FEDERAL COURT OF AUSTRALIA

Marks v CSS Board of Trustees [2005] FCA 797

SUPERANNUATION – role of Superannuation Complaints Tribunal in fact finding – where Tribunal did not decide on "correct" version of events – where Tribunal did not accept one version of events over another – where Tribunal may only have determined whether trustee's determination of factual issues fair and reasonable as a part of evaluating whether decision was fair and reasonable – Tribunal should assess evidence and make findings

Superannuation (Resolution of Complaints) Act 1993 (Cth), s 37

Superannuation Act 1976 (Cth), s 157

National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562 cited

Hornsby v Military Superannuation and Benefits Board of Trustees No 1 (2003) 126 FCR 484 cited

JOSEPH ANTHONY MARKS v CSS BOARD OF TRUSTEES AND SUPERANNUATION COMPLAINTS TRIBUNAL

VID 1451 OF 2004

MOORE J

17 JUNE 2005

CANBERRA

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL

THE COURT ORDERS THAT:

1.      The decision of the Superannuation Complaints Tribunal of 26 October 2004 in proceedings 03-1292 be set aside.

2.      The matter be remitted to the Superannuation Complaints Tribunal to be determined according to law.

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

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL

REASONS FOR JUDGMENT

1                     This judgment concerns an appeal under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) ("the Complaints Act") from a decision of the Superannuation Complaints Tribunal ("the Tribunal") of 26 October 2004.  On 17 March 1989 the applicant was retrenched and deemed to have retired involuntarily.  The applicant had earlier made an election to receive benefits under the Superannuation Act 1976 (Cth) ("the Superannuation Act") in a lump sum. The election was made on 13 March 1989.  On 25 October 1996, the applicant sought the cancellation of his election, claiming he had received defective and inadequate information at the time.  The trustee refused to cancel the applicant's election under s 157 of the Superannuation Act and on 26 October 2004 the Tribunal affirmed the decision of the trustee. 

2                     In this matter, the trustee is the CSS Board ("the Board"), established by s 27A of the Superannuation Act, and administers the Commonwealth Superannuation Scheme ("CSS") in accordance with the provisions of that act and is responsible for the management and investment of the CSS Fund ("the Fund"). 

Background

3                     The following is a summary of the history of the matter and involves facts that appear not to have been in dispute before the Tribunal.  On 18 February 1963, the applicant commenced employment with the Australian Bureau of Statistics.  On 17 August 1963 he became an eligible employee, for superannuation purposes, and commenced contributing to the Fund one month later.  As mentioned above, on 17 March 1989, the applicant was retrenched and deemed to have retired involuntarily.  Two to three weeks before he ceased work, the applicant was provided with a Form S2RR "Involuntary Retirement Benefit Application" setting out the following election options:

·        Maximum Pension No Refund

·        Standard Pension and Refund

·        Lump Sum Only – No Pension

·        Preserve Superannuation Rights

Note 2 on that form stated "An election is not valid unless made within three months before and three months after the date of retirement."  The trustee accepted note 2 was an error as an election was required within one month before and 21 days after ceasing employment. 

4                     In mid January 1989 the applicant was provided with an estimate of the benefits he would receive were he to retire on 3 February 1989 and in respect of the Maximum Pension No Refund, Standard Pension and Refund and the Lump Sum Only - No Pension options.  The benefit the applicant would have been entitled to under the Preserve Superannuation Rights option was not provided to the applicant.  However, the applicant was provided with a table of information concerning the growth of a $10 000 investment at rates of interest between 1 per cent and 10 per cent, advice on how to calculate the estimated value for larger sums, a method for converting the lump sum into pension and a warning to have regard to the impact on inflation.  General advice was provided by the employer and included a seminar on 21 February 1989. 

5                     On 13 March 1989 on a Form S2RR, the applicant elected to receive his entitlements in a Lump Sum Only – No Pension.  Four days later, the applicant was retrenched and deemed to have retired involuntarily.  In July 1990 the Fund was closed to new members, remaining open to existing members.  In 1996 the applicant was employed by another employer and joined another fund (his previous fund was now closed to new members).  On 27 August 1997 the applicant retired from that employment at age 55.  On 25 October 1996 the applicant sought to cancel his election made on 13 March 1989.

6                     It is convenient, at this point, to set out s 157 of the Superannuation Act, as it then was.  The section provides:

(1)     Notwithstanding anything contained in this Act, where an election under this Act is made by a person after the expiration of the period allowed by or under this Act for the making of the election, and the Board is satisfied that in all the circumstances of the case it is desirable that the election should be recognized, the Board may direct that the election be treated as if it had been made within the period allowed and the election shall have effect accordingly.

(2)     Where a person who is entitled to make an election under a provision of this Act is, by reason of physical or mental incapacity, unable to make that election, the Board may, if it thinks it proper to do so, allow such other person as the Board thinks appropriate to make the election within such period as the Board allows, and, where the election is made by that other person, the election shall, for the purposes of this Act, be deemed to have been made by the first-mentioned person, and has effect accordingly.

(2A)  Subject to subsection (2B), where a person who is entitled to make an election under a provision of this Act, or a declaration under section 244, dies, without making such an election or declaration, before the end of the period (in this subsection called the given period) within which the election could have been made:

(a)   if the person is survived by a spouse—the spouse may make such an election within the given period or such longer period as the Board allows; or

(b)   if:

(i) the person is not survived by a spouse; or

(ii) the person is survived by a spouse but the spouse dies without making such an election or declaration;

and the person is survived by an eligible child or eligible children—a person authorised by the Board for the purposes of this subsection may make such an election or declaration within the given period or such longer period as the Board allows;

and, in that case, this Act has effect as if the election or declaration had been made by the first-mentioned person.

(2B)  Subsection (2A) does not apply in respect of an election under section 110T.

(3)     Where:

(a)   a person makes an election (whether before or after the commencement of this subsection) under section 62, 64, 68, 69, 71, 72, 76A, 83, 84, 86, 87, 92, 128, 137 or 139A;

(b)   the person who made the election, or another person (being a person who is prescribed or included in a prescribed class of persons), makes an application to the Board not later than 3 months after the day on which the election is made or the day on which this subsection comes into operation, whichever is the later, or within such further period as the Board, in special circumstances, allows, requesting that the Board cancel the election; and

(c)   the Board, having regard to such matters (if any) as are prescribed and such other matters as it considers relevant, is satisfied that the election should be cancelled;

the Board may direct that the election shall be cancelled and, if it so directs, this Act has effect as if the election had not been made.

7                     It can be seen that s 157(3)(b) requires that an application to the Board to cancel an election should be made no later than three months after the day on which the election is made unless the Board allows, in special circumstances, a further period.

8                     In this matter, the applicant sought to cancel his election over seven years after it had been made.  It was initially treated as an application under s 157(1) but later treated as an application under s 157(3)(b).  This characterisation of the application was not in issue in these proceedings and appears to be correct.  However, it was necessary for the applicant to obtain an extension of time for the purposes of s 157(3)(b).  The trustee initially declined to extend time because there were no "special circumstances".

9                     However, the matter came before the Tribunal and on 20 February 2002, it decided that there were "special circumstances".  On the question of delay the Tribunal said:

Delay in making the application

The Tribunal is also satisfied that there was no undue delay by the Complainant in making his application for cancellation.  It is plain that, even before he was actually terminated, the Complainant had shown a desire to change to preserving his benefits, but was effectively discouraged from doing so twice.

It is not surprising that he had then assumed that he could do nothing and therefore did nothing until informed in 1996 by an private sector adviser expert (sic) in the field (and author of some of the articles mentioned above) that he was entitled to apply under s.157. When he learned this, the Complainant applied promptly.

10                  The Tribunal, by this decision, determined both that there were "special circumstances" for the purposes of s 157(3)(b) and also that the trustee must determine the applicant's application in accordance with s 157(3)(c).  This led to a series of decisions culminating in the Tribunal's decision of 26 October 2004 to which these proceedings relate. 

Consideration

11                  The applicant represented himself in these proceedings and both the notice of appeal and his written submissions, were discursive and did not raise points arguably available in this appeal.  However, one, and possibly two issues of substance emerged from the case he presented.  In order to deal with the issues, it is necessary to refer to the approach of the Tribunal and parts of its decision.  Before doing so, it is convenient to refer to the legislative framework governing the operation of the Tribunal.  Section 11 of the Complaints Act identifies the Tribunal's objectives.  They are, relevantly, to conciliate complaints and if the complaint is not resolved by conciliation, to review the decision or conduct to which the complaint relates.  In relation to a review such as the present, the Tribunal's powers are set out in s 37 of the Complaints Act, which provides:

(1)  For the purpose of reviewing a decision of the trustee of a fund that is the subject of a complaint under section 14:

(a)   the Tribunal has all the powers, obligations and discretions that are conferred on the trustee; and

(b)   subject to subsection (6), must make a determination in accordance with subsection (3).

(2)  If an insurer or other decision-maker has been joined as a party to a complaint under section 14:

(a)   the Tribunal must, when reviewing the trustee's decision, also review any decision of the insurer or other decision-maker that is relevant to the complaint; and

(b)   for that purpose, has all the powers, obligations and discretions that are conferred on the insurer or other decision-maker; and

(c)   subject to subsection (6), must make a determination in accordance with subsection (3).

(3)  On reviewing the decision of a trustee, insurer or other decision-maker that is the subject of, or relevant to, a complaint under section 14, the Tribunal must make a determination in writing:

(a)   affirming the decision; or

(b)   remitting the matter to which the decision relates to the trustee, insurer or other decision-maker for reconsideration in accordance with the directions of the Tribunal; or

(c)   varying the decision; or

(d)   setting aside the decision and substituting a decision for the decision so set aside.

(4)   The Tribunal may only exercise its determination-making power under subsection (3) for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both, that the Tribunal has determined to exist in relation to the trustee's decision that is the subject of the complaint no longer exists.

(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.

(6)  The Tribunal must affirm a decision referred to under subsection (3) if it is satisfied that the decision, in its operation in relation to:

(a)   the complainant; and

(b)   so far as concerns a complaint regarding the payment of a death benefit—any person (other than the complainant, a trustee, insurer or decision-maker) who:

(i)      has become a party to the complaint; and

(ii)     has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person having an interest in the death benefit;

was fair and reasonable in the circumstances.

12                  It is now necessary to refer to the reasons for decision of the Tribunal of 26 October 2004.  The Tribunal's decision is in seven parts, namely "procedural matters", "complaint", "background", "trust deed", "issues", "Tribunal's deliberations", and "determination of the Tribunal".  In the Part headed "issues", the Tribunal commenced by dividing the matters the parties had raised into two areas.  The first was the availability of information and the understanding of the applicant of the nature and consequences of the election at the time he made it.  This is basically a repetition of the matters referred to in reg 5 of the Superannuation (Cancellation of Elections) Regulations.  The second area concerned matters that occurred after the applicant made his election.

13                  The Tribunal then set out a heading repeating, in summary form, the first area.  Under that general heading the Tribunal noted:

The Complainant's position can be summarised by the argument that he erred in his election due to:

·        the lack of information given by the Trustee, particularly in the benefit estimate, telephone advice from the Trustee and the actuarial table;

·        inaccurate advice from the personal adviser; and

·        time pressure placed on him by the Employer.

14                  Without setting out the extract in full, the Tribunal's treatment of the first area proceeded in the following way:

1.1              Information Given to the Complainant

General Advice

…

Form S2RR

…

Benefit Estimate

…

The Tribunal considers that the Trustee's view that it provided all the information it could have provided in respect of the deferred pension and it could not have calculated a definite figure for the deferred pension because the interest rate, inflation and exact time of payment were unknown at the time, was fair and reasonable in its operation in relation to the Complainant in the circumstances. 

Telephone Advice from the Trustee

…

Many of the issues in this complaint involved conflicting versions of events given by the Complainant and the Trustee.  It is not the responsibility of the Tribunal to decide on the 'correct' version, but rather to determine whether the Trustee's decision was fair and reasonable in its operation in relation to the Complainant in the circumstances.  In light of the above, the Tribunal is of the opinion that the Trustee's decision (that the Trustee had been available for telephone assistance to the Complainant) was fair and reasonable in its operation in relation to the Complainant in the circumstances.

1.2              Information Desired by the Complainant

Information to allow a Comparison of the Options

…

Disadvantage of not preserving

…

Actuarial Table

…

Information Now Available

…

1.3       Advice from the Private Adviser

…

1.4       Was the Complainant subjected to time pressure?

…

January 1989 Circular

…

The extent of the Time Pressure

…

Complaint about delays in Processing

…

While the Tribunal accepts that the Complainant may have been under some pressure to make his election before he ceased work, the evidence indicates that he had attended a seminar giving information about the early retirement offer and had even received a personal benefit statement two months prior to that date.  The Tribunal considers that this would have been adequate for him to start analysing his options prior to his formal offer on 7 February 1989.  Even after this formal offer, he had a further five weeks before his work terminated.

The Trustee clearly formed the view that the time period given to the Complainant to consider his options should not have been discounted because he had to work during the intervening period.  The Tribunal agrees, noting that most employees facing such a decision are still working.  (The Tribunal notes that the Complainant opted to be paid in lieu, rather than remaining at work during the notice period.)

For the reasons stated above, the Tribunal considers that the Trustee's decision that the Complainant was given adequate time within which to make an informed election was fair and reasonable in its operation in relation to the Complainant in the circumstances.

15                  The relevant parts of its reasons for decision dealing with the second area were as follows:

2.                  Other Relevant Matters - Events After the Election

…

2.1              Advice from Mr J

…

Although the Tribunal noted the responses of the Complainant in respect of some of the above submissions of the Trustee, the Tribunal considers that there was sufficient basis on which the Trustee could fairly and reasonably have reached the conclusion that there was no discussion between Mr J and the Complainant regarding the alteration of his election or, in the alternative, if there was such a conversation, according to Mr J's affidavit, the Complainant was clearly advised of his right to cancel his election.

2.2              Advice from Mr W

…

The Tribunal considers that there was also sufficient basis on which the Trustee could fairly and reasonably have reached the conclusion that there was no discussion between Mr W and the Complainant regarding the alteration of his election or, in the alternative, if there was such a conversation, the Complainant was not given incorrect advice by him.

16                  The Tribunal set out in brief, the remaining submissions it considered central to the complaint, and then its reasoning, as follows:

2.3               

…

TRIBUNAL’S DELIBERATIONS

The Tribunal’s function is to determine whether the Trustee’s decision to reject the Complainant's application to cancel his election was fair and reasonable in its application to the Complainant in the circumstances.  If it was, then under s37(6) of the Complaints Act, the Tribunal must affirm the Trustee’s decision.

In considering the complaint, the Tribunal took the whole of the evidence and submissions on the file into account.

In determining whether to cancel the Complainant's election, the Trustee was required to have regard to:

·        the availability of all information relevant to the making of the election (being a matter prescribed in the regulations);

·        the understanding of the nature and consequences of the election by the person who made the election (being the other matter prescribed in the regulations); and

·        such other matters as it considered relevant (as stated in the Superannuation Act).

Many of the issues in this complaint involved conflicting versions of events given by the Complainant and the Trustee.  It is not the responsibility of the Tribunal to decide which is the 'correct' version, but rather to determine whether the Trustee's decision was fair and reasonable in its operation in relation to the Complainant in the circumstances. 

…

17                  It can be seen that the Tribunal has, in relation to certain factual issues, expressed the opinion that the trustee's view was "fair and reasonable".  Thus, for example, it indicated that the trustee's view that it had provided all the information it could have provided about certain matters to the applicant, was "fair and reasonable".  In relation to the question of whether the appellant would have been able to receive telephone assistance from the trustee, the Tribunal thought the trustee's view that it had been available for telephone assistance was "fair and reasonable".  Similarly, on the questions of whether there had been a discussion between the applicant and Mr J and a discussion between the applicant and Mr W, the Tribunal indicated that the trustee's conclusion that there had been no discussions was "fairly and reasonably … reached".

18                  On one view, this formulation might be viewed as an adoption by the Tribunal of relevant findings of fact made by the trustee.  Such an approach would be consistent with the obligation of this Court not to scrutinise decisions of administrative tribunals with an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.  However, the difficulty is that it is clear from the Tribunal's reasons for decision that the formulation is used in circumstances where the Tribunal considered that it was not obliged, itself, to assess the material and form a view about what the basal facts were.  So much is apparent from the passage above (at [16]) concerning the telephone advice where the Tribunal indicates it is not for it to "decide which is the "correct" version".  That is a reference to competing versions of events.  In other words, the Tribunal was indicating that it did not have to make any assessment or determination about what had or had not occurred in relation to the applicant seeking and being given telephone advice.  Indeed in the earlier part of the Tribunal's reasons for decision set out above, headed "Tribunal's deliberations", the Tribunal made it clear that it did not consider it had to resolve which of the various conflicting versions of events should be accepted.  Rather, it implied it viewed its task as determining whether the trustee's determination of factual issues was fair and reasonable as part of evaluating whether the ultimate decision was fair and reasonable.

19                  In my opinion, this approach involves a misconception by the Tribunal of its function.  The role of the Tribunal was recently considered by a Full Court in National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562.  A trustee of a superannuation fund had decided that the claimant was not totally and permanently disabled based on an assessment of the insurer.  The disabling condition identified by the claimant was post-traumatic stress disorder.  The Tribunal concluded the decisions of the insurer and the trustee were not fair and reasonable. The Full Court described the powers and functions of the Tribunal in the following passage (at [11]-[12]):

The body the subject of the complaint is required to provide to the Tribunal documents that are relevant to the complaint (s 24) and the Tribunal is empowered to obtain further information or documents relevant to a complaint both from the body in relation to whom the complaint is made, and from other persons (s 25).

If conciliation (s 27) fails, then the Tribunal is to fix a review meeting, and to notify the parties accordingly (s 32).  Ordinarily, parties to the review are confined to making written submissions to the Tribunal for the purpose of the review meeting, but the Tribunal may, if it thinks it necessary, make an order allowing the parties to make oral submissions to the Tribunal at the review meeting (ss 33, 34).  In reviewing a decision or conduct, the Tribunal is not bound by technicalities, legal forms or rules of evidence, and may inform itself of any matter relevant to the review in any way it thinks appropriate (s 36).  A decision of the trustee or insurer as varied by the Tribunal, or a decision made by the Tribunal in substitution for a decision of the trustee or insurer is, for all purposes (other than the making of a complaint about the decision), taken to be a decision of the trustee or insurer as the case may be (s 41(3)).  The Tribunal’s powers in dealing with a complaint under s 14 are contained in s 37.  Its powers when dealing with complaints made under other sections of the Act are as set forth in s 37A and following.

In that matter, the Tribunal had formed the view that the decisions of the insurer and the trustee had not paid sufficient regard to the views of the psychiatrist treating the complainant and, accordingly, the decision was not fair and reasonable.  As to whether this approach was erroneous, the Full Court said (at [32]-[35]):

As Kirby J observed in Breckler at [88], if a particular decision is required by law, the Tribunal will not be able to exercise its powers under s 37(3)(b), (c) or (d) in relation to that decision because of the constraints imposed by s 37(5).  But the insurer was not required, as a matter of law, to reach any particular decision in the circumstances of the present case.  The issue with which it was confronted was an issue of fact.  In one sense its decision may have been “correct” as a matter of law in that it addressed the right question and there was material which supported the conclusion which it reached.  The decision may have been “correct” in the limited sense that it could not be impeached under the general law.  But the issue under s 37 is not whether the insurer’s decision is impeachable under the general law. The issue is whether the s 14(2) complaint has been made out and whether, for the purposes of s 37(6) the Tribunal is satisfied that the decision, in its operation in relation to the respondent, was fair and reasonable in the circumstances.  (We note that the present is not a case in which s 37(6)(b) is relevant.)  The Tribunal, under s 37(2) stands in the shoes of the insurer subject only to the constraints to which we have earlier referred.

Whether a decision, or its operation in relation to a person, is fair and reasonable in the circumstances involves a value judgment, the making of which is committed to the Tribunal.  The insurer’s decision involved elements of fact, degree, opinion or judgment.  A decision involving those elements is capable of being characterised as being unfair or unreasonable.

In any event this is not a case in which the Tribunal merely preferred one body of evidence over another.  The cause of the claimed incapacity was such that in the Tribunal’s view the treating doctor was in a position of advantage over the forensic psychiatrists.  In the Tribunal’s view, insufficient weight was given to the opinion of the treating psychiatrist in a situation where effective diagnosis and assessment could only be achieved over a period of time, once the patient’s trust had been gained.

It follows that we reject the submission that the Tribunal was not authorised to act in the way in which it did.

20                  The reasons of the Full Court in National Mutual Life Association of Australia Ltd v Campbell do not address directly the question of whether the Tribunal can or should (if it views the evidence differently) make findings of fact different or supplementary to any findings made by the primary decision maker except in one respect.  It indicated it had been open to the Tribunal to have acted as it had, which appeared to have involved concluding that, as a matter of fact, the treating psychiatrist was better placed than other specialists to make an assessment of the complainant’s condition.

21                  The role of the Tribunal in fact finding has more recently been addressed by Mansfield J in Hornsby v Military Superannuation and Benefits Board of Trustees No 1 (2003) 126 FCR 484.  In that case an applicant had sought a benefit on the basis that she had been the spouse of a member of the Military Superannuation and Benefits Scheme.  The member had committed suicide on 5 August 1997.  The application raised for consideration whether, at the time of the suicide, the applicant had been living with the deceased as his wife for a continuous period of less than three years at the date of death and had lived with the deceased as his wife on a permanent and bona fides domestic basis at that date.

22                  His Honour said, in relation to the role of the Tribunal as a finder of fact (as [18]-[20]):

…[A]s Kirby J pointed out in Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at [87]-[89], s 37(5) requires the Tribunal to form a view about the requirements of the applicable law, including the meaning of the rules of the fund, and to make findings of fact.  There may be circumstances where the opinion or judgment on a matter of fact required by the proper application of the rules of the relevant fund to be made by the Tribunal may lead it to the view that the operation of the decision under review is unfair or unreasonable.  And that may be so even if the primary decision-maker (the trustee) did not mistake its powers and obligations under the governing rules of the fund or did not misunderstand the law or did not misapply the law to the facts.

Consequently, the Tribunal may have to make its own findings of fact for the purpose of determining whether, in its opinion, the decision under review in its operation was fair and reasonable in the circumstances.  But it is necessary to make such findings of fact only for that purpose.  It does not decide afresh all findings of fact of the primary decision-maker as if that decision had not been made.  It does not, in that sense, simply stand in the shoes of the primary decision-maker.

Hence, under s 37, although the Tribunal is required to make its own decision in relation to the complaint, it is required to make only such findings of fact as are necessary for its decision.  It must do so upon the evidence before it.  In the light of such findings or conclusions as it has reached, the Tribunal must consider whether the decision it is reviewing, in its operation, was fair and reasonable in the circumstances:  Military Superannuation and Benefits Board No.1 v Stanger (2002) 68 ALD 12 at [21].  Section 37(6) requires that step.  Ultimately the object of the Tribunal’s review is to remove unfairness or unreasonableness in the decision under review.  See generally Briffa v Hay (1997) 75 FCR 428; Seafarers’ Retirement Fund Pty Ltd v Oppenhuis (1999) 94 FCR 594; National Mutual Life Association of Australasia Ltd v Campbell [1999] FCA 1717, affirmed on appeal National Mutual Life Association of Australasia Ltd v Campbell (2000) 99 FCR 562 and Lykogiannis v Retail Employees Superannuation Pty Ltd (2000) 97 FCR 361 at [48].

His Honour went on to conclude that the Tribunal had not erred in reaching the factual conclusions it had.  It is clear from this analysis that his Honour considered, in appropriate circumstances, it might be necessary for the Tribunal to make its own findings of fact.  It is true that his Honour later said (at [23]), without criticism, that the Tribunal had reached a conclusion that the decision of the Board that the deceased had regarded his marital relationship with the applicant as having broken down by 5 August 1997, was fairly and reasonably open to the Board.  In other words, his Honour appears to have viewed as unexceptionable, a conclusion of the Tribunal that a finding of fact (concerning the approach of the deceased to his relationship) of the Board was fair and reasonable.  However, even if his Honour's reasons should be read this way, the relevant finding was an encapsulation of the ultimate finding the Board, and later the Tribunal, had to make, namely whether the deceased and the applicant had been living on a bona fides domestic basis (as spouses) at the time of his death.  It is relatively clear that his Honour was not endorsing an approach that the Tribunal could, in relation to subsidiary issues of fact, simply express the view that a finding of the prior decision maker (whether the Board or a trustee) on any subsidiary issue of fact should be accepted and acted upon by the Tribunal simply because the Tribunal considered that the finding was fairly and reasonably open.

23                  Indeed, in the passage set out earlier (at [22]), it is clear that his Honour took the view, with which I agree, the Tribunal should assess the evidence itself and make findings.  That is not to say, of course, that it cannot accept findings made by the prior decision maker if it agrees with them.  However, s 37(6) of the Complaints Act does not authorise, in my opinion, the Tribunal simply reviewing all factual issues and indicating that findings by the prior decision maker were fair and reasonable.  That subsection is intended to operate on the ultimate decision made by the prior decision maker, namely the decision under review.  What the Tribunal must do is form a view about necessary facts, determine what the facts are and then by reference to those ascertained facts determine whether the decision of the prior decision maker was fair and reasonable in the circumstances.  The facts ascertained by the Tribunal constitute "the circumstances" by reference to which the Tribunal makes that evaluation.

24                  In the present case, the Tribunal did not approach the matter this way.  Accordingly, its decision should be set aside and the matter remitted to the Tribunal to be determined according to law.

25                  I should mention one further matter. The applicant criticised the Tribunal for reviewing events after the election decision.  The applicant submitted that in its reasons for decision of 26 October 2004, the Tribunal was considering issues that had already been considered by the Tribunal (differently constituted) in its earlier decision of 20 February 2002 when, on that earlier occasion, the Tribunal had determined that there were "special circumstances" to make a late request to cancel the election. 

26                  The matter was not fully argued and, accordingly, it is probably inappropriate to express a concluded view.  However, I do make the following observations.  Section 157(3)(c) authorises the Board to have regard to such matters "as it considers relevant" in determining whether the election should be cancelled.  Thus, within the statutory framework (but constrained by it), relevant considerations depend on the opinion of the Board.  However, it may well be that the authority conferred by s 157(3)(c) is limited by s 157(3)(b).  That is, the Board is not authorised by s 157(3)(c) to take into account matters which may have earlier been taken into account under s 157(3)(b) in determining whether "special circumstances" existed, at least if those matters only go to the question of why an applicant had delayed in requesting cancellation of the election.  That said, it may well be that matters occurring after an election had been made, would be relevant to determining what was known to the applicant at the time the election was made.  It is quite conceivable that an applicant did things after the election from which it could be inferred that he or she knew certain things at the time of the election.

27                  The decision of the Tribunal of 26 October 2004 should be set aside and the matter remitted to the Tribunal to be determined according to law.

Associate:

Dated:              17 June 2005