FEDERAL COURT OF AUSTRALIA

Tito (Administrator of the Estate of Atkins) v Atkins [2022] FCA 183

ORDERS

THE COURT ORDERS THAT:

1.    The appeal on a question of law under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) is dismissed.

2.    The applicants are to pay the first and second respondents’ costs as agreed or assessed.

THE COURT NOTES THAT:

3.    The applicants and the first and second respondents are to endeavour to agree the quantum of costs payable under order 2, fixed if possible in a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth). 

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    Mr Mita Atkins (the Member) passed away on 8 October 2017. At the time of his death, he had an account balance with the AMP Retirement Fund (the Fund), which included death insurance in the sum of $321,521.48 (the Death Benefit). The second respondent, the AMP Superannuation Fund, is the trustee of the Fund (the Trustee).

2    The administrator of the Member’s estate (the first applicant) and the Member’s younger sister and brother, who are the second and third applicants respectively (the Sister and Brother), instituted this appeal on a question of law under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (Complaints Act) against a decision of the Superannuation Complaints Tribunal (the Tribunal) given on 17 March 2020. By that decision, the Tribunal affirmed the Trustee’s decision to pay the entire Death Benefit arising on the death of the Member to the first respondent, Corina Ausilia Atkins, who was the Member’s wife at the time of his death (the Wife). In so finding, it rejected the applicants’ contention that the Trustee’s decision was not fair and reasonable, and that the Death Benefit should be paid to the Member’s estate in equal shares between the Sister, Brother and Wife in accordance with the Member’s will and intentions as otherwise expressed.

3    As I later explain, the task of the Court is to determine whether the Tribunal’s decision was made according to law. It is not to consider the merits of the parties’ respective claims to the Death Benefit. It follows that disagreement, even strong disagreement, with the Tribunal’s decision is not a basis on which the Court could interfere with that decision. Equally, it is evident that the Sister and Brother consider that the Tribunal’s decision was not fair or reasonable. However, concepts of fairness and reasonableness have to be approached in accordance with legal principles and in the context of the trust deed in effect on the Member’s death, being the trust deed as amended up to and including the amendment dated 3 July 2015 (the Trust Deed), as well as relevant provisions of the superannuation law. The concepts of fairness and reasonableness to be applied in this context are not concepts at large which might be measured against the individual’s perception of what is fair.

4    As ultimately formulated, the applicants’ case is that there was no evidence before the Tribunal to sustain the finding that a Preferred Nomination (as defined at [9] below) had been made by the Member and/or that the Tribunal’s decision is legally unreasonable in the sense of irrational or illogical. Neither ground is established for the following reasons, and the s 46 appeal must therefore be dismissed.

2.    TRUST DEED RULES AND GOVERNING LEGISLATION

5    The Trustee correctly submits that it was required to distribute the Death Benefit in accordance with the provisions of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act), the Superannuation Industry (Supervision) Regulations 1994 (Cth) (SIS Regulations) and with the Trust Deed, which incorporates the Rules (Trust Deed Rules).

6    Rule 7.4 of the Trust Deed Rules provides that:

The Trustee must pay the Death Benefit of a Member (to the extent it is not payable under rule 7.1 or 7.2) for whom it holds a Preferred Nomination to one or more of the Member’s Dependants or Legal Personal Representative in proportions which the Trustee determines or, if there is no Dependant and no Legal Personal Representative appointed within a reasonable time, to any other person or persons in proportions which the Trustee determines.

7    It was not in issue that rule 7.4 in its terms applies only where a Preferred Nomination (as defined below) is held by the Trustee. Nor was it in issue that rule 7.5 applies relevantly to the extent that rule 7.4 does not. Rule 7.5 relevantly provides that:

The Trustee must pay the Death Benefit of a Member (to the extent that it is not payable under rule 7.1, 7.2 or 7.4):

(a)    To the Member’s Legal Personal Representative, unless the Member’s estate is Insolvent or the Trustee otherwise considers it appropriate in relation to a particular Class, Category or group of Members to provide for payment to the Member’s Dependants; or

…

8    If the Death Benefit is paid to the Member’s Legal Personal Representative, it necessarily follows that it would form part of the Member’s estate to be distributed in accordance with the Member’s will. However, rule 7.4 also provides for the Death Benefit to be paid directly to the Member’s dependants, in which event the Death Benefit would not form part of the Member’s estate.

9    Relevant terms are defined in rule 1.1 of the Trust Deed Rules to mean:

Death Benefit means a benefit payable on the death of a Member.

…

Dependant of a person means:

(a)    a Spouse;

(b)    a Child;

(c)    any person whom the Trustee believes is, or was at the date of death, a dependant within the meaning of Superannuation Law; or

(d)    any other person whom the Trustee believes is, or was at the date of death, dependent on the person.

…

Preferred Nomination means, where the Trustee has offered the right to give such a notice on terms and conditions determined by the Trustee, a notice given by the Member which identifies the preferred beneficiary or beneficiaries of a Death Benefit insofar as it relates to one or more Accounts (which may at the Trustee’s election include a notice which purports to be a Binding Nomination). The notice may include, if so determined by the Trustee, a notice given in writing, over the telephone or in some other form. A notice which was a “Preferred Nomination” for the purposes of the [Fund’s] trust deed and rules immediately before the Commencement Date is also a Preferred Nomination for the purposes of the Deed and Rules in respect of the corresponding Account or Accounts in the Fund.

…

Spouse, in relation to 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.

…

10    The ordinary meaning of “spouse” plainly embraces a person, such as the Wife, who was legally married to the Member, with the definition of “spouse” intended to ensure that the term included certain other relationships.

11    Insofar as the Sister and Brother are concerned, the relevant paragraphs of the definition of a “dependant” under the Trust Deed Rules said to apply in this case were rules 1.1(c) or (d).

12    With respect to rule 1.1(c), the term “dependant” in the SIS Act is defined as follows in s 10(1):

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.

13    The applicants submitted before the Tribunal that they met the definition of “dependant” in s 10(1) of the SIS Act and therefore, in rule 1.1(c) of the Trust Deed Rules, because their relationship with the Member at the time of his death was an interdependency relationship. Section 10A of the SIS Act relevantly provides:

(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.

…

(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.

14    Importantly, it is apparent from the use of the word “and” after each subparagraph of s 10A(1) that in order to satisfy the definition of interdependency relationship, it is necessary for all of the criteria in ss 10A(1)(a) to (d) inclusive to be satisfied. It is also apparent that an interdependency relationship can exist only while the two persons are alive. As such, and as the Tribunal correctly assumed, the question of whether an interdependency relationship existed between the Member and the Sister and/or Brother is assessed as at the time that the Member died (Tribunal at [53]). This is an important point given the submission by the Sister and Brother that they meet the definition of a dependant because it was the Member’s testamentary wish to provide them with financial support via his estate.

15    Regulation 1.04AAAA of the SIS Regulations sets out a non-exhaustive list of circumstances to which regard must be had where they are applicable in assessing whether an interdependency relationship exists. That regulation relevantly provides that:

(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.

…

16    Finally, I note that the applicants relied before the Tribunal, among other things, on evidence of a cultural and customary practice whereby it was the Member’s role, as the eldest son, to look after the Sister and Brother. The existence of a cultural and customary practice of this kind is potentially relevant, for example, to the considerations referred to in regs 1.04AAAA(1)(a)(iv) and (viii) of the SIS Regulations. As I explain below, the Tribunal here accepted both the existence and relevance of this cultural practice. However, that did not assist the Sister’s and Brother’s claims to be dependants for the purposes of the Trust Deed Rules in circumstances where the Tribunal found that the applicants did not meet the mandatory criterion in ss 10A(1)(c) or (d) because there was no relationship of financial dependency at the time of the Member’s death.

3.    BACKGROUND

3.1    The Trustee’s decision and internal review

17    On 11 August 2016, the Member joined the AMP Flexible Super–Super Plan, being a superannuation product offered under the AMP Retirement Trust Deed dated 18 February 2013. The Member married the first respondent on 26 April 2017 at a time when he was undergoing chemotherapy for cancer, and he was re-admitted to hospital on the following day. The Member executed his will shortly thereafter on 5 July 2017. He died on 8 October 2017 at the age of 59, after being admitted to hospital on 20 September 2018.

18    When he passed away, the Member and the Wife were living together with the Brother, Sister, and the Sister’s husband. The Member had no children.

19    On 19 January 2018, the Wife submitted a statutory declaration of dependency and applied to the Trustee for the Member’s superannuation. The Sister and Brother each provided a statutory declaration of interdependency to the Trustee on 17 April 2018 and 8 May 2018 together with attached supporting documents. The Sister also provided a statutory declaration dated 16 April 2019 to the Trustee seeking payment of the Member’s superannuation to the Member’s estate in her capacity as administrator of the Member’s estate.

20    On 4 June 2018, the Trustee decided to give 100% of the Death Benefit to the Wife. That decision was communicated to the Sister and Brother by letter dated 6 June 2018. By a notice dated 5 July 2018, the Sister and Brother objected to that decision.

21    On 7 August 2018, the Trustee determined on review that 100% of the Death Benefit should be given to the Wife on the basis that she was the Member’s spouse and a dependant. The Trustee provided reasons to the Wife, the estate, the Sister and the Brother by letter dated 8 August 2018. In its reasons, the Trustee found, at the time of the Member’s death, that:

(1)    as the Member account held a Preferred Nomination, the Trustee was required to pay the Death Benefit to the Member’s dependants or to the Legal Personal Representative in proportions determined by the Trustee in accordance with rule 7.4 of the Trust Deed Rules;

(2)    the Wife was a “spouse” and fell within the meaning of “dependant” in the Trust Deed Rules given that, “had the member survived, it is fair and reasonable to state that he would have continued to be married to Corina and living [sic] a shared life together”;

(3)    neither the Sister nor the Brother met the definition of “dependant” in the Trust Deed Rules or were in an “interdependency relationship” under s 10A of the SIS Act;

(4)    the Trustee had not been advised that a Legal Personal Representative had been appointed by the Supreme Court to administer the estate and in any event, it would not be fair nor reasonable to pay the estate given that a dependant had been identified; and

(5)    in the exercise of the Trustee’s residual discretion, 100% of the Death Benefit should therefore be distributed to the Wife as the Member’s dependant.

22    In reaching this conclusion, among other things, the Trustee took into account that “the purpose of superannuation is to ensure that the dependant or dependants are adequately provided for in the event of the loss of income or other reliance on the deceased member at the date of death”. The Trustee also stated that it was “mindful that superannuation is not a benefit for inheritance purposes; neither is it bound by certain countries customs and cultures”.

3.2    The Tribunal’s decision

23    The Tribunal explained the process leading up to its decision at [5]–[9] of its reasons. Specifically, pursuant to s 32(2) of the Complaints Act, the Tribunal requested submissions from the parties. Evidence and submissions were filed in the Tribunal by the Sister and Brother, who were jointly represented, pursuant to s 33 of the Complaints Act, as well as the Wife and the Trustee. The submissions were exchanged and responses invited. The Sister and Brother provided two responses, and the Trustee responded once. The Tribunal forwarded a copy of these responses to the other parties.

24    The Tribunal held its review panel meeting on 24 January 2020 in accordance with s 32(1) of the Complaints Act without oral submissions (as is the default position under s 34(1) of the Complaints Act) and gave its decision on 17 March 2020 affirming the Trustee’s decision.

25    The Tribunal summarised the joint submissions of the Sister and Brother at [23] of its reasons. In essence, the Sister and Brother argued that the benefit should be paid to the estate for distribution in equal shares between the Sister, Brother and Wife, in accordance with the Member’s will having regard to a number of considerations including:

(1)    the shortness of the marriage (less than six months) and periods during the marriage when the Wife went interstate to care for her unwell parents;

(2)    the evidence that the Wife was financially dependent upon the Member was insufficient;

(3)    the Trustee’s view that the Member would have continued to be married to the Wife and shared his life with her was conjectural and challenged by the Sister;

(4)    the Wife was aware of the Member’s terminal illness when she married him and that his life expectancy was short;

(5)    there was evidence of interdependency of the Member and the Sister and Brother including that: (a) they had lived together continuously for 16 years to the time of his death; (b) according to their culture and custom, the Member, being the eldest of the family, was to support the Sister and Brother; and (c) the Brother, as carer for the Member for some six weeks prior to his death, and the Sister, as the Member’s carer and de facto nurse, had provided the Member with both “substantial and mutual” emotional and cultural support;

(6)    the Sister’s and Brother’s dependence was on the Member’s will because the Member had expressed an intention that his “super” be divided three ways;

(7)    the Member had expressed his intentions within the Preferred Beneficiary Nomination, the will, and verbally before his death, that his superannuation be distributed in “equal thirds” between the Wife, Sister and Brother;

(8)    the Member was not aware that the Trustee may ignore his testamentary wishes; and

(9)    the question for the Trustee is not one of dependency but rather observance of the Member’s expressed wishes, bearing in mind that the Wife was provided for by the will in any event.

26    On the other hand, the Wife pointed among other things to ways in which she cared for the Member during their marriage, the fact that she did not earn an income when the Member died but was supported financially by him, and the fact that she resided with him. The Wife also submitted that she and the Member lived with the Sister as a matter of convenience and had plans to live on their own (Tribunal at [25]).

27    The Trustee also made submissions explaining that it had exercised its discretion pursuant to rule 7.4 of the Trust Deed Rules in deciding to pay 100% of the benefit to the Wife as the Member’s spouse and dependant, and the considerations that were taken into account in reaching that view (Tribunal at [24]).

28    First, the Tribunal found that under s 37(6) of the Complaints Act, its task was to determine whether the Trustee’s decision was fair and reasonable in its operation in relation to the Sister, the Brother and the Wife in the circumstances, and not to determine what decision the Tribunal would have made on the evidence before the Trustee (Tribunal at [26]–[27]). The Tribunal also explained that the identity of potential beneficiaries, the Member’s wishes, the financial circumstances and needs of the dependants, and the nature of the relationship between them and the Member, were relevant (Tribunal at [29]).

29    Secondly, the Tribunal found that, despite the short marriage and the fact that the Wife and Member married knowing that the Member was terminally ill, the relationship between them was established before the illness was known and the Wife left her job and moved interstate to be with the Member. The Tribunal therefore found that under the Trust Deed Rules, the Wife satisfied the definition of a “dependant” of the Member (Tribunal at [33]).

30    Thirdly, the Tribunal considered the Brother’s claim to be a “dependant” within the Trust Deed Rules on the basis that he was a dependant under superannuation law (Tribunal at [36]). It will be recalled that the Brother contended that he was a dependant under superannuation law by reason of being a person with whom the Member had an interdependency relationship and that, among other elements, it was therefore necessary for him to establish that either he or the Member provided the other with financial support at the time of the Member’s death.

31    In commencing its discussion on this issue, the Tribunal expressed the view, in line with the Trustee’s position, that:

43. … the purpose of superannuation is to provide income in retirement to a member and his or her dependants. In the event of a death before retirement, the Tribunal’s approach is to consider what might have occurred had the member not died, and whether there is anyone who had an expectation of ongoing financial support or a right to look to the Deceased Member for ongoing financial support had the Deceased Member not died.

32    While accepting that the Brother lived with, and provided care to, the Member until his death save for a short period, the Tribunal found that the Member did not provide the Brother with financial support and that there was no evidence that the Brother provided the Member with financial support either. The Tribunal therefore considered that this element of the definition of having an independency relationship was not made out (Tribunal at [51]). In so finding, the Tribunal noted that, while the Trustee had asked the Brother for evidence of his financial dependency, none was provided and that submissions had been made by the Brother and Sister that they did not keep such documents (Tribunal at [44]). The Tribunal also did not consider that the matters relied upon by the Brother were evidence of financial dependency. Specifically, the Tribunal:

(1)    did not consider contributions by the Member towards payment of costs relating to a jointly owned property in another country to be evidence of financial dependency (Tribunal at [45]);

(2)    considered that one-off costs, such as the payment of the Brother’s airfare to Australia, were not evidence of financial dependency (apparently accepting the Trustee’s submission that to be financially dependent, the Brother and Sister “must be receiving financial support on a regular, expected an [sic] ongoing basis leading up to the Members death”) (Tribunal at [42], [45]);

(3)    did not consider that carer payments made to the Brother showed financial dependency on the Member but rather demonstrated that the Brother was receiving financial support from Centrelink (Tribunal at [48]); and

(4)    with respect to the Brother’s declaration that household expenses were shared, found that no evidence was produced to show that at the time of his death, the Member provided the Brother with any financial support, and by the Brother’s own admission, found that he contributed to the rent, food and incidentals (Tribunal at [49]–[50]).

33    Fourthly, the Tribunal found that the Brother was not “dependent” under paragraph (d) of the definition of “dependant” in rule 1.1 of the Trust Deed Rules and therefore had no entitlement to the Death Benefit (Tribunal at [55]-–[56]). The Tribunal noted that this was not a defined term within the superannuation legislation. However, it found that “the term’s ordinary meaning is that ‘dependent’ means ‘financially dependent’ which the tribunal has already found not to have existed” (Tribunal at [54]). In addressing this issue, the Tribunal further considered the Brother’s close relationship with the Member and accepted “that their bond was strong in no small measure due to the cultural factors underlying their relationship” (Tribunal at [55]). However, it did not consider that either this, or the Brother’s care of the Member, constituted dependence by the Brother upon the Member at the date of his death.

34    In the fifth place, the Tribunal considered whether the Sister was financially dependent on the Member at the time of his death (Tribunal at [57]–[69]). In so finding, the Tribunal rejected, as irrelevant, evidence that the Sister was financially dependent on the Member during 2000 (Tribunal at [59]) and evidence of statements of bills for a former residence (Tribunal at [65]). The Tribunal also found that, even if it was the custom and culture of the Member’s family for the Member, being the eldest brother, to support the family, this did not of itself prove the Sister’s financial dependence upon the Member (Tribunal at [62]–[63]). The Tribunal further found that the proportion of rent paid by the Member did not show that the Sister was financially dependent on him (Tribunal at [64]). Nor did the Tribunal accept that evidence that the Sister and her husband paid for the Member’s funeral insurance policy showed that she was financially dependent on the Member (Tribunal at [65]). In addition, the Tribunal noted that the Sister was earning an income when the Member died and that she was married but that no information had been provided as to her husband’s financial contribution other than the Brother’s statement that all household members contributed to rent and other expenses (Tribunal at [67]). The Tribunal then found that:

68. Having taken all these factors into account, the Tribunal considers that even if the Deceased Member paid a share of the rent and contributed to other expenses, the Tribunal considers that because the Sister was working and earning an income, sharing expenses with other members of the household, and taking into account the proportion of the Deceased Member’s contribution to the rent and household expenses, there was a sharing of finances within the household between the Deceased Member, the Brother, the Sister and Sister’s husband.

35    Accordingly, the Tribunal was not satisfied that the Sister was financially dependent on the Member at the time of his death (Tribunal at [69]).

36    Sixthly, the Tribunal considered whether the Sister had an “interdependency relationship” with the Member when he died. After referring again to the mandatory criteria contained in the definition of an interdependency relationship and to the circumstances which must be considered under the SIS Regulations, the Tribunal found that the relationship between the Sister and the Member was not an interdependency relationship (Tribunal at [70]–[72]). For the reasons earlier given, the Tribunal did not consider the Sister to have been financially dependent upon the Member nor the Member financially dependent on the Sister (being one of the four mandatory criteria for establishing an independency relationship). Furthermore, the Tribunal found that:

75. The Tribunal acknowledges the close relationship that existed between [the Member and the Sister] as siblings, and that their relationship was significant due to cultural factors impacting on the level of commitment and support they provided to one another. It has considered the many affidavits provided by friends and family attesting to the closeness of the relationship between the Deceased Member, the Sister and the Brother. However this does not satisfy the Tribunal that this was an interdependency relationship. Given that they were married to other people and living with those spouses together at the same address, their commitment to a shared life and degree of emotional support that they gave one another is regarded not in the same way as contemplated by the interdependency provisions under superannuation law.

37    In addition, the Tribunal rejected the Sister’s submission that she had an interdependency relationship due to the terms of the Member’s will, which created her expectation of financial support following his death, on the basis that it did not consider the terms of a will create an interdependency relationship as defined in the legislation (Tribunal at [77]).

38    Finally, the Tribunal turned to consider the distribution of the benefit, finding that the Trustee was required under the Trust Deed Rules to distribute the Death Benefit in accordance with rule 7.4. In finding that the Trustee’s decision to pay the entire benefit to the Wife was fair and reasonable in its operation to the Sister, the Brother and the Wife in the circumstances, the Tribunal found as follows:

80. The Tribunal notes that the parties all agree that there was a non-binding preferred beneficiary nomination in favour of the Brother and the Sister, although no copy has been produced to the Tribunal. Nonetheless, the Trustee may not distribute the Benefit to any persons other than dependants or the Legal Personal Representative (LPR).

81. The Tribunal notes the Trustee’s submission that it did not consider it fair and reasonable to pay the Benefit to the LPR as to do so would result in a significant proportion of the Benefit being paid to persons who are not dependants as defined in the Trust Deed.

82. The Tribunal agrees that where there are dependants, the payment of the Benefit to those dependants is preferable to give effect to the terms of the Deed and the core purpose of superannuation, which is to provide for the Deceased Member’s dependants. The Tribunal therefore considers the Trustee’s decision not to pay any of the Benefit to the LPR was fair and reasonable.

83. The Tribunal notes it is not the purpose of superannuation to give effect to the terms of a will, as superannuation does not form part of the Deceased Member’s estate.

(Emphasis added.)

39    Accordingly, as the Tribunal found that the decision of the Trustee was fair and reasonable in the circumstances, the Tribunal held that it was required under s 37(6) of the Complaints Act to affirm the Trustee’s decision (Tribunal [84]–[86]).

4.    CONSIDERATION

4.1    The issues

40    The applicant appealed from the Tribunal’s decision. The further further amended notice of appeal (FFA notice of appeal) was filed on 21 December 2020 pursuant to orders made by consent on 18 December 2020. It was intended to reflect, in writing, the applicants’ case as put at the hearing on 10 December 2020.

41    The issues raised in the FFA notice of appeal were to the following effect:

(1)    whether on the facts found by the Tribunal, it erred in finding that:

(a)    the Sister and the Member; and

(b)    the Brother and the Member;

did not have an interdependent relationship within the meaning of s 10A of the SIS Act (Questions of law 1 and 2);

(2)    whether the Tribunal erred in finding that, in order to pay the Death Benefit to the Member’s estate, it was required to find a relationship of dependency as defined in s 10A of the SIS Act between the Sister and the Brother, on the one hand, and the Member, on the other hand (Question of law 2B);

(3)    whether the Tribunal erred in concluding that the Trustee’s decision was fair and reasonable within the meaning of s 37 of the Complaints Act given that:

(a)    the Wife and Member had been married only from 26 April 2017 until 8 October 2017;

(b)    at the time of the marriage, both the Wife and Member were aware that the Member was suffering a terminal illness; and

(c)    the Wife did not cohabit with the Member for the period 3 June 2017 to 30 June 2017 and from 12 July to 23 September 2017

                    (Question of law 3);

(4)    whether the Tribunal acted unfairly or unreasonably or erred when it found that rule 7.4 of the Trust Deed Rules applied when:

(a)    there was no evidence that the Member had made a Preferred Nomination; and

(b)    the solicitors for the applicants requested a copy of the Preferred Nomination; and

(c)    the Tribunal was aware that there was no evidence of the Preferred Nomination before it and should have applied rule 7.5 and paid the Death Benefit to the Legal Personal Representative of the Member

(Question of law 4);

(5)    whether the finding by the Tribunal that the decision of the Trustee was fair and reasonable was so lacking in reason and logic as to be so unreasonable that no Tribunal constituted by reasonable Members could have found it was fair and reasonable (Question of law 5); and

(6)    whether it was reasonably open to the Tribunal to find that the Trustee’s decision was fair and reasonable (Question of law 6).

42    While the issues raised by questions of law 1, 2, 2B, and 3 remained in the FFA notice of appeal, importantly the applicants’ counsel clarified at the hearing that there were two grounds only on which the Tribunal’s decision was challenged, namely:

(1)    the Tribunal’s decision was legally unreasonable; and

(2)    the Tribunal found that there was a Preferred Nomination in the absence of any evidence that any Preferred Nomination had been made by the Member.

(T10/12/20 at 33.41–7.)

43    These questions of law are encapsulated in Grounds 4, 5 and 6, with ground 4 having been added in the proposed further amended notice appeal dated 26 November 2020, and Grounds 5 and 6 in the FFA notice of appeal filed on 21 December 2020 in order to set out in writing, the unreasonableness ground which had been raised for the first time at the hearing. In these circumstances, I have treated questions of law 1, 2, 2B, and 3 as not having been pressed by the applicants save insofar as the grounds were effectively particulars of the unreasonableness ground.

44    I have also treated as ultimately not having been pressed, the notice of objection to competency filed by the Wife which alleged that the amended notice of appeal filed on 21 July 2020 had failed to identify a question of law. That version of the notice of appeal did not include Grounds 4, 5 and 6. In any event, the legal unreasonableness and no evidence issues rely upon well-established principles of judicial review and raise questions of law. As such, to the extent that the notice of objection to competency was ultimately pressed, it should be dismissed.

4.2    The “no-evidence” issue (Question of law 4)

4.2.1    Legal principles

45    The principles with respect to the no-evidence ground in administrative law are helpfully explained by Jagot J (with whose reasons Nicholas J agreed) in Rawson v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307 (Rawson) as follows:

83. Whether a fact is supported by any evidence is a question of law; so too is the question as to what amounts to material that could support a factual finding: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355; 94 ALR 11 at 37; 21 ALD 1 at 23 (Bond); Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; 270 ALR 228; [2010] HCA 32 at [91] (Kostas). The latter is a question of law because, before a fact may be found, “there is the preliminary question whether the evidence reasonably admits of different conclusions”: Australian Broadcasting Tribunal v Bond at 355, ALR 37; ALD 23 citing Federal Commissioner of Taxation (Cth) v Broken Hill South Ltd (1941) 65 CLR 150 at 155, 157 and 160 (Broken Hill). As the reasons in Broken Hill at 155, 157 and 160 disclose if there is some evidence which reasonably admits of different conclusions as to the existence of a fact or not, the finding of that fact or the failure to find that fact does not involve a question of law. Hence, it is only whether the evidence could have supported the factual finding which constitutes a question of law. By contrast, the question whether evidence should or should not have led to a finding of fact is not a question of law. In the present context “evidence”, a term used in civil litigation, means the whole of the material before the Tribunal.

84. The distinction between evidence or material which could support a factual finding and evidence or material which should or should not have supported such a finding is fundamental to the exercise of jurisdiction which is limited to questions of law. When courts refer to there being “no probative” evidence to support a finding or a finding not being “reasonably open” or “open” on the evidence (as in Bond at 359–360; ALR 40–1 ALD 26–7) or it being necessary that a finding be based on “some probative material or logical grounds” and that a finding not be “completely arbitrary” (as in Bond at CLR 366 and 367; Kostas at [16], Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; 162 ALR 577; 54 ALD 289; [1999] HCA 21 at [145] and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALD 224; [2004] HCA 32 at [38]) the courts are not inviting consideration of whether a finding should or should not have been made. They are considering the anterior question whether the evidence reasonably admitted the making of the finding; that is, whether the evidence could support the finding. Hence, if there is no probative evidence of a fact and no logical grounds to support the fact, the finding of that fact will involve error of law. But where there is some probative evidence of a fact and some logical ground to support the fact, the finding of that fact will not involve error of law. The formula “some probative material or logical grounds” does not convert questions of fact into questions of law.

(Emphasis added.)

See also Rawson at [61]–[62] (Jessup J).

46    As such, the “no-evidence” ground can be made out only if there is no probative evidence which could have supported the fact, such as in a case where the administrative decision-maker proceeded on mere suspicion or speculation: Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 685; Rawson at [62] (Jessup J). However, it is not open to the Court merely to evaluate the sufficiency of the evidence before the Tribunal which formed the basis of the Tribunal’s findings. To do so would be to embark impermissibly upon merits review.

47    These principles apply equally in the context of an appeal on a question of law under s 46(1) of the Complaints Act. Thus, in Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; (2011) 119 ALD 472 (Edington), after explaining that a ground of appeal alleging that there was “no evidence” to support certain findings might, in terms, be thought to raise a question of law, Kenny and Lander JJ held that:

41. … The argument for Mr Edington, both before the primary judge and on this appeal, made it clear, however, that Mr Edington was not actually seeking to advance a “no evidence” ground such as that discussed in Comcare Australia v Lees (1997) 151 ALR at 652–53, but instead he was seeking to argue that the evidence was insufficient to justify the impugned findings said to be made by the Tribunal: see below at [59]. That is, by this route, Mr Edington was in fact challenging the Tribunal’s findings of fact – a challenge that s 46 did not permit him to make.

42. For these reasons, we consider that there were fundamental defects in the proceeding as it was originally constituted and argued. Mr Edington’s notice of appeal failed to state in terms a question of law as required by s 46 of the Complaints Act. If the appeal notice were liberally construed so as to give rise to a question of “no evidence” so that jurisdiction under s 46 of the Complaints Act were attracted, then that question was not pursued because the challenge was to the sufficiency of the evidence, rather than its entire absence.

4.2.2    Did the Tribunal err in that there was no evidence of a Preferred Nomination?

48    As earlier explained, ground 4 of the FFA notice of appeal (as inserted by the proposed further amended notice of appeal dated 26 November 2020) raises the question of whether the Tribunal acted unfairly or unreasonably or erred in finding that rule 7.4 of the Trust Deed Rules applied when:

(1)    there was no evidence that the Member had made a Preferred Nomination; and

(2)    the applicants’ solicitor had asked for a copy of the Preferred Nomination but it was not produced by the Trustee; and

(3)    the Tribunal was aware that there was no evidence of the Preferred Nomination before it.

As such, it is said that the Tribunal should have applied rule 7.5 and paid the Death Benefit to the legal personal representative of the Member.

49    As to proposition (2) above, reliance was placed upon a request made on 14 January 2020 to the Tribunal by the applicants’ solicitor for “a copy of the authority or direction said to have been signed by the Deceased so that the signature may be verified”, being a reference to the alleged Preferred Nomination, and explaining that the Trustee had not previously produced that evidence even though the Trustee relied upon it.

50    Notwithstanding the awkward manner in which it is drafted, it is apparent from the definition of a Preferred Nomination in the Trust Deed Rules that the nomination can be given in any form, namely, in writing, over the telephone, or in any other form.

51    That being so, there was evidence from which it could be inferred that a Preferred Nomination had been made, as the Wife submitted, in the form of what is apparently a computer printout of a form recording information about the policy held by the Member. Specifically, that form included the following information:

52    As such, on its face, the form recorded the existence a non-binding preference for the whole of the Member’s superannuation to be distributed equally between two beneficiaries, being the Member’s Sister and Brother.

53    The form further stated:

54    The form also included the information “DOD: 8-Oct-2017”, being the date of the Member’s death, and “NotifyDate: 5-Dec-2017” although it is not clear what the latter refers to. The form further stated that it was last updated on 24 August 2016, which preceded the Member’s marriage in 2018, from which it might reasonably have been inferred that the form was last updated on 24 August 2016 to include the substantive information about the policy including the Member’s preferred beneficiaries, his view as to the identify of his dependants, and his contributions.

55    It follows that there was probative evidence of a non-binding or Preferred Nomination before the Tribunal that could support its finding that such a nomination been made. Furthermore, the Tribunal recorded in its reasons that “the parties all agree that there was a non-binding preferred beneficiary nomination in favour of the Brother and the Sister, although no copy has been produced to the Tribunal” (Tribunal at [80]). Fairly read, I consider that the Tribunal at this point of its reasons was not overlooking the computer generated record of the Preferred Nomination but making the point, which was not in dispute, that there was no copy of any written nomination from the Member. More importantly, however, it was apparently not in dispute before the Tribunal that a Preferred Nomination had been made.

56    It follows that the no-evidence ground cannot succeed. That being so, there was no error of law made by the Tribunal in finding that the applicable provision of the Trust Deed Rules was rule 7.4 and not rule 7.5. Further and in any event, it is by no means clear that even if rule 7.5 had applied, that any different decision would have been made: see below at [83] below.

4.3    Unreasonableness (Question of law 5 and 6)

4.3.1    The issues

57    It will be recalled that by the FFA notice of appeal filed after the trial to encapsulate arguments put for the first time at trial, the applicants contend that the Tribunal’s decision “was so lacking in reason and logic as to be so unreasonable that no Tribunal constituted by reasonable members could have found it was fair and reasonable” and that the decision was not “reasonably open” to the Tribunal. As such, the applicants challenge both the reasoning and the result reached by the Tribunal on the grounds that they were irrational and illogical in the manner addressed at the hearing.

4.3.2    Legal principles and statutory context in which the unreasonableness ground falls to be considered

58    The principles governing legal unreasonableness can relevantly be summarised as follows.

59    First, legal reasonableness or an absence of legal unreasonableness is an essential element of lawfulness in decision-making, it being implied that Parliament intended that a discretionary power, statutorily conferred, must be exercised reasonably: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [26], [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 (Eden) at [58] (the Court). However, in determining whether an administrative decision is vitiated by legal unreasonableness, it is essential first to bear in mind that the Court’s jurisdiction is strictly supervisory: Li at [66] (Hayne, Kiefel and Bell JJ). As the Full Court of the Federal Court emphasised in Eden:

59. It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision-maker: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197 at [23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).

60    Secondly, where the contention, as here, is that an administrative decision is illogical or irrational, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [133] that “the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”. As their Honours continued:

135. … Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

(Emphasis added.)

61    Thirdly, it follows that the threshold for finding that the end result or fact finding leading to the end result is illogical or irrational is high. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker: SZMDS at [130] (Crennan and Bell JJ). It follows that disagreement, indeed even emphatic disagreement, with the Tribunal’s reasoning is not sufficient to make out illogicality: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [61] (the Court). Thus, as the Full Court of the Federal Court (Murphy, O’Callaghan and Anastassiou JJ) explained in Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175; (2020) 280 FCR 1 at [23]–[25] (in a passage recently quoted with approval by the Full Court in QYFM v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2021] FCAFC 166 at [22]):

23. A finding of illogicality or irrationality requires the court to find that the [decision-maker’s] decision was one at which no rational or logical decision-maker could have arrived on the same evidence: SZMDS at [130].

24. As the Full Court explained in ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [47] (Griffiths, Perry and Bromwich JJ):

... for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 ... at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 ... at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result ...

25. In DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [85]–[86], primarily by reference to the High Court’s decision in SZMDS, the Full Court (Beach, O’Callaghan and Anastassiou JJ) said:

Differences of degree, impression and empirical judg[e]ment between the approach and reasoning of the Authority as compared with the opinion of a court undertaking judicial review do not establish illogicality or irrationality (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] per Heydon J). There is a high threshold. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker (SZMDS at [130] per Crennan and Bell JJ). …

62    Fourthly, an evaluation of whether an administrative decision is legally unreasonable and therefore outside the range of possible lawful possible outcomes must be made having regard to the terms, scope and policy of the statutory source of the power: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) at [9] (Allsop CJ, with whose reasons Wigney J agreed at [90]). Thus, as the Full Court of the Federal Court explained in Eden:

63. … in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at [24] (French CJ), [67]–[67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at [42].

63    In the present case, this means that the question of whether the Tribunal’s reasoning was illogical or irrational must have regard to the superannuation law, including the Trust Deed Rules, which has been explained above, as well as the powers of the Tribunal on review of a trustee’s decision.

64     As to the latter, s 37 of the Complaints Act provides that:

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

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

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

…

(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.

(Emphasis added.)

65    The reference in s 37(5) of the Complaints Act to the “governing rules of the fund” is to the terms governing the conduct of the Fund, which was a regulated superannuation fund under the SIS Act, that is, the Trust Deed Rules.

66    Allsop J (as his Honour then was) in Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330; (2001) 48 ATR 359 (Crocker) helpfully explained the task to be undertaken by the Tribunal under s 37 as follows:

24. In short, the task of the Tribunal was to review the decisions of the Trustee and Insurer as to whether they were (or either was) unfair or unreasonable and to make a determination under subs 37(3) in the light of that consideration. This task was one to be undertaken, to use the language of Merkel J in Briffa v Hay (1997) 75 FCR 428 at 443–4 and Seafarers’ Retirement Fund Pty Ltd v Oppenhuis (1999) 94 FCR 594 at 598–99 [19] to [23], “in the shoes of” the Trustee and the Insurer: see also paras 37(1)(a) and 37(2)(b). The directions for reconsideration of the decision (under para 37(3)(b)) or the variation of the decision (under para 37(3)(c)) or the substituted decision (under para 37(3)(c)) either affect or become the original decision of the Trustee and the Insurer. Thus the strictures of subs 37(5) can be seen not only to prevent, at the point of remedy, something unlawful being ordered to be done, but as an essential reflection of the task being undertaken: a consideration of a decision of the Trustee, qua trustee, that is of the Trustee acting in accordance with law and the terms of its governing trust and making a determination, as if the Tribunal were the Trustee, to affect, vary or substitute a decision. …

67    His Honour then continued to explain that:

27. The task of the tribunal and the meaning of the phrase “unfair or unreasonable” are inextricably intertwined and both are governed by the Superannuation (Resolution of Complaints) Act 1993 (Cth), and, especially, by s 37. It is the decision of the Trustee, recognising its obligation to act in conformity with the governing rules of the fund, and the decision of the Insurer, recognising its obligation (and entitlement) to act in conformity with the terms of the relevant policy, which must be reviewed for unfairness or unreasonableness. The unfairness or unreasonableness must be of the decision (as expanded by s 4) under, and in conformity with, the governing rules or the terms of the policy. It is not some other perceived (rightly or wrongly) unfairness or unreasonableness in and about the conduct of the fund.

28. The question as to whether a decision was unfair or unreasonable cannot be judged otherwise than by having regard to the conformity of the decision with the governing rules of the fund and the terms of the policy. The conformity of the decision with those matters is therefore a relevant consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39–40 and see Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR 517 (special leave refused on 20 August 2001). If conformity with the governing rules or the terms of the policy required the very decision, which was made, to be made, the strictures of subs 37(5), the universe of possible conduct under subs 37(3) and the balance of the Superannuation (Resolution of Complaints) Act 1993 (Cth), including subs 37(6), would require a conclusion of the tribunal that the decision was not unfair or unreasonable. …

(Emphasis added.)

68    It follows that the Tribunal in this case correctly observed at [27] that “[t]he issue is not what decision the Tribunal would have made on the evidence before the Trustee but whether the decision was fair and reasonable”.

69    Allsop J’s approach in Crocker was approved by the Full Court in Cameron v Board of Trustees of the State Public Sector Superannuation Scheme [2003] FCAFC 214; (2003) 130 FCR 122, which further stated that:

43. A decision under review pursuant to s 37 of the Act may, as Allsop J pointed out in Crocker at [29], be “one which so involves elements of fact, degree, opinion or value judgment that different minds can legitimately differ in reaching a decision”. That is why the Tribunal’s task is not to ask itself whether such a decision was the correct or preferable decision. The correct approach was pithily summarized by Allsop J in Crocker (at [31]) as follows:

The Tribunal’s task is not to engage in ascertaining generally the rights of the parties, nor is it to engage in some form of judicial review of the decision of the trustee or insurer. Rather it is to form a view, from the perspective of the trustee or insurer, as to whether the decision of either was (recognising the overriding framework given by the governing rules and policy terms, respectively) unfair or unreasonable.

(Emphasis added.)

4.3.3    Was the Tribunal’s decision legally unreasonable?

70    As earlier explained, rule 7.4 required the Trustee to pay the Death Benefit “to one or more of the Member’s Dependants or Legal Personal Representative in proportions which the Trustee determines”. The Trustee correctly explained that rule 7.4 conferred a discretion and that the manner in which that discretion might be exercised by the Trustee was not expressly governed by the Trust Deed and the Trust Deed Rules, the SIS Act or the SIS Regulations (Trustee submissions at [17]). However, I do not accept that was a matter “entirely at the Trustee’s discretion” with limited assistance from the governing rules and policy terms to the extent that the Trustee’s submission might suggest that the discretion could be exercised otherwise than for the purposes of the superannuation legislation and the Trustee. In other words, there are implied boundaries governing the exercise of the Trustee’s discretion.

71    The applicants contended that the Tribunal’s finding that the Trustee’s decision to distribute 100% of the Death Benefit to the Wife was fair and reasonable, was legally unreasonable having regard to a number of considerations. However, for the reasons I explain below, the considerations relied upon by the applicants do not, either individually or cumulatively, establish that contention.

72    The first consideration relied upon by the applicants was the fact that the decision to distribute the whole of the Member’s superannuation to the Wife did not accord with the Member’s intentions. The applicants also relied upon the fact that they were described in the Trustee’s records as dependants (referring to the computer generated record set out at [53] above).

73    The Tribunal in its reasons referred expressly in the penultimate dot point at [23] to the applicants’ submission that, through his will and verbally before his death, the Member expressed the intention that his superannuation be distributed in “equal thirds” between the Wife, the Sister and the Brother. The Tribunal also rightly accepted that, among other considerations, the Member’s wishes were relevant to its consideration of whether the Trustee’s decision was fair and reasonable (Tribunal at [29]). However, in line with the Tribunal’s approach and the principles articulated above, those intentions fell to be considered relevantly in the context of rule 7.4 of the Trust Deed Rules conferring a discretion on the Trustee to determine whether to pay the Death Benefit directly to the Member’s dependants or to his Legal Personal Representative. Moreover, it is evident from the presence of a discretion to pay the Death Benefit directly to the Member’s dependants that the Death Benefit did not automatically form part of the Member’s estate to be distributed under his will, reflecting the fact that it is not the purpose of superannuation to give effect to the terms of a will (as the Tribunal noted in its reasons at [83]).

74    Nor was the Trustee bound to accept the description of the Sister and Brother as dependants in the computer printout apparently generated by the Trustee which, at best, recorded the Member’s understanding in August 2016. Rather, as a necessary precursor to the exercise of the discretion in rule 7.4, it was necessary for the Tribunal to consider for itself whether or not there were any dependants at the time of the Member’s death, given that the Trustee and Tribunal standing in its shoes were authorised under rule 7.4 to distribute the Death Benefit only to dependants or to the Legal Personal Representative (see, e.g., Tribunal at [57] and [80]).

75    It follows that it was open to the Tribunal to find in the context of the Trust Deed and superannuation law, that the Trustee’s decision was not unfair or unreasonable even though that decision did not give effect to the Member’s intentions as to the distribution of the Death Benefit. For completeness, it should also be said that, in so far as the Member’s intentions were expressed in a non-binding Preferred Nomination, they were plainly not binding upon the Trustee.

76    Secondly, the applicants submitted that the finding that the Brother and Sister were not in an interdependent relationship was not reasonable where among other things, they had lived with the Member, had paid each other’s debts, had cared for the Member when he became partly paralysed, and had a cultural practice whereby the oldest son looked after his siblings. Related to this, the applicants also submitted that the Tribunal failed to have regard to the long history of interdependence between the applicants and the Member and to evidence of cultural considerations, in deciding that the Trustee’s decision was fair and reasonable.

77    As earlier explained, the question of whether the applicants and the Member had an interdependency relationship and were therefore dependants as defined in the Trust Deed Rules turned upon whether the criteria in s 10A of the Complaints Act were met. These included, importantly, the criterion in s 10A(1)(c) that “one or each of them provides the other with financial support” (emphasis added). It is not said that the Tribunal erred in law in construing the term “dependent” under paragraph (d) of the definition of “dependant” in rule 1.1 of the Trust Deed Rules as meaning “financially dependent” (Tribunal at [54]). As such, to the extent that the complaint is made about the emphasis by the Tribunal upon financial support in considering the Sister’s and Brother’s claims to the Death Benefit, rather than other considerations such as cultural practices and the Member’s intentions, that emphasis reflects no more than the proper discharge by the Tribunal of its function under the Complaints Act, and cannot therefore demonstrate legal unreasonableness.

78    In turn, the Tribunal expressly considered both the Sister’s and Brother’s claims to be a dependant under superannuation law by reason of being in an interdependency relationship, but after a careful analysis of the evidence, found that they had not established that they or the Member provided each other with financial support at the time of the Member’s death (see reasons above at [30]–[32] (Brother) and [34]–[35] (Sister)). In this regard, the Tribunal also found that the Trustee had asked the Brother for evidence of his financial dependency but that none was provided, with the Brother and Sister submitting that they did not keep such documents (Tribunal at [44]). While another decision-maker may have reached a different finding on the evidence, it was nonetheless open to the Tribunal to find that it was not satisfied that one or each of the Brother and the Member, or one or each of the Member and the Sister, provided the other with financial support, given in particular the lack of documentation in support of that claim. In short, rational and logical reasons were given by the Tribunal for finding that the Brother and Sister were not in an interdependency relationship, which addressed the evidence and submissions by the Sister and Brother within the applicable legal framework.

79    As to the relevance of cultural considerations, the applicants had submitted to the Tribunal that their dependence “needed not be financial but rather ‘[t]hey were dependent on the Will. That was their dependency and their expectation. The evidence is that the Deceased, expressing his intention that ‘super’ be divided three ways … They depended on the will’” (Tribunal at [23]). Cultural considerations may, in an appropriate case, be relevant to establishing financial dependency or other aspects of a dependency relationship. The difficulty here is that the cultural practice whereby the Member, as the eldest of the family, was to support the Sister and Brother, was not relied upon to establish dependency at the time of the Member’s death, but rather to establish that the Member intended to make financial provision for them after his death. As such, the cultural considerations relied upon by the Sister and Brother could not overcome the lack otherwise of evidence of financial dependency as found by the Tribunal, which was fatal to their claims.

80    Ultimately, the Sister’s and Brother’s challenge amounts to disagreement with the Tribunal’s finding that the evidence did not suffice to establish financial dependency. It is not open to the Court to embark upon a review of the merits of the Tribunal’s decision.

81    Thirdly, the applicants submitted that the Tribunal’s decision was irrational because they are in a worse position than they would have been in if no Preferred Nomination had been made, despite the nomination being in their favour. In their submission, rule 7.5 of the Trust Deed Rules would have applied if there had been no Preferred Nomination instead of rule 7.4, with the result being that the moneys would have been payable to the Legal Personal Representative (i.e. the administrator (Agnes Tito)) under the grant of probate and therefore distributed in accordance with the Member’s will. In short, as Ms Cohen, counsel for the applicants put it:

Had there been no binding [sic] nomination, the first applicant would have received a death benefit. Why should my clients, having been nominated under the will and, if there is a preferred nomination, been nominated under the policy, be worse off than if there hadn’t been a preferred nomination in their favour. The decision is so patently unfair and unreasonable, and that’s all I can say about it.

(T10/12/20 at 18.37–40.)

82    However, even if that submission were correct, the so-called “unfair” consequence complained of is prescribed by the terms of the Trust Deed which the Trustee and the Tribunal were bound to apply. As such, that consequence could not establish legal unreasonableness in accordance with the principles to which I have earlier referred.

83    In any event, the applicants have not established the correctness of the assumption that the outcome would have been favourable to them if rule 7.5 of the Trust Deed Rules had applied instead of rule 7.4. Rule 7.5 provides that where rule 7.4 does not apply, the Trustee must pay the Death Benefit to the Member’s Legal Personal Representative unless (relevantly) the Trustee (or Tribunal on review) considers it appropriate to provide for payment to the Member’s dependants. In this case, the Tribunal found at [81]–[84] that it was fair and reasonable to pay the Death Benefit to the Member’s dependants where there were dependants because this gave effect to the terms of the Trust Deed and the core purpose of superannuation. As such, the Tribunal considered that it was “appropriate” to provide for payment to the Wife on the basis of it finding that she was the only dependant at the time of the Member’s death.

84    Fourthly, the applicants submitted that the Wife married the Member in circumstances where there was no prospect of a shared life together. As the Tribunal found, the Member was in the final stages of a terminal illness and was re-admitted to hospital, as planned, the day after the wedding ceremony took place. The marriage was therefore a demonstration of their love for each other. As Ms Cohen put it at the trial:

… [T]his is a different type of wife. This is a wife that isn’t in a partnership with her husband. She married him to show their love, and that’s all. It wasn’t in order to have children or to build up assets together. The marriage, it was just to prove that they were in love with each other, and that was all.

(T-10/12/20 at 20.26–29.)

85    However, the applicants’ contention does not overcome the difficulty that the Tribunal found that the Wife alone met the criteria in the definition of a “dependant” at the time of the Member’s death and therefore it was open to the Tribunal to accept as fair and reasonable, the Trustee’s decision under rule 7.4 to distribute the whole of the Death Benefit to her.

86    Finally, given the evidence that the Member told the Sister and Brother that they could access their respective one third proportions of the superannuation following his death if they wished, the applicants submitted that the Member cannot have been advised by a representative of the Trustee that the Trustee retained a discretion and might not give effect to his wishes, particularly given that the Member was now married. It is indeed a serious matter if the Member was not properly advised as to the consequences of his investment in the Fund vis-à-vis his intentions to provide financially for the Sister and Brother, as well as the Wife. However, that was not the question for the Tribunal, which was bound to determine whether the Trustee’s decision was fair and reasonable in the context of the Trust Deed and superannuation law.

5.    CONCLUSION

87    For the reasons set out above, the appeal must be dismissed with costs.

Associate:

Dated:    8 March 2022