Lykogiannis v Retail Employees Superannuation Pty Ltd [2000] FCA 450

FEDERAL COURT OF AUSTRALIA

Lykogiannis v Retail Employees Superannuation Pty Ltd [2000] FCA 450

JOHN LYKOGIANNIS v RETAIL EMPLOYEES SUPERANNUATION

PTY LIMITED V 568 of 1999

MANSFIELD J ADELAIDE 29 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 568 OF 1999

BETWEEN: JOHN LYKOGIANNIS

Applicant

AND: RETAIL EMPLOYEES SUPERANNUATION

PTY LIMITED

Respondent

JUDGE: MANSFIELD J

DATE: 29 MARCH 2000

PLACE: ADELAIDE

REASONS FOR DECISION 1 In this matter, on 23 March 2000 I delivered reasons for judgment. I ordered that the appeal be allowed, and that the matter be remitted to the Superannuation Complaints Tribunal ("the Tribunal") for hearing and determination in accordance with the reasons for judgment then given. I adjourned for further submissions the question of whether the Tribunal to hear and determine the application should be differently constituted in the light of those reasons for judgment. Counsel for the appellant has sought an order that the Tribunal be differently constituted. 2 Essentially the reason for that application is because, it is submitted, the appellant has some concerns about the fairness of the procedures adopted by the Tribunal as then constituted in the initial hearing. Those concerns, as identified in submissions previously put, were firstly, that the Tribunal had not given to the appellant the opportunity to comment upon certain submissions put by the respondent and secondly, that the Tribunal had had regard to "industry practice", in determining that the application before it should be refused. 3 I do not think that those concerns are of great moment to the present question. The circumstances in which the Tribunal decided the matter involved a considerable delay whilst there was a challenge to the validity of the establishment of the Tribunal and the performance of its functions under the Superannuation (Resolution of Complaints) Act 1993 (Cth). That question was only resolved by the decision of the High Court in Attorney-General v Breckler (1999) 73 ALJR 981. The use of "industry practice" was to determine when the appellant was at work in active employment, a matter which my decision of 23 March 2000 held to have been wrongly determined by the Tribunal. I do not think it is likely to feature further in the proper consideration by the Tribunal of the applicant's claim for review. 4 Accordingly, those two aspects do not weigh heavily in the balance in relation to the order which I am asked to make. However, I am aware that in the case of other tribunals, such as those relating to the Immigration Review Tribunal and the Refugee Review Tribunal, it is the practice of the presiding member of those tribunals, where a matter is remitted to the tribunal for further hearing or for hearing and determination afresh, to constitute the tribunal differently from that by which it was constituted at the time of the initial hearing. I think that is, generally speaking, a sound practice. 5 Accordingly, although I do not propose to make any direction in the circumstances that it is necessary that the Tribunal be differently constituted for the purposes of hearing and determination of the applicant's application to review to the Tribunal in accordance with the decision of 23 March 2000, I invite the presiding member of the Tribunal to endeavour to constitute the Tribunal for the purposes of that hearing and determination differently from the constitution of the Tribunal at the time of the first hearing. 6 The appellant also seeks an order for costs. I have considered the submissions which have been made on behalf of the respondent in opposition to that application. Despite those submissions, in my judgment this is an appropriate matter in which the costs of the appeal should be the costs of the appellant. The respondent resisted the appeal, and, as Mr Heinrich of counsel for the respondent frankly acknowledged, it sought to uphold the decision of the Tribunal upon the basis on which I have found it was in error. Accordingly, I order that the respondent pay to the appellant the costs of the appeal to be taxed.