FEDERAL COURT OF AUSTRALIA

Ievers v Superannuation Complaints Tribunal [2016] FCA 936

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the third respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

1    Mrs Ievers is the legal personal representative of her deceased daughter, Ms Redfearn, who died very tragically on 22 April 2011, as a consequence of an attempted suicide on 20 April 2011. Ms Redfearn was a member of the SunSuper Superannuation Fund. The Trustee of the Fund determined to pay 100% of Ms Redfearn’s death benefit to Mrs Ievers as the legal personal representative. Mr Hattingh, the third respondent, contended he was living with Ms Redfearn at the time in a relationship. He lodged a complaint in relation to the Trustee’s decision with the Superannuation Complaints Tribunal, the first respondent. The Tribunal set aside the Trustee’s determination and determined that 100% of the death benefit should be paid to Mr Hattingh.

2    Mrs Ievers applies for judicial review of the Tribunal’s decision. The Tribunal and the Fund will abide the decision of the Court. The application is opposed by Mr Hattingh.

3    For reasons set out below, in my view, the decision of the Tribunal was correct and the application must be dismissed.

THE TRIBUNAL’S DECISION

4    Section 37(6) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (Complaints Act) provides that the Tribunal must affirm a decision under review if it is satisfied that the decision and its operation in relation to the complainant and any person who has become a party to the complaint and has an interest in the death benefit was fair and reasonable in the circumstances. The Tribunal was not so satisfied and, in accordance with s 37(3), (4) and (5), it set aside the Trustee’s decision and substituted its own decision.

5    Section 37 of the Complaints Act in totality provides as follows:

37    Tribunal powers—complaints under section 14

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

(a)    the Tribunal has all the powers, obligations and discretions that are conferred on the trustee; and

(b)    subject to subsection (6), must make a determination in accordance with subsection (3).

(2)    If an insurer or other decision‑maker has been joined as a party to a complaint under section 14:

(a)    the Tribunal must, when reviewing the trustee’s decision, also review any decision of the insurer or other decision‑maker that is relevant to the complaint; and

(b)    for that purpose, has all the powers, obligations and discretions that are conferred on the insurer or other decision‑maker; and

(c)    subject to subsection (6), must make a determination in accordance with subsection (3).

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

(a)    affirming the decision; or

(b)    remitting the matter to which the decision relates to the trustee, insurer or other decision‑maker for reconsideration in accordance with the directions of the Tribunal; or

(c)    varying the decision; or

(d)    setting aside the decision and substituting a decision for the decision so set aside.

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

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

(6)    The Tribunal must affirm a decision referred to under subsection (3) if it is satisfied that the decision, in its operation in relation to:

(a)    the complainant; and

(b)    so far as concerns a complaint regarding the payment of a death benefit—any person (other than the complainant, a trustee, insurer or decision‑maker) who:

(i)    has become a party to the complaint; and

(ii)    has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person having an interest in the death benefit;

was fair and reasonable in the circumstances.

6    Both Mrs Ievers and Mr Hattingh were legally represented before the Tribunal but the Tribunal’s deliberations were on the papers after the Tribunal had been supplied with detailed submissions from Mrs Ievers, Mr Hattingh and also the Trustee.

7    The Tribunal recorded (at [13]) that the Trustee had rejected Mr Hattingh’s claim that he was the de facto spouse of the deceased member, Ms Redfearn. The Trustee asserted that pursuant to its Trust Deed and the Superannuation Industry (Supervision) Regulations 1994 (Cth) (SIS Regulations), a death benefit could normally only be paid to a dependant, the legal personal representative or a combination of a dependant and the legal personal representative. The Trustee resolved to pay 100% of the death benefit to the legal personal representative, Mrs Ievers.

8    The Tribunal noted (at [14]) that Ms Redfearn was born 12 June 1990 and joined the fund on 16 June 2008. On 20 April 2011, she was found by Mr Hattingh in the garage of their rented home after a suspected suicide attempt. Two days later she died. Letters of Administration were granted to Mrs Ievers as her legal personal representative on 15 August 2011. On 10 November 2011, the police in Queensland dispatched their coronial file regarding the sudden death of the deceased member to the coroner for his consideration. On 12 October 2012, sworn witness statements from the Coroner’s investigation were made available to the parties to the complaint to the Tribunal and on 30 May 2013, the Coroner wrote to the legal personal representative declining her request that an inquest be held into the deceased member’s death.

9    The amount of Ms Redfearn’s account balance as at 26 February 2015 which shortly before the date of the Tribunal’s decision was $265,225.88 and included an insured benefit of $228,000.

10    The Tribunal noted (at [17]-[20]) that the key provisions of the Trust Deed and legislation at the date of death were as follows:

1    DEFINITIONS AND INTERPRETATIONS

1.1    Definitions

…

‘Dependant’ of a Member means any person who is or was at the relevant time:

(a)    a Spouse of the Member; or

(b)    a Child of the Member; or

(c)    dependent upon the Member for maintenance or support; or

(d)    in an Interdependency Relationship with the Member, where the relevant time occurs on or after 1 July 2004.

‘SIS’ means the Superannuation Industry (Supervision) Act 1993 and includes the regulations to it.

1.2    Definitions from SIS

In this Deed unless the context otherwise requires, the following expressions have the meanings given to them in SIS:

…

•    ‘Interdependency Relationship’

•    ‘Legal Personal Representative’

•    …

•    ‘Spouse’

11    BENEFITS

…

11.8    Death Benefits

(a)- (c)        [not applicable]

(d)    On the death of a Member:

(i)    [not applicable]

(ii)    [not applicable]

(iii)    otherwise, the Trustee must pay the benefit to such of the Member’s Dependants or Legal Personal Representative, in such proportions, as the Trustee determines.

…

11.16    Evidence of entitlement to benefits

(a)    Any person claiming a benefit from the Fund must on request of the Trustee produce to the Trustee such information or evidence, and execute such documents, as the Trustee reasonably requires to establish the person’s entitlement to the benefit.

(b)    The Trustee when deciding a person’s entitlement to a benefit may rely on proofs or presumptions the Trustee considers satisfactory whether or not the proofs or presumptions relied on are strictly legal proofs or presumptions.

(c)    The Trustee may refuse to pay a benefit to any person until the Trustee’s requirements for information, evidence or documents have been complied with to the Trustee’s satisfaction.

...

11    Certain provisions of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act):

DIVISION 2    INTERPRETATION

10    Definitions

‘dependant’, in relation to a person, includes the spouse of the person, any child of the person and any person with whom the person has an interdependency relationship.

‘spouse’ of a person includes:

(a)    another person (whether of the same sex or a different sex) with whom the person is in a relationship that is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; and

(b)    another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple.

12    Section 10A of the SIS Act provides as follows:

Interdependency relationship

(1)    Subject to subsection (3), for the purposes of this Act, 2 persons (whether or not related by family) have an interdependency relationship if:

(a)    they have a close personal relationship; and

(b)    they live together; and

(c)    one or each of them provides the other with financial support; and

(d)    one or each of them provides the other with domestic support and personal care.

(2)    Subject to subsection (3), for the purposes of this Act, if:

(a)    2 persons (whether or not related by family) satisfy the requirement of paragraph (1)(a); and

(b)    they do not satisfy the other requirements of an interdependency relationship under subsection (1); and

(c)    the reason they do not satisfy the other requirements is that either or both of them suffer from a physical, intellectual or psychiatric disability;

they have an interdependency relationship.

(3)    The regulations may specify:

(a)    matters that are, or are not, to be taken into account in determining under subsection (1) or (2) whether 2 persons have an interdependency relationship; and

(b)    circumstances in which 2 persons have, or do not have, an interdependency relationship.

13    Regulation 1.04AAAA of the SIS Regulations provides:

(1)    For paragraph 10A(3)(a) of the Act, the following matters are to be taken into account in determining whether 2 persons have an interdependency relationship, or had an interdependency relationship immediately before the death of 1 of the persons:

(a)    all of the circumstances of the relationship between the persons, including (where relevant):

(i)    the duration of the relationship; and

(ii)    whether or not a sexual relationship exists; and

(iii)    the ownership, use and acquisition of property; and

(iv)    the degree of mutual commitment to a shared life; and

(v)    the care and support of children; and

(vi)    the reputation and public aspects of the relationship; and

(vii)    the degree of emotional support; and

(viii)    the extent to which the relationship is one of mere convenience; and

(ix)    any evidence suggesting that the parties intend the relationship to be permanent;

(b)    the existence of a statutory declaration signed by one of the persons to the effect that the person is, or (in the case of a statutory declaration made after the end of the relationship) was, in an interdependency relationship with the other person.

(2)    For paragraph 10A(3)(b) of the Act, 2 persons have an interdependency relationship if:

(a)    they satisfy the requirements of paragraphs 10A(1)(a) to (c) of the Act; and

(b)    one or each of them provides the other with support and care of a type and quality normally provided in a close personal relationship, rather than by a mere friend or flatmate.

Examples of care normally provided in a close personal relationship rather than by a friend or flatmate

1.    Significant care provided for the other person when he or she is unwell.

2.    Significant care provided for the other person when he or she is suffering emotionally.

14    The Tribunal focussed on the competing submissions of the parties on the question of whether Ms Redfearn and Mr Hattingh had terminated their de facto relationship as at 20 April 2011, or whether it continued.

15    The Trustee itself was of the view that Mr Hattingh could not be regarded as a dependant of Ms Redfearn, either as her de facto spouse or as her interdependent. As Ms Redfearn was survived by no known dependants but by a legal personal representative, pursuant to the Trust Deed and superannuation law, the Trustee was required to pay the benefits to the legal personal representative. Ms Redfearn had made no nomination of a preferred beneficiary of the Fund benefit, nor did she have a will.

16    Ms Hattingh as complainant before the Tribunal provided a large amount of information to it, only a small portion of which the Tribunal regarded as being relevant.

17    The Tribunal recorded the following matters (at [24]):

    The Trust Deed requires the Trustee on the death of Ms Redfearn to pay the benefit to one or more of Ms Redfearn's dependants and the legal personal representative pursuant to the Trustee's discretion.

    The Trust Deed defines dependants as:

(a)    a spouse

(b)    a child, or,

(c)    a person dependant [sic-dependent] on the member for maintenance or support.

    Ms Redfearn had no children at her death; the only possible dependant Ms Redfearn had was her de facto spouse - Mr Hattingh.

    In the alternative, Mr Hattingh was a person dependent on Ms Redfearn for maintenance and support and was financially dependent on her.

    The issue of whether there was domestic violence in a relationship is not a relevant issue in determining whether a relationship existed.

    It was asserted by Mrs Ievers that the purchase of a one-way plane ticket by Ms Redfearn to visit her was proof the relationship had been terminated by Mr Hattingh on or before 18 April 2011. But the Tribunal said the fact is Ms Redfearn did not board the plane, but rather elected to stay with Mr Hattingh. This was evidence Ms Redfearn did not want to fly interstate and had not severed her relationship with Mr Hattingh.

    The fact Mr Hattingh left the airport without Ms Redfearn was not evidence that no relationship existed at the time of Ms Redfearn's death. One of Ms Redfearn's co-workers who was with Ms Redfearn at the airport when Mr Hattingh departed has attested:

[Mr Hattingh] then got out of the car and said, ‘Look, just get on the plane and go I will be here when you get back I promise I will be here when you get back.’ [Name of co-worker] adds '[Ms Redfearn] kept saying, “I'm not going” [Mr Hattingh] said to me, ‘Should I leave?’ I said, ‘yeah, just go’. [Mr Hattingh] then went out to his car and started to drive off.

    Contrary to the assertions of Mrs Ievers, none of the statements of police attending on 20 April 2011 state that Mr Hattingh advised them that Ms Redfearn had:

[attempted suicide] because he had ended the relationship.

    The Trustee's assertion that:

[w]itness statements for these investigations report that the relationship broke down prior to death, and [Mr Hattingh's] termination of the relationship was the cause of the deceased's hanging 2 days later

was only supported by statements from Mrs Ievers and Ms Redfearn’s step-father, neither of whom ever resided where Ms Redfearn lived and they were only relying on third party feedback to draw this conclusion. None of the co-workers of Ms Redfearn have made sworn statements that Ms Redfearn or Mr Hattingh moved out of their rented home prior to the incident on 20 April 2011.

    The fact is Ms Redfearn and Mr Hattingh did spend the night of 19 April 2011 in their rented home; to the extent it can be inferred from the incident at the airport that the relationship had broken up, it can equally be inferred from the subsequent night spent together that Ms Redfearn and Mr Hattingh were reconciled.

    There is no probative evidence supporting the assertion that Mr Hattingh had received assistance from friends to move out of their rented home prior to the incident. In fact there is no evidence in the Coroner's investigation or in any witness statements supporting the contention that Ms Redfearn and Mr Hattingh were not living together up until the incident; the evidence is all to the contrary.

    In respect of Mr Hattingh's actions after the incident, regard should be had to Mr Hattingh's statutory declaration dated 20 March 2012:

On the date of [Ms Redfearn’s] accident I made a spur of the moment decision to drive from [city] to [city] that afternoon because [Ms Redfearn] was being transferred to the [city] Hospital. I authorised [city] Hospital to transfer [Ms Redfearn] as her de-facto. I opted to drive because there were no available flights leaving that evening and I was desperate to be with her.

He further states:

After [Ms Redfearn's] death I was in a bad way and I could not bear the thought of returning home to [city] without her. I therefore decided to stay in [city] with my family at [address]. My friend, [name], packed up the house at [city] and arranged for my belongings to be returned within a week after [Ms Redfearn's] death. When [name] attended at the house most of [Ms Redfearn's] belongings had been taken and all of our mail and paperwork had been removed by persons unknown but without my consent.

This is consistent with statements made by Mrs Ievers as to the arrangements she made for Ms Redfearn's belongings to be uplifted on the morning of 28 April 2011 by a removal company.

    No sexual relationship existed between Mr Hattingh and another woman prior to Ms Redfearn's death; the suggestion that the number of calls and texts between Mr Hattingh and this other woman, subsequent upon Ms Redfearn's incident, is indicative of a pre-existing affair is inappropriate, unfair and wrong.

    The Trustee queried why Mr Hattingh did not contest Mrs Ievers' Grant for Letters of Administration. A de facto spouse has the highest priority to apply for a Grant of Administration. No request was made to Mr Hattingh to renounce his status in that regard, or consent to the application by Mrs Ievers.

    Mr Hattingh was financially dependent on Ms Redfearn. Ms Redfearn did not have a bank account and all Ms Redfearn's wages were paid into Mr Hattingh's bank account. The fact that Ms Redfearn's pay, due on 19 April 2011, was re-directed into an account of a co-worker of Ms Redfearn in order to facilitate her air travel interstate, is not indicative of anything other than the exigencies of those travel plans.

    Apart from that one wage payment that was paid into that co-worker's bank account, all Ms Redfearn's wages were contributed into Mr Hattingh's account and all monies were used from that account to pay for their joint needs. The Complainant's bank statements and his sworn statements indicate their joint needs included rent, groceries, electricity, credit card repayments and lease repayments on Ms Redfearn's bike.

    Mr Hattingh and Ms Redfearn clearly shared all income and expenses; they resided together in a rented house and only Mrs Ievers contends that they had separated approximately three days prior to Ms Redfearn's death. However, that assertion is not correct; the evidence demonstrates that neither Mr Hattingh nor Ms Redfearn could support themselves, nor pay debts, without the assistance of the other and Mr Hattingh's sworn statements in this regard indicate the parties were mutually committed and supportive of each other. Finally, there is no evidence of any other financial dependent of Ms Redfearn.

    The text messages between Ms Redfearn and Mr Hattingh on the morning of the day of the incident, do not support the proposition that he had once again left her. They represented Ms Redfearn issuing a 'cry for help' and a plea by Ms Redfearn for Mr Hattingh to come home and be with her; in this regard Mr Hattingh asserts:

[Mr Hattingh] stayed with [Ms Redfearn] until 8.30am that morning and went into work late. They were both upset and worried sick about their living arrangements and how they were going to raise the money to pay the rent. [Mr Hattingh] was at work upset about the matter and returned home again to be with [Ms Redfearn] who was also upset. He received a call from his work colleagues and although he wanted to stay with [Ms Redfearn] who had the day off, he had to get back to work. The messages [Ms Redfearn] sent him were a cry for him to come back home from work to be with her. If [Mr Hattingh] had ended the relationship, why did he send her a message saying he loves her and if [Ms Redfearn] had severed the relationship like [Mrs Ievers] suggests, why did she sent [sic] a message saying she loves [Mr Hattingh] and that he has only been the best.

    Having regard to the evidence, the Trustee's decision to pay 100% of the death benefit to Mrs Ievers is wrong and is not fair or reasonable. Payment should have been made to Mr Hattingh as Ms Redfearn's de facto or in the alternative the whole payment or partial payment should have been made to Mr Hattingh as Ms Redfearn's only financial dependant.

18    Ms Ievers also made written submissions, a summary of which appeared in the Tribunal’s reasons (at [25]) as follows:

    The original decision of the Trustee, as confirmed by it on review, to pay 100% of the benefit to Mrs Ievers was correct; by paying the benefit into Ms Redfearn's estate, the opportunity exists for Mr Hattingh's evidence to be tested in a court of law pursuant to the intestacy provisions of succession law.

    The relationship between Ms Redfearn and Mr Hattingh had broken down on 18 April 2011. This is evidenced by Ms Redfearn's distraught condition at work on the morning of 19 April 2011. From Mrs Ievers' experience, such distress could not have been attributable to rent issues, as these had occurred in the past without producing this distress; the level of distress manifested by Ms Redfearn was caused by the breakdown of the relationship between Ms Redfearn and Mr Hattingh on the evening of 18 April 2011.

    In determining a relationship breakdown no single action is indicative. Mrs Ievers submits the following points as indicative of the breakdown in the de facto relationship between Ms Redfearn and Mr Hattingh as from 18 April 2011:

•    [Name] a close friend to [Mr Hattingh] stated that ‘they had had a huge argument the night before (on the 18th April) and things had just been getting worse’ (ref: [name] police statement, point 10).

•    [Ms Redfearn] gave instructions to her employer to change her pay from [Mr Hattingh's] account to ensure that [Mr Hattingh] had no further access to her finances (ref [name] Statutory Declaration).

•    [Mr Hattingh] had taken the bank key-card and Identification [sic] documents from [Ms Redfearn] to prevent her accessing his finances showing he also made a conscious decision to end the financial relationship. (ref: Police file Statutory Declaration - [name] - has two main points: [Ms Redfearn] stayed at [name] Pharmacy on the 19th (not the 20th) because she was too scared to go home and she had no money because [Mr Hattingh] had taken her key card).

•    [Mr Hattingh] applied the same tactic when breaking up with his subsequent girlfriend ([name]), taking her key-card and driver's licence to prevent her accessing his finances (Ref [name's] statement).

•    [Mr Hattingh] left the airport after preventing [Ms Redfearn] from getting into his car, (confirming the breakup), driving away at speed, over the pavement (ref: [name] point 20 to 26).

•    [Ms Redfearn] did not return to her home where [Mr Hattingh] was waiting, she intended to stay over at a friend's house [name] who also washed her work clothes for the next day showing no initial intention of returning to [address] (ref: [name] police statement).

•    [Name] and [Ms Redfearn] were called to the house late in the evening of the 19th April. This would have presented itself to [Ms Redfearn] as an opportunity to try rekindle [sic] the failed relationship - but the failed relationship status did not change (ref: [Ms Redfearn's] texts and other witness statements).

•    [Mr Hattingh] states that [Ms Redfearn] asked him to stay at home on the morning of the 20th April but most of what [Mr Hattingh] has submitted so far has been untrue and contradictory, including that he states that he stayed home until 8.30am - where [Ms Redfearn] in fact phoned [Mr Hattingh's] boss ([name]) who is a [sic] upstanding business owner, before 8.00am, already stressed, asking where [Mr Hattingh] was. - [Name] phoned [name] after this call, at 8.00am saying [Mr Hattingh] was not at work - This shows he left the house long before 8.00am, if he in fact slept there at all. (ref: [name] police statement point 11 - [Ms Redfearn's] call, followed by point 12, [name's] call at 8.00am).

•    There was no indication from [Mr Hattingh] in any of his statements that he had visited the house at 10.30am on the 20th April, one and a half hours before [Ms Redfearn] "allegedly" hung herself, returning to work at 10.45am…crying. ([Name] police statement point 21 to 24) - why should he omit this fact and why should he be crying if nothing was wrong with the relationship.

•    Nobody "supposedly commits suicide" if their relationship was fine, or recoverable.

•    If there was nothing wrong with the relationship, [Ms Redfearn] would not text:

•    Babe I love you so much please do not do this

•    I love and care for you with all my heart

•    Please come home

•    You are my rock and I can not live without you [sic]

•    [Mr Hattingh] I will kill myself if you don't come back I can't do this without you You have so many people who care about you

•    I will never forgive you for leaving me

•    I need you and want to marry you and have a little boy with you and make you proud

•    I love you don't leave me I will not make it past sunset if you don't come home

•    It is all my fault I have ruined you you are such a great person

•    That’s it I don’t have anything to live for don't come into the garage

•    The points above referring to "I love you" and "I want to marry you and have a little boy" is typical of a dejected young girl trying to win back a lost relationship – and not proof that there was nothing wrong with the relationship as [Mr Hattingh's] lawyer tries to imply.

•    [Ms Redfearn] was totally focused on her relationship as shown in her final texts, why would she commit suicide (allegedly) if there was nothing wrong with it.

•    Why would [name] (from whom the police apparently could not obtain a statement) say she was in town the day before (the 19th April) and met [Ms Redfearn] who told her that [Mr Hattingh] had ended the relationship.

•    Why would [Ms Redfearn] tell her mother that the relationship was over.

•    Why would [name] assume that the relationship was over and [Ms Redfearn] was therefore returning to her mother in [city].

•    Witnesses overheard a major argument near the pharmacy on the 19th of April and it was clarified that [Mr Hattingh] had told [Ms Redfearn] "no one likes you, I wish you were dead". (Ref: [name] police statement point 15).

•    Witnesses say that [Mr Hattingh] put the noose up. (How is it possible that [Mr Hattingh] can claim they had a loving relationship?) (ref: [name] police statement point 10 & [name] police statement point 5).

•    Why would [Mr Hattingh] move out of the house before [Ms Redfearn] had even had [sic] died, leaving her personal effects behind. (This can be verified by police phone record in that [Ms Redfearn’s step-father] phoned [name of policeman] and was transferred to the operations desk on the 21st of April requesting that the police stop the removal of [Mr Hattingh's] furniture - where police said they would do a drive-by to keep the boys honest.)

•    This can also be verified by [name] who phoned and informed [Ms Redfearn’s step-father] that the removal was in progress, with her boyfriend [name] being one of the boys moving the furniture.

•    This can also be verified by comparing the dates that [Mr Hattingh] falsely states he moved his furniture and the collection date on [name] invoice where the only items left in the house were [Ms Redfearn's] belongings in the boxes [name] packed - on our request. [Mr Hattingh’s] lawyer also tries to show that his furniture was removed after this collection date in a letter to us…saying that it was stated as such by [name] - where in fact [name] disagrees with this, and denies making such a statement. (ref: [name] letter 8 June 2012 and [name] lawyers 28 April 2014). On asking [Mr Hattingh] at the hospital on the 21st April, why his furniture was being removed, his mother responded that it was because "it ([city]) was an evil place". I don't doubt that the furniture removal may have taken a few days - but it started on the 21st April 2011, while [Ms Redfearn] lay dying in ICU, further showing that the relationship had already ended a few days before.

•    The [city] ICU denied [Mr Hattingh] entrance on the 21st April as they did not believe that a de facto relationship existed at the time.

•    If there was nothing wrong with the relationship, why were there 32 calls between [Mr Hattingh] and his subsequent girlfriend on the 21st April, the preceding 18 hours before she died. ([Name], the person [Ms Redfearn] saw as an immediate threat to her relationship and is it just a coincidence that [Mr Hattingh] and [name] subsequently lived together in a de facto relationship).

•    Why did [name] in her statement say that [Mr Hattingh] had told her that ‘[Ms Redfearn] has done this because he wanted to be with her’ (ref [name's] statement).

•    Why did [Mr Hattingh] tell police officer [name] at the scene that she had done this because he had ended the relationship.

•    [Mr Hattingh] did not participate in, and showed no interest in [Ms Redfearn's] test of life at the [city] ICU.

•    [Mr Hattingh] did not stay for the signing over of her body to the police at the [city] hospital - he had in fact had already left without a care about [Ms Redfearn].

•    The Coroner denied the release of the body to [Mr Hattingh] because he did not believe there was any de facto (sic) relationship at the time of her death.

•    Letters of administration were issued by [city] courts to [Mrs Ievers] as [Ms Redfearn's] closest next of kin - these were neither issued to [Mr Hattingh] nor did he seek to contest the letters.

•    No rent was paid by [Mr Hattingh] as from the date he moved out (21st April) further showing that the relationship had broken down and he had moved out.

•    At no time after her death has [Mr Hattingh] taken on the responsibility of spouse, seeing that the relationship had already ceased, including the payment of any debts ([bank], Electricity [sic] or credit card accounts).

•    [Mr Hattingh] did not attend her funeral or send any message or flowers even though he was invited to do so.

•    [Mr Hattingh] himself states in his declaration that he lived in the house up until her ‘accident’ (which was on the 20th April), further showing he had moved out at that time.

(emphasis in original)

    Mrs Ievers submits Mr Hattingh has an unreliable character and as a result is generally untruthful; therefore his claim that nothing was wrong with the relationship should be considered in that context.

    In respect of financial dependency Ms Redfearn earned far less than Mr Hattingh, who was earning at least 75% of a tradesman's wage in a mining town.

    Mr Hattingh has a lack of evidence and is both unreliable and inconsistent; in this context the Tribunal cannot be satisfied on the evidence currently before it that there was any financial dependency such as would prompt it to pay Mr Hattingh anything.

    Mr Hattingh and Ms Redfearn did not have any joint contracts; on one hand Mr Hattingh asserts he paid for all vehicles and motor bikes, while Ms Redfearn paid for rent, food and services, but subsequently Mr Hattingh asserts that everything was shared. Mr Hattingh seems to want to keep his options open in this regard, but the fact is Ms Redfearn earned far less than Mr Hattingh.

    Mr Hattingh, subsequent to Ms Redfearn's death, made no effort to pay out her credit card, overdrawn bank account or settle the electricity account.

    The relevant time for establishing financial dependency is at the time of Ms Redfearn's death. Prior to her death, the following is evidence that any joint financial arrangements had been terminated:

•    There were no joint contracts.

•    There was no joint bank account as [Mr Hattingh] took away my daughter's bank Card [sic] - This was a unilateral decision by him.

•    As a result of this, my daughter's instruction to her employer were [sic] that her salary was not paid to [Mr Hattingh's] account - this was a unilateral decision by her.

•    [The Complainant] moved out of the house and also removed from the house in the days prior to her death, "his" furniture suggesting that [Ms Redfearn] did not own any of it showing a clear separation of her finances and acquisition of assets.

19    The Trustee also made submissions and all of the parties made responsive submissions.

The Tribunal’s reasoning

20    The Tribunal expressly recognised at [28] that it must determine whether the decision of the Trustee to pay 100% of the benefit arising on the death of Ms Redfearn to Mrs Ievers was fair and reasonable in its operation in relation to Mr Hattingh in the circumstances. The issue was 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.

21    In its central deliberations, the Tribunal noted (at [29]) that it was common ground that prior to 18 April 2011 for somewhere between three to five years, Ms Redfearn’s relationship with Mr Hattingh was that of a person who, as described in s 10 of the SIS Act:

… although not legally married to the person, lives with a person on a genuine domestic basis in a relationship as a couple.

22    The Tribunal said (at [30]), because of this relationship, Mr Hattingh was Ms Redfearn’s spouse and accordingly her sole dependant. This meant that if, in a hypothetical scenario during the agreed relationship period, Ms Redfearn had died of natural causes or an accident, then Mr Hattingh, as her sole dependant, would have had a legitimate expectation, having regard to the nature and purpose of superannuation, of the Trustee exercising its discretion and distributing the entirety of her superannuation benefit to him, notwithstanding the existence of a legal personal representative. Moreover, that legitimate expectation would have existed irrespective of evidence being adduced that the relationship was arguably an abusive one from Ms Redfearn’s perspective. The Trust Deed also adopted the SIS Act definition of ‘spouse’ in respect of the payment of death benefits, relevantly mandating that the Trustee must pay the benefit to such of the member’s dependants or legal personal representative, in such proportions as the Trustee determines.

23    The Tribunal noted (at [32]) that, notwithstanding the Trustee’s discretion in respect of a proportional distribution of the benefit between an identified dependant and the legal personal representative, when considering the nature and purpose of superannuation, the central question remained: who had the right to look to Ms Redfearn for ongoing financial support had she not died? In the agreed relationship period it was clear that Mr Hattingh, as her spousal dependant, had the sole right to look towards his spouse Ms Redfearn for ongoing financial support. The Tribunal considered (at [32]) that it was therefore more likely than not that, in the agreed relationship period, pursuant to the Tribunal’s scenario, the Trustee would have elected to pay 100% of the benefit to Mr Hattingh.

24    The Tribunal noted (at [33]), however, that both the Trustee and Mrs Ievers argued that immediately prior to the incident on 20 April 2011, Mr Hattingh had irrevocably ended his de facto relationship with Ms Redfearn such that at the time of her death two days later, he was no longer a spousal dependant.

25    The Tribunal said (at [33]):

Commonsense and the law dictate that those who would seek to deny, what had previously been accepted by them as a fact, must bear the responsibility of proving their contention in this regard. As the Trustee had to satisfy itself on this score, so as to determine how it would distribute [Ms Redfearn’s] benefit, it is appropriate for the Tribunal to primarily concern itself with the reasoning employed by the Trustee in coming to the conclusion the relationship had ended.

26    In this regard the Trustee had stressed in its submissions (recorded at [34] of the Tribunal’s decision) that the evidence presented by each party appeared to be self-supporting and predisposed to his or her own claim and at the same time was contradictory to the other party’s claim. It was unclear whether the relationship actually continued at the date of death, or whether the relationship was expected to continue had Ms Redfearn not died. The Trustee had therefore turned to the ‘objective, independent, and contemporaneous evidence’ to best determine whether a de facto spousal relationship continued as at the date of death. The Trustee nominated the police interview of Mr Hattingh, police investigation reports and the Coroner’s investigation reports as the sources for its evidence. The Trustee was satisfied the evidence presented persuasively supported that Ms Redfearn had severed any and all financial support to Mr Hattingh on the day before the incident, that they had publicly argued and possibly terminated their relationship on that day before the incident, that they then amicably and civilly discussed their relationship issues on the evening of that day before the incident, and then argued again and confirmed the termination of their relationship on the following day (the day of the incident). The Trustee found that Ms Redfearn had then threatened self-harm, attempted suicide due to the terminated relationship and subsequently died from those injuries. On that basis, the Trustee had concluded that Mr Hattingh was not to be regarded as a dependant of Ms Redfearn, either as her de facto spouse or interdependent.

27    The Tribunal noted (at [36]) that the Trustee had nominated 19 April 2011, that is, the day before the incident, as the starting point for the possible termination of the relationship. It then proceeded to examine the text messages, details of telephone conversations and other documentary evidence during this period. The Tribunal had regard to the Trustee’s reference to Mr Hattingh’s police interview on which the Trustee had first relied as being objective independent evidence. The Tribunal said (at [38]) that it had carefully perused the interview and could find nothing which indicated that Mr Hattingh considered the relationship had terminated, either from his perspective or from that of Ms Redfearn. The position was the same in relation to the police investigation reports, according to the Tribunal. The Trustee had also nominated police investigation reports (which the Tribunal took as being the file) entitled ‘Summary of Findings of Investigation’ in which the following was recorded:

Evidence of Co-dependency

…

There are definite signs of codependency in the relationship between [Ms Redfearn] and [Mr Hattingh]. It appears that [Ms Redfearn] played a passive role in the relationship generally agreeing to make [Mr Hattingh] happy.

[Mr Hattingh] appears to have been very controlling of [Ms Redfearn] making her walk to and from work daily and refusing to accept lifts in the rain because she wasn’t allowed.

History of Domestic Violence/Mental Illness

[Ms Redfearn] and [Mr Hattingh] had no police history of domestic violence in their relationship and police have never been called to any disturbances between the couple at any address known to police. [Ms Redfearn] did not have any history of mental health issues including self harm.

…

The information in relation to the tying of the noose the night before relates directly to a suggestion that [Mr Hattingh] was contemplating suicide. There is no information that [Mr Hattingh] tied the noose in order to assist in the suicide of [Ms Redfearn].

Summary

…

Evidence from witnesses reveals that leading up to her death, [Ms Redfearn] was involved in a relationship with [Mr Hattingh] which involved elements of escalating domestic violence. This was never brought to the attention of police, nor did [Ms Redfearn] seek to obtain a domestic violence order by private application. The relationship between [Ms Redfearn] and [Mr Hattingh] quite possibly played a part in the mind of [Ms Redfearn] leading up to her death.

…

28    The Tribunal (at [40]) was of the view that none of the material referred to by the Trustee would lead an objective reader to conclude that the police believed that the relationship had terminated at the time of the incident.

29    The Tribunal (at [41]) also examined the Coroner’s investigation report, relied upon by the Trustee, and was satisfied that there was nothing in the Coroner’s file revealing the Coroner’s thoughts on whether the relationship had ended at the time of the incident. Although, the Coroner’s remarks in a letter from the Coroner to Mrs Ievers and Ms Redfearn’s step-father declining to conduct an inquest into Ms Redfearn’s death presented Mr Hattingh in an adverse light, as the Tribunal recognised (at [42]), with the Coroner believing that Ms Redfearn would have been better served by not being in the relationship with him. But, notwithstanding this, the Tribunal noted (at [42]) that nothing in the Coroner’s observations supported a conclusion that the relationship had finished at the time of Ms Redfearn’s death.

30    The Tribunal (at [43]) broadly agreed that the submissions on behalf of Mrs Ievers and Mr Hattingh appeared to be self-supporting and predisposed to their own claim, but, in particular, considered (at [45]) the material advanced by Mrs Ievers did not convince it on the balance of probabilities that Mr Hattingh had terminated the relationship. The Tribunal paid particular regard to Mrs Ievers’ assertions in respect of Ms Redfearn’s text messages to Mr Hattingh between 11.43am and 11.47am on the morning of the incident (as stated at [45]). The Tribunal accepted (at [45]) that those messages certainly indicated that Ms Redfearn felt something was wrong with the relationship but that did not mean that either party had ended the relationship. The Tribunal therefore said (at [46]) that it followed from this that it did not consider it ‘fair or reasonable’ for the Trustee to conclude that at the time of Ms Redfearn’s death Mr Hattingh was no longer in a de facto spousal relationship with her such that he was no longer a dependant.

31    The Tribunal (at [47]) concluded on the balance of probabilities that Mr Hattingh was still in a de facto spousal relationship with Ms Redfearn at the time of her death and, accordingly, was her sole dependant. Consequently, for the purposes of the Trust Deed and the SIS Act, it was unnecessary for the Tribunal to determine whether an interdependency relationship also existed in the last two and half days prior to the incident. However, as it had existed prior to that time, nothing in the material advanced by the Trustee or Mrs Ievers had demonstrated to the Tribunal that it ceased in the period immediately prior to the incident.

32    The Tribunal also had to deal with the question of whether the benefit should be distributed entirely to Mr Hattingh or whether it should be shared with Mrs Ievers. It concluded (at [49]) that there was no rational basis to award any percentage of the benefit to Mrs Ievers, given that Mr Hattingh was Ms Redfearn’s sole dependant and having regard to the nature and purpose of superannuation and who had a right to look to her for ongoing financial support.

33    The Tribunal made its determination accordingly.

QUESTIONS OF LAW

34    There are said to be eight questions of law arising on the appeal. Those questions of law are as follows:

1.    On the proper construction of the SunSuper trust deed, as varied (Trust Deed) and sections 14(1) and 37(5) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (Complaints Act), is it beyond the Tribunal's power (jurisdiction) to review a decision of the Trustee not to accept that a person is a Dependant (as defined) on the grounds that:

(a)    the Tribunal's determination that a person is a Dependant and, as such, has a beneficial interest in a Death Benefit involves a purported exercise of judicial power; and (or)

(b)    such a decision of the Trustee was not a decision made in relation to [Ms Redfearn], as a former member of a regulated superannuation fund.

2.    On the proper construction of the Trust Deed and section 15(1) of the Complaints Act, is the question of whether a person is a Dependant (as defined) a jurisdictional fact that is a precondition to the exercise of the Tribunal's power and, if so, was [Mr Hattingh] [Ms Redfearn’s] Dependant on the date of her death.

3.    Assuming the Tribunal to have power and jurisdiction to review the Trustee's decision in this case, on the proper construction of the Complaints Act and Trust Deed, what was the function of the Tribunal on review of the Trustee's decision to distribute 100% of the Death Benefit to the Personal Representative [Mrs Ievers].

4.    On the proper construction of the Trust Deed, what is the meaning of Dependant and what are the relevant considerations to be taken into account when determining if a person is a Dependant.

5.    On the proper construction of the Complaints Act and the Trust Deed, what were the correct questions the Tribunal was called upon to consider when determining if the Trustee's decision was unfair or unreasonable.

6.    Was the Trustee's decision to distribute 100% of the Death Benefit to the Personal Representative [Mrs Ievers] one that involved the exercise of discretion such that the Tribunal could set aside and substitute a determination involving the exercise of a discretion to distribute 100% to [Mr Hattingh] and, if so, was such a substituted determination within the boundaries of the Tribunal's determination-making power under section 37(4) of the Complaints Act.

7.    What are the Tribunal's obligations, if any, to accord parties procedural fairness on review of a trustee's decision and was the Personal Representative [Mrs Ievers] accorded procedural fairness insofar as the Tribunal determined to substitute the Trustee's decision with a determination to distribute 100% of the Death Benefit to [Mr Hattingh].

8.    On the proper construction of the Complaints Act and the Trust Deed, what were the correct questions and relevant matters the Tribunal was called upon to consider when determining if the decision to distribute 100% of the Death Benefit to the Personal Representatives [Mrs Ievers] was unfair or unreasonable.

GROUNDS OF APPEAL

35    Mrs Ievers relies on the following grounds of appeal:

1.    The presiding member of the Tribunal (Presiding Member) erred in law in concluding, on the balance of probability, that [Mr Hattingh] was in a de facto spousal relationship with [Ms Redfearn] at the time of her death and accordingly [Mr Hattingh] was her sole dependent [sic] (RFD [47]), whereas the question of whether [Mr Hattingh] was in fact and in law a Dependent [sic], within the meaning of that expression in the Trust Deed, was beyond the power of the Presiding Member, in that:

(a)    if the Trustee distributed any sum of the Death Benefit to [Mr Hattingh] and he was not in fact and in law a Dependent [sic], within the meaning of that expression in the Trust Deed, such distribution would be contrary to law and (or) the governing rules of the fund concerned and contrary to section 37(5) of the Complaint Act [sic];

(b)    the Presiding Member's determination required the Trustee to distribute 100% of the Death Benefit to [Mr Hattingh];

(c)    the Presiding Member's determination implicitly determined that such a distribution was not contrary to law and (or) the governing rules of the fund concerned and that [Mr Hattingh] was in fact and in law a Dependent [sic] of [Ms Redfearn] at the date of her death;

(d)    thus, the Presiding Member purported to exercise judicial power and determine the legal rights between [Mrs Ievers], [Mr Hattingh] and Trustee inter se and not merely review the exercise of a power, obligation or discretion conferred on the Trustee; and (or)

(e)    the Trustee's decision not to accept that [Mr Hattingh] was [Ms Redfearn's] Dependant (as defined) was not a decision made in relation to [Ms Redfearn] for the purposes of section 14(1) of the Complaints Act, but a decision made in relation to [Mr Hattingh] (i.e., [Mr Hattingh’s] legal rights).

2.    In the alternative to ground 1 above, the Presiding Member erred in law in determining as a jurisdictional fact that [Mr Hattingh] has an interest in the Death Benefit when, on the information before the Presiding Member, and by the matters set out in grounds 4 - 5 below, she should have determined that she was not satisfied that [Mr Hattingh] was a Dependant (as defined) and, therefore, that he had an interest in the Death Benefit within the meaning of section 15(1) of the Complaints Act.

3.    In the alternative to grounds 1 - 2 above, the Presiding Member erred in law in concluding that, on the balance of probability, [Mr Hattingh] was in a de facto spousal relationship with [Ms Redfearn] at the time of her death, accordingly [Mr Hattingh] was her sole dependent [sic] and, following from that, it was not fair or reasonable for the Trustee to conclude to the contrary (RFD [46]-[47]), by misdirecting herself as to the correct question and having regard to the incorrect question, in that:

(a)    the Presiding Member incorrectly directed herself to determine what conclusion she would have reached on the available information;

(b)    the correct questions were:

(i)    what findings of fact should be made on the available information; and,

(ii)    having regard to those findings of fact, was the decision of the Trustee was [sic] fair and reasonable; [and]

(c)    in substance, the Presiding Member erroneously determined what she considered to be the preferable outcome, rather than considering if the Trustee's decision was unfair or unreasonable.

4.    Further, the Presiding Member erred in law in concluding that, on the balance of probability, [Mr Hattingh] was in a de facto spousal relationship with [Ms Redfearn] at the time of her death and accordingly was her sole dependant (RFD [47]), by failing to have regard to relevant considerations, in that:

(a)    on the proper construction of the Trust Deed, on the death of the Decease [sic] Member the Trustee was obliged to pay the Death Benefit to [Ms Redfearn's] Dependents [sic] (as defined) or Legal Personal Representative (as defined) [Mrs Ievers], in such proportions as the Trustee determined (cl. 11.8(a));

(b)    on the proper construction of the Trust Deed, a Dependent [sic] included a person who, although not legally married to [Ms Redfearn], lived with [Ms Redfearn] on a genuine domestic basis in a relationship as a couple and a person in a genuine Interdependency Relationship (as defined in section 10A of the Superannuation Industry (Supervision) Act 1993 (Cth) (Supervision Act));

(c)    on the proper construction of the Trust Deed, a person that was physically violent and (or) abusive towards another person and (or) exercised control over that other person, although living with that other person, may not be so living on a genuine domestic basis in a relationship as a couple or in an Interdependency Relationship with that other person;

(d)    on the proper construction of the Trust Deed, a person who was living with another person on a genuine domestic basis as a couple or was in an Interdependency Relationship with that other person may have ceased to live with that other person in such a relationship if, although continuing to live with that other person, there had been a separation from that other person in the sense of a departure from the pre-existing state of things rather than a departure from a particular place;

(e)    there was evidence to the effect that [Mr Hattingh] was physically violent and abusive towards and exercised control over [Ms Redfearn];

(f)     there was evidence to the effect that [Mr Hattingh’s] conduct towards [Ms Redfearn] over a number of years and in the days immediately preceding her death caused or contributed to her suicide;

(g)    there was evidence that from mid-March 2011 to 22 April 2011 there had been a departure from the state of things as had pre-existed in the relationship between [Mr Hattingh] and [Ms Redfearn] before mid-March 2011;

(h)    the Presiding Member found that there was evidence that suggested, from [Ms Redfearn's] viewpoint, that she had an ‘unsatisfactory relationship’ with [Mr Hattingh] at or about the date of her death (RFD [40]);

(i)    the Presiding Member found that [Ms Redfearn's] text messages of 20 April 2011 certainly indicated that [Ms Redfearn] ‘felt something was wrong with the relationship’ (RFD [45]);

(j)    the Presiding Member found that there was evidence to the effect that the Coroner considered that ‘relationship breakdown’ had contributed to [Ms Redfearn] taking her own life (RFD [41]); and

(k)     the Presiding Member erroneously failed to have regard to any of the matters referred to in grounds 4(d) - (j) when determining if [Mr Hattingh] was or remained a Dependant of [Ms Redfearn] as at the date of her Death.

5.    Further, the Presiding Member erred in law in concluding that, on the balance of probability, [Mr Hattingh] was in a de facto spousal relationship with [Ms Redfearn] at the time of her death and accordingly was her sole dependant (RFD [47]), by misdirecting herself as to the correct questions and having regard to the incorrect questions, in that:

(a)    the Presiding Member incorrectly assumed, without making appropriate findings of fact and applying the correct legal test to those facts, that for three to five years before 18 April 2011 [Mr Hattingh], although not legally married to [Ms Redfearn], lived with her on a genuine domestic basis in a relationship as couple and as such was a Dependant of [Ms Redfearn] during that period (RFD [29]);

(b)    the Presiding Member incorrectly considered that it was for the Trustee and [Mrs Ievers] to prove that [Mr Hattingh’s] assumed status as Dependant ended on 20 April 2011 (RFD [33]);

(c)    the Presiding Member incorrectly considered that, as the Trustee had to satisfy itself that [Mr Hattingh’s] assumed status as Dependant had ended on 20 April 2011, it was appropriate for the Presiding Member to concern herself with the reasoning employed by the Trustee in coming to the conclusion that the relationship had ended (RFD [33]);

(d)    the Presiding Member incorrectly considered, as a material consideration, if the material relied on by the Trustee would lead an objective reader to conclude that the police believed the relationship had terminated at the time of the incident, either from the perspective of [Mr Hattingh] or [Ms Redfearn] (RFD [40]);

(e)    the Presiding Member incorrectly considered that the [Mrs Ievers] was required to reasonably prove that [Mr Hattingh] had irrevocably terminated the relationship (RFD [44]);

(f)     the Presiding Member incorrectly considered, as a material consideration, if the material advanced by [Mrs Ievers] convinced her, on the balance of probability, that [Mr Hattingh] had terminated the relationship (RFD [45]);

(g)    the Presiding Member incorrectly considered, as a material consideration, if a relationship between [Mr Hattingh] and [Ms Redfearn] existed on 22 April 2011 (RFD [40], [42], [45]); and

(h)    the correct question for the Presiding Member's consideration was whether, having regard to all the evidence, including the matters referred to in grounds 4(a) – (j) [Mr Hattingh] was a Dependant (as defined) of [Ms Redfearn] on 22 April 2011 (the date of [Ms Redfearn's] death).

6.    In the alternative to grounds 1 - 5 above, the Presiding Member erred in law in setting aside the Trustee's decision and substituting it with a determination to distribute 100% of the Death Benefit to [Mr Hattingh] (RFD [49]), by purporting to exercise her determination-making power in excess of that required for the purpose of placing [Mr Hattingh] as nearly as practicable in such a position that the unfairness or unreasonableness, or both, no longer existed, in that:

(a)    the Presiding Member determined that it was unfair and unreasonable for the Trustee to conclude that at the time of [Ms Redfearn's] death, [Mr Hattingh] was no longer in a de facto spousal relationship with [Ms Redfearn] and consequently was not a Dependent [sic] (as defined) (RFD [46]);

(b)    as a consequence of the Trustee's decision not to accept that [Mr Hattingh] was a Dependant of [Ms Redfearn], under the terms of the Trust Deed, the Trustee was obliged to pay 100% of the Death Benefit to [Mrs Ievers] (c1.11.8(a)(iii));

(c)    thus, the Trustee's decision to distribute 100% of the Death Benefit to [Mrs Ievers], was not a decision involving the exercise of a discretion; and

(d)    the relevant unfairness or unreasonableness would be practicably removed by remitting the matter to the Trustee to reconsider the distribution of the Death Benefit on the basis that [Mr Hattingh] was a Dependent [sic] of [Ms Redfearn] as of 22 April 2011.

7.    In the alternative to grounds 1 - 6 above, the Presiding Member erred in law in concluding that there was no rational basis, within the superannuation context, to award a percentage of the benefit to [Mrs Ievers] (RFD [49]), by failing to accord [Mrs Ievers] procedural fairness in that the Presiding Member did not provide [Mrs Ievers] with a reasonable opportunity to make submissions and adduce evidence on the question of whether there was a fair and reasonable basis to apportion the Death Benefit between [Mr Hattingh] and [Mrs Ievers].

8.    Further, the Presiding Member erred in law in concluding that there was no rational basis, within the superannuation context, to award a percentage of the benefit to [Mrs Ievers] (RFD [49]), by misdirecting herself as to the correct question, having regard to the incorrect question and failing to have regard to relevant considerations, in that:

(a)    the correct question was if, having regard to the Presiding Member's findings of fact, the decision of the Trustee to distribute 100% of the Death Benefit to [Mrs Ievers] was unfair or unreasonable;

(b)    the matters referred to in grounds 4(a) – (j) were relevant to the question of the degree of permanence and interdependence of the relationship between [Mr Hattingh] and [Ms Redfearn] and the extent to which there was a reasonable expectation and likelihood of [Mr Hattingh] sharing in [Ms Redfearn's] benefits on her retirement;

(c)    [Ms Redfearn] had not nominated a person to whom the Death Benefit should be paid and had not made a will from which her testamentary intention could be identified or inferred;

(d)    if [Mr Hattingh] was [Ms Redfearn's] de facto spouse in fact and in law as at the date of [Ms Redfearn's] death, [Mr Hattingh] would have a right receive [sic] a distribution from [Ms Redfearn's] estate, including any proportion of the Death Benefit paid [sic] [Mrs Ievers];

(e)    the matters in grounds 8(b) - (d) were relevant considerations in determining if the distribution of 100% of the Death Benefit to [Mrs Ievers] was unfair or unreasonable and, in any event, in determining what amount, if any, to distribute to [Mr Hattingh] to remove as far as practicable any unfairness or unreasonableness; and

(f)    the Presiding Member erroneously failed to consider the ground 8(a) or have regard to the matters in grounds 8(b) - (e) above, when determining that the Trustee was to distribute 100% of the Death Benefit to [Mr Hattingh].

(emphasis in original.)

MRS IEVERS’ ARGUMENTS

An overview

36    It is contended that the Tribunal committed jurisdictional error in that it had no jurisdiction or power to review the Trustee’s conclusion that Mr Hattingh was not a dependant and to substitute that conclusion with a determination under the Complaints Act. Further, it is argued that the Tribunal exceeded its jurisdiction because on the available information it should not have concluded that Mr Hattingh was a dependant. It is argued that Mr Hattingh’s status as a dependant was a jurisdictional fact and therefore the determination it made that the Trustee distribute the death benefit to him was contrary to law and the terms of the Trust Deed. Those matters are agitated in grounds one to three of the appeal grounds.

37    It is also said that the Tribunal committed jurisdictional error in that it misconstrued the terms of the Trust Deed and Complaints Act. As a result, when considering if Mr Hattingh was a dependant the Tribunal failed to have regard to relevant considerations and asked itself the wrong questions regarding the issues which it was called upon to determine. Further, it is argued that, in any event, it exceeded the limit of its jurisdiction by making a determination that it was unnecessary to remove unreasonableness and unfairness of the Trustee’s decision. To remove the relevant unreasonableness and unfairness, it is contended that the matter should have been remitted to the Fund for reconsideration on the basis that Mr Hattingh was a dependant. Those matters are agitated in appeals grounds four to six.

38    Finally, it is said that in determining to substitute a decision requiring the Trustee to distribute the entire death benefit to Mr Hattingh, the Tribunal failed to accord Mrs Ievers procedural fairness. This is said to be because it failed to give Mrs Ievers an opportunity to be heard on the appropriate apportionment of the death benefit in the event that it was accepted that Mr Hattingh was a dependant. Further, it is said that the Tribunal failed to have regard to relevant considerations when determining that the entire death benefit should be distributed to Mr Hattingh. Those matters are canvassed in appeal grounds seven and eight.

39    Although the parties made detailed submissions about the jurisdictional limits of the Tribunal and the proper construction of the Trust Deed, there was little between them in these matters. Section 14 of the Complaints Act provides for a person to make a complaint to the Tribunal regarding a decision of a trustee in relation to a regulated superannuation fund which they believe was unfair or unreasonable. The Tribunal in considering such a matter is not bound by rules of evidence (see s 36(a) of the Complaints Act). It is common ground, of course, that an appeal lies to this Court from a determination of the Tribunal on ‘a question of law’ (see s 46(1) of the Complaints Act).

40    Mr Hattingh submits that the only questions of law properly arising are:

(1)    whether the Tribunal had power to determine that he was the de facto of Ms Redfearn at the time of her death and, if so, whether there was sufficient probative evidence available to support that finding; and

(2)    having made that determination, was the Tribunal empowered to determine that the Trustee should distribute 100% of the benefit to Mr Hattingh.

41    In my view, and with due respect to the more complex jurisdictional arguments advanced for Mrs Ievers, the matter is not much more complex than that. But Mrs Ievers contends that the Tribunal had no jurisdiction (power) to determine in fact and in law whether Mr Hattingh was a ‘dependant’ within the meaning of that expression in the Trust Deed. Such a determination would involve the purported resolution of Mr Hattingh’s right to be considered for payment of the death benefit as an object of the power of the Trustee under the Trust Deed. To do so would involve a purported determination of rights as between Mrs Ievers, Mr Hattingh and the Fund, which is not a purpose or object of a review under s 14 of the Complaints Act.

42    Mrs Ievers argues that Mr Hattingh’s status is only capable of final and conclusive determination by a court, not the trustee or the Tribunal. Any determination that requires a payment to be made to him in breach of a trust would not be a valid determination. Thus, the Tribunal would have no jurisdiction (power) to make such a determination.

43    For the reasons that follow, I am not persuaded as to these arguments on behalf of Mrs Ievers. The Tribunal stands in the shoes of the Trustee. It has to determine whether the whole decision is fair and reasonable. In this case it reached a conclusion that the decision was not fair and reasonable by comprehensive analysis of all of the available evidence, which enabled the Tribunal to reach a conclusion which happened to be diametrically opposite to that of the Trustee. It necessarily follows that the Trustee’s decision as viewed by the Tribunal could not have been fair and reasonable. Further, there was ample support for that conclusion.

Grounds one to three – excess of jurisdiction

44    Mrs Ievers contends that neither the Trustee or the Tribunal had any power, obligation or discretion to determine whether Mr Hattingh was a dependant within the meaning of the Trust Deed. Such a determination does not involve the exercise of the powers, obligations and discretions of the Trustee, Mrs Ievers argues.

45    In my view, the Tribunal did have power to determine that Mr Hattingh was the de facto spouse of the deceased member, Ms Redfearn. This is the very issue it was asked by the protagonists to decide and was the issue it necessarily had to determine to consider the reasonableness and fairness of the Trustee’s decision. The Trustee and the Tribunal need to form a view as to whether a person qualifies and to make decisions about allocation of the benefits of the Fund in accordance with those views.

46    That accords with the obligations in cl 6.1(t) of the Trust Deed. The Tribunal steps into the shoes of the Trustee to consider all the evidence produced, including by Mr Hattingh, being the person claiming entitlement (see cl 11.16 of the Trust Deed set out above at [8]). Clause 6.1(t) provides that the Trustee has the power of ‘determining as and when the need arises, who are Dependants of a deceased Member [.]’

47    The Tribunal gave comprehensive reasons for arriving at its conclusion, reasons which were entirely consistent with the submissions advanced to it, none of which (as I read them) suggested that it would be acting outside its jurisdiction or power to resolve the question of whether Mr Hattingh was in a de facto relationship with Ms Redfearn at the relevant time.

48    Mrs Ievers made submissions (encapsulated in ground 4(g) of this appeal) to the effect that there had been a departure from the state of things as had pre-existed in the relationship between her daughter and Mr Hattingh before mid-March 2011. However, there were a number of statements that the relationship was ongoing beyond mid-March 2011, including a statement in her submission to the Tribunal that the relationship broke down on 18 April 2011, and to the Coroner that it ended on the morning of 19 April 2011, and the statement in a text message to Ms Redfearn sent at 6.56am on the morning of her attempted suicide which said:

I still cant believe that you chose to stay with an ahole that knocks you around over a week visiting me. How do I forgive you for that? I will be delivering an eviction notice to [Mr Hattingh] at work for non payment of rent.

49    The submissions of the parties before the Tribunal were all entirely focused on the question of whether the relationship was continuing at the material time. This was essential to establish whether the decision of the Trustee was fair and reasonable, which required an evaluation of all of the information.

50    On ground two, Mrs Ievers argues that even if the Tribunal had power or jurisdiction to form an opinion as to whether Mr Hattingh was a dependant, it did not have jurisdiction or power to form the opinion wrongly. That is, if Mr Hattingh is not a dependant, the Tribunal had no jurisdiction to make a determination that would result in the Tribunal doing something that was contrary to law or the Trust Deed under s 37(5) of the Complaints Act. Accordingly, Mr Hattingh’s status as a dependant is a precondition to the exercise of the Trustee’s power (and therefore the Tribunal’s power) to make a decision to pay the death benefit to Mr Hattingh. That is, it is a jurisdictional fact that must exist objectively in order for the Tribunal’s purported exercise of legislative power to be valid. Mrs Ievers submits that the Court is entitled (and must) consider the material before the Tribunal and form a view as to whether, on the basis of that material, it should be concluded that Mr Hattingh is a dependant. On the basis of the material before the Tribunal, Mrs Ievers argues that it should be concluded that Mr Hattingh was not a dependant. She says the Tribunal should not have been satisfied that he was, as at the date of death.

51    In my view, this argument, in substance, seeks to advance a merits review. This is not a course that is open. There was a careful evaluation of all the facts and materials before the Trustee in the Tribunal, and the Tribunal reached a different view on the very question which it was tasked with determining.

52    That said, and to respond to ground two, in my view the Tribunal was correct in concluding that Mr Hattingh was a dependant at the time of death. Despite the disharmony, altercations and grievances in the period immediately leading up to the death, they were still unfortunately very much fighting over the matters that people in a relationship may fight about, including whether or not the relationship could continue. People do not fight about that topic if it is clear that the relationship is over.

53    As to ground three, which again challenges the finding, Mrs Ievers argues that the Tribunal approached the review of the Fund’s decision to pay the death benefit to her by asking the wrong question. She contends that the question should not have been whether it was unreasonable or unfair of the Trustee to conclude that Mr Hattingh was not a dependant. Rather, the correct question, according to Mrs Ievers, was whether the decision to pay the entire death benefit to Mrs Ievers as Ms Redfearn’s legal personal representative was unreasonable or unfair in its operation in relation to Mr Hattingh. Mrs Ievers argues that, within that framework, the Tribunal should have considered and made such findings of fact as were necessary to form a view as to the manner in which the death benefits should be paid, and then, in that context, consider if the Trustee’s decision was unfair or unreasonable.

54    These arguments are difficult to follow. In my view, the relevant question for the Tribunal was whether the decision of the Trustee was fair and/or reasonable or alternatively, unfair and/or unreasonable considering the matter expressly argued by the parties, namely, whether Mr Hattingh was the de facto of Ms Redfearn at the date of her death. If the Tribunal concludes on available evidence that the decision was unfair or unreasonable considering such matters, then the next question for the Tribunal is whether it was a proper exercise of discretion in awarding the entire benefit to Mr Hattingh or whether some of it should be apportioned to any other person claiming a benefit from the Fund.

55    The Tribunal clearly explained why it reached its conclusion. Mr Hattingh was the only person who had a claim and an entitlement in respect of Ms Redfearn’s death benefit. Once it is accepted that he was a de facto, there is no obligation under the Trust Deed for the Trustee to receive further competing submissions on the question of how the funds should be allocated. Similarly, there is no obligation to that effect on the part of the Tribunal. If Mrs Ievers is arguing that the Tribunal should have remitted the matter back to the Trustee to assess the amount to be awarded, this is not a statutory requirement. In any event, it was always a discretionary consideration and the discretions of the Trustee are imported into the powers of the Tribunal by virtue of s 37(1)(a) of the Complaints Act which stipulates that the Tribunal has all the powers, obligations and discretions conferred on the Trustee. There was no reason for the Tribunal to send the matter back after receiving lengthy submissions on the topic and giving detailed reasons why it exercised its discretion as it did.

56    One of the reasons advanced by Mrs Ievers for the Tribunal to remit the matter to the Trustee was the ‘uncertainty regarding Mr Hattingh’s status’. The Tribunal, for good reason, had no uncertainty and exercised its discretion so as to achieve finality in accordance with the powers it was given under the Complaints Act.

57    Grounds 1, 2 and 3 are not made out.

Grounds four to six – jurisdictional errors of law

58    Mrs Ievers argues that on a proper construction of the Trust Deed, a dependant includes a person who, although not legally married to Ms Redfearn, had lived with her on a genuine domestic basis in a relationship as a couple and a person in an ‘interdependency relationship’ where one or each of them provides the other with support and care of a type and quality normally provided in a close personal relationship, ‘rather than by a mere friend or flatmate’. Mrs Ievers draws on cl 1.1 and cl 1.2 of the Trust Deed, ss 10 and 10A of the SIS Act, and r 1.04AAAA of the SIS Regulations.

59    By this ground, Mrs Ievers argues that on a proper construction of the Trust Deed and the relevant superannuation legislation a person who is physically violent towards another, who exercises control over another and is abusive towards another while living with that person may not be living in a genuine domestic basis in a relationship as a couple or in a interdependency relationship providing support and care of a type and quality normally provided in a close personal relationship. Mrs Ievers points to detailed evidence in a body of material provided to the Court on this appeal which would unfortunately enable a conclusion to be reached that Mr Hattingh was physically violent and abusive towards Ms Redfearn.

60    It is said this conduct continued over many years and in the days preceding her death caused or contributed to her suicide.

61    It is argued that these were relevant considerations and the Tribunal failed to have regard to any of these matters when determining whether Mr Hattingh was a dependant, thus resulting in a misconstruction of the Trust Deed by the Tribunal and an error of law.

62    Reliance is also placed on evidence that there had been a departure from the state of things as they had existed previously in the relationship, as at the date of death. Mrs Ievers actually points to specific findings by the Tribunal, such as (at [41]) the finding that ‘relationship breakdown’ contributed to Ms Redfearn taking her own life and (at [45]) that certain text messages indicated that Ms Redfearn ‘felt something was wrong with the relationship’.

63    Mrs Ievers argues that the Tribunal incorrectly assumed, without making any relevant findings of fact, that for three to five years before 18 April 2011 Mr Hattingh, although not legally married to Ms Redfearn lived with her in a genuine domestic basis in a relationship as a couple, and as such, was a dependant as at the relevant date. This, it is said, was an error of law because the Tribunal failed to make any findings supporting the conclusion reached. Alternatively, it was an error of law on the basis of inadequate reasons.

64    It is argued that the Tribunal was also incorrect to conclude that Mrs Ievers or the Fund carried the onus of proving that an assumed de facto spousal relationship had terminated. Indeed, Mrs Ievers argues that the onus under the Trust Deed and in a practical sense was on Mr Hattingh to demonstrate that he was a dependant.

65    The submissions on these grounds cannot be accepted for a number of reasons, not the least of which was that the Tribunal found only that in the particular circumstances where there had been previous admissions as to the existence of a relationship, there was an onus to demonstrate why that circumstance had changed. This was simply a practical observation. It cannot be (and is not) the subject of criticism as a ground of appeal as such. The point was not raised by the Tribunal as a technical onus of proof issue. The observations concerning onus were only directed at searching for some explanation as to why there was a complete change in position being adopted by Mrs Ievers. This is a reasonable and ‘practical’ question as the Tribunal noted. The difficulty is that as Mrs Ievers argues the abuse had continued for some years and was still continuing, she was in effect proving the existence of the relationship, albeit not perhaps always a good or happy relationship.

66    What Mrs Ievers really wants to say, it seems, is that Mr Hattingh deserves nothing because of the way he treated her daughter. One can appreciate this sentiment, but it was not the issue for determination by the Tribunal.

67    All these submissions are really merits challenges. It was entirely open for the Tribunal to approach the evidence about violence and abuse in the manner that it did and to take into account to the extent it considered to be the case, the self-serving nature of the hearsay and unsubstantiated assertions on that topic. The simple fact of the matter is that the Tribunal examined the evidence advanced on that topic and most importantly gave consideration to what weight it should be given and reached the conclusion, manifestly a factual conclusion, which is not open to challenge on this appeal.

68    Ground 4 and ground 5 are not made out.

69    In relation to ground six, the submissions of Mrs Ievers in support of this ground repeat the submission that the matter should have been sent back to the Trustee. In particular, Mrs Ievers contends that as the Trustee’s decision was based on a conclusion that Mr Hattingh was not a dependant, the Trustee had no discretion and was obliged to pay the entire death benefit to Mrs Ievers. There was no decision of the Trustee involving the exercise of a discretion that the Tribunal could review.

70    In Sherrah v Commonwealth Superannuation Corporation [2015] FCA 698, Besanko J (at [32]) noted that the function of the Tribunal is to stand in the shoes of the Trustee and to decide on all the information before it whether the Trustee’s decision was fair and reasonable in the circumstances. As his Honour pointed out, it is the decision, not the process of reasoning which led to it, that must be examined for fairness and reasonableness.

71    Once the Tribunal reached the conclusion that Mr Hattingh was in a de facto relationship with Ms Redfearn and was her sole dependant at the date of her death, the direction that 100% of the superannuation benefit should be distributed to Mr Hattingh is not an error of law, but rather, it is a legitimate and sensible exercise of a discretion. It is difficult to see that any other decision could or should have been taken.

72    Ground 6 is not made out.

Grounds seven and eight – lack of procedural fairness

73    In the absence of a clear manifestation of a contrary legislative intention, a decision-maker is required to afford procedural fairness to a person whose rights and interests are to be affected by the exercise of power conferred by legislation: Kioa v West (1985) 159 CLR 550 (at 584, 609, 632).

74    Mrs Ievers argues that she should have been heard and that the Tribunal should not have concluded that there was no rational basis within the superannuation context to award a percentage of the benefit to Mrs Ievers. The Tribunal erred by failing to accord her the opportunity to make submissions and adduce evidence on that topic. The correct question, she argues, is whether, having regard to the Tribunal’s findings, the decision of the Trustee to distribute 100% of the death benefit to Mrs Ievers was fair and reasonable. As I read the reasons of the Tribunal, this is the very question it answered and in relation to which it concluded that it was not fair and reasonable. The only option, for the reasons it explained, was to award 100% of the death benefit to Mr Hattingh.

75    In any event, the question of payment was central to the role of the Tribunal (that is, in determining whether the decision of the Trustee was fair and reasonable). It was the very decision under challenge. It is inconceivable, in that context, that amongst all the other lengthy submissions made by Mrs Ievers to the Tribunal that she did not or could not address the question of the allocation of payments if an alternative conclusion to that which she was advancing was to be reached.

76    Ground 7 and ground 8 are not made out.

CONCLUSION

77    None of the grounds of the application can succeed. The application must be dismissed with costs.

Associate:

Dated:    11 August 2016