Williams v Is Industry Fund Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Williams v IS Industry Fund Pty Ltd [2018] FCAFC 219

Appeal from: Williams v IS Industry Fund Pty Ltd [2018] FCA 529
File number: QUD 317 of 2018
Judges: ALLSOP CJ, REEVES AND DERRINGTON JJ
Date of judgment: 4 December 2018
Catchwords: SUPERANNUATION – appeal from a decision of a single judge of this Court to uphold a decision of the Superannuation Complaints Tribunal – the meaning of “interdependency relationship” in s 10A of the Superannuation Industry (Supervision) Act 1993 (Cth) – the factors to be considered under regulation 1.04AAAA of the Superannuation Industry (Supervision) Regulations 1994 (Cth) – whether the appellant and his deceased son “lived together” for the purposes of an interdependency relationship – whether the primary judge committed any error – appeal dismissed
Legislation:

Federal Court of Australia Act 1976 (Cth) s 24

Migration Act 1958 (Cth) s 5F

Migration Regulations 1994 (Cth) reg 1.15A

Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 37(6), 46

Superannuation Industry (Supervision) Act 1993 (Cth) s 10A

Superannuation Industry (Supervision) Regulations 1994 (Cth) reg 1.04AAAA

Cases cited:

Clarke v Clarke [1964] VR 773

Friar v Brown [2015] FCA 135

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

He v Minister of Immigration and Border Protection [2017] FCAFC 206; 255 FCR 41

Li v Minister for Immigration and Citizenship [2008] FCA 902; 102 ALD 354

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713

Nicholas v The Queen [1998] HCA 9; 193 CLR 173

Williams v IS Industry Fund Pty Ltd [2016] FCA 524

Williams v IS Industry Fund Pty Ltd [2018] FCA 529

Date of hearing: 6 November 2018
Registry: Queensland
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 51
Counsel for the Appellant: P Bingham with M Black
Solicitor for the Appellant: Maurice Blackburn

ORDERS

QUD 317 of 2018
BETWEEN:

JOSEPH FRANCIS WILLIAMS

Appellant
AND:

IS INDUSTRY FUND PTY LTD

First Respondent

BRADLEY SELVIG

Second Respondent

SUPERANNUATION COMPLAINTS TRIBUNAL

Third Respondent

JUDGES:

ALLSOP CJ, REEVES AND DERRINGTON JJ

DATE OF ORDER:

4 DECEMBER 2018

THE COURT ORDERS THAT:

1.The further amended notice of appeal filed 6 November 2018 be dismissed.

2.There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

  1. Mr Williams’ son, Mr Joseph Stephen Williams, died of malignant neurofibromatosis on 7 November 2011. Tragically, Joseph was only 31 years old at the time of his death. At that time he was also a member of Intrust Super Fund.

  2. This appeal concerns the decision of the trustee of the Intrust Super Fund, IS Industry Fund Pty Ltd (the first respondent), to pay the whole of the death benefit consequent upon Joseph’s death to Mr Bradley Selvig, his legal personal representative (the second respondent).

  3. In brief summary, Mr Williams’ complaint throughout…

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Details
Case
[2018] FCAFC 219
Decision Date

CaseChat Overview and Summary

In the case of Williams v Is Industry Fund Pty Ltd, the appellant, Mr Williams, sought to appeal a decision of a single judge of the Federal Court of Australia, who had upheld a decision of the Superannuation Complaints Tribunal (SCT) that denied his claim for superannuation benefits. The central issue was whether Mr Williams and his deceased son, Joseph, had an "interdependency relationship" as defined in section 10A of the Superannuation Industry (Supervision) Act 1993 (Cth). The SCT had concluded that Joseph and Mr Williams did not "live together" as required by section 10A(1)(b) of the Act. Mr Williams argued that the SCT erred in law by not considering specific factors such as financial and emotional support, whether their living arrangements were temporary, and if Joseph would have recuperated with Mr Williams had he survived.

The court considered whether the SCT erred in not applying regulation 1.04AAAA of the Superannuation Industry (Supervision) Regulations 1994 (Cth), which lists factors to consider when determining if a relationship meets the criteria of an interdependency relationship. The court found that while the SCT did not explicitly address all factors, it had nevertheless implicitly considered them. The court also examined whether the SCT misinterpreted the phrase "live together" to require physical co-habitation in the same dwelling, and concluded that the Tribunal had correctly interpreted the term based on the facts before it.

Ultimately, the court dismissed Mr Williams' appeal, finding that the SCT had not committed any error in law or in its interpretation of the relevant legislation and regulations. The court held that the evidence did not support the existence of an interdependency relationship between Mr Williams and Joseph, as Joseph had only briefly returned to Mr Williams' home for a vacation before resuming work overseas. The court also noted Joseph's actions in removing Mr Williams from decision-making roles through a Power of Attorney and a Will, indicating that he did not consider himself to be living with Mr Williams.

Orders

Orders of the court

1. The further amended notice of appeal filed 6 November 2018 be dismissed.

2. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Thereafter, by reference to the criteria set out in s 10A(1) of the SIS Act (set out above), the Tribunal made the following findings, or drew the following conclusions:(a)at [34] – that the “Tribunal does not believe the facts on offer support a finding that immediately prior to [Joseph’s] death an interdependency relationship existed. On 7 November 2011, [Joseph] was 31 years of age. At the end of April 2011, he had returned to his home county from working in Australia, to enjoy a two week vacation with [Mr Williams], prior to taking up another work engagement with [Club Med] in a new overseas country”;(b)at [35] – that the relationship between Mr Williams and his son “can be properly characterised as a normal, loving one, simply bearing the hallmarks of a father/adult son relationship”;(c)at [36] – that “the facts raised … to show that [Joseph] considered [Mr Williams’ home] as his principal place of residence, namely [Joseph’s] voter registration, driver’s licence and doctor attendance, all concentrated around [Mr Williams’] residence and environs, merely go to the issue of the closeness of their relationship”;(d)at [39] – after describing (at [38]) a Facebook post Joseph had made on 31 May 2011 setting out his future employment plans, that “[Joseph] still considered that he would be taking up a new role with [Club Med] in July 2011 and was not intending to stay with [Mr Williams] beyond the start date of his new assignment with [Club Med]”;(e)at [40] – that, “[w]hile the Tribunal accepts the facts support that [Joseph] and [Mr Williams’] ‘(had) a close personal relationship’ as required by s10A(1)(a) of the SIS Act, it does not accept [Joseph] and [Mr Williams] satisfied s10A(1)(b) immediately prior to [Joseph’s] death, insofar as they could be described in terms whereby: ‘they live together’. To the contrary, the facts only establish that [Joseph] had returned to [Mr Williams’] home for a brief holiday, prior to setting off again to work for [Club Med] in another foreign country overseas”;(f)at [42] – that “[t]he logic is unsustainable; namely, that despite the fact that [Joseph] and [Mr Williams] did not live together, prior to his being hospitalised, that somehow his physical absence in hospital could now ‘add-back’ that missing dimension”;(g)at [43] – for the sake of completeness, the Tribunal also noted that “[Joseph], in the weeks immediately before his death, chose to be transported to a hospital away from [Mr Williams] and closer to [Ms Grunwell] in September 2011. He also signed a Power of Attorney and a Will both dated 4 October 2011 removing [Mr Williams] from any position that would allow him to make decisions on behalf of [Joseph]. The Tribunal notes that [Mr Williams] has been unsuccessful in his challenge of the validity of these documents in an overseas court”; and(h)at [44] – finally, that it considered “[Joseph] did not see himself as ‘living together’ with [Mr Williams] immediately before his death. Neither was there any evidence that, should he, hypothetically, have gone into remission and emerged from hospital that he necessarily would have recuperated, as in lived together, with [Mr Williams]”.THE PRIMARY JUDGMENT

Ratio Decidendi

Legal Principle Established

Mr Williams’ further amended notice of appeal raised four grounds as follows:1.The Federal Court of Australia erred by failing to find that the … Tribunal erred in law by failing to make findings about and take into account relevant considerations, consisting of the financial support, domestic support, personal care, and the degree of emotional support involved in the relevant relationship, as required by reg 1.04AAAA(1)(a) of the Superannuation Industry (Supervision) Regulations 1993 [sic – 1994] (Cth).2.The Federal Court of Australia erred by failing to find that the … Tribunal erred in law by misconstruing the phrase “live together” in section 10A(1)(b) of the Superannuation Industry (Supervision) Act1991 (Cth) as requiring or meaning physical co-habitation in the one dwelling.3.The Federal Court erred by failing to find that the … Tribunal erred in law by failing to make findings about, and take into account, relevant considerations about whether the living arrangements between [Mr Williams and his son] were temporary, as required by reg 1.04AAAA(3) of the Superannuation Industry (Supervision) Regulations 1993 [sic – 1994] (Cth).4.The Federal Court erred by failing to find that the … Tribunal erred in law by failing to ask the correct question under section 10A(2)(c) of the Superannuation Industry (Supervision) Act1991 (Cth) and [reg] 1.04AAAA(4)(c) of the Superannuation Industry (Supervision) Regulations 1993 [sic – 1994] (Cth).(Errors in original)CONSIDERATIONGround of appeal 1 – the criteria in ss 10A(1)(c) and (d) and the requirements of reg 1.04AAAA(1)(a) For the purposes of this ground of appeal, Mr Williams relied heavily on the Full Court judgment in He v Minister of Immigration and Border Protection [2017] FCAFC 206; 255 FCR 41 (Siopis, Kerr and Rangiah JJ). In He, the Court was concerned with the definition of the word “spouse” and, in particular, the constituent phrase “married relationship” in s 5F of the Migration Act 1958 (Cth). That definition contained, in s 5F(3), a provision similar to s 10A(3) of the SIS Act above, which allowed the regulations to specify matters to be taken into account in determining whether the relationship existed. Subregulation (2) of the regulation in issue in He (reg 1.15A of the Migration Regulations 1994 (Cth)) required that the relevant Minister “must consider all of the circumstances of the relationship, including the matters set out in subregulation (3)”. Subregulation (3) then set out four sets of matters (15 in all), each of which related to a different feature of a married relationship. In He, the Court considered the construction and operation of reg 1.15A at some length. Relevant to this matter, it held, at [58], that reg 1.15A(2) above “… requires the Tribunal to ‘identify’ the pertinent or relevant circumstances of the relationship”. It added that: “It is necessary to identify what the relevant circumstances of the relationship are in order to consider those circumstances by applying an active intellectual process and giving proper, genuine and realistic consideration to them.” One of the main issues in He was whether reg 1.15A(2) required the Tribunal to make a finding as to the existence or otherwise of “every potentially relevant circumstance” (emphasis in original), or only required the Tribunal to make “any necessary findings of fact” (emphasis in original) (see He at [71]). The Court concluded it was the latter (see He at [71]).