The issues
25 Mr Ray made a number of submissions based on four alternative general propositions. The first proposition was that s 14(6A) of the SRC Act did not apply to the present circumstances, and accordingly the time limit for making a complaint to the Tribunal prescribed by that section was not relevant. The second proposition was that no valid decision had been made by the Tribunal in relation to jurisdiction because the Tribunal itself never made a valid determination, or because the Tribunal improperly dealt with Mr Ray's complaint summarily. The third proposition was that if s 14(6A) of the SRC Act did in fact apply, time should either have ceased to run or the time limit should have been extended because it was by reason of the Board's delay in dealing with Mr Ray's complaint to it that Mr Ray failed to bring his complaint to the Tribunal within time. The fourth proposition was that if the time limit of one year in s 14(6A) of the SRC Act did apply, Mr Ray had made his complaint to the Tribunal within time because the date of the relevant decision of the Board was in fact 18 September 2002, being the date of the decision relating to total and permanent disablement, and the earlier decision of 13 September 2001 was irrelevant because it related to permanent and partial disablement only.
26 Mr Ray submitted that, in order for s 14(6A) of the SRC Act to apply, the Tribunal had to be satisfied that a number of pre-conditions had been met, namely that there was:
· a decision,
· of a trustee,
· relating to the payment of a disability benefit,
· because of total and permanent disability.
27 Mr Ray submitted that no "decision" was made on 13 September 2001 whether by the Board's delegate or by the Board. He submitted further that, if a decision was made on 13 September 2001 by the Board or its delegate, it did not relate to the payment of a "disability benefit." Finally, Mr Ray contended that the decision of the Board was not made in relation to total and permanent disability; rather its decision assessed permanent and partial disability only.
28 A "Recommendation" was made on 11 September 2001 by an unnamed person, being the Manager, Disability Claims Management Group. The Board contended that a decision was made on 13 September 2001 and was evinced in two stages:
- first, the decision as contained in the document entitled 'Submission to the Board's Delegate';
- secondly, the notification of the decision, which was contained in the letter to Mr Ray's solicitors dated 13 September 2001.
The Board submitted that the Submission to the Board's Delegate was prepared by the Senior Case Manager, Ms Denysiv, and contained background to the claim, a summary of the medical evidence and finished with a recommendation as to the outcome. The Board relied on the delegate's signature and notation "approved" on the bottom of the sixth page of the submission as raising the inference that the delegate had considered all of the material and the recommendation and come to a decision to approve the recommendation in its entirety.
29 I am not satisfied that a decision was made by the Board or by any delegate of the Board on 11 or 13 September 2001. What was given to Mr Ray as the decision was in fact only a recommendation by an unnamed delegate and it was not signed off or otherwise authenticated by that delegate. The statement of reasons sent to Mr Ray's solicitors on 13 September 2001 purported to be the statement of reasons of the Manager, Disability Claims Management Group, the person to whom the Board said it had delegated authority to determine whether a disability payment was payable to Mr Ray. Ms Denysiv did not hold that position, she was a Senior Case Manager.
30 Section 6F of the State Public Sector Act provides:
"(1) The board may delegate its powers under this Act to the executive officer, a trustee or an appropriately qualified person.
(2) A delegation of a power may permit the subdelegation of the power to the executive officer, a trustee or an appropriately qualified person.
(3) In subsection (1) -
'appropriately qualified' means having the qualifications, experience or standing appropriate to exercise the power."
There was no evidence of any delegation to that unnamed person, nor was there any evidence that such manager had made the decision. The document sent to Mr Ray's solicitors on 13 September 2001 concluded with a recommendation. But a recommendation to whom? And from whom? It was not signed off or otherwise authenticated. Although the last section of the document commences with the formulation of a decision or determination, any decision that was purported to be made was overtaken or succeeded by language that formulated only a recommendation. The covering letter dated 13 September 2001 made it clear that the Board had delegated its authority to determine whether or not a disability benefit was payable. The delegate did not make that decision or determination.
31 Even if the statement of reasons is read in conjunction with the document sent to the Tribunal on 4 November 2002, the "Submission to the Board's Delegate", the matter is not advanced any further. There was no evidence as to the identity of the author of the submission, the person who apparently signed it on 11 September 2001 or as to the person who apparently approved it on 13 September 2001. If it was approved by "The Board's Delegate" the identity of that person is unknown and there is no evidence of any delegation to that person.
32 It follows that no decision was made on 11 or 13 September 2001 by a delegate of the Board or by the Board itself in relation to Mr Ray's claim for a permanent disablement benefit.
33 The Board relied on the presumption of regularity, the maxim omnia praesumitur rite esse acta,to support the proposition that its delegate had made a decision in respect of Mr Ray's claim. This presumption operates in respect of public and official acts and duties so that they are presumed to have been regularly and properly performed and that the persons acting are properly appointed: Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 163‑165 per McHugh JA.
34 The Board submitted that where the presumption is not met by any rebutting evidence, the presumption will prevail and that the person alleging the invalidity of appointment carries the burden of proving the invalidity. The Board relied on the presumption to argue that the decision made on 13 September 2001 was a 'decision of a trustee' within the meaning of s 14(6A). It submitted that although the presumption is mainly applied in matters of public law, the presumption is of general application, being applicable to public and commercial matters. It relied on Morris v Kanssen [1946] AC 459 at 475; Hardess v Beaumont [1953] VLR 315 at 320 per Dean J; McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 at 850; R v Brewer (1942) 66 CLR 535 at 548; R v Arrowsmith [1950] VLR 78; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164. It submitted that there was no rebutting evidence in this case that would establish any lack of regularity.
35 I do not consider that this is a case where presumption should apply. This is so, particularly in circumstances where the issue of the delegation is put in issue, where there is no evidence of any instrument or other form of delegation to any particular person and where there is no evidence from the delegate as to the decision he or she made.
36 The maxim omnia praesumitur rite esse acta was explained in Morris v Kanssen [1946] AC 459 at 475 by Lord Simonds in the following terms (at 475):
"It has many applications. In the law of agency it is illustrated by the doctrine of ostensible authority. In the law relating to corporations its application is very similar. The wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order. But the maxim has its proper limits … It is a rule designed for the protection of those who are entitled to assume, just because they cannot know, that the person with whom they deal has the authority which he claims. This is clearly shown by the fact that the rule cannot be invoked if the condition is no longer satisfied, that is, if he who would invoke it is put upon his inquiry. He cannot presume in his own favour that things are rightly done if inquiry that he ought to make would tell him that they were wrongly done."
As McHugh JA pointed out in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at (164):
"The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled … And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion for granting the permit …"
37 The presumption is a public law doctrine (see McHugh JA in Minister for Natural Resources v NSW Aboriginal Land Council (supra)) and I do not consider that it can be drawn in aid in relation to a complaint by an individual about non‑payment of superannuation benefits where the existence of the authority to make the decision on 13 September 2001 or 18 September 2002 is in issue.
38 Even if the maxim were to be applied, it is not immediately clear to which fact or circumstance it is to be applied. If it is to be applied to the "decision" made by the delegate as contained in the statement of reasons, the decision itself is problematic as the statement of reasons contained a mere recommendation. If it is to be applied to the decision as contained in the submission to the Board's delegate and sent to the Tribunal under cover of a letter of 4 November 2002, then one does not know the identity of the delegate or decision‑maker in favour of whom one is to apply the presumption.
39 In any event, even if there was evidence of the instrument of delegation and the identity of the delegate, Mr Ray's solicitors were only informed, by the letter on 13 September 2001, that the delegate had made a recommendation. There was no evidence of the person or entity to whom the recommendation was made, nor was there any evidence as to the ultimate decision. There is also no congruity between the statement of reasons accompanying the letter to Mr Ray's solicitors of 13 September 2001 and the delegate's "original" decision sent to the Tribunal under cover of the letter dated 4 November 2002.
40 Further, I do not consider as the Trustee contended, that s 27A of the Acts Interpretation Act 1954 (Qld) takes the matter any further as it presupposes the existence of an identifiable delegation. Section 27A(3), for example, requires a delegation to be in, or evidenced in writing.
41 As there was no decision of the Board made on 13 September 2001 the basis for the Tribunal's decision, or conduct evidenced in its letter of 14 November 2002, that it could not consider or deal with Mr Ray's complaint, is removed. The Tribunal refused to consider or deal with Mr Ray's complaint because it was lodged with the Tribunal on 28 October 2002, over twelve months after what the Tribunal perceived was the date of the decision of the Board. Once the date, 13 September 2001, falls away, the date relied on by Mr Ray remains, namely 18 September 2002. If 18 September 2002 be the date of the decision by the Board then the Tribunal was bound to consider it and deal with Mr Ray's complaint. That consideration would have to take into account whether s 19(1) of the SRC Act had been complied with. If s 19(1) has been complied with then the relevant time period starts to commerce at the time of the original decision of the Board. Section 14 provides:
"(6C) Without limiting the meaning of a decision of a trustee relating to the payment of a disability benefit in any other provision of this Act, that expression means, for the purposes of subsections (6A) and (6B), the original decision of the trustee in relation to the matter.
(6D) For the purposes of subsection (6C), if, as a result of a complaint about the original decision of the trustee under arrangements made under section 101 of the Supervision Act, the original decision was confirmed or varied, or another decision was substituted for the original decision:
(a) the decision as so confirmed or varied, or the substituted decision, is taken to be the original decision; and
(b) the decision as so confirmed or varied, or the substituted decision, is taken to have been made at the time when the original decision was made
42 Whether s 19(1) was complied with is a matter for the Tribunal, but it must give Mr Ray the opportunity to satisfy the Tribunal that he has complied with s 19(1). Section 19(1) contemplates that a person lodging a complaint with the Tribunal will have that opportunity.
43 As I have reached the conclusion that there was no decision made by the Board on 11 or 13 September 2001, it follows that the Tribunal has not undertaken its statutory obligation of considering and dealing with Mr Ray's complaint. Included within that obligation is a requirement to give Mr Ray the opportunity to satisfy the Tribunal of the matters referred to in s 19(1) of the SRC Act.
44 It is not necessary therefore to resolve the issue whether the Tribunal made a valid or effective decision that it could not deal with Mr Ray's complaint. Mr Ray submitted that the Tribunal as constituted under the SRC Act had not made the decision that it had no jurisdiction to deal with his complaint. That submission is effectively answered by the finding that the Tribunal must undertake its statutory obligation.
45 The matter, that is Mr Ray's complaint, must go back to the Tribunal so that the Tribunal can consider it and deal with it according to law and consistently with these reasons.
46 I do not consider that the manner in which the complaint was refused by the Tribunal, that is on the basis that the complaint was out of time, constitutes a summary dismissal of Mr Ray's claim. The refusal to consider and deal with Mr Ray's complaint was a decision that was not open to the Tribunal. It constituted a failure to exercise jurisdiction.
47 It is not necessary to consider the remaining submissions made by the parties which preceded on the basis that a decision had in fact been made by the Board on either 11 or 13 September 2001.
48 Mr Ray sought relief under the provisions of the ADJR Act, the Judiciary Act and the SRC Act. The relief sought under s 46 of the SRC Act is dependent upon a finding that there has been a "determination" of the Tribunal. The Tribunal acknowledged that it had made a decision that it had no jurisdiction to consider or deal with Mr Ray's complaint but it rejected the proposition that there had been a "determination". The term "determination" is not defined in the SRC Act. It has been the subject of judicial interpretation in a number of cases, albeit in different contexts. Frequently the context equates the definition of "determination" with a " decision". Some of the definitions of "determination" in the Macquarie Dictionary are "the act of coming to a decision", "the fixing or settling of a purpose", "the settlement of a dispute, etc. by authoritative decision" and "the decision arrived at or pronounced"; and in the Oxford English Dictionary (2nd edition), "the ending of a controversy or suit by a decision of a judge or arbitrator; judicial or authoritative decision or settlement (of a matter at issue)"; "the decision arrived at or promulgated" and "the settlement of a question by reasoning or argumentation; discussion".
49 When the context in which s 46(1) of the SRC Act, is considered, it is apparent that what is contemplated by the term "determination of the Tribunal" is the ultimate or final disposition of the substance of a complaint or matter which has been brought before it. I do not consider that it encompasses a preliminary or threshold decision that the Tribunal does not have jurisdiction to consider or determine a complaint before it.
50 The SRC Act contains procedures for the conciliation of complaints made to it. If a complaint cannot be settled by conciliation, the Tribunal must hold a review meeting in accordance with the provisions of Pt 6 of the SRC Act. Section 37 provides:
"(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) …
(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 so 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."
In this section a reference to "determination" is clearly a reference to a final substantive decision or resolution concluding the complaint. There are provisions similar to those in s 37 found in ss 37A, 37B, 37C, 37D, 37E, 37F and 37G which set out the procedure to be followed by the Tribunal in relation to particular complaints under various sections of the SRC Act. It is apparent from each of them that the reference to "determination" is a reference the final substantive decision on the complaint brought before the Tribunal: see also ss 41, 43, 44: cf Svecova v Industrial Commission of New South Wales (1991) 24 ALD 732.
51 It follows that Mr Ray cannot resort to s 46 of the SRC Act as there has been no "determination" of the Tribunal. However the Tribunal accepted that the Court had power to grant appropriate relief against it pursuant to s 39B(1A)(c) of the Judiciary Act as Mr Ray's application for review had raised matters arising under a law of the Commonwealth, namely the SRC Act.
52 The Tribunal contended that an order in the nature of mandamus would only be useful if the Court accepted Mr Ray's submission that the time limits did not prevent the Tribunal from considering the complaint. This would involve a finding that the Board had made the decision which had been the subject of a complaint to the Tribunal within twelve months of the Board's decision.
53 The Tribunal submitted that if the Court were to accept Mr Ray's submissions that there was no decision on 11 or 13 September 2001 or relevant delegation to make the 11 or 13 September 2001 decision, and that the original decision was therefore the decision made on 18 September 2002, then there would be no compliance with s 19 of the SRC Act and the Tribunal would be precluded from dealing with the matter. Both the Tribunal and the Board submitted that any remitter to the Tribunal in such circumstances would be futile and that any relief should be framed so as to ensure that it does not require the Tribunal to do something that it cannot do under the SRC Act.
54 I do not consider that it is futile for the matter to be remitted to the Tribunal for further consideration according to law and consistently with these reasons. The position may well be that the Tribunal cannot deal with the complaint made by Mr Ray because he is unable to satisfy the Tribunal in the terms of subss (a) and (b) of s 19(1) of the SRC Act. However, the issue of the lodging of a further s 101 Complaint/Review was raised by Mr Ray's solicitors in the correspondence to which I have earlier referred and the Tribunal had not responded to that matter. Having regard to the correspondence which has passed between Mr Ray's solicitors and the Trustee and the Tribunal, it may well be open to Mr Ray to satisfy the Tribunal that it can deal with his complaint in accordance with s 19(1) of the SRC Act. That is not a matter for me to resolve at this stage, but s 19(1) requires that the Tribunal give him that opportunity.
55 I will give the parties the opportunity to speak to the form of orders to be made.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.