FEDERAL COURT OF AUSTRALIA Evans v Superannuation Complaints Tribunal [2002] FCA 79 PRACTICE AND PROCEDURE – joinder of parties – where Superannuation Complaints Tribunal is only named respondent – whether interests of original decision-maker directly affected – whether a necessary party – whether need for real contradictor. Federal Court Rules O 6 r 8 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 referred to Merit Protection Commissioner v Nonnenmacher (1999) 86 FCR 112 referred to News Ltd v Australian Rugby Football League Ltd (1996) 139 ALR 193 referred to Strickland and Nudding on behalf of the Maduwongga People v Native Title Registrar [1999] FCA 1089 referred to Commonwealth v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182 referred to Geographical Indications Committee v The Honourable Justice O'Connor [2000] FCA 1877 referred to ROGER KEITH EVANS v SUPERANNUATION COMPLAINTS TRIBUNAL A71 of 2001 FINN J CANBERRA 8 FEBRUARY 2002 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A71 OF 2001 BETWEEN: ROGER KEITH EVANS APPLICANT AND: SUPERANNUATION COMPLAINTS TRIBUNAL RESPONDENT JUDGE: FINN J DATE OF ORDER: 8 FEBRUARY 2002 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. Pursuant to O 6 r 8 of the Federal Court Rules, the CSS Board be added as the second Respondent to the proceeding. 2. The Applicant pay the CSS Board's costs of this motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A71 OF 2001 BETWEEN: ROGER KEITH EVANS APPLICANT AND: SUPERANNUATION COMPLAINTS TRIBUNAL RESPONDENT JUDGE: FINN J DATE: 8 FEBRUARY 2002 PLACE: CANBERRA REASONS FOR JUDGMENT 1 The present application by the CSS Board (a body created under the Superannuation Act 1976 (Cth)) is to be joined as a party under O 6 r 8 of the Federal Court Rules in a proceeding brought by Roger Keith Evans against the Superannuation Complaints Tribunal. In that proceeding Mr Evans seeks an extension of time in which to make application under the Administrative Decisions (Judicial Review) Act 1977 (Cth). That proposed application, which also embodies a claim for a writ of mandamus, seeks, in effect, mandatory orders that the Tribunal hear and determine an application Mr Evans had made to it in respect of what purported to be a late election to preserve benefits in a superannuation fund pursuant to s 157 of the Superannuation Act 1976. The Tribunal declined to entertain that application on the grounds that it lacked jurisdiction so to do. The Tribunal characterised the relevant decision as one having been made on 9 May 1990, at a time at which the Commonwealth Superannuation Scheme was not a fund in respect of which it had jurisdiction, even though it was reconsidered and affirmed in June 1991. The 1990 decision was also one in which a late election application was made under s 157. Mr Evans asserted that the relevant decision was the one made 25 May 2000 when the CSS Board determined it was functus officio in the matter in respect of which Mr Evans had applied to it, because of the earlier determination of May 1990. The Tribunal agreed with the CSS Board's view in respect of that later decision. 2 The Tribunal has entered an appearance in this matter, and consistent with the course enjoined by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35-36, submits to such order as the court may make. In consequence there is not at the moment a party willing to take an opposite view to that of Mr Evans in the proceeding: cf Merit Protection Commissioner v Nonnenmacher (1999) 86 FCR 112 at 116. That lack would not of itself justify the joinder of the CSS Board. But the reason for that lack in this instance assists in pointing up that the real difficulty with Mr Evans' application is the non-joinder of the CSS Board. It is a necessary party. 3 The transparent reasons for Mr Evans' failure to join, and his continuing opposition to joinder of, the CSS Board is a reluctance to expose himself to an adverse costs order in favour of the Board in the event that the present proceeding is unsuccessful. His counsel at the hearing of the Board's application made plain that the application would not have been opposed if the Board had given an undertaking not to seek costs in the event that it was joined and his proceeding was dismissed. The Board I might note in passing will give no such undertaking. 4 In attempting to provide a principled justification for the stance so taken, it is asserted on Mr Evans' behalf that the CSS Board was not so directly affected in its rights against, or obligations to, Mr Evans as to necessitate its joinder, any effect on it of the Tribunal being ordered to hear and determine the applicant's appeal to it being only indirect or consequential. This submission is founded on the views expressed by the Full Court in News Ltd v Australian Rugby Football League Ltd (1996) 139 ALR 193 at 297-299 on joinder under O 6 r 8 of the Rules. The submission, in my view, is more than adventurous. The CSS Board, as the body responsible for the general administration of the Act, is now responsible both for the May 1990 decision (in respect of which the Tribunal said it lacked jurisdiction) and for the 25 May 2000 decision, as also for a reconsideration decision of 19 October 2000 (in respect of which it determined it was functus officio because of the May 1990 decision). 5 The Tribunal's decisions (a) that it lacked jurisdiction in relation to the 1990 decision and (b) that the 2000 decision was a nullity had the effects (i) of determining the susceptibility of the 1990 decision to review by it, and (ii) of settling (as at 2000) Mr Evans rights and the Board's obligations inter se in respect of making a late election under s 157 and s 137 of the Superannuation Act 1976. To say that a mandatory order to hear and determine the appeal to it against the 2000 decision (and this is the decision that Mr Evans wishes the Tribunal to review) would not directly affect the Board is palpably incorrect. Such an order would be predicated on the finding that the Board was not functus officio at the time and that it had an obligation to make a determination on Mr Evans' late election application which it presently disclaims having. 6 I am satisfied that the Board ought to have been joined as a party. The proper discharge of its statutory responsibilities provides the substantial question to be determined. It properly should be heard on that matter. Mr Evans cannot defeat that necessity by the contrivance of claiming that all that is in issue in this proceeding is the bare question of the Tribunal's jurisdiction to hear and determine an application for review made to it. The Board has a vital interest in the matter which bears directly on its discharge of its statutory responsibilities: cf Strickland and Nudding on behalf of the Maduwongga People v Native Title Registrar [1999] FCA 1089 at [23]-[24]. I would add, echoing the view taken by French J in that case that, with the Tribunal properly taking the stance it has in this proceeding, it is in the interests of justice and the proper administration of the Superannuation Act 1976 that the Court have the benefit from parties properly joined of submissions on both sides of the argument. The Board put submissions to the Tribunal in respect of its decision and it is, correspondingly, the proper adversarial party in this proceeding: Commonwealth v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182 at 206-207; Geographical Indications Committee v The Honourable Justice O'Connor [2000] FCA 1877. 7 The final comment I would make is that the conduct of the applicant has made this motion a necessary one. It is entirely appropriate in the circumstances that the applicant pay the Board's costs of its motion. 8 I will order (i) that, pursuant to O 6 r 8 of the Federal Court Rules, the CSS Board be added as the second respondent to the proceeding and (ii) that the applicant pay the CSS Board's cost of this motion. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 11 February 2002 Counsel for the Applicant: Mr A Anforth Solicitor for the Applicant: Elrington Boardman Allport Counsel for the CSS Board: Mr D O'Donovan Solicitor for the CSS Board: Australian Government Solicitor Date of Hearing: 8 February 2002 Date of Judgment: 8 February 2002