FEDERAL COURT OF AUSTRALIA

Ludowyk v Superannuation Complaints Tribunal [2013] FCA 1153

THE COURT ORDERS THAT:

1.    The interlocutory application for an extension of time to appeal be dismissed.

2.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The court has before it an interlocutory application for an extension of time under r 36.05 of the Federal Court Rules 2011. The applicant seeks leave to file a notice of appeal against a judgment handed down on 16 July 2013. The respondent in the proceedings is the Superannuation Complaints Tribunal (“the SCT”). It has indicated that it does not wish to participate in the interlocutory hearing and that it neither opposes nor consents to the application.

2    The applicant’s solicitor has filed an affidavit in support of the interlocutory application which provides an explanation for the applicant’s failure to file an appeal within the 21 days prescribed by r 36.03 of the Federal Court Rules 2011. The application for an extension of time was filed on 16 August 2013, that is, 10 days late.

3    These reasons are structured as follows: first, I will outline the applicant’s grievances as presented to the primary judge which will include a summary of the long history underlying the proceedings. Secondly, I will summarise the judicial review proceeding, which gives rise to the interlocutory application. Thirdly, I will summarise the relevant legal principles which guide the exercise of the Court’s discretion to extend time. Fourthly, I will outline the applicant’s submissions and the evidence in support of its application. Finally, I will provide reasons for my determination of the interlocutory application.

History of applicant’s grievances

4    Dealing first with an overview of the applicant’s grievances, the applicant was employed by the Commonwealth in the Department of Veterans Affairs from March 1971 until 29 September 1988. During that time, she made contributions to the Commonwealth Superannuation Scheme (“the CSS”) under the Superannuation Act 1976 (Cth) (“the 1976 Act”). The applicant resigned her Commonwealth employment effective 29 September 1988. At that time, she submitted a signed form entitled Retirement Benefit Application, in which she elected to seek a refund of her Commonwealth superannuation contributions plus interest instead of electing to preserve her superannuation rights.

5    Consequently, she received a payment of $15,166.43 representing her superannuation contributions plus interest. She used those funds to purchase an investment property jointly with her husband in the ACT. Eight years after making her election, and by which time the applicant had resumed employment with the Commonwealth, she sought to have that election reversed in circumstances where s 137 of the 1976 Act required her to make an election within 21 days of ceasing to be a Commonwealth employee. For the next 16 years, the applicant made numerous attempts to be permitted to make a late election under s 157(1) of the 1976 Act to preserve her superannuation rights. That provision is in the following terms:

157 General provisions applicable to elections under Act

(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 CSC is satisfied that in all the circumstances of the case it is desirable that the election should be recognized, CSC may direct that the election be treated as if it had been made within the period allowed and the election shall have effect accordingly.

6    Sub-section 157(1) empowers the board of the CSS to treat a late election as having been made if the board is satisfied in all the circumstances of the case that it is desirable that the late election should be recognised.

7    The applicant has made numerous applications both to the CSS and its successor and has made two complaints to the SCT, the respondent in the proceeding. The SCT’s latest decision is recorded in a letter dated 24 July 2012. That decision was the subject of the applicant’s judicial review application which led to the judgment dated 16 July 2013, in respect of which the extension of time is sought. In its decision, the SCT determined under s 22(3)(d) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (“the Complaints Act”) that it would treat the applicant’s second complaint to it as having been withdrawn on the basis that the SCT was satisfied that the subject matter of that complaint had previously been determined by the SCT when it dismissed an earlier complaint by the applicant on 20 April 2007.

8    On both occasions, the SCT provided detailed reasons for its determinations. The history of the applicant’s numerous applications to the Commissioner of Commonwealth Superannuation, the CSS board and to the board’s successor, the Australian Reward Investment Alliance (“ARIA”) are set out in [35] to [85] of the primary judge’s reasons for judgment. His Honour also describes the SCT’s determination of the applicant’s two complaints. In view of their central importance to the applicant’s case, it is appropriate to say a little more about the SCT’s reasons relating to both those complaints.

9    I deal, first, with the 2007 determination. The primary judge describes the applicant’s first complaint to the SCT and its reasons for dismissing the complaint in [62] to [68] of his Honour’s reasons for judgment, with particular reference therein to [23] to [25], [26], and [29] to [31] of the SCT’s reasons which underpin its conclusion that it was satisfied that the delegate’s original decision, made on 27 March 1997, was fair and reasonable in the circumstances and, therefore, had to be affirmed in accordance with s 37(6) of the Complaints Act. After the SCT’s first determination the applicant made further attempts to have the CSS board and ARIA look favourably upon her case. On 5 May 2010, ARIA provided the applicant with detailed reasons for its determination in respect of one of those requests. ARIA’s key conclusions and reasoning are set out in [77] to [78] of the primary judge’s reasons.

10    On 3 October 2010, the applicant lodged her second complaint with the SCT. She was then advised by the SCT that it was considering whether or not it should exercise its powers under s 22(3)(d) of the Complaints Act in respect of her second complaint. She was given an opportunity to comment on that proposal, which opportunity the applicant availed herself of.

11    Sub-section 22(3) of the Complaints Act is in the following terms:

22    Power to treat a complaint as having been withdrawn

…

(3)    The Tribunal may also decide to treat a complaint as if it had been withdrawn under section 21, in the following cases:

(a)    if the complaint has been made to the Tribunal and relates to a decision or conduct (other than a decision of a trustee, RSA provider, insurer or other decision maker to pay a disability benefit because of total and permanent disability)—more than 12 months have elapsed since the decision complained of was made or the conduct complained of was undertaken; or

(b)    if the complaint has been made to the Tribunal—the Tribunal thinks that the complaint is trivial, vexatious, misconceived or lacking in substance;

(c)    if a remedy has been sought from some other body in relation to the subject matter of the complaint—the Tribunal thinks that the subject matter of the complaint has been, or is likely to be, dealt with by that body;

(d)    if the subject matter of the complaint has already been dealt with by the Tribunal or by another statutory authority—the Tribunal thinks that the subject matter of the complaint has been adequately dealt with;

(e)    if the Tribunal thinks that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority.

12    On 24 July 2012, the SCT wrote to the applicant advising her of its decision that the subject matter of the second complaint had been adequately dealt with by the SCT in its 2007 determination. Relying on s 22(3)(d), the SCT determined that it would treat the second complaint as having been withdrawn.

Judicial review application

13    It is convenient to now outline the relevant features of the applicant’s judicial review application. For reasons explained by the primary judge at [11] and following of his reasons for judgment, the relevant originating document is a draft amended originated application dated 22 November 2012, which was provided to the Court at a directions hearing held on 7 December 2012. I will refer to that document as the draft amended originating application. I raised with Mr Anforth, who appeared for the applicant on the hearing of the interlocutory application today, whether he was aware if the document had ultimately been filed, noting the primary judge’s reference to the necessity for the applicant to attend to the filing of that document. Mr Anforth was not in a position to say one way or the other whether the document had been filed. But he confirmed that the draft amended originating application dated 22 November 2012 is the relevant document for the purposes of the present application.

14    The applicant does not challenge the primary judge’s finding that the applicant’s proceedings in the Court involved judicial review of the SCT’s 24 July 2012 decision and not a statutory appeal under s 46 of the Complaints Act (which provides for an appeal to the Court on a question of law from a determination of the SCT). The applicant claimed in the draft amended originating application that the SCT had committed the following two errors of law which are set out at [86] of the primary judge’s reasons:

Ms Ludowyk made the following submissions:

(a)    The Tribunal misconstrued the nature of its review function when it determined Ms Ludowyk’s first complaint on 20 April 2007. It did not carry out a merits review of the delegate’s decision given on 27 March 1997 and the CSS Board’s subsequent reconsiderations of that decision but rather approached its task as if it were conducting judicial review of the delegate’s decision. For this reason, the Tribunal impermissibly introduced into its consideration a test which was akin to the Wednesbury unreasonableness test applied in appropriate cases by courts to applications for judicial review of administrative decisions. The Tribunal failed to undertake its own inquiry into Ms Ludowyk’s original complaint and thus failed to determine that complaint as required by the relevant provisions of the Complaints Act (ss 12, 14(2) and 37). The Tribunal’s failure properly to carry out its statutory review task meant that its decision given on 20 April 2007 was ultra vires.

(b)    The Tribunal could not have been satisfied or, alternatively, could not have been reasonably satisfied that the subject matter of Ms Ludowyk’s 2010 complaint had already been adequately dealt with by the Tribunal’s 2007 determination. For that reason, the Tribunal had no basis for deciding to treat the 2010 complaint as if it had been withdrawn under s 21 of the Complaints Act (s 22(3)(d)). Section 22(3)(d) was not engaged because:

(i)    The 2007 determination of the Tribunal was ultra vires; and

(ii)    The decision of ARIA made on 4 May 2010 which is the     subject of the 2010 complaint was based upon new evidence.     The Tribunal is therefore required to consider the new     evidence and it refused or failed to do so.

15    I turn now to deal with the primary judge’s reasons for dismissing the judicial review application. Both alleged errors of law were rejected by the primary judge. As to the first error of law, which his Honour referred to as “the ultra vires point” and which relates to the SCT’s 2007 decision, the key elements of his Honour’s reasoning are as follows. First, the relevant authorities do not support the applicant’s contention that s 37 of the Complaints Act required the SCT to consider all the material before it and come to its own view as to what the reasonable decision should be in all the circumstances of the case. Secondly, and in particular, the applicant’s construction of the SCT’s statutory function under s 37 of the Complaints Act is inconsistent with a series of decisions including that of Allsop J (as his Honour then was) in Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359, in describing the SCT’s statutory task. At [96] the primary judge stated:

I do not agree that the relevant authorities support such an interpretation of s 37 of the Complaints Act. In particular, see Lykogiannis v Retail Employees Superannuation Pty Ltd (2000) 97 FCR 361 at 372–373 [47]–[50] per Mansfield J; National Mutual Life Association of Australasia Ltd v Campbell (2000) 99 FCR 562 at 570–571 [32]–[34] per Black CJ, Emmett and Hely JJ; Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 at 367 per Allsop J (as his Honour then was); and Cameron v Board of Trustees of the State Public Sector Superannuation Scheme (2003) 130 FCR 122 at 129 [25] per Whitlam, Kiefel and Dowsett JJ. The correct approach is captured in the observations by Allsop J in Crocker where his Honour said (48 ATR at 367 [31]):

The tribunal’s task is not to engage in ascertaining generally the rights of the parties, nor is it to engage in some form of judicial review of the decision of the trustee or insurer. Rather it is to form a view, from the perspective of the trustee or insurer, as to whether the decision of either was (recognising the overriding framework given by the governing rules and policy terms, respectively) unfair or unreasonable.

16    Thirdly, having regard to the SCT’s reasons which disclosed its construction of ss 137 and 157 of the 1976 Act and also their application to the applicant’s circumstances, his Honour concluded that the SCT did not undertake a judicial review of the delegate’s decision. Rather, his Honour held that the SCT had addressed the relevant threshold question whether the delegate’s decision was fair and reasonable in all the circumstances. Finally and consequently, his Honour found that the applicant had failed to make good her contention that the 2007 decision of the SCT was ultra vires in the sense that the SCT misunderstood its function and approached its task as though it was performing a judicial review function rather than the statutory task vested in it under the relevant statutory regime.

17    The second error of law raised by the applicant relates to the SCT’s 2012 decision. The primary judge dealt with this alleged error in [101] to [111] of his Honour’s reasons for judgment under the rubric “The New Evidence Point”. In essence, the applicant contended that the SCT erred in law in treating her second complaint as withdrawn because the SCT misconstrued or misapplied s 22(3)(d) of the Complaints Act. She contended that because ARIA accepted in its decision made on 4 May 2010 that the applicant had presented new evidence, particularly an internal SCT file note relating to the applicant’s case as described more fully in [17] of ARIA’s statement of reasons, the SCT was obliged in determining her second complaint to consider that new evidence itself but it failed to do so.

18    The primary judge’s reasons for rejecting this contention may be summarised as follows. First, the expression “subject matter of the complaint” in s 22(3)(d) of the Complaints Act means the thing or matter which was the subject of the decision complained, not the administrative decision specified in s 37 of the Complaints Act (see [105] of his Honour’s reasons).

19    Secondly, the subject matter of the applicant’s complaint was her “repeated unsuccessful attempts to procure a decision under s 157 of the 1976 Act from the relevant statutory authority which would have sanctioned as valid her attempt to make a late election to preserve her superannuation benefits as at 29 September 1988 contrary to her conscious and intended decision made at the time to claim a refund of her contributions plus interest” (see also [105] of his Honour’s reasons).

20    Thirdly, the requirement in s 22(3)(d) that the SCT “think” that the subject matter of the complaint has “already adequately been dealt with by the SCT” means that that the SCT must be reasonably satisfied of that matter (see [106]).

21    Fourthly, in making its July 2012 determination, the SCT correctly understood and applied those principles to the applicant’s circumstances (see [108]).

22    Fifthly, his Honour found that the applicant carried the onus of demonstrating that the SCT could not have been reasonably satisfied that the subject matter of her second complaint had already been adequately dealt with by the SCT’s April 2007 determination, and she had failed to discharge that onus (see [109]).

23    Sixthly, his Honour found that there was no obligation on the SCT in its reasons to refer specifically to the “new evidence” (see [110]).

Principles guiding extension of time to appeal

24    It is appropriate at this stage to pause and describe some relevant legal principles applying to the consideration of an application to extend time under r 36.05 of the Federal Court Rules 2011. The applicant argues that the relevant principles are those identified by Wilcox J in Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344, as reformulated in cases such as Phillips v Australian Girls’ Choir Pty Limited [2001] FMCA 109 and Budd v the Department of Education, Employment and Workplace Relations [2009] FCA 345. Reference should also be made, in this context, to the recent observations of Edmonds and Griffiths JJ in Mentink v The Minister for Home Affairs [2013] FCAFC 113, at [33] to [39], regarding the non-exhaustive nature of the relevant criteria identified by Wilcox J in Cohen, which, of course, dealt with a different statutory context to that which arises here.

25    For current purposes, the following matters are potentially relevant to the exercise or otherwise of the discretion under r 36.05. First, there is no requirement for the applicant to show any special circumstance, but the Court must be satisfied that it is proper to extend time. Prima facie, cases started outside the stipulated time period will not be accommodated. Secondly, the applicant must provide an adequate explanation for the delay. Thirdly, while prejudice to the respondent is a material factor weighing against an extension of time, the absence of such prejudice, as is the case here, is not enough to warrant the grant of an extension of time. Fourthly, and perhaps most significantly in the context of this case, the merits of the substantive application are a relevant consideration, while noting that some caution may be required, in particular cases, in assessing those merits at the interlocutory stage, particularly where questions of fact are involved.

Consideration

26    Applying those principles here, matters which weigh in favour of extending time include, first, the applicant delayed only 10 days beyond the stipulated period for commencing an appeal before seeking an extension of time. Secondly, I am also prepared to accept that the applicant has offered, through her instructing solicitor, an acceptable explanation for missing the time period under the rules. Those matters are dealt with in Mr Lander’s affidavit and broadly relate to medical issues which the applicant was experiencing at the relevant times. Thirdly, as indicated above, there has been no suggestion of any prejudice to the respondent were leave granted.

27    In my view, however, these considerations are outweighed by the lack of merit in the proposed grounds of appeal. In assessing those grounds at an interlocutory stage, it is significant to my mind, as Mr Anforth acknowledged in oral argument, that no errors of fact are raised by the draft notice of appeal. The applicant’s proposed grounds of appeal relate to errors of law which are said to arise from the SCT’s construction and application of various relevant statutory provisions, and the primary judge’s non-acceptance of the applicant’s case in respect of those matters of construction.

28    Against that background, I will now address the merits of the draft notice of appeal. In support of her application to extend time, the applicant has filed a draft notice of appeal which contains the following five grounds of appeal:

1.    His Honour Foster J in the court below misconstrued section 12(1) and section 37(6) Superannuation (Resolution of Complaints) Act 1993.

2.    His Honour erred in law in failing to find that the construction of the above provisions and the tests adopted by the Superannuation Complaints Tribunal constituted an unlawful exercise of federal judicial power by the Tribunal.

3.    His Honour failed to consider the essence of the principal argument advanced by the Appellant.

4.    In the alternative to 3, if His Honour did not consider the Appellant’s principal argument then he failed to provide any adequate reasons for the manner in which he dealt with the principal argument.

5.    His Honour misconstrued and misapplied section 22(3) Superannuation (Resolution of Complaints) Act 1993 in relation to the new evidence provided by the Appellant to the Tribunal and the Tribunal’s decision to treat the Appellant’s application as having been withdrawn.

29    I will deal first with what the applicant described as her principal argument. Grounds 1 to 4 of the draft notice of appeal are described as the “principal argument”, while ground 5 is described as the “new evidence issue”. The applicant says that the principal argument raises the proper construction of the phrase “to inquire into the complaint” in s 12(1) of the Complaints Act, and of the phrase “if it is satisfied that the decision, in its operation in relation to the complainant, was fair and reasonable” in s 37(6) of that Act.

30    The applicant further contends that the primary judge erred in not accepting her argument that the SCT, in its 2007 decision, committed an error of law in seeing its task as involving a form of judicial review for reasonableness and not a merits-focused inquiry. The applicant says that the error is revealed in [13] of the SCT’s reasons for its 2007 decision:

The Tribunal's role is to determine whether the decision of the Trustee was fair and reasonable in its operation in relation to the Complainant in the circumstances. The question is not what decision the Tribunal might have reached. The Tribunal must determine the fairness and reasonableness of the decision under review as at the date of that decision (ie 27 March 1999). Subsequent events may be taken into account, in so far as they bear on the fairness and reasonableness of the decision under review at the time it was made.

31    The applicant says that the primary judge correctly identified what her principal argument was, but then did not explain why the Court rejected that argument.

32    I disagree with the applicant’s submissions in support of the merits of its proposed principal argument. The reasons for his Honour rejecting the principal argument are set out in [96] to [100] of the primary judge’s reasons for decision. His Honour expressly referred to several authorities which are inconsistent with the applicant’s preferred construction of s 37, including, perhaps most notably, Allsop J’s leading decision in Crocker and, in particular, to [16] to [31] of that decision, key relevant parts of which are as follows:

    However, the Tribunal’s task was not to determine all such rights and obligations of the parties. To do so would, in all likelihood, see it purport to engage in the exercise of judicial power. Rather, the Tribunal’s task was confined to the role given to it by the Act. At this point I gratefully adopt the description of the legislative scheme set out by the Full Court in National Mutual Life Association of Australia Limited v Campbell (2000) 99 FCR 562 at 565-68 [10] to [20]. This relieves me of refering [sic] to the Act, other than to the provisions essential to these reasons.

…

    The functions of the Tribunal, which are set out in s 12 of the Act, are to inquire into a complaint and to try to resolve it by conciliation and, if that is not possible, review the decision or conduct to which the complaint relates or to conduct an arbitration in respect of the complaint if it has been referred to the Tribunal by an arbitration agreement. There is no arbitration agreement here.

…

    Central to the understanding of the role and powers of the Tribunal is s 37 of the Act…

    The central task of the Tribunal was to review the decision of the Trustee and, since the Insurer had been joined under s 17A and s 18, to review any decision of the Insurer: para 37(2)(a). In carrying out this task the Tribunal had all the powers, obligations and discretions conferred on the Trustee and the Insurer: paras 37(1)(a) and 37(2)(b). In carrying out this task the Tribunal was required to make a determination in accordance with subs 37(3). The Tribunal’s task was to decide for itself whether the Trustee’s decision and any decision of the Insurer was and is unfair or unreasonable. This flows from, first, the nature of the subject matter of review – a complaint under subs 14(2) as to the unfairness or unreasonableness of the Trustee’s decision, secondly, the exhaustive universe of possible determinations in subs 37(3), thirdly, the nature of the limitations on the exercise of the powers in subs 37(3) set out in subs 37(4) and, fourthly, the requirement under subs 37(6) to affirm the decision under subs 37(3) if the Tribunal is satisfied that the decision in its operation in relation to the complainant was fair and reasonable in the circumstances.

While the determination of the Tribunal was required to be predicated upon its view as to whether the relevant decision was unfair or unreasonable, the Tribunal was enjoined by subs 37(5) from doing anything under subs 37(3) that would be contrary to law, or to the governing rules of the fund or to the terms of the relevant insurance policy, here the Prudential policy.

    The phrase “governing rules of the fund” means the terms governing the conduct of the superannuation fund, which was a regulated superannuation fund under the Superannuation Industry (Supervision) Act 1993 (Cth). It is not limited to the schedule to the trust deed which set out the “rules for the management” of the fund. It means the terms of the trust under which the fund is carried on, which includes the “rules for the management” of the fund: clause 1.2 of the annexure to the deed of amendment dated 13 December 1988.

    In short, the task of the Tribunal was to review the decisions of the Trustee and Insurer as to whether they were (or either was) unfair or unreasonable and to make a determination under subs 37(3) in the light of that consideration. This task was one to be undertaken, to use the language of Merkel J in Briffa v Hay (1997) 75 FCR 428 at 443-4 and Seafarers’ Retirement Fund Pty Ltd v Oppenhuis (1999) 94 FCR 594 at 598-99 [19] to [23], “in the shoes of” the Trustee and the Insurer: see also paras 37(1)(a) and 37(2)(b). The directions for reconsideration of the decision (under para 37(3)(b)) or the variation of the decision (under para 37(3)(c)) or the substituted decision (under para 37(3)(c)) either affect or become the original decision of the Trustee and the Insurer. Thus the strictures of subs 37(5) can be seen not only to prevent, at the point of remedy, something unlawful being ordered to be done, but as an essential reflection of the task being undertaken: a consideration of a decision of the Trustee, qua trustee, that is of the Trustee acting in accordance with law and the terms of its governing trust and making a determination, as if the Tribunal were the Trustee, to affect, vary or substitute a decision. The same applies to the task in relation to the Insurer and its decision.

…

    The task of the Tribunal and the meaning of the phrase “unfair or unreasonable” are inextricably intertwined and both are governed by the Act, and, especially, by s 37. It is the decision of the Trustee, recognising its obligation to act in conformity with the governing rules of the fund, and the decision of the Insurer, recognising its obligation (and entitlement) to act in conformity with the terms of the relevant policy, which must be reviewed for unfairness or unreasonableness. The unfairness or unreasonableness must be of the decision (as expanded by s 4) under, and in conformity with, the governing rules or the terms of the policy. It is not some other perceived (rightly or wrongly) unfairness or unreasonableness in and about the conduct of the fund.

    The question as to whether a decision was unfair or unreasonable cannot be judged otherwise than by having regard to the conformity of the decision with the governing rules of the fund and the terms of the policy. The conformity of the decision with those matters is therefore a relevant consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-40 and see Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 178 ALR 707 (special leave refused on 20 August 2001). If conformity with the governing rules or the terms of the policy required the very decision, which was made, to be made, the strictures of subs 37(5), the universe of possible conduct under subs 37(3) and the balance of the Act, including subs 37(6), would require a conclusion of the Tribunal that the decision was not unfair or unreasonable. It could not be otherwise, as it would, on this hypothesis, be the only decision capable of being reached by the Trustee or the Insurer in the light of the governing rules or terms of the policy; or, put another way, any determination under paras 37(3)(b),(c) or (d) would involve the Tribunal doing an act contrary to the governing rules or the terms of the policy.

    It may be that a decision of a trustee or an insurer is in conformity with, but not required by, the governing rules of the fund or the terms of the policy. This may be because the decision could be described as one of a discretionary character: see s 14AA of the Act and Merkel J in Collins v AMP, supra at 578-79. For myself, I would prefer not to use any dichotomy between discretionary and non-discretionary decisions as a tool in this analysis. I do not think that the presence of s 14AA mandates it. The presence of s 14AA is to be understood for reasons other than any which make the terminology used within it a compulsory tool for analysis of the understanding by the Tribunal of its task: see National Mutual v Campbell, supra at 568-70 [21] to [30] and Seafarers’ Retirement Fund v Oppenhuis, supra at 596-98. It may be that the decision of a trustee or an insurer is in conformity with, but not required by, the governing rules or policy terms not because there was involved any exercise of discretion, properly so-called, but because the decision was one which so involves elements of fact, degree, opinion or value judgment that different minds can legitimately differ in reaching a decision or because one aspect of the rules or policy terms, but not another, has been the foundation of the decision. A decision of a trustee or an insurer about a matter of judgment, for instance one involving weighing competing expert or lay opinion about a state of affairs, might be lawful and in conformity with the governing rules and policy terms. It might be described as “correct” in that it was the product of an inquiry directed to the right question and in that there was material available to support it. In this, perhaps limited, sense the decision was correct and was open to be made. However, the Tribunal is not engaged in a form of judicial review. It reviews the decision (as expanded by s4) complained of from the position of the trustee or insurer (paras 37(1)(a) and 37(2)(b)). The Tribunal may find, in its opinion, in some degree (see subs 37(4)), the decision to be unfair or unreasonable and may act under subs 37(3) to give effect to its view of the merits as long as subs 37(5) is not infringed. It seems to me that this analysis accords with the approach described by the Full Court in National Mutual v Campbell, supra at 570-71 [32] and [33] and see also Kirby J in Attorney-General v Breckler (1999) 197 CLR 83 at 129 [88]. It seems to me that the very use of the words “unfair” and “unreasonable” in their breadth, individually and in the composite phrase “unfair or unreasonable”, supports this view: see, in other contexts, George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803 at 815-16, and Samuels JA in Antonovic v Volker (1986) 7 NSWLR 150 at 154-55.

…

    The Tribunal’s task is not to engage in ascertaining generally the rights of the parties, nor is it to engage in some form of judicial review of the decision of the trustee or insurer. Rather it is to form a view, from the perspective of the trustee or insurer, as to whether the decision of either was (recognising the overriding framework given by the governing rules and policy terms, respectively) unfair or unreasonable.

33    The primary judge made an express finding in [99] that, in his Honour’s view, the SCT had not engaged in a judicial review. Rather, the SCT “appropriately assessed the fairness and reasonableness of that decision against the evidentiary material presented to it and the submissions made to it”, and “correctly addressed the requisite statutory task”, by focusing on whether it was satisfied that the delegate’s decision was fair and reasonable in the circumstances. This language echoes the words of s 37(6) of the Complaints Act.

34    Although his Honour made no express reference to [13] of the SCT’s reasons in his Honour’s reasons for judgment, upon which the applicant places great reliance, I do not consider that that omission raises an arguable appellable error. That paragraph, to my mind, is not inconsistent with Allsop J’s formulation in Crocker of the appropriate description of the SCT’s statutory function. On the contrary, [13] of the SCT’s reasons emphasises that, under s 37(6), the SCT’s review task is to determine whether the primary decision was fair and reasonable, in its operation in relation to the complainant, in the circumstances.

35    The SCT’s reference to the question not being what the SCT might have reached itself simply underlines the SCT’s appreciation that, under the particular statutory regime, the critical issue is not what the SCT would have decided if it had been the primary decision-maker. Rather, the statutory regime requires the SCT to decide, from the perspective of the trustee or insurer, as to whether the primary decision was unfair or unreasonable. In my view, it is not arguable that the primary judge departed erred in not finding that the SCT had misconstrued its review function..

36    I turn now to consider the new evidence point, which is ground 5 in the proposed notice of appeal. The applicant says that the primary judge erred in finding the SCT could be satisfied that a complaint had already been adequately dealt with, without any finding or consideration of whether the SCT was aware of the new evidence. The applicant describes the primary judge’s position on that issue as unreasonable at law. She adds that the bounds of reasonableness at law require the SCT to consider the new evidence in order to assess its “value”.

37    In my view, the new evidence point does not raise an arguable ground of appeal. First, as the primary judge pointed out, s 22(3)(d) of the Act focuses attention on the subject matter of the complaint, and not on the administrative decision specified in s 37 of the Complaints Act. The applicant’s argument effectively ignores the statutory significance given to the subject matter of the complaint, in determining whether or not to exercise the power conferred by s 22(3)(d).

38    Secondly, I do not consider that the applicant has raised any arguable point in respect of the balance of the primary judge’s reasons for rejecting the new evidence point. In particular, I can see no arguable appellable error in his Honour’s reasoning in [110] of his reasons for judgment, as to why, having regard to the relevant statutory language, the SCT is not obliged specifically to refer to the new evidence in exercising its power under the relevant provision. To the contrary, his Honour’s reasoning strikes me, with respect, as being plainly correct.

39    For all these reasons, the application for an extension of time to appeal is dismissed. As noted above, the respondent adopted a passive role in the proceedings. Accordingly, there will be no order as to costs.

Associate:

Dated:    1 November 2013