FEDERAL COURT OF AUSTRALIA Kronen v Commissioner of Taxation [2012] FCA 1463 Citation: Kronen v Commissioner of Taxation [2012] FCA 1463 Parties: HORST WILHELM KRONEN v COMMISSIONER OF TAXATION File number: SAD 130 of 2012 Judge: BESANKO J Date of judgment: 21 December 2012 Catchwords: PRACTICE AND PROCEDURE – application for leave to file amended originating application – where respondent issued application for summary judgment pursuant to subs 31A(2) of Federal Court of Australia Act 1976 (Cth) and Rule 26.01 of Federal Court Rules 2011 (Cth) – where applicant seeks judicial review of decision of respondent to take no steps to recover alleged superannuation contribution shortfalls payable by former employer to applicant's superannuation fund, pursuant to Superannuation Guarantee (Administration) Act 1992 (Cth) ("SGAA") – whether applicant has statutory right to require respondent to pursue his contribution shortfall claim or whether respondent subject to public duty to pursue employee complaints with respect to superannuation contribution shortfalls under Part 4 of SGAA – availability of prerogative writs or declaratory relief – whether jurisdiction under subs 39B(1) or subs 39B(1A) of Judiciary Act 1901 (Cth) engaged – whether applicant's substantive review application has no real prospect of success. Held: Leave to amend the originating application is refused; the originating application is dismissed. Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) Federal Court of Australia Act 1976 (Cth) s 31A Federal Court Rules 2011 (Cth) Rule 26.01 Judiciary Act 1901 (Cth) s 39B, 39(1A) Superannuation Guarantee (Administration) Act 1992 (Cth) ss 3, 6, 17, 33, 36, 37 Superannuation Guarantee Charge Act 1992 (Cth) s 3 Taxation Administration Act 1953 (Cth) Part IVC Workplace Relations Act 1996 (Cth) s 848 Cases cited: Coffey v Secretary, Department of Social Security (1999) 86 FCR 434, cited Elders v Swinbank (2000) 96 FCR 303, cited Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, cited Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd (1994) 182 CLR 51, cited Julius v Bishop of Oxford (1880) 5 App Cas 214, cited Kronen v Commercial Motor Industries Pty Ltd (CMI Toyota) (2008) 171 FCR 521, cited Kronen v Commercial Motor Industries Pty Ltd (t/as CMI Toyota) [2006] SAIRC 31, cited Kronen v Commercial Motor Industries Pty Ltd [2009] FMCA 808, cited Kronen v Commissioner of Taxation [2009] FMCA 1019, cited Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319, cited R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, cited The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, cited Date of hearing: 19 September 2012 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 53 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Dr C Bleby SC Solicitor for the Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 130 of 2012 BETWEEN: HORST WILHELM KRONEN Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: BESANKO J DATE OF ORDER: 21 DECEMBER 2012 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. Leave to amend the originating application be refused. 2. The originating application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 130 of 2012 BETWEEN: HORST WILHELM KRONEN Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: BESANKO J DATE: 21 DECEMBER 2012 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicant, who appears in person, has brought an application for judicial review against the Commission of Taxation. The applicant issued his originating application, together with a supporting affidavit, on 19 June 2012. 2 The respondent has issued an interlocutory application in the proceeding in which he seeks judgment in his favour in relation to the whole of the proceeding pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and Rule 26.01 of the Federal Court Rules 2011 (Cth). In that application he contends that the applicant has no reasonable prospect of successfully prosecuting the proceeding. In support of his application he relies on an affidavit of Dusan Uglesic, sworn 28 August 2012, who is a solicitor employed by the Australian Government Solicitor which represents the respondent. The applicant relies on two affidavits he has sworn in support of the application; the first on 26 July 2012 and the second on 13 September 2012. The Applicant's Claim 3 The applicant's originating application and affidavit sworn on 19 June 2012 do not articulate his claim with precision. He seeks leave to file an amended originating application and that document is before the Court. I have considered the respondent's application for summary judgment by reference to the applicant's proposed amended originating application and for convenience I will refer to that document as the originating application. 4 In the originating application the applicant asks the Court to review what he says to be "the decision and conduct of the Australian Tax Office (the ATO) in respect of its refusal to recover, or attempt to recover, an alleged shortfall in superannuation contributions payable subject to the Superannuation Guarantee (Administration) Act 1992 (Cth) (the SGAA) by an employer bound by the Vehicle Industry – Repair, Services and Retail Award (the Award)". 5 I also will refer to the Superannuation Guarantee (Administration) Act 1992 (Cth) as the SGAA and the Vehicle Industry – Repair, Services and Retail Award as the Award. 6 A summary of the factual allegations made by the applicant in his originating application is as follows: 1. The applicant was employed by Commercial Motor Industries Pty Ltd trading as CMI Toyota from 14 April 1998 to 3 November 2000. He was initially employed as a vehicle salesperson and then as a business manager. 2. The applicant's employer was bound by the Award and his contract of employment with the employer was covered by the Award. 3. The applicant was remunerated by his employer by payments characterised as "retainer" and "commission" and each comprised approximately 50 per cent of his total remuneration. 4. During the applicant's employment his employer made superannuation contributions in respect of the retainer payments it made to him but it did not make contributions in respect of the commission payments. 5. The Award contained clauses requiring an employer to make superannuation contributions to a fund. 6. The Award contained a definition of "Ordinary time earnings". 7 In his originating application the applicant refers to various provisions of the SGAA. I summarise the provisions of the SGAA to which the applicant refers as follows: (1) The respondent has the general administration of the SGAA: s 43. (2) Part 4 of the SGAA deals with what are defined as superannuation guarantee statements and assessments. (3) The Superannuation Guarantee Charge Act 1992 (Cth) ("SGCA") provides that the SGAA is to be incorporated and is to be read as one with the SGCA (s 3). The SGCA also provides that a charge is imposed on any superannuation guarantee shortfall of an employer for a quarter (s 5). (4) The SGAA provides that the term "superannuation guarantee shortfall" has the meaning given by s 17 (s 6). (5) In Part 4 of the SGAA, there are a number of sections which the applicant says are relevant to his claim. Section 33(1) provides that an employer who has a superannuation guarantee shortfall for a quarter must lodge a superannuation guarantee statement for the quarter on or before the dates specified in the subsection. Section 34 gives the respondent certain powers to require a superannuation guarantee statement from an employer. Section 35 makes provision for superannuation guarantee statements in certain circumstances to have effect as assessments of the employer's superannuation guarantee shortfall and of the superannuation guarantee charge payable on the shortfall. Sections 36 and 37 deal with default assessments and amended assessments by the respondent respectively. Subs 36(1) and (2) provide as follows: (1) If: (a) an employer has not lodged a superannuation guarantee statement for a quarter; and (b) the Commissioner is of the opinion that the employer is liable to pay superannuation guarantee charge for the quarter; the Commissioner may make an assessment of the employer's superannuation guarantee shortfall for the quarter and of the superannuation guarantee charge payable on the shortfall. (2) For the purposes of making an assessment under subsection (1), the superannuation guarantee shortfall is taken to be the amount that in the Commissioner's opinion might reasonably be expected to be the shortfall. Subs 37(1) and (2) of the SGAA provide as follows: (1) The Commissioner may, subject to this section, at any time amend any assessment by making any alterations or additions that the Commissioner thinks necessary, whether or not superannuation guarantee charge has been paid in relation to the assessment. (2) Subject to this section, if there has been an avoidance of superannuation guarantee charge, the Commissioner may: (a) if the Commissioner is of the opinion that the avoidance of the charge is due to fraud or evasion—at any time; or (b) in any other case—within 4 years from the day on which the assessment is made; amend the assessment by making any alterations or additions that the Commissioner thinks necessary to correct the assessment. Section 42 provides that an employer who is dissatisfied with an assessment may object in the manner set out in Part IVC of the Taxation Administration Act 1953 (Cth). (6) Part 8 of the SGAA deals with the payments of amounts of shortfall components for the benefit of employees. 8 The submissions proceeded by reference to the SGAA in its current form and the provisions of the SGAA set out in these reasons are the provisions in their current form. Although there have been a number of amendments to the SGAA since 1998 the relevant provisions in terms of this application remain the same in material respects. For example, subss 36(1) and (2) (except for a change in references from a year to a quarter) and subss 37(2) and (3) have not been altered since 1998. 9 The applicant claims that the respondent (or the ATO) "misused the authority provided by the SGAA to determine the employee's SG liability". The grounds for this claim are as follows: 1. The respondent misconstrued the provisions of the SGAA with respect to the payments to him by his employer upon which superannuation contributions were to be calculated and he refers in particular to the definitions in the SGAA of "Total wages or salary paid by the employer to the employee" (s 19) and "salary or wages" (s 11). 2. The respondent misconstrued (or to use the applicant's term, "misrepresented") the term "ordinary time earnings" in the Award. 3. The respondent failed to accord procedural fairness to the applicant in connection with the interpretation of the term, "ordinary time earnings". 4. The respondent failed to take action to amend the assessment of the applicant's employer or to collect and distribute the shortfall. 10 The respondent accepts that, for the purposes of his application, I can proceed on the basis that acts said to have been done by the ATO can be taken to have been done by him. 11 The applicant claims that the shortfall is $4,850. 12 In essence, the applicant claims that his employer failed, contrary to law, to make superannuation contributions on that part of his remuneration consisting of commissions. He claims that he had a right as against the respondent to have the latter enforce the payment of those contributions and that the respondent had a duty to take appropriate action to do so. 13 The applicant has taken other legal proceedings to enforce what he claims to be his rights in respect of superannuation contributions by his employer. 14 In or about 2005, the applicant brought proceedings against his employer in the Industrial Relations Court of South Australia. One of his claims was for an alleged shortfall in employer superannuation contributions "upon the basis that amounts earned by way of commissions were not taken into consideration". On 12 May 2006, Ardlie IM delivered his judgment in the proceedings in which he rejected the applicant's claim, holding that commissions were not included in the relevant calculation: Kronen v Commercial Motor Industries Pty Ltd (t/as CMI Toyota) [2006] SAIRC 31. The applicant appealed to the Full Court of this Court, where he was unsuccessful. The Full Court held that the then s 179 of the Workplace Relations Act 1996 (Cth) did not give the Industrial Relations Court of South Australia jurisdiction to entertain claims with respect to amounts payable by the employer to persons other than the employee. The replacement section (that is, s 720) did give the Court jurisdiction in relation to amounts payable to a superannuation fund on behalf of an employer, but that section did not apply: Kronen v Commercial Industries Pty Ltd (CMI Toyota) (2008) 171 FCR 521. 15 In 2008 the applicant instituted proceedings against the respondent in the Federal Magistrates Court. He sought an interpretation of the award which would be binding on the respondent. The Court dismissed the proceedings on a summary basis holding that the respondent was not a proper party to the application: Kronen v Commissioner of Taxation [2009] FMCA 1019. 16 In 2009 the applicant instituted proceedings against his employer in the Federal Magistrates Court. He sought an interpretation of the award. Again the Court dismissed the proceedings. The Court held that the applicant did not have standing to bring the proceedings under s 848 of the Workplace Relations Act 1996 (Cth): Kronen v Commercial Motor Industries Pty Ltd [2009] FMCA 808. 17 I return now to the originating application, in which the applicant seeks the following orders: 1. I seek a declaration that, subject to the SGAA, the ATO failed to properly determine the liability of an employer and the entitlement of the employee. 2. I seek a declaration that, subject to the SGAA, the ATO failed to exercise its authority to amend an employer assessment, recover a shortfall in the employer's SG liability, and properly distribute those funds that should have been recovered to the account of the relevant employee. 3. I seek a declaration that the ATO failed to accord an employee his statutory right to fairness and due process. 4. I seek a declaration that, subject to the Award, commission payment fell within the meaning of "ordinary time earnings". 5. I seek a declaration that the ATO failed to protect the entitlement of an employee to superannuation, as provide [sic] for by the SGAA. 6. I seek an order that the ATO pay an amount of $4,850 into a suitable superannuation fund on my behalf (or directly to me). 7. And any other orders or declarations that the Court may see fit to make. 18 The applicant set out details of his claim in two letters to the respondent dated 24 November 2005 and 6 January 2006 respectively. 19 The respondent set out its response to the applicant's claim in four letters and it is convenient at this point to summarise the respondent's response to the applicant's claim. The Respondent's response to the Applicant's claim 20 In his letter to the applicant dated 9 December 2005, the respondent referred to his examination of the Award and said that he had interpreted the Award as not including commissions in the earnings base. Based on that interpretation, he said "we have deemed you are not entitled to any further contributions from your previous employer". The respondent said that, as a decision had been made the applicant did not have any rights of appeal, although precisely what the respondent meant by this is unclear. 21 In his letter to the applicant dated 8 February 2006, the respondent provided further details of the earnings base and he referred to Superannuation Guarantee Ruling 94/1, and various clauses in the Award including clauses, viz, 45(b)(iv) and 27 (k)(i). He said: Commission payments are not specified under any of the award provisions relating to the definition of OTE [Ordinary Time Earnings]. 22 The respondent explained aspects of the SGAA and its administration: As SG is based on self-assessment, employers are responsible for assessing employees' superannuation contributions, maintaining records and depositing superannuation contributions directly into a complying superannuation fund or a retirement savings account (RSA), in accordance with the SGAA. The Tax Office does not confirm whether a superannuation fund or RSA has received a particular employee's superannuation contribution on an ongoing basis. In circumstances where an employer has not made sufficient contributions for an employee by the due date, then the employer is required to pay a superannuation guarantee charge (SGC) which consists of the SG shortfall together with an administration fee and nominal interest. If an employer has not paid the minimum SG entitlements to a superannuation fund or RSA by the due date, the SGC would be calculated using salary and wages rather than OTE. Salary and wages include commission payments. Please note that from 1 July 2008, the Superannuation Laws Amendment (2004 Measures No 2) Act 2004 (Act No 93 of 2004) will require employers to calculate their SG liability using an employee's ordinary time earnings as defined in SGAA. The different bases of calculation of an employee's earnings base which currently may apply will cease to operate. However, this change will not be applied retrospectively. 23 The respondent explained the role of the ATO and said: In your case, the Tax Office has assessed your earnings base using the information you have provided. … The role of the Tax Office is to administer the SG legislation which covers only SG contributions. As the definition of OTE in the award relevant to your employment does not include commission payments, the Tax Office cannot pursue your previous employer for unpaid SG contributions on these commissions. 24 In his letter to the applicant dated 22 March 2006, the respondent reiterated points he had made previously and said that the applicant's earnings base was defined under paragraph 45(b)(iv) of the Award. 25 In his letter to the applicant dated 29 September 2009 the respondent referred to the reviews he had carried out: You have repeatedly requested that the Tax Office review its decision that there was no shortfall of superannuation contributions. The requested reviews have been carried out on at least two separate occasions at Assistant Commissioner level and the outcomes, namely that the Tax Office maintains the view that there was no shortfall, were notified to you by letters dated 9 February 2006 and 22 March 2006. As the Commissioner was not acting under any specific statutory compulsion to conduct these reviews, they must be regarded as "informal reviews" and were conducted under the Commissioner's general powers of administration. 26 I turn now to the basis upon which the respondent makes his application. The Basis of the Application for Summary Judgment 27 The respondent put a number of propositions in support of his application for summary judgment. 28 First, he contends that in so far as the applicant challenges a decision or conduct related to the making of a decision under the SGAA, the Administrative Decisions (Judicial Review) Act 1977 (Cth) does not apply. He refers to Schedule 1 of the Act. This contention of the respondent is correct. 29 Secondly, he contends that the source of any jurisdiction in this Court with respect to the applicant's application must be found in the Judiciary Act 1901 (Cth) and, in particular, subs 39B(1) (a matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth) and subs 39(1A) (a matter arising under any laws made by the Parliament). 30 Thirdly, he contends that if the relief claimed by the applicant was recast to include a claim for mandamus under subs 39B(1) then in order to succeed it would be necessary for the applicant to identify a failure by the respondent to perform a public duty. As far as declaratory relief (with relief in the form of certiorari if that was also sought) is concerned, it would be necessary for the applicant to identify a right that owes its existence to federal law in order to invoke this Court's jurisdiction under s 39B(1A)(c) (Elders v Swinbank (2000) 96 FCR 303; Coffey v Secretary, Department of Social Security (1999) 86 FCR 434). 31 Fourthly, he contends that the applicant has not identified and is unable to identify a right that owes its existence to federal law or a public duty which must be performed by the respondent. The respondent contends that an employee has no right under the SGAA, and the respondent no duty. The procedure of an employee notification and an ATO investigation into a matter, referred to below (at [37]-[39]), is no more than an exercise by the respondent of his general power of administration of the Act. 32 Fifthly, the respondent contends that the applicant has no right under the SGAA: (1) to obtain an order requiring him to exercise his power under s 37 to issue an amended assessment against the applicant's former employer in relation to the alleged shortfall of superannuation contribution or to levy the superannuation contribution charge; (2) to obtain an order requiring him to compel the applicant's former employee to pay the alleged shortfall of superannuation contribution; or (3) to sue him in relation to the alleged shortfall of superannuation contribution. 33 Finally, the respondent contends that the applicant has been aware of his attitude to the applicant's claim for a period in the order of seven years and relief, whether in the form of declarations or prerogative writs, would be refused on discretionary grounds. 34 Before leaving this section of my reasons I address two procedures referred to in the evidence whereby an employee might bring to the respondent's attention the issue of whether his or her employer was making appropriate superannuation contributions. 35 Between 2007 and 2010, the SGAA included s 45A which was in the following terms: 45A Disclosure of information to give advice to employee about progress of complaint against employer (1) An employee or former employee (the employee) of an employer may make a complaint to the Commissioner that the employer has not complied with one or more specified obligations under this Act in relation to the employee. (2) To avoid doubt, a person may make a complaint under subsection (1) even if at the time the complaint is made it is in dispute or uncertain whether he or she is an employee or former employee of the employer. (3) If a complaint has been made under subsection (1), the Commissioner may divulge or communicate information covered under subsection (4) to the employee (and make a record necessary for the divulging or communication of the information). (4) Information is covered under this subsection if it relates to the Commissioner's response to the complaint, including information about any of the following matters: (a) the steps (if any) that the Commissioner has taken to investigate the complaint; (b) the actions (if any) that have been taken in relation to the complaint under this Act or the Taxation Administration Act 1953 by the Commissioner or the employer; (c) the steps (if any) that the Commissioner has taken to recover superannuation guarantee charge from the employer in relation to the employee. (5) However, information is not covered under subsection (4) if it relates to the general financial affairs of the employer. (6) Making a record, or divulging or communicating information, under subsection (3) is not a breach of a provision of a taxation law (within the meaning of the Income Tax Assessment Act 1997) that prohibits the Commissioner or an officer from making a record of, or disclosing, information. Example: Examples of such provisions are section 45 of this Act and section 3C of the Taxation Administration Act 1953. 36 It was not made clear in submissions how this section was relevant, bearing in mind the fact that the period of the applicant's employment was from 1998 to 2000. 37 It seems that between at least 2005 and 2009 the respondent had in place a procedure which was commenced by an employee notification. The procedure is explained in its letter to the applicant dated 29 September 2009: If the employer fails to make sufficient contributions they become liable for Superannuation Guarantee Charge (SGC) on any shortfall. Prima facie, employers are required to self-assess and pay their SGC liability to the Tax Office, which then distributes the amount collected to employees' nominated superannuation funds or to the Superannuation Holding Accounts Reserve where the employee does not have a Fund. An employee who believes that they have not received the required level of employer contributions may notify the Tax Office by lodging an Employee Notification (EN), and the Tax Office then investigates the matter. If the Tax Office agrees with the employee that the required level of employer contributions has not been made, it will raise a default assessment for Superannuation Guarantee Charge against the employer under SG(A)A sec 36. The amount of a superannuation guarantee charge assessment is a debt due to the Commissioner who may sue the employer to recover it. S 42 of the SG(A)A provides that the employer has a right to object, in the manner set out in Pt IVC of the Taxation Administration Act 1953, against a superannuation guarantee charge assessment. 38 It seems that the applicant lodged an employee notification in July 2005 and again in August 2005. 39 It was not made clear by the evidence or by submissions whether the procedure commenced by an employee notification was established by the respondent under his general power of administration in the SGAA, or was part of the procedure under s 45A, or both. Issues on the application 40 The first point to note is that I am not called upon by the respondent's application to decide whether the applicant's interpretation of the Award is correct. The respondent's contention is that whether it be correct or not, the applicant had no right and the respondent no public duty which could form the basis of the relief claimed by the applicant. 41 In order to determine whether the applicant had a right or the respondent a public duty to found his claim for relief it is convenient to consider what steps the respondent might have taken under the SGAA. The applicant's employer denied that it had a superannuation guarantee shortfall and that it was required to file a superannuation guarantee statement. The respondent agreed. Had he disagreed, he could have exercised the power in s 36 of the SGAA to make a default assessment. In order to do so, he would need to have been of the opinion that the employer was liable to pay superannuation guarantee charge for the quarter and then he "may" make a default assessment. If the respondent took this course it would be open to the employer to object in the manner set out in Part IVC of the Taxation Administration Act 1953 (Cth). Absent an objection by the employer, the superannuation guarantee charge was payable on the day on which the assessment was made (subs 36(3) of the SGAA). If a charge payment was made, the respondent was to apply it for the benefit of a benefitting employee under s 65 or s 67 of the SGAA. 42 The starting point is that, although the applicant claims declarations, the ordinary rule in the circumstances of this case is that no declaration of right will be made where certiorari and mandamus do not lie: Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 359 [101]. There is nothing to suggest that the ordinary rule does not apply in this case. 43 For the jurisdiction in paragraph 39B(1A)(c) of the Judiciary Act 1901 (Cth) to be engaged, the right owing its existence to federal law must be a right capable of enforcement by an order in the nature of certiorari or mandamus. That is so even if the relief granted is a declaration. 44 The question is whether there is a decision of the respondent capable of attracting certiorari and a public duty capable of attracting mandamus. 45 In terms of certiorari, it is by no means clear that there is a decision of the respondent "which has a discernable effect or apparent legal effect upon rights", to use the words of Brennan CJ, Gaudron and Gummow JJ in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159. Although the facts are not entirely clear, it seems that, at best for the applicant, the respondent decided to take no action to proceed under the section dealing with default assessments. Even if there was an identifiable decision that will not advance the applicant's claim unless he can identify a duty on the respondent to act. 46 The words in s 36 of the SGAA are permissive, as indeed are the words in s 37 should that be the relevant section. Do they create a power coupled with a public duty enforceable by mandamus? 47 The Lord Chancellor Earl Cairns said in Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-223: The words "it shall be lawful" are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. Whether the power is one coupled with a duty such as I have described is a question which, according to our system of law, speaking generally, it falls to the Court of Queen's Bench to decide, on an application for a mandamus. And the words "it shall be lawful" being according to their natural meaning permissive or enabling words only, it lies upon those, as it seems to me, who contend that an obligation exists to exercise this power, to shew in the circumstances of the case something which, according to the principles I have mentioned, creates this obligation. 48 It is perhaps trite to say that legislation may be framed in such a way that a mere power may become, at a certain point or in certain circumstances, a duty. In other words, at a certain point, the discretionary aspect has been exhausted. In Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51, Brennan J (as his Honour then was) (with whom Toohey and McHugh JJ agreed) said (at 88) (citations omitted): The Commissioner is a public officer vested with a power to be exercised for the purpose, inter alia, of discharging her liabilities. When the power exists and the circumstances call for the fulfilment of a purpose for which the power is conferred, but the repository of the power declines to exercise the power, mandamus is the appropriate remedy even though the repository has an unfettered discretion in other circumstances to exercise or to refrain from exercising the power [93] . Mandamus will go where there is a duty to pay money [94]. In this case, there is no residual discretion in the Commissioner to refrain from making a refund in exercise of her powers under s. 111(1) once she finds that there has been an overpayment and there is a legal liability to refund the amount found to have been overpaid. 49 Furthermore, as is well-known, legislation may create an obligation to hear and decide a particular issue according to law. If a hearing is conducted and a decision made but it is not according to law then the duty may remain unperformed and mandamus may issue to compel a hearing and determination according to law. In The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 Rich, Dixon and McTiernan JJ said (at 242-243): A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him. In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void. (See also R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 398-399 per Latham CJ, Rich, Dixon, McTiernan JJ). 50 The insuperable difficulty for the applicant in this case is that I do not think the SGAA contains a scheme which gives him a right or imposes a duty on the respondent. The words in s 36 (and s 37 if that be relevant) are wholly permissive and it is the employer who is given the right to object. Furthermore, there is no section which provides a trigger to an obligation on the respondent to hear and decide a claim by an employee that his or her employer was not making superannuation contributions according to law. The fact that there might be an administrative structure (that is, employee notification) does not confer a right on the applicant to require the respondent to take action or impose a duty on the respondent to do so. Section 45A (if it be relevant) did not create a duty to hear and determine. 51 The applicant's procedural fairness argument falls with his main argument. The submission was that the respondent was bound to provide a fair and practical means of resolving the applicant's claim. No basis for such an obligation was identified. His request for an interpretation of the Award falls with his main argument. I assume it is not a free-standing claim; even if it was, there appear to be a number of difficulties with it including the fact that it is not properly constituted. 52 In the circumstances, I do not need to deal with the respondent's argument based on delay. Conclusion 53 I think that this is a case where it can be said that the applicant has no reasonable prospect of successfully prosecuting the proceeding. Leave to amend the originating application should be refused. The originating application must be dismissed. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 21 December 2012