Rauchle v Q-Super Board

Federal Court of Australia|2021-10-22|Before: Thomas J

The decision of the second respondent in case number 666349 be set aside.
The matter be remitted to the second respondent for determination in accordance with the law. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THOMAS J: 1 The applicant, Mr Guy Rauchle, appeals the decision of the second respondent (Australian Financial Complaints Authority (AFCA)) in Case Number 666349 concerning a complaint by Mr Rauchle to the AFCA against the first respondent (Q-Super Board (QSuper)). 2 Mr Rauchle appeals on the basis that the AFCA has failed to comply with its statutory obligations under Chapter 7 Part 7.10A Division 3 (Division 3) of the Corporations Act 2001 (Cth) (the Act) to determine all superannuation complaints made by Mr Rauchle to the AFCA. 3 The failure is asserted to be an error of law infecting the decision with error such that it should be set aside and returned to the AFCA to consider the complaints according to law.

THE AMENDED NOTICE OF APPEAL 25 The queries posed by Mr Rauchle in the amended notice of appeal were as follows: 1. Were any or all of the complaints identified in sub-paragraphs [2(b)-(f)] of the Grounds below a "superannuation complaint" pursuant to s1053(3) of the Corporations Act 2001 (Cth) (the Act), having regard to s1053(5) of the Act? 2. If the answer to Question 1 is yes (to some or all), was AFCA required to determine all the superannuation complaints identified in sub-paragraphs [2(a)-(f)] as part of the same process under s1055 of the Act? 3. If the answer to Question 2 is yes (to some or all), was AFCA required by s1055 of the Act to make a determination in relation to each superannuation complaint identified in sub-paragraphs [2(a)-(f)] at the same time? 26 In essence, Mr Rauchle appeals the decision of the AFCA on the basis that it had failed to consider all of the superannuation complaints Mr Rauchle made. Mr Rauchle submitted that the AFCA had incorrectly interpreted and applied ss 1053 and 1055 of the Act and thereby erred in law, as outlined below.

ASSERTIONS BY MR RAUCHLE 27 Mr Rauchle asserts that the written reasons of the AFCA dated 22 October 2021: (a) determined the date Mr Rauchle was to be assessed as either PPD or TPD was 16 July 2008; (b) determined that the weight of evidence was that Mr Rauchle was PPD; (c) determined the decision of QSuper that Mr Rauchle was PPD on 16 July 2008 was fair and reasonable in all the circumstances; (d) failed to determine whether the conduct by which QSuper commenced making the initial decision in 2008 was fair and reasonable; (e) failed to determine whether the process by which QSuper made its initial decision in 2008 was fair and reasonable; (f) failed to determine whether the process by which QSuper made the review decision in 2014 upholding the initial decision was fair and reasonable; (g) failed to determine whether the non-compliance of QSuper with the principles of natural justice and procedural fairness in making each of the initial decision and the review decision was fair and reasonable in all the circumstances; and (h) failed to determine whether QSuper had reasonably complied with its own claims handling philosophy and codes of practice in making the initial decision and review decision, such as to make the decisions fair and reasonable in the circumstances.

RELEVANT LEGISLATION 28 Division 3 of the Act contains the relevant provisions. 29 Section 1057(1) of the Act provides: "A party to a superannuation complaint may appeal to the Federal Court, on a question of law, from AFCA's determination of the complaint". 30 Subdivision A of Division 3 deals with when complaints may be made to AFCA. 31 Section 1053 of the Act relates to the matters on which complaints may be made to AFCA. 32 Section 1053(1) relevantly provides: A person may, subject to section 1056, make a complaint relating to superannuation under the AFCA scheme only if the complaint is a complaint: (a) that the trustee of a regulated superannuation fund or of an approved deposit fund has made a decision (whether before or after the commencement of this section) relating to: (i) a particular member or a particular former member of a regulated superannuation fund; or (ii) a particular beneficiary or a particular former beneficiary of an approved deposit fund; that is or was unfair or unreasonable; or 33 Section 1053(5) provides: For the purposes of this section, a trustee … makes a decision if: (a) the trustee … or a person acting for the trustee … makes, or fails to make, a decision; or (b) the trustee … or a person acting for the trustee … engages in any conduct, or fails to engage in any conduct, in relation to making a decision; whether or not the decision or conduct involved the exercise of a discretion. 34 Section 1055 provides: (1) In making a determination of a superannuation complaint, AFCA has, subject to this section, all the powers, obligations and discretions that are conferred on the trustee, insurer, RSA provider or other person who: (a) made a decision to which the complaint relates; or (b) engaged in conduct (including any act, omission or representation) to which the complaint relates. Affirming decisions or conduct (2) AFCA must affirm a decision or conduct (except a decision relating to the payment of a death benefit) if AFCA is satisfied that: (a) the decision, in its operation in relation to the complainant; or (b) the conduct; was fair and reasonable in all the circumstances. … Varying etc. decisions or conduct (4) If AFCA is satisfied that: (a) a decision (except a decision relating to the payment of a death benefit), in its operation in relation to the complainant; or (b) conduct; is unfair or unreasonable, or both, AFCA may take any one or more of the actions mentioned in subsection (6), but only for the purpose of placing the complainant, as nearly as practicable, in such a position that the unfairness, unreasonableness, or both, no longer exists. … (6) AFCA may, under subsection (4) or (5), do any of the following: (a) vary the decision; (b) set aside the decision and: (i) substitute a decision for the decision so set aside; or (ii) remit the decision to the person who made it for reconsideration in accordance with any directions or recommendations of AFCA; … Limitations on determinations (7) AFCA must not make a determination of a superannuation complaint that would be contrary to: (a) law; or (b) subject to paragraph (6)(c), the governing rules of a regulated superannuation fund or an approved deposit fund to which the complaint relates; or (c) subject to paragraph (6)(d), the terms and conditions of an annuity policy, contract of insurance or RSA to which the complaint relates.

DISCUSSION 35 The task of the AFCA is to determine whether the Trustee's decision was fair and reasonable in all the circumstances in its operation in relation to the complainant and other parties joined to the complaint: s 1055(3) of the Act. 36 As I said in my reasons of 12 December 2022 (Rauchle v Q-Super Board [2022] FCA 1537), the review function is directed to whether the actual decision, rather than the process that led to it, was fair and reasonable: Board of Trustees of the State Public Sector Superannuation Scheme v Edington (2011) 119 ALD 472; [2011] FCAFC 8 (Edington) at [46] (per Kenny and Lander JJ) and Cummins v Petterd [2021] FCA 646 at [12] (per Flick J). 37 The AFCA makes its own assessment of the evidence and other information coming to its own conclusions regarding the facts, all with a view to determining whether the decision of the Trustee was, in its operation, fair and reasonable: Edington at [51]. The AFCA does not decide whether the decision itself was a correct or preferable decision (as occurs in the Administrative Appeals Tribunal), but must affirm a decision if it is satisfied that the operation of the decision the subject of the review was fair and reasonable in the circumstances. The task of the Superannuation Complaints Tribunal (Tribunal), the precursor to the AFCA, is not to engage in ascertaining generally the rights of the parties. It is not required to engage in a form of judicial review of the decision of the primary decision-maker: Edwards v Postsuper Pty Ltd [2007] FCAFC 83 at [15] (per Tamberlin, Emmett and Middleton JJ). 38 As was concluded by Moshinsky, Bromwich and Derrington J in QSuper Board v Australian Financial Complaints Authority (2020) 276 FCR 97; [2020] FCAFC 55 (QSuper) at [64], the determining factor is not the lawfulness of the decision, but its fairness and reasonableness "in its operation in relation to the complainant". Consistent with those principles, the focus of the AFCA is upon the consequence or outcome of the decision in its practical operation, rather than upon the process by which the decision under review came to be made: Edington at [50] 39 The focus of the review is on the ultimate decision made by the QSuper. As was said in Edington at [53]: Nothing in the [Superannuation (Resolution of Complaints) Act 1993 (Cth), the predecessor of the current Act] expressly required the Tribunal to consider whether or not the reasoning process adopted by a trustee in reaching the impugned decision was fair and reasonable. No such obligation should be implied. 40 Their Honours continued: [N]othing may turn on the reasoning process of the previous decision-maker, because the Tribunal may or may not, for its own reasons having regard to the evidence before it, be satisfied that the decision under review was fair and reasonable … (emphasis in original) 41 For example, the reasoning may have been incorrect, but the outcome may be fair and reasonable in the circumstances. 42 The Full Court concluded that they did not consider it was incumbent upon the Tribunal to focus on the reasoning that supported the decision: Edington at [54]. 43 Section 1057 of the Act allows for an appeal to the Federal Court of Australia on a question of law. Mr Rauchle asserts that a number of complaints were referred to the AFCA, both in relation to the decision of QSuper and also the conduct of QSuper. 44 Mr Rauchle identifies those complaints as those set out in [18] above. 45 Section 1053(1) allows for a complaint relating to superannuation under the AFCA scheme, but only if the complaint is a complaint that "the trustee of a regulated superannuation fund … has made a decision … that is or was unfair or unreasonable". Section 1053(5) deals with when a decision-maker is taken to have made a "decision" for the purposes of interpreting s 1053 and provides that, for the purposes of the section, a trustee makes a decision if: (a) the trustee … makes, or fails to make, a decision; or (b) the trustee … engages in any conduct, or fails to engage in any conduct, in relation to making a decision; whether or not the decision or conduct involved the exercise of a discretion. 46 Mr Rauchle submits that the expanded definition of the circumstances in which a trustee "makes a decision" (to include engages in any conduct or fails to engage in any conduct in relation to making a decision) means that the complaints made by Mr Rauchle (outlined in [18] above) are complaints relating to superannuation under the AFCA Scheme which the trustee failed to determine. 47 Mr Rauchle submits that, as to each of those complaints: (a) [complaint (a)] is a decision within s 1053(5)(a); (b) [complaint (b)] is conduct within s 1053(5)(b); (c) [complaint (c)] is conduct within s 1053(5)(b); (d) [complaint (d)] is conduct within s 1053(5)(b); (e) [complaint (e)] is conduct within s 1053(5)(b); and (f) [complaint (f)] is conduct within s 1053(5)(b). 48 Mr Rauchle submits that, having received the complaints, s 1055 of the Act required the AFCA to consider each one and that, given the clear and obvious interrelation between the complaints, the AFCA would necessarily need to determine the complaints as part of one determination process (as to do otherwise would result in the AFCA not being able to comply with s 1055, in particular, being satisfied whether the conduct was unfair or unreasonable). 49 As to the difference between that conduct in relation to making a decision and the decision, the AFCA referred to Australian Reward Investment Alliance v Superannuation Complaints Tribunal (2008) 173 FCR 335; [2008] FCA 1548 (Australian Reward) (per Graham J). The Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Complaints Act) with which Australian Reward was concerned had a similar provision extending the definition of "decision". Mason CJ (with whom Brennan and Deane JJ relevantly agreed) said in Australian Reward to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond) at 341-342: The distinction between reviewable decisions and conduct engaged in for the purpose of making such a decision is somewhat elusive. However, once it is accepted that "decision" connotes a determination for which provision is made by or under a statute, one that generally is substantive, final and operative, the place of "conduct" in the statutory scheme of things becomes reasonably clear. [T]here is a clear distinction between a "decision" and "conduct" engaged in for the purpose of making a decision. A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision. It is not a challenge to decisions made as part of the decision-making process except in the sense that if the decisions are procedural in character they will precede the conduct which is under challenge. In relation to conduct, the complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous. To give an example, the continuation of proceedings in such a way as to involve a denial of natural justice would amount to "conduct". That is not to deny that the final determination of the proceedings would constitute a decision reviewable for denial of natural justice. 50 The parties were not in disagreement that, when reviewing the decision, the inquiry before the AFCA focused only on the decision and whether it was fair and reasonable. 51 "Conduct" does not extend to steps which might be taken by the decision-maker in reaching the decision such as, for example, the weighing of, or reliance on, evidence. As was described in QSuper, it does not extend to the lawfulness of a decision. The only consideration is the fairness or reasonableness in the operation of the decision in relation to the complainant. 52 This is also underpinned by s 1055 of the Act, which deals with action which the AFCA may take. These provisions are focused on the decision. For example, if the AFCA is satisfied that a decision or conduct is unfair or unreasonable or both, the AFCA may take one or more of the actions mentioned in s 1055(6), but only for the purpose of placing the complainant as nearly as possible in such a position that the unfairness or unreasonableness or both no longer exist. Pursuant to s 1055(6), if the AFCA is satisfied that the conduct is unfair or unreasonable, the AFCA may: (a) vary the decision; (b) set aside the decision and substitute a decision for the decision so set aside; or (c) remit the decision to the person who made it for reconsideration in accordance with any directions or recommendations of the AFCA. 53 The decision being discussed is, of course, the decision referred to the AFCA for review, which (as said in Bond) "connotes a determination for which provision is made by or under a statute". 54 Graham J in Australian Reward concluded (at [100]) that "it is necessary to address what the complaint was that the Tribunal was reviewing". 55 Graham J said that "the complaint was a complaint in respect of the calculation of the second respondent's Final Average Salary and its consequential impact upon her benefit under the Public Sector Superannuation Scheme". His Honour continued that it was "that complaint - not a complaint about the lack of provision of information or a complaint about a failure to effect a compromise" which was made in accordance with the provisions of the Act. He concluded that the complaint made was the very same complaint. In the circumstances, his Honour concluded that "it was not open to the Tribunal to find that any decision of the Board in relation to the second respondent was unfair or unreasonable" (at [105]). 56 It is necessary to consider the substance of the complaints as to conduct in determining whether they fall within the parameters outlined above. It is also necessary to consider the extent to which the AFCA decision deals with the complaints. 57 At the hearing, Mr Holyoak, on behalf of QSuper, considered the substance of the complaints by reviewing the communications between the parties which related to the complaints and which led up to the AFCA Recommendation and also the AFCA Determination. As to each of the communications, Mr Holyoak made submissions regarding the nature of the conduct and the category to which it fell, bearing in mind the decision in Bond - whether the relevant conduct was a challenge to decisions made as part of the decision-making process or whether the challenge to conduct was an attack on the proceedings engaged in before making the decision. 58 In terms of that analysis, it must be borne in mind that the conduct must relate to a complaint that the process of decision-making was flawed, in relation to a decision (which was the determination for which provision was made under a statute) whereas in relation in to a decision, the complaint was that the decision was erroneous. 59 Mr Holyoak submitted that (as reflected in Bond) an issue such as continuation of proceedings in such a way as to involve a denial of natural justice could amount to "conduct", but that was not to deny that the final determination of the proceedings would constitute a decision reviewable for denial of natural justice. 60 I will undertake a similar analysis.

THE CONDUCT COMPLAINTS 61 On 18 September 2019, Mr Rauchle said in his email to the AFCA: There are several concerns and/or cause for complaint arising from the process of assessing my claim. These include but are not limited to: The process by which the initial decision was commenced. The adequacy of the initial decision. The adequacy of the review decision. Compliance with the principles of natural justice and procedural fairness. Whether QSuper has reasonably complied with its claims philosophy and/or other applicable codes of practice and like … 62 The email continued to provide a description. The first comment is: I note that a cases [sic] should be assessed thoroughly, fairly and objectively. The purpose of a statement of reasons is to make explicit the reasoning by which (all) material has been assessed and weighed to reach conclusions and the ultimate decision. This has not occurred. 63 This is a comment (rather than a complaint) regarding the process by which the decision was reached, rather than that the decision was flawed in the way contemplated by this Court in Bond. 64 The email continues to say that the complaint will, in the first instance, focus on one specific matter. 65 The paragraphs following relate to: (a) the doctors' reports and a view that the review decision "failed to address the matters raised with respect to fatigue" and also that QSuper "declined to seek clarification of the medical opinions when requested"; (b) a contention regarding the finding of total and permanent disability; and (c) disagreement as to the capacity to work as a machinery operator. 66 These paragraphs appear to deal with complaints 2 (adequacy of the initial decision) and 3 (adequacy of the review decision) and all concern merits and the process by which the decision was undertaken. 67 The email concludes saying that Mr Rauchle has "narrowed this complaint (in the first instance) because of my past experience with QSuper, where multiple points have been selectively evaded". This raises a question as to what complaints were made. The narrowing seems to relate to merits issues regarding the decision concerning the total and permanent disability. 68 The next communication regarding the complaint is an email from Mr Rauchle to Ash Horn dated 23 March 2020 at 10.59 pm. 69 The first paragraph refers to the initial complaint, which is said to have identified "a primary issue of the ultimate decision and a complaint that this was incorrect in that … it did not adequately consider the matter of fatigue and that fatigue … is sufficient to overturn QSuper's decision". 70 This description concerns the merits of the decision. 71 The email continues to refer again to the five "secondary matters of complaint" (it is assumed as described in the email of 18 September 2019) and continues saying that Mr Rauchle would "add that QSuper has attempted to deny this complaint to AFCA". This addition clearly does not relate to issues which precede the decision. 72 Mr Rauchle then turns to what appears to be a more detailed description of the first complaint - "[t]he process by which the initial decision was commenced". This was said to be that "[t]he claim was not initiated at my application". Mr Rauchle asserts that QSuper "failed to communicate at several levels, including the afore" and "did not communicate the specifics of the benefit nor the specifics of alternative findings". The email continues that, even when Mr Rauchle's employer decided to suspend their decision to terminate his employment, QSuper nonetheless proceeded. There was a transfer of the defined benefit amount to an accumulation account even though Mr Rauchle continued to be employed. He says that this objection was raised with QSuper, but was denied. Mr Rauchle recalled having been advised of no option to formally object. The commentary concludes: "The decision was incorrect at the time and not handled correctly". This passage relates to the payment into an accumulation account, which appears to have been a different issue. The discussion also may have related to a lack of procedural fairness in the way in which matters were not communicated to Mr Rauchle. It could potentially therefore deal with a complaint within section 5(b). 73 The next paragraph turns "to the last matter" which, it is suggested, should be assessed in light of all of the former matters. Specifically, the assertion is that questions were posed by QSuper during the review process, answers were provided, but the decision by QSuper was made "regardless" of the answers provided. It is asserted that this would appear to be specifically contrary to one aspect of the claims philosophy. 74 This appears to be a complaint about the outcome of the decision with QSuper not having had adequate regard to certain answers provided. It goes to the merits. 75 The next paragraph turns to the remaining matters raised which are said to be "broadly defined". Reference is made to an attached document where "some of the specifics of these broadly defined matters of complaint" (italics in original) are identified. 76 Mr Rauchle confirms "[t]o your previous question, these are my complaints". 77 The email continues by referring to an understanding that the AFCA process cannot "subsequently consider 'additional' matters" (italics in original). The parties agree that this probably was a suggestion that the matter could not be dealt with in a piecemeal way. However, Mr Rauchle reiterated his concerns that, by raising multiple matters, "the volume of matters may divert from a focus on a clear resolution of the primary matter". He reiterated his preference that the primary matter be resolved in the first instance, even if this is not, of itself, a resolution of the complaint as a whole. Again, this passage raises a question as to what complaint was actually referred to the AFCA for determination at that time. 78 Mr Rauchle concludes by raising the "disjunction" he observed between statements of reasons for administrative decisions and judicial statements of reasons. He suggests that the purpose of an administrative statement of reasons is "to justify the decision made in the face of potential judicial scrutiny". Mr Rauchle suggests that the administrative statement of reasons should rise to the same standard and should not be an ambit denial. He concludes that such a denial indicates a bias in the decision-making process. That observation seems to relate to process - his disagreement with the decision. There is an unspecified suggestion of bias which may potentially raise an issue of conduct. 79 The next document is that which was referred to by Mr Rauchle as identifying "more specifically some of the specifics of these broadly defined matters of complaint" (italics in original). 80 Mr Rauchle notes that QSuper is a government corporation and may not be specifically bound by "the following". Mr Rauchle says that the following "is what the Queensland government identifies as best practice" (italics in original). Mr Rauchle provided two links, one to the Queensland Ombudsman and one to the Australian Law Reform Commission. The paragraphs relate to "Good decision-making" and "Procedural fairness: the duty and its content" respectively. 81 He says that "I have, in addition to the matter of the actual decision, identified four broad complaints in relationship to the process of making the decision. I have annotated the following with comments in red to indicate more specifically the basis for these broadly defined matters of complaint". By that description, it would be expected that the complaints relate to the process of making the decision. 82 Mr Rauchle identified in red the passages which contained his complaint. 83 In "5. Follow procedures", Mr Rauchle said "I had asked … for these procedures used by QSuper. I received only a response in general". Nothing further is identified. It relates to the procedures followed by QSuper. As such, it is not conduct which would lead to the conclusion that the decision was flawed in the way contemplated by the Court in Bond. However, it may suggest a denial of procedural fairness and that Mr Rauchle was not informed of the procedures which were to be followed in the determination. 84 Under "6. Gather all relevant information", Mr Rauchle has inserted: "I identified 'issues', particularly with the report of Dr. [Ljubisavljevic] and requested clarification (ie it was not the 'best' information available). The request was refused with words to the effect: 'I am not required to and I won't'". The issue relates to the weight given to Dr Ljubisavljevic's report. It would be a matter of process within the decision-making. 85 The next comment appears under the heading "7. Provide procedural fairness". 86 The comments made are as follows: Documentation being relied upon was not generally disclosed until after the decision, and then, not in full. [This appears to be a complaint regarding procedural fairness and natural justice.] … I was not invited to participate in the initial decision. [This appears to raise a conduct issue involving the lack of procedural fairness.] In my experience, identification of the "key issues" has taken the form of an initial assessment. By this, the participation can then be meaningful. This did not happen. [This seems to relate to the way in which the process took place. It relates to the process of decision-making.] … The submission for the review was largely ignored [It passage suggests a disagreement with the merits on the basis that the decision-maker did not pay particular attention to the submission.] … The principles of natural justice require that both parties should be afforded similar rights. QSuper has had the advantage of directing questions in the course of obtaining the medical reports. I was denied [the] opportunity to do so, particularly in the case of material identified in my review submission in [respect] to the report by Dr. [Ljubisavljevic]. [The complaint raises the principles of procedural fairness. The specific matter involves the report of Dr Ljubisavljevic about which Mr Rauchle had previously said that his submissions were ignored. It seems to be suggested that Mr Rauchle was treated differently from QSuper.] (italics in original; my comments in square brackets beneath each of Mr Rauchle's comment) 87 The next comments appear under the heading "8. Determine the facts" as follows: The sufficiency of Dr. [Ljubisavljevic's] report has already been raised. … A significant statement by Dr Douglas to [the] effect that "I would never return to employment" was ignored (in both the initial and review decision) as were other matters touched upon in my submission. … Transparency of process requires an explanation of how and why information was weighed. This was not done. In the initial decision, it appears that medical opinion early in the course of my treatment was given equal weight to that contemporaneous with the decision. The early prognosis of a return to work was not fulfilled but it appears to have been given substantial weight regardless. Other matters were simply ignored if they did not support the decision. … The initial decision was generally deficient. The review decision, while better, was deficient in explaining how the evidence had been weighed and the evidentiary basis for reaching a conclusion. 88 These all appear to relate to the merits of the decision, including issues such as weighting and not having regard to evidence. They are all process of reasoning issues relating to merits. 89 The next comments appear under the heading "10. Give meaningful and accurate reasons for your decision" as follows: The statement of reasons fails to reconcile the evidence, the weighing of the evidence, the criteria for decision and the submission against each other in a way that is meaningful and reasonable. It omits to address significant matters that would lead to a contrary decision. [Again, these comments relate to criticisms as to the merits, including reconciling evidence, weighing of evidence, consideration of the submissions and reliance on some matters over others.] … Following the review decision, the time allowed for appeal was not advised. QSuper subsequently relied upon the time expired to disallow this complaint. [This is not relevant to the decision under review.] (my comments in square brackets beneath each of Mr Rauchle's comment) 90 The next document is an email from Mr Rauchle to Ash Horn on 6 May 2020 attaching Conclusions. 91 Headings 1 to 8 of the Conclusions clearly relate to the merits and the way in which the evidence should be approached. Those relate clearly to the process of the decision-making. 92 Under the headings "9. Concerns with opinion of Dr. Ljubisavljevic", "Initial decision of 2010" and "The review decision with effect of 2010", reference is made to bias and to principles of natural justice. These are made against the background of the guide to decision-making, which was a document of another agency, not QSuper. The focus of that document was, of course, decision-making. The criticisms again relate to not addressing all matters raised in Mr Rauchle's submission, not seeking clarification of matters identified by Mr Rauchle and placing weight on the report of Dr Ljubisavljevic. The criticisms include not seeking clarification, failure of analysis and weighing of evidence, cherry picking evidence to suit conclusions, a misquoting of a witness in one area, and ambiguity of a report. These are all matters of the process leading to the decision. In the section "The review decision with effect from 2010", it is said "while a submission was invited by QSuper, it did not give notification of the key issues and thereby failed to comply with procedural fairness" This potentially raises issues of procedural fairness. 93 The next document on the file is the AFCA Recommendation. The process followed by the AFCA involved the circulation to the parties for comment of the Recommendation (to the decision-maker) prepared by an officer of the AFCA. A Determination taking account of all of the comments is later prepared. 94 Relevant aspects of the Recommendation are: 1 Overview … 1.2 Issues and key findings Is [Mr Rauchle] TPD or PPD? The weight of information shows in 2008 and 2010 [Mr Rauchle] had capacity for alternative work despite suffering from depression and fatigue. [Mr Rauchle] permanently could not return to his substantive role and retired on grounds of ill health in 2010. Given the above, [the AFCA was] satisfied [Mr Rauchle] is PPD and not TPD. Did the trustee incorrectly transfer [Mr Rauchle's] account? … [The Recommendation dealt with whether] the trustee correctly transferred [Mr Rauchle's] account to an accumulation account in July 2008. Was the trustee's decision fair and reasonable? [The Recommendation concludes that] the trustee's decision that [Mr Rauchle] is PPD and not TPD is fair and reasonable. … … 2.2 Did the trustee incorrectly transfer [Mr Rauchle's] account to an accumulation account? [The decision regarding the accumulation account flowed from the consequence of Mr Rauchle being PPD - which leads to the impact on the accumulation account which had been discussed in some of the communications.] 2.3 Was the trustee's decision fair and reasonable? The trustee informed [Mr Rauchle] of its decision that he is not TPD [Mr Rauchle] says the trustee and its board did not inform him of the reasons he was PPD and not TPD. [Mr Rauchle] also says the trustee was not transparent. The decline letter dated 3 July 2008 enclosed a statement of reasons which sets out the trust deed definition of PPD and temporary disablement. It also outlines the evidence that was reviewed, including a summary of the evidence relied upon. The letter indicates the trustee opined [Mr Rauchle] was not TPD in line with its trust deed definition, however was PPD which meant his IP benefits would cease. I am of the view the trustee could have explained how the medical evidence did not support [Mr Rauchle] met the TPD definition. However, I am satisfied this letter informed [Mr Rauchle] of the trustee's decision and the evidence which was relied upon. The decline letter dated 26 September 2014 provides a background on the events which led to the trustee's review, sets out the trust deed definition of PPD and TPD, outlines the evidence that has been reviewed, including a summary of the evidence relied upon, explains the material findings from the medical evidence and explains why [Mr Rauchle] is not TPD. Therefore, I am satisfied [Mr Rauchle] was informed of the trustee's reasons for its decision. Given the above, I am satisfied the trustee informed [Mr Rauchle] of its decision that he is PPD and not TPD. Procedural fairness was provided to [Mr Rauchle] [Mr Rauchle] says when the trustee made the decision that he was PPD and not TPD in 2008, it did not request and seek his input prior to the decision being made. The trustee informed [Mr Rauchle] on 3 July 2008 of its decision that he was PPD and not TPD. I note this letter indicated if [Mr Rauchle] does not agree with this decision he could seek a review from the board of trustees initially, and if he remains dissatisfied, he can raise the matter to the superannuation tribunal. The available information does not show the trustee sought [Mr Rauchle's] input prior to making the decision he was PPD in 2008. However, it is important to note [Mr Rauchle's] IP benefits ceased as he received it for the maximum two-year benefit period and the trustee proceeded to determine whether he was TPD or PDD without a claim being submitted. While the trustee did not seek [Mr Rauchle's] input prior to making the decision he was PPD and not TPD in 2008, it provided him the opportunity to appeal and provide his input after the decision was made. Additionally, although the trustee could have sought [Mr Rauchle's] input prior to making its decision in 2008, I am of the view had it done so, it would have not changed the trustee's decision. Given this, I am satisfied procedural fairness was provided to [Mr Rauchle']. The trustee's decision is fair and reasonable Based on the available information, I am satisfied the trustee's decision that [Mr Rauchle] is PPD and not TPD is fair and reasonable. This is because the weight of information supports [Mr Rauchle] was PPD and not TPD. 95 The Recommendation took into account the issue of procedural fairness in the context of its implication for the decision. 96 Importantly, the Recommendation concludes that although the trustee could have sought Mr Rauchle's input "prior to making its decision in 2008 … had it done so, it would not have changed the trustee's decision". 97 Therefore, a conclusion was reached as to satisfaction with the procedural fairness which was provided to Mr Rauchle. 98 This document recognises a complaint having been made by Mr Rauchle in relation to lack of procedural fairness. 99 The decision deals with that issue and it cannot be said that the issue was ignored or not dealt with. Report of a telephone conversation between Ms Linda Nguyen and Mr Rauchle on 2 October 2020 100 The comments largely relate to the merits of the Recommendation. 101 There is a comment as to the AFCA's process, which is "[t]here was no standard, guideline, policy or procedure to be followed in making a recommendation. Consequently, I could not be provided with such information". I do not regard that as an issue of separate conduct. It was an observation as to why information could not be provided. 102 After the Recommendation was received by Mr Rauchle, there was a communication in which Mr Rauchle confirmed that he did not accept the Recommendation and, during a conversation, it was acknowledged by Ms Nguyen, on behalf of the AFCA, that "the decision had (more than likely) not addressed all of the matters of the complaint". Submission to the AFCA Ombudsman 103 A submission was made to the AFCA Ombudsman. In that submission, Mr Rauchle said: 5.b QSuper has acted contrary to its claims philosophy, procedural fairness and the principles of natural justice in reaching a decision to deny TPD. (italics in original) 104 This is also repeated in Conclusion c. 105 A comment in 5.b is "QSuper has acted contrary to its claims philosophy, procedural fairness and the principles of natural justice in reaching a decision to deny TPD" (italics in original). 106 The reference is to the decision itself. So much is clear from the following paragraphs (6-11), which deal with probative value of reports, contradictions in reports, the level of weight which should be attributed to a report and the need for further consideration of the definition of TPD. No conduct is identified outside the decision-making process. 107 Conclusions c asserts "QSuper has acted contrary to its claims philosophy, procedural fairness and the principles of natural justice in reaching a decision to deny TPD" (italics in original). The meaning of this complaint can be gleaned from the context in which it is put in the document. Paragraphs 6-11 provide this context. It is a complaint relating to the process of decision-making rather than conduct. 108 The Determination was delivered on 22 October 2021.

CONCLUSION 109 There are material differences between the terms of the Recommendation and the terms of the Determination. 110 As was earlier observed, the Recommendation contained a section dealing with procedural fairness under the heading "Procedural fairness was provided to [Mr Rauchle]". 111 From that section of the Recommendation it is clear that: (a) Mr Rauchle made a complaint regarding procedural fairness, which is acknowledged by the AFCA; (b) the issue was not ignored, but dealt with in the Recommendation, with the conclusion that "I am satisfied procedural fairness was provided to [Mr Rauchle]". 112 On the other hand, the Determination contains no direct reference to, or analysis of, the issue of procedural fairness. 113 The Determination contains additional analysis in section 2.4 "Is the trustee's decision fair and reasonable?" as follows: AFCA does not review the trustee's decision-making process [Mr Rauchle] has raised a number of issues about the trustee's decision-making process. However, it is AFCA's role to review the outcome of the decision, not the trustee's decision-making process that led to the decision. AFCA must affirm a trustee's conduct (being conduct relating to a decision) if AFCA is satisfied the conduct was fair and reasonable in its operation in relation to [Mr Rauchle] in all the circumstances: see section 3.6 of this determination. The test for a superannuation complaint is whether a trustee's decision was fair and reasonable in its operation to [Mr Rauchle] in all the circumstances. 114 It seems that the AFCA must have had the distinction between the decision and the conduct in mind. Hence, the reference in the first paragraph to the AFCA's role being "to review the outcome of the decision, not the trustee's decision-making process that led to the decision", and the reference in the second paragraph to the fact that the AFCA "must affirm a trustee's conduct (being conduct relating to a decision) if AFCA is satisfied the conduct was fair and reasonable in its operation in relation to [Mr Rauchle] in all the circumstances". 115 The second paragraph concludes "see section 3.6 of this determination". 116 The statements in section 2.4 are largely accurate, but provide no detail, and certainly no analysis, of any of the "conduct complaints" raised by Mr Rauchle. In particular, given that the AFCA Recommendation had acknowledged that Mr Rauchle complained that procedural fairness was not provided to him, there was no reference to, and no analysis dealing with issues of, procedural fairness in the Determination. 117 Of course, the paragraph referred to section 3.6. 118 Section 3.6 is headed "Case law" and sub-headed "Disabling symptoms present at the relevant date may amount to TPD". Reference is made to two cases with the conclusion being that the Court decisions, together with the High Court decision in Finch v Telstra Super Pty Ltd (2010) 242 CLR 254; [2010] HCA 36, are relevant to claimants who suffered from a disabling condition and emerged later. 119 The content of section 3.6 is unrelated to the paragraph in section 2.4, which directs attention to section 3.6. Nor is there any paragraph which section 2.4 could intend to refer to. 120 No explanation has been advanced for this. 121 The position therefore is that Mr Rauchle made a complaint regarding procedural fairness, which was acknowledged by the AFCA in the Recommendation, which was ignored in the Determination. 122 As I observed earlier in these reasons, Mr Holyoak submitted that some conduct might be conduct to which section 5(b) might apply but, in addition, may amount to a flaw in the decision. The example to which he referred was lack of procedural fairness or lack of natural justice - which is the example referred to in Bond. 123 Of course, a failure to provide procedural fairness constitutes a jurisdictional error, which can lead to a decision being set aside. 124 Mr Holyoak identified a number of issues arising in relation to natural justice in the decision. He submitted "in the end … these all fold into natural justice in the decision, as opposed to conduct, and your Honour will see how AFCA has dealt with that, and indeed, how it was in the course of deciding". Mr Holyoak submitted that, as opposed to being conduct under section 5(b), it could be categorised as "infecting the decision". 125 Mr Holyoak's submission was that the inclusion of section 2.4 dealt with the issue so that the complaints were treated as complaints regarding the decision. Mr Holyoak submitted that the appeal seeks to "cleave out conduct as a separate ground, whereas … the way in which it was dealt with between the parties as appears in the preceding documents, and the appeal doesn't speak to that". 126 It was submitted on behalf of QSuper that the AFCA Ombudsman's submissions make it clear that they are referable to the decision itself, particularly the reference to Dr Ljubisavljevic, which deals with the significance of Dr Ljubisavljevic's recommendation and report. 127 Mr Holyoak submitted that these issues were raised by Mr Rauchle "as infecting the decision as opposed to the standalone, antecedent process, by which the decision was made". 128 Mr Holyoak therefore submitted that there was no superannuation complaint and "this court is only engaged if there is a superannuation complaint. My short point is, there isn't. It's either process or there was no conduct actually advanced to be a superannuation complaint". 129 As to the effect of section 2.4, QSuper submits that it was necessary to "look at the way in which the parties treated this point" to discern the meaning of that section. 130 Recognising that section 3.6, to which section 2.4 refers, is not relevant to the point, and provides no assistance, QSuper submits that it is necessary to look at the documents, "correctly understood in their chain", to understand the meaning of the conclusion in section 2.4. QSuper submitted that, in relation to the matters of complaint, in "the earlier train, they had been ventilated … This can only be understood as an excising process, tick, and referring to conduct - but doing it in such a way that it can only refer to the way in which it was treated earlier, that is, it wasn't conduct per se as we understand it … which is a paraphrase, of course, of 5(b)". 131 Mr Holyoak submitted that based upon the material and how the complaints were treated follows that it has been dealt with. 132 Mr Holyoak summarised three ground rules (as he described) namely: (1) There is no superannuation complaint because of the focus on process (see Eddington). (2) There is no standalone or independent conduct - it was all wrapped in two the decision. (3) Mr Rauchle has not identified the complaint as a superannuation complaint. 133 Mr Grant on behalf of Mr Rauchle submitted that the Recommendation was of a case manager not made under the legislative process. Material aspects of what is said in the Recommendation are not repeated in the Determination. The fact that an officer from AFCA may have advised the parties of a view is irrelevant. 134 It was submitted that it is clear on the records that not all complaints were dealt with as part of the Recommendation and the author of the Recommendation admits this. 135 As I have said earlier, the High Court in Bond described the difference between the complaint and the decision. The complaint in relation to conduct is that the decision-making process was flawed. In relation to the decision, the complaint is that the actual decision was erroneous. 136 The court in Bond concluded that the continuation of proceedings in such a way as to involve the denial of natural justice would amount to "conduct". It also concluded that this is not to deny that a final determination of the proceedings will constitute a decision reviewable for denial of natural justice. 137 A complaint that the conduct of the proceedings involved a denial of procedural fairness would, if established, demonstrate that the decision-making process was flawed. Q super has made submissions about the nature of the complaints. 138 As to the issue of a lack of procedural fairness, as will be clear from these reasons, I have concluded that a number of aspects of the communications lead to the conclusion that there was a complaint as to lack of procedural fairness. My conclusion is consistent with the fact that in the Recommendation the existence of that complaint was acknowledged by the author of the Recommendation. The author considered and dealt with that complaint. 139 I do not believe that the parties treated that complaint in any other way. 140 The complaint as to lack of procedural fairness was dealt with in the Recommendation. However, it was not dealt with in the Determination. The Recommendation is not part of the formal process. The fact that the complaint as to procedural fairness was dealt with in the Recommendation is of no consequence. The same applies to any opinions expressed or statements made leading up to the Determination. 141 It is not open to read into the AFCA's Determination matters which may have been recorded in the Recommendation or matters which may have been discussed or views which might have been expressed leading up to the AFCA's Determination. It is necessary to look to the face of the Determination to determine its meaning. 142 The significance of the contents of the Recommendation in this case is more that it highlights that the issue of lack of procedural fairness was raised by Mr Rauchle and was not dealt with in the Determination. 143 In the circumstances, the question of procedural fairness is plainly raised by Mr Rauchle and, equally clearly, was not dealt with in the Determination. 144 The basis of the AFCA's jurisdiction to make a determination under the Act rests upon a complaint relating to superannuation under the AFCA scheme that the trustee of a regulated superannuation fund made or failed to make a decision or engaged in any conduct or failed to engage in any conduct in relation to making a decision that was unfair or unreasonable (see ss 1053(1) and 1053(5)). 145 In this case, Mr Rauchle made complaints that the trustee of a regulated superannuation fund engaged in conduct in relation to the making of a decision that was unfair or unreasonable. 146 A party to a superannuation complaint may appeal to the Federal Court on a question of law from AFCA's determination of the complaint. 147 In answer to the first question of law the complaint relating to non-compliance of the first respondent with the principles of natural justice and procedural fairness in making the review decision is a "superannuation complaint" pursuant to S1053 ((3) of the Corporations Act 2001. 148 The second and third Questions of law raise issues relating to the process adopted by AFCA in determining complaints. 149 Matters of process are not prescribed in the Act. The way in which complaints are determined by AFCA is established by AFCA to put in place processes which are efficient and effective having regard to the nature of the matter. 150 The second and third questions do not raise questions of law. 151 I will make the following orders: (1) The decision of the second respondent (AFCA) in case number 666349 be set aside. (2) The matter be remitted to AFCA for determination in accordance with the law. 152 As I have made that order in relation to complaint e, the entire matter will be remitted to AFCA and so it is not necessary to deal with the other complaints. Having said that, I have in these reasons undertaken an analysis of the communications between the parties leading up to the AFCA Determination which deals with the nature of the complaints. I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thomas.

(Resolution of Complaints) Act 1993(Cth)

Graham J). The Superannuation (Resolution of Complaints) Act 1993(Cth)

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Judgment (9 paragraphs)

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Legislation Cited (4)

Cases Cited (11)