Mohandoss v AMP Superannuation Limited

• The Receiving Fund became a regulated superannuation fund for the purposes of the SIS Act on 16 November 1995.
• The Insurance and Superannuation Commission (as it then was) allocated a superannuation fund number […] to the Receiving Fund.
• APRA has no record of whether a copy of the sub-section 254(1) Notice was ever requested or supplied to the Fund or any other entity. · On 2 April 1996 a "notice of authority to transact banking business" was completed and addressed to the relevant Bank. Authority was given to any one of the authorising parties to transact, draw cheques, etc, on the bank account of the Receiving Fund. The authority was signed by W as chief executive, the Complainant as a director and another person described as PA to the chief executive.' 6 On 20 November 2002 the Trustee determined not to repay the amount of $145,925.69 to the applicant.

Legislation 7 The applicant's complaint to the Tribunal was made under s 14 of the Act which, so far as is relevant, provides; '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; or (b) a particular beneficiary or a particular former beneficiary of an approved deposit 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 was unfair or unreasonable.' 8 The powers of the Tribunal in respect of a complaint under s 14 are enumerated in s 37 of the Act. Section 37 provides; '37 Tribunal powers - complaints under section 14

(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). (2) If an insurer or other decision-maker has been joined as a party to a complaint under section 14; (a) the Tribunal must, when reviewing the trustee's decision, also review any decision of the insurer or other decision-maker that is relevant to the complaint; and (b) for that purpose, has all the powers, obligations and discretions that are conferred on the insurer or other decision-maker; and (c) 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 to 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 decision 9 The applicant complained to the Tribunal that the "Decision dated 20 November 2002 denying that the sum of $145,925.69 was disposed of by the Trustee contrary to their obligations under the Superannuation Industry (Supervision) Act and Regulations and refusing the demand for payment of the benefit together with interest". And, in response to the question "Please state why you believe that your fund trustee's decision is unfair or unreasonable", the applicant asserted that "The sum of $145,925.69 was withdrawn from [the Fund] policy number 9/108848 contrary the Trustee's obligations under the Superannuation Industry (Supervision) Act and Regulations". 10 On the basis of those assertions, the Tribunal formed the opinion that the applicant was seeking to rely on the Trustee's decision of 20 November 2002 to impugn acts which had been performed by the Trustee in October 1995. On 25 November 2005 the Tribunal advised the applicant in writing that it was considering treating the complaint as withdrawn pursuant to s 22(3) of the Act on the ground that any complaints about the actions and decisions of the Trustee in October 1995 were well outside the period in respect of which the Tribunal was empowered to consider complaints of that kind. However, in case that provisional view might have been wrong, the Tribunal proceeded to consider the complaint by way of reviewing the merits. 11 In evaluating whether or not the Trustee's decision to deny any repayment of $145,925.69 to the applicant together with interest as claimed had been fair and reasonable in its operation to the applicant in the circumstances, the Tribunal made these observations and determination; 'REVIEW

The Tribunal conducts a form of administrative review and the clear intention of ss.37 and 41 of the SRC Act is to place the Tribunal in the shoes of the Trustee when making a determination in respect of a complaint -

Collins v AMP Superannuation Limited (1997) 75 FCR 565 at 574E;

Lykogiannis v Retail Employees Superannuation Pty Ltd (2000) 97 FCR 361 at 47-48.

The issue to be determined by the Tribunal pursuant to s.37 is not whether the Trustee's decision is impeachable under the general law but whether the s.14(2) complaint has been made out and whether, for the purposes of s.37(6), the Tribunal is satisfied that the decision in its operation in relation to the Complainant was fair and reasonable in the circumstances (National Mutual Life Association of Australasia Ltd v Campbell (2000) 99 FCR 562 and also Briffa).

The criteria of "unreasonable" and "unfair" have been deliberately framed using words of broad content and should not be unduly restricted by the use of synonyms and definitions - Campbell's case. The focus of the concept is on the consequence or outcome of the decision in its practical operation, rather than on the process by which the decision under review came to be made (Lykogiannis v Retail Employees Superannuation Pty Ltd (2000) 97 FCR 361 at 48).

In the Tribunal's view it was reasonable for the Fund to decide to make the relevant payment to the Receiving Fund. The Complainant, by signing the 'to whom it may concern' letter in his capacity as an authorised trustee of the Receiving Fund and by signing the Master Deed Application for withdrawal of funds dated 19 October 1995, can clearly be regarded as having requested the payment of his entitlement to the Receiving Fund. Moreover, it is also fair and reasonable to accept that by those documents the Complainant was advising the Trustee that the Receiving Fund had applied for and had obtained regulation pursuant to the SIS Act and Regulations. This issue is dealt with in more detail below.

Whether or not the Trustee applied for an s.245 Certificate of Regulation is not clear, as the Trustee is unable to locate its full file and APRA has not specifically said whether or not such an application was made. The best that can be said is that there is no evidence that such a certificate was sought. However, this situation highlights the difficulty of re-investigating actions some seven years after the date of a complaint.

On an objective assessment of the events, it cannot be doubted that W did all he could to encourage the Trustee to make the payment of the funds to the Receiving Fund as soon as could be arranged with the statement that an investment was imminent and the money was needed by 1 November 1995. To use the words of the Complainant as appear in his statutory declaration dated 21 September 2004, W was a persuasive "conman". No evidence has been obtained to indicate what happened to any of the missing money. Although the Complainant alleges that the money was withdrawn on 6 November 1995 by W, no documentary proof of this matter has been presented to the Tribunal, and the Tribunal has noted, and taken into account the fact that the Complainant authorised W to access his (the Complainant's) bank accounts. It may be that some investment was undertaken immediately on behalf of the Receiving Fund but no details one way or the other have been produced.

The Complainant alleges that the conduct of the Trustee in making the payment to the Receiving Fund, which was not regulated until 16 November 1995, was a cause of the loss of the funds and, as it was in breach of the SIS Regulations, that that amounted to a breach of the law and a breach of trust and that therefore the decision not to repay the amount of 20 November 2002 was unfair and unjust. The Complainant's submissions went into some detail concerning breach of trust and the causation required for loss in those circumstances and argued that in trust law, it is not necessary to show a causal connection between the act of the Trustee and the loss, as might be required in a common law or contractual case.

As the solicitors for the Complainant would realise, the Complaints Act provides complainants with a mechanism to have trustee decisions administratively reviewed. It has no power to exercise any judicial function on behalf of the Commonwealth. Consequently, there is no power in the Tribunal to decide those issues put on behalf of the Complainant, which should more appropriately be put to a court of law, for example, questions as to whether there has been a breach of trust law or what, if any, effect the common law may have in these circumstances. This Tribunal must decide only whether or not the decision under review was unfair or unreasonable. In undertaking that task, the Tribunal looks at all the facts in this matter and whether or not it is so satisfied will depend on whether it was the Trustee's actions and decisions which, in a general understanding, caused or contributed to the loss of the funds by the embezzlement of W. If that loss was totally unrelated to a minor breach of the Regulations or the Trust Deed, then it would not regard the decision not to repay was unfair and unreasonable.

The Tribunal accepts that in a technical sense the Receiving Fund was not a regulated fund on 31 October 1995 when the payment was made into a bank account on behalf of the Receiving Fund. The Tribunal accepts that on the face of the facts there was a technical breach of Regulation 5.01 of the SIS Regulations 1994, wherein 'transferred' is defined as:

In relation to a member's benefits paid out of, or received by, a regulated superannuation fund or approved deposit fund, means paid to, or received from:

(a) another regulated superannuation fund … - otherwise and upon the satisfaction by the member of a condition of release (within the meaning of Part 6 from all those benefits)

This regulation requires payments by way of transfer to be made to a regulated superannuation fund.

At the actual time of payment, the Receiving Fund was not regulated but application had been made for regulation and it was indeed officially regulated on 16 November 1995.

The Tribunal has examined the effect of the transfer, which was in breach of the regulation (above) and it has noted that the omission was cured within 16 days. Thus, it does not accept that the payment was an illegal payment (in the circumstances) from which can be deduced liability to refund the money or to result in the decision of the Trustee on 20 November 2002 as being seen to be unfair and unreasonable in its operation to the Complainant. Had the fund been officially regulated on 31 October 1995 it would have in no way protected the Complainant from W and the embezzlement of the funds, as such regulation does not provide that sort of protection. It requires the fund to be audited, subject to ATO scrutiny and the other regulations which apply, but would clearly have had no effect on what happened in this case. Accordingly, the Tribunal does not find that the lack of registration at the time that the payment was made is a reason for any liability to be attached to the Trustee for the loss of the monies by embezzlement.

When considering the circumstances of the action complained about, the Tribunal took into account the course of conduct between the parties and the information provided in the letters and documents that the Complainant sent to the Trustee before the funds were transferred. It noted that the letter dated 16 October 1995 which was signed by the Complainant as an authorised trustee and addressed "To whom it may concern" advised the Trustee that the Receiving Fund had been established in accordance with the SIS Act and associated regulations and that an election to become a regulated superannuation fund had been lodged. It further noted that by 30 October 1995, when W, on the Complainant's behalf, sought payment of the Complainant's monies to the Receiving Fund, the Trustee had been given a Master Deed Application for withdrawal of retirement benefit ('the application'). The application was signed by the Complainant and it required the proponent to provide special advice and information about any receiving fund. The precise wording was that "the rollover institution nominated below must be an approved superannuation arrangement". It also specified that if any nominated receiving fund were outside the present fund a letter of compliance for each fund was to be provided. In these circumstances, given the history of the relationship between the parties and the correspondence that had preceded the application, it was reasonable to conclude that when the Complainant nominated the Receiving Fund, he was effectively representing that it had, by now, become a regulated fund.

In view of the previous dealings between the Trustee and the Complainant, it was not unreasonable for the Trustee to accept that the Complainant was aware of the relevant superannuation requirements and that he had provided accurate information about the Receiving Fund, particularly in this case, where the form of the Master Deed Application drew attention to what was required. It was also reasonable for the Trustee to accept that, given the contents of the 16 October letter, no letter of compliance was required because the Complainant, who was an authorised trustee with experience in superannuation, would not have signed the application unless the Receiving Fund had become regulated. Further, as noted above, it was the Complainant who authorised W to access his (the Complainant's) bank accounts, and thereby took another step in releasing the Trustee from any responsibility for W's subsequent conduct, and for the loss of the monies.

The Tribunal does not accept the submissions of the Complainant's solicitors that the Complainant was naïve in investment matters, was duped by W into signing blank forms and did not realise that he was in fact a Trustee of the Receiving Fund or that he ultimately became a director of a related Holding Company. The Tribunal refers to the matters summarised in the Trustee's submissions of 27 August 2004 set out at p.2 thereof, supporting the Complainant and W's close association. In addition, the Tribunal accepts that the Complainant was a legally qualified medical practitioner who had carried on practice as a general practitioner for many years. He also was a trustee of a superannuation fund or funds for many years. With such a background it is unreasonable for the Trustee or any objective observer to accept that the Complainant would be unaware of his implication in the setting up and operation of the Receiving Fund.

The Tribunal does not accept the submissions by the Complainant that the issue of the 'statement of termination payment' dated 31 October 1995 and the issue of the 'roll-over payment notification', unsigned and undated, are relevant to any breach of conduct by the Trustee. Those documents are Australian Tax Office forms that are required to be completed on a termination payment.

For those reasons, the Tribunal does not consider that the decision of the Trustee on 20 November 2002 was unfair and unreasonable in its operation to the Complainant in the circumstances.'

Pursuant to s 37(1)(a) of the Complaints Act, the Tribunal has all of the powers obligations and discretions of the Trustee. By virtue of s 37(3) the Tribunal may make a determination:

remitting the matter for consideration in accordance with the Tribunal's directions;

setting aside the decision and substituting its own decision.

Sub-section 37(6) of the Complaints Act provides that the Tribunal must affirm the decision of the Trustee if it is satisfied that it was fair and reasonable in the circumstances in its operation in relation to the Complainant. The Tribunal is so satisfied.

In accordance with the requirements of sub-ss.37 (3), (4) and (5) of the Complaints Act, the Tribunal therefore affirms the decision.'

Grounds of Appeal 12 The applicant's notice of appeal recites; '1. TAKE NOTICE that the applicant appeals from the determination of the Superannuation Complaints Tribunal constituted by John Bingeman QC, Janet Martin and Bill Hassell given on 10 June 2005 at Melbourne "the determination") whereby the Tribunal determined to affirm the decision of the respondent to refuse to recredit the superannuation benefit account of the applicant with the respondent with the sum of $145,925.69 together with an amount representing an accumulation or interest thereon ("the decision"). 2. THE QUESTIONS OF LAW raised on the appeal are -

(A) whether the breach by the respondent of Regulation 5.01 of the Superannuation Industry (Supervision) Regulations 1994 found by the Tribunal (in that the respondent paid or purported to pay $145,925.69 from the superannuation benefit account of the applicant with the respondent as a regulated superannuation fund to an entity which was not a regulated superannuation fund) was contrary to law; (B) whether the payment or purported payment by the respondent of $145,925.69 by way of transfer from the superannuation benefit account of the applicant with the respondent as a regulated superannuation fund to a third party without the consent of the Committee and without: (1) that third party being an Approved Arrangement; (2) the Committee having informed the respondent as Trustee that the rights of the applicant as Member to receive the benefits arising from the benefits transferred were fully secured; (3) the Committee having informed the respondent as Trustee that the third party as Approved Arrangement was required to preserve the benefit transferred in accordance with the Relevant Requirements; or (4) the Committee having informed the respondent as Trustee that the transfer was made to comply with clause 6.5 of the Trust Deed was contrary to the governing rules of the Fund; (C) whether if the breach by way of payment or purported payment referred to in subparagraph (A) was contrary to law or the payment or purported payment referred to in subparagraph (B) above was contrary to the governing rules of the fund, the Tribunal was prohibited by subsection 37(5) of the Superannuation (Resolution of Complaints) Act 1993 from affirming the decision; (D) whether, if the breach by way of payment or purported payment referred to in subparagraph (A) was contrary to law or the payment or purported payment referred to in subparagraph (B) above was contrary to the governing rules of the fund, the Tribunal was required by subsection 35(7) of the Superannuation (Resolution of Complaints) Act 1993 to substitute a decision as set out in paragraph 3(C) below. 3. ORDERS SOUGHT: A. An Order quashing or setting aside the determination. B. An Order that the appeal be allowed C. An Order substituting for the decision of the respondent referred to in paragraph 1 above a decision that the respondent recredit the superannuation benefit account with the sum of $145,925.69 together with an amount representing an accumulation or interest thereon. D. Costs E. Such further orders as the Court deems fit. 4. GROUNDS: (A) The Tribunal determined that even though there had been a breach by the respondent of Regulation 5.01 of the Superannuation Industry (Supervision) Regulations 1994 (in that the respondent paid or purported to pay $145,925.69 from the superannuation benefit account of the applicant with the respondent as a regulated superannuation fund to an entity which was not a regulated superannuation fund), nevertheless the Tribunal had no power to decide whether the said payment or purported payment was contrary to law, and that the Tribunal could only decide whether or not the decision was fair or reasonable in the circumstances without addressing the question of whether the said payment or purported payment was contrary to law. On its proper construction, 37(5) of the Superannuation (Resolution of Complaints) Act 1993 required the Tribunal to decide whether or not the said payment or purported payment was contrary to law, not to affirm the decision pursuant to s. 37(3)(a) Superannuation (Resolution of Complaints) Act 1993, and to substitute a decision as set out in paragraph 3(C) above. (B) The Tribunal determined that it could not decide whether or not the governing rules of the Fund had been breached as referred to in paragraph 2B above and the Tribunal could only decide whether or not the decision was fair or reasonable in the circumstances without addressing the question whether or not the governing rules of the Fund had been breached as referred to in paragraph 2B above. On its proper construction, 37(5) of the Superannuation (Resolution of Complaints) Act 1993required the Tribunal to decide whether the governing rules of the Fund had been breached as referred to in paragraph 2B above, not to affirm the decision pursuant to s.37(3)(a) of the Superannuation (Resolution of Complaints) Act 1993, and to substitute a decision as set out in paragraph 3(C) above.' 13 On 15 March 2006 the applicant filed a proposed amended notice of appeal in which he sought, in paragraphs 2(C), 2(D), 4(A) and 4(B) of the amended notice, to rely on s 14AA(2), in addition to s 37(5) of the Act. The filing of the amended notice of appeal was opposed by AMP. The application for leave to amend is considered later in these reasons, at [35]-[37] below.

Did the notice of appeal identify questions of law? 14 Counsel for AMP, Ms Alpins, made various submissions outlining perceived defects in the applicant's notice of appeal. First, she argued that an appeal under s 46(1) is confined to questions of law and that the power of the Court is limited to prescribing consequences of a demonstrated error of law; Howitt-Steven v Unisuper Ltd (2002) 193 ALR 207, at [120]; Barghouthi v ING Custodians Pty Ltd [2003] FCA 1272, at [20]. It was further submitted that it is not open to the Court, in an appeal under s 46, to make findings of fact; Barghouthi at [140] and [144]. 15 Ms Alpins also contended that the applicant's notice of appeal does not identify any question of law properly so called, as required by O 53 r 3 and O 53B r 3 of the Rules of this Court. It was submitted that the questions posed in paras 2(A) and 2(B) of the notice of appeal were each questions which the Tribunal had declined to determine. It was said to follow that an answer to those questions which was favourable to the applicant would not disclose any error affecting the decision of the Tribunal and so would not support the orders sought; Birdseye v Australian Securities Investments Commission [2003] FCAFC 232, at [27]((2003) 76 ALD 321; (2003) 38 AAR 550). 16 A related objection raised on behalf of AMP was that the questions raised by the notice of appeal were not pure questions of law but purported to require the Court to make certain findings of fact which the Tribunal had declined to make and which had not been necessary for the performance of its functions under s 37 of the Act. 17 Although AMP's criticisms of the form of the notice of appeal have some force, I do not regard them as fatal to the present application. In my opinion, the notice of appeal sufficiently identifies the central issue for determination in this matter which is whether the Tribunal correctly understood the extent of its powers when it came to review the decision of the Trustee that had been the subject of the complaint under s 14 of the Act. 18 As Branson J stated in Colonial Mutual Life Assurance Society Limited v Brayley [2002] FCA 1333, at [3]; 'It is sufficient to note that the Tribunal is established by s 6 of the Act and has the functions specified by s 12 of the Act. Section 14 of the Act relevantly allows a person authorised by s 15 to make a complaint to the Tribunal that a decision of the trustee of a fund is or was unfair or unreasonable. The powers of the Tribunal when reviewing a decision of a trustee of a fund are specified by s 37 of the Act. The proper construction of s 37, and thus the identification of the true extent of the powers of the Tribunal when reviewing a decision of a trustee of a fund, is plainly a question of law.'

The Tribunal's powers 19 Counsel for AMP acknowledged that s 37(5) of the Act clearly precludes the Tribunal from making a determination under s 37(3) that would be contrary to law or, relevantly, the governing rules of the fund concerned. However, it was submitted that s 37(5) did not, by corollary, preclude the Tribunal from affirming the decision of the trustee where the trustee has engaged in conduct which was contrary to law or to the governing rules of the Fund. 20 On the other hand, Mr Bingham of Counsel for the applicant contended that s 37(5), on its proper construction, required the Tribunal to decide whether the payment was contrary to law. Once the Tribunal so decided, s 37(3)(a) prohibited it from affirming the decision of the trustee and required it to direct, instead, pursuant to s 37(3)(d) that the applicant be recouped for the amount lost as a result of the unlawful payment. In other words, it was necessary to have regard to the decision made by the trustee and to determine whether that decision was contrary to law and, in that sense, no distinction was to be drawn between a determination of the Tribunal sounding in the future and its characterisation of the past determination of the trustee. 21 Counsel for the applicant further claimed, that the Tribunal had erred when it declined to resolve questions of law, observing that "there is no power in the Tribunal to decide those issues put on behalf of the Complainant which should more appropriately be put to a court of law, for example, questions of whether there has been a breach of trust law …". That was said to misstate the Tribunal's powers, the nature and extent of which had been explained by Merkel J in Briffa v Hay (1997) 75 FCR 428, where his Honour pointed out, at 437; 'Obviously, in arriving at a determination the Tribunal might form its own views on the legal obligation of the trustee in relation to the decision or refer questions of law to the Court: see s39. However, the view of the Tribunal or of the Court, in respect of those obligations, is not determinative of the issue of unfairness or unreasonableness which the Tribunal is to determine or of the compensatory relief the Tribunal might grant'. 22 That passage, I accept, does not preclude the Tribunal from forming a view about a question of law on its way to arriving at a determination under s 37 of the Act. However, no expression by the Tribunal of a view of that kind can define once and for all the legal rights and obligations of the parties; see Collins v AMP Superannuation Ltd (1997) 75 FCR 565, at 579; (1997) 147 ALR 243,at 255; Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330 at [15]-[16], 48 ATR 359; Colonial Mutual Life Assurance Society Ltd v Brayley [2002] FCA 1333, at [39]. The clear intention of s 37(5) as well as ss 37(1)(a) and 41(3) is to place the Tribunal in the shoes of the trustee when making a determination in respect of a complaint; Briffa v Hay 75 FCR at 443; National Mutual Life Association of Australasia Ltd v Campbell (2000) 99 FCR 562, at 570 [32]. 23 Particularly by s 37(1)(b) and s 37(6), the Tribunal is entrusted with determining the fairness and reasonableness of the decision under review; National Mutual Life Association of Australia Ltd v Jevtovic (1997) 217 ALR 316, at 322; Collins v AMP Superannuation Ltd 75 FCR at 578, 147 ALR at 254 and Cullinane v Mercer Benefits Nominees Limited [2005] FCA 1470, at [22]. If the Tribunal is satisfied that the trustee's decision was fair and reasonable, it must affirm the decision pursuant to s 37(6). Whether the decision, or its operation in relation to a person, is fair and reasonable in the circumstances involves a value judgment, the making of which is committed to the Tribunal; National Mutual Life Association of Australasia Ltd v Campbell 99 FCR, at 571 [33]. 24 In the present case, having regard to the terms of s 37(6), I consider that the Tribunal correctly identified the ultimate question which it had to answer. That was, whether AMP's decision to deny repayment of the sum transferred (with interest claimed) was fair and reasonable in its operation to the applicant in the circumstances. In my view, this conclusion is not denied by the observations of Allsop J in Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330, at [31]- [32], which were relied on by Counsel for the applicant in imputing an error of law to the Tribunal. His Honour there said; '31 The Tribunal's task is not to engage in ascertaining generally the rights of the parties, nor is it to engage in some form of judicial review of the decision of the trustee or insurer. Rather it is to form a view, from the perspective of the trustee or insurer, as to whether the decision of either was (recognising the overriding framework given by the governing rules and policy terms, respectively) unfair or unreasonable.

32 Thus, essential to the task before the Tribunal, as a consideration mandated by the terms of s 37, is an inquiry as to whether the decision by the trustee or insurer was in conformity with the governing rules or the terms of the policy. If the Tribunal finds that the decision is contrary to the governing rules or the terms of the policy it may well be an easy step to conclude that it is unfair or unreasonable. I do not need to decide whether a finding by the Tribunal that the trustee's or insurer's decision was contrary to the governing rules or policy terms required a finding of unfairness or unreasonableness: cf Merkel J in Collins v AMP, supra at 578-79 and Sundberg J in Wilkinson, supra at 492. If the Tribunal finds that the decision of the trustee or the insurer is in conformity, with and required, by the governing rules or policy terms, in the sense which I have discussed above, it cannot other than find or be satisfied that the decision is fair and reasonable. If the Tribunal finds that the decision of the trustee or the insurer is in conformity with, but not required by, the governing rules on policy terms, in the sense which I have discussed above, it may proceed, in effect, to supplant the decision of the trustee or insurer with its view of the merits, bearing in mind the limitations of subs 37(4) and 37(5).' (emphasis added)

25 The sentence which I have emphasised in the passage just quoted makes clear that, if the Tribunal identifies a contravention by the trustee of a provision of the governing rules or the policy, that may readily lead to a conclusion that unfairness or unreasonableness exists in relation to the trustee's decision. That is because a trustee would normally be expected to perform and observe the terms of the instrument creating the trust. However, as Allsop J was at pains to point out, the identification of a contravention of the governing rules or the policy will not, necessarily, entail unfairness or unreasonableness on the part of the trustee. For example, the trustee's contravention might have been insignificant or have been to the advantage of the complainant, so that, in the circumstances, it worked no unfairness or unreasonableness. Similarly, it may be open to the Tribunal to find no unfairness or unreasonableness in circumstances where the complainant had procured or acquiesced in the contravention. 26 In the present case, the Tribunal did not overlook the fact that there had been a contravention, which it described as "technical", of the Superannuation Industry (Supervision) Regulations ("the SIS Regulations"). That is clear from its statement in the passage reproduced at the foot of p 7 of these reasons that it "accept[ed] on the face of the facts that there was a technical breach of Regulation 5.01 of the SIS Regulations as the fund to which the money was transferred was not a regulated fund on 31 October 1995 when the transfer was made". It was common ground that in that passage, the Tribunal erroneously referred to a breach of reg 5.01, whereas it is evident from the context that it meant to refer to reg 5.08 of the SIS Regulations, which provided, so far as is relevant; '… it is a standard applicable to the operation of regulated superannuation funds and approved deposit funds that the trustee of a fund must ensure that a member's minimum benefits in the fund are maintained in the fund until the benefits are:

(a) cashed as benefits of the member, other than for the purpose of the member's temporary incapacity; or (b) rolled over or transferred as benefits of the member; …' "Transferred" was defined in reg 5.01 in relation to a member's benefit paid out of a regulated superannuation fund as meaning, relevantly, "paid to another regulated superannuation fund." 27 The Tribunal concluded that it did not regard AMP's breach of the SIS Regulations as making its refusal to repay the money unfair or unreasonable given the circumstances in which the transferred money was embezzled. It has not been demonstrated that, in making that "value judgment", as it was described in National Mutual Life Association of Australasia Ltd v Campbell 99 FCR, at 571 [33], the Tribunal took into account some improper or irrelevant matter or failed to consider some relevant consideration. Rather, it had proper regard to the events that had occurred leading to the decision under review and took into account all the evidence and submissions made before resolving that the refusal to reimburse the complainant was not unfair or unreasonable in the circumstances.

(a) Did the Tribunal ask itself the right question? 28 It was submitted on behalf of the applicant that the Tribunal incorrectly characterised the question which it was required to resolve as "whether or not the Trustee's decision to deny repayment … to the Complainant … was fair and reasonable." According to the applicant, the question, properly characterised, was "whether Dr Mohandoss's moneys were transferred out of the fund in the first place." It was submitted that the Tribunal was compelled to answer that question in the negative. 29 That contention of the applicant wrongly identifies the decision which the Tribunal was required to review. In truth, the Tribunal was called upon to review AMP's decision of 20 November 2002 declining to reimburse to the applicant the sum of $145,925.69 previously standing to his credit in the Fund. That was the decision identified by the applicant in his complaint to the Tribunal as set out at [9] above. As also emerges from [10] of these reasons, the Tribunal clearly understood that it was not open to it to review any decision taken by AMP in October 1995. 30 Contrary to the applicant's submission in this context, the question for the Tribunal was not whether Dr Mohandoss's moneys had been transferred out of the Fund in the first place. If that had been the question, and the answer proposed by the applicant were right, namely that AMP's moneys, and not those of Dr Mohandoss, had been paid out, then it would follow that AMP continued to hold the moneys for Dr Mohandoss on the trusts of the Fund which would remain enforceable in equity. By electing to seek a remedy under the Act, he accepted the risk of AMP's persuading the Tribunal that the decision of 20 November 2002 was fair and reasonable in the circumstances.

(b) Causation 31 It was also argued on behalf of the applicant that the effective cause of his loss was the transfer of his funds to the Receiving Fund on 31 October 1995. Whether such a loss would have been sustained if the transfer had occurred on or after 16 November 1995 was said to be "mere speculation". 32 In any event, Mr Bingham argued, notions of causation have no application to this case because "the obligation of a defaulting trustee is essentially one of effecting a restitution to the estate"; Re Dawson (Dec'd) Union Fidelity Trustee Co Ltd (1966) 84 WN (Pt 1) NSW 399 per Street J, at 404. However, as the authorities relied on by his Honour in what follows that statement make clear, that obligation arises from negligence or breach of trust on the part of the trustee. 33 In the present context, the Tribunal was not called upon to determine directly whether the trustee had been negligent or in breach of trust. Rather, it was required to "stand in the shoes of the trustee" and determine whether a decision taken by the trustee was fair and reasonable in the circumstances. As Kirby J analysed it in Attorney-General (Cth) v Breckler (1999) 197 CLR 83, at 129 [89]; '… The new decision, which might have retrospective operation, will speak from the time specified in the determination. What is involved is not a determination that the trustees misapplied the law to the facts. Nor that they mistook their powers and obligations under the governing rules of the fund. Rather it is a determination by the Tribunal of its own opinion that the trustees' decision is, or was, unfair, unreasonable or both. It is the reaching of that opinion which authorises the Tribunal, conforming with s 37(5) of the Complaints Act, to exercise its own determination-making power and to substitute a fresh decision. The object of the determination is to effect the purpose of removing the unfairness and unreasonableness which the Tribunal has determined to exist (Superannuation (Resolution of Complaints) Act 1993, s 37(4)).' 34 As already explained, the decision, for which a "fresh" decision was potentially capable of being substituted in that way, was AMP's refusal to reimburse the applicant for the amount which had been paid to the Receiving Fund. It was open to the Tribunal in assessing the fairness and reasonableness of that refusal to consider whether, and to what extent, the alleged breach of the SIS Regulations or the governing rules of the Fund had been an effective cause of the loss.

Proposed amended notice of appeal 35 At the hearing, the applicant sought leave to amend his notice of appeal to include in Questions of Law (C) and (D) reproduced at [12] above, a reference to s 14AA(2) as well as to s 37(5) of the Act. A similar insertion is sought to be made in paras (A) and (B) of the grounds in the notice of appeal. In essence, the amendments are intended to provide support for a contention that s 14AA(2) additionally, or alternatively, required the Tribunal to determine whether the payment in 1995 had been contrary to law and precluded the Tribunal from affirming the decision the subject of the complaint. 36 Section 14AA provides: 'Complaints 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.' 37 The invocation of that section involves the same confusion between the decision made in 1995 and the decision made in 2002 not to reimburse the amount of the lost funds to the applicant. As already pointed out, it was the latter decision which was the subject of the complaint to the Tribunal. I entertain real doubts whether that decision was non-discretionary but, even assuming that it was so as to attract the application of s 14AA(2), it has not been shown to be contrary to law. That is because, unlike the original decision in 1995, it was not required to be made by any law or the governing rules of the Fund. It was simply made by AMP of its own volition in response to a request from the applicant. For these reasons, s 14AA(2) cannot provide any independent, or further, support for the contentions which I have already rejected for the reasons explained. Leave to amend the notice of appeal is therefore refused.

Conclusion 38 As will be apparent, each of the attacks made by the applicant on the reasoning of the Tribunal, including that sought to be based on s 14AA of the Act, must be rejected. The application is therefore dismissed with costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Dated: 5 April 2007 Counsel for the Applicant: Mr P Bingham

Solicitor for the Applicant: Maurice Blackburn Cashman