JUDGMENT No. (8S. 78R— IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.190 of 1987 GENERAL DIVISION BETWEEN: SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY Applicant MAUREEN KERSHAW Respondent EX-TEMPORE REASONS FOR JUDGMENT BURCHETT J. In this matter, the careful and thorough arguments of counsel assist me in being able to give a decision without delay. It is an appeal by the Secretary of the Department of Social Security from a decision of the Administrative Appeals Tribunal. The respondent's entitlement to a widow's pension, during the period in question in this proceeding, depended on her being, during that period, a "deserted wife" as that expression is used in sections 59(1) and 74(5) of the Social Security Act, 1947. At the time the provision referring to a deserted wife became part of the legislation, there is no doubt at all that the adjective "deserted", as applied to a spouse, whether wife or husband, was an adjective which was clearly understood in the law both, so far as a wife was concerned, in respect of maintenance orders under Deserted Wives and Children Acts, and in relation to 0 ate ee or: 2. the law of divorce. When the Act provided that a widow included a deserted wife, and that a deserted wife meant a wife who has been deserted by her husband without just cause for a period of not less than six months - see s.59(1) - it must be taken to have used the word "deserted" in its legal sense - see Ashfield Municipal Council v. Joyce [1978] A.C. 122 at 134. The respondent's evidence showed that, if she was not actually deserted, she was constructively deserted in the sense known to the law. To bring that state of affairs to an end would have required a reconciliation, or an offer of resumption of cohabitation which she was not entitled to refuse. On her evidence she was clearly regarded by the tribunal as entitled to refuse any offer which was made, as at the relevant period, until her husband proved himself capable of fulfilling his part without resorting to verbal abuse and physical violence. The question, as the case was presented to the tribunal, was whether a reconciliation was effected in June 1984, or did not occur until December of the same year. Certainly, the respondent allowed the husband into her home, where he, for a period, shared a bedroom with her son. She did not, on her evidence, allow him back into the full state of marriage, and such access as he obtained to the home was under what was described in Bartram v. Bartram [1950] P. 1 at 6 as "the spur of necessity". In that case, the necessity was the necessity of a deserted wife, but in this case the necessity was the necessity of the husband who was suffering from cancer and did, indeed, die less than two years later. The respondent also accompanied her 3. husband on a seven week trip overseas, on which, in addition to his wife, he was joined by his aunt. All three slept in the same room in separate single beds, and the wife, in her case, called the aunt to give evidence which suggested that there was no appearance of reconciliation at that time. On the other hand, the applicant called evidence, from an officer of the department, of a conversation with the respondent in which, the officer alleged, she made clear admissions that a reconciliation had been achieved in June of 1984. Indeed, on that account, she sought to meet' the department's case, not by qualifying the completeness and reality of the reconciliation, but by asserting that she had fulfilled her obligation to advise the department of a reconciliation. The tribunal was thus faced with the difficulty of evidence, which it expressly stated it found acceptable, from the respondent and from the aunt, which asserted one state of affairs, and evidence which it also expressly stated it found acceptable, from a departmental officer, which alleged an admission to a directly contrary effect. That situation clearly involved a difficulty for the tribunal. It would be necessary for it to consider, amongst other things, the likelihood or otherwise of there being any mistake as between the departmental officer and the respondent - whether any admission it found her to have made was made with a clear understanding of the nature of that which was admitted; in other words, whether, if the word "reconciliation" was used by the respondent, according to accepted evidence, it was used in the legal sense, or referred to 4. a mere return to be cared for by the respondent during convalescence. This would have required a weighing of the evidence of the witnesses against each other, and_ the consideration of whether evidence, which if it had _ been considered alone would have been acceptable, remained so when compared with opposing evidence, and it would have required a consideration of the overall probabilities in the light of whatever the tribunal found to have been the situation and attitudes of the parties at the relevant times. What the tribunal actually did was to say of the respondent that, although she showed some inclination to exaggeration, and although they thought there were some minor discrepancies in what she had said at various times, "we consider her to' be a generally credible witness." Pausing there, this might be thought to be a quite satisfactory endorsement from her point of view, since minor discrepancies and a mere inclination to exaggeration are features seldom absent from evidence about matrimonial disputes and, indeed, suggest rather more objectivity than is usual. The tribunal also referred to the departmental witness, a Mr. Richardson, who it said had been questioned thoroughly, but, in its view, his evidence could not be faulted, and he appeared to the tribunal to be a completely credible witness. The tribunal also appears to have accepted the evidence of the aunt. The tribunal then reached its decision, after referring again to the evidence of the respondent concerning the period in dispute. It said: "Mrs. Kershaw has explained her action in so doing, [that is in permitting Mr. Kershaw to return to the house) satisfactorily in our opinion. Her account of the relationship thereafter and until the overseas visit also strikes us as creditworthy." But the tribunal finally concluded: "We appreciate the unenviable position of the respondent [that is the present applicant] when confronted with a direct conflict between the statements of a recipient of benefit and of one of his officers who, in our view, is very unlikely to have made an error of the kind in question. We find ourselves confronted with the same dilemma, as indeed was the second SSAT. Like the second SSAT, we believe that as the Act is beneficial legislation, we are obliged to give the benefit of the doubt to Mrs. Kershaw, that is, to find that reconciliation did not take place until the end of November, 1984. The evidence is such that we cannot be sure beyond reasonable doubt that reconciliation transpired earlier, that is, at the end of June, 1984." ' It does not seem to me that the reference to "beneficial legislation" assists. There is a well known rule of construction of beneficial legislation, enjoining courts, where it is ambiguous but fairly capable of a meaning which would effectuate the benevolent purpose of the legislation, to adopt that meaning. I do not think this principle assists, at all, in a problem of onus of proof, nor do I think there is any authority to justify the proposition that, if the tribunal cannot be sure beyond reasonable doubt, it is obliged to give the benefit of the doubt to a recipient of social welfare. Earlier in its reasons the tribunal had adverted to the same proposition when it had said of the immediately preceding he Jat 4. period of the marriage: ""(W)e cannot say beyond reasonable doubt that the marriage had been restored." That particular finding had, as I have said, related to an earlier period, but it does tend to confirm that the tribunal did, indeed, mean to apply the standard of proof beyond reasonable doubt to relevant questions in the case. It had also said of evidence that some elements of a marital relationship existed at a particular period: "We do not feel that these are conclusive." I have been referred to the basal decision of the Full Court dealing with problems of proof in administrative law matters, McDonald v. Director-General of Social Security (1984) 1 P.C.R. 354. It seems to me that, in understanding that case, it is important to bear in mind the well known distinction between the evidentiary onus and the ultimate onus of proof. At 358, Woodward J. said: "If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled. If, on the other hand, it is a decision, to be made in the light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work." He went on to refer to Phillips v. The Commonwealth (1964) 110 C.L.R. 347 at 350, to which I have also been referred by counsel. In that passage, it will be noticed that Woodward J. referred to the persuasion applicable to decisions of the type he was considering as one upon the balance of probability. Also, in the judgment of Jenkinson J., at pp.368 to 369, there is reference to the standard of preponderance of probability or balance of probability. Jenkinson J. noted that there may be a difficulty in adapting the curial conception to the processes of administrative determination of individual rights; whereas a court waits upon the parties to litigation to tender their proofs, an administrative decision-maker will commonly inform himself of the facts by his own inquiries. Jenkinson J. commented that he will not ordinarily be free, as a court is ordinarily free, to determine a matter against a party on whom lies the onus of proof and who fails to offer any proof in discharge of the onus, without further inquiry. He considered that a statement by the tribunal in the matter there under appeal, concerning the matter of persuasion, requiring what was described as a settled expectation, was incorrect, and in saying so, he said: "The error could not have vitiated the Tribunal's decision unless the Tribunal was unpersuaded, on a balance of probability, that there was not a permanent incapacity. All that can be discerned from the Tribunal's reasons is that it was unpersuaded, to the degree suggested by the expression 'a settled expectation', that there was a permanent incapacity. I agree therefore that the appeal should be allowed, that the decision should be set aside, and that the case should 8. be remitted to the Tribunal for determination according to law." In this passage he also appears to accept the balance of probability as the appropriate standard of persuasion. What is involved is also elucidated by the judgment of Beaumont J. in Minister for Health v. Thomson (1985) 60 A.L.R. 701 at 712, where he referred to an explanation of the position by Professor Campbell in a paper which he cited. That exposition included the statement: "There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings." It seems to me that this statement was referring to the ultimate onus of proof, and that whether or not a sufficient case appears to justify a particular administrative decision can only be decided upon an application of some standard of persuasion; in other words, upon some basis for finding that an ultimate onus has been discharged. But I have not been referred to any authority which would justify the tribunal's proposition, in the present case, that because the legislation is beneficial, an onus of proof beyond reasonable doubt is imposed on a party in the position of the applicant. It is a matter of persuasion. A simple persuasion that the respondent was no longer a deserted wife as at a particular date would, I think, suffice. For these reasons, Fee 9. unfortunate as it may be, the appeal must be allowed, and the wi matter must be remitted for rehearing according to law. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of his Honour r. Justice Burchett. 'tudes Associate i Dated: 28 March, 1988. L Counsel for the Applicant: Ms H.G. Murrell t Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Miss W.L. Robinson ' Solicitor for the Respondent: Legal Aid Commission . Date of hearing: ' 28 March 1988 .