Ievers v Superannuation Complaints Tribunal

The Tribunal's reasoning 20 The Tribunal expressly recognised at [28] that it must determine whether the decision of the Trustee to pay 100% of the benefit arising on the death of Ms Redfearn to Mrs Ievers was fair and reasonable in its operation in relation to Mr Hattingh in the circumstances. The issue was not what decision the Tribunal would have made on the evidence before it. In reaching its determination, the Tribunal took the whole of the evidence and submissions into account. 21 In its central deliberations, the Tribunal noted (at [29]) that it was common ground that prior to 18 April 2011 for somewhere between three to five years, Ms Redfearn's relationship with Mr Hattingh was that of a person who, as described in s 10 of the SIS Act: … although not legally married to the person, lives with a person on a genuine domestic basis in a relationship as a couple. 22 The Tribunal said (at [30]), because of this relationship, Mr Hattingh was Ms Redfearn's spouse and accordingly her sole dependant. This meant that if, in a hypothetical scenario during the agreed relationship period, Ms Redfearn had died of natural causes or an accident, then Mr Hattingh, as her sole dependant, would have had a legitimate expectation, having regard to the nature and purpose of superannuation, of the Trustee exercising its discretion and distributing the entirety of her superannuation benefit to him, notwithstanding the existence of a legal personal representative. Moreover, that legitimate expectation would have existed irrespective of evidence being adduced that the relationship was arguably an abusive one from Ms Redfearn's perspective. The Trust Deed also adopted the SIS Act definition of 'spouse' in respect of the payment of death benefits, relevantly mandating that the Trustee must pay the benefit to such of the member's dependants or legal personal representative, in such proportions as the Trustee determines. 23 The Tribunal noted (at [32]) that, notwithstanding the Trustee's discretion in respect of a proportional distribution of the benefit between an identified dependant and the legal personal representative, when considering the nature and purpose of superannuation, the central question remained: who had the right to look to Ms Redfearn for ongoing financial support had she not died? In the agreed relationship period it was clear that Mr Hattingh, as her spousal dependant, had the sole right to look towards his spouse Ms Redfearn for ongoing financial support. The Tribunal considered (at [32]) that it was therefore more likely than not that, in the agreed relationship period, pursuant to the Tribunal's scenario, the Trustee would have elected to pay 100% of the benefit to Mr Hattingh. 24 The Tribunal noted (at [33]), however, that both the Trustee and Mrs Ievers argued that immediately prior to the incident on 20 April 2011, Mr Hattingh had irrevocably ended his de facto relationship with Ms Redfearn such that at the time of her death two days later, he was no longer a spousal dependant. 25 The Tribunal said (at [33]): Commonsense and the law dictate that those who would seek to deny, what had previously been accepted by them as a fact, must bear the responsibility of proving their contention in this regard. As the Trustee had to satisfy itself on this score, so as to determine how it would distribute [Ms Redfearn's] benefit, it is appropriate for the Tribunal to primarily concern itself with the reasoning employed by the Trustee in coming to the conclusion the relationship had ended. 26 In this regard the Trustee had stressed in its submissions (recorded at [34] of the Tribunal's decision) that the evidence presented by each party appeared to be self-supporting and predisposed to his or her own claim and at the same time was contradictory to the other party's claim. It was unclear whether the relationship actually continued at the date of death, or whether the relationship was expected to continue had Ms Redfearn not died. The Trustee had therefore turned to the 'objective, independent, and contemporaneous evidence' to best determine whether a de facto spousal relationship continued as at the date of death. The Trustee nominated the police interview of Mr Hattingh, police investigation reports and the Coroner's investigation reports as the sources for its evidence. The Trustee was satisfied the evidence presented persuasively supported that Ms Redfearn had severed any and all financial support to Mr Hattingh on the day before the incident, that they had publicly argued and possibly terminated their relationship on that day before the incident, that they then amicably and civilly discussed their relationship issues on the evening of that day before the incident, and then argued again and confirmed the termination of their relationship on the following day (the day of the incident). The Trustee found that Ms Redfearn had then threatened self-harm, attempted suicide due to the terminated relationship and subsequently died from those injuries. On that basis, the Trustee had concluded that Mr Hattingh was not to be regarded as a dependant of Ms Redfearn, either as her de facto spouse or interdependent. 27 The Tribunal noted (at [36]) that the Trustee had nominated 19 April 2011, that is, the day before the incident, as the starting point for the possible termination of the relationship. It then proceeded to examine the text messages, details of telephone conversations and other documentary evidence during this period. The Tribunal had regard to the Trustee's reference to Mr Hattingh's police interview on which the Trustee had first relied as being objective independent evidence. The Tribunal said (at [38]) that it had carefully perused the interview and could find nothing which indicated that Mr Hattingh considered the relationship had terminated, either from his perspective or from that of Ms Redfearn. The position was the same in relation to the police investigation reports, according to the Tribunal. The Trustee had also nominated police investigation reports (which the Tribunal took as being the file) entitled 'Summary of Findings of Investigation' in which the following was recorded: Evidence of Co-dependency … There are definite signs of codependency in the relationship between [Ms Redfearn] and [Mr Hattingh]. It appears that [Ms Redfearn] played a passive role in the relationship generally agreeing to make [Mr Hattingh] happy. [Mr Hattingh] appears to have been very controlling of [Ms Redfearn] making her walk to and from work daily and refusing to accept lifts in the rain because she wasn't allowed. History of Domestic Violence/Mental Illness [Ms Redfearn] and [Mr Hattingh] had no police history of domestic violence in their relationship and police have never been called to any disturbances between the couple at any address known to police. [Ms Redfearn] did not have any history of mental health issues including self harm. … The information in relation to the tying of the noose the night before relates directly to a suggestion that [Mr Hattingh] was contemplating suicide. There is no information that [Mr Hattingh] tied the noose in order to assist in the suicide of [Ms Redfearn]. Summary … Evidence from witnesses reveals that leading up to her death, [Ms Redfearn] was involved in a relationship with [Mr Hattingh] which involved elements of escalating domestic violence. This was never brought to the attention of police, nor did [Ms Redfearn] seek to obtain a domestic violence order by private application. The relationship between [Ms Redfearn] and [Mr Hattingh] quite possibly played a part in the mind of [Ms Redfearn] leading up to her death. … 28 The Tribunal (at [40]) was of the view that none of the material referred to by the Trustee would lead an objective reader to conclude that the police believed that the relationship had terminated at the time of the incident. 29 The Tribunal (at [41]) also examined the Coroner's investigation report, relied upon by the Trustee, and was satisfied that there was nothing in the Coroner's file revealing the Coroner's thoughts on whether the relationship had ended at the time of the incident. Although, the Coroner's remarks in a letter from the Coroner to Mrs Ievers and Ms Redfearn's step-father declining to conduct an inquest into Ms Redfearn's death presented Mr Hattingh in an adverse light, as the Tribunal recognised (at [42]), with the Coroner believing that Ms Redfearn would have been better served by not being in the relationship with him. But, notwithstanding this, the Tribunal noted (at [42]) that nothing in the Coroner's observations supported a conclusion that the relationship had finished at the time of Ms Redfearn's death. 30 The Tribunal (at [43]) broadly agreed that the submissions on behalf of Mrs Ievers and Mr Hattingh appeared to be self-supporting and predisposed to their own claim, but, in particular, considered (at [45]) the material advanced by Mrs Ievers did not convince it on the balance of probabilities that Mr Hattingh had terminated the relationship. The Tribunal paid particular regard to Mrs Ievers' assertions in respect of Ms Redfearn's text messages to Mr Hattingh between 11.43am and 11.47am on the morning of the incident (as stated at [45]). The Tribunal accepted (at [45]) that those messages certainly indicated that Ms Redfearn felt something was wrong with the relationship but that did not mean that either party had ended the relationship. The Tribunal therefore said (at [46]) that it followed from this that it did not consider it 'fair or reasonable' for the Trustee to conclude that at the time of Ms Redfearn's death Mr Hattingh was no longer in a de facto spousal relationship with her such that he was no longer a dependant. 31 The Tribunal (at [47]) concluded on the balance of probabilities that Mr Hattingh was still in a de facto spousal relationship with Ms Redfearn at the time of her death and, accordingly, was her sole dependant. Consequently, for the purposes of the Trust Deed and the SIS Act, it was unnecessary for the Tribunal to determine whether an interdependency relationship also existed in the last two and half days prior to the incident. However, as it had existed prior to that time, nothing in the material advanced by the Trustee or Mrs Ievers had demonstrated to the Tribunal that it ceased in the period immediately prior to the incident. 32 The Tribunal also had to deal with the question of whether the benefit should be distributed entirely to Mr Hattingh or whether it should be shared with Mrs Ievers. It concluded (at [49]) that there was no rational basis to award any percentage of the benefit to Mrs Ievers, given that Mr Hattingh was Ms Redfearn's sole dependant and having regard to the nature and purpose of superannuation and who had a right to look to her for ongoing financial support. 33 The Tribunal made its determination accordingly.

QUESTIONS OF LAW 34 There are said to be eight questions of law arising on the appeal. Those questions of law are as follows: 1. On the proper construction of the SunSuper trust deed, as varied (Trust Deed) and sections 14(1) and 37(5) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (Complaints Act), is it beyond the Tribunal's power (jurisdiction) to review a decision of the Trustee not to accept that a person is a Dependant (as defined) on the grounds that: (a) the Tribunal's determination that a person is a Dependant and, as such, has a beneficial interest in a Death Benefit involves a purported exercise of judicial power; and (or) (b) such a decision of the Trustee was not a decision made in relation to [Ms Redfearn], as a former member of a regulated superannuation fund. 2. On the proper construction of the Trust Deed and section 15(1) of the Complaints Act, is the question of whether a person is a Dependant (as defined) a jurisdictional fact that is a precondition to the exercise of the Tribunal's power and, if so, was [Mr Hattingh] [Ms Redfearn's] Dependant on the date of her death. 3. Assuming the Tribunal to have power and jurisdiction to review the Trustee's decision in this case, on the proper construction of the Complaints Act and Trust Deed, what was the function of the Tribunal on review of the Trustee's decision to distribute 100% of the Death Benefit to the Personal Representative [Mrs Ievers]. 4. On the proper construction of the Trust Deed, what is the meaning of Dependant and what are the relevant considerations to be taken into account when determining if a person is a Dependant. 5. On the proper construction of the Complaints Act and the Trust Deed, what were the correct questions the Tribunal was called upon to consider when determining if the Trustee's decision was unfair or unreasonable. 6. Was the Trustee's decision to distribute 100% of the Death Benefit to the Personal Representative [Mrs Ievers] one that involved the exercise of discretion such that the Tribunal could set aside and substitute a determination involving the exercise of a discretion to distribute 100% to [Mr Hattingh] and, if so, was such a substituted determination within the boundaries of the Tribunal's determination-making power under section 37(4) of the Complaints Act. 7. What are the Tribunal's obligations, if any, to accord parties procedural fairness on review of a trustee's decision and was the Personal Representative [Mrs Ievers] accorded procedural fairness insofar as the Tribunal determined to substitute the Trustee's decision with a determination to distribute 100% of the Death Benefit to [Mr Hattingh]. 8. On the proper construction of the Complaints Act and the Trust Deed, what were the correct questions and relevant matters the Tribunal was called upon to consider when determining if the decision to distribute 100% of the Death Benefit to the Personal Representatives [Mrs Ievers] was unfair or unreasonable.

GROUNDS OF APPEAL 35 Mrs Ievers relies on the following grounds of appeal: 1. The presiding member of the Tribunal (Presiding Member) erred in law in concluding, on the balance of probability, that [Mr Hattingh] was in a de facto spousal relationship with [Ms Redfearn] at the time of her death and accordingly [Mr Hattingh] was her sole dependent [sic] (RFD [47]), whereas the question of whether [Mr Hattingh] was in fact and in law a Dependent [sic], within the meaning of that expression in the Trust Deed, was beyond the power of the Presiding Member, in that: (a) if the Trustee distributed any sum of the Death Benefit to [Mr Hattingh] and he was not in fact and in law a Dependent [sic], within the meaning of that expression in the Trust Deed, such distribution would be contrary to law and (or) the governing rules of the fund concerned and contrary to section 37(5) of the Complaint Act [sic]; (b) the Presiding Member's determination required the Trustee to distribute 100% of the Death Benefit to [Mr Hattingh]; (c) the Presiding Member's determination implicitly determined that such a distribution was not contrary to law and (or) the governing rules of the fund concerned and that [Mr Hattingh] was in fact and in law a Dependent [sic] of [Ms Redfearn] at the date of her death; (d) thus, the Presiding Member purported to exercise judicial power and determine the legal rights between [Mrs Ievers], [Mr Hattingh] and Trustee inter se and not merely review the exercise of a power, obligation or discretion conferred on the Trustee; and (or) (e) the Trustee's decision not to accept that [Mr Hattingh] was [Ms Redfearn's] Dependant (as defined) was not a decision made in relation to [Ms Redfearn] for the purposes of section 14(1) of the Complaints Act, but a decision made in relation to [Mr Hattingh] (i.e., [Mr Hattingh's] legal rights). 2. In the alternative to ground 1 above, the Presiding Member erred in law in determining as a jurisdictional fact that [Mr Hattingh] has an interest in the Death Benefit when, on the information before the Presiding Member, and by the matters set out in grounds 4 - 5 below, she should have determined that she was not satisfied that [Mr Hattingh] was a Dependant (as defined) and, therefore, that he had an interest in the Death Benefit within the meaning of section 15(1) of the Complaints Act. 3. In the alternative to grounds 1 - 2 above, the Presiding Member erred in law in concluding that, on the balance of probability, [Mr Hattingh] was in a de facto spousal relationship with [Ms Redfearn] at the time of her death, accordingly [Mr Hattingh] was her sole dependent [sic] and, following from that, it was not fair or reasonable for the Trustee to conclude to the contrary (RFD [46]-[47]), by misdirecting herself as to the correct question and having regard to the incorrect question, in that: (a) the Presiding Member incorrectly directed herself to determine what conclusion she would have reached on the available information; (b) the correct questions were: (i) what findings of fact should be made on the available information; and, (ii) having regard to those findings of fact, was the decision of the Trustee was [sic] fair and reasonable; [and] (c) in substance, the Presiding Member erroneously determined what she considered to be the preferable outcome, rather than considering if the Trustee's decision was unfair or unreasonable. 4. Further, the Presiding Member erred in law in concluding that, on the balance of probability, [Mr Hattingh] was in a de facto spousal relationship with [Ms Redfearn] at the time of her death and accordingly was her sole dependant (RFD [47]), by failing to have regard to relevant considerations, in that: (a) on the proper construction of the Trust Deed, on the death of the Decease [sic] Member the Trustee was obliged to pay the Death Benefit to [Ms Redfearn's] Dependents [sic] (as defined) or Legal Personal Representative (as defined) [Mrs Ievers], in such proportions as the Trustee determined (cl. 11.8(a)); (b) on the proper construction of the Trust Deed, a Dependent [sic] included a person who, although not legally married to [Ms Redfearn], lived with [Ms Redfearn] on a genuine domestic basis in a relationship as a couple and a person in a genuine Interdependency Relationship (as defined in section 10A of the Superannuation Industry (Supervision) Act 1993 (Cth) (Supervision Act)); (c) on the proper construction of the Trust Deed, a person that was physically violent and (or) abusive towards another person and (or) exercised control over that other person, although living with that other person, may not be so living on a genuine domestic basis in a relationship as a couple or in an Interdependency Relationship with that other person; (d) on the proper construction of the Trust Deed, a person who was living with another person on a genuine domestic basis as a couple or was in an Interdependency Relationship with that other person may have ceased to live with that other person in such a relationship if, although continuing to live with that other person, there had been a separation from that other person in the sense of a departure from the pre-existing state of things rather than a departure from a particular place; (e) there was evidence to the effect that [Mr Hattingh] was physically violent and abusive towards and exercised control over [Ms Redfearn]; (f) there was evidence to the effect that [Mr Hattingh's] conduct towards [Ms Redfearn] over a number of years and in the days immediately preceding her death caused or contributed to her suicide; (g) there was evidence that from mid-March 2011 to 22 April 2011 there had been a departure from the state of things as had pre-existed in the relationship between [Mr Hattingh] and [Ms Redfearn] before mid-March 2011; (h) the Presiding Member found that there was evidence that suggested, from [Ms Redfearn's] viewpoint, that she had an 'unsatisfactory relationship' with [Mr Hattingh] at or about the date of her death (RFD [40]); (i) the Presiding Member found that [Ms Redfearn's] text messages of 20 April 2011 certainly indicated that [Ms Redfearn] 'felt something was wrong with the relationship' (RFD [45]); (j) the Presiding Member found that there was evidence to the effect that the Coroner considered that 'relationship breakdown' had contributed to [Ms Redfearn] taking her own life (RFD [41]); and (k) the Presiding Member erroneously failed to have regard to any of the matters referred to in grounds 4(d) - (j) when determining if [Mr Hattingh] was or remained a Dependant of [Ms Redfearn] as at the date of her Death. 5. Further, the Presiding Member erred in law in concluding that, on the balance of probability, [Mr Hattingh] was in a de facto spousal relationship with [Ms Redfearn] at the time of her death and accordingly was her sole dependant (RFD [47]), by misdirecting herself as to the correct questions and having regard to the incorrect questions, in that: (a) the Presiding Member incorrectly assumed, without making appropriate findings of fact and applying the correct legal test to those facts, that for three to five years before 18 April 2011 [Mr Hattingh], although not legally married to [Ms Redfearn], lived with her on a genuine domestic basis in a relationship as couple and as such was a Dependant of [Ms Redfearn] during that period (RFD [29]); (b) the Presiding Member incorrectly considered that it was for the Trustee and [Mrs Ievers] to prove that [Mr Hattingh's] assumed status as Dependant ended on 20 April 2011 (RFD [33]); (c) the Presiding Member incorrectly considered that, as the Trustee had to satisfy itself that [Mr Hattingh's] assumed status as Dependant had ended on 20 April 2011, it was appropriate for the Presiding Member to concern herself with the reasoning employed by the Trustee in coming to the conclusion that the relationship had ended (RFD [33]); (d) the Presiding Member incorrectly considered, as a material consideration, if the material relied on by the Trustee would lead an objective reader to conclude that the police believed the relationship had terminated at the time of the incident, either from the perspective of [Mr Hattingh] or [Ms Redfearn] (RFD [40]); (e) the Presiding Member incorrectly considered that the [Mrs Ievers] was required to reasonably prove that [Mr Hattingh] had irrevocably terminated the relationship (RFD [44]); (f) the Presiding Member incorrectly considered, as a material consideration, if the material advanced by [Mrs Ievers] convinced her, on the balance of probability, that [Mr Hattingh] had terminated the relationship (RFD [45]); (g) the Presiding Member incorrectly considered, as a material consideration, if a relationship between [Mr Hattingh] and [Ms Redfearn] existed on 22 April 2011 (RFD [40], [42], [45]); and (h) the correct question for the Presiding Member's consideration was whether, having regard to all the evidence, including the matters referred to in grounds 4(a) - (j) [Mr Hattingh] was a Dependant (as defined) of [Ms Redfearn] on 22 April 2011 (the date of [Ms Redfearn's] death). 6. In the alternative to grounds 1 - 5 above, the Presiding Member erred in law in setting aside the Trustee's decision and substituting it with a determination to distribute 100% of the Death Benefit to [Mr Hattingh] (RFD [49]), by purporting to exercise her determination-making power in excess of that required for the purpose of placing [Mr Hattingh] as nearly as practicable in such a position that the unfairness or unreasonableness, or both, no longer existed, in that: (a) the Presiding Member determined that it was unfair and unreasonable for the Trustee to conclude that at the time of [Ms Redfearn's] death, [Mr Hattingh] was no longer in a de facto spousal relationship with [Ms Redfearn] and consequently was not a Dependent [sic] (as defined) (RFD [46]); (b) as a consequence of the Trustee's decision not to accept that [Mr Hattingh] was a Dependant of [Ms Redfearn], under the terms of the Trust Deed, the Trustee was obliged to pay 100% of the Death Benefit to [Mrs Ievers] (c1.11.8(a)(iii)); (c) thus, the Trustee's decision to distribute 100% of the Death Benefit to [Mrs Ievers], was not a decision involving the exercise of a discretion; and (d) the relevant unfairness or unreasonableness would be practicably removed by remitting the matter to the Trustee to reconsider the distribution of the Death Benefit on the basis that [Mr Hattingh] was a Dependent [sic] of [Ms Redfearn] as of 22 April 2011. 7. In the alternative to grounds 1 - 6 above, the Presiding Member erred in law in concluding that there was no rational basis, within the superannuation context, to award a percentage of the benefit to [Mrs Ievers] (RFD [49]), by failing to accord [Mrs Ievers] procedural fairness in that the Presiding Member did not provide [Mrs Ievers] with a reasonable opportunity to make submissions and adduce evidence on the question of whether there was a fair and reasonable basis to apportion the Death Benefit between [Mr Hattingh] and [Mrs Ievers]. 8. Further, the Presiding Member erred in law in concluding that there was no rational basis, within the superannuation context, to award a percentage of the benefit to [Mrs Ievers] (RFD [49]), by misdirecting herself as to the correct question, having regard to the incorrect question and failing to have regard to relevant considerations, in that: (a) the correct question was if, having regard to the Presiding Member's findings of fact, the decision of the Trustee to distribute 100% of the Death Benefit to [Mrs Ievers] was unfair or unreasonable; (b) the matters referred to in grounds 4(a) - (j) were relevant to the question of the degree of permanence and interdependence of the relationship between [Mr Hattingh] and [Ms Redfearn] and the extent to which there was a reasonable expectation and likelihood of [Mr Hattingh] sharing in [Ms Redfearn's] benefits on her retirement; (c) [Ms Redfearn] had not nominated a person to whom the Death Benefit should be paid and had not made a will from which her testamentary intention could be identified or inferred; (d) if [Mr Hattingh] was [Ms Redfearn's] de facto spouse in fact and in law as at the date of [Ms Redfearn's] death, [Mr Hattingh] would have a right receive [sic] a distribution from [Ms Redfearn's] estate, including any proportion of the Death Benefit paid [sic] [Mrs Ievers]; (e) the matters in grounds 8(b) - (d) were relevant considerations in determining if the distribution of 100% of the Death Benefit to [Mrs Ievers] was unfair or unreasonable and, in any event, in determining what amount, if any, to distribute to [Mr Hattingh] to remove as far as practicable any unfairness or unreasonableness; and (f) the Presiding Member erroneously failed to consider the ground 8(a) or have regard to the matters in grounds 8(b) - (e) above, when determining that the Trustee was to distribute 100% of the Death Benefit to [Mr Hattingh]. (emphasis in original.)

An overview 36 It is contended that the Tribunal committed jurisdictional error in that it had no jurisdiction or power to review the Trustee's conclusion that Mr Hattingh was not a dependant and to substitute that conclusion with a determination under the Complaints Act. Further, it is argued that the Tribunal exceeded its jurisdiction because on the available information it should not have concluded that Mr Hattingh was a dependant. It is argued that Mr Hattingh's status as a dependant was a jurisdictional fact and therefore the determination it made that the Trustee distribute the death benefit to him was contrary to law and the terms of the Trust Deed. Those matters are agitated in grounds one to three of the appeal grounds. 37 It is also said that the Tribunal committed jurisdictional error in that it misconstrued the terms of the Trust Deed and Complaints Act. As a result, when considering if Mr Hattingh was a dependant the Tribunal failed to have regard to relevant considerations and asked itself the wrong questions regarding the issues which it was called upon to determine. Further, it is argued that, in any event, it exceeded the limit of its jurisdiction by making a determination that it was unnecessary to remove unreasonableness and unfairness of the Trustee's decision. To remove the relevant unreasonableness and unfairness, it is contended that the matter should have been remitted to the Fund for reconsideration on the basis that Mr Hattingh was a dependant. Those matters are agitated in appeals grounds four to six. 38 Finally, it is said that in determining to substitute a decision requiring the Trustee to distribute the entire death benefit to Mr Hattingh, the Tribunal failed to accord Mrs Ievers procedural fairness. This is said to be because it failed to give Mrs Ievers an opportunity to be heard on the appropriate apportionment of the death benefit in the event that it was accepted that Mr Hattingh was a dependant. Further, it is said that the Tribunal failed to have regard to relevant considerations when determining that the entire death benefit should be distributed to Mr Hattingh. Those matters are canvassed in appeal grounds seven and eight. 39 Although the parties made detailed submissions about the jurisdictional limits of the Tribunal and the proper construction of the Trust Deed, there was little between them in these matters. Section 14 of the Complaints Act provides for a person to make a complaint to the Tribunal regarding a decision of a trustee in relation to a regulated superannuation fund which they believe was unfair or unreasonable. The Tribunal in considering such a matter is not bound by rules of evidence (see s 36(a) of the Complaints Act). It is common ground, of course, that an appeal lies to this Court from a determination of the Tribunal on 'a question of law' (see s 46(1) of the Complaints Act). 40 Mr Hattingh submits that the only questions of law properly arising are: (1) whether the Tribunal had power to determine that he was the de facto of Ms Redfearn at the time of her death and, if so, whether there was sufficient probative evidence available to support that finding; and (2) having made that determination, was the Tribunal empowered to determine that the Trustee should distribute 100% of the benefit to Mr Hattingh. 41 In my view, and with due respect to the more complex jurisdictional arguments advanced for Mrs Ievers, the matter is not much more complex than that. But Mrs Ievers contends that the Tribunal had no jurisdiction (power) to determine in fact and in law whether Mr Hattingh was a 'dependant' within the meaning of that expression in the Trust Deed. Such a determination would involve the purported resolution of Mr Hattingh's right to be considered for payment of the death benefit as an object of the power of the Trustee under the Trust Deed. To do so would involve a purported determination of rights as between Mrs Ievers, Mr Hattingh and the Fund, which is not a purpose or object of a review under s 14 of the Complaints Act. 42 Mrs Ievers argues that Mr Hattingh's status is only capable of final and conclusive determination by a court, not the trustee or the Tribunal. Any determination that requires a payment to be made to him in breach of a trust would not be a valid determination. Thus, the Tribunal would have no jurisdiction (power) to make such a determination. 43 For the reasons that follow, I am not persuaded as to these arguments on behalf of Mrs Ievers. The Tribunal stands in the shoes of the Trustee. It has to determine whether the whole decision is fair and reasonable. In this case it reached a conclusion that the decision was not fair and reasonable by comprehensive analysis of all of the available evidence, which enabled the Tribunal to reach a conclusion which happened to be diametrically opposite to that of the Trustee. It necessarily follows that the Trustee's decision as viewed by the Tribunal could not have been fair and reasonable. Further, there was ample support for that conclusion.

Grounds one to three - excess of jurisdiction 44 Mrs Ievers contends that neither the Trustee or the Tribunal had any power, obligation or discretion to determine whether Mr Hattingh was a dependant within the meaning of the Trust Deed. Such a determination does not involve the exercise of the powers, obligations and discretions of the Trustee, Mrs Ievers argues. 45 In my view, the Tribunal did have power to determine that Mr Hattingh was the de facto spouse of the deceased member, Ms Redfearn. This is the very issue it was asked by the protagonists to decide and was the issue it necessarily had to determine to consider the reasonableness and fairness of the Trustee's decision. The Trustee and the Tribunal need to form a view as to whether a person qualifies and to make decisions about allocation of the benefits of the Fund in accordance with those views. 46 That accords with the obligations in cl 6.1(t) of the Trust Deed. The Tribunal steps into the shoes of the Trustee to consider all the evidence produced, including by Mr Hattingh, being the person claiming entitlement (see cl 11.16 of the Trust Deed set out above at [8]). Clause 6.1(t) provides that the Trustee has the power of 'determining as and when the need arises, who are Dependants of a deceased Member [.]' 47 The Tribunal gave comprehensive reasons for arriving at its conclusion, reasons which were entirely consistent with the submissions advanced to it, none of which (as I read them) suggested that it would be acting outside its jurisdiction or power to resolve the question of whether Mr Hattingh was in a de facto relationship with Ms Redfearn at the relevant time. 48 Mrs Ievers made submissions (encapsulated in ground 4(g) of this appeal) to the effect that there had been a departure from the state of things as had pre-existed in the relationship between her daughter and Mr Hattingh before mid-March 2011. However, there were a number of statements that the relationship was ongoing beyond mid-March 2011, including a statement in her submission to the Tribunal that the relationship broke down on 18 April 2011, and to the Coroner that it ended on the morning of 19 April 2011, and the statement in a text message to Ms Redfearn sent at 6.56am on the morning of her attempted suicide which said: I still cant believe that you chose to stay with an ahole that knocks you around over a week visiting me. How do I forgive you for that? I will be delivering an eviction notice to [Mr Hattingh] at work for non payment of rent. 49 The submissions of the parties before the Tribunal were all entirely focused on the question of whether the relationship was continuing at the material time. This was essential to establish whether the decision of the Trustee was fair and reasonable, which required an evaluation of all of the information. 50 On ground two, Mrs Ievers argues that even if the Tribunal had power or jurisdiction to form an opinion as to whether Mr Hattingh was a dependant, it did not have jurisdiction or power to form the opinion wrongly. That is, if Mr Hattingh is not a dependant, the Tribunal had no jurisdiction to make a determination that would result in the Tribunal doing something that was contrary to law or the Trust Deed under s 37(5) of the Complaints Act. Accordingly, Mr Hattingh's status as a dependant is a precondition to the exercise of the Trustee's power (and therefore the Tribunal's power) to make a decision to pay the death benefit to Mr Hattingh. That is, it is a jurisdictional fact that must exist objectively in order for the Tribunal's purported exercise of legislative power to be valid. Mrs Ievers submits that the Court is entitled (and must) consider the material before the Tribunal and form a view as to whether, on the basis of that material, it should be concluded that Mr Hattingh is a dependant. On the basis of the material before the Tribunal, Mrs Ievers argues that it should be concluded that Mr Hattingh was not a dependant. She says the Tribunal should not have been satisfied that he was, as at the date of death. 51 In my view, this argument, in substance, seeks to advance a merits review. This is not a course that is open. There was a careful evaluation of all the facts and materials before the Trustee in the Tribunal, and the Tribunal reached a different view on the very question which it was tasked with determining. 52 That said, and to respond to ground two, in my view the Tribunal was correct in concluding that Mr Hattingh was a dependant at the time of death. Despite the disharmony, altercations and grievances in the period immediately leading up to the death, they were still unfortunately very much fighting over the matters that people in a relationship may fight about, including whether or not the relationship could continue. People do not fight about that topic if it is clear that the relationship is over. 53 As to ground three, which again challenges the finding, Mrs Ievers argues that the Tribunal approached the review of the Fund's decision to pay the death benefit to her by asking the wrong question. She contends that the question should not have been whether it was unreasonable or unfair of the Trustee to conclude that Mr Hattingh was not a dependant. Rather, the correct question, according to Mrs Ievers, was whether the decision to pay the entire death benefit to Mrs Ievers as Ms Redfearn's legal personal representative was unreasonable or unfair in its operation in relation to Mr Hattingh. Mrs Ievers argues that, within that framework, the Tribunal should have considered and made such findings of fact as were necessary to form a view as to the manner in which the death benefits should be paid, and then, in that context, consider if the Trustee's decision was unfair or unreasonable. 54 These arguments are difficult to follow. In my view, the relevant question for the Tribunal was whether the decision of the Trustee was fair and/or reasonable or alternatively, unfair and/or unreasonable considering the matter expressly argued by the parties, namely, whether Mr Hattingh was the de facto of Ms Redfearn at the date of her death. If the Tribunal concludes on available evidence that the decision was unfair or unreasonable considering such matters, then the next question for the Tribunal is whether it was a proper exercise of discretion in awarding the entire benefit to Mr Hattingh or whether some of it should be apportioned to any other person claiming a benefit from the Fund. 55 The Tribunal clearly explained why it reached its conclusion. Mr Hattingh was the only person who had a claim and an entitlement in respect of Ms Redfearn's death benefit. Once it is accepted that he was a de facto, there is no obligation under the Trust Deed for the Trustee to receive further competing submissions on the question of how the funds should be allocated. Similarly, there is no obligation to that effect on the part of the Tribunal. If Mrs Ievers is arguing that the Tribunal should have remitted the matter back to the Trustee to assess the amount to be awarded, this is not a statutory requirement. In any event, it was always a discretionary consideration and the discretions of the Trustee are imported into the powers of the Tribunal by virtue of s 37(1)(a) of the Complaints Act which stipulates that the Tribunal has all the powers, obligations and discretions conferred on the Trustee. There was no reason for the Tribunal to send the matter back after receiving lengthy submissions on the topic and giving detailed reasons why it exercised its discretion as it did. 56 One of the reasons advanced by Mrs Ievers for the Tribunal to remit the matter to the Trustee was the 'uncertainty regarding Mr Hattingh's status'. The Tribunal, for good reason, had no uncertainty and exercised its discretion so as to achieve finality in accordance with the powers it was given under the Complaints Act. 57 Grounds 1, 2 and 3 are not made out.

Grounds four to six - jurisdictional errors of law 58 Mrs Ievers argues that on a proper construction of the Trust Deed, a dependant includes a person who, although not legally married to Ms Redfearn, had lived with her on a genuine domestic basis in a relationship as a couple and a person in an 'interdependency relationship' where one or each of them provides the other with support and care of a type and quality normally provided in a close personal relationship, 'rather than by a mere friend or flatmate'. Mrs Ievers draws on cl 1.1 and cl 1.2 of the Trust Deed, ss 10 and 10A of the SIS Act, and r 1.04AAAA of the SIS Regulations. 59 By this ground, Mrs Ievers argues that on a proper construction of the Trust Deed and the relevant superannuation legislation a person who is physically violent towards another, who exercises control over another and is abusive towards another while living with that person may not be living in a genuine domestic basis in a relationship as a couple or in a interdependency relationship providing support and care of a type and quality normally provided in a close personal relationship. Mrs Ievers points to detailed evidence in a body of material provided to the Court on this appeal which would unfortunately enable a conclusion to be reached that Mr Hattingh was physically violent and abusive towards Ms Redfearn. 60 It is said this conduct continued over many years and in the days preceding her death caused or contributed to her suicide. 61 It is argued that these were relevant considerations and the Tribunal failed to have regard to any of these matters when determining whether Mr Hattingh was a dependant, thus resulting in a misconstruction of the Trust Deed by the Tribunal and an error of law. 62 Reliance is also placed on evidence that there had been a departure from the state of things as they had existed previously in the relationship, as at the date of death. Mrs Ievers actually points to specific findings by the Tribunal, such as (at [41]) the finding that 'relationship breakdown' contributed to Ms Redfearn taking her own life and (at [45]) that certain text messages indicated that Ms Redfearn 'felt something was wrong with the relationship'. 63 Mrs Ievers argues that the Tribunal incorrectly assumed, without making any relevant findings of fact, that for three to five years before 18 April 2011 Mr Hattingh, although not legally married to Ms Redfearn lived with her in a genuine domestic basis in a relationship as a couple, and as such, was a dependant as at the relevant date. This, it is said, was an error of law because the Tribunal failed to make any findings supporting the conclusion reached. Alternatively, it was an error of law on the basis of inadequate reasons. 64 It is argued that the Tribunal was also incorrect to conclude that Mrs Ievers or the Fund carried the onus of proving that an assumed de facto spousal relationship had terminated. Indeed, Mrs Ievers argues that the onus under the Trust Deed and in a practical sense was on Mr Hattingh to demonstrate that he was a dependant. 65 The submissions on these grounds cannot be accepted for a number of reasons, not the least of which was that the Tribunal found only that in the particular circumstances where there had been previous admissions as to the existence of a relationship, there was an onus to demonstrate why that circumstance had changed. This was simply a practical observation. It cannot be (and is not) the subject of criticism as a ground of appeal as such. The point was not raised by the Tribunal as a technical onus of proof issue. The observations concerning onus were only directed at searching for some explanation as to why there was a complete change in position being adopted by Mrs Ievers. This is a reasonable and 'practical' question as the Tribunal noted. The difficulty is that as Mrs Ievers argues the abuse had continued for some years and was still continuing, she was in effect proving the existence of the relationship, albeit not perhaps always a good or happy relationship. 66 What Mrs Ievers really wants to say, it seems, is that Mr Hattingh deserves nothing because of the way he treated her daughter. One can appreciate this sentiment, but it was not the issue for determination by the Tribunal. 67 All these submissions are really merits challenges. It was entirely open for the Tribunal to approach the evidence about violence and abuse in the manner that it did and to take into account to the extent it considered to be the case, the self-serving nature of the hearsay and unsubstantiated assertions on that topic. The simple fact of the matter is that the Tribunal examined the evidence advanced on that topic and most importantly gave consideration to what weight it should be given and reached the conclusion, manifestly a factual conclusion, which is not open to challenge on this appeal. 68 Ground 4 and ground 5 are not made out. 69 In relation to ground six, the submissions of Mrs Ievers in support of this ground repeat the submission that the matter should have been sent back to the Trustee. In particular, Mrs Ievers contends that as the Trustee's decision was based on a conclusion that Mr Hattingh was not a dependant, the Trustee had no discretion and was obliged to pay the entire death benefit to Mrs Ievers. There was no decision of the Trustee involving the exercise of a discretion that the Tribunal could review. 70 In Sherrah v Commonwealth Superannuation Corporation [2015] FCA 698, Besanko J (at [32]) noted that the function of the Tribunal is to stand in the shoes of the Trustee and to decide on all the information before it whether the Trustee's decision was fair and reasonable in the circumstances. As his Honour pointed out, it is the decision, not the process of reasoning which led to it, that must be examined for fairness and reasonableness. 71 Once the Tribunal reached the conclusion that Mr Hattingh was in a de facto relationship with Ms Redfearn and was her sole dependant at the date of her death, the direction that 100% of the superannuation benefit should be distributed to Mr Hattingh is not an error of law, but rather, it is a legitimate and sensible exercise of a discretion. It is difficult to see that any other decision could or should have been taken. 72 Ground 6 is not made out.

Grounds seven and eight - lack of procedural fairness 73 In the absence of a clear manifestation of a contrary legislative intention, a decision-maker is required to afford procedural fairness to a person whose rights and interests are to be affected by the exercise of power conferred by legislation: Kioa v West (1985) 159 CLR 550 (at 584, 609, 632). 74 Mrs Ievers argues that she should have been heard and that the Tribunal should not have concluded that there was no rational basis within the superannuation context to award a percentage of the benefit to Mrs Ievers. The Tribunal erred by failing to accord her the opportunity to make submissions and adduce evidence on that topic. The correct question, she argues, is whether, having regard to the Tribunal's findings, the decision of the Trustee to distribute 100% of the death benefit to Mrs Ievers was fair and reasonable. As I read the reasons of the Tribunal, this is the very question it answered and in relation to which it concluded that it was not fair and reasonable. The only option, for the reasons it explained, was to award 100% of the death benefit to Mr Hattingh. 75 In any event, the question of payment was central to the role of the Tribunal (that is, in determining whether the decision of the Trustee was fair and reasonable). It was the very decision under challenge. It is inconceivable, in that context, that amongst all the other lengthy submissions made by Mrs Ievers to the Tribunal that she did not or could not address the question of the allocation of payments if an alternative conclusion to that which she was advancing was to be reached. 76 Ground 7 and ground 8 are not made out.

CONCLUSION 77 None of the grounds of the application can succeed. The application must be dismissed with costs. I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.