FEDERAL COURT OF AUSTRALIA

Kowalski v AMP Superannuation Limited [2010] FCA 1170

REASONS FOR JUDGMENT

1                     The applicant on 6 April 2010 sought relief against the respondent for a purported breach of fiduciary relationship, breach of trust, breach of good faith, breach of contract, breach of s 13 of the Insurance Contracts Act 1984 (Cth), fraud and negligence including by breach of statutory duties.

2                     The respondent then applied by motion of 12 May 2010, to have the application dismissed pursuant to O 20 r 5(1)(a) of the Federal Court Rules (FC Rules) on the ground that the claim is frivolous and vexatious as it has no prospects of success, and alternatively under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) on the ground that the application has no reasonable prospects of success.  The motion was heard on 15 June 2010.

3                     During that hearing, the applicant sought leave to amend the application and the statement of claim.  He was directed to file and serve a document setting out the precise terms of the proposed further amendments and written submissions as to why the proposed amendments should be allowed, and why the orders sought on the motion – in the light of the proposed amendments – should be refused.  The respondent was directed to file and serve submissions in support of the motion including addressing the proposed amendments. Those documents were duly filed.

4                     The applicant also applied orally and in writing for me to recuse myself from hearing the motion and his application generally.

5                     I will deal with each of these applications separately below.

Background

6                     The respondent is the trustee of an employer-sponsored corporate superannuation fund, the Mitsubishi Motors Australia Ltd Staff Superannuation Fund (the Fund).  The relevant employer is Mitsubishi Motors Australia Limited (Mitsubishi).

7                     The applicant has a long history of litigation relating to the termination of his employment at Mitsubishi. He has made a number of challenges to the respondent, or its predecessor, for the alleged refusal or failure to exercise the powers and discretions as trustee favourably to the applicant in respect of an assertion by him that he is or was entitled to receive a Total and Permanent Disability benefit (TPDB) from the Fund. He has also brought a number of proceedings against Mitsubishi in relation to the termination of his employment, as well as his entitlement to superannuation benefits.

8                     The applicant began employment with Mitsubishi on 16 January 1964.  He last physically attended work on 16 August 1991, when he suffered a psychological injury/mental breakdown.  On 16 March 1994 Mitsubishi notified the applicant in writing that it considered his employment contract frustrated. 

9                     Shortly after he received this letter, on 6 April 1994, the applicant’s union gave notice to the Australian Industrial Relations Commission (the AIRC) of an industrial dispute concerning the alleged termination of the applicant’s employment.  The dispute was the subject of a number of hearings before a Commissioner of the AIRC but does not appear (so far as the evidence on this application goes) to have been concluded by any formal order.

10                  On 18 December 1997 the applicant lodged an application in this Court for an extension of time in which to institute proceedings against Mitsubishi for unfair dismissal, purportedly pursuant to s 170EA of the Industrial Relations Act 1988 (Cth) as then in force.  The application was dismissed on 16 October 1998 for want of jurisdiction, as s 170EA of the Industrial Relations Act had no operation on the date the application was filed:  see Kowalski v Mitsubishi Motors Australia Limited (1998) 88 FCR 55.

11                  Then, on 16 October 1998, the applicant instituted further proceedings in the AIRC against Mitsubishi pursuant to s 170CE(1) of the Workplace Relations Act 1996 (Cth) (the WR Act) for reinstatement and compensation in respect of the termination of his employment on the grounds that the termination was harsh, unjust or unreasonable, was motivated by discrimination, and that he had not been given written notice of the termination.  Soon after the institution of those proceedings, the applicant and Mitsubishi participated in a private mediation, apparently resulting in the settlement of the dispute.  One topic apparently addressed in the mediation was any entitlement the applicant had as a result of the termination of his employment with Mitsubishi including “superannuation, sickness benefits or otherwise”. 

12                  The terms of the settlement were recorded in a signed document dated 27 October 1998 entitled ‘Heads of Agreement’ to which the applicant and Mitsubishi were parties (the Heads of Agreement).  The Heads of Agreement are not in evidence on this application.  However it is said they record the applicant and Mitsubishi having agreed to resolution “of all issues both current and future in dispute between them”. The applicant asserts that the Heads of Agreement did not finally settle his claim for TPDB from the respondent.

13                  On 23 November 1999, the applicant commenced further proceedings against Mitsubishi in the AIRC again under s 170CE(1) of the WR Act, seeking an extension of time to bring a further claim.  The grounds on which the extension of time was sought included that the Heads of Agreement was not entered into in good faith by Mitsubishi.  On 20 November 2001 the AIRC dismissed the application.  It concluded the Heads of Agreement bound the applicant not to bring the proceedings, that there was no evidence to support the assertion that the Heads of Agreement was not negotiated in good faith, and that the employment relationship between the applicant and Mitsubishi ended on 16 March 1994.  An appeal from that decision was dismissed by the Full Commission of the AIRC on 1 March 2002.  It upheld the finding the applicant’s employment ceased on 16 March 1994.  The AIRC therefore had no jurisdiction to entertain the application, as Part VIA of the WR Act, including s 170CE, commenced and applied only to terminations of employment occurring after 30 March 1993:  see Industrial Relations Reform Act 1993 (Cth) and Workplace Relations and Other Legislation Amendment Act 1996 (Cth), Sch 6, item 17(1).

14                  On 24 September 1999, the applicant by complaint to the Superannuation Complaints Tribunal commenced proceedings against the then Trustee of the Fund, Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (the Trustee), a predecessor of the respondent.  Relevantly, his complaint was about the Trustee’s decision of 9 June 1999 to reject his claim for a TPDB under the Fund, following his claim for such a benefit made by letters of 19 and 24 July 1999 and its alleged failure to respond to his request that it review its decision.  The Superannuation Complaints Tribunal, on 23 November 2001, withdrew the complaint under s 22(4) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) firstly because it had no jurisdiction to deal with the complaint under that Act, and secondly because the subject matter had been dealt with by the AIRC.  It enclosed a copy of the AIRC decision of 20 November 2001.  It had notified the applicant of its lack of jurisdiction in earlier correspondence going back to 8 October 1999, before formally deciding that it would withdraw the complaint.

15                  On 23 October 2001 the applicant in this Court sought orders against the Trustee and Mitsubishi for compensation and punitive damages arising out of the termination of his employment.  The Application was purportedly made:

… pursuant to clause A.19 and Section C of the Mitsubishi Motors Australia Staff Superannuation Fund Trust Deed and Rules and s 298K(1)(a), (b) and (c), s 298L(1)(h), (i), (j), (k) and s 298L(2)(a), (b) and (c) and s 298U(b), (c) and (d) of the Workplace Relations Act 1996 as amended under Part IV of the Federal Courts Act 1976 and the Courts accrued jurisdiction.

16                  The primary claim of the applicant was then expressed as follows:

…the applicant’s contract of employment was not frustrated on 16 March 1994 by operation of law before he was constructively dismissed on 27 October 1998, therefore, the Court must order the respondents to make a payment to the applicant for the purpose of restoring the applicant to the same position that he would have been in if the first and the second respondents had complied with the terms and conditions of the Mitsubishi Motors Australia Limited (Supervisory and Technical Employees) Award 1987, the Mitsubishi Motors Australia Limited (Enterprise Agreement) 1993 [Print K9656] which was ratified by the AIRC on 27 January 1994 and the Mitsubishi Motors Australia Staff Superannuation Fund Trust Deed and Rules during the period from 16 March 1994 up to an including 27 October 1998.

17                  The applicant claimed “all of his legally entitled benefits up to and including the date that he was constructively dismissed” on 27 October 1998.

18                  As against the Trustee, the application included a claim for punitive damages for the loss of the applicant’s entitlement to superannuation benefits “for a period of 14 years from the date that he was constructively dismissed on 27 October 1998 to the age of 65,” and punitive damages for the loss of a TPDB to which he claims he was legally entitled by reason of his suffering a heart attack on 26 December 1997 and by reason of a depressive illness which developed in January 1998, and compensation for pain and suffering.  Against Mitsubishi, the applicant claimed compensation for pain and suffering, punitive damages for past economic loss and loss of superannuation benefits from 16 August 1991 to 27 October 1998, and punitive damages for future economic loss and loss of future superannuation benefits calculated from the date of his ‘constructive dismissal’ to his reaching the age of 65.

19                  On 17 September 2002 I dismissed that application under O 20 r 2 of the FC Rules as I found that there were no prospects of his claims against the Trustee or Mitsubishi being successful in this Court.  In relation to the claims against the Trustee I held that there was no jurisdiction to entertain such claims, as there was no Commonwealth enactment referred to by which the Court was given jurisdiction to entertain any of the claims.  In relation to the claims against Mitsubishi, I held the applicant was estopped from asserting that his employment ceased other than 16 March 1994 and from asserting that his employment continued until 27 October 1998.  I also held his claims had no reasonable prospect of success in the face of the Heads of Agreement: see Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd [2002] FCA 1153.  The applicant appealed from this decision to the Full Court.  The appeal was dismissed on 28 February 2003: see Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Fund Pty Ltd [2003] FCAFC 18.

20                  On 25 January 2007 the applicant applied again to this Court for an order that the Trustee pay him “his correct statutory and legally entitled Total and Permanent Disablement Benefit plus compound interest since 16 March 1994 in the sum of about $280,000.00”. The application involved the following four claims, the first three being founded on alleged breaches of fiduciary duty and breaches of trust (echoed in the present application):

·                    the Trustee should have considered, but failed properly to do so, his entitlement to a TPDB at the time he was paid a resignation benefit in August/September 1994;

·                    the Trustee should have considered, but failed properly to do so, his entitlement to a TPDB at the time he was paid his ill-health benefit in November 1998;

·                    the Trustee should have considered, but failed properly to consider, his claim for a TPDB in November 2005; and

·                    The Trustee was negligent in failing to perform its duty to the applicant in not making a correct and proper determination of his entitlement to a TPDB.

21                  On two occasions Finn J refused to summarily dismiss this application, and gave the applicant leave to file and serve an amended application and statement of claim: see Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2007) 242 ALR 370 and  Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691. On a third occasion, 5 February 2009, his Honour struck out the applicant's further amended statement of claim, and the proceeding was summarily dismissed pursuant to s 31A of the FCA Act. His Honour found that the applicant's claim that a benefit should have been paid to him on the cessation of his employment in 1994 had no reasonable prospects of success on the basis that no formal application was made to the Trustee at that time and there was no evidence that the Trustee was informed of, or provided with, any medical evidence as to his entitlement.  In relation to the claim that the Trustee should have considered his entitlement to a benefit in November 1998, his Honour found that there were also no reasonable prospects of success as again no formal application was made to the Trustee at that time.  In relation to the Trustee’s treatment of his application for the benefit in 2005, his Honour held that it also enjoyed no reasonable prospects of success as it was clear that the Trustee had considered and reconsidered his claim on a number of occasions between 1999 and 2005, and the Trustee was entitled to decline to re-entertain the same matter in the absence of a change of circumstances. His Honour further found that none of the breach of trust or breach of fiduciary duty claims raised by the applicant had any reasonable prospects of success: see Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 3) [2009] FCA 53.

22                  The applicant applied for leave to appeal from that decision to the Full Court in a ‘Notice of Appeal’ of 6 February 2009. On 9 September 2009 a Full Court (Spender, Graham and Gilmour JJ) rejected the application for leave and held that the purported appeal was to be dismissed as none of the matters argued in the applicant's proposed grounds of appeal or his notice of appeal supported the conclusion that the decision of Finn J was erroneous. The Court held that the decision at first instance was not attended with sufficient doubt to warrant its reconsideration by the Full Court: see Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117.

23                  The applicant applied to the High Court for special leave to appeal from the Full Court decision. On 11 March 2010 Gummow and Kiefel JJ refused the application for special leave.  Their Honours did not consider that the applicant advanced any questions of law that would justify a grant of special leave to appeal and considered there were insufficient prospects of success. Their Honours also noted that s 33(4B) of the FCA Act provides that an appeal must not be brought to the High Court from a Federal Court judgment refusing leave to appeal: see Kowalski v Mitsubishi Motors Australia Staff Superannuation Pty Ltd & Anor [2010] HCASL 21.

24                  Finally, on 13 October 2009 the applicant filed a notice of appeal in this Court, appealing against a purported decision of the Superannuation Complaints Tribunal made on 9 October 2009, in which he also named the respondent in this proceeding as a respondent. He alleged that the Tribunal made a decision unfavourable to him and that that decision contained errors of law. The alleged decision made by the Tribunal was that it did not have jurisdiction to deal with the applicant’s complaint. On 9 October 2009, the Tribunal had written to Mr Kowalski explaining the position. The letter relevantly states:

The Tribunal has considered your arguments and must confirm that it does not have jurisdiction to deal with your complaint.

Firstly, the Tribunal notes that you have not provided any evidence to support your allegation that the decision made on 18 August 1992 to decline your disability claim was not in respect of your membership in the Mitsubishi Motors Australia Staff Superannuation Fund.

As advised in the Tribunal’s letter dated 25 September 2009, you were advised in each of your previous complaints (SCT file numbers 99-C0903\1 & 03-01486) that the Tribunal is prevented by section 14(6A) of the Superannuation (Resolution of Complaints) Act 1993 (SRC Act) from dealing with your complaints because the Trustee’s decision was made prior to 1 November 1994.

The effect of sections 14(6C) and 14(6D) of the SRC Act, is that, where more than one decision has been made by a Trustee in regards to a TPD benefit, the date of the decision for the purposes of section 14(6A) is that of the original decision.

Section 14(6C) specifies that the decision for the purposes of section 14(6A) is the original decision. Section 14(6D) further specifies that, where a later decision has been made as a result of a complaint about the original decision, the new decision is taken to have been made at the time when the original decision was made.

In your case, the original decision was made on 18 August 1992. As described above, for the purposes of section 14(6A), any later decisions are taken to have been made on the same date, ie 18 August 1992. On this basis, section 14(6A) precludes the Tribunal from dealing with your complaint because the Trustee’s decision was made prior to 1 November 1994.  (Tribunal’s emphasis)

25                  The applicant had not applied to set aside, or to appeal from, the Tribunal’s earlier decision of 23 November 2001, referred to in [14] above.

26                  On 30 December 2009, the respondent applied by motion seeking an order that the proceeding be summarily dismissed. The respondent contended that the decision complained of by the applicant was not a “determination” of the Tribunal within the meaning of s 46(1) of the Superannuation (Resolution of Complaints) Act 1993 (Cth). It was alleged that the decision was an anterior administrative decision of an officer of the Tribunal from which no “appeal” arises under s 46 of the Act.

27                  On 14 May 2010, Besanko J found that the applicant’s appeal of the purported decision of 9 October 2009 had no reasonable prospect of success and should be dismissed pursuant to s 31A(2) of the FCA Act: see Kowalski v Superannuation Complaints Tribunal [2010] FCA 473.

28                  I now turn to the present application.

RECUSAL Application

29                  The applicant applied for me to disqualify myself from hearing the current proceeding in his outline of contentions filed 10 June 2010, in written submissions filed 15 June 2010 and in further written submissions dated 29 June 2010, as well as orally, at a directions hearing on 26 May 2010 and then at the hearing of the motion on 15 June 2010. On each occasion I declined to do so and indicated that I would provide my reasons for so ruling at the same time as I ruled on the motion itself of 12 May 2010.  

30                  The applicant contended that I have demonstrated actual bias by making false and misleading findings on the applicant’s credibility and have “fabricated” a number of decisions where the applicant was a party. He also asserts that I previously have refused to allow him to tender important and relevant documents in other proceedings. Needless to say, the assertions do not establish the fact.  It is necessary to consider whether there is any foundation for the assertion.  I also measure the material relied upon against the test for apparent or ostensible bias. To establish ostensible or apparent bias on the part of a judge it is necessary to determine objectively whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question which the judge is required to decide: Johnson v Johnson (2000) 201 CLR 488 at 492.

31                  In his written submissions of 15 June 2010 the applicant referred to and attached my reasons for decision in other proceedings in which he was the applicant: Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 408. On that attachment the applicant made hand written notes highlighting the passages which, he says, are wrong or which, he says, are negative findings on his credibility and thus demonstrate why I should disqualify myself.  I have considered the notations.

32                  The notations point to passages where the applicant disagrees with my findings. I have considered each of them.  By way of example, the passage highlighted at [33] of the reasons reads as follows:

In any event, the [applicant] has not persuaded me that the Tribunal, in making that finding of fact, erred on a matter of law so as to enliven the Court’s power to upset that factual finding.

The applicant’s notes against that passage read:

Mansfield J did not believe me [therefore] he made a negative finding on my credibility [therefore] he must disqualify himself.

33                  It does not follow that because a judge is not persuaded by an applicant’s legal submissions that an adverse credibility finding has been made against that applicant.  The applicant has not identified any passage in those reasons which constitutes adverse findings on the credit of the applicant in that decision.  Nor has he identified elsewhere that I have made adverse findings as to his credit.  Even assuming that an adverse credibility finding in a matter would demonstrate that, in an unrelated matter, the judge who made that finding was biased against the applicant, the premise is not made out.  Indeed, the assumption itself is not necessarily correct.  Some cases are decided on issues of credit, and adverse credibility findings might be expressed in a way that might lead a fair minded lay observer to conclude that the judge might not bring an impartial and unprejudiced mind to resolution of another case.  On the other hand, the adverse credibility findings in one case may be made in terms, or for reasons, which would not support such a conclusion.  The person may not be believed on a particular factual matter only in the face of clear and inconsistent documentary evidence, and so may be found to be mistaken.  That person may otherwise be accepted as a reliable witness.  A later case may not turn on credit at all.  There are a wide variety of potential circumstances which may need to be considered.  Putting aside issues of credit, however, I do not accept that the fact that a judge has rejected a legal contention in one case supports a conclusion that the judge cannot fairly and independently consider and determine a different legal contention, either in that case or in a later case involving one or more of the same parties.

34                  In this matter, I do not accept that my findings or observations in the decision relied upon by the applicant demonstrate actual or apprehended bias. A “fair-minded lay observer” would not think that, because I have not been persuaded by the applicant’s legal argument as to whether there was an error of law in relation to another unrelated matter, I might be incapable of resolving the issues in this case with a fair and unprejudiced mind.

35                  The second limb of the applicant’s contentions related to the alleged fabrication of results in two decisions.

36                  The written submissions of 15 June 2010 attached a ‘Medicare Australia Information Report’ dated 1 June 2010, which lists the applicant’s patient history from 1984 to 1988. The applicant highlighted the record of his consult with Dr Cheung and three consultations with Dr Williams, all in 1987. One consultation with Dr Williams records that an “Oesophagoscopy, Gastroscopy, Duodenoscopy or Panendoscopy” was performed. The applicant contends that this is evidence that he was suffering from gastro-oesophageal reflux disease (GORD) in 1987, and thus my decision in Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 408 is “fabricated.” In that case the Administrative Appeals Tribunal affirmed a decision of the Military Rehabilitation and Compensation Commission rejecting a claim for compensation arising from a condition of GORD which, the applicant said, was caused or contributed to by his service in the Australian Army. Relevantly, the Tribunal found that the applicant was not suffering from GORD during his Army service in 1971 to 1973. The Tribunal in reaching this decision applied the Safety, Rehabilitation and Compensation Act 1988 (Cth), and not the Compensation (Commonwealth Government Employees) Act 1971 (Cth) which the applicant contends ought to have been applied.  My decision was confined to whether the Tribunal had erred on a matter of law: s 44, Administrative Appeals Tribunal Act 1975 (Cth).

37                  The record of consultations with doctors in 1987 is not evidence that the finding of the Tribunal that the applicant did not suffer from GORD in 1971-1973 was wrong, either in fact or in law. It is also not direct evidence that he actually suffered from GORD in 1987, and thus does not necessarily support the assertion that the incorrect Act was applied by the Tribunal. In any event, the document referred to was not sought to be tendered on the appeal, and because the appeal was confined to a matter of law it is not apparent that the applicant could successfully have tendered it on the appeal.  It appears that the applicant has misunderstood the confined nature of the appeal from the Tribunal.  There is no basis made out for the assertion that the decision on that appeal was fabricated, or that a “fair-minded lay observer” would apprehend that I am incapable of resolving the issues in this case with an impartial and unprejudiced mind.

38                  A further document, attached to the applicant’s further written submissions filed 29 June 2010, namely a copy of Dr Cheung’s hand written notes from a consultation with the applicant was also relied upon. The notes appear to be dated 20 October 2000, although the left hand column contains the number 95. The applicant points to a note that refers to “burning sensation in throat, helped by quickeaze” and then “10 years ago – Endoscopy? for same problem? Weak valve? Surgery.” The applicant asserts in his written submissions that:

During my appeals against the AAT’s two decisions in respect of my two claims for GORD, in Federal Court action No. SAD 75 of 2009 and SAD 55 of 2010, Justice Mansfield had a copy of this page from Dr C Chueng’s hand-written medical notes dated 95, however instead of finding that I was already being treated for my GORD in the mid 1980’s, Justice Mansfield fabricated his two decisions, in respect to my two claims for GORD, and he fraudulently and perversely alleged in his two decisions that I started to be treated for my GORD in 1992, although, Justice Mansfield was fully aware that his allegation was not true or correct.

39                  The two decisions referred to are my decision referred to in [36] above, and my decision in Kowalski v Repatriation Commission [2010] FCA 409 (although reference is to SAD 55 of 2010 which is the appeal file to that decision). The hand written notes are not, as the applicant asserts, evidence that he had been diagnosed with, was being treated for or was suffering from GORD in the 1980’s.  They are evidence of symptoms of burning sensation in his throat which was relieved by medication. They show there may have been an endoscopy performed 10 years before the notes. They do not show the results of that endoscopy. The Tribunal had a large body of documentary evidence before it, including those hand written notes, which it considered. I decided, after consideration of the Tribunal’s reasons and all the evidence, that the Tribunal’s decisions did not involve any error on a matter of law. The comments in [36] as to the nature of the Court’s task on such an appeal are equally applicable.  No doubt the applicant disagrees with the result, but I reject the proposition that he has demonstrated a “fabricated decision” or that a “fair-minded lay observer” would apprehend that I am incapable of resolving the issues in this unrelated case with an impartial and unprejudiced mind.

40                  The third limb of the applicant’s contentions is that I refused to allow the applicant to tender important and relevant information in one matter.

41                  He contends that, in the course of the hearing of the matter SAD 190 of 2001, ultimately reflected in my reasons for decision in Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd [2002] FCA 1153 (referred to in [19] above), I refused to allow him to tender:

·                    A letter dated 2 March 1999 from Mr A Breugem, the General Manager of Human Resources at Mitsubishi, to the applicant; and

·                    A letter dated 5 March 1999 from Mr P Bennett, a chartered accountant, to the applicant.

42                  The applicant did not refer to any transcript of that hearing or otherwise to any other evidence of a refusal to allow him to tender such documents. I do not recall the hearing.  I have reviewed the file SAD 190 of 2001. There is no transcript on the file. The first of the letters is not on the file. The second of the letters was marked for identification as MFI: K2. It is not clear why it was not then tendered.  In any event, as noted in [19] above, the decision was that the Court did not have jurisdiction to hear the application. Neither of the letters referred to the issue of jurisdiction. There is no foundation shown to demonstrate actual or apprehended bias in the way alleged.

43                  Finally, the applicant contends that I delivered six judgments in matters to which he was a party all in one day to overload him with work. This he says has affected his health and is evidence of bias. He also asserts that I have asked the Registrar to file the proceedings to declare him vexatious to prevent my decisions, relating to his GORD claims, to be considered by the Full Court. He further says I have refused to allow transcript, of the hearing of the matter SAD 203 of 2009 to be available to the public without leave of the Court to protect myself from what was said at the hearing: see Kowalski v Chief Executive Officer of Medicare Australia [2010] FCA 413.  These are all scandalous allegations that have no foundation.

44                  For the above reasons I reject the applicant’s request for me to recuse myself.  I am satisfied that a “fair-minded lay observer” would not reasonably apprehend that I might not resolve the issues in this case with an impartial and unprejudiced mind.

The Current Application

45                  The application was filed on 6 April 2010 with a statement of claim.  An amended statement of claim was filed on 1 June 2010.

46                  The claim is for orders that the respondent pay to the applicant “his correct statutory and legally entitled Total and Permanent Disablement Benefit plus compound interest since 16 March 1994 in the sum of $380,000”, as well as “compensation and punitive damages for the unwarranted stress and anxiety that [the respondent] has deliberately and consciously placed the applicant under from 16 March 1994 up to 17 March 2010 by refusing to make a determination on his claim for a TPD benefit”.

47                  The applicant complains that the respondent, as trustee, has a duty to reconsider his claim for a TPDB, as on 17 March 2010 he wrote to the respondent requesting that it consider his claim along with further documentary evidence which supports his claim. The purportedly additional material includes:

·                    a letter from SGIC (the respondent’s predecessor trustee’s insurer) to Mercer Campbell Cook and Knight (the predecessor trustee’s fund administrator) dated 13 April 1992;

·                    a letter from Mr J Fountain of Baker O’Loughlin (the then solicitors for Mitsubishi) to Dr AC McFarlane (a psychiatrist apparently engaged by Mitsubishi to give an expert opinion in workers compensation proceedings)  dated 28 April 1993;

·                    Mr J Fountain’s notes of a meeting of 29 April 1993 with Dr AC McFarlane;

·                    Dr AC McFarlane’s medical report dated 29 April 1993;

·                    a letter from Mitsubishi to the applicant (in relation to the termination of his employment) dated 16 March 1994; and

·                    a copy of the High Court of Australia Special Leave disposition, Kowalski v Mitsubishi Motors Australia Staff Superannuation Pty Ltd & Anor [2010] HCASL 21. 

48                  The applicant in a further letter dated 19 March 2010 demanded that the respondent make a fresh determination in relation to his TPDB claim by 2 April 2010. In a letter dated 28 April 2010 the applicant provided the following further material:

·                    a medical certificate from Dr K Jagermann (the applicant’s treating psychiatrist) dated 9 February 1994; and

·                    a letter from Dr K Jagermann to Duncan & Hannon Solicitors dated 5 October 1994.

49                  The application and amended statement of claim allege that the respondent, by failing and refusing to meet his demand that a fresh determination of his TPDB claim be made by 2 April 2010, has:

·                    breached its fiduciary relationship with the applicant, by acting in bad faith;

·                    breached the trust of the Fund, by failing to comply with the Fund’s trust deed and trust rules; 

·                    breached a contract (which is unspecified);

·                    breached s 13 of the Insurance Contracts Act 1984 (Cth), by failing to comply with the requirement to act with the utmost good faith; and  

·                    committed a fraud and acted negligently by failing to perform its fiduciary and statutory duties to the applicant, as well as by its allegedly fraudulent behaviour by entering into the Heads of Agreement and by informing him that he was not entitled to be paid a TPDB but was only entitled to an ill-health benefit, when that was, the applicant says, incorrect.    

50                  As noted in [3], the applicant seeks to amend his application to include causes of action under:

·                    the Superannuation (Resolution of Complaints) Act 1993 (Cth), s 4AA;

·                    the Trade Practices Act 1974 (Cth), s 51AA(1); and

·                    the Superannuation Industry (Supervision) Act 1993 (Cth), ss 31(2)(n), (p) and (pa), 34(1) and 103(1).

and further amend his amended statement of claim to give details of those proposed new causes of action.

51                  The applicant also seeks to add claims based on an alleged refusal to determine a purported claim for TPDB in 26 October 1998, as well as amending the negligence and fraud claims alleged to be from 16 March 1994 to include also the alleged claim of 26 October 1998.

52                  The respondent opposes the application generally and argues that the proposed amendments should not be allowed as they are futile, are made vexatiously and are an abuse of process.

The Proposed Amendments

53                  I am satisfied that the proposed amendment concerning a putative contravention of s 4AA of the Superannuation (Resolution of Complaints) Act 1993 (Cth) is futile, as it will not be able to be made out. Section 4AA provides that Chapter 2 (except Part 2.5) of the Criminal Code (Cth) applies to all offences created by that Act.  An offence under the Act includes, for example, refusing or failing to comply with a requirement of the Superannuation Complaints Tribunal to produce documents: see ss 25(5), (6) and (7).  The applicant has not identified in the proposed amended application or the proposed further amended statement of claim what offence has purportedly been committed.  That is sufficient reason not to allow that proposed amendment to the application.  Moreover, it is not apparent how s 4AA of the Superannuation (Resolution of Complaints) Act 1993 (Cth) imposes any duty on a party such as the respondent to act in a way, so that the failure to do so creates a private right of action in the applicant. Finally, the jurisdiction the Court under that Act is only to hear appeals on questions of law from the Superannuation Complaints Tribunal.  No such appeal is brought in these proceedings, and therefore no jurisdiction is properly invoked. I refuse the applicant leave to include that allegation, and any consequential proposed amendments to the amended statement of claim.

54                  Similarly, the proposed amendment in respect of the allegation of a breach of s 51AA(1) of the Trade Practices Act 1974 (Cth), in my view, would also be futile and should not be allowed. That section provides:

A corporation must not, in trade or commerce, engage in conduct that is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories.

55                  There are no cogent material facts pleaded or proposed to be pleaded which apparently support such a cause of action, and no ‘unconscionable conduct’ has been comprehensibly articulated. The proposed amendment, if properly pleaded so that it is not simply an attempt by the applicant to ensure the Federal Court’s jurisdiction is enlivened, would be maintainable in this Court.  However, I do not propose to allow the amendment for the reasons given.  Given the extensive attention to the pleadings by the applicant, I infer that he has put forward the best he can do in that regard.  There is no good reason apparent to allow him to have yet another go at a comprehensible pleading.  At present, I am not persuaded that this claim is genuinely brought, and that it is not an abuse of process: cf Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 1645 at [53].  I do not need to decide that question.  For the reasons given, the proposed amendment to the application is not allowed.

56                  The applicant also seeks to include claims under ss 31(2)(n), (p) and (pa), 34(1) and 103 of the Superannuation Industry (Supervision) Act 1993 (Cth). I am satisfied that the proposed amendments concerning these provisions would also be futile and should not be allowed. The proposed amendments to the application at paragraph 1, and the amended statement of claim at paragraphs 14 and 14.9 merely assert alleged breaches of these sections without pleading any material facts. 

57                  Section 31 relevantly provides:

(1)        The regulations may prescribe standards applicable to the operation of regulated superannuation funds (funds) and to trustees and RSE licensees of those funds.

(2)        The standards that may be prescribed include, but are not limited to, standards relating to the following matters:

            ….

            (n)        the keeping and retention of records in relation to funds;

            …

(p)                the disclosure of information to beneficiaries in funds;

(pa)      the disclosure of information by a trustee of a fund who is a member of a group of individual trustees to the other trustees in that group…

58                  Obviously the section empowers standards to be made by regulation on the topics listed.  Then s 34(1) provides that each trustee of a superannuation entity must ensure that the prescribed standards applicable to the operation of the entity are complied with at all times.

59                  These provisions do not themselves prescribe any standards. Once standards are prescribed, which may or may not include the topics referred to by the applicant, a trustee of a superannuation entity must comply with those standards.  Some relevant standards have been prescribed in the Superannuation Industry (Supervision) Regulations 1994 (Cth).  For example regs 2.31 and 2.32 provide that trustees have a duty to make available for inspection information requested by members within one month of receiving a request.  However, the applicant has not specified the material facts asserting a standard, or its relevant content, or the alleged breaches of such standard.  From what I can garner from the applicant’s written submissions, his complaint appears to relate to the respondent’s purported failure to maintain records as it failed to provide him with records which he requested.  What documents he is referring to and when he requested access to them is not however articulated with sufficient detail in either the submissions or in the proposed amended application and further amended statement of claim to allow this proposed amendment to the application to stand.

60                  Section, s 103 provides:

(1)        If a superannuation entity has a group of individual trustees, the trustees must keep, and retain for at least 10 years, minutes of all meetings of the trustees at which matters affecting the entity were considered.

(2)        If there is only one trustee of a superannuation entity:

(a)        if the trustee is a corporate trustee - the directors of the trustee must keep, and retain for at least 10 years, minutes of all meetings of the directors at which matters affecting the entity were considered; or

(b)        if the trustee is an individual - the trustee must keep, and retain for at least 10 years, a record of all decisions made by the trustee in respect of matters affecting the entity.

61                  The claim in relation to this section appears to relate to the respondent’s purported failure to provide the applicant with minutes of its meetings and thus, the applicant argues, is a failure to retain these minutes. The records the applicant claims he has not been provided with appear to relate to meetings in 1994 or 1998, so that any obligation that might have arisen on the Trustee or respondent would have expired before the commencement of these proceedings and before the proposed amendment.  I note in addition that s 103 does not expressly impose any requirements or obligations upon successor trustees such as the respondent in respect of the records of former trustees so may not apply to the respondent.  I do not decide the issue on that basis.  But, in addition to the matter referred to, I do not consider that the proposed amendments assert facts and matters which coherently make out the basis of a sustainable cause of action for contravention of s 103, maintainable by the applicant.

62                  Accordingly, I am not satisfied that that the amendments in relation to the provisions in the Superannuation Industry (Supervision) Act 1993 (Cth) should be permitted as they do not contain an intelligible claim or an arguably sustainable one.  For the same reasons as previously expressed, I disallow those proposed amendments, and do not see any purpose in all the circumstances in giving the applicant yet a further opportunity to attempt to plead properly any such cause of action.

63                  Finally, the proposed amendments in relation to claims based on an alleged refusal to determine a purported claim for TPDB on 26 October 1998, as well as, amendments to the negligence and fraud claims alleged to now also include the alleged claim of 26 October 1998 should also be refused.  I am satisfied that they too are made vexatiously and are an abuse of process. 

64                  The proposed amendments are largely set out in the proposed amended statement of claim filed 1 June 2010, but the applicant has also sought further changes in his submissions of 18 June 2010.

65                  Paragraphs 11.4 and 11.5 of the proposed further amended statement of claim provide a recitation of events that occurred and correspondence sent in 1998, particularly surrounding the mediation conducted on 26 October 1998 referred to in [11] above.  Purported particulars of the alleged fraud are set out in paragraphs 14.1 to 14.9 but are in substance a repetition of the matters set out in paragraphs 11.4 and 11.5. Purported particulars of the alleged negligence are set out in paragraphs 15 and 15.1 but these ‘particulars’ seem to relate to the allegation of fraud and the relief sought in respect of that claim.

66                  The complaint seems to be that the applicant requested at the mediation that the then Trustee pay him a TPDB, and that a named person (allegedly a representative of the Trustee) incorrectly advised him that he was not entitled to such benefit as he did not meet the definition for a TPDB, and that he was only entitled to an ill-health benefit. The applicant in the proposed amendments outlines the communications that followed the mediation, which lead to an ill-health benefit being claimed and paid and apparently later applications for a TPDB being considered and rejected by the then Trustee. The applicant claims that the then Trustee continued over this time to incorrectly advise him as to his superannuation entitlements, and incorrectly rejected his applications for a TPDB.  These actions and communications, the applicant says, are what constitute the negligence and fraudulent conduct that the respondent has purportedly committed on the applicant. 

67                  It is asserted by the respondent that the named person was a representative of Mitsubishi and that no representative of the then Trustee attended the mediation.  It is also contended that any alleged representations made by Mitsubishi or the then Trustee at the relevant time are not relevant to and do not give rise to a cause of action against the respondent. It is nowhere pleaded how the alleged misrepresentations or “fraudulent” or “negligent” conduct are in any way related to the respondent, or how the respondent could in anyway be liable for them.  The respondent is not the Trustee, but subsequently replaced the trustee.  The respondent was appointed trustee in 2006, well after any of the conduct alleged in the proposed amendments.  While the respondent as the present trustee of the superannuation fund is obliged to determine claims made under the trust deed and rules and to pay any previous claims properly to be paid, that does not entail any liability for fraud by other persons and there is no allegation pleaded of any undertaking of responsibility for such conduct or of any other legal basis for its liability.  There is no allegation which arguably could render it liable for the alleged fraud of the earlier Trustee, or which arguably ascribes that alleged fraud to the respondent.  In my view, that there is no intelligible claim of fraud or negligence against the respondent, as no fraudulent or negligent conduct by it is articulated, and no alleged undertaking of responsibility by it for the conduct by other persons between 1998 to 2006 is pleaded. The proposed paragraphs relating to the fraud and negligence alleged to have been committed in 1998 therefore is an abuse of process and should not be allowed.  

68                  The proposed amendments are also to include a claim based on an alleged refusal to determine a purported claim for TPDB on 26 October 1998. The respondent says no formal application for TPDB was made on or around that date. In fact that is a question which has already been determined by this Court in Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 3) [2009] FCA 53: see [21] above. I do not see why the applicant should be able to re-agitate this question. I am satisfied that the proposed claim is made vexatiously and is an abuse of process and thus refuse leave to amend the application to include this claim. 

69                  As I have indicated above, I consider that the applicant has had ample opportunity to plead his proposed new causes of action and the material facts upon which they are based.  He has failed to do so in a way that satisfies me that any of those proposed new causes of action have any real prospects of success.  In those circumstances, the appropriate order is simply to refuse the applicant leave to amend the application in the terms proposed by the document entitled Amended Application attached to his written submissions as to why his further proposed amendments should be allowed filed on 18 June 2010 and to refuse him leave to amend the amended statement of claim in terms of the document entitled “Further Amended Statement of Claim” also attached to those submissions.

70                  That order also includes the proposed amendments to paragraph 4 of the application including the declaratory and other relief therein expressed.  I note that includes the applicant’s claims that, by reason of the generally alleged fraud, all of the Federal Court’s and High Court’s decisions have been vitiated.  I have not addressed individually each of those proposed orders in these reasons, but the order I make is because that part of the proposed amendment to the application was apparently sought to be warranted by the proposed extended causes of action.

71                  That order also extends to all the proposed amendments to the Amended Statement of Claim.  The proposed amendments are new paragraphs 11.5.14 to 11.5.18 (referring to certain communications between 2001 and 2003), 14.10 to 14.12 (referring to three letters of May and June 2010 sent to the Court), new parts of paragraphs 14, 14.1, 14.9, 15 and 15.1 to include allegations or dates arising from the proposed amendments to the application.  The additional communications referred to do not, in my view, provide any meaningful allegations of material facts or particulars which could sustain the existing causes of action.  Of course, the other additional material falls with my refusal to allow the proposed amendments to the application.

The Summary Dismissal Motion

72                  There is no decision of a determination of the Superannuation Complaints Tribunal made under the Superannuation (Resolution of Complaints) Act 1993 (Cth) which is the subject of an appeal under s 46 of that Act.  The only identifiable claim of a federal nature in the application is in relation to the alleged breach of s 13 of the Insurance Contracts Act 1984 (Cth).  Section 13 implies into a contract of insurance a provision requiring each party to it to act towards the other party, in respect of any matter arising under or in relation to it, with the utmost good faith.

73                  The claims for breach of fiduciary duties and for breach of contract and for negligence are of course within the jurisdiction of the Court, once it properly has jurisdiction in the matter, but are dependent upon the proper invocation of the Court’s jurisdiction. 

74                  Pursuant to s 8, the Insurance Contracts Act 1984 (Cth) applies only to contracts of insurance and proposed contracts of insurance.  No allegation of material fact to establish any alleged insurance contract is pleaded in the amended statement of claim. The respondent submits that there is no cause of action that could arise out of the pleaded factual matrix, and the reference to s 13 of the Insurance Contracts Act is merely a colourable attempt to engage federal jurisdiction that does not otherwise arise on  the claims the applicant wishes to agitate.

75                  The authorities that address the test of what is a “colourable” claim were summarised by Merkel J in Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 1645. His Honour at [53] approved what Wilcox CJ said in Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445 at 450, namely:

… the primary claim must not be a sham claim for the purpose of fabricating a jurisdiction that would not otherwise exist.  If the claim was unarguable, this would tend to suggest that it was not being genuinely made and that the purpose of the claim was to fabricate jurisdiction. 

76                  Merkel J concluded that the fact that a federal claim, that is genuinely brought, is dismissed or struck out on a summary application on the basis that it is not arguable does not result in the Court losing its jurisdiction.  However, if the Court is satisfied that no relevant relief could be granted against a respondent whose presence in the proceeding was “merely for the purpose of obtaining jurisdiction” then the jurisdictional element is “colourable.”

77                  The amended statement of claim alleges the establishment of the AMP Superannuation Savings Trust (the AMP Fund) in 1998 and the respondent’s role as its Trustee.  It also alleges that under the AMP Fund, in 2006, the members and former members of the Fund referred to in [6] were transferred and benefits under the Fund became payable under the AMP Fund.  Then it alleges that the respondent and the applicant entered into a relationship of “fiduciary and potential beneficiary and trustee of a superannuation fund” (in fact it alleges that relationship existed since 1970, but I assume that the applicant says that was his relationship with the Trustee of the Fund from then until 2006) under which, the TPDB was payable to the applicant if he became totally and permanently disabled from working.  The applicant asserts that the issue as to his superannuation entitlement was addressed during the course of the mediation in 1998, and that he was told he was not entitled to a TPDB payment.  Subsequently, he was invited to and did apply for an “ill-health” benefit under the Fund and the Trustee agreed to pay that benefit to him.  The applicant subsequently, he alleges, complained to the Superannuation Complaints Tribunal in 2000.  No decision of that Tribunal is referred to in the amended statement of claim.  It is apparent from the pleading that the applicant understood that his claim for a TPDB payment had not been accepted by the Trustee.

78                  A superannuation policy can be categorised as a life insurance policy that is maintained for the purposes of a superannuation scheme and is owned by the trustee of the scheme: see s 8 Life Insurance Act 1995 (Cth). That does not mean however that the members of a superannuation fund have a contract of insurance with the trustee of that fund. The case law suggests that it is one thing to find a contractual relationship between employer and employees obliging the employer to contribute to a fund, but that is a different step to find that there is a binding contract between the employee and the trustee of a fund as there is no consideration passing between them: see Tooheys Limited v Commissioner of Stamp Duties (NSW) (1960) 105 CLR 602 at 624 and Caboche v Ramsay (1993) 119 ALR 215 at 232-233.

79                  The relevant relationship between the applicant and the respondent is one of trustee and beneficiary. The trustee must hold the trust property upon the terms of the trust and administer it accordingly. That does not constitute the giving of consideration by the applicant to the trustee for holding the trust property upon trust. The applicant is not a party to the Deed establishing the AMP Fund.  He is not a party to any instrument by which the AMP Fund was established or by which it took over the role of the Fund.  He does not make any factual allegations which could constitute the relationship between himself and the respondent as contractual.  That no doubt reflects the position that any rights he has under the AMP Fund enforceable against the respondent are not contractual, as suggested by the two decisions referred to at the end of the preceding paragraph of these reasons.  The amended statement of claim, as noted above, asserts a fiduciary (but not a contractual) relationship between the applicant and the respondent.  There is no allegation that there is a contract of insurance between the applicant and the respondent.

80                  In my view, reliance upon s 13 of the Insurance Contracts Act 1984 (Cth) in the circumstances alleged is merely a colourable attempt to engage federal jurisdiction.  I have refused to give leave to the applicant to make the proposed amendments to include the causes of action under other Commonwealth statutes, for the reasons given above.  As I am of the view that the claim in relation to the Insurance Contracts Act is colourable, the application should be dismissed pursuant to s 31A(2) of the FCA Act.  If that claim is not brought other than in a colourable attempt to enliven federal jurisdiction, the associated common law claims must also be dismissed.

81                  In any event, even if the application did contain a genuine federal claim, I consider the application ought to be dismissed under s 31A of the FCA Act and pursuant to O 20 r 5 of the FC Rules.

82                  I am mindful that the power to summarily dismiss an action should not deprive a litigant of the right to submit real and genuine controversies to the determination of the courts:  Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 92 per Dixon J, and that summary dismissal should not readily be ordered. 

83                  In the present case, in my view the materials filed by the applicant, and the application and amended statement of claim do not disclose a coherent, intelligible complaint giving rise to a genuine and sustainable cause of action.

84                  As to fraud, in essence, the applicant alleges that the Trustee’s decision in about 1998 was fraudulent because he identifies some evidence available to the Trustee upon which it might have reached a different decision, or because an officer of the Trustee told him in 1998 that that officer or the Trustee through that given officer did not consider that he was entitled to a TPDB payment.  The pleading also refers to correspondence on behalf of the Trustee, in the period 2000-2004, to the effect that the Trustee did not receive in about October 1998 an application by the applicant for a TPDB payment, and that the Trustee did not participate in the mediation.

85                  Those allegations, even if proved, cannot sustain the claim that the Trustee in 1998 acted fraudulently as alleged.  The facts asserted could go no further than showing that the Trustee or its representative had, and expressed, a view that the applicant was not entitled to the TPDB at the time, and that there was some evidentiary material which may have supported a different view.  That is a long way short of asserting material facts which could show fraud.  The fact that the applicant disagrees with the Trustee’s conclusion also does not tend to show fraud.

86                  The application is also an attempt by the applicant to re-agitate decisions that have been decided adversely to him by the Trustee, the predecessor of the respondent, and which were not the subject of any successful challenge to the Superannuation Complaints Tribunal, or to the Court. Moreover, as noted above the applicant has brought other proceedings against the respondent or its predecessor the Trustee of the Fund.  Each of those proceedings has been unsuccessful. They involved contested applications, appeals and applications for leave to appeal and for special leave to appeal to the High Court.  The applicant was ultimately unsuccessful. It would be an abuse of process to allow the application in the present proceeding to be maintained because the same issues have been litigated previously, even though the precise expression of the claims and the precise remedies claimed are not identical.  In all essential respects the issues are the same.

87                  In particular the issues raised in the proceedings before Finn J referred to above, are essentially the same as the issues sought to be raised in this application. As noted above the application was for an order that the Trustee pay him “his correct statutory and legally entitled Total and Permanent Disablement Benefit plus compound interest since 16 March 1994 in the sum of about $280,000.00”. Similarly, in this application, the claim is for the almost identical orders, that the respondent pay to the applicant “his correct statutory and legally entitled Total and Permanent Disablement Benefit plus compound interest since 16 March 1994 in the sum of $380,000”.

88                  The claim before Finn J involved the following four claims, the first three being founded on alleged breaches of fiduciary duty and breaches of trust:

·                    The Trustee should have considered, but failed properly to consider, his entitlement to a TPDB at the time he was paid a resignation benefit in August/September 1994.

·                    The Trustee should have considered, but failed properly to consider, his entitlement to a TPDB at the time he was paid his ill-health benefit in November 1998.

·                    The Trustee should have considered, but failed properly to consider, his claim for a TPDB in November 2005.

·                    The Trustee was negligent in failing to perform its duty to the applicant in not making a correct and proper determination of his entitlement to a TPDB.

89                  The present claim involves relevantly the following claims which are based on the contention that the respondent, by failing and refusing to meet the applicant’s demand that a fresh determination of his TPDB claim be made by 2 April 2010, it has:

·                    breached its fiduciary relationship with the applicant, by acting in bad faith;

·                    breached the trust of which it is now the Trustee, by failing to comply with the relevant trust deed and trust rules; 

·                    committed a fraud and acted negligently by failing to perform its fiduciary and statutory duties to the applicant, as well as by its allegedly fraudulent behaviour by entering into the Heads of Agreement and by informing him that he was not entitled to be paid a TPDB but was only entitled to an ill-health benefit, when that was, the applicant says, incorrect.    

90                  These claims are very similar to those pursued unsuccessfully earlier.  Both complaints are that the Trustee, and now the respondent, failed to determine the applicant’s claim for TPDB in his favour and thus breached its fiduciary duties, breached the trust of which it is the trustee, and acted negligently in failing to perform its fiduciary duties. The present claim also involves proposed claims that the respondent has breached certain statutory duties, but, as found above, I do not think that those claims or proposed claims expose an arguable cause of action. 

91                  The applicant argues that the respondent has a duty to reconsider his claim for a TPDB, as he has provided it with additional documentary evidence which supports his claim. The purportedly additional material has been set out in [47] – [48] above. The respondent asserts that there is nothing, other than the High Court determination, that had not been previously submitted to the respondent or its predecessors or originated with one of them. I have considered that material.  I accept the respondent’s submission as to its character.  In my view, the purportedly additional material is not cogent new evidence which has probative value on the question as to whether the applicant was or is totally and permanently disabled at the material time.  It is a mix of early material, partly in relation to a compensation claim then being pursued by the applicant and notes of Mitsubishi relating to that compensation claim.  The medical certificate of Dr Jagermann of 9 February 1994 pre-dates Dr Jagermann certifying the applicant fit to return to his normal duties on 22 March 1994.

92                  Finally, the declaratory relief sought to set aside judgments of the Court and of the High Court on the grounds of fraud has no maintainable basis expressed in the amended statement of claim, even assuming the Court could make orders setting aside a High Court decision.  That is, to say the least, an unacceptable assumption.

93                  For those reasons, I consider the applicant’s claim should be summarily dismissed.  I so order.  He should pay the respondent’s costs of the application.

Associate: 

Dated:         4 November 2010