ROMANO -v- REGISTRAR OF BIRTHS, DEATHS AND MARRIAGES [2026] WASC 191

[2026] WASC 191 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : ROMANO -v- REGISTRAR OF BIRTHS, DEATHS AND MARRIAGES [2026] WASC 191 CORAM : SEAWARD J HEARD : 25 AUGUST 2025 DELIVERED : 18 MAY 2026 PUBLISHED : 18 MAY 2026 FILE NO/S : GDA 10 of 2024 BETWEEN : DIANNA CONCETTA ROMANO First Appellant ANGELA ROSARIA ROMANO Second Appellant CONCETTA ROMANO Third Appellant AND REGISTRAR OF BIRTHS, DEATHS AND MARRIAGES First Respondent KAREN DENISE MALPUSS Second Respondent Catchwords: Appeal on a question of law - Application for leave to appeal decision of State Administrative Tribunal - Whether a de facto relationship exists - Births, Deaths -- 1 of 62 -- [2026] WASC 191 Page 2 and Marriages Registration Act 1998 (WA) - Whether there was a denial of procedural fairness - Whether there was a failure to minimise costs - Whether there was a failure to provide reasons - Whether there was a misapplication of evidence, contradictory findings and speculative conclusions Legislation: Births, Deaths and Marriages Registration Act 1998 (WA) Interpretation Act 1984 (WA) State Administrative Tribunal Act 2004 (WA) Result: Leave to appeal refused Category: B Representation: Counsel: First Appellant : Mr P F Chambers Second Appellant : Mr P F Chambers Third Appellant : Mr P F Chambers First Respondent : Ms I Inkster Second Respondent : No appearance Solicitors: First Appellant : Mountains Lawyers Pty Ltd Second Appellant : Mountains Lawyers Pty Ltd Third Appellant : Mountains Lawyers Pty Ltd First Respondent : State Solicitor's Office Second Respondent : In person Case(s) referred to in decision(s): Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 Beba Enterprises Pty Ltd v Elle Pty Ltd [2014] WASC 141 Britt v Office of the State Coroner [2022] WASCA 75 Chang v Legal Professional Complaints Committee [No 2] [2020] WASCA 208; (2020) 56 WAR 263 City of Swan v LWP Property Group Pty Ltd [2013] WASCA 90 -- 2 of 62 -- [2026] WASC 191 Page 3 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Commissioner of Consumer Protection v Carey [2014] WASCA 7 G v O [2022] WASCA 23 Greenslade v Hiew [2022] WASCA 47 H v P [2011] WASCA 78 Hart v Cooper [2023] WASC 132 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Knell v QAV Pty Ltd [2020] WASCA 23 McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 Medical Board of Australia v Arunkalaivanan [2023] WASCA 117 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83 Papamihail v Legal Profession Complaints Committee [2023] WASCA 183 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 Player v Avery [2022] WASCA 147 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Romano v Registrar of Births, Deaths and Marriages [2024] WASAT 133 Sharon Property Pty Ltd v The Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2022] WASC 332 Silkchime Pty Ltd v Valuer-General [2023] WASCA 114 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 SZULC v Commissioner of Soil and Land Conservation [2019] WASCA 41 -- 3 of 62 -- [2026] WASC 191 Page 4 Table of Contents Introduction ...................................................................................................................................... 5 Factual background .......................................................................................................................... 5 The Tribunal's Decision.................................................................................................................... 6 Legal principles - decision-making framework ................................................................................ 8 The BDM Act ............................................................................................................................... 9 Meaning of the terms 'de facto partner' and 'de facto relationship' ............................................ 10 Review of decisions of the Registrar.......................................................................................... 14 Legal principles - appeals from the Tribunal ................................................................................. 14 Grounds of appeal .......................................................................................................................... 15 Ground 1: Error of law resulted from the failure to differentiate the concepts of 'living together' and 'residing together' ..................................................................................................................... 16 Ground 2: Denial of Procedural Fairness ...................................................................................... 19 Ground 4: Ignoring Tribunal Directions........................................................................................ 22 Overview of the appellants' case ................................................................................................ 22 Orders made by the Tribunal ...................................................................................................... 23 Legal principles .......................................................................................................................... 27 Conclusion in relation to ground 4 ............................................................................................. 28 Ground 5: Failure to Minimise Costs ............................................................................................ 29 Grounds 7 and 8 - Failure to provide reasons and overlooking submissions ................................. 34 Ground 7: Failure to Provide Reasons ...................................................................................... 37 Ground 8: Overlooking Submissions ........................................................................................ 43 Grounds 3, 6 and 9 - Misapplication of evidence, contradictory findings and speculative conclusions ..................................................................................................................................... 46 Ground 3: Misapplication of evidence ...................................................................................... 48 Ground 6: Contradictory findings ............................................................................................. 49 Ground 9: Speculative conclusions ........................................................................................... 50 Conclusions ................................................................................................................................ 51 Outcome ................................................................................................................................. 51 Mistruths/credit ...................................................................................................................... 52 Inconsistencies ....................................................................................................................... 56 Speculation ............................................................................................................................. 58 Inadequate reasons ................................................................................................................. 60 Ground 10: Misinterpretation of relationship evidence ................................................................. 61 Appellants' application to adduce further evidence ........................................................................ 61 Conclusion ...................................................................................................................................... 62 -- 4 of 62 -- [2026] WASC 191 SEAWARD J Page 5 SEAWARD J: Introduction 1 The appellants seek leave to appeal the decision of the State Administrative Tribunal made on 4 November 2024, to affirm the decision of the Registrar of Births, Deaths and Marriages (Registrar) made on 3 August 2023 to record Karen Malpuss as the de facto partner of the late Luigi Antonio Romano at the time of his death on the register of registrable events. 2 The appellants include Dianna Romano and Angela Romano, who are Luigi's daughters, as well as Concetta Romano who is Luigi's mother. 3 For ease of reference, I will adopt the procedure followed in the Tribunal and refer to the individual parties by their first names. No disrespect is intended in doing so. 4 For the reasons which follow, I do not grant the appellants leave to appeal and I will dismiss the appeal. Factual background 5 The following facts were not in dispute. 6 Luigi died on 13 February 2022. 7 On 22 March 2022, the Registrar issued Luigi's death certificate. That original death certificate did not list Karen as the de facto partner of Luigi. On 14 February 2023, Karen applied to the Registrar to correct Luigi's death certificate so as to list her as Luigi's de facto partner. 8 On 3 August 2023, the Registrar granted Karen's application (Registrar's Decision). 9 On 12 October 2023, the appellants applied to the Tribunal pursuant to s 67 of the Births, Deaths and Marriages Registration Act 1998 (WA) (BDM Act) for a review of the Registrar's Decision. 10 The review was heard in the Tribunal on 17 July 2024 before Member Oldfield, at which time the Tribunal received a combined hearing book and medical report handed up by the appellants concerning chronic kidney disease. Oral evidence was also given by Concetta, Karen, Mr Raimondo Romano (Luigi's brother), Mr Raffaele -- 5 of 62 -- [2026] WASC 191 SEAWARD J Page 6 Gatto (Karen's brother-in-law) and Mr Daniel Malpuss (Karen's son). The combined hearing book also included statutory declarations and statements by other individuals who were not called to give oral evidence or for cross-examination. 11 At the review hearing, the Registrar's role was limited to presenting her knowledge of the relevant issues, facts and contentions, and placing relevant documents before the Tribunal. 12 At the conclusion of the hearing on 17 July 2024, the matter was adjourned to a further directions hearing to give both parties the opportunity to lodge further documents. 13 Between August and September 2024, Karen lodged additional documents including Luigi's medical records from Fresenius Kidney Care Australia and Osborne Park Hospital; various financial records; photographs of Luigi and Karen; and copies of text messages from Luigi's phone. No additional documents were lodged by the appellants. The Tribunal's Decision 14 On 4 November 2024, the Tribunal dismissed the appellant's application for review and delivered ex tempore reasons. Written reasons were then published on 2 December 2024.1 15 For present purposes it is only necessary to provide an overview of the Tribunal Reasons. Further aspects of the Tribunal Reasons will be detailed when considering each individual ground of appeal. 16 The member commenced by identifying that the single issue for her to consider was the correct and preferable decision as to whether or not Karen was the de facto spouse of Luigi as at the date of his death. 17 The member then outlined that the relevant legal provisions of the BDM Act, the Interpretation Act 1984 (WA) (Interpretation Act) and the State Administrative Tribunal Act 2004 (WA) (SAT Act) were contained in the Statement of Issues, Facts and Contentions lodged by the Registrar. These principles were not in dispute, and the member was satisfied that:2 (a) The Tribunal has jurisdiction to hear and determine this matter. 1 Romano v Registrar of Births, Deaths and Marriages [2024] WASAT 133 (Tribunal Reasons). 2 Tribunal Reasons [5]. -- 6 of 62 -- [2026] WASC 191 SEAWARD J Page 7 (b) The issue is not whether there was any error by the Registrar but what is the correct and preferable decision based on the information available to the Tribunal at the time of the review. (c) The question of whether or not Luigi and Karen were de facto partners was to be determined by reference to the definition of a de facto relationship contained in s 13A of the Interpretation Act. (d) The factors contained in s 13A do not prescribe the limits of the Tribunal's discretion and other factors which are relevant to the objectives of the Tribunal and its purpose in determining the correct and preferable decision may be taken into account. 18 The member made the following further observation regarding the relevant legal principles:3 The approach in determining the existence of a de facto relationship was outlined in the parties' oral and written submissions. There was no disagreement and I do not propose to restate those principles today, save for one aspect. Much of the parties' evidence related to the living arrangements of Karen and Luigi. It was noted in the WA Court of Appeal decision of Britt v Office of the State Coroner and the WA Supreme Court decision of Hart v Cooper, that s 13A differentiates between living together and residing together. This means persons might 'live together' or have a shared life together without physically 'residing together'. (citations omitted) 19 The member then went on to make some general observations regarding the evidence given by the witnesses, including the written and oral evidence.4 20 The member referred to the appellants' contention that Karen had failed to obtain documents from St John Ambulance, despite saying she would do so, and whether as a consequence of that failure the Tribunal should draw an adverse inference against Karen in accordance with the decision in Jones v Dunkel.5 The member concluded that she should not.6 21 The member then considered each of the indicia of a de facto relationship referred to in s 13A of the Interpretation Act and assessed the relevant evidence relating to each factor. By way of summary, the member found that Luigi and Karen: 3 Tribunal Reasons [6]. 4 Tribunal Reasons [7]. 5 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. 6 Tribunal Reasons [9] - [14]. -- 7 of 62 -- [2026] WASC 191 SEAWARD J Page 8 (a) had a relationship in some form or other since 2010;7 (b) lived together in Karen's residence in Alkimos full time from at least 2016 until Luigi's death in 2022;8 (c) were in a sexual relationship;9 (d) contributed financially to each other's lives, albeit to an unknown extent;10 (e) owned their own properties, which they acquired independently of each other, but that they jointly used these properties;11 (f) exhibited a commitment to a shared life since at least 2016;12 (g) provided care and support to Karen's children from her former relationship;13 and (h) presented themselves and were seen as a committed couple.14 22 The member then proceeded to consider a number of other factors raised by the appellants. These included that Karen did not take adequate care of Luigi at the time of his death, including not calling an ambulance quickly enough,15 and Karen not taking responsibility for Luigi's funeral.16 23 The member concluded that based on all the material before the Tribunal, the correct and preferable decision was that Karen and Luigi were in a de facto relationship at the time of Luigi's death, and affirmed the decision of the Registrar.17 Legal principles - decision-making framework 24 Prior to outlining the grounds of appeal, it is useful to provide an overview of the legal principles governing the decision-making powers of the Registrar and the Tribunal. 7 Tribunal Reasons [25]. 8 Tribunal Reasons [34], [39]. 9 Tribunal Reasons [43]. 10 Tribunal Reasons [44], [48]. 11 Tribunal Reasons [51] - [53]. 12 Tribunal Reasons [61]. 13 Tribunal Reasons [62] - [64]. 14 Tribunal Reasons [68]. 15 Tribunal Reasons [70] - [73]. 16 Tribunal Reasons [74] - [77]. 17 Tribunal Reasons [78]. -- 8 of 62 -- [2026] WASC 191 SEAWARD J Page 9 The BDM Act 25 The activities of the Registrar are governed by the BDM Act. 26 The BDM Act establishes the statutory office of the Registrar, whose general functions are to establish and maintain the registers necessary for the purposes of BDM Act; to administer the registration system established by the BDM Act; and to ensure that the BDM Act is administered in the way best calculated to achieve its objects.18 27 The objects of the BDM Act are outlined in s 3 and relevantly include:19 (a) the registration of births, deaths, marriages, changes of name, changes of registration of sex and gender and parentage change information in Western Australia; (b) the keeping of registers for recording and preserving information about births, deaths, marriages, changes of name and parentage changes in perpetuity; 28 The Registrar is required to maintain a register or registers of registrable events (the Register).20 29 A registrable event includes both a marriage and a death.21 However, unlike a marriage, a de facto relationship is not a registrable event. 30 If a person dies in Western Australia, the death is to be registered in accordance with the BDM Act.22 In this regard, s 49(2) of the BDM Act provides: (2) The Register - (a) must contain the particulars of each registrable event required under this Act, or any other written law, to be included in the Register; and (b) may contain further information if its inclusion is considered appropriate by the Registrar. 31 Further, s 48(1) of the BDM Act provides that the Registrar is to register a death by making an entry about the death in the Register 18 BDM Act, s 5, s 6. 19 BDM Act, s 3(a), s 3(b). 20 BDM Act, s 49(1). 21 BDM Act, s 4 (definition of registrable event). 22 BDM Act, s 40(1). -- 9 of 62 -- [2026] WASC 191 SEAWARD J Page 10 including such particulars as the Registrar considers appropriate to register the death. 32 The term 'particulars' is not defined in the BDM Act, and no further details about the particulars regarding a death are contained in the BDM Act or prescribed in any subsidiary legislation. 33 Accordingly, it falls to the Registrar to determine the appropriate particulars or information to record in the Register for a death occurring in Western Australia, and it is open for the Registrar to consider it appropriate to record the de facto partner of a deceased person as a 'particular' of a death pursuant to s 49(2)(a) of the BDM Act or 'further information' pursuant to s 49(2)(b) of the BDM Act in the Register. 34 The Registrar may conduct an inquiry to find out, relevantly, the particulars of a registrable event and whether the particulars of a particular registrable event have been recorded, or correctly recorded, in the Register.23 35 Section 51 of the BDM Act confers a statutory discretion on the Registrar to correct the Register in certain circumstances including, relevantly, to reflect the finding of an inquiry by the Registrar and to bring the Register into conformity with 'the most reliable information available to the Registrar of the registrable event'.24 36 The Registrar may also add additional registrable information to an entry in the Register if there is sufficient evidence of the matters to be recorded.25 37 The BDM Act makes provision for the Registrar to issue a certificate certifying the particulars contained in an entry in the Register.26 Meaning of the terms 'de facto partner' and 'de facto relationship' 38 The terms 'de facto' or 'de facto relationship' are not defined in the BDM Act. A de facto relationship is not a relationship recognised at common law, and therefore no criteria or indicia for the identification of a de facto relationship have been developed by the common law.27 23 BDM Act, s 50(1). 24 BDM Act, s 51(1). 25 BDM Act, s 52. 26 BDM Act, s 57(1)(a). 27 Riethmuller G and Smith R, Family Law (7th ed, 2022) 242. -- 10 of 62 -- [2026] WASC 191 SEAWARD J Page 11 39 However, the terms 'de facto partner' and 'de facto relationship' are defined in s 13A of the Interpretation Act as follows: (1) A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage- like relationship. (2) The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential - (a) the length of the relationship between them; (b) whether the 2 persons have resided together; (c) the nature and extent of common residence; (d) whether there is, or has been, a sexual relationship between them; (e) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (f) the ownership, use and acquisition of their property (including property they own individually); (g) the degree of mutual commitment by them to a shared life; (h) whether they care for and support children; (i) the reputation, and public aspects, of the relationship between them. (3) It does not matter whether - (a) the persons are different sexes or the same sex; or (b) either of the persons is legally married to someone else or in another de facto relationship. (4) A reference in a written law to a de facto partner shall be construed as a reference to a person who lives, or where the context requires, has lived, in a de facto relationship. (5) The de facto partner of a person (the first person) is the person who lives, or lived, in the de facto relationship with the first person. -- 11 of 62 -- [2026] WASC 191 SEAWARD J Page 12 40 The application of this definition was considered by the court of appeal in the decision of Britt v Office of the State Coroner,28 which was an appeal arising out of a dispute as to who should have the conduct of the funeral of the deceased. A central question in that case was whether the second defendant was the deceased's de facto partner for a period of two years prior to his death. The two-year temporal requirement in that case arose under the requirements of the Administration Act 1903 (WA), and is not applicable to the present case. 41 After having regard to the definition of the term 'de facto relationship' in s 13A of the Interpretation Act, Mitchell JA set out the principles to be applied by the court when determining whether, at the relevant time, the respondent and the deceased in that case lived as de facto partners:29 This court has considered the operation of this definition, in the context of family law proceedings, in its two decisions in G v O. The following general principles may be derived from the discussion in those cases: 1. To determine whether a relationship is 'marriage-like' requires an overall assessment of the facts and the relevant elements of the relationship. 2. The concept of a marriage-like relationship involves a consensual union which is intended by the parties to endure. In the case of a marriage, the common intention to have an enduring relationship is manifested by a formal declaration or vow. In the case of a 'marriage-like' relationship, the intention need not be, and will not usually be, formally declared, but may be otherwise manifested in the words and conduct of the parties to the relationship. 3. It is the common intention of the parties as to what their relationship is to be, and to involve, and as to their respective roles and responsibilities, that primarily determines the nature of that relationship. The parties' common intention may be expressed, or it may be implied from their conduct and communications in all their circumstances. 4. The text of s 13A indicates that there is a difference between persons living together and residing together. Section 13A recognises that it is possible for two persons to 'live together' without ever having 'resided together', so that the former concept is broader than the latter. The former concept would appear to 28 Britt v Office of the State Coroner [2022] WASCA 75. 29 Britt v Office of the State Coroner [2022] WASCA 75 [73]. -- 12 of 62 -- [2026] WASC 191 SEAWARD J Page 13 encompass two people, who do not necessarily reside together, sharing their lives. (citations omitted) 42 The definition in the Interpretation Act is a definition which applies to a reference in a written law to a de facto relationship. In the present case, there is no reference to the term 'de facto' in the BDM Act. However, the parties and the Tribunal proceeded on the basis that this definition provided a suitable guide as to the meaning of the term. I have also proceeded on that basis. 43 As it is the parties' common intention which is critical, a subjective belief or intention held by one party as to whether their relationship is 'marriage-like' is not relevant. Likewise, an intention on the part of one party to form a consensual union which will endure will not suffice to characterise a relationship as 'marriage-like' any more than a wish on the part of one party to a relationship to get married brings about a marriage.30 44 The determination of the question of whether the parties were in a 'marriage-like' relationship, having regard to the factors in s 13A of the Interpretation Act, has been said to involve elements of fact, degree and value judgment, and draws upon a judge's experience and familiarity with the nature of the subject matter.31 45 The question of whether a person was living as a de facto partner of a deceased person, and was therefore in a de facto relationship with that person, at that particular point in time, will depend on the court's overall assessment of the factors and relevant elements of the relationship. That assessment will not be confined to the factors and elements of the relationship that existed only at the precise moment immediately prior to the death of the deceased. Instead, as the various non-exhaustive 'indicators' identified in s 13A(2) of the Interpretation Act contemplate, the assessment will involve an examination of the whole period of the relationship.32 30 G v O [2022] WASCA 23 [121]. 31 G v O [2022] WASCA 23 [102]; H v P [2011] WASCA 78 [45]. 32 Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12 [42]. -- 13 of 62 -- [2026] WASC 191 SEAWARD J Page 14 Review of decisions of the Registrar 46 A person who is dissatisfied with a decision of the Registrar made in the performance or purported performance of a function under the BDM Act may apply to the Tribunal for a review of the decision.33 47 The purpose of the Tribunal's review jurisdiction is to produce the correct and preferable decision at the time of the decision upon the review.34 48 The review is to be by way of a hearing de novo, and it is not confined to the matters that were before the Registrar, but may involve the consideration of new material whether or not it existed at the time the decision was made.35 49 When exercising its review jurisdiction, the Tribunal has the functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.36 The Tribunal may affirm the decision under review; vary the decision; or set aside the decision and substitute its own decision; or send the matter back to the decision-maker for reconsideration.37 Legal principles - appeals from the Tribunal 50 Section 105 of the SAT Act governs appeals from decisions of the Tribunal. 51 An appeal can only be brought 'on a question of law' and leave of the court is required.38 In the present case, as the decision of the Tribunal was made by a non-judicial member, the appeal lies to the general division of this court.39 52 The concept of an appeal 'on a question of law' was explained by the court of appeal in Paridis v Settlement Agents Supervisory Board as follows:40 An appeal 'on a question of law' is narrower than an appeal that merely 'involves a question of law'. Where an appeal lies 'on a question of law' the subject matter of the appeal is the question or questions of law. If a 33 BDM Act, s 67. 34 SAT Act, s 27(2). 35 SAT Act, s 27(1). 36 SAT Act, s 29(1). 37 SAT Act, s 29(3). 38 SAT Act, s 105(1), s 105(2). 39 SAT Act, s 105(3)(b). 40 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53]. -- 14 of 62 -- [2026] WASC 191 SEAWARD J Page 15 question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law. A question of mixed law and fact is not a question of law within s 105(2). 53 The appeal is in the nature of judicial review proceedings, albeit that the question of law extends to jurisdictional and non-jurisdictional errors of law.41 The error of law must also be material.42 54 The power to grant leave to appeal is conferred in general terms, and should be granted if, in all the circumstances, it is in the interests of justice to do so. Factors which may be relevant to ascertaining the interests of justice include whether a question of law can be articulated; whether the Tribunal's decision is attended with sufficient doubt; the importance of the question of law; and whether a substantial injustice would be imposed if the Tribunal's decision remains uncorrected.43 55 Leave may be refused where, even if the appellant might establish the errors which it asserts, the decision of the court would have had no impact upon the rights and obligations of the parties, and there was no prospect that allowing the error to go uncorrected would impose substantial injustice.44 56 When dealing with an appeal, the court may (a) affirm, vary, or set aside the decision of the Tribunal; or (b) make any decision that the Tribunal could have made in the proceeding; or (c) send the matter back to the Tribunal for reconsideration.45 Grounds of appeal 57 The appellants' Amended Appeal Notice specifies the following 10 grounds of appeal: 1. Error of Law in Interpretation: - The Tribunal erred in law by failing to differentiate between 'living together' and 'residing together' as established in Britt v Office of the State Coroner [2022] WASCA 75 and Hart v Cooper [2023] WASC 132, leading to a misapplication of legal principles. 41 Chang v Legal Professional Complaints Committee [No 2] [2020] WASCA 208; (2020) 56 WAR 263 [232]. 42 Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83 [129] - [130]. 43 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [17]; SZULC v Commissioner of Soil and Land Conservation [2019] WASCA 41 [41] and the authorities cited therein. 44 City of Swan v LWP Property Group Pty Ltd [2013] WASCA 90 [25]; Beba Enterprises Pty Ltd v Elle Pty Ltd [2014] WASC 141 [29] and the authorities cited therein. 45 SAT Act, s 105(9). -- 15 of 62 -- [2026] WASC 191 SEAWARD J Page 16 2. Denial of Procedural Fairness: - The Tribunal denied procedural fairness by failing to specify the interests affecting witness independence, thereby impacting the weight of evidence considered. 3. Misapplication of Evidence: - The Tribunal misdirected itself by not properly weighing the inconsistencies and lies under oath by the second respondent and her son, leading to an erroneous conclusion. 4. Ignoring Tribunal Directions: - The Tribunal ignored its own directions regarding the submission of further evidence, affecting the fairness of the proceedings. 5. Failure to Minimise Costs: - The Tribunal failed to adhere to the statutory objective of minimising costs by dismissing online reports from esteemed medical bodies, contrary to section 9 of the State Administrative Tribunal Act 2004. 6. Contradictory Findings: - The Tribunal made contradictory findings regarding the evidence of the second respondent, leading to an unreasonable conclusion. 7. Failure to Provide Reasons: - The Tribunal failed to provide adequate reasons for not applying the rule in Jones v Dunkel (1959) 101 CLR 298, despite submissions addressing its appropriateness. 8. Overlooking Submissions: - The Tribunal overlooked the applicants' submissions regarding inconsistencies in evidence, leading to an error of law. 9. Speculative Conclusions: - The Tribunal engaged in speculation regarding the second respondent's evidence, affecting the credibility and weight of the evidence. 10. Misinterpretation of Relationship Evidence: - The Tribunal misinterpreted evidence regarding the nature of the relationship between the second respondent and the deceased, leading to an erroneous conclusion. 58 I have considered each of these grounds of appeal in turn. Ground 1: Error of law resulted from the failure to differentiate the concepts of 'living together' and 'residing together' 59 In ground 1, the appellants assert that the Tribunal erred in law by failing to properly differentiate between the concepts of 'living together' and 'residing together' when considering whether Karen and Luigi were in a de facto relationship. In so doing, the appellants submit -- 16 of 62 -- [2026] WASC 191 SEAWARD J Page 17 that the Tribunal failed to properly apply the legal principles outlined in Britt v Office of the State Coroner46 and Hart v Cooper.47 60 The appellants submit that in Britt v Office of the State Coroner, the court of appeal clarified that 'living together' and 'residing together' are distinct legal concepts. 'Living together' involves a degree of shared life, mutual support, and a relationship akin to marriage or partnership, whereas 'residing together' may simply refer to cohabitation at the same address without the necessary relational elements. Similarly, in Hart v Cooper, the court reaffirmed that the distinction is not merely semantic but substantive, requiring the decision-maker to consider the quality and nature of the relationship, not just physical cohabitation. 61 The appellants submitted that the Tribunal conflated the two concepts by treating evidence of co-residence as determinative of 'living together', without considering the qualitative aspects required by the authorities. The appellants identify a number of different paragraphs of the Tribunal Reasons in this regard.48 62 I do not accept that the Tribunal erred as alleged by the appellants. 63 The member correctly outlined the legal test for determining when a de facto relationship exists, and identified the need to distinguish between the concepts of 'residing together' and 'living together'. At par [6] of the Tribunal Reasons, the member observed as follows: … It was noted in the WA Court of Appeal decision of Britt v Office of the State Coroner and the WA Supreme Court decision of Hart v Cooper, that s 13A differentiates between living together and residing together. This means persons might 'live together' or have a shared life together without physically 'residing together'. 64 The member then went on to consider these two distinct concepts separately. 65 In par [26] to [39] of the Tribunal Reasons, under the headings 'Whether they resided together' and 'The nature and extent of common residence', the member considered the question of whether Luigi and Karen physically resided together in the same residence. The member considered the various residences owned by either Luigi or Karen, and 46 Britt v Office of the State Coroner [2022] WASCA 75. 47 Hart v Cooper [2023] WASC 132. 48 Appellant's submissions on appeal, dated 30 June 2025 [9]. -- 17 of 62 -- [2026] WASC 191 SEAWARD J Page 18 whether they resided in any together, and if so, when. The member concluded in par [34] by finding: I am satisfied the evidence established Luigi and Karen were living together at least from 2016 until his passing in 2022. If Luigi's stays away from Karen's home were only temporary and for work purposes, that would not necessarily prevent a conclusion they were living together prior to 2016, but the evidence is insufficient for me to form a conclusion as to when that arrangement commenced. 66 The member then went on in other parts of the Tribunal Reasons to consider matters concerned with whether Luigi and Karen shared a life together, that is, whether they 'lived together'. For example, the Tribunal addressed the indicia of the nature and extent of Luigi and Karen's common residence;49 the degree of financial dependence or interdependence between Luigi and Karen;50 Luigi and Karen's degree of mutual commitment to a shared life;51 the extent of any care for and support of children;52 and the reputation and public aspects of their relationship.53 67 The separate treatment of the two concepts in the Tribunal Reasons is consistent with the correct legal principles being applied by the member. 68 The appellant submits that the use of the words 'living together' in par [34] reveals that the member conflated the concepts of 'residing together' and 'living together'. I do not accept this submission. 69 The Tribunal Reasons must be read fairly as a whole, not over- zealously, and are not to be subjected to a minute analysis with 'an eye keenly attuned to the perception of error'.54 When this is done, I consider the Tribunal Reasons reveal that the member understood the difference between the two concepts. In particular, par [34] must be read in the context of the preceding paragraphs (all under the heading 'Whether they resided together') which addressed the question of physical residence and whether Luigi and Karen were physically residing together, and if so, from when. 49 Tribunal Reasons [35] - [39]. 50 Tribunal Reasons [44] - [50]. 51 Tribunal Reasons [55] - [61]. 52 Tribunal Reasons [62] - [64]. 53 Tribunal Reasons [65] - [68]. 54 McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609, 616 cited with approval in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272. -- 18 of 62 -- [2026] WASC 191 SEAWARD J Page 19 Ground 2: Denial of Procedural Fairness 70 In ground 2, the appellants assert that they were denied procedural fairness as the member failed to specify the interests said to affect the independence of the witnesses called by the appellants, thereby impacting the weight given to the evidence of those witnesses. 71 The appellants refer to par [7(c)] of the Tribunal Reasons. It is helpful to set out par [7] in full: Some brief observations regarding the evidence: (a) For the purposes of this oral decision, I am not going to summarise the whole of each witness' evidence but simply refer to those parts I consider most relevant. (b) I shall refer to a witness' affidavit or statutory declaration as their 'written evidence' and their spoken words in the hearing as their 'oral evidence'. (c) I have taken into account none of the witnesses were independent. All might be considered to have an interest in the outcome. (d) Two persons who provided written evidence were not called as witnesses. This meant they could not be asked questions by the parties or by myself. Their evidence must for that reason, be considered more cautiously. (e) In relation to several witnesses, there were some inconsistencies between the written evidence and the evidence provided on cross-examination. I do not consider these to have been sufficient to make an adverse credibility finding against any witness. I have made findings to resolve inconsistencies to the extent they are relevant to the issue to be determined. (emphasis added) 72 The appellants submit that the Tribunal proceeded to discount the evidence of Concetta and Raimondo on the basis of 'a perceived lack of undefined credibility and independence and preference of Daniel and Karen Malpuss, despite both being repeatedly caught giving false, or otherwise unsafe evidence, but failed to specify the interests or relationships said to give rise to that perception'. 73 The appellants therefore submit that they were denied the opportunity to address or clarify the alleged interests affecting the -- 19 of 62 -- [2026] WASC 191 SEAWARD J Page 20 witness's independence or credibility, or to call further evidence in response. 74 I do not accept that the appellants were denied procedural fairness in the manner alleged. 75 There is no dispute that the Tribunal was required to accord the appellants procedural fairness in the conduct of the review hearing. The rules of procedural fairness do not have immutably fixed content, but rather are flexible. The content of procedural fairness will vary according to the circumstances of the particular case. In this regard, procedural fairness is essentially practical; it is not an abstract concept, and the concern of the law is the avoidance of 'practical injustice'. What is necessary to avoid practical injustice will depend on the circumstances.55 However, the requirement of procedural fairness is a fair hearing, not a fair outcome.56 76 Whilst the rules of procedural fairness do not have immutably fixed content, one aspect of procedural fairness is that a person affected must have a 'reasonable opportunity' to be heard. In the context of being accorded a reasonable opportunity to be heard, a person affected by the decision is ordinarily entitled to have brought to their attention the critical issues or factors on which the decision is likely to turn and to be informed of the nature and content of adverse material that might be relied upon.57 77 What this will amount to practically in any one case will depend upon the statutory provisions and the facts of the case. However, as observed by the court of appeal in Papamihail v Legal Profession Complaints Committee:58 Procedural fairness does not require disclosure of every document that a decision-maker has received. Nor does it normally require a decision- maker to disclose their thinking process, or proposed conclusions, or 55 Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 563 (Gibbs CJ), 583 - 585 (Mason J), 601 (Wilson J), 612 - 614 (Brennan J), 632 - 633 (Deane J); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ); Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 [82]. 56 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [25]. 57 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 590 - 591; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [32]; Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 [83]. 58 Papamihail v Legal Profession Complaints Committee [2023] WASCA 183 [201]. -- 20 of 62 -- [2026] WASC 191 SEAWARD J Page 21 invite a response to them before making a decision. It generally requires a decision-maker to disclose: (a) the substance of any adverse information or evidence which is credible, relevant and significant to the decision to be made that it has received from other sources (ie sources other than the affected party); and (b) any proposed adverse conclusions or recommendations which would not obviously be open on the known materials. (citations omitted) 78 In all the circumstances, the member was therefore not required to disclose her thinking process, or proposed conclusions, before inviting a response from the appellants. 79 Further, the relationships between each of the witnesses and the parties were known to the appellants. As was the status of the appellants and Karen as parties to the review proceedings. Accordingly, this was not a case where the member's conclusion at par [7(c)] that none of the witnesses were independent was 'an adverse conclusion which would not obviously be open on the known material'. To the contrary, the conclusion at par [7(c)] was an obviously open conclusion on the basis of the known information. 80 Finally, and significantly, I am not satisfied that the member discounted the evidence given by Concetta and/or Raimondo on the basis of 'a perceived lack of undefined credibility and independence' and/or preferred the evidence of Karen and Daniel for this reason. 81 The appellants have referred to a number of paragraphs of the Tribunal Reasons in support of this ground of appeal.59 It is not necessary to identify or detail each of these paragraphs in these reasons, and in any event many of those paragraphs need to be read in the broader context of the relevant section of the Tribunal Reasons, and the surrounding paragraphs. It is sufficient to observe that at no point in the Tribunal Reasons does the member discount any evidence given by the appellants or the witnesses called on their behalf, or prefer the evidence of Karen and the witnesses called on her behalf, for the reason of a lack of independence or adverse credibility findings. Rather, the member assesses and weighs the evidence given by the respective witnesses. To the extent the member goes on to prefer the evidence of 59 Appellant's submissions on appeal, dated 30 June 2025 [13]. -- 21 of 62 -- [2026] WASC 191 SEAWARD J Page 22 Karen or her witnesses, it is for reasons unrelated to matters of independence. Ground 4: Ignoring Tribunal Directions Overview of the appellants' case 82 The appellants assert that the Tribunal erred by ignoring its own directions regarding the submission of further evidence, thereby compromising the fairness of the proceedings in the Tribunal. 83 The appellants, purporting to cite SZBEL v Minister for Immigration and Indigenous Affairs (SZBEL)60 submit that it is a well-established principle that a tribunal is bound to follow its own procedural directions, unless there is a good reason to depart from them. Further, the appellants, purporting to cite Re Refugee Review Tribunal; Ex parte Aala (Ex parte Aala),61 submit that adherence to procedural directions is fundamental to ensuring procedural fairness and the integrity of the decision-making process. 84 The appellants submit that the Tribunal ignored its own directions regarding the submission of further evidence following the hearing on 17 July 2024. 85 The appellants submit that the Tribunal issued directions specifying the process and timeframe for the submission of further evidence by the parties. However, the Tribunal subsequently failed to comply with its own directions by: 33. … referring to and relying upon statements made by the second respondent uncorroborated by supporting evidence, despite saying such evidence was either in her possession or that she would obtain and provide, to the point that the appellants withdrew a documentary summons application against St John's Ambulance, due to the second respondent saying she was getting that evidence and then failed to provide it. 34. Despite this the SAT Member referred to and relied upon the second respondent's and her son's unsubstantiated oral evidence concerning her relationship with the deceased, his lack of pain, or taking medication on the day he died and when she called the ambulance callouts, despite that evidence being challenged and 60 See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [25]. 61 See Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [41]. -- 22 of 62 -- [2026] WASC 191 SEAWARD J Page 23 responded to by the second respondent as having been documented by her, when it simply had not. 86 Further, the appellants submit that the Tribunal did not provide any reasons for departing from its own directions, nor did it afford the parties an opportunity to address the consequences of this departure. Orders made by the Tribunal 87 In order to consider this ground of appeal, it is necessary to detail what occurred and what orders were made regarding the provision of further evidence, and the issuing of summonses. 88 At the conclusion of the hearing on 17 July 2024, following the completion of Karen's evidence, the Tribunal member moved to the question of closing submissions, and enquired of counsel for the appellants whether he had a preference for oral or written closing submissions. Counsel indicated a preference for written closing submissions, but suggested that Karen first be given an opportunity to supply documents that she had referred to in her evidence, but which were not in the book of documents before the Tribunal:62 I was going to suggest, and, of course, it's up to you, ma'am, but there has been reference to documents by Ms Malpuss that aren't in the casebook that she says are supportive of her position and we did invite her to find them at the lunch break. She has also referred now to the photograph, and you, ma'am, have suggested there may be text messages. I think it would be beneficial to allow Ms Malpuss the opportunity to provide those. If they support her position, then we can make submission on them as part of closing, but if they aren't available, at least she has had the opportunity. 89 The member accepted this suggestion, and there was then an exchange between the member and counsel for the appellants and Karen as to the potential scope of the documents.63 90 The member also asked counsel for the appellants whether they wished to lodge further documents. There was then an exchange between the member and counsel as to the possibility of a direction from the Tribunal for the production of ambulance and hospital records. The member indicated that if the appellant wished to obtain these 62 SAT ts, 17/07/2024, 91 - 92. 63 SAT ts, 17/07/2024, 92 - 93. -- 23 of 62 -- [2026] WASC 191 SEAWARD J Page 24 documents, then they would need to issue a summons for those documents through the executive officer of the Tribunal.64 91 The member then made the following two relevant orders:65 1. The final hearing is adjourned to a date and time to be fixed. 2. The matter is listed for a directions hearing at 10.00 am on 19 August 2024 at 565 Hay Street, Perth, Western Australia. The parties have leave to attend the directions hearing by telephone. 92 The member explained that the matter was being adjourned to a directions hearing to enable the parties to take steps to obtain any additional documents. The member explained that as the length of time that it would take for the parties to obtain the additional documents was unclear, she was adjourning the final hearing to a directions hearing, at which the parties could then update the Tribunal on their progress in obtaining the documents, and/or programme the final hearing.66 93 The matter then returned to the Tribunal on 9 August 2024 (not 19 August 2024) to consider the appellants' request for the issue of summonses that had by then been lodged with the Tribunal.67 94 In the course of doing so, the member first referred to a document lodged on 8 August 2024, by Karen. The document was not read into the transcript, but based on the exchanges between the member and the parties, it appears that this document detailed steps taken by Karen to obtain various records. The member asked counsel for the appellants whether this document changed anything from the appellants' perspective in relation to the proposed summonses. 95 Counsel for the appellants indicated that in relation to the St John Ambulance records:68 It does, ma'am. In terms of the subpoena that was lodged for the ambulance service, that can be done away with on the basis that the records are being obtained by Mrs Malpuss. 96 Counsel for the appellants then referred to an email from Fresenius Kidney Care, and indicated that he thought they had seen this 64 SAT ts, 17/07/2024, 93. 65 SAT Orders, 17/07/2024. 66 SAT ts, 17/07/2024, 94 - 99. 67 SAT ts, 09/08/2024, 2. 68 SAT ts, 09/08/2024, 3. -- 24 of 62 -- [2026] WASC 191 SEAWARD J Page 25 document before, and although it referred to dialysis training, it did not confirm who undertook that training.69 97 Counsel then referred to a document from Ray White Real Estate, and indicated:70 And as far as Ray White Real Estate is concerned, that's helpful. It only goes up to February of this year. We would want to see more updated records. We understand the property has been rented out again. We just want to confirm who has rented it out, whether it's been Ray White or Mrs Malpuss. 98 There was then an exchange between the member and counsel for the appellants about the test for when a summons would be issued, and the member indicated that it was not entirely clear that there was a legitimate forensic purpose for the summonses that the appellants wished to issue.71 99 Counsel for the appellants then proceeded to explain the claimed legitimate forensic purpose of the summons to Ray White Real Estate. The ultimate conclusion was that Karen agreed to provide copies of the Ray White ownership statements to the appellants.72 100 The member then turned to the proposed summons to Fresenius Kidney Care, and noted that the summons appeared to go further than the question of dialysis training. The ultimate result of the exchanges was that the member indicated that a summons to Fresenius Kidney Care would be issued in relation to documents pertaining to the services provided to Luigi, and any records of training given to Karen concerning home dialysis treatment.73 101 The member next considered the proposed summonses to Joondalup Health Campus and Sir Charles Gairdner Hospital for Luigi's medical records. After Karen indicated that she had put in a request for those records, counsel for the appellants indicated that it was not necessary for the appellants to also summons the records.74 69 SAT ts, 09/08/2024, 3. 70 SAT ts, 09/08/2024, 4. 71 SAT ts, 09/08/2024, 4. 72 SAT ts, 09/08/2024, 4 - 9. 73 SAT ts, 09/08/2024, 9 - 11. 74 SAT ts, 09/08/2024, 11 - 12. -- 25 of 62 -- [2026] WASC 191 SEAWARD J Page 26 102 The member clarified that the appellants did not want to proceed with the summons, and the following exchange then took place:75 OLDFIELD MS: Okay. So does that mean you're not wanting to proceed with that summons either at this time? CHAMBERS, MR: Yes, ma'am. As long as we can have some sort of certainty of documents being provided by Mrs Malpuss once they're made available to her by St John's Ambulance and the hospitals. OLDFIELD MS: So, Ms Malpuss, once you receive the documents from all of these hospitals, I assume - - - MALPUSS, MS: Yes. OLDFIELD MS: that you're planning to lodge them with the tribunal? MALPUSS, MS: Absolutely. OLDFIELD MS: Okay. Can you please also make sure that you provide a copy to Mountains Lawyers. MALPUSS, MS: Yes. OLDFIELD MS: Because, of course, you understand that anything you lodge with the tribunal needs to be given to Mountains Lawyers as well. MALPUSS, MS: I do now. 103 At the conclusion of the directions hearing, the only summons that was to issue was the summons to Fresenius Kidney Care.76 104 The member then considered whether the directions hearing listed for 19 August 2024 should still take place, or whether more time was needed to obtain the necessary documents. The member then indicated that the directions hearing listed for 19 August 2024 would be vacated, and would be relisted for either 10 or 11 September 2024, with the precise date and time to be fixed in orders to be sent to the parties.77 Orders were ultimately made listing the matter for a directions hearing on 11 September 2024.78 105 On 11 September 2024, the member made orders programming the filing of submissions on behalf of the parties, and listing the matter 75 SAT ts, 09/08/2024, 12 - 13. 76 SAT ts, 09/08/2024, 15. 77 SAT ts, 09/08/2024, 13 - 15. 78 SAT orders, 09/08/2024. -- 26 of 62 -- [2026] WASC 191 SEAWARD J Page 27 for a final hearing on 4 November 2024, for the purpose of delivering oral reasons for decision.79 106 From the documents before the court, it appears that no further hearings took place, and instead the parties filed written submissions in October 2024, before delivery of the oral reasons for decision on 4 November 2024. 107 The list of documents from the Tribunal indicate that a bundle of documents from Fresenius Medical Care were lodged in answer to a summons;80 a bundle of photographs of Luigi and Karen and others were lodged;81 and a bundle of documents from Osborne Park Hospital were also lodged.82 Legal principles 108 The authorities cited by the appellants in support of this ground are not authority for the specific propositions as submitted by the appellants in [83] above, and do not expressly address the issue of the failure of a decision-maker to follow a stated procedure. 109 The cited reference to SZBEL is authority for the proposition that where a decision-maker owes a duty to accord a party procedural fairness, what is required by procedural fairness is a fair hearing, and not a fair outcome.83 110 The cited reference to Ex parte Aala, is authority for the proposition that where a decision-maker owes a duty to accord procedural fairness, and does not, that decision-maker will have exceeded jurisdiction in the sense necessary to attract the writ of prohibition under s 75(v) of the Commonwealth Constitution.84 111 However, the decision of Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (Ex Parte Lam)85 is relevant to this ground of appeal and is an example of a claim for a denial of procedural fairness on the basis of an alleged failure of the decision-maker to follow a stated procedure. 79 SAT orders, 11/09/2024. 80 Folios 41 and 49. 81 Folios 42 - 47. 82 Folio 51. 83 See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [25]. 84 See Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [41]. 85 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1. -- 27 of 62 -- [2026] WASC 191 SEAWARD J Page 28 112 In Ex parte Lam, the applicant was notified that consideration was being given by the Minister to cancelling his visa, and Mr Lam was invited to make submissions in response. In those submissions, the applicant submitted that he had two children who were Australian citizens whose best interests would be damaged if his visa was cancelled. The applicant annexed a letter from his children's carer. A departmental officer then wrote to the applicant requesting the contact details of the carer, and the letter stated that the department wished to contact the carer to assess the impact that cancellation would have on the children. The applicant provided the contact details, but no departmental officer ever contacted the carer. 113 The applicant's case was that there will be a denial of procedural fairness if an administrative decision-maker states to a person affected an intention to take a certain procedural step, and fails to do so without warning the person affected of the change of intention.86 114 All members of the court held there had been no denial of procedural fairness because the applicant could not demonstrate that any unfairness flowed from the failure of the departmental officers to speak to the children's carer. In particular, the applicant did not rely, to his disadvantage, on the statement of the departmental officers, and he submitted all material and arguments to the Minister that he wanted to before the decision was made.87 115 Relevantly, Gleeson CJ held as follows:88 There are undoubtedly circumstances in which the failure of an administrative decision-maker to adhere to a statement of intention as to the procedure to be followed will result in unfairness and will justify judicial intervention to quash the decision; but for the present applicant to succeed it would be necessary to conclude that such a result will follow in all circumstances. That cannot be correct. Conclusion in relation to ground 4 116 In all the circumstances, I do not accept the Tribunal erred in the manner asserted by the appellants. 117 As revealed by the above summary of the facts, the orders made by the member on 17 July 2024 and 9 August 2024 provided the parties 86 Ex parte Lam [24] (Gleeson CJ). 87Ex parte Lam [25], [37] - [38] (Gleeson CJ); [105] - [106] (McHugh & Gummow JJ); [111] - [114] (Hayne J); [149] (Callinan J). 88 Ex parte Lam [25] (Gleeson CJ). -- 28 of 62 -- [2026] WASC 191 SEAWARD J Page 29 with the opportunity to file any further documents. The Tribunal Reasons indicate that the member then considered the oral evidence and the evidence as filed by the parties in reaching her conclusion that Luigi and Karen were in a de facto relationship. In considering that evidence, there was no failure by the member to comply with the procedural orders made on 17 July 2024 and 9 August 2024. 118 To the extent the appellants' submissions concern the member referring to and relying upon statements made by Karen and Daniel which the appellants submit were uncorroborated by supporting evidence (despite Karen indicating that she had supporting evidence), these are challenges to the fact-finding undertaken by the member, and do not reveal that the member failed to follow or adhere to the procedural directions or orders she had previously made. 119 To the extent the appellants' submissions refer to the fact that Karen never ultimately filed any records from St John Ambulance, again this does not indicate that the member failed to comply with the procedural orders or directions she had previously made. The question of the weight to be given to Karen's evidence, in light of the lack of any records from St John Ambulance, was a matter for the member. 120 I also observe that the question of the failure of Karen to file any documents from St John Ambulance is also the subject of ground 7, and I have considered this aspect of the submissions further when considering ground 7. Ground 5: Failure to Minimise Costs 121 By ground 5, the appellants assert that the Tribunal failed to adhere to the statutory objective of minimising costs, as required by s 9 of the SAT Act, by dismissing online reports from medical bodies without proper consideration. 122 Section 9 of the SAT Act outlines the main objectives of the Tribunal, which are: (a) to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and (b) to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and (c) to make appropriate use of the knowledge and experience of Tribunal members. -- 29 of 62 -- [2026] WASC 191 SEAWARD J Page 30 123 The appellants also refer to s 32(2) of the SAT Act, which provides that the Evidence Act 1906 (WA) does not apply to the Tribunal's proceedings, and the Tribunal is not bound by the rules of evidence, and is to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms. Section 32(4) of the SAT Act provides that the Tribunal may inform itself on any matters as it sees fit. 124 By way of factual context to the ground, during the review hearing the appellants referred to what has been described as an online medical report concerning chronic kidney disease. Counsel for the appellants cross-examined Karen by reference to this document in the context of whether Luigi suffered from erectile dysfunction.89 This report was then tendered and marked as exhibit 2.90 125 The Tribunal Reasons record the member's consideration of exhibit 2 and the appellants' submissions regarding it, as follows: The evidence and witnesses … 11 The applicants suggested I conclude the ambulance records were not filed because they contained information adverse to Karen's case. Specifically, they suggested I conclude the documents would have demonstrated the symptoms of peritonitis are such that Luigi would have been in agony in the hours before his passing and that Karen either left him to die in pain or was so indifferent to his condition that she was absent from the house until he was close to death or had already died. 12 The applicants called no expert evidence regarding Luigi's medical condition, symptoms or causes of his death. They tendered in evidence a report which appeared to have been downloaded from the internet, the heading of which referred to chronic kidney disease. None of the authors of that report were called to give evidence. Nor was there any evidence of Karen's activities on the day in question. 13 The evidence tendered by the applicants is insufficient for me to [be] satisfied on the balance of probabilities of the symptoms displayed by Luigi in the hours leading to his passing and the actions taken by Karen in relation to the same. … 89 SAT ts, 17/07/2024, 67 - 69. 90 SAT ts 17/07/2024, 69. -- 30 of 62 -- [2026] WASC 191 SEAWARD J Page 31 Whether there was a sexual relationship 40 Karen said she and Luigi shared a sexual relationship from the early days of their relationship until his passing. 41 Counsel for the applicants suggested this was implausible and tendered a report downloaded from the internet which stated the majority of men with chronic kidney disease experience erectile dysfunction.5 Karen did not dispute Luigi sometimes experienced this but maintained their relationship nevertheless remained sexual. 42 There were no submissions put to me as to what constitutes a 'sexual relationship' in the context of s13A. The material put to me by the applicants is insufficient to satisfy me that erectile dysfunction precludes the existence of a sexual relationship. 43 I accept Karen's evidence and am therefore satisfied there existed a sexual relationship between Karen and Luigi. Fn 5: The same report referenced in [12]. (footnote in the original) 126 The appellants also referred to the transcript of the review hearing held on 17 July 2024 at pages 82 and 83. The appellants submit that they also attempted to put a further internet medical report to Karen. The relevant part of the transcript is as follows:91 THE WITNESS: … That would have been at the time that he died, but not at the time you made this declaration?---Lui was in chronic pain. I'm talking chronic pain, for over two years, with ulcers. He would be at Charlie Gairdner's or Osborne Park, and they would want to give him pain relief. Lui wouldn't take pain relief. I don't think you realise how strong a man my partner was. No idea. Are you aware that peritonitis is an infection that can be treated, and a person doesn't have to die from it?---Unfortunately, when you don't - have one kidney and the other one is down to nine per cent, it usually goes kidney, liver, pancreas. Do you accept that the level of pain he was in that day was far greater than any pain he had had previously?---No. He was in chronic pain for 91 SAT ts, 17/07/2024, 82 - 83. -- 31 of 62 -- [2026] WASC 191 SEAWARD J Page 32 a very long time in Charlie Gairdner Hospital and even Osborne Park Hospital where he had to learn to try and walk again. Do you accept that peritonitis causes incredible, excruciating pain for somebody?---It's very hard to differ from ulcers. When I'm talking ulcers - - - OLDFIELD MS: Aren't we really speculating as to medical evidence which neither party has produced? CHAMBERS, MR: Well, with respect, Ma'am, if you hadn't asked me to telegraph what I was going to be asking Ms Malpuss, I would have been able to present medical evidence as a statement against interest. THE WITNESS: The coroner's report came that it was peritonitis. You should have the document there. OLDFIELD MS: So you were proposing to hand up another internet report? CHAMBERS, MR: Yes. OLDFIELD MS: I see. That's not particularly reliable evidence. Normally if there was going to be an issue as to medical diagnosis and symptoms and treatment and all that sort of thing you would call medical witnesses. I have - if you hand up an internet report, I've got no idea how reliable that is. CHAMBERS, MR: And you can take it on the basis of the weight that you'll give to it, but I can't hand it up now, because she's been telegraphed whether Mr Romano was in pain or not on the day he died. If she had said that he was in no pain, or the pain was comparable to the pain he was in prior to that day, then I would have been able to present a statement from an internet report that says that when people are suffering from peritonitis, they are in excruciating pain for 12 hours. 127 The appellants submit that the use of online reports from reputable medical bodies is consistent with the Tribunal's statutory objectives, particularly where such evidence is relevant, reliable and would avoid the need for more costly expert reports or oral evidence. 128 The appellants submit that the medical reports, including that which became exhibit 2, addressed, in particular, the pain that Luigi was in at the time leading up to his death and the unlikelihood that the relationship between Luigi and Karen had been sexual since (at least) the time when Luigi moved in with Karen. 129 The appellants submit that the Tribunal dismissed the reports without adequate reasons, and required the appellants to obtain further, -- 32 of 62 -- [2026] WASC 191 SEAWARD J Page 33 more costly evidence, contrary to the objective of minimising costs. Further, the appellants submit that the Tribunal's approach was inconsistent with the statutory mandate to conduct proceedings with as little formality and costs as possible, and to accept relevant material that is reliable, even if not in the form of traditional expert evidence. 130 I do not accept that the Tribunal erred as submitted by the appellants for the following three reasons. 131 First, this is not a case of the Tribunal refusing to accept the tender of material because, for example, of the application of the rules of evidence or a provision of the Evidence Act 1906 (WA). 132 Exhibit 2 was accepted into evidence by the member and marked as an exhibit. 133 Further, counsel for the appellants did not attempt to tender the second internet report referred to at pages 82 and 83 of the transcript of the review hearing. Rather, he asked Karen a series of questions about what occurred on Luigi's last day before he died, and Karen's evidence was that Luigi was experiencing pain before his death.92 134 Secondly, there is nothing in s 9 or s 32 of the SAT Act which requires a Tribunal member to accept uncritically the evidence given in a review hearing, whether that be documentary evidence that has been tendered, or oral evidence. It remains necessary for the Tribunal to have regard to all relevant evidence when considering the relevant issues arising in a review hearing, and to assess the probative value and weight to be given to that evidence. 135 The Tribunal Reasons reveal that the member had regard to exhibit 2 when considering whether Karen and Luigi had a sexual relationship; when considering Luigi's level of pain and symptoms; and when considering Karen's evidence. 136 In so doing, the Tribunal Reasons record that the member gave the report little weight because it did not address Luigi's actual medical condition, symptoms or causes of his death. Rather, it was a general medical report downloaded from the internet, and the authors were not called to give evidence. There was no suggestion by the appellants that the report addressed Luigi's actual symptoms at all. In these circumstances, the member concluded that the evidence tendered by the 92 SAT ts, 17/07/2024, 82 - 83. -- 33 of 62 -- [2026] WASC 191 SEAWARD J Page 34 appellants was insufficient for her to be satisfied as to the symptoms actually displayed by Luigi in the hours leading up to his death. 137 In addition, when considering the indicia of whether Luigi and Karen had a sexual relationship, the member had regard to the fact that exhibit 2 stated that the majority of men with chronic kidney disease experience erectile dysfunction. The member also observed that Karen's evidence was that Luigi sometimes experienced this symptom. However, ultimately the member accepted Karen's evidence that she and Luigi did have a sexual relationship.93 138 Nothing in this process of reasoning is prohibited by, or inconsistent, with s 9 or s 32 of the SAT Act. 139 Finally, I do not accept that the member either directly, or in adopting this line of reasoning, 'required the appellants to obtain further, more costly evidence, contrary to the objective of minimising costs' in s 9 of the SAT Act. 140 At no time did the member make any orders requiring the appellants obtain any further, or more costly evidence. At all times it remained a matter for the appellants as to what material they wished to put before the Tribunal to support their case. It then fell to the Tribunal to assess the probative value and weight to be given to that evidence. 141 The member's conclusions about exhibit 2 did no more than assess the probative value and weight to be given to that exhibit. The member's observations during the hearing about the second internet report, which the appellants' counsel did not seek to tender, were also merely observations about obvious and clear limitations on the probative value of a report from the internet which did not address Luigi personally. Grounds 7 and 8 - Failure to provide reasons and overlooking submissions 142 It is convenient to consider grounds 7 and 8 together, as each refer to inadequacies in the Tribunal Reasons, albeit they raise slightly different issues. 143 Before considering each ground, it is helpful to outline the legal principles concerning the requirement to give reasons, and when that may raise a question of law. 93 Tribunal Reasons [40] - [43]. -- 34 of 62 -- [2026] WASC 191 SEAWARD J Page 35 144 Section 77(1) of the SAT Act provides that the Tribunal is to give its reasons for a 'final decision'. A 'final decision' is a decision of the Tribunal that disposes of the matter raised in an application.94 There is no dispute that the decision made by the Tribunal on 4 November 2024 is a final decision for the purposes of s 77 of the SAT Act. 145 Section 77(2) goes on to address the content of the reasons, requiring the following: Reasons that the Tribunal gives for a final decision have to include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based. 146 In Sharon Property Pty Ltd v The Presiding Member of the Metro Inner-North Joint Development Assessment Panel,95 at [95] to [116], Solomon J provided an extensive and very helpful overview of the requirement for the Tribunal to give reasons, and the extent to which an allegation of an inadequacy to give reasons may allege an error of law. I respectfully agree with that overview. Relevantly, there are two ways in which the obligation to provide reasons may allege an error of law: (1) by alleging a failure to give reasons that adequately disclose the intellectual processes that have resulted in the decision; and (2) by alleging a failure to engage with or give consideration to the evidence and submissions advanced in the hearing, such that there is a failure to exercise jurisdiction, or a failure to accord procedural fairness, or both. 147 The second alleged error is actually an error about the fact-finding undertaken by the judicial officer, as opposed to adequate reasons, although it may be one that is revealed by the reasons. 148 The legal principles applicable when dealing with the adequacy of reasons are well-established, and were outlined by the court of appeal in Player v Avery96 as follows: 101 … In evaluating the adequacy of reasons for decision the critical question is whether the essential path of reasoning to the 94 SAT Act, s 3. 95 Sharon Property Pty Ltd v The Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2022] WASC 332. 96 Player v Avery [2022] WASCA 147. -- 35 of 62 -- [2026] WASC 191 SEAWARD J Page 36 impugned conclusion is disclosed in sufficient detail and with sufficient certainty to meet the twin objects that: (1) the litigant knows why he or she was unsuccessful; and (2) an appeal court may determine whether the decision involved appellable error. 102 As was stated in Browne v Browne: The principles relevant to an evaluation of the adequacy of reasons are well established and include the following: (1) Reasons for decision need not be lengthy or elaborate. (2) Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error. (3) It is certainly not necessary to refer to every submission advanced by a party. However, a tribunal or court must engage with the central element(s) of a losing party's case and explain why that case fails. Considering that party's submissions is an aspect of what procedural fairness requires. (4) In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's consideration. 103 As to the last point, the authorities accept that the content and detail of reasons will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision. … (citations omitted) 149 Also relevant to the present appeal are the following observations of Meagher JA in Beale v Government Insurance Office (NSW)97 (which were referred to by the court of appeal in Greenslade v Hiew98): [W]here certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or 97 Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 442. 98 Greenslade v Hiew [2022] WASCA 47. -- 36 of 62 -- [2026] WASC 191 SEAWARD J Page 37 failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to. 150 Ground 7 alleges an error of the first type, and challenges the member's reasons for not accepting that the rule in Jones v Dunkel99 applied in relation to the lack of records from St John Ambulance. 151 Ground 8 alleges an error of the second type, asserting that the member overlooked key submissions from the appellants regarding inconsistencies between the evidence given by Karen and her son Daniel. Ground 7: Failure to Provide Reasons 152 In ground 7, the appellants assert that the Tribunal erred in law by failing to provide adequate reasons for not applying the rule in Jones v Dunkel, notwithstanding that submissions were made specifically addressing its relevance and appropriateness. 153 The rule in Jones v Dunkel is a rule of judicial reasoning whereby two consequences may flow from the unexplained failure of a party to call a witness (or tender evidence) that the party might be expected to call. The rule was explained by Pritchard and Vaughan JJA in Knell v QAV Pty Ltd100 as follows: 96 Two consequences may flow from the unexplained failure of a party to call a witness who that party may be expected to call. First, the court may infer that the evidence of the absent witness would not assist the case of the party. Second, the court may draw an inference unfavourable to the party with greater confidence. In the latter case the inference must already be available on the evidence. Also, the uncalled witness must be one who appears to be in a position to cast light on the facts relied on as the ground for the inference. However, the rule in Jones v Dunkel does not permit an adverse inference that the uncalled evidence would have been positively damaging to the party. The absence of the witness cannot be used to make up any deficiency of evidence. 97 Accordingly, the rule in Jones v Dunkel is accepted to be an application of the maxim that evidence is to be weighed according to the proof which it was within the power of one side 99 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. 100 Knell v QAV Pty Ltd [2020] WASCA 23. -- 37 of 62 -- [2026] WASC 191 SEAWARD J Page 38 to have produced and in the power of the other to have contradicted. (citations and footnotes omitted, emphasis in original) 154 However, at all times the rule cannot be used to fill gaps in the evidence or convert conjecture and suspicion into an inference.101 155 In the appellants' written closing submissions before the Tribunal, the appellants' submitted that the rule applied such that the Tribunal should draw an adverse inference against Karen in relation to the following three matters: (a) the failure by Karen to provide photos of the relationship between her and Luigi; (b) the failure by Karen to provide the rings she claimed were given to her; and (c) the failure by Karen to provide evidence of telephone calls to St John Ambulance on the day that Luigi died. 156 The appellants submit that the Tribunal Reasons do not address these submissions, and nor do they explain why the rule in Jones v Dunkel was not applied, or why no adverse inference was drawn by the member. 157 I do not accept that the Tribunal has erred in the manner alleged. 158 Items (a) and (b) above can be dealt with together. At no point in the appellants' written closing submissions do the appellants submit that a Jones v Dunkel inference should be drawn in relation to these two matters. It therefore cannot be the case that the Tribunal Reasons are inadequate in this respect. 159 In any event, it is difficult to see how a Jones v Dunkel inference could be drawn in relation to the photographs, as photographs were lodged by Karen. Submissions could be made about what those photographs revealed, or did not reveal, but that is a different submission. 160 It is also difficult to see how a Jones v Dunkel inference could be drawn in relation to the failure by Karen to produce the rings. There was no dispute on the evidence that Concetta had provided Karen with 101 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 301 and 313. -- 38 of 62 -- [2026] WASC 191 SEAWARD J Page 39 the two rings. The issue in dispute was whether one was an engagement ring, or whether it was given as a 'friendship ring'. The physical ring would not cast any light on that subject. 161 Turning to item (c) above, being the failure by Karen to provide evidence of her telephone calls to St John Ambulance, as outlined in relation to ground 2, the parties were given additional time to obtain any additional documents they wished to file. The St John Ambulance documents were expressly mentioned as being a category of document that Karen was attempting to obtain. However, no such documents were ever lodged by Karen. 162 In the appellants' written closing submissions, the appellants submitted as follows: 18 The second respondent undertook to eLodge and serve St John's Ambulance Callout records for the day Luigi Romano died, on the basis that she had contacted that entity, and the provision of documents was imminent. On that basis, the applicants did not pursue a summons to produce documents against the entity. 19 It is submitted that it is open for the Tribunal to consider that the non-provision of those documents by the second respondent, was due to the fact that they did not assist the second respondent's statements when giving evidence that she had called St John's a number of times throughout the day of Mr Romano's death. 163 In Karen's written closing submissions, she provided information regarding her attempts to obtain the documents from St John Ambulance.102 By way of summary, Karen outlined each of the email communications she had with St John Ambulance, which ended with an email from the St John Ambulance compliance officer advising Karen: … that St John could not release any information without one of the following documents: • A copy of the will naming the applicant (ie the Second Respondent) as the executor, • The Grant of Probate naming the applicant as the executor, • The Letter of Administration appointing the applicant as the administrator, 102 Closing submissions by the second respondent, 17 October 2024 [9] - [11]. -- 39 of 62 -- [2026] WASC 191 SEAWARD J Page 40 • A Statutory Declaration stating that neither a Will nor a Letter of Administration is available and naming the applicant as the next of kin 164 Karen's closing submissions also stated that she had no legal qualifications and was not aware of the possibility of issuing a summons to St John Ambulance to produce the records, and also that the appellants did not issue a summons either. 165 The Tribunal Reasons directly address the appellants' submissions regarding the application of the principle in Jones v Dunkel in relation to the St John Ambulance documents as follows: 9 In their closing written submissions the applicants raised two concerns: … (b) Secondly, the applicants complained Karen had promised but not then lodged documents obtained from St John Ambulance. The applicants submitted the failure to lodge these documents should attract a finding adverse to Karen in accordance with the rule in Jones v Dunkel. 10 Karen's response in her written closing submissions might broadly be summarised as being that she did her best as an unrepresented person unfamiliar with legal proceedings. She said St John Ambulance had declined to provide records and she was unaware she could have sought a summons for the documents. 11 The applicants suggested I conclude the ambulance records were not filed because they contained information adverse to Karen's case. Specifically, they suggested I conclude the documents would have demonstrated the symptoms of peritonitis are such that Luigi would have been in agony in the hours before his passing and that Karen either left him to die in pain or was so indifferent to his condition that she was absent from the house until he was close to death or had already died. 12 The applicants called no expert evidence regarding Luigi's medical condition, symptoms or causes of his death. They tendered in evidence a report which appeared to have been downloaded from the internet, the heading of which referred to chronic kidney disease. None of the authors of that report were called to give evidence. Nor was there any evidence of Karen's activities on the day in question. -- 40 of 62 -- [2026] WASC 191 SEAWARD J Page 41 13 The evidence tendered by the applicants is insufficient for me to [be] satisfied on the balance of probabilities of the symptoms displayed by Luigi in the hours leading to his passing and the actions taken by Karen in relation to the same. 14 Further, the submissions of the applicants do not address the reasons why this is an appropriate situation in which the rule in Jones v Dunkel ought to be applied. I am not satisfied it would be appropriate to do so in this instance. 166 I do not consider these reasons to be legally inadequate. The reasons identify the submissions made by the appellants and Karen's response. The reasons then go on to identify that the appellants have not addressed the legal criteria for why the rule in Jones v Dunkel is applicable. 167 Whilst the member's reasons in par [14] are not extensive, in the context of both the facts and the applicable law regarding the rule in Jones v Dunkel, the member's intellectual process is clear. The reference to the appellants not addressing the legal criteria as to why the rule is applicable, is a reference to the appellants not addressing in their written closing submissions why it could be said that the St John Ambulance records were evidence that Karen might be expected to call; or that the records might be expected to cast light on the facts relied on as the ground for the inference; and why the inference should be drawn in circumstances where Karen had provided an explanation for not producing the documents. 168 In any event, even if (contrary to my above conclusion) the member's reasons were legally inadequate, I am not satisfied that it can be said that the Tribunal's decision is attended with sufficient doubt such that it is in the interest of justice to grant leave to appeal in relation to this ground, for the following three reasons. 169 First, the St John Ambulance records were about Luigi, and not Karen. It is therefore difficult to see how it can be said that the records were evidence that Karen might be expected to obtain. Further, the information before the Tribunal was that Karen had attempted to obtain the records but had been unsuccessful. It was also always open to the appellants to seek the issue of a summons to obtain the documents. Although the appellants had withdrawn their previous application upon being told that Karen had applied for the documents, there was nothing preventing the appellants from seeking leave to issue the summons once they became aware that Karen had been unable to obtain the records. In these circumstances, the absence of the records was -- 41 of 62 -- [2026] WASC 191 SEAWARD J Page 42 explained, and it is therefore difficult to see how the rule in Jones v Dunkel was applicable. 170 Secondly, it is relevant to observe that the inference which the appellants submitted could be drawn from the failure of Karen to produce the St John Ambulance records, was an inference that Luigi would have been in agony in the hours before his passing, and that Karen either left him to die in pain or was so indifferent to his condition that she was absent from the house until he was close to death or had already died. However, this is not an inference which could, in any event, be drawn pursuant to the rule. 171 Under the rule, at best an inference could be drawn that there was nothing in the records which would assist Karen's evidence about how many times or when she called an ambulance. The rule does not permit a positive adverse inference to be drawn about Luigi's pain levels, or Karen's actual activities, on the day he died. 172 Thirdly, it is also relevant to observe that the member went on, in par [70] to [73] of the Tribunal Reasons, to address the underlying issue which the appellants submitted that the St John Ambulance records were relevant to, being the submission that Karen did not take adequate care of Luigi, did not call an ambulance quickly enough on the day he died, and therefore they were not in a loving relationship. 173 The member concluded that these contentions by the appellants lacked substantial probative value, and even if proven would prove nothing about the presence or absence of a de facto relationship, for the following reasons:103 (a) Firstly, there is nothing in s 13A which states a de facto relationship has to be loving. (b) Secondly, no doctor or other health professional was called to give evidence. I would have needed expert evidence regarding Luigi's condition, not speculation by family or the filing of unverified material from the internet. (c) Thirdly, even if I were to accept the contentions of the applicants as true, they were not probative regarding the relationship: (i) A de facto spouse might arguably let their partner die, either in a belief that was preferable than allowing them 103 Tribunal Reasons [72]. -- 42 of 62 -- [2026] WASC 191 SEAWARD J Page 43 to continue to suffer or in expectation of their rights of inheritance as the de facto spouse. (ii) Anyone regardless of relationship might be expected to assist another person in pain. Even if Karen were nothing more than a carer, as alleged by the applicants, she would still be expected to respond to any expression of pain by Luigi. Perhaps more so, because presumably a carer would be less burdened by personal distress at Luigi's condition. 174 In these circumstances, an adverse inference that there is nothing in the St John Ambulance records which would support Karen's evidence as to how many times or when she called the ambulance on the day Luigi died, has no real probative value. Ground 8: Overlooking Submissions 175 In ground 8, the appellants assert that the Tribunal overlooked their detailed submissions regarding inconsistencies in the evidence between Karen and her son, Daniel. In so doing, the appellants submit that the Tribunal failed to properly consider a material issue before it and failed to engage with a central issue raised by the appellants, thereby undermining the integrity of the fact-finding process. 176 I do not accept that the Tribunal erred as alleged. 177 In the appellants' written closing submissions in the review hearing, a section headed 'Evidence at Hearing' is included. In that section, the appellants identify various extracts from the transcript of the hearing which they submit support their case that a de facto relationship did not exist. In so doing, the appellants make submissions regarding the credibility of Karen and her witnesses, including Daniel. 178 In so far as those transcript extracts and submissions are concerned with differences between the evidence given by Karen and Daniel, the submissions address two topics: the extent to which Luigi contributed to Karen's expenses,104 and when the de facto relationship commenced.105 179 The Tribunal Reasons do consider and address these alleged inconsistencies between Karen and Daniel's evidence. 104 Memorandum applicants' counsel - closing submissions (amended), 4 October 2024, 10 and 13. 105 Memorandum applicants' counsel - closing submissions (amended), 4 October 2024, 12 and 14. -- 43 of 62 -- [2026] WASC 191 SEAWARD J Page 44 180 First, when considering the indicia of the length of the relationship, the Tribunal Reasons provide as follows:106 The applicants submitted that Daniel Malpuss and Karen had contradicted themselves and each other in their evidence regarding the date of the commencement of the relationship and this adversely affected their credibility. The applicants did not specify how Daniel had contradicted himself on this point. It appears to me his written and oral evidence was both that Karen and Luigi's relationship was brought to his attention in 2013 when they disclosed it to him and he therefore believed they were de facto from that time. 181 The member then went on to consider the question of the consistency between Karen's written and oral evidence, and outlined why she preferred Karen's oral evidence: 20 Karen's written evidence stated that she and Luigi were in a de facto relationship for about six years before his death. Her written evidence also said they introduced themselves to employees of Spudshed as being in a de facto relationship. The written evidence did not date the Spudshed interactions, but Karen's oral evidence said this would have been in 2011. If so, then the written evidence was internally contradictory. 21 Karen's oral evidence was that she and Luigi had been in a relationship for roughly 12 years, they met when both working at Spudshed, were boyfriend and girlfriend in 2011 and that she considered they were in a de facto relationship when Luigi moved in with her full time in 2016. 22 I find Karen's oral evidence, much of it provided in the process of cross-examination, as more credible than her written evidence. It is more consistent with the other witnesses' evidence, is a more likely progression of the relationship in the overall context and does not contain contradictions. There is insufficient information for me to make a finding adverse to Karen in relation to the apparent conflict or error in the statutory declaration. I do not see that it significantly, if at all, strengthened Karen's application to the Registrar. There was no evidence regarding the preparation of the statutory declaration and it could have easily been an error on the part of the solicitor preparing the declaration which Karen did not observe when asked to sign the same. 182 The member then concluded: 106 Tribunal Reasons [19]. -- 44 of 62 -- [2026] WASC 191 SEAWARD J Page 45 23 An issue is that a de facto relationship does not have the same objective reality as a physical thing. Different persons may hold different beliefs as to what constitutes a 'de facto relationship'. Even if all were to agree that it means a relationship of sufficient mutual commitment to be like a marriage, they may have different perceptions as to when or if that occurred. 24 In this case, Daniel formed that view of the relationship in 2013. On the other hand, Karen felt her and Luigi's mutual commitment only reached that level in 2016. I do not believe this means their evidence must be considered contradictory. 25 There is no dispute and I accept that Karen and Luigi knew each other and had a relationship in some form or other since approximately 2010. 183 Secondly, the member addressed any differences between the evidence given by Karen and other witnesses, including Daniel, when considering the indicia of the degree of financial dependence: 44 There was little dispute Luigi contributed to Karen's expenses. The extent of that contribution was unclear. Karen's evidence was that Luigi assisted with the cost of food and assisted her to pay bills such as shire and water rates when she was unable to afford them. In cross-examination Karen said she paid small expenses for Luigi, such as parking and petrol when taking him to and from the hospital. 45 Although Daniel, Raffaele, Melissa and Maureen all said Luigi contributed to the household with Karen, they had differing ideas as to precisely how he contributed. I do not find that surprising given that Raffaele, Maureen and after 2014 Melissa lived separately, both Melissa and Daniel were Karen's children and might not be expected to know all of her and Luigi's financial affairs and Daniel said when he was younger, he had lived between Karen's and her ex-husband's houses. 184 The Tribunal Reasons go on to consider these differences, and the evidence given by the appellants, and detail what evidence is preferred by the member, and why: 46 It is notable no differentiation was made between the contributions made by Luigi when he was working as opposed to when he stopped work. His change of financial circumstances might be another reason for the discrepancies between the witnesses' understandings regarding Luigi's contributions. -- 45 of 62 -- [2026] WASC 191 SEAWARD J Page 46 47 Raimondo's written evidence was that Karen did not contribute financially to Luigi, and also supported Concetta's written and oral evidence that Luigi's financial contributions to Karen were in the nature of a payment to Karen for her care services. In his oral evidence Raimondo conceded he had no direct knowledge regarding Luigi's contributions. 48 I accept Karen's evidence regarding Luigi's financial contributions. Karen's evidence was in broad terms corroborated by her family. Concetta did not dispute the fact of contributions by Luigi, but the implication to be drawn from them. 49 Concetta and Raimondo gave written and oral evidence of the financial and other support they provided to Luigi or to Luigi and Karen. Concetta conceded this was not directly relevant to the question of whether or not a de facto relationship existed, because the members of her family helped each other and she would have provided support even if Luigi had been married. 50 The applicants' closing submissions, whilst referring to the evidence of Raimondo's and Concetta's financial support of Luigi, did not explain why or how that evidence was probative of the non-existence of a de facto relationship. A committed couple might still be subject to financial hardship and it might be speculated Luigi might have been more likely to be in financial hardship if he were financially supporting a new family as well as the children he had had with his ex-wife. 185 In these circumstances, I do not consider it can be said that the Tribunal did not engage with or give consideration to the central elements of the appellants' case. 186 Further, I do not consider the Tribunal Reasons are inadequate in this regard. Reasons are not required to refer to every submission advanced by a party. Here, the Tribunal referred to the alleged inconsistencies between the evidence of Karen and Daniel, in the broader context of considering all the evidence before the Tribunal in relation to the various indicia of a de facto relationship. The Tribunal Reasons go on to explain what evidence the member has accepted, and why. Grounds 3, 6 and 9 - Misapplication of evidence, contradictory findings and speculative conclusions 187 It is convenient to consider grounds 3, 6 and 9 together as they each concern the factual findings made by the learned member, including in relation to the evidence given by Karen and Daniel. -- 46 of 62 -- [2026] WASC 191 SEAWARD J Page 47 188 Before considering each ground, it is helpful to outline the legal principles relevant to findings of fact, and when an error in the fact- finding process may amount to an error of law. 189 An appeal under s 105(2) of the SAT Act only lies 'on a question of law'. The right of appeal provided under s 105(2) does not extend to a question of fact. However, legally erroneous fact-finding may found an appeal on a question of law. In Medical Board of Australia v Arunkalaivanan,107 the court of appeal said the following about the ways in which a factual-finding may be vitiated by an error of law: There are a number of ways in which a factual finding may be vitiated by an error of law. For example, the decision-maker may misidentify the relevant legal test to be applied; the decision-maker may misapply the correct test; there may be no evidence to support the finding of fact, ie the finding of fact may not be open on the evidence; or the decision- maker may adopt a manner of decision-making which fails to discharge its obligations according to law. A contest as to whether a factual finding is vitiated in one of these ways requires an evaluation of the fact-finding process of the decision-maker to decide on its legality. The contest is not concerned with the merits of the factual finding; it is instead concerned with whether the decision-maker has acted lawfully and with authority. 190 In Paridis v Settlement Agents Supervisory Board,108 Buss JA (as his Honour then was) with Wheeler and Pullin JJA agreeing, identified the following further relevant propositions when an error in fact-finding is alleged: (1) A question of mixed fact and law is not a question of law within s 105(2) of the SAT Act; (2) A ground of appeal which asserts that the decision is against the evidence and the weight of the evidence does not raise a question of law. Rather, it is necessary to show that there was no material upon which the conclusion could properly be based; (3) A tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis. (4) A ground of appeal that a tribunal has made a finding which is manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding, alleges an error of law. 107 Medical Board of Australia v Arunkalaivanan [2023] WASCA 117 [71]. 108 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] - [57]. -- 47 of 62 -- [2026] WASC 191 SEAWARD J Page 48 (5) A ground of appeal that a tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account alleges an error of law. There is, however, a distinction between failing to take into account relevant considerations which a tribunal is obliged to take into account, and failing to take into account a particular piece of evidence. 191 It is necessary to update the above reference to unreasonableness in (4) to a reference to unreasonableness as subsequently explained in Minister for Immigration and Citizenship v Li,109 and also to include within that concept a reference to a decision reached by a process of reasoning which was illogical and irrational. 192 See also Silkchime Pty Ltd v Valuer-General110 and Medical Board of Australia v Arunkalaivanan.111 Ground 3: Misapplication of evidence 193 In ground 3, the appellants assert that the Tribunal misdirected itself in law and fact by failing to properly weigh the inconsistencies and 'lies under oath' given by Karen and Daniel, resulting in an erroneous conclusion. 194 The appellants submit that Karen and Daniel gave evidence that was inconsistent on material points, and included statements that were shown to be false under oath. 195 In terms of inconsistencies, the appellants refer to the following: (a) inconsistencies in Karen's evidence as to when her relationship with Luigi commenced;112 (b) inconsistencies in Daniel's evidence as to when the relationship between Karen and Luigi commenced;113 (c) inconsistencies between Karen and Daniel's evidence regarding Luigi's financial contributions;114and (d) inconsistencies between various items of evidence concerning where Luigi was living, including the evidence of a lab referral 109 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. 110 Silkchime Pty Ltd v Valuer-General [2023] WASCA 114 [72] 111 Medical Board of Australia v Arunkalaivanan [2023] WASCA 117 [68] - [94]. 112 Appeal ts 30. 113 Appeal ts 33. 114 Appeal ts 34. -- 48 of 62 -- [2026] WASC 191 SEAWARD J Page 49 from 2019 listing his address as being Concetta's address;115 evidence that Karen said that she did not notify Centrelink of her relationship with Luigi;116and the reference in medical notes to Karen being Luigi's wife.117 196 In terms of statements shown to be false under oath, the appellants refer to: (a) Karen stating that she did not instruct her lawyers to write to the Registrar stating that she wished to be placed on the death certificate for the purpose of making a family provision claim. The appellants rely on a letter to the contrary;118 and (b) Daniel's evidence of when the relationship between Karen and Luigi started, of Luigi's financial contributions and where Luigi was staying at certain periods. 197 The appellants submit that these are mistruths and ought to have coloured Karen and Daniel's evidence and the member's assessment of that evidence. 198 The appellants submit that the Tribunal was required to assess the credibility and reliability of witnesses, particularly where there are material inconsistencies or evidence of dishonesty under oath. The appellants submit that the member failed to adequately address these inconsistencies or alleged mistruths, and did not explain why Karen's evidence was nevertheless accepted or relied on in reaching the member's various findings. 199 The appellants also submit that the Tribunal was required to give proper consideration to the probative value of evidence, and provide adequate reasons where it accepts or rejects evidence that is inconsistent or 'demonstrably false'.119 Ground 6: Contradictory findings 200 In ground 6, the appellants' assert that the Tribunal erred by making contradictory findings in relation to Karen's evidence, which led to an unreasonable, illogical and unsustainable conclusion. 115 Appeal ts 36. 116 Appeal ts 36, 41. 117 Appeal ts 40. 118 Appeal ts 29. 119 Appellant's submissions on appeal, dated 30 June 2025 [23]. -- 49 of 62 -- [2026] WASC 191 SEAWARD J Page 50 201 The appellants submit that the Tribunal made findings that were internally inconsistent and cannot logically coexist with the evidence before the Tribunal. The appellants identified the following by way of example: (a) the Tribunal accepted Karen's account on issues concerning Luigi's financial contributions, which was unsubstantiated by documentary evidence and inconsistent with Daniel's evidence; (b) the Tribunal accepted Karen's account on issues concerning when her relationship with Luigi started, despite that evidence being inconsistent with 'the ever changing' and contradictory evidence put to the Tribunal by Karen and her witnesses as to when the relationship started; and (c) the Tribunal ignored evidence of financial gain as a motive for Karen claiming a de facto relationship existed, when Karen was 'caught in an apparent lie as to that motive'. 202 The appellants also submit that the Tribunal failed to reconcile these contradictions or provide adequate reasons for preferring aspects of Karen's evidence. Ground 9: Speculative conclusions 203 In ground 9 the appellants assert that the Tribunal engaged in speculation regarding Karen's evidence, affecting the credibility and weight of the evidence. 204 The appellants identify the following instances of alleged speculation on the part of the Tribunal: (a) the Tribunal made findings regarding Karen's evidence that were not supported by the evidence at the hearing, and were instead based on speculation as to Karen signing a Statutory Declaration that included a letter from her solicitors identifying the purpose of her application to the Registrar being to strengthen a future family provision claim (par [22] Tribunal Reasons); (b) the Tribunal made speculative findings of Luigi's reasons for not updating his address with the laboratory (par [33] Tribunal Reasons); and -- 50 of 62 -- [2026] WASC 191 SEAWARD J Page 51 (c) aspects of the Tribunal's conclusions regarding the appellants' submission that Karen did not take adequate care of Luigi at the time of his death and did not call the ambulance quickly enough (par [72] Tribunal Reasons).120 205 The appellants submit that the Tribunal failed to identify any evidentiary basis for these conclusions and did not provide adequate reasons for preferring speculative inference over the actual evidence presented. Conclusions 206 I have considered grounds 3, 6 and 9 together, first from the perspective of the overall conclusion (or outcome) reached by the member, and then by reference to the individual findings and associated submissions underpinning these grounds. Outcome 207 Turning first to the Tribunal Reasons as a whole, the Tribunal Reasons outline the correct legal test and then go on to identify the relevant evidence given by the various witnesses and assess that evidence in the context of the various indicia of a de facto relationship. 208 To the extent that aspects of the evidence was (or may have been) inconsistent, the member identifies those inconsistencies and outlines what evidence she accepts and why. In doing so, the member makes findings of fact, including drawing inferences on some occasions. 209 The weighing of the evidence did not only involve the member choosing between two inconsistent sets of evidence or witnesses. On some occasions, the member concluded that some of the evidence led by the appellants or their witnesses was not probative of the relevant indicia and/or the ultimate question at all. For example, Concetta and Raimondo's evidence that they provided financial and other support to Luigi or to Luigi and Karen;121 Concetta's evidence that Luigi had promised he would not marry Karen;122 Concetta's evidence about Karen spending time at her sister's house due to a medical issue;123 Luigi remaining in contact with and providing emotional care to his 120 Appeal ts 43 - 44. 121 Tribunal Reasons [49] - [50]. 122 Tribunal Reasons [58]. 123 Tribunal Reasons [60(b)]. -- 51 of 62 -- [2026] WASC 191 SEAWARD J Page 52 ex-wife and their two children;124 and whether Karen took adequate care of Luigi at the time of his death.125 210 Nothing in the findings reached can be described as internally inconsistent or contradictory, or speculative. 211 Further, nothing in the conclusions reached by the Tribunal can be described as legally unreasonable or illogical in the sense required to constitute an error of law. 212 At its heart, the appellants' complaint is that the member accepted aspects of Karen's evidence and, on the basis of the factual findings made in relation to each indicia, concluded that the correct and preferable decision was that Luigi and Karen were in a de facto relationship. 213 Questions going to which evidence was accepted, or the weight to be given to that evidence, do not involve a question of law. As counsel for the appellants properly accepted, this was not a case where there was no evidence on which the conclusion or the factual findings could be made. Mistruths/credit 214 A central aspect of the appellants' submissions in relation to these three grounds is the allegation that both Karen and Daniel gave evidence that consisted of a 'mistruth' or was 'shown to be false under oath'. The appellants' case is that this evidence negatively affected the credibility of Karen and Daniel, and this was not brought to bear by the member when considering and weighing the evidence. 215 I do not accept this submission. 216 The member did have regard to matters of credit. In the Tribunal Reasons, the member referred to there being some inconsistencies in the evidence of several witnesses, but that the member did not consider these inconsistencies to have been sufficient to make an adverse credibility finding against any witness.126 This conclusion was open on the evidence. 124 Tribunal Reasons [63] - [64]. 125 Tribunal Reasons [70] - [73]. 126 Tribunal Reasons [7(e)]. -- 52 of 62 -- [2026] WASC 191 SEAWARD J Page 53 217 Turning first to Karen's evidence, the alleged 'mistruth' was that Karen's motive for seeking to be named as Luigi's de facto was to bring a family provision claim in relation to his estate. 218 Counsel for the appellants put to Karen in cross-examination that the reason she wanted to have her name on Luigi's death certificate was so that she could make a family provision claim. Karen denied this. Karen was then later in cross-examination shown a copy of a letter from her lawyers to the Registrar with her application to correct the death certificate, which suggested this may be the purpose.127 The relevant extracts from the transcript of the cross-examination are below. 219 The first extract is as follows:128 Isn't it true that the reason you wanted your name on the death certificate was because you needed some sort of formal proof to make a claim against his estate?---God, no, hardly. I was in love with Luigi. But you did engage IRDI Legal to write to Luigi's family, didn't you?--- Yes. And they're stating your intention to make a claim against the estate?--- No. I was actually offered - if I may say offered money from the Romanos through their lawyer to see if they could pay me out some money to not go on as a de facto, and I refused. This is not about money. 220 The second extract is as follows:129 CHAMBERS, MR: Thank you, ma'am. Ms Malpuss, you may recall before the break I asked you a question about the purpose of your application to the Registrar of Births, Deaths and Marriages being because you knew that you would receive an interest in Luigi's estate and you denied that . I then referred you to a letter that your lawyers wrote, but I couldn't find the document at the time. I've found it now, so if you could have a look at page 80,please?---80. 80?---18. Eight-zero?---Okay. Thank you. Eight-zero, I have. IRDI Legal? Yes. And I take you to the first sentence of that letter. Can you read that? Can you read it out loud, please?--- 127 The letter in question was from IRDI Legal to the Registrar, dated 28 March 2023. In the cross-examination, it is referred to as being on page 80 of the hearing booklet. In the bundle of documents provided by the Tribunal to the court, the letter is document 3 of the Registrar's s 24 Bundle of Documents, on page 6 of that bundle. 128 SAT ts, 17/07/2024, 53. 129 SAT ts, 17/07/2024, 70 - 71. -- 53 of 62 -- [2026] WASC 191 SEAWARD J Page 54 We're acting on the behalf of Karen Denise Malpuss, the de fact[o] of - Sorry - of six years to the deceased to apply for the grant and letters of administration for the deceased's estate. So do you accept that that's your lawyers writing to the [R]egistrar of Births, Deaths and Marriages expressing your desire to pursue an interest in Luigi's estate?---Yes. Thank you. So that's a statement that contradicts what you said earlier in evidence?---Things changed. 221 The appellants' submissions on credit proceed on the basis that the above 'inconsistency' was a deliberate lie or mistruth on Karen's part. However, when the evidence before the member is considered, it was open to the member to conclude that this inconsistency was insufficient to make an adverse credibility finding against Karen. 222 At no point was it put to Karen in cross-examination that she was lying when she denied that the reason she wanted her name on Luigi's death certificate was for the purposes of making a claim against his estate. 223 Karen's answer, when the apparent difference between her oral evidence and the letter from her lawyers was drawn to her attention, was that 'things changed'. It was also never put to Karen that she saw the letter from her lawyers before it was sent, or that she instructed her lawyers to send the letter in those terms. A number of different inferences could therefore be drawn about this inconsistency. 224 In those circumstances, it cannot be said to be unreasonable or illogical for the member to decline to make an adverse credibility finding against Karen on this issue. On the contrary, to proceed to do so would have been unreasonable or illogical. 225 Turning next to Daniel, the appellants do not detail precisely what aspect of Daniel's evidence they allege was a 'mistruth' and why. Allegations that a witness has deliberately not told the truth are serious allegations, requiring appropriate specification and basis. 226 The basis of the appellants' submission appears to be inconsistencies in Daniel's evidence regarding when the de facto -- 54 of 62 -- [2026] WASC 191 SEAWARD J Page 55 relationship between Karen and Luigi commenced, and Luigi's financial contributions. 227 As outlined in relation to ground 8, the member considered Daniel's evidence in relation to these matters. 228 In relation to the question of the start of the relationship, the member concluded that Daniel's evidence was that Karen and Luigi's relationship was brought to his attention in 2013, and he therefore believed they were a de facto couple from this period.130 As observed by the member, different persons may hold different beliefs as to what constitutes a de facto relationship and when it occurred.131 The fact that Daniel may hold a different view to Karen (or others) as to the commencement date, does not mean that Daniel has told a 'mistruth'. The fact that the member reached a different conclusion as to when the de facto relationship commenced, also does not mean Daniel has told a 'mistruth'. 229 In relation to Daniel's evidence regarding Luigi's financial contributions, and any inconsistencies between his evidence and the evidence given by Karen on this topic, again, it was open to the member to conclude that these were inconsistencies but did not affect his credit. As outlined by the member, Daniel is Karen's child and therefore might not be expected to know all of Karen and Luigi's financial affairs. Further, when he was younger, Daniel lived between Karen's house and his father's house.132 In these circumstances, the fact that Daniel's evidence may be different in some respects to Karen's evidence, does not mean that Daniel has told a 'mistruth'. 230 Counsel for the appellant also referred the court to a large number of pages from the transcript of the Tribunal hearing in support of the submissions generally. 231 Pages 37 to 39 and 43 of the transcript, refer to the questioning of Daniel as to where Luigi was living and at what period of time. During that questioning, Daniel accepted that he must have been wrong about one aspect of his evidence in this regard. However, again, this is not necessarily evidence of Daniel telling a 'mistruth'. It was never put to Daniel that he was lying. It may be that he has a poor memory, or that 130 Tribunal Reasons [19]. 131 Tribunal Reasons [23]. 132 Tribunal Reasons [45]. -- 55 of 62 -- [2026] WASC 191 SEAWARD J Page 56 his understanding at the time was incorrect. When presented with different evidence of another witness, Daniel's explanation is that:133 So, that's a statutory declaration from the co-owner of the Hamilton Hill property. I understand. And it states that Luigi moved out in 2011?--- Yes. So it's highly unlikely, if not impossible, for him to have been staying at Hamilton Hill with your mother?---Yes. Yes. Unless it was somewhere else. My memory didn't serve me. My apologies. So it's a memory loss?---I wouldn't say it was memory loss. More maybe if I was getting a little bit confused. Getting the dates wrong?---Not getting the dates wrong. I was just getting the place confused. 232 The member referred to Daniel's evidence in this regard in par [28] of the Tribunal Reasons and noted that he thought he may have been mistaken. In light of the evidence before the Tribunal, that finding was clearly open and was not unreasonable or illogical. 233 It was not necessary for the member to refer to all items of evidence or all potential inconsistencies in reaching her conclusions regarding credit, or her conclusions regarding each indicia or the ultimate question. To the extent that there may be other pages of the transcript where it was put to Daniel in cross-examination that he may have incorrectly remembered the precise events or dates, or where Daniel may have a different recollection to other witnesses, that does not mean that Daniel has spoken a 'mistruth'. Inconsistencies 234 Turning to the specific examples of inconsistencies in the evidence referred to by the appellants, the Tribunal Reasons identify those inconsistencies and go on to detail which evidence the member preferred and why. 235 I have addressed the position in relation to the inconsistencies between Karen and Daniel's evidence on both when the de facto relationship commenced, and Luigi's financial contributions in the context of ground 8 above. 133 SAT ts, 17/07/2024, 39. -- 56 of 62 -- [2026] WASC 191 SEAWARD J Page 57 236 In terms of the inconsistencies between various items of evidence concerning where Luigi was living, the member identified and considered the written and oral evidence in relation to this issue at par [26] to par [33] of the Tribunal Reasons, before concluding at par [34] that the member was satisfied that the evidence established that Luigi and Karen living together at least from 2016 until Luigi's death in 2022. It is not necessary to repeat each of these paragraphs, save to conclude that there is nothing unreasonable or illogical in the process of considering and weighing the evidence undertaken in these paragraphs. 237 One specific item of evidence which does warrant a specific mention is the question of whether Karen told Centrelink about her relationship with Luigi. 238 The relevant paragraph of the Tribunal Reasons addressing this issue is par [60(a)], which provides as follows: The evidence of Daniel, Melissa and Maureen is consistent with this, and the applicants did not dispute it. Instead, Concetta challenged the claim to a committed relationship on two other bases: (a) Firstly, Concetta claimed Karen had not informed Centrelink of her relationship with Luigi. Karen said she had. Neither produced any other evidence. There is insufficient basis for me to make a finding on this allegation. 239 The appellants' submission is that Karen's evidence in cross-examination was that she did not tell Centrelink about her de facto relationship, and that the Tribunal Reasons do not consider and weigh this evidence. 240 However, when the transcript is examined, that is not accurate. Karen's oral evidence was that she did tell Centrelink she was in a de facto relationship, but she did not apply to Centrelink for a joint pension as a de facto couple:134 Am I correct that Luigi had a Centrelink pension as an invalid, due to his illness?---Yes. And you had a disability pension?---Yes. From 2015 I've had a disability pension. Did you ever apply to Centrelink for a joint pension as a de facto couple?---No. 134 SAT ts, 17/07/2024, 55 - 56. -- 57 of 62 -- [2026] WASC 191 SEAWARD J Page 58 Why not?---Nor are carers. Why not?---It's the same as my son and my daughter. I love them. They lived at home. They didn't pay board. I provided for them. If you go through all Lui's document statements, of bank statements and car finance - if Lui was buying food, then maybe that was his mother giving. I don't know. But looking at all his finances, he was not in the capacity to help, especially paying a mortgage. My mortgage has always been in my name. It's always debited from - - - Can we just - - -?--- - - - my card. Can we just stick to answering the question that has been asked of you?---Okay. You didn't - - -?---Can you say that again? You didn't apply for a joint pension, did you?---No. Why not? You're a de facto - - -?---I had said to Centrelink that I was in a de facto relationship. My partner was on a disability pension. I was on a disability pension. I said, “I'm not taking a Carer's Allowance and I don't take rent from Lui. Lui lived there as the family, out of love. So you told Centrelink that you were in a de facto relationship with Luigi?---Centrelink, yes. I should have the documents all here for it. Again, I haven't seen this document, but let's just assume that that's correct. So Centrelink has been told by you you're in a de facto relationship, and yet they still paid you a pension as a single person?--- Yes, and I had made them aware that Lui was in no financial state to pay my mortgage. He helped out when he could. He was really good with food. 241 When the evidence before the Tribunal is properly understood, there is nothing unreasonable or illogical or contradictory in the conclusion of the member at par [60(a)]. Speculation 242 When making findings of fact, the member is entitled to draw inferences from the primary evidence. 243 I do not consider any of the specific examples referred to by the appellants involve the member engaging in the drawing of inferences that results in an unreasonable or illogical conclusion so as to constitute an error of law. -- 58 of 62 -- [2026] WASC 191 SEAWARD J Page 59 244 In par [22] of the Tribunal Reasons, the member acknowledges that there were inconsistencies between Karen's written evidence and her oral evidence (much of it given in cross-examination). The member explains that she prefers Karen's oral evidence as it is more consistent with the evidence given by the other witnesses. The member goes on to further explain that there is insufficient evidence for the member to draw an adverse finding against Karen in relation to these inconsistencies, especially in circumstances where there was no evidence regarding the preparation of Karen's written evidence. In these circumstances, the member observes that it is not possible to rule out that the written evidence could 'have easily been an error on the part of the solicitor preparing the written evidence'. There is nothing unreasonable or illogical in this conclusion, and it does not involve the member engaging in any speculation. 245 Paragraph [33] of the Tribunal Reasons sits in the section where the member is considering the indicia of whether Luigi and Karen resided together. Having considered other relevant evidence in this regard, the member considers a piece of documentary evidence, being a lab referral from January 2019 which stated that Luigi's address was Concetta's Coolbellup address. In par [33] the member goes on to explain why she does not consider this piece of evidence is sufficient to outweigh other evidence. One of the reasons relied on by the member is the possibility that Luigi had not updated his address with the lab. It is important to view this reason in the broader context of par [33] which provides: There was a lab referral from January 2019 that stated Luigi's address as being Concetta's Coolbellup address. I do not consider this sufficient to outweigh other evidence for the following reasons: (a) Neither Concetta nor Raimondo stated that Luigi was living with Concetta. (b) The referrer was located in Joondalup and the referee was in Craigie which suggests Luigi was sourcing health care services in suburbs closer to Alkimos than Coolbellup. (c) An alternative explanation is that Luigi did not update his address with the lab. I do not consider this implausible because Raimondo was apparently still on the electoral roll at Concetta's address although it was clear from his evidence that he lived in his own house and not with Concetta. (d) A number of other documents identified the Alkimos property as Luigi's address. These documents included material from the -- 59 of 62 -- [2026] WASC 191 SEAWARD J Page 60 Osborne Park Hospital, Fresenius Kidney Care, Shire of Dandaragan and Jurien Bay View Realty. (footnotes omitted) 246 When understood in its broader context of there being no other evidence suggesting that Luigi was living with Concetta, the 'alternative explanation' in par [33(c)] cannot be described as speculation resulting in an unreasonable or illogical conclusion. 247 Finally, the appellants submit that the Tribunal's conclusions regarding the appellants' submission that Karen did not take adequate care of Luigi at the time of his death and did not call the ambulance quickly enough at par [72] of the Tribunal Reasons consists of speculation. Paragraph [72] of the Tribunal Reasons is reproduced in the section of these reasons dealing with ground 1. The difficulty with the appellants' submission, is that par [72] of the Tribunal Reasons is concerned with addressing why the underlying submission by the appellants that Karen did not take sufficient care of Luigi immediately before his death, lacked substantial probative value to the question before the Tribunal. There is nothing in the member's reasoning process in relation to that conclusion which consists of speculation resulting in an unreasonable or illogical conclusion. Inadequate reasons 248 Each of grounds 3, 6 and 9 also allege that the member failed to give adequate reasons for preferring aspects of Karen's evidence, I have addressed this alleged error of law in the context of ground 8. For the reasons set out in relation to ground 8, I am not satisfied that the member failed to give adequate reasons in relation to her assessment of the evidence of Karen and Daniel and why the member preferred aspects of Karen's evidence. 249 Further, when the underlying evidence going towards the allegations of 'mistruths' are understood, I am satisfied that the Tribunal Reasons adequately address the member's findings on credit in par [7(e)]. In this regard, when the evidence which underpins the appellants' submissions on credit are properly understood (as set out above), the member's finding in par [7(e)] is not only not unreasonable or illogical, but is also an adequate summary of the position. 250 Finally, I do not consider the fact that the Tribunal Reasons do not expressly refer to the question of Karen's motive for wanting her name recorded on the death certificate (separate from the question of -- 60 of 62 -- [2026] WASC 191 SEAWARD J Page 61 credit) to constitute a failure to give adequate reasons, as a person's motive for claiming they were in a de facto relationship is not relevant to an assessment of whether they were in a de facto relationship. Ground 10: Misinterpretation of relationship evidence 251 In ground 10, the appellants assert that the Tribunal erred in law and fact by misinterpreting the evidence concerning the nature of the relationship between Karen and Luigi, which led to an erroneous conclusion. 252 Ground 10, as drafted, alleges a mixed error of law and fact. Accordingly, it is not a ground of appeal 'on a question of law' within s 105(2) of the SAT Act. To the extent the ground embodies a question of law regarding the appropriate legal test, that is addressed in ground 1. To the extent the ground embodies a question of law regarding the fact-finding of the Tribunal, that is addressed in grounds 3, 6 and 9. Appellants' application to adduce further evidence 253 In the appellants' written submissions, they also sought leave to rely on the affidavit of Ms Janet Elizabeth West affirmed on 30 June 2025. In broad terms, the appellants submit that the affidavit is fresh evidence of 'the appearance of collusion' between two witnesses called by Karen; and of attempts by Karen to take steps to take control of Luigi's property, demonstrating that she had a financial motive in the matter and had been dishonest; and may ultimately have been relevant to the Tribunal's assessment of the evidence. 254 However, during his oral submissions counsel for the appellants appropriately withdrew that application.135 255 As outlined by the court of appeal in Commissioner of Consumer Protection v Carey,136 the right of appeal pursuant to s 105 of the SAT Act 'on a question of law' is in the nature of judicial review and not an appeal by way of rehearing. Accordingly, this court does not have the express or implied power to receive additional evidence on appeal. 135 Appeal ts 50 - 53. 136 Commissioner of Consumer Protection v Carey [2014] WASCA 7 [65] - [73], [81], [163]. [165] - [167]. -- 61 of 62 -- [2026] WASC 191 SEAWARD J Page 62 Conclusion 256 For the above reasons, I am of the view that none of the grounds of appeal advanced by the appellants have any merit or demonstrate that the decision of the Tribunal is attended with sufficient doubt. 257 I therefore refuse leave to appeal on all 10 grounds of appeal. 258 I will hear further from the parties in relation to the final orders, including as to costs. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. MA Associate to the Hon Justice Seaward 18 MAY 2026 -- 62 of 62 --