FEDERAL COURT OF AUSTRALIA

Samaras v Australian Retirement Fund Pty Ltd [2007] FCA 1323

SUPERANNUATION – appeal from Superannuation Complaints Tribunal – construction of Total and Permanent Disablement under insurance policy – identification of relevant illnesses for purposes of assessment

PROCEDURAL FAIRNESS – whether failure to permit complainant to make oral submissions compromised right to procedural fairness – where entitlement to make oral submissions subject to statutory discretion – where complainant provided written submissions – where complainant invited by Tribunal to provide further written submissions

Superannuation (Resolution of Complaints) Act 1993 (Cth)

Attorney-General (Cth) v Breckler (1999) 197 CLR 83 cited

Auspine Staff Superannuation Pty Ltd v Henderson (2007) 14 ANZ Insurance Cases 90-127referred to, distinguished

Cameron v Board of Trustees of the State Public Sector Superannuation Scheme (2003) 130 FCR 122 cited

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 referred to

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

Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 cited

Marks v CSS Board of Trustees [2005] FCA 797 cited

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562 cited

Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 cited

JOHN SAMARAS v AUSTRALIAN RETIREMENT FUND PTY LTD, COLONIAL MUTUAL LIFE ASSURANCE SOCIETY LIMITED AND SUPERANNUATION COMPLAINTS TRIBUNAL

VID 980 OF 2006

GORDON J

31 AUGUST 2007

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 980 OF 2006

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL

BETWEEN:

JOHN SAMARAS

Applicant

AND:

AUSTRALIAN RETIREMENT FUND PTY LTD

First Respondent

COLONIAL MUTUAL LIFE ASSURANCE SOCIETY LIMITED

Second Respondent

SUPERANNUATION COMPLAINTS TRIBUNAL

Third Respondent

JUDGE:	GORDON J
DATE OF ORDER:	31 AUGUST 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to the pay the respondents’ costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 980 OF 2006

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL

BETWEEN:

JOHN SAMARAS

Applicant

AND:

AUSTRALIAN RETIREMENT FUND PTY LTD

First Respondent

COLONIAL MUTUAL LIFE ASSURANCE SOCIETY LIMITED

Second Respondent

SUPERANNUATION COMPLAINTS TRIBUNAL

Third Respondent

JUDGE:	GORDON J
DATE:	31 AUGUST 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 The Applicant, Mr John Samaras (“Mr Samaras”), appealed pursuant to s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (“the SCT Act”) from a determination of the Superannuation Complaints Tribunal (“the Tribunal”) of 14 August 2006.

2 The Tribunal affirmed the decisions of the Second Respondent, Colonial Mutual Life Assurance Society Ltd (“the Insurer”) and the Australian Retirement Fund Pty Ltd (“the Trustee”), rejecting Mr Samaras’ claim for total and permanent disablement (“TPD”) benefit under the terms of an insurance policy between the Trustee and the Insurer.

3 The insurance policy defined TPD as:

“…disablement which occurs prior to the insured member’s sixtieth birthday and while the insured member is insured for total and permanent disablement under the Policy and either:

(a) results from an illness, accident or injury and results in him or her being continuously absent from his/her employment for at least 6 consecutive months commencing prior to his or her 60^th birthday and we have determined after consideration of medical and other evidence that it is unlikely that he/she will ever be able to engage in any regular remunerative work for which he/she is reasonably fitted by education, training or experience; or …”

4 These reasons for decision are structured as follows:

(1)        Background;

(2)        Relevant Legislation and the Role of the Tribunal;

(3)        Provisions of the Deed and the Policy;

(4)        The Tribunal’s Decision;

(5)        Proper construction of the TPD definition in the Policy; and

(6)        Grounds of Appeal.

5 For the reasons that follow, I would dismiss the application.

(1) Background

6 Mr Samaras was born in Katerini Greece on 6 April 1963. He migrated to Australia with his family in 1971. Mr Samaras married in 1998. He and his wife, Sharon, have no children. He is currently 44 years of age.

7 Mr Samaras was educated at Albert Park High School and completed Form 3 (Level 9). He attended Form 4, but did not complete that year. Mr Samaras is fluent in both Greek and English. His post-secondary qualifications are a Certificate in Management and Industrial Psychology obtained in 1986, a two day training course in sales in real estate and a course in Vocational Studies by correspondence in 1996.

8 Mr Samaras has had a variety of mostly manual jobs. In the 1970’s and 1980’s, he worked in his family’s milk bar business for approximately 8 years. He then worked at a McDonald’s fast food restaurant, in an amusement centre and in real estate. From approximately 1997 until 2001, Mr Samaras worked as a factory machinist/process worker for a company called “Preslite Australia”. From 2001 until 16 October 2002, Mr Samaras worked in various factories doing factory work.

Employment with Australian Tie Company Pty Ltd

9 From 16 October 2002 until 17 September 2003, Mr Samaras was employed by the Australian Tie Company Pty Ltd (“the ATC”) as a storeman and packer. He also performed general factory duties. Those duties included lifting boxes, packing ties for customers, organising the dispatch of the ties and other products produced by the ATC, as well as unloading incoming trucks. He was not required to have any formal qualifications for this work.

Membership of the Fund and Policy

10 On 16 October 2002, Mr Samaras became a member of a superannuation fund, the Australian Retirement Fund (”the Fund”). At all relevant times, the Trustee was the trustee of the Fund. The Fund was established by Trust Deed and Rules dated 11 July 1986. The Deed and Rules were amended from time to time. At the relevant time, the Fund was governed by and subject to the Supplemental Deed dated 5 March 1997 which was amended by two further supplemental deeds dated 23 March 1998 and 2 October 1998 (collectively “the Deed”).

11 On 16 October 2002, Mr Samaras also became an insured member under a policy of insurance numbered K005885 (“the Policy”) which was provided by the Insurer to the Trustee. Mr Samaras ceased to be covered by the Policy when he ceased to be employed by ATC: cl 8.6 of the Policy.

Cessation of Employment with the Australian Tie Company

12 On 17 September 2003, Mr Samaras was “dismissed” or “retrenched” or made “redundant” from his employment with ATC. Prior to being “retrenched”, Mr Samaras was employed by ATC on a full time basis on “light duties”.

Claim for Total and Permanent Disablement Benefit

13 On 10 June 2004, Mr Samaras submitted a claim with the Trustee for TPD. The benefit amount was $80,000.

14 On 23 June 2005, the Insurer advised Mr Samaras in writing that his claim for TPD had been denied.

15 By letter dated 9 August 2005, the Fund sent a letter to Mr Samaras stating that his claim had been denied. The letter stated:

“In determining whether an insured benefit should be paid, the Fund Insurer and Trustee must be satisfied that your medical condition satisfies the definition of TPD, pursuant to the Fund’s Trust Deed and Insurance Contract.

The Fund Trustee has carefully considered all evidence available, however regrets to advise that your claim has been declined.

Your claim has been declined on the basis that the overall medical evidence does not indicate that you would be unable to return to employment for which you are fitted by education, training and experience. In particular, having regard to your age, fairly significant evidence of substantial and irrecoverable pathology would be required. Such evidence was not presented.

The Fund Trustee considers that you are not Totally and Permanently Disabled in accordance with the attached definition. …”

(2) relevant legislation and role of the tribunal

16 Section 14 (together with s18(1)(d)) of the SCT Act gave Mr Samaras standing to make a complaint to the Tribunal that the decisions of the Trustee and the Insurer were unfair or unreasonable.

17 Section 37 of the SCT Act prescribes the powers and functions of the Tribunal as follows:

“(1) For the purpose of reviewing a decision of the trustee of a fund that is the subject of a complaint under section 14:

(a) the Tribunal has all the powers, obligations and discretions that are conferred on the trustee; and

(b) subject to subsection (6), must make a determination in accordance with subsection (3).

(2) If an insurer or other decision‑maker has been joined as a party to a complaint under section 14:

(a) the Tribunal must, when reviewing the trustee's decision, also review any decision of the insurer or other decision‑maker that is relevant to the complaint; and

(b) for that purpose, has all the powers, obligations and discretions that are conferred on the insurer or other decision‑maker; and

(3) On reviewing the decision of a trustee, insurer or other decision‑maker that is the subject of, or relevant to, a complaint under section 14, the Tribunal must make a determination in writing:

(a) affirming the decision; or

(b) remitting the matter to which the decision relates to the trustee, insurer or other decision‑maker for reconsideration in accordance with the directions of the Tribunal; or

(d) setting aside the decision and substituting a decision for the decision so set aside.

(4) The Tribunal may only exercise its determination‑making power under subsection (3) for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both, that the Tribunal has determined to exist in relation to the trustee's decision that is the subject of the complaint no longer exists.

…

(6) The Tribunal must affirm a decision referred to under subsection (3) if it is satisfied that the decision, in its operation in relation to:

(a) the complainant; and

(b) so far as concerns a complaint regarding the payment of a death benefit--any person (other than the complainant, a trustee, insurer or decision‑maker) who:

(i) has become a party to the complaint; and

(ii) has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person having an interest in the death benefit;

was fair and reasonable in the circumstances.”

18 It was common ground for the purposes of this appeal that:

(1) the Tribunal was not required or indeed permitted to determine whether the Trustee’s decision was the correct or preferable one or whether Mr Samaras, in its opinion, suffered disablement that came within the Policy or the Deed; and

(2) the relevant time for the Tribunal to consider Mr Samaras’ claim for TPD benefit was the date of the decision of the Trustee: see s 37 of the SCT Act and Davis v Rio Tinto Staff Superannuation Fund Pty Ltd (2002) 118 FCR 170 at [15]. In the present case, that date was 9 August 2005.

19 Under the SCT Act, the question for the Tribunal was whether, from the Trustee’s perspective, the decisions of the Trustee and the Insurer were “fair and reasonable in the circumstances” in their operation in relation to Mr Samaras having regard to the governing rules and terms of the Deed: ss 37(5) and (6) of the SCT Act; Cameron v Board of Trustees of the State Public Sector Superannuation Scheme (2003) 130 FCR 122 at [38]-[43]; National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562 at [32] to [37]; Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 at [31] and Marks v CSS Board of Trustees [2005] FCA 797.

20 The Tribunal was required to assess the evidence before it for itself and “form a view about necessary facts, determine what the facts [were] and then by reference to those ascertained facts determine whether the decision of [the Trustee and the Insurer] was fair and reasonable in the circumstances”: Marks at [23]. See also Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at [87]-[89] per Kirby J.

21 The Tribunal’s reasons “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. They are to be read fairly as a whole and not over zealously: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. Moreover, the reasons are not required to refer expressly to every argument and all the evidence that might be relevant to its determination of factual issues: cf Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 52-53.

(3) PROVISIONS OF THE DEED AND POLICY

22 Under the Deed, cl 8.1 prescribed the benefits for employees of a participating employer. It relevantly provided:

“…

(a) When a Member ceases employment with a Participating Employer the Member is entitled to a benefit equal to:

…

(ii) the proceeds of any Insured Benefit received by the Trustee in respect of the death or Total and Permanent Disablement of the Member; and

…”

23 “Total and Permanent Disablement” of a member was defined in cl 14.1 as:

“(a) if there is a relevant Policy in force – disablement which the insurer and the Trustee determine qualifies as total and permanent disablement under that Policy; or

….”

24 The Policy between the Insurer and the Trustee was in force and, as noted above, it defined “total and permanent disablement” to mean:

“…disablement which occurs prior to the insured member’s sixtieth birthday and while the insured member is insured for total and permanent disablement under the Policy and either:

(Emphasis added.)

25 An “insured member” was defined in the Policy as a member of the Fund who met the eligibility criteria and was accepted by the Insurer as life insured under the Policy. There is no dispute that prior to his retrenchment Mr Samaras was an “insured member” and that cover under the Policy ended 30 days from the date Mr Samaras ceased to be employed by the ATC: cl 8.6 of the Policy.

(4) the tribunal’s decision

26 Before the Tribunal, Mr Samaras submitted that:

(1)        the wrong TPD test had been applied by both the Trustee and the Insurer (“the TPD Definition Issue”);

(2)        the Trustee had not made an independent decision about whether Mr Samaras was TPD and that was unfair or unreasonable (“the Trustee’s Decision Issue”); and

(3)        when he ceased work on 17 September 2003, he was unwell (“the Medical Evidence Issue”).

27 The Tribunal addressed each issue.

TPD Definition Issue

28 In relation to the TPD Definition Issue, the Tribunal reviewed the applicable provisions of the Trust Deed and the Policy and noted that:

(1) Mr Samaras’ disablement had to result from an illness, accident or injury causing him to be continuously absent from his employment for at least six consecutive months; and

(2) the Trustee and Insurer must have “determined after consideration of medical and other evidence that it is unlikely that he … will ever be able to engage in any regular remunerative work for which he … is reasonably fitted by education, training or experience”.

The Tribunal rightly noted that both requirements had to be satisfied. Moreover, the Tribunal went on to record (again correctly) that the requirement for there to be a determination by the Insurer did not accord with Mr Samaras’ submission that it was not necessary for the Trustee and the Insurer each separately to assess the claim.

Trustee’s Decision Issue

29 The Tribunal also rejected Mr Samaras’ submissions in relation to the Trustee’s Decision Issue. The Tribunal concluded that there was no evidence to support the claim that the Trustee had failed to make its own assessment about whether Mr Samaras was TPD as defined and no evidence to suggest that it did not act in accordance with its obligations under the Deed.

Medical Evidence Issue

30 The Tribunal was satisfied that on 25 July 1991 Mr Samaras suffered a back injury at work, that in March 1995 he was diagnosed with mixed anxiety and depression and in March 1998 he was diagnosed with sarcoidosis affecting his lungs. In addition, the Tribunal was satisfied that he commenced full time employment with ATC and joined the Fund on 16 October 2002, that the last day of employment was 17 September 2003 when he was aged 40 and that his employment was terminated on that day.

31 The Tribunal first determined which illnesses were present in 2003 at the time that Mr Samaras ceased work with the ATC. That enquiry was necessary because Mr Samaras claimed he was suffering from many medical conditions which were not present at the time he stopped work and which therefore could not be considered in determining Mr Samaras’ entitlement to a TPD benefit.

32 Having first determined which illnesses were present at the time Mr Samaras ceased work with the ATC, the Tribunal went on to examine whether or not the medical evidence supported Mr Samaras’ entitlement for a TPD benefit with respect to those conditions and whether the decisions of the Trustee and the Insurer were fair and reasonable in their operation to Mr Samaras in the circumstances.

33 After reviewing the medical evidence, the time of onset and the impact of the medical conditions on his capacity to work, the Tribunal concluded:

“While, on the basis of the medical evidence provided, there is no doubt that [Mr Samaras] suffers from several medical conditions, this in itself does not necessarily entitle him to TPD benefits. The medical evidence does not reasonably support the view that it is unlikely that [Mr Samaras] will “ever be able to engage in any regular remunerative work for which he is reasonably fitted by education, training or experience.” Having come to this view, and combined with the inconsistencies noted, the Tribunal is satisfied that the decisions of the Trustee and Insurer that [Mr Samaras] was not TPD are fair and reasonable in their operation to [Mr Samaras] in the circumstances.”

(5) Proper construction of the definition of TPD in the policy

34 Many of the grounds of appeal sought to be agitated by Mr Samaras relied upon a particular construction of the definition of TPD.

35 In general terms, Mr Samaras contended that it was unnecessary for him to identify an illness or illnesses attached to his period of employment with the ATC and that the question for the Insurer and the Trustee was whether, at the time of their respective decisions, there was any illness or illnesses that cumulatively resulted in Mr Samaras being unlikely to ever be able to engage in any regular remunerative work for which he was reasonably fitted by education, training or experience. Mr Samaras sought to support his construction of the definition by reference to the decision of Jessup J in Auspine Staff Superannuation Pty Ltd v Henderson (2007) 14 ANZ Insurance Cases 90-127 at [63] and [64].

36 For the reasons that follow, I reject Mr Samaras’ construction of the definition of TPD. The definition contained two limbs. Both had to be satisfied. The first limb required that the ‘disablement’ occurred while the insured was a member: see definition of TPD in [24] above. To satisfy the first limb of the definition of TPD, Mr Samaras had to be less than 60 years of age, the disablement had to exist no later than 30 days after he ceased employment with ATC and result from an illness, accident or injury that resulted in him being continuously absent from his employment for at least 6 consecutive months. That limb of the definition required identification of the illness or illnesses suffered by Mr Samaras no later than 30 days after he ceased employment with ATC and which resulted in him being absent from work for at least 6 consecutive months.

37 If an illness or illnesses of the kind described could be identified, then the second limb of the test becomes relevant - consideration of medical and other evidence to determine whether it was unlikely that Mr Samaras would ever be able to engage in any regular remunerative work for which he was reasonably fitted by education, training or experience. This second limb requires consideration of medical and other evidence limited to the illness or illnesses identified under the first limb but not limited in time to the period prior to the cessation of Mr Samaras’ employment. The Insurer and the Trustee were required to consider the medical evidence that existed at the time of their decisions, namely June 2005 and August 2005.

38 Moreover, the decision of Jessup J in Auspine Staff Superannuation did not support Mr Samaras’ construction of the definition of TPD. The first point of difference is that the definition of TPD in that case was different. Not substantially different, but different. Secondly, even taking into account the differences in language between the definitions of TPD, there is nothing in the reasons for decision of Jessup J which suggested that the insurer in that case was to ignore the requirement that the disablement was to have occurred “while he [was] in the active service of the Employer”. Such a contention ignored the express words of the definition of TPD in that case and para [63] of his Honour’s reasons for decision.

Grounds of appeal

39 Against that background, I turn to consider Mr Samaras’ various grounds of appeal to the extent to which I have not already dealt with them in considering the proper construction of the definition of TPD.

Ground (a) The Tribunal misconstrued and misapplied the terms of cll 8.1 and 8.3 of the Trust Deed and, in particular, the term of “Total and Permanent Disablement” therein; and/or cl 14 of the Policy and the term “total and permanent disablement”.

40 This ground of appeal should be dismissed.

41 After setting out the relevant provisions of the Deed and the Policy, the Tribunal addressed the issue in the following terms:

“The ... Deed TPD definition is linked to the definition in the ... Policy. TPD is defined as “a disablement which the insurer and Trustee determine qualifies as total and permanent disablement” under the … Policy. In this case, as [Mr Samaras] was insured, the … Policy definition applies with the result that not only must his disablement result from an illness, accident or injury causing him to be continuously absent from his employment for at least 6 consecutive months, but the Insurer must have “determined that it is unlikely that he will ever be able to engage in any regular remunerative work for which he is reasonably fitted by education, training or experience.” This does not accord with [Mr Samaras’] submissions that it was not necessary for the Trustee and the Insurer to assess his claim. According to the … Policy definition there are two requirements to be satisfied. To qualify as TPD it is not sufficient for [Mr Samaras] to have been absent from his employment for “at least 6 consecutive months” (if, indeed he was). In addition, the Insurer must have made the necessary determination. It must make an assessment about [Mr Samaras’] ability to engage in remunerative work for which he is reasonably fitted, in terms of the definition. The Tribunal deals with medical evidence in detail below when it considers the question of whether the Insurer’s decision was fair and reasonable in its operation to [Mr Samaras] in the circumstances.”

42 As is apparent, and contrary to the submissions of Mr Samaras, the Tribunal when affirming the Trustee’s decision did not misconstrue and misapply the definition of TPD in the Policy. It correctly identified that the definition had two limbs, both of which were required to be satisfied.

43 Mr Samaras also sought to challenge the TPD test applied by the Trustee. He asserted that the Tribunal misapplied the test when it affirmed the decision of the Trustee. That complaint is, in my view, to be rejected for at least two reasons. First, it ignores the fact that the Tribunal properly described and applied the test as outlined in [41] above. Secondly, Mr Samaras misunderstood the Tribunal’s reasons for decision and, in particular, sought to take one sentence of the reasons out of context. The Tribunal’s reasons “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Pozzolanic at 287. They are to be read fairly as a whole and not over zealously: Wu Shan Liang at 271-272. Although the Tribunal did refer to the fact that the Trustee advised Mr Samaras that his TPD claim had been declined “on the basis that the overall medical evidence [did] not indicate that [he] would be unable to return to the employment for which [he was] fitted by education, training and experience” and that there was no evidence of substantial and irrecoverable pathology, the Tribunal did so in the context of refuting an allegation that there was no evidence to support the claim that the Trustee had failed to make its own assessment about whether Mr Samaras was TPD as defined. It is neither appropriate nor possible to read the Tribunal’s reasons for decision in the manner suggested by Mr Samaras.

Grounds (b) and (c) The Tribunal’s finding that the Applicant’s medical conditions that were not present at the time he was retrenched or made redundant could not be considered when determining his entitlement for total and permanent disablement payments was an error of law and amounted to the Tribunal asking itself or otherwise addressing the wrong question and failing to address the right question.

44 Counsel for Mr Samaras attempted to clarify this ground of appeal in oral submissions. The substance of the contention was that the Tribunal committed an appellable error by failing to consider medical evidence of conditions that were not alleged to have been suffered by Mr Samaras at the time he was retrenched and were not diagnosed, or indeed observable, until a later time. This argument is untenable for two reasons. First, it is inconsistent with the proper construction of the definition of TPD in the Policy outlined at paras [36]-[37] above. Secondly, the contention ignores the fact that the Tribunal did consider the totality of medical and other evidence before it in evaluating whether the first limb of the TPD definition was satisfied: see extract at [47] below. This ground of appeal is dismissed.

Grounds (d) and (e) The Tribunal erred in considering separately the medical evidence reviewed by it for each of the Applicant’s medical conditions (namely, sarcoidosis, psychiatric conditions and low back pain)

45 Mr Samaras’ complaints under this ground of appeal were that:

(1) the Tribunal was selective in the medical reports that it extracted in its reasons for decision and failed to mention some medical reports; and

(2) taking into account all of the medical reports, the Tribunal could not reasonably have found that the Trustee’s decision was fair and reasonable.

Those complaints, in my view, are to be rejected.

46 Two aspects of the Tribunal’s reasons for decision are worth restating. Under the heading “Medical Evidence”, the Tribunal stated:

“A large number of medical reports were before the Tribunal. Many of these reports contained pathology or radiology tests results which were not always relevant to the issue of [Mr Samaras’] work capacity. Although all reports were read carefully, only those addressing [Mr Samaras’] work capacity are summarised.”

47 After summarising the medical evidence in the manner described and summarising the submissions of Mr Samaras, the Trustee and the Insurer, the Tribunal’s reasons for decision correctly identified its role and outlined the process it adopted in the following terms:

“The Tribunal’s role is to determine whether the decisions of the Trustee and the Insurer to reject [Mr Samaras’] claim for a TPD benefit were fair and reasonable in their operation to [Mr Samaras] in the circumstances. The issue is not what decision the Tribunal would have made on the evidence before it.

In reaching its determination, the Tribunal took the whole of the evidence and submissions into account. In particular, it reviewed the medical evidence in detail. The Tribunal also gave very careful consideration to [Mr Samaras’] submissions, and took them into account, although in view of its findings about work capacity on the medical evidence it has not referred to them all in this written determination.”

48 In the present case, it cannot be said that the Tribunal’s reasons for decision were formulaic. All of the medical reports were read by the Tribunal and the basis on which the Tribunal approached the question of medical reports in its reasons for decision was identified. The fact that the Tribunal referred to extracts from some medical reports and failed to mention other medical reports does not, of itself, constitute an error of law: cf Guo Wei Rong at 52-53. No error of law was identified.

49 In submissions, Mr Samaras placed considerable emphasis on the failure of the Tribunal’s reasons for decision to refer to a medical report provided by his treating general practitioner, Dr Elean To dated 9 August 2005. That medical report stated:

“I believe that [Mr Samaras] has a significant degree of multiple medical illnesses that warrants him unable to work, he has multiple conditions affecting his heart, lungs, mobility, back, hips, mental state, depressions, stomach etc.

I believe the ongoing disability that [Mr Samaras] suffers cannot possibly allow him to return to work. He cannot be retrained in other fields of education.

He will not make significant recovery in the future to enable him to work as the nature of most of his conditions are that they are irreversible or will worsen with time.”

50 The failure of the Tribunal to mention this report is not surprising. It was dated 9 August 2005, the date of the decision of the Trustee, and on its face did not address or contain material relevant to either limb of the definition of TPD. The illnesses were described in only the most general of terms. No attempt was made to identify which illnesses existed when Mr Samaras was insured and which of those illnesses affected his capacity to work in August 2005. In any event, the mere failure to mention this specific report did not, of itself, constitute an error of law: cf Guo Wei Rong at 52-53.

51 The second aspect of Mr Samaras’ complaint under this ground of appeal was that taking into account all of the medical reports, the Tribunal could not reasonably have found that the Trustee’s decision was fair and reasonable. That contention is unfounded. Once the proper construction of the definition of TPD is identified, much of the medical evidence referred to by Mr Samaras was irrelevant because it concerned illnesses which were not present in Mr Samaras while he was insured. Those illnesses were identified by the Tribunal as hip pain, gastritis, osteopaenia and fibromyalgia.

52 In relation to the illnesses that were present in Mr Samaras while he was insured, the Tribunal listed each illness and then reviewed the medical evidence to determine whether the decisions of the Trustee and the Insurer to reject Mr Samaras’ claim for a TPD benefit were fair and reasonable in their operation to Mr Samaras in the circumstances. Such an approach was consistent with authority: see [20] above. The Tribunal was not required or indeed permitted to determine whether the Trustee’s decision was the correct or preferable one or whether Mr Samaras, in its opinion, suffered disablement that came within the Policy or the Deed. No error of law was identified.

Ground (f) There was no or no probative evidence on which the Tribunal could properly have concluded that it was fair and reasonable for those Respondents to determine that it was unlikely that the Applicant was not or would not ever be able to engage in any regular remunerative work for which he is reasonably fitted by education, training or experience.

53 This ground of appeal was not separately pursued by Mr Samaras. However, the substance of the complaint was raised by him in seeking to prosecute ground (e) and therefore should be dismissed on the same bases.

Ground (g) The Tribunal fell into appellable error in failing to grant the Applicant an opportunity to make oral representations to the Tribunal under s 34(2) of the SCT Act.

54 On 31 March 2006, Mr Samaras asked the Tribunal if he was able to submit his submissions either orally or via a micro-cassette recording. An officer attached to the Tribunal telephoned Mr Samaras and advised him that the Tribunal would prefer him to lodge a written submission as the Tribunal determined these matters on the papers. Mr Samaras contended that the Tribunal’s failure to grant him an oral hearing was contrary to s 34(2) of the SCT Act and denied him procedural fairness.

55 This ground of appeal should be rejected on a number of bases. Section 34(2) of the SCT Act did not impose an obligation upon the Tribunal to make an order allowing Mr Samaras to make oral submissions. Whether the Tribunal permitted a party to make oral submissions was a matter for the discretion of the Tribunal. There is nothing to suggest that the discretion miscarried.

56 In addition, it cannot be said that the Tribunal made a determination adverse to Mr Samaras’ interests without giving him a reasonable opportunity to make written submissions to the Tribunal on the approach that it was contemplating: Auspine at [57] and the authorities cited. Mr Samaras, in fact, lodged 6 written submissions comprising more than 100 pages. As the Tribunal stated:

“[Mr Samaras] provided over 100 pages of submissions in which he broadly argued that the Trustee and the Insurer chose irrelevant medical history and issues involving the relationship with his employer as the basis of their decision to decline his TPD application. He asked that the Tribunal confine itself to his ongoing health issues.”

The substance of those submissions was then summarised by the Tribunal.

57 After receiving those written submissions from Mr Samaras, the Tribunal contacted Mr Samaras on 15 May 2006 and asked him for his response submission. Mr Samaras told an officer attached to the Tribunal that he did not wish to provide a response submission and relied upon the material he had already provided to the Tribunal. This ground of appeal is dismissed.

Grounds (h) and (i) The Tribunal, in making the Decision, did not accord the Applicant procedural fairness

58 Mr Samaras contended that the Tribunal, in denying Mr Samaras an opportunity to make an oral submission, “made a determination adverse to the interests of Mr Samaras to that review without giving him a reasonable opportunity and in effect denied him procedural fairness.” In general terms, Mr Samaras submitted that he did not understand how the Tribunal’s processes worked and, in particular, did not understand the gravity or implications of the comments about the credit of Mr Samaras made by a number of medical practitioners whose medical reports were before the Tribunal.

This ground of appeal raises similar grounds to Ground (g) and should be dismissed on the same bases. Moreover, the substance of Mr Samaras’ complaints arose not from the manner in which the Tribunal dealt with the matter but the fact that he did not agree with comments made by some medical practitioners about the inconsistencies in his behaviour and that he was, in the words of one doctor, “economical with the truth”. The medical reports had been provided to Mr Samaras. He was aware of them, able to comment upon and did comment upon them in the written submissions he provided to the Tribunal. The failure to provide Mr Samaras an oral hearing did not amount to a denial of procedural fairness.

Orders

59 For those reasons, the application is dismissed and the applicant is to pay the respondents’ costs.

60 Finally, I would like to express the Court's gratitude to Mr G Moloney who acted for and Ms V Minz who appeared as pro bono counsel for Mr Samaras.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

Associate:

Dated: 31 August 2007

Counsel for the Applicant:	Ms V Minz (Pro Bono)

Counsel for the First and Second Respondents:	Mr G Moffatt

Solicitor for the First and Second Respondents:	Ms Alison Harewood

Date of Hearing:	21 August 2007

Date of Judgment:	31 August 2007

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