Cameron v Board of Trustees of the State Public Sector Superannuation Scheme

Federal Court of Australia (Full Court)|1997-05-08|Before: Sundberg J, Dr Gerard J, Dowsett JJ

THE COURT 1 This is an appeal from a judgment dismissing with costs an appeal from a determination of the Superannuation Complaints Tribunal ('the Tribunal'): Cameron v Board of Trustees of the State Public Sector Superannuation Scheme [2003] FCA 63. We shall begin by outlining the background to that proceeding.

A Claim for Disability Benefit 2 The appellant was born on 7 April 1964. He matriculated at the University of Queensland where he completed a bachelor of science degree in 1985 and a diploma of education in 1986. The appellant then commenced employment as a secondary school teacher with the Queensland Department of Education, where he became a member of the superannuation scheme ('QSuper') administered by the respondent ('the Board'). He suffers from a voice disorder known as spasmodic dysphonia which caused him to give up work as a teacher on 19 September 1997. 3 In October 1998, in anticipation of ill health retirement, the appellant lodged a claim under QSuper for payment of a permanent disablement benefit. The rules of QSuper are contained in Queensland subordinate legislation entitled the Superannuation (State Public Sector) Deed 1990 ('the Deed'), which prescribes two levels of such a benefit. The Deed contains the following relevant definitions: '"disablement" means any mental or bodily injury, illness, disease or infirmity.' '"total and permanent disablement" means disablement of a degree which, in the opinion of the board after obtaining the advice of not fewer than 2 medical practitioners, is such as to render the member unlikely ever to be able to work again in a job for which the member is reasonably qualified by education, training or experience.' '"permanent and partial disablement" means disablement of a degree which in the opinion of the board is such as to render an employed member permanently unfit to discharge or incapable of discharging the duties of the member's office efficiently, but is not total and permanent disablement.'

The Decision Relating to Payment of Disability Benefit 4 In order to perform its functions the Board utilizes staff from the Queensland Government Superannuation Office ('the GSO'). In describing the consideration given to the appellant's claim, it will be useful, in light of the way his case was argued in the Court both below and before us, to trace when various medical reports were generated and briefly to note their contents. 5 The case manager at the GSO handling the appellant's claim was Jennifer Carrigan. She obtained a report dated 5 November 1998 from the appellant's general practitioner, Dr Keith Smith, and a report dated 23 December 1998 from his treating specialist, Dr Gerard J McCafferty, an otolaryngologist. In his report Dr McCafferty said that, from a laryngeal point of view, the appellant was capable of undertaking any form of employment which did not involve vocal communication and that his incapacity was permanent. Ms Carrigan also arranged to have an occupational assessment of the appellant made by Louis K Salzman, a clinical neuropsychologist, from whom a report dated 23 March 1999 was subsequently received. Mr Salzman's opinion was that, whilst the appellant was no longer able to function as a classroom teacher, he was capable of marking papers or working as a government statistician. 6 Ms Carrigan prepared a submission for the Manager, Disability Claims Management Group to whom the Board had delegated authority to determine the appellant's claim. The three reports mentioned in [5] above were appended to her submission, in which she recommended that 'on the medical evidence available' the appellant be considered permanently and partially disabled. On 27 April 1999 the delegate accepted this recommendation. 7 On 28 April 1999 Ms Carrigan wrote to the appellant informing him of the delegate's decision and of his right of appeal to the Board under s 30 of the Deed in respect of that decision. The appellant retired from the Department of Education on the ground of ill health on 28 May 1999, and he was subsequently paid a permanent and partial disablement benefit. 8 On 1 September 1999 a firm of solicitors, Macrossans, wrote on behalf of the appellant seeking a review of the delegate's decision by the Board. In their letter, in addition to canvassing the medical evidence, Macrossans addressed specifically the question of the appellant's ability to perform certain suggested categories of employment. (Ms Carrigan had obtained from Mr Salzman a supplementary report dated 17 June 1999 giving an opinion, on the basis of the appellant's academic record, of occupations and areas in which he should be able to work. One suggested position was laboratory technician in the field of biochemistry.) Macrossans contended that the evidence supported a finding of total and permanent disablement. 9 Greg Stuhmcke was the Manager, Review at the GSO. He obtained from Dr Smith a further report dated 18 October 1999. He also arranged to have the appellant re-examined by Dr McCafferty, who reported on 11 November 1999 that, whilst the appellant definitely would not be able to resume work as a classroom teacher, he should be able to do clerical or research work in a quiet environment. Copies of these reports were provided to Macrossans, who made extensive further submissions on 24 December 1999. In particular, Macrossans took issue with Dr McCafferty's suggestion of a suitable occupation. In support of their submissions Macrossans forwarded a report of an assessment of the appellant's voice status made on 28 July 1995 by Jennifer Longland, a speech pathologist, together with a tape of a subsequent speech pathology session with Ms Longland on 22 September 1995. 10 Mr Stuhmcke prepared a submission for the Board's meeting on 19 January 2000. He attached to that submission the evidence to be considered by the Board. In addition to the reports from Dr Smith, Dr McCafferty and Mr Salzman, this included all the material submitted by Macrossans with their letters of 1 September 1999 and 24 December 1999. The Board's executive officer recommended that it affirm the delegate's determination. 11 The Board comprises ten trustees. Section 6I(3) of the Superannuation (State Public Sector) Act 1990 (Qld) provides that a resolution is passed at a Board meeting only if at least seven trustees vote in favour of the resolution. At the meeting on 19 January 2000 only five trustees voted to approve the recommendation. The matter was resubmitted to the Board meeting on 16 February 2000, and again only five trustees voted for the recommendation. Accordingly it was noted in the minutes for the meeting on 16 February 2000 that the Board was unable to make a decision and that the determination of the delegate on 27 April 1999 stood.

The Complaint to the Tribunal and Reconsideration by the Board 12 On 26 April 2000 the appellant lodged with the Tribunal a complaint under s 14 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) ('the Act'). The complaint was sent under cover of a letter from Macrossans dated 13 April 2000 with a mass of other enclosures, much of which was fresh information and documentation that had not been furnished to the Board. One such document contained information about the occupation of laboratory worker indicating that such a person required 'good eyesight and normal colour vision'. This was linked with a letter dated 6 April 2000 from Dr Manuel Petavrakis suggesting that the appellant was colour-blind. 13 Pursuant to s 23(2) of the Act the Tribunal allowed the appellant to be represented by Macrossans because of his vocal disability. The Board then arranged to have the appellant examined by Dr Johnn Olsen, a consultant physician in occupational medicine. Mr Stuhmcke wrote to the Tribunal indicating that upon receipt of Dr Olsen's report the Board would reconsider the appellant's case and requesting that in the meantime the Tribunal postpone any further action on the complaint. Macrossans agreed with this course, and the Tribunal said that it would take no further action until the appellant was ready to proceed with the complaint. 14 Dr Olsen examined the appellant on 29 November 2000. He prepared the same day a report, in which he accepted that the appellant could not work as a teacher, but he suggested a number of occupations that would be open to the appellant 'on the basis of his education, training and experience'. Dr Olsen's report was forwarded to Macrossans and to the Tribunal. 15 On 8 March 1991 Macrossans sent the Board extensive submissions in support of their contention that the appellant was totally and permanently disabled in terms of the definition contained in the Deed. They addressed each of the jobs suggested by Dr McCafferty, Mr Salzman and Dr Olsen by reference to a number of new documents. These included a report dated 23 January 2001 from Dr Keith Adam, a specialist in occupational medicine, and a report dated 7 March 2001 from Dr Michael Waldie, an ophthalmic surgeon and physician. (Macrossans had arranged to have the appellant examined by each of these doctors on 22 January 2001.) Dr Adam reported his opinion that the appellant was totally unfit for work as a classroom teacher, but that he 'would be physically capable of performing a variety of alternative occupations provided there was no requirement for voice communication'. Dr Adam went on to give his opinion on the question (which he acknowledged was 'essentially an administrative or legal' one for the Board) whether such alternative employment was a 'job' for the purposes of the Deed's definition of 'total and permanent disablement'. In particular, Dr Adam disagreed with the opinion expressed in Mr Salzman's supplementary report of 17 June 1999 that the appellant could obtain employment in the areas of mathematics, statistics, chemistry or physics. Dr Adam said that the appellant had not studied any such field in sufficient depth and his grades in some subjects were below pass level. Dr Adam concluded that the appellant 'could not readily obtain employment in the alternative fields suggested by Mr Salzman or Dr Olsen, at least not without further training'. In his report Dr Waldie said that the appellant had a 'complete red-green colour vision defect', which 'would have significant specific impacts on the individual's ability to safely and reliably perform laboratory work'. 16 Michelle Muirhead, the Acting Manager, Review at the GSO, prepared a submission for a meeting of the Board to be held on 21 March 2001, at which the delegate's decision was to be reconsidered. She attached to the submission all the reports from the doctors (save Dr Petavrakis), the report of Mr Salzman and all the submissions from Macrossans, and she also noted that the tape of the pathology session with Ms Longland would be available for listening at the Board meeting. The executive officer recommended that the Board affirm the delegate's decision. At the meeting six trustees voted to accept the recommendation. On 22 March 2001 Mr Stuhmcke wrote informing the Tribunal that the outcome of the Board's recommendation was that the delegate's decision of 27 April still stood.

The Submissions to the Tribunal 17 On 28 March 2001 Macrossans wrote to the Tribunal indicating that the appellant wished to proceed with his complaint. They enclosed a copy of their letter dated 8 March 2001 to the Board and of the documents sent with it. Macrossans said: 'In the statement prepared for the Board of Trustees at its meeting held on 21 March, 2001, it was correctly identified that the issue for the determination of the Board was whether or not our client was reasonably qualified by his education, training or experience to work in alternative employment to classroom teaching as at the date of his ill health retirement on 28 May, 1999 without undergoing further training or study. In the submissions made to the Board of Trustees, we identified every occupation that Q-Super's medical advisors had indicated our client was capable of performing and we put forward objective evidence which proved that our client was either not capable of performing those occupations or was not qualified to perform them. The Board of Trustees did not obtain evidence to refute the objective documentation which we believe had proven either our client's incapacity or lack of qualifications for those occupations. That objective evidence included letters from employers in the suggested occupations to the effect that our client would not be able to be employed due either to a lack of capacity to carry out the essential elements of a nominated occupation or was simply not adequately qualified to work in that occupation. Nevertheless, the Board of Q-Super declined to find that our client was totally and permanently disabled in terms of the Q-Super Trust Deed. In the circumstances, the decision by Q-Super is unreasonable. We submit that the irresistible inference to be drawn from Q-Super's decision is that a mis-application of the decision making process has taken place. The only fair outcome would be to accept that our client has satisfied the criteria, and is eligible, for the payment of a total and permanent disablement benefit.' 18 The Tribunal decided not to hold a conciliation conference. On 10 July 2001 the parties were notified that a review meeting would be held on 3 September 2001. Macrossans sent the Tribunal written submissions dated 24 July 2001, in which they complained that the Board had 'summarily dismissed [Dr Adam's] opinions without explanation'. The Board's written submissions were received by the Tribunal on 31 July 2001. 19 Each party was given an opportunity to respond to the other party's written submissions. Rosemary Vilgan, the Board's executive officer, responded on 16 August 2001. Specifically, she said that it was not correct to say that the opinions of Dr Adam were dismissed without explanation. Ms Vilgan pointed out that six trustees supported a material finding proposed in the submission to the Board meeting on 21 March 2001 in the following terms: 'Dr Adam, Specialist in Occupational Medicine agrees with Dr Olsen that Mr Cameron retains sufficient body function to allow him to consider alternative occupations'. (Ms Vilgan also said that it was not the role of any medical practitioner to form an opinion whether a member satisfies the Deed's definition of 'total and permanent disablement'.) In submissions dated 20 August 2001 Macrossans said of the finding supported by the six trustees: 'The fact that our client retains sufficient body function to allow him to consider alternative occupations addresses only one part of the test contained in the total and permanent disablement definition. Dr Adam does not suggest that our client is reasonably qualified for any such alternative occupations.' 20 On the morning of the review meeting, on 3 September 2001, Macrossans faxed a response to Ms Vilgan's submissions. They said (at p 7) that Ms Vilgan had taken Dr Adam's comment out of context, and they drew attention to Dr Adam's belief that alternative occupations did not fall within the Deed's definition.

The Determination of the Tribunal 21 The Tribunal conducted the review without oral submissions. It made its determination on 27 November 2001, concluding that the decision of the Board was fair and reasonable in its operation in relation to the appellant in the circumstances. The Tribunal thus effectively affirmed the delegate's decision. 22 The written reasons of the Tribunal comprise eight pages. They include a section (at pp 3-4) headed 'Medical Reports' and sections (at pp 4-7) dealing with the parties' submissions. Under the heading 'Tribunal's Deliberations', the reasons continue (at pp 7-8): 'The Tribunal must determine whether the [Board]'s decision to reject the claim of the Complainant for a TPD [total and permanent disablement] benefit was fair and reasonable in relation to the Complainant in the circumstances. In making its decision, the Tribunal considered the whole of the submissions and the evidence on the file. There does not appear to be any dispute as to the medical conditions that limit the capacity of the Complainant to engage in work involving regular vocal communication. What is in dispute is whether, given his acknowledged difficulties, he is unlikely ever to be able to work again in a job for which the member is reasonably qualified by education, training or experience. The Tribunal believes the word "unlikely" embraces a wider consideration than the capacity of the Complainant to ever again work in a job but must also consider the likelihood of obtaining employment having regard to the limitations any potential employer might see in an applicant with the limitations of the Complainant. Since ceasing work as a teacher the Complainant engaged in further training. It was submitted that this is a matter that should not be considered by the Tribunal. The Tribunal makes a de novo review and any training carried out before that review can be taken into account in determining the likelihood of obtaining employment. The medical opinion was quite consistent in suggesting that there were occupations that the Complainant could undertake having regard to his significant qualifications and experience. It was clear that the Complainant could no longer engage in tasks that required more than a very moderate level of communication particularly involving groups of people or other stressful situations. In trying to establish that he was unlikely to obtain work, the Complainant obtained information from potential employers which tended to suggest that he would not be considered by them to be capable to work in their vocational area. However, in the Tribunal's view such specific responses, particularly in regard to clerical work, cannot reasonably be translated to a general conclusion that such work will not be available. Many ex teachers do work in the fields of clerical and administrative work and it would be too narrow a view to suggest university education only prepares graduates for a specific and not a general career. There was sufficient evidence that the Complainant was likely to be able to work again in a job for which he was reasonably qualified by education, training or experience. The employer sponsor of this Fund employs a large number of people in a wide range of occupations. Some of these would fall within those categories of work that the Trustee believes the Complainant would be able to seek and obtain and therefore the opportunity exists to assist the Complainant in this regard. Despite the limitations faced by the Complainant and having regard to all the opinions expressed the Tribunal formed the view that the decision of the [Board] that the Complainant did not meet the definition of TPD was fair and reasonable given the Complainant's young age and substantial and transferable qualifications.'

The Judgment Under Appeal 23 The primary judge described (at [6]) the basis on which the jurisdiction of the Court was invoked as follows: 'The questions of law said to arise on the appeal are the nature and function of the Tribunal in reviewing a decision under s 37 of the Act; whether the Tribunal erred in law in failing to take into account a relevant consideration, being a specialist medical opinion; the true meaning of the definition of "total and permanent disablement" in the … Deed; and whether the Tribunal reached a reasonable conclusion on the facts and gave adequate reasons for its decision.' 24 On the first of such questions, his Honour said (at [25]): 'The appellant contends that the Tribunal misdirected itself as to its role in reviewing the [Board]'sdecision. It failed to appreciate that, in hearing the matter de novo, it was obliged to consider the evidence for itself and form its own preliminary view as to whether the applicant was entitled to the TPD benefit. It was said that, when the Tribunal stated: "There was sufficient evidence that the complainant was likely to be able to work again in a job for which he was reasonably qualified by education, training or experience." the Tribunal posed the wrong question for itself. The question was not whether there was "sufficient evidence" in favour of forming an opinion. Such a statement is suggestive of simply determining if the [Board]'s decision was supportable. Rather, it was said, the question is whether (weighing evidence on both sides) the Tribunal finds as a fact that evidence as to capacity submitted by the applicant ought be preferred, as a precursor to deciding whether the respondent's decision was fair or reasonable.' 25 The primary judge rejected those submissions (at [28]-[32]) referring to the decisions of Sundberg J in National Mutual Life Association of Australia Ltd v Jevtovic (unreported, Federal Court of Australia, 8 May 1997), of the Full Court in National Mutual Life Association Ltd v Campbell (2000) 99 FCR 562 and of Allsop J in Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359. His Honour rejected the construction urged by the appellant of the passage singled out from the Tribunal's reasons and said that, in his opinion, 'what the Tribunal was saying was that on all of the evidence before it, the decision of the [Board] was fair and reasonable in the circumstances'. His Honour held that the Tribunal did not misdirect itself about the task it had to perform, saying (at [31]): 'It is not for the Tribunal, in my opinion, to ask itself whether the [Board]'s decision was the correct or preferable one. Nor is that a necessary enquiry before asking whether the [Board]'s decision was a decision which was fair and reasonable in the circumstances.' (Emphasis in original.) 26 The primary judge summarized (at [26]-[27]) the appellant's submissions on the second and fourth questions of law he identified as follows: 'The second ground was a complaint that the Tribunal failed to take into account the opinion of Dr Adam, it being submitted that the Tribunal did not even advert to the existence of the report by Dr Adam, and that failure amounted to a failure to take into account a relevant consideration. Next it was said that the finding that the medical opinion was quite consistent in suggesting there were occupations that the complainant could undertake, taking into account his significant qualifications and experience, could not stand, having regard to the report of Dr Adam which was before it.' 27 His Honour said (at [33]) of these grounds: 'It seems to me, also, that the fact that the Tribunal was not persuaded by the report of Dr Adam does not mean it was not before it, or that the Tribunal did not consider it. It is clear from the Tribunal's statement of reasons that the report of Dr Adam was a relevant consideration, but the Tribunal was unpersuaded by it. As to the statement by the Tribunal that the medical opinion was quite consistent in suggesting there were occupations that the complainant could undertake having regard to his significant qualifications and experience, Dr Adam expressed the belief that the alternative occupations proposed for Mr Cameron did not fall within the definition of occupations for which the appellant was fit by reason of education, training or experience. Dr Adam's opinion in this respect is not really a medical opinion, but a view as to the adequacy of the need for further training or the depth of study that Mr Cameron has in a particular field.' 28 On the final question of law, his Honour expressed (at [34]) his opinion that the reasons of the Tribunal exposed its reasoning process and that there was no error of law for inadequacy of reasons in the Tribunal's determination.

Submissions and Reasoning on Appeal 29 The appellant re-agitated before us the grounds of appeal rejected by the primary judge and complained that his Honour did not deal at all with a ground of appeal said to raise the true meaning of the definition of 'total and permanent disablement' in the Deed. In his address, counsel for the appellant put at the forefront of his submissions 'the treatment' of Dr Adam's report by the Tribunal. This topic can be disposed of straightaway. 30 It is true that Dr Adam's report is not mentioned or even obliquely referred to in that section of the Tribunal's reasons headed 'Medical Reports'. (Nor, by the way, are those of Dr Petavrakis and Dr Waldie, although it is noted as 'agreed by all that the [appellant] was colour blind'.) Further, it is true that the only explicit reference to Dr Adam by name in the Tribunal's reasons is contained in an excerpt reproduced from the Board's submissions. The appellant submits that the Tribunal thus failed to take into account a relevant consideration. The appellant also submits that, given the views expressed in Dr Adam's report, no reasonable person could come to what his counsel calls the 'conclusion' expressed in the first sentence of the fourth paragraph from the Tribunal's reasons reproduced at [22] above. 31 The first thing to say about these submissions is that, as Dr Adam himself seemed to realize and as the primary judge pointed out, Dr Adam's view of the meaning of the Deed's definition does not constitute a medical opinion. The observation of the Tribunal about the medical opinion being 'consistent' was not manifestly unreasonable. It was an accurate statement of the evidence before it. 32 More importantly, the submissions made on behalf of the appellant rest on a complete misconception of the grounds of judicial review explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-43. The factors that a decision-maker is bound to consider in making a decision are determined by construction of the statute conferring the power to make that decision, not by the pieces of 'evidence' submitted to the decision-maker by a person affected by the decision. In the present case, as Allsop J explained in Crocker at [28], s 37(5) of the Act makes the conformity of the delegate's decision with the rules of QSuper a relevant consideration in the sense discussed in Peko-Wallsend. That means the Tribunal must take into account the relevant definitions in the Deed, but the failure of the Tribunal in the present case to refer to any part of Dr Adam's report does not mean that it failed to have regard to a matter it was bound to take into account. 33 In fact, the Tribunal noted in the sections of its reasons dealing with the parties' submissions the drift of what Macrossans had to say about the application of the Deed's definition of 'total and permanent disablement' in the appellant's case. Specifically, it recorded the submission that the appellant did not have 'the knowledge or the skills to perform the necessary tasks in any occupation other than teaching'. That was, in substance, Dr Adam's view as to the effect of the definition. The Board's submissions emphasized not only the appellant's university qualifications, but also his attendance at a TAFE computing course since giving up work as a teacher. The Tribunal alluded to Macrossans' response reproduced in [19] above (which, as can be seen, mentioned Dr Adam's report), and it set out an excerpt from Macrossans' submissions to the effect that the statutory definition in the Deed was concerned only with occupations for which a member was reasonably qualified 'as of the date of his retirement'. 34 No doubt, the Tribunal did look at Dr Adam's report. Any opinion expressed by an occupational physician about the ability of the appellant to perform a specified job given the clinical features of his disorder would be highly relevant. It would touch directly on the 'degree' of disablement. However, such a medical specialist's views about other possibly relevant matters, such as university syllabuses and grades and the true meaning of a statutory definition, would be likely to command little attention from a body like the Board, which is composed of employer and employee representatives from the public sector. The primary judge was undoubtedly correct in observing that the Board was unpersuaded by Dr Adam's views on these topics. His Honour did not err in rejecting those grounds of appeal. 35 The primary judge's disposition of those grounds in relation to Dr Adam's report may have led him to overlook expressly dealing with the error alleged on the part of the Tribunal in applying the Deed's definition of 'total and permanent disablement'. That would be entirely understandable if the argument in the Court below proceeded on the same basis as the submissions before us, which in the main addressed the evidence and other material before the Tribunal and cavilled with its findings of fact. 36 The appellant contended that the words in the definition following the word 'job' are words of limitation: Edwards v The Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Insurance Cases ¶61-113 per McLelland J at p 77,537. That submission may be accepted, but the Tribunal's reasons show that it approached its task conscious of that stipulation. The careful reference to the appellant's 'further training' directly engaged Macrossans' contrary submissions on this aspect of the Deed's definition and was linked with the Tribunal's earlier acknowledgment of the realities of the labour market in determining whether the appellant was 'unlikely' ever to be able to work in a job so qualified. Counsel for the appellant scoffed at what the Tribunal later had to say about university education, labelling it as a platitude, but 'education' was one of the very matters prescribed by the words of limitation in the definition. The alleged error of law is not made out, and this ground of appeal also fails. 37 We turn now to the primary question of law raised on the appeal in the Court below, namely, the function of the Tribunal in reviewing a decision under s 37 of the Act. The appellant repeated essentially the submissions made at first instance. Counsel for the appellant contended that, as a first step towards determining whether a decision was fair and reasonable, the Tribunal had to come to a 'presumptive decision' on the material before it as to whether the appellant was totally and permanently disabled. The expression 'presumptive decision' appears to come from the judgment of Ryan J in National Mutual Life Association of Australasia Ltd v Scollary [2002] FCA 695 at [35]. 38 The appellant does not challenge the holding in Jevtovic that the task of the Tribunal under s 37 of the Act was to ask itself whether a decision complained of was fair and reasonable in the circumstances, and not whether in its opinion a complainant was totally and permanently disabled. However, it was submitted that the requirement for the Tribunal to weigh the evidence on both sides and reach its own preliminary view on the question of total and permanent disability was recognized by Mansfield J in Lykogiannis v Retail Employees Superannuation Pty Ltd (2000) 97 FCR 361 and by Kiefel J in Military Superannuation and Benefits Board No 1 v Stanger (2002) 68 ALD 12. 39 In the passage relied upon in Lykogiannis, (at [48]) Mansfield J said: 'Those decisions [about the obligation of the Tribunal under s 37 of the Act] are all to the same general effect. Upon hearing a complaint, the Tribunal must make its own decision. In the course of doing so, it must make findings of fact relevant to its deliberations. The hearing by the Tribunal is a hearing de novo (see in particular the discussion by Merkel J in [Seafarers' Retirement Fund Pty Ltd v] Oppenhuis [(1999) 94 FCR 594 at 598-599] [18]-[22]. Ultimately, whatever findings the Tribunal must make standing in the shoes of the trustee (see the observations of Merkel J in Briffa [v Hay (1997) 75 FCR 428] and in Oppenhuis) 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.' 40 In Stanger Kiefel J said (at [22]): 'The question whether the Board's decision was unfair or unreasonable can only be assessed after the Tribunal comes to its views on the same matters referred to in r 23, albeit that it may further inform itself.' 41 This last statement must, however, be seen in context. The rule mentioned by her Honour, r 23 of the Military Superannuation and Benefit Rules (Cth), referred to 'a physical or mental impairment of the pensioner that was the cause … of the invalidity'. In that case the Board considered one physical impairment and the Tribunal appeared to consider another physical impairment. Kiefel J held that there was no evidence to support the Tribunal's conclusion that the impairment to which it had regard was the cause of the pensioner's invalidity. The case stands for the unexceptionable proposition that s 37 of the Act requires the Tribunal to consider the same disabling physical or mental condition that was the subject of the decision under review. 42 Nor does Lykogiannis provide any support for the appellant's contentions. In Hornsby v Military Superannuation & Benefits Board of Trustees No 1 [2003] FCA 54 Mansfield J acknowledged (at [17]) that the role of the Tribunal under s 37 of the Act was not to decide for itself the correct or preferable decision because it had to affirm a decision if it was satisfied that the operation of the decision the subject of its review was fair and reasonable in the circumstances. His Honour said (at [19]): '…, 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.' 43 A decision under review pursuant to s 37 of the Act may, as Allsop J pointed out in Crocker at [29], be 'one which so involves elements of fact, degree, opinion or value judgment that different minds can legitimately differ in reaching a decision'. That is why the Tribunal's task is not to ask itself whether such a decision was the correct or preferable decision. The correct approach was pithily summarized by Allsop J in Crocker (at [31]) as follows: '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.' 44 For completeness we should add that the primary judge was undoubtedly correct in rejecting also the construction placed by the appellant on the final sentence of the third last paragraph from the Tribunal's reasons reproduced in [22] above. That construction was strained and extremely artificial. A fair reading of the whole of the Tribunal's reasons shows that it was not diverted from its statutory task. The primary judge correctly held that the Tribunal's approach to its function under s 37 of the Act was not flawed. 45 That leaves one final ground of appeal. Section 40 of the Act obliges the Tribunal to give reasons for its determination. Section 25D of the Acts Interpretation Act 1901 (Cth) spells out the contents of such a statement of reasons. It may be doubted that a simple contravention of s 40 would justify setting aside the determination of the Tribunal. The object of a provision such as s 40 is explained in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In the present case the appellant has been unable to point to any failure by the Tribunal to make a finding of fact which reveals an error of law in its determination. The appellant merely restates his earlier submissions in a different form. 46 The appeal will be dismissed with costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 5 September 2003 Counsel for the appellant: D W Marks

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