Defence Force Retirement & Death Benefits Authority v Wade, K.T

[1990] FCA 327

JUDGMENT No. .%.?./ q - ~ ! ,

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTHWALES DISTRICT REGISTRY )	NO. N G 844 of1989

1

GENERAL DIVISION 1

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR M.D. ALLEN

(SENIOR MEMBER), AND MESSRS C.J. STEVENS, AND G.R. TAYLOR

(MEMBERS )

BETWEEN: DEFENCE FORCE RETIREMENT

AND DEATH BENEFITS

AUTHORITY

Applicant

AND: KRYSTYNA THERESA WADE

Respondent

CORAM: Burchett J.
PLACE: Sydney

DATE : 5 April 1990

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

This is an appeal from a decision of the Administrative Appeals Tribunal, finding that the respondent, a widow, was substantially dependent upon her husband at the time of his death. The appeal is, of course, limited to questions of law. The tribunal gave detailed reasons, in which it analysed the facts and the considerations which it saw as relevant to its decision with admirable thoroughness. The question arose, under the Defence Force Retirement and Death Benefits Act 1973, as to whether the applicant was a widow within the meaning of section 3 of that Act. Section 3 contains the following definition of

"widow" :

"(a) a person who was legally married to the deceased person at the tlme of the deceased person's death and who, at that time, was living with the deceased person on a permanent and bona fide domestic basis;

(b) a person who was legally married to the deceased person at the time of the deceased person's death but who was not living with the deceased person on a permanent and bona flde domestic basis at that time, and who, in the opinion of the Authority, was wholly or substantially dependent upon the deceased person at that time.

The circumstances as set out in the decision of the tribunal, may be briefly summarized. The applicant is the widow, in the normal use of language, of sergeant Victor Wade, a member of the Australian regular army, who died as a result of a motor vehicle accident on 11 March 1982. At that time, he was a contributing member of the scheme established under the Act to which I have referred. Also at that time, the applicant and her husband were living separately and apart, but in circumstances which did not demonstrate a complete break in their marriage. There had apparently been tensions within the marriage, and sergeant Wade had, as shortly before his death as 17 ~ u l y 1981,

decided to live at his sergeants1 mess. He continued arrangements with hls wife of a financial nature, and appears to have remalned on falrly close terms with her.

During the course of the greater part of the marriage, the applicant had found it necessary to earn income by work outside the home. In 1979, the parties had bought a block of land and contracted to have a house built on it, obtaining finance through the Defence Services Homes Corporation and the Commonwealth Savings Bank. During the marriage, the general arrangements between the parties seem to have involved - and the tribunal so found - that the applicant had total control of the family finances. And the tribunal found that this situation continued after the deceased made his decision to live at the sergeants' mess.

The nature of the deceased's continued contact with his

!	wife and children was examined by the tribunal, and it accepted
I
evidence that nothing was said between the parties to indicate that either regarded the marriage as at an end. Sergeant Wade continued to pay for membership of the Army Health Benefit Society for the applicant and the children, and in addition contributed whatever she asked to outgoings, such as mortgage
I	repayments and rates, and continued to mind the children at the
I
house, both when the applicant was engaged on maintenance tasks
out to earn income as a member of the army reserve. The deceased in connection with the dwelling and also when the applicant went
also used his bankcard to purchase, for the applicant's use, a motor vehicle in respect of which he continued to make the repayments up to the time of his death.
It was found, as a fact, that the applicant depended on the deceased's contribution to make the mortgage repayments and to pay rates and outgoings. Indeed, until a matter of days before the deceased's death, the applicant was out of employment, apart from her army reserve activities. At the time of the death of the deceased, she had just re-entered fulltime employment.
The tribunal referred to a number of decisions, from which it obtained guidance as to the relevant concepts. 1n particular, it cited a passage from the decision of the full court in Commissioner of Superannuation v. Scott (1987) 13 FCR 404 at 408 in which Mr Justice Fisher and nr Justice Spender said:

"In our opinion the Tribunal erred in law in directing itself that the word 'substantially' meant something more than trivial, minimal or nominal. It is necessary to construe it alongside the word 'wholly' and not by reference to what it does not mean. It has in our opinion the meaning, in relation to a person in the expression 'wholly or substantially dependent', that that person is primarily, essentially or in the main dependent upon another person."

Immediately before this statement, their Honours, also at page 408, had cited a passage from a judgment of Mr Justice Deane in Tillmanns Butcheries Pty Ltd v. Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 348, where his Honour pointed out that the word 'substantial' is not only susceptible of ambiguity - it is a word calculated to conceal a lack of precision.

The situation which the Tribunal had to consider in the present case, while of course it was not without precedent, may be regarded as nevertheless somewhat unusual. The Act, in the paragraphs of the definition of "widow" to which I referred earlier, contemplates the two situations, of married people living together in the normal way, and of the contrasting case of a complete separation where nevertheless the widow can be said to have been wholly or substantially dependent upon the deceased person at the time of his death. Here the situation was very much in the borderland between the two. In this situation, it was natural that the Tribunal should make references to family expenditure, since many of the payments made by one or other, or both, of the parties must have had more than one aspect. They were each utilizing, in one way or another, the same house. They were each concerned with the children, and there was a mingling of resources.

However, the appellant says that the Tribunal misdirected itself, and distracted itself from the true question, in the references which it made to family expenditure and to the care of the children. It seems to me that this criticism is not

parties as inextricably intertwined, and it was not irrelevant to	really justified. The Tribunal could well see the affairs of the
consider their total situation, although ultimately the Tribunal had to come back to the statutory question. As I read the reasons, that is just what it did.
~t was suggested that there was an error involved in a reference made by the Tribunal to the judgment of Mr Justice Menzies in Kauri Timber Co. (Tas.) Pty. Ltd. v. Reeman (1973) 128 CLR 177 at 185, where his Honour referred to a citation by the trial judge from the Main Colliery Co. Ltd. v. Davies (1900) AC 358.
Chief Justice Burbury had drawn the conclusion that "the standard of maintenance and support is not to be equated to some notional standard for a family of this class, but 'what the family was in fact spending, for the purpose of its maintenance as a family'." Having referred to 14r Justice Menzies' quotation of this passage, the Tribunal commented:

"It is a point to be kept well in mind in cases such as this, where family income is pooled to enable the family as a unit to exist at a certain lifestyle, that it is, as Chief Justice Burbury said, what the family was in fact spending for the purposes of its maintenance as a family to which regard must be had when concepts such as dependence or substantial dependence are examined."

I think it ought not to be overlooked that in this where family income is pooled to enable the family as a unit to	comment the Tribunal is referring to a situation, as it says,
exist at a certain lifestyle. If the comment is seen as restricted in that way it seems to me that the criticism immediately becomes blunted. A comment in those terms is not inconsistent with the Act, nor is it inconsistent with what was said by Chief Justice Barwick in the Kauri Timber case at page 180, where he referred to:

"the provision of the necessities of life having regard to the manner in which the worker's household in which the claimant to dependency has participated lived."

The appellant also says that there was an error in the concept, discussed by the Tribunal, that two parties can be substantially dependent on each other. It does not seem to me that there is any error of law in this concept; it is a question of fact. In my opinion there may in fact be dependence in a case where it is impossible for either party to go out to work to earn money without one caring for, for example, a severely handicapped child. In such a case, if each parent worked fifty per cent of the time, and cared for the child fifty per cent of the time, mutual dependency would seem to follow quite clearly. It is not necessary to resort to such extreme examples. The concept may be illustrated by reference to a number of cases which were cited by the respondent; in particular, Ball v. Newey (1988) 13 NSWLR 489 at pages 491-492; Borson v. CA Hine and CO Pty Limited (1965) WAR 19 at 21-22; and Maas v. Department of Education (1980) 54 WCR

167.

It should be emphasized that, unless it can be shown that the Tribunal has fallen into actual error of law affecting its decision, a decision of the Administrative Appeals Tribunal will be impregnable to attack. It is not open to the court to review the Tribunal's decision on questions of fact. The court's function is limited to reviewing a decision for error of law. AS was pointed out in Cave11 v. Repatriation Commission (1988) 9 AAR 534 at 539, even the presence of error does not always demonstrate that the erroneous statement influenced the actual decision.

It has been repeatedly said that the court should not subject the reasons of an administrative tribunal to an over-nice linguistic analysis, or be zealous to pick up defects in the tribunal's reasons on incidental points. It is the substance of the reasoning which matters.

In the present case, the tribunal cited the central passage in a decision of a full court of this court which lays down the test. There is no reason to think that the tribunal failed to apply that test, or that any of its incidental observations so distracted its attention from the passage which it cited, and discussed, as to make that citation illusory. On the contrary, I think the tribunal clearly applied the passage to which it referred, and its decision, having applied that passage, was entirely one of fact.

That this kind of decision must be seen as truly a v. Kearney (1976) 8 ALR 455. At page 456, Chief Justice Barwick decision of fact was made very clear by the High Court in Aafjes sald:

"But, for my part, the question of dependence or no dependence, whole or partial, is a question of fact. It has been said to be so in many authorities by distinguished members of the House of Lords. It cannot be turned into a question of law by the citation of authorities. The only question of law which can emerge in a case such as the present is whether there was any evidence on which the Commission could conclude that in fact the respondent was wholly dependent on her father for support."

At page 458 he said:

"I would express my dissent from the view that because 'the facts are clearly stated' that 'the question as to whether on facts found which legal category is the appropriate one is

. . . a question of lawr. On the contrary, the

conclusion of dependence is one of fact and not the assignment of a situation to a legal

category. ''

See also page 463 in the judgment of Mr Justice Mason. To the same effect are passages in the Main Colliery case (supra) and Kauri Timber case (supra, at 179). The elusive nature of the concept, as it has been held to be properly understood in Scott's case (supra), makes it peculiarly a matter requiring factual evaluation. This aspect of dependence is perhaps especially brought out if one bears in mind the comment of Mr Justice Gibbs in the Aafjes case at 461:

" ~ t is not the mere fact of receipt of support

but the dependence or reliance upon another to

provide it that matters."

It is also clear, on the authorities, that the situation cannot be evaluated according to some theoretical standard, but must be considered on the basis of the actual standards of the parties whose situation is being evaluated. A good example of that is the treatment of the motor car in the Kauri Timber case. It was suggested in argument that the lapse of time since 1973

I	may allow it to be thought that the motor car was treated as not
1	an essential adjunct of living in that case, whereas today it
I
would be. But the fact is that at page 190 Mr Justice Gibbs made
!
I	it clear the reason the motor car was regarded as a luxury in
!
I
that case was simply that the parties themselves saw it in that light, having regard to the standard of support which they had set, and the way in which they conducted their lives. This again emphasises the importance of the evaluation by the tribunal of fact in each case in which dependence becomes a seriously contested issue.
It seems to me that what the tribunal has done in the present case is to state the correct test, and to apply it in a situation which perhaps is not totally what might be regarded as a normal situation. I can find no error of law in the tribunal's
application of that legal test to those unique facts. Accordingly, the appeal will be dismissed. I note that an arrangement as to the bearing of costs by the appellant has already been made between the parties.
I certify that this and the
preceding nine (9) pages are a true copy of the Reasons for Judqment herein of his Honour