Absence of Inquiry or Supporting Evidence?
15 Following the lodging of a complaint with it under s 14 of the Complaints Act, the Tribunal's statutory remit was to inquire into the complaint, try to resolve it by conciliation and, if the complaint could not be so resolved, to review the decision(s) to which the complaint related: s 12 of the Complaints Act. Here, conciliation did fail so it fell to the Tribunal to review the trustee's decisions given in respect of Mr Kristoffersen's claims and, because the insurer had been joined as a party to the complaint, also to review the insurer's decisions in respect of the complaint. For the purpose of conducting that review the Tribunal was, by s 37 of the Complaints Act, invested with all of the powers and discretions vested in the trustee or, as the case may be, the insurer but not so as to violate the rules of the fund or the contract of insurance concerned.
16 The model adopted by Parliament in s 37 of the Complaints Act is akin to that adopted by Parliament in respect of the Administrative Appeals Tribunal in s 43 of the Administrative Appeals Tribunal Act in the sense that each tribunal stands in the shoes of the maker of the decision under review, but very different in another sense in that the review function consigned to the Complaints Tribunal is not as pervasive as the merits review function consigned to the Administrative Appeals Tribunal. That is because s 37(6) of the Complaints Act imposes the following stricture on the Complaints Tribunal:
(6) The Tribunal must affirm a decision referred to under subsection (3) if it is satisfied that the decision, in its operation in relation to:
(a) the complainant; and
(b) so far as concerns a complaint regarding the payment of a death benefit--any person (other than the complainant, a trustee, insurer or decision-maker) who:
(i) has become a party to the complaint; and
(ii) has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person having an interest in the death benefit;
was fair and reasonable in the circumstances.
The authorities concerning the operation of s 37 of the Complaints Act were helpfully collected by Kenny and Lander JJ (with whom I agreed) in their judgment in Edington at [44] to [51]. Included in those authorities are passages from two judgments of Mansfield J, Lykogiannis v Retail Employees Superannuation Pty Ltd (2000) 97 FCR 361 (Lykogiannis) and Hornsby v Military Superannuation and Benefits Board of Trustees (No 1) (2003) 126 FCR 484 (Hornsby) concerning the meaning and effect of s 37 of the Complaints Act in respect of the Tribunal's function, which their Honours cite with approval (Edington at [50]):
Lykogiannis at [48]:
[48] … Ultimately, whatever findings the Tribunal must make standing in the shoes of the trustee … s 37(6) requires the Tribunal to decide whether the decision under review, in its operation, was fair and reasonable in the circumstances. The focus of s 37(6) is upon the consequence or outcome of the decision in its practical operation, rather than upon the process by which the decision under review came to be made.
Hornsby at [19] - [20]:
[19] [T]he Tribunal may have to make its own findings of fact for the purpose of determining whether, in its opinion, the decision under review in its operation was fair and reasonable in the circumstances. But it is necessary to make such findings of fact only for that purpose. It does not decide afresh all findings of fact of the primary decision-maker as if that decision had not been made. It does not, in that sense, simply stand in the shoes of the primary decision-maker.
[20] Hence, under s 37, although the Tribunal is required to make its own decision in relation to the complaint, it is required to make only such findings of fact as are necessary for its decision. It must do so upon the evidence before it. In the light of such findings or conclusions as it has reached, the Tribunal must consider whether the decision it is reviewing, in its operation, was fair and reasonable in the circumstances: Military Superannuation and Benefits Board (No 1) v Stanger (2002) 68 ALD 12 at [21]. Section 37(6) requires that step. Ultimately the object of the Tribunal's review is to remove unfairness or unreasonableness in the decision under review …
17 The Tribunal's primary function therefore is one of review, albeit review in the sense described in the passages quoted but nonetheless one of review. Once conciliation of a complaint has failed such that it must embark upon a review, the Tribunal is empowered to make its own inquiries but only as an incident of discharging that primary function of review. So far as inquiries by the Complaints Tribunal are concerned and subject to the necessary qualification as to the more limited nature of the review it conducts, in comparison, materially, with the merits review function consigned to yet another Commonwealth tribunal, the Refugee Review Tribunal, the following observations of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1129 at [25] with respect to the Refugee Review Tribunal are just as apt with respect to the Complaints Tribunal:
[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
18 Later, in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR) at [84], another case where a failure on the part of the Refugee Review Tribunal to act on a request by a migration agent to make an inquiry was alleged to have occurred in circumstances giving rise to jurisdictional error Gummow J (with whom Heydon and Crennan JJ agreed), having referred to this passage from SZIAI and also to remarks made in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH (2006) 231 CLR 1 at [40], another case concerning the nature of the jurisdiction exercised by the Refugee Review Tribunal, observed:
[84] Accordingly, neither the Tribunal itself nor the primary decision-maker acts as a contradictor to a visa applicant's case. But an applicant for a protection visa must put forward the evidence the applicant wishes the Tribunal to consider.
[Footnote references omitted]
19 These observations in SZGUR, too, are applicable to the Complaints Tribunal by analogy. To paraphrase, neither the Complaints Tribunal itself nor the trustee or, if joined, the insurer acts as a contradictor to a complainant's case in a review conducted by that tribunal. It is for the complainant to put forward the material that he or she wishes the Tribunal to consider. That may or may not comprise the material which was before the trustee or, as the case may be, the insurer at the time when the decision under review was made. Neither the Tribunal nor the parties to the review are restricted just to the use of material before the decision-maker. The Tribunal reviews neither the process of the decision-maker nor that person's reasons but must form its own view on the material before it as to whether the decision under review was fair and reasonable.
20 I was also taken in the course of submissions to Hourn v Farm Plan Pty Ltd [2003] FCA 1122 (Hourn v Farm Plan). A question there was whether the Complaints Tribunal had failed to conduct an inquiry it was obliged to make in the circumstances of that case. Hourn v Farm Plan was decided prior to SZIAI and SZGUR and at a time before the reminder offered by those cases that approaching the question of whether an administrative tribunal had a "duty to inquire" and, if so, had breached that duty was apt to district from deciding whether that tribunal's decision was affected by jurisdictional error. For that reason, its precedential value is now limited. The trial judge, R D Nicholson J, did no more than assume that, if the law did permit the existence of a duty to inquire even in the absence of a request to make an inquiry, no such duty arose in the circumstances of that case.
21 Recalling these features of the Tribunal's function under the Complaints Act, I turn now to the circumstances in which the first question posed arises in this case.
22 Mr Kristoffersen's written submissions to the Tribunal included an assertion that the insurer had not determined his income protection claim by reference to the applicable policy. More particularly, he put to the Tribunal in respect of one of the documents before it:
Doc (1) appears to be for a "personal policy 2" and appears to be a rewrite of the document previously dated 30th may 2005, not a "corporate 1 manager policy" as the insurer has already admitted as the true policy held in their letter 1/3/2007 …
[sic]
It was put on Mr Kristoffersen's behalf on the hearing of the appeal that the Tribunal was on notice as a result of this submission that there was an issue as to what was the correct policy and that it was in turn obliged to exercise its powers under ss 24, 24AA or 25 of the Complaints Act to require production, including, in the circumstances, production of the original of the governing policy. The failure to exercise these powers was said to be a failure on the part of the Tribunal properly to inform itself or alternatively a failure to take into account a relevant consideration. As I understood the submission, these were but ways of particularising how it was that the Tribunal failed to conduct a review according to law.
23 There is no doubt that the governing insurance policy or, as the case may be, fund rules are always relevant considerations in a review by the Tribunal: Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 at [28].
24 The Tribunal's reasons disclose that it expressly turned its mind to what were the governing rules of the fund and what was the governing insurance policy. Moreover, it is not possible to read paragraph 80 of the Tribunal's reasons other than as directly responsive to the proposition put by Mr Kristoffersen in his written submission:
80. One of the contentions of the Complainant is that the policy under which he was insured was a 'corporate 1 Managers policy'. He has not identified any such policy and there is no evidence that any such policy exists, the IP Policy being, in the Tribunal's view, the one relevant to the Complainant. He also contends that the Employer Application is required to be renewed each financial year. For the reasons already outlined this is clearly not the case.
[sic]
25 What follows after paragraph 80 up to and including paragraph 88 in the Tribunal's reasons is a very detailed consideration of what the income protection policy applicable to him was and, more particularly, whether the cover under it extended to age 65. It is not necessary to set those details out. It is though noteworthy that in this section of the reasons the Tribunal expresses the view that, "whether or not the Insurer disputed the contention that the cover was until age 65 is immaterial. The Complainant is only entitled as is permitted by the Employer Application and IP policy." This nicely illustrates the Tribunal's correct understanding that it cannot, in conducting a review, substitute a decision which is not in accordance with what is truly the governing fund rule or policy.
26 It is also necessary to read this section of the Tribunal's reasons in the context of those reasons as a whole. So doing discloses that the Tribunal was well aware of the trustee's letter of 1 March 2007, for it lists and describes that letter as a relevant event in the comprehensive chronology offered at paragraph 18 of its reasons and expressly refers (at paragraph 61, elaborated further in paragraph 63) to Mr Kristoffersen's contention that he is insured through the Fund for a monthly income protection benefit until age 65.
27 So far as the applicable TPD benefit is concerned, the Tribunal refers at paragraph 16 (and in more detail at paragraphs 61 and 64) to Mr Kristoffersen's contention that the benefit limit applicable to him is $250,000 rather than $41,667 as contended by both the trustee and the insurer. The Tribunal comprehensively deals in its reasons with what is the applicable TPD benefit in the event that such a disability were to be found (paragraphs 99 to 101). Once again, it is not necessary to set out those reasons. They include an express reference to the trustee's letter of 1 March 2007 and the conclusion (paragraph 101) that the Tribunal does not consider that Mr Kristoffersen as complainant could have been misled by the erroneous information in the Trustee's letter of 1 March 2007. The Tribunal added, "Even if this had been the case, the letter was sent considerably after the relevant date for consideration of his TPD claim. There could have been no reliance on this information which led to any detriment to the Complainant."
28 Yet further, it is necessary to recall that the Tribunal expressly stated in its reasons what it considered to be the trust deed for the Fund (paragraph 22) and excerpted (paragraph 23) what it considered to be the pertinent parts of that deed. The Tribunal did the same in respect of what it considered to be the governing insurance policy (respectively paragraphs 24 and 25 in relation to income protection and paragraphs 26 and 27 in respect of TPD).
29 It was submitted that the Tribunal did not there say why it considered these to be the governing fund rules and insurance policy. Reading this part of the Tribunal's reasons in isolation this is true but one cannot read the reasons as a whole, which include an express engagement with his assertion that a different income protection policy was applicable to him or that a different TPD lump sum limit was applicable to him, otherwise than on the basis that the Tribunal expressly turned its mind to what was the correct position under the Fund rules and what was the correct policy. As it happened, in so doing and as I have explained, it rejected Mr Kristoffersen's contentions. It is well settled that the reasons of an administrator or administrative tribunal are not on judicial review to be subjected to narrow, zealous reading with an eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 - 272.
30 Mr Kristoffersen pressed the Tribunal to call for production of originals. The Tribunal did not need to have the originals before it to reach a conclusion as to what were the governing fund rules and policy. It was not bound by the rules of evidence: s 36(a) of the Complaints Act. It was entitled to act on the secondary evidence which it had as to the governing fund rules and insurance policy.
31 The Tribunal examined the foundation for why it was that Mr Kristoffersen contended that a different limit applied to his TPD claim and why it was that a different income protection policy applied to him. For the reasons which it gave, the Tribunal concluded that he was mistaken in each of these contentions. This was no reflection on his honesty, only on the correctness, as the Tribunal saw it, of his understanding of what was the true position. There was nothing unreasonable or illogical about the reasoning process that led the Tribunal to this conclusion.
32 Mr Kristoffersen did not produce material other than that with which the Tribunal dealt in support of his contentions. The Tribunal was not, in the face of this material and on the basis of those conclusions which it reached, having considered this material as well as the contentions of the trustee and the insurer and the other material before it, obliged to go on some roving inquiry, irrespective of whether Mr Kristoffersen did or did not seek this. So much is patent from the application in the circumstances related to the statements of principle which are set out in the passages which I have quoted from SZIAI and SZGUR. All that the Tribunal did was to address a relevant consideration and reach conclusions it was entitled on the material before it to reach. There was no failure to conduct the review required by s 37 constituted by a failure to make an inquiry.