Board of Trustees of the State Public Sector Superannuation Scheme v Edington (includes Corrigendum dated 10 February 2011) [2011] FCAFC 8 (1 February 2011)

Last Updated: 11 February 2011

FEDERAL COURT OF AUSTRALIA

Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8

Citation:		Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8
Appeal from:		Edington v Superannuation Complaints Tribunal [2010] FCA 504
Parties:		BOARD OF TRUSTEES OF THE STATE PUBLIC SECTOR SUPERANNUATION SCHEME v JOSEPH DAVID EDINGTON and SUPERANNUATION COMPLAINTS TRIBUNAL
File number:		QUD 219 of 2010
Judges:		KENNY, LANDER & LOGAN JJ
Date of judgment:		1 February 2011
Corrigendum:		10 February 2011
Catchwords:		SUPERANNUATION – statutory appeal from the Superannuation Complaints Tribunal - Tribunal affirmed the decision of the Trustees of the Superannuation Fund not to pay any insurance benefit to the applicant who had been assessed as totally and permanently disabled after a workplace incident because the disablement related to a pre-existing undisclosed medical condition   SUPERANNUATION COMPLAINTS TRIBUNAL - consideration of the role of the Tribunal - Tribunal must affirm a decision of a Trustee if it is satisfied that the decision was fair and reasonable in relation to the complainant in the circumstances - hearing of Tribunal is a hearing de novo - Tribunal able to make its own findings of fact for the purpose of determining if it was so satisfied - Tribunal not restricted to the evidence and material before the Trustees - Tribunal not required to determine whether the reasoning of the Trustees was fair and reasonable - Tribunal's inquiry is directed to answering question of whether the decision of the Trustees was fair and reasonable - Tribunal conducted its review in accordance with the Act   QUESTION OF LAW - whether notice of appeal defective - appeal under s 46(1) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) limited to question of law - whether notice of appeal contained a question of law - mixed question of fact and law is not a question of law
Legislation:		Superannuation (Resolution of Complaints) Act 1993 (Cth) Acts Interpretation Act 1901 (Cth) Administrative Appeals Tribunal Act 1975 (Cth) Superannuation Industry (Supervision) Legislation Amendment Act 1995 (Cth)
Cases cited:		Edington v Superannuation Complaints Tribunal [2007] FCA 1989 Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522 Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; (2003) 38 AAR 55 Ergon Energy Corp Ltd v Commissioner of Taxation [2006] FCAFC 125; (2006) 153 FCR 551 Military Superannuation and Benefits Board No 1 v Stanger [2002] FCA 671; (2002) 68 ALD 12 Smith v Club Plus Superannuation Pty Limited [2004] FCA 1519 Citicorp Life Insurance Ltd v Smith [2005] FCAFC 102 Australian Broadcasting Tribunal v Bond (199) [1990] HCA 33; 170 CLR 321 Comcare Australia v Lees (1997) 151 ALR 647 Vision Super Pty Ltd v Poulter [2006] FCA 849; (2006) 154 FCR 185 National Mutual Life Association of Australia Ltd v Jevtovic [1997] FCA 359; (1997) 217 ALR 316 National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852; (2000) 99 FCR 562 Attorney-General (Cth) v Breckler [1999] HCA 28; (1999) 197 CLR 83 Lykogiannis v Retail Employees Superannuation Pty Limited [2000] FCA 327; (2000) 97 FCR 361 Seafarers’ Retirement Fund Pty Ltd v Oppenhuis [1999] FCA 1683; (1999) 94 FCR 594 Cameron v Board of Trustees of the State Public Sector Superannuation Scheme [2003] FCAFC 214; (2003) 130 FCR 122 National Mutual Life Association of Australia Limited v Scollary [2002] FCA 695 Colonial Mutual Life Assurance Society Limited v Brayley [2002] FCA 1333 Briffa v Hay (1997) 75 FCR 428 Machin v Board of Trustees of the State Public Sector Superannuation Scheme [2010] FCA 969 HEST Australia Ltd v Sykley [2005] FCA 1381; (2005) 147 FCR 248 Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330; (2001) 48 ATR 359 Commonwealth Superannuation Scheme Board v Dexter [2004] FCA 1434 Hornsby v Military Superannuation and Benefits Board of Trustees (No 1) [2003] FCA 54; (2003) 126 FCR 484 Marks v CSS Board of Trustees [2005] FCA 797 Edwards v Postsuper Pty Ltd [2006] FCA 1380 Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 Sadleir v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCA 930 National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852; (2000) 99 FCR 562 Mohandoss v AMP Superannuation Limited [2007] FCA 497 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Karger v Paul [1984] VR 161 Re Londonderry’s Settlement [1965] Ch 918 TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175 White v Board of Trustees, State Public Sector Superannuation Scheme [1997] 2 Qd R 659 Wilkinson v Clerical Administrative & Related Employees Superannuation Pty Ltd [1998] FCA 51; (1998) 79 FCR 469 “Exercise by Superannuation Trustees of Discretionary Powers” (2009) 83 ALJ 159
Date of hearing:	19 November 2010
Date of last submissions:	17 November 2010
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	87
Counsel for the Appellant:	Mr RN Traves SC with Mr SA McLeod
Solicitor for the Appellant:	Crown Solicitor
Counsel for the First Respondent:	Mr M Steele
Solicitor for First Respondent:	Black & Co Lawyers
The Second Respondent submitted save as to costs

FEDERAL COURT OF AUSTRALIA

Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8

CORRIGENDUM

1. In paragraph 67, line 18 of the Reasons for Judgment, substitute the word “reasonable” for the word “reasonableness”.
   

I certify that the preceding one (1) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justices Kenny, Lander and Logan.

Associate:

Dated: 10 February 2011

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 219 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	BOARD OF TRUSTEES OF THE STATE PUBLIC SECTOR SUPERANNUATION SCHEME Appellant
AND:	JOSEPH DAVID EDINGTON First Respondent SUPERANNUATION COMPLAINTS TRIBUNAL Second Respondent

JUDGES:	KENNY, LANDER & LOGAN JJ
DATE OF ORDER:	1 FEBRUARY 2011
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal be allowed.
2. The orders made on 21 May 2010 be set aside; and, in lieu thereof, order that the appeal pursuant to s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) be dismissed.
3. The parties file any submissions as to costs on or before 11 February 2011.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 219 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	BOARD OF TRUSTEES OF THE STATE PUBLIC SECTOR SUPERANNUATION SCHEME Appellant
AND:	JOSEPH DAVID EDINGTON First Respondent SUPERANNUATION COMPLAINTS TRIBUNAL Second Respondent

JUDGES:	KENNY, LANDER & LOGAN JJ
DATE:	1 FEBRUARY 2011
PLACE:	BRISBANE

REASONS FOR JUDGMENT

KENNY AND LANDER JJ:
INTRODUCTION

1. This is an appeal from a judgment of a Judge of the Court setting aside a decision of the Superannuation Complaints Tribunal (‘the Tribunal’) concerning Mr J D Edington’s entitlement to payment of a total and permanent disablement benefit (‘TPD benefit’). Amongst other things, the Judge set aside the decision and remitted the matter to the Tribunal to be reconsidered according to law.
2. For the reasons stated below, we would allow the appeal.

STATUTORY AND FACTUAL BACKGROUND

Statutory Background

3. To appreciate the nature of this appeal, it is first necessary to have regard to some background matters, which include the Queensland public sector superannuation scheme and the relevant federal legislation.
4. Pursuant to the Superannuation (State Public Sector) Act 1990 (Qld), which “provide[s] the machinery for the establishment of a new superannuation scheme for the State public sector”, the State Public Sector Superannuation Fund “is continued in existence”: see the preamble and s 10. Pursuant to s 12, the Superannuation (State Public Sector) Deed 1990 (‘the trust deed’) establishes a scheme (‘the scheme’) for the provision of superannuation, retirement, provident or other similar benefits payable from the fund (‘the fund’). The Board of Trustees of the State Public Sector Superannuation Scheme (‘the Board of Trustees’) is also established under the Act: see s 3. The function of the Board of Trustees is to administer the scheme: see s 4. Section 7(1) provides that:

The board’s powers and the exercise of discretion by the board are, except as specified in this Act, to be as set out in the deed.

Membership of the scheme is limited to State public sector employees: see s 13.

5. The Superannuation Complaints Tribunal is established under federal legislation, by s 6 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (‘Complaints Act’). Pursuant to s 14, subject to certain presently immaterial matters, a person may make a complaint to the Tribunal that a decision by the trustee of a regulated superannuation fund, in relation to a particular member or a particular former member of the fund, is or was unfair or unreasonable. The fund in this case is a regulated superannuation fund.
6. Section 11 of the Complaints Act provides that, in carrying out its functions or exercising its powers, the Tribunal must pursue the objectives of providing mechanisms for (amongst other things) “the review of the decision ... to which the complaint relates ... that [is] fair, economical, informal and quick”. Section 12 provides that, if the complaint cannot be resolved by conciliation, the function of the Tribunal is to review the decision to which the complaint relates.
7. Section 37 of the Complaints Act provides that:

(1) For the purpose of reviewing a decision of the trustee of a fund that is the subject of a complaint under section 14:

(a) the Tribunal has all the powers, obligations and discretions that are conferred on the trustee; and
(b) subject to subsection (6), must make a determination in accordance with subsection (3).

(2) ...

(3) On reviewing the decision of a trustee, insurer or other decision-maker that is the subject of, or relevant to, a complaint under section 14, the Tribunal must make a determination in writing:

(a) affirming the decision; or
(b) remitting the matter to which the decision relates to the trustee, insurer or other decision-maker for reconsideration in accordance with the directions of the Tribunal; or
(c) varying the decision; or
(d) setting aside the decision and substituting a decision for the decision so set aside.

(4) The Tribunal may only exercise its determination-making power under subsection (3) for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both, that the Tribunal has determined to exist in relation to the trustee’s decision that is the subject of complaint no longer exists.

(5) The Tribunal must not do anything under subsection (3) that would be contrary to law, to the governing rules of the fund concerned and, if a contract of insurance between an insurer and trustee is involved, to the terms of the contract.

(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; ...

was fair and reasonable in the circumstances.

8. On 10 September 2001, the first respondent, Mr Edington, commenced employment as a field assistant with the Queensland Department of Primary Industries (‘the Department’) in the Fire Ant Eradication Program. In consequence, he joined the scheme (sometimes referred to as the QSuper Scheme) and acquired four insurance units effective from 10 September 2001 and seventeen units effective from 10 December 2001.
9. In January 2002, in the course of his employment, Mr Edington entered a property in Brisbane to inspect it for fire ants. In his reasons for judgment (see Edington v Superannuation Complaints Tribunal [2010] FCA 504 (‘Edington’)), the primary judge recorded at [4] that:

There was some dispute about exactly how this incident occurred, but it was recorded in one of the earlier decisions in the following terms. While he was on the property two Rottweiller dogs ran towards him. To escape the dogs, he ran to the front gate and jumped over it. In the process, he fell and injured his back and his right foot. Mr Edington subsequently claimed to have suffered an injury to his right foot and either post traumatic stress disorder (‘PTSD’), or an anxiety disorder, as a result of this incident.

10. Mr Edington ceased work with the Department on 8 July 2002 and received income protection payments from 26 July 2002 until 23 June 2003. On 12 February 2003, he applied to the scheme for a TPD benefit.
11. The trust deed defined “total and permanent disablement” (in s 4) as “disablement of a degree which, in the opinion of the board after obtaining the advice of not fewer than 2 medical practitioners, is such as to render the member unlikely ever to be able to work again in a job for which the member is reasonably qualified by education, training or experience”. The trust deed further provided (in s 86(1)) that “[t]he board must decide the terms on which the insurance is provided” to members.
12. Clause 4.4 of the terms of insurance stated that:

An insured member’s death and total and permanent disablement benefit shall become payable on the insured member’s death or upon total and permanent disablement.

Clause 1.2 provided that any term defined in the trust deed has a corresponding meaning in the insurance terms unless otherwise defined. “Disablement” is defined in the deed as “any mental or bodily injury, illness, disease or infirmity”.

13. Clause 6.2 of the terms of insurance provided that:

No insurance benefit will be paid for a claim unless:

...

(c) (i) the member has been an insured member for fewer than 10
continuous years; and

(ii) the member did not lodge a personal medical statement at or about the date on which the member became an insured member; and

(iii) it is established to the satisfaction of the board that the total and permanent disablement or death or temporary disablement was not related to a condition that ought reasonably to have been disclosed had a personal medical statement been submitted at or about the date on which the member became an insured member.

Clause 6.5 further stated that:

Where an insured member increases the number of units of insurance, any increase in benefit resulting from the increased number of units will not be paid unless:

...

(c) (i) the member has held the increased number of units for fewer than 10
continuous years; and

(ii) the member did not lodge a personal medical statement at or about the date of the increase in the number of units; and

(iii) it is established to the satisfaction of the board that the total and permanent disablement or death or temporary disablement was not related to a condition that ought reasonably to have been disclosed had a personal medical statement been submitted at or about the date of the increase in the number of units.

14. The subsequent difficulty in determining Mr Edington’s eligibility for a TPD benefit is principally attributable to the fact that, prior to commencing his employment as a field assistant, Mr Edington was diagnosed with schizophrenia. It was not in dispute that he continued to suffer from this condition at all times relevant to this appeal. The Board and the Tribunal dealt with Mr Edington’s claim on the basis that Mr Edington had not disclosed that he suffered from schizophrenia either on becoming an insured member (cl 6.2) or on increasing his units in the fund (cl 6.5).
15. On 26 May 2003, a delegate of the Board of Trustees determined that Mr Edington was not suffering from a disability that rendered him incapable of discharging his duties as a result of the injury to his foot sustained in the incident in January 2002. The delegate further determined that, as a result of his schizophrenia, Mr Edington was unlikely ever to be able to work again in a job for which he was reasonably qualified by education, training and experience and was, therefore, considered to be totally and permanently disabled for the purpose of retirement on the grounds of ill health. The delegate further determined that Mr Edington was not entitled to be paid a TPD benefit because the evidence did not establish that his schizophrenia condition was not related to a medical condition existing before he became a member.
16. Mr Edington was retired from the Department on 23 June 2003. In 2003 and 2004, Mr Edington lodged, withdrew, and then renewed, an application to the Board of Trustees seeking a review of the delegate’s decision refusing him a TPD benefit. The Board of Trustees affirmed the delegate’s decision in August 2004. Mr Edington appealed to the Tribunal against the decision of the Board of Trustees and, on 2 October 2006, the Tribunal affirmed the Board’s decision. Mr Edington appealed to this Court, which dismissed his appeal on 14 December 2007: see Edington v Superannuation Complaints Tribunal [2007] FCA 1989.
17. In a subsequent appeal to a Full Court of this Court, the Full Court made consent orders on 15 May 2008 allowing the appeal, setting aside the decision of the Tribunal, and remitting the matter to the Board of Trustees to be determined according to law: see Edington v Superannuation Complaints Tribunal [2008] FCAFC 78. The parties to the Full Court appeal agreed (at [3]) that there had been an error of law on the Tribunal’s part in that:

... there was no logical basis, having regard to the evidence, for the Tribunal’s conclusion that a relationship had been demonstrated between the appellant’s schizophrenia as a pre-existing medical condition and the post-traumatic stress disorder, which was the basis of the claim under the relevant policy.

The Full Court stated (at [4]) that it was satisfied that it was “proper to make the orders sought”, adding that:

The consequence will be that the matter will go back to the Board, at which time the report of Dr De Leacy that was not before the Board when it made its decision, will be before the Board and it can make a decision fully informed about the evidence relevant to the appellant’s condition.

The report to which the Court referred was the report of Dr de Leacy dated 22 October 2005.

DECISION OF THE BOARD OF TRUSTEES

18. On 25 September 2008, the Board of Trustees rejected Mr Edington’s application for the second time. In a letter of that date to Mr Edington, the Board stated that it had determined that:
    1. Mr Edington was totally and permanently disabled pursuant to the QSuper Trust Deed.
       
    2. Mr Edington’s disablement was related to his schizophrenia which should reasonably hade been disclosed had a personal medical statement been submitted at or about the time he became an insured member with 4 units i.e. 10 September and when he increased his insurance by 17 units i.e. 10 December 2001.
       

Therefore, the Board affirmed its previous decision that Mr Edington was not entitled to the insurance benefit for his 21 units.

19. In a statement of reasons, the Board identified the relevant question as being: “was Mr Edington’s total and permanent disablement related to a pre-existing condition pursuant to the QSuper Insurance Terms?” Under the heading “Material Findings”, the Board purported to summarize the salient points in the reports of the medical practitioners, specifically referring to the reports of Dr Butler, treating psychiatrist, dated 13 January 2003; Dr Olsen, consulting physician, dated 2 April 2003; Dr Reddan, consulting psychiatrist, dated 3 May 2003; Dr Jamieson, consultant orthopaedic surgeon, dated 9 May 2003; and Dr de Leacy, consultant psychiatrist, dated 22 October 2005. The Board also referred to the report of Ms Jooste, treating psychologist, dated 11 March 2003. The Board concluded that:
    10. The Board notes that Mr Edington was extremely defensive about his schizophrenia to Dr Reddan and apart from admitting that he may have been hospitalised, once or twice, he refused to provide any details.
        
    11. Dr Reddan, Consulting Psychiatrist further stated in her report dated 3 May 2003 that Mr Edington had told her that his psychiatric history was of absolutely no relevance and that he had only come to Dr Reddan’s evaluation to discuss his work related injuries.
        
    12. Dr de Leacy, Consultant Psychiatrist, stated in his report dated 22 October 2005 that although Mr Edington’s anxiety symptoms may result from him being more susceptible as a result of his schizophrenia, his current symptoms of stress which had been discussed in this report were not due to schizophrenia but due to a severe stress reaction from the dog incident in 2002.
        
    13. The Board notes that when Mr Edington was seeking reemployment, Dr Butler, Psychiatrist, in his report dated 17 July 2003 stated that Mr Edington recently described a considerable improvement in his physical symptomatology and that he no longer had the marked anxiety associated with exposure to dogs.
        
    14. The Board noted that when Mr Edington was appealing to the Superannuation Complaints Tribunal, he was examined by Dr de Leacy, Psychiatrist, who stated in his report dated 2 October 2005 that Mr Edington reported an extreme fear of dogs and that he has a range of symptoms that fulfilled the DSMIV criteria for post traumatic stress disorder by having the requisite number of symptoms from each category of intrusive symptoms, avoidance symptoms and hyperarousal symptoms.
        
    15. Dr Reddan, Consultant Psychiatrist, stated in her report dated 15 July 2008 that the dog incident in 2002 was not a severely traumatic event for a diagnosis of post traumatic stress disorder. Further, Dr Reddan stated that it was the schizophrenia which prevented Mr Edington from successfully maintaining a longitudinal work history.
        
    16. The Board prefers the reasoning outlined in the medical reports by Dr Reddan, Consulting Psychiatrist because of the different medical histories given by Mr Edington to Dr Butler and Dr de Leacy.
        
    17. The Board believes that Mr Edington’s current disablement was related to his schizophrenia which was diagnosed before he took out his 21 units of insurance and which should reasonably have been disclosed had a personal medical statement been submitted by him around the dates he received his insurance units in September 2001 and December 2001.
        
    18. With respect to Mr Edington’s disablement, the Board is satisfied after having considered all the evidence that it rendered him unlikely ever to be able to work again in a full-time job for which he is reasonably qualified by education, training and experience.

DECISION OF THE TRIBUNAL

20. On a review, the Tribunal affirmed the Board’s decision on 11 September 2009 upon the basis that it was satisfied that its operation in relation to Mr Edington was fair and reasonable in the circumstances. This was the decision the subject of appeal to the primary judge.
21. In its statement of reasons, the Tribunal summarised the complaint, procedural background, provisions of the trust deed and insurance terms, medical reports, and the opposing submissions of Mr Edington and the Board of Trustees. Under the heading “Tribunal’s Deliberations”, the Tribunal commenced by saying:
    97. The role of the Tribunal is to determine whether the decision of the Trustee to refuse payment of the TPD benefit because of the Complainant’s pre-existing illness is fair and reasonable in its operation in relation to the Complainant in the circumstances. The issue is not what decision the Tribunal would have made on the evidence before it. In reaching its determination, the Tribunal took all of the evidence and submissions into account.
        
    98. The issue for consideration by the Tribunal in this complaint is whether the decision of the Trustee that the condition rendering the Complainant totally and permanently disabled was related to a pre-existing condition (as that term appears in sub-clauses 6.2 and 6.5 in the Fund’s insurance terms) operates fairly and reasonably in relation to the Complainant in the circumstances.
22. The Tribunal set out its analysis in the following paragraphs:
    99. The Tribunal notes there has been considerable variation in the history concerning the dog incident as provided by the Complainant to the various reporting health practitioners. The Complainant’s ‘Claim for income protection benefits’ lodged on 13 September 2002 refers only to the right ankle injury. The claim for permanent disability benefit, received by the Trustee on 12 February 2003, describes the Complainant’s medical condition as ‘Damaged Body Anxiety Stress Phobic React – Nerves’.
        
    100. With respect to the Complainant’s ankle injury and his neck and back pain, the consensus of opinion is that these conditions would not prevent him from undertaking semi-sedentary work such as his pre-injury employment. (See the reports of Dr JO, Dr EL and Dr DW). Dr JO identified the Complainant’s schizophrenia as the cause of his total incapacity for work and none of the above-mentioned doctors detected physical evidence of an ankle abnormality or a regional pain syndrome.
         
    101. There is dissent of opinion in the reports of the psychologist and psychiatrists both to the diagnosis of the Complainant’s post-injury psychological condition, although all acknowledge his pre-existing paranoid schizophrenia, and the psychological cause of his total incapacity for work. Ms LJ and Dr EdeL have diagnosed PTSD attributable solely to the incident of 2 January 2002.
         
    102. Dr JB and Dr JR have diagnosed an anxiety disorder and Dr JB also diagnosed a phobia to dogs. Both rejected the diagnosis of PTSD. In 2003 the Complainant told both of these doctors that his ankle was greatly improved and he no longer feared dogs. The Complainant expressed a desire to return to work in the Fire Ant Surveillance Programme and was encouraged to do so or to seek similar employment, by both doctors. The history given to Dr EdeL in late 2005 differs significantly to that given to Drs JB and JR. Dr EdeL reported an on-going terror of dogs and florid symptoms meeting all the criteria for a diagnosis of PTSD, except for some amnesia for the incident.
         
    103. In mid-2003, Dr JB and Dr JR attributed the Complainant’s incapacity for work to his pre-existing paranoid schizophrenia. The Tribunal noted that the Complainant was paid income protection benefits from 26 July 2002 until 23 June 2003 when his employment was terminated on invalidity grounds. The date of termination of employment would appear to have occurred after the Trustee and Employer received the report of Dr JR.
23. After a short discussion of the status of the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Test Revision (DSM-IV-TR) and the diagnostic criteria for PTSD, the Tribunal continued:
    108. Dr EdeL has reported the Complainant’s symptoms using the exact words of the various criteria and states that he questioned the Complainant and the Complainant and the Complainant endorsed each symptom with the exception of some amnesia for the event. This suggests that the Complainant did not volunteer a description of his symptoms. In addition Dr EdeL has outlined the manner in which, in his opinion, the Complainant’s pre-existing schizophrenia has made ‘him more likely to suffer PTSD’.
         
    109. Criterion A for the diagnosis of PTSD requires that the person experienced, witnessed or was confronted with an event that involved actual (that is objective) or threatened death or serious injury. The hearing of dogs barking does not meet this criteria. Dr EdeL alone has described the Complainant’s response to the event as involving intense fear [Criterion A(2)]. It is to be noted that the Complainant had two days off work after the incident and claimed that he then returned to the ant surveillance programme and was not on light duties as directed by his GP.
         
    110. The Tribunal accepts that the Complainant experienced an anxiety reaction/disorder in response to the dog incident and that his response may have been exaggerated by his pre-existing schizophrenia. The majority of the psychiatric evidence indicates that this anxiety disorder was temporary and had essentially resolved by mid 2003 based on the medical history proffered by the Complainant to his treating psychiatrist at that time. There is no evidence that he was subsequently re-exposed to a similar or new event which might have reactivated his anxiety or caused PTSD. Thus his accepted incapacity for any form of work arises from his long-standing schizophrenia.
         
    111. Based on the Tribunal’s analysis of the medical reports, the Tribunal is satisfied that the Trustee’s decision to decline payment of the TPD benefit to the Complainant the grounds that, on the balance of probabilities, the medical condition attributed to the dog incident, whatever form of anxiety disorder it was, was temporary and that the Complainant’s TPD was related to his pre-existing, long-standing paranoid schizophrenia was fair and reasonable, given the conflicting psychiatric opinions. The Tribunal prefers the opinions of the treating psychiatrist Dr JB and that of Dr JR.
24. Upon this basis the Tribunal affirmed the decision of the Board of Trustees, being satisfied that the operation of the decision in relation to Mr Edington was “fair and reasonable in all the circumstances”.

DECISION OF THE PRIMARY JUDGE

25. The matter came before the primary judge under s 46(1) of the Complaints Act, which provides that a party “may appeal to the Federal Court, on a question of law, from the determination of the Tribunal”.
26. In the notice of appeal before the primary judge, the questions of law that were said to arise were that the Tribunal erred because:

(a) it failed to apply or properly apply the requirements of the Terms of Insurance dated 18 December 2001 (“the Terms of Insurance”) and the Superannuation (State Public Sector) Deed 1990 (“the Deed”);

(b) there was no evidence upon which the Tribunal could base its critical findings of fact to the effect:-

(i) that both Dr Butler and Dr Reddan attributed the Applicant’s incapacity for work in mid-2003 to his pre-existing schizophrenia; and

(ii) that in the absence of anxiety disorder at that time the Applicant’s accepted incapacity for any form of work arose from his schizophrenia.

(c) it improperly exercised the powers of review conferred upon it by Section 37 of the Superannuation (Resolution of Complaints) Act 1993 ... in reaching its conclusions.

27. The notice of appeal identified essentially four grounds. These grounds were:
    1. The Tribunal failed to identify the appropriate date for assessing total and permanent disablement pursuant to the trust deed and the insurance terms as 8 July 2002, being the date when Mr Edington ceased work and, in consequence, failed to identify that the preponderance of the medical evidence supported the conclusion that his incapacity for work on and from 8 July 2002 was not related to his pre-existing residual schizophrenia condition.
    2. The Tribunal failed to identify that under the trust deed, when determining pre-injury employability for the purposes of assessing total and permanent disablement, Mr Edington’s work capacity as at the date he became a fund member was to be taken into account and, in consequence, the Tribunal wrongly relied on the opinion of Dr Reddan and failed to rely on the opinions of Dr de Leacy, Lynette Jooste and Dr Butler.
    3. The Tribunal failed to identify that pursuant to the trust deed and the insurance terms, once Mr Edington was declared to be totally and permanently disabled, it was unnecessary for him to identify the cause of the disablement as a pre-condition to payment of the benefit but only to show that the disablement was not related to the pre-existing residual schizophrenia condition; and, in consequence, it wrongly assumed that, if it was not satisfied that the cause of disablement was a post-traumatic stress disorder (‘PTSD’), then the cause must necessarily be his pre-existing residual schizophrenia condition, and failed to recognise that the medical evidence did not support a finding that by mid-2003 his accepted incapacity for work arose from his schizophrenia.
    4. The Tribunal failed to give any or any real consideration to the matters set out in Mr Edington’s 28 May 2009 submissions and, in so doing, failed to deal with the subject matter of his complaint and, as a consequence, did not take into account relevant considerations, acted unreasonably and in bad faith, and applied DSM IV diagnostic criteria when no-one on the Tribunal held any expertise in psychiatry or psychology and so acted contrary to law.
28. The learned primary judge held that the Tribunal did not discharge its role under s 37 of the Complaints Act. First, his Honour held that, in order to determine whether the decision of the Board of Trustees was fair and reasonable in relation to Mr Edington, the Tribunal “must, first, identify how the Trustees actually came to their decision”, and that this required the Tribunal “to identify the reasoning process that the Trustees employed to reach their decision”: see Edington at [36]. His Honour held that the Tribunal had not proceeded in this way, saying (at [39]) that:

I consider the Tribunal should have, among other things, considered the “different medical histories” that the Trustees said Mr Edington gave to Dr Reddan on the one hand, and to Drs Butler and De Leacy on the other. Then it should have determined whether, and how, those different histories affected the cogency of the various opinions given, to determine whether it was fair and reasonable for the Trustees to accept and rely upon Dr Reddan, but not the other two doctors.

29. In holding that the Tribunal did not properly review the decision of the Board of Trustees, the primary judge also noted (at [41]) that “the Trustees accepted, and relied upon, Dr Reddan’s opinions in preference to those of Drs Butler and De Leacy” whilst “the Tribunal accepted and relied upon the opinions of both Drs Reddan and Butler”. As to this difference, his Honour said (at [41]-[42]):

This begs the obvious question, critical to the Tribunal’s review role: was it fair and reasonable for the Trustees not to accept Dr Butler’s opinions when the Tribunal thought they should be accepted and relied upon?

The Tribunal did not ask, or answer, this question. If it had, it would have had to resolve a critical difference between the opinions of Dr Reddan and those of Dr Butler on the cause of Mr Edington’s total and permanent disablement for work. For her part, Dr Reddan was of the opinion that it was Mr Edington’s schizophrenia that prevented him from working ... However, Dr Butler’s opinion on this issue was quite different.

30. The primary judge also observed (at [43]) that the Tribunal and the Board of Trustees reasoned differently to reach “the same conclusion on the pivotal question: was Mr Edington’s total and permanent disablement for work related to his schizophrenia condition, ie the causation issue?” According to the primary judge (at [43]-[45]), this was because, on the one hand, the Board of Trustees relied on Dr Reddan, who considered that the dog incident did not cause Mr Edington to suffer PTSD; and Mr Edington’s total and permanent disablement for work was related to his pre-existing schizophrenia condition. The Tribunal, on the other hand, accepted the opinions of Dr Reddan and Dr Butler, to support its findings that the dog incident caused Mr Edington to suffer an anxiety reaction; that anxiety condition was resolved by mid-2003; that there was no re-occurrence of that condition thereafter; and that Mr Edington’s total and permanent disablement for work was thus related to his pre-existing schizophrenia condition. In his Honour’s view, “it was incumbent upon the Tribunal to examine whether it was fair and reasonable for the Trustees to use a different reasoning process to come to the same conclusion as it did on this causation issue”: see Edington at [46]. Further, in his Honour’s view, it was “important ... for the Tribunal to undertake a thorough and careful review of the way in which the Trustees dealt with all of the medical opinions on this causation issue”: see Edington at [47].
31. Finally, the primary judge considered that there was merit in the submission made on Mr Edington’s behalf that the Board of Trustees had not considered Dr Butler’s report of 15 July 2004, and it was not fair and reasonable to reject his opinions without having done so: see Edington at [49]. His Honour observed (at [49]) that:

[S]ince the Trustees did not mention the opinions expressed by Dr Butler in that report in their material findings, it must follow that it was impossible for the Tribunal to make any proper assessment as to whether, the way in which they dealt with those opinions, was fair and reasonable.

32. Lastly, the primary judge expressed the opinion (at [50]) that:

[T]he way the Tribunal actually went about its task ... also indicates it did not conduct a proper review focusing on the fairness and reasonableness of the Trustees’ decision. Instead, I consider the Tribunal’s reasons reveal that it actually conducted a fresh review of the whole of the evidence in order to ascertain the rights of the parties generally. In the process, it made most, if not all, of the necessary findings of fact afresh, as if the Trustees’ material findings had not been made. In addition, it made specific findings of fact that the Trustees had not made, for example, that Mr Edington had not been involved in a life or injury threatening experience within the criteria set out in DSM-IV-TR ... – in my view, this was plainly not a finding of fact that was necessary to allow the Tribunal to assess whether the Trustees’ decision was fair and reasonable. So, in summary, I consider the Tribunal’s reasons show that it proceeded to decide afresh what it thought the correct decision was, and it then concluded that, because the Trustees’ decision was to the same ultimate effect as its decision, their decision must have been fair and reasonable.

33. Having held that the Tribunal did not properly exercise its powers of review, the primary judge set aside the Tribunal’s decision and remitted the matter to the Tribunal for reconsideration.

THE APPEAL TO THE FULL COURT

34. The appeal against the judgment of the primary judge challenges his Honour’s central finding that the Tribunal did not properly exercise its powers and misconstrued its function when reviewing the decision of the Board of Trustees. On this appeal, the appellant contended that his Honour erred in this regard, whilst the first respondent, Mr Edington, sought to uphold his Honour’s decision. The second respondent made no submissions and was content to abide the decision of the Court.
35. We also consider that there is a further critical issue, namely, whether Mr Edington identified any question of law of the kind necessary to found this court’s jurisdiction under s 46 of the Complaints Act.

CONSIDERATION

Question of law

36. The jurisdiction invoked by Mr Edington in the proceeding before the primary judge was that conferred by s 46(1) of the Complaints Act, which provides that a party to a proceeding before the Tribunal may appeal to the Federal Court on a question of law. The jurisdiction is thus a limited one. The appeal for which s 46(1) provides is a proceeding in the original jurisdiction of the Court. The subject matter of an appeal under this provision is the question or questions of law on which the appeal is brought. No appeal under s 46(1) will lie from the Tribunal’s findings of fact, unless those findings were reached in a manner giving rise to a question of law: see, e.g., Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 12 (Davies and Beazley JJ) and at 16 (Hill J). Accordingly, if the question is whether the decision-maker in answering questions of fact failed to take into account a relevant consideration, had regard to an irrelevant consideration, adopted a wrong approach, or reached a decision so unreasonable that no reasonable decision-maker could have come to it, then that question is a question of law: see Sharp 59 FCR at 12.
37. The notice of appeal instituting the original proceeding in the Federal Court did not in fact state any questions of law. Rather, the appeal notice affirmed numerous propositions that were said to be the occasion for legal error on the Tribunal’s part, including a failure to apply the trust deed and the insurance terms; an absence of evidence for certain findings; and an improper exercise of review powers. No proposition actually stated a question.
38. The first and third propositions set out at [26] above asserted that the Tribunal erred because: (1) it failed to apply the governing legal instruments; and (2) it failed properly to exercise its powers of review. Even if transformed into questions, such broad enquiries about the operation of statutory provisions and legal instruments would not amount to the identification of any question of law within the meaning of s 46 of the Complaints Act: compare Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522 at 528 [19] (Branson J, with whom Spender and Nicholson JJ generally agreed) applying Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; (2003) 38 AAR 55.
39. Further, reference to the grounds as stated in the notice of appeal discloses that, apart from ground 4(d)(i) and (ii) (failure to have regard to “many relevant considerations”, and acting unreasonably and in bad faith), each of the three propositions said to identify the questions the subject of the appeal encompasses matters of mixed fact and law. Thus, if it were open to refer to the grounds to understand the stated questions – a matter upon which the authorities may differ (cf. Ergon Energy Corp Ltd v Commissioner of Taxation [2006] FCAFC 125; (2006) 153 FCR 551 at 565) – the result would be the identification of mixed questions of fact and law. A mixed question of fact and law is not a question of law within the meaning of s 46: compare Comcare v Etheridge 149 FCR at 527. The mixed character of the question was underscored by the manner in which counsel for Mr Edington put the issue for determination at the hearing before the primary judge. At this hearing, counsel for Mr Edington submitted that the question was whether the Tribunal “took a mistaken view of its role, or misunderstood what it was supposed to do ... the only relevant question [being] whether or not the applicant’s total and permanent disability was sufficiently related to a pre-existing condition”.
40. We note in passing that, while grounds 4(d)(i) or (ii) were capable of raising questions of law, they were presented as bald assertions, which, in the absence of particulars, did not give rise to any distinct question of law.
41. The second proposition – that there was “no evidence” to support certain findings – might, in terms, also be thought to raise a question of law: see Military Superannuation and Benefits Board No 1 v Stanger [2002] FCA 671; (2002) 68 ALD 12 at [20] per Kiefel J; Smith v Club Plus Superannuation Pty Limited [2004] FCA 1519 at [61] (Jacobson J); Citicorp Life Insurance Ltd v Smith [2005] FCAFC 102 at [11]- [14] (Wilcox, Gyles and Downes JJ); Australian Broadcasting Tribunal v Bond (199) [1990] HCA 33; 170 CLR 321 at 355-356 (Mason CJ); and Comcare Australia v Lees (1997) 151 ALR 647 at 652-53 (Finkelstein J). The argument for Mr Edington, both before the primary judge and on this appeal, made it clear, however, that Mr Edington was not actually seeking to advance a “no evidence” ground such as that discussed in Comcare Australia v Lees 151 ALR at 652-53, but instead he was seeking to argue that the evidence was insufficient to justify the impugned findings said to be made by the Tribunal: see below at [59]. That is, by this route, Mr Edington was in fact challenging the Tribunal’s findings of fact – a challenge that s 46 did not permit him to make.
42. For these reasons, we consider that there were fundamental defects in the proceeding as it was originally constituted and argued. Mr Edington’s notice of appeal failed to state in terms a question of law as required by s 46 of the Complaints Act. If the appeal notice were liberally construed so as to give rise to a question of ‘no evidence’ so that jurisdiction under s 46 of the Complaints Act were attracted, then that question was not pursued because the challenge was to the sufficiency of the evidence, rather than its entire absence.

Did the Tribunal exercise its powers of review in accordance with law?

43. No-one questioned the competency of the proceeding, however, until we raised this matter with counsel during the hearing of the appeal. The appellant stated that the case before the primary judge was run on the basis that the question was whether or not the Tribunal had asked itself the correct question and misdirected itself as to the nature of its powers of review. Mr Edington’s counsel did not apparently dispute this. Whilst a question of this kind would be capable of being characterized as a question of law, as we have seen, it finds only limited support in the notice of appeal discussed above. Notwithstanding our doubts about the constitution of the appeal, however, we consider that, on balance, the proceeding below was not entirely incompetent. Hence, we discuss hereafter, whether or not, for the reasons his Honour gave, the Tribunal failed to exercise its powers of review as required by s 37 of the Complaints Act.
44. Mr Edington made a complaint to the Tribunal pursuant to s 14(2) of the Complaints Act, which, as stated above, allows a member of a regulated superannuation fund to complain to the Tribunal that a decision made by the trustee of that fund is unfair or unreasonable. The role of the Tribunal was to decide whether or not the decision made by the Board of Trustees to affirm its previous decision that Mr Edington was not entitled to an insurance benefit for his 21 units was fair and reasonable in relation to him in all the circumstances: see, e.g., Vision Super Pty Ltd v Poulter [2006] FCA 849; (2006) 154 FCR 185 at 192 [30] (Young J) and National Mutual Life Association of Australia Ltd v Jevtovic [1997] FCA 359; (1997) 217 ALR 316 at 321 (Sundberg J). “Unreasonable” and “unfair” have been said to be “words of broad content”, which are not readily defined. The use of synonyms and definitions as interpretational aids has been discouraged: see National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852; (2000) 99 FCR 562 at 571 [36] (Black CJ, Emmett and Hely JJ).
45. Various provisions of the Complaints Act show that, relevantly, a function of the Tribunal is to conduct a form of administrative review of decisions made by trustees of regulated superannuation funds, which are challenged by relevant persons as unfair or unreasonable: see, e.g., ss 12, 14, 37, and 41. A hearing before the Tribunal is a hearing de novo, following which the Tribunal makes findings of fact relevant to its deliberations: see Attorney-General (Cth) v Breckler [1999] HCA 28; (1999) 197 CLR 83 at 128 [87] (Kirby J); Lykogiannis v Retail Employees Superannuation Pty Limited [2000] FCA 327; (2000) 97 FCR 361 at 372 [48] (Mansfield J), citing Seafarers’ Retirement Fund Pty Ltd v Oppenhuis [1999] FCA 1683; (1999) 94 FCR 594 at 599 [19]- [23] (Merkel J).
46. Under the Complaints Act, the Tribunal is not called on to make the same kind of determination as the Administrative Appeals Tribunal under its governing legislation. That is, in contrast to the Administrative Appeals Tribunal, the Tribunal under the Complaints Act is not called upon to determine whether the trustee made the correct or preferable decision: see, e.g., Jevtovic 217 ALR at 322; Cameron v Board of Trustees of the State Public Sector Superannuation Scheme [2003] FCAFC 214; (2003) 130 FCR 122 at 132-133 [38]- [43] (Whitlam, Kiefel and Dowsett JJ); and National Mutual Life Association of Australia Limited v Scollary [2002] FCA 695 at [37] (Ryan J). Rather, the Tribunal stands in the shoes of the trustee and determines, based on all the information before it, whether or not a decision taken by the trustee was fair or reasonable in the circumstances. In Jevtovic 217 ALR at 321, Sundberg J held that the words “the decision ... was fair and reasonable” in s 37(6) were directed to whether the actual decision, rather than the process that led to it, was fair and reasonable, a proposition that has subsequently been accepted as correct: see, e.g., Citicorp Life Insurance [2005] FCAFC 102 at [19]; and Colonial Mutual Life Assurance Society Limited v Brayley [2002] FCA 1333 at [31] (Branson J).
47. If the Tribunal is satisfied that the decision of the trustee was not fair and reasonable, the Tribunal makes a decision that is fair or reasonable in substitution for the decision of the trustee, always providing that the Tribunal cannot do anything contrary to law, the rules of the fund, or the terms of insurance: see ss 37(3), (4), (5) and 41(3); also Briffa v Hay (1997) 75 FCR 428 at 437; Breckler 197 CLR at 129 [88]; and, recently, Machin v Board of Trustees of the State Public Sector Superannuation Scheme [2010] FCA 969 at [82] (Dodds-Streeton J).
48. As Kirby J said in Breckler 197 CLR at 129 [89], with respect to a decision made by the Tribunal in substitution for that of the trustee:

The new decision, which might have retrospective operation, will speak from the time specified in the determination. What is involved is not a determination that the trustees misapplied the law to the facts. Nor that they mistook their powers and obligations under the governing rules of the fund. Rather it is a determination by the Tribunal of its own opinion that the trustees' decision is, or was, unfair, unreasonable or both. It is the reaching of that opinion which authorises the Tribunal, conforming with s 37(5) of the Complaints Act, to exercise its own determination-making power and to substitute a fresh decision. The object of the determination is to effect the purpose of removing the unfairness and unreasonableness which the Tribunal has determined to exist [Superannuation (Resolution of Complaints) Act 1993, s 37(4)]].

If, however, the Tribunal is satisfied that, in the circumstances, the decision of the trustee was fair and reasonable in its operation in relation to the complainant, it must affirm the decision: see s 37(2) and (6).

49. The Complaints Act does not specify the considerations that the Tribunal is bound to take into account in deciding whether or not a decision of the trustee was fair or reasonable: see, in this regard, HEST Australia Ltd v Sykley [2005] FCA 1381; (2005) 147 FCR 248 at 261 [49] (Crennan J). These considerations must therefore be determined by reference to the subject-matter, scope and purpose of the Act: see generally Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 39-40. A purpose of the Act is “to ensure members and beneficiaries are not adversely affected by unfair and unreasonable decisions of insurers and trustees”: see HEST 147 FCR at 261 [49]. Considered in this light, the governing trust deed and insurance terms will necessarily be relevant considerations: see Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330; (2001) 48 ATR 359 at 366 [28] (Allsop J) and Cameron 130 FCR at 131 [32]. This is because an essential part of the statutory scheme is that a determination under s 37(3) substitutes the Tribunal’s decision for the decision of the trustee; and in consequence, the substituted decision must itself be one that is authorised by the legal instruments governing the fund: compare Briffa v Hay 75 FCR at 443 (Merkel J).
50. Furthermore, since the Tribunal hearing is a hearing de novo, the Tribunal is not “restricted to the documents which were before the trustee, nor is it confined to the manner in which the applicant addressed the subject matter”: see HEST 147 FCR at 259 [40], citing Commonwealth Superannuation Scheme Board v Dexter [2004] FCA 1434 at [59]- [60] (Gray J), Crocker [2001] FCA 1330; 48 ATR 359 at 387-388 [132]- [133], and Oppenhuis 94 FCR at 598-599. It must be borne in mind, however, that, notwithstanding the Tribunal has “all the powers, obligations and discretions that are conferred on the trustee” (s 37(1)(a)), the Tribunal is primarily concerned with the question whether or not the decision of the trustee was fair and reasonable. The whole of its inquiry, including its fact-finding, is directed to answering this question. As Mansfield J said in Lykogiannis 97 FCR at 372 [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.

In Hornsby v Military Superannuation and Benefits Board of Trustees (No 1) [2003] FCA 54; (2003) 126 FCR 484, Mansfield J also said at 492 [19]-[20]:

[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.

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] FCA 671; (2002) 68 ALD 12 at 18-19 [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 ...

We agree with Mansfield J’s approach as stated in these passages.

51. We accept that the Tribunal must make its own assessment of the evidence and other information with a view to making its own findings of fact directed to the fundamental question for determination – whether the decision of the trustee was fair and reasonable. The Tribunal may, of course, accept the findings made by the trustee if it agrees with them, but the Tribunal’s function is not discharged merely by forming a view that the trustee’s factual findings were fair and reasonable. Rather, the Tribunal must ascertain the facts for itself upon the material before it and satisfy itself by reference to these facts whether the trustee’s decision was fair and reasonable in the circumstances. Moore J expressed the same idea in Marks v CSS Board of Trustees [2005] FCA 797 at [23], saying:

[Section] 37(6) of the Complaints Act does not authorise ... the Tribunal simply reviewing all factual issues and indicating that findings by the prior decision maker were fair and reasonable. That subsection is intended to operate on the ultimate decision made by the prior decision maker, namely the decision under review. What the Tribunal must do is form a view about necessary facts, determine what the facts are and then by reference to those ascertained facts determine whether the decision of the prior decision maker was fair and reasonable in the circumstances. The facts ascertained by the Tribunal constitute “the circumstances” by reference to which the Tribunal makes that evaluation.

See also Edwards v Postsuper Pty Ltd [2006] FCA 1380 at [30] (Moore J).

52. Having regard to the relevant provisions of the Complaints Act and the nature of the review that the Tribunal is to conduct under that Act, as outlined in the authorities discussed above, we conclude that the Tribunal conducted the review of the decision of the Board of Trustees in accordance with the Complaints Act and, in particular, s 37.
53. Plainly enough, the Tribunal correctly identified the fundamental question that it was to answer: see [21] above. As we have seen, the critical question for the Tribunal was whether or not it was satisfied that the decision of the trustees – being the decision under review – was, in its operation in relation to Mr Edington, fair and reasonable in the circumstances: see s 37(6). Nothing in the Complaints Act expressly required the Tribunal to consider whether or not the reasoning process adopted by a trustee in reaching the impugned decision was fair and reasonable; and no such obligation should be implied. In so far as the reasons of the primary judge conveyed a different view, we consider that his Honour erred. This is because, in the context of s 37(6), the Tribunal is required to make its own assessment of the evidence and other information before it, in order to determine whether or not it is satisfied that the decision under review was, in its operation in relation to the complainant, fair and reasonable in the circumstances. The Tribunal may make its own findings of fact for this purpose after a de novo hearing. After this new hearing, nothing may turn on the reasoning process of the previous decision-maker, because the Tribunal may or may not, for its own reasons having regard to the evidence before it, be satisfied that the decision under review was fair and reasonable in its operation in relation to the complainant in the circumstances as it has found them. Thus, even if the Tribunal’s factual findings differed from those of the previous decision-maker, the Tribunal might nonetheless be satisfied that, in the circumstances, the decision under review was in fact fair and reasonable in the relevant way. Plainly enough, in this event, the process of reasoning adopted by the Tribunal in determining whether or not the decision under review was relevantly fair and reasonable would be likely to differ from the reasoning that led to the decision under review. The fact that it did would not necessarily bear on the Tribunal’s satisfaction as to the reasonableness or fairness of the decision under review.
54. Thus, we do not consider that it was incumbent on the Tribunal to focus on the reasoning that supported the decision of the Board of Trustees. In deciding whether the decision of the Board of Trustees was relevantly fair and reasonable, the Tribunal was required, plainly enough, to consider the decision the Board of Trustees had made; and the Board’s reasoning process, as outlined in its written statement, was necessarily part of the information before the Tribunal. The Tribunal’s own reasons for decision make it clear that the Tribunal was well aware of the Board’s reasoning process, including the fact that the Board of Trustees preferred the evidence of Dr Reddan to that of Dr Butler and Dr de Leacy because of the different histories given to them. However, the Tribunal undertook its own assessment of the evidence and information before it, as it was required to do; and, as a consequence, made its own findings with a view to determining whether the decision under review was relevantly fair and reasonable, as it was entitled to do. The Tribunal’s findings differed in some respects from those of the Board and so did its reasoning. Since the Tribunal was undertaking a hearing de novo for the purpose of determining for itself whether or not the decision (as opposed to the reasoning) of the Board of Trustees was, in its operation in relation to the complainant, fair and reasonable, the Tribunal was not obliged to scrutinize the reasoning process of the Board; but, rather, was required to make its own decision on the material before it as to whether the decision made by the Board was fair and reasonable in its operation in relation to Mr Edington. In so doing, it might pursue a process of reasoning that it considered best took account of the facts as it found them, bearing in mind the trust deed, the insurance terms and the law as the Tribunal understood it: compare the Complaints Act, s 37(5). The Tribunal was not required to take the extra step of comparing the Board’s reasoning process with its own.
55. The primary judge was of the opinion that the Tribunal failed properly to consider the discrepancy between the evidence of Drs Butler and Reddan, when it accepted the evidence of both. It may be recalled that the Tribunal found that the decision to refuse Mr Edington a TPD benefit on the grounds, amongst others, that Mr Edington’s total and permanent disablement was related to his pre-existing schizophrenia was fair and reasonable, “given the conflicting psychiatric opinions”. At this juncture, the Tribunal noted that it preferred the opinions of Drs Butler and Reddan.
56. We interpolate here that the statement that it preferred the opinions of Drs Butler and Reddan was originally challenged as part of Mr Edington’s no-evidence ground – the other related part of the ground being that there was no evidence that, in the absence of an anxiety disorder, Mr Edington’s incapacity for work arose from his schizophrenia. Effectively, both parts of the no-evidence ground focused on the suggested absence of evidence that Mr Edington’s work incapacity was related to his pre-existing schizophrenia.
57. We do not consider, however, that there is any relevant deficiency in the Tribunal’s approach in this regard. As already noted, it was common ground that at all times material to this appeal Mr Edington suffered from schizophrenia. In reports dated 3 May 2003 and 15 July 2008, Dr Reddan expressed the opinion that Mr Edington’s ongoing incapacity for work was related to this pre-existing condition. Dr Reddan also considered that Mr Edington did not meet the full criteria for a diagnosis of a Specific Phobia with regard to dogs. Dr Butler did not attribute Mr Edington’s incapacity for work to schizophrenia but (as stated in a report dated 13 January 2003) was of the opinion that Mr Edington had not suffered from PTSD and (as stated in a report dated 17 July 2003) that any phobia that had arisen as a consequence of the dog incident had dissipated.
58. The opposing view to that of Drs Reddan and Butler was that Mr Edington’s incapacity for work was the consequence of PTSD arising out of the dog incident. This was the opinion of Dr de Leacy: see [19] above. Both Drs Reddan and Butler rejected this possibility since both rejected the existence of PTSD.
59. The Tribunal’s conclusion that the medical condition in the nature of an anxiety disorder attributable to the dog incident was supported by Dr Butler’s evidence. Its conclusion that Mr Edington’s incapacity for work was related to his pre-existing schizophrenia was supported by Dr Reddan’s evidence. The Board of Trustees had also accepted Dr Reddan’s evidence in this latter regard. In substance, in concluding as it did, the Tribunal accepted different aspects of the evidence of the medical opinions given by these two medical practitioners. It was open to the Tribunal to approach the matter in this way and, on the basis of Dr Reddan’s evidence, to find that Mr Edington’s total and permanent disability was related to a pre-existing condition of schizophrenia. It was therefore open to the Tribunal to make the finding it did, and no error of law is disclosed in this regard.
60. It may be that, as counsel for Mr Edington submitted, the Tribunal mistook Dr Butler’s evidence when it said (at paragraph 103 of its statement of reasons) that, in mid-2003, both Dr Reddan and Dr Butler attributed Mr Edington’s incapacity for work to his pre-existing schizophrenia. As stated at paragraph [59] above, this would not support a finding of error of law. In any case, it is well accepted that there is no error of law “simply in making a wrong finding of fact”: see Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77 and Australian Broadcasting Tribunal v Bond 170 CLR at 356.
61. As noted earlier, the primary judge found that the Tribunal did not carry out its review properly for reasons that included the Tribunal’s failure to consider the effect on the cogency of the various medical opinions of the different medical histories said to be given by Mr Edington to the relevant medical practitioners. We do not agree that the Tribunal failed in this regard, but if we are wrong about that, then the failure was one that would only affect the weight to be given to aspects of the medical evidence. Generally speaking, issues of the weight to be given to evidence do not give rise to a question of law: see Australian Broadcasting Tribunal v Bond 170 CLR at 355-357. In the present case, as already noted, the findings made by the Tribunal were open to it.
62. For these reasons too, no error of law is shown in the Tribunal’s failure to give any detailed analysis of discrepancies between the Tribunal’s evidential approach and that of the Board of Trustees, or between the opinions of Drs Butler and Reddan. To the extent that the primary judge took a contrary view, we respectfully disagree.
63. In finding that the Tribunal had not properly fulfilled its reviewing function, the primary judge also held that the Tribunal failed adequately to address Mr Edington’s submission to it that the Board of Trustees had not considered Dr Butler’s report of 15 July 2004. We consider that his Honour’s criticism was misplaced in this respect. The Tribunal expressly referred to and summarised Dr Butler’s 15 July 2004 report and made a finding that was open to it based on that report – namely that any anxiety disorder suffered by Mr Edington in connection with the dog incident was temporary. The Tribunal was not constrained in any relevant respect by the fact that the Board of Trustees had not mentioned this particular report. Rather, it was for the Tribunal to consider for itself the evidence and other information before it, although (as we have already said) solely for the purpose of determining whether or not the decision of the Board of Trustees was fair and reasonable in the circumstances. Further, the decision and reasons of the Tribunal do not justify the conclusion that the Tribunal erred by conducting a review of the whole of the evidence in order to ascertain the rights of the parties generally.
64. On the hearing of the appeal, counsel for Mr Edington submitted that the Tribunal had also adopted a wrong approach by focussing on the current and ongoing causes of Mr Edington’s disablement, instead of focussing on the correct question – the cause of the disablement at the time of disablement. This submission had two aspects. The first is reflected in the reasons for judgment of the primary judge. We discuss the second at [68] below. In expanding on the proposition that the Tribunal ought to have given more consideration to the reasoning of the Board of Trustees, his Honour said (at [46]):

Furthermore, on this aspect, it will be noted that both the Trustees and the Tribunal concluded Mr Edington’s schizophrenia condition was the only alternative cause of his total and permanent disablement for work. Neither seems to have turned their minds to the temporal aspect of this causation issue raised by Dr Butler in his report of 17 July 2003 ... to the following effect: if Mr Edington could obtain work and perform his duties in its satisfactorily up until he sustained injuries in the dog incident what, apart from the incident, would explain his becoming totally and permanently disabled for that work so soon thereafter?

65. Counsel for Mr Edington not only supported his Honour’s analysis but argued that the Tribunal’s focus on the current and ongoing causes of Mr Edington’s disablement led the Tribunal erroneously to prefer the evidence of Dr Reddan to other medical evidence, which indicated that other conditions, apart from schizophrenia, may have been responsible for Mr Edington’s disablement. Further, so counsel for Mr Edington said, “[b]y focussing on a false process of elimination, the Tribunal has misunderstood its task”. For the reasons stated at [67] below, we would reject these submissions.
66. Also on the hearing of the appeal, counsel for Mr Edington advanced two other submissions in support of its principal contention that the Tribunal adopted the wrong approach. Counsel argued “[b]y describing [its] relevant task as determining whether the ‘condition’ which led to the disablement was related to the pre-existing condition”, the Tribunal manifested two errors: (1) the insurance policy required “a causal relationship between the disablement and the pre-existing condition, not between the condition ‘rendering’ the disablement and the pre-existing condition”; and (2) the Tribunal misunderstood its task because it failed to recognize that the Board of Trustees did not find that the two conditions were related. We would also reject these submissions: see [67] below.
67. As we observed earlier, the Tribunal correctly identified its statutory role at the outset of its deliberations and correctly stated that it was to determine whether the decision of the Board of Trustees to refuse the TPD benefit because of Mr Edington’s pre-existing illness was fair and reasonable in relation to him in the circumstances. Whilst there may be some infelicitous phrasing in the Tribunal’s statement of reasons, including the instance at [66] above, when read as a whole, we are satisfied that the Tribunal did not in fact mistake the issue it was to determine, either in its causal or temporal aspects. The Tribunal addressed this issue in its summary of its “deliberations on the medical reports” and, ultimately, in the penultimate paragraphs of its statement of reasons: see [23] above. We further accept that, as the appellant submitted, the Tribunal made a proper assessment of the medical evidence bearing in mind the insurance terms and the trust deed. We would not therefore attribute the posited errors to the Tribunal. In reaching this conclusion, we are guided by the well-accepted proposition that administrative decisions should be read as a whole and “without an eye keenly attuned to the perception of error”: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, affirming the test in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287. This proposition is particularly apposite in such a case as this, in which the Tribunal’s determination as to the fairness and reasonable of the decision under review inevitably involves a strong evaluative component that it essentially a matter for the Tribunal: see Sadleir v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCA 930 at [54] (Lander J); National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852; (2000) 99 FCR 562 at 571 [33] (Black CJ, Emmett and Hely JJ); and Mohandoss v AMP Superannuation Limited [2007] FCA 497 at [23] (Ryan J).
68. Also at the hearing of the appeal, counsel for Mr Edington argued that the Tribunal failed to focus its inquiry on the date of disablement as clause 4.4 of the terms of insurance required. Amongst other things, this argument involved the proper construction of the terms of insurance and identification of the date of disablement. As we noted on the hearing of the appeal, however, the primary judge did not rule that the Tribunal erred in failing to consider the situation as at the date of disablement in accordance with clause 4.4 of the insurance terms; and there was no notice of contention on Mr Edington’s part seeking to support his Honour’s judgment on this ground: see Federal Court Rules, Order 52, rule 22(3). When the absence of a notice of contention was brought to counsel’s attention, counsel for Mr Edington properly conceded that this issue should not be decided by us. Moreover, we note that there was a lack of clarity in Mr Edington’s argument as to the precise date of disablement. In oral argument, his counsel stated that this date was 26 May 2003 “at the latest”, although in the notice of appeal before the primary judge this date was said to be 8 July 2002.

DISPOSITION

69. For the reasons stated, we would allow the appeal and set aside the orders made by the primary judge. We are of the provisional opinion that the first respondent should pay the appellant’s costs of the appeal and the hearing before the primary judge. These are the orders sought in the appellant’s notice of appeal and in its submissions. We would, however, allow the parties an opportunity to make written submissions as to costs, noting that, if none are received by the due date, then, we would make the orders as provisionally indicated.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kenny and Lander.

Associate:
Dated: 1 February 2011

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 219 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	BOARD OF TRUSTEES OF THE STATE PUBLIC SECTOR SUPERANNUATION SCHEME Appellant
AND:	JOSEPH DAVID EDINGTON First Respondent SUPERANNUATION COMPLAINTS TRIBUNAL Second Respondent

JUDGES:	KENNY, LANDER & LOGAN JJ
DATE:	1 FEBRUARY 2011
PLACE:	BRISBANE

REASONS FOR JUDGMENT

LOGAN J:

70. I have had the privilege of reading in draft the joint reasons for judgment of Kenny and Lander JJ. I agree that this appeal should be allowed. I also agree generally with the joint reasons for judgment, but wish to add some remarks of my own (adopting for this purpose abbreviations found in the joint judgment).
71. Though termed an “appeal” by the Complaints Act, an appeal to this Court under s 46 of that Act invokes this Court’s original jurisdiction. That jurisdiction is only invoked if the appeal is, indeed, on a question of law. The point made a generation ago now by Gummow J (when a judge of this Court) in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175 at 178 in respect of the materially indistinguishable jurisdiction conferred on the Court by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) is no less applicable to an appeal under s 46 of the Complaints Act. The question of law is the very subject matter of such an appeal. Insistence on the formulation of a question of law is not therefore a matter of semantics in relation to pleading but goes to the very existence of jurisdiction to entertain the proceeding. The notice of appeal to the Court from the Tribunal did not, as is explained in the joint judgment, pose questions of law. However, as is also explained in the joint judgment, the proceeding before the learned primary judge was conducted, without objection, by reference to issues, some of which at least did arguably raise questions of law. The correct course would have been for Mr Edington to have sought to amend the notice of appeal so as formally to raise these. In the circumstances though I consider it is in the interests of justice to approach the case as if he had.
72. The duty imposed on the Tribunal by s 37 of the Complaints Act is first and foremost that of “reviewing the decision of a trustee, insurer or other decision-maker that is the subject of, or relevant to, a complaint under section 14”: s 37(3). That duty is subject to the qualification found in s 37(6) of the Complaints Act.
73. The present state of the authorities concerning the nature of the jurisdiction conferred upon the Tribunal by s 37 of the Complaints Act is comprehensively detailed in the joint judgment. Those authorities include a unanimous judgment of the Full Court: Cameron v Board of Trustees, State Public Sector Superannuation Scheme [2003] FCAFC 214; (2003) 130 FCR 122 (Cameron v Board of Trustees). Neither party to the appeal invited us to reconsider those authorities.
74. Uninstructed by those authorities and having regard to the text, subject matter, scope and purpose of the Complaints Act, as well as to secondary materials as permitted by s 15AB of the Acts Interpretation Act 1901 (Cth), I not sure that I would have construed the nature of that jurisdiction to be as narrow as described in the following passage from Cameron v Board of Trustees (at [43]:

[43] A decision under review pursuant to s37 of the Act may, as Allsop J pointed out in Crocker at [29], be 'one which so involves elements of fact, degree, opinion or value judgment that different minds can legitimately differ in reaching a decision'. That is why the Tribunal's task is not to ask itself whether such a decision was the correct or preferable decision. The correct approach was pithily summarized by Allsop J in Crocker (at [31]) as follows:

'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.'

75. Section 37 of the Complaints Act took its present form following amendments made to that Act by the Superannuation Industry (Supervision) Legislation Amendment Act 1995 (Cth) (1995 Amendment Act). A succinct statement of the occasion for the replacement of the former s 37 of the Complaints Act and of the other presently relevant amendments made by the 1995 Amendment Act is offered in the Bills Digest prepared by the Parliamentary Research Service within the Department of the Parliamentary Library and circulated in conjunction with the Bill which became the 1995 Amendment Act:

A contentious issue in relation to the SCT is the hearing of medical evidence. This was originally excluded from the SCTs jurisdiction by the regulations, which allowed the SCT to hear disability complaints based on procedural fairness, but not on the basis of medical evidence to determine if the person is disabled. In August 1994 the Senate resolved to disallow the regulation prohibiting the hearing of medical evidence and in October 1994 the government announced that it favoured the inclusion of such evidence in the SCTs jurisdiction. The hearing of disability complaints was deferred to 1 May 1995 by a regulation made on 1 November 1994 to allow time for consultation and the date for this change was subsequently put back to 1 November 1995. The main concern about this increased jurisdiction was the possibility that a trustee would be ordered to pay a disability benefit and the claim on the fund's insurer would be rejected. In such a case, the trustee would have to fund the benefit from other sources or take legal action against the insurer.

[Within the passage quoted, “SCT” refers to the Tribunal]

76. The 1995 Amendment Act allowed for the joinder of an insurer in a review proceeding in the Tribunal and for that insurer, as well as a trustee, to be bound by the Tribunal’s decision on the review. It also allowed for the review of disability benefit decisions.
77. Reference to the history of regulations in respect of the reception and consideration of medical evidence by the Tribunal is also to be found in the relevant Second Reading Speech of Mr Elliott, Parliamentary Secretary to the Treasurer, in respect of the Bill which became the 1995 Amendment Act (Australia, House of Representatives, Debates (1995) Vol HR 205, p 3397).
78. One intention of the 1995 Amendment Act was that, in reviewing a decision of a trustee and any related decision of an insurer, the Tribunal might receive further medical evidence. In none of the authorities which have subsequently examined the nature of the jurisdiction conferred by s 37 of the Complaints Act is it suggested that the Tribunal may not do this. Regard to s 37(1) and s 36(3) of the Complaints Act confirms that the Tribunal is not limited in its review to the material which was before the trustee or, as the case may be, the insurer.
79. In these circumstances, there is a degree of tension between the basis upon which the Tribunal may permissibly conduct its review and the description of the nature of the Tribunal’s jurisdiction found in Cameron v Board of Trustees. The occasion for that description is Parliament’s statement in s 37(6) of the Complaints Act that the Tribunal must affirm the decision under review if satisfied that the decision, in its operation in relation to the complainant (or other party to the complaint) was “fair and reasonable in the circumstances”. Such a statement was present even in the former s 37. Quite what Parliament intended by this statement is not apparent from secondary materials either in respect of that section as originally enacted or as substituted by the 1995 Amendment Act. What is clear from the 1995 Amendment Act and confirmed by reference to the related Second Reading Speech is that it was envisaged that the Tribunal would not be restricted just to material which was before the trustee or insurer.
80. In these circumstances, the review jurisdiction conferred on the Tribunal by s 37 (as amended) cannot have been intended to be as confined as that exercised by a court when reviewing the decision of a trustee. So far as the examination of evidence is concerned, the nature of that jurisdiction was described by McGarvie J in Karger v Paul [1984] VR 161 at 164 in the following way:

[In] this case it is open to the Court to examine the evidence to decide whether there has been a failure by the trustees to exercise the discretion in good faith, upon real and genuine consideration and in accordance with the purposes for which the discretion was conferred. As part of the process of, and solely for the purpose of, ascertaining whether there has been any such failure, it is relevant to look at evidence of the inquiries which were made by the trustees, the information they had and the reasons for, and manner of, their exercising their discretion. However, it is not open to the court to look at those things for the independent purpose of impugning the exercise of discretion on the grounds that their inquiries, information or reasons or the manner of exercise of the discretion, fell short of what was appropriate and sufficient. Nor is it open to the Court to look at the factual situation established by the evidence, for the independent purpose of impugning the exercise of the discretion on the grounds that the trustees were wrong in their appreciation of the facts or made an unwise or unjustified exercise of discretion in the circumstances. The issues which are examinable by the Court are limited to whether there has been a failure to exercise the discretion in good faith, upon real and genuine consideration and in accordance with the purposes for which the discretion was conferred. In short, the court examines whether the discretion was exercised, but does not examine how it was exercised

[Emphasis added]

Later, in Wilkinson v Clerical Administrative & Related Employees Superannuation Pty Ltd (1998) [1998] FCA 51; 79 FCR 469 (Wilkinson) at 480, Heerey J quoted with apparent approval a statement made by the primary judge in that case, Northrop J, with respect to the basis upon which an exercise of a trustee's power might be challenged in a court:

Where a trustee exercises a discretion, it may be impugned on a number of different bases such as that it was exercised in bad faith, arbitrarily, capriciously (Re Pauling's Settlement Trusts [1964] Ch 303 at 333), wantonly, irresponsibly (Lutheran Church of Australia South Australian District Inc v Farmers' Co-Operative Executor & Trustees Ltd (1970) [1970] HCA 12; 121 CLR 628 at 639), mischievously or irrelevantly to any sensible expectation of the settler (Re Manisty's Settlement [1974] Ch 17), or without giving a real or genuine consideration to the exercise of the discretion (Karger v Paul [1984] VR 161, which includes a survey of the authorities). The exercise of a discretion by trustees cannot of course be impugned upon the basis that their decision was unfair or unreasonable (see Dundee General Hospitals Board of Management v Walker [1952] 1 All ER 896) or unwise (Gisborne v Gisborne [1877] 2 AC 300 at p 307). Where a discretion is expressed to be absolute it may be that bad faith needs to be shown (Gisborne v Gisborne at 305). The soundness of the exercise of a discretion can be examined where reasons have been given, but the test is not fairness or reasonableness (see Re Londonderry's Settlement [1965] Ch 918 at 928-9: Karger v Paul at 165-6).

The correctness of this statement in Wilkinson was not doubted in the reference to that case in the joint judgment in Attorney-General (Cth) v Breckler (1999) [1999] HCA 28; 197 CLR 83 at [7] and was expressly approved by Kirby J in his separate judgment in that case (at [58]).

81. One explanation for the express reference to “fair and reasonable” in s 37 of the Complaints Act may be to make it plain that the test for review was wider than that described in the passage quoted, especially having regard to Re Londonderry's Settlement [1965] Ch 918 at 928-9 and Karger v Paul at 165-6. That the Tribunal was able to undertake a review of the exercise of a discretionary power by a trustee in a way in which a court could not was, in my respectful opinion, recognised in the joint judgment in Attorney-General (Cth) v Breckler (1999) [1999] HCA 28; 197 CLR 83 at [24]. That though would not explain why it is that the Tribunal is permitted to receive further evidence and, having so done, to reach its own decision. Further, that Parliament has by s 8(3) of the Complaints Act required that membership of the Tribunal be drawn from those who have knowledge or experience of matters of kinds in respect of which complaints may be made to the Tribunal suggests that the possession of specialist expertise was considered important in the making of that fresh decision. Just to hold that a trustee or insurer might fairly and reasonably have reached a particular decision in its operation to a complainant might be thought not fully to utilise that specialist expertise.
82. In respect of legislatively constituted public sector superannuation funds, judicial review of a trustee’s decision on administrative law error grounds is possible under judicial review legislation: see, eg White v Board of Trustees, State Public Sector Superannuation Scheme [1997] 2 Qd R 659. The trustee’s decision in the present case is one of that kind. Again, though, the ability of the Tribunal to receive further evidence of itself alone provokes the thought that Parliament intended the type of review it would conduct under s 37 to be much wider than review on administrative law error grounds.
83. In earlier cases concerning the present form of s 37 of the Complaints Act, the reference in that section to “fair and reasonable” has been contrasted with the review jurisdiction conferred on the Administrative Appeals Tribunal by s 43 of the AAT Act, which has been described as requiring that tribunal to reach the “correct or preferable” decision. Yet that description is judicial, not legislative, having its origin in the now classic formulation of that tribunal’s jurisdiction by Bowen CJ and Deane J in their joint judgment in Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 at 419. All that s 25(4) and s 43(1) of the AAT Act expressly contemplate is that the Administrative Appeals Tribunal will review a decision where jurisdiction to review is conferred on that tribunal by an Act. That the role of the Administrative Appeals Tribunal in conducting a review is to reach the “correct or preferable” decision is a result of considering the subject matter, scope and purpose of the AAT Act.
84. Apart from the reference in the passage in the joint judgment to which I have already drawn attention, Kirby J in Attorney-General (Cth) v Breckler also found it necessary to pass comment on the reference in s 37 of the Complaints Act to “fairness” and “reasonableness”. His Honour (at [90]) described these criteria as, “so general and controversial that the trustees’ assessment in a particular case might be quite different from that of the Tribunal whose decision alone would resolve the difference” and observed later (at [91]) that the “applicable statutory norms are most imprecise”. These statements, particularly the former, might be thought to reflect an understanding of the role of the Tribunal which is quite different to and wider than that set out in Cameron v Board of Trustees, especially in the passage quoted. In JC Campbell, “Exercise by Superannuation Trustees of Discretionary Powers” (2009) 83 ALJ 159 at 179, his Honour, writing extra-judicially, remarked of s 37 of the Complaints Act that it “resists easy summarising”. I respectfully agree.
85. Such is the pervasiveness of occupational superannuation and associated disability insurance in Australia it is, with respect, unfortunate that the statement of Parliamentary intent as to the nature of the external merits review granted by the Complaints Act is so obscure and imprecise. Another way of construing the references in s 37 of the Complaints Act to “fairness” and “reasonableness”, in light of the Tribunal’s ability to receive further evidence and the specialist composition of the Tribunal, may perhaps have been that these are used at a very general level of abstraction so as to describe a form of merits review that does indeed correspond with that of the Administrative Appeals Tribunal. As its jurisdiction is explained in Cameron v Board of Trustees, the Tribunal, with great respect, exercises a very peculiar form of external merits review indeed. Such though is the obscurity and imprecision of the language of the section that it may well be that the only way in which any difference in understanding by Parliament as to its intended meaning when compared to that enunciated in Cameron v Board of Trustees is to be resolved is by legislative amendment.
86. The point of these remarks is that the learned primary judge faced a difficult task indeed. Quite apart from the inherent obscurity and imprecision in the Parliamentary formulation of the nature of the jurisdiction from which the appeal lay, the formal notice of appeal displayed an absence of understanding as to how the court’s appellate jurisdiction was invoked. His Honour, with respect, surely tempered justice with mercy by permitting the case to proceed on the issues as formulated in the course of the hearing. Further, if, as his Honour was bound to follow and we are not asked to question, the Tribunal’s jurisdiction is as explained in Cameron v Board of Trustees, it was not, in my opinion, completely irrelevant for the Tribunal to understand the reasons of the trustee (or an insurer). Nonetheless, the position which remained was that the Tribunal was reviewing a decision, not the reasons for it. And that would be so a fortiori if the nature of its review jurisdiction were indeed to be assimilated with that of the Administrative Appeals Tribunal.
87. I agree with the orders proposed in the joint judgment, including that in respect of costs.
    

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated: 1 February 2011