Tratter v Aware Super

Federal Court of Australia (Full Court)|2024-03-19|Before: Anderson J, O'Callaghan J, McElwaine JJ

The appeal is dismissed.
The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

O'CALLAGHAN J: 1 I agree with Anderson J. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.

INTRODUCTION 2 The late Trevor Tratter (the deceased) died in March 2019. There is a death benefit payable of approximately $243,000 arising from his membership of what is now known as the Aware Super superannuation fund (Fund). The deceased is the appellant's son. 3 The first respondent (Trustee), acting in its capacity as trustee of the Fund, determined on 30 March 2020 to pay the death benefit in the following proportions (Trustee's decision) (a) 70% to the second respondent, Mr Christos Orfanidis, as the deceased's spouse; and (b) 30% to the appellant, the deceased's mother, as a financial dependant. 4 By its Determination made on 3 November 2021, the third respondent (AFCA) affirmed the Trustee's Decision (the Determination). 5 The appellant brought an appeal against the Determination pursuant to s 1057(1) of the Corporations Act 2001 (Cth). That appeal was dismissed by order of the primary judge on 19 May 2023 (Order). The primary judge's reasons are Tratter v Aware Super [2023] FCA 491 (Judgment). 6 By her further amended notice of appeal filed on 21 December 2023, the appellant appeals from the Judgment and Order (Amended NOA). 7 The active parties on the appeal are the appellant and the Trustee. AFCA and the second respondent have filed submitting notices. 8 The grounds articulated in the Amended NOA are set out at [39] below. The appellant filed written submissions on the appeal dated 22 January 2024, and made oral submissions at the hearing on 20 February 2024. As will be further discussed, the appellant's written and oral submissions did not proceed by reference to the grounds in the Amended NOA.

BACKGROUND 9 The deceased joined the Health Super superannuation fund on 16 March 2009. Health Super and the Fund, which at the time was named First State Super, merged on 30 June 2011. The deceased held insurance cover through Health Super and (after the merger) the Fund, including death cover. 10 On or before 12 August 2010 (as a member of Health Super), the deceased nominated the appellant as the preferred recipient of the whole of any death benefit payable from Health Super in respect of him. By reason of the terms of the Health Super fund trust deed, the nomination was not binding on the trustee of Health Super. 11 The deceased's nomination was transferred from Health Super to the Fund upon the merger. The Trustee indicated in the deceased's annual benefit statements that his nomination was non-binding. 12 From 2014, the deceased's annual benefit statements included an explanation of the implications of having a non-binding nomination and drawing attention to the option of making a binding nomination under the rules of the merged fund. 13 The deceased died on or around 25 March 2019. 14 The Fund was governed by a Trust Deed dated 19 February 1999 (as amended from time to time) (Trust Deed) and the Rules of the Fund annexed to the Trust Deed (Fund Rules). 15 At the relevant time, rule 8.6 of Division 1A of the Fund Rules relevantly provided as follows: (italics in original): Recipient of a member's benefit - on death 8.6 Subject to any contrary provision in a Section or Division of these Rules, if a member dies: … (b) … the member's benefit must be cashed in favour of either or both of: (i) the member's legal personal representative; and (ii) one or more of the member's dependants, as the Trustee determines… 16 Rule 1.11 of Division 1A of the Fund Rules provided that italicised words and expressions in the Fund Rules had the same meaning as in the Superannuation Industry (Supervision) Act 1993 (Cth) and Superannuation Industry (Supervision) Regulations 1994. 17 Accordingly, for the purposes of rule 8.6(b)(ii) of Division 1A of the Fund Rules, "dependant" had the meaning given in s 10(1) of the SIS Act, which was as follows (bolding and italics in original): dependant, in relation to a person, includes the spouse of the person, any child of the person and any person with whom the person has an interdependency relationship. 18 Relevantly, for the purposes of this appeal, the term spouse was defined in s 10(1) of the SIS Act as including "another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple". 19 The SIS Act definition of "dependant" was inclusive and did not exclude financial dependants. Accordingly, a person that was financially dependent on the deceased before death could be a dependant for the purposes of the SIS Act. 20 Rules 8.9 and 8.10 provided as follows: 8.9 The Trustee may permit a member to inform the Trustee (by notice) of the person or persons that the member would prefer to receive the member's benefit on or after the death of the member (non-binding nomination notice). 8.10 If the Trustee has received a non-binding nomination notice from a member, the Trustee must consider the notice but must exercise its own discretion as to the person or persons to whom the member's benefit is to be paid.

The Trustee's decision 21 The Trustee communicated to the second respondent and the appellant that it proposed to distribute the death benefit payable in respect of the deceased in the following proportions: (a) 70% to the second respondent; and (b) 30% to the appellant. 22 The second respondent and the appellant objected to this decision, with each party disputing the financial dependence of the other. 23 The Trustee, after conducting an internal review, determined to affirm its decision. Its reasons were communicated to the appellant and second respondent by separate letters dated 11 May 2020. Those letters relevantly stated: (a) both the appellant and the second respondent were considered as dependants within the meaning of the "superannuation law"; (b) the deceased's nomination of the appellant as a beneficiary preceded the commencement of his relationship with the second respondent; (c) the deceased's nomination was not binding, and therefore the Trustee was required to exercise its discretion to determine the shares to be distributed to the dependants; (d) as the spouse of the deceased, the second respondent was recognised in "superannuation law" as a dependant and had the primary right to receive the deceased's death benefit. (e) the appellant had provided evidence of partial financial dependence in relation to sharing some expenses for the property she jointly owned with the deceased; and (f) weighing up the amount of those expenses, the Trustee considered a distribution of 30% of the deceased's death benefit to the appellant was a reasonable provision to cover the approximate amount she would have continued to receive from the deceased had he not died.

AFCA's Determination 24 On 12 May 2020, the second respondent lodged a complaint with AFCA in relation to the Trustee's decision, claiming that he should have received 100% of the deceased's death benefit. The appellant was joined as a party to the complaint and submitted to AFCA that she should have received 100% of the death benefit. 25 Before turning to AFCA's Determination of the complaint, it is useful to outline the statutory context in which AFCA made the Determination. 26 Section 1053(1) of the Corporations Act prescribes the nature of complaints that may be made to AFCA in relation to superannuation. Section 1053(1)(j) provides that a person may make a complaint to AFCA that a decision relating to the payment of a death benefit is or was "unfair or unreasonable". 27 In the determination of a superannuation complaint by AFCA, s 1055(3) provides: (3) AFCA must affirm a decision relating to the payment of a death benefit if AFCA is satisfied that the decision, in its operation in relation to: (a) the complainant; and (b) any other person joined under subsection 1056A(3) as a party to the complaint; was fair and reasonable in all the circumstances. 28 Section 1055(5) provides: If AFCA is satisfied that a decision relating to the payment of a death benefit, in its operation in relation to: (a) the complainant; and (b) any other person joined under subsection 1056A(3) as a party to the complaint; is unfair or unreasonable, or both, AFCA may take any one or more of the actions mentioned in subsection (6), but only for the purpose of placing the complainant (and any other person so joined as a party), as nearly as practicable, in such a position that the unfairness, unreasonableness, or both, no longer exists. 29 AFCA's powers in s 1055(6) include the power to vary, set aside, substitute, or remit a decision. 30 AFCA affirmed the Trustee's decision in its Determination. 31 In section 2.2 of the Determination, AFCA referred to the fact that the Deceased had nominated the appellant to receive 100% of his death benefit. However, AFCA found that the deceased knew, or should have known, that the nomination was not binding on the Trustee, and that he had an opportunity to make a binding nomination in the Fund after becoming a member of the Fund through the merger. AFCA therefore found that the nomination was not binding and could not be treated by the trustee as being binding. AFCA's reasons in this respect are relevant to the appellant's appeal and are discussed further at [89] below. 32 In section 2.3 of the Determination, AFCA concluded that the second respondent was a dependant of the deceased. This conclusion followed from AFCA's finding that, at the time of the deceased's death, the second respondent was living with the deceased on a genuine domestic basis in a relationship as a couple and was therefore a "spouse" of the deceased. AFCA's finding that the second respondent was a spouse of the deceased was supported by detailed reasons. AFCA's reasons in this respect are relevant to the appellant's appeal, and are summarised at [68]-[69] below. 33 In section 2.4 of the Determination, AFCA also concluded that the appellant was also a dependant of the deceased. In sections 2.5 and 2.6 of the Determination respectively, AFCA concluded that both the appellant and the second respondent had an expectation of receiving financial support from the deceased. AFCA's reasons in sections 2.4-2.6 of the Determination are relevant to the appellant's appeal, and are summarised at [76]-[78] below. 34 AFCA ultimately concluded, in section 2.7 of the Determination, that: [T]he trustee's decision is fair and reasonable in its operation in relation to the complainant [the second respondent] and the joined party [the appellant] in all the circumstances. The trustee correctly identified each of the [second respondent] and [appellant] as being dependants of the deceased member. It was open to the trustee to allocate the death benefit in the proportions that it identified. The purpose of a superannuation death benefit is to provide for a deceased member's dependants who were receiving financial support and might reasonably have expected to receive or continue to receive financial support from the deceased member, had they not died. As the deceased member's spouse, the complainant could reasonably have expected to receive financial support from the deceased member for the remainder of their lives together. As a person who was partially financially dependent on the deceased member, the joined party could reasonably have expected to receive some financial support from the deceased member for the remainder of her life. … With the exercise of a trustee discretion, there is often a range of decisions that might be considered fair and reasonable, if the trustee's decision falls within that range, it must be affirmed. I am satisfied it was open to the trustee to allocate the death benefit in the manner and proportions it did.

Appeal to the primary judge 35 Pursuant to s 1057(1) of the Corporations Act, the appellant was entitled to appeal AFCA's Determination to the Federal Court, on "a question of law". 36 On 12 April 2022, the appellant filed such an appeal. 37 Before the primary judge, there were two grounds of appeal, as set out in a second further amended notice of appeal dated 27 April 2023. First, the appellant submitted that AFCA erred in its decision by asking itself the wrong question, namely whether the determination of the Trustee was open, as opposed to whether the Trustee's decision was fair and reasonable in all the circumstances. Secondly, the appellant submitted that AFCA had failed to provide any or adequate grounds for its decision that the Trustee's decision was fair and reasonable in its operation. 38 As noted by the primary judge, although the proceeding before his Honour was styled an "appeal", it was a form of statutory judicial review on a question of law: Judgment [1]. 39 The primary judge dismissed the appeal. The primary judge's key conclusions in the Judgment were as follows: (a) The primary judge held that it was clear from AFCA's reasons that it addressed itself to the correct question, namely whether the Trustee's decision was fair and reasonable in its operation in relation to the appellant and the second respondent in all the circumstances: at [46]. Relatedly, the primary judge rejected the contention that AFCA asked itself only whether the Trustee's decision was open to it. Instead, AFCA merely recognised that, in the circumstances of this case, there was an acceptable range of decisions that might be considered fair and reasonable: at [48]. (b) The primary judge rejected a submission that AFCA erred by accepting the correctness of the Trustee's decision as a starting point. The primary judge held that AFCA's determination was conditioned on forming an opinion that the Trustee's decision was unfair, unreasonable or both. The primary judge further noted that, in addressing this question, AFCA had regard to the deceased's non-binding nomination: at [49]. (c) The primary judge rejected a submission that AFCA's reasons for its determination were inadequate. The primary judge held that AFCA set out in sufficient detail the findings that it made on questions of fact, and its conclusion was one of evaluation based on its anterior findings: at [50].

APPEAL TO THE FULL COURT - THE APPELLANT'S APPEAL GROUNDS AND SUBMISSIONS 40 By her Amended NOA, the appellant relies on the following three grounds of appeal: (1) The "Decision" (which I understand is intended to be a reference to AFCA's Determination) is unreasonable, unfair and/or unjust such that there has been a failure to properly exercise the function of making a Determination as required by s 1055 of the Corporations Act (Ground 1). (2) The "Decision" is unreasonable, unfair and/or unjust such that there has been a failure to properly exercise the function of making a Determination as required under the "ASIC Regulations" 267.123; 267.128; 267.134 and 267.135 (Ground 2). (3) The primary judge erred in failing to find that: (a) the second respondent was not the spouse of the deceased at the time of the deceased's death (Ground 3(a)); and (b) the appellant was the sole dependant of the deceased at the time of the deceased's death and was therefore entitled to 100% of the death benefit payable in respect of the deceased (Ground 3(b)); and (c) in the event only that the finding was that the second respondent was the spouse of the deceased at the time of the deceased's death, the primary judge erred in failing to find that the "Decision" regarding the disproportionate distribution split of 70/30 favouring the second respondent was unreasonable, unfair and/or unjust (Ground 3(c)); and (d) in the event that the finding was that the second respondent was the spouse of the deceased at the time of the deceased's death or otherwise, the primary judge erred in his Honour's finding in relation to the "Decision" regarding the deceased's nomination of the appellant as his sole beneficiary for 100% of his death benefit (Ground 3(d)). 41 As previously noted, the appellant's written submissions did not proceed by reference to the grounds in the Amended NOA. The appellant made detailed oral submissions at the hearing of the appeal which were broadly consistent with her written submissions, albeit her oral submissions substantially expanded on her written submissions. 42 Taken together, the appellant's submissions identify three discrete errors in AFCA's reasons which I understand the appellant to assert ought to have been found by the primary judge to constitute errors of law within the meaning of s 1057(1) of the Corporations Act. 43 First, the appellant alleges that the primary judge erred in failing to find that AFCA made an error of law in finding that the second respondent was the "spouse" (as defined in the SIS Act) of the deceased at the time of the deceased's death. This submission appears to correspond with Grounds 3(a) and (b) of the Amended NOA. For convenience, I will refer to this as the Status Error. 44 In her oral submissions, the appellant identified seven errors that she said gave rise to the Status Error. Those errors were as follows: (a) AFCA failed to take into account relevant considerations which established that the second respondent and the deceased were not in a genuine domestic relationship. The range of errors identified by the appellant as falling within this category were extensive. It is sufficient to set out the most notable errors, which were: (i) AFCA's alleged failure to take into account consistent and contemporaneous public declarations by the deceased in legal documents and social media that the deceased was single; (ii) AFCA's reliance on materials such as photographs, videos and voicemail messages which was said to be consistent with the deceased and the second respondent being merely boyfriends; (iii) AFCA's allegedly erroneous dismissal of a declaration given by the deceased's friend and former boyfriend, PS, who attested to the deceased's independence; (iv) AFCA's alleged failure to take into account the personal history of the deceased, which informed his lifelong commitment to being single; (v) AFCA's alleged failure to take into account that the deceased had been evicted from the second respondent's unit in around 2018, and thereafter only infrequently returned to the unit; and (vi) AFCA's alleged failure to take into account the conduct of the second respondent after the deceased's death in withdrawing money from the deceased's bank account without authorisation; (b) AFCA failed to take into account that the second respondent claimed to be a de facto spouse of the deceased since they met, a claim that was said to be unsustainable on the materials provided to AFCA; (c) AFCA failed to take into account relevant considerations in finding that there was "financial interdependence" between the second respondent and the deceased, critically, that the second respondent had provided no "corroborating evidence" in support of any claim of financial interdependence with the deceased, that the deceased was paying for his own expenses, and that the second respondent had made contradictory claims about the extent of his financial dependence, or interdependence, on the deceased; (d) in finding that the deceased contributed financially to the second respondent's mortgage payments, AFCA failed to take into account that those statements were recorded in the deceased's bank records as "rent" payments; (e) AFCA failed to take into account the deceased's contemporaneous public statements and legal declarations that he was single; (f) AFCA's Determination failed to take into account that correspondence from the Australian Embassy in Phnom Penh and the Department of Foreign Affairs recorded the appellant as the deceased's next of kin, and that the deceased has recorded the appellant as his next of kin in correspondence with his employer; (g) the primary judge, at Judgment [47] found that "the nature of the second respondent's expected dependency was that of a spouse, involving combined financial resources", in circumstances where a challenge to this finding was abandoned by her pro bono counsel against her direction. 45 Secondly, the appellant alleges that the primary judge erred in failing to find that AFCA made an error of law by finding that the Trustee's decision to distribute the death benefit payable in respect of the deceased in the proportions it did (70% to the second respondent and 30% to the appellant) was not fair and reasonable in its operation in relation to the appellant. This submission appears to correspond with Ground 3(c) of the Amended NOA. For convenience, I will refer to this as the Apportionment Error. 46 In her oral submissions, the appellant identified two errors that she said gave rise to the Apportionment Error. Those errors were as follows: (a) AFCA did not engage with significant representations made by the appellant specific to the Trustee's decision concerning apportionment, most notably concerning: (i) the appellant's income, which was significantly less than the second respondent's income; (ii) the deceased's financial contribution to the appellant which, relative to the appellant's income, was significantly higher than the deceased's financial contribution to the second respondent relative to his income; (iii) the future needs of the appellant for financial support, given the appellant had no prospect of work; and (b) the primary judge, at Judgment [49]-[50], did not address the fact that AFCA's Determination did not contain a review of the Trustee's decision insofar as it concerned the apportionment of the death benefit payable in respect of the deceased. 47 Thirdly, the appellant alleges that the primary judge erred by failing to find that AFCA made an error of law in not giving proper consideration to the deceased's non-binding nomination in favour of the appellant in assessing the fairness or reasonableness of the Trustee's decision to distribute 70% of the death benefit payable in respect of the deceased to the second respondent. This submission appears to correspond with Ground 3(d) of the Amended NOA. For convenience, I will refer to this as the Nomination Error. 48 In her oral submissions, the appellant identified three errors that she said gave rise to the Nomination Error. Those errors were as follows: (a) AFCA failed to adequately consider the deceased's nomination of the appellant as the recipient of the whole of any death benefit payable, as required by the Fund Rules; (b) AFCA failed to consider whether the deceased's nomination represented a statement of intent and status, and such a consideration ought to have been paramount; (c) The primary judge, at Judgment [49], erroneously concluded that AFCA had taken into account the deceased's non-binding nomination of the appellant as his intended recipient of the death benefit, when in fact there was no evidence of any consideration by AFCA of the deceased's nomination of the appellant as his sole beneficiary. 49 I understand the appellant to further contend that the Status Error, Apportionment Error and the Nomination Error amount to legal unreasonableness, consistently with Grounds 1 and 2 of the Amended NOA. 50 It should be noted that, before the primary judge, pro bono counsel for the appellant abandoned a ground that AFCA's Determination was "unreasonable and unjust", and clarified that the appellant did not invite the primary judge to review the Determination for legal unreasonableness: Transcript of Proceedings, 26 April 2023, pages 23 (line 40) - 24 (line 5). Pro bono counsel for the appellant also confirmed that the appellant did not claim that there was any legal error in AFCA's determination that the second respondent was a spouse (ie, the Status Error): Transcript of Proceedings, 26 April 2023, pages 19 (lines 11-16, 39) - 20 (line 6). At the hearing of the appeal, the appellant submitted that the concession by pro bono counsel that the Status Error was not pressed was made without her knowledge or consent, and was contrary to her instructions. Beyond this submission from the bar table, there was no evidence in support of this assertion. 51 Nonetheless, bearing in mind that the appellant is self-represented and therefore may have been unfamiliar with the requirement to file evidence in support of any claim that pro bono counsel acted contrary to instructions, it is convenient to proceed to determine the appellant's submissions on this appeal, irrespective of whether the issues raised by those submissions were properly before the primary judge.

Ground 1 and 2 - Legal Unreasonableness 52 Grounds 1 and 2 of the Amended NOA impugn AFCA's determination as "unreasonable, unfair and/or unjust". Ground 2 appears to be a restatement of ground 1. I understand that, by these grounds, the appellant advances a broad contention that AFCA's determination was legally unreasonable, and that the primary judge erred by failing to find such an error. It is not the Court's role to consider whether the decision was more broadly fair and/or unjust except in so far as AFCA's decision might be characterised as legally unreasonable and therefore beyond power: Reeves v Nulis Nominees (Australia) Limited (Trustee) [2022] FCA 627 at [65] (Nicholas J). 53 For the appeal to succeed on these grounds, the Court must find that the primary judge erred in failing to find that the Determination was legally unreasonable. As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11] this requires the finding that the Determination was: sufficiently lacking rational foundation, or an evidence or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. 54 The Court may not review the merits of a decision under the guise of an evaluation of the decision's reasonableness: Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at [59] (Allsop CJ, Griffiths and Wigney JJ). Within the boundaries of power, there is an area of "decisional freedom" within which a decision maker has a genuinely free discretion, and within which reasonable minds may differ as to the correct decision or outcome: Eden at [62]. 55 In order to identify the width and boundaries of any area of decisional freedom and the bounds of legal reasonableness, the Court must construe the relevant statute: Eden at [63]. In this case, AFCA's power to vary or set aside a decision relating to the payment of a death benefit is prescribed by s 1055(5) of the Corporations Act. By that sub-section, AFCA may only vary or set aside a decision if the relevant trustee's decision is "unfair or unreasonable" in its operation in relation to the complainant or any other person joined as a party to the complaint. As noted by Moshinsky, Bromwich and Derrington JJ in QSuper Board v Australian Financial Complaints Authority Limited [2020] FCAFC 55; 276 FCR 97 at [64], "such a power is more aptly applied in relation to discretionary powers which, by their nature, confer wide decisional freedom on the repository such that a broad range of decisions might legitimately be made from a single set of facts". 56 In EEU20 v Meat Industry Employees' Superannuation Fund Pty Ltd [2020] FCA 1359 at [91], Mortimer J, as Her Honour then was, observed that the authorities emphasise the "demanding threshold" which must be reached for an exercise of power to be characterized as legally unreasonable. 57 This demanding threshold has not been satisfied by the appellant. The reasoning of AFCA as disclosed in the Determination is rational and justifiable, and there is nothing unjust, arbitrary, or capricious about it. 58 Although the argument that the Determination was infected with the error of legal unreasonableness was not advanced by pro bono counsel for the appellant before the primary judge, the primary judge found, in particular at Judgment [46], that AFCA properly discharged its statutory function by reviewing the Trustee's decision and determining that it was fair and reasonable in its operation in relation to the appellant and the second respondent. It is implicit in these findings that the primary judge did not consider that the Determination was infected with any error of legal unreasonableness and that it was within the range of "decisional freedom" available to AFCA, having regard to s 1055(5) of the Corporations Act: Eden at [62]. 59 I detect no error in the reasoning and conclusion reached by the primary judge in this respect. 60 Grounds 1 and 2 of the appeal must be rejected.

Ground 3 - Discrete legal errors 61 I now turn to address whether the Status Error, Apportionment Error and/or the Nomination Error amounted to legal errors. 62 In considering the appellant's submissions with respect to these errors, I am conscious that, in the proceeding before the primary judge and in turn before this Court, the jurisdiction of the Court is a limited one, as the appellant may only appeal on a question of law: s 1057(1) of the Corporations Act. No appeal lies from AFCA's findings of fact, unless those findings were reached in a manner giving rise to a question of law. A question of law may, however, arise where, in reaching a factual finding, AFCA failed to take into account a relevant consideration, had regard to an irrelevant consideration, or adopted a wrong approach: Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; 119 ALR 272 at [36] (Kenny and Lander JJ). On the other hand, issues of the weight to be given to evidence do not generally give rise to a question of law: Edington at [61]. 63 It is important to bear in mind that AFCA is not a judicial body and its obligation to give reasons for its determinations is statutory, arising under s 1055A of the Corporations Act: Corbisieri v NM Superannuation Proprietary Limited [2023] FCA 1319 at [29] (O'Callaghan J). As the requirement to give reasons arises under statute, s 25D of the Acts Interpretation Act 1901 (Cth) applies. That section provides that the relevant reasons should set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. This is a limited obligation: QSuper at [202]. 64 It is important to consider the totality of AFCA's reasons, and not with an eye clearly focused or an ear keenly attuned to the perception of error: Wan v BT Funds Management Limited [2022] FCFCA 189 at [48], [52] (McEvoy J, Markovic and McElwaine JJ agreeing). This proposition is particularly apposite in the context of an appeal from a determination by AFCA made under s 1055 of the Corporations Act, given that AFCA's determination as to the fairness and reasonable of the Trustee's decision inevitably involves a strong evaluative component that is essentially a matter for AFCA: Edington at [67]. 65 It should also be noted that AFCA's failure to refer to certain evidence will not necessarily mean that AFCA did not consider that evidence. In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67, Katzmann, Griffiths and Wigney JJ at [34] made the following observations in assessing a submission whether the (then) Refugee Review Tribunal had overlooked evidence before it (citations omitted): The fact that a matter is not referred to in the tribunal's reasons, however, does not necessarily mean the matter was not considered by the tribunal at all … The tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the tribunal's reasons does not necessarily mean that the material was overlooked. The tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the tribunal's reasons, the findings and evidence that the tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant's claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight. 66 Similarly, in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352, Griffiths, White and Bromwich JJ stated, at [45], that, when a decision maker is required to consider a claim or other mandatory criteria, this does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria. 67 The observations of the Full Court in SZRS at [34] and Carrascalao at [45], although made in a different context, are also applicable to the assessment of whether an omission in AFCA's reasons amounts to an error of law pursuant to s 1057(1) of the Corporations Act: see generally QSuper at [202], citing both SZRS and Carrascalao in assessing a contention that AFCA did not take into account a relevant matter.

First alleged error - Status Error 68 The question of whether the second respondent was the "spouse" of the deceased (and therefore a "dependant" within the meaning of s 10(1) of the SIS Act and correspondingly the Fund Rules) was considered in detail by AFCA. AFCA's analysis of this matter extended over more than six pages in section 2.3 of the Determination (pages 6-12). AFCA ultimately found that the second respondent was the spouse of the deceased on the basis that the second respondent was living with the deceased member on a genuine domestic basis in a relationship as a couple. 69 In finding that the second respondent was the spouse of the deceased, AFCA: (a) correctly identified that, pursuant to the Fund's Trust Deed, the deceased's benefits were to be cashed in favour of either or both of the deceased's legal personal representative and the deceased's dependants, as the Trustee determined; (b) correctly identified that, under the Trust Deed, the term "dependant" was to be given the same meaning as in the SIS Act, which defined a dependant as including a spouse; (c) correctly referred to the definition of "spouse" in the SIS Act, which included "another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple"; (d) properly focused its enquiry into whether the second respondent was living with the deceased on a genuine domestic basis in a relationship as a couple; (e) correctly listed the various relevant "common law factors" that are indicative of two people living together on a genuine domestic basis in a relationship as a couple, namely: (i) the duration of the relationship; (ii) the nature and extent of a common residence; (iii) whether or not a sexual relationship exists; (iv) the degree of financial dependence or interdependence; (v) the ownership, use and acquisition of property; (vi) the degree of mutual commitment to a shared life; (vii) the care and support of children; (viii) the reputation and public aspects of the relationship; (f) considered the submissions and evidence relevant to the inquiry, setting out its assessment against each of the "common law factors"; and (g) after discussing and weighing up the submissions and evidence, ultimately found that the second respondent was living with the deceased on a genuine domestic basis in a relationship as a couple, meaning that the second respondent was the deceased's "spouse for the purposes of superannuation law and the [F]und's Trust deed". 70 In considering the application of each of the common law factors, AFCA canvassed a wide range of evidence and conflicting claims by the second respondent and the appellant. AFCA relevantly: (a) referred to inconsistencies in, and uncertainty about, the second respondent's evidence as to when he met the deceased and when they commenced living together; (b) ultimately concluded that the second respondent and deceased lived together for at least two and a half years, and were in a relationship prior to co-habiting; (c) referred to the fact that it was not in dispute that the second respondent and the deceased lived together; (d) referred to competing evidence as to whether the second respondent and the deceased were in a continuing sexual relationship, including noting evidence from an expert that it was possible for two LGBTI people to share one bedroom without being in a sexual relationship; (e) ultimately concluded that the second respondent and deceased had a continuing sexual relationship; (f) referred to evidence of the deceased making payments, described in the deceased's bank records as "rent", to the second respondent, which were used to pay the second respondent's mortgage; (g) referred to competing evidence from the appellant and the second respondent as to the extent of other financial contributions made by the deceased to the second respondent; (h) ultimately found that there was financial interdependence between the deceased and the second respondent; (i) referred to the fact that the second respondent had, after the deceased's death, amongst other things paid the outstanding balance on the deceased's credit card - describing this as a step that properly fell to the appellant, but which was undertaken in good faith by the second respondent; (j) referred to the fact that the second respondent and deceased did not own property together; (k) referred to competing evidence from the appellant, the second respondent, PS and the deceased's aunt as to the deceased and second respondent's commitment to a shared life, including the appellant's claim that the second respondent had evicted the deceased in 2018, and evidence of the deceased and his aunt's plan to purchase a house together; (l) ultimately accepted that their relationship suffered difficulty in 2018, but that the deceased and the second respondent continued co-habitation, and the relationship was subsisting at the time of the deceased's death; (m) referred to the fact that the second respondent and deceased did not have children; (n) referred to competing evidence from the second respondent, the second respondent's friends and the appellant as to the deceased and second respondent's commitment to a shared life, including the deceased's public statements on tax returns and social media that he was single; and (o) ultimately concluded that the deceased and the second respondent were known publicly as a committed couple. 71 It is thus apparent that AFCA considered the "common law factors" and carefully weighed the relevant evidence and submissions. It is also apparent that AFCA addressed the large majority of considerations said by the appellant to have not been taken into account by AFCA as set out at [43(a)]-[43(f)] above. In these circumstances, the appellant's submissions as to the Status Error were, in substance, an attempt to challenge the fact finding of AFCA in the Determination, or the weight given to evidence by AFCA. Such a challenge was not available to the appellant under s 1057(1) of the Corporations Act on appeal to the primary judge, as that section restricted the appellant's right of appeal to an appeal on a question of law. 72 It was not apparent from the appellant's submissions which of the matters said to constitute the Status Error were pressed as having been entirely overlooked by AFCA. In any case, AFCA was not required to refer in its Determination to every piece of evidence or contention made by the appellant: Carrascalao at [45]. Viewed in its totality and without an eye keenly attuned to the perception of error (as required by the Full Court in Wan at [48], [52]), AFCA's Determination contained a detailed consideration of the question of the status of the second respondent and addressed the conflicting claims and evidence of the second respondent and the appellant on this topic. The appellant has not established that the AFCA Determination overlooked any material consideration such as to amount to jurisdictional error. 73 I detect no legal error in AFCA's reasoning and its finding in relation to the status of the second respondent as the spouse of the deceased. As a consequence, this ground of appeal must be rejected.

Second alleged error - Apportionment Error 74 The second alleged error is AFCA's alleged failure to find that the Trustee's decision to distribute the death benefit payable in respect of the deceased in the proportions it did (70% to the second respondent and 30% to the appellant) was unfair or unreasonable in its operation in relation to the appellant. 75 In advancing this ground the appellant appears to contend that the principal legal error committed by AFCA or the primary judge is the error of failing to take into account relevant considerations. Those considerations are set out at [45(a)] above. 76 In the Determination, AFCA correctly identified both the appellant and the second respondent as dependants of the deceased and went on to determine that the Trustee's decision as to the proportions of the death benefit payable to each of them (70% to the second respondent and 30% to the appellant) was fair and reasonable in all the circumstances. 77 AFCA's consideration of this matter included an assessment, in section 2.4 of the Determination, of the extent of the appellant's financial dependence on the deceased. In this respect, AFCA considered the appellant's claim that the deceased had contributed to rates, provided her a car, contributed to the purchase of a log splitter, and paid for or contributed to the cost of various one-off expenses, such as the repair of a heater. AFCA accepted that the appellant had established a pattern of contribution by the deceased towards the costs of maintenance and upkeep of the property jointly owned by the deceased and the appellant. AFCA also found the deceased was jointly liable for rates. AFCA therefore found the appellant was partially financially dependent on the deceased. 78 AFCA went on to assess, in sections 2.5 and 2.6 of the Determination, the second respondent's and the appellant's expectation of receiving financial support from the deceased if he had not died. In respect of the second respondent, AFCA observed that there was an expectation between spouses that they would share in their financial resources, including superannuation. AFCA also referred to the second respondent's expectation that the deceased would contribute to his mortgage repayments. 79 In respect of the appellant, AFCA referred to the fact that the deceased had contributed towards the maintenance and upkeep of the property they jointly owned, that the appellant was on a low income with a small superannuation balance, that she would have relied on the deceased as she aged, and the appellant's expectation that the deceased would contribute to what was described as "capital expenditure". 80 Ultimately, in section 2.7, AFCA framed the second respondent's and the appellant's expectations as to the deceased's financial support in the following terms: As the deceased member's spouse, the [second respondent] could reasonably have expected to receive financial support from the deceased member for the remainder of their lives together. As a person who was partially financially dependent on the deceased member, the [appellant] could reasonably have expected to receive some financial support from the deceased member for the remainder of her life. 81 The above analysis formed the basis for AFCA's ultimate conclusion, in section 2.7, that the Trustee's decision with respect to apportionment fell within the range of decisions available to it. 82 AFCA's above approach exposes no failure to take into account a relevant consideration. Indeed, it is evident that, contrary to the appellant's submission, AFCA did take into account the appellant's low income, the deceased's financial contributions to her, and the fact that she would have relied on the deceased for financial support as she aged. That AFCA did not frame this evidence in a manner more favourable to her - by comparing, for example, the deceased's relative contributions to the appellant and the second respondent's income - is not an error of law. 83 The appellant's other contention was that AFCA's Determination did not contain a review of the Trustee's decision insofar as it concerned the apportionment of the death benefit payable in respect of the deceased. 84 However, as noted by the primary judge at Judgment [48], AFCA's jurisdiction to intervene in the Trustee's decision required it to reach a state of satisfaction that the Trustee's decision was not fair and reasonable in its operation. It is evident from those parts of AFCA's determination which are set out at [76]-[79] above that AFCA undertook this task, receiving detailed submissions and making findings of its own in relation to the fact of the appellant and the second respondent's dependence upon the deceased, as well as their expectations of financial contributions into the future if the deceased had not died. It cannot be said that AFCA did not undertake a review of the Trustee's decision insofar as it concerned the apportionment of the death benefit payable in respect of the deceased. AFCA did so, albeit while confining itself to the question of whether the Trustee's decision was within the range of what was "fair and reasonable", consistently with its statutory task. 85 I detect no error in the approach in AFCA's Determination of the fairness and reasonableness of the Trustee's decision in respect of the apportionment of the death benefit, nor in the primary judge's reasons in connection with that issue. Accordingly, this ground of appeal must be rejected.

Third alleged error - Nomination Error 86 The appellant contends that AFCA erred by not giving any, or any proper, consideration to the relevance of the non-binding death benefit nomination given to the Trustee by the deceased (which nominated the appellant as the sole beneficiary of the death benefit payable in respect of the deceased). 87 AFCA in its determination found that the Trustee "acted appropriately in the consideration it gave to the [non-binding] nomination". It was aware of rule 8.10 of the Fund Rules, which dealt with the relevance of non-binding nominations, and extracted it in section 3.3 of the Determination. 88 The minutes of the Trustee's Complaints and Disputes Executive Panel (which made the Trustee's decision on behalf of the Trustee) records the following: It was noted no Will had been left by the deceased and the nomination of beneficiaries made by the deceased on 12 August 2010 in favour of his mother (which was not binding) was made prior to the commencement of his relationship with his spouse. 89 Accordingly, the Trustee considered the non-binding death benefit nomination made by the deceased in accordance with rule 8.10. 90 In section 2.2 of the AFCA Determination, AFCA similarly referred to the fact that the deceased had made an on-line nomination with his former fund in favour of the appellant. AFCA went on to note that, after the merger of the deceased's former fund with the Fund, the Trustee clearly indicated to the deceased in his annual benefit statements that such a nomination was non-binding. AFCA then observed that there was no evidence that the deceased confirmed his nomination at any time, although he ought to have been aware his nomination was non-binding. AFCA rejected a submission by the appellant that the deceased did not change his nomination to be binding because he believed it already was binding. AFCA was ultimately satisfied that the nomination was not binding, and the Trustee acted appropriately in the consideration it gave to the nomination. 91 It is evident from the above that, contrary to the appellant's submission, AFCA did give consideration to the fact of the non-binding nomination. The appellant's challenge to AFCA's Determination in respect of the nomination is ultimately to challenge the weight given by AFCA to the non-binding nomination in the Determination. Such a challenge was not available to the appellant in the proceeding before the primary judge by reason of s 1057(1) of the Corporations Act, nor is it available on appeal from the primary judge. 92 The primary judge referred to the deceased's non-binding nomination, and to rule 8.10 of the Fund Rules at Judgment [6]-[9]. After noting at Judgment [45] that the Determination must be read as a whole, and not in an "over-zealous way with an eye keenly attuned to error", the primary judge found at Judgment [49] that "AFCA took account of the deceased's non-binding nomination of the appellant as his intended recipient of the death benefit" and that "AFCA noted that the nomination was not binding on the Trustee, and stated that the Trustee acted appropriately in the consideration it gave to the nomination". 93 I detect no legal error in the reasoning and conclusion of AFCA in relation to the deceased's non-binding nomination, or any error in the reasons of the primary judge on the same issue. It follows that this ground must also be rejected.

DISPOSITION 94 For the reasons given above, each ground of appeal must be rejected, and the appeal dismissed with costs to be fixed by way of an agreed lump sum or, in default of agreement, by way of a lump sum fixed by a Registrar. I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.

MCELWAINE J: 95 I have had the considerable benefit of reading the draft reasons for judgment of Anderson J. I agree that the appeal should be dismissed with costs for the reasons given by his Honour. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice McElwaine.

Corporations Act 2001(Cth)ss 1053, 1055, 1055A, 1057

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