FEDERAL COURT OF AUSTRALIA
Howard v Batistich [2019] FCA 525
File number: NSD 2417 of 2018 Judge: ROBERTSON J Date of judgment: 15 April 2019 Catchwords: SUPERANNUATION – appeal on a question of law from decision of the Superannuation Complaints Tribunal – whether Tribunal wrongly identified the question it had to answer – whether Tribunal failed to give the term ‘de facto partner’ its proper statutory construction – whether Tribunal failed to give adequate reasons Legislation: Acts Interpretation Act 1901 (Cth) s 25D
Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 37(6), 40, 46
Interpretation Act 1987 (NSW) s 21C
Superannuation Act 1916 (NSW) s 3
Cases cited: Cameron v Board of Trustees of the State Public Sector Superannuation Scheme [2003] FCAFC 214; 130 FCR 122
Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; 179 FCR 554
Edwards v Postsuper Pty Ltd [2007] FCAFC 83
Haematite Pty Ltd v Ristevski [2002] FCA 408; 189 ALR 685
HEST Australia Ltd v Sykley [2005] FCA 1381; 147 FCR 248
Jonah v White [2011] FamCA 221; 258 FLR 236
Lykogiannis v Retail Employees Superannuation Pty Ltd [2000] FCA 327; 97 FCR 361
Marks v CSS Board of Trustees [2005] FCA 797
Mercer Superannuation (Australia) Ltd v Billinghurst [2016] FCA 1274; 161 ALD 338
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852
National Mutual Life Association of Australia Ltd vJevtovic [1997] FCA 359; 217 ALR 316
Qushair v Raffoul [2009] NSWCA 329
Sadiq v NSW Trustee and Guardian [2015] NSWSC 716
Spencer v Burton [2015] QCA 104; [2016] 2 Qd R 215
Waterford v Commonwealth [1987] HCA 25; 163 CLR 54
Weldon v Levitt [2017] FCCA 3072
Pearce D, Interpretation Acts in Australia (LexisNexis Butterworths, 2018) [5.67]-[5.69]
Date of hearing: 15 April 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 77 Counsel for the Applicants: Mr DP O’Connor Solicitor for the Applicants: Simpson Freed Counsel for the First Respondent: Ms J Needham SC with Ms M Tovey Solicitor for the First Respondent: Monaco Solicitors Counsel for the Second Respondent: The Second Respondent submitted to any order of the Court, save as to costs ORDERS
NSD 2417 of 2018 BETWEEN: GENEVIEVE MAJELLA HOWARD
First Applicant
JEFFREY GRAHAME HOWARD
Second Applicant
AND: JENNA BATISTICH
First Respondent
NSW FIRE BRIGADES SUPERANNUATION PTY LIMITED
Second Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
15 APRIL 2019
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicants pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt…
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- AGLC
- Howard v Batistich [2019] FCA 525
- Case
- [2019] FCA 525
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining if the SCT had erred in its identification of the question at hand and whether it had correctly applied the statutory definition of 'de facto partner'. Furthermore, the court had to assess if the SCT provided sufficient reasoning for its decision. The court closely examined the SCT's reasoning and its application of the relevant legal principles.
The Federal Court found that the SCT had not erred in its identification of the question or in its interpretation of 'de facto partner'. The court determined that the SCT had adequately considered the evidence and provided sufficient reasoning for its decision. The court held that the SCT's conclusion that the claimed spouse qualified as a 'spouse' and was entitled to the pension was fair and reasonable. Consequently, the appeal was dismissed.
The court ordered that the application be dismissed and that the applicants pay the first respondent's costs, as agreed or assessed. This decision underscores the importance of the SCT's role in reviewing the fairness and reasonableness of trustee decisions in superannuation matters.
Orders
Orders of the court
1. The application is dismissed.
2. The applicants pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Tribunal then turned to its consideration of these matters. Because of the nature of the grounds of review I reproduce that consideration in its entirety.TRIBUNAL’S DELIBERATIONS AND FINDINGS24.Under s37(6) of the Complaints Act the Tribunal must determine whether the Trustee’s determination that the Claimed Spouse is a spouse eligible to receive a pension was fair and reasonable in its operation in relation to the Complainants and the Claimed Spouse in the circumstances.25.The issue is not what decision the Tribunal would have made on the evidence before the Trustee but whether the decision was fair and reasonable.26.In reaching its determination, the Tribunal has taken into account all the material provided by the Parties, the provisions of the Trust Deed and the relevant law. The Tribunal is satisfied that the material it has relied on has been provided to all Parties.27.The Tribunal considered the Trust Deed and the law relevant to this complaint. It noted that the death benefit in question is only payable as a pension to a spouse of the Deceased Member or, in the absence of a spouse, to the estate of the Deceased Member as a lump sum.28.Therefore the question for the Tribunal is whether the Claimed Spouse qualifies as a ‘spouse’ and is entitled to the pension.Inconsistencies in evidence provided29.The Tribunal notes that there is inconsistency in the evidence provided by both the Complainants and the Claimed Spouse - this includes statutory declarations and submissions dealing with matters such as the duration, commitment to and public acknowledgement of the relationship between the Deceased Member and the Claimed Spouse. However, the Tribunal considers the best evidence available in this case to be the text messages between the Deceased Member and the Claimed Spouse as these provide contemporaneous records of the day to day interactions and inner workings of the relationship.Was the Claimed Spouse in a de facto relationship with the Deceased Member?30.At the outset the Tribunal notes that section 21C of the Interpretation Act states that ‘No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple’ and that therefore this serves as a guide only, with the particular facts of each case to be taken into consideration in making such a determination.31.In respect of the relationship between the Deceased Member and the Claimed Spouse, the Tribunal notes:(a)While the circumstances and duration are subject to some dispute, it does not appear in contention that the Deceased Member and the Claimed Spouse lived together as at the time of the Deceased Member's death.(b)The text messages clearly establish that the Deceased Member and the Claimed Spouse were in a loving, committed relationship and shared responsibility for the day to day household responsibilities, which included shopping, cooking and care of the Claimed Spouses son.(c)It is not disputed that the couple did both contribute to the day to day expenses of running the household, however also maintained their own financial responsibilities in respect of the properties that they each owned.(d)There appears from the text messages and balance of the evidence an intention between the parties for the relationship to continue in the manner of a committed future together had it not been for the very tragic death of the Deceased Member.(e)The newspaper articles reporting the Deceased Member's death, which included pictures of the Deceased Member and the Claimed Spouse, provide evidence of the public acknowledgement of the relationship.32.The Trustee having determined that the Claimed Spouse was in a de facto relationship with the Deceased Member, did not need to consider the extent to which the Deceased Member financially contributed to the Complainants, as the provisions in the Award are very clear in determining that a pension is payable to a spouse and a lump sum payment is only payable in circumstances where there is no spouse.33.On this basis, the Tribunal is satisfied that the Trustee’s decision, in its operation in relation to the Complainants and the Claimed Spouse, was fair and reasonable in the circumstances.Conclusion34.Under s37(6) of the Complaints Act the Tribunal must affirm the decision under review if it is satisfied that the decision, in its operation in relation to the Complainants and the Claimed Spouse, was fair and reasonable in the circumstances. For the reasons stated above the Tribunal is so satisfied.35. The Tribunal affirms the decision of the Trustee.The notice of appeal to this Court