Palmer v Territory Insurance Office Board [2001] NTSC 13

PARTIES:	DIANNE MARGARET PALMER

	v

	THE TERRITORY INSURANCE OFFICE BOARD

TITLE OF COURT:	MOTOR ACCIDENTS (COMPENSATION) APPEAL TRIBUNAL

JURISDICTION:	CIVIL

FILE NO:	M2/2000

DELIVERED:	9 March, 2001
							
HEARING DATES:	9 February, 2001

JUDGMENT OF:	MILDREN J

REPRESENTATION:

Counsel:
	Appellant:	F. Davis
	Respondent:	D. Farquhar

Solicitors:
	Appellant:	Davis Norman & Partners
	Respondent:	Cridlands

Judgment category classification:	C
Judgment ID Number:	Mil01237
Number of pages:	10

IN THE MOTOR ACCIDENTS
(COMPENSATION) APPEAL TRIBUNAL
No. 2 of 2000
(20004797)
Palmer v Territory Insurance Office Board [2001] NTSC 13

	BETWEEN:

	DIANNE MARGARET PALMER
	Applicant

	AND:

	THE TERRITORY INSURANCE OFFICE BOARD
	Respondent

THE TRIBUNAL:	MILDREN J

REASONS FOR DECISION

(Delivered 9 March 2001)

MILDREN J:
[1]	This is a claim for benefits under the provisions of S7(b) and S22 of the Motor Accidents (Compensation) Act (the Act).
Background facts
[2]	The facts are not in dispute.  On 28 July 1998, David John Cook died as the result of injuries he received in a motor vehicle accident on that date which occurred at the intersection of McMillans Road and the Stuart Highway, Darwin.  At the time of the accident, the deceased was a resident of the Territory as defined by S4 of the Act, and was a “qualifying person” as defined by S20 of the Act.   The applicant lodged a claim for compensation as the deceased’s “spouse”.  On 1 February 2000 the respondent upheld the determination of the “designated person” (as defined by S4(1) of the Act) made on 9 April 1999 that the applicant was not the “spouse” of the deceased, and that therefore no benefits were payable to the applicant.   The applicant, being aggrieved by the respondent’s decision, has referred her claim to this Tribunal pursuant to S29(2) of the Act.  The sole issue as between the parties is whether or not the applicant was at the time of the  deceased’s death, the “spouse” of the deceased.  If the answer to that question is “yes”, it is common ground that the applicant is entitled to a determination of lump sum benefits amounting to $124,815.60 in her favour.    If the answer is “no”, it is common ground that the present claim must be dismissed.
The definition of “spouse”
[3]	Subsection 4 (1) of the Act defines “spouse” as follows:
“spouse”, in relation to a person, means – 
(a)	a person who is legally married to the person and who was, at the relevant time, living with the person on a bona fide domestic basis;
(b)	a person who is legally married to the person but who was not living with the person on a bona fide domestic basis at the relevant time, and who, in the opinion of the Board, was wholly or substantially dependent upon the person at that time;
(c)	a person who is not legally married to the person but who, for a continuous period of not less than 2 years immediately preceding the relevant time, had lived with the person as the person’s husband or wife, as the case may be, on a bona fide domestic basis;
(d)	a person who was not legally married to the person but who, for a continuous period of less than 2 years immediately preceding the relevant time, had lived with the person as the person’s husband or wife, as the case may be, on a bona fide domestic basis, and who, in the opinion of the Board, was wholly or substantially dependent upon the person at the time; and
(e)	where that person is an aboriginal native of Australia – a person referred to in paragraphs (a), (b), (c) or (d) or who is, according to the customs of the group or tribe of aboriginal natives of Australia to which he belongs, married to him;
(It is noted that the latest reprint of the Act is inaccurate.  On 1 January 1992 the definition was amended by the Schedule to the Defacto Relationships (Miscellaneous Amendments) Act 1991.  Unfortunately the reprint of the Act which incorporated all amendments made up to 1 September 1992 did not accurately incorporate those amendments).
The Applicant’s claim
[4]	The applicant was never legally married to the deceased.  She bases her claim upon paragraph (c) of the definition of “spouse”, or alternatively upon paragraph (d).  It is common ground that these are the only relevant paragraphs.
The Facts
[5]	The facts are not in contention and may be summarised as follows.  The applicant, who is an administration clerk, was born on 22 July 1962 and is now 38 years of age.  The deceased was born on 2 January 1956.   The applicant and the deceased commenced a de facto relationship in Adelaide on 13 March 1993.  At some unspecified time, the applicant and the deceased moved to the Northern Territory.  On 27 February 1995 the applicant and the deceased purchased a property situated at 574 Strangways Road, Humpty Doo as joint tenants.   The property has an area of 3 hectares and 4400 square metres, and has a residence on it.  The applicant and the deceased lived on the property thereafter and conducted themselves as husband and wife.  They pooled their incomes and operated joint bank accounts, but as the deceased’s income was greater than that of the applicant, he also supported her financially to some extent.  There were no children of this relationship.  It is not suggested that either party had any other children.
[6]	The applicant suffered what she describes as “long term domestic violence” at the hands of the deceased, who had also abused alcohol and drugs for a period shortly before his death.  On 26 April 1998, about 3 months before the deceased’s death, the applicant was forced to leave the residence at Humpty Doo as a result of her being told to leave by the deceased, and because she “could not predict his (the deceased’s) behaviour.”  It is not clear where the applicant went to live immediately thereafter, but at the time of the deceased’s death she resided at 85 Jefferis Road, Humpty Doo, with a Mr and Mrs Harrison.  She did not return to the residence at 574 Strangways Road for the purpose of resuming her relationship with the deceased at any time thereafter.
[7]	On 15 May 1998 the applicant was residing at Lot 16 Andrews Road Humpty Doo.  The deceased attended at this residence and assaulted the applicant by dragging her from her car and throwing her onto the ground.  The matter was reported to the police by another occupant of that residence.  On 18 May the applicant sought a restraining order against the deceased under the Domestic Violence Act.  That matter came on for hearing on 20 May.  On the same day an application was made by the deceased against the applicant for a restraining order under the Act.  An order was made by the Court against both the applicant and the deceased.  The terms of the order obtained by the deceased are not before me, but his application sought an order that the applicant “immediately make arrangements to have her property removed from 574 Strangways Rd, Humpty Doo”.  The deceased claimed that the applicant had “left permanently on 26 April 1998”.  The order obtained by the applicant was for a period of 12 months and restrained the deceased from contacting the applicant either directly or indirectly, and from approaching or remaining at any place where the applicant was living, staying or working.
[8]	On the 20th July 1998, only 8 days prior to his death, the deceased went to the applicant’s place of work and entered the applicant’s motor vehicle which was parked outside, in order to place a steering lock on the steering wheel.  An altercation ensued over whether or not the applicant was making payments on her car.  The parties met but briefly; the deceased left, leaving the lock on the car.  The applicant reported the matter to the police, intent on having breach proceedings brought against the deceased, and swore a statutory declaration in support of that application at a police station on 22 July 1998.  The breach proceedings were still pending at the date of the deceased’s death.
[9]	At some time between 26 April 1998 and 28 July 1998, the applicant had told the deceased that she would return as the deceased’s de facto wife if he would undergo medical treatment for his violence and excessive use of alcohol and prescribed drugs.  The applicant’s evidence is that the deceased did not ask her to return.
[10]	Apart from the above matters, the only other facts of any relevance put to the Court is that on two separate occasions after 26 April 1998, the deceased paid the applicant sums totalling $300 towards her support.
Was the applicant the deceased’s spouse at the time of his death?
[11]	I think it is clear from the facts that if the applicant is to succeed at all, it must be on the basis of paragraph (c) of the definition rather than paragraph (d), as it is clear that, if the applicant had been living as the deceased’s wife on a bona fide domestic basis for a continuous period immediately preceding the deceased’s death, the period exceeded two years.  It is therefore unnecessary to consider paragraph (d) any further.
[12]	In any event, whether the claim is brought under paragraph (c) or (d), the applicant must show, the burden of proof being upon her, that she had lived with the deceased as his wife on a bona fide domestic basis for a continuous period of time up until the time immediately preceding his death.  Mr Davis, counsel for the applicant, pointed out that the various paragraphs in the definition of “spouse” use quite different verb tenses to express the necessary criteria.  In paragraph (a), the expression used is “and who was, at the relevant time, living with the person on a bona fide domestic basis” whereas in paragraph (c) the expression used is “who, for a continuous period of not less than two years immediately preceding the relevant time, had lived with the person as the person’s …wife…on a bona fide domestic basis.”    Mr. Davis’ submission was that whereas paragraph (a) focused on the time of death, paragraph (c) focused on a continuous period immediately preceding the time of death, rather than a continuous period up to and including the time of death.  Thus, as I understand his submission, it is a question of degree whether or not the relevant relationship existed “immediately preceding” the death.  In support of this argument Mr Davis relied upon the judgment of Kearney J (with whom Angel J concurred) in Loizos v Carlton and United Breweries Ltd (1994) 94 NTR 31 at 33-35 where his Honour, in the course of considering the meaning to be given to the expression “immediately before the date upon which he first became entitled to compensation” in S65 (3) of the Work Health Act, reviewed a number of authorities from different jurisdictions which considered the expression “immediately before”.  Mr Davis’ argument based on Loizos’ case was that, (1) the Act is beneficial legislation and should be construed accordingly; (2) “immediately preceding” does not preclude a claim by the applicant if the relationship existed without any significant  or unreasonably large gap between any separation and the date of death and; (3) having regard to the length of the relationship a gap of about 3 months was not a significant or unreasonably large gap.
[13]	In any event, Mr Davis submitted that on the facts of this case, I should find that, if I took a narrower approach to the meaning to be given to “immediately before”, the applicant had for a continuous period of not less than two years “immediately before” the deceased’s death, lived with the deceased as husband and wife because the relationship continued despite their physical separation.
[14]	I was referred by counsel for the respondent, Mr. Farquhar, to the observation made by the Full Federal Court in Lambe v Director-General of Social Services (1981) 38 ALR 405 at 413 that, in order to determine whether the applicant was living with the deceased as his wife on a bona fide domestic basis “all facets of the inter-personal relationship” of the two persons needed to be taken into account.  I accept this, and I accept also that a person may be said to “live with” another person even though they are temporarily physically separated.  An obvious example would be if one partner was away from their home on a business trip, or a holiday, intending to return in the near future.  Even a lengthy separation might not be fatal; for example, if one partner being in the armed services, was sent abroad on military service for six months intending to return to the parties’ home as soon as he was able.  A useful list of the main factors relevant to be considered appears in the judgment of Powell J in Roy v Sturgeon (1986) 11 NSWLR 454 at 458-9, but I would emphasize that this list is not exhaustive, and the weight to be given to individual factors will vary as community standards and expectations vary.
[15]	Accepting that the relevant relationship existed from 13 March 1993 to 26 April 1998, I consider that it is clear that the relationship thereafter, or shortly thereafter, no longer existed.  The parties physically separated, and it is clear that there was no mutual expectation or agreement express or implied that cohabitation would ever resume.  On the contrary, there were restraining orders preventing the resumption of cohabitation still in force at the time of the deceased’s death and pending proceedings brought by the applicant seeking a remedy for an alleged breach of the order.  This was not some minor tiff where one party walked out on the other, only to return in a day or so when passions had cooled; it was clearly a major breakdown in the relationship, with nothing to indicate that it would not be permanent.  The fact that the property was still in joint names and apparently no steps had been taken to alter the status quo is not surprising.  Not enough time had passed for any arrangements to have been made to have altered the status quo, and whilst it may have been that the parties wished to wait for a while longer to see if a reconciliation was possible, the evidence, such as it is, suggests that the deceased was not interested in a reconciliation.  The payment of a small amount of money towards the applicant’s support is not compelling evidence of a continuation of the relationship in the circumstances of this case.    In the circumstances I conclude that whatever view one takes of the meaning to be given to “immediately preceding,” and assuming the most generous interpretation of that phrase in the applicant’s favour, on the evidence before me it is clear that the relationship had come to an end at a time well before the deceased’s death, and that this application must be dismissed.  To deal with Mr. Davis’ point about the meaning to be given to “immediately preceding”, and that a gap of three months was not a significant gap, I adopt the approach of Kearney J in Loizos v Carlton and United Brewery Ltd., supra at 35 where his Honour said that the “answer is best expressed by adopting the approach of Blackburn J in Hobbs v London and South Western Railway Co (1875) LR 10 QB 111 at 121:
…….it is something like having to draw a line between night and day; there is a great duration of twilight when it is neither night nor day; but…..though you cannot draw the precise line, you can say on which side of the line the case is…..”
I consider that if a flexible construction is to be given to the definition, wherever the precise line is to be drawn, the applicant is well outside of that line on the facts of this case.
Orders
[16]	The order of the Tribunal is that the application is dismissed with costs.