Roberts-Billett v Commonwealth Superannuation Corporation
[2013] FCA 1328
•6 December 2013
FEDERAL COURT OF AUSTRALIA
Roberts-Billett v Commonwealth Superannuation Corporation [2013] FCA 1328
Citation: Roberts-Billett v Commonwealth Superannuation Corporation [2013] FCA 1328 Appeal from: Janet Roberts-Billett v Commonwealth Superannuation Corporation [2013] AATA 440 Parties: JANET ROBERTS-BILLETT v COMMONWEALTH SUPERANNUATION CORPORATION File number: VID 1019 of 2013 Judge: MURPHY J Date of judgment: 6 December 2013 Catchwords: ADMINISTRATIVE LAW – inadequate reasons – failure to explain Tribunal’s findings – remittal to Tribunal for consideration and provision of reasons Legislation: Defence Force Retirement and Death Benefits Act 1973 (Cth) Cases cited: Ansett Transport Industries (Operations) Pty Ltd And Another v Wraith And Others (1983) 48 ALR 500 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 12
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1019 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: JANET ROBERTS-BILLETT
ApplicantAND: COMMONWEALTH SUPERANNUATION CORPORATION
RespondentJUDGE:
MURPHY J
DATE OF ORDER:
6 DECEMBER 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS BY CONSENT THAT:
1.The decision of the Administrative Appeals Tribunal in JanetRoberts-Billett v Commonwealth Superannuation Corporation [2013] AATA 440 is set aside.
2.The Tribunal’s reasons for decision are inadequate because they do not explain the Tribunal’s finding that s 6A(5) of the Defence Force Retirement and Death Benefits Act 1973 (“the Act”) does not apply in this case.
3.The decision is remitted to the Tribunal with the direction that:
(a)the Tribunal consider the Applicant’s argument that although she may not actually have been living with the deceased at the time of his death nevertheless in the circumstances the Corporation (and the Tribunal on appeal) ought to have been satisfied that the Applicant and the deceased would have been living together during that period but for a period of absence because of special circumstances, namely the deceased’s psychiatric illness followed by his final physical illness, as contemplated by s 6A(5) of the Act; and
(b)the Tribunal give reasons in relation to its finding in relation to s 6A(5) of the Act.
4.There is no order as to costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1019 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: JANET ROBERTS-BILLETT
ApplicantAND: COMMONWEALTH SUPERANNUATION CORPORATION
Respondent
JUDGE:
MURPHY J
DATE:
6 DECEMBER 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This proceeding is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act1975 (Cth) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) of 27 June 2013 (Janet Roberts-Billett v Commonwealth Superannuation Corporation [2013] AATA 440 (“the Decision”)).
The matter came before me at a directions hearing and the parties seek consent orders to:
(a)set aside the decision of the Tribunal; and
(b)remit the matter to the Tribunal with a direction that:
(i)it consider the applicant’s argument on the operation of s 6A(5) of the Defence Force Retirement and Death Benefits Act 1973 (“the Act”); and
(ii)give reasons in relation to its finding.
The parties provided a joint statement in support of their application for the orders. They made the following contentions.
Factual background
The applicant, Ms Roberts-Billett was married to a member of the Defence Force Retirement and Death Benefits Scheme established by the Act. Ms Roberts-Billett separated from the member in about 2001, probably because he exhibited the effects of post-traumatic stress disorder and/or alcohol abuse, they divorced in 2007 and had no contact for 2 years. In about 2009 the member was diagnosed with cancer and Ms Roberts-Billett took on the role of carer. Eight days before he died, Ms Roberts-Billett re-married the member in hospital. They did not live together at the time of his death. Ms Roberts-Billett was not financially dependent upon the member although he gave her some ‘expenses’ when she was acting as his carer.
The Tribunal found that, at the time of the member’s death, Ms Roberts-Billett did not have a marital relationship with him for the purposes of the Act and nor was she wholly or substantially dependent upon him.
Legislation
The relevant provisions of the Act are:
6A Marital or couple relationship
(1)For the purposes of this Act, a person had a marital or couple relationship with another person at a particular time if the person ordinarily lived with that other person as that other person’s husband or wife or partner on a permanent and bona fide domestic basis at that time.
(2)For the purpose of subsection (1), a person is to be regarded as ordinarily living with another person as that other person’s husband or wife or partner on a permanent and bona fide domestic basis at a particular time only if:
(a)the person had been living with that other person as that other person’s husband or wife or partner for a continuous period of at least 3 years up to that time; or
(b)the person had been living with that other person as that other person’s husband or wife or partner for a continuous period of less than 3 years up to that time and CSC, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with that other person as that other person’s husband or wife or partner on a permanent and bona fide domestic basis at that time;
whether or not the person was legally married to that other person.
(3) …
(4)For the purpose of subsection (2), relevant evidence includes, but is not limited to, evidence establishing any of the following:
…
(5)For the purposes of this section, a person is taken to be living with another person if CSC is satisfied that the person would have been living with that other person except for a period of:
(a) temporary absence; or
(b)absence because of special circumstances (for example, absence because of the person’s illness or infirmity or a posting of the person).
6B Spouse who survives a deceased person
(1) In this section:
deceased person means a person who was, at the time of his or her death, a contributing member, a recipient member or a person in respect of whom deferred benefits were applicable.
(2)For the purposes of this Act, a person is a spouse who survives a deceased person if the person had a marital or couple relationship with the deceased person at the time of the death of the deceased person.
(3)In spite of subsection (2), a person is taken to be a spouse who survives a deceased person if:
(a)the person had previously had a marital or couple relationship with the deceased person; and
(b)the person did not, at the time of the death, have a marital or couple relationship with the deceased person but was legally married to the deceased person; and
(d)in CSC’s opinion, the person was wholly or substantially dependent upon the deceased person at the time of the death.
Grounds of appeal
Ms Roberts-Billett appealed on two grounds:
(a)the Tribunal failed to give any or adequate reasons for rejecting the Applicant’s claim that she satisfied the requirements of s 6A(5) of the Act; and
(b)the Tribunal apparently failed to consider, alternatively failed to give reasons for rejecting the Applicant’s argument that, although she may not actually have been living with the deceased at the time of his death, nevertheless in the circumstances the Corporation (and thereby the Tribunal on appeal) ought to have been satisfied that the Applicant and the deceased would have been living together during that period but for a period of absence because of special circumstances, namely the deceased’s psychiatric illness followed by his final physical illness, as contemplated by s 6A(5).
The Tribunal’s decision
As is clear from the Decision at [57]-[58], at the hearing in the Tribunal both parties made submissions about whether s 6A(5) of the Act operated in this case.
The Tribunal reasoned to a position that the marital relationship between Ms Roberts-Billett and the member ended in 2007, and perhaps earlier. The Tribunal then said at [63] “[t]he Tribunal is also not satisfied that Mrs Roberts-Billett meets any of the alternative requirements of section 6A(5) of the Act.” The Tribunal gave no further explanation as to why s 6A(5) of the Act did not apply in this case, nor did it explain its reasoning.
The parties jointly contended that it is open to the Court to find that the Decision is inadequate because it does not allow them to decide whether it involved an error of law which is worth challenging: Ansett Transport Industries (Operations) Pty Ltd And Another v Wraith And Others (1983) 48 ALR 500 at 507 per Woodward J.
As his Honour explained:
The passages from judgments which are conveniently brought together in Re Palmer and Minister for the Capital Territory (1978) 23 ALR 196 at 206–7; 1 ALD 183 at 193–4, serve to confirm my view that s 13(1) of the Judicial Review Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: “Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.”
This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation. The appropriate length of the statement covering such matters will depend upon considerations such as the nature and importance of the decision, its complexity and the time available to formulate the statement. Often those factors may suggest a brief statement of one or two pages only.
I am satisfied that the decision of the Tribunal ought be set aside and that it be remitted for the Tribunal to deal with the short point identified in the orders, and for the Tribunal to provide proper reasons in that regard. Practical considerations also support such an outcome as the parties seek to avoid the cost of a contested hearing in this Court in circumstances where, beyond the failure to provide reasons, the applicant does not presently understand whether there is an error of law which is worth challenging. I make the attached orders.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy. Associate:
Dated: 6 December 2013
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