Administrative Law - appeal from particular authority - superannuation - Superannuation Complaints Tribunal - error of law - Trustees of Superannuation Funds - review of trustees' decision - whether rules of procedural fairness breached - alleged bias of trustees - whether facts as found bring case within statutory criteria - whether tribunal erred in concluding decision under review was "fair and reasonable" in all the circumstances in its operation in relation to the applicants - whether tribunal should have found that decision under review was "unfair or unreasonable"

Superannuation (Resolution of Complaints) Act 1993, s46(1)

Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223

Federal Commissioner of Taxation v Broken Hill South Ltd [1941] HCA 33; (1941) 65 CLR 150

Karger v Paul [1984] VicRp 13; (1984) VR 161

Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288

R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248

cf In re Stuart, ex parte Cathcart (1893) 2 QB 201

Solicitors for the First Respondent: Bennett and Co

Solicitors for the Second Respondent: Ternes and Salier

2. The applicants file and serve submissions on the allocation of the superannuation benefit within 14 days.

3. The first and second respondents have a further 14 days to file and serve submissions on the allocation of the superannuation benefit.

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

R.D. NICHOLSON J This is an appeal from a determination of the Superannuation Complaints Tribunal ("the Tribunal") given on 27 June 1995 at Melbourne in which the Tribunal affirmed the decision of trustees ("the Trustees") of the Cable Sands Staff Superannuation Plan ("the Plan") to pay the entire proceeds of the death benefit payable under the Plan in respect of the death of Mr G F Dobrich ("the deceased") to his widow.

2. The appeal is brought pursuant to Part 7 of the Superannuation (Resolution of Complaints) Act 1993 ("SRCA"), s46(1) of which allows an appeal to this Court on a question of law.

3. Before proceeding to the reasons of the Tribunal it is desirable to set out the circumstances in which the matter came before it. Personal circumstances of the deceased

4. The personal circumstances of the deceased are not in dispute. He was born on 16 October 1936 and died on 6 October 1994. On 4 January 1958 he married his first wife, Thelma Grace Dobrich. The present applicants are the four children of that marriage. The first applicant is aged 36 and is married with four children. The second applicant is aged 32 and is married with two children. The third applicant is aged 34 and is married with three children. The fourth applicant is aged 24 and is also married but has no children.

5. On 1 August 1967 the deceased joined the Kathleen Investments group of companies and, in January or April 1973, commenced contributing to the Plan at the rate of 5% of his salary.

7. On 17 September 1992, in contemplation of his marriage to the second respondent, the deceased made a will. The second respondent made a mutual will at the same time. On 26 September 1992 the deceased married the second respondent.

8. In July 1993 the deceased sold his family home in Bunbury and distributed half of the proceeds to his children in the sum of $10,000 each.

10. By cl5 of his will the deceased bequeathed the proceeds of "my superannuation policy" (which it is not disputed refers to his interest in the Plan) to the second respondent absolutely. In cl4 he bequeathed his interest in the realty owned with the second respondent to her together with the residue of his personal property. In cl7 he further provided in the event of his surviving the second respondent that 15% of his real property and the residue of his personal property would pass to each of the applicants, 20% to the parents of the second respondent and the remaining 20% to the second respondent's brother.

11. In her mutual will the second respondent provided that, in the event of the deceased pre-deceasing her, the realty and personalty comprising her estate would go as to the same beneficiaries prescribed in cl7 of the deceased's will, and so as to 15% to each of the applicants. This bequest must be understood in the context that the second respondent has the right at law to change her will at any time.

12. It is common ground that the interest of the deceased in the Plan was a benefit which did not form part of the assets of his estate and so was not subject to the operation of the bequests in his will.

13. The Trust deed for the Plan provided with respect to payment of death benefits:

"(a) a benefit payable from the Fund following the death of a

Member which under this Deed is not expressed to be payable to or

for the benefit of some other specified person must be paid or

applied by the Trustees to or for one or more of:

(1) a Nominated Beneficiary of that Member;

(2) that Member's Dependants; and

(3) that Member's legal personal representative,

to the exclusion of the other or others of them and in the form,

manner, proportions and subject to the conditions determined by

the Trustees.

(b) Notwithstanding any contrary provision of this Deed, an amount

payable to or for the benefit of a Member's Dependants must be

paid only as a lump sum unless the Trustees determine otherwise.

(c)...."

14. It is common ground that there was no "Nominated Beneficiary" and the applicants and the second respondent are within the definition of "Member's Dependants."

15. By clause 6.1 of the Trust Deed it is provided that, except as otherwise expressly provided in the deed, the Trustees have absolute and uncontrolled discretion in the exercise of any power and are not required to justify the exercise of any power. "Power" is defined to mean a power, right, discretion or authority of any nature: cl1.1.

16. The decisions of the Trustees are recorded in minutes from which this account is taken. On 21 October 1994 the Trustees of the Plan met in Sydney. Those present were the first of the first respondents ("Lawler"), the second of the first respondents ("Kondo") and one Nakanishi. Lawler was appointed Chairman. He tabled a legal opinion dated 20 October 1994 from William K Mercer Pty Ltd concerning the proper course of action which the Trustees should take in relation to the distribution of proceeds from the Plan arising for distribution as a consequence of the death of the deceased, there being no beneficiary statement. The Trustees resolved that, in accordance with the expressed wish of the deceased as contained in his will, the proceeds of his superannuation benefit would be paid in total to his spouse ("the Trustees' first decision"). It was then resolved to take the steps outlined in the tabled legal advice. The minutes next record that Lawler raised the possibility that the second respondent may require an interim sum of money and it was decided to hold that matter over pending clarification of the amount which in issue.

17. The Trustees met again on 2 November 1994 and resolved to distribute $30,000 (3.8% of the total amount payable) to the second respondent.

18. On 8 November 1994 the Trustees met again. Lawler tabled for discussion a letter dated 2 November 1994 from solicitors for the applicants giving notice of intention to lodge an objection to the Trustees' first decision and raising the possibility of conflict of interest in respect of Lawler given that the second respondent was his secretary. Legal advice was tabled. The Trustees other than Lawler then resolved that Lawler was to continue to participate in decisions regarding the payment of benefit to the deceased. Lawler then volunteered that he would abstain from voting when payment of benefit required resolution. The other Trustees agreed with that course.

19. On 23 November 1994 the Trustees (being the same persons) met in Sydney. What follows appears in the minutes of that meeting. There was tabled at the meeting a letter of objection on behalf of the applicants in respect of the Trustees' first decision together with legal advice from William M Mercer Pty Ltd in relation to the objection. The minute then continues:

"In evaluating the objection lodged on behalf of the children, the

Trustees considered the following factors:

1. The members requirement for apportioning the proceeds of the

superannuation benefits are unequivocal - his will clearly

specifies that all the proceeds are to be paid to his spouse.

2. At the time of his death, the member was not providing any form

of financial support for his children.

3. The member was of sound mind when he signed his will on

17 September 1992.

4. By written advice from the administrator of the superannuation

fund dated 19 September 1991, the member was informed of the

death benefits available to his beneficiaries. This illustrates

that the member was aware of the large amount of money involved.

(The 1992 Annual Report was not distributed to members until 28

September 1992).

5. Having suffered two heart attacks and having undergone a triple

by-pass heart surgery prior to signing the will, the member was

well aware that premature death was distinctly possible when he

signed his will.

6. The member was aware of the financial circumstances of his

children and his spouse when making his will.

7. The member was a most meticulous person when planning and

arranging his business and personal affairs. It is quite

inconceivable that he did not give due consideration, when making

his will, of the circumstances of the needs of his children and

his spouse in the event of death.

8. As the span of time between the making of his will and his

death was only 2 years, the circumstances and needs of the

children and his spouse would not have materially altered in an

adverse manner.

9. Although there is not a "Nominated Beneficiary" on file (and

this is not uncommon), the member gives a very clear direction

in his will as to what he requires concerning the distribution

of the superannuation proceeds. Further, as there are no

extenuating circumstances, the wishes of the member should not be

overruled by the Trustees for what the "children" petition are

"moral" reasons. The morality of the apportioning of the

superannuation proceeds was determined by the member when he

prepared and signed his will."

20. Accordingly, Messrs Kondo and Nakanishi (Lawler abstaining) resolved that the original decision of the Trustees of 21 October 1994 should stand and the entire proceeds of the deceased's superannuation should be distributed to the second respondent ("the second decision").

21. The Trustees advised the applicants of the second decision on 28 November 1994. The amount of the benefit was finally determined to be $759,508 and the amount is not disputed.

22. On 16 December 1994 the applicants lodged a complaint with the Tribunal.

23. The reasons of the Tribunal summarise the grounds of complaint relied upon for the applicants as follows:

"1. It is alleged by the Complainants that the proposed payment is

inconsistent with statements made to the Complainants prior to

their father's second marriage. It is alleged that the Deceased

had told them that they should not be concerned by the marriage

from a financial point of view.

2. The Widow, it is alleged, has been adequately provided for in

the following ways:

. She has inherited the Deceased's share in their jointly owned

home via survivorship;

. She retains the unit that she owned prior to marriage;

. Under the terms of a Will dated 17 September 1992 shortly before

the marriage which occurred on 26 September 1992, she is to

receive the Deceased's entire estate;

. She has been and continues to be employed in a position with the

same company that employed the Deceased and her employment was

not in any way adversely affected by the marriage."

3. If the parties to the marriage had separated, it was argued

that the Widow's share in a property distribution would have

been considerably less than the proposed benefit payment for the

following reasons:

. the marriage was of limited duration - only two years and ten

days at the time of death;

. the Widow's circumstances have not been prejudiced by the

marriage;

. the Widow is in no greater need of support after the Deceased's

death than she was before the marriage;

. the Deceased owed the Widow no duty to support her;

. the Widow is unlikely to have significant liabilities and

substantial assets. (The letter acknowledged that the

Complainants did not possess full knowledge of the financial

affairs of the Widow, and therefore relied on limited knowledge

and some assumptions based on this knowledge).

4. Though the Complainants' financial circumstances vary greatly,

all are in need of funds to retire debts and enhance their

quality of life. Their personal circumstances of each of the

adult children are set out, along with some assessment of their

financial situation.

. Complainant A is a married woman, aged 36 years, and has

4 children aged from 10 to 4 years. The combined income per

annum for herself and spouse was just above $40,000.00 remained

as a debt on a house of approximately twice that value.

. Complainant B is a married woman of 34 years with 2 young

children and a further child expected. The annual gross income

of the Complainant and her husband is approximately $60,000.00

and they jointly have assets of approximately $150,000.00 and

liabilities of $55,000.00.

. Complainant C was the youngest child aged 24 and, on lodgement,

was unmarried and without children. He has commenced business

as a landscaper/gardener, has a current income of approximately

$9,000.00 per annum and total assets of about $27,000.00 with

some $3,000.00 liability. (Subsequent submissions suggested

that he was now married to a school teacher).

. Complainant D is aged 32 and married to a wife who does not

work. They have 2 children aged 7 and 5 and an annual gross

income of $55,000.00 with joint assets of $143,000.00 and

liabilities of approximately $40,000.00.

It was stated that though the four Complainants differed in their

financial circumstances, all adult children had agreed that any

financial benefit derived from the superannuation of their father

should be shared equally between them. It was submitted that

the four children had already suffered emotional stress and

financial constraint because their mother had a terminal kidney

failure resulting in her having to be on a dialysis machine

over a period of nine years.

As the complaints and the submissions on behalf of the four adult

children were identical, the Tribunal considered it appropriate

that the four complaints should be dealt with concurrently at

the Review Meeting."

24. The Tribunal concluded it was satisfied the second respondent and the applicants all qualified as possible beneficiaries.

25. The Tribunal found a home had been purchased jointly by the second respondent and the deceased with a value of over $210,000 and an approximate 90% mortgage level. It further found that the second respondent was partially dependent on the deceased at the time of his death but the applicants were not financially dependent upon him.

26. In relation to the allegation of bias against Lawler because the second respondent was his secretary, the Tribunal stated:

"The Tribunal fully considered the allegations of bias and the

response by the Trustees. We accept that there is no evidence

of actual bias.

We are not convinced that a 'reasonable apprehension of bias' can

be deduced from an employer/employee relationship. However,

even if the initial decision could in any way give rise to such

an apprehension, the subsequent abstention from voting and the

reality of the decision of two other Trustees who had no

personal or close corporate relationship with the intended

beneficiary should act to dispel such an apprehension. What

is more, the Trustees have clearly set out the reasons for their

decision in writing and therefore the fairness and

reasonableness of the Trustee decision can be scrutinized

adequately by the Tribunal in an impartial review.

The Tribunal is therefore in a good position to focus on the

reasons given and the adequacy or otherwise of the reasons in

justifying the decision reached."

27. The Tribunal listed the considerations upon which the Trustees relied at their meeting on 23 November 1994 (set out above) and addressed each of them as follows:

1. In the absence of a completed nomination form, the Will

provided a clear statement of the deceased's wishes.

2. There was no claim or evidence that the deceased was providing

financial support to the applicants at the time of his death.

3. The soundness of mind of the deceased at the time he made the

Will was supported by a number of factors. Among these was:

"The complementary and consistent character of the Wills signed by

himself and his future wife just prior to marriage strike a

60/40 split between the two families with a clearly specified

percentage apportionment within the families. There seems little

reason to doubt the widow's submission that this reflected the

approximate asset base, other than superannuation, of each party."

The Tribunal also considered the deceased's perceptiveness was

revealed in certain poetry and notes in which he mused on the

options facing he and the second respondent in the organisation

of assets for their future life together.

4. It was most unlikely that the deceased was unaware of the

approximate quantum of benefit involved.

5. It was probable the deceased had an acute awareness of

mortality.

6, 7 and 8. The deceased was aware of the financial circumstances

of his children. The Tribunal said:

"...alleged comments to his children to not be concerned by the

marriage from a financial point of view are not inconsistent

with the way in which he and his future wife made provision in

their Wills."

For the applicants it is said that there was an inconsistency

because the effect of the mutual wills is to leave the

applicants in the hands of the second respondent. For the

respondents it is submitted that such alleged comments are

equally consistent with the deceased having trusted the second

respondent.

9. The Tribunal considered the moral considerations raised by the

applicants did not necessarily justify an allocation contrary

to the deceased's clear intentions expressed in his will. In

addition the Tribunal stated "there is a reasonable 'moral'

argument in favour of the support and maintenance of a wife."

28. With regard to the complaints previously listed the Tribunal stated:

re 1: The Tribunal found no substance in this. It said the

complaint was unsupported by documentary evidence other than

the will. It considered the complementary character of the

wills was consistent with the view the applicants should not be

concerned about the marriage from a financial point of view. If

there was an earlier promise the Tribunal considered it had been

honoured by the gift of $10,000 to each of the applicants.

re 2: The inherited interest in the matrimonial home was subject

to substantial debt. Her financial expectations for the future

were considerably reduced in terms of loss of enhanced joint

income.

re 3: The Tribunal considered length of marriage is not a

determining issue. The deceased's intention was unequivocal

and the result of careful and deliberate concerted action with

the second respondent.

re 4: The Tribunal stated:

"the needs of the (applicants) did appear to have been part of the

conscious decision-making of the (d)eceased. He appeared to

believe that they were sufficiently provided for at their

stage of life and that they would be considered adequately

on the death of the remaining partner."

29. The conclusion of the Tribunal was that the Trustees had acted fairly and reasonably in exercising their discretion in deciding to pay the total benefit to the second respondent. It accepted the reasons of the Trustees as stated in its minutes as a sufficient basis for "affirming the decision, in its operation in relation to the (applicants), was fair and reasonable in all the circumstances."

30. The SRCA provided at the relevant date that the functions of the Tribunal included the review of decisions of the trustee to which the complaint relates: s12(b). The complaint before the Tribunal was that the decision of the Trustees was "not fair, equitable or reasonable." It was common ground that this was a complaint as permitted by s14(2)(c) that the decision was "unfair or unreasonable."

31. Section 37 relevantly provides with respect to review of decisions:

"(1) Subject to subsection (2), for the purpose of reviewing a

decision of the trustee of a fund, the Tribunal has all the

powers, obligations and discretions that are conferred on the

trustee by law or under the governing rules of the fund or

otherwise and is to make a determination in writing:

(a) affirming the trustee's decision; or

(b) remitting the matter to which the trustee's decision relates

to the trustee for reconsideration in accordance with the

directions of the Tribunal; or

(c) varying the trustee's decision; or

(d) setting aside the trustee's decision and substituting a

decision for the decision so set aside.

(2) The Tribunal must affirm the decision if it is satisfied

that the decision, in its operation in relation to the

complainant, was fair and reasonable in all the circumstances."

32. It is apparent from the conclusion to the Tribunal's reasons that it purported to act pursuant to s37(2) and did not affirm the decision pursuant to s37(1)(a). That this is so appears from the express reference by the Tribunal to the words "in its operation in relation to the (applicants)" which track the words in s37(2).

33. The right to appeal from a determination of the Tribunal is on a question of law: s46(1). This Court may make such order as it thinks appropriate on the appeal, including 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: s46(3) and (4).

34. It is convenient to address first the secondary submission made for the applicants on the appeal. It is that the word "fair" in s37(2) is to be construed as meaning something more than only "reasonable": cf In re Stuart, ex parte Cathcart (1893) 2 QB 201 at 204-5. It is contended what the word "fair" requires is procedural fairness. It is then argued this element was demonstrably not present because Lawler participated in the decision-making of the Trustees which was in turn followed by the Tribunal so that Lawler's participation in that way inevitably raises a reasonable apprehension of bias.

35. It is common ground that no question of actual bias arises. The impartiality of the other Trustees was not challenged although submissions were made for the applicants that no notation was made in the minutes of the Trustees of either of the other Trustees raising any question or of any debate occurring between the Trustees. Those submissions were in support of the proposition of continuing dominance by Lawler of the Trustees' decision-making process.

36. For the applicants it is also accepted that no reasonable apprehension of bias can generally arise from the circumstance of an employer/employee relationship and that what is determinative is the nature of that relationship. It is submitted for them that the relevant circumstances here do raise a reasonable apprehension of bias.

37. For a reasonable apprehension of that character to arise at law it is necessary for it to be open to the parties or the public to entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question involved in the issue for determination: R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 258-63 applied in Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293. If such an apprehension could be found to have arisen in the decision-maker here I do not consider the abstention of Lawler from voting - given his continued participation on the decision-making process other than voting - would have cured the problem. It was an abstention from formal process only.

38. However, I do not consider it is necessary to examine whether the evidence supports a finding of such reasonable apprehension because the argument of lack of procedural fairness cannot succeed for the following reasons. Firstly, I do not consider that the reference to "fairness" in s37(2) is a reference to procedural fairness. That subsection requires that the Tribunal affirm the decision of Trustees if it is satisfied that the decision was fair and reasonable in all the circumstances "in its operation in relation to the complainant." The effect of this provision is to require the Tribunal to apply the criteria of fairness and reasonableness to the operation of the decision in relation to the applicants. So far as the criterion of fairness is concerned, this requires the Tribunal to examine whether the decision of the Trustees is fair in that operation, not whether it has been arrived at by fair process. I do not consider s350 of the Superannuation Industry (Supervision) Act 1993 of any assistance in the construction of s37(2) of the SRCA.

39. Secondly, the decision was in any event remade by the Tribunal of which Lawler was not a member. The opportunity to cure the presence of any procedural unfairness arose upon the occurrence of the Tribunal hearing. I do not accept the submission for the applicants that all that the Tribunal did was to follow a decision of the Trustees which was procedurally tainted. The Tribunal addressed the issues and reached its own decision. In the Tribunal's statement of its reasons it dealt with the alleged apprehension of bias as a preliminary matter thereby distinguishing it from the substantive matter of fairness and reasonableness which it was required to consider.

40. Thirdly, even if it was the case that procedural unfairness before the Trustees was to be taken into account by the Tribunal, the decision- making processes of Trustees should not have applied to them the rules deriving from administrative law: Karger v Paul [1984] VicRp 13; (1984) VR 161 at 164, 178. Here the Trustees were exercising an absolute discretion vested in them by the Trust Deed.

41. The primary submission for the applicants is that the decision of the Tribunal was in error of law in finding the decision of the Trustees was "fair and reasonable" in all the circumstances in its operation in relation to the applicants. This is put three ways. Firstly it is said that on its face the decision of the Tribunal, having no operation in relation to the complainants other than to deny them any share of the benefits the subject of the decision, must manifestly be unreasonable and unfair. Secondly, it is said the Trustees have allowed the question of the deceased's wishes to dominate their reasoning to the exclusion of all else. Thirdly, the Trustees and the Tribunal have completely misconceived the true legal effect of the will of the deceased and of the second respondent.

42. In my opinion neither the second nor the third limbs of this case assist the applicants. As to the second limb, it is not the reasoning of the Trustees which is in issue but rather the reasoning of the Tribunal. As to the third limb, I do not accept that the Tribunal did misconceive the effect of the deceased's will nor do I consider it is the case that the oral submissions for the applicants showed that to be the case. As the outline of the Tribunal's reasons makes apparent, it is not correct as a matter of fact that its reasoning was dominated by the deceased's wishes expressed in his will to the exclusion of all else.

43. The first limb of this argument is the nub of the case for the applicants. It is necessary to identify in relation to it the error of law raised. It was not contested at the hearing that the relevant question of law was whether the Tribunal correctly applied the legal norms represented by the requirements of s37(2) of the SCRA to the relevant conclusions of fact. That was recognized as constituting a question of law, for example, by Rich ACJ in Federal Commissioner of Taxation v Broken Hill South Ltd [1941] HCA 33; (1941) 65 CLR 150 at 154.

44. The meaning of the words "fair and reasonable" is a question of fact. "Fair" is relevantly defined in The New Shorter Oxford English Dictionary 4th ed (1993) at 907 as "just, unbiased, equitable, impartial". "Reasonable" is defined in the same dictionary at 2496 relevantly as "within the limits of reason; not greatly less or more than might be thought likely or appropriate." In Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223 at 230 the test of whether a court could intervene because of "unreasonableness" was said to be whether the decision was so unreasonable that no reasonable authority could come of it. Here the challenge to the Tribunal's decision is not grounded on "unreasonableness" but on the basis that the Tribunal was not entitled to conclude either - under s37(2) - that the decision of the Trustees was "fair and reasonable" or - under s37(1) - that the decision was not "unfair or unreasonable". Only if the Tribunal has before it evidence which properly leads to a finding of the presence of both fairness and reasonableness in the decision of the Trustees is it entitled to act under s37(2).

45. The decision of the Tribunal had a negative operation in relation to the complainants in the sense that the decision had no operation in relation to them other than to deny them any entitlement. On one view the Tribunal could not therefore have found the decision of the Trustees was "fair" in its operation in relation to the applicants so that the Tribunal could not then have acted under s37(2). On the other view, what the Tribunal did was to find the decision of the trustees both fair and reasonable in its operation in denying any entitlement to the applicants so that it was entitled to affirm the decision of the trustees under s37(2). This latter approach required the Tribunal to have before it evidence upon which it could conclude the decision of the trustees was both fair and reasonable in the relevant operation.

46. It is accepted for the applicants that there is a reasonable 'moral' argument in favour of the support and maintenance of a wife so that it is not the case for the applicants that the decision of the Tribunal was unreasonable in the sense that no reasonable person could have arrived at it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation (supra). There was therefore evidence before the Tribunal on which it could have reached the conclusion that the decision of the Trustees was "reasonable".

47. However, I do not consider there was evidence before the Tribunal which would have enabled it to conclude the decision of the Trustees was "fair" in its operation in relation to the applicants in all the circumstances, given particularly that "fair" means something more than "reasonable". To be fair there must have been evidence the decision of the Trustees in its operation in relation to the applicants in all the circumstances was just, equitable, unbiased and impartial. In my opinion the evidence did not entitle the Tribunal to so conclude. The decision of the Trustees which was before the Tribunal was evidence of a decision not unbiased and not impartial to the complainants and not providing any equity in its operation in the circumstances to them. Whether it was just requires a consideration of the basis of their claim, which lay in their familial connection to the deceased. For reasons which follow below I do not consider the nature of the relationship was such that it was just for them to be totally excluded. This was not a case where the evidence before the Tribunal was such that the Tribunal was entitled to affirm the decision under s37(2). It follows that the Tribunal erred in law in acting under s37(2).

48. It was, however, open to the Tribunal to affirm the decision of the Trustees under s37(1)(a). It is therefore necessary to consider whether it was open to the Tribunal to so affirm the decision because, if so, there would be a futility in remitting the matter to it.

49. There are two legal consequences of approaching the matter under s37(1) and not under s37(2). The first is that the review of the decision of the Tribunal is not governed by the words (appropriate only to s37(2)) "in its operation in relation to the complainant." The second is that the question becomes whether the Tribunal was entitled to conclude in all the circumstances that the decision of the Trustees was not unfair or unreasonable. This follows because the Tribunal is obliged to address the grounds of complaint under s14, that is that the decision of the Trustees is "unfair OR unreasonable".

50. In my opinion it was open to the Tribunal to conclude that the decision of the Trustees was "not unreasonable". The expressed intention of the deceased was a relevant factor to take into account but it was supported by the fact that it reflected careful pre-planning planning for the future of the second respondent after the deceased had made provision during his lifetime for the applicants and when none of them were dependant upon him.

51. However, I do not consider it was open to the Tribunal to find that the decision of the Tribunal was "not unfair". Even taking into account the expressed intention of the deceased and the intended pre-planning, the quantum of his assets which would pass under the decision of the Trustees to the widow considered in relation to all the circumstances, the totality of the assets of the deceased, and the amounts gifted by him to the applicants during his lifetime, could not, in my opinion, be considered as "just, unbiased, equitable or impartial". On the contrary, the decision of the Trustees heavily favoured the second respondent because, by reliance on the wishes of the deceased and other factors, they favoured a disposition agreed to by him without the counterbalancing expectation that the second respondent's mutual will would redress the equities. By prescribing the criteria of fairness the SRCA requires that the equities be considered in relation to all the applicants at the time the complaint comes before the Trustees or the Tribunal. It is the case, however, that the equities in relation to each of the applicants will vary according to their relation and circumstance. Although the existence of a moral argument in favour of the support and maintenance of the second respondent precluded the Tribunal finding the decision of the Trustees was "not unreasonable", it does not preclude an argument concerning equity and therefore fairness.

52. It may be instructive to compare the right to complain under s14 of SRCA with the right of family and dependants to claim against the estate of a deceased under legislation such as the Inheritance (Family and Dependants Provision) Act 1972 (WA). Section 7 of that Act prescribes the family members and dependants entitled to claim. The Court is empowered, when it forms the opinion that the disposition of a deceased's estate "is not such as to make adequate provisions from his estate for the proper maintenance, support, education or advancement in life" of a claimant, may order provision to be made out of the estate. There the right to claim arises from the prescribed familial relationship and the provision to be made, if any, is to be determined by reference to the stated criteria.

53. In the case of the SRCA the class of complainant is not limited. It cannot be the case that any person who brings a complaint pursuant to s14 of the SRCA thereby creates an entitlement in him or her. That is undoubtedly why the SRCA s37(2) requires the Tribunal to affirm only where the criteria of both fairness and reasonableness are satisfied in relation to the complainant "in all the circumstances". The exercise of the discretion in s37(1) would require no less a reference to all those circumstances. The class of claimant being unspecified, it is necessary for regard to be had to the circumstances to see if they disclose a proper basis on which a claim can be made. Where the complainant is a family member or dependant, those circumstances may disclose a basis for a claim. Even then, however, the circumstances may be such as to disclose a degree of estrangement, non-attachment or non-dependence as to negate any arguable basis for a claim.

54. Here it is not the case that there is any evidence of estrangement or non-attachment between the applicants and the deceased. There is evidence of non-dependence. There is, however, also evidence that the deceased intended by pre-planning and the implementation of the mutual wills to ensure the applicants had an ultimate share in his assets upon the death of the second respondent. Whether he knew the second respondent could change her will in the event of him dying first and whether he trusted her not to do so are not issues on which there is any evidence or on which inferences can be properly drawn. The reasons of the Tribunal refer to "alleged comments" made by the deceased to his children to not be concerned by his re-marriage from a financial point of view. The Tribunal therefore had before it evidence it accepted of attachment of the deceased to his children and his intention they should further share in assets after the life of the second respondent. The applicants therefore disclosed a basis for their claim. In my opinion, the evidence of the circumstances was such that it disclosed it would be unfair to the applicants to exclude them entirely from the distribution of the benefit in circumstances where any future share by them under the provisions of the mutual will in recognition of that attachment may be unlikely.

55. In my opinion the Tribunal was in error in concluding the decision of the Trustees was "not unfair". It would not therefore have been open to the Tribunal to affirm the decision under s37(1)(a).

56. On the question of what action is now appropriate, I do not consider, given the allegations of reasonable apprehension of bias in relation to the decision of the Trustees, that this is an appropriate case for reference back to the Tribunal. This Court should set aside the decision under review and make a decision in substitution.

57. To do that appropriately the Court must receive submissions concerning the manner in which the equities can be properly recognized so that the substituted decision is not unfair or unreasonable. So far as the view the deceased took of the equities of the applicants, there is the evidence of the equal distribution of half the proceeds of the sale of his house and the provision appearing in the mutual wills concerning a gift over to the applicants. It is, however, not the deceased's view of the equities which will prevail but rather the Court's view of the equities guided by all the evidence including those circumstances.

58. For these reasons I will make directions after hearing from the parties to enable the appropriate submissions to be filed.