gomes made a complaint to CBUS about the inadequacy of the payment. On 3 March 2010 he was advised that the decision about his complaint confirmed the original decision. 5 Mr Gomes then sought a review by the Tribunal. On 6 August 2013 Mr Gomes was advised by the Tribunal that the decisions of the insurer and the trustee were affirmed. The Tribunal was satisfied, as a matter of fact, that Mr Gomes had only ever held 1 unit of insurance cover. In the course of its decision, the Tribunal dealt with a factual contention by Mr Gomes that he increased his level of cover from 1 unit to 4 units in 2000. The contention was rejected. The Tribunal said: 41. The Complainant states that, on 15 August 2000, he lodged an application for an increase in his level of insurance cover from 1 unit to 4 units. The Complainant has provided a copy of a second membership application form dated 15 August 2000 containing provision for selection of an increase to 4 units of cover which selection has been marked with a cross by him. He claims to have lodged this with the Fund. 42. The Trustee states that it, if the Complainant had, in fact, completed the increase application at that time, it was never received by the Fund. Whilst the form produced by the Complainant has his membership number pre-printed on it, indicating that it had been, in fact, sent to him by the Trustee for completion, the Complainant has produced no evidence of postage by him or receipt by the Trustee. 43. There has never since that time been any question raised by the Complainant about the receipt by the Trustee of the increase application or the level of insurance cover shown in his periodic statements which, from that date, continued at the previous level. 44. In support of his application that the increase application was lodged the Complainant relies on the fact that he also, at the same time, notified the Trustee of his change of address. He states that this indicates that the increase application was received by the Fund. 45. In this regard the evidence is, however, contradictory. The Complainant has independently stated that, during a previous telephone call made during June 1999, he had verbally notified the Trustee of his change of address. The Trustee's member records reflect that the Complainant's address was changed well prior to the date of the purported increase application. (The trustee's records show that Mr Gomes' address was changed on 27 March 2000). 6 After rejection of his claim by the Tribunal, Mr Gomes appealed to this Court. His notice of appeal indicates that the question of law raised by the appeal is addressed in an accompanying letter. In that document Mr Gomes makes an argument based on the proposition that the "default" level of insurance cover with CBUS was 4 units. However, that appears to have been the position in 2006, not in 1995. In any event, as the Tribunal found, Mr Gomes' application in 1995 nominated 1 unit of insurance cover and that level of cover was confirmed by his annual statements from CBUS. 7 Mr Gomes also relied on some CBUS printouts from 2006/2007 to assert that they demonstrated a cover of 4 units. The 4 (or sometimes 5) units referred to in those documents are clearly references to weeks, and appear to relate to units of payments received into his superannuation account. In many monthly periods the amounts were $400 (4 x his weekly contribution of $100), sometimes less. The same document shows the final payment of an insurance benefit of $17,500. Those print outs do not support Mr Gomes' position. 8 Mr Gomes' appeal to this Court is founded solely on allegations of contested fact. The facts have been resolved by the Tribunal. A factual contest cannot, without a real question of law at its source, provide a foundation for an appeal to this Court. Some of the authorities to that effect (which are numerous) have recently been collected by Flick J in Soames v Secretary, Department of Social Services [2014] FCA 295 ("Soames") at [19]-[20]. 9 As in Soames, the present case has been allowed to go forward, in recognition of the fact that Mr Gomes is a self-represented litigant who may not fully understand the legal requirement for a successful invocation of this Court's jurisdiction under the Act. However, now that the hearing has taken place the fatal defect remains. There is no question of law to be addressed. 10 The appeal must be dismissed. I can not see a reason in principle to depart from the ordinary rule as to costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.