FEDERAL COURT OF AUSTRALIA Williams v IS Industry Fund Pty Ltd [2018] FCA 529 File number: QUD 200 of 2017 Judge: LOGAN J Date of judgment: 20 April 2018 Catchwords: SUPERANNUATION – appeal against the Superannuation Complaints Tribunal – whether there was an 'interdependent' relationship – whether there was jurisdictional error – no such error – appeal dismissed. Legislation: Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 37(6), 46 Superannuation Industry (Supervision) Act 1993 (Cth) ss 10, 10A Superannuation Industry (Supervision) Regulations 1994 (Cth) reg 1.04AAAA(1) Cases cited: Board of Trustees of the State Public Sector Superannuation Scheme v Edington (2011) 119 ALD 472 Edwards v Commonwealth Superannuation Corporation [2017] FCAFC 173 Lykogiannis v Retail Employees Superannuation Pty Ltd (2000) 97 FCR 361 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Williams v IS Industry Fund Pty Ltd [2016] FCA 524 Date of hearing: 28 June 2017 Date of last submissions: 28 June 2017 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Counsel for the Applicant: Mr P Kingham Solicitor for the Applicant: Maurice Blackburn Counsel for the Respondents: The respondents did not appear ORDERS QUD 200 of 2017 BETWEEN: JOSEPH FRANCIS WILLIAMS Applicant AND: IS INDUSTRY FUND PTY LTD First Respondent BRADLEY SELVIG, AS THE LEGAL PERSONAL REPRESENTATIVE OF THE LATE JOSEPH STEPHEN WILLIAMS Second Respondent SUPERANNUATION COMPLAINTS TRIBUNAL Third Respondent JUDGE: LOGAN J DATE OF ORDER: 20 APRIL 2018 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT LOGAN J: 1 This is the second occasion on which the applicant, Mr Joseph Francis Williams, has appealed against a decision of the third respondent, the Superannuation Complaints Tribunal (Tribunal), affirming a decision by the first respondent, IS Industry Fund Pty Ltd (IS Industry), the trustee of a superannuation fund known as the Intrust Super Fund. A right to appeal to this Court, on a question of law, against a decision of the Tribunal is conferred by s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the SRC Act). 2 Until his untimely death, Mr Williams' son, the late Joseph Stephen Williams (deceased), was a member of the Fund. 3 On each occasion, the Tribunal affirmed the decision of IS Industry that a death benefit payable under the Rules of that Fund should be paid to the brother of the deceased and the executor of his estate, the second respondent, Mr Bradley Selvig, rather than to Mr Williams. 4 On the first occasion, Mr Williams succeeded in his appeal with the result that the matter was remitted to the Tribunal for rehearing according to law and the Court's reasons for judgement: Williams v IS Industry Fund Pty Ltd [2016] FCA 524 (Reeves J) (Williams v IS Industry No 1). 5 Though a respondent, the Tribunal has, quite properly, filed a submitting appearance. As to the other respondents, though each has been served, each has also indicated that it or, as the case may be, he will abide the order of the court. 6 It does not follow from the absence of an active contradictor that Mr Williams' appeal on this occasion must also succeed. To succeed he must demonstrate that what he poses as questions of law are indeed questions of law and, if so, that one or more of them should be answered as he contends. 7 The postulated questions of law have been pleaded in a prolix way. They are: (1) Whether the Tribunal misconstrued the words "live together" in s 10A of the Act, in holding that: (a) the fact that the deceased considered the Applicant's home his principal place of residence, despite absences for work purposes, was irrelevant to a proper determination of whether or not the Applicant and the deceased were living together; (b) the deceased and the Applicant between 30 April 2011 and 16 June 2011 could not be "described in terms whereby: "they live together"; (c) the intended stay of the deceased with the Applicant between 30 April 2011 and July 2011 could not be "described in terms whereby: "they live together"? (2) Whether in determining whether the Applicant and the deceased had an interdependency relationship immediately before the death of the deceased on 7 November 2011, the Tribunal had regard to an irrelevant consideration, namely the fact (if it were the fact) that the deceased and the Applicant were not living together before May 2011? (3) Whether in determining whether the Applicant and the deceased had an interdependency relationship immediately before the death of the deceased on 7 November 2011, the Tribunal had regard to an irrelevant consideration, namely the fact that the Applicant had returned in April 2011 to the Applicant's home for a brief holiday prior to setting off again to work for the Employer in another foreign country overseas? (4) Whether there was any evidence for the finding of the Tribunal that the deceased on 31 May 2011 made comments that evidenced his desire to return to work overseas in July 2011? (5) Whether the Tribunal misconstrued s 10A of the Act in finding that because (if it was the case) the deceased and the Applicant between 30 April 2011 and 16 June 2011 could not be "described in terms whereby: "they live together", therefore the reason the Applicant and the deceased were not living together immediately before the death of the deceased on 7 November 2011 was not that the deceased suffered from a physical disability? (6) Whether in determining whether the Applicant and the deceased had an interdependency relationship immediately before the death of the deceased on 7 November 2011, the Tribunal had regard to an irrelevant consideration, namely that there was no evidence that should the deceased hypothetically have gone into remission and emerge from hospital, that he necessarily would have recuperated, as in lived together, with the Applicant? (7) Whether the Tribunal was required to, but failed to take into account the financial support, domestic support and personal care provided by the Applicant to the deceased between May 2011 and the date of his death on 7 November 2011 in determining whether: (d) the reason the Applicant and the deceased were not living together immediately before the death of the deceased on 7 November 2011 was that the Applicant suffered from a physical disability; and (e) the Applicant and the deceased had an interdependency relationship immediately before the death of the deceased on 7 November 2011? (8) Whether, on the facts found by the Tribunal, the Tribunal should have concluded in the Applicant's favour that the reason the Applicant and the deceased were not living together immediately before the death of the deceased on 7 November 2011 was that the deceased suffered from a physical disability and that but for his requirement for hospital and hospice care, he would have, given his illness, lived with and have been provided with care by his father, the Applicant, and no other conclusion was open to the Tribunal? 8 In Williams v IS Industry No 1, Reeves J set out relevant extracts from the Superannuation Industry (Supervision) Act 1993 (Cth) (the SIS Act), the Superannuation Industry (Supervision) Regulations 1994 (Cth) (the SIS Regulations) and the Rules of the Fund. He also made reference to pertinent authority in relation to the jurisdiction exercised by the Tribunal and the Court in matters such as this. I gratefully adopt these portions of his Honour's judgement. His Honour's extracts notably include those pertinent to the term, "interdependency relationship". The Rules of the Fund materially incorporated the definition of that term found in the SIS Act, as expanded upon in the SIS Regulations. In deciding that the death benefit should be paid to Mr Selvig, not to Mr Williams, IS Industry had concluded that the deceased and Mr Williams were not in an "interdependency relationship". A contrary conclusion was critical to Mr Williams' being eligible to receive the death benefit. 9 An interrogative note was sounded for me in relation to whether the questions posed were indeed questions of law when I noticed that questions 7 and 8 repeated questions (questions 6 and 7 in the earlier appeal) which, in Williams v IS Industry No 1, at [13], Reeves J had regarded as ones of fact, because each essentially raised a question about the manner in which the Tribunal dealt with the evidence before it. Question 5 is also reminiscent of question 3 in the earlier appeal, which, for like reasons, Reeves J also regarded as raising only a question of fact. I respectfully agree with the characterisation of the questions by Reeves J. That interrogative note was reinforced by paragraph C of the prayer for relief, which sought a direction that the deceased and Mr Williams were in an interdependent relationship immediately prior to death with a remitter, yet again, to the Tribunal only being sought in the alternative. That looked like an impermissible solicitation to conduct merits review. 10 Perhaps recognising the vulnerability of the questions posed in the notice of appeal to such a critique, Mr Bingham of Counsel, who appeared for Mr Williams, framed the issues in the appeal in his submissions inspired by the way in which Reeves J had come to formulate the issues in the earlier appeal. A like approach but one more closely aligned with his Honour's formulation, is evident in the Tribunal's reasons. As Mr Bingham recognised, there is a risk in such an approach in reformulating a test already expressed in the SIS Act and the SIS Regulations. However, compared with the prolixity of the notice of appeal and the jurisdictionally dubious quality of at least some of the questions, it may be a succinct way of expressing the questions of law truly at issue. As reformulated, the issues raised on the appeal were expressed in the submissions to be: (f) "Issue One" - whether the applicant and the deceased had an interdependency relationship immediately before the death of the deceased on 7 November 2011; (g) "Issue Two" - whether, if the deceased and the applicant were not living together immediately before the death of the deceased, that was so because the latter suffered from a physical disability. 11 This reformulation differed from the way in which Reeves J summarised the issues in Williams v IS Industry No 1 at [12]. On my reading of the Tribunal's reasons (at [6]), the Tribunal, in keeping with the remitter order, considered that it was obliged to address the issues as identified by Reeves J. As so identified, those issues were: (a) whether, on a proper construction of s 10A of the SIS Act, the Tribunal was required to determine whether Mr Williams and his son had an interdependency relationship immediately before the death of the latter on 7 November 2011, and, if so, whether it failed to do so; (b) whether, on a proper construction of s 10A of the SIS Act, the Tribunal was required to consider whether, if Mr Williams and his son were not living together immediately before the death of the deceased, that was so because the latter suffered from a physical disability, and, if so, whether it failed to do so. 12 Mr Williams' written submissions, developed to no different end in oral submissions, advanced the following: 14. As a relatively young person who had not established his own home, and particularly a person with a potentially fatal disease, it is reasonable that the deceased could regard himself as still living with his father, even if absent from time to time for work: Roy v Sturgeon (1986) 11 NSWLR 454 at 458.2.; Richardson v Kidd [2002] NSWSC 306 at [35 - 45]. 15. However, the Tribunal concluded that because the deceased had returned to the applicant's home in April 2011 with the intention of leaving again for work in July 2011, therefore the deceased and the applicant were not living together. 16. That is, despite the fact that the deceased was living in his principal place of residence with the applicant, with whom he had a close personal relationship, for the period 1 May 2011 and 16 June 2011, the Tribunal considered that mere fact that he intended to leave for work when he arrived compelled the conclusion that the deceased and the applicant did not "live together". 17. The Tribunal thus failed to have regard to a relevant consideration, namely that the deceased and applicant were in fact living together under the one roof between 1 May 2011 and 16 June 2011. 13 To approach the issues in this way is, with respect, to solicit the Court to conduct a review on the factual merits of the material before the Tribunal, not to answer any question of law. This the Court must not do. Further, in contrast with the jurisdiction exercised by the Administrative Appeals Tribunal in the review within its jurisdiction of administrative decisions, it is not the role of the Tribunal to conduct such a review. As the Tribunal correctly apprehended, its review jurisdiction was as specified in s 37(6) of the SRC Act: (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. Given the way in which Mr Williams case was pleaded in the notice of appeal and argued, it is desirable to cite the following further observations made by Kenny and Lander JJ (with which I generally agreed) in Board of Trustees of the State Public Sector Superannuation Scheme v Edington (2011) 119 ALD 472 at [46] (Edington) as to the nature of the Tribunal's jurisdiction: [46] Under the Complaints Act, the tribunal is not called on to make the same kind of determination as the Administrative Appeals Tribunal under its governing legislation. That is, in contrast to the Administrative Appeals Tribunal, the tribunal under the Complaints Act is not called upon to determine whether the trustee made the correct or preferable decision: see, for example, Jevtovic at 322 ; Cameron v Board of Trustees of the State Public Sector Superannuation Scheme (2003) 130 FCR 122; [2003] FCAFC 214 at [38]–[43] (Cameron) per Whitlam, Kiefel and Dowsett JJ; and National Mutual Life Association of Australia Ltd v Scollary [2002] FCA 695 at [37] per Ryan J. Rather, the tribunal stands in the shoes of the trustee and determines, based on all the information before it, whether or not a decision taken by the trustee was fair or reasonable in the circumstances. In Jevtovic at 321, Sundberg J held that the words "the decision … was fair and reasonable" in s 37(6) were directed to whether the actual decision, rather than the process that led to it, was fair and reasonable, a proposition that has subsequently been accepted as correct: see, for example, Citicorp Life Insurance [2005] FCAFC 102 at [19] and Colonial Mutual Life Assurance Society Ltd v Brayley [2002] FCA 1333; at [31] per Branson J. See also, as to the nature of the Tribunal's jurisdiction, Edwards v Commonwealth Superannuation Corporation [2017] FCAFC 173 (Edwards) and Lykogiannis v Retail Employees Superannuation Pty Ltd (2000) 97 FCR 361 at [48] per Mansfield J, referred to with approval in Edington, at [50]. 14 Roy v Sturgeon and Richardson v Kidd were cases under different legislation concerning the approach to finding whether or not de facto relationships existed. The statutes with which those cases were concerned offer illustrations of how, in modern times, parliaments at both Federal and State level have in particular contexts responded to changes in social mores, conceptions of what constitutes marriage and the need, if any, for persons to marry at all. In the SIS Act, the definition of the term "interdependency relationship" may offer another such illustration in yet another context. However, notwithstanding the reference in reg 1.04AAAA(1)(a)(ii) to whether or not a sexual relationship exists and the reference to the care and support of children in reg 1.04AAAA(1)(a)(v) as factors to take into account in deciding whether one element of the definition of "interdependency relationship" exists namely, whether two persons have a "close personal relationship" in terms of s 10A(1)(a) of the SIS Act, the definition of "interdependency relationship" in s 10A of the SIS Act does look to cast its net rather wider than just de facto relationships or marriage, be that between opposite or the same sexes. In any event, I make that assumption in Mr Williams' favour, as, in my view, did the Tribunal. Beyond this very general level of illustration, Roy v Sturgeon and Richardson v Kidd are of no assistance in this appeal. This appeal must be decided by reference to the limits of the Court's and the Tribunal's jurisdiction and, in turn, by reference to the specification in the text of the SIS Act and SIS Regulations in respect of an "interdependency relationship". 15 The particular difficulty which Reeves J had in Williams v IS Industry No 1, at [44], with the Tribunal's reasons was that "there is little, if anything, to indicate that it had any regard to the expression "immediately before the death of" in assessing whether Mr Williams and his son were living in an interdependency relationship". That focus is required by the chapeau in reg 1.04AAAA(1) of the SIS Regulations. In effect, the Tribunal's reasons in the earlier review did not disclose that it had exercised its jurisdiction by reference to the terms of the definition of "interdependency relationship" and the considerations made relevant by the SIS Regulations. 16 That failing is not present in the Tribunal's reasons on this occasion. Not only are s 10A of the SIS Act and reg 1.04AAAA(1) of the SIS Regulations extracted but also, more importantly, the Tribunal's reasons, under the heading "Tribunal's Deliberations and Findings", expressly address s 10A in the context of the material before the Tribunal and do so by expressly focussing (at [34]) upon the existence or otherwise of an interdependency relationship, as defined, immediately before the deceased's death, viz, "[t]he Tribunal does not believe the facts on offer support a finding that immediately prior to the Deceased Member's death an interdependency relationship existed." A like focus on the position immediately before the deceased's death is evident at paras 44 and 45 of the Tribunal's reasons. 17 As to the submission that the Tribunal "failed to have regard to a relevant consideration, namely that the deceased and applicant were in fact living together under the one roof between 1 May 2011 and 16 June 2011", I make the following, additional observations. In Edington, at [49], the point was made, applying in context more general statements on the subject made in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, that a "relevant consideration" for the Tribunal in dealing with a complaint under the SRC Act will necessarily be, "the governing trust deed and insurance terms". Because the Rules of the Fund incorporate by reference the definition of "interdependency relationship" in the SIS Act and, in turn, the SIS Regulations, the terms of that definition and the criteria there specified will, for this reason, be "relevant considerations" as that concept is to be understood for the purposes of determining whether the Tribunal committed an error of law by failing to take account of a "relevant consideration". An argumentative factual proposition advanced by a party in support of a desired conclusion by the Tribunal is not a "relevant consideration" in the sense just described. Here, the Tribunal has done nothing more or less than to advert to and apply the definition and the terms of the remitter order so as to reach a conclusion as to whether the decision under review was fair and reasonable. 18 Reading the Tribunal's reasons as a whole, a perfectly logical, permissible explanation has been given for the conclusion as to why the Tribunal considered that it was fair and reasonable to affirm the decision of IS Industry. The Tribunal has not ignored evidence as to the deceased's use of Mr Williams' address for voter registration, driver's licence and attendances on doctors. Rather, the Tribunal has permissibly observed (at [35]) of this use that they, "all concentrated around the Father's residence and environs" and "merely go to the issue of the closeness of the relationship". 19 In essence, the Tribunal has viewed the whole of the evidence as disclosing neither more nor less than an intended fortnight's visit by the deceased to his father after years of living and working abroad, prior to the intended taking up abroad of another work assignment, which was extended by a need for extensive dental treatment and an emergence of an underlying medical condition (at [37]). 20 The Tribunal noted that, on 16 June 2011, the deceased was admitted to hospital and thereafter gradually deteriorated until his death in November 2011, never again setting foot in Mr Williams' home. The Tribunal just was not persuaded on the evidence before it that the deceased and Mr Williams had ever lived together in an interdependency relationship, as defined. Having reached that conclusion, and as to "Issue Two", as identified by Reeves J, the Tribunal made this observation (at [42]): 42. The Tribunal does not consider Issue Two can operate to repair that deficiency. The logic is unsustainable; namely, that despite the fact that the [deceased] and [Mr Williams] did not live together, prior to his being hospitalised, that somehow his physical absence in hospital could now 'add-back' that missing dimension. That observation discloses no error of law. It was one reasonably open for the Tribunal to make on the material before it. 21 In Williams v IS Industry (No 1), Reeves J, as I must do, applied the emphatic reminder found in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 that the decisions of administrators and administrative tribunals must not be read narrowly and with an eye for error. It is just that, giving full measure to that reminder, in that earlier case Reeves J found that there had been a failure to apply the definition in the Rules of the Fund was evident. Here, no such failure is evident. Instead, what is evident is a failure by Mr Williams to appreciate the force of that reminder by a minute dissection of the Tribunal's reasons to the end of finding supposed errors of law by reading particular passages in isolation and out of context. That is a theme which permeates each of the questions in the notice of appeal. Further, as to question 4 and the existence of material to support a finding that the deceased intended to depart so as again to work overseas, the Facebook post of 31 May 2011 to which the Tribunal referred (at [38]) supports such a finding. 22 In its reasons, the Tribunal noted (at [43]) that Mr Williams had been unsuccessful in an overseas court in challenging a Will and Power of Attorney, each executed by the deceased on 4 October 2011, which had the effect of removing Mr Williams from making decisions on his behalf. It is also evident on the material before the Tribunal that Mr Williams and the mother of the deceased were estranged. Further, the evidence before the Tribunal included evidence that the deceased's mother had stayed in hospital with the deceased for some months, that in September 2011 the deceased had been airlifted to a hospital closer to his mother's home and then had been removed to a hospice nearby. Against this background and the advancing of what truly was a factually argumentative case, it may perhaps be that the overturning of the Tribunal's decision is seen by Mr Williams as vindicating the genuine, mutual closeness of the relationship between him and the deceased. However this may be, the role of the Court is the limited one of answering questions of law with respect to the Tribunal's decision. Here, all that the Tribunal has done is to undertake again the task of deciding whether the decision under review was fair and reasonable, as it was required by the remitter order. It was done that without making any error of law. 23 For these reasons, the appeal must be dismissed. As the respondents each made a submitting appearance, there will be no order as to costs. 24 In the circumstances, it is desirable to add the following. The Tribunal found (at [35]) of the relationship between Mr Williams and the deceased that it was "properly characterised as a normal loving one, simply bearing the hallmarks of a father/adult son relationship". The dismissal of Mr Williams' appeal in no way calls into question the integrity of that finding. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 20 April 2018