Rutter v Australian Retirement Fund Pty Ltd
[2000] VSC 375
•14 September 2000
| SUPREME COURT OF VICTORIA | |
| COMMON LAW DIVISION | Not Restricted |
No. 7783 of 1999
| MARGARET RUTTER | Appellant |
| v | |
| AUSTRALIAN RETIREMENT FUND PTY LTD (ACN 006 446 619) | First Respondent |
| and | |
| DONNA BARNES | Second Respondent |
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JUDGE: | Ashley J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 September 2000 | |
DATE OF JUDGMENT: | 14 September 2000 | |
CASE MAY BE CITED AS: | Rutter v Australian Retirement Fund Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 375 | |
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Commercial arbitration – application for leave to appeal from decision of Superannuation Complaints Tribunal – leave refused.
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APPEARANCES: | Counsel | Solicitors |
The Appellant appeared in person | ||
| For the First Respondent | Mr J. Wilson | IFS Fairley |
| There was no appearance for the Second Respondent | ||
HIS HONOUR:
Margaret Rutter, the appellant, seeks leave to appeal from an award made by the Superannuation Complaints Tribunal on 29 October 1999. The award was made in arbitration proceedings to which the provisions of the Commercial Arbitration Act 1984 apply. The arbitration arose out of a decision of the first respondent, Australian Retirement Fund Pty Ltd, to pay the entire benefit payable by reason of the death of a member of a fund of which it was trustee to Ms Donna Leah Barnes. That decision was made on 9 May 1998. The member of the fund, Dean John, was the son of the appellant. He died on 12 September 1997, having become a member of the fund in the preceding year.
The question that the Trustee of the fund, and thereafter the Tribunal, had to determine concerned competing claims made by the appellant and Ms Barnes. According to clause 8.4 of a supplemental trust deed executed on 5 March 1997, it forming part of the trust deed governing the disposition of the benefit in this case, a benefit payable on the death of a member and not required under the deed to be paid to a specific person or representative -
"must be paid to:
(i) one or more of the member's dependants; or
(ii)the member's legal personal representative, whichever (or both) the trustee determines, and in such proportions as the trustee determines."
It was common ground that Mr John died intestate and that no letters of administration had been taken out when the competing claims were considered both by the Trustee and the Tribunal. There was, then, no legal personal representative of the late Mr John at any relevant time. The crucial question was whether there were any dependants of the late member.
"Dependant" is defined by clause 14.1 of the supplemental deed. Relevantly, that word is defined to mean, in relation to a member, any one or more of the following:
"(a)a spouse of the member;
(c)any other person who, in the opinion of the Trustee, is at the relevant date (which, in the case of a deceased person, is the time of death) wholly or mainly dependent on the member".
The word "spouse" is defined in the deed consolidated as at 19 September 1995. Relevantly for present purposes, it includes the following:
"(b) a person who, though not legally married to the firstmentioned person, in the opinion of the Trustee lives or lived with the firstmentioned person as at the relevant date (being, in the case of a deceased person, the date of death) on a bona fide domestic basis as the husband or wife of the firstmentioned person."
Reference to the firstmentioned person here was a reference to the late Mr John.
The Trustee determined that Ms Barnes satisfied paragraph (b) of the definition of "spouse" and was therefore a dependant of the deceased within the meaning of the trust deed. It was unnecessary in those circumstances for the Trustee to consider whether there was any monetary dependency. The Trustee further determined that the appellant was not a dependant of the deceased. It accepted, as I understand it, that the deceased was indebted to his mother, but it concluded that such indebtedness did not connote that she was dependent upon him. When the Tribunal arbitrated upon the matter, it reached essentially the same conclusions.
There is no doubt at all that there was competing evidence before the Tribunal whether Ms Barnes satisfied the definition of "spouse" in paragraph (b) of the definition in the trust deed. It seems plain that the appellant produced a good deal of evidence that might have persuaded the Tribunal to a different conclusion. But it also seems clear that there was evidence before the Tribunal which permitted it to form an opinion that Ms Barnes lived with the deceased at the date of his death.
In determining, consistently with the earlier determination of the Trustee, that Mrs Rutter was nota dependant of the deceased at a relevant time, the Tribunal was not prepared to equate being a creditor of a person and being dependent upon that person.
The Tribunal appears to have accepted that, there being no will, and letters of administration having not been granted, the circumstances contemplated by clause 8.4(ii) of the supplemental deed did not arise. However, perhaps to cover all bases, the Tribunal proceeded to consider how it would have exercised the discretion to make a distribution in the event that there had been a legal personal representative of the deceased at a material time.
Applying a discretion to that hypothetical situation, the Tribunal concluded, as I understand it, that it would have exercised the discretion so as to provide the same outcome as was in any event achieved - that is, that Ms Barnes should receive the whole of the benefit (a sum of a little over $57,000).
From the award of the Tribunal, an appeal lies to this court on a question of law: see s.38(2) of the Commercial Arbitration Act 1984. By subsection (4) of that section an appeal may be brought by any of the parties to an arbitration agreement (subject to there being an exclusion agreement) with the leave of the Supreme Court. Subsection (5) says this:
"The Supreme Court shall not grant leave under subsection (4)(b) unless it considers that,
(a)having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more parties to the arbitration agreement; and,
(b)there is
(i)a manifest error of law on the face of the award; or
(ii)strong evidence that the arbitrator or umpire made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law."
The authorities are clear that the impact of subsection (5) is such as to present a very substantial hurdle to an applicant for grant of leave to appeal. Even if the authorities were not to that effect, the language of the subsection, simply read, would compel such a conclusion.
In this case, it may be that the proceeding was issued out of time. Indeed, that would seem to be the situation. I understand, however, that Mrs Rutter was in receipt of a document which apparently led her, and her then legal advisers, to believe that they had more time than was actually available within which to act. I have power to extend time provided for by the rules, and in the circumstances as I understand them to be, I would do that in this case. Moreover, I would not regard the fact that the proceeding was commenced a little out of time as a reason why relief should be refused in this case if circumstances fitting s.38(5) of the Act were demonstrated.
Mrs Rutter appeared today without legal representation. The first respondent, the Trustee of the fund, was represented by Mr Wilson of counsel. The second respondent, that is, Ms Barnes, did not appear. At no time has she appeared in the course of the present litigation. Her interests, obviously enough, are identified with those of the first respondent, whose concern it is to protect the award made by the Tribunal.
Mrs Rutter identified, I think, the following matters in support of her application for leave to appeal:
First, that Ms Barnes could not have been a spouse of the deceased because she and the deceased were not actually living together at the time of his death; cohabitation had ended months before.
Second, that the Tribunal had reached the wrong conclusion in deciding that Ms Barnes had ever been a spouse of the deceased within paragraph (b) of the definition. It ought to have accepted the material which she, Mrs Rutter, had advanced to dispute the existence of such a relationship.
Third, that it was wrong for the Tribunal not to have treated her as a dependant of her son. He had been indebted to her by reason of moneys that she had paid out over a period of years either to, or for, him.
Mrs Rutter might think that to summarise the matters she raised in that way does not do justice to the number of issues of fact that she raised for my consideration. But it is necessary to bear in mind that there is a difference between fundamental issues upon which an appellant relies in a matter such as this and the material which is said to support those fundamental issues.
Having identified the fundamental issues relied upon by the appellant, it is, I am afraid to say, from Mrs Rutter's standpoint, quite apparent that this application cannot succeed.
First, even if it was the fact - which the Tribunal did not accept - that the late Mr John was not living with Ms Barnes at the time of his death on a day-to-day basis, that would not mean, within the terms of the trust deed, that it was not open to the Trustee and thereafter the Tribunal to form an opinion that the one was living with the other at the date of death. There is a deal of authority which suggests that a conclusion may be reached that one person is living with another person despite the fact that, for some reason or another, there is temporary separation. If there was not such authority, commonsense would dictate such a conclusion.
In the present case, it was a matter for the Tribunal, if it had concluded that there was some temporary separation at date of death, to evaluate whether or not the circumstances still justified a conclusion that the one person was living with the other. It seems apparent that the Tribunal either found, or would have found, that the deceased was living with Ms Barnes at the date of his death, even if there had been some temporary separation. It is not for this court, upon an application of the present type, to substitute its view of what a finding of fact should have been for a finding made by the Tribunal whose decision is sought to be impugned.
Second, Mrs Rutter's complaint that the Tribunal ought not to have found that Ms Barnes and her son had ever been in a de facto relationship such that Ms Barnes could be regarded as a spouse for the purposes of the trust deed did not raise, in the circumstances of this case, a question of law at all. It really invited me to reconsider all the factual material and arrive at a conclusion different to that arrived at by the Tribunal. That is not the function of a judge on an application such as this. There being before the Trustee, and later the Tribunal, material going both ways, it would be wrong for this court to grant leave to an unsuccessful claimant to challenge the Tribunal's acceptance of particular material.
Third, one may readily feel very sympathetic to Mrs Rutter in her particular circumstances. Apparently she has little money - it should be accepted that she did expend moneys to her son's benefit over the years, and the amounts she spent in supporting her son would be extremely useful to her if somehow they could be recovered. But the critical question is whether the Tribunal's conclusion that dependency was not established by the fact that the deceased owed his mother money, always accepting that a relationship of creditor and debtor truly arose, revealed an error of law of the kind described in s.38(5)(b) of the Commercial Arbitration Act. I think it is impossible to say that the Tribunal was manifestly in error in concluding that dependency was not established in those circumstances. I further think it is impossible to say that, in those circumstances, Mrs Rutter has made out the matters required by s.38(5)(b)(ii) of the Act.
What I have said means that this application must fail. It is impossible not to feel real sympathy for Mrs Rutter's position and for what she believes was the injustice of the decisions, first, of the Trustee and, later, of the Tribunal. But the law does make hard cases, and this is one of them. The originating motion must be dismissed.
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