The submissions of the parties
19 The applicants submitted as follows.
20 As to ground 1, it was clear from the authorities that the only question that the Tribunal was concerned with was whether or not the decision was fair and reasonable as it related to the complainant having regard to all of the circumstances.
21 In the present case it was clear that the question the Tribunal instructed itself to answer was not the correct question. The Tribunal identified the correct question at [24]. However the question as framed at [24] was not the question that informed the Tribunal's path of reasoning. It was the question as framed at [28] that informed the Tribunal's path of reasoning.
22 The applicants submitted that the Tribunal limited the scope of the issue it had to determine to the issue it identified at [28].
23 That error in asking itself the right question caused the Tribunal to proceed to determine the matter on the basis that as there was some evidence to support the finding that the claimed spouse qualified as a spouse, the decision was therefore fair and reasonable. That reasoning did not reflect the task that the statute required the Tribunal to undertake.
24 The applicants submitted that the vice in the way that the Tribunal framed the question that it had to answer could be seen in the reasoning at [31]. The Tribunal had simply latched onto some material that supported the notion that the first respondent met the definition of spouse and gave it primacy without explaining why that view of the evidence should be accepted over the contentions of the applicants. Had the question been framed correctly, the applicants submitted, it would have, logically, forced the Tribunal to consider whether the decision was fair and reasonable in its operation to the applicants. To reach such a conclusion the Tribunal would have had to have regard to the extensive contradictory evidence submitted by the applicants and provide some reasoning as to why it was not to be preferred.
25 The applicants submitted that the error in the present proceedings was analogous to the error in Haematite Pty Ltd v Ristevski [2002] FCA 408; 189 ALR 685. The applicants also referred to Mercer Superannuation (Australia) Ltd v Billinghurst [2016] FCA 1274; 161 ALD 338 and National Mutual Life Association of Australia Ltd v Jevtovic [1997] FCA 359; 217 ALR 316.
26 As to ground 2, the applicants submitted the decision did not resolve significant parts of the applicants' case that tended to support the view that a de facto relationship did not exist. The Tribunal gave no reason why one view of the material put before it was to be accepted over the other. The applicants provided to the Tribunal material that tended to contradict every matter that the Tribunal noted at [31]. Yet no attempt was made by the Tribunal to explain why it should be discounted in favour of a view that a de facto relationship existed. The conclusion at 31 was never conceded by the applicants who pointed to significant evidence that would tend to suggest the opposite was the case.
27 The applicants referred in particular to the material provided by Belinda Jones, the deceased's fortnightly cleaner up until his death, and by Peter Shanahan, who was the deceased's gardener up until his death.
28 The applicants also submitted that the conclusion at 31 was contested by the applicants, who pointed to the fact that the text messages did not clearly establish that the deceased and the first respondent were in a loving committed relationship such that it would ground a finding that the first respondent was the deceased's de facto spouse.
29 The applicants submitted that the conclusion at 31 was curious because it seemed to accept the existence of one "household" as a fait accompli, without any explanation as to how the Tribunal reached that conclusion. The applicants assumed this was in order to show financial interdependence. The applicants had pointed the Tribunal to the fact that the first respondent had conceded, "there was no intermingling of funds".
30 The applicants submitted that the conclusion at 31 ran contrary to much of the evidence that the applicants put before the Tribunal.
31 The applicants submitted that the final conclusion at 31 was perhaps the most difficult to fathom: the newspaper articles did not support a view that there was the requisite degree of public knowledge.
32 The applicants submitted the Tribunal did not distinguish any of the above evidence put forward by the applicants or explain why it was not to be preferred as evidence of a lack of a de facto relationship. It was not clear why the Tribunal gave primacy to one view of the material before it and not the other. A proper exercise of the Tribunal's power to decide whether the decision of the trustee was fair and reasonable in its operation to the applicants would necessarily have involved some consideration of why aspects of their case central to their assertion that the first respondent was not in a de facto relationship with the deceased were not to be accepted or discounted in favour of other evidence. The Tribunal had given no path of reasoning explaining how it resolved the factual dispute.
33 The applicants referred, amongst other cases, to Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2].
34 As to ground 3, the applicants submitted that when the Interpretation Act stated that no particular finding was required in relation to any of those matters, it did not mean that they can be ignored as factors militating against the existence of a de facto relationship if they were not present. Otherwise any relationship would be considered a de facto relationship. It was clear from the authorities that one criterion was not to be considered more significant than any other, see Spencer v Burton [2015] QCA 104; [2016] 2 Qd R 215 at [123].
35 The short point was, the applicants submitted, that the surrounding circumstances of the relationship, with reference to the matters in s 21C(3), reading the section as a whole, did not support the view that a de facto relationship existed. The first respondent did not address in her submissions on the matters referred to at s 21C(3)(e), (g) and (h). There was no financial dependence or interdependence: see s 21C(3)(d). The relationship was short: s 21C(3)(a). There was no common residence; they each owned their own property: s 21C(3)(b). In terms of s 21C(3)(i) the first respondent could not provide any documentation to make out this aspect of the section aside from newspaper articles that, the applicants contended, were factually wrong. The applicants submitted that the Tribunal did not make a value judgment as referred to in National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 at [33]. The applicants referred to Jonah v White [2011] FamCA 221; 258 FLR 236 at [60]. The facts and circumstances of the case did not establish a de facto relationship existed such as to satisfy the requirements of the section properly constructed.
36 The first respondent submitted as follows.
37 As to ground 1, the statutory question was properly put in [24] of the Tribunal's reasons. The reasons, at [25]-[27], set out the path which the Tribunal took to reach the position set out in [24] (and reached in [34]). The reasons at [34] appropriately reflected the precise legislative language of s 347(6) of the Complaints Act.
38 The first respondent submitted that the applicants' submissions proceeded to cherry pick the Tribunal's reasons. The Tribunal clearly asked itself the correct question (as shown in [24] and [34]). The assertion that the question in [28] was the actual question to which the Tribunal directed itself, and that somehow that question resulted in appellable error, should not be accepted.
39 The focus of the Tribunal throughout its reasons was, the first respondent submitted, to determine whether the trustee's determination that the first respondent was the de facto spouse of the deceased was fair and reasonable as required by s 37(6). In discharging its statutory burden, the Tribunal needed to assess whether there were grounds upon which the Tribunal could, fairly and reasonably, determine that the first respondent was indeed a "spouse". The reference in [28] of the Tribunal's reasons to the word "spouse" (in that paragraph, in quotation marks) was merely a reference to that word as it appears in the definition of "Spouse" in cl 3 of the Award.
40 The process undertaken by the Tribunal, not just in [31] of the reasons (that complained of as "simply latching on" to evidence supporting the first respondent's case), involved the careful review of the submissions by each party, and the weighing of contentions of each side, in [21] and [23].
41 While noting that there were inconsistencies, the first respondent submitted the Tribunal indicated the evidence by which it was swayed (in particular it noted the text messages) and found that the decision of the trustee was fair and reasonable in the circumstances. No error was demonstrated in this approach.
42 The first respondent submitted the Tribunal clearly asked itself the correct question. A paraphrase in [28] of the reasons did not detract from that proposition. There was nothing to indicate that [28] of the reasons led the Tribunal into error.
43 The first respondent submitted that ground 2, while formulated as a question of law, did not relate to whether adequate reasons were given; it was, in substance, an argument as to whether the Tribunal erred in fact by not accepting the evidence of the applicants.
44 The first respondent submitted that there was no error in the way in which the reasons were given. The requirement for written reasons in s 40 of the Complaints Act must be balanced against the Tribunal's objectives in s 11, which required that the Tribunal must provide mechanisms for review of decisions complained of which are "fair, economical, informal, and quick".
45 While the hearing before the Tribunal was a hearing de novo, the Tribunal was required to "stand… in the shoes of the trustee and determine…, based on all the information before it, whether or not a decision taken by the trustee was fair or reasonable in the circumstances." While the Tribunal may make its own findings, it should do so only in the exercise of the statutory power; that is, to determine whether the decision of the trustee was fair and reasonable.
46 The first respondent submitted that when determining whether adequate reasons had been given, this Court must have in the forefront of its mind the Tribunal's task, which was not to make a minute determination of each factual controversy, but to determine, in the context of the evidence brought to the Tribunal, whether the decision of the trustee was, in those circumstances, fair and reasonable. The first respondent submitted that in its review of the positions of the parties, the acknowledgement of inconsistencies, and its identification of the more important factors it had regard to, the Tribunal discharged its duty of providing written reasons in an economical and informal context.
47 The first respondent submitted the subtext of this ground, and of ground 3, was that the Tribunal decision was not fair or reasonable to the applicants in that it did not uphold their arguments. This was not the approach to the Tribunal's work, nor an approach to this appeal, which should be accepted.
48 As to ground 3, the first respondent submitted that the ground raised questions of whether the Tribunal properly interpreted the facts before it rather than erred in its interpretation of a statutory provision.
49 The complaint seemed to be that the Tribunal did not have what the applicants considered was the proper regard to all the factors listed in s 21C(3) of the Interpretation Act. The subsection made it clear that the listed circumstances were only to be taken into account insofar as they were relevant to the facts of a particular case. Section 21C required consideration of all the circumstances of the case, including the factors listed, and no more.
50 The first respondent referred to Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330 at [29], where Allsop J noted that a decision under the Complaints Act is:
… one which so involves elements of fact, degree, opinion or value judgment that different minds can legitimately differ in reaching a decision.
51 In their written reply, the applicants submitted as to ground 1 that simply using the language of the legislation to state a conclusion did not show that the tribunal set about its task properly within the terms of the relevant section. In National Mutual Life Association of Australia Ltd v Jevtovic the Court came to a similar finding. The focus of the Tribunal was not "whether the Trustee's determination that the respondent was the de facto spouse of the deceased was fair and reasonable as required by s37(6)" but rather, erroneously, whether the respondent met the definition of spouse as prescribed in the trust deed.
52 As to ground 2, the applicants submitted the core of this ground was the contention that the Tribunal's decision did not resolve significant parts of the applicants' case that tended to support the view that a de facto relationship did not exist, and no reason was given as to why one view of the material should be accepted over the other. A complaint that a decision maker had failed to give an explanation as to why arguments critical to a litigant's case were not to be accepted was a complaint of an error of law. In Qushair v Raffoul [2009] NSWCA 329 at [58] Sackville AJA summarised the principles of law as they related to a failure to give reasons where such an obligation was imposed by the operation of statute. The error that the ground complained of was that the conflict of facts had not been properly resolved (or resolved at all) in the reasons. As such the reasons were inadequate and not in compliance with s 40 of the Complaints Act. The Tribunal did not discharge its duty to give reasons by simply acknowledging inconsistencies. It was the resolution of those inconsistencies that lay at the heart of any decision maker's task.
53 As to ground 3, the applicants submitted that the substance of this ground was that the section was not satisfied by simply identifying some facts that come within the matters outlined at s 21C(3) without any reference to the balance of the section. The applicants accepted that the Interpretation Act did not prescribe a precise test for the existence of a de facto relationship. However that proposition could not be used to argue that the matters referred to in the section were of no relevance. In their oral submissions, the applicants contended that each of the paragraphs of s 21C(3) was a mandatory relevant consideration.