Hornsby v Military Superannuation & Benefits Board of Trustees No 1 [2003] FCA 54 | Case summary

CONSIDERATION 15 It is convenient to first address the role of the Tribunal, raised by the further amended ground of appeal. The Tribunal's task under s 37 of the SRC Act is somewhat complex. It relevantly provides: "(1) For the purpose of reviewing a decision of the trustee of a fund that is the subject of a complaint under section 14: (a) the Tribunal has all the powers, obligations and discretions that are conferred on the trustee; and (b) subject to subsection (6), must make a determination in accordance with subsection (3). … (3) On reviewing the decision of a trustee, insurer or other decision-maker that is the subject of, or relevant to, a complaint under section 14, the Tribunal must make a determination in writing: (a) affirming the decision; or (b) remitting the matter to which the decision relates to the trustee, insurer or other decision-maker for reconsideration in accordance with the directions of the Tribunal; or (c) varying the decision; or (d) setting aside the decision and substituting a decision for the decision so set aside. (4) The Tribunal may only exercise its determination-making power under subsection (3) for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both, that the Tribunal has determined to exist in relation to the trustee's decision that is the subject of the complaint no longer exists. (5) The Tribunal must not do anything under subsection (3) that would be contrary to law, to the governing rules of the fund concerned and, if a contract of insurance between an insurer and trustee is involved, to the terms of the contract. (6) The Tribunal must affirm a decision referred to under subsection (3) if it is satisfied that the decision, in its operation in relation to: (c) the complainant; and (d) so far as concerns a complaint regarding the payment of a death benefit - any person (other than the complainant, a trustee, insurer or decision-maker) who: (i) has become a party to the complaint; and (ii) has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person having an interest in the death benefit; was fair and reasonable in the circumstances." 16 The Tribunal's powers under s 37 as expressed in s 37(1)(a) and (2) bear a clear resemblance to the powers of the Administrative Appeals Tribunal under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) and to the powers of the Migration Review Tribunal and of the Refugee Review Tribunal under ss 349 and 415 respectively of the Migration Act 1958 (Cth). Under such provisions, the reviewing decision-maker stands in the shoes of the original decision-maker and exercises afresh the administrative decision-making power: see e.g. Esber v Commonwealth (1992) 174 CLR 430 at 440; Bushell v Repatriation Commission (1992) 175 CLR 408 at 425; Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 at 419; Repatriation Commission v Thompson [2001] FCA 341 at [60]; (2001) 107 FCR 235 at 250. To perform the review function under such provisions, the reviewing decision-maker must make its own findings of fact on matters which the issue under review requires. And, where there is a discretionary element in the making of the decision, it must exercise its own discretion. 17 The Tribunal's powers are, however, circumscribed or confined by ss 37(4) and (6). Its role is not to decide for itself the correct or preferable decision, as it must affirm a decision if it is satisfied that the operation of the decision the subject of its review was fair and reasonable in the circumstances. Its task is to make a determination under s 37(3) which, by reason of s 37(6), is whether the decision under review in its operation is unfair and unreasonable in the circumstances. If it is satisfied about that, the determination it may make under s 37(3)(b)-(d) is limited by s 37(4) to repairing the unfairness or unreasonableness which it has determined to exist. See the discussion by Allsop J in Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330 at [21]-[32]. Allsop J concluded at [32]: "Thus, essential to the task before the Tribunal, as a consideration mandated by the terms of s 37, is an inquiry as to whether the decision by the trustee or insurer was in conformity with the governing rules or the terms of the policy. If the Tribunal finds that the decision is contrary to the governing rules or the terms of the policy it may well be an easy step to conclude that it is unfair or unreasonable. … If the Tribunal finds that the decision of the trustee or the insurer is in conformity, with and required, by the governing rules or policy terms, in the sense which I have discussed above, it cannot other than find or be satisfied that the decision is fair and reasonable. If the Tribunal finds that the decision of the trustee or the insurer is in conformity with, but not required by, the governing rules on policy terms, in the sense which I have discussed above, it may proceed, in effect, to supplant the decision of the trustee or insurer with its view of the merits, bearing in mind the limitations of subs 37(4) and 37(5)." 18 Relevantly for present purposes, his Honour's discussion of whether a decision of a trustee is in conformity with, but not required by, the governing rules of the fund under consideration included the following at [29]: "… because the decision was one which so involves elements of fact, degree, opinion or value judgment that different minds can legitimately differ in reaching a decision or because one aspect of the rules or policy terms, but not another, has been the foundation of the decision. A decision of a trustee or an insurer about a matter of judgment, for instance one involving weighing competing expert or lay opinion about a state of affairs, might be lawful and in conformity with the governing rules and policy terms. It might be described as 'correct' in that it was the product of an inquiry directed to the right question and in that there was material available to support it. In this, perhaps limited, sense the decision was correct and was open to be made." On the other hand, as Kirby J pointed out in Attorney-General (Commonwealth) v Breckler (1999) 197 CLR 83 at 128-129 [1999] HCA 28 [87]-[89], s 37(5) requires the Tribunal to form a view about the requirements of the applicable law, including the meaning of the rules of the fund, and to make findings of fact. There may be circumstances where the opinion or judgment on a matter of fact required by the proper application of the rules of the relevant fund to be made by the Tribunal may lead it to the view that the operation of the decision under review is unfair or unreasonable. And that may be so even if the primary decision-maker (the trustee) did not mistake its powers and obligations under the governing rules of the fund or did not misunderstand the law or did not misapply the law to the facts. 19 Consequently, the Tribunal may have to make its own findings of fact for the purpose of determining whether, in its opinion, the decision under review in its operation was fair and reasonable in the circumstances. But it is necessary to make such findings of fact only for that purpose. It does not decide afresh all findings of fact of the primary decision-maker as if that decision had not been made. It does not, in that sense, simply stand in the shoes of the primary decision-maker. 20 Hence, under s 37, although the Tribunal is required to make its own decision in relation to the complaint, it is required to make only such findings of fact as are necessary for its decision. It must do so upon the evidence before it. In the light of such findings or conclusions as it has reached, the Tribunal must consider whether the decision it is reviewing, in its operation, was fair and reasonable in the circumstances: Military Superannuation and Benefits Board No.1 v Stanger [2002] FCA 671 at [21]. Section 37(6) requires that step. Ultimately the object of the Tribunal's review is to remove unfairness or unreasonableness in the decision under review. See generally Briffa v Hay (1997) 75 FCR 428; Seafarers' Retirement Fund Pty Ltd v Oppenhuis (1999) 94 FCR 594; National Mutual Life Association of Australasia Ltd v Campbell [1999] FCA 1717, affirmed on appeal National Mutual Life Association of Australasia Ltd v Campbell (2000) 99 FCR 562; and Lykogiannis v Retail Employees Superannuation Pty Ltd (2000) 97 FCR 361 at [48]. 21 In this matter, the Tribunal's reasons set out in [11] above indicate that it addressed the evidence to determine whether the marital relationship between the applicant and the deceased continued until his death. It referred to the contents of the suicide note, and to the deceased's communications with his family and relatives in the period between 1 and 5 August 1997. It noted the deceased had explored whether to, and then decided not to, move from the home he shared with the applicant. It appears to have accepted the cancellation of the plan to move from the shared home was because he had decided to take his life, but as an indication the relationship was not ongoing. 22 It is not the Court's function to review the Tribunal's findings of fact. The appeal is limited to questions of law. The observations of Mason CJ (with whom Brennan J agreed) in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356 indicate the line between an error of law and an error of fact where the decision under review involves an inference or conclusion from primary facts. In this matter, it was not argued that the conclusion of the Board, and to the extent the Tribunal agreed with it or held it to be available (an issue addressed below), that the marital relationship had ceased by 5 August 1997 was not reasonably open to it. Hence, no error of law is demonstrated of itself in the reaching of that conclusion. It is beside the point that another mind might have attributed to the deceased's fluctuating attitude to whether he wished to leave the marital home the view that he had not firmly decided to leave it; or that another mind might not have concluded that his decision to remain for the time being in the matrimonial home was because he did not regard the relationship as at an end rather than that he had decided to commit suicide. It is beside the point that the earlier of the two notes written on the night of 4/5 August 1997 may not have indicated to another mind that the deceased did not then intend to terminate the relationship but wished to preserve it, or that his suicide later that night was not the act of a then rational mind. It would of course be an unacceptable proposition that every person who commits suicide thereby rationally intends to sever an existing marital relationship or to indicate the severance of such a relationship so that, by virtue of the suicide, there was not at the time of death an ongoing marital relationship or there was firm evidence that the relationship had come to an end shortly before. But the Board did not express itself that way. In this matter the Board had the benefit of a detailed and reasoned recommendation of the Reconsideration Advisory Committee considering the available material and that document was available also to the Tribunal. 23 In my view, the Tribunal has properly fulfilled its fact finding function under the Act. It has, if not expressly then by clear implication, regarded the evidence as indicating that in this particular case the deceased regarded his marital relationship with the applicant to have broken down by 5 August 1997. It referred to the suicide note, and the deceased's communications with family and colleagues, and it also regarded his decision to remain in the marital home also as consistent with that view. Its findings of fact enabled it then to take the step of concluding that the decision of the Board on that matter was fairly and reasonably open to it. Once that step was taken, the conclusion on the issue identified by s 37(6) followed that the operation of the decision in relation to the applicant was fair and reasonable. Section 37(6) then directed the Tribunal to affirm the decision. 24 I turn to consider the other grounds of appeal referred to in [12] above. 25 The first of those contentions was that, as a matter of law, a de facto marital relationship can end only when there is shown to be both a physical separation and an intention on the part of one or other of the persons involved to bring the relationship to an end. In this matter, there had been no physical separation. Counsel for the applicant relied upon three decisions to support the contention: Howland v Ellis [2001] NSWCA 465 (Howland); Sullman v Sullman [2002] NSWCA 169 (Sullman); and George v Hibberson [1987] DFC 95-054 (George). 26 In George, a claim was made under the De Facto Relationships Act 1984 (NSW), which came into force on 1 July 1985. The claim could only succeed if a de facto marital relationship which had commenced in 1976 had survived beyond 1 July 1985. It was found the relationship had ceased before that date, so the claim under the legislation could not succeed. Cohen J noted that separation in a marriage under the Family Law Act 1975 (Cth) required more than mere physical absence from one another, so that living apart would not amount to separation unless there was also an intention to separate, or unless a party acts as if the marital relationship has ceased. After expressing appropriate caution about directly importing into the De Facto Relationships Act concepts or considerations under the Family Law Act concerning marital relationships, Cohen J said at 75, 608: "The use of the words 'living or having lived together as husband and wife on a bona fide domestic basis" suggest a degree of permanence which will not cease merely because one party separates for the purpose of going on holidays or going on business. Nor would it cease if, after an argument, one party moved out and stayed elsewhere for a short while or went home to his or her family, if there was an intention to return and if there was a reasonable indication of that intention." Hence, as his Honour concluded, it must be a question of fact, where there has been physical separation, whether one or other party to a de facto marital relationship intended that there should be an end to the relationship by that separation. Such an intention might be inferred from the way a party to the relationship acted. 27 Howland also involved a claim under the Family Relationships Act. It also turned upon whether a de facto marital relationship had come to an end. The claim under that Act by a prisoner in custody could only be maintained as being within the prescribed time if the de facto marital relationship did not come to an end by the imprisonment of the claimant. The partner of the claimant continued to visit the claimant in prison and to express sentiments of love and affection. The imprisonment was for a lengthy period. Stein JA (with whom Meagher JA and Ipp AJA agreed) referred with approval to the decision in George, in saying that there must be both physical separation and an intention on the part of one or other partner to permanently end the relationship before a de facto marital relationship can be said to have come to an end: at [20]-[29]. Sullman appears to have followed those earlier decisions: see at [199]-[203]. 28 I do not think that those decisions lay down as necessary factual criteria for the cessation of a de facto marital relationship under the Rules both physical separation and an intention to terminate the relationship on the part of one or other of the partners. In each of those cases there was in fact physical separation, and the issue was whether the separation was in the circumstances determinative of the status of the relationship. As Cohen J pointed out in George at 75, 608, it is necessary to have regard to the particular statutory provisions under consideration to determine what factual issues must be addressed. 29 In this matter the primary eligibility prescription is in par 1A of the Rules, namely that the two persons "ordinarily" lived together at the time of the deceased's death as husband and wife on a "permanent and bona fide domestic basis". Paragraph 1B then indicates the necessary factual criteria to fall within the eligibility prescription. Paragraph 1B(b) explains the circumstances in which two persons are to be taken to be living together notwithstanding a period of temporary or enforced separation (for example the deceased's attendance at a training course in June and July 1997). 30 Here, it is accepted that the deceased and the appellant were ordinarily living together as husband and wife on a permanent and bona fide domestic basis for a continuous period of less than three years up to 31 July 1997. The Board and the Tribunal each appear to have accepted that they continued to live together to the time of the deceased's death, on 5 August 1997. The issue for the Board, and to the extent necessary for the proper application of s 37 for the Tribunal, was whether they continued to do so as husband and wife on a permanent and bona fide domestic basis. 31 I do not see any difficulty with the proposition, which the Board and the Tribunal accepted, that two persons may in the past have lived together as husband and wife on a bona fide domestic basis and may have terminated the spousal relationship but nevertheless have continued to live together, that is in the same premises. There may be many reasons why they might do so. In the context of the Family Law Act 1975 (Cth), there are cases where parties to a marriage have continued to live under the same roof after the marital relationship has ceased: See for example In the Marriage of Falk (1977) 15 ALR 189 at 194-195 per Evatt CJ, Fogarty and Bulley JJ, where it was said: "Clearly there is no difficulty about accepting a view that parties have "separated" notwithstanding that there has been no physical departure by either of them from the premises that they have previously jointly occupied once it is accepted that separation really means a departure from a state of things rather than from a particular place." 32 I do not consider the cases to which counsel for the applicant referred support the proposition that, in such a circumstance, the spousal relationship must be taken to have continued notwithstanding the parties have in fact mutually agreed to terminate it or if one of the parties has in fact terminated it. 33 Hence, in my judgment, the Tribunal did not err in law in addressing the factual issues posed by par 1B(a)(ii) of the Rules in the way it did even though the deceased and the applicant in fact continued to live under the same roof until 5 August 1997. In my view, it was open to the Tribunal to be satisfied that the decision of the Board, in its operation in relation to the applicant, was fair and reasonable in the circumstances. Section 37(5) did not require the conclusion that, because the deceased and the applicant were still living together in the same married quarters on 5 August 1997, they were still living together as husband and wife on a permanent and bona fide domestic basis. Paragraphs 1A and 1B indicate that the element of ordinarily living together, and the element of the character of the relationship are different elements. Consequently, although ordinarily living together is also one common indicator of a bona fide domestic marital relationship, the fact of ordinarily living together does not as a matter of law or under the construction of the Rules necessarily mean such a relationship exists or continues to exist. 34 The use of information by the Tribunal which was not direct or primary evidence, by which counsel for the applicant indicated he meant evidence admissible in a court, was but faintly argued as an error of law. The Evidence Act 1995 (Cth) does not apply to the Board or to the Tribunal: s 4(1). Section 36 of the SRC Act expressly provides that the Tribunal is not bound by legal forms or by the rules of evidence and may inform itself of any matter relevant to its review in any way it thinks appropriate. The information to which it referred was plainly relevant to the task of the Board. In my view, this contention on behalf of the applicant is not made out. 35 On a literal reading of the Tribunal's reasons, the Tribunal appears to have excluded from its consideration the acknowledged partial financial dependency of the applicant upon the deceased up to 5 August 1997 in the face of par 1C of the Rules. The Tribunal said expressly that her financial dependency is not relevant to the definition of spouse or to the payment of the death benefit. Par 1B(a)(ii) directs the Board (and on review the Tribunal) to have regard to "any relevant evidence" in addressing whether it is satisfied the prescribed relationship existed to the date of death. Par 1C(a) clearly makes dependency a piece of relevant evidence. 36 Counsel for the respondent contended that the Tribunal had not fallen into legal error by ignoring a relevant consideration (see e.g. Craig v South Australia (1995) 184 CLR 163) for two reasons. 37 Firstly, she contended that par 1B(a)(ii) involves a dual test, and that financial dependency is relevant evidence only to the second limb of the dual test. It was argued that the Tribunal's decision was based upon the first limb only of the dual test, so it did not fall into error in excluding from consideration financial dependency. The second reason was that, properly understood, the Tribunal had not ignored financial dependency as a relevant consideration. 38 I accept that par 1B(a)(ii) can be dissected into two conjunctive elements which must each be established before the applicant comes within par 1A. They are that: (1) the applicant had been living with the deceased as his wife for a continuous period of less than three years up to the time of the deceased's death; and (2) the Board (or the Tribunal), having regard to any "relevant evidence", considered that the applicant ordinarily lived with the deceased as his wife on a permanent and bona fide domestic basis at the time of the deceased's death. The expression "relevant evidence" is specified by par 1C to include, but not be limited to evidence establishing full or substantial financial dependency "for the purposes of paragraph 1B". 39 The significance of the dual elements is hard to discern. Both relate relevantly to the time of death of the deceased. Counsel for the respondent, in her detailed and helpful submissions, identified as one of the different features of the two elements that the first element required some continuity "up to the time of death" whereas the second element focuses upon the time of death. If there is any difference by reason of those different expressions, it is not one of moment to the present application. There may be circumstances in which a marital relationship existed only at or from a particular time, but not beforehand, so the element of continuity up to that time was absent. Where the particular time is identified by the death of one of the putative spouses, it is hard to conceive of any illustration where the relationship could exist at the particular time without some prior continuity in the relationship, albeit a short one. In any event, in this matter, there was no suggestion that the inquiry was other than whether the relationship had ended only shortly prior to the deceased's suicide. 40 Counsel for the respondent also noted that it is only the second element which expressly requires that the spousal relationship be on a "permanent and bona fide domestic basis" at the time in question. Again, it is unclear what that adds in the present matter. There was no suggestion that the applicant and the deceased did not in the period of time to 31 July 1997 have a permanent relationship, or that it was not on a bona fide domestic basis. Living together continuously for a period as husband and wife normally contemplates a bona fide domestic arrangement. It could not, in this day and age, be suggested that the domestic basis be other than one sharing living pleasures and tasks as agreed between the parties to the relationship. In this matter, it was accepted that the relationship to 31 July 1997 was on a bona fide domestic basis. The issue was whether it had come to an end prior to the deceased's death. Moreover, the topics identified in par 1C as relevant evidence include topics which are commonly considered to be relevant to whether two persons are living together as husband and wife: see e.g. the factors enumerated by Powell J in Roy v Sturgeon (1986) 11 NSWLR 454 at 458-459 as follows: "… it seems to me that each case will involve the Court making a value judgment having regard to a variety of factors relating to the particular relationship, those factors including, but not being limited to, the following:

the duration of the relationship;
the nature and extent of the common residence;
whether or not a sexual relationship existed; 4. the degree of financial interdependence, and any arrangements for support, between or by the parties;
the ownership, use and acquisition of property;
the procreation of children;
the care and support of children;
the performance of household duties;
the degree of mutual commitment and mutual support;
the reputation and 'public' aspects of the relationship." 41 I note further that the second element, but not the first, requires not the existence of an objective state of fact, but the existence of the opinion of the Board about a state of fact. Such an emphasis may have significance: see e.g. the observations of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 273-277. If the decision-maker makes the finding of fact required by the first element, it must be satisfied of the fact. In addressing the second element, the decision-maker must in the circumstances then hold the opinion, at least to the extent that the factual inquiries required by each element overlap, that those matters exist. If the second element does add different or additional considerations for consideration, then the test as to whether they are met will be slightly different for the reasons explained in Wu Shan Liang. But, in this matter, I do not think the Board's decision was based upon any nuances of inquiry or emphasis imposed by the two elements of par 1B(a)(ii). 42 Perhaps the two elements exist because the first element is but an introductory element, to distinguish par 1B(a)(i) from par 1B(a)(ii) so that living together as husband and wife for at least three years is assumed then to be a permanent and bona fide domestic relationship whereas a shorter period requires more explicit consideration. If that be so, it points to the Tribunal's decision being focused upon the second element of par 1B(a)(ii) either alone or together with the first element. 43 Whatever the differences between the two cumulative elements of par 1B(a)(ii) of the Rules, I do not accept the contention that the Tribunal was not obliged to give effect to par 1C by having regard to evidence of substantial financial dependency because it reached its decision upon the first rather than the second of those two elements. 44 In my judgment, the Tribunal did not embark upon a separate or two stage consideration of the criteria in par 1B(a) in the way counsel for the respondent urged should be done. It did not say it was doing so. Its reasons indicate a focus upon whether the relevant relationship existed "at" the time of the deceased's death and whether the Board's conclusion on that question was fairly and reasonably open to the Board. The use of the time focus "at" the time of the deceased's death seems to point more to looking at the second element. Its reasons use the expression "permanent de facto" relationship as the relationship the Board and in turn the Tribunal addressed. That I take to be a paraphrase of the expression "permanent and bona fide domestic" relationship as used in pars 1A and in the second element of 1B(a)(ii). Alternatively, I think it could be seen as a compendious expression of living together as husband and wife on a permanent and bona fide domestic basis (used in par 1A and in the second element of par 1B(a)(ii) or as treating the two elements of par 1B(a)(ii) as involving a common question which it addressed as such. In my view, the Tribunal's reasons cannot be read as being based upon only the first element of par 1B(a)(ii). 45 In addition, in my view, evidence of substantial financial dependency is relevant evidence for the purposes of considering whether as a matter of objective fact two persons have been living together as husband and wife up to and at a particular time. In other words, in my view, par 1C is not confined in its application to the second of the elements of par 1B(a)(ii). It is not so confined; it is expressed as being generally for the purposes of par 1B. It does not say it applies only to par 1B(a)(ii) or to the second element of par 1B(a)(ii). The use of the expression "any relevant evidence" in the second element of par 1B(a)(ii) could not be construed as directing or authorising the decision-maker not to have regard to relevant evidence in addressing the first element, or the alternative in par 1B(a)(i). It would be irrational to do so. That may be said of each of the topics of relevant evidence in par 1C of the Rules. Indeed, it would be to attribute to the Rules, which are a statutory instrument (see ss 4 and 5 of the MSB Act), a very erratic intention in the face of the general introductory words of par 1C. There is no apparent reason why it should be perceived as necessary to direct what must (at least) be regarded as relevant for the purposes of the decision-maker addressing only the second element of par 1B(a)(ii) when the same decision-maker will also address par 1B(a)(i) and the first element of par 1B(a)(ii). At common law, financial dependency is regarded as a relevant consideration as to whether two persons are living together as husband and wife on a bona fide domestic basis: see e.g. per Powell J in Roy v Sturgeon referred to above. That is not to say that once there is financial dependency there is necessarily such a relationship. It is but one relevant factor to the judgment which must be made. But, in my judgment, the Tribunal was obliged to consider that factor. 46 The failure to take into account a relevant fact is an error of law; provided the relevance is prescriptive: per Bowen CJ in Kuswardana v Minister for Immigration & Ethnic Affairs (1981) 54 FLR 334 at 341-342. In this instance, relevance of evidence of substantial financial dependency is in my view a prescribed relevant consideration: see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 347-348 [73] and the cases cited therein. 47 It remains to determine whether the Tribunal did comply with par 1C of the Rules. Its reasons for decision are not to be construed with an eye keenly attuned to the perception of error: Wu Shan Liang at 271; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280. 48 In this instance, the Tribunal expressly said financial dependency is: "not relevant to the definition of spouse in the Rules nor to the payment of death benefit. Rather it is the nature of the relationship … at the time of [the deceased's] death that must be determined." 49 It is hard to understand those words in any other way than as misconstruing the Rules. It is correct that the nature of the relationship at the time of the deceased's death which must be determined. Rule 38, as explained in par 9 and in turn in par 1A and 1B, clearly indicate that. But pars 1B(a)(ii) and 1C(a) direct that substantial financial dependence at the time of death is relevant to the determination of a spousal relationship and so to the eligibility to the payment of benefits under Rule 38. The Tribunal explicitly says to the contrary. It has also, by the use of the adverb "rather" in its introduction to identifying the relevant question, indicated financial dependency is not a relevant consideration. I cannot read the Tribunal's reasons as doing other than misstating what pars 1B(a)(ii) and 1C(a) prescribe. In my judgment, it has therefore fallen into an error of law. 50 Counsel for the respondent contended that the Tribunal's ignoring of financial dependence could not be said to have materially affected the Tribunal's decision, so the application should be dismissed in any event. I accept that the granting of relief under ss 46(3) and (4) of the SCA Act is discretionary, and should be granted only if the error of law found to exist may materially have affected the conclusion of the Tribunal: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 246; Comcare v Calipari [2001] FCA 1534. The same position obtains under s 44(4) of the Administrative Appeals Tribunal Act: Minister for Immigration & Ethnic Affairs v Gungor (1982) 63 FLR 441 at 454-455. 51 However, in this matter, I am not of the view that the Tribunal's error is not, or may not be, material to its decision. I think the facts and circumstances to which the Tribunal had regard are not so clearly indicative of the spousal relationship having ceased by 5 August 1997 that the Tribunal differently constituted, or even as constituted when the decision under appeal was made, but having regard to the financial dependency of the applicant upon the deceased might not have reached a different conclusion. I am mindful that the Court should not assess that question by itself stepping into the shoes of the Tribunal. 52 I therefore set aside the decision of the Tribunal and remit the matter to the Tribunal to be redetermined in accordance with these reasons. I understand the Tribunal will be differently constituted for the purposes of the redetermination, and I do not in that circumstance need to consider whether any direction to that effect should be made. I give the applicant liberty to apply to seek such a direction if so advised, and in that event it would be necessary to determine whether the Court has power to make any such order. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Hornsby v Military Superannuation & Benefits Board of Trustees No 1

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