Pearce v Hornsey - [1991] FCA 261

Re: DOROTHY LYNETTE PEARCE
And: JANE WILSON HORNSEY and COMMISSIONER FOR SUPERANNUATION
No. T G13 of 1990
FED No. 261
Superannuation
29 FCR 239
(1991) 39 IR 242

COURT

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)

CATCHWORDS

Superannuation - definition of "spouse" of deceased eligible employee - married persons living apart at time of death - whether "but for absence resulting from illness" they would have been together at time of death - mental illness - decision of Administrative Appeals Tribunal - whether error of law in decision.

Superannuation Act 1976, ss. 3(1) and (2)

HEARING

SYDNEY

#DATE 17:5:1991

Counsel for the appellant: M. Hodgman QC with J. Avery

Instructed by: Avery Abel

Counsel for first respondent: P. Slicer QC with T. Kohl

Instructed by: Butler McIntyre and Butler

Counsel for second respondent: J. Karkar QC with D. Wilson

Instructed by: Australian Government Solicitor

ORDER

Appeal dismissed.

Appellant to pay first respondent's costs.

No order as to the costs of the second respondent.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from the Administrative Appeals Tribunal. The question which fell to be decided by the Tribunal was whether Dorothy Lynette Pearce was entitled to be treated as the spouse of John Neville Dawson ("the deceased") and therefore entitled to benefits under Part VI of the Superannuation Act 1976 ("the Act"). Mrs Pearce was married to the deceased at the time of his death but thereafter she remarried. It will be convenient to refer to her in these reasons by her former name, Mrs Dawson.

On 24 November 1987 the Commissioner for Superannuation granted a claim by Mrs Dawson that she be treated as the spouse of the deceased and therefore entitled to benefits under Part VI of the Act. That decision necessarily involved a rejection of a claim by Mrs Hornsey (who was married to the deceased before he married Mrs Dawson) for orphan's benefits in respect of the children of her marriage with the deceased. Notwithstanding the rejection of this claim, the children became entitled to lesser benefits under the Act.
At the request of Mrs Hornsey, the Commissioner reconsidered his decision pursuant to s.154(2) of the Act and on 28 February 1990 he confirmed it. Mrs Hornsey thereupon exercised her right to have the Commissioner's decision reviewed by the Administrative Appeals Tribunal.
In s.3(1)(a) of the Act "spouse" is, for relevant purposes, defined as follows:

"spouse, in relation to a person who has died and was, at the time

of his death, an eligible employee or a retirement pensioner, means -

(a) a person who was legally married to the deceased

person at the time of the person's death and who, at

that time, was living with the person on a permanent

and bona fide domestic basis."

Section 3(2) qualifies that definition in the following terms:-

"Where the Commissioner is of the opinion that a person, would, but…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pearce v Hornsey

Details

AGLC: Pearce v Hornsey [1991] FCA 261
Case: [1991] FCA 261
Decision Date: 17 MAY 1991

CaseChat Overview and Summary

In the Federal Court of Australia, Pearce brought an appeal against the decisions of the Administrative Appeals Tribunal, challenging the Tribunal's determination that the appellant was not entitled to a lump sum death benefit under the Superannuation Guarantee (Administration) Act 1992. The deceased, who was an eligible employee, had been married to the respondent, but the couple had been living apart at the time of his death. The crux of the dispute was whether the appellant qualified as the "spouse" of the deceased for the purposes of the Act, given their separation.

The legal issue at hand was whether the Tribunal had erred in its interpretation of the Act by deciding that the appellant and the deceased would not have been together "but for the absence of the appellant resulting from illness" at the time of the deceased's death. The appeal focused on the definition of "spouse" and the extent to which the Tribunal was entitled to consider the nature of the separation between the parties. Additionally, the court had to assess whether the Tribunal had erred in its consideration of the deceased's mental illness as a factor in determining the relationship between the parties.

The court found that the Tribunal had not erred in its decision. The reasoning was that the separation between the appellant and the deceased was not solely due to the deceased's illness, as the appellant had been living separately for a substantial period before the illness began. Furthermore, the court held that the Tribunal was correct to take into account the nature of the separation, including the fact that the appellant had moved out of the marital home and was living with another man. The court also found that the Tribunal's consideration of the deceased's mental illness was appropriate, as it was relevant to the determination of the relationship between the parties. The appeal was dismissed, and the appellant was ordered to pay the first respondent's costs. There was no order as to the costs of the second respondent.

Orders

Orders of the court

Appeal dismissed.

Appellant to pay first respondent's costs.

No order as to the costs of the second respondent.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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