FEDERAL COURT OF AUSTRALIA

Howard v Batistich [2019] FCA 525

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicants pay the first respondent’s costs, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This “appeal” is from a determination of the Superannuation Complaints Tribunal given on 22 November 2018 affirming the decision of the trustee, the NSW Fire Brigades Superannuation Pty Ltd. That decision was that the “Claimed Spouse is a spouse eligible to receive a lifetime pension as a result of the death of the Deceased Member.”

2    The so-called appeal is on and limited to a question or questions of law: see s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Complaints Act). This Court’s jurisdiction is not concerned with the merits of the Tribunal’s decision and is in the nature of judicial review.

3    The applicants are the parents of Daniel Grahame Howard. Daniel Howard died on 17 August 2014 as a result of injuries suffered by him in the course of his employment with Fire and Rescue NSW. The Tribunal referred to Daniel Howard as the Deceased Member.

4    The first respondent was held by the Tribunal to have been the de facto partner of the deceased at the date of his death. The Tribunal referred to her as the Claimed Spouse.

5    The second respondent is the trustee, which has not participated in this appeal.

The proceedings before the Tribunal

6    The registration of complaint form read as follows, as written:

Details of your complaint

Outline what has happened and state what particular decisions or actions of the superannuation provider you are complaining about.

Daniel Grahame Howard (“Daniel”) died whilst fighting a fire at Cobar NSW on 17 August 2014. NSW Fire Brigades Superannuation Pty Ltd determined that Daniel died whilst being “on duty”. Therefore if Daniel had a spouse as defined under the Superannuation Act 1916 at the time of his death a fortnightly pension is payable to the spouse (including a de facto). If there is no spouse then the a lump sum is payable to the Estate in the amount of $350,000. Genevieve Majella Howard is the Administrator of the Estate of the Late Daniel Grahame Howard and the lump sum would be paid to his parents Genevieve Majella Howard and Jeffrey Grahame Howard.

The trustees for the NSW Fire Brigades Superannuation under letter dated 8 August 2016 determined that a fortnightly pension of $1,180 be payable to Jenna Batistich as the de facto partner of the deceased fire fighter.

We are complaining about this decision, that is the finding by the Trustees of the NSW Fire Brigades Superannuation, that Jenna Batistich meets the threshold required to be a de facto partner of the deceased fire fighter.

We do not believe that Jenna Batistich meets the required definition of de facto partner under the Superannuation Act 1916 and, relevantly, the Interpretation Act 21C.

State why you consider the superannuation provider's decisions or actions are unfair or unreasonable

We do not believe that Jenna Batistich meets the required definition of de facto partner under the Superannuation Act 1916 and, relevantly, the Interpretation Act 21C. Because Jenna Batistich does not meet, when the points of consideration are considered as a whole, the required definition of de facto under the Superannuation Act 1916 and, relevantly, the Interpretation Act 21C.

The Tribunal’s decision

7    The reasons of the Tribunal were, in summary, as follows.

8    It summarised the complaint and the background to the complaint. The Tribunal noted that the present applicants made a complaint that the decision of the trustee was unfair and unreasonable for the reasons summarised in the Tribunal’s determination, and that the present applicants denied that the present first respondent was in a de facto relationship with the deceased as at the date of his death.

9    The Tribunal summarised the relevant provisions of the Trust Deed relevant to the complaint, which the Tribunal found made death benefits payable by reference to the Crown Employees (Fire and Rescue, NSW Firefighting Staff Death and Disability) Award 2012, and of the Award. Clause 3 of the Award defined “spouse” to mean a person who falls within the definition of “spouse” or “de facto partner” in the Superannuation Act 1916 (NSW).

10    The Tribunal referred to the definition of spouse contained in that Act, as follows:

“Spouse” of a contributor or pensioner who has died means the surviving spouse (including widow or widower) of the contributor or pensioner.

11    Section 21C of the Interpretation Act 1987 (NSW) relevantly provided:

21C    References to de facto partners and de facto relationships

(1)     Meaning of “de facto partner”

For the purposes of any Act or instrument, a person is the de facto partner of another person (whether of the same sex or a different sex) if:

(a)    the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010, or

   (b)    the person is in a de facto relationship with the other person.

(2)    Meaning of “de facto relationship”

For the purposes of any Act or instrument, a person is in a de facto relationship with another person if:

(a)    they have a relationship as a couple living together, and

(b)    they are not married to one another or related by family.

A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.

(3)     Determination of “relationship as a couple”

In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:

   (a)    the duration of the relationship,

   (b)    the nature and extent of their common residence,

   (c)    whether a sexual relationship exists,

(d)    the degree of financial dependence or interdependence, and any arrangements for financial support, between them,

   (e)    the ownership, use and acquisition of property,

   (f)    the degree of mutual commitment to a shared life,

   (g)    the care and support of children,

   (h)    the performance of household duties,

   (i)    the reputation and public aspects of the relationship.

No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.

…

12    The Tribunal then summarised what it described as the main points made by the present applicants in their extensive submissions. Those points concerned the matters to be considered when deciding if a de facto relationship existed. On analysis, the Tribunal said, the present applicants’ submissions were that the first respondent was not a de facto of the deceased because:

–    The relationship was of a short duration in relation to considering whether a de facto relationship exists or not. Given the very short period of the relationship the finding in respect of this consideration would be that a de facto relationship did not exist.

–    There is a lot of evidence to cause doubt over the Claimed Spouse's claim that she had lived with the Deceased Member since June 2014, including text messages saying good night to each other.

–    It is mutually agreed that there was no degree of financial dependence or interdependence or any arrangement for financial support between them to establish a required level to create a finding of the existence of a de facto relationship. The only evidence was that of each party buying incidental groceries and common living supplies from time to time.

–    At the time of his death, the Deceased Member did not appear to have made any changes to his lifestyle to accommodate the Claimed Spouse and he had not made any public commitment to their future together. This included not declaring the extent of the relationship with the Claimed Spouse to his family and close friends.

–    The Deceased Member occasionally looked after the Claimed Spouse's son while she attended work and social events.

–    Text messages indicate that the Deceased Member and the Claimed Spouse shared home cooking or take away meals when they visited or stayed at each other's houses.

–    Right up to his death, the Deceased Member continued to pursue his usual social activities and the Claimed Spouse only attended two family events and was not included on wedding invitations given to the Deceased Member during the period of the relationship.

13    The Tribunal next summarised the main points made by the trustee centring on the definition of de facto relationship.

14    The Tribunal then summarised what it described as the main points made by the first respondent, as follows:

•    On the balance of evidence, the relationship satisfies the definition of a de facto relationship, including text messages in March 2014 making reference to the couple spending the rest of their life together, which assumes that the relationship began a significant time prior to then.

•    The assertion that the Deceased Member and the Claimed Spouse were living together and spending most nights together in a happy and healthy relationship is supported by text messages between the couple including messages stating that they missed each other on nights that they were apart and texts from the Deceased Member noting that he had not spent nights without the Claimed Spouse in a long time. On an ordinary evening, the couple would have early dinner together, watch a movie and then retire to the bed they shared.

•    The Deceased Member and the Claimed Spouse were interdependent and would provide each other with ongoing support and assistance. They also had an unspoken arrangement regarding the finances where the Claimed Spouse would contribute to the household by purchasing their groceries in a large shop once per week. They shared day to day expenses and the Deceased Member would also make contributions to the Claimed Spouse's son's expenses, although they paid separately for the properties that they owned.

•    The Deceased Member and the Claimed Spouse were considering buying a new lounge together and had talked about purchasing a property together.

•    Text messages between the Deceased Member and the Claimed Spouse demonstrate that both parties were committed to sharing their lives together and were committed to each other. They had spoken about having a child, getting married and buying a house. The Deceased Member, by moving the Claimed Spouse and her son into his home and mentoring the son as a step­father, also demonstrated a commitment to a shared life.

•    Newspaper articles noting the Claimed Spouse and her son as being left behind are the best evidence of a public demonstration of the relationship.

•    The reasoning provided behind each decision maker in this complaint has been reasonable and conducted with good faith and due regard.

15    The Tribunal then turned to its consideration of these matters. Because of the nature of the grounds of review I reproduce that consideration in its entirety.

TRIBUNAL’S DELIBERATIONS AND FINDINGS

24.    Under s37(6) of the Complaints Act the Tribunal must determine whether the Trustee’s determination that the Claimed Spouse is a spouse eligible to receive a pension was fair and reasonable in its operation in relation to the Complainants and the Claimed Spouse in the circumstances.

25.    The issue is not what decision the Tribunal would have made on the evidence before the Trustee but whether the decision was fair and reasonable.

26.    In reaching its determination, the Tribunal has taken into account all the material provided by the Parties, the provisions of the Trust Deed and the relevant law. The Tribunal is satisfied that the material it has relied on has been provided to all Parties.

27.    The Tribunal considered the Trust Deed and the law relevant to this complaint. It noted that the death benefit in question is only payable as a pension to a spouse of the Deceased Member or, in the absence of a spouse, to the estate of the Deceased Member as a lump sum.

28.    Therefore the question for the Tribunal is whether the Claimed Spouse qualifies as a ‘spouse’ and is entitled to the pension.

Inconsistencies in evidence provided

29.    The Tribunal notes that there is inconsistency in the evidence provided by both the Complainants and the Claimed Spouse - this includes statutory declarations and submissions dealing with matters such as the duration, commitment to and public acknowledgement of the relationship between the Deceased Member and the Claimed Spouse. However, the Tribunal considers the best evidence available in this case to be the text messages between the Deceased Member and the Claimed Spouse as these provide contemporaneous records of the day to day interactions and inner workings of the relationship.

Was the Claimed Spouse in a de facto relationship with the Deceased Member?

30.    At the outset the Tribunal notes that section 21C of the Interpretation Act states that ‘No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple’ and that therefore this serves as a guide only, with the particular facts of each case to be taken into consideration in making such a determination.

31.    In respect of the relationship between the Deceased Member and the Claimed Spouse, the Tribunal notes:

(a)    While the circumstances and duration are subject to some dispute, it does not appear in contention that the Deceased Member and the Claimed Spouse lived together as at the time of the Deceased Member's death.

(b)    The text messages clearly establish that the Deceased Member and the Claimed Spouse were in a loving, committed relationship and shared responsibility for the day to day household responsibilities, which included shopping, cooking and care of the Claimed Spouses son.

(c)    It is not disputed that the couple did both contribute to the day to day expenses of running the household, however also maintained their own financial responsibilities in respect of the properties that they each owned.

(d)    There appears from the text messages and balance of the evidence an intention between the parties for the relationship to continue in the manner of a committed future together had it not been for the very tragic death of the Deceased Member.

(e)    The newspaper articles reporting the Deceased Member's death, which included pictures of the Deceased Member and the Claimed Spouse, provide evidence of the public acknowledgement of the relationship.

32.    The Trustee having determined that the Claimed Spouse was in a de facto relationship with the Deceased Member, did not need to consider the extent to which the Deceased Member financially contributed to the Complainants, as the provisions in the Award are very clear in determining that a pension is payable to a spouse and a lump sum payment is only payable in circumstances where there is no spouse.

33.    On this basis, the Tribunal is satisfied that the Trustee’s decision, in its operation in relation to the Complainants and the Claimed Spouse, was fair and reasonable in the circumstances.

Conclusion

34.    Under s37(6) of the Complaints Act the Tribunal must affirm the decision under review if it is satisfied that the decision, in its operation in relation to the Complainants and the Claimed Spouse, was fair and reasonable in the circumstances. For the reasons stated above the Tribunal is so satisfied.

35.    The Tribunal affirms the decision of the Trustee.

The notice of appeal to this Court

16    By their amended notice of appeal, the applicants state the following as questions of law:

 1.    The Tribunal erred in law by wrongly identifying the question it had to answer.

2.    The Tribunal erred in law by failing to give the term 'de facto partner' its proper statutory construction.

 3.    The Tribunal erred by failing to give adequate reasons.

17    The applicants seek the following orders, as written:

1.    That the Review Determination and Reasons of the Superannuation Complaints Tribunal given on 22 November 2018 at Melbourne, Victoria 3001 under Determination Number D18-19\078 and File Numbers 16-1415 & 16-1416 be set aside.

 2.    That the Second Respondent is ordered to pay the deceased’s Estate $350,000.

 3.    Costs

4.    In the alternative the matter be remitted back to the Superannuation Complaints Tribunal (or the Australian Financial Complaints Authority) to be decided in accordance with law.

 5.    Costs.

18    The grounds relied on by the applicants are as follows, as written:

1.    The tribunal erred in law by wrongly identifying the question it had to answer as being “whether the Claimed Spouse qualifies as a ‘spouse’ and is entitled to a pension” at [28]. The failure of the tribunal to identify the correct question constituted jurisdiction error.

The question that the tribunal should have considered was whether or not the trustee’s decision that the respondent was an eligible spouse was a decision that was fair and reasonable to the complainant for the purposes of section 37 (6) of the Act.

2.     The tribunal failed to give adequate reasons as it pertained to conflicts of evidence that were “critical” to the appellant’s case.

3.    The tribunal erred in law by failing to, to properly construct the legislative definition of ‘de facto partner’ as prescribed by section 21C of the Interpretation Ac. In doing so the tribunal misconstrued the terms of the trust deed.

The submissions of the parties

19    The applicants submitted as follows.

20    As to ground 1, it was clear from the authorities that the only question that the Tribunal was concerned with was whether or not the decision was fair and reasonable as it related to the complainant having regard to all of the circumstances.

21    In the present case it was clear that the question the Tribunal instructed itself to answer was not the correct question. The Tribunal identified the correct question at [24]. However the question as framed at [24] was not the question that informed the Tribunal’s path of reasoning. It was the question as framed at [28] that informed the Tribunal’s path of reasoning.

22    The applicants submitted that the Tribunal limited the scope of the issue it had to determine to the issue it identified at [28].

23    That error in asking itself the right question caused the Tribunal to proceed to determine the matter on the basis that as there was some evidence to support the finding that the claimed spouse qualified as a spouse, the decision was therefore fair and reasonable. That reasoning did not reflect the task that the statute required the Tribunal to undertake.

24    The applicants submitted that the vice in the way that the Tribunal framed the question that it had to answer could be seen in the reasoning at [31]. The Tribunal had simply latched onto some material that supported the notion that the first respondent met the definition of spouse and gave it primacy without explaining why that view of the evidence should be accepted over the contentions of the applicants. Had the question been framed correctly, the applicants submitted, it would have, logically, forced the Tribunal to consider whether the decision was fair and reasonable in its operation to the applicants. To reach such a conclusion the Tribunal would have had to have regard to the extensive contradictory evidence submitted by the applicants and provide some reasoning as to why it was not to be preferred.

25    The applicants submitted that the error in the present proceedings was analogous to the error in Haematite Pty Ltd v Ristevski [2002] FCA 408; 189 ALR 685. The applicants also referred to Mercer Superannuation (Australia) Ltd v Billinghurst [2016] FCA 1274; 161 ALD 338 and National Mutual Life Association of Australia Ltd v Jevtovic [1997] FCA 359; 217 ALR 316.

26    As to ground 2, the applicants submitted the decision did not resolve significant parts of the applicants’ case that tended to support the view that a de facto relationship did not exist. The Tribunal gave no reason why one view of the material put before it was to be accepted over the other. The applicants provided to the Tribunal material that tended to contradict every matter that the Tribunal noted at [31]. Yet no attempt was made by the Tribunal to explain why it should be discounted in favour of a view that a de facto relationship existed. The conclusion at [31](a) was never conceded by the applicants who pointed to significant evidence that would tend to suggest the opposite was the case.

27    The applicants referred in particular to the material provided by Belinda Jones, the deceased’s fortnightly cleaner up until his death, and by Peter Shanahan, who was the deceased’s gardener up until his death.

28    The applicants also submitted that the conclusion at [31](b) was contested by the applicants, who pointed to the fact that the text messages did not clearly establish that the deceased and the first respondent were in a loving committed relationship such that it would ground a finding that the first respondent was the deceased’s de facto spouse.

29    The applicants submitted that the conclusion at [31](c) was curious because it seemed to accept the existence of one “household” as a fait accompli, without any explanation as to how the Tribunal reached that conclusion. The applicants assumed this was in order to show financial interdependence. The applicants had pointed the Tribunal to the fact that the first respondent had conceded, “there was no intermingling of funds”.

30    The applicants submitted that the conclusion at [31](d) ran contrary to much of the evidence that the applicants put before the Tribunal.

31    The applicants submitted that the final conclusion at [31](e) was perhaps the most difficult to fathom: the newspaper articles did not support a view that there was the requisite degree of public knowledge.

32    The applicants submitted the Tribunal did not distinguish any of the above evidence put forward by the applicants or explain why it was not to be preferred as evidence of a lack of a de facto relationship. It was not clear why the Tribunal gave primacy to one view of the material before it and not the other. A proper exercise of the Tribunal’s power to decide whether the decision of the trustee was fair and reasonable in its operation to the applicants would necessarily have involved some consideration of why aspects of their case central to their assertion that the first respondent was not in a de facto relationship with the deceased were not to be accepted or discounted in favour of other evidence. The Tribunal had given no path of reasoning explaining how it resolved the factual dispute.

33    The applicants referred, amongst other cases, to Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2].

34    As to ground 3, the applicants submitted that when the Interpretation Act stated that no particular finding was required in relation to any of those matters, it did not mean that they can be ignored as factors militating against the existence of a de facto relationship if they were not present. Otherwise any relationship would be considered a de facto relationship. It was clear from the authorities that one criterion was not to be considered more significant than any other, see Spencer v Burton [2015] QCA 104; [2016] 2 Qd R 215 at [123].

35    The short point was, the applicants submitted, that the surrounding circumstances of the relationship, with reference to the matters in s 21C(3), reading the section as a whole, did not support the view that a de facto relationship existed. The first respondent did not address in her submissions on the matters referred to at s 21C(3)(e), (g) and (h). There was no financial dependence or interdependence: see s 21C(3)(d). The relationship was short: s 21C(3)(a). There was no common residence; they each owned their own property: s 21C(3)(b). In terms of s 21C(3)(i) the first respondent could not provide any documentation to make out this aspect of the section aside from newspaper articles that, the applicants contended, were factually wrong. The applicants submitted that the Tribunal did not make a value judgment as referred to in National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 at [33]. The applicants referred to Jonah v White [2011] FamCA 221; 258 FLR 236 at [60]. The facts and circumstances of the case did not establish a de facto relationship existed such as to satisfy the requirements of the section properly constructed.

36    The first respondent submitted as follows.

37    As to ground 1, the statutory question was properly put in [24] of the Tribunal’s reasons. The reasons, at [25]-[27], set out the path which the Tribunal took to reach the position set out in [24] (and reached in [34]). The reasons at [34] appropriately reflected the precise legislative language of s 347(6) of the Complaints Act.

38    The first respondent submitted that the applicants’ submissions proceeded to cherry pick the Tribunal’s reasons. The Tribunal clearly asked itself the correct question (as shown in [24] and [34]). The assertion that the question in [28] was the actual question to which the Tribunal directed itself, and that somehow that question resulted in appellable error, should not be accepted.

39    The focus of the Tribunal throughout its reasons was, the first respondent submitted, to determine whether the trustee’s determination that the first respondent was the de facto spouse of the deceased was fair and reasonable as required by s 37(6). In discharging its statutory burden, the Tribunal needed to assess whether there were grounds upon which the Tribunal could, fairly and reasonably, determine that the first respondent was indeed a “spouse”. The reference in [28] of the Tribunal’s reasons to the word “spouse” (in that paragraph, in quotation marks) was merely a reference to that word as it appears in the definition of “Spouse” in cl 3 of the Award.

40    The process undertaken by the Tribunal, not just in [31] of the reasons (that complained of as “simply latching on” to evidence supporting the first respondent’s case), involved the careful review of the submissions by each party, and the weighing of contentions of each side, in [21] and [23].

41    While noting that there were inconsistencies, the first respondent submitted the Tribunal indicated the evidence by which it was swayed (in particular it noted the text messages) and found that the decision of the trustee was fair and reasonable in the circumstances. No error was demonstrated in this approach.

42    The first respondent submitted the Tribunal clearly asked itself the correct question. A paraphrase in [28] of the reasons did not detract from that proposition. There was nothing to indicate that [28] of the reasons led the Tribunal into error.

43    The first respondent submitted that ground 2, while formulated as a question of law, did not relate to whether adequate reasons were given; it was, in substance, an argument as to whether the Tribunal erred in fact by not accepting the evidence of the applicants.

44    The first respondent submitted that there was no error in the way in which the reasons were given. The requirement for written reasons in s 40 of the Complaints Act must be balanced against the Tribunal’s objectives in s 11, which required that the Tribunal must provide mechanisms for review of decisions complained of which are “fair, economical, informal, and quick”.

45    While the hearing before the Tribunal was a hearing de novo, the Tribunal was required to “stand… in the shoes of the trustee and determine…, based on all the information before it, whether or not a decision taken by the trustee was fair or reasonable in the circumstances.” While the Tribunal may make its own findings, it should do so only in the exercise of the statutory power; that is, to determine whether the decision of the trustee was fair and reasonable.

46    The first respondent submitted that when determining whether adequate reasons had been given, this Court must have in the forefront of its mind the Tribunal’s task, which was not to make a minute determination of each factual controversy, but to determine, in the context of the evidence brought to the Tribunal, whether the decision of the trustee was, in those circumstances, fair and reasonable. The first respondent submitted that in its review of the positions of the parties, the acknowledgement of inconsistencies, and its identification of the more important factors it had regard to, the Tribunal discharged its duty of providing written reasons in an economical and informal context.

47    The first respondent submitted the subtext of this ground, and of ground 3, was that the Tribunal decision was not fair or reasonable to the applicants in that it did not uphold their arguments. This was not the approach to the Tribunal’s work, nor an approach to this appeal, which should be accepted.

48    As to ground 3, the first respondent submitted that the ground raised questions of whether the Tribunal properly interpreted the facts before it rather than erred in its interpretation of a statutory provision.

49    The complaint seemed to be that the Tribunal did not have what the applicants considered was the proper regard to all the factors listed in s 21C(3) of the Interpretation Act. The subsection made it clear that the listed circumstances were only to be taken into account insofar as they were relevant to the facts of a particular case. Section 21C required consideration of all the circumstances of the case, including the factors listed, and no more.

50    The first respondent referred to Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330 at [29], where Allsop J noted that a decision under the Complaints Act is:

… one which so involves elements of fact, degree, opinion or value judgment that different minds can legitimately differ in reaching a decision.

51    In their written reply, the applicants submitted as to ground 1 that simply using the language of the legislation to state a conclusion did not show that the tribunal set about its task properly within the terms of the relevant section. In National Mutual Life Association of Australia Ltd v Jevtovic the Court came to a similar finding. The focus of the Tribunal was not “whether the Trustee’s determination that the respondent was the de facto spouse of the deceased was fair and reasonable as required by s37(6)” but rather, erroneously, whether the respondent met the definition of spouse as prescribed in the trust deed.

52    As to ground 2, the applicants submitted the core of this ground was the contention that the Tribunal’s decision did not resolve significant parts of the applicants’ case that tended to support the view that a de facto relationship did not exist, and no reason was given as to why one view of the material should be accepted over the other. A complaint that a decision maker had failed to give an explanation as to why arguments critical to a litigant’s case were not to be accepted was a complaint of an error of law. In Qushair v Raffoul [2009] NSWCA 329 at [58] Sackville AJA summarised the principles of law as they related to a failure to give reasons where such an obligation was imposed by the operation of statute. The error that the ground complained of was that the conflict of facts had not been properly resolved (or resolved at all) in the reasons. As such the reasons were inadequate and not in compliance with s 40 of the Complaints Act. The Tribunal did not discharge its duty to give reasons by simply acknowledging inconsistencies. It was the resolution of those inconsistencies that lay at the heart of any decision maker’s task.

53    As to ground 3, the applicants submitted that the substance of this ground was that the section was not satisfied by simply identifying some facts that come within the matters outlined at s 21C(3) without any reference to the balance of the section. The applicants accepted that the Interpretation Act did not prescribe a precise test for the existence of a de facto relationship. However that proposition could not be used to argue that the matters referred to in the section were of no relevance. In their oral submissions, the applicants contended that each of the paragraphs of s 21C(3) was a mandatory relevant consideration.

Consideration

Ground 1

54    The Tribunal’s task was, of course, to determine whether the decision of the trustee was fair and reasonable in the circumstances. The matter is summarised by Mansfield J in Lykogiannis v Retail Employees Superannuation Pty Ltd [2000] FCA 327; 97 FCR 361 at [48]:

… Upon hearing a complaint, the Tribunal must make its own decision. In the course of doing so, it must make findings of fact relevant to its deliberations. The hearing by the Tribunal is a hearing de novo…. 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.

55    Whether the decision of the trustee was fair and reasonable in the circumstances is what the Tribunal identified at [9], [24], [33] and [34]. The Tribunal also stated, at [25] that the issue was not what decision the Tribunal would have made on the evidence before the trustee but whether the decision was fair and reasonable. Within that framework the Tribunal analysed for itself the major issue of difference between the parties before it, that is, whether the Claimed Spouse, the present first respondent, qualified as a “spouse” of the deceased.

56    The Tribunal’s reasons are to be read in light of the submissions made to it, which took the approach that if the Tribunal came to the view that the Claimed Spouse, the present first respondent, did not qualify as a “spouse” because she was not a de facto partner of the deceased then the decision of the trustee would not have been fair and reasonable, and vice versa. On any view, the issue of whether or not the Claimed Spouse was the de facto partner of the deceased was relevant to the unfairness and unreasonableness of the trustee’s decision: compare HEST Australia Ltd v Sykley [2005] FCA 1381; 147 FCR 248 at [40].

57    The Tribunal did not ask itself what was the correct and preferable decision: compare National Mutual Life Association of Australia Ltd v Jevtovic at 322. As Moshinsky J said in Mercer at [72], under the Complaints Act, the Tribunal is not to make the same kind of determination as the Administrative Appeals Tribunal. The Tribunal is not to determine whether the trustee made the correct or preferable decision. Rather, the Tribunal is to determine whether or not a decision taken by the trustee was fair or reasonable in the circumstances.

58    Unlike Haematite at [19], the Tribunal did state the issue for determination in terms of determining whether the trustee’s decision was fair and reasonable.

59    In reading the reasons of the Tribunal it is important to bear in mind the approach required in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259. The reasons must be construed in a practical and common-sense manner and not with an eye keenly attuned to the perception of error. In that case, as recorded at 271, the relevant decision-maker asked itself the right question at the beginning and at the end of its reasons and made an intermediate reference which might in another context have shown that it misunderstood its task. The High Court held that that reference did not have that effect. The same analysis applies here. The question is one of substance in each case.

60    I do not accept the applicants’ submission that the Tribunal determined the matter on the basis that as there was some evidence to support the trustee’s decision, then the trustee’s decision was fair and reasonable. The reasons given by the Tribunal do not support that contention. Neither do I accept the applicant’s submission that the Tribunal did not have regard to the material submitted to it by the applicants. The Tribunal’s reasons at [22] suffice to displace that contention.

61    I am not persuaded that the Tribunal misunderstood its task. Ground 1 is not made out.

Ground 2

62    In relation to the adequacy of the reasons of the Tribunal, the starting point is s 40 of the Superannuation (Resolution of Complaints) Act and not the standards required by appeal courts of the reasons of lower courts. I therefore do not regard as relevant the decisions relied on by the present applicants such as Qushair v Raffoul and Mitchell v Cullingral Pty Ltd concerning the duty upon judicial officers as to the giving of reasons.

63    In Cameron v Board of Trustees of the State Public Sector Superannuation Scheme [2003] FCAFC 214; 130 FCR 122 at [45] the Full Court said as follows:

… Section 40 of the [Complaints Act] obliges the Tribunal to give reasons for its determination. Section 25D of the Acts Interpretation Act 1901 (Cth) spells out the contents of such a statement of reasons. It may be doubted that a simple contravention of s 40 would justify setting aside the determination of the Tribunal. The object of a provision such as s 40 is explained in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In the present case the appellant has been unable to point to any failure by the Tribunal to make a finding of fact which reveals an error of law in its determination. The appellant merely restates his earlier submissions in a different form.

See also Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; 179 FCR 554 at [55] on whether any failure to comply with an analogue of s 40 vitiates the decision or reasons of the relevant Tribunal such that either of the decisions or reasons should be set aside.

64    Under s 25D of the Acts Interpretation Act 1901 (Cth), the reasons required by s 40 must include findings on material questions of fact and refer to the evidence or other material on which those findings are based: see Edwards v Postsuper Pty Ltd [2007] FCAFC 83 at [20].

65    Each set of reasons must of course be considered in its own terms. It is the actual reasons of the Tribunal, rather than reasons judged normatively, which are required to be given: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [68]-[69] per McHugh, Gummow and Hayne JJ, with reference to s 430 of the Migration Act 1958 (Cth).

66    Further, the adequacy of reasons can only be assessed when the matter for decision and the matter in issue have been identified, and in light of the statutory task of the particular tribunal.

67    In the present case, as in Edwards, the Tribunal’s reasons are not fulsome. However, again as in that case, the Tribunal stated the contentions of the parties and made findings on the basis of those contentions. The material findings of fact so far as the Tribunal was concerned were its findings concerning whether the first respondent and the deceased had a relationship as a couple living together. It made findings relevant to that issue at that level of generality. At [29], the Tribunal preferred what was said in the text messages to the other material before it. The findings it made, as summarised at [69] below, show that the Tribunal addressed the matters in s 21C of the Interpretation Act going to the issue of “relationship as a couple” and by necessary implication rejected the present applicants’ contentions, including factual contentions, to the contrary. The contentions included what the applicants said the cleaner said and what the applicants said the gardener said, and the applicants’ submission as to the first respondent’s status with Centrelink. That the applicants criticised the accuracy of the media articles and submitted to the Tribunal that they were wrong is not of present relevance on what is in effect an application for judicial review. Plainly the Tribunal made a factual finding that the newspaper articles provided evidence of the public acknowledgement of the relationship and in doing so rejected the applicants’ contention to the contrary, including that the articles, or some of them, were wrong. I also reject the applicants’ submission that the use by the Tribunal of the word “notes” at [31] of its reasons meant that the Tribunal had not made findings.

68    The Tribunal did not fail to comply with s 40. It set out its findings on material questions of fact and referred to the material on which those findings were based, being the text messages and the newspaper articles. That a matter is not mentioned in a statement of reasons does not mean that it was not considered, although that may be inferred; see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [31]. The Tribunal’s lengthy reference to and summary of the extensive submissions made by the applicants show that in this case those matters were considered. Ground 2 is not made out.

Ground 3

69    The issue for the purposes of s 21C was whether the first respondent and the deceased had a relationship as a couple living together. If they did, then they were in a de facto relationship with each other. The statutory provision required that all the circumstances of the relationship were to be taken into account. In my opinion, contrary to the submission on behalf of the applicants, each of the matters in s 21C(3) was not a mandatory relevant consideration: see the opening and closing words of s 21C(3). The Tribunal, at [31], found that the first respondent and the deceased lived together as at the time of the deceased’s death. It then expressly considered whether they were in a loving, committed relationship; whether they shared responsibility for the day-to-day household responsibilities; whether they shared responsibility for the care of the first respondent’s son; whether they both contributed to the day-to-day expenses of running the household as well as maintaining their own financial responsibilities in respect of the properties that they each owned; whether there was an intention between them for the relationship to continue in the manner of a committed future together; and whether there was evidence of the public acknowledgement of the relationship.

70    In my opinion these considerations show that the Tribunal did not misunderstand its statutory task, particularly, as I have said, in light of its immediately preceding extensive statement of the main points on this issue made by the present applicants, on the one hand, and the present first respondent, on the other hand. I am not persuaded that the Tribunal did not take into account all the circumstances of the relationship.

71    The general issue is discussed in Pearce D, Interpretation Acts in Australia (LexisNexis Butterworths, 2018) particularly at [5.67]-[5.69]. In Sadiq v NSW Trustee and Guardian [2015] NSWSC 716 (appeal dismissed: [2016] NSWCA 62), with reference to s 21C of the Interpretation Act, Hallen J said:

197.    These criteria are no more than reminders, or indicators, of matters that possibly might be relevant in deciding the question whether the parties lived in a de facto relationship: Piras v Egan [2008] NSWCA 59, per Campbell JA, at [146]. The last paragraph of the section makes clear that they are not to be weighed against each other and given individual weightings of importance. Ultimately, the criteria should be used to assist in determining whether the parties were in “a relationship as a couple”. They should not overshadow that central concept.

Hallen J also said, at [204], that the determination of the existence of a de facto relationship was essentially impressionistic, as such a relationship only existed because of the factual circumstances of the parties.

72    I do not find persuasive the applicants’ reliance on Jonah v White [2011] FamCA 221; 258 FLR 236 at [60]. It seems to me that later authority in that Court shows that the statutory question under that legislation, whether the parties were a couple living together on a genuine domestic basis, was to be addressed by considering the facts in the light of the statutory test. See the discussion of later Full Court of the Family Court authority in Weldon v Levitt [2017] FCCA 3072 at [24]-[26], disapproving Jonah v White.

73    It is not to the point that, as claimed by the present applicants, the Tribunal made “mistakes” of fact, as it was within the Tribunal’s jurisdiction simply to make mistakes of fact. Similarly, it is not the jurisdiction of this Court to grant relief on proceedings in the nature of judicial review in respect of the Tribunal simply making mistakes of fact: See Waterford v Commonwealth [1987] HCA 25; 163 CLR 54 at 77.

74    The authority referred to by the applicants, Spencer v Burton, concerned an appeal from a judge of the Supreme Court, not judicial review of the decision of an administrative tribunal. For that reason the Court of Appeal made the statement did at [123], closely examined the fact-finding of the primary judge and also found overemphasis by the primary judge on certain matters and discounting of others which was said to reveal appellable error in that context. That is not the jurisdiction of this Court in proceedings in the nature of judicial review of the Tribunal’s decision.

75    Therefore, I do not accept the applicants’ submission that the Tribunal did not make a value judgment as referred to in Campbell at [33]. I do not accept the applicants’ submission that the Tribunal erred in its application of the closing words of s 21C (3) of the Interpretation Act.

76    Ground 3 is not made out.

Conclusion and orders

77    For these reasons, the application should be dismissed, with costs.

Associate:

Dated:    15 April 2019