FEDERAL COURT OF AUSTRALIA

Cullinane v Mercer Benefit Nominees Limited
(formerly known as Mellon Nominees Limited) [2005] FCA 1470

SUPERANNUATION – Superannuation Complaints Tribunal – whether Tribunal applied wrong test of applicant’s entitlement – ‘total and permanent disablement’ or ‘disablement’ – construction of deed establishing superannuation fund and deeds varying it.

WORDS AND PHRASES – ‘disablement’ – ‘total and permanent disablement’ – ‘unable’.

Superannuation (Resolution of Complaints) Act 1993 (Cth)

Lykogiannis v Retail Employees Superannuation Pty Ltd (2000)97 FCR 361 followed

Colonial Mutual Life Assurance Society v Brayley [2002] FCA 1333 followed

Attorney General (Cth) v Breckler (1999) 197 CLR 83 followed

Pope v Lawler (1996) 41 ALD 127 followed

National Mutual Life Association of Australasia Ltd v Scollary [2002] FCA 695 followed

National Mutual Life Association of Australia Ltd v Jevtovic [1997] FCA 359 followed

Citicorp Life Insurance Ltd v Smith [2005] FCAFC 102 followed

Davis v Rio Tinto Staff Superannuation Fund Pty Ltd (2002) 118 FCR 170 followed

Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330 followed

Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 followed

JUDITH ANNE CULLINANE v MERCER BENEFIT NOMINEES LIMITED

(formerly known as MELLON NOMINEES LIMITED)

WAD 44 of 2005

LINDGREN J

19OCTOBER 2005

SYDNEY

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL CONSTITUTED BY ELLA DE ROOY (PRESIDING MEMBER),

CAROLYN RE (MEMBER) AND JANET MARTIN (MEMBER)

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL CONSTITUTED BY ELLA DE ROOY (PRESIDING MEMBER),

CAROLYN RE (MEMBER) AND JANET MARTIN (MEMBER)

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicant (‘Ms Cullinane’) ‘appeals’ to the Court under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (‘the Act’) from a decision of the Superannuation Complaints Tribunal (“the Tribunal”) given on 1 February 2005.  The Tribunal is not a court and does not exercise judicial power, and an appeal from it is in the nature of an application in the original jurisdiction of the Court. 

2                     The Tribunal affirmed a decision of the first respondent (‘the Trustee’) to reject Ms Cullinane’s claim for a superannuation benefit.  The Trustee made its decision in April 2003, after it received advice on 31 March 2003 from AMP Life Limited (‘AMP’). 

3                     AMP was the insurer in respect of certain superannuation benefits payable out of the superannuation fund in question, although not the disablement benefit claimed by Ms Cullinane.  However, the Trustee engaged AMP to assess, investigate and manage certain claims, which included that of Ms Cullinane.  AMP has often been referred to as ‘the Assessor’ in relation to Ms Cullinane’s claim.

4                     Pursuant to s 18(1)(d) of the Act, the Tribunal joined AMP as a party to the proceeding before it, and for a time AMP was second respondent to this appeal, but by consent the appeal has been dismissed as against AMP.

APPLICANT’S EMPLOYMENT HISTORY

5                     Ms Cullinane was born on 28 October 1964 in New Zealand.  She received a primary and secondary education and at university passed units in Marketing, ‘Legal Framework’ and Management.  In 1986, while employed, she attained a certificate in ‘Supervision’. 

6                     From 1982 to 4 April 1984 Ms Cullinane worked as a computer programmer, and from May 1984 to October 1984, as an office manager and doing accounting and secretarial work. 

7                     On 1 November 1984 Ms Cullinane commenced employment with East-West Airlines as a flight attendant/cabin manager.  In 1988 East-West Airlines became part of Ansett Airlines, and from then until November 1997 Ms Cullinane was employed as a flight attendant/cabin manager by Ansett.

8                     On 1 February 1985, Ms Cullinane became a member of the superannuation fund which was later known as the ‘Ansett Australia Flight Attendants’ Superannuation Plan’, which has also been referred to as the Flight Attendants Benefit Scheme (‘the FAB Scheme’).

9                     While working as a flight attendant, Ms Cullinane owned and worked in a retail clothing boutique. 

10                  Over the period 6 to 8 November 1997 Ms Cullinane was exposed to airborne chemicals in the course of her work on flights.  Following this exposure, she became unwell and ceased attending work, although she attempted to return to flying on 13–14 November 1997. 

11                  Ms Cullinane last worked for her employer on 11 November 1997, when she was aged 33 years.  Since that time she has remained unwell, complaining of a number of symptoms, including cognitive difficulties and environmental sensitivities, as well as fatigue and speech problems.

12                  On 22 January 1998, Ms Cullinane made a test flight as a passenger, but experienced breathing problems, nausea and difficulty in concentrating. 

13                  During her illness she placed the boutique business on the market, selling it in January 1999. 

14                  On 16 October 2001, Ms Cullinane submitted a claim for payment of a benefit under the FAB Scheme.  The claim form was in a standard printed form headed ‘Superannuation Disablement Claim – Employee’s Statement’.  It bore the AMP logo.  In the form, Ms Cullinane claimed to be still employed by Ansett; to be on ‘unpaid sick leave’; and to have worked for Ansett for some 13 years until November 1997.

15                  On 4 March 2002, as a consequence of the commencement of the voluntary administration of Ansett Australia Ltd, Ms Cullinane’s employment terminated for reasons of redundancy. 

MS CULLINANE’S CLAIM

16                  As noted above, Ms Cullinane’s application for ‘disablement benefit’ was lodged on 16 October 2001.  By September 2002, the Trustee had not made a decision on the application.  On 16 September 2002 Ms Cullinane made a complaint to the Tribunal in respect of the Trustee’s failure to make a decision.

17                  On 31 March 2003, AMP reported to the then administrator of the FAB Scheme, NSP Buck Pty Ltd, that AMP was unable to admit a claim for ‘Total and Permanent Disablement’ for Ms Cullinane.  As will appear below, Ms Cullinane relies on the fact that the expression ‘Total and Permanent Disablement’ has been used from time to time, rather than simply ‘disablement’.

18                  On 16 April 2003, NSP Buck Pty Ltd advised Ms Cullinane that after careful consideration of the evidence in relation to the definition of ‘Total and Permanent Disablement’ in the Trust Deed, the Trustee had declined her claim for a ‘Total and Permanent Disablement benefit’. 

19                  On 22 May 2003 Ms Cullinane lodged a second complaint with the Tribunal, this one being about the Trustee’s decision to deny her claim.  

20                  On 13 August 2003 the Trustee advised Ms Cullinane that it had reviewed her claim under the FAB Scheme’s ‘Internal Disputes Resolution process’, and had decided that it was not able to admit the claim or the complaint.  In the letter, the Trustee again referred (several times) to Ms Cullinane’s claim as being one for a ‘Total and Permanent Disablement’ benefit.  It is not, however, this review decision of the Trustee, but its earlier decision to decline, communicated to Ms Cullinane on 16 April 2003, which was the subject of the complaint to the Tribunal.

RELEVANT LEGISLATION

21                  Section 14 of the Act provides that if the trustee of a fund has made a decision in relation to a member of a regulated superannuation fund, a person may make a complaint to the Tribunal that the decision is or was ‘unfair or unreasonable’.  Section 18 provides that the parties to such a complaint are the complainant and the trustee, and, relevantly, any person other than the trustee, who, the Tribunal decides, is responsible for determining either or both the existence and the extent of the disability (whether total and permanent or otherwise).  As noted at [4], the Tribunal joined AMP as a party, and so had apparently decided that AMP was such a person.

22                  Subsection 37(1) gives the Tribunal, for the purpose of reviewing a decision of the trustee of a fund that is the subject of a complaint under s 14, all the powers, obligations and discretions that are conferred on the trustee.  Subsection 37(3) provides, relevantly, that the Tribunal may affirm the trustee’s decision, remit the matter to the trustee for reconsideration in accordance with the directions of the Tribunal, vary the decision, or set aside the decision and substitute a decision for it.  Subsection 37(6), however, provides that the Tribunal must affirm the decision if it is satisfied that the decision, in its operation in relation to the complainant, was ‘fair and reasonable in the circumstances’.  Accordingly, the Tribunal must first determine whether it is so satisfied.

THE PROCEEDING BEFORE THE TRIBUNAL

23                  The Tribunal was provided with the material that had been before the Trustee, and received documents and two sets of submissions from each of Ms Cullinane, the Trustee and AMP. 

24                  On 1 February 2005 the Tribunal made a decision on the papers affirming the Trustee’s decision.

25                  There are several errors in the Tribunal’s reasons.  The Tribunal noted that Ms Cullinane had ceased to be employed on 14 March 2002, but the correct date was 4 March 2002 (at three points later in the reasons, the Tribunal referred to the correct date).  The Tribunal recorded that the complaint was lodged with it on 11 September 2003, but the correct date was, as noted at [19], 22 May 2003.  The Tribunal referred to the Trustee’s decision as having been made on 16 April 2003.  That was the date on which NSP Buck Pty Ltd wrote to Ms Cullinane advising her that her claim was declined (see [18]).  In its submissions to the Tribunal, the Trustee referred to the date of its decision as 1 April 2003.  It is unclear on the evidence when the Trustee took its decision.  A correct statement for the Tribunal to have made would have been that the Trustee took its decision by 16 April 2003.

26                  In a letter dated 20 July 2004 from AMP to the Tribunal, AMP acknowledged that Ms Cullinane was correct in her observation that ‘the wrong definition’ was previously quoted to the Tribunal.  AMP stated that the correct expression was ‘disablement’.  That expression was defined in a Supplementary Trust Deed executed on 27 October 1994 with effect from 1 July 1994 as follows:

‘ “disablement” means any medical state of physical or mental incapacity which, in the opinion of the Trustee, after having considered independent medical evidence, renders the Member unable to engage in any gainful occupation or business or to perform any work for which, in either case, the Member is reasonably fitted by education, training or experience.’

27                  In its letter, however, AMP reaffirmed ‘its decision’ to decline the claim on the ground that the balance of medical evidence suggested that Ms Cullinane did not meet the definition of ‘disablement’.

28                  The Tribunal reviewed the medical evidence, the submissions made by Ms Cullinane, AMP and the Trustee, and identified its role as that of determining whether the decisions of the Trustee and AMP were fair and reasonable in their operation in relation to Ms Cullinane in the circumstances.  The Tribunal observed that it was not the role of AMP, the Trustee or the Tribunal to resolve the conflict between medical practitioners concerning a disputed diagnosis. 

29                  The Tribunal stated that in order for Ms Cullinane to succeed under the definition of ‘disablement’, two facts must be present:

(a)                ‘a medical state of physical or mental incapacity’, which may not necessarily be, or be able to be identified as, a known categorisable medical condition; and

(b)               a resultant preclusion from ever working in an area for which Ms Cullinane has relevant qualifications.

30                  The Tribunal said that although there was some conflicting evidence before AMP and the Trustee, the majority medical view was that Ms Cullinane would never return to her usual work as a flight attendant.  The Tribunal then went on (at 23) to consider Ms Cullinane’s position in respect of the broader notion of any form of remunerative or gainful work for which she was reasonably fitted by education, training or experience as follows:

‘The Tribunal considered the definition of ‘disablement’ used by the Assessor [a reference to AMP] and noted the Complainant’s submission that the Assessor had not used the proper test.  It agrees that the proper test was not used. 

Moreover, the Assessor admitted that it relied on the incorrect definition of ‘Total and Permanent Disablement’ (TPD) in the Policy [my emphasis] which requires “illness or injury which is proved to the satisfaction of the Trustee that in the opinion of the Trustee after considering such medical and other evidence or advice as it may require from time to time the Member is unable and unlikely ever again [the Tribunal’s emphasis] to be able to under take any form of remunerative work for which the Member is reasonably fitted by education or training or experience” rather than the test in the Trust Deed (referred to above).’

Nevertheless, the Tribunal is of the view that the definition of ‘Disablement’ in the Trust Deed is compatible with the TPD contained in the Policy.  Both imply a component of future service.  Thus the Tribunal is of the opinion that is fair and reasonable that the Trustee should be satisfied on the balance of probabilities that a Member is permanently “unable to engage in any gainful occupation or business” rather than being incapacitated, or “unable” at a particular point in time when assessing a claim.’ (my emphasis)

31                  The Tribunal described the conclusions in the medical reports as ‘not unanimous that Ms Cullinane would be unable to engage in any gainful occupation for which she has education, training or experience’.  It referred to the conflicting medical conclusions and to other evidence.  The Tribunal thought that the very conflict in the evidence about the nature and severity of Ms Cullinane’s ‘medical state or physical or mental incapacity’ left it reasonably open to AMP and the Trustee to conclude that it was more likely than not that she would be able to return to some type of work, provided she had relevant education, training and experience to enable such a return to be practically achievable in an open market situation.  The Tribunal observed that there were before AMP and the Trustee ‘nine separate medical opinions predicting a return to work at some stage’.  The Tribunal thought that none of those opinions was such that it ought fairly to be discounted, and that the existence of the opinions and their tenor made it reasonable for the Trustee to determine that Ms Cullinane did not have that extent of ‘disablement’ necessary to satisfy the requirements of the Trust Deed. 

32                  The Tribunal next addressed the question whether the available information on Ms Cullinane’s past education and work experience made it reasonable for AMP and the Trustee to conclude that she was capable of undertaking alternative duties for which she was reasonably fitted.  It thought that it was open to them to conclude that Ms Cullinane was ‘well fitted to make a return to gainful occupation or business’ (at 26). 

33                  The Tribunal stated that it agreed with that evaluation. 

THE TRUST DEED

34                  The FAB Scheme of which, as noted earlier, Ms Cullinane became a member on 1 February 1985, was established by a Trust Deed and Rules on 21 June 1979, as amended on 15 July 1981.

35                  The ‘Ansett Transport Industries Limited Flight Attendants’ Superannuation Plan’ Trust Deed and Rules dated 15 November 1990 replaced the earlier version.  Sub-rule 1.11(1) of the 1990 document provided: 

‘In the event of the Member’s disablement prior to the normal retirement date the benefit payable shall subject to rule 1.4 be calculated in the manner described under Rule 1.9 as if the Member had died on the Member’s date of disablement.’

            In sub-rule 1.1 of the Rules, ‘disablement’ was defined to mean:

‘any medical state of physical or mental incapacity which, in the opinion of the Trustees after having considered independent medical evidence renders the Member unable to engage in any gainful occupation or business or to perform any work for gain or reward.’

36                  By a Supplementary Trust Deed dated 27 October 1994, this definition of ‘disablement’  in sub-rule 1.1 was deleted and replaced by that set out at [26] above, which, it is common ground, applied in Ms Cullinane’s case.  It will be noted that the words ‘for gain or reward’ were omitted after the word ‘work’, and in their place the words ‘for which, in either case, the Member is reasonably fitted by education, training or experience’ were inserted. 

37                  Following an Ansett Industries Ltd Deed of Company Arrangement of 2003, on 30 June 2004, a new superannuation fund known as the ‘Ansett Residual Superannuation Fund’ (‘the Residual Fund’) was established.  The members of the Residual Fund consisted of  members of two former funds: the Ansett Australia Ground Staff Superannuation Plan established by a Deed of Trust dated 18 March 1988 as amended (‘the ANGS Plan’), and the FAB Scheme.  Having been a member of the FAB Scheme, Ms Cullinane became a member of the Residual Fund.

38                  The deed establishing the Residual Fund contained in cl 1.1 definitions of ‘Temporary Total Disablement’ and ‘Total and Permanent Disablement’. The expression ‘Total and Permanent Disablement’ was defined, relevantly, as bearing two different meanings, according to whether the particular member had been a member of the ANGS Plan or the FAB Scheme.  Relevantly to a former member of the FAB Scheme, such as Ms Cullinane, the expression was defined to mean:

‘ … any medical state of physical or mental incapacity which, in the opinion of the Trustee, after having considered independent medical evidence, renders the Previous Fund Member [relevantly, a member of the FAB Scheme] unable to engage in any gainful occupation or business or to perform any work for which, in either case, the Previous Fund Member is reasonably fitted by education, training or experience.’

39                  As can be seen, notwithstanding the use of the expression ‘Total and Permanent Disablement’ in the deed establishing the Residual Fund, the definition was the same as that of ‘disablement’ which had been introduced on 27 October 1994 into sub-rule 1.1 of the FAB Scheme Rules.  It was that definition, that is to say, the definition of ‘disablement’ introduced on 27 October 1994, or alternatively, the applicable definition of ‘Total and Permanent Disablement’ in the Residual Fund deed effective from 30 June 2004, which applied in Ms Cullinane’s case, those two definitions being identical.

GROUNDS OF APPEAL

40                  By her amended notice of appeal filed on 19 May 2005, Ms Cullinane suggests that the Tribunal erred in law in numerous respects.  The grounds of appeals may be summarised as follows:

(a)        The Tribunal misconstrued the definition of ‘disablement’ by treating it as having the same meaning as ‘Total and Permanent Disablement’ in an insurance policy (‘the Policy’) issued by the Trustee’s insurer (the reference is to the ‘unable and unlikely ever again’ definition referred to at [30] above);

(b)       The Tribunal failed to apply the test laid down by s 37(6) of the Act because:

‘(i)       Despite finding that the trustee’s decision was not fair and reasonable in relation to the applicant, in relation to the trustee’s finding that there was no medical test or objective method of verification that could be used to confirm that the applicant was suffering from the condition of MCS, the Tribunal affirmed the decision.

(ii)       The Tribunal failed to consider whether the trustee’s finding as to the applicant being able to undertake alternative duties was “fair and reasonable”; the Tribunal only considered whether it was “reasonable”.

(iii)      There was insufficient evidence before the Tribunal to support the trustee’s finding that the applicant was able to undertake alternative duties.

(iv)      It was an irrelevant consideration for the Tribunal to take into account:

(A)       the assessor’s opinion as to the applicant’s work capacity when the Tribunal considered whether the applicant met that part of the definition of “disablement” that addressed work capacity; or

            (B)       whether it was fair and reasonable for the assessor not to take into account a report of a Dr CW when the assessor considered the applicant’s claim.’

(c)        The Tribunal failed to find that the Trustee’s decision was not ‘fair and reasonable’ within s 37(6) even though:

‘(i)       The trustee had erroneously considered that for the applicant to be eligible for a disablement benefit, the applicant must have left employment as a result of disablement;

(ii)       The trustee had not applied that part of the definition of “disablement that required consideration of whether the applicant had “a medical state of physical or mental incapacity”.

(iii)      The trustee had not applied that part of the definition of “disablement” that required consideration of whether the applicant had capacity “to engage in any gainful occupation or business or to perform any work for which, in either case, the [applicant] is reasonably fitted by education, training or experience”.

(iv)      The trustee had purported to find that the applicant was able to undertake alternative duties, but had not identified what those alternative duties were, or on what material it relied to make that finding.

(v)       The trustee had taken into account irrelevant considerations, namely an assessor’s opinion, despite the assessor’s opinion being bases on a different definition by which eligibility for a disability was to be established.’

CONSIDERATION

41                  It is convenient to deal with Ms Cullinane’s appeal by reference to the structure of her counsel’s oral submissions, which addressed grounds (b)(i) and (iv) and (c)(i)-(v) above together (ground (b)(ii) was not pressed and submissions were not separately addressed to ground (b)(iii)). 

Ground (a):  Misconstruction of definition of ‘disablement’ by treating it as having the same meaning as ‘Total and Permanent Disablement’ in an insurance policy issued by the Trustee’s insurer.

42                  In its reasons the Tribunal referred at the outset to ‘TPD’.  But on one view, Ms Cullinane’s claim was indeed one for a Total and Permanent Disablement benefit, under the deed constituting the Residual Fund.  In the Complaint which she lodged with the Tribunal, in answer to the question ‘What is the resolution you seek?’ Ms Cullinane stated ‘Acceptance and payment of my claim for Permanent Disability with interest’.  In a letter dated 13 August 2003 to Ms Cullinane, the secretary of the FAB Scheme referred to her claim for ‘Total and Permanent Disability’.  In AMP’s letter dated 31 March 2003 to NSP Buck Pty Ltd, AMP advised that it was ‘unable to admit a claim for Total and Permanent Disablement for Mrs Cullinane’.  In her written submissions to the Tribunal, Ms Cullinane referred to ‘Total & Permanent Disablement Benefit (TPD)’ and to AMP’s having declined her claim for ‘Total & Permanent Disability’.

43                  It is clear that prior to and within her submissions to the Tribunal, Ms Cullinane referred to ‘Total and Permanent Disability’ or ‘TPD’.  Before the Tribunal, no party suggested that this was inappropriate, no doubt because the definition of that expression applicable to Ms Cullinane under the Residual Fund, was identical to the definition of ‘disablement’ in the FAB Scheme Rules.

44                  The Tribunal set out the correct definition, stating clearly that it was that definition which was relevant to Ms Cullinane’s complaint.

45                  The Tribunal noted (at 16) Ms Cullinane’s submission that AMP had used the wrong definition, (taken from the Policy – see [30] above) namely,

‘unable and unlikely ever again to undertake any form of remunerative work for which the member is reasonably fitted by education, training or experience’.

46                  The Tribunal noted the Trustee’s submission that while AMP had used this wrong definition, ‘for all practical purposes the decision would have been the same’.  The Trustee added that the Directors of the Trustee had assessed Ms Cullinane’s claim against ‘the correct TPD’ definition.

47                  The Tribunal appreciated that AMP had wrongly applied the Policy definition, and noted that it had admitted having done so (see [30] above).

48                  The Tribunal’s conclusion on the present issue was that the definition of ‘disablement’ in the FAB Scheme Rules was ‘compatible with the TPD test contained in the Policy’, because both definitions implied ‘a component of future service’.  As noted at [30] above, the Tribunal stated (at 23):

‘Thus the Tribunal is of the opinion that it is fair and reasonable that the Trustee should be satisfied on the balance of probabilities that a Member is permanently “unable to engage in any gainful occupation or business” rather than being incapacitated, or “unable” at a particular point in time when assessing a claim.’

49                  I construe the word ‘compatible’ as used by the Tribunal to signify that the definition of ‘Total and Permanent disablement’ in the Policy would have imposed no more stringent test than the definition of ‘disablement’ in the FAB Scheme Rules.

50                  The inapplicable Policy definition said ‘unable and unlikely ever again’, whereas the definition in the FAB Scheme Rules simply used the word ‘unable’.  The Tribunal construed ‘unable’, however, to mean ‘permanently unable’.  If ‘unable’ in the definition of ‘disablement’ in the Rules does indeed mean ‘permanently unable’, the definition of ‘disablement’ imposed a more stringent test for Ms Cullinane than the expression ‘unable and unlikely ever again to be able’ in the Policy definition would have done. 

51                  The meaning of the word ‘unable’ depends on context.  To say that a crane is unable to lift beyond a certain specified weight is to speak of a permanent condition, but to say that a child is unable to do so may not be.

52                  The meaning of ‘unable’ in the definition of ‘disablement’ in the FAB Scheme Rules depends on the context provided by those Rules.

53                  It was common ground that in view of the identicality of the definition of ‘disablement’ in the earlier rules of the FAB Scheme as amended, and the relevant part of the definition of ‘Total and Permanent Disablement’ in the deed constituting the Residual Fund, I am not required to determine whether Ms Cullinane’s entitlement arises under the FAB Scheme or the Residual Fund scheme.  The parties were right to take that position because, apart from the definitional matter just mentioned, Ms Cullinane’s entitlement to benefits under the Residual Fund is defined to be identical to her entitlement to benefits under the FAB Scheme.  The provisions of the Residual Fund deed which produce this result are somewhat intricate, and in view of the fact that there has been no dispute about the matter, I will not identify them in detail.  In suffices to say that Ms Cullinane fell within the definitions of ‘Insurance Member’ and ‘Category F Member’ in cl 1.1 of the Residual Fund deed (she is named in Schedule 1.2A and Schedule 7) and cll 12.7, 14.3 and 14.4 of the deed and cll 2.1 and 3.1 of Schedule 2 (Benefits Specifications) to the deed.

54                  It is therefore necessary now to turn to the Trust Deed dated 15 November 1990, as amended, constituting the FAB Scheme, and, in particular, the Rules contained in the Schedule to that Trust Deed (‘the Rules’).  The essential point made by the Trustee is that under the Rules, the amount of a disablement benefit is in substance the same as the amount of a death benefit, and so, to put the matter perhaps bluntly, one would expect to find that, in order to be entitled to a disablement benefit, a member must have as much chance of returning to work as a dead person would have.

55                  The Rules provide for:

·        Normal resignation or retirement benefits;

·        Ill health benefits;

·        Benefits on death; and

·        Benefits on disablement.

56                  Rule 1.5 provides for normal resignation or retirement benefits.  These are payable if a member ceases (other than by reason of his or her death or on account of disablement or ill-health) to be in the service of the ‘Employer’.  For the purposes of this benefit, members are divided into two categories:  those who, at the date of ceasing service, have not attained the age of 50 years or have not completed 19 years of ‘Benefit Service’; and members who at the date of ceasing service, are at least 50 years old and have completed 19 or more years of Benefit Service.  Predictably, the amount of the benefit payable to the former is less than that payable to the latter.  The amount of the benefit is expressed as a ‘Percentage of Final Average Salary for each Year of Benefit Service’.  The percentage increases, in relation to the former category, according to the number of years of Benefit Service, and in the case of the latter category, according to the Member’s age at the date of ceasing service.  There is a qualification in relation to the former category: if the member has completed less than four years of Benefit Service, the amount of benefit is not calculated as the percentage mentioned, but as an amount equal to the Member’s ‘Member Basic Account’ plus the Member’s ‘Minimum Employer SG Account’.  I need not discuss the definitions of these terms.  In the case, however, of the remainder of the former category members whose Benefit Service ranges from four to nineteen or more years, the percentage ranges from 10% to 13%.  In the case of the latter category, that is, a member who, at the date of ceasing service, is at least 50 years of age and has completed 19 or more years of Benefit Service, the percentage ranges from 13% to 14%.  There are some qualifications which I need not discuss.

57                  In the case of the ill-health benefit, rule 1.6 provides that if a member ceases to be in the service of the Employer on account of ‘ill health’, the benefit payable is to be the greater of an amount determined in accordance with subrule 1.5 (discussed above at [56]) and an amount equal to 10% of the Member’s final average salary multiplied by the number of the Member’s years of Benefit Service.  The expression ‘ill-health’ is defined in rule 1.1 to mean:

‘any medical state of physical or mental incapacity which in the opinion of the Trustee after having considered independent medical evidence renders the Member permanently unable to perform the duties of a Flight Attendant other than for reasons of Standards [defined as the employment criteria laid down by the Employer relating to a Flight Attendant of which the failure to meet is not based on a permanent medical condition] but which does not prevent the Member engaging in some other gainful employment.’ (my emphasis)

58                  Rule 1.9 provides for benefits on death.  It provides that if a Member dies while in the service of the Employer prior to the normal retirement date (the Member’s 55^th birthday), the benefit payable is, subject to a qualification which need not to be discussed, 14% of the member’s Final Average Salary multiplied by the member’s years of Benefit Service.

59                  Benefits on ‘disablement’ prior to the normal retirement date are provided for in rule 1.11, as noted at [35].  Rule 1.11(1) provides that in the event of a Member’s disablement prior to the normal retirement date, the benefit payable is, subject to a qualification which need not be discussed, calculated in the manner described in subrule 1.9(1) as if the Member had died on the date of disablement.  Accordingly, the benefit is 14% of the Member’s final Average Salary multiplied by the number of the Member’s years of Benefit Service, both determined as at the date of disablement.

60                  A benefit equal to 14% of the Member’s final average salary multiplied by the number of the Member’s years of Benefit Service, is the maximum amount of benefit provided for under the Rules in respect of any class of benefit.  It is the amount of a benefit payable under rule 1.9 upon a Member’s death in service prior to the normal retirement date.  It is also the amount of benefit payable under rule 1.5 to a person who, at the date of ceasing service, is 55 years old (that is to say, has attained the normal retirement date) and has completed 19 or more years of Benefit Service.

61                  The Trustee submits that if Ms Cullinane’s submission is correct, that is to say, if the definition of ‘disablement’ does not entail permanent inability to engage in any gainful occupation or business or to perform any work, for which, in either case, the member is reasonably fitted by education or training or experience:

(1)       a member could obtain a significantly greater benefit for temporary total disablement (14% of Final Average Salary) than for permanent inability to perform the duties of a flight attendant (cf the definition of ‘ill health’ in rule 1.1); and

(2)       the benefit for a temporary total disablement would be the same (14% of Final Average Salary) as for normal retirement (where the member is at least 50 years of age and has completed 19 or more years of Benefit Service) or death, even though there is a real expectation that the incapacity will remit and that the member return to, or continue in, service or take up other work.

62                  The Trustee also points out that the Residual Fund deed provides for ‘Temporary Total Disablement’ in respect of members transferred from the ANGS Plan, and for ‘Total and Permanent Disablement’, which has different definitions according to the former fund (ANGS Plan or FAB Scheme) from which the member in question transferred.  There is a difference between benefits for ‘Temporary’ and ‘Permanent’ Total Disablement in the Residual Fund deed.

63                  I accept the Trustee’s former submission, but not the latter one.  I do not accept the latter submission because I do not think that an anomaly arising from the juxtaposition of definitions of benefits payable out of the two former funds can influence the determination of the amount of benefit payable under one of them.

64                  As indicated, however, I accept the Trustee’s submission that it is appropriate to construe the definition of ‘disablement’ in the FAB Scheme Rules in the context of the amounts of the various classes of superannuation benefits provided for in those Rules. 

65                  In my opinion ‘unable’ in the definition of ‘disablement’ connotes ‘permanently unable’ or ‘unable now and for the foreseeable future’.  The Tribunal applied the definition of ‘disablement’ conformably to that meaning of the term.

Grounds (b) and (c):  Other errors in the application of s 37 of the Act – grounds of appeal (b)(i) & (iv) and (c)(i) – (v).

66                  Ms Cullinane submits that the Tribunal was confused as to what it was reviewing – AMP’s decision or the Trustee’s decision.  She submits that by reviewing AMP’s decision, the Tribunal had regard to an irrelevant consideration, and that that irrelevant consideration infected the Tribunal’s approach to construing the definition of ‘disablement’ and assessing Ms Cullinane’s work capacity. 

67                  In response, the Trustee submits that once AMP was joined as a party to the Tribunal proceeding, the Tribunal was bound by s 37(2)(a) of the Act to review its decision. 

68                  The Trustee’s submission raises a threshold question.  Subsection 18(1) identifies the parties to a complaint under s 14, one of whom is defined as follows:

‘(d)      If the subject matter of the complaint relates to a disability benefit (whether under a contract of insurance or otherwise) and the Tribunal decides that a person other than a trustee or insurer is responsible for determining either or both of the existence and the extent of the disability (whether total and permanent or otherwise) – that person; …’

69                  AMP’s only role, so far as the evidence reveals, was one of advising the Trustee.  The fact that the Tribunal made AMP a party shows that it must have decided, rightly or wrongly, that AMP was ‘responsible for determining’ either or both of the existence and extent of the disability in question, and it was arguable that AMP did meet that description.  That being the case, it was properly joined, and s 37(2)(a) required the Tribunal to review its decision.

70                  But even if this is wrong, the Trustee’s decision–making process did not miscarry on account of the (supposedly) erroneous joinder of AMP as a party before the Tribunal. 

71                  The Trustee had drawn the Tribunal’s attention to the fact that AMP was not an ‘insurer’; that the FAB Scheme was ‘self insured’; and that AMP filled ‘a provider role’ as assessor only.

72                  Furthermore, Ms Cullinane, in her written submissions to the Tribunal, addressed AMP’s decision over some twenty‑two pages, and therefore clearly invited the Tribunal to address that decision.  In these circumstances she cannot be heard complain that the Tribunal did as she asked.

73                  In my opinion, the Tribunal was not distracted from its task by reviewing AMP’s decision, even if it was not statutorily obliged to do so.

74                  Ms Cullinane relies on the fact that the Trustee referred to ‘Total and Permanent Disablement’.  First, in the letter dated 16 April 2003 from NSP Buck Pty Ltd to Ms Cullinane advising her that the Trustee had declined her claim, the reference was to ‘the definition of Total and Permanent Disablement in the Plan’s Trust Deed’ and to Ms Cullinane’s claim for ‘a Total & Permanent Disablement benefit’.  In the heading on the papers which were distributed to members of the board of directors of the Trustee, Ms Cullinane’s claim was described as ‘Total & Permanent Disablement claim’.  After reconsideration in accordance with the FAB Scheme’s Internal Disputes Resolution process, the secretary to the FAB Scheme wrote to Ms Cullinane on 13 August 2003 advising her that her claim for ‘Total and Permanent Disability’ was declined, and made other references to her claim as one for ‘Total and Permanent Disability’.

75                  The response made by the Trustee is that the Tribunal was not required to review the Trustee’s decision making process, but its outcome, that is, the decision in its practical operation in the circumstances.  The Trustee submits that even it applied the wrong definition, the question before the Tribunal was whether the decision, in its practical operation in the circumstances relating to Ms Cullinane, was fair and reasonable in the circumstances: s 37(6) of the Act.

76                  I agree:  see  Lykogiannis v Retail Employees Superannuation Pty Ltd (2000)97 FCR 361 at [46]‑[50] esp [48]; Colonial Mutual Life Assurance Society v Brayley [2002] FCA 1333 at [31]; Attorney General (Cth) v Breckler (1999) 197 CLR 83 at 89; Pope v Lawler (1996) 41 ALD 127 at 134; National Mutual Life Association of Australasia Ltd v Scollary [2002] FCA 695 at [24]; National Mutual Life Association of Australia Ltd v Jevtovic [1997] FCA 359 at 11.

77                  Ms Cullinane’s next submission turns on the following passage in the Tribunal’s reasons for decision:

‘While the Tribunal considers it unreasonable for the Trustee to imply that, because there is no medical test or objective method of verification that can be used to confirm that the Complainant was suffering from MCS [Multiple Chemical Sensitivity] she did not have a medical condition in the terms of the Trust Deed, but does not end the matter.’

78                  Ms Cullinane submits that to affirm the Trustee’s decision, despite this finding of unreasonableness on its part, was not fair and reasonable within the meaning of s 37.  The fact, however, that the Tribunal rejected one of the Trustee’s reasons did not require it to conclude that the Trustee’s decision was not ‘fair and reasonable’.

79                  Ms Cullinane next submits as follows:

‘39.      The Tribunal failed to consider that all the medical reports obtained by the assessor (the trustee did not obtain its own medical reports) would appear to have asked medical practitioners incorrect questions concerning “disablement”.  There was thus no material before the Tribunal, detrimental to the applicant, that specifically addressed the disability test required to be applied.  There was thus no medical material capable of reasonably supporting the finding of no “disablement”.’

80                  Of course, medical reports do not ask questions of medical practitioners.  If the submission is intended to refer to AMP’s letters of request to the medical practitioners, it must be said that the letters of request are not in the appeal book, and not all of the medical reports identify the questions that were asked.

81                  In its reasons for decision, the Tribunal summarised, and set out extracts from, the reports provided by the numerous medical practitioners concerned.  What they said is to be assessed against the definition of ‘disablement’.  Even if they were briefed with the incorrect definition or were asked inappropriate questions, their assessments of Ms Cullinane’s medical condition stand on their own feet, and the Tribunal was entitled to have regard to them.

82                  Ms Cullinane’s next submits that there was insufficient material before the Tribunal to support its finding that she is ‘well fitted to make a return to gainful occupation or business’ (at 26).  Ms Cullinane submits that the Trustee did not identify the work that she was likely to be able to undertake.

83                  However, there was ample material before the Tribunal supporting a conclusion that she would be able to make a graduated return to full time work.  That evidence is to be found in the following medical reports:

Of course, the weight to be given to the various pieces of evidence of the vast body of the reports before the Tribunal was a matter for the Tribunal, not for this Court.  The Tribunal was not required to identify a particular occupation in which Ms Cullinane would find work:  see Citicorp Life Insurance Ltd v Smith [2005] FCAFC 102 at [12], [15]; Davis v Rio Tinto Staff Superannuation Fund Pty Ltd (2002) 118 FCR 170 at [21], [22].

84                  Finally, Ms Cullinane submits that the Tribunal did not identify the quantum of work required in order to assess whether the definition of ‘disability’ was met, that is to say, whether Ms Cullinane had a full‑time or part‑time work capacity.  However, this issue was not raised before the Tribunal and the Tribunal was therefore not required to address it:  Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330 at [90]; cf Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at, 193 – 195 per Bowen CJ, 199 per Fox J, 205 per Deane J.  In any event, I accept the Trustee’s submission that according to a proper understanding of them, the Tribunal’s findings amount to a finding that Ms Cullinane would be able eventually to return to substantially similar hours of work as those in which she had engaged, and there was sufficient material before the Tribunal to support a finding to that effect.

conclusion

85                  For the above reasons the application should be dismissed with costs.

Associate:

Dated:              18 October 2005