Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Griffiths v The Trustees of the Parliamentary Contributory Superannuation Fund [2012] NSWCA 231
• Hearing dates: 12 July 2012
• Decision date: 03 August 2012
• Before: McColl JA at [1]; Campbell JA at [2]; Meagher JA at [3].

Decision

(1) Appeal dismissed.

(2) Appellant to pay the respondent's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: STATUTORY INTERPRETATION - appellant and former member of Legislative Assembly married for duration of parliamentary service, divorced and remarried just prior to former member's death - whether appellant entitled to pension pursuant to s 23(1) of the Parliamentary Contributory Superannuation Act 1971 - extrinsic materials not able to be relied upon to displace clear words of statute
• Legislation Cited: Legislative Assembly Members Superannuation Act 1946; Marriage Act 1961 (Cth); Parliamentary Contributory Superannuation Act 1962 (Vic); Parliamentary Contributory Superannuation Act 1971; Property (Relationships) Act 1984
• Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384; Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380; Hepples v Federal Commissioner of Taxation [1992] HCA 3; 173 CLR 492; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; 218 CLR 273; Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85; Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; 228 CLR 529; Northern Territory of Australia v Collins [2008] HCA 49; 235 CLR 619; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; R v Young [1999] NSWCCA 166; 46 NSWLR 681; Re Bolton; Ex parte Beane [1987] HCA 12; 162 CLR 514; Saeed v Minister for Immigration & Citizenship [2010] HCA 23; 241 CLR 252; Wentworth Securities Ltd v Jones [1980] AC 74
• Texts Cited: New South Wales, Report by the Committee of Inquiry to Review the Emoluments of Statutory and other Senior Officeholders, (25 October 1971)
• Category: Principal judgment
• Parties: Diane Maree Griffiths (Appellant); The Trustees of the Parliamentary Contributory Superannuation Fund (Respondent)
• Representation: Counsel: DMJ Bennett QC; AL Tokley; AK Flecknoe-Brown (Appellant); MG Sexton SC; M Izzo (Respondent); Solicitors: Indemnity Legal, North Ryde (Appellant); Crown Solicitor's Office (Respondent)
• File Number(s): 2010/396263

Decision under appeal

• Citation: Griffiths v The Trustees of the Parliamentary Contributory Superannuation Fund; [2011] NSWSC 983
• Date of Decision: 2011-08-26 00:00:00
• Before: Rein J
• File Number(s): 2010/396263

Judgment

1 McCOLL JA: I agree with Meagher JA.

2 CAMPBELL JA: I agree with Meagher JA.

3 MEAGHER JA: The appellant is the widow of Terence Allan Griffiths who was a member of the New South Wales Legislative Assembly from 19 March 1988 to 3 March 1995. From 25 March 1995 he was in receipt of a parliamentary pension under the Parliamentary Contributory Superannuation Act 1971. The appellant and Mr Griffiths were married on 19 January 1974 and were divorced on 22 April 2000. They remarried on 5 March 2009 and Mr Griffiths died on 18 June 2009.

4 In proceedings heard by Rein J (the primary judge), the appellant sought a declaration that under s 23(1) of that Act, as his widow she was entitled to receive three-quarters of Mr Griffiths' parliamentary pension from the date of his death.

5 Section 23(1) provides:

"23(1) On the death of a former member who immediately before his or her death was receiving, or was entitled to receive, a pension under this Part, the spouse or de facto partner (not being a person who became the spouse or de facto partner of the former member after the former member became entitled to that pension) of the former member shall be entitled to an annual pension ...."

6 Subsection 3(1) defines "spouse" of a former member who has died as the "widow or widower, as the case may be, of the member or former member". In this definition "widow" has its ordinary meaning which is a woman who has lost her husband by death.

7 The primary judge rejected that claim because although the appellant was Mr Griffiths' spouse at the time of his death, she became his spouse after he became entitled to the pension in March 1995. Therefore, she was within the exception in the parenthesis and for that reason, not entitled to an annual pension: esp at [24], [26], [27].

8 The appellant appeals from that decision. She submits that the exception in s 23(1) is to be construed as excluding from the entitlement to an annual pension, a widow who first "became the spouse ... of the former member after the former member became entitled to that pension".

9 In support of that submission, the appellant says that the language of the exception is ambiguous, that this construction is "reasonably open" and that it gives effect to the purpose of s 23(1). That purpose is said to have been to provide a pension for a widow or widower who was married to a member of the Legislative Council or Legislative Assembly at the conclusion of his or her parliamentary career. It is argued that it is permissible to adopt that construction because through legislative inadvertence or oversight the exception as drafted does not take account of an eventuality which was required to be dealt with if that purpose was to be achieved. That eventuality was divorce from the member after the member had ceased to be a member, followed by remarriage to the former member. In support of this proposition reference was made to Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 422-423; Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85 at 113; and R v Young [1999] NSWCCA 166; 46 NSWLR 681 at [5]-[22].

10 The function of a court, when construing a statute, is to give effect to the will of Parliament as expressed in the law. That task must begin with a consideration of the relevant text and have regard to its context. That "context" includes not only other provisions of the same statute but also the existing state of the law, other statutes in pari materia, and any mischief which it can be discerned, by those and other legitimate means, the provision was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; 218 CLR 273 at [10]-[11]; Northern Territory of Australia v Collins [2008] HCA 49; 235 CLR 619 at [99]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [47]; Saeed v Minister for Immigration & Citizenship [2010] HCA 23; 241 CLR 252 at [31]-[34]. However, historical considerations and extrinsic materials cannot be relied upon to displace the clear meaning of the text. That remains so even if the secondary material suggests that, through oversight or inadvertence, the intention of the Parliament has not been translated into the text of the law: Re Bolton; Ex parte Beane [1987] HCA 12; 162 CLR 514 at 518; Newcastle City Council at 113; Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; 228 CLR 529 at [22]; Northern Territory of Australia v Collins at [99]; Alcan (NT) Alumina at [47]; Saeed v Minister for Immigration & Citizenship at [31]-34]; Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at [12], [172], [191], [192].

11 Beginning with the text, s 23(1) is concerned with pension entitlements for spouses and de facto partners of former members. A person is entitled to a pension if he or she satisfies a condition and is not within the exception. The condition is that the person is the spouse or de facto partner of the former member at the time of his or her death. That condition is satisfied, in relation to a spouse, if he or she was the husband or wife of the former member at the time of the former member's death. In relation to a de facto partner, it is satisfied if he or she was in a de facto relationship, within the meaning of the Property (Relationships) Act 1984, with the former member at the time of his or her death.

12 The exception denies any entitlement to persons who became the spouse or de facto partner after the former member became entitled to a pension under Part 3 of the Act. The ordinary meaning of "became", when used in relation to a status or position or standing, is "came to be". A widow will be within the exception if she was married to the former member after the relevant time. That will be so if after that time there was a valid marriage of the widow and the former member in accordance with the provisions of the Marriage Act 1961 (Cth). A de facto will satisfy that description if he or she became a party to a de facto relationship with the former member after that time.

13 The exception is not expressed to be subject to any further qualification or proviso. A person who was the wife of a former member at the time of his death will fall within the exception if she married him after the relevant time even though she may also have married and divorced him before that time. The position is the same in respect of a de facto relationship notwithstanding that the question whether two persons are in such a relationship depends upon a fact based evaluative assessment. Whether the de facto relationship which existed on the former member's death commenced before or after the relevant time may be determined by reference to the relevant definition.

14 The appellant submits that the words of the exception are ambiguous. This argument accepts that a widow who married the former member, before the relevant time and remarried him after that time, in the words of the exception, "became" the spouse of that former member before and after the relevant time. It is said that the exception is ambiguous because it does not make clear whether it is intended to apply to a spouse who has remarried. An unstated premise of this argument is that the exception, in commencing with the words "not being a person", is to be read as excluding from entitlement one of only two possible classes into which persons married to the former member at the time of his death are to be divided, namely those who married before and those who married after the relevant time. It is then said, by reference to extrinsic material to which I will refer shortly, that the purpose of s 23(1) was to provide the pension to a widow who was married to the former member at the time he became entitled to the pension. For that reason it is contended that the ambiguity may be resolved consistently with the purpose of the provision by construing "became" as if it read "first became".

15 This argument does not identify any ambiguity in the words of the exception. The fact that a widow who had divorced but then remarried the former member may fall within the exception is not the result of any doubt or uncertainty as to the meaning to be given to its provisions. Their ordinary meaning remains clear, as does its operation in those circumstances. A widow who married the former member after the relevant time is within the exception irrespective of whether she married him at some earlier point in time and therefore also became his spouse at that time. The exception is not drawn in a way which requires that widows be treated as falling within one of only two possible classes, being those who became the spouse of a former member before and those who became his spouse after the relevant time. Had it done so it may have been necessary to read down the reference to "became" to accommodate the requirement that all widows answer one or other of those descriptions.

16 The appellant does not point to any other provision of the Act which requires that the language of s 23(1) be given a meaning other than its ordinary meaning. On the contrary, its being given that meaning is supported by s 23(1A) which was inserted in the Act in 2002. It confers pension entitlements on an "eligible spouse" who is defined in s 23(5) to mean a person who became the spouse of the former member after the former member became entitled to a pension, who has or has had a child with the former member. The fact that the Act makes specific provision for a person who became the spouse after the former member became entitled to the pension is consistent with that person not otherwise being entitled under s 23(1). In making this observation I am conscious of the limited use which may be made of a subsequent amendment when construing the Act which it amends: see, eg, Hepples v Federal Commissioner of Taxation [1992] HCA 3; 173 CLR 492 at 539.

17 It remains necessary to address the appellant's argument as to the purpose of s 23(1). Specifically, the appellant says that when regard is had to its legislative history, it is apparent that the purpose of s 23(1) was to provide a pension entitlement to a widow who was married to the deceased former member at the time he ceased to be a member. By subsequent amendments, it is said, that purpose was extended to those in de facto relationships.

18 That submission proceeds as follows. As appears from the Second Reading Speech for the Parliamentary Contributory Superannuation Bill, its purpose was to implement the recommendations relating to superannuation contained in the Report by the Committee of Inquiry to Review the Emoluments of Statutory and other Senior Officeholders, chaired by Sir John Goodsell and dated 25 October 1971. That report recommended that a contributory superannuation scheme be established for members of the Legislative Council and that legislation be introduced to provide for a parliamentary superannuation scheme for members of both houses of the New South Wales Parliament "similar to that now operating in Victoria". A summary of the main provisions of the various State parliamentary superannuation schemes as then current was attached to the Report. That summary included, under the heading "Benefits - Widows and Children", a statement that the conditions applicable to a widow's pension in the schemes then current in New South Wales and Victoria included that: "The widow must have been married to the deceased at the time he ceased to be a member".

19 At that time s 7(5) of the Parliamentary Contributory Superannuation Act 1962 (Vic) defined a "widow", for the purpose of determining her entitlement to receive superannuation benefits, as not including "a woman who married a former member after he had finally ceased to be a member". There was a similar exception in s 12(4) of the Legislative Assembly Members Superannuation Act 1946 (NSW).

20 Drawing on this material, the appellant says that one purpose of the legislation was to provide a pension entitlement to a widow who was married to the deceased former member at the conclusion of his parliamentary career. That purpose is not achieved in relation to a widow who had remarried the former member after that time, unless "became" is treated as if it read "first became". The ordinary meaning of "became" should be displaced in favour of a construction that gives effect to that purpose. Here there was legislative inadvertence. The Committee of Inquiry must be taken to have believed mistakenly that the adoption of an exception in the terms of that in the definition of "widow" in s 7(5) of the Victorian Act had the consequence that a widow married to the former member at the time he ceased to be a member would be entitled to the pension. That will only be the case if, in relation to a remarriage, the exception is read as applying only to the first marriage. Because Parliament intended to implement the recommendations in the Report, it must also be taken inadvertently to have made the same mistake. That inadvertence can be overcome by reading "became" as if qualified by first or only.

21 This argument must be rejected. It seeks to give the exception a meaning contrary to its natural and ordinary meaning in circumstances where there is no justification in the text or context for doing so. It is not obvious from the extrinsic materials referred to that a purpose of the legislation was to provide a pension entitlement to all widows who were married to the deceased at the time he ceased to be a member, assuming, of course, that those widows were also married to him at the time he died.

22 Whilst the terms of reference of the Committee of Inquiry were broad enough to include consideration of the qualifying conditions which gave rise to a widow's entitlement, the focus of the Report in relation to superannuation, was on whether a contributory scheme should also be established for members of the Legislative Council and the adequacy of the existing pensions and benefits provided and the required rates of contribution. Nowhere in the terms of reference of the Committee or in its Report is there any suggestion that the conditions governing a widow's entitlement to a pension were unsatisfactory or should be amended in some way from those which then applied in Victoria or New South Wales.

23 The summary of the provisions governing that entitlement purports to be a statement of the effect of the then current provisions. In relation to Victoria, the statement that "the widow must have been married to the deceased at the time he ceased to be a member" was a correct statement of the effect of the exception in the definition of "widow" in subsection 7(5), if the marriage referred to is the one by virtue of which the wife has become a widow. A similar observation can be made with respect to the equivalent New South Wales provision. Because a remarriage of the same couple is and must at that time have been uncommon, it is most unlikely that the authors of the Report turned their minds at all to that circumstance when describing the effect of the relevant statutory provisions. This is particularly so in circumstances where there is no reference whatsoever in the Report to the existing provisions being unsatisfactory in the way they addressed the circumstance of such a remarriage. It cannot be said with any confidence that the authors of the Report proposed, by their statement as to the relevant condition, to describe its effect in all circumstances, and intended that it should not exclude a widow who had remarried.

24 For the same reasons, it cannot be said that the Parliament, when determining to implement the Report, addressed the possibility of a remarriage between the widow and the former member; intended that the description of the relevant condition in the Report provide in those circumstances that the widow was entitled to receive a pension; and wrongly believed that the current Victorian provision achieved that outcome. A much more likely explanation is that the authors of the Report and the Parliament understood the statement as to the effect of the condition as requiring that the widow had continued to be married to the former member from at least the time he ceased to be a member until his death; and that they did not consider the possibility of a remarriage of the widow and former member.

25 It is also to be observed that treating the exception in s 23(1) as if it read "first became" would not have the consequence that only widows who were married to the former member at the time he ceased to be a member would be entitled to a pension. A widow who had married and then divorced the former member before he became a member of the Parliament and who remarried the former member after he had ceased to be a member would qualify for the pension. Therefore none of the three requirements described by Lord Diplock in Wentworth Securities Ltd v Jones (at 105) is satisfied in this case. No clear or obvious purpose of s 23(1) is established which is inconsistent with the ordinary meaning of its text; it cannot be said that the Parliament through inadvertence overlooked the circumstance of remarriage which had to be dealt with if any such purpose was to be achieved; and construing the provision as if it included the additional word proposed does not achieve the purpose contended for.

26 Another piece of extrinsic evidence upon which the appellant relied was a speech made in the course of a Second Reading debate in which Mr Hills, then Leader of the Opposition (whose views were submitted to be relevant because the Bill was a measure with bipartisan support) supported the Bill by drawing attention to the invaluable assistance that many members received from their wives in carrying out their duties. Even if it were permissible to take into account a speech by the Leader of the Opposition, there is no trace in the wording of the Act of a requirement that a spouse have been helpful to the member before becoming entitled to the pension. The criteria that Parliament adopted for entitlement to a pension are dependent solely upon whether the person had a particular status (of being a spouse or de facto partner) at the time of the member's death, and whether that status was acquired after the former member became entitled to the pension.

27 It follows that I agree with the conclusion of the primary judge as to the construction of s 23(1) and its application to the appellant. The provision is not ambiguous. Its ordinary meaning is not absurd or unreasonable and recourse to extrinsic material does not suggest that through inadvertence or oversight it does not reflect the Parliament's intention. In reality, the appellant's argument seeks to rely upon a statement in the Committee of Inquiry's Report concerning the effect of the relevant Victorian provision as a statement of what the exception in s 23(1) was intended to mean. In this case that involves an impermissible use of the extrinsic material to displace the clear words of the statute.

28 The appeal should be dismissed with costs.

**********

Decision last updated: 03 August 2012