FEDERAL COURT OF AUSTRALIA

Hourn v Farm Plan Pty Limited [2003] FCA 1122

SUPERANNUATION – Superannuation Complaints Tribunal – appeal – decision of trustee to pay benefit from fund to deceased’s companion – whether Tribunal failed to have sufficient regard or give sufficient weight to evidence – such ground fails to raise a question of law – whether Tribunal failed to carry out duty to inquire – no such duty existed in the circumstances

Superannuation (Resolution of Complaints) Act 1993 (Cth) s 11, 12, 24, 25, 36, 37, 45, 46

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 applied

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited

Craig v South Australia (1995) 184 CLR 163 applied

Luu v Renevier (1989) 91 ALR 39 cited

McAuliffe v Department of Social Security (1992) 28 ALD 609 cited

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

Minister for Immigration Ethnic Affairs v Teoh (1995) 183 CLR 273 applied

Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 referred to

Roy v Sturgeon (1986) 11 NSWLR 454 cited

Videto v Minister for Immigration & Ethnic Affairs (1985) 8 FCR 167 cited

Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 considered

PETER JAMES HOURN v FARM PLAN PTY LIMITED and TANYA KLENE

W421 of 2001

RD NICHOLSON J

16 OCTOBER 2003

PERTH

THE COURT ORDERS THAT:

1.                  The appeal from the decision of the Superannuation Complaints Tribunal given on 30 October 2000 be dismissed.

2.                  The applicant pay the first respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an ‘appeal’ brought in reliance on ss 45 and 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (‘the Act’) from a decision of the Superannuation Complaints Tribunal (‘the Tribunal’) given on 30 October 2000 whereby the Tribunal affirmed a decision of the first respondent.  That decision was to pay a death benefit of $31 700 to the second respondent as the deceased’s ‘companion’. 

BACKGROUND CIRCUMSTANCES

2                     On 29 November 1996 Peter John Hourn, the son of the applicant died.  He was aged 28 years.  At the time of his death he was a member of the Australian Primary Superannuation Fund (‘the Fund’).  A benefit of $31 700 was due to him from the Fund. 

3                     On 24 July 1997 the first respondent as trustee of the Fund proposed that all of the benefit go to the second respondent.  After seeking further information from the parties, it then proposed that 50% be paid to the applicant and 50% to the second respondent.  The applicant objected to this split. 

4                     The minutes of the meeting of the first respondent held on 29 January 1998 record that the directors of the first respondent concluded from the evidence on hand that a de facto relationship existed between the deceased and the second respondent and that she was financially dependent to some extent on him, despite the applicant as the father of the deceased questioning that fact.  It was noted there were no children as a result of the de facto relationship.   The first respondent’s decision was that it was reasonable and fair that the benefit should be paid as to 50% to the second respondent and 50% to the applicant.  This decision was objected to by the applicant’s letters of 20 March 1998 and 15 April 1998 and the first respondent’s letter of 10 April 1998.

5                     On 28 April 1998 the first respondent reconsidered the matter and decided to pay the whole of the death benefit to the second respondent.  In the minutes of the first respondent on that date it was recorded:

‘After weighing up the evidence, the Trustee considered that [the second respondent] had proved that she was in an ongoing de facto relationship with the deceased.  In addition she had been emotionally and financially dependent on the deceased at the time of his death which was not the case of the father.  The Trustee resolved to allocate the insured benefit 100% to [the second respondent] in the knowledge that she may need to make application for Testator’s Family Maintenance within the Supreme Court should this matter be further disputed.’

6                     On 9 June 1998 the applicant objected to that decision.  On 20 August 1998 the first respondent reaffirmed the decision to pay all the benefit to the second respondent. 

RELEVANT TRUST DEED PROVISIONS

7                     The Trust Deed in effect at the date of death was that amended to 4 March 1996.

8                     Clause 1.1 of the Deed provided the following definitions:

‘‘Dependant’means:

(a)       a Spouse;

(b)       a Child; and

(c)        any other person who the Trustee determines was dependent on a Member, or whom the Member has a legal or moral obligation to support, at the relevant date.

…

‘Relevant Law’ means:

(a)       the SIS Act;

(b)       the Tax Act; and

(c)        any other Commonwealth or State law or administrative rulings, circulars, or guidelines which govern superannuation and which apply to he Fund or any other present, future or proposed legal requirements which the Trustee is legally obliged to comply with or which the Trustee must comply with to obtain the maximum Tax concessions available to the Fund.

‘SIS’ means the Superannuation Industry (Supervision) Act 1993 (Cth)

‘Spouse’means, in relation to a Member:

(a)       a husband, wife, widower or widow of the Member; and

(b)       a person who, though not legally married to the Member, in the opinion of the Trustee lives or lived with the Member as at the relevant date on a bona fide domestic basis as the husband or wife of that Member;

‘Tax Act’ means the Income Tax Assessment Act 1936 (Cth).’

9                     Clause 1.2 of the Trust Deed provided:

‘An expression used in this Deed which is defined in the Relevant Law has the same meaning as this Deed unless the Context otherwise requires.’

10                  Clause 10.5 read:

’10.5    Payment of death benefits

(a)       Subject to clause 10.5(b), the Trustee may pay the death benefits in respect of a Member to either or both of the following:

            (1)        the Member’s legal personal representative

(2)               one or more of the Member’s Dependants,

in such proportions as the Trustee, in its absolute discretion, determines.

(b)       The Trustee may pay a Member’s death benefits to any other person where permitted by the Relevant Law.’

11                  Given the above definition of ‘relevant law’, I accept the submission for the first respondent that such law must be such as governs superannuation and applies to the Fund and does not bring into consideration for application other Commonwealth or State legislation including in particular the definitions in the Social Security Act 1947 (Cth) and the Evidence Act 1995 (Cth).

TRIBUNAL REASONING

12                  The matter came before the Tribunal as the consequence of a complaint by the applicant dated 29 May 1998.  The Tribunal approached the complaint by identifying the key issue as being whether or not the deceased was, at the time of his death, in a de facto relationship with the second respondent.  In relation to evidence directed to this issue, the Tribunal stated that the second respondent had enclosed her own statutory declaration and that of eleven other people, the main evidence from these being set out in the reasons of the Tribunal.  In opposition, the Tribunal had before it a statutory declaration from the applicant and from a friend of the deceased.  The principal submission made by the applicant as complainant before the Tribunal was that his son was not in a de facto relationship with the second respondent and that the ten statutory declarations produced some twelve months after his son’s death should be treated with suspicion. 

13                  In its reasoning the Tribunal took account of what was said by Powell J in Roy v Sturgeon (1986) 11 NSWLR 454 in relation to the requirements necessary to establish a de facto relationship.  From that it identified the following factors requiring consideration:

‘

·        the duration of the relationship;

·        the nature and extent of the common residence;

·        whether or not a sexual relationship existed;

·        the degree of financial interdependence, and any arrangements for support between or by the parties;

·        the ownership, acquisition and use of property;

·        the procreation of children;

·        the performance of household duties;

·        the degree of mutual commitment and support;

·        reputation and ‘public’ aspects of the relationship.’

It stated that the fact that a relationship may only be short did not preclude it from being classed as a de facto relationship.  After consideration of the evidence before it the Tribunal concluded:

‘On balance the Tribunal believes the evidence provided in a number of statutory declarations established the existence of a de facto relationship and some level of financial dependency.  In particular, the declarations from DS, the Deceased’s Employer and TF, the Property Manager, were helpful as they seemed to be sufficiently removed from the apparent animosity between the parties.  In addition there was a pattern of consistent information about the use of unit 7B together, the subletting of 7A and the involvement of the Deceased with the care of the Companion’s daughter.

Finally both BR and the Complainant acknowledge a level of involvement between the Deceased and the Companion over the period.  Comments about tensions and the intention of the Deceased to break off the relationship could be true but do not, as with a marriage, mean that the de facto relationship did not exist.

For these reasons the Tribunal concludes that the decision of the Trustee to pay the benefit arising from the death of the Deceased in full to the Companion was fair and reasonable in its application to the Complainant.’

14                  Accordingly the Tribunal, in a decision dated 30 October 2000, affirmed the decision of the Trustee on the grounds that it was fair and reasonable. 

AMENDED GROUNDS OF APPEAL

15                  The grounds of appeal as amended during the hearing focus on two issues.  The first is that Tribunal failed to have sufficient regard or give sufficient weight to independent evidence which supported the conclusion that there was no financial dependence and no de facto relationship between the deceased and the second respondent.  The second is that the Tribunal erred in making a determination which overlooked relevant matters and in particular failed to make inquiries of a specified kind. 

ALLEGED FAILURE TO HAVE SUFFICIENT REGARD OR GIVE SUFFICIENT WEIGHT TO EVIDENCE

whether error of law

16                  It is submitted for the first respondent that this ground of appeal can be simply disposed of on the basis that it goes to the ‘weight’ or ‘regard’ which the applicant contends ought to have been given to certain aspects of the evidence and that such issues are not ‘a question of law’ within the meaning of s 46 of the Act.  No submissions were made referring to appropriate authority.  I take my guidance from what was said by Mason CJ in the oft-cited passage in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 – 357:

‘The question whether there is any evidence of a particular fact is a question of law:  McPhee v S Bennet Ltd (1934) 52 WN (NSW) 8 at p 9; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at pp 137 – 138.  Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law:  Australian Gas Light; Hope v Bathurst City Council (1980) 144 CLR 1 at pp 8-9.  This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions:  Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at pp 155, 157, 160.  So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law:  Sinclair v Maryborough Mining Warden.

But it is said that “[t]here is no error of law simply in making a wrong finding of fact”:  Waterford v The Commonwealth, per Brennan J.  Similarly, Menzies J observed in Reg v District Court; Ex parte White:

            “Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record.  To establish some faulty (e.g. illogical) inference of fact would not disclose and error of law.”

Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law.  So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.’

17                  Mason CJ continued at 356 by referring to statements in English cases which support a ‘no sufficient evidence’ test and noted that no occasion had then arisen to determine whether these were expressive of what is or should be the law of Australia.

18                  The more recent decision of the High Court in Craig v South Australia (1995) 184 CLR 163 at 179 does not provide support for the ground first relied upon here.  In Craig the majority of the High Court identified error of law of a jurisdictional character as existing when an administrative tribunal identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material, ‘at least in some circumstances, makes an erroneous finding or [reaches] a mistaken conclusion’ so that it exceeds its authority or powers.  While the scope of the parenthetical words are not yet known, I do not understand any of these tests as regularly applied to extend to permitting a court on review to engage in merits review.

19                  In my view there has not been any development of the law to make appropriate the grounds of review of ‘failure to have sufficient regard or give sufficient weight’.  Those words in themselves invite the appellate Court to engage in merits review rather than, as its jurisdiction permits, consider questions of law.

20                  Furthermore, given the way the submissions are cast on this ground, it should be borne in mind that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to ascertain whether some inadequacy may be gleaned from the way in which the reasons are expressed:  Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; and McAuliffe v Department of Social Security (1992) 28 ALD 609 at 616.

21                  Although this ground should therefore be dismissed, in deference to the submissions I turn briefly to the particulars. 

SOURCE AND NATURE OF EXPENSES

22                  One particular contends the second respondent did not disclose the source of her income and the level thereof and the items of her expenses and likewise there was no disclosure of the deceased’s source and level of income and the item of his expenses.  It is also contended that during the period of their relationship, the second respondent received social security payments and was not supported by the deceased. 

23                  Evidence relating to receipt by the second respondent of social security payments during the period of her relationship with the deceased was noted in two places in the course of the reasons of the Tribunal when it set out the content of statutory declarations.  The material and submissions contending that the deceased did not support her are referred to in those reasons.  It was for the Tribunal to weigh that evidence and to arrive at its determination of the issue.

24                  In the written submissions for the applicant in reply, it is submitted that the Tribunal had ‘no regard to the second respondent’s independent income, the source of that income and the significance thereof’.  That is not what this ground of appeal addresses; it is not a ‘no evidence’ ground.  Furthermore, it is contrary to the evidence of the Tribunal’s reasons which show there was evidence raising the issue.

SEPARATE RESIDENCES

25                  The next particularisation contends there was a failure to have sufficient regard or give sufficient weight to the fact that the second respondent and the deceased had each retained their own separate residence up to 28 November 1996. 

26                  The evidence that the second respondent and the deceased continued to lease their own separate residences up to 28 November 1996 is referred to in the Tribunal’s reasons.  Evidence that they lived in their own residences up to that date (an assertion which the Tribunal did not accept) is also referred to in the Tribunal’s reasons.  There was evidence, including the fact that the deceased sublet his unit to a friend which covered his costs. 

27                  For the applicant it is said that the Tribunal should have taken into account that the mere fact that the two properties were rented evidenced an absence of commitment and dependency.  That is not an identification of an alleged error of law and the Tribunal was entitled, and did, reach its conclusions on the issue. 

ABSENCE OF RELATIONSHIP ON A BONA FIDE DOMESTIC BASIS

28                  It is then contended that by reason of the foregoing matters the only fair and reasonable conclusion on the evidence was that the second respondent was not financially dependent on the deceased and not in the relationship with the deceased on a bona fide domestic basis.  That is a contention that the Tribunal should have reached a different conclusion on the evidence to that which it did.  No error of law follows from the contention. 

FAILURE OF INQUIRY

29                  The second ground of appeal relies on error of law arising from the Tribunal having ‘overlooked relevant matters’.  That, however, is not a reliance on a failure to take account of relevant material because the applicant goes on to identify certain material which he says would have come to light had certain inquiries been made.  The focus of the ground is what is said to be the failure to make those inquiries.  The alleged failures of inquiry were referrable to Homeswest assistance to the second respondent in relation to bond assistance; to the real estate agent for rental and like records; to the second respondent for financial records and her financial position and whereabouts, movements and living arrangements; and to the Department of Social Security.

30                  The applicant contends that the duty to inquire arises from the nature of the statutory provisions in accordance with which the Tribunal was bound to act.  It is appropriate to turn, therefore, to the provisions of the Act which are relevant or otherwise relied upon.

31                  Section 11 of the Act specifies Tribunal objectives in the following terms:

’11       Tribunal objectives

            The Tribunal must, in carrying out its functions or exercising its powers under this Act, pursue the objectives of providing mechanisms for:

(a)               the conciliation of complaints, and

(b)               if a complaint cannot be resolved by conciliation:

(i)                 review of the decision or conduct to which the complaint relates; or

(ii)               if an arbitration agreement refers the complaint to the Tribunal for arbitration – the arbitration of the complaint;

            that are fair, economical, informal and quick.’

32                  Section 12(1) describes the functions of the Tribunal in the following terms:

‘12(1)  The functions of the Tribunal are:

(a)               to inquire into a complaint and to try to resolve it by conciliation; and

(b)               if the complaint cannot be resolved by conciliation:

(i)                 to review the decision or conduct to which the complaint relates; or

(ii)               if an arbitration agreement refers the complaint to the Tribunal for arbitration – to conduct an arbitration in respect of the complaint; and

(c)                any functions conferred on the Tribunal by or under any other Act.’

33                  The provision of information and documents to the Tribunal is dealt with in ss 24 and 25.  Section 24 of the Act creates an obligation, relevantly, on a trustee within 28 days after receiving notice of a complaint to give to the Tribunal a copy of all documents or parts of documents in the possession of the trustee that are considered by it to be relevant to the complaint.  Section 25 provides a power for the Tribunal to obtain information and documents.  In particular, pursuant to subs (2) and subs (3) of that section, the Tribunal is empowered by written notice to require the giving of information or the production of documents from both the person whose decision or conduct was complained of or a person other than the person whose decision or conduct was complained of.

34                  Section 27 provides that if a complaint has not be withdrawn and the Tribunal is satisfied it can deal with the complaint, it must ‘inquire’ into the complaint and try to settle it by conciliation.  Where conciliation fails to settle a complaint there is an obligation arising under s 32 for the Tribunal Chairperson to fix a date, time and place for a review meeting.  Division 2 of Pt 6 of the Act sets out provisions on how the Tribunal must inform itself about the decision or conduct under review.  Section 33 provides that a party to the review meeting may make written submissions to the Tribunal for the purposes of the review meeting.  Section 34(1) provides that subject to subs (2), the Tribunal must conduct a review meeting ‘without oral submissions from the parties’.  Subsection (2) permits the Tribunal, if it thinks necessary, to make an order allowing the parties to make oral submissions to the Tribunal at the review meeting and subs (3) requires notice to be given of such submissions.

35                  Division 3 of Pt 6 contains provisions concerning the review meeting.  Section 36 provides:

’36       Meeting procedure

            The Tribunal, in reviewing a decision or conduct:

(a)               is not bound by technicalities, legal forms or rules of evidence; and

(b)               is to act as speedily as proper consideration of the review allows, having regard to:

(i)                 the objectives laid down in section 11; and

(ii)               if the complaint relates to a fund – the interests of all the members of the fund; and

(c)                may inform itself of any matter relevant to the review in any way it thinks appropriate.’

36                  Section 37 sets out the Tribunal’s powers in relation to complaints under s 14.  Subsection (5) reads:

‘(5)      The Tribunal must not do anything under subsection (3) that would be contrary to law, to the governing rules of the fund concerned and, if a contract of insurance between an insurer and trustee is involved, to the terms of the contract.’

Subsection (3) provides that on reviewing the decision of a trustee and others the Tribunal must make a determination affirming the decision, remitting it to the decision-maker, varying it or setting aside and substituting a decision. 

37                  It should also be mentioned that by s 38(1) it is required that a review meeting of the Tribunal is to be private.  By s 38(4) the Tribunal in giving directions must have regard, among other matters, to the need to protect that privacy. 

38                  The submissions for the applicant in contending for the existing of a duty on the Tribunal to inquire in the manner contended for in the ground of appeal relies in particular on the presence in the Act of the provisions of s 24, 25, 27 and 37(5). 

39                  With reference to the application of s 37(5), it is contended for the applicant that provision required the Tribunal, in the circumstances of this case, to investigate whether the second respondent was in receipt of social security benefits because, if it were established that she was, that would exclude her eligibility under the governing rules.  That submission is in fact a shorthand contention that if the proof of social security benefits had been established in evidence before the Tribunal, there would be a failure by the second respondent to qualify as a ‘spouse’ or a ‘dependant’.  That, however, is not the case as examination of those definitions makes apparent.  A spouse means, in par (b), a person who ‘in the opinion of the Trustee lives or lived with the Member as at the relevant date on a bona fide domestic basis as the husband or wife of that Member’.  A dependant requires a determination by the trustee of the state of dependency or alternatively includes a person to whom ‘the Member has a moral or legal obligation to support, at the relevant date’.  It is simply not the case that inquiry yielding evidence concerning receipt of social security benefits by the second respondent which the applicant says may have resulted would necessarily have had the effect contended for.  In any event, for the first respondent it is contended that s 37(5) applies only to the circumstances of operation of s 37(3), that is on reviewing the decision, and does not have application to the conduct of the review itself.  It is unnecessary to determine that issue of statutory construction.

40                  The case of the applicant in support of a duty to inquire starts from the proposition that the Tribunal’s only consideration of the issue of financial dependency, whether in a de facto relationship or not, was based on a comparison of statutory declarations.  It is said that the Tribunal made no attempt to corroborate material expenses in such statutory declarations.  It is submitted this occurred in circumstances where the statutory declarations made apparent evidentiary difficulties.  Further, there was a claim before the Tribunal that the second respondent said at least a portion of her income at the time of the deceased’s death was from part-time work.  It is submitted that neither the allegation of the second respondent’s receipt of social security nor the assertion of the receipt of an independent income by the second respondent was tested by the Tribunal and nor was it investigated, although it was the case that the Tribunal considered a trustee should seek evidence concerning the existence of a de facto relationship or financial dependency.  It is said, for the applicant, that the glaring failure by the Tribunal to require the production of relevant documents by the second respondent, if rectified, would have established the level of financial dependency by her on the deceased, if any, and the basis upon which the second respondent received her independent income.  This, it is said, amounts to a failure by the first respondent and the Tribunal to come to grips with the nature of the process required to test the applicant’s complaint.  It is submitted that in accordance with its obligations flowing from s 27 and s 37(5), the Tribunal was required to engage the substance of the complaint by requiring the production of, and considering, the information identified in this ground. 

41                  The submissions for the applicant rely in particular on the decision of Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169 which suggested that where it is obvious material is readily available which is centrally relevant to the decision to be made, to proceed to the decision without making any attempt to obtain that information may properly be described as an exercise of the decision making power in a manner so unreasonable that no reasonable person would have so exercised it.  Here there is no evidence that the information was ‘readily available’ although the Court is impliedly invited to infer that it would have been known to the second respondent and so readily available. 

42                  There seems to me to be four reasons why this second ground of appeal cannot succeed. 

43                  First, it is clear that the provisions of the Act do not mandate an inquiry.  Rather, the provisions facilitate such inquiry so it is dependent upon the effect of those provisions in the context of the common law as to whether they can give rise to any obligation to consider whether they should be exercised in a particular way. 

44                  Secondly, the common law in Australia has not been encouraging to the establishment of a duty to inquire in the absence of a statutory provision imposing such a duty:  cf Minister for Immigration Ethnic Affairs v Teoh (1995) 183 CLR 273.  In their reasons for decision in Teoh at 290, Mason CJ and Deane J, starting from an acceptance of the correctness of the approach of Wilcox J in Prasad at 169 in an appropriate case, stated that Teoh was not a case which was argued on the ground of Wednesbury unreasonableness.  They added that they could not see how the suggested failure to initiate inquiries could be supported on the footing that there was some departure from the common law standards of natural justice or procedural fairness.  Toohey J at 302 said that generally speaking, it is not the decision-maker’s duty to initiate inquiries, relying on Videto v Minister for Immigration & Ethnic Affairs (1985) 8 FCR 167 at 178.  In dismissing the appeal in Teoh he did not rely on any failure by the delegate to initiate inquiries and obtain reports.  Gaudron J at 304 stated that if there was a common law right requiring children’s best interest to be taken into account in all decisions by governments and government agencies, it may be that a decision-maker is required, at least in some circumstances, to initiate appropriate inquiries.  In the absence of any such right the case fell to be decided by reference to the requirements of natural justice. 

45                  McHugh J at 321 said:

‘In a number of cases, the Federal Court has found that a failure to make further inquiries constituted an improper exercise of the power granted by the statute or a failure to take into account a relevant consideration in exercising that power.  In those cases, the Federal Court has held that further inquiries should have been made because (1) a specific matter was raised by an applicant or was within the knowledge of the Minister and that matter could not be properly considered without further inquiry, eg. Lek v Minister for Immigration, Local Government and Ethnic Affairs [No 2] (1993) 45 FCR 418, Akers v Minister for Immigration & Ethnic Affairs (1988) 20 FCR 363; cf Singh v Minister for Immigration & Ethnic Affairs (1987) 15 FCR 4, (2) the information before the Minister was not up to date, eg. Tickner v Bropho (1993) 40 FCR 183 or (3) the absence of information before the Minister resulted from the Minister’s officers misleading the applicant, eg. Videto v Minister for Immigration & Ethnic Affairs (1985) 8 FCR 167.  This case does not fit into any of those categories.’

He also added that while it may have been that further inquiries concerning the plight of the family there in issue may have led the delegate to place more weight on what would happen to the children if the application were refused, that was a matter of weight which was for the decision-maker and not for the courts in an application for judicial review.

46                  In the decision in Prasad, Wilcox J preferred an intermediate position to that which is relied upon for the applicant, namely, that the Court is entitled to consider those facts which were known to the decision-maker, actually or constructively, together only with such additional facts as the decision-maker would have learned but for any unreasonable conduct by him.  The dicta of Wilcox J was obiter.

47                  That dicta was recently considered in Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 at pars 622 – 629.  At par 625 Tamberlin J said:

‘His Honour’s remarks were qualified.  Although his Honour made the observations in the context of a Wednesbury unreasonableness claim, the existence of a duty, in some circumstances, to make further enquiries can be accepted, but such a duty can also be founded on the ground of a duty to take into account relevant considerations:  See the observations of Black CJ in Tickner v Bropho (1993) 40 FCR 183, at 197 – 199 and also Luu v Renevier (1989) 91 ALR 39 at 50.’

48                  In the case before Tamberlin J, the issue was whether the regulating authority ought to have carried out further investigations by way of constructing a methodology and gathering empirical data to assess the effects on competition and efficiency and to analyse the concept of markets.  Tamberlin J concluded that that was not a case where it could be said to be obvious that material was readily available which was centrally relevant to the decision to be made or that it was a case of a simple short inquiry.  Moreover, he said, that in undertaking the consultation process and other investigations made, there had been an attempt to obtain relevant information.  In his view it could not be said that there was a duty to make any further enquiries or carry out further work.  Accordingly, it could not be said the failure to do so was so unreasonable as to render the decision nugatory or to constitute a failure to take into account relevant considerations in the exercise of the decision-making powers.

49                  In his reasons in Visa International Tamberlin J pointed out that Aronson and Dyer in Judicial Review of Administrative Action, 2^nd edn, 2000 at 229 noted that the argument that the decision-makers are under an implied obligation to make inquiries before coming to their decision rarely succeeds and that the normal rule is to allow decision-makers to do no more than react to material provided to them.  If there are any exceptions, whether they are founded on Wednesbury principles or the duty to take into account all relevant considerations, there is no clearly established basis for the application of such exceptions in law.

50                  Thirdly, and significantly, there is no evidence on this appeal of any submission having been made on the part of the applicant to the Tribunal that it should exercise its powers to obtain information or documents and that it failed to do so.  There is no evidence the hearing was conducted on that basis.  If there were evidence that such a submission had been put as forcefully as the applicant contends and the Tribunal had declined to take that step, the possibility of a breach of a duty to inquire may have been enhanced in terms of its arguability. 

51                  Fourthly, even if the law permits of a duty of inquiry to arise in the absence of any submission inviting inquiry, the circumstances here were not such as to give rise to the duty.

52                  The present case is not one within any of the three categories identified by McHugh J in Teoh at 321.

53                  This case has not been expressly argued on the basis of Wednesbury unreasonableness.  But, in the light of the evidence which was before the Tribunal and to which some reference will be made below, I do not consider that this is a case where it could be said that the decision was so unreasonable that no reasonable decision-maker could have arrived at it.  This is not a case where the decision of the Tribunal lacked a legally defensible foundation in the factual material or in logic:  Luu at 50.

54                  If the foundation of the duty was to lie on a duty to take into account relevant considerations, the evidence which was before the Tribunal touched on the relevant considerations.  If it is the case that it did not go as far as the applicant would want or an inquiry may have yielded, it nevertheless was relevant evidence. 

55                  Turning to each of the sub-grounds of this ground it is useful to consider in what way inquiries in the directions proposed would have been relevant.  So far as concerns the Department of Social Security or other welfare authorities, there was already evidence before the Tribunal, provided by the applicant, that the second respondent was in receipt of certain welfare payments.  (For the first respondent it is contended this was not disputed by the second respondent but the applicant contends there was no such concession by the second respondent or any evidence on which the Tribunal acted).

56                  For the first respondent it is contended no one raised the issue of bond assistance by Homeswest before the Tribunal and that it is incorrect to state that the grant or otherwise of a Homeswest bond suggests the second respondent ‘was single from a third party’.  In any event, receipt of bond assistance would not necessarily be inconsistent with the conclusion of the Tribunal. 

57                  As to the proposed inquiries for bank records, they appear to seek verification of evidence of financial information in relation to which matters the first respondent contends there was no reason to question.

58                  As to the alleged duty to obtain the financial position of the second respondent on the date of the deceased’s death, the submissions for the applicant have not endeavoured to explain the asserted relevance. 

59                  As to the duty to inquire as to the whereabouts, movements and living arrangements of the second respondent on that date, there is no apparent case for such inquiries. 

60                  So far as these contentions would require the Court to have resort to the full record of the Tribunal hearing, there is no basis on which they can be resolved because that record is not before the Court.  However, the contentions raise the prima facie position that the information and documents sought may not have been inconsistent with the conclusions of the Tribunal or determinative of them.  This is because the evidence sought would not necessarily have been conclusive in determining that the requirements of the definition of ‘spouse’ and of ‘dependant’ did not apply to the second respondent.

61                  The result is that in the present case the Tribunal identified all of the relevant evidence to which it had regard.  It addressed itself to the right questions on that evidence.  The Tribunal had a power to make further inquiry but it was not obliged to exercise it nor was its decision in error of law as a consequence.

CONCLUSION

62                  For these reasons I consider the application by way of appeal should be dismissed. 

Associate:

Dated:              16 October 2003