REASONS FOR JUDGMENT
1 The first applicant who is the applicant on this notice of motion was one of two applicants who brought an appeal from the Superannuation Complaints Tribunal (the Tribunal) to this Court against a determination made by the Tribunal that a decision of a trustee was fair and reasonable in the circumstances.
2 The applicant is the mother of Robert Ralph Sadleir who died on 12 August 2006 (the deceased). The deceased's brother, Micheal Robert Sadleir, was the second applicant in the appeal from the Tribunal. He is not a party to this application
3 The deceased was a member of three superannuation funds at the time of his death. The relevant fund on the appeal was the Motor Trades Association of Australia Superannuation Fund (MTAA Fund) of which the Motor Trades Association of Australia Superannuation Fund Pty Ltd was the trustee (the trustee).
4 Originally three persons claimed to be entitled to a superannuation entitlement under the MTAA Fund, namely the deceased's father, Robert Roy Sadleir, the applicant and Vanessa Jackson, who claimed to be the de facto wife of the deceased.
5 On 18 July 2007 an officer of the trustee determined that the superannuation entitlement should be distributed as to 80% to Ms Jackson and 20% to the applicant. Subsequently, the deceased's brother also made a claim but on 23 October 2007 the officer of the trustee decided that Mr Micheal Sadleir was not entitled to share in the superannuation benefit.
6 On 19 November 2007 the trustee wrote to the four claimants advising of its decision which was that, of the benefit of $143,015.16 available, Ms Jackson should receive 80% and the applicant 20%.
7 Subsequently, the applicant objected to the decision, as did Mr Micheal Sadleir, but on 10 January 2008 the decision maker within the trustee made a further note for file which was agreed to by the principal executive officer of the trustee on 11 January 2008 which was that the objections made by the applicant and Micheal Sadleir did not provide sufficient cause to change the original decision and that that decision be maintained.
8 On 14 January 2008 the applicant and Micheal Sadleir were advised of that decision.
9 On 4 February 2008 Mr Micheal Sadleir complained to the Tribunal. On 11 February 2008 the applicant also made a complaint to the Tribunal claiming, amongst other things, that the apportionment was unfair and unreasonable. A complaint may be made to the Tribunal under the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Act).
10 On 20 November 2009 the Tribunal made a decision affirming the decision under review because the Tribunal was satisfied the decision was fair and reasonable in the circumstances.
11 On 11 February 2010 the applicant appealed to this Court pursuant to s 46 of the Act which provides for appeals to this Court from determinations of the Tribunal "on a question of law".
12 The applicant was subsequently granted leave to amend her notice of appeal to identify further and different questions of law and the appeal was heard by me on 18 May 2010. On 27 August 2010 I handed down my reasons for judgment in which I held that none of the matters raised by the applicants were questions of law and no error of law was established: Sadleir v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCA 930.
13 In those reasons however, I referred to the fact that at the hearing of the appeal I had asked the applicant and Mr Micheal Sadleir whether they wished to complain about the adequacy of the Tribunal's reasons. Both said that they did but to that point of time the notice of appeal did not make such a claim.
14 After I handed down my reasons I gave the applicant an opportunity to file a notice of motion to amend the applicant's notice of appeal to include a ground that the Tribunal failed to give adequate reasons and for an order for the hearing of that ground of appeal. I did not offer the same opportunity to Mr Micheal Sadleir for reasons I mentioned in those reasons and need not be repeated.
15 Subsequently, the applicant filed an affidavit in which she identified a number of grounds of appeal in addition to the ground that the Tribunal failed to give reasons or adequate reasons for its decision and, by notice of motion, sought leave to amend her notice of appeal.
16 At the hearing of the notice of motion, after some discussion, the applicant said that she only pressed that ground which related to the Tribunal's failure to give reasons or adequate reasons for its decision.
17 The question now before me therefore is whether the applicant should be entitled to amend the notice of appeal to raise a ground of appeal that the Tribunal failed to give any or any adequate reasons for its decision after the hearing of the appeal and after the other grounds of appeal have been dismissed.
18 The applicant is unrepresented and has been throughout the whole of the process before the trustee, the Tribunal and on this appeal.
19 I may easily infer that the applicant failed to raise this ground of appeal at any time prior to the publication of my reasons because the applicant did not know of the obligation resting upon the Tribunal to give reasons and what might amount to adequate reasons. Shortly put, she did not know that a ground of appeal of the kind that she now raises was available to her.
20 Ms Jackson has filed an affidavit in opposition to the application. She has deposed that had this ground been included in the notice of appeal at the time that the appeal was heard:
... then further or other evidence would most likely to have been raised at the hearing for the original Notice of Appeal and in particular the material before the Tribunal would have been subject to further evidence as well as the communication of the decision by the Tribunal. It may also have been the case that it would have been appropriate for the Tribunal to be heard on this particular issue.
21 Next she has opposed the application to amend the notice of appeal because the applicant "has not raised the question of any prejudice arising from the Appeal not incorporating her plea that the Tribunal had failed to provide adequate reasons for their decision".
22 Next she complains about the delay in the resolution of this matter pointing out that four years have passed since the death of the deceased and three years since the initial determination by the trustee. She has deposed that if this matter had been resolved earlier she would have applied funds towards reducing the mortgage on her unit and then purchasing a house property. She says that the price of houses has increased during the period since the deceased's death and this has made it more difficult for her to buy a house as she had intended. She also said that the delay in finalising the matter has caused her anxiety for which she is seeking counselling and treatment from a psychologist.
23 Lastly she says that if the question of sufficient reasons had been initially raised she would have instructed her solicitors to argue that matter.
24 I can deal with the first and last matters together. I cannot think what evidence might have been adduced in relation to this ground of appeal which was not before me at the time of the first hearing of the appeal or is not before me at present. However, if I am wrong about that, then if leave were granted to the applicant to amend the notice of appeal Ms Jackson should be entitled to call whatever evidence she wishes in relation to that issue. Moreover, if she wishes to oppose this ground of appeal then, of course, she is entitled to be heard by her counsel in opposition to allowing the appeal.
25 No application was made during the hearing of the ground of appeal by Ms Jackson's counsel to adduce any further evidence in opposition to the ground. No suggestion was made that counsel was not able to argue this ground because the ground was raised late. I do not think there is anything in the first or last objections.
26 I will turn to the question of the applicant's failure to identify prejudice. If this application were refused, then the decision of the Tribunal will stand. The applicant would have no further recourse to any process which could challenge the Tribunal's decision apart, of course, from appealing my order dismissing the appeal if I were to dismiss the appeal without allowing the application for leave to amend the notice of appeal. If she were to appeal from an order of that kind made by me, I think that appeal would fail, because as I have said in those earlier reasons, I do not think that the applicant has identified a question of law.
27 If, however, on the other hand, this application were allowed and the notice of appeal were to be amended to raise the further ground which does raise a question of law, the applicant would be entitled to have the opinion of this Court in relation to that ground. If the application were refused she would thereby be prejudiced.
28 The applicant is not responsible for any of the delay in the final determination of the issue which was before the trustee and the Tribunal except for the delay occasioned by her failing to raise this ground of appeal immediately before the hearing of the appeal and the date of the application to amend the notice of appeal, which is some few months.
29 In those circumstances, although it would have been better if the matter had been disposed of more quickly, the applicant should not be prevented from raising the ground if the ground has some merit. Counsel for Ms Jackson accepted that the question of merit was an important factor to be taken into account in determining whether leave should be granted.
30 I think I should consider whether the ground is likely to succeed on appeal before determining whether or not the application should be granted. Indeed I am of the opinion that the application to amend should not be allowed unless I was of the opinion that the ground sought to be raised would succeed.
31 There is a statutory obligation resting upon the Tribunal to give reasons: s 40. In Dornan v Riordan (1990) 24 FCR 564 the Full Court held that where there is a statutory obligation to give reasons as a requirement of the exercise of the decision-making power, a failure to provide such reasons may amount to an error of law. The question for determination is whether the Tribunal has given reasons for its decision and, if not, whether its failure to comply with that statutory obligation means that the decision should be quashed and the complaint to the Tribunal remitted to the Tribunal to be decided according to law.
32 I think the point is a short one.
33 Section 37 of the Act provides for the Tribunal's powers in relation to a complaint made under s 14 of the Act, which was the section upon which the applicant proceeded. Relevantly, s 37(6) provides:
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 the 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 benefit through, a person having an interest in the death benefit;
was fair and reasonable in the circumstances.
34 The Tribunal was obliged in this case to affirm the trustee's decision if the Tribunal was of the opinion that the decision "in its operations in relation to (the applicant)" "was fair and reasonable in the circumstances".
35 The trustee was of the opinion that both the applicant and Ms Jackson were entitled to a benefit under the superannuation benefit. The trustee noted that the applicant was the mother of the deceased, partly dependent upon the deceased and the nominated beneficiary under the superannuation policy. The trustee was of the opinion, a finding which cannot be challenged, that Ms Jackson was the de facto spouse of the deceased.
36 The trustee made an apportionment of 80% in favour of Ms Jackson and 20% in favour of the applicant. It gave no reasons for why the trustee concluded that such an apportionment should be made.
37 The Tribunal was conducting an administrative review. Its mandate was to determine whether the decision in its operation in relation to the applicant was fair and reasonable in the circumstances: see, e.g. Vision Super Pty Ltd v Poulter (2006) 154 FCR 185 at 192 (Young J) and National Mutual Life Association of Australia Ltd v Jevtovic (1997) 217 ALR 316 at 321 (Sundberg J).
38 A hearing before the Tribunal is a hearing de novo, for the purpose of making findings of fact relevant to its deliberations. The Tribunal need not decide afresh all findings of fact that the primary decision-maker made, but only those relevant to the question of whether the decision was fair and reasonable: Lykogiannis v Retail Employees Superannuation Pty Limited (2000) 97 FCR 361 at 372 (Mansfield J).
39 The Tribunal is not called upon to determine whether the trustee made the correct and preferable decision. Rather, the Tribunal stands in the shoes of the trustee and determines, based on all the information before it, whether a decision taken by the trustee was fair and reasonable in the circumstances: Jevtovic 217 ALR 316. The inquiry as to the fairness and reasonableness is directed to the decision of the trustee, rather than the reasoning itself: Jevtovic 217 ALR 316; Citicorp Life Insurance [2005] FCAFC 102.
40 The purpose of the Act investing the Tribunal with the right of review of a decision of the kind which the Tribunal was here considering is "to ensure members and beneficiaries are not adversely affected by unfair and unreasonable decisions of insurers and "trustees": see HEST Australia Ltd v Sykley (2005) 147 FCR 248 at 261 (Crennan J).
41 Part of the decision which the Tribunal had to consider was the decision by the trustee to make the apportionment that the trustee did. The Tribunal did not have the benefit of any reasons from the trustee as to why the apportionment was made. That did not prevent the Tribunal however reasoning for itself as to what would be an appropriate apportionment in the circumstances and concluding, for its own reasons, that the trustee's decision in its operation in relation to the applicant was fair and reasonable in the circumstances.
42 However, the Tribunal did not conduct any such inquiry. It has given no reasons itself for why an apportionment for which no reasons were given by the trustee was in its operation in relation to the applicant fair and reasonable.
43 In Comcare v Lees (1997) 151 ALR 647 at 656, Finkelstein J said:
In determining whether the obligation to give reasons has been discharged a number of principles must be borne in mind. First as Shepherd J said in Bisley Investments Corp Ltd v Australian Broadcasting Tribunal (1982) 40 ALR 233 no standard of perfection is required in their preparation. What is required is that the reasons should be expressed in clear language so that they are capable of being understood: Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500. The reasons need not deal with every detail of the evidence but must set out those parts of the evidence which are important for the conclusions arrived at: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 77 ALR 577. The reasons must disclose the reasoning process of the tribunal: Telescourt v Commonwealth (1991) 29 FCR 227. Finally, in determining whether the reasons are adequate they must be considered fairly and not combed through "with a fine appellate toothcomb to find an error": Minister for Immigration and Ethnic Affairs v Wu Shian Liang (1996) 185 CLR 259 at 291.
44 In Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 77 ALR 577 the Court held that a recitation of facts and conclusions in the terms of the statutory language does not show an adequate reasoning process and accordingly fails to meet the statutory obligation to give reasons.
45 In this case all the Tribunal has done in its record of decision is to state its findings of fact and declare that the decision is fair and reasonable.
46 One of the purposes of the requirement to give reasons is to inform the person against whom the decision is made why the decision was made. This is particularly important where a party is self-represented: McAuliffe v Secretary, Department of Social Security (1991) 13 AAR 462 at 469 (von Doussa J).
47 The unsatisfactory result in this case is that the applicant does not know either from the reasons of the trustee or from the reasons of the Tribunal why it is that such an apportionment was, in the circumstances of the case, fair and reasonable.
48 The Tribunal's failure to give reasons for its determination was, in my opinion, an error of law. Section 40 of the Act requires the Tribunal to give written reasons for its determination. It has given no reasons for why it reached the conclusion that the apportionment that the trustee arrived at was, in its operation in relation to the applicant, fair and reasonable in the circumstances.
49 In my opinion therefore, if leave were granted to amend the notice of appeal, the appeal would have to be allowed and the matter would need to be remitted to the Tribunal for further consideration. It is not for this Court, of course, to substitute its opinion under s 37 which is a function peculiar to the Tribunal.
50 In those circumstances, where the Court is of the opinion that the ground of appeal would succeed, the applicant, it appears to me, has demonstrated beyond doubt that she would suffer prejudice if the application were not granted.
51 Although allowing the application and allowing the appeal will further delay the final determination of the complaint to the Tribunal and that is to be regretted, the fact is that the Tribunal has not complied with its statutory obligation to provide reasons for its determination and, in those circumstances, the matter must be remitted to the Tribunal to fulfil its statutory obligations.
52 The first applicant should have leave to amend the notice of appeal to include a ground: "That the Tribunal failed to give any or any adequate grounds for its decision." The appeal should be allowed and the decision of the Tribunal insofar as it dismissed the first applicant's complaint be quashed, and the first applicant's complaint to the Tribunal be remitted to the Tribunal to be decided according to law.
53 I will hear the parties on the question of costs.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.