Transport Accident Commission v Tirbanos-Pricorp

[1999] VSC 404

SUPREME COURT OF VICTORIA
CAUSES JURISDICTION	Do not Send for Reporting
Not Restricted

No. 5219 of 1999

TRANSPORT ACCIDENT COMMISSION	Appellant
V
RADMILLA TIRBANOS-PRICORP	Respondent

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JUDGE:	Hampel J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 1999
DATE OF JUDGMENT:	21 October 1999
CASE MAY BE CITED AS:	Transport Accident Commission v Radmilla Tirbanos-Pricorp
MEDIA NEUTRAL CITATION:	[1999]VSC 404

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Transport Accident Act 1986 – Section 3 – “Dependent Spouse” – “Permanence” – Appeal - Adequacy of Reasons

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R. Gorton Q.C. with Mr W.R. Middleton	TAC Law Pty. Ltd.
For the Respondent	Mr G. Nash Q.C. with Mr A. Lopes	Lewenberg & Lewenberg Solicitors

HIS HONOUR:

1. By way of an originating motion the Transport Accident Commission (“the Commission”) appeals against the decision of the Victorian Civil and Administrative Tribunal (“the Tribunal”) on 19 March 1999 which held that the Commission’s determination that the respondent was not a dependent spouse for the purpose of the Transport Accident Act 1986 was wrong.

1. The background facts are fully set out in the judgment of the Deputy President and for this purpose can be stated briefly.  The respondent was a divorcee with two children who claimed that from February 1992, she lived in a defacto relationship with a Mr Alexe.  She gave evidence before the Tribunal of the circumstances of that relationship and was supported by a number of witnesses. 

1. It was common ground that in December 1994 the respondent was arrested and placed in custody where she remained following a number of unsuccessful attempts to obtain bail.

1. Her claim for compensation was on the basis that despite her being in custody the defacto relationship between her and Mr Alexe continued on a “permanent” and “bona fide domestic basis”, thus entitling her to a dependency benefit under the Transport Accident Act 1986 (the Act). Her entitlement arose because Mr Alexe was killed in a motor car accident whilst the respondent was still in custody on 14 October 1995. The only issue before the Tribunal was whether the respondent was entitled as a “surviving spouse” of the deceased within the meaning of the Act as a consequence of the death of the deceased.

1. By section 3(6) of the Act a reference to “spouse” of a person “includes a reference to a person of the opposite sex who is not legally married to the first-mentioned person, but lives with that person on a permanent and bona fide domestic basis”. 

1. The Act also contains the following definitions:

“3(a)a ‘surviving spouse’ in relation to a person who dies as a result of a transport accident means, ‘a dependent spouse’; and

3(b)a ‘dependent spouse’ in relation to a person means the spouse of that person if the spouse would, but for the …death of that person, be wholly, mainly or in part dependent on that person for economic support.”

1. The appeal before me in effect based on the grounds that the Deputy President erred in law in that he did not consider whether at the time of Mr Alexe’s death the respondent was a dependent spouse within the meaning of the Act and/or that no such consideration or conclusion is included in his reasons for judgment.

1. The hearing of evidence before the Tribunal, including that of the respondent and other witnesses occupied three days.  There was a significant attack upon her credibility and that of a number of her witnesses.  This was in the context of what the Deputy President described as a “setting in the twilight world of drug trafficking, social security fraud and tax evasion”.  It was the Commission’s case that the respondent’s evidence should not be accepted so as to entitle her to the dependency benefits which she claimed. 

1. It is not necessary for the purposes of this appeal to deal in detail with the nature of the credit attack upon her because, after discussing various issues of credit, the Deputy President accepted the respondent’s evidence.  Mr Gorton QC, who with Mr Middleton appeared for the Commission, before me conceded that it could not be argued that there were not facts upon which the decision favourable to the respondent could have been made. 

1. Mr Gorton submitted that there were marked changes in circumstances between the period between December of 1994 and October 1995 when Mr Alexe died while the respondent was still in custody.  He argued that the Tribunal was required to consider and determine but did not, whether the respondent would, having regard to past events and future probabilities, have been wholly, mainly or in part dependent or reliant upon the deceased for economic support for herself.

1. Mr Gorton submitted that the Tribunal’s reasons do not display any consideration of that change of circumstances or any proper consideration of the necessary questions at the relevant time, namely the time of Mr Alexe’s death.

1. Mr Nash QC who with Mr Lopes appeared for the respondent submitted that although there was no specific finding stated in respect of the “permanence” of the relationship at the relevant time, an analysis of his reasons shows that they were based on the following matters:

a)        an appreciation of the statutory requirements;

b) a discussion of the criteria for determining when parties are to be regarded as living on a permanent and bona fide domestic basis”;

c) the acceptance of evidence as to the sexual relationship between the parties;

d)        the acceptance of “a substantial measure of commitment between the parties”;

e) the acceptance that the respondent and the deceased were living “in a bona fide domestic relationship”;

f) the acceptance of dependency derived from the deceased’s contributions to rent,  groceries, utilities, charges and children’s pocket money; and

g) an application of the appropriate criteria to the facts in particular an application of the “permanency” criteria to the facts.

1. Mr Nash argued that the Deputy President’s conclusion in favour of the respondent is derived from the criteria set out in Preston v Transport Accident Commission (18 February 1997) and following the question posed by the Deputy President for himself namely whether the parties were regarded as living “on a permanent and bona fide domestic basis”. 

1. Mr Nash further submitted that the reasons which analysed fully the factual issues, which specifically referred to the correct statutory provisions and the relevant case law were sufficient.  The omission to make a specific reference to the permanence of the relationship at the relevant point of time could not in those circumstances be said to demonstrate that he did not give that issue due consideration.  Nor was there error of failing to give sufficient reasons once the correct issues were posed and answered.

1. It is true that the Deputy President’s reasons are not structured and expressed in the clear and logical way in which Mr Gorton suggested they should have been.  It is also clear, however, that the whole focus of the dispute during the three day hearing was the credibility of the respondent and her witnesses.  The Deputy President expressed some difficulties but finally came to a clear conclusion that he accepted her evidence.  The argument before him did not focus on the changed circumstances at the time of the death of Mr Alexe but rather on the question whether the relationship was bona fide. 

1. The reasons given by the Deputy President, when looked at in the context of the real issues before him, show that he dealt with the relationship as a whole as described by the respondent and her witnesses throughout the entire period.  This included consideration of the changes which had taken place in their living arrangements and other aspects of the relationship before and after the respondent’s imprisonment up to the time of Mr Alexe’s death. 

1. In my opinion, once it is conceded that the facts as found by the Deputy President were open and enabled him to reach the conclusion he did, the only real question which remains is whether the reasons given for the decision are so inadequate that they do not disclose the basis for the decision and therefore do not amount to reasons which “justify” the decision. 

1. Failure to give reasons may constitute an error of law but the failure of a Tribunal to provide “sufficient reasons to justify” its decision does not constitute an error of law  (Roads Corporation v Dacakis [1995] 2 VR 508; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543; Azzopardi v Tasman UEB Industries Ltd. (1985) 4 NSWLR 139; Steggles Pty. Ltd. v Aguirre (1988) 12 NSWLR 693).

1. Having analysed the Deputy President’s reasons in the context of the issues before him I am unable to conclude that he did not direct his mind to all the relevant considerations required by the legislation which he quoted and come to his conclusion by reference to the relevant point of time namely the death of Mr Alexe.  Nor do I think that his reasons were so inadequate as not to amount to reasons at all, particularly when he specifically posed the question at p.7 of his reasons to which I have already referred and then came to his conclusions by reference to the whole of the evidence which he accepted from the respondent. 

1. I find therefore that the appeal must be dismissed with costs.

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