Dianne Margaret Palmer v The Territory Insurance Office Board

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Mildren J
• Judgment Date: 09 March 2001
• Neutral Citation: [2001] NTSC 13
• Docket Number: FILE NO: M2/2000
• Date: 09 March 2001

[2001] NTSC 13

MOTOR ACCIDENTS (COMPENSATION) APPEAL TRIBUNAL

Judgment of:

Mildren J

FILE NO: M2/2000

Between:

Dianne Margaret Palmer

Applicant

and

The Territory Insurance Office Board

Respondent

REPRESENTATION:

Counsel:

Appellant: F. Davis

Respondent: D. Farquhar

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....