FAILURE OF INQUIRY
29 The second ground of appeal relies on error of law arising from the Tribunal having 'overlooked relevant matters'. That, however, is not a reliance on a failure to take account of relevant material because the applicant goes on to identify certain material which he says would have come to light had certain inquiries been made. The focus of the ground is what is said to be the failure to make those inquiries. The alleged failures of inquiry were referrable to Homeswest assistance to the second respondent in relation to bond assistance; to the real estate agent for rental and like records; to the second respondent for financial records and her financial position and whereabouts, movements and living arrangements; and to the Department of Social Security.
30 The applicant contends that the duty to inquire arises from the nature of the statutory provisions in accordance with which the Tribunal was bound to act. It is appropriate to turn, therefore, to the provisions of the Act which are relevant or otherwise relied upon.
31 Section 11 of the Act specifies Tribunal objectives in the following terms:
'11 Tribunal objectives
The Tribunal must, in carrying out its functions or exercising its powers under this Act, pursue the objectives of providing mechanisms for:
(a) the conciliation of complaints, and
(b) if a complaint cannot be resolved by conciliation:
(i) review of the decision or conduct to which the complaint relates; or
(ii) if an arbitration agreement refers the complaint to the Tribunal for arbitration - the arbitration of the complaint;
that are fair, economical, informal and quick.'
32 Section 12(1) describes the functions of the Tribunal in the following terms:
'12(1) The functions of the Tribunal are:
(a) to inquire into a complaint and to try to resolve it by conciliation; and
(b) if the complaint cannot be resolved by conciliation:
(i) to review the decision or conduct to which the complaint relates; or
(ii) if an arbitration agreement refers the complaint to the Tribunal for arbitration - to conduct an arbitration in respect of the complaint; and
(c) any functions conferred on the Tribunal by or under any other Act.'
33 The provision of information and documents to the Tribunal is dealt with in ss 24 and 25. Section 24 of the Act creates an obligation, relevantly, on a trustee within 28 days after receiving notice of a complaint to give to the Tribunal a copy of all documents or parts of documents in the possession of the trustee that are considered by it to be relevant to the complaint. Section 25 provides a power for the Tribunal to obtain information and documents. In particular, pursuant to subs (2) and subs (3) of that section, the Tribunal is empowered by written notice to require the giving of information or the production of documents from both the person whose decision or conduct was complained of or a person other than the person whose decision or conduct was complained of.
34 Section 27 provides that if a complaint has not be withdrawn and the Tribunal is satisfied it can deal with the complaint, it must 'inquire' into the complaint and try to settle it by conciliation. Where conciliation fails to settle a complaint there is an obligation arising under s 32 for the Tribunal Chairperson to fix a date, time and place for a review meeting. Division 2 of Pt 6 of the Act sets out provisions on how the Tribunal must inform itself about the decision or conduct under review. Section 33 provides that a party to the review meeting may make written submissions to the Tribunal for the purposes of the review meeting. Section 34(1) provides that subject to subs (2), the Tribunal must conduct a review meeting 'without oral submissions from the parties'. Subsection (2) permits the Tribunal, if it thinks necessary, to make an order allowing the parties to make oral submissions to the Tribunal at the review meeting and subs (3) requires notice to be given of such submissions.
35 Division 3 of Pt 6 contains provisions concerning the review meeting. Section 36 provides:
'36 Meeting procedure
The Tribunal, in reviewing a decision or conduct:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) is to act as speedily as proper consideration of the review allows, having regard to:
(i) the objectives laid down in section 11; and
(ii) if the complaint relates to a fund - the interests of all the members of the fund; and
(c) may inform itself of any matter relevant to the review in any way it thinks appropriate.'
36 Section 37 sets out the Tribunal's powers in relation to complaints under s 14. Subsection (5) reads:
'(5) The Tribunal must not do anything under subsection (3) that would be contrary to law, to the governing rules of the fund concerned and, if a contract of insurance between an insurer and trustee is involved, to the terms of the contract.'
Subsection (3) provides that on reviewing the decision of a trustee and others the Tribunal must make a determination affirming the decision, remitting it to the decision-maker, varying it or setting aside and substituting a decision.
37 It should also be mentioned that by s 38(1) it is required that a review meeting of the Tribunal is to be private. By s 38(4) the Tribunal in giving directions must have regard, among other matters, to the need to protect that privacy.
38 The submissions for the applicant in contending for the existing of a duty on the Tribunal to inquire in the manner contended for in the ground of appeal relies in particular on the presence in the Act of the provisions of s 24, 25, 27 and 37(5).
39 With reference to the application of s 37(5), it is contended for the applicant that provision required the Tribunal, in the circumstances of this case, to investigate whether the second respondent was in receipt of social security benefits because, if it were established that she was, that would exclude her eligibility under the governing rules. That submission is in fact a shorthand contention that if the proof of social security benefits had been established in evidence before the Tribunal, there would be a failure by the second respondent to qualify as a 'spouse' or a 'dependant'. That, however, is not the case as examination of those definitions makes apparent. A spouse means, in par (b), a person who 'in the opinion of the Trustee lives or lived with the Member as at the relevant date on a bona fide domestic basis as the husband or wife of that Member'. A dependant requires a determination by the trustee of the state of dependency or alternatively includes a person to whom 'the Member has a moral or legal obligation to support, at the relevant date'. It is simply not the case that inquiry yielding evidence concerning receipt of social security benefits by the second respondent which the applicant says may have resulted would necessarily have had the effect contended for. In any event, for the first respondent it is contended that s 37(5) applies only to the circumstances of operation of s 37(3), that is on reviewing the decision, and does not have application to the conduct of the review itself. It is unnecessary to determine that issue of statutory construction.
40 The case of the applicant in support of a duty to inquire starts from the proposition that the Tribunal's only consideration of the issue of financial dependency, whether in a de facto relationship or not, was based on a comparison of statutory declarations. It is said that the Tribunal made no attempt to corroborate material expenses in such statutory declarations. It is submitted this occurred in circumstances where the statutory declarations made apparent evidentiary difficulties. Further, there was a claim before the Tribunal that the second respondent said at least a portion of her income at the time of the deceased's death was from part-time work. It is submitted that neither the allegation of the second respondent's receipt of social security nor the assertion of the receipt of an independent income by the second respondent was tested by the Tribunal and nor was it investigated, although it was the case that the Tribunal considered a trustee should seek evidence concerning the existence of a de facto relationship or financial dependency. It is said, for the applicant, that the glaring failure by the Tribunal to require the production of relevant documents by the second respondent, if rectified, would have established the level of financial dependency by her on the deceased, if any, and the basis upon which the second respondent received her independent income. This, it is said, amounts to a failure by the first respondent and the Tribunal to come to grips with the nature of the process required to test the applicant's complaint. It is submitted that in accordance with its obligations flowing from s 27 and s 37(5), the Tribunal was required to engage the substance of the complaint by requiring the production of, and considering, the information identified in this ground.
41 The submissions for the applicant rely in particular on the decision of Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169 which suggested that where it is obvious material is readily available which is centrally relevant to the decision to be made, to proceed to the decision without making any attempt to obtain that information may properly be described as an exercise of the decision making power in a manner so unreasonable that no reasonable person would have so exercised it. Here there is no evidence that the information was 'readily available' although the Court is impliedly invited to infer that it would have been known to the second respondent and so readily available.
42 There seems to me to be four reasons why this second ground of appeal cannot succeed.
43 First, it is clear that the provisions of the Act do not mandate an inquiry. Rather, the provisions facilitate such inquiry so it is dependent upon the effect of those provisions in the context of the common law as to whether they can give rise to any obligation to consider whether they should be exercised in a particular way.
44 Secondly, the common law in Australia has not been encouraging to the establishment of a duty to inquire in the absence of a statutory provision imposing such a duty: cf Minister for Immigration Ethnic Affairs v Teoh (1995) 183 CLR 273. In their reasons for decision in Teoh at 290, Mason CJ and Deane J, starting from an acceptance of the correctness of the approach of Wilcox J in Prasad at 169 in an appropriate case, stated that Teoh was not a case which was argued on the ground of Wednesbury unreasonableness. They added that they could not see how the suggested failure to initiate inquiries could be supported on the footing that there was some departure from the common law standards of natural justice or procedural fairness. Toohey J at 302 said that generally speaking, it is not the decision-maker's duty to initiate inquiries, relying on Videto v Minister for Immigration & Ethnic Affairs (1985) 8 FCR 167 at 178. In dismissing the appeal in Teoh he did not rely on any failure by the delegate to initiate inquiries and obtain reports. Gaudron J at 304 stated that if there was a common law right requiring children's best interest to be taken into account in all decisions by governments and government agencies, it may be that a decision-maker is required, at least in some circumstances, to initiate appropriate inquiries. In the absence of any such right the case fell to be decided by reference to the requirements of natural justice.
45 McHugh J at 321 said:
'In a number of cases, the Federal Court has found that a failure to make further inquiries constituted an improper exercise of the power granted by the statute or a failure to take into account a relevant consideration in exercising that power. In those cases, the Federal Court has held that further inquiries should have been made because (1) a specific matter was raised by an applicant or was within the knowledge of the Minister and that matter could not be properly considered without further inquiry, eg. Lek v Minister for Immigration, Local Government and Ethnic Affairs [No 2] (1993) 45 FCR 418, Akers v Minister for Immigration & Ethnic Affairs (1988) 20 FCR 363; cf Singh v Minister for Immigration & Ethnic Affairs (1987) 15 FCR 4, (2) the information before the Minister was not up to date, eg. Tickner v Bropho (1993) 40 FCR 183 or (3) the absence of information before the Minister resulted from the Minister's officers misleading the applicant, eg. Videto v Minister for Immigration & Ethnic Affairs (1985) 8 FCR 167. This case does not fit into any of those categories.'
He also added that while it may have been that further inquiries concerning the plight of the family there in issue may have led the delegate to place more weight on what would happen to the children if the application were refused, that was a matter of weight which was for the decision-maker and not for the courts in an application for judicial review.
46 In the decision in Prasad, Wilcox J preferred an intermediate position to that which is relied upon for the applicant, namely, that the Court is entitled to consider those facts which were known to the decision-maker, actually or constructively, together only with such additional facts as the decision-maker would have learned but for any unreasonable conduct by him. The dicta of Wilcox J was obiter.
47 That dicta was recently considered in Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 at pars 622 - 629. At par 625 Tamberlin J said:
'His Honour's remarks were qualified. Although his Honour made the observations in the context of a Wednesbury unreasonableness claim, the existence of a duty, in some circumstances, to make further enquiries can be accepted, but such a duty can also be founded on the ground of a duty to take into account relevant considerations: See the observations of Black CJ in Tickner v Bropho (1993) 40 FCR 183, at 197 - 199 and also Luu v Renevier (1989) 91 ALR 39 at 50.'
48 In the case before Tamberlin J, the issue was whether the regulating authority ought to have carried out further investigations by way of constructing a methodology and gathering empirical data to assess the effects on competition and efficiency and to analyse the concept of markets. Tamberlin J concluded that that was not a case where it could be said to be obvious that material was readily available which was centrally relevant to the decision to be made or that it was a case of a simple short inquiry. Moreover, he said, that in undertaking the consultation process and other investigations made, there had been an attempt to obtain relevant information. In his view it could not be said that there was a duty to make any further enquiries or carry out further work. Accordingly, it could not be said the failure to do so was so unreasonable as to render the decision nugatory or to constitute a failure to take into account relevant considerations in the exercise of the decision-making powers.
49 In his reasons in Visa International Tamberlin J pointed out that Aronson and Dyer in Judicial Review of Administrative Action, 2nd edn, 2000 at 229 noted that the argument that the decision-makers are under an implied obligation to make inquiries before coming to their decision rarely succeeds and that the normal rule is to allow decision-makers to do no more than react to material provided to them. If there are any exceptions, whether they are founded on Wednesbury principles or the duty to take into account all relevant considerations, there is no clearly established basis for the application of such exceptions in law.
50 Thirdly, and significantly, there is no evidence on this appeal of any submission having been made on the part of the applicant to the Tribunal that it should exercise its powers to obtain information or documents and that it failed to do so. There is no evidence the hearing was conducted on that basis. If there were evidence that such a submission had been put as forcefully as the applicant contends and the Tribunal had declined to take that step, the possibility of a breach of a duty to inquire may have been enhanced in terms of its arguability.
51 Fourthly, even if the law permits of a duty of inquiry to arise in the absence of any submission inviting inquiry, the circumstances here were not such as to give rise to the duty.
52 The present case is not one within any of the three categories identified by McHugh J in Teoh at 321.
53 This case has not been expressly argued on the basis of Wednesbury unreasonableness. But, in the light of the evidence which was before the Tribunal and to which some reference will be made below, I do not consider that this is a case where it could be said that the decision was so unreasonable that no reasonable decision-maker could have arrived at it. This is not a case where the decision of the Tribunal lacked a legally defensible foundation in the factual material or in logic: Luu at 50.
54 If the foundation of the duty was to lie on a duty to take into account relevant considerations, the evidence which was before the Tribunal touched on the relevant considerations. If it is the case that it did not go as far as the applicant would want or an inquiry may have yielded, it nevertheless was relevant evidence.
55 Turning to each of the sub-grounds of this ground it is useful to consider in what way inquiries in the directions proposed would have been relevant. So far as concerns the Department of Social Security or other welfare authorities, there was already evidence before the Tribunal, provided by the applicant, that the second respondent was in receipt of certain welfare payments. (For the first respondent it is contended this was not disputed by the second respondent but the applicant contends there was no such concession by the second respondent or any evidence on which the Tribunal acted).
56 For the first respondent it is contended no one raised the issue of bond assistance by Homeswest before the Tribunal and that it is incorrect to state that the grant or otherwise of a Homeswest bond suggests the second respondent 'was single from a third party'. In any event, receipt of bond assistance would not necessarily be inconsistent with the conclusion of the Tribunal.
57 As to the proposed inquiries for bank records, they appear to seek verification of evidence of financial information in relation to which matters the first respondent contends there was no reason to question.
58 As to the alleged duty to obtain the financial position of the second respondent on the date of the deceased's death, the submissions for the applicant have not endeavoured to explain the asserted relevance.
59 As to the duty to inquire as to the whereabouts, movements and living arrangements of the second respondent on that date, there is no apparent case for such inquiries.
60 So far as these contentions would require the Court to have resort to the full record of the Tribunal hearing, there is no basis on which they can be resolved because that record is not before the Court. However, the contentions raise the prima facie position that the information and documents sought may not have been inconsistent with the conclusions of the Tribunal or determinative of them. This is because the evidence sought would not necessarily have been conclusive in determining that the requirements of the definition of 'spouse' and of 'dependant' did not apply to the second respondent.
61 The result is that in the present case the Tribunal identified all of the relevant evidence to which it had regard. It addressed itself to the right questions on that evidence. The Tribunal had a power to make further inquiry but it was not obliged to exercise it nor was its decision in error of law as a consequence.