FEDERAL COURT OF AUSTRALIA
Woodward v Australian Super Pty Ltd (formerly STA) [2008] FCA 706
Superannuation (Resolution of Complaints) Act 1993 (Cth)
Birdseye v Australian Securities & Investments Commission (2003) 76 ALD 321 cited
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 considered
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited
Davis v Rio Tinto Staff Superannuation Fund Pty Ltd (2002) 118 FCR 170 followed
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 cited
SAAP v Minister of Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 cited
The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 cited
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 considered
Samaras v Australian Retirement Fund Pty Ltd [2007] FCA 1323 followed
QUD 114 of 2007
LANDER J
22 MAY 2008
SYDNEY (HEARD IN BRISBANE)
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IN THE FEDERAL COURT OF AUSTRALIA |
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QUEENSLAND DISTRICT REGISTRY |
QUD 114 of 2007 |
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ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL CONSTITUTED BY JOCELYN FURLAN, CAROLYN RE, JANET MARTIN |
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BETWEEN: |
NIGEL WOODWARD Applicant
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AND: |
AUSTRALIAN SUPER PTY LTD (FORMERLY STA) First Respondent
COLONIAL MUTUAL LIFE ASSURANCE SOCIETY LIMITED Second Respondent
SUPERANNUATION COMPLAINTS TRIBUNAL Third Respondent
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JUDGE: |
LANDER J |
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DATE OF ORDER: |
22 MAY 2008 |
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WHERE MADE: |
SYDNEY (HEARD IN BRISBANE) |
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The decision of the Superannuation Complaints Tribunal made on 23 March 2007 be quashed.
3. The complaint to the Superannuation Complaints Tribunal be remitted to the Superannuation Complaints Tribunal for determination according to law.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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QUEENSLAND DISTRICT REGISTRY |
QUD 114 of 2007 |
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ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL CONSTITUTED BY JOCELYN FURLAN, CAROLYN RE, JANET MARTIN |
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BETWEEN: |
NIGEL WOODWARD Applicant
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AND: |
AUSTRALIAN SUPER PTY LTD (FORMERLY STA) First Respondent
COLONIAL MUTUAL LIFE ASSURANCE SOCIETY LIMITED Second Respondent
SUPERANNUATION COMPLAINTS TRIBUNAL Third Respondent
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JUDGE: |
LANDER J |
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DATE: |
22 MAY 2008 |
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PLACE: |
SYDNEY (HEARD IN BRISBANE) |
REASONS FOR JUDGMENT
1 This is an appeal from a decision of the Superannuation Complaints Tribunal (SCT) made on 23 March 2007. The Superannuation Complaints Tribunal is constituted by s 6 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Act). It has as its objectives and functions the conciliation of complaints made under that Act or, if a complaint cannot be resolved by conciliation, the review of the decision or conduct to which the complaint relates: ss 11 and 12. A complaint may be made to the SCT under ss 14AA, 14, 14A, 15A, 15B, 15CA, 15E, 15F, 15H or 15J of the Act.
2 In this case, the SCT reviewed two decisions; one being that of the first respondent, Australian Super Pty Ltd (formerly STA) (the trustee); and the other of the second respondent, Colonial Mutual Life Assurance Society Limited (the insurer) who had made decisions rejecting the applicant’s claim for a Total Permanent Disablement Benefit (TPD).
3 It would seem the insurer rejected the applicant’s claim on 18 August 2005. It internally reviewed that decision but by letter dated 27 September 2005 maintained that rejection.
4 The trustee rejected the applicant’s claim on 3 November 2005. The Claims Review Committee of the trustee reviewed that decision and resolved on 16 December 2005 to maintain its decision to decline the applicant’s claim on the ground that “there was not sufficient evidence to support the view that you [the applicant] met the definition of Total and Permanent Disablement.”
5 An appeal lies to this Court pursuant to s 46 of the Act on a question of law: s 46(1). The appeal is, of course, an application in the original jurisdiction of the Court: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581.
6 The SCT has been appropriately joined as the third respondent to the appeal: SAAP v Minister of Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [43], [91], [153] and [180]. It has filed a submitting appearance which is also appropriate: The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
The Facts
7 The applicant was born on 1 September 1971. On 9 February 1999 the appellant joined the ANZ Super Advantage Superannuation Fund (ANZ) whilst employed by Bradflo Pty Ltd. He was in that employment from 4 January 1999 until 13 August 1999. He was a member of ANZ and was covered by the ANZ’s Insurance Policy which covered its members for TPD and death. His last insurance premium was deducted from his account on 9 September 2003. He withdrew all his superannuation on 26 September 2003 on the basis of financial hardship.
8 On 6 November 1999 he joined the trustee as a member of its superannuation fund whilst employed as a sales representative for Ness Security Products Pty Ltd. He was covered by a Group Life Insurance Policy No. K003779 issued by the insurer.
9 On 9 April 2001 he commenced employment with Rexel Australia Pty Ltd as a sales clerk. On Friday, 19 April 2002, whilst riding a motor cycle to his home from work, he was involved in an accident. He claims that as a result of that accident he suffered injuries to his ankles, right knee and lower back. He said he consulted a general practitioner on Sunday, 21 April 2002 and was prescribed painkillers and anti-inflammatory medication. He said he was advised by “GP doctors and took painkillers as well as muscle relaxants” and remained in his employment until 2 August 2002. He claims that he resigned on that day because of back pain, ankle pain, nightmares and “an extreme amount of pressure from management”.
10 In October 2002, on his general practitioner’s advice, he says, he commenced employment at Mayne Armaguard. He said that that job involved very light duties and no stress. Nevertheless, he said he was unable to continue in the employment as his pain was too intense to handle even though he had been treated with painkillers and muscle relaxants. He resigned in November 2002.
11 He became in receipt of a Disability Support Pension from Centrelink on 13 January 2003.
12 The applicant claims that as a result of pressure exerted by Centrelink and as part of a placement by the Commonwealth Rehabilitation Service, he commenced work in August 2003 in paid employment with Northside Mini Mix. He said that he resigned from that employment on 30 June 2004 because of pain and suffering. He has not been employed since that time.
13 On 6 August 2003, whilst the applicant was still a member of ANZ and covered by TPD Insurance, the applicant lodged a claim for TPD against ANZ which was rejected by Tower Australia Ltd (Tower), the insurer to ANZ, on 29 August 2005 and by ANZ on 26 September 2005. The claim against that trustee and insurer was for $81,000.
14 The clause regulating a member’s entitlement under ANZ provided:
3. “Total and Permanent Disablement” means the Life Insured.
3.1 is unable to follow his/her usual occupation with his/her employer by reason of accident or disease for the waiting period and in the opinion of [the Insurer], after consideration of medical evidence to [the Insurer’s] satisfaction is unlikely ever to be able to follow his/her usual occupation or any other occupation for which he/she could be reasonably considered qualified by education, experience or training; or
3.2 has suffered the total and irrecoverable loss or the use of:
a) both hands;
b) both feet;
c) one hand and one foot;
d) the sight of both eyes;
e) one hand and the sign of one eye; or
f) one foot and the sight of one eye.
The waiting period was defined as six months.
15 ANZ rejected the applicant’s claim on the basis that the applicant was not eligible to make a claim because his cover had lapsed on the relevant date. The applicant’s last insurance premium was deducted from his account on 9 September 2003 and he had withdrawn his entire benefits on 26 September 2003 on the basis of financial hardship. ANZ noted that as the relevant TPD claim form dated 6 August 2003 recorded that the applicant had only ceased work entirely on 30 November 2003 (actually 2002), and that the applicant had worked with Northside Mini Mix until 30 June 2004, he was ineligible for any TPD benefit because he had withdrawn all of his benefits on an earlier date, viz 26 September 2003.
16 Tower decided that the applicant ceased to be entitled to any TPD benefit when he ceased paying premiums (being 9 September 2003) and any entitlement needed to have accrued before September 2003. Tower stated that as the applicant was able to work after September 2003, he could not have been totally and permanently disabled according to the relevant definition.
17 On 20 February 2006 the applicant complained to the SCT that the decisions of ANZ and Tower were unfair or unreasonable. The applicant submitted to the SCT that due to the motorcycle accident he suffered impact damage to his ankles, his right knee and jarred his lower back. He outlined the medical treatment he had received for those injuries and submitted that in denying his TPD claim Tower had labelled his general practitioner and an unbiased Federal government doctor “Liars”.
18 The medical reports before the SCT were:
1. Treating Doctor’s Report for Centrelink completed by Dr RS in January 2003.
2. Initial Medical Report Form from Dr RS, dated 14 July 2003.
3. Report of Dr GR after assessment of applicant for Centrelink purposes on 10 February 2003.
19 The SCT observed that there was very little medical evidence concerning the extent of the applicant’s disabilities. It stated that there was no medical evidence about the cause of the applicant’s claimed disability. The applicant had not been assessed by an orthopaedic specialist nor had he undergone a CT scan or an MRI and it had not been determined whether the motorcycle accident in 2002 aggravated his Scheuermann’s disease, which he was diagnosed as suffering in 1994.
20 The SCT found that despite the applicant’s TPD form stating that he had a motorcycle accident in April 2003, which was the basis upon which Tower proceeded, the accident had occurred in April 2002. The SCT found that Tower suspected that the applicant may have manufactured his claim because of the discrepancy in the dates and therefore did not thoroughly investigate his alleged disabilities. It consequently decided that the making of a decision in those circumstances could not have been said to operate fairly and reasonably in relation to the applicant.
21 The SCT held that ANZ and Tower did not have the necessary evidence to conclude that the applicant did not meet the definition of TPD. Neither had sufficiently clarified the facts surrounding the applicant’s accident and did not obtain appropriate specialist medical reports taking account of both the impact of the accident and the Scheuermann’s disease. The SCT held that the two decisions therefore operated unfairly and unreasonably in relation to the applicant in the circumstances.
22 On 30 October 2006 the SCT remitted that matter to ANZ and Tower in accordance with s 37(3)(b) of the Act, with the following directions:
1. The Insurer to obtain the opinion of a pain specialist, an orthopaedic specialist or an occupational physician; and the Complainant to attend the appointment/s arranged by the Insurer; and
2. The Insurer and Trustee to assess the Complainant’s claim for payment of a TPD benefit in light of the correct facts in relation to the Complainant’s accident and work history and the further medical opinion/s obtained in accordance with these directions.
23 The 30 October 2006 decision is important because the applicant alleges that the decision, the subject of the current appeal, is inconsistent with that decision.
24 On 29 July 2003 the insurer received the applicant’s claim for TPD against the trustee, the STA Superannuation Fund. The clause regulating that entitlement under the STA Fund provided:
(73) “Total and Permanent Disablement” means disablement of a Member resulting from an illness, accident or injury to the Member which commenced or occurred whilst the Member was employed and whilst a Member as a result of which –
(a) the Member has been precluded for a period of six consecutive months after the date of occurrence of such event from following any occupation for which the Member is reasonably suited by education training or experience; and
(b) the Member will, in the opinion of the Trustee after consideration of medical evidence satisfactory to it, continue to be so disabled to such an extent as to render the Member unlikely ever again to resume work in or attend to any such occupation;
and “totally and permanently disabled” shall have a corresponding meaning PROVIDED THAT where at any time all or part of the Benefit payable in the event of Total and Permanent Disablement is insured with an insurance company, the term “Total and Permanent Disablement” shall bear the meaning ascribed to it in the relevant Policy in lieu of the above definition unless the Trustee in its absolute discretion otherwise determines; …
25 The applicant was insured with the insurer so that the clause in the relevant policy applied. It provided:
disablement where we are satisfied on medical or other evidence that an insured member:
(a) has been absent from employment for 6 consecutive months because of sickness or injury; and
(b) (i) is so incapacitated because of the sickness or injury that the person is prevented from ever engaging in is or her own occupation or any occupation for which he or she is reasonably suited by education, training or experience; or
(ii) has suffered the total and permanent loss of the use of:
● 2 hands; or
● 2 feet; or
● 1 hand and 1 foot; or
● the sight in both eyes; or
● 1 hand and the sight in 1 eye; or
● 1 foot and the sight in 1 eye,
where “hand” means whole hand below the wrist and “foot” means the whole foot below the ankle.
26 On 18 August 2005 the claim was rejected by the insurer and, on 3 November 2005, rejected by the trustee.
27 The applicant was employed with Rexel Australia Pty Ltd until 2 August 2002. As the applicant’s participating STA employer, it paid his final contribution to the trustee for the period ending 30 August 2002. That final payment was received by the trustee on 19 September 2002. The trustee therefore determined that the applicant’s insurance cover ceased on 28 February 2003, six months after the date on which his last contribution was paid.
28 The trustee declined the applicant’s TPD claim because the applicant had worked after his insurance cover had ceased on 28 February 2003. In that regard, the applicant did not meet the definition of TPD.
29 The insurer also refused the applicant’s claim as he had earned an income and demonstrated work capacity after the date for which he was claiming to be totally and permanently disabled and therefore did not meet the criteria set out in the relevant insurance policy.
30 On 28 April 2006 the applicant lodged a complaint with the SCT claiming that those decisions were unfair or unreasonable.
31 On 23 March 2007 the SCT dismissed that complaint. It is that decision which is the subject matter of this appeal.
32 Section 14(2) of the Act provides that a person who is a member of a regulated superannuation fund may make a complaint to the SCT that a decision made by a trustee is or was unfair or unreasonable: s 15(1)(b). If such a complaint is made, the parties to the complaint are to be the complainant, the trustee and, if the subject matter of the complaint relates to a disability benefit under a contract of insurance between the trustee and an insurer and the Tribunal decided that the insurer should be a party to the complaint, the insurer: s 18(1).
33 Section 37 identifies the SCT’s powers if a complaint is made under s 14. In particular, the SCT has all the powers, obligations and discretions that are conferred on the trustee: s 37(1)(a). If an insurer has been joined as a party to the complaint under s 14, the SCT, when reviewing the trustee’s decisions, must also review any decision of the insurer that is relevant to the complaint and, for that purpose, has all the powers and obligations that are conferred on the insurer: s 37(2).
34 Section 37(3) provides for the relief that the SCT may give after review and determination of the decision. The SCT may affirm the decision; remit the matter to which the decision relates to the trustee or insurer or other decision maker; vary the decision; or set aside the decision and substitute a decision for the decision so set aside.
35 Section 37(4) provides:
(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.
36 On this complaint the SCT had available before it several more medical reports than it had when making its first decision.
37 The relevant medical reports (and other evidence) that the SCT had at its disposal were:
1. Centrelink Medical Certificate completed by Dr BC on 13 August 2002.
2. Treating Doctor’s Report for Centrelink completed by Dr RS in January 2003.
3. Initial Medical Report Form from Dr RS (completed for the SCT’s first decision), dated 14 July 2003.
4. Report by Dr RS also of 14 July 2003, completed on the Insurer-generated form “Claim for Total and Permanent Disablement benefits”.
5. Reports provided by Dr RS to the insurer on 31 March 2005 including all medical notes regarding consultations the applicant had with doctors in his surgery from 1990 until July 2003.
6. Medical Assessment Report of the applicant by a Centrelink Doctor for Centrelink purposes on 20 February 2003 (some pages missing).
7. Report of general practitioner, Dr AR of 11 October 2004, obtained at the insurer’s request.
8. Health Insurance Commission reports relating to the applicant including his Medicare claims history report and Pharmaceuticals Benefit Scheme information from 1 January 2002 until 17 December 2004.
9. Video surveillance of applicant taken on 14 July 2005 and from 4-7 August 2005.
38 The applicant provided the SCT with detailed submissions. He claimed that in his motorcycle accident his ankles took the full force of the impact and that his right knee and lower back were also jarred and damaged by the impact. The applicant said that he could not continue working because of pain, feelings of animosity towards his bosses, nightmares due to the accident and being unable to sit or stand at work. He complained that he had developed sleep apnoea, and that due to stress from his employer and the “defamatory rulings by the superannuation company”, he suffered several psychological and psychiatric illnesses. The applicant said that he had not seen an orthopaedic surgeon. He said that by denying his TPD claim the insurer was labelling his general practitioner and an unbiased Federal Government doctor as “Liars”.
39 The SCT considered the medical evidence and noted that Dr RS’s evidence was inconsistent both with other reports of Dr RS and with Dr BC’s evidence, and it stated that it preferred the evidence of Dr BC. The SCT accepted that the applicant was granted a disability support pension in January 2003, however, it noted that the criteria for obtaining such a pension were quite different to those for a TPD benefit. Although the applicant had stated that his sleep apnoea meant that he could not drive and that the HIC reports confirmed he had undergone Sleep Studies in June 2004, video surveillance which was undertaken of the applicant in July and August 2005 showed that he was capable of driving without restriction. The video surveillance evidence contradicted the applicant’s submission that he required assistance to help him with his daily activities, including driving. The SCT concluded that this may have meant there had been some improvement in his condition.
40 The SCT held that there was no convincing medical evidence that supported the applicant’s decision to cease work due to his back condition in late 2002. The SCT found that he had resigned from this position for his own reasons. The SCT held that due to the applicant’s age and the sedentary nature of his work, that there was a high possibility that he could return to some form of employment. The SCT concluded that although some of the medical evidence was incomplete, there was sufficient evidence for it to be satisfied that the decisions of the insurer and the trustee were fair and reasonable. It therefore affirmed the decisions under review pursuant to s 37(6) of the Act.
41 Section 46(1) of the Act limits appeals to this Court to a question of law. Section 46(1) provides:
(1) A party may appeal to the Federal Court, on a question of law, from the determination of the Tribunal.
It is in that regard, like s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
42 In TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175, Gummow J, speaking of the corresponding provision in the AAT Act, said at 178:
Section 44 of the AAT Act is expressed in narrower terms than the old s 196 of the Tax Act. This provided for appeals from the Board of Review which “involved” a question of law. The result was that if some question of law was involved, the whole of the decision of the Board was open to review, not merely the question of law ...
This no longer will be the case with appeals brought to this court under s 44 of the AAT Act. The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself. (Footnotes omitted.)
That statement was approved by the Full Court in Birdseye v Australian Securities & Investments Commission (2003) 76 ALD 321.
43 The questions of law must be stated with precision: Australian Securities & Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290. Order 53B rule 2 of the Federal Court of Australia Rules 1979 (Cth) provides that O 53, with any necessary changes, applies for appeals from the SCT. Order 53 relates to appeals from the Administrative Appeals Tribunal (the Tribunal). In particular, O 53 r 3(2)(b) provides that the notice of appeal shall state the question or questions of law to be raised on the appeal.
44 It is the respondent’s contention that this notice of appeal does not comply with O 53 r 3(2)(b) but, more particularly, does not raise any question of law.
45 In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, the Full Court of the Federal Court sought to identify from previous decisions what might amount to a question of law. That decision was considered by the High Court in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389. The Court said at 395:
Some recent Federal Court decisions have attempted to distil the numerous authorities on the problem into a number of general propositions. Thus in Pozzolanic, after referring to many cases, the Court identified five general propositions:
“1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.
2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact.
3. The meaning of a technical legal term is a question of law.
4. The effect or construction of a term whose meaning or interpretation is established is a question of law.
5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.”
(Footnotes omitted.)
46 However, the High Court warned that general propositions might not be helpful in all circumstances. The Court said at 396:
Such general expositions of the law are helpful in many circumstances. But they lose a degree of their utility when, as in the present case, the phrase or term in issue is complex or the inquiry that the primary decision-maker embarked upon is not clear.
47 Here the inquiry which the Tribunal had to undertake was clear and the matter was not complex. The Tribunal needed to determine whether it was satisfied that the decisions under review were fair and reasonable under the circumstances.
48 The notice of appeal sets out four questions which are said to be questions of law:
a. Inconsistent findings in two determinations of the same matter.
b. Failure to take into account all the facts.
c. Errors and incorrect inferences relating to the facts.
d. Withholding of natural justice.
49 Those questions are expanded under paragraph 4 headed “GROUNDS”:
a. The SCT made a finding on the 30 October 2006 against the decision by a different Insurer and Trustee for the same matter.
b. The SCT failed to take into account all the facts in the matter and took the opinion of people with no medical qualifications who made incorrect inferences towards abilities.
c. The SCT made numerous errors in their determination to affirm the decision of the Insurer and Trustee.
d. The determination of the SCT withheld natural justice and is biased against and judgemental toward the applicant, as well as not being fair.
e. The SCT made the determination by relying upon inadmissible evidence.
50 The applicant, who was unrepresented, provided the Court with an outline of argument in point form which seemed to raise additional matters not included in the notice of appeal:
1. Failure of the SCT to consider all the Facts of the matter.
2. Errors made by SCT in determination.
3. Inconsistent Determinations of the SCT.
4. Inadmissible Evidence relied upon by SCT.
5. Withholding of Natural Justice.
6. Denying Procedural Fairness.
7. Section 37(6) of the Complaints Act – Not applicable.
8. Section 37(3) (4) (5) of the Complaints Act – Should have been applied.
9. Conspiracy of Insurer/Trustee.
The applicant’s oral presentation addressed the outline of argument.
51 The respondents were content to address the expanded version addressed by the applicant in the outline of argument and in his oral presentation.
52 In a sense, to do so is to ignore the cases to which I have referred which have considered O 53 r 3(2) and which have determined that the notice of appeal should contain a precise statement of the questions of law which are sought to be agitated. However, the respondents should not be criticised for taking a practical approach in the circumstances of this case. I have merely made the observation because if the respondents had sought to limit the applicant to the grounds of appeal in the notice of appeal I would have acceded to that request.
53 However, I shall deal with each of the asserted grounds of appeal in the outline of argument seriatim.
1. Failure of the SCT to consider all the facts of the matter
54 This “ground” picks up paragraph 2b of the questions of law and paragraph 4b of the grounds in the notice of appeal.
55 A failure to take into account particular facts will only raise a question of law if the Tribunal was bound to take that fact or that matter into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. The applicant complained that the SCT should not have taken into account the video surveillance evidence because it was in digital format. He said that the video might have been altered, cropped, edited or corrupted in its conversion to the digital format. He also complained that the SCT failed to take into consideration that the medical report from Dr BC was based on a short term medical treatment. It failed to take into account that Dr BC was a general practitioner, not a specialist. It failed to take into account any and all pain levels experienced in the activities seen on the video footage. He said that the SCT could not know what medication he had taken on that day or prior to being able to drive his vehicle. The SCT failed to take into account the disadvantage that he had been placed in by receiving his disability support pension. He said also that the SCT should not have taken into account the report of the private investigators. They were not signed and therefore they were inadmissible.
56 The Tribunal’s powers, for complaints under s 14, are identified in s 37. In particular, the Tribunal is obliged to affirm a decision in relation to a complainant if satisfied that the decision was fair and reasonable in the circumstances. Section 37(6) of the Act provides:
(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.
57 The Tribunal is not compelled or obliged to take into account any particular consideration in determining whether or not a decision was fair and reasonable.
58 The matters about which the applicant complained were not matters which the SCT was bound to take into account. However, they were matters which were relevant to the inquiry which the SCT was bound to undertake. It was for the Tribunal to determine whether or not the decision under review was fair and reasonable and the SCT took into account the matters relevant to the applicant’s claim for total and permanent disability.
59 Effectively, this “ground” seeks a merits review and does not raise a question of law.
2. Errors made by SCT in determination
60 This “ground” appears to take up paragraph 2c of the questions of law and paragraph 4c of the grounds in the notice of appeal. The applicant did not identify what was said to be the errors except, generally, that the SCT did not reach the correct conclusion. This, like the first “ground”, is an invitation to this Court to conduct a merits review. The invitation has to be declined because of the provisions of s 46 of the Act.
3. Inconsistent determinations of the SCT
61 Paragraph 2a of the questions of law and paragraph 4a of the grounds in the notice of appeal appear to relate to this matter.
62 In this “ground” the applicant is referring to the SCT’s 30 October 2006 decision.
63 There is in fact no inconsistency between the two decisions. In the decision made on 30 October 2006 the SCT found that the insurer had misinformed itself about the date of the accident and proceeded to make a decision without having before it all of the medical evidence.
64 When the decision by the SCT was made which gives rise to this appeal, the SCT had before it evidence which had not previously been available to it. That included:
1. A medical certificate dated 13 August 2002 from Dr BC. That medical certificate stated that the applicant was unable to work from 1 August 2002 until 1 September 2002 because of “work related stress problems with management”. It did not assert that he was unable to work as a result of his injuries suffered in the motor bike accident. It also asserted that the applicant was unlikely to have any long-term problems with lifting which would seem to be inconsistent with the claimed physical injuries. It also asserted that the applicant could work at least 8 hours per week.
2. A print-out from the Pharmaceutical Benefits Scheme of medication dispensed to the applicant between 1 January 2002 and 17 December 2004 which indicated that he was not having dispensed anti-inflammatory and strong pain-killing medication during 2002.
3. Health Insurance Commission records which indicated that the applicant did not seek treatment for any physical injuries in the month of April 2002 or in November 2002 when he ceased working for Mayne Armaguard.
4. Video surveillance evidence taken in July and August 2005 inconsistent with the applicant’s complaints.
65 Clearly, the evidence which was before the SCT which gave rise to this decision was substantially different and more complete than that considered by the SCT in the 30 October 2006 decision.
66 However, even if there were inconsistencies between the two decisions, that would not, in my opinion, raise a question of law. It would, like the first two grounds, be an invitation to this Court to embark on a merits review.
4. Inadmissible Evidence relied upon by SCT
67 This would seem to be paragraphs 4b and 4e of the grounds in the notice of appeal but it is not a question of law in the notice of appeal.
68 Presumably, the applicant is complaining as he says in the grounds that the Tribunal took the opinion of people with no medical qualifications. He also said in his oral submissions that the video footage was inadmissible because of its digital format. He said the reports of private investigators relating to this video footage were unsigned. There is nothing in either of those points.
69 This is not a question of law. The SCT was not bound by the rules of evidence: s 36 of the Act. It is entitled to inform itself of any matter relevant to the review in any way it thinks appropriate: s 36(c) of the Act.
5. Withholding of Natural Justice and 6. Denying Procedural Fairness
70 I will deal with these two “grounds” together. They appear to be paragraph 2d of the questions of law and paragraph 4d of the grounds in the notice of appeal.
71 If the SCT had denied the applicant procedural fairness, or did not offer the applicant natural justice, that could raise a question of law.
72 The difficulty the applicant has is that he has not precisely identified the question of law which is said to be raised. During his oral submission he said that natural justice was withheld because the SCT watched the video and judged him on that. He said he was denied procedural fairness by the video being admitted. The SCT did not inform him that Australian Super Pty Ltd was to be joined and that it had changed its name. He said that he was not given the opportunity to state his case adequately. He said in his submissions:
Also, I believe that the SCT denied procedural fairness to me by not giving me the opportunity to state my case adequately, compared to the opportunity that the trustee and the insurer was given. The SCT was aware and knew that I was on limited income, disability support pension, your Honour, and yet placed no limitations on the amount of money or resources that the trustee and insurer were able to use to make their submission. I believe that was not fair in that matter because I am on limited funds, and I don’t have the same resources that a big multi-national conglomerate does like that.
73 None of the matters which the applicant identified in his submissions amount to denial of procedural fairness or a failure to provide the applicant with natural justice.
74 In fact, the applicant made a written submission to the SCT. The SCT provided him with the submissions made by the trustee and by the insurer. The applicant’s submissions were provided to the trustee and to the insurer but neither made further submissions in reply. The applicant was notified accordingly. The submissions made by the parties were considered by the SCT in the course of making its decision. The applicant complained that he was not given an oral hearing. However, there is nothing in that complaint. The SCT had to proceed in accordance with s 34(1) of the Act and consider the matter without proceeding to an oral hearing.
75 The applicant has not identified any facts which give rise to the claimed question of law.
7. Section 37(6) of the Complaints Act – Not applicable and 8. Section 37(3)(4)(5) of the Complaints Act – should have been applied
76 The sections to which the applicant refers are those sections which identify the SCT’s powers. I have already identified s 37(6) earlier in these reasons.
77 This claimed question of law is no more than an assertion that the SCT should not have come to the decision that it did.
9. Conspiracy of Insurer/Trustee
78 In his submissions the applicant claimed that both insurance companies had conspired together to disprove and deny his claim. He gave no details of the conspiracy or how it might raise a question of law.
79 The applicant has not raised any question of law which would provide him with a right to appeal to this Court pursuant to s 46 of the Act.
Other Matters
80 There was one matter not relied on by the applicant but which was brought to my attention by the respondents which ought to be addressed in these reasons.
81 The trustee’s original consolidated Trust Deed is dated 24 June 1997 (1997 Trust Deed). That Deed was amended by a Deed of Variation dated 29 May 2001 and by a further Deed of Variation approved at a meeting of its directors on 30 May 2002 and executed on 27 June 2002 (2002 Trust Deed). It was subsequently varied on 19 December 2002 (and executed on 26 February 2003), but that variation is not relevant on this appeal. The Deed which is relevant to this appeal was the 2002 Trust Deed adopted on 29 May 2001 and varied as executed on 27 June 2002.
82 The SCT said in paragraph [13] of its reasons:
13. The Tribunal is of the view that the version of the Fund’s trust deed that is relevant in this matter is that which was in effect on the date when the complainant ceased employment with the Employer (i.e. 2 August 2002), being the Trust Deed as amended to 27 June 2002 (Trust Deed).
I will return to that statement.
83 In paragraph [14] of its reasons the SCT set out the definition of interpretation of total and permanent disablement. The definition which it has included is that definition which is in the 2002 Trust Deed but it is incorrectly numbered by reference to the 1997 Trust Deed.
84 The definition which is given in paragraph [14] of the SCT reasons is:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Deed, unless the contrary intention appears -
“Total and Permanent Disablement” means disablement of a Member resulting from an illness, accident or injury to the Member which commenced or occurred whilst the Member was employed and whilst a Member as a result of which –
(a) the Member has been precluded for a period of six consecutive months after the date of the occurrence of such event from following any occupation for which the Member is reasonably suited by education, training or experience; and
(b) the Member will, in the opinion of the Trustee after consideration of medical evidence satisfactory to it, continue to be so disabled to such an extent as to render the Member unlikely ever again to resume work in or attend to such occupation;
and “totally and permanently disabled” shall have a corresponding meaning PROVIDED THAT where at any time all or part of the Benefit payable in the event of Total and Permanent Disablement is insured with an insurance company, the term “Total and Permanent Disablement” shall bear the meaning ascribed to it in the relevant Policy in lieu of the above definition unless the Trustee in its absolute discretion otherwise determines.
85 That, in fact, is the definition which is taken from the 2002 Trust Deed but is numbered as if it were the 1997 Trust Deed.
86 The only difference between the definition of total and permanent disablement in the two deeds is that in the 1997 Trust Deed after the word “employed” in the third sentence are the words “by an employer” so that the introductory words read “... whilst the member was employed by an employer ...”.
87 The definition which is referred to in the SCT reasons therefore is the definition in the 2002 Trust Deed, but incorrectly numbered as if it were the definition in the 1997 Trust Deed.
88 The SCT also referred to the trustee’s powers to take out insurance and the cover which would be available to a member for total and permanent disablement benefit. The two definitions which are referred to in that regard are from the 1997 Trust Deed.
89 Notwithstanding the SCT has made reference to the wrong definitions in relation to insurance and total and permanent disablement benefit, that does not impact upon the integrity of its decision for two reasons. First, the definitions of both “insurance” and “total and permanent disablement benefit” are almost identical in the two deeds and not dissimilar to affect the SCT’s reasoning process or the decision arrived at. Secondly, and even more importantly, neither of those definitions became relevant in the SCT’s reasons because the SCT found that the applicant did not come within the definition of total and permanent disablement.
90 It follows, therefore, that the error in numbering the definition of total and permanent disablement and the wrong reference to the power to insure and the wrong reference to the total and permanent disablement benefit does not impact upon the SCT’s decision.
91 I raised with counsel for the respondents two other matters.
92 The SCT also made reference to the definition of total and permanent disablement in the life insurance policy operating between the first and second respondents.
93 Condition 13 of the relevant policy defines “total and permanent disablement”. This has been referred to above: [25].
94 In its reasons, the SCT did not indicate in terms whether it was determining the applicant’s claim of total and permanent disablement against the definition contained in the Trust Deed or the definition contained in the insurance policy.
95 Because of the definition of total and permanent disablement in the 2002 Trust Deed itself (set out at [24] above), the SCT needed to determine the applicant’s eligibility by reference to the definition of total and permanent disablement in the insurance policy.
96 It is implicit, in my opinion, in the SCT’s reasons, that it did have regard to the definition contained in the insurance policy although it does not expressly say so. If it were otherwise, it would not have included a reference to that definition. It appears to me that it has included the definition in the insurance policy so as to comply with the definition in the 2002 Trust Deed.
97 In any event, even if it determined the applicant’s eligibility as against the definition in the 2002 Trust Deed, the result would have been the same because there is no difference in the meaning of the definitions in the 2002 Trust Deed and the insurance policy.
98 The second matter I raised is more substantial. As I have said, the SCT said in paragraph [13] of its reasons that the relevant version of the fund’s Trust Deed is the date when the complainant ceased employment with the employer, namely 2 August 2002.
99 In my opinion, that is not correct. The procedure under s 37 of the Act is to review the decisions made by the trustee and insurer. The SCT needs to determine whether those decisions were correct when they were made. In Davis v Rio Tinto Staff Superannuation Fund Pty Ltd (2002) 118 FCR 170 at 173-174 at [15], Heerey J said:
Under s 37 of the Act the function of the Tribunal was to determine whether the decision of the Trustee was fair and reasonable in the circumstances: see National Mutual Life Association of Autralia Ltd v Campbell (2000) 99 FCR 562 and the cases therein cited. Counsel for the applicant submitted that the relevant time to consider whether the applicant was TPD within the meaning of the contract of insurance was 19 February 1999, that being six months from the date on which he last worked. I do not agree. What the Tribunal had to review and either affirm, vary or set aside was the decision of the Trustee made on 23 December 1999 and subsequently reviewed and affirmed by the Trustee on 1 June 2000 and 28 June 2000. Although not explicitly stated, it would seem that the Tribunal regarded its task as reviewing the decision of the Trustee as at the last mentioned date, an approach I think was correct. The system of review under the Act is to be distinguished from claims made by an insured under a policy: cf Giles v National Mutual Life Association of Australasia Ltd (1986) 4 ANZ Ins Cas 60-751.
See also Samaras v Australian Retirement Fund Pty Ltd [2007] FCA 1323 per Gordon J at [18].
100 In this case, the SCT was obliged to consider, on review, whether the decisions were fair and reasonable when they were made.
101 The decisions were finally made by the insurer on 27 September 2005 and the trustee on 16 December 2005.
102 It seems to me therefore that the SCT conducted its review by reference to the wrong date. Moreover, there was no evidence as to the terms of the Trust Deed or the insurance policy as at the date when the review needed to be conducted.
103 In those circumstances, the SCT has made an error of law by reviewing the applicant’s entitlement as at the wrong date.
104 In those circumstances, the appeal must be allowed and the decision made by the SCT quashed. The applicant’s complaint should be remitted to the SCT for determination according to law.
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I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. |
Associate:
Dated: 22 May 2008
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Counsel for the Applicant: |
The Applicant appeared in person |
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Counsel for the First and Second Respondents: |
Mr R Whiteford |
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Solicitor for the First and Second Respondents: |
Bain Gasteen Lawyers |
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Date of Hearing: |
27 September 2007 |
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Date of Judgment: |
22 May 2008 |
