Disposition of the appeals
67 The relevant legal principles relating to these appeals may be summarised as follows. First, as noted above, the Court's jurisdiction under s 46 of the SRC Act is a limited one: a party to a proceeding before the Tribunal may appeal to the Court on a question of law alone.
68 Secondly, the subject matter of an appeal under s 46 is the question or questions of law on which the appeal is brought. It is important that the question of law be clearly formulated because it provides the very subject matter of the appeal (see TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 per Gummow J in respect of the comparable provision in s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)).
69 Thirdly, generally speaking, issues relating to the weight to be given to evidence do not give rise to a question of law (see Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; (2011) 119 ALD 472 (Edington) at [61] per Kenny and Lander JJ).
70 Fourthly, no appeal lies under s 46 of the SRC Act from the Tribunal's findings of fact, unless those findings were reached in a manner which gives rise to a question of law (see, for example, Edington at [36] per Kenny and Lander JJ). There is no error of law simply in making a wrong finding of fact (Waterford v Commonwealth (1987) 163 CLR 54 at 77 per Brennan J). Justice Foster recently expressed the principle in Hannover Life Re of Australasia Pty Ltd v Wright [2014] FCA 1163 at [21]:
… Where a choice falls to be made between two conclusions open on a consideration of the facts, the question is one of fact.
71 Fifthly, the question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law, at least where a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words (Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280 and Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 16 per Hill J). More recently, in Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [24], the High Court (Gleeson CJ, Gummow and Callinan JJ) observed, in the context of an appeal confined to a question of law from a trial court, that:
Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way… whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law. However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation…
And at [27], their Honours referred approvingly to Mason J's statements in Hope v Bathurst City Council (1980) 144 CLR 1 at 8-9 that:
… when it is necessary to engage in a process of construction of the meaning of a word (or phrase) in a statute a question of law will be involved, but that the question may be a mixed one of fact and law.… [A] question exclusively of law arises… if, on the facts found only one conclusion is open.
72 Sixthly, under the SRC Act, the Tribunal is not called upon to make the same kind of determination as the Administrative Appeals Tribunal. The Tribunal's jurisdiction is not to determine whether the trustee made the correct or preferable decision but, rather, the Tribunal stands in the shoes of the trustee and determines, based on all the information before it, whether or not the trustee's decision was fair or reasonable in the circumstances (see Edington at [46] per Kenny and Lander JJ; Cameron v Board of Trustees of the State Public Sector Superannuation Scheme [2003] FCAFC 214; (2003) 130 FCR 122 (Cameron) at [38]-[43] per Whitlam, Kiefel and Dowsett JJ). In Cameron, their Honours said at [43]:
A decision under review pursuant to s 37 of the Act may, as Allsop J pointed out in Crocker at [29], be 'one which so involves elements of fact, degree, opinion or value judgment that different minds can legitimately differ in reaching a decision'. That is why the Tribunal's task is not to ask itself whether such a decision was the correct or preferable decision. The correct approach was pithily summarized by Allsop J in Crocker (at [31]) as follows:
'The Tribunal's task is not to engage in ascertaining generally the rights of the parties, nor is it to engage in some form of judicial review of the decision of the trustee or insurer. Rather it is to form a view, from the perspective of the trustee or insurer, as to whether the decision of either was (recognising the overriding framework given by the governing rules and policy terms, respectively) unfair or unreasonable.'
73 Seventhly, if the Tribunal is satisfied that the trustee's decision was not fair and reasonable, the Tribunal makes a decision that is fair or reasonable in substitution for the trustee's decision and must act according to law (Edington at [47] per Kenny and Lander JJ).
74 Eighthly, the Tribunal may have to make its own findings of fact in conducting a review, but it does not decide afresh all findings of fact of the trustee or, in that sense, "stand in the shoes" of the trustee (Hornsby v Military Superannuation and Benefits Board of Trustees (No 1) [2003] FCA 54; (2003) 126 FCR 484 at [19] per Mansfield J and Edington at [50] per Kenny and Lander JJ).
75 Finally, the Tribunal may accept the findings made by the trustee if it agrees with them, but the Tribunal's task is not simply to determine whether the trustee's factual findings were fair and reasonable. The Tribunal must ascertain the facts for itself having regard to the material before it and satisfy itself by reference to these facts whether the trustee's decision was fair and reasonable in the circumstances (Edington at [51] per Kenny and Lander JJ).
76 I shall now apply those principles to the circumstances of the appeals here.
77 As to the requirement that the appeal raise one or more questions of law I doubt that the questions of law as posed in two notices of appeal properly raised a question of law. Rather, the questions posed appear to challenge the Tribunal's findings of fact which, as noted above, do not present a question of law unless the findings are reached in a manner which involves an error of law.
78 It is to be noted, however, that Ms Friar reformulated the relevant question of law raised in the appeals in her outline of written submission (see [51] above). Having regard to that reformulation and also to the fact that Ms Friar did not have the assistance of any legal representation in the appeals, I am prepared to accept that the appeals do raise a question of law, which is to the following effect: whether, on the facts found by the Tribunal, the Tribunal should have concluded in Ms Friar's favour that she and her brother had an interdependent relationship within the meaning of s 10A of the SIS Act and no other conclusion was open to it.
79 After summarising the matters relied on by Ms Friar the Tribunal stated in its first determination that it rejected her claims having regard to the following findings and matters:
(a) the relationship between Ms Friar and her brother was one of convenience and reflected a strong sibling relationship;
(b) there was insufficient evidence to ground a claim of interdependency;
(c) at the date of Mr Friar's death, Ms Friar was married and, although it was unclear when she separated from her husband , there was a substantial period where they lived together at the same time as Ms Friar claimed to have a relationship of interdependency with her brother;
(d) Ms Friar was not financially dependent upon her brother; and
(e) although Ms Friar shared the same residence as her brother, their financial arrangements were more akin to that of flatmates than of brother and sister sharing a house together.
80 In the light of these matters, the Tribunal concluded that it was not fair and reasonable for the Trustee to conclude that Ms Friar was a dependent or interdependent so as to be a potential beneficiary.
81 As I have emphasised above, the Court's jurisdiction to review the Tribunal's findings of fact is very limited. It is not to the point that the Court might have itself made different findings of fact or attached different weight to the relevant facts. The relevant legal issue is whether, having regard to the facts as found (assuming that those findings of fact were reasonably open on the evidence before the Tribunal), the Tribunal was obliged in law to conclude that there was an interdependency relationship within the meaning of s 10A. In my view, in circumstances where the facts as found were reasonably open to the Tribunal, it cannot be concluded that the Tribunal erred in determining that it was not fair and reasonable of the Trustee to find that Ms Friar was dependent on her brother or that they had an interdependent relationship for the reasons given by the Tribunal.
82 It is evident from Ms Friar's outline of written submissions that she genuinely believes that, in reaching that conclusion, the Tribunal gave too much weight to some matters and too little weight to other matters. However, these are matters which are insufficient to attract the Court's limited jurisdiction in a s 46 appeal under the SRC Act.
83 In the case of the Tribunal's second determination, and again after setting out the matters relied on by Ms Friar, the Tribunal rejected her claims based upon the following findings and matters:
(a) a finding by the Tribunal that the relationship was one of convenience and, even though there was a strong sibling relationship, the relationship was not likely to be one of an ongoing nature as contemplated by the legislation;
(b) there was no clear evidence which established an interdependent relationship or financial dependency;
(c) Ms Friar lived with her husband for at least some of the period in which she claimed she had an interdependent relationship with her brother, which the Tribunal found "makes no sense";
(d) Ms Friar's younger sister made similar claims in respect of the same household, which suggested to the Tribunal that the claims pushed "the boundaries of reasonableness"; and
(e) in the light of these matters, it was fair and reasonable for the Trustee to reject Ms Friar's claims in the second matter.
84 For similar reasons as given above in respect of the first appeal, I am not satisfied that Ms Friar has established appealable error in respect of the Tribunal's second determination. The facts as found by the Tribunal were reasonably open on the evidence. Having regard to those findings of fact and the other matters relied upon by the Tribunal it cannot be accepted that the Tribunal erred in law in concluding that there was no interdependency relationship within the meaning of s 10A.
85 For completeness, it might be noted that the rejection of Ms Friar's appeals does not mean that the Court agrees with or endorses all of the language used by the Tribunal in its statements of reasons. It should not be assumed, for example, that the Court takes the view that an interdependency relationship can never be established in a household where siblings live together and one also happens to be married to, and lives with, a third person. Every case has to be looked at according to its particular circumstances. The Court does not read the Tribunal's reasons, particularly in relation to its second determination, as precluding the possibility of a relationship of interdependency being established in such circumstances, as long as the other relevant requirements are also established. The Court considers that the language used by the Tribunal in respect of this matter reflects, correctly, the Tribunal's own limited role in reviewing the Trustee's determination and determining whether it was "fair and reasonable" in the particular circumstances here.