Olsen v The Queen

[2002] 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
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

1. 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)).

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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”.

8. 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 t he 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.

1. If it be relevant to an application such as this, I am not satisf ied 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.

2. 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. 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).

3. 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.

1. 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.

2. 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).

3. 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 Gal lop 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.

1. I would dismiss the claim and order the plaintiff to pay the defendants’

   costs.

   MILDREN J:

2. 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.

3. 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).

[18] 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.

1. 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.

1. 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.

2. 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.

3. 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.

[23]   The originating motion therefore must be dismissed with costs.

THOMAS J

1. I have had the benefit of reading the draft decision prepared by Martin CJ

   and the draft decision prepared by Mildren J.

2. 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.

3. 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.

4. 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.

[28] 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 for a period of more than two years. I am unable to find that the

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.
relationship was of a bona fide domestic kind.”

1. 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.

2. 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.”

1. 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.

2. 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 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

   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.
   one that is best left to the responsible legislature.”

1. 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.”

[34] I would dismiss the originating motion with costs.

1. 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.

2. 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;”

1. 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.

[38]   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.

1. 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.”

[40]   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.

1. 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.

1. His Honour concluded that the plaintiff had failed to prove his claim.

2. 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.

3. I confirm I would dismiss the appeal and order the plaintiff to pay the

   defendant’s costs.

__________________________