Consideration
26 Applying those principles here, matters which weigh in favour of extending time include, first, the applicant delayed only 10 days beyond the stipulated period for commencing an appeal before seeking an extension of time. Secondly, I am also prepared to accept that the applicant has offered, through her instructing solicitor, an acceptable explanation for missing the time period under the rules. Those matters are dealt with in Mr Lander's affidavit and broadly relate to medical issues which the applicant was experiencing at the relevant times. Thirdly, as indicated above, there has been no suggestion of any prejudice to the respondent were leave granted.
27 In my view, however, these considerations are outweighed by the lack of merit in the proposed grounds of appeal. In assessing those grounds at an interlocutory stage, it is significant to my mind, as Mr Anforth acknowledged in oral argument, that no errors of fact are raised by the draft notice of appeal. The applicant's proposed grounds of appeal relate to errors of law which are said to arise from the SCT's construction and application of various relevant statutory provisions, and the primary judge's non-acceptance of the applicant's case in respect of those matters of construction.
28 Against that background, I will now address the merits of the draft notice of appeal. In support of her application to extend time, the applicant has filed a draft notice of appeal which contains the following five grounds of appeal:
1. His Honour Foster J in the court below misconstrued section 12(1) and section 37(6) Superannuation (Resolution of Complaints) Act 1993.
2. His Honour erred in law in failing to find that the construction of the above provisions and the tests adopted by the Superannuation Complaints Tribunal constituted an unlawful exercise of federal judicial power by the Tribunal.
3. His Honour failed to consider the essence of the principal argument advanced by the Appellant.
4. In the alternative to 3, if His Honour did not consider the Appellant's principal argument then he failed to provide any adequate reasons for the manner in which he dealt with the principal argument.
5. His Honour misconstrued and misapplied section 22(3) Superannuation (Resolution of Complaints) Act 1993 in relation to the new evidence provided by the Appellant to the Tribunal and the Tribunal's decision to treat the Appellant's application as having been withdrawn.
29 I will deal first with what the applicant described as her principal argument. Grounds 1 to 4 of the draft notice of appeal are described as the "principal argument", while ground 5 is described as the "new evidence issue". The applicant says that the principal argument raises the proper construction of the phrase "to inquire into the complaint" in s 12(1) of the Complaints Act, and of the phrase "if it is satisfied that the decision, in its operation in relation to the complainant, was fair and reasonable" in s 37(6) of that Act.
30 The applicant further contends that the primary judge erred in not accepting her argument that the SCT, in its 2007 decision, committed an error of law in seeing its task as involving a form of judicial review for reasonableness and not a merits-focused inquiry. The applicant says that the error is revealed in [13] of the SCT's reasons for its 2007 decision:
The Tribunal's role is to determine whether the decision of the Trustee was fair and reasonable in its operation in relation to the Complainant in the circumstances. The question is not what decision the Tribunal might have reached. The Tribunal must determine the fairness and reasonableness of the decision under review as at the date of that decision (ie 27 March 1999). Subsequent events may be taken into account, in so far as they bear on the fairness and reasonableness of the decision under review at the time it was made.
31 The applicant says that the primary judge correctly identified what her principal argument was, but then did not explain why the Court rejected that argument.
32 I disagree with the applicant's submissions in support of the merits of its proposed principal argument. The reasons for his Honour rejecting the principal argument are set out in [96] to [100] of the primary judge's reasons for decision. His Honour expressly referred to several authorities which are inconsistent with the applicant's preferred construction of s 37, including, perhaps most notably, Allsop J's leading decision in Crocker and, in particular, to [16] to [31] of that decision, key relevant parts of which are as follows:
However, the Tribunal's task was not to determine all such rights and obligations of the parties. To do so would, in all likelihood, see it purport to engage in the exercise of judicial power. Rather, the Tribunal's task was confined to the role given to it by the Act. At this point I gratefully adopt the description of the legislative scheme set out by the Full Court in National Mutual Life Association of Australia Limited v Campbell (2000) 99 FCR 562 at 565-68 [10] to [20]. This relieves me of refering [sic] to the Act, other than to the provisions essential to these reasons.
…
The functions of the Tribunal, which are set out in s 12 of the Act, are to inquire into a complaint and to try to resolve it by conciliation and, if that is not possible, review the decision or conduct to which the complaint relates or to conduct an arbitration in respect of the complaint if it has been referred to the Tribunal by an arbitration agreement. There is no arbitration agreement here.
…
Central to the understanding of the role and powers of the Tribunal is s 37 of the Act…
The central task of the Tribunal was to review the decision of the Trustee and, since the Insurer had been joined under s 17A and s 18, to review any decision of the Insurer: para 37(2)(a). In carrying out this task the Tribunal had all the powers, obligations and discretions conferred on the Trustee and the Insurer: paras 37(1)(a) and 37(2)(b). In carrying out this task the Tribunal was required to make a determination in accordance with subs 37(3). The Tribunal's task was to decide for itself whether the Trustee's decision and any decision of the Insurer was and is unfair or unreasonable. This flows from, first, the nature of the subject matter of review - a complaint under subs 14(2) as to the unfairness or unreasonableness of the Trustee's decision, secondly, the exhaustive universe of possible determinations in subs 37(3), thirdly, the nature of the limitations on the exercise of the powers in subs 37(3) set out in subs 37(4) and, fourthly, the requirement under subs 37(6) to affirm the decision under subs 37(3) if the Tribunal is satisfied that the decision in its operation in relation to the complainant was fair and reasonable in the circumstances.
While the determination of the Tribunal was required to be predicated upon its view as to whether the relevant decision was unfair or unreasonable, the Tribunal was enjoined by subs 37(5) from doing anything under subs 37(3) that would be contrary to law, or to the governing rules of the fund or to the terms of the relevant insurance policy, here the Prudential policy.
The phrase "governing rules of the fund" means the terms governing the conduct of the superannuation fund, which was a regulated superannuation fund under the Superannuation Industry (Supervision) Act 1993 (Cth). It is not limited to the schedule to the trust deed which set out the "rules for the management" of the fund. It means the terms of the trust under which the fund is carried on, which includes the "rules for the management" of the fund: clause 1.2 of the annexure to the deed of amendment dated 13 December 1988.
In short, the task of the Tribunal was to review the decisions of the Trustee and Insurer as to whether they were (or either was) unfair or unreasonable and to make a determination under subs 37(3) in the light of that consideration. This task was one to be undertaken, to use the language of Merkel J in Briffa v Hay (1997) 75 FCR 428 at 443-4 and Seafarers' Retirement Fund Pty Ltd v Oppenhuis (1999) 94 FCR 594 at 598-99 [19] to [23], "in the shoes of" the Trustee and the Insurer: see also paras 37(1)(a) and 37(2)(b). The directions for reconsideration of the decision (under para 37(3)(b)) or the variation of the decision (under para 37(3)(c)) or the substituted decision (under para 37(3)(c)) either affect or become the original decision of the Trustee and the Insurer. Thus the strictures of subs 37(5) can be seen not only to prevent, at the point of remedy, something unlawful being ordered to be done, but as an essential reflection of the task being undertaken: a consideration of a decision of the Trustee, qua trustee, that is of the Trustee acting in accordance with law and the terms of its governing trust and making a determination, as if the Tribunal were the Trustee, to affect, vary or substitute a decision. The same applies to the task in relation to the Insurer and its decision.
…
The task of the Tribunal and the meaning of the phrase "unfair or unreasonable" are inextricably intertwined and both are governed by the Act, and, especially, by s 37. It is the decision of the Trustee, recognising its obligation to act in conformity with the governing rules of the fund, and the decision of the Insurer, recognising its obligation (and entitlement) to act in conformity with the terms of the relevant policy, which must be reviewed for unfairness or unreasonableness. The unfairness or unreasonableness must be of the decision (as expanded by s 4) under, and in conformity with, the governing rules or the terms of the policy. It is not some other perceived (rightly or wrongly) unfairness or unreasonableness in and about the conduct of the fund.
The question as to whether a decision was unfair or unreasonable cannot be judged otherwise than by having regard to the conformity of the decision with the governing rules of the fund and the terms of the policy. The conformity of the decision with those matters is therefore a relevant consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-40 and see Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 178 ALR 707 (special leave refused on 20 August 2001). If conformity with the governing rules or the terms of the policy required the very decision, which was made, to be made, the strictures of subs 37(5), the universe of possible conduct under subs 37(3) and the balance of the Act, including subs 37(6), would require a conclusion of the Tribunal that the decision was not unfair or unreasonable. It could not be otherwise, as it would, on this hypothesis, be the only decision capable of being reached by the Trustee or the Insurer in the light of the governing rules or terms of the policy; or, put another way, any determination under paras 37(3)(b),(c) or (d) would involve the Tribunal doing an act contrary to the governing rules or the terms of the policy.
It may be that a decision of a trustee or an insurer is in conformity with, but not required by, the governing rules of the fund or the terms of the policy. This may be because the decision could be described as one of a discretionary character: see s 14AA of the Act and Merkel J in Collins v AMP, supra at 578-79. For myself, I would prefer not to use any dichotomy between discretionary and non-discretionary decisions as a tool in this analysis. I do not think that the presence of s 14AA mandates it. The presence of s 14AA is to be understood for reasons other than any which make the terminology used within it a compulsory tool for analysis of the understanding by the Tribunal of its task: see National Mutual v Campbell, supra at 568-70 [21] to [30] and Seafarers' Retirement Fund v Oppenhuis, supra at 596-98. It may be that the decision of a trustee or an insurer is in conformity with, but not required by, the governing rules or policy terms not because there was involved any exercise of discretion, properly so-called, but because the decision was one which so involves elements of fact, degree, opinion or value judgment that different minds can legitimately differ in reaching a decision or because one aspect of the rules or policy terms, but not another, has been the foundation of the decision. A decision of a trustee or an insurer about a matter of judgment, for instance one involving weighing competing expert or lay opinion about a state of affairs, might be lawful and in conformity with the governing rules and policy terms. It might be described as "correct" in that it was the product of an inquiry directed to the right question and in that there was material available to support it. In this, perhaps limited, sense the decision was correct and was open to be made. However, the Tribunal is not engaged in a form of judicial review. It reviews the decision (as expanded by s4) complained of from the position of the trustee or insurer (paras 37(1)(a) and 37(2)(b)). The Tribunal may find, in its opinion, in some degree (see subs 37(4)), the decision to be unfair or unreasonable and may act under subs 37(3) to give effect to its view of the merits as long as subs 37(5) is not infringed. It seems to me that this analysis accords with the approach described by the Full Court in National Mutual v Campbell, supra at 570-71 [32] and [33] and see also Kirby J in Attorney-General v Breckler (1999) 197 CLR 83 at 129 [88]. It seems to me that the very use of the words "unfair" and "unreasonable" in their breadth, individually and in the composite phrase "unfair or unreasonable", supports this view: see, in other contexts, George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803 at 815-16, and Samuels JA in Antonovic v Volker (1986) 7 NSWLR 150 at 154-55.
…
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.
33 The primary judge made an express finding in [99] that, in his Honour's view, the SCT had not engaged in a judicial review. Rather, the SCT "appropriately assessed the fairness and reasonableness of that decision against the evidentiary material presented to it and the submissions made to it", and "correctly addressed the requisite statutory task", by focusing on whether it was satisfied that the delegate's decision was fair and reasonable in the circumstances. This language echoes the words of s 37(6) of the Complaints Act.
34 Although his Honour made no express reference to [13] of the SCT's reasons in his Honour's reasons for judgment, upon which the applicant places great reliance, I do not consider that that omission raises an arguable appellable error. That paragraph, to my mind, is not inconsistent with Allsop J's formulation in Crocker of the appropriate description of the SCT's statutory function. On the contrary, [13] of the SCT's reasons emphasises that, under s 37(6), the SCT's review task is to determine whether the primary decision was fair and reasonable, in its operation in relation to the complainant, in the circumstances.
35 The SCT's reference to the question not being what the SCT might have reached itself simply underlines the SCT's appreciation that, under the particular statutory regime, the critical issue is not what the SCT would have decided if it had been the primary decision-maker. Rather, the statutory regime requires the SCT to decide, from the perspective of the trustee or insurer, as to whether the primary decision was unfair or unreasonable. In my view, it is not arguable that the primary judge departed erred in not finding that the SCT had misconstrued its review function..
36 I turn now to consider the new evidence point, which is ground 5 in the proposed notice of appeal. The applicant says that the primary judge erred in finding the SCT could be satisfied that a complaint had already been adequately dealt with, without any finding or consideration of whether the SCT was aware of the new evidence. The applicant describes the primary judge's position on that issue as unreasonable at law. She adds that the bounds of reasonableness at law require the SCT to consider the new evidence in order to assess its "value".
37 In my view, the new evidence point does not raise an arguable ground of appeal. First, as the primary judge pointed out, s 22(3)(d) of the Act focuses attention on the subject matter of the complaint, and not on the administrative decision specified in s 37 of the Complaints Act. The applicant's argument effectively ignores the statutory significance given to the subject matter of the complaint, in determining whether or not to exercise the power conferred by s 22(3)(d).
38 Secondly, I do not consider that the applicant has raised any arguable point in respect of the balance of the primary judge's reasons for rejecting the new evidence point. In particular, I can see no arguable appellable error in his Honour's reasoning in [110] of his reasons for judgment, as to why, having regard to the relevant statutory language, the SCT is not obliged specifically to refer to the new evidence in exercising its power under the relevant provision. To the contrary, his Honour's reasoning strikes me, with respect, as being plainly correct.
39 For all these reasons, the application for an extension of time to appeal is dismissed. As noted above, the respondent adopted a passive role in the proceedings. Accordingly, there will be no order as to costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.