FEDERAL COURT OF AUSTRALIA Matsen v Superannuation Complaints Tribunal [2017] FCA 1604 Appeal from: Application for extension of time and leave to appeal: Matsen v Superannuation Complaints Tribunal [2017] FCA 765 File number: NSD 1301 of 2017 Judge: RARES J Date of judgment: 3 October 2017 Legislation: Evidence Act 1995 (Cth) s 160 Federal Court Rules 2011 Pt 25, r 25.14 Cases cited: Bienstein v Bienstein (2003) 195 ALR 225 Harvey v Phillips (1956) 95 CLR 235 Jackamarra v Krakouer (1998) 195 CLR 516 Matsen v Superannuation Complaints Tribunal [2017] FCA 765 R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 Woodgate (the trustee of the property of Jennings (a bankrupt)) v Northop Hall Pty Limited (in its own right and in its capacity as trustee for the Broad Oak Trust) (2016) 341 ALR 132 Date of hearing: 3 October 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 20 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: The First Respondent filed a Submitting Notice Counsel for the Second Respondent: Ms A Lyons Solicitor for the Second Respondent: Turks Legal Counsel for the Third Respondent: Mr G Smith Solicitor for the Third Respondent: Trisley Lawyers ORDERS NSD 1301 of 2017 BETWEEN: KENNETH LESLIE MATSEN Applicant AND: SUPERANNUATION COMPLAINTS TRIBUNAL First Respondent RETAIL EMPLOYEES SUPERANNUATION PTY LIMITED Second Respondent CHERIE LEE BENNETT Third Respondent JUDGE: RARES J DATE OF ORDER: 3 OCTOBER 2017 THE COURT ORDERS THAT: 1. The application for an extension of time and leave to appeal be dismissed. 2. The applicant pay the costs of the second respondent of a submitting appearance. 3. The applicant pay the costs of the third respondent on a party and party basis up to 11.00am on 22 August 2017 and on an indemnity basis thereafter. 4. The interlocutory applications filed on 9 August 2017 and 5 September 2017 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) RARES J: 1 This is an application for an extension of time and leave to appeal from a decision by the primary judge on 6 July 2017 in which her Honour refused to set aside orders that she had made by consent on 29 July 2016 (the consent orders) that resolved the proceeding brought by Kenneth Matsen dealing with the disposition of his late son's superannuation entitlements. Her Honour gave detailed reasons for her decision that accurately set out the history of the litigation including a mediation that occurred before a Registrar of the Court at which Mr Matsen signed consent orders on 30 March 2016 (the 30 March 2016 orders), and his subsequent two appearances before her Honour, first, on 22 June 2016, when he informed her Honour that he no longer agreed to the orders that he had signed on 30 March 2016, and, secondly, on 29 July 2016 about which her Honour found (Matsen v Superannuation Complaints Tribunal [2017] FCA 765 at [16]-[18]): 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. (italic emphasis in original; bold emphasis added) 2 Her Honour then identified correctly the principles on which the Court must determine whether or not to set aside final orders made by consent, as conclusively determined by the High Court in Harvey v Phillips (1956) 95 CLR 235 at 243-244. Her Honour summarised the matters on which Mr Matsen relied before her, including the medical conditions from which he suffered. None of those conditions affected his ability to analyse or make decisions about financial or legal matters, albeit that he suffered from chronic pain due to back and neck problems. 3 Her Honour noted that Mr Matsen had complained that he had been subjected to duress during the course of the mediation and that it had not proceeded as he would have wished, namely, with face-to-face meetings between himself and the third respondent, Cherie Bennett, with whom his son had had some form of relationship prior to his decease. Mr Matsen seems to have interpreted a situation in which the Registrar is likely to have advised the parties that he would have to report to the Court that the proceeding had not settled in the mediation as being some form of instruction to Mr Matsen to explain his reasons for not agreeing to the 30 March 2016 orders that he came to sign on that day. 4 Her Honour concluded that the highest that Mr Matsen's case could be put was that he had entered into the consent agreement in the mediation under duress applied by the Registrar. But she concluded that such an occurrence was inherently unlikely, particularly since the Registrar had no interest in the outcome of the mediation, no association with any party and was an independent officer of the Court. Nor is there anything in the material before me to suggest that the Registrar acted in a way that created any duress. 5 Her Honour also rejected evidence that Mr Matsen had sought to put before her of a decision by the Australian Taxation Office dated 24 March 2017 in which it found that Mr Matsen was a death benefits dependant of his late son by virtue of being in an interdependency relationship with him. Her Honour found, and I agree, that that evidence was not relevant to the circumstances in which Mr Matsen gave his consent both on 30 March 2016 and 29 July 2016. Indeed, Mr Matsen complained to me that he had been initially assessed to taxation on his receipt of the superannuation to which his son had been entitled. But, the effect of the Australian Taxation Office's decision was simply to reverse that assessment so that he is in no different position in relation to his receipt of the superannuation proceeds than he would have been in consequence of his entering into the 30 March 2016 orders and agreeing on 29 July 2016 to the making of the consent orders. 6 However that may be, Mr Matsen had a full and fair opportunity between 30 March 2016 and 29 July 2016 to present his evidence and arguments as to why effect should not be given to the 30 March 2016 orders, and her Honour deliberately structured a process to enable him to do so. Having obtained legal advice, he chose on 29 July 2016 not to oppose the entry of the consent orders. Those orders are, in effect, a contract between the parties to resolve litigation in which they asked the Court to act by its orders in the manner that they agreed. 7 Where a final order is made by consent, a court does not possess a discretion to set it aside, except on proper grounds as identified in Harvey 95 CLR at 242-244. As the High Court held, 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 a party to equitable relief against it; see also Woodgate (the trustee of the property of Jennings (a bankrupt)) v Northop Hall Pty Limited (in its own right and in its capacity as trustee for the Broad Oak Trust) (2016) 341 ALR 132 at 138 [29]-[30]. Mr Matsen's submissions 8 Mr Matsen complained that her Honour erred in finding on 29 July 2016 that there was no medical evidence before her in the hearing to suggest that he was not able to give his consent. He argued that, for the purposes of the hearing on 6 July 2017, he had submitted copies of certain medical records indicating that he had, first, conditions that had caused the removal of his teeth at John Hunter Hospital on 17 June 2016, secondly, cataract problems with both of his eyes for which he required surgery on 4 May 2016 and again on 15 August 2016, and, thirdly, chronic neck and back pain had restricted his ability to travel as detailed in a letter from his treating general practitioner dated 14 October 2015. Before me, there is a subsequent patient health summary from his general practitioner's practice dated 24 July 2017 which self-evidently was not before her Honour at any point of time. Consideration 9 None of those materials bears in any way on Mr Matsen's capacity to understand or form decisions about the conduct of the litigation or whether he should or should not have entered into the 30 March 2016 orders to resolve it, and to decide on 29 July 2016 to adhere to those orders leading to her Honour making the consent orders. 10 An application for an extension of time in which to file an appeal or leave to appeal challenges a respondent's vested right to retain the benefit of the judgment from which the appeal is sought, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] (and see also at 539-543 [66] per Kirby J). The Court deals with such an application in the way that each of their Honours said had been adopted by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F, namely: We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time. 11 In addition, the criteria for granting leave to appeal are that the applicant must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and that substantial injustice will result from a refusal of leave: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ. 12 Here, Mr Matsen complains that he subsequently discovered that submissions he had sought to file, so that her Honour could and would have considered them, were not put before her. He has subsequently filed a plethora of affidavits and other material which, in various forms, reproduce the medical and taxation records to which I have referred, and some handwritten submissions which he prepared that, in substance, reflect precisely material that her Honour understood was before her on 6 July 2017, including by way of his oral and other submissions and arguments, and with which she dealt. 13 There are two sets of Mr Matsen's handwritten submissions which he identified as possibly not having reached her Honour on 6 July 2017. The first set noted that Mr Matsen had sought legal advice as to whether, on 29 July 2016, he should agree to the making of the orders. Her Honour dealt with that at [16] of her reasons quoted above. Next, it complained about the conduct of the mediation in the same way in which Mr Matsen has consistently complained about that. Her Honour dealt with that matter in detail in her reasons. Last, it referred to the Australian Taxation Office's finding that Mr Matsen was in a relationship of interdependency with his son. As I have noted, her Honour rejected that evidence in [4] of her reasons. Thus, her Honour actually considered each argument in those submissions and took them into account in deciding to refuse Mr Matsen's application on 6 July 2017. 14 The second set of submissions of four pages dealt with Mr Matsen's complaints about the conduct of the mediation in a way that elaborated once more his same substantive complaints. It concluded with his request to present oral evidence to the Court in the proceeding. Mr Matsen did not complain before me that her Honour had refused to allow him to put whatever evidence he wanted to before her. 15 In my opinion, all of what Mr Matsen identified as being material that he claimed was not before her Honour either was actually before her Honour or was in substance before her Honour in a different form, and was considered by her. None of that material is expressed in a way that would have made any difference to the result if, which I am not satisfied occurred, somehow it was not before her Honour. 16 Her Honour applied, as she was bound to do, the decision of the High Court in Harvey 95 CLR 235 in considering her power to set aside the consent orders. She found, correctly, that she had no such power on the material before her. The primary judge also found that the evidence fell well short of providing any basis on which it could be inferred that the Registrar had applied any improper pressure to Mr Matsen. Her Honour also concluded that her decision to refuse to set the consent orders aside was in the interests of justice. I have no doubt that on this aspect her Honour's decision was also correct, but as she recognised, the Court is not exercising a discretion in such a case, it is simply acting on whether or not Mr Matsen has established a basis to set aside the contract which Mr Matsen entered into pursuant to which the Court made the consent orders. There is no evidence that he was not capable of forming a consent. 17 In those circumstances, I am of opinion that there is not the slightest basis on which to conclude that there is any arguable error in her Honour's reasons. Indeed, I am satisfied that the primary judge was correct to find as she did. Nor, in my opinion, is there any basis put forward by Mr Matsen to explain why he should be given an extension of time in which to file an appeal that, on the material before me, is so flimsy and weak that it can be described as hopeless and vexatious. 18 For these reasons, I order that the application for an extension of time and leave to appeal be refused. Costs 19 On 14 August 2017, Ms Bennett made an offer to compromise under Pt 25 of the Federal Court Rules 2011 on the basis that the application for an extension of time and leave to appeal be dismissed and that each party bear their own costs. The offer was open for 14 days after service of the offer. The offer was sent by post to Mr Matsen as well as by email to a friend of Mr Matsen to whom emails had been sent. Mr Matsen accepts that he received the offer. 20 Section 160(1) of the Evidence Act 1995 (Cth) creates a presumption that a postal article sent by prepaid post addressed to a person at a specified address in Australia is received at that address on the fourth working day after having been posted. Accordingly, I find that Mr Matsen received the offer on 18 August 2017. Mr Matsen had until 11.00am on 22 August 2017, being the second business day after the offer was served, to accept it. He did not. The offer represented a real compromise. It follows that, pursuant to r 25.14(3), Mr Matsen, up to 11.00am on 22 August 2017, being the second business day after the offer was served, is liable to pay Ms Bennett's costs on a party and party basis and thereafter to pay those costs on an indemnity basis. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 21 December 2017