Forbes v NRMA (Motor Accident Injuries)
[2022] ACAT 88
•25 October 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
FORBES v NRMA (Motor Accident Injuries) [2022] ACAT 88
MAI 4/2022
Catchwords: MOTOR ACCIDENT INJURIES – application for review of insurer’s decision pursuant to section 193 of the Motor Accident Injuries Act 2019 – denial of liability for death benefit – where applicant and deceased were cohabiting siblings – whether applicant was a dependant of the deceased as defined by section 168 of the Motor Accident Injuries Act 2019 – definition of domestic partner of deceased – whether applicant and deceased were in domestic partnership as defined by section 169 of Legislation Act 2001
Legislation cited: Domestic Relationships Act 1994 s 3
Legislation Act 2001 ss 4, 6, 169
Legislation (Gay, Lesbian and Transgender) Amendment Act 2002
Motor Accident Injuries Act 2019 ss 55, 168, 169, 174, 192
Road Transport (Third Party Insurance) Act 2008
Subordinate
Legislation cited: Explanatory Statement Legislation (Gay, Lesbian and Transgender) Amendment Bill 2002
Cases cited:Federal Commissioner of Taxation v St Hubert’s Island Pty Ltd (in liq) (1978) 138 CLR
Favelle Mort Ltd v Murray (1976)133 CLR 580
McKenzie v Storer [2007] ACTSC 88
Yager v R (1977) 139 CLR 28
Tribunal:Acting Presidential Member T Kyprianou
Date of Orders: 25 October 2022
Date of Reasons for Decision: 25 October 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) MAI 4/2022
BETWEEN:
JACQUELINE FORBES
Applicant
AND:
INSURANCE AUSTRALIA LIMITED
ACN 000 016 722 TRADING AS NRMA
Respondent
TRIBUNAL:Acting Presidential Member T Kyprianou
DATE:25 October 2022
ORDER
The Tribunal orders that:
Application is dismissed.
………………………………..
Acting Presidential Member T Kyprianou
REASONS FOR DECISION
Ms Jacqueline Forbes (the applicant) has made an application to the Tribunal to review the decision of Insurance Australia Limited trading as NRMA Insurance (the respondent), which denied payment of the death benefit to her following the death of her brother. That decision was originally made on 16 February 2022 and affirmed upon internal review by the respondent on 31 March 2022. The review decision is an externally reviewable decision as defined by section 192 of the Motor Accident Injuries Act2019 (the MAI Act) and is referred to in these reasons as the reviewable decision.
Background
There does not appear to be any dispute about the factual background leading to the claim.
The applicant’s brother, Mr Alistair Forbes Urquhart died as a result of a motor accident on 15 September 2021. The motor vehicle he was driving collided with a truck which entered the intersection of the Barton Highway and Gungahlin Drive in Kaleen in the ACT against a red light and struck Mr Urquhart’s motor vehicle, ejecting him from his vehicle.
The applicant and Mr Urquhart had been co-habiting since 2008. In that year Mr Urquhart moved to Canberra from Melbourne and moved in with his sister. After his move he worked as a security guard until he had an injury to his back in the course of his employment. His earning capacity was impaired by that injury. Nevertheless, he continued to contribute to household finances by paying for household expenses and sharing the food, utilities and rent bills.
In 2015 the applicant purchased a townhouse for $525,000. Mr Urquhart contributed $60,000 towards the purchase and moved into the townhouse with the applicant. Once they moved into the townhouse Mr Urquhart contributed $500 per fortnight towards joint living and household expenses. The applicant and her brother also shared household chores and had some joint bank accounts. They also supported each other emotionally. During the period of their cohabitation they both had to deal with major health issues and they supported each other through those. The applicant was appointed as Mr Urquhart’s carer in 2018 when he was diagnosed with metastatic melanoma and she remained his carer until the time of his death. Neither the applicant nor Mr Urquhart had domestic relationships with other people since 2015.
Following Mr Urquhart’s death the applicant lodged an application with the respondent for funeral benefits on 5 November 2021. The respondent accepted liability for that claim. On 15 December 2021 she lodged an application for dependant benefits. On 16 February 2022 the respondent denied liability for that claim on the basis that the applicant did not meet the definition of a ‘dependant’ under the MAI Act and the Legislation Act 2001 (the Legislation Act).
The applicant lodged an application for internal review of that decision on 9 March 2021. The respondent reviewed and affirmed the decision on 31 March 2022 for the same reason as the 16 February 2022 decision was made.
The applicant lodged an application for external review of the decision with the Tribunal on 3 May 2022 along with an application for extension of time as the application for review was 5 days late. On 25 May 2022 the Tribunal made an order granting the extension of time sought by the applicant for lodging the application for review.
Summary of the dispute between the parties
The dispute which has led to the application for review arises out of the interpretation of the definition of the word ‘dependant’ in section 168(1) of the MAI Act and more particularly the definition of the phrase ‘a domestic partner of the person’ under that section.
Both parties have filed submissions in support of their position in the dispute.
The applicant’s solicitor has submitted that the applicant was a dependant of her deceased brother because they were domestic partners. It has been submitted that the words ‘domestic partner’ should be read to include a sibling relationship in circumstances where there is a high degree of emotional and financial interdependence. Mr Baker, the solicitor for the applicant, referred to the objects of the MAI Act, which are set out in section 6 of the Act and the Chief Minister’s presentation speech to the Legislative Assembly for the MAI Bill, for support of the submission that it was the legislature’s intention that the MAI Act provide benefits to a wider class of persons than the now repealed Road Transport (Third Party Insurance) Act 2008 provided for. The applicant’s solicitor submitted further that ‘a domestic partnership’ as defined under section 169(2) of the Legislation Act could include a sibling relationship because the indicators listed in that section for deciding whether two people are a couple in a domestic relationship is not an exhaustive list and the section does not expressly exclude sibling relationships. He submits further that the applicant’s relationship with her brother meets some of the indicators listed in section 169(2).
Finally, the applicant’s submissions refer to the definition of domestic relationship in the Domestic Relationships Act 1994 (the DR Act) and note that the definition in the DR Act includes domestic partnership as defined by the Legislation Act. It is submitted that because there is no requirement for a romantic relationship to exist for a domestic relationship to exist between two people under the DR Act and because the definition includes domestic partnership, sibling relationships are included in the term ‘domestic partnership’ as there is no requirement for a romantic connection between the two people forming the relationship.
The solicitors for the respondent have submitted that if the legislature intended to include siblings in the definition of domestic partnership it would have expressly done so. They also highlight the fact that the definition of domestic partnership under section 169(2) of the Legislation Act refers to two people living together as a couple, and that excludes people merely living together or “house-sharing”. The respondent’s submissions also say that the applicant may have a cause of action for loss of dependency under the Civil Law (Wrongs) Act 2002, which lists siblings as potential dependants, and her claim under the MAI Act for death benefits is therefore ‘unnecessary’.
Legislative Framework
Section 55(1)(b) of the MAI Act provides that a dependant of a person who died as a result of a motor accident may make an application for defined benefits. Section 169(1) provides that a dependant is entitled to death benefits in relation in relation to the person’s death and section 174(a) provides that a dependant who is a domestic partner of the person who died is entitled to $190,000 AWE indexed (AWE indexed is defined in sections 17 and 18 of the MAI Act).
Section 168(1)(b) of the MAI Act relevantly defines a dependant of a person who died to mean a domestic partner of a person. The term domestic partner is defined in section 169 of the Legislation Act as follows:
169 References to domestic partner and domestic partnership
(1)In an Act or statutory instrument, a reference to a person’s domestic partner is a reference to someone who lives with the person in a domestic partnership, and includes a reference to a spouse, civil union partner or civil partner of the person.
NoteThe Macquarie dictionary, (1997) defines spouse as ‘either member of a married pair in relation to the other; one’s husband or wife’.
(2)In an Act or statutory instrument, a domestic partnership is the relationship between 2 people, whether of a different or the same sex, living together as a couple on a genuine domestic basis.
Example—indicators to decide whether 2 people are in a domestic partnership
1the length of their relationship
2whether they are living together
3if they are living together—how long and under what circumstances they have lived together
4whether there is a sexual relationship between them
5their degree of financial dependence or interdependence, and any arrangements for financial support, between or by them
6the ownership, use and acquisition of their property, including any property that they own individually
7their degree of mutual commitment to a shared life
8whether they mutually care for and support children
9the performance of household duties
10the reputation, and public aspects, of the relationship between them
(3)In an Act or statutory instrument, a reference to a domestic partnership includes a reference to a marriage, a civil union and a civil partnership.
Section 4(2) of the Legislation Act provides that ACT Acts are taken to be made on the basis they will operate in conjunction with the Legislation Act. Section 6(1) of the Legislation Act provides that a provision of the Legislation Act must be applied to an Act, in accordance with the terms of the provision, except so far as it is displaced in a way recognised by section 6. Section 6(6) provides a provision of the Legislation Act must not be taken to be displaced by a provision of another Act so far as the provisions can operate concurrently. Section 6(5) provides section 6 applies despite any presumption or rule of interpretation.
In this case the definition of domestic partner as provided for in section 169 of the Legislation Act is not displaced by any of the words of the MAI Act. Therefore, the question which must be determined is whether the applicant was Mr Urquhart’s domestic partner under section 169 of the Legislation Act and therefore his dependant for the purposes of sections 55(1)(b) and 169(1) of the MAI Act.
Does the applicant satisfy the definition of domestic partner?
There does not appear to be any dispute about the fact that the applicant had lived with her late brother for several years prior to his death.
Sub-section 169(1) of the Legislation Act states that a reference to a person’s domestic partner is a reference to someone who lives with the person in a domestic partnership and it includes a reference to a spouse, civil union partner or civil partner of the person.
The question then becomes, was the applicant in a domestic partnership with her late brother as defined by section 169(2) of the Legislation Act? I agree with the submission made by the applicant’s solicitor that the reference to the relationships listed after the word “include” in sub-section (1) is not intended to be exhaustive.[1]
[1] See Federal Commissioner of Taxation v St Hubert’s Island Pty Ltd (in liq) (1978) 138 CLR 210 at 216; Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 589
However, even though the list of relationships in sub-section (1) may not be exhaustive of domestic partnerships they set a pattern and provide examples of the kind of relationship the legislature meant to capture by the definition. All the examples listed are examples of people living together as couples. The list does not include other familial relationships such as parent and child or siblings.
Sub-section 169(2) further clarifies the definition of domestic partnership the section applies to. It states that it is the relationship between two people, whether of a different or the same sex, living together as a couple (emphasis added) on a genuine domestic basis. The ordinary meaning of two people living together as a couple denotes an amorous union to the exclusion of others, rather than a relationship between two people cohabiting and supporting each other financially and emotionally.
Section 169 was inserted in the Legislation Act in 2002 by the enactment of the Legislation (Gay, Lesbian and Transgender) Amendment Act 2002 (now repealed). The explanatory statement issued with the Bill which became that Act published on 12 December 2002 states as follows:
Clause 4 New Sections 169 and 169A
This clause inserts new sections into the Legislation Act. The Legislation Act does not currently contain provisions relating to the reference to “domestic partner” and “domestic partnership” or reference to “transgender people” in legislation. The purpose of this clause is to create consistent terms for use in all other legislation and statutory instruments.
A “domestic partner” is defined in new section 169 (1), as meaning a person who lives with another person in a domestic partnership, and includes a spouse.
A “domestic partnership” is defined in new section 169 (2) as two people, whether of the same or opposite sex, living together as a couple on a genuine domestic basis.
While some legislation currently recognises same sex relationships, the level of recognition and the terminology used to describe such a relationship is not consistent across ACT legislation. The effect of this definition is to create a single consistent term to be used in all ACT legislation.
It is clear from the clause of the explanatory statement reproduced above that the intention of the legislature in defining a domestic partner/partnership was to introduce consistency across all ACT legislation relating to couples living together regardless of their sexual orientation. It was not to expand the ordinary meaning of the phrase ‘domestic partner/partnership’ to include relationships other than between two people living together as a couple.
This contrasts with the definition of ‘domestic relationship’ in the DR Act relied upon by the applicant in her submissions. The DR Act regulates adjustment of financial interests between people who have a domestic relationship as defined in the DR Act. It has been widely accepted that the definition of ‘domestic relationship’ in the DR Act has a broad scope and it includes non-sexual relationships as well as relationships between people who provide care and support to each other but are not a couple.[2] The definition of domestic relationship in section 3(1) of the DR Act includes domestic partnerships as defined in the Legislation Act. However, the definition of domestic relationship in section 3 is much broader than the definition of domestic partnership as defined in the Legislation Act. I do not accept the submission made on behalf of the applicant that because the definition of domestic relationship under the DR Act includes domestic partnerships, that definition, expands the definition of domestic partnerships under the Legislation Act. Put another way, a domestic partnership as defined by the Legislation Act is a domestic relationship as defined by the DR Act, but a domestic relationship defined by the DR Act is not necessarily a domestic partnership as defined by the Legislation Act. I accept that the definition of ‘domestic relationships’ in the DR Act may include sibling relationships. However, in my view the definition of ‘domestic partner/partnership’ in the Legislation Act does not, for the reasons set out above.
[2] McKenzie v Storer [2007] ACTSC 88 [57]-[58]
If the legislature intended to define ‘dependant’ in section 168 of the MAI Act to mean a member of a domestic relationship as defined by the DR Act, it would have said so. Unlike definitions of words in the Legislation Act, which by default apply to all ACT statutes which contain those defined words[3], definitions in other Acts do not apply to all other Acts, even when the same words are used in other Acts. In circumstances where a term is not defined either in the subject Act or in the Legislation Act, it is permissible for courts and tribunals to look at definitions of the same term in similar Acts as an aid to interpretation, but the definition in the similar Act cannot be simply adopted.[4] In any event, the MAI Act makes no reference to a ‘domestic relationship’. It only makes reference to a ‘domestic partner’ and that term is defined in the Legislation Act. Further, the MAI Act regulates the payment of insurance benefits to people injured as a result of a motor accident, while the DR Act regulates financial interests of people in domestic relationships. The two Acts cannot be said to deal with similar subject matters.
[3] See sections 4 and 6 of the Legislation Act
[4] Yager v R (1977) 139 CLR 28 at 43 per Mason J
I accept that the definition of ‘domestic partner’ in the Legislation Act, must be applied in the context of the MAI Act. However, I do not accept the submission that either the objects of the MAI Act or the Chief Minister’s MAI Act presentation speech to the Legislative Assembly contain anything which indicate an intention to displace or expand the definition of ‘domestic partner’ as it appears in the Legislation Act. I do not consider that the Chief Minister’s remarks to the effect that the MAI Act would provide benefits to more people than the previous legislation which applied to injuries caused by motor accidents is sufficient reason to interpret the definition of the term other than as drafted in the Legislation Act. Nor do the objects of the MAI Act in section 6 of the Act provide reason to assume that the expression ‘domestic partner’ should be expanded. One of the objects of the MAI Act is to provide benefits to people injured in motor accidents and to their dependants in cases where the motor accident causes death.[5] However, that object is subject to limitations and exclusions and the definition of domestic partner which applies to the MAI Act is limited to couples living together on a domestic basis.
[5] Section 6(a) MAI Act
Though I accept the evidence given by the applicant in her statutory declaration dated 14 December 2021 that she and her late brother provided emotional and financial support to each other and that she will be worse off financially without him, the MAI Act provides for payment of death benefits to dependants of the person who died and the definition of dependant does not include a dependant sibling. Accordingly, the application for review of the reviewable decision must be dismissed.
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Acting Presidential Member T Kyprianou
| Solicitors for the Applicant: | Mr Richard Baker, BDN Lawyers |
| Solicitors for the Respondent: | Mr Kent Owen, Sparke Helmore Lawyers |
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