Bullivant v Australian Meat Industry Superannuation Pty Ltd

Counsel for the Second, Third, Fourth, Fifth and Sixth Respondents: The Second, Third, Fourth, Fifth and Sixth Respondents each filed a submitting notice save as to costs

AND: AUSTRALIAN MEAT INDUSTRY SUPERANNUATION PTY LTD First Respondent

DENNIS RICHARD ROBERTS AS EXECUTOR OF THE ESTATE OF THE LATE STEPHEN RAYMOND DONKIN Second Respondent

NATHAN RAYMOND DONKIN (and others named in the Schedule) Third Respondent

JUDGE: ROBERTSON J DATE OF ORDER: 23 OCTOBER 2018

1. The application is allowed.
2. The determination of the sixth respondent dated 31 May 2018 is set aside.
3. The matter is remitted to the sixth respondent to be determined again by it according to law.
4. There be no costs order. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The applicant appeals pursuant to s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) against the decision of the Superannuation Complaints Tribunal (the Tribunal) dated 31 May 2018. Such an appeal is "on a question of law". 2 The Tribunal referred to the applicant as the spouse of the deceased member. 3 The Tribunal set aside the decision of the first respondent (the trustee) in relation to a benefit payable on the death of a member of the Australian Meat Industry Superannuation Trust (the fund), Stephen Raymond Donkin (the deceased). The trustee had decided to pay the benefit to the second respondent (the executor of the estate of the deceased). The Tribunal substituted its own decision which was that the death benefit be paid to the applicant spouse and each of the deceased's adult children, the third to fifth respondents, in equal proportions. 4 The applicant seeks an order that the trustee pay the death benefit to her or that the matter be remitted to the Tribunal to be determined in accordance with law. 5 The first respondent, Australian Meat Industry Superannuation Pty Ltd, the trustee, submits to any order the Court may make in the proceeding and does not want to be heard on the question of costs. 6 The second respondent, the executor of the estate of the deceased, submits to any order the Court may make but wants to be heard on the question of costs. 7 The third to fifth respondents, the two adult sons and the adult daughter of the deceased, each submits to any order the Court may make but wants to be heard on the question of costs. 8 The sixth respondent, the Tribunal, submits to any order the Court may make in the proceeding but wants to be heard on the question of costs.

The legislation 9 Under s 14 of the Superannuation (Resolution of Complaints) Act, a person may make a complaint to the Tribunal that the decision of the trustee of a fund is or was unfair or unreasonable. 10 Sections 37 and 46 of the Superannuation (Resolution of Complaints) Act are in the following terms: 37 Tribunal powers - complaints under section 14 (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. … 46 Appeals to Federal Court of Australia from determinations of the Tribunal (1) A party may appeal to the Federal Court, on a question of law, from the determination of the Tribunal. (2) An appeal by a person under subsection (1) is to be instituted: (a) not later than the 28th day after the day on which a copy of the determination of the Tribunal is given to the person or within such further period as the Federal Court (whether before or after the end of that day) allows; and (b) in accordance with rules of court made under the Federal Court of Australia Act 1976. (3) The Federal Court is to hear and determine the appeal and may make such order as it thinks appropriate. (4) Without limiting by implication the generality of subsection (3), the orders that may be made by the Federal Court on an appeal include an order affirming or setting aside the determination of the Tribunal and an order remitting the matter to be determined again by the Tribunal in accordance with the directions of the Court. (5) The Federal Court must not make an order awarding costs against a complainant if the complainant does not defend an appeal instituted by another party to the complaint.

The Tribunal's decision 11 I note that the applicant does not contest the Tribunal's findings of fact except in relation to two matters. The first is its finding at [54] that the applicant had no expectation of future financial support from the deceased. The second is in relation to the Tribunal's decision not to make a finding on the issue of whether or not the applicant had repaid monies loaned by the deceased to her. 12 The findings and reasons for decision of the Tribunal may be summarised as follows. 13 On 29 July 2005, the deceased completed an application form to join the fund. He named his three children as his preferred beneficiaries with the sons to each receive 33% and the daughter 34% of his death benefit. 14 In June 2007 the deceased commenced a relationship with the applicant. 15 On 6 January 2015, the deceased executed his will, leaving $1,000 to his legal personal representative, $4,000 to the applicant, $2,000 to his ex-wife and $100,000 to each of the daughter and the sons, with the residue of the estate to be shared equally between the applicant, the daughter and the sons. 16 The deceased died on 11 April 2015. 17 At [32], the Tribunal said as follows: The Spouse submitted that she was in a de facto and an interdependency relationship with the Deceased Member at the time of his death. The other Parties have disputed this though it is accepted by all the Parties that the Spouse and the Deceased Member were living together at this time. However the Sons, the Daughter and the L[egal] P[ersonal] R[epresentative] all state that the living arrangement was one of convenience for the Deceased Member who was trying to recoup some of the money he had loaned the Spouse. 18 At [37], the Tribunal found that, although not legally married to the deceased, the applicant lived with him on a genuine domestic basis in a relationship as a couple and therefore qualified as a dependant under the Trust Deed. (The Trust Deed picked up the definition of "spouse" in s 10 of the Superannuation Industry (Supervision) Act 1993 (Cth)). 19 The Tribunal further considered that no decision needed to be made on the existence or not of an interdependency relationship as the applicant was entitled to consideration in the distribution of the death benefit by virtue of being a spouse. 20 At [42], the Tribunal said that it considered that "the Will was a strong indication of the Complainant's (sic) wishes given that it was completed in anticipation of his death." I read this reference to the complainant as a reference to the deceased. 21 At [44], the Tribunal found that the deceased made two loans to the applicant, one of $150,000 on 1 October 2009 and one of $50,000 in February 2010, to assist her finance house renovations. The applicant claimed that she repaid these amounts in two payments, one of $100,000 on 2 June 2010 and one of $121,000 (which included interest) on 17 August 2011. At [45], the Tribunal said that the sons and the daughter had disputed that the amounts were repaid and submitted that the deceased forgave the loans shortly before his death. 22 At [51], the Tribunal said as follows: The Tribunal considered that whether or not the Spouse had repaid the loans, the Trustee did not appear to have offered her the opportunity to counter the statements of the other Parties that the loans had not been repaid prior to it reversing its decision to pay her the Benefit. In the opinion of the Tribunal, this lack of procedural fairness makes the Trustee's decision to pay the Benefit to the [executor of the deceased's estate] unfair and unreasonable. 23 Having made this determination, the Tribunal considered the distribution of the death benefit. 24 The Tribunal said, at [53], that its approach was to consider what might have occurred had the deceased not died, and whether there was anyone who had an expectation of ongoing financial support or a right to look to the deceased for ongoing financial support had the deceased not died. It was in that context that the Tribunal said, at [54]: The Tribunal considered that none of potential beneficiaries to the Benefit were financially dependent on the Deceased Member and there was no evidence that any of them had an expectation of future financial support. 25 The Tribunal then said, at [55], that although a death benefit does not form part of a deceased's estate, a trustee may have regard to the provisions in a will when distributing a death benefit although is not bound by it. The Tribunal then found, at [56], that given the terminal nature of the deceased's illness, the Tribunal considered that his will was executed in anticipation of his death and a strong indication of his wishes. The Tribunal then said, at [57]: The Parties are in dispute over whether the loans of $200,000 were repaid by the Spouse to the Deceased Member or forgiven. The Spouse has submitted a number of documents that appear to the Tribunal to support the position that they were repaid. However, the Tribunal was of the opinion that it did not matter whether they were repaid or not. The Deceased Member knew whether they were repaid or whether he had forgiven them and he drafted his Will in full knowledge of the state of the loans. The Tribunal noted that the residue of the Deceased Member's estate, after payment of certain bequests, was to be split equally between the Spouse and his three children. 26 At [59], the Tribunal said that under the Trust Deed, the trustee had the absolute discretion to distribute the death benefit to one or more of the deceased's dependants and/or the deceased's legal personal representative. 27 The Tribunal set out [71] of the decision in Ievers v Superannuation Complaints Tribunal [2016] FCA 936, as follows: Once the Tribunal reached the conclusion that Mr Hattingh was in a de facto relationship with Ms Redfern (sic) and was her sole dependant at the date of her death, the direction that 100% of the superannuation benefit should be distributed to Mr Hattingh is not an error of law, but rather, it is a legitimate and sensible exercise of a discretion. It is difficult to see that any other decision could or should have been taken. 28 The Tribunal then said, at [61], that in all the circumstances it considered it fair and reasonable to distribute the death benefit equally between the four identified dependants of the deceased. It reasoned, at [66], that under s 37(4) of the Superannuation (Resolution of Complaints) Act it may only exercise its determination making power for the purpose of placing the applicant "as nearly as practicable, in the position that they would have been in but for the unfairness, unreasonableness, or both, that the Tribunal has determined to exist in relation to the Trustee's decision." 29 On that basis, the Tribunal set aside the decision of the trustee and substituted a decision that the benefit be paid to the applicant, the sons and the daughter in equal proportions.

The appeal 30 The questions of law are said to be as follows: 1. Whether:- a) having found the applicant to have lived with the deceased on a genuine domestic basis in a relationship as a couple; and/or b) having regard to the evidence before it of their "interdependency relationship" within the meaning of s.10A Superannuation Industry (Supervision) Act 1993 ("SIS Act"), there was, as the tribunal held, no evidence that the applicant had an expectation of future financial support from the deceased; 2. Whether, in applying the criteria of fairness and reasonableness under s.37(6) Superannuation (Resolution of Complaints) Act 1993 ("Complaints Act") in relation to a trustee's decision as to payment of a death benefit, the tribunal:- 1. should have considered the deceased member's wishes as to distribution of his estate as disclosed by the deceased's will; 2. was required to consider and make a finding on a factual issue between the parties, namely whether the deceased had, shortly prior to his death, forgiven a debt owed by the applicant or the applicant had in fact paid the debt; and 3. Whether the tribunal ought to have set aside the trustee's decision on the basis of procedural unfairness when the tribunal found the decision itself to be fair and reasonable in the circumstances. The applicant in her written application asks the Court to make the following findings of fact: 1. That the applicant had an expectation of future financial support from the deceased. 2. That the applicant was the only party with an expectation of future financial support. 3. That the applicant had repaid to the deceased all monies he had advanced to her for her home renovations.

The applicant's submissions 31 The applicant's written submissions filed on 17 September 2018 may be summarised as follows. 32 As to question of law 1, the applicant submitted that the Tribunal's conclusion at [54] that there was no evidence that the applicant spouse had an expectation of future financial support from the deceased involved both a fundamental misapplication of the principles according to which it had directed itself and a failure to identify a good deal of evidence probative of that very matter. 33 As to the former of these propositions, the applicant submitted that the misapplication of the principles lay in the Tribunal's failure to recognise that a fund member's life partner, virtually by definition, had a future expectation of financial support. 34 As to the latter, the "no evidence" conclusion, the applicant submitted it was fundamentally inconsistent with the very notion of living in a relationship "as a couple". There was also evidence specifically supporting the likelihood of the deceased and the applicant remaining together, that evidence being in the form of the handwritten open letter of late December 2014 from the deceased, among other things promising to marry the applicant in the event that he overcame his illness. The applicant submitted that however financially independent the applicant and the deceased may have been when the deceased died, it did not follow that the applicant had no expectation of future financial support. It was part and parcel of the relationship of "a couple", the applicant submitted, that each would support the other financially in the event of need brought about by, say, incapacity or business misadventure. The finding that they lived at the relevant time as a couple simply entailed that mutual expectation. 35 In any event, the applicant submitted, the Tribunal also appeared to have accepted that, despite the absence of joint finances, the deceased and applicant "would each contribute to the household and their life together as the need arose", observing that this was not uncommon among couples who established a relationship relatively late in life. Moreover it was common ground that they conferred financial benefits on one another. The deceased loaned the applicant significant sums of money and the deceased's cohabiting with her in her residence allowed him to derive rental income from his property. 36 The applicant submitted that the fact that those in a spousal relationship had the resources to be financially self-sufficient did not preclude them from financially supporting one another in fact. The Tribunal appeared to have confused one concept with the other. On the undisputed facts the applicant and deceased had been providing each other with financial support up to the date of the deceased's death. That constituted further actual evidence of the applicant's expectation of future financial support. 37 The applicant submitted that this was an error on a question of law and a material error. Had the Tribunal found the applicant had an expectation of future financial support then, in accordance with the principles in terms of which it had directed itself, it would have held her to be the dependant exclusively entitled to the death benefit. 38 As to question of law 2, the applicant submitted first that the Tribunal took into account an irrelevant consideration. The applicant submitted that the Tribunal took into account on the question of the reasonableness and fairness of the trustee's decision, an irrelevant consideration, namely that of the deceased's wishes. The applicant submitted that this constituted an error of law. The correct approach, the applicant submitted, was as actually formulated but misapplied by the Tribunal, namely to identify the dependant(s) with expectations of future financial support from the deceased - in this case the applicant - and to distribute the benefit accordingly. 39 Still in relation to question of law 2, the applicant secondly submitted that the Tribunal failed to make a critical finding of fact in relation to whether the deceased had forgiven the applicant a debt in the order of $150,000 shortly before his death. The applicant submitted that the Tribunal's reason for concluding that it was unnecessary for it to decide whether or not the debt had been repaid appeared to be that the deceased must have known the position as to repayment and had ordered his affairs on the basis of that knowledge. The applicant submitted that this approach effectively equated the "fair and reasonable" criterion under s 37 with the deceased's wishes. The applicant submitted the Tribunal was required by s 37(6) to consider the fairness and reasonableness of the trustee's decision by reference to its practical operation upon all of the dependants. It could not do so without making a finding on the issue of whether the applicant had repaid the debt to the deceased. 40 As to question of law 3, the applicant submitted that the Tribunal found, at [51], that the applicant had been denied procedural fairness by the trustee upholding the deceased's adult children's objection without affording her an opportunity to rebut the assertion that the deceased had forgiven her the debt prior to his death. The Tribunal set aside the trustee's decision as unfair and unreasonable on the basis of the denial of procedural fairness. 41 In doing so, the applicant submitted, the Tribunal acted contrary to compelling authority that the unfairness and unreasonableness which justified interference with a trustee's decision must be as to the result and that procedural unfairness does not, per se, suffice. The applicant referred to Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; 119 ALD 472. Having set aside the trustee's decision the Tribunal then determined that the benefit be paid in equal shares to the applicant and the deceased's adult children. 42 In Edington, at [46] and [50], Kenny and Lander JJ said: … the tribunal stands in the shoes of the trustee and determines, based on all the information before it, whether or not a decision taken by the trustee was fair or reasonable in the circumstances. In Jevtovic [National Mutual Life Insurance Association of Australia Ltd v Jevtovic (1997) 217 ALR 316] at 321, Sundberg J held that the words "the decision … was fair and reasonable" in s 37(6) were directed to whether the actual decision, rather than the process that led to it, was fair and reasonable, a proposition that has subsequently been accepted as correct: see, for example, Citicorp Life Insurance [2005] FCAFC 102 at [19]; and Colonial Mutual Life Assurance Society Ltd v Brayley [2002] FCA 1333 at [31] per Branson J. … It must be borne in mind, however, that, notwithstanding the tribunal has "all the powers, obligations and discretions that are conferred on the trustee" (s 37(1)(a)), the tribunal is primarily concerned with the question whether or not the decision of the trustee was fair and reasonable. The whole of its inquiry, including its fact-finding, is directed to answering this question. As Mansfield J said in Lykogiannis [Lykogiannis v Retail Employees Superannuation Pty Ltd (2000) 97 FCR at 372] at [48]: [48] … Ultimately, whatever findings the Tribunal must make standing in the shoes of the trustee … s 37(6) requires the Tribunal to decide whether the decision under review, in its operation, was fair and reasonable in the circumstances. The focus of s 37(6) is upon the consequence or outcome of the decision in its practical operation, rather than upon the process by which the decision under review came to be made. In Hornsby v Military Superannuation and Benefits Board of Trustees (No 1) (2003) 126 FCR 484; 30 Fam LR 535; [2003] FCA 54, Mansfield J also said (at [19]-[20]): [19] [T]he 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. [20] 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; [2002] FCA 671 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 … We agree with Mansfield J's approach as stated in these passages. 43 Although the Tribunal's decision represented a different distribution of the benefit from that of the trustee's decision that it be paid entirely to the deceased's estate, the applicant submitted the effect was the same as the same individuals were entitled to the residue in the same shares and the estate had been administered at the time of the Tribunal's determination. This error was therefore, the applicant submitted, without any practical consequences.

Consideration 44 I turn first to consider ground 3 as it involves a threshold question. In my opinion it is clear that the Tribunal, at [51], misconstrued its jurisdiction by proceeding on the basis that a lack of procedural fairness of itself made the trustee's decision to pay the benefit to the deceased's legal personal representative unfair and unreasonable. As the Full Court made clear in Edington at [46] and [50], the Tribunal's consideration of whether a trustee's decision was "fair and reasonable" in the circumstances is to be based on the actual decision, not the process which led to the decision. I note that the Tribunal did not proceed on the basis that it accepted the applicant's objection, which it noted at [50], that the trustee had relied on incorrect information and that the applicant had, in fact, repaid the loans to the deceased. Indeed, the Tribunal did not itself decide this question and its decision was in substance no different to the decision of the trustee: see the Tribunal's reasons at [57]. Thus the Tribunal failed to proceed by reference to whether or not the trustee's decision to pay the benefit to the legal personal representative was not fair and reasonable. 45 Having failed to ask itself the right question as a condition of the exercise of its powers, the Tribunal has made an error of law and its decision is liable to be set aside. 46 I do not accept the applicant's submission that this error was immaterial. If the Tribunal did not find that the trustee's decision was not fair and reasonable then it should not have set the trustee's decision aside. This seems to me to be clear from the terms of s 37(4) of the Superannuation (Resolution of Complaints) Act. The focus should have been: was it fair and reasonable for the trustee to determine the payment should be made to the estate? What the executor of the estate would in fact do with that payment may be a factor relevant to that determination, but it cannot be determinative. 47 I turn to consider the other grounds. 48 As to ground 1, I am not persuaded that what the Tribunal said at [54] discloses a "no evidence" error of law. In my opinion, what the Tribunal was saying, read in accordance with the principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, was that there was no direct evidence, as a matter of fact, that the applicant had an expectation of future financial support. Contrary to the submissions made on behalf of the applicant on this application for judicial review, the Tribunal was not making a finding as to whether, in the words of the applicant's submission on the present application, it was "part and parcel of the relationship of 'a couple' that each would support the other financially in the event of need brought about by… incapacity or business misadventure". In substance the applicant's submission is that the Tribunal failed to draw an inference that the applicant had an expectation of future financial support by the deceased, but that would be a difficult proposition to sustain on judicial review. 49 Expectations of future financial support on the part of the dependants were not legally irrelevant, but, in my opinion, those expectations do not exhaust the field of what the Tribunal was required to consider. It would also be a mistake for the Tribunal to reason that whether a dependant is financially independent of the deceased at the deceased's date of death is determinative of whether that dependant had an expectation of continuing financial support by the deceased member had the member not died. It will be for the Tribunal to evaluate whether or not the applicant had an expectation of continuing financial support. In my opinion the Tribunal should not reason that the absence of direct evidence that a spouse had an expectation of future financial support necessarily means that that spouse had no such expectation. So to reason involves too narrow a concept of future financial support. 50 The first limb of ground 2 involves the claim that the deceased's testamentary intentions were a legally irrelevant consideration. The second limb of ground 2 involves the claim that whether the applicant's debt to the deceased had been paid or forgiven was a mandatory relevant consideration about which the Tribunal was obliged to make a finding. 51 As to the deceased testamentary intentions being legally irrelevant, in the absence of authority I would be disinclined to reach that conclusion. This is in light of the role of the Tribunal in relation to the decision of the trustee under cl 1.6.3(a)(5)(B) of the Trust Deed that any benefit payable from the fund shall be paid or applied by the trustee to or for the benefit of such one or more of the member's dependants and the member's legal personal representative to the exclusion of the other or others of them in such form, manner, proportions and subject to such conditions as the trustee may determine. The proposition that the applicant's will is legally irrelevant does not seem to me to follow from the circumstance that a superannuation death benefit does not form part of a deceased's estate. Indeed I note that at [34] of the applicant's written submissions the applicant submits, with reference to the decision of the Full Court in Edington at [50] and [51]: "That is not to say that the tribunal should have paid no attention to the deceased's will." However, in my view, it was legally erroneous for the Tribunal to treat the terms of the deceased's will as determinative of themselves. This erroneous approach on the part of the Tribunal also flows into the next ground concerning the question of repayment by the applicant of the loan. 52 As to the claim that the payment by the applicant or forgiveness by the deceased of the applicant's debt to the deceased was a mandatory relevant consideration, in my opinion the preferable characterisation of the legal error is that the Tribunal failed to complete its task, as submitted on behalf the applicant. That is, the Tribunal's task was to consider the fairness and reasonableness of the trustee's decision by reference to the practical operation of that decision and the Tribunal could not do so without making a finding on the issue whether the applicant still owed the debt to the deceased at the time of his death. 53 In my opinion, generally and except in a clear case it is not appropriate on an application for judicial review for the Court to make findings as to matters which were contested at first instance, even in circumstances where the other contesting parties before the Tribunal filed submitting appearances in this Court. In my view, this is not a case where there is only one answer, particularly in light of my conclusion as to ground 3. 54 The applicant submitted that the Court should decide that the applicant was the only dependant who had an expectation of future financial support and that pointed to a decision entirely in the applicant's favour so that the Court should make an order that the entirety of the death benefit be paid to the applicant. As I have indicated, in my opinion that would be to exercise the Tribunal's discretion in a case where it is not clear that there is only one answer. It is for the Tribunal to evaluate for itself whether the trustee's decision was unfair or unreasonable and thereafter exercise its determination-making power under s 37(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 no longer exists: see s 37(4).

Conclusion and orders 55 In summary, the Tribunal misunderstood the statutory concept of "fair and reasonable in the circumstances" by looking only at the procedural unfairness it found rather than looking to see whether that procedural unfairness meant that the decision itself was not fair and reasonable. 56 Further, although not claimed in these terms by the applicant, in my opinion the Tribunal could not have decided that the decision was or was not unfair or unreasonable without deciding the question of the repayment or otherwise of the applicant's debt to the deceased. The Tribunal needed to look at the practical operation of the trustee's decision. The Tribunal made this error of law by way of a related error of law by which it gave a dispositive or absolute value to the deceased's will in support of its reasoning that it did not have to decide the question of the repayment or otherwise of the applicant's debt to the deceased. 57 For these reasons I would allow the appeal, set aside the determination of the Tribunal and remit the matter to be determined again by the Tribunal in accordance with law. 58 The applicant sought an order that her costs in this Court be paid by the first, second, third, fourth and fifth respondents. The applicant submitted that the submitting appearances of those respondents did not mean there should be no order as to costs against them. The applicant referred to Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) [2014] NSWCA 317; 86 NSWLR 645, as considered by Perry J in Commissioner of Taxation v Warner (No 2) [2015] FCA 1281; 244 FCR 498 at [21]-[22]. 59 In my view there should be no order for costs in this application. I accept that a submitting appearance may not always "operate as some form of insulation" from costs consequences, see Kisimul Holdings at [19], but I consider there to be additional considerations in the present case. First, this was not an appeal as such, although referred to as an appeal in s 46(1), but an application for judicial review in the Court's original jurisdiction. Second, I do not conclude that the respondents against whom the applicant seeks a costs order caused the Tribunal to err in law, as I have found it did. Third, the application being on questions of law from a decision of a tribunal, it was necessary for the applicant, even if the first to fifth respondents had consented to the application being allowed, to persuade the Court that there had been an error of law on the part of the Tribunal and to articulate the basis for that conclusion: see Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; 100 FCR 323 at 326-328 per French J, approved in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168; 132 FCR 93 at [56] and Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; 174 FCR 574 at [13]-[14] and Consent Orders Involving a Federal Tribunal Practice Note (GPN-TRIB) at [2.1]. Fourth, I have not accepted the applicant's submission that the Court should make orders disposing of the matter, so it could not be said that the applicant has succeeded in that respect, although she may do so when the matter returns to the Tribunal. It is these matters which provide the context in which the submitting appearances were filed: see Kisimul Holdings at [14]. I also note that Warner (No 2), like Kisimul Holdings, was not an application for judicial review of a decision of a tribunal. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

SCHEDULE OF PARTIES NSD 1184 of 2018 Respondents Fourth Respondent: CHRISTOPHER JAMES DONKIN Fifth Respondent: MICHELLE LEE SHERIFF Sixth Respondent: SUPERANNUATION COMPLAINTS TRIBUNAL