Noel v Cook

[2004] FCA 479

Federal Court of Australia|2004-04-22|Before: Bennett J

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Source facts

Court

Federal Court of Australia

Decision date

2004-04-22

Before

Bennett J

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

REASONS FOR JUDGMENT 1 This is an 'appeal' brought under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) ('the Act') from a decision of the Superannuation Complaints Tribunal ('the Tribunal') affirming a decision of the second respondent ('the Trustee') to pay 100% of a death benefit to the first respondent ('Mr Cook').

[2]

background 2 The applicant ('Mrs Noel') and Mr Brian Noel were married on 17 November 1990. Mr & Mrs Noel separated on 30 May 1996 after Mrs Noel took out an 'AVO' against Mr Noel, preventing any contact by him. That order was not revoked. There were no children of the marriage. Mr Noel died on 21 July 2001. Mr Noel was in hospital for approximately two months prior to his death. On 20 July 2001 Mr Noel signed an application for divorce from Mrs Noel but it was not filed with the Family Court of Australia and not served on Mrs Noel. 3 Mr Noel commenced living with Mr Cook in a spare room with payment for board and expenses in about August 1996 and continued to do so until his death. Mr Cook and Mr Noel were long-term friends who had served in Vietnam together and it is not in dispute that they had a mutual, committed and supportive relationship. Mr Cook now lives with his partner and two adult children. 4 Mr Noel applied to join the Superannuation Trust Fund of Australia ('the Fund') on 21 November 1990 and was, at the date of his death, a member of that Fund. The second respondent ('the Trustee') is the Trustee of the Fund under the Superannuation Trust of Australia Trust Deed ('the Trust Deed'). The proceedings before the Tribunal concerned a complaint by Mrs Noel that the Trustee's exercise of its discretion under the terms of the Trust Deed to pay 100% of the benefit arising from the death of Mr Noel to Mr Cook as a financial dependant was "unfair and unreasonable". The amount now in issue in the proceedings is approximately $17,000. 5 On 2 September 2003, pursuant to s 37(3) and s 37(6) of the Act the Tribunal determined that it was satisfied that the Trustee's decision to pay 100% of the death benefit to Mr Cook was fair and reasonable in its operation in relation to Mrs Noel and Mr Cook in the circumstances and, accordingly, affirmed the Trustee's decision.

[7]

The issues before the Tribunal 12 The main issue before the Tribunal was whether Mr Cook was financially dependent on Mr Noel. Mrs Noel asserted that she was a "dependant" but that Mr Cook was not a "financial dependant" of Mr Noel. The main issue gave rise to a number of sub-issues as raised by Mrs Noel:

Acts done by Mr Cook after Mr Noel's death were not evidence of dependency and are irrelevant.
Evidence of the actions of Mr Cook in visiting and tending to Mr Noel during the two months that he spent in hospital before his death were not evidence of dependency by Mr Cook on Mr Noel but dependency by Mr Noel on Mr Cook. 13 A number of submissions were made by the Mrs Noel as to her right as a dependant. However, it does not seem to have been in dispute before the Tribunal, nor was it before this Court, that she is a "dependant" within the meaning of the Trust Deed. 14 As the Tribunal pointed out, the issue before it was whether the decision of the Trustee to pay 100% of the benefit arising from the death of the deceased member (Mr Noel) to Mr Cook as a financial dependant was fair and reasonable in the circumstances in relation to Mrs Noel and Mr Cook. 15 The Tribunal found that Mr Cook qualified as a dependant of Mr Noel under the terms of the Trust Deed. It found that the evidence clearly demonstrated that there was a financial inter-dependency for a period of approximately six years referring to the payment of board. There was no reliance, in the Tribunal's deliberations, on acts done after Mr Noel's death, nor on acts during Mr Noel's hospitalisation. In addition, the Tribunal found that Mr Noel and Mr Cook were mutually committed to and supportive of each other. With respect to Mrs Noel, the Tribunal noted that there was no evidence that she was in any way financially dependent on Mr Noel and had never sought financial support from him for the period up to his death. 16 The Tribunal also considered the wishes of the deceased. While he had originally nominated Mrs Noel to receive 100% of any benefit arising in the event of his death, this nomination was later changed to Mr Cook. The Trustee's records did not, however, indicate the date of the change. The Tribunal found that the change constituted a true record of Mr Noel's wishes at the date of his death. It was not in dispute, however, that the Trustee is not obliged to pay the benefit to any particular dependant, including the nominated beneficiary. 17 As noted above, the Tribunal affirmed the decision of the Trustee.

[10]

Question 1: The definition of a 'dependant' as defined by the STA Trust Deed and in accordance with Superannuation Industry (Supervision) Act 1993 ("Cth")("The SIS Act") 24 It is not clear what error of law is referred to. Whether a person is wholly or partially dependent upon another is itself a question of fact (Aafjes v Kearney (1975) 180 CLR 199 ('Aafjes') at 204 per Barwick CJ, at 206-8 per Gibbs J, at 210 per Mason J; Petrohilos v Hunter (1991) 25 NSWLR 343 at 346). From the grounds set out in the amended notice of appeal, it would seem that Mrs Noel was referring to her status as a "dependant". That was not in issue before the Tribunal and is not in issue before me. Mrs Noel is a "dependant" within the definition in the Trust Deed. 25 The Tribunal found, as a fact that was open to it on the evidence before it, that Mr Cook was partially dependent on Mr Noel and was therefore a dependant within the definition. That conclusion was based upon evidence of their financial inter-dependency and mutual commitment and support. Rolfe J considered partial financial dependency in Faull v Superannuation Complaints Tribunal [1999] NSWSC 1137. There, a payment of $30 per week for board was made to a person with an annual salary of $39,411. His Honour confirmed (at [28]) the decision of the trustee in that case that such a payment was sufficient to make the recipient partially financially dependent on the deceased and observed (at [15]) that the gross discrepancy between the financial positions of the contesting parties was not relevant to dependency, although the degree of financial dependency may be relevant to deciding how the discretion should be exercised (at [29]). It is not a question of need of the support or the ability to obtain it from another source but the fact of the dependence (Aafjes at 207-8 per Gibbs J). Further, the Trust Deed defines "dependant" specifically to include a person who was partially dependent on the Member or former Member. 26 The Tribunal did not refer to the Superannuation Industry (Supervision) Act 1993 (Cth) ('SIS Act') in respect to the definition of "dependant". However, the SIS Act adds nothing of relevance to the matters that the Tribunal had to determine. Section 10 of the SIS Act provides: 'In this Act, unless the contrary intention appears … dependant, in relation to a person, includes the spouse and any child of the person' (original emphasis). The definition is expressly inclusive not exclusive. Section 62 provides that the trustee of a regulated superannuation fund must ensure that the fund is maintained solely for the core purposes of the fund including that 'the benefits are provided to the member's legal personal representative, to any or all of the member's dependants, or to both'. The Fund clearly complies with this requirement and Mrs Noel did not contend otherwise before the Tribunal. The SIS Act has no relevant operation to the definition of "dependant" in the Trust Deed. The Tribunal did not err in not referring to the SIS Act in respect of the definition of "dependant".

[12]

Question 3: What circumstances are irrelevant in determining who is a 'dependant' 27 No fact or matter which is said to be relevant and which the Tribunal is said to have failed to take into account is specifically identified in question 2. Similarly, no fact or matter said to be irrelevant which the Tribunal took into account is specifically identified in question 3. 28 In the grounds, the applicant refers to a number of matters said to be relevant. Each of the facts and matters so identified formed part of the Tribunal's reasons. The reference to the deceased member's nomination of preferred beneficiary, the fact that Mr Cook was only partially financially dependent on the deceased, his financial circumstances and Mrs Noel's financial and personal circumstances were each referred to by the Tribunal and specifically considered as part of the "Tribunal's Deliberations". Each of the facts and matters referred to in the grounds as relevant was taken into account by the Tribunal. 29 The grounds can also be read to refer to a number of matters said to be irrelevant. They were the need on the part of Mrs Noel to produce evidence of her financial dependence on the deceased as at the date of death and the evidence of the personal relationship between Mr Cook and Mr Noel, including offices performed by Mr Cook after Mr Noel's death. 30 To the extent that it was necessary for the Tribunal to determine for itself as a matter of fact whether Mr Cook was partially dependent on Mr Noel, consideration of their relationship was relevant to the determination of that question. To determine dependency it is necessary to consider the whole of the relationship between the alleged dependant and the deceased (Ball v Newey (1988) 13 NSWLR 489 per Samuels JA (with whom Hope JA agreed) at 491). In Aafjes, Gibbs J (at 208) observed: 'The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date; "past events and future probabilities" have to be considered'. 31 Funeral arrangements and other offices performed by Mr Cook after Mr Noel's death were not irrelevant to the question. However, it does not appear that the Tribunal accorded these any significance, as they are not referred to in that part of the Tribunal's reasons headed "Tribunal's deliberations". 32 It is not for the Court to conduct a rehearing on the merits or to revisit the factual findings that were open to the Tribunal on evidence. No error of law by the Tribunal has been established with respect to questions 2 or 3.

Noel v Cook

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