Cummins v Petterd

1. The proceeding is dismissed.
2. The Applicants are to pay the costs of the First Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

FLICK J: 1 The Applicants in the present proceeding are Mr Benjamin Cummins and his sister, Ms Monique Little. 2 Mr Benjamin Cummins and his sister are the children of Mr Christopher Cummins, who died unexpectedly on 13 July 2018. Mr Christopher Cummins held superannuation benefits with AustralianSuper Pty Ltd ("AustralianSuper"). Those benefits were for a sum slightly in excess of $115,000. 3 In issue is a decision of the Australian Financial Complaints Authority (the "Authority"). The background to the establishment of the Authority has been set forth in QSuper Board v Australian Financial Complaints Authority Ltd [2020] FCAFC 55 at [13], (2020) 276 FCR 97 at 103 per Moshinsky, Bromwich and Derrington JJ ("QSuper v AFCA") and need not be again repeated. 4 The decision of the Authority was made on 30 October 2020 and affirmed a decision of AustralianSuper that the benefits were payable to "the claimed spouse", namely Ms Janine Petterd. The Authority determined the application before it pursuant to s 1055(3) of the Corporations Act 2001 (Cth) (the "Corporations Act"). It provided reasons for its decision and in doing so was required to comply with s 25D of the Acts Interpretation Act 1901 (Cth): QSuper v AFCA [2020] FCAFC 55 at [86], (2020) 276 FCR at 118-119. 5 In very summary form, Mr Cummins and his sister claimed that Ms Petterd was not their father's "partner until his death" and claimed that she was not "financially dependent on him". They maintain that any spousal relationship with their father ended in 2013 and that the benefits should be payable to them. 6 Mr Cummins and his sister "appeal" to this Court from the decision of the Authority pursuant to s 1057(1) of the Corporations Act, which provides for an "appeal to the Federal Court, on a question of law, from AFCA's determination of the complaint". Their Amended Notice of Appeal dated 15 February 2021 framed the Questions of Law as follows: 1. Is the Australian Financial Complaints Authority required to conduct a proper hearing, with witnesses being subject to cross-examination, before coming to a decision? 2. Is the Australian Financial Complaints Authority required to accommodate the rule in Browne v Dunn (1893) 6 R. 67, H.L before coming to a decision? It may be noted at the outset that questions so broadly expressed and without reference to the facts which gave rise to the issues to be resolved are seldom helpful. Questions so expressed are more in the nature of impermissibly seeking an advisory opinion on the manner in which statutory provisions are to be construed. But little objection was taken by any of the Respondents to the form in which the proceeding came before this Court. The first Question was, in any event, abandoned at the outset of the hearing. That left for resolution the second Question. And that Question is to be answered in the negative. 7 That conclusion has been reached for a number of reasons. 8 First, as a generally expressed proposition, administrative decision-makers are not normally required to comply with the rules of evidence and it is frequently provided in statutory provisions that a particular decision-maker is "not bound by the rules of evidence": e.g., Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)(c) ("Administrative Appeals Tribunal Act"); Migration Act 1958 (Cth), s 420. Such provisions, it has been said, "are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals": Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 at [49], (1999) 197 CLR 611 at 628 per Gleeson CJ and McHugh J. See also: Wecker v Secretary, Department of Education Science and Training [2008] FCAFC 108 at [96], (2008) 168 FCR 272 at 294 per Greenwood J. 9 With more specific reference to the rule in Browne v Dunn (1894) 6 R 67 ("Browne v Dunn"), it is to be recalled that the "rule" as expressed in that case by Lord Herschell LC at 70-71 was as follows: Now my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be delivered, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him, and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. … Lord Halsbury also observed at 76-77: My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to. … 10 Irrespective of whether that "rule" is to be properly characterised as a rule of evidence or a rule of fairness, and again as a generally expressed proposition, that "rule" is not generally a "rule" to be applied by administrative decision-makers. None of the parties made reference to any decision in which the question arose as to whether the Authority (or the former Superannuation Complaints Tribunal) was required to comply with or apply the rule in Browne v Dunn. But reference was made to Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 at [57], (2003) 201 ALR 437 at 450 ("Applicant S154/2002"). Gummow and Heydon JJ (with whom Gleeson CJ agreed) there concluded in respect to proceedings before the Refugee Review Tribunal: [57] Accordingly, the rule in Browne v Dunn has no application to proceedings in the tribunal. Those proceedings are not adversarial, but inquisitorial; the tribunal is not in the position of a contradictor of the case being advanced by the applicant. The tribunal member conducting the inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. The Tribunal Member has no "client", and has no "case" to put against the applicant. Cross-examiners must not only comply with Browne v Dunn by putting their client's cases to the witnesses; if they want to be as sure as possible of success, they have to damage the testimony of the witnesses by means which are sometimes confrontational and aggressive, namely means of a kind which an inquisitorial tribunal member could not employ without running a risk of bias being inferred. Here, on the other hand, it was for the prosecutrix to advance whatever evidence or argument she wished to advance, and for the tribunal to decide whether her claim had been made out; it was not part of the function of the tribunal to seek to damage the credibility of the prosecutrix's story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. (footnotes omitted) Subsequently, in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93, (2014) 226 FCR 555 at 594 ("Sullivan"), these observations were cited and it was there further concluded that: [149] …These were observations made in respect to the Refugee Review Tribunal. But, importantly, no attempt was made to seek to distinguish the case where the administrative decision-maker was the Administrative Appeals Tribunal. Indeed, with specific reference to the Administrative Appeals Tribunal, Robertson J has said that "in light of the origins of the rule … it is apt to mislead and to give proceedings in the tribunal an unwarranted curial gloss to refer to principles of procedural fairness as they operate in the tribunal by reference to Browne v Dunn": Calvista Australia Pty Ltd v Administrative Appeals Tribunal (2013) 216 FCR 32 at [118]. Earlier in those reasons for decision, it had been observed that: [61] Any unquestioning analogy between administrative and judicial processes is to be shunned: … The conclusions reached in Sullivan, with respect, are equally applicable to proceedings before the Authority. The facts in Sullivan involved a challenge to a decision of the Administrative Appeals Tribunal cancelling Mr Sullivan's helicopter licence. Although the statutory provisions within the Administrative Appeals Tribunal Act governing the procedures of the Tribunal are much more comprehensive than the procedures which govern the manner in which the Authority in the present proceeding was to resolve the complaint made to it, both the Tribunal and the Authority have in common the task of being placed "in the shoes of the original decision-maker" and the task of making a decision on the factual merits: Corporations Act s 1055(1); Administrative Appeals Tribunal Act s 43(1); Mercer Superannuation (Australia) Ltd v Billinghurst [2017] FCAFC 201 at [32], (2017) 255 FCR 144 at 155 per Flick, Kerr and Pagone JJ. See also: Rushton v Commonwealth Superannuation Corporation (No 3) [2021] FCA 358 at [50] per Rares J. 11 In respect of the Authority, it must be shown that there is some reason to depart from the more generally expressed conclusions in other decisions that administrative decision-makers are not normally bound to apply the rules of evidence nor the rule in Browne v Dunn. In the absence of any such reason, it is expected that the Authority in the present proceeding was equally not bound to apply the rules of evidence and, more specifically, nor was it bound to apply the rule in Browne v Dunn. 12 Second, such guidance as can be gleaned from the statutory and regulatory framework within which the Authority makes its decision reveals that that framework does not sit comfortably with - and is in fact inconsistent with - any application of the rule in Browne v Dunn, or any requirement that that rule is to be applied as a general proposition to its decision-making functions. In exercising its powers, the Authority is directed to affirm a decision of (in this case) AustralianSuper if "satisfied" that the decision was "fair and reasonable in all the circumstances": Corporations Act s 1055(3). Contrary to the submission advanced by Counsel on behalf of the Applicants, the Authority may reach such a state of "satisfaction" without any necessity to (as was put in submissions): determine the "truth" of competing accounts; or make findings of fact as to where the "truth" in fact rested. A discharge of the statutory task entrusted to the Authority by s 1055(3), on the facts of the present case, and the task of reaching a state of "satisfaction" as to whether the decision of AustralianSuper was "fair and reasonable", is not to be constrained by an unexpressed statutory or other requirement to resolve competing factual accounts. A statutory direction that a decision-maker must reach a state of "satisfaction", of itself, does not necessarily require that conflicting accounts of facts be put to those who advance such conflicting accounts. Nor does the "rule" in Browne v Dunn require more than notice and an opportunity being given to a witness to address a competing account given by another witness: cf. Millar v Federal Commissioner of Taxation [2015] FCA 1104 at [55], (2015) 67 AAR 490 at 506 per Griffiths J ("Millar"). A state of "satisfaction" may, it is thus concluded, be reached by weighing conflicting evidence and without conclusively resolving which account is the objectively true and correct account: cf. R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 117 per Dixon CJ, Williams, Webb and Fullagar JJ. 13 Third, the statutory and regulatory provisions which address the manner in which the Authority is to discharge its functions support a conclusion that the rule in Browne v Dunn is not a rule to be followed or applied by the Authority. The context in which the Authority makes its decisions includes: section 1051(4)(b) of the Corporations Act, which provides that an "operational requirement", being a mandatory requirement with which the Authority "must ensure" that it complies (s 1052), is that the Authority is to determine complaints "in a way that is fair, efficient, timely and independent"; rule A.2.1(c) of the Australian Financial Complaints Authority (AFCA) Complaint Resolution Scheme Rules (the "Rules") dated 25 April 2020, which provides as follows: AFCA will: … c) consider complaints submitted to it in a way that is: (i) independent, impartial, fair, (ii) in a manner which provides procedural fairness to the parties (iii) efficient, effective, timely, and (iv) cooperative, with the minimum of formality; … rule A12.1 of the Rules, which provides that "[a]fter collecting relevant information and obtaining submissions from the parties to a complaint, AFCA may choose to provide the parties with a preliminary assessment of the complaint"; rule A.14, which provides (in part) as follows: Decision making approach … A.14.2 When determining any other complaint, the AFCA Decision Maker must do what the AFCA Decision Maker considers is fair in all the circumstances having regard to: a) legal principles, b) applicable industry codes or guidance, c) good industry practice and d) previous relevant Determinations of AFCA or Predecessor Schemes. A.14.3 An AFCA Decision Maker is not bound by rules of evidence or previous AFCA or Predecessor Scheme decisions. … rule C.2.2 which provides examples of circumstances where "AFCA may consider excluding a complaint", including those where "AFCA … consider[s] … there is a more appropriate place to deal with the complaint, such as a court, tribunal, another dispute resolution scheme, or the Office of the Australian Information Commissioner…". Although these provisions do not expressly address the rule in Browne v Dunn, they do provide a sound foundation for a conclusion that that rule is not one which is to be applied as a matter of course in the decision-making tasks of the Authority. These provisions seem to provide a procedural scheme within which the Authority is normally to act. It is not a scheme which should be supplemented, with respect, by reference to unexpressed procedural limitations which have the potential of prejudicing the resolution of a complaint "in a way that is fair, efficient, timely and independent". 14 The rule in Browne v Dunn, it is to be constantly recalled, is "an aspect of the fair conduct of hearings": cf. B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 at [106] per Allsop P (as his Honour then was) (Giles and Basten JJA agreeing). Differently expressed, Griffiths J in Millar [2015] FCA 1104, (2015) 67 AAR 490 at 506 observed: [55] The rule in Browne v Dunn is to secure fairness in the conduct of proceedings: … The rule does not require that there be put to the witness every point upon which his or her evidence might be used against him or her or against the party who calls the witness: … In essence the rule requires a party to give appropriate notice to the other party of any imputation that the former intends to make against either the latter about his or her conduct relevant to the case, or a party's or a witness' credit: … Cross-examination is not the only way a witness or a party can be put on notice. Where the issues are such that it would be readily apparent to a party that a particular imputation has been made, there is no necessity to put the imputation to a witness: … (citations omitted) His Honour continued (at 522): [139] There are several difficulties with these contentions. The first is that the rule in Browne v Dunn is a rule of evidence. In circumstances where the AAT is not bound by the rules of evidence, the Full Court has held in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; 64 AAR 120 (Sullivan) at [149]-[151] that the observations of Gummow and Heydon JJ in Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 450 (to the effect that that rule has no application to proceedings in the Refugee Review Tribunal) also applies to AAT proceedings. In Sullivan, the Full Court approved the observations of Robertson J in Calvista Australia Pty Ltd v Administrative Appeals Tribunal (2013) 216 FCR 32; 61 AAR 39 at [118] that: … in light of the origins of the rule … it is apt to mislead and to give proceedings in the tribunal an unwarranted curial gloss to refer to principles of procedural fairness as they operate in the tribunal by reference to Browne v Dunn. See also: Twentyman v Secretary, Department of Social Services [2018] FCA 1892 at [77], (2018) 76 AAR 449 at 465 per Wigney J. Provisions such as s 1051(4)(b) and rule A.2.1(c) only serve to underline the statutory emphasis upon the mandate of the Authority to conduct its hearings in a procedurally fair way as opposed to - and in stark contrast to - the formality of judicial proceedings, where the rule is more commonly invoked. 15 Fourth, there is nothing on the facts of the present case which would dictate that the Authority could only reach a state of "satisfaction" that the decision of AustralianSuper was "fair and reasonable" (s 1055(3)) by applying the "rule" in Browne v Dunn. There is nothing self-evidently unfair in the Authority basing its decision upon the Statutory Declarations provided to it; with those who sought to challenge AustralianSuper's initial decision having access to that material; and with an opportunity to provide further material. Irrespective of the rule in Browne v Dunn, the competing accounts as to whether Ms Petterd was the "partner" of the deceased until the time of his death was a factual issue upon which Mr Cummins and Ms Little had been afforded an adequate opportunity to advance for consideration their competing account. 16 The fact is that the Authority made available to the Applicants and Ms Petterd the factual basis upon which it wished to proceed. It also provided a copy of its Recommendation dated 19 February 2020 which then expressed the Authority's position as follows: 1.2 Issues and key findings Who were the deceased member's dependants? … On the evidence before me, Ms JP was not a dependant because she has not been shown to be the defacto spouse of the deceased member at the time of his death. Further, Ms JP was not financially dependent on the deceased member and they were not in an interdependency relationship. Was the decision to distribute the death benefit to Ms JP fair and reasonable? The trustee's decision to pay Ms JP 100% of the death benefit was unfair and unreasonable as Ms JP was not a dependant of the deceased member under superannuation law and could not be paid the death benefit. 1.3 Recommendation This recommendation is in favour of the complainants. The deceased member's death benefit should be paid to the complainants equally as his sole dependants. 17 On 19 March 2020, the solicitors representing the First Respondent, Ms Petterd, had written to the Authority urging it "to reject the recommendation" and made submissions in support of that contention and provided further Statutory Declarations. As at 26 March 2020, at the very latest, solicitors had been retained by and were acting on behalf of "the children of the late Christopher Benedict Cummins, Monique Little and Benjamin Cummins". A letter written to the Authority on that date expressly "respond[ed] to each of the points raised by Mrs Petterd's solicitor in their correspondence dated 19 March 2020". The letter then proceeded to set forth about a further page of response to that letter. By that stage, it would appear, further Statutory Declarations had been provided to the Authority in support of the claims made by Ms Petterd. In response to those further declarations the letter continued on as follows (without alteration): Clients view of the additional Statutory Declarations provided by Mrs Petterd. In perusing the Statutory Declarations that have now been provided by Mrs Petterd our clients make the following observations: • When examining all the statutory declarations supporting Mrs Petterd's objection, some of the statutory declarations suspiciously seem similar in both content and expression. • It is our clients view that the supporting statutory declarations are not relevant, as they consist largely of conclusions about the nature of the relationship between the late Mr Cummins and Mrs Petterd. There seems to be little or no facts provided that support those conclusions raised by the respective witnesses in their statutory declarations. • Our client's instruct that they have only ever heard of Kara Diane Whitelaw due to the fact she is the daughter of Mrs Petterd. All other persons who have provided supporting Statutory declarations to support Ms Petterd claim, they have never met or were even discussed, yet alone mentioned by their late father to them. • Our clients note when examining their late fathers' Facebook account and profile only a "Kennith Enright" is listed on their late fathers' Facebook friends list and none of the other alleged "friends" of Mrs Petterd are on the late Mr Cummins friends on his Facebook profile. We hope that this will assist the AFCA ombudsman in their examination and determination of this matter. Missing from that submission made on 26 March 2020 is any submission of the kind now sought to be relied upon, namely that a "fair" decision could only be made if an opportunity were to be provided for each of the conflicting witnesses to comment on any contrasting account. 18 Fifth, the manner in which the Authority proceeded in the present case does not self-evidently disclose any apparent procedural unfairness. If attention is focussed upon the reasons provided by the Authority, those reasons (inter alia): set forth a summary of the conflicting contentions of the parties, and a brief reference to the competing evidence, expressly acknowledging that there is "conflicting evidence about the nature of the relationship between the claimed spouse and the deceased member in 2018"; and the manner in which it "weighed" that evidence. It is the latter part of those reasons which was the focus of attention by Counsel for Mr Cummins and Ms Little. 19 That account was as follows: The weight of evidence indicates the claimed spouse was in a spousal relationship with the deceased member at the date of his death. I have considered the evidence as it relates to each of the following common law factors, indicative of when two people are living together on a genuine domestic basis in a relationship as a couple. Duration of the relationship It was open to the trustee to find that the claimed spouse and the deceased member began living together as a couple some time around 2002 and were still living together as a couple at the date of his death. Despite the evidence on behalf of the complainants that the nature of their relationship had changed in around 2013, there is evidence from third parties of their ongoing relationship as a couple. Many relationships go through periods of stress, particularly in circumstances involving alcoholism. It is possible there were periods when tensions were high and the couple presented as estranged, but this does not mean they had permanently broken up, as claimed by the deceased member's family. Nature and extent of a common residence There is no dispute that the claimed spouse and the deceased member shared several common residences over the course of their relationship. Sexual relationship It is open to accept the claimed spouse's evidence that she and the deceased member had a sexual relationship. No one has refuted that evidence and third parties have attested to witnessing affection between them. Degree of financial dependence or interdependence There is no dispute that the claimed spouse and the deceased member did not maintain joint bank accounts or finances. However, the claimed spouse says that the deceased member helped meet expenses and contributed by paying $230 per week for food, $40 per week for petrol and $40 per month for a Foxtel subscription, while she paid the rental of $220 per week. This demonstrates a degree of financial interdependence because, without the other's contributions, each of them would have had to pay for both rental and other living expenses alone. Even the deceased member's family acknowledges that, at a bare minimum, the claimed spouse and deceased member were cohabitating to share living expenses. Ownership use and acquisition of property There is no dispute that the claimed spouse and the deceased member did not own any joint property. Mutual commitment to a shared life It was open to the trustee to consider that the claimed spouse and the deceased member were mutually committed to a shared life. There is evidence from friends, work colleagues and the real estate agent supporting an ongoing relationship. While there were no social media posts or text messages, the claimed spouse explains that they did not interact in this way. In my view, it would not be fair or reasonable to infer the absence of a mutual commitment from an absence of social media or text messages. Care and support of children There is no evidence the claimed spouse and the deceased member were involved in jointly caring for his children, who did not live in the same city. There is some evidence the adult son stayed with them for a short time, but the claimed spouse says the deceased member was not very close to his children and this claim is supported by third parties. The adult daughter says she did not seek out a relationship with her father once she had a child of her own, due to his alcoholism. Reputation and public aspects of the relationship The weight of evidence indicates that the claimed spouse and the deceased member were recognised as a couple, including by his sister who named her as his 'de facto' and involved her in the funeral arrangements. It is clear they were publicly acknowledged as a couple at the racetrack where the deceased member worked and socialised as a couple in their home, even if they did not attend family functions together. The claimed spouse was also named as the deceased member's partner in his funeral notice. The evidence challenging the status of their relationship comes from the deceased member's family. However, apart from LB, the deceased member's family members (including the complainants) do not appear to have had regular contact with the claimed spouse and the deceased member as a couple and therefore may not have had the opportunity to observe them in their daily domestic life. Conclusion Considering all the evidence as it relates to the indicative factors as a whole, I am satisfied the claimed spouse was in a spousal relationship with the deceased member at the date of his death. It is not strictly necessary to consider whether the claimed spouse was also in an interdependency relationship with the deceased member at the date of his death. I note, however, that the legislated factors for an interdependency relationship are similar to the common law factors considered above and it would also have been open to the trustee to find that an interdependency relationship existed at the date of his death. Of these reasons, Mr Cummins and Ms Little maintained that a course not open to the Authority was to simply: conclude that it was "open to the trustee" to reach the conclusions there stated; or note that there was "no dispute that the claimed spouse and the deceased member did not maintain joint bank accounts" but to go on and conclude that there was "a degree of financial interdependence"; or note the qualification that it was "open to accept the claimed spouse's evidence". 20 In circumstances where those advancing competing accounts were given the opportunity to comment upon and answer competing factual assertions, there is no self-evident procedural unfairness. There is no self-evident failure to proceed in a manner which is other than "fair in all the circumstances" or, more accurately, in a manner that the Authority "considers" to be "fair in all the circumstances": Rule A.14.2. More specifically, the extent to which there was any real disagreement on the primary facts upon which conclusions were thereafter based is queried. Although Mr Cummins and Ms Little were unquestionably urging upon the Authority to reach a conclusion different to that in fact reached, and urging upon the Authority that the "relationship had changed in around 2013", there was a lack of specificity as to what dispute there was as to the primary facts. 21 Not to be ignored is the fact that after being provided with a copy of the February 2020 Recommendation, the legal representatives of Mr Cummins and Ms Little responded in some degree of detail to the further Statutory Declarations provided to the Authority to urge it to depart from its earlier Recommendation. But no submission was then made that the Authority would not be proceeding in a fair manner if it did not conduct interviews for the purpose of getting the input of those who had advanced conflicting accounts of the relationship between the deceased and Ms Petterd.