FEDERAL COURT OF AUSTRALIA Matsen v Superannuation Complaints Tribunal [2017] FCA 765 File number: NSD 608 of 2015 Judge: PERRY J Date of judgment: 6 July 2017 Catchwords: SUPERANNUATION – Application to set aside consent orders – application dismissed Legislation: Federal Court Rules 2011 (Cth) r 39.05 Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Harvey v Phillips (1956) 95 CLR 235 Huddersfield Banking Co. Ltd. v Henry Lister & Son Ltd (1895) 2 Ch 273 Date of hearing: 6 July 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 31 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Second Respondent: Mr M Corkhill, TurksLegal Counsel for the Third Respondent: Mr G Smith Solicitor for the Third Respondent: Martin Trisley Lawyers Counsel for the Fourth Respondent: The Fourth Respondent did not appear ORDERS NSD 608 of 2015 BETWEEN: KENNETH MATSEN Applicant AND: SUPERANNUATION COMPLAINTS TRIBUNAL First Respondent RETAIL EMPLOYEES SUPERANNUATION PTY LIMITED Second Respondent CHERIE LEE BENNETT Third Respondent ELIZABETH PEARSALL Fourth Respondent JUDGE: PERRY J DATE OF ORDER: 6 JULY 2017 THE COURT ORDERS THAT: 1. The applicant's application to set aside the orders made by consent on 29 July 2016 is dismissed. 2. The applicant is to pay the costs of the third respondent as agreed or assessed. 3. There otherwise be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from transcript) PERRY J: 1. INTRODUCTION 1 This is an interlocutory application by Mr Kenneth Matsen filed on 5 October 2016 to set aside final orders made by consent on 29 July 2016 following a court ordered mediation. The application was filed with a supporting affidavit that was signed by Mr Matsen on 29 September 2016. The application is opposed by the third respondent, Ms Cherie Lee Bennett. The other respondents have not filed any documents in response to the application. The solicitor for the second respondent, Retail Employees Superannuation Pty Limited, appeared at the hearing in order to assist the Court with any queries that may arise but indicated that the second respondent would abide the decision of the Court save as to costs. 2. EVIDENCE 2 Mr Matsen filed three affidavits in support of his application, namely: (1) an affidavit sworn on 29 September 2016; (2) an affidavit sworn and filed on 8 March 2017; and (3) an affidavit sworn on 8 May 2017 (filed 9 May 2017). 3 While these were read without objection in the sense that the third respondent did not seek to have any part of the evidence excluded, nonetheless counsel for the third respondent explained that his client had a "blanket objection" to the disclosure of settlement discussions with the third respondent. Such negotiations are confidential and the objection was properly made. Nor did the content of the negotiations themselves appear to be relevant to any part of the grounds for the application. Counsel for the third respondent also submitted that evidence annexed to the applicant's affidavit dated 8 March 2017 in relation to the substantive issues which would arise if the consent orders were set aside was not relevant. I agree. The Court is presently seized only of the application to set aside the consent orders and at this stage only evidence bearing upon that application is relevant. 4 I also ruled against an oral application by the applicant to adduce further evidence of a tax ruling post-dating the making of the consent orders on the ground that the evidence could not have any relevance to the circumstances in which the consent orders the subject of the application came to be made. 5 The third respondent relied upon the affidavit of Martin Trisley, the solicitor for the third respondent, affirmed on 13 April 2017 (Trisley affidavit) which was read without objection. 3. BACKGROUND 6 Consent orders were made in proceedings instituted on 27 May 2015 and in an appeal later instituted by the third respondent. In the initial proceedings, Mr Matsen appealed a decision of the Superannuation Complaints Tribunal (the Tribunal) dated 8 May 2015. The decision related to Mr Matsen's deceased son, Mr Timothy Matsen, who died without leaving a will or indicating a beneficiary to his superannuation fund. On the application of Timothy Matsen's former partner, Ms Cherie Lee Bennett, the Tribunal substituted a decision by the trustee of the fund to pay the whole of the death benefit payable under Timothy Matsen's superannuation policy to his father, with a decision to distribute the death benefit to Ms Pearsall who was the son's mother, Ms Bennett, and Mr Matsen. A related proceeding was subsequently instituted as I have mentioned by Ms Bennett to which Mr Matsen was also a party. 7 Mr Matsen has been self-represented throughout the proceedings although, as I later explain, he said that he had spoken with a lawyer before the consent orders were made on 29 July 2016 (Trisley affidavit). Ms Bennett has had legal representation throughout. 8 On 30 March 2016 the applicant and the third respondent attended a court ordered mediation. No other respondents attended. The third respondent was represented by counsel and her solicitor, while the applicant was self-represented. The mediator was a Registrar of the Federal Court. 9 It is not in dispute that during the course of the mediation, there was no direct contact between the third respondent and her representatives and the applicant. The process was undertaken by the mediator conveying offers to and on behalf of the parties who attended the mediation. 10 After some negotiation the matter settled in principle between the applicant and the third respondent on the following basis: (a) The decision of the Superannuation Complaints Tribunal was overturned. In lieu therof, by consent, the death benefit was to paid as follows: (i) $50,000.00 to the third respondent; (ii) The balance of the benefit to the applicant. (b) The third respondent agreed to withdraw her appeal with no order as to costs. 11 Both parties attending the mediation signed short minutes of order. The short minutes were not able to be filed in the Federal Court Registry at that time as they required the consent of the other respondents. 12 Following the mediation, the solicitor for the third respondent contacted the other respondents and obtained their consent. 13 On 22 June 2016, the matter came again before the Court. At that hearing, the applicant advised the Court that he no longer agreed to the orders set out in the short minutes. As a result, the matter was stood over for further directions on 29 July 2016. 14 The applicant again appeared in person at the hearing on 29 July 2016. Mr Smith appeared for the third respondent in both proceedings. Mr Banna attended on behalf of the second respondent although he explained that he had not yet filed a notice of appearance as instructions to appear had been received only late the day before. 15 Both the proceeding instituted by Mr Matsen and the proceeding instituted later by Ms Bennett were before the Court on that day. At the hearing of the present application to set aside the consent orders, I advised the parties that the transcript of the hearing on 29 July 2016 was on the court file and inquired as to whether it would be of assistance if the parties were provided with a copy of the transcript. The parties agreed to that course and were provided with a copy. 16 In line with the evidence contained in Mr Trisley's affidavit, the transcript of the hearing on 29 July 2016 confirms that the applicant consented to orders being made in terms of the draft consent orders signed by the parties, even though he indicated that he was unwell and that that played a part in his decision to do so. While he appeared unrepresented, the applicant also informed the Court at the outset of that he had "obtained some legal counsel". 17 Mr Matsen also said "I would continue but I'm simply too ill…. So I succeed to the orders – the short orders – the short minutes or whatever they call it. … I have no option at this juncture." Notwithstanding that, I considered that it was appropriate to make the consent orders in circumstances where (as I explained at the hearing): (1) the applicant confirmed that he was not now seeking to challenge the consent orders which he signed at the end of the mediation process; (2) the applicant confirmed that he had sought some legal counsel; (3) the applicant had not sought to set aside the agreement despite it being explained at the previous hearing on 22 June 2016 that that was a necessary step; and (4) without encouraging the matter to go any further, an application could be made to set aside the consent orders. 18 Nor was there any medical evidence to suggest that the applicant was not able to give his consent. 4. RELEVANT PRINCIPLES 19 The circumstances in which the Court may vary or set aside a judgment or order after it has been entered, as is the case here, are set out in rule 39.05 of the Federal Court Rules 2011 (Cth) which provides as follows: The Court may vary or set aside a judgment or order after it has been entered if: (a) it was made in the absence of a party; or (b) it was obtained by fraud; or (c) it is interlocutory; or (d) it is an injunction or for the appointment of a receiver; or (e) it does not reflect the intention of the Court; or (f) the party in whose favour it was made consents; or (g) there is a clerical mistake in a judgment or order; or (h) there is an error arising in a judgment or order from an accidental slip or omission. 20 In addition, the High Court held in Harvey v Phillips (1956) 95 CLR 235 at 243-244 that: … in the case of a compromise which is made within the actual as well as apparent authority of counsel a court does not appear to possess a discretion to rescind it or set it aside. The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. 21 Absent a ground on which the consent order can be invalidated, "the consent order is good": ibid (citing Huddersfield Banking Co. Ltd. v Henry Lister & Son Ltd (1895) 2 Ch 273 at 280 with approval. 5. CONSIDERATION 22 The grounds on which Mr Matsen seeks to set aside the consent orders were conveniently summarised by the third respondent as follows (being a summary with which I agree): (a) The applicant informed the mediator that it was "an unfair situation" as the applicant had no assistance and that he was not "up to the task". (b) The applicant was "locked in a most unsuitable room". (c) The applicant informed the mediator that at the time he was unable to negotiate as the travel had rendered him unable to protect his interests. (d) The mediator refused to respond to that situation and "pressurised" the applicant to continue the process. (e) The mediator advised the applicant that he was unable to leave until the applicant "wrote out the reasons" for leaving the negotiations, and that the applicant was in no condition to do so as he had been travelling "for a day". (f) The applicant was in physical pain. (g) The applicant had had eyesight problems. (h) The applicant had most of his teeth removed. (i) There was no "face to face with the other parties". (j) The applicant only signed, presumably the Short Minutes, to enable him to leave the Federal Court building. 23 A concern about the manner in which the mediation was held and the fact that it may not have accorded with the applicant's expectations in that regard, do not provide a basis on which to set aside the consent judgment in line with the principles to which I have earlier referred. Rather, as the third respondent submitted, the highest that the applicant's case can be put is that he entered into the agreement under duress from the Registrar. That allegation is of the utmost seriousness and to be established, it would be necessary for the Court to be satisfied that the ground was made out in line with the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J), namely: …reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences … 24 In this case, the inherent unlikelihood of the allegations made against the Registrar are increased also by reason of the fact that the Registrar had no interest in the outcome of the mediation, no association with any party, and is an independent officer of the Court. 25 It became apparent during the hearing that the applicant's concerns at least to some extent arose because of his misunderstanding of the mediation process, including the criticism that the Registrar had not advised of certain consequences of entry into the agreement, as well as the applicant's concern that the mediation was not "face to face". As to the first matter, quite apart from the lateness of the allegation, it is not the role of the mediator to provide legal advice to the parties as the respondent submitted. Nor is there any evidence suggesting that the applicant did not understand the effect of the agreement. Furthermore, there is nothing unusual in a mediation being conducted with the parties in different rooms as occurred here. None of these matters could approach establishing duress; nor, even assuming that it was the case, could a requirement that the applicant identify in writing the reasons why he did not wish to proceed with the court ordered mediation before bringing the mediation to a close. 26 Broadly speaking, it is fair to say that the applicant's complaints relate to his subjective feelings, rather than identifying improper conduct. No detail, in particular, is given of the alleged pressure to continue with the mediation. For example, it can be envisaged that endeavours by the Registrar in an entirely appropriate way to encourage the applicant to attempt to resolve the issues by consent rather than face the risks of litigation might have been perceived subjectively by the applicant as "pressurising" him to continue with the mediation, as he put it. In this regard, I also note that it has been apparent throughout this litigation that the applicant feels very strongly about the issues which he seeks to litigate arising, as they do, from the loss of his son, and that this may also have affected his perception of events. In so saying, I imply no criticism whatsoever of Mr Matsen. 27 In short, in the circumstances, were it necessary to decide the point, I consider that the evidence falls well short of providing a basis upon which to infer that any pressure that the Registrar may appeared to have put on the applicant to continue the mediation was undue and that the consent orders should be set aside on the ground that the underlying agreement was entered into under duress. 28 Ultimately, however, it is unnecessary to consider the allegation of duress. This is because the short answer to the application is, as the third respondent contends, that any pressure that the applicant may have felt at the mediation, by reason of the way that the mediation was conducted cannot explain his consent over a month later to the making of the orders on 29 July 2016. Nor did the applicant allege the contrary. His evidence and submissions were focused upon the circumstances of the mediation. Furthermore, in the interim the applicant had sought legal advice. It follows that the application to set aside the consent orders must be dismissed. 29 Finally, while the authorities do not suggest that I have any discretion in the matter, nonetheless in all of the circumstances I consider that the conclusion which I have reached is in the interests of justice. In this regard, I note that the third respondent agreed to her detriment to withdraw her appeal as a part of the agreement embodied in the consent orders, and that the funds from the son's superannuation fund have since been dispersed at least in part. This result also furthers the principle of the finality of litigation, as the third respondent submitted. In so saying, I also understand, as I have earlier indicated, that the matters which Mr Matsen would seek to litigate if the consent orders were set aside, are matters about which he feels very strongly. 6. CONCLUSION 30 For these reasons the application is dismissed. 31 The applicant is to pay the costs of the third respondent as agreed or assessed. There be no order as to costs with respect to the second respondent. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate: Dated: 6 July 2017