FEDERAL COURT OF AUSTRALIA
Sadleir v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCA 930
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Citation: |
Sadleir v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCA 930 |
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Parties: |
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File number: |
SAD 202 of 2009 |
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Judge: |
LANDER J |
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Date of judgment: |
27 August 2010 |
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Catchwords: |
SUPERANNUATION – review of Tribunal’s decision – whether grounds of appeal raised a question of law. Held: No question of law arose on grounds raised in notice of appeal. |
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Legislation: |
Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 37, 40, 46 |
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Cases cited: |
Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 applied Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 discussed Dornan v Riordan (1990) 24 FCR 564 discussed Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 applied National Mutual v Campbell (2000) 99 FCR 562 cited Preston v Secretary, Department of Family and Community Services (2004) 39 AAR 177 discussed Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 cited |
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Date of hearing: |
18 May 2010 |
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Place: |
Adelaide |
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Division: |
GENERAL DIVISION |
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Category: |
Catchwords |
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Number of paragraphs: |
89 |
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Counsel for the First Applicant: |
The First Applicant appeared in person |
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Counsel for the Second Applicant: |
The Second Applicant appeared in person |
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Counsel for the First Respondent: |
The First Respondent was given leave to withdraw and did not appear |
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Counsel for the Second Respondent: |
Mr M Keith |
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Solicitor for the Second Respondent: |
Treloar & Treloar |
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IN THE FEDERAL COURT OF AUSTRALIA |
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SOUTH AUSTRALIA DISTRICT REGISTRY |
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GENERAL DIVISION |
SAD 202 of 2009 |
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ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL |
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BETWEEN: |
CHRISTINE JUNE SADLEIR First Applicant
MICHEAL ROBERT SADLEIR Second Applicant
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AND: |
MOTOR TRADES ASSOCIATION OF AUSTRALIA SUPERANNUATION FUND PTY LTD First Respondent
VANESSA ANNE JACKSON Second Respondent
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JUDGE: |
LANDER J |
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DATE OF ORDER: |
27 AUGUST 2010 |
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WHERE MADE: |
ADELAIDE |
THE COURT ORDERS THAT:
1. The proceeding be listed for further hearing.
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.
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IN THE FEDERAL COURT OF AUSTRALIA |
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SOUTH AUSTRALIA DISTRICT REGISTRY |
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GENERAL DIVISION |
SAD 202 of 2009 |
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ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL |
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BETWEEN: |
CHRISTINE JUNE SADLEIR First Applicant
MICHEAL ROBERT SADLEIR Second Applicant
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AND: |
MOTOR TRADES ASSOCIATION OF AUSTRALIA SUPERANNUATION FUND PTY LTD First Respondent
VANESSA ANNE JACKSON Second Respondent
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JUDGE: |
LANDER J |
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DATE: |
27 AUGUST 2010 |
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PLACE: |
ADELAIDE |
REASONS FOR JUDGMENT
1 This is an appeal from the Superannuation Complaints Tribunal (the Tribunal) which on 20 November 2009 determined that the decision of the trustee, Motor Trades Association of Australia Superannuation Fund Pty Ltd (the trustee) made on 19 November 2007 and affirmed by the trustee on 14 January 2008 was fair and reasonable in the circumstances. Although this is styled as an appeal from the Tribunal it is not in fact an appeal but an application in the original jurisdiction of the Court for a review of the Tribunal’s decision.
2 The applicant is the mother of Robert Ralph Sadleir who died on 12 August 2006 (the deceased). The deceased was a member of three superannuation funds, namely Motor Trades Association of Australia (MTAA) Superannuation Fund, Statewide Superannuation and Australia Post Superannuation Scheme. The relevant fund, for the purpose of this appeal, is the MTAA Superannuation Fund of which the trustee is trustee. The deceased joined that fund on 1 July 1994. On 30 June 1996 he nominated his mother as nominated beneficiary, which nomination did not change prior to his death. The nomination did not bind the trustee.
3 The respondent, Micheal Robert Sadleir is the brother of the deceased and the son of the applicant, and a respondent to the applicant’s appeal. He also appeals against the Tribunal’s decision. The respondent, Vanessa Anne Jackson claimed to be and was found to be the de facto spouse of the deceased, and has been joined as a respondent to the appeal. She has acted as contradictor in this appeal. The applicant and Mr Micheal Sadleir were unrepresented on the appeal. Ms Jackson was represented by counsel.
4 After the death of the deceased, the applicant, Micheal Sadleir and Vanessa Jackson all made a claim to be entitled to benefits out of the Fund.
5 The applicant was the mother of the deceased and the nominated beneficiary under the Fund. She claimed she was also financially dependent upon the deceased. She denied that the deceased and Vanessa Jackson had a de facto relationship.
6 Mr Micheal Sadleir was a brother of the deceased who also claimed to be financially dependent upon the deceased.
7 Vanessa Jackson made her claim as the deceased’s de facto spouse but also claimed a degree of dependency upon the deceased. Vanessa Jackson relied upon a statutory declaration by Siobhan Wilkinson to corroborate her claims.
8 The applicant and Vanessa Jackson disputed each other’s claim and Vanessa Jackson disputed Mr Micheal Sadleir’s claim. Vanessa Jackson disputed that the applicant was financially dependent upon the deceased and the applicant disputed that Vanessa Jackson was in a de facto relationship with the deceased. Both the applicant and Vanessa Jackson made submissions in support of their claims.
9 Apparently on 18 July 2007 an officer of the trustee determined that the superannuation entitlement should be distributed as to 80% to Ms Jackson and 20% to the applicant. On that day the officer made a note to file to that effect, which said:
The Death Benefit is approximately $134,000
The deceased is survived by his father, Robert Roy Sadlier (sic), his mother Christine Sadlier (sic) and Vanessa Jackson.
The member joined the Fund in 1994 and at that time, nominated Christine Sadleir as the nominated beneficiary, which remained unchanged at the time of his death.
Claims have been made by all three parties. The basis of the respective claims and a summary of information provided to support the claims follows.
Robert Roy Sadlier (sic) – Father
Mr Sadlier (sic) has by way of his solicitor made a claim as a legal representative of the Estate and by virtue of his personal relationship with his son. Mr Sadlier has not to our knowledge applied for Letters of Administration. The relationship they enjoyed was that of a normal father-son relationship and they also shared a common interest and involvement in motor-cycling but they had not lived together since the deceased was thirteen years of age when his parents separated.
Christine Sadlier (sic) – Mother
Christine has made a claim on the basis of a close personal relationship with her son and that she was financial (sic) dependant on her son. From the information provided with her claim, Christine was receiving some ad hoc financial support from the deceased. She also refutes the existence of a de facto relationship between her son and Vanessa Jackson and states he was merely residing with her and paying rent.
Vanessa Jackson
Vanessa is claiming as the de facto of the deceased. She advises that they had a long-term relationship of some six years and that from February 2005 he stayed at her residence every night, but that he maintained some of his possessions at his brother’s house. In January 2006 he moved all his possessions to her residence and formalised this to the extent of changing his Drivers License (sic) to her residence.
Vanessa has supported her claim as the de facto with evidence of a joint mortgage application two months prior to the member’s death, a statutory declaration outlining their relationship and statutory declarations from her mother and a mutual friend of herself and the deceased.
Observations and Conclusions
Mr Robert Roy Sadlier (sic) does not, on the basis of the information provided, meet the requirements to be considered as a financial dependant, an Interdependent, or the Legal Personal Representative of the deceased.
Christine Sadlier may be considered as having some partial financial dependency based on her Statutory Declaration which whilst not substantiated to any great detail in submissions by Vanessa, reference is made by her as to disagreements between herself and the deceased over support that he provided on occasion to his mother.
Vanessa Jackson has provided independent evidence to support her claim as the de facto. There is some information in statements made by way of Statutory Declaration that dispute this, particularly from Christine Sadlier, but it is noted that this is not substantiated by any independent parties.
Recommendation
I recommend that the benefit be paid:
• 80% to Vanessa Jackson as a financial dependant; and
• 20% to Christine Sadlier (sic) as a financial dependant.
28-day letters to be sent to all three claimants
10 It is not clear whether that decision was communicated to any claimant but on 2 August 2007 the trustee received a claim from Mr Micheal Sadleir. That gave rise to further communication with Ms Jackson and on 23 October 2007 another note was made on the file:
A decision was made on 18 July 2007 to pay the benefit
• 80% to Vanessa Jackson, de facto; and
• 20% to Christine Sadleir as a financial dependant.
Shortly after that decision a claim for financial dependency was received from Michael Sadleir (sic), the brother of the deceased. Further information was sought from Michael Sadleir (sic) and Vanessa Jackson which is attached.
I consider that the information does not give cause to change the original decision and recommend that this now be conveyed to all parties.
11 On 19 November 2007 the trustee wrote to the claimants advising its decision. Relevantly it wrote:
We wish to advise you, that after full consideration of all the documents provided, the Trustee on 07 November 2007, has proposed to pay the benefit amounting to approximately $143,015.16 in the following way:
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Name |
Relationship to deceased |
Proportion |
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Vanessa Jackson as a financial dependant |
De facto spouse |
80% |
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Christine Sadleir as a financial dependant |
Mother |
20% |
12 The claimants were advised that they could object to “the proposal” within 28 days by notice in writing and any objection would be referred to the trustee for further consideration.
13 The claimants were simply advised that the trustee was treating the applicant and Vanessa Jackson as financially dependant and apportioning the benefit between them 20%/80%.
14 On 5 December 2007 Mr Micheal Sadleir wrote to the trustee indicating his disagreement with the trustee’s decision.
15 On 10 December 2007 the applicant also objected. She provided further information and submissions in support of her objection on 17 December 2007.
16 On 10 January 2008 the decision maker within the trustee made a further note for file which was agreed to by the Principal Executive Officer of the trustee on 11 January 2008:
Attached is previous correspondence and information on this matter, including the latest received being objections from Christine Sadlier (sic) (mother of the deceased) and Michael Sadlier (sic) (brother of the deceased).
Commentary
The objection from Michael Sadlier (sic) offers information on the status of the deceased’s relationship with Vanessa Jackson that appears to be conjecture on his part. He offers no further evidence as to financial dependency within the meaning of the relevant legislation. Information in this regard has previously been provided by Michael (sic) but it is insufficient in my opinion to warrant his consideration as a financial dependant.
The objection from Christine Sadlier (sic) is on the basis of her financial dependency on the deceased and does not dispute the payment of a benefit to Vanessa; indeed she acknowledges some entitlement by Vanessa, but is a dispute of the portion considered for herself.
The existence of a de facto relationship between Vanessa and the deceased is supported by a Statutory Declaration by Vanessa. She has also supplied documentary evidence by way of a joint mortgage application which although it did not proceed, to some extent evidences some intention by the couple of a long-term personal and financial commitment.
The information provided to counter the claim from Vanessa as the de facto is by way of personal statements or assertions by other claimants and is not supported by any independent evidence.
Conclusions
The Trustee is not in a position where it can, and arguably it should not, attempt to test the veracity of a claimants (sic) statements, sworn or otherwise.
The balance of information provided shows that there are only two claimants who within the terms of the Trust Deed and the relevant legislation had a degree of financial dependency on the deceased and these were Vanessa Jackson and Christine Sadlier (sic).
The original decision to pay the benefit 80% to Vanessa Jackson and 20% to Christine Sadlier (sic) is in my opinion an appropriate one.
Recommendation
I recommend that the objections received by Christine Sadlier (sic) and Michael Sadlier (sic) having been considered, do not provide sufficient cause to change the original decision and that this decision be maintained.
17 On 14 January 2008 the claimants were advised:
We wish to advise you, that after full consideration of all the documents provided, the Trustee on 11 January 2008, maintained its decision to pay the benefits amounting to approximately $143,015.06 in the following way:
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Name |
Relationship to deceased |
Proportion |
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Vanessa Jackson as a financial dependant |
De facto spouse |
80% |
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Christine Sadleir as a financial dependant |
Mother |
20% |
18 The trustee advised the applicant and Mr Micheal Sadleir that they could complain to the Superannuation Complaints Tribunal.
19 The applicant and Mr Sadleir were never advised by the trustee why it was that the trustee had decided to apportion the benefit in the way that it did. Indeed, the trustee’s internal file notes do not disclose the reason or reasons why the trustee thought Ms Jackson should receive 80% and the applicant 20%. Nor do the reasons disclose why regard was not to be had if that be the case to the deceased’s nomination of his mother as beneficiary under the Fund.
20 There is nothing in the trust deed or otherwise that compels the trustee to give reasons for the apportionment. But, in any event, this is not an appeal or an application for review of the trustee’s decision but an appeal from the Tribunal’s decision.
21 Mr Micheal Sadleir complained to the Tribunal on 4 February 2008 and the applicant made her complaint on 11 February 2008. The applicant claimed amongst other things that the apportionment was unfair and unreasonable.
22 The Tribunal gave its decision on 20 November 2009 affirming the decision under review because it was satisfied that the decision was fair and reasonable in the circumstances.
23 In its review determination and reasons it addressed a number of matters. First, it addressed procedural matters noting that the Tribunal had requested submissions from the parties which had been received and exchanged and responses invited, and each party had responded. It noticed that the first complainant was the applicant, Christine Sadleir and the second complainant, Micheal Sadleir. The party joined was Vanessa Anne Jackson.
24 The Tribunal noted the amount of the benefit in dispute was $142,256.31 plus an anti-detriment amount of $4,811.58. It considered the trust deed which had last been amended prior to the deceased’s death on 30 June 2006.
25 It noted that the trustee had relied on clause 21.6(a) of the trust deed (incorrectly described by the trustee as clause 26.1(a)) as to the payment of the benefit on the death of a member, which relevantly provides that the trust deed must pay the benefit to or for the benefit of such of the dependants and legal personal representative of the deceased member as the trustee in its absolute discretion considers appropriate.
26 It noted that the trustee had identified the potential beneficiaries that excluded the deceased’s father who failed to complete a claim form on the ground that the deceased’s father did not meet the requirements to be considered a financial dependant.
27 It noted that Mrs Sadleir made a claim on the basis of a close personal relationship with her son and on the basis of financial dependence. It noted the evidence which Mrs Sadleir provided the trustee in relation to the extent of the financial support she had received from her deceased son. It noted that Mrs Sadleir disputed that her deceased son was in a de facto relationship with Ms Jackson.
28 The Tribunal noted that Ms Jackson made a claim as the de facto spouse of the deceased on the basis that the parties had a long-term relationship of some six years. It noted that Ms Jackson alleged that since February 2005 the deceased had been staying in her house although he maintained some of his possessions at his brother’s house. It noted that she claimed that in January 2006 the deceased moved into her house and formalised his address by changing his driver’s licence to her residence. It noted that a joint mortgage application had been made two months prior to the deceased’s death.
29 The Tribunal observed that the trustee had resolved to pay the benefit 80% to the de facto spouse and 20% to the deceased’s member’s mother. The Tribunal noted that after the decision was made it was drawn to the trustee’s attention that a claim for financial dependency had been made by Mr Micheal Sadleir on the ground that his brother had lived with him from about January 2003 until January 2006, during which time Mr Micheal Sadleir received an average of $100 per week from his brother. He also claimed that his brother had lived with him from February 2006 until August 2006 and paid him $50 per week. Mr Micheal Sadleir also claimed that he had received substantial amounts of money from his brother towards the purchase of a motor cycle. It noted that the trustee did not consider Mr Micheal Sadleir’s claims and information sufficient to cause a trustee to change the decision which had been made prior to a consideration of Mr Micheal Sadleir’s claim.
30 The Tribunal noted the objections made by Mrs Sadleir and Mr Micheal Sadleir. First, they alleged there was no de facto relationship between the deceased and Ms Jackson. Secondly, the deceased had never been a party to a mortgage application. Thirdly, the trustee ought to have followed the deceased’s nomination of his mother as the sole beneficiary of his superannuation benefit from the Fund. Fourthly, both Mrs Sadleir and Mr Micheal Sadleir placed considerable emphasis on the distribution of benefits paid by other superannuation funds.
31 The Tribunal noted that the deceased had in a non-binding nomination nominated only his mother as the beneficiary of his superannuation.
32 It noted the submissions made by both Mrs Sadleir and Mr Micheal Sadleir. The Tribunal also addressed Ms Jackson’s submissions in support of the trustee’s decision. It noted the trustee’s decision, which was that whilst Mrs Sadleir was partially financially dependent upon the deceased, Mr Micheal Sadleir did not meet the definition of dependant in the trust deed.
33 The Tribunal proceeded under the heading “Tribunal’s Deliberations”. It said:
31. The Tribunal must determine whether the decision of the Trustee to pay the 80% of the death benefit to the Deceased Member’s De Facto Spouse and 20% to his mother was fair and reasonable in its operation in relation to the Complainants and the De Facto Spouse 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 the whole of the evidence and submissions into account.
34 It noted the distributions made by other funds in which the deceased was also entitled to benefits:
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Total |
De Facto Spouse |
Complainant 1 |
Complainant 2 |
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Second Fund |
$129,746 |
60% $77,848 |
25% $32,437 |
15% $19,462 |
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Third Fund |
$145,080 |
50% $72,540 |
50% $72,540 |
0% $0 |
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Trustee |
$147,067 |
80% $117,654 |
20% $29,413 |
0% $0 |
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Total |
$421,893 |
63.5% $268,041 |
31.9% $134,390 |
4.6% $19,462 |
35 The Tribunal was of the opinion that the distributions by other funds were relevant because they would throw light on the financial circumstances of the parties.
36 The Tribunal then considered the claims of the potential beneficiaries. It concluded that it agreed with the trustee that the deceased’s father was not the legal personal representative of the deceased, nor did he satisfy the test of financial dependency. Accordingly, it agreed that the trustee’s decision in relation to the deceased’s father was fair and reasonable.
37 It dealt with Ms Jackson’s claim:
39. The De Facto Spouse (Vanessa Jackson) made a claim as the de facto spouse of the Deceased Member. The evidence in support of this claim was her statutory declaration in which she stated that the relationship had been a long term one of some 6 years. It is not in dispute that the Deceased Member moved into the De Facto Spouse’s house in January 2006; he had been staying overnight on a regular basis since long before that date; he changed his driver’s licence address to her residence; he nominated her as the ‘emergency contact’ at his (then) employer in 2005; statutory declarations from the De Facto Spouse’s mother and a friend support the relationship; and the Tribunal has sighted evidence that the Deceased Member and De Facto Spouse completed a joint mortgage application form two months prior to the Deceased Member’s death. This application was made through a broker and subsequently withdrawn by the parties because of credit difficulties they were facing at the time.
40. Complainant 1 (the applicant) stated that 6 months and 15 days prior to his death the Deceased Member commenced residing with the De Facto Spouse, and he deposited his rent money into her account, suggesting that he was a boarder “paying his own way” as she put it, rather than in a de facto relationship. A similar claim was made by Complainant 2 (Mr Micheal Sadleir). The De Facto Spouse claimed that the Deceased Member assisted with payments of part of the rent and some of the bills when he was employed, and at other times when he was unemployed she had assisted him financially. In view of the lengthy relationship and the undisputed fact that the Deceased Member moved out of his brother’s house to live with the De Facto Spouse, along with the other evidence referred to above, the Trustee found that this person was the De Facto Spouse of the Deceased Member.
38 Thus the Tribunal determined (at [41]) that Ms Jackson was the de facto spouse of the deceased at the time of his death. It found that she was employed on a salary of $38,787 per annum (at [42]).
39 Next the Tribunal dealt with Mrs Sadleir’s claim:
43. The Trustee considered that Complainant 1 “was dependent upon the Deceased Member to a lesser degree than [the De Facto Spouse] and resolved that the decision to pay 20% of the benefit to [Complainant 1] was fair and reasonable”.
44. Complainant 1 claims that the Deceased Member named Complainant 1 as the sole beneficiary, thus indicating his intention that the benefit was to be paid to her, and further claims that the Trustee failed to consider the reconfirmation of the Member’s intentions as to the nominated beneficiary, and failed to provide a Binding Nomination Form. The nomination was made on 30 June 1996, when the Deceased Member was 21 years old and, according to all relevant claims, had not yet met the De Facto Spouse.
45. The Trustee claims that no request was made to it for a Binding Nomination, and it does not provide Binding Nomination Forms unless explicitly asked. There is no evidence before the Tribunal that the Deceased Member sought o make a binding nomination.
46. Complainant 1 appears to have deceased work on 18 December 2005 and was in receipt of Centrelink benefits since about March 2006. She gave evidence of substantial financial dependence on the Deceased Member for approximately one year before his death. Complainant 1 could reasonably be considered to have some financial dependence upon the Deceased Member as the Trustee found.
40 Clearly the Tribunal was of the opinion that Mrs Sadleir was financially dependent upon the deceased and to that extent agreed with the trustee’s findings.
41 Lastly the Tribunal addressed Mr Micheal Sadleir’s claim and said:
47. Complainant 2 claimed that the proposed distribution of the benefit is inconsistent with the distribution proposed by other superannuation funds and accepted by all parties. Considering that the distributions of the other two funds were not consistent with each other, this is a curious claim on which the Tribunal puts no weight.
48. Complainant 2 is a teacher on a salary of approximately of (sic) $68,000 per annu, owns property and has mortgages and loans with a net credit balance. The essential claim of financial dependence is based on the support that the Deceased Member gave him to purchase at different times, three motorcycles. The Deceased Member was contributing $50 per week towards the loan repayments on one of the motorcycles at the time of his death, and Complainant 2 stated that he was in ‘a tight financial position’ at the time. The Trustee appears to have accepted that the Deceased Member gave amounts of money to Complainant 2 but that these were in the manner of a gift. They do not appear to be in any form of regular financial support. The Trustee did not consider the claims and information sufficient cause to change its decision. The Tribunal notes that Complainant 2 received a distribution from one of the other funds and has, since the time of the Deceased Member’s death, remained employed. The Tribunal finds that the Trustee’s decision was fair and reasonable in its operation in relation to Complainant 2.
49. Certain other matters raised by Complainant 2 include that the Deceased Member was not in a de facto relationship and that no evidence has been provided about the joint application for a mortgage. The Tribunal has considered these matters above and finds no substance in the claims.
42 The Tribunal then concluded:
50. Pursuant to s 37(1)(a) of the Complaints Act, the Tribunal has all of the powers obligations and discretions of the Trustee. By virtue of s 37(3) the Tribunal may make a determination:
• affirming a decision;
• remitting the matter for consideration in accordance with the Tribunal’s directions;
• varying the decision; or
• setting aside the decision and substituting its own decision.
51. Sub-section 37(6) of the Complaints Act provides that the Tribunal must affirm the decision of the Trustee if it is satisfied that it was fair and reasonable in the circumstances in its operation in relation to the Complainant and any person who has become a party to the complaint and who either has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person having an interest in the death benefit. The Tribunal is so satisfied.
52. In accordance with the requirements of sub-ss.37(3), (4) and (5) of the Complaints Act, the Tribunal therefore affirms the decision.
43 It is clear enough on the Tribunal’s reasons that the Tribunal found that the trustee’s decision that the the deceased’s father and the deceased’s brother were not financially dependent upon the deceased was fair and reasonable.
44 It is also clear that the Tribunal found that Ms Jackson was a de facto spouse for the purpose of the trust deed. Although it noted that the deceased had contributed to the rent and some of the bills when he was employed and that Vanessa Jackson had assisted the deceased financially when he was unemployed, there is no finding that Vanessa Jackson was financially dependent upon the deceased. It has also found that the deceased’s mother, Mrs Sadleir, was financially dependent upon the deceased.
45 It is to be noted that the Tribunal has given no reasons why it thought the allocation of 80% of the Fund to Ms Jackson and 20% to Mrs Sadleir was fair and reasonable. It has not addressed the question of allocation at all, except to find that the trustee’s decision was fair and reasonable without giving reasons for saying so.
46 If the trustee’s file note of 18 July 2007 reflects the trustee’s reasons (which I think it does), the trustee concluded without expressing any reasons that Vanessa Jackson was financially dependent upon the deceased.
47 Moreover, the trustee has not given reasons for why it thought that an allocation of 80% to Vanessa Jackson and 20% to the applicant was a fair and reasonable apportionment of the available fund. Thus from the applicant’s point of view she has two decision makers; the trustee and the Tribunal who have decided that it was fair and reasonable to apportion the benefit 80%/20%, neither of which have given any reasons for their respective decisions.
48 The Tribunal is established and constituted by the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Act): see s 6. The objectives and functions of the Tribunal are set out in Part 3 of the Act. Section 14(2) of the Act provides that a person may make a complaint to the Tribunal that a decision of a trustee was unfair or unreasonable. Such a complaint may be made by a person who has an interest in the payment of a death benefit. “Death benefit” is defined in the Act.
49 Section 34 of the Act requires the Tribunal to conduct a review meeting without oral submissions from the parties: s 34(1). The Tribunal may, however, if it thinks it necessary, make an order allowing the parties to make oral submissions to the Tribunal at the review meeting: s 34(2).
50 Section 37 of the Act invests the Tribunal with all of the powers, obligations and discretions that are conferred on the trustee: s 37(1)(a); and requires the Tribunal to make a determination in accordance with subsection (3): s 37(1)(b).
51 Section 37(3) of the Act provides for the Tribunal’s powers under a review. It provides:
(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.
52 However, s 37(6) requires the Tribunal to affirm a decision under subsection (3) if it is satisfied that the decision in its operation in relation to the complainant was fair and reasonable in the circumstances.
53 The obligation on this Tribunal therefore was to affirm the decision if the Tribunal concluded that it was satisfied that the decision made by the trustee in relation to the complainants to the Tribunal was fair and reasonable in the circumstances.
54 A decision whether another decision is fair and reasonable involves a value judgment which is in the province of the Tribunal: National Mutual v Campbell (2000) 99 FCR 562 at 571.
55 Section 40 of the Act requires the Tribunal to give written reasons for its determination.
56 Section 46 of the Act provides for appeals to the Federal Court of Australia from determinations of the Tribunal. It provides:
(1) A party may appeal to the Federal Court, on a question of law, from the determination of the Tribunal.
(2) An appeal by a person under subsection (1) is to be instituted:
(a) not later than the 28th day after the day on which a copy of the determination of the Tribunal is given to the person or within such further period as the Federal Court (whether before or after the end of that day) allows; and
(b) in accordance with rules of court made under the Federal Court of Australia Act 1976.
(3) The Federal Court is to hear and determine the appeal and may make such order as it thinks appropriate.
(4) Without limiting by implication the generality of subsection (3), the orders that may be made by the Federal Court on an appeal include an order affirming or setting aside the determination of the Tribunal and an order remitting the matter to be determined again by the Tribunal in accordance with the directions of the Court.
(5) The Federal Court must not make an order awarding costs against a complainant if the complainant does not defend an appeal instituted by another party to the complaint.
The applicant therefore is restricted to an appeal on a question of law. The jurisdiction of the Court does not arise unless the appellant can identify a question of law. A mixed question of fact and law will not suffice: Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321. An appeal on a question of law is narrower than an appeal which involves a question of law. The subject matter of the appeal is the question of law: Hussain v Minister for Foreign Affairs (2008) 169 FCR 241. The appellant must identify an error of law which amounts to a question of law. A question cannot if it is not a question of law became a question of law by the notice of appeal saying it to be so.
57 A drafter cannot make a question become a question of law by resort to a formula that “the Tribunal erred in law”. A finding of fact which is said to be erroneous will not be a question of law if there is some evidence upon which the finding is based but may become a question of law if there is no evidence to support the finding.
58 Because the applicant is confined to an appeal which relates only to a question of law, the applicant needs to identify precisely that question in the notice of appeal: Birdseye v Australian Securities and Investments Commission 76 ALD 321 at 325.
59 Unfortunately, in this case, the applicant, who as I say is unrepresented, was not able to articulate the question or questions of law in the notice of appeal which she sought to agitate in this Court. The second amended notice of appeal is, I am sorry to have to say, incomprehensible. Doing the best I can, I think the first question that the applicant tried to identify as a question of law, was that the Tribunal erred in allowing a de facto spouse to make a claim against the trust in circumstances where a claim by a de facto spouse could not be made.
60 Secondly, I think that the applicant claimed that a witness Siobhan Wilkinson had made a false statement in a statutory declaration made on 6 July 2007 which had been relied on by the Tribunal. The applicant claimed, I think, that no such person existed.
61 Thirdly, I think the applicant claimed that the respondent, Vanessa Jackson had been guilty of fraud in the claims she had made. In this regard she claimed that Ms Jackson’s evidence was false. She claimed that the trustee had failed to properly react to this false claim.
62 Fourthly, I think she tried to identify as a question of law a failure by the trustee to provide her with a true copy of “VAJ4” which was an exhibit to an affidavit filed by the respondent, Vanessa Jackson.
63 Fifthly, I think her case was said to be a failure by the Tribunal to award her benefits in accordance with her status as a nominated beneficiary.
64 The applicant claimed that a question of law arose as I have indicated because a de facto spouse was not entitled to benefits under the trust deed. She handed up in support of that claim definitions of “de facto” and “de facto spouse” in a number of enactments, some Commonwealth and some State. The Acts were irrelevant. Whether a de facto spouse was entitled to make a claim must be determined by reference to the Trust Deed.
65 A dependant under the deed means:
(a) ...
(b) spouse;
(c) any other person who is wholly or partly financially dependent on a member or in the case of a deceased member was wholly or partly financially dependent at the time of the member’s death; and
(d) any other person who has an interdependency relationship.
66 “Spouse” is defined in the deed to mean:
Spouse of a member means:
(a) the husband or wife of that member; or
(b) another person who, although not legally married to the member, lives with the member on a bona fide basis as the husband or wife of the member; or
(c) in the case of a deceased member the widow or widower or a person who was at the date of the death of the member living with the member on a bona fide domestic basis as the husband or wife of the member.
67 Although the trust deed does not make direct reference to a de facto spouse, it does provide that a dependant includes a person who is a spouse, which includes a person (in the case of a deceased member) who is living with the member on a bona fide domestic basis as the husband or wife of that member. The trustee was entitled to consider whether Vanessa Jackson was such a person. The trustee in a short hand manner described Vanessa Jackson as a de facto. Although that is not the term used in the Trust Deed, that does in a short hand manner describe the relationship referred to in the Trust Deed.
68 Her complaint about the false evidence of Siobhan Wilkinson was not made out. Ms Jackson supported her application to the trustee by reference to a statutory declaration of Siobhan Wilkinson who said in that statutory declaration that she had known the deceased and Vanessa Jackson for three and a half years. They had met before Siobhan Wilkinson began working with Vanessa Jackson. The applicant claimed on this appeal that there was no-one of that name who worked with Ms Jackson who could have supported Ms Jackson’s evidence. She applied for leave to issue subpoenas directed to the Human Resources Manager of the Department of Treasury and Finance and the Attorney General’s Department seeking the employment records relating to Siobhan Wilkinson. Ms Wilkinson swore a further affidavit on the appeal which showed that she was employed with the South Australian Government and worked with Ms Jackson, but she was known not as Siobhan Wilkinson but as Siobhan McNamee, which is her maiden name. There is no reason to think that evidence was not correct. That ground must be dismissed.
69 In her oral submissions the applicant asserted that the respondent, Vanessa Jackson had been guilty of fraud which she sought to justify by reference to pieces of evidence which she said contradicted Ms Jackson’s claim that she was a de facto spouse of the deceased. She pointed to matters in Ms Jackson’s affidavit where Ms Jackson said that she and the deceased had made a joint application for a loan which was conditionally approved. She said that there were contradictions in the evidence as to why the loan did not progress which indicated that Vanessa Jackson’s evidence was false. Vanessa Jackson said that the home loan application was cancelled due to the deceased’s default on a credit file. The applicant sought to show that that claim was inconsistent with the deceased’s credit report. Clearly, even if the matters which she made out in relation to the items of evidence had been established, she was not thereby raising any question of law. The question whether Vanessa Jackson’s evidence as to her relationship with the deceased should be accepted was for the trustee to determine and for the Tribunal to consider in addressing its duty of deciding whether the trustee’s decision was fair and reasonable. The question of Vanessa Jackson’s credibility was a question of fact and essentially a matter for the decision makers and not for this Court.
70 The failure of the trustee to provide the applicant with an exhibit to Vanessa Jackson’s statutory declaration if that were the case does not give rise to a question of law on appeal from the Tribunal’s decision. In any event, the exhibit was a copy of an application to the Australian Credit Union. The applicant addressed the question whether the evidence including this evidence supported a claim that Vanessa Jackson was in a de facto relationship with the deceased. There is nothing in that complaint.
71 There was an alteration to the Trust Deed which allowed members to make binding nominations of the beneficiaries. The applicant contended that she was never advised of the amendment. She contended that if she had known the deceased might have converted the non-binding nomination into a binding nomination. The contention is of course entirely speculative but in any event does not assist the applicant. The trustee was not obliged to treat the non-binding nomination as anything other than it was. In support of this claim the applicant contended that the Tribunal had erred in failing to have regard to clause 17.4 of the trust deed which provides that the trustee must as soon as practicable after any alterations have been effected to the trust deed provide a written statement explaining the nature and purpose of the alteration and the effect, if any, of the alteration on the entitlement of that member.
72 She claimed that the trustee breached clause 17.4.1 by not providing her with an alteration to the trust deed which had affected her entitlements on the death of her son. She also relied upon clause 9 which identified the trustee’s covenants and paragraph (h) which was “to allow a Member access to any information or any documents prescribed by the Act or Corporations Act”. She said that she was not provided with an amendment to the trust deed which affected her entitlements as a nominated beneficiary.
73 Whether or not the trustee complied with the trust deed in that respect is not in my opinion a question of law but even if it were it cannot assist the applicant because the applicant’s claim is not as a member, but as a beneficiary of a member. Even though she was herself a member, she is not entitled to say when claiming as a nominated beneficiary that the trustee had an obligation to provide her with the information referred to in clause 17.4.1 and clause 9(h), because the trustee did have such an obligation and was to provide her son with the information about which she complains.
74 In the end result none of the matters raised by the applicant were questions of law and, indeed, none of them were successfully maintained whether questions of law or otherwise. A number of complaints made by the applicant were as a result of her misunderstanding the evidence or misunderstanding the trustee’s obligations.
75 Insofar as Michael Sadleir has also appealed, his appeal suffers from the same difficulties as his mother’s. He claimed in support of the appeal that he was financially dependent upon his brother and that the trustee had not acted in good faith.
76 The thrust of both the applicant and her son’s complaint about the trustee not acting in good faith was that the trustee accepted the evidence of Ms Jackson that there was a de facto relationship in circumstances where they allege no such de facto relationship existed.
77 That is simply again a complaint about the findings of fact made.
78 The question whether Mr Micheal Sadleir was financially dependent on the deceased was a question of fact for the Tribunal and does not raise a question of law. The claim that the trustee had not acted in good faith was not supported.
79 During the hearing of the appeal I raised with the applicant and Mr Micheal Sadleir whether they wished to complain about the adequacy of the Tribunal’s reasons. Both said that they did. Neither have claimed that the Tribunal has failed to give reasons or adequate reasons or that that failure is an error of law. If they do wish to make such a claim, they would need to seek leave to amend the applicant’s notice of appeal to raise the contention.
80 Counsel for Vanessa Jackson argued that no question of law was raised in the existing grounds of appeal and his contentions have for the reasons given above been accepted.
81 I raised with him the adequacy of the Tribunal’s reasons and whether they were such that a question of law arose. He contended the reasons were sufficient but he had not been put on notice that the applicant and Mr Micheal Sadleir might put such a contention.
82 Section 40 of the Act mandates the giving of reasons.
83 There is no general rule or no principle of natural justice which requires a decision maker to give reasons for the decision maker’s decision even if that decision is based on a statutory discretion: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.
84 However, the position is different where there is a statutory obligation to give reasons which is the case under this Act: s 40. Where a statutory duty requires a decision maker to give reasons, the failure to give such reasons may amount to an error of law: Dornan v
Riordan (1990) 24 FCR 564; Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65; Preston v Secretary, Department of Family and Community Services (2004) 39 AAR 177.
85 The reasons of law usually must be sufficient to allow a court on review to understand how the decision maker arrived at the decision. A decision maker is entitled to give brief reasons provided they address the question which the decision maker is obliged to address. In this case, the decision maker has given reasons for concluding that Vanessa Jackson was in a de facto relationship with the deceased. The decision maker has also given reasons for concluding that the trustee’s determination insofar as the trustee found that the applicant was financially dependent upon the deceased was fair and reasonable. The decision maker has also given reasons for concluding that the trustee’s decision that Micheal Sadleir was not financially dependent upon the deceased was fair and reasonable. It may however be argued that no reasons or no adequate reasons have been given by the Tribunal for concluding that the apportionment between Vanessa Jackson and the applicant was fair and reasonable.
86 However, it would be unfair for me to decide that matter in advance of the applicant obtaining leave to amend the grounds of appeal to raise such an issue and, if such leave were granted, Vanessa Jackson’s counsel having a right to put submissions in opposition.
87 For the reasons I have already mentioned, the only issue upon which it might be said I think that the Tribunal has not given adequate reasons is in relation to the apportionment between the applicant and Vanessa Jackson.
88 Subject to hearing the applicant and, of course, Mr Micheal Sadleir who may argue otherwise, any application for leave ought to be limited to a claim that the Tribunal failed to give reasons or any adequate reasons for concluding that the trustee’s determination that there be an apportionment between Vanessa Jackson and the applicant in the ration of 80%/20% was fair and reasonable.
89 I will hear the parties as to that issue. In due course, Ms Jackson will no doubt make a claim for costs in relation to the dismissal of the grounds as they were framed for the hearing which has given rise to these reasons.
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I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. |
Associate:
Dated: 27 August 2010
