Moses v TIO Board - [2003] NTSC 12

Moses v TIO Board & Anor [2003] NTSC 12
PARTIES:JONATHON MATTHEW PETER PAUL MOSES

v
THE TERRITORY INSURANCE OFFICE BOARD
and
MOTOR ACCIDENTS (COMPENSATION TRIBUNAL)

TITLE OF COURT:  FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  FULL COURT OF THE SUPREME COURT exercising Territory jurisdiction
FILE NO:167 of 2001 (20114837)
DELIVERED:  6 March 2003
HEARING DATES:  6 December 2002
JUDGMENT OF:  MARTIN CJ, MILDREN & THOMAS JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Plaintiff:S Southwood QC
Defendants:J Tippett QC
Solicitors:
Plaintiff:Priestley, Walsh
Defendants:Cridlands
Judgment category classification:    B
Judgment ID Number:  mar0304
Number of pages:  16

IN THE FULL COURT OF THE
SUPREME COURT OF THE
NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Moses v TIO Board & Anor [2003] NTSC 12
No. 167 of 2001 (20114837)

BETWEEN:
JONATHON MATTHEW PETER PAUL MOSES

Plaintiff
AND:
THE TERRITORY INSURANCE OFFICE BOARD

First Defendant
and:
MOTOR ACCIDENTS (COMPENSATION) APPEAL TRIBUNAL
Second Defendant

CORAM: MARTIN CJ, MILDREN & THOMAS JJ
REASONS FOR JUDGMENT
(Delivered 6 March 2003)
MARTIN CJ

The plaintiff claims to be entitled to benefits under the Motor Accidents (Compensation) Act. The basis of his claim is that he was the spouse of a person who met her death as a result of a motor vehicle accident that occurred in the Territory on 2 March 1999. To satisfy that claim he must show that although he was not legally married to the person he had lived with her as her husband on a bona fide domestic basis for a continuous period of two years immediately preceding her death (definition of “spouse” see s 4(c)).
The plaintiff failed in his claim for compensation made under the Act to the Board of the TIO in that particular and, being aggrieved, referred the matter to the Motor Accidents (Compensation) Appeal Tribunal established under s 28. It is constituted by a Judge of the Supreme Court. The Tribunal dismissed the appeal.
No appeal is available from a decision of the Tribunal and by s 30 of the Act it is provided that such a decision is final and not capable of being reviewed in any court of law by prerogative writ or otherwise.
Nevertheless, the plaintiff applied for orders in the nature of certiorari and mandamus to quash the Tribunal’s decision and have the matter remitted to it to be dealt with according to law.
A number of errors, said to be “jurisdictional errors” are alleged, including that the Tribunal failed to come to a determination as to the nature of the relationship between the plaintiff and deceased, failed to take into account relevant considerations, including some of the evidence (direct and circumstantial), and took into account certain irrelevant considerations. As well it was claimed in the originating process that the decision of the Tribunal was unreasonable and that it had failed to exercise its jurisdiction according to law. The application was referred to the Full Court of this Court by a Judge and the Full Court accepted the reference.
I bear in mind that this is not an appeal, and the Court does not retry the question which the Tribunal was established to try.
His Honour correctly identified the issue to be determined and noted that counsel for the applicant before him described the relationship between the applicant and the deceased as “somewhat unconventional”.
In the course of his reasons for judgment, his Honour:
·     noted that the applicant the deceased “had no permanent home but lived at various times in various places including their car, camps or caravan parks in Darwin and Katherine and in the long grass. Neither was employed. Both received benefits. The deceased’s life was characterised by serious alcohol abuse”.
·     found that the plaintiff’s evidence “lacked credibility to such an extent that his evidence simply can not be accepted, even in part” and observed that other than from his sworn testimony, partly corroborated by the evidence of other witnesses, there was no evidence to support the continued existence of a de facto relationship with the deceased. His Honour dealt with the evidence to the contrary produced by the defendant, including records maintained by Centrelink in relation to the applicant’s claim for benefits and records of the Health and Community Services Department. They included matters relating to the existence of violence in the relationship. The evidence from those records told heavily against the applicant’s assertions to the extent that his Honour found that his evidence as to the commencement and duration of the relationship could not be relied upon nor his evidence as to the permanency of the relationship or the degree of mutual love and commitment that he deposed to.
·     referred to the decision of Roy v Sturgeon (1986) 11 NSWLR 454 at 458 – 459 where his Honour Justice Powell noted matters indicative of a bona fide domestic relationship. The learned trial Judge noted that the list was not exhaustive, but that his Honour’s reasoning was “a useful tool in determining questions of this kind”.
·     rejected the submission that the physical separation between the plaintiff and the deceased was only a “minor tiff”; noted that the claim for compensation made on the day the deceased met her death and the plaintiff’s failure to attend her funeral denied any loving relationship of mutual care and support between them.
If it be relevant to an application such as this, I am not satisfied that his Honour erred in his assessment of the evidence or the findings of fact which he drew from it. Contrary to the submissions made on behalf of the plaintiff, I do not consider that his Honour was obliged to make a finding as to the nature of the relationship between the plaintiff and the deceased. It was enough that his Honour consider whether the plaintiff had discharged the onus of proving the prescribed relationship and he plainly did that.
The plaintiff submits that his Honour erred in failing to look at the “composite picture” to emerge from the evidence. That phrase is taken from the judgment of Fitzgerald J in the Federal Court of Australia in Lynam v Director-General of Social Security (1983) 53 ALR 128 at 131. I am not assisted by that case. It was an appeal from a decision of the Administrative Appeals Tribunal in which it was held that the Tribunal had erred in law in limiting its consideration of the question of whether a woman was living with the applicant on employment benefits “as his wife on a bona fide domestic basis although not legally married to him”, to the financial relationship between them. His Honour said at p 131:
“Financial arrangements can not be taken in isolation and considered of particular importance in determining the nature of the relationship. Their materiality, like each of the other elements of the relationship, stems from the impact which they have as part of the overall situation. Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture.”
(See also Lambe v Director-General of Social Services (1981) 38 ALR 405 – “all facets of the inter-personal relationship” approved by Mildren J in Palmer v Territory Insurance Office (2001) NTSC 13).
The learned trial Judge did not fall into that error, he looked at the composite picture taking into account all of the evidence going to the relationship and its continuance. It was not necessary from him to examine each piece of evidence in detail.
During the course of argument it was put that the Tribunal should be treated as an administrative Tribunal, as opposed to being treated as an inferior court, for the purposes of determining the scope of jurisdictional error which could give rise to the making of the orders sought.
In my opinion the plaintiff failed to make out any ground which would justify this Court considering making an order in the nature of certiorari quashing the decision of the Tribunal. That is so whether the Tribunal should be treated as if it were an inferior court of the Territory, since it is constituted by a Judge, or whether it should be regarded as a tribunal constituted by a person without formal legal qualifications (see the distinction drawn by the High Court in Craig v South Australia (1995) 184 CLR 163 at p 176). It seems to me that this Tribunal could be regarded as one of the “anomalous exceptions” referred to by the High Court, but in any event the plaintiff has failed to show any error on the part of the Tribunal which could ground an order in the nature of certiorari based upon any of the commonly accepted grounds of jurisdictional error (as to which see Craig commencing at p 176).
I would not like it to be thought that I am of the opinion that the Tribunal is to be treated in proceedings of this kind as falling into any particular one of the three categories of Tribunals referred to in Craig. There is no binding authority on the point. Kathopoulis v Board of the Territory Insurance Office (1982) 17 NTR 41 has to do with the jurisdiction of the Tribunal upon a reference from the decision of the Board, as is the decision of Gallop J in McMillan v The Territory Insurance Office (1988) 57 NTR 24. In Jones v Motor Accidents (Compensation) Appeal Tribunal (1988) 59 NTR 12 this Court was considering applications for orders in the nature of certiorari and mandamus directed to the Tribunal as a result of it having decided that it had no jurisdiction to hear the matter which had been referred to it. The simple question was whether the Tribunal had jurisdiction to hear the matter, and the Full Court agreed it did not. Kearney J at p 17 noted what Gallop J had said regarding the Tribunal’s functions, but no member of the court had occasion to consider the nature of the Tribunal for the purposes of considering the scope of the operation of an order in the nature of certiorari.
I would dismiss the claim and order the plaintiff to pay the defendants’ costs.
MILDREN J:
This is an application brought by originating motion seeking a remedy in the nature of certiori against the Motor Accidents (Compensation) Appeal Tribunal. The matter having been referred to the Full Court by a Judge of this Court pursuant to s 21 of the Supreme Court Act, we ought to accept it vide s 21(2) for the reason given by Maurice J in Jones v Motor Accidents (Compensation) Appeal Tribunal (1998) 59 NTR 12 at 35.
The Tribunal is established pursuant to s 28 of the Motor Accidents (Compensation) Act (the Act) and is constituted by a Judge of this Court. The Tribunal has jurisdiction to determine matters referred to it by persons aggrieved by relevant determinations of the Board of the Territory Insurance Office, or by the failure of the Board to make a relevant determination within the time limits prescribed by the Act: see s 29(1). Hearings before the Tribunal are conducted de novo: see s 29(4).
Section 30 of the Act provides:
A decision of the Tribunal is final and shall not be capable of being reviewed in any court of law by prerogative writ or otherwise.
In my opinion, s 30 has the result that this Court has no jurisdiction to grant relief where the Tribunal's error involves a non-jurisdictional error of law, but leaves untouched relief in the nature of certiorari for jurisdictional error: see Darling Casino Ltd v New South Wales Casino Central Authority (1997) 191 CLR 602 at 630-634; Jones v Motor Accidents (Compensation) Appeal Tribunal, supra, at 25, 27 and 36.Because the Tribunal is constituted by a Judge of this Court, the Tribunal falls within the "anomalous exceptions" referred to by their Honours in Craig v The State of South Australia (1994-1995) 184 CLR 163, at p 176, and which their Honours ignored: see p 177. Nevertheless there are important observations made by their Honours in Craig at pp 179-180, which may be paraphrased in this way: that inferior courts ordinarily have authority to decide questions of law as well as questions of fact, whereas administrative tribunals lack authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with law. The Act does not expressly confer on the Tribunal the power to decide questions of law; but I do not consider that the presumption referred to by Lord Diplock in In re Racal Communications Ltd [1981] AC 374 at 383 and cited with approval by their Honours in Craig at 179, applies here. Clearly the presumption that Parliament did not intend to confer power on a tribunal to decide questions of law, was premised on the fact that such tribunals are often constituted, either wholly or partly, by persons without formal legal qualifications or legal training. Here the Tribunal is constituted solely by a Supreme Court Judge and I think it is more likely that the legislature in taking that course, expected that the Tribunal would decide questions of law. This is supported by the fact that the Tribunal is bound by the rules of evidence: see Rule 12 of the Motor Accidents (Compensation) Appeal Tribunal Rules. In practice, hearings are conducted in the Supreme Court building as no doubt was intended. The Act also authorises the Judges to make Rules for the Tribunal (s 29A(1)) and those Rules may empower the Master to exercise certain of the functions and powers of the Tribunal: see 29A(2). The Act does not confer on the Tribunal the power to deal with contempt of the Tribunal and there are no provisions in the Act conferring any immunity or protection to the Judge or to counsel or witnesses which is an oversight I think which ought to be addressed by the legislature, but these deficiencies do not alter my view that the overall impression is that it was intended that the Tribunal could determine questions of law.
Accordingly, it is my opinion that mistakes in the identification, formulation and determination of relevant evidence and issues by the Tribunal do not amount to jurisdictional error. Similarly, a failure by the Tribunal to take into account some matter which it was, as a matter of law, required to take into account in determining a matter within jurisdiction, or reliance by the Tribunal upon some irrelevant matter which, as a matter of law, it was not entitled to rely upon in determining a matter within jurisdiction, will not involve jurisdictional errors: see Craig, supra, at 179-180.
The relief which is sought by the plaintiff in this case all depends upon grounds which fall within the description of errors of the kind discussed in para [5] above. None of the grounds urged upon us are jurisdictional errors. The question which the Tribunal had to determine was whether or not the plaintiff was the "spouse", as defined by the Act, of a Ms Nita King who was killed in a road accident. In fact, the Tribunal correctly identified the question it had to decide and answered it.
Counsel for the plaintiff sought to argue that there were errors on the face of the record. Whilst I have no doubt errors on the face of the record cannot be relied upon in the face of s 30, to sustain this argument it was necessary for counsel to refer to material which was clearly not part of the record. The record is confined to the documents initiating and defining the matter in the Tribunal and the order of the Tribunal, and does not include the reasons for decision or the transcript of proceedings: see Craig, supra, at 180-181. The fact that his Honour said that he made an order dismissing the application "for the reasons I have just given", does not have the effect of incorporating the reasons in either the formal order or the "record": see Craig, supra,

at 182.
The originating motion therefore must be dismissed with costs.
THOMAS J
I have had the benefit of reading the draft decision prepared by Martin CJ and the draft decision prepared by Mildren J.
This matter came before the Full Court by reference from a single judge of this Court pursuant to s 21 of the Supreme Court Act.
The application is by way of originating motion seeking a remedy in the nature of certiorari based on jurisdictional error quashing the decision of the Motor Accidents (Compensation) Tribunal of 26 July 2001.
Particulars were given of the jurisdictional error. Essentially the particulars contend the decision of the Tribunal was in error in failing to find the applicant was the spouse (as defined in the Motor Accidents (Compensation) Act) of the deceased woman, Ms Nita King, who was killed in a road accident on 2 March 1999.
The Tribunal found in reasons for decision (AB 550):
“In my opinion, although the applicant and the deceased were no doubt in a relationship of some kind, it has not been demonstrated to have been a bona fide domestic and continuing relationship. Ultimately, the applicant’s case falls far short, I think, of the standard necessary to substantiate such claims for compensation under the Act.
I accept the submissions by the respondent to the effect that although the legislation itself is, by its nature, beneficial legislation and should be interpreted as such, its purpose is to compensate those people who can bring themselves within the definition of a relationship characteristically one of husband and wife.
I am unable to find that the relationship was of a continuous nature for a period of more than two years. I am unable to find that the relationship was of a bona fide domestic kind.”
The particulars refer to matters that it is contended were either relevant considerations the Tribunal failed to take into account or alternately stating the Tribunal took into account irrelevant considerations.
The defendants to this appeal rely firstly on the provisions of s 30 of the Motor Accidents (Compensation) Act which they refer to as the Ouster clause which denies the plaintiff the relief he seeks (see R v Hickman; Ex Parte Fox & Anor, R v Hickman & Ors; exparte Clinton & Ors (1945) 70 CLR 598 at 617 and Woolworths Ltd v Hawke & Ors (1998) 45 NSWLR 13 at 18 & 19). Section 30 provides as follows:
“30. Tribunal's decision is final
A decision of the Tribunal is final and shall not be capable of being reviewed in any court of law by prerogative writ or otherwise.”
I agree with the defendants’ submission on this issue. The decision of the Tribunal does not on its face exceed the Tribunal’s authority and it discloses a bona fide attempt to exercise the powers of the Tribunal as they relate to the subject matter and the Act. Whether or not an error of law was committed along the way, s 30 makes the decision final and not subject to review by this Court.
In Craig v The State of South Australia (1995) 184 CLR 163 at 179 - 180 and at 180 - 181 the High Court considered the question of what constitutes “the record” at some length and this includes the following statement of principle at 180 - 181:
“One finds in some recent cases in this country support for the adoption of an expansive approach to certiorari which would include both the reasons for decision and the complete transcript of proceedings in the ‘modern record’ of an inferior court. As Priestly JA pointed out in Commissioner for Motor Transport v Kirkpatrick, that approach is not precluded by any direct decision of this Court. Nonetheless, it should, on balance, be rejected. For one thing, it is inconsistent with the weight of authority in this Court which supports the conclusion that, in the absence of some statutory provision to the contrary, the record of an inferior court for the purposes of certiorari dos not ordinarily include the transcript, the exhibits or the reasons for decision. More importantly, the approach that the transcript of proceedings and the reasons for decision constitute part of ‘the record’ would, if accepted, go a long way towards transforming certiorari into a discretionary general appeal for error of law upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in a search for some internal error. It is far from clear that policy considerations favour such an increase in the availability of certiorari to correct non-jurisdictional error of law. In particular, a situation in which any proceeding in an inferior court which involved a disputed question of law could be transformed into superior court proceedings notwithstanding immunity from ordinary appellate procedures would represent a significant increase in the financial hazards to which those involved in even minor litigation in this country are already exposed. On balance, it appears to us that the question whether there should be such an increase in the availability of certiorari, or of orders in the nature of certiorari, is one that is best left to the responsible legislature.”

Accordingly, I would agree with Mildren J that neither the reasons for decision or the transcript of proceedings form part of the record. I also agree with his Honour’s conclusion that “s 30 has the result that this Court has no jurisdiction to grant relief where the Tribunal’s error involves a non- jurisdictional error of law.”
I would dismiss the originating motion with costs.
A substantial part of the submissions on behalf of both the plaintiff and the defendant did address the issues raised in the particulars contending there were jurisdictional errors on the part of the Tribunal. Accordingly, I will deal briefly with this issue.
The plaintiff was not legally married to the deceased woman. To establish an entitlement to compensation under the provisions of the Act, he had to bring himself within the definition of spouse as set out in s 4(c) of the Act which definition is as follows:
“(1) In this Act, unless the contrary intention appears –
"spouse", in relation to a person, means –
……
(c)a person who is not legally married to the person but who, for a continuous period of not less than 2 years immediately preceding the relevant time, had lived with the person as the person's husband or wife, as the case may be, on a bona fide domestic basis;”
The Tribunal heard evidence from a number of witnesses. His Honour found the deceased and the applicant had no permanent home, but instead, lived at various times in various places, including their car, various camps or caravan parks in Darwin and Katherine and in the long grass. Neither was employed and both received benefits. The deceased’s life was characterised by serious alcohol abuse.
Various documents went before the Tribunal including a statutory declaration signed by the applicant to the effect that in January 1999 he and the deceased were no longer a couple.
The plaintiff, Mr Moses, gave evidence to the Tribunal. His Honour found that even allowing for the plaintiff’s intellectual disability, Mr Moses’ evidence could not be accepted even in part and found as follows (AB 549):
“The applicant’s evidence as to the commencement and duration of the relationship simply cannot be relied upon, nor, in my opinion, can his evidence as to the permanency of the relationship or the degree of mutual love and commitment that he deposed to be relied upon.”
Evidence before the Tribunal consisted of documentary evidence from Health and Community Services file notes documenting certain difficulties in the relationship, evidence of violence and statements by Mr Moses that he was no longer interested in looking after the woman who is now deceased.
In making his findings his Honour did not fail to take into account relevant considerations nor did he take into account irrelevant considerations. The Tribunal was not required to determine the nature of the relationship, rather the Tribunal was required to determine whether the plaintiff had proved that he fell within the definition of spouse as set out by the Act.
His Honour concluded that the plaintiff had failed to prove his claim.
I am not satisfied that there has shown to have been any error in his Honour’s assessment of the evidence, with the question he addressed himself to or with his conclusion.
I confirm I would dismiss the appeal and order the plaintiff to pay the defendant’s costs.

__________________________