Earlier this year, the Honourable Justice Robertson of the Federal Court handed down his decision in Howard -v- Batistich [2019] FCA 525 which was an appeal from a decision of the Superannuation Complaints Tribunal. Under the Superannuation (Resolution of Complaints) Act 1993 (Cth) (Complaints Act), an appeal is only allowed on a question of law: See section 46. This case explores what that means when fundamentally a party to a dispute with the trustee is disappointed with the trustee’s interpretation of the known facts. The case has relevance not only to appeals from the SCT but also AFCA, in the sense that the same right to appeal to the Federal Court on a question of law applies.

Daniel Howard was a member of a fund that paid death benefits to firefighting employees of Fire & Rescue NSW as provided in the Crown Employees (Fire & Rescue NSW Firefighting Staff Death and Disability) Award.

In 2014 Daniel died tragically while fighting a fire in Cobar NSW. This was considered a death that occurred while he was ‘on duty’ and under the fund’s governing rules, and in accordance with the award, if he had a “spouse” (as defined in the Superannuation Act 1916 (NSW) which, by virtue of section 21C of the Interpretation Act 1987 (NSW), included a de facto spouse), that person would receive a pension, paid fortnightly, for life. A lump sum benefit would be paid to the estate of the deceased if there was no spouse.

The trustee had to decide whether Ms Batistich was Daniel’s de facto spouse at the date of his death and that involved collecting and reviewing the known facts. On reviewing those facts, the trustee decided Ms Batistich was Daniel’s de facto when he died. This conclusion disappointed Daniel’s parents who complained to the Tribunal that the trustee’s decision was not fair and reasonable in the circumstances.

The facts provided by Ms Batistich and Mr & Mrs Howard conflicted.

Ms Batistich supplied text messages making reference to the couple spending the rest of their life together, and she pointed out that they spent most nights together in a happy and healthy relationship. Daniel mentored her son as a stepfather, and they shared day to day expenses although each of them maintained financial independence with respect to properties they separately owned. There was talk of buying a property together and getting married. When Daniel died, newspaper articles wrote about Ms Batistich and her son being ‘left behind’. The latter being argued as evidence of a public demonstration of their relationship.

Mr & Mrs Howard pointed out that the relationship was of a relatively short duration, and there were text messages saying good night to each other putting into doubt whether they were living with each other at the date of Daniel’s death. Evidence from a gardener and cleaner contradicted Ms Batistich assertions of a de facto relationship and Daniel had neither changed his lifestyle nor declared the extent of the relationship to his family and close friends.

The Tribunal decided the trustee’s decision was fair and reasonable in the circumstances, which disappointed Mr & Mrs Howard who appealed to the Federal Court arguing the Tribunal erred in law by:

  1. wrongly identifying the question it had to answer;
  2. not giving adequate reasons; and
  3. failing to give the term ‘de facto partner’ its proper statutory construction.

Ground 1 – wrongly identifying the question to answer

The Complaints Act required the Tribunal to decide whether the trustee’s decision was fair and reasonable, and that involved determining whether Ms Batistich was, or was not, Daniel’s de facto at the date of his death. If the Tribunal found she was not his de facto, the trustee’s decision would not have been fair and reasonable, and vice versa. As the Honourable Justice Moshinsky found in Mercer Superannuation (Australia) Ltd -v- Billinghurst [2016] FCA 1274 ‘that does not involve determining whether the trustee made the correct or preferable decision’.

The Court pointed out that the law requires the reasons of the Tribunal to be interpreted in a practical and common-sense manner and ‘not with an eye keenly attuned to the perception of error’. On this basis, when looking at the substance of the Tribunal’s decision, it had asked itself the right question. The Judge did not accept Mr & Mrs Howard’s submission that the Tribunal had determined the matter on the basis that if there was some evidence to support the trustee’s decision, then it had to be accepted as fair and reasonable. Neither did the Judge accept the assertion that the Tribunal had failed to have regard to the submissions of Mr & Mrs Howard. Ground 1 was not made out.

Ground 2 – adequacy of reasons

The Court acknowledged the Tribunal’s reasons were not fulsome, but the Tribunal did state the contentions of the parties and made findings on the basis of those contentions. The Tribunal preferred what was said in the text messages and by necessary implication rejected other material before it, such as the evidence of the cleaner and gardener. The Tribunal made a factual finding that the newspaper articles provided evidence of public acknowledgement of the relationship and, in so doing, it rejected the contention that the newspaper articles were wrong. The Court held, in these circumstances, the Tribunal complied with section 40 of the Complaints Act as it had set out its findings on material questions of fact and referred to the material on which those findings were based. Ground 2 was not made out.

Ground 3 – proper statutory construction of de facto partner

Section 21C of the Interpretation Act 1987 (NSW) was relevant in deciding whether Daniel and Ms Batistich were in a relationship as a couple living together. That section required all of the circumstances of the relationship to be taken into account, but the matters specified in a list in the section were not a mandatory relevant consideration.

In this case, the Court was not persuaded that the Tribunal had failed to take into account all the circumstances of the relationship. The Court applied the decision of the Honourable Justice Hallen in Sadiq -v- NSW Trustee and Guardian [2015] NSWSC 716 where it was held that the determination of the existence of a de facto relationship was essentially impressionistic, as such a relationship only existed because of the factual circumstances of the parties. The Court went on to find at paragraph 73 of the judgement:

It is not to the point that, as claimed by the present applicants, the Tribunal made “mistakes” of fact, as it was within the Tribunal’s jurisdiction simply to make mistakes of fact. Similarly, it is not the jurisdiction of the Court to grant relief on proceedings in the nature of judicial review in respect of the Tribunal simply making mistakes of fact: See Waterford -v- Commonwealth [1987] HCA 25.

The Judge did not accept that the Tribunal had failed to make a value judgement as required by section 21C. Ground 3 was not made out.

As all three grounds for the Tribunal to have erred in law were not made out, the case was dismissed with a costs order made against the applicants.