Vision Super Pty Ltd v Poulter

BACKGROUND 1 This judgment concerns three appeals, raising similar legal issues, brought pursuant to s 46(1) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) ('the ROC Act') from determinations ('the Determinations') made by the Superannuation Complaints Tribunal ('the Tribunal'). 2 Section 46(1) of the ROC Act empowers a party to appeal to this Court, on a question of law, from a determination of the Tribunal. The appeal for which s 46(1) provides is a proceeding that comes before the Court for hearing and determination in the exercise of its original, rather than its appellate, jurisdiction: see Employers First v Tolhurst Capital Ltd (2005) 143 FCR 356 ('Employers First') at 357-358 [1] per Branson J. The subject matter of an appeal brought pursuant to s 46(1) is the question or questions of law on which the appeal is brought: Employers First at 357-358 [1]; and see generally TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation(1988) 19 ATR 1067 at 1070 per Gummow J. 3 The applicant is the corporate trustee of the Local Authorities Superannuation Fund ('the Fund'). The Fund is a 'regulated superannuation fund' within the meaning of s 19 of the Superannuation Industry (Supervision) Act 1993 (Cth) ('the SIS Act'). Each of the respondents is a deferred benefit member of the Fund.

history of the fund 4 The Fund was originally established by statute. Prior to 1 July 1998, the Fund was governed by various Victorian statutes, the last being the Local Authorities Superannuation Act 1988 (Vic) ('the LAS Act'). In 1998, the Victorian Parliament passed the Miscellaneous Acts (Omnibus No 1) Act 1998 (Vic) ('Omnibus Act') which repealed the LAS Act and transferred the assets and liabilities of the Fund to the applicant. 5 As part of this process, the applicant executed a deed of trust on 26 June 1998. Subsequently, the deed was amended numerous times, and the amendments were consolidated in a restated deed of trust made on 30 November 1992 ('the Deed'). 6 Clause A.1.2(n) of the Deed provides: 'intention of deed: the intention of this Deed (in accordance with section 48 of the Omnibus Act) is that all parties, things and circumstances existing or continuing under the [LAS Act] immediately before 1 July 1998 (including benefit accruals and benefit entitlements) shall continue to have the same status, operation and effect under this Deed as they would have had if the [LAS Act] had not been repealed.' There is a similar provision in s 48(3) of the Omnibus Act. 7 Between 1988 and 1998 various sub-schemes were added to the Fund. Two examples will suffice to illustrate the point. Part 7B was introduced into the LAS Act in 1993 establishing a new superannuation scheme called 'LASPLAN'; and in the period between 1994 and 1996 the assets, liabilities and members of the City of Melbourne Superannuation Fund were transferred to the Fund. The Deed contains different divisions that separately address the rights and entitlements of the members of these various sub-schemes. The rights and entitlements of LASPLAN members and of former members of the City of Melbourne Superannuation Fund are governed, respectively, by Divisions B and D of the Deed.

deferred benefits 8 The LAS Act provided for deferred benefits and these provisions are essentially replicated in Division C of the Deed. 9 Section 38 of the LAS Act relevantly provided: '(1) A contributor who resigns may choose to accept instead of a resignation benefit a deferred retirement benefit equal to the sum of - (a) the accrued retirement benefit calculated under section 32; and (b) interest on the amount of that accrued retirement benefit from the date on which that benefit falls due until the date of retirement, death or disability of the contributor at a rate determined by the Board from time to time. (2) The deferred retirement benefit is not payable before the contributor attains the age of 55 years unless - (a) the contributor becomes subject to a disability approved by the Board either generally or specifically for the purposes of this section; or (b) the contributor dies before attaining the age of 55 years.' 10 Clause C.4.10 of the Deed provides: '(a) A Member who resigns before attaining age 55 may instead of the benefit in clause C.4.9 choose to accept a deferred retirement benefit equal to the sum of - (1) the retirement benefit calculated under clause C.4.2; and (2) interest on the amount of that retirement benefit from the date on which that benefit falls due until the date it is paid. (b) The deferred retirement benefit is not payable before the Member attains the age of 55 years unless - (1) the Member becomes subject to a Disability approved by the Trustee; or (2) the Member dies before attaining the age of 55 years; or (3) in any other circumstances determined by the Trustee so long as it is not prohibited by the Relevant Law. (c) If a Member entitled to a deferred benefit dies before attaining the age of 55 years, the legal personal representative of that Member is entitled to receive from the Fund a lump sum benefit equal to the amount of the deferred retirement benefit to which the deceased Member would have been entitled.' 11 Clause C.4.10 must be read in conjunction with cll C.4.2(b) and C.4.9(a). Clause C.4.2(b) sets out the starting point for calculating the benefit on retirement. Essentially, it provides that when a member ceases to be an employee on or after attaining the age of 55 years, he or she is entitled to receive a lump sum retirement benefit from the Fund calculated as follows: 'For the Member's period of Service until 1 July 1993, the retirement benefit of a Member is 21 percent of the Adjusted Final Salary for each year of Service.' 12 On the other hand, cl C.4.9(a) sets out the method for calculating the benefit on resignation. It provides that when a member ceases to be an employee due to resignation (namely, the situation where he or she has not attained the age of 55 years), he or she is entitled to receive a lump sum benefit calculated on the following basis: 'Subject to division G, if a Member ceases to be an Employee due to resignation when no other benefit is payable under this division C, he or she is entitled to a lump sum benefit equal to the Member's Adjusted Final Salary multiplied by the sum of the following amounts - (1) 15% x S; (2) 13.5% x PSF x (M1 - M2); and (3) 9% x M2x PSF, where: S is the Member's period of Service until 1 July 1993; PSF is Post 93 Service Fraction; M1 is Post 93 Membership; and M2 is: (1) if the Member's period of Membership immediately prior to resignation was at least five years, five; or (2) if the Member's period of Membership immediately prior to resignation was less than five years, the period of Membership immediately prior to resignation.' Clause C.4.9(a)(1) is essentially a starting point for calculating a member's benefit on resignation which provides that, for the period of service until 1 July 1993, the resignation benefit is 15 per cent of the Adjusted Final Salary of the member for that period of service. 13 These provisions create an incentive for members to elect to leave their money in the Fund, until they reach the age of 55 years or a greater age. By doing so, they can obtain a retirement benefit which at the point of election will be substantially greater than the resignation benefit.

the respondents' circumstances 14 Kenneth Poulter was employed in local government in Victoria from 1973 to 1997. He was a contributory member of the Fund throughout his employment. Upon his resignation, which was effective from 10 October 1997, Mr Poulter had the option of either exiting the Fund and being paid a resignation benefit or remaining in the Fund and deferring payment of his benefit until retirement age. After receiving a letter and documentation from the trustee explaining his options, Mr Poulter made an election on 23 October 1997 to remain in the Fund and to accept a deferred retirement benefit. The documentation sent to Mr Poulter included a 'Guide to your Resignation Benefit' ('the Guide') which stated: 'If you elect to defer your benefit, it will be credited to an interest-bearing account and will continue to grow with interest.' 15 During the course of the hearing, the applicant submitted (without objection from the respondents) a calculation sheet which shows that Mr Poulter's resignation benefit at the date of election was $141,225, whereas his deferred retirement benefit at the point of election amounted to $210,864. 16 In respect of the period from 1 July 2001 to 30 June 2002, Mr Poulter received a member's statement which advised that his 'vested benefit' had been reduced by a net investment return of -$7,342.15. For the period 1 July 2002 to 31 March 2003, Mr Poulter received a member's statement advising that his deferred benefit had been reduced by a net investment return of -$8,925.72. 17 Mr Poulter lodged a complaint with the Fund on the ground that, under the terms of the Deed, the applicant could only credit interest to his deferred benefit account and could not debit interest from the account. When the applicant rejected the complaint, Mr Poulter lodged a complaint with the Tribunal. 18 Jennifer Meade was employed in local government in Victoria from 1985 to 2000. She was a contributory member of the Fund throughout her employment. Shortly after her resignation, which was effective from 5 May 2000, Ms Meade elected to remain in the Fund and to accept a deferred retirement benefit. The date of this election appears to have been 27 May 2000. Before Ms Meade made this decision, she received a copy of the Guide. 19 She also received a resignation benefit statement from the applicant dated 11 May 2000. It stated that her resignation benefit as at 5 May 2000 would be $67,983.59, whereas if she elected to take a deferred retirement benefit that benefit would be $107,614.08. 20 For the period 1 July 2001 to 30 June 2002, Ms Meade received a deferred benefit member statement advising that the balance of her entitlement had been reduced by a net investment return of -$2,928.21. For the period 1 July 2002 to 31 March 2003, Ms Meade's deferred benefit account was reduced by a further net investment return of -$6,913.27. 21 Ms Meade lodged a complaint with the applicant. One of the grounds of her complaint was that she made her decision to accept a deferred retirement benefit because the Guide stated that the benefit would be credited to an interest-bearing account and would continue to grow with interest. The applicant rejected her complaint and Ms Meade lodged a complaint with the Tribunal. 22 John Mathews was employed by local government in Victoria from 6 January 1964 until 1993 when he commenced work for a local government authority in Queensland. Mr Mathews was a contributory member of the scheme throughout his employment by local government in Victoria. When he resigned from this employment in 1993, he had the option of exiting the scheme and being paid a resignation benefit, or remaining in the scheme and electing to take a deferred retirement benefit. On 5 August 1993, Mr Mathews elected to remain in the scheme and to accept a deferred retirement benefit. 23 The applicant's calculation sheet shows that Mr Matthew's resignation benefit at the point of his election was $306,703, whereas his deferred retirement benefit at that point was $461,669. 24 For the period from 1 July 2001 to 30 June 2002, Mr Mathews received a statement from the applicant advising that his entitlement had been reduced by 'interest' of ­$24,796.96. Mr Mathews retired from his employment in Queensland on 11 August 2002 and ceased to be a deferred benefit member of the Fund on 15 August 2002. For the period from 1 July 2002 to 15 August 2002, the applicant advised Mr Mathews by letter dated 11 December 2002 that his deferred retirement account balance as at 30 June 2002 had been reduced by negative earnings of -$2,183.76 for the period from 1 July to 15 August 2002. Mr Mathews was paid the reduced benefit on or about 15 August 2002. 25 Mr Mathews lodged a complaint with the applicant contending that under the terms of the Trust Deed the trustee could only credit interest to his deferred benefit account and could not debit interest. The applicant rejected this complaint and Mr Mathews lodged a complaint with the Tribunal. 26 The Fund experienced a negative return on its investments in the 2001-2002 financial year and, it seems, in the next nine months to 31 March 2003. This is said to account for the negative adjustments to the respondents' benefits.

THE APPLICANT'S POWERS under the deed 27 The Deed is divided into a number of divisions. Division A contains general provisions which apply to every part of the Deed. They include definitional provisions and provisions setting out the relevant powers and discretions of the trustee. The other divisions are directed to different categories of members and, in effect, different sub-schemes that exist within the general framework of the Fund. The rights and entitlements of the respondents as deferred benefit members of the Fund are governed by Division C. 28 So far as presently relevant, the applicant's general powers are set out in cll A.4.1 and A.4.2 of the Deed: 'A.4.1 Absolute discretions. Except to the extent otherwise expressly provided in this Deed, the Trustee has in the exercise or non-exercise or partial exercise of each Power exercisable by the Trustee an absolute and uncontrolled discretion and is not bound to give any person a reason for or explanation of the exercise, non-exercise or partial exercise of that Power. The Powers conferred on the Trustee by this Deed are additional to and not in substitution for the Powers exercisable by the Trustee at law. A.4.2 Powers of Trustee. Except to the extent expressly provided otherwise elsewhere in this Deed, the Trustee has complete management and control of all proceedings, matters and things in connection with the Fund and may do all acts and things which the Trustee may consider necessary, desirable or expedient for the proper administration, maintenance and preservation of the Fund and in the exercise of the Powers and the performance of the duties of the Trustee, including without limitation the following specific powers, namely - … (b) legal proceedings: to institute, conduct, defend, compound, settle or abandon legal proceedings by or against the Fund or otherwise concerning the Fund or this Deed and also to compound and allow time for payment or satisfaction of a debt due to the Fund and of a claim or demand by or against the Fund; … (i) administrative flexibility: to make rules and adopt procedures in relation to the calculation and rounding-off of contributions, benefits and interest, to the determination of periods of time and to any other matters which the Trustee may consider appropriate for the convenient administration of the Fund'. 29 Additionally, in relation to the payment of benefits, cl A.22.2(b) provides that: 'The Trustee will determine the relevant rate of interest for the purposes of the whole or any particular provision of this Deed for all or part of the period between the date the benefit becomes payable out of the Fund until the date it is paid.'

THE TRIBUNAL'S ROLE 30 Each respondent lodged a complaint ('the Complaints') with the Tribunal pursuant to s 14(2) of the ROC Act, which allows a member of a regulated superannuation fund to complain to the Tribunal that a decision made by the trustee of that fund is unfair or unreasonable. The role of the Tribunal in each case was to decide whether the applicant's decision to reduce the deferred benefit accounts was fair and reasonable in the circumstances: see Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139 at 149-150 [45]-[51] per RD Nicholson J; and Haematite Pty Ltd v Ristevski (2002) 189 ALR 685 at 690-692 [14]-[20] per Goldberg J. 'Unreasonable' and 'unfair' are words of broad content, and should not be unduly restricted by using synonyms and definitions: see National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562 ('National Mutual Life Association') at 571 [36] per Black CJ, Emmett and Hely JJ. 31 The Tribunal conducts a form of administrative review. The intention of ss 37 and 41 of the ROC Act is to place the Tribunal in the shoes of the trustee when making a determination in respect of a complaint: see Briffa v Hay (1997) 75 FCR 428 at 442 per Merkel J; Collins v AMP Superannuation Ltd (1997) 75 FCR 565 ('AMP Superannuation') at 574 per Merkel J; and Lykogiannis v Retail Employees Superannuation Pty Ltd (2000) 97 FCR 361 ('Retail Employees Superannuation') at 372 [47]-[48] per Mansfield J. The focus of s 37(6) of the ROC Act is upon the consequences of the decision in its practical operation, rather than upon the process by which the decision under review came to be made: see Retail Employees Superannuation at 372 [48]. 32 Section 37(1) of the ROC Act gives the Tribunal, for the purpose of reviewing a decision of the trustee of a fund, all the powers, obligations and discretions that are conferred on the trustee. Under s 37(3), the Tribunal has the power to affirm, remit, vary or set aside the decision under review. However, its power to do so is not at large. First, pursuant to s 37(4), the Tribunal's power under s 37(3) may only be exercised for the purpose of placing the member as nearly as practicable in such a position that the unfairness or unreasonableness caused by the decision of the trustee of the fund no longer exists: see National Mutual Life Association at 566 [16]. Secondly, by virtue of s 37(5), the Tribunal must not do anything under s 37(3) that would be contrary to law or to the governing rules of the fund concerned. Thirdly, in accordance with s 37(6), the Tribunal must affirm the decision if it is satisfied that the decision, in its operation in relation the member bringing the complaint, was fair and reasonable in the circumstances.

the tribunal's determinations 33 The Tribunal made Determinations pursuant to s 37(3) of the ROC Act in relation to the Complaints that: (a) the Complaints related only to whether the applicant treated the respondents fairly and reasonably and were therefore within the Tribunal's jurisdiction; (b) the decision of the applicant was unfair and unreasonable in its operation in relation to the respondents in the circumstances; and (c) the decision under review would be set aside and the Tribunal would substitute its own decision for that of the applicant, namely that the applicant repay to the respondents' deferred benefit accounts all amounts of 'negative interest' deducted and interest calculated at the trustee's reasonable determination of the rate obtainable from investment in cash and bank bills from the date the deduction was made to the date of repayment. 34 In making the Determinations, the Tribunal considered that a construction beneficial to the respondents was appropriate and a purposive and practical construction should be given to the Deed, having regard to the whole of its provisions: see Lock v Westpac Banking Corporation (1991) 25 NSWLR 593 ('Lock') at 602 per Waddell CJ in Eq; and Mettoy Pension Trustees Ltd v Evans [1991] 2 All ER 513 ('Mettoy') at 537 per Warner J. 35 The Tribunal found that there was no judicial authority that addresses the meaning of the word 'interest' in the context of the Deed, but relied on its dictionary meaning to determine that: '… a Trustee acting fairly and reasonably would have concluded that in Clause C.4.10(2), "interest" does not include negative interest. For the [applicant] to conclude otherwise would, in the Tribunal's view, be contrary to all relevant principles of interpretation. In doing so, the [applicant] acted unfairly and unreasonably. This view appears to be strengthened by the fact that the "deferred retirement benefit" is a defined benefit; it does not have the character of an accumulation fund benefit. The rate of interest is to be determined by the [applicant] from time to time (Clause.A.22.2(b)) for all or part of the period between the date the deferred benefit becomes payable until it is paid. This does not require the trustee to fix the interest rates annually, although it has chosen to do so. It may have been open to the [applicant] to fix the rate averaged over a greater period or in some other way, but having made its allocation for the relevant period, the Tribunal does not consider that the [applicant] is entitled to alter those allocations retrospectively (except by refunding reductions made incorrectly).'

THE APPEALS 36 In each appeal, the applicant appeals to this Court pursuant to s 46(1) of the ROC Act against the whole of the Determinations. On 31 August 2005, Crennan J ordered that the Determinations be stayed pending the outcome of the three appeals to this Court, and that the three appeals be heard and determined together. 37 As argued before me, the appeals raise three issues for determination: (a) did the Tribunal have jurisdiction to deal with the Complaints? (b) did the Tribunal err in its construction of cl C.4.10, including in particular the meaning it ascribed to the word 'interest'? (c) were the Determinations contrary to law and/or to the Deed? If issues (b) or (c) were wrongly determined by the Tribunal, the applicant submits that this would remove any foundation for the Tribunal's conclusion that the applicant's decisions or conduct was unfair and unreasonable.

JURISDICTION 38 Section 14 of the ROC Act relevantly provides: '(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 is or was unfair or unreasonable. … (6) The Tribunal cannot deal with a complaint under this section that relates to the management of a fund as a whole.' 39 Section 14(1) is directed to the nature of the trustee's decision, whereas s 14(6) is concerned with the nature of the complaint: see Employers First at 372-373 [74]. For the Tribunal to have jurisdiction, the decision complained of before the Tribunal must be one made 'in relation to a particular member' and the complaint must not 'relate to the management of a fund as a whole'. The Tribunal determined that it had jurisdiction on the basis that 'the Complaints relate to whether the [applicant] has acted appropriately in relation to these [respondents'] accounts, not to members' accounts generally'. The applicant contends that, by mistakenly asserting the existence of its jurisdiction, the Tribunal erred in law: Craig v South Australia (1995) 184 CLR 163 at 177. 40 The applicant submitted that the Complaints did not relate specifically to the respondents because the respondents were not treated differently from any other deferred benefit member. It said that in the period up to 1 April 2003, all amounts standing to the credit of deferred benefit members (and LASPLAN members as well) were invested by the applicant in a balanced investment portfolio. It also said that it set crediting rates in respect of the accounts of the deferred benefit members in that period so as to reflect the actual returns on amounts so invested. As a result, the crediting rate in respect of deferred benefit members was set at -2.58 per cent for the period from 1 July 2001 to 30 June 2002 and at -3.21 per cent for the nine months ended 31 March 2003. According to the applicant's submissions, this was the time in the Fund's history that negative crediting rates were set in respect of relevant member accounts. 41 Against this background, the applicant submitted that the relevant decision was the decision to set a negative crediting rate for deferred benefit members. As such, it was not a decision 'in relation to a particular member' within the meaning of s 14(1) of the ROC Act; and this remained so despite the fact that the implementation of the decision affected the particular entitlements of the respondents and other deferred benefit members. 42 In support of these arguments, the applicant drew an analogy with the legal rules relating to standing - viz., a plaintiff seeking declaratory or injunctive relief to prevent the violation of a public right must have a special interest in the subject matter of the action over and above that enjoyed by the public generally: see Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; and Onus v Alcoa of Australia Ltd (1981) 149 CLR 27. 43 The applicant also submitted that the Complaints were excluded from the Tribunal's jurisdiction by s 14(6), as they were not relevantly distinguishable from a complaint concerning the investment policy being adopted by the trustee of a fund. It relied on the statement by Branson J in Employers First at 372-373 [74] that '[a] clear example of a complaint that relates to the management of a fund as a whole would be a complaint concerning the investment policy being adopted by the trustee of the fund'. 44 For the reasons set out below, I am satisfied that the Tribunal had jurisdiction to make the Determinations. 45 Most, if not all, of the applicant's arguments on jurisdiction depend on the actions it took, adversely to the respondents, being characterised as a single decision in respect of all members of Division C of the Fund to set an interest rate applicable to members' account balances. The applicant denies that any implementation decisions were taken in relation to each member's account balance; rather, it asserts that the interest rate was applied to each member's account balance by a process more accurately described as an administrative or mechanical function. The necessary factual or evidentiary basis for these contentions is entirely absent. 46 In any event, the term 'decision' is defined very widely in s 4 of the ROC Act: it includes making a decision, failing to make a decision, and engaging or not engaging in conduct in relation to making a decision. In my view, the material that was before the Tribunal and that is now before the Court establishes that the applicant made distinct decisions to debit the respondents' accounts with particular sums. These decisions cannot be ignored or disregarded on the basis that the applicant made an earlier broader decision to set a negative crediting rate for all deferred benefit members. 47 In characterising the applicant's actions for the purposes of applying s 14(1) and (6), the provisions of cl C.4.10 of the Deed must be taken into account. Clause C.4.10 does not refer to the trustee setting a crediting rate. It requires the trustee to pay interest on the amount of the retirement benefit which fell due when the member made his election until the date when the benefit is paid. The calculation of interest and the debiting of a particular sum requires a separate decision, as defined, in relation to each member. 48 In my opinion, the terms of s 14(1) are satisfied in each of the three cases before me. Each respondent was seeking to review a decision by the applicant to reduce his or her benefit by an amount that was described in two cases as a negative investment return and, in Mr Mathews' case, as negative interest. 49 Even if, contrary to my view, attention is focused solely on the trustee's determination to set a negative crediting rate for all deferred benefit members (and all LASPLAN members) in the relevant periods, this would not alter my conclusion that s 14(1) is satisfied. If a decision is made to set a negative investment return or negative interest rate for all deferred benefit members for a specified period, and to carry that decision into effect with different financial consequences for each such member, it does not follow that no decision has been made 'in relation' to a particular member. The words 'in relation to' are very broad, and require a sufficient relationship or connection between the decision and the rights, entitlements or position of a particular member. The nature of the relationship or connection that will suffice will depend on the scope and purposes of the ROC Act: see O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 365, 367 and 374; and Western Australia v Ward (2002) 213 CLR 1 at 245-246 [577] per Kirby J. The scope and purpose of s 14 of the ROC Act is, relevantly, to afford members of superannuation funds a right to review decisions of a trustee that affect their particular interests as members, subject to the exclusions otherwise provided for in s 14. In the circumstances of these three cases and in the context of the ROC Act, it is enough to satisfy s 14(1) that the applicant's decision involved, or resulted in, the making of particular debits to the respondents' deferred benefit accounts. 50 The applicant's analogy with the rules relating to standing draws a very long bow. The applicant virtually conceded as much when it said that it can only be taken so far because s 14 does not focus on the interests of the members but on the nature of the trustee's decision and the nature of the complaint. In any event, I consider that each of the respondents suffered special damage in the form of a deduction of negative interest; they would not be denied standing in a Court because other class members suffered damage of the same kind but in different amounts. 51 The next question is that posed by s 14(6): do the Complaints relate to the management of the Fund as a whole? I reject the applicant's submission that the Complaints are not relevantly distinguishable from a complaint concerning the investment policy being adopted by the trustee of a superannuation fund. Each Complaint relates to debits made to the complainant's own deferred benefit account. None of the Complaints mentions the management of the Fund as a whole. 52 Even if it be assumed that the Complaints relate to the treatment of a particular class of members, namely the deferred benefit members of the Fund, they cannot be said to relate to the management of the Fund as a whole. The mere fact that a trustee has acted in a similar way in relation to other members does not have the consequence that the Complaints relate to the management of the fund as a whole. Furthermore, deferred benefit members are not the whole of the members of the Fund, so it does not follow that a decision that adversely affects their particular entitlements necessarily relates to the management of the Fund as a whole. In these cases, the Complaints concern the deduction of negative interest or negative investment returns from the respondents' benefits in alleged contravention of cl C.4.10 of the Deed. The Complaints cannot be likened to a complaint about the investment policy that has been adopted by a trustee. It is not to the point to observe, as the applicant did, that other types of action by a trustee in the management of a division of a fund might be regarded as an act done in the management of the fund as a whole. 53 These conclusions are supported by the analysis in Employers First. In Employers First, the trustee issued member statements to a particular member, Mr Barratt, for the years ended 30 June 1995, 1996 and 1997 in which it calculated his retirement benefit by aggregating the defined benefit calculated under r 4 of the trust deed and the superannuation guarantee contributions that had been paid in respect of his membership of the fund. However, on Mr Barratt's retirement, the trustee notified him that the only lump sum retirement benefit to which he was entitled was that calculated under r 4 of the trust deed. In the course of her reasons, Branson J concluded that the retirement benefits to which Mr Barratt was entitled were only those prescribed by r 4: at 370 [60]-[61]. But, in the result, Branson J remitted the matter to the Tribunal for rehearing and determination on the ground that Mr Barratt had been denied procedural fairness in the course of the review process. 54 Branson J held that the Tribunal's jurisdiction was not excluded by s 14(6). Her Honour said at 372-373 [74]-[76]: 'It appears that there is no judicial authority on the proper interpretation of s 14(6) of the [ROC Act]. It seems clear, however, that the subsection is concerned with the nature of the complaint made under the section, rather than with the nature of the determination reached by the Tribunal on that complaint. A clear example of a complaint that relates to the management of a fund as a whole would be a complaint concerning the investment policy being adopted by the trustee of the fund. In this case Mr Barratt complained about the amount of the lump sum retirement benefit to which the Trustee had decided that he was entitled on his retirement. Mr Barratt founded his complaint upon the Member Statements. The Member Statements were concerned with his particular entitlement under the Plan. I conclude that, on its proper construction, s 14(6) of the [ROC Act] did not prohibit the Tribunal from dealing with Mr Barratt's complaint. It is not necessary for me to hazard a comprehensive definition of a complaint that relates to the management of a fund as a whole within the meaning of s 14(6) of the [ROC Act].' 55 Before me, the applicant submitted that Employers First is distinguishable. Alternatively, it submitted that I should find that Branson J's observations concerning s 14(6) were wrong or need not be followed on the grounds that they were unnecessary to her decision. I reject these submissions. 56 According to the applicant, Employers First can be distinguished on the basis that the gravamen of Mr Barratt's complaint was that he was entitled to receive a lump sum retirement benefit that was consistent with the information previously provided to him in member statements (at 364 [35]); whereas the gravamen of the respondents' Complaints is that the word 'interest' in cl C.4.10 of the Deed bears a particular meaning such that it can only be positive. The applicant also submitted that it is unrealistic to characterise each respondent's Complaint as one relating to the debit applied to his or her individual account. 57 In my opinion, the supposed distinctions are fallacious. Each respondent sought to review the applicant's decision to reduce his or her benefits by an amount that was variously said to be a negative investment return or negative interest. Each such decision related to the particular member and to his or her entitlements. That position is not altered or denied by the fact that the respondents argue that the applicant had no power under cl C.4.10 of the Deed to effect the debits to their accounts, or to apply a negative investment return or negative crediting rate to all deferred benefit members. Like Mr Barratt, the respondents complain about the amount of their benefits, as notified by member statements. More particularly, they complain that the applicant unlawfully reduced the amount of their benefits. 58 The contention that Branson J's observations need not be followed because they were obiter dicta is unsound. Her Honour's conclusions concerning jurisdiction were integral to her decision and to the order she made remitting the matter back to the Tribunal for hearing and determination according to law. 59 Another reason why s 14(6) is inapplicable is that, in my opinion, a Complaint that the Deed has been contravened in a way that directly and adversely affects the financial position of the particular member lodging the Complaint cannot be described as a complaint about 'the management of a fund as a whole'. This is so even if it be assumed that the Complaints should be characterised in the way the applicant contends, ie as relating only to the question whether the debiting of interest contravened cl C.4.10 of the Deed. If the Complaints are upheld and if the applicant has in fact debited interest in contravention of cl C.4.10 of the Deed, that action could hardly be described as one relating to the management of the Fund as a whole. The Complaints are substantive and genuine and the applicant did not suggest otherwise. It follows, in my view, that the nature of the Complaints is such that they fall squarely within the Tribunal's jurisdiction.

Interest 60 The Tribunal concluded that the word 'interest' in cl C.4.10 of the Deed does not, on its proper construction, contemplate 'negative interest'. It was common ground that this construction involves a question of law. 61 The applicant contended that, in the context of a superannuation trust deed and in view of other provisions of the Deed itself, the word 'interest' in cl C.4.10 should be construed as meaning a return on investment that might be either positive or negative. It also contended that, when cll A.4.1, A.4.2(i) and C.4.10(a)(2) are read together, the Deed gives the applicant an absolute and uncontrolled discretion to determine the interest to be set from time to time, including negative amounts. 62 The applicant developed these contentions by arguing that there is an essential difference between the relationship of trustee and beneficiary and that of debtor and creditor: a debtor is free to use the money as he or she wishes, subject to a contractual obligation to repay the principal together with an amount of interest, whereas a trustee is obliged to administer the money as a separate fund on behalf of the beneficiary. It follows, so the applicant said, that it is more useful to conceive of the word 'interest' in cl C.4.10 as referring to 'returns' or 'earnings'. 63 Having taken these steps, the applicant submitted that it was appropriate to have regard to reg 5.01(1) of the Superannuation Industry (Supervision) Regulations 1994(Cth) ('SIS Regulations') which provides that: 'investment earnings, in relation to a member's benefits (or a member's benefits of a particular kind) in a regulated superannuation fund or an approved deposit fund as at any time, means the total of amounts credited, less the total of the amounts debited, to the member's account by way of investment return down to that time in respect of those benefits. … investment return, in relation to a member's benefits (or a member's benefits of a particular kind) in a regulated superannuation fund or an approved deposit fund over a particular period means: … (c) in the case of a defined benefit fund: (i) the proportion of the return to the fund on investments over that period that is attributable to those benefits; or (ii) the return on the benefits over that period that is fair and reasonable to all members of the fund, being a return based either on the actual return earned on the investments of the fund or on a commercially available rate of interest; or (iii) the return on the benefits that is derived by increasing the benefits in proportion with the increase in the salary of the member over that period.' The applicant contended that, when these two definitions are read together, it is implicit in the definition of 'investment earnings' that an 'investment return' can be positive or negative. 64 As for the construction of cl C.4.10 as a whole, the applicant submitted that although the Fund falls within the definition of a 'defined benefit fund' under the SIS Act, the deferred retirement benefit was more like an 'accumulation-style' benefit than a 'capital guaranteed' or 'defined' benefit. The applicant accepted that the deferred retirement benefit in cl C.4.10 differs from any other benefit in Part C4 of the Deed and consists of two components: the retirement benefit calculated under cl C.4.2 and interest. It pointed out that the first component would crystallise into a lump sum on cessation of service, so that thereafter it would cease to grow with respect to salary or years of service. It also pointed out that at the date of ceasing service the member who makes an election to take a deferred retirement benefit has no present entitlement to be paid that benefit until he or she attains the age of 55 years, or in other limited circumstances. Given these circumstances, the applicant submitted that the deferred retirement benefit should be regarded as an accumulation benefit that may increase or reduce with investment returns from time to time. 65 For the reasons that follow, I do not accept the applicant's contentions. I have concluded that cl C.4.10 of the Deed does not, on its proper construction, permit or authorise the applicant to reduce the respondents' deferred retirement benefits on account of negative interest or a negative investment return, as it has purported to do. 66 There are no special rules of construction of documents relating to pension or superannuation schemes but, as a general rule, the Court's approach to the construction of such documents will be practical and purposive, rather than detached and literal: see Mettoy at 537 per Warner J; Lock at 602 per Waddell CJ in Eq; AMP Superannuation at 580 per Merkel J; and Gas and Fuel Corporation (Vic) v Fitzmaurice (1991) 22 ATR 10 at 24 per Hedigan J. 67 This approach is not very different from the modern approach to statutory construction. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Association (1998) 194 CLR 355 at 381 [69]-[70] per McHugh, Gummow, Kirby and Hayne JJ. 68 In Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398, Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ cited with approval the statement of Lord Simon of Glaisdale in Maunsell v Olins [1975] AC 373 who said at 391: 'Statutory language, like all language, is capable of an almost infinite gradation of "register"- ie, it will be used at the semantic level appropriate to the subject matter and to the audience addressed (the man in the street, lawyers, merchants, etc). It is the duty of a court of construction to tune in to such register and so to interpret the statutory language as to give to it the primary meaning which is appropriate in that register (unless it is clear that some other meaning must be given in order to carry out the statutory purpose or to avoid injustice, anomaly, absurdity or contradiction). In other words, statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances.' The notion of a practical and purposive approach to construction, rather than a detached and literal one, is entirely compatible with the view that language should be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances. I propose to approach the construction of the Deed, and the meaning of the word 'interest', with these principles in mind. 69 It is convenient to commence with the language, structure and purposes of cl C.4.10 of the Deed. Under cl C.4.10, a member who resigns his or her employment before attaining 55 years and who elects to accept a deferred retirement benefit (as each of the respondents did) thereupon becomes entitled to a retirement benefit calculated under cl C.4.2 of the Deed. The structure of paragraphs (a) and (b) of cl C.4.10 makes it plain that the deferred retirement benefit falls 'due' when the employee makes his or her election. However, the benefit does not become payable before the member attains the age of 55 years, unless one of the conditions set out in cl C.4.10(b) is met. This may explain why Mr Poulter's member statement for the year ended 30 June 2002 referred to his benefit as a 'vested benefit'. 70 Under cl C.4.10(a)(2), the member is entitled to interest 'on the amount of that retirement benefit from the date on which that benefit falls due until the date it is paid' (my emphasis). The words 'the amount of that retirement benefit' refer to a fixed and ascertained sum, namely the benefit referred to in subcl (1) that has been calculated under cl C.4.2 as at the date upon which the member made his or her election. 71 There is no definition of 'interest' in the Deed. As a matter of ordinary language 'interest' is 'the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another': see Adams v Paul's Properties Ltd [1965] NZLR 161 at 169 per Woodhouse J; Australian Finance Direct Ltd v Director of Consumer Affairs Victoria [2004] VSC 526 at [82] per Kaye J; Consolidated Fertilizers Ltd v Deputy Commissioner of Taxation (1992) 36 FCR 1 at 6 per Cooper J; and Riches v Westminster Bank Ltd [1947] AC 390 at 400 per Lord Wright. 72 In Commissioner of Taxation v Myer Emporium Ltd (1987) 163 CLR 199 at 218, Mason ACJ, Wilson, Brennan, Deane and Dawson JJ explained the nature of interest: 'But the interest which becomes due is not the produce of the mere contractual right to interest severed from the debt for the money lent. Interest is regarded as flowing from the principal sum (Federal Wharf Co Ltd v Deputy Federal Commissioner of Taxation) and to be compensation to the lender for being kept out of the use and enjoyment of the principal sum: Riches v Westminster Bank Ltd. A covenant to pay interest on a principal sum may, according to the terms of the lending agreement, be independent of or accessory to a covenant to repay the principal sum or the covenants may be integral parts of a single obligation, but it is of the essence of interest that it be referable to a principal sum: per Rand J in Reference as to the Validity of Section 6 of the Farm Security Act, 1944, of the Province of Saskatchewan.' 73 Rand J's classic description of the concept of interest in Reference as to the Validity of Section 6 of the Farm Security Act 1944 of the Province of Saskatchewan [1947] SCR 394 at 411-412 is frequently cited, but it bears repeating: 'Interest is, in general terms, the return or consideration or compensation for the use or retention by one person of a sum of money, belonging to, in a colloquial sense, or owed to, another.' Most recently, this description was referred to, with approval, by Morris J in Director of Consumer Affairs v City Finance Loans (Credit) [2005] VCAT 1989 at [13]; see also Broken Hill Pty Co Ltd v Commissioner of Taxation (1999) 99 ATC 5193 at 5210 [72] and Consolidated Fertilizers Ltd v Deputy Commissioner of Taxation (1992) 36 FCR 1 at 6. 74 The term 'interest' is also used in adjacent provisions of the Deed. Clause C.4.12 provides: 'Subject to division G, if a lump sum benefit to which a Member or other person is entitled is not paid within 14 days from the date the entitlement arose, interest must be added to the benefit at the rate calculated from time to time by the Trustee from the date the entitlement arose until the lump sum benefit is paid.' In context, the word 'entitled' in cl C.4.12 refers to a benefit that is both due and payable. It is used in that sense in cl C.4.10(c). Clause C.4.12 speaks of interest being 'added' to the benefit. The clause applies where a member or other person who is entitled to be paid a benefit does not receive the payment in a timely way. The manifest purpose of cl C.4.12 is to compensate the member or other person for being kept out of a payment that he or she is entitled to receive. 75 Clause C.4.11 provides that a member and his employer authority may enter into an agreement for the payment of additional contributions in respect of the member so as to provide extra benefits to that member. Clause C.4.11(b) and (d) provide: '(b) The Trustee must keep an interest bearing account for each Member with an additional benefits contract, and interest must be added to the account as determined by the Trustee. … (d) When the Member becomes entitled to a benefit under any other clause of this division C, the Member is entitled to the balance of the account (as well as any interest to the date of termination).' The references in these provisions to 'interest bearing account' and to 'interest … added to the account' indicate that the term 'interest' is being used in these provisions in its ordinary sense of compensation for the use or retention of money. 76 Clause A.22.2(b) provides: 'Interest on benefits. The Trustee will determine the relevant rate of interest for the purposes of the whole or any particular provision of this Deed for all or part of the period between the date the benefit becomes payable out of the Fund until the date it is paid.' This provision is not directly applicable because it only concerns interest between the date when the benefit becomes payable and the date of actual payment. Nevertheless, it is instructive. It obliges the trustee to pay interest on a benefit that has become payable for so long as the member remains unpaid. The evident purpose of the provision is to compensate the member for being kept out of his money beyond the date upon which the benefit becomes payable. The clause gives the trustee a discretion in relation to the relevant rate of interest, but it is difficult to conceive that it permits the trustee to determine that interest should be a negative sum. That would hardly be consistent with the language and purpose of the provision. 77 Similar observations can be made concerning the language, structure and purpose of cl C.4.10. The combined effect of subcll (a) and (b) is that a member is entitled to a benefit equal to 'the sum of' the amount of the retirement benefit calculated under cl C.4.2 and 'interest on the amount'. This language suggests that the interest referred to in subcl (2) is intended to be a positive sum. Certainly, there is nothing on the face of cl C.4.10, and nothing in its immediate context in the Deed, to suggest that the first component (ie the retirement benefit calculated under cl C.4.2) can be reduced by interest. On the contrary, the language used in the provision treats the amount of that retirement benefit as a fixed and ascertained sum on which interest is payable. 78 The structure of cl C.4.10 presents a real obstacle for the applicant's construction, as Ms Meade's situation can be used to illustrate. She elected to receive a deferred retirement benefit upon 27 May 2000. By virtue of that election, a deferred retirement benefit of $107,614 became due to her on and from 27 May 2000. According to the applicant's construction of cl C.4.10, her benefit could be reduced by negative interest or negative returns experienced in the 21 months to 31 March 2003. Specifically, the applicant contended that Ms Meade's accrued benefit had reduced to $103,655.62 as at 31 March 2003, ie less than the benefit that fell due to her on 27 May 2000. In my opinion, this analysis shows that the applicant's construction can produce results that are contrary to the express language and structure of cl C.4.10. 79 The applicant argued that the illustration based on Ms Meade's case is hypothetical; she was not entitled to withdraw her benefit at that time and did not do so. It also sought to avoid the problem by submitting that the issue whether the amount of a deferred retirement benefit paid or payable by the applicant can be less than the amount of the retirement benefit is not before the Court. These submissions miss the point. The hypothesis based on Ms Meade's position is a means of testing the appropriateness of the applicant's construction and whether it produces results that would be repugnant to the language and structure of cl C.4.10. In my view, the example demonstrates that the applicant's construction is flawed. 80 Alternatively, the applicant argued that if the situation arose that a member's deferred benefit, at the time it becomes payable, was less than his or her resignation benefit as a result of the debiting of negative investment returns, the applicant would use its powers of augmentation under cl A.4.2(b) to top up the deferred benefit. Clause A.4.2(b) permits the applicant, inter alia, to compound or settle legal proceedings or any other claim or demand against the Fund. It is not entirely clear that this provision would apply, but in any event the applicant's argument implicitly assumes that there is a potentially good claim that the applicant breached the Deed by deducting negative investment returns from the retirement benefit. 81 It is also relevant to consider the purpose of cl C.4.10. I have already pointed out that the deferred retirement benefit which a member can elect to take under cl C.4.10 is substantially greater than the resignation benefit to which the member would otherwise be entitled. This incentive is offset by two considerations. First, the deferred retirement benefit is not payable before the member attains the age of 55 years unless one of the special conditions in cl C.4.10(b) is satisfied. The second consideration is that until the deferred retirement benefit becomes payable, the benefit only accrues interest under cl C.4.10. The implication of subcl (a)(2) is that members who elect to leave their money in the Fund have their capital protected, but they are only entitled to be paid interest at a rate that is at the discretion of the trustee. Members who elect to leave their money in the Fund on these terms forego the risks and rewards associated with other forms of investment. 82 Given the features of the Deed to which I have referred, I do not accept the applicant's argument that, in a superannuation context, the word 'interest' should be read as a reference to investment returns or earnings which may be either positive or negative. It is trite that a trustee and beneficiary do not stand in a debtor and creditor relationship, a trustee does not have personal use of superannuation funds, and a trustee must administer a superannuation fund on behalf of the beneficiaries in accordance with the governing trust deed. None of these considerations require the word 'interest', where it appears in cl C.4.10 (or for that matter in cll C.4.11 or C.4.12), to be given anything other than its ordinary and natural meaning. Nor do they support the contention that, in circumstances like those covered by cl C.4.10, a trustee cannot pay interest as such. 83 The applicant also argued that, independently of the proper construction of cl C.4.10, the general powers conferred on it by cll A.4.1 and A.4.2 authorised it to determine that interest should be a negative sum, and to apply that negative sum in its administration of cl C.4.10. I do not agree. The applicable rate of interest is not prescribed by cl C.4.10. The applicant submitted that power to determine the applicable rate of interest is conferred by cl A.4.2, and in particular by subcl A.4.2(i). Subclause A.4.2(i) empowers the applicant to make rules and adopt procedures in relation to 'the calculation and rounding off of … interest, to the determination of periods of time and to any other matters which the Trustee may consider appropriate for the convenient administration of the Fund'. Under the opening words of cl A.4.2, the applicant has power to do all acts and things which it may consider necessary, desirable or expedient for the proper administration of the Fund. The respondents accepted that under these provisions the applicant has power to determine the applicable rate of interest for the purpose of applying cl C.4.10. But this power has its limits. It must be exercised bona fide for the purposes for which it was conferred. Where the applicant determines a rate of interest, it must be a genuine determination of 'interest' as that term is ordinarily understood. Accordingly, it is one thing to say that cll A.4.1 and A.4.2 confer power on the applicant to determine a rate of interest in the manner just described. It is an altogether different thing to contend that cll A.4.1 and A.4.2 confer power on the applicant to convert the obligation to pay interest under cl C.4.10(a)(2) into a right to debit a negative investment return against the deferred retirement benefit of a member. To take that step would be to subvert the intended operation of cl C.4.10. In my opinion, no such power is conferred by cll A.4.1 and A.4.2. 84 In oral submissions, senior counsel for the applicant conceded that the Deed does not require the applicant to periodically credit interest. While the applicant could have determined the rate of interest at the time at which the deferred benefit became payable, that it is not what it did. The applicant determined a rate of interest payable to the respondents on an annual basis. Having taken that course, the question to be answered is whether the debit of negative interest to the respondents in respect of the 21 month period ended 31 March 2003 contravened cl C.4.10. 85 There is nothing incongruous in giving the term 'interest' its ordinary meaning in cl C.4.10. I am not persuaded that any unintended or unreasonable consequences would follow if cl C.4.10 is construed in such a way that it does not permit or authorise the application of negative interest. It would have been a simple matter for the applicant to administer defined benefit entitlements in accordance with Division C of the Deed. It could, for instance, have established an appropriate reserve account under Part A.29. The advice the applicant gave to the respondents at the time they elected to accept deferred retirement benefits was along those lines, ie the deferred retirement benefits would be credited to an interest bearing account and would grow with interest. 86 The applicant also has power under Part A.30 to establish different investment portfolios for different categories of member. Indeed, the applicant informed the Court (by way of submission rather than evidence) that from 1 April 2003 it had established different investment portfolios and had given members the option of directing that their benefits be invested in one or other portfolio. The portfolios included a 'Cash' portfolio and a 'Just Shares' portfolio. 87 If my conclusion as to the proper construction of cl C.4.10 presents the trustee with any difficulties, it would be because the applicant has previously treated deferred retirement benefits as if they were accumulation style benefits in disregard of the requirements of cl C.4.10 of the Deed. 88 The respondents relied upon provisions found in other divisions of the Deed, aside from Divisions A and C, in support of their arguments. These other references need to be approached with caution, as they are directed to different sub-schemes and different kinds of entitlement. 89 In summary, the other provisions are: · Clause B.3.2(k), which relates to Division B accumulation members and which allows for the debiting of a negative 'Declared Rate' (as defined in cl B.1.2). · Clause D.4.5(c)(3) and (9), which relate to former City of Melbourne Superannuation Fund members. · Clause G.2.2(h) and (o), which relate to personal retirement account holders. · Clause H.4.2(a)(2) and (b)(6), which relate to eligible spouse member's accounts. The provisions are not uniform and it is unnecessary to set them out in detail. None of them apply to the calculation or payment of deferred retirement benefits. None of them have any application to persons who are deferred benefit members within Division C, with the exception that defined benefit members can also be personal retirement account holders. In that event, their rights as such account holders would be governed by Division G. 90 The respondents also submitted that it needs to be borne in mind that cl C.4.10(a) and (b) largely replicate s 38(1) and (2) of the LAS Act. Section 38(1) and (2) were not amended between 1988 and 1998, even though new parts, covering different sub-schemes and different classes of benefit, were added to the LAS Act over that period. Sections 47E and 47I were introduced in 1993 when Part 7B of the LAS Act was enacted to cover the LASPLAN. Under those sections, accumulation style accounts maintained for LAS members can be reduced by negative investment returns. Yet Parliament did not seek to amend s 38 by defining interest as a net earning rate that might be positive or negative. According to the respondents, the reason is that Parliament considered that s 38 provided for a different kind of benefit than the accumulation style benefit provided to members of the LASPLAN by Part 7B. 91 By reference to these other provisions, the respondents submitted that the Deed, and previously the LAS Act, deliberately treated different classes of members differently; in particular, deferred benefit members were entitled to interest on their benefits, whereas members of other sub-schemes governed by other divisions were entitled to an investment return that might be positive or negative. 92 The applicant submitted that no weight should be attached to these other provisions. It said that these other provisions were later additions; none of them existed as provisions of the LAS Act at the time that the deferred benefits were introduced in 1988. And it submitted that there had never been an attempt to redraft either the LAS Act or the Deed to ensure consistency of expression among the disparate parts of those documents. The respondents countered that all of the versions of the Deed had been drawn by Freehills, the solicitors for the applicant, and that some provisions, notably cll B.1.2, D.4.5 and G.1.2, derived from the LAS Act and formed part of the Deed from its execution on 26 June 1998. 93 The respondents' argument invokes the maxim expressio unius est exclusio alterius. Particular reliance was placed upon the statement by DC Pearce and RS Geddes, Statutory Interpretation in Australia, 5th edn, Butterworths, 2001, at para [4.26] that '[i]t is a reasonable assumption that when legislation includes provisions relating to similar matters in different terms, there is a deliberate intention to deal with them differently.' 94 From time to time courts have expressed reservations about this maxim, and it is always applied with caution: see Houssein v Under Secretary, Department of Industrial Relations & Technology (NSW) (1982) 48 CLR 88 at 94 per Stephen, Mason, Aickin, Wilson and Brennan JJ; see also the authorities collected in Pearce and Geddes, Statutory Interpretation in Australia, supra, at paras [4.24]-[4.27]. 95 Bearing these reservations in mind and recognising the need to proceed with caution, I have concluded that the contrast between cl C.4.10 and these other provisions is capable of providing some support, albeit in a very subsidiary way, for the construction of cl C.4.10 that I prefer. The short point is that the drafters of the Deed could have specifically included a provision in cl C.4.10 entitling the applicant to deduct negative interest (as defined) from a member's deferred retirement benefit, but they did not do so. However, given the history of the LAS Act and the Deed and the way in which different divisions have been introduced at different times to accommodate different sub-schemes, I would treat the point very cautiously. 96 The applicant also sought, somewhat inconsistently, to gather some support for its construction of cl C.4.10 from these other provisions. It pointed out that each of cll B.3.2, D.4.5, G.2.2 and H.4.2 provided for a crediting of interest at the declared rate (if positive) and a debiting of interest at the declared rate (if negative). It submitted that these provisions show that the Deed contemplates the concept of negative interest. In my opinion, these provisions do not assist the proper construction of cl C.4.10. They simply show that it is possible to adopt special definitions that alter the ordinary meaning of a word such as 'interest', and to use those definitions for specified purposes. 97 For completeness, I should add that I have gained no assistance from earlier determinations made by the Tribunal. Nor have I gained any assistance from other legislative schemes to which the respondents referred me: see State Superannuation Act 1988 (Vic) s 91; Emergency Services Superannuation Act 1986 (Vic) s 20I(3)(a); and Retirement Savings Accounts Act 1997 (Cth) s 42. These legislative schemes exhibit many different features, and it is not possible to reason from one legislated superannuation scheme to another. 98 Having construed cl C.4.10, it is necessary to return to the Tribunal's Determinations. Under s 37(4) of the ROC Act, the Tribunal may only exercise its powers of review for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness or unreasonableness inflicted upon him or her no longer exists. The Tribunal determined pursuant to s 37(3) of the ROC Act that, as the reference to interest in cl C.4.10(a)(2) does not include negative interest, the applicant had acted unfairly and unreasonably towards the respondents by debiting their deferred retirement benefit accounts. 99 The applicant submitted that this determination paid insufficient regard to the fact that the respondents had enjoyed far higher returns in earlier years than would have been the case if they were only entitled to interest at a rate determined by the applicant. There was no evidence to support the submission, as the respondents correctly pointed out. But, even assuming that the contention is correct, I do not consider that it identifies any error in the determination made by the Tribunal. The fact that the applicant may have credited the respondents in the past with amounts that exceeded the rate of interest which it might otherwise have determined does not mean that the applicant can lawfully debit negative interest to the respondents in respect of the 21 month period ended 31 March 2003, or that it is fair and reasonable for the applicant to do so. 100 The Tribunal also noted in its reasons for decision that its conclusion as to the meaning of interest in cl C.4.10(a)(2) seems consistent with the views expressed in documentation that the applicant forwarded to the respondents at the time they made their elections. The Tribunal went on to state that it considered that, on a fair and reasonable reading, those documents were likely to have led the respondents to believe that deferred benefits would be capital guaranteed. In my opinion, it was open to the Tribunal to consider that the information provided by this documentation, including that provided by the Guide, constituted another factor supporting its conclusion that the applicant had acted unfairly and unreasonably in debiting interest to the respondents' deferred benefits. 101 However, the Tribunal added that it had no need to make any determination relating to whether or not the trustee should compromise claims that the complainants were misled, because of the conclusion it has reached on the interpretation of cl C.4.10(a)(2). It therefore seems that the Tribunal did not find it necessary to make any findings concerning the respondents' contention that they were misled by the information provided to them at the time they elected to take deferred retirement benefits. Accordingly, I do not need to address this question. I should add, however, that I can see no error of fact or law by the Tribunal in the observation it made concerning the nature and content of the documentation supplied to the respondents. 102 In my opinion, the Tribunal correctly concluded that the applicant acted unfairly and unreasonably towards the respondents in debiting negative interest in contravention of the requirements of cl C.4.10.

inconsistency 103 Section 37(5) of the ROC Act provides that: '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.' 104 The applicant contended that, in breach of s 37(5), the Determinations are contrary law in that they contravene reg 5.03(2) of the SIS Regulations. Regulation 5.03(2) provides: 'Subject to the member-protection standard, regulation 5.01B and Division 6.1, the trustee of a regulated superannuation fund or an approved deposit fund must determine the investment return to be credited or debited to a member's benefits (or benefits of a particular kind) in a way that is fair and reasonable as between: (a) all the members of the fund; and (b) the various kinds of benefits of each member of the fund.' 105 Regulation 5.03(2) applies directly, of its own force, to the Fund. It also applies by virtue of cl A.2.3 which provides: 'Any provision or requirement of a Relevant Law that is expressly required by a Relevant Law to be included in this Deed in order to comply with or satisfy a Relevant Law is deemed to be included as from the date when it must be included for that purpose (or any earlier date agreed between the Trustee and the Employer) but such a provision ceases to be so included when that express requirement ceases to apply.' 106 Regulation 5.03(2) governs the determination of an investment return by a trustee. It has no application unless, contrary to my conclusions, the word 'interest' in cl C.4.10 is read as meaning 'investment return.' In my opinion, the obligation to pay interest under cl C.4.10 does not constitute or involve the determination of an investment return of the kind referred to in reg 5.03(2). Consequently, I consider that there is no substance in the contention that the Tribunal's Determinations are contrary to law because they contravene reg 5.03(2). 107 The applicant also contended that if the reference to 'interest' in the Deed must necessarily be a positive amount, then the Determinations are contrary to the rules governing the Fund, and therefore contrary to s 37(5), because there is no other provision in the Deed which would allow the applicant to repay all amounts of 'negative interest' so deducted. 108 In my view, the debiting of negative interest to the respondents' benefits was contrary to cl C.4.10. That being so, the applicant has all the necessary powers to remedy its contravention of cl C.4.10. Clause A.4.2 empowers the trustee to do all acts and things which it considers necessary, desirable or expedient for the proper administration, maintenance and preservation of the Fund. This extends to the performance of all acts and things which are necessary to ensure that the applicant performs the obligations cast upon it by cl C.4.10. Consequently, in my view, the Determinations are not in any sense contrary to the rules governing the Fund. On the contrary, the Determinations require the applicant to comply with the rules governing the Fund.

orders 109 For the reasons set out above, I have rejected each of the grounds upon which the applicant alleged that the Determinations were erroneous in point of law. 110 Section 37(3) of the ROC Act gives the Tribunal the power to make a determination setting aside the applicant's decision and substituting a decision for the one that has been set aside. The Tribunal exercised this power by setting aside the applicant's decisions in each case and substituting its own decision requiring the applicant to repay to the respondents' deferred benefit accounts all amounts of 'negative interest' deducted and interest calculated at the trustee's reasonable determination of the rate obtainable from investment in cash and bank bills from the date the deduction was made to the date of repayment. Having regard to the findings I have made, I see no reason to disturb the Tribunal's decision. 111 In each appeal, there will be orders that the appeal be dismissed and that the applicant pay the respondents' costs. I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young.

Vision Super Pty Ltd v Kenneth Charles Poulter (VID 778 of 2005) Counsel for the Applicant: J Batrouney SC with A Pound

Solicitor for the Respondent: Maurice Blackburn Cashman

Date of Hearing: 10 and 11 April 2006

Vision Super Pty Ltd v Jennifer Meade (VID 779 of 2005) Counsel for the Applicant: J Batrouney SC with A Pound

Solicitors for the Respondent: Maurice Blackburn Cashman

Date of Hearing: 10 and 11 April 2006

Vision Super Pty Ltd v John W. Mathews (VID 780 of 2005) Counsel for the Applicant: J Batrouney SC with A Pound

Solicitors for the Respondent: Maurice Blackburn Cashman

Date of Hearing: 10 and 11 April 2006