Williams v Is Industry Fund Pty Ltd

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FEDERAL COURT OF AUSTRALIA

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

Appeal from: D14-15\188 [2015] SCTA 44
File number: QUD 189 of 2015
Judge: REEVES J
Date of judgment: 13 May 2016
Catchwords: SUPERANNUATION – appeal from the Superannuation Complaints Tribunal under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) limited to a question of law – consideration of definition of “interdependency relationship” in s 10A of the Superannuation Industry (Supervision) Act 1993 (Cth) and r 1.04AAAA of the Superannuation Industry (Supervision) Regulations 1994 (Cth) – whether the Tribunal was required to determine if the applicant and the deceased had an interdependency relationship immediately before the death of the deceased – whether the Tribunal was required to determine if the applicant and the deceased were living together immediately before the death of the deceased – whether if the Tribunal determined it was required to consider that was because the deceased suffered from a physical disability
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)

Superannuation (Resolution of Complaints) Act 1993 (Cth)

Superannuation Industry (Supervision) Act 1993 (Cth)

Superannuation Industry (Supervision) Regulations 1994 (Cth)
Cases cited:

Board of Trustees of the State Public Sector Superannuation Scheme v Edington (2011) 119 ALD 472; [2011] FCAFC 8

Esposito v Commonwealth of Australia (2015) 235 FCR 1; [2015] FCAFC 160

Friar v Brown [2015] FCA 135

Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92

Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50

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

SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175
Date of hearing: 12 November 2015
Registry: Queensland
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 50
Counsel for the Applicant: Mr P Bingham
Solicitor for the Applicant: Maurice Blackburn
Counsel for the First Respondent: Mr K Holyoak
Solicitor for the First Respondent: Corrs Chambers Westgarth
Counsel for the Second Respondent: The Second Respondent filed a submitting notice

ORDERS

QUD 189 of 2015
BETWEEN:

JOSEPH FRANCIS WILLIAMS

Applicant
AND:

IS INDUSTRY FUND PTY LTD

First Respondent

BRADLEY SELVIG (AS THE LEGAL PERSONAL REPRESENTATIVE OF THE LATE JOSEPH STEPHEN WILLIAMS)

Second Respondent

JUDGE:

REEVES J

DATE OF ORDER:

13 MAY 2016

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Superannuation Complaints Tribunal dated 17 March 2015 be set aside.

3.The matter be remitted to the Superannuation Complaints Tribunal to be heard and determined according to law and the reasons herein.

4.The first respondent is to pay the applicant’s costs of the appeal.

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


REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

  1. Mr Joseph Stephen Williams (the deceased) was, until his untimely death in November 2011, a member of the Intrust Super Fund.  IS Industry Fund Pty Ltd (IS Industry) was the trustee of that Fund.  Subsequent to…

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Details
Case
[2016] FCA 524
Decision Date

CaseChat Overview and Summary

In this appeal, Mr Williams appeals the decision of the Superannuation Complaints Tribunal, which affirmed the decision of IS Industry. The appeal to the Federal Court is limited to a question of law. The central issue in this appeal is whether the Tribunal was required to consider certain matters when determining if an interdependency relationship existed between Mr Williams and his deceased son immediately before the latter’s death, as per s 10A of the Superannuation Industry (Supervision) Act 1993 (Cth) and r 1.04AAAA of the Superannuation Industry (Supervision) Regulations 1994 (Cth). Specifically, the court had to decide if the Tribunal was required to determine whether the applicant and the deceased had an interdependency relationship immediately before the death of the deceased and whether the Tribunal was required to determine if the applicant and the deceased were living together immediately before the death of the deceased. Additionally, the court had to determine if the Tribunal was required to consider that the deceased suffered from a physical disability.

The court found that the Tribunal was indeed required to consider these matters as relevant considerations when determining if an interdependency relationship existed between Mr Williams and his deceased son. The court held that the Tribunal failed to take into account a relevant consideration which it was bound to, specifically whether the reason Mr Williams and his son were not living together was because his son suffered from a physical, intellectual or psychiatric disability. The court also found that the Tribunal’s consideration of the matter was erroneous, as it confined its analysis to the period up to May 2011, rather than the period immediately before the deceased’s death.

The court concluded that the appeal must be allowed, and Mr Williams is entitled to the orders sought in his notice of appeal filed on 20 April 2015. The decision of the Superannuation Complaints Tribunal dated 17 March 2015 is set aside, and the matter is remitted to the Superannuation Complaints Tribunal to be heard and determined according to law and the reasons provided in the court’s decision. The first respondent is to pay the applicant’s costs of the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Superannuation Complaints Tribunal dated 17 March 2015 be set aside.

3. The matter be remitted to the Superannuation Complaints Tribunal to be heard and determined according to law and the reasons herein.

4. The first respondent is to pay the applicant’s costs of the appeal.

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

Background

Background to the litigation

After unsuccessfully objecting to IS Industry’s decision, Mr Williams lodged a complaint with the Superannuation Complaints Tribunal (the Tribunal). In March 2015, the Tribunal affirmed IS Industry’s decision. Mr Williams has now appealed the Tribunal’s decision to this Court. THE FACTUAL BACKGROUND The deceased was born on 22 July 1980. At the age of 4, he was diagnosed with neurofibromatosis. He lived in Ohio, in the United States of America, with his parents, Mr Williams and Ms Katherine Grunwell, until their divorce in about 1999/2000. Following his parents’ divorce, the deceased lived in Ohio with his mother. From 2000 to 2005, he attended college in Pittsburgh and during most of this period he lived on campus. He would, however, return to his mother’s home in Ohio during college breaks. From September 2005 until November 2010, the deceased lived variously in Pittsburgh, New York and Philadelphia in the United States of America. In November 2010, he commenced working for the Club Med organisation in the Whitsunday Islands, in Queensland, Australia. Upon commencing that employment, he joined the Intrust Super Fund. On 1 May 2011, he took two weeks’ planned leave and returned to Ohio, where he stayed with his father. At the conclusion of his leave, he was scheduled to commence work at the Club Med resort at Turkoise in the British West Indies. However, at about that time he was diagnosed with cancer and, as a consequence, he never resumed his employment. In late June 2011, he was admitted to hospital in Cincinnati, Ohio for palliative care treatment. He remained in hospital until late September 2011, at which time he was transferred to a hospice in Michigan. He executed his last will on 4 October 2011. He passed away on 7 November 2011. Mr Selvig was appointed as the legal personal representative of his estate on 29 November 2011.THE NATURE OF THIS APPEAL Mr Williams’ right of appeal is conferred by s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the SRC Act). It relevantly provides:Appeals to Federal Court of Australia from determinations of the Tribunal (1)A party may appeal to the Federal Court, on a question of law, from the determination of the Tribunal. (2)…(3)The Federal Court is to hear and determine the appeal and may make such order as it thinks appropriate. (4)Without limiting by implication the generality of subsection (3), the orders that may be made by the Federal Court on an appeal include an order affirming or setting aside the determination of the Tribunal and an order remitting the matter to be determined again by the Tribunal in accordance with the directions of the Court. (5)… It can be seen that the right of appeal under s 46 is confined to “a question of law”. The same terminology is used in s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). That terminology was recently considered by a Full Court of five judges in Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 (Haritos). As to what constituted a question of law, the Court set out the relevant principles (at [62]) and concluded that the issue was one of substance, not form, as follows (at [94]):In our opinion, the issue must be approached as one of substance. In cases of doubt, the Court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal’s reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law.The Court went on to emphasis (at [97]) that the jurisdiction to entertain an appeal is not dependent on the drafting of the notice of appeal.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The next question is whether the Tribunal failed to consider this matter. On that question, despite IS Industry’s contention that the Tribunal did not have to consider this matter, there is some indication from the Tribunal’s Reasons that it may have, at least incidentally. That appears in the curious statement in the last sentence of [46] of the Tribunal’s Reasons (see at [21] above), that: “there is no evidence that, whilst the deceased member was working in Australia shortly before his death, he was suffering from any physical, intellectual or psychiatric disability”. That statement is plainly directed to the period that the deceased “was working in Australia shortly before his death”, namely, the period prior to 1 May 2011 when the deceased left that employment to take two weeks planned leave in Ohio. If, contrary to IS Industry’s submission, this statement can be taken as some indication that the Tribunal did consider the question posed by s 10A(2)(b) of the SIS Act, I consider it did so erroneously. That is so because, as with the first matter above, reg 1.04AAAA specifies that the relevant period for the purposes of determining this matter is the period “immediately before the death of” the deceased. Further, as with the first matter, it is apparent from this statement that the Tribunal confined its consideration to the period up to May 2011. For these reasons, I therefore consider the Tribunal failed to take into account a relevant consideration which it was bound to, namely, assuming Mr Williams and his son were not living together within the requirement in s 10A(1)(b) of the SIS Act, whether the reason why that was so was because his son suffered from a physical, intellectual or psychiatric disability.CONCLUSION For these reasons, this appeal must be allowed. Accordingly, Mr Williams is entitled to the orders sought in his notice of appeal filed on 20 April 2015.

Ratio Decidendi

Legal Principle Established

On this second issue, IS Industry contended that the underpinning premise of Mr Williams’ submissions was that there ought to have been a factual determination that Mr Williams and his son “lived together”. IS Industry therefore contended as follows:Having found that subparagraph 10A(1)(b) of the SIS Act was not satisfied, which was reasonably and fairly open to the Tribunal to do, the Tribunal did not have to consider, inter alia, subsection 10A(2)(c) of the SIS Act because the Tribunal was not satisfied that the reason that the relationship did not satisfy the other requirements was because the Deceased suffered from a relevant disability. The Tribunal found as a fact that it was not for that reason but because, as a fact, the parties did not live together.(Footnote omitted; emphasis omitted)CONSIDERATION In its Reasons, the Tribunal appears to have set out the two matters identified above (at [12]) in discursive form as they were relevant to its determination by stating (at [46], see at [21] above) that an interdependency relationship existed under s 10A of the SIS Act if the two persons “lived together or, if they do not live together, the reason they don’t is that one of them suffers from a physical, intellectual or psychiatric disability”. Putting aside the absence of the temporal factor “immediately before the death of”, this appears to state the combined effect of s 10A(1)(b): whether “they live together”, and s 10A(2)(c): if not, whether that was because of a physical disability. It is also important to note that this description of the issues implicitly assumes that Mr Williams had complied with the threshold criterion in s 10A(1)(a) that “they have a close personal relationship”. Presumably the Tribunal made that assumption because they were father and son. The first step, then, is to determine whether one or both of those matters constituted a relevant consideration. In Esposito v Commonwealth of Australia (2015) 235 FCR 1; [2015] FCAFC 160, the Full Court described what constitutes a relevant consideration in the following terms (at [123]):The concept of a relevant consideration in administrative law denotes a matter of which a decision-maker is bound to take account. This is a legal issue to be determined from the terms of the law under which the decision is made. This will include those matters which the law explicitly says must be taken into account but also other matters when this is discernible from the subject matter, scope and purpose of the law: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J. This leads, in turn, to the question whether the Tribunal was bound to take account of one or both of the two matters set out in [12] above. I will consider those two matters in turn. On the first matter, there is no issue between the parties that under reg 1.04AAAA(1) of the SIS Regulations (made under s 10A(3): see [17] above) that the Tribunal was bound to have regard to whether Mr Williams and his son were in an interdependency relationship “immediately before the death of” the latter and to have regard to all the circumstances of the relationship including the factors, so far as they were applicable, set out in (a) and (b) of that Regulation. The only issue – that raised by IS Industry – relates to the content of these considerations, specifically whether the words “immediately before the death of” are confined to solely temporal factors, or include features of the relationship such as its continuity and permanence.