FEDERAL COURT OF AUSTRALIA

Kristoffersen v Superannuation Complaints Tribunal [2013] FCA 951

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    After the expiry of the time limited for an appeal from this judgement or upon the final determination of any such appeal, whichever is the later, the District Registrar is, as required by s 48(b) of the Superannuation (Resolution of Complaints) Act 1993 (Cth), forthwith to return to the Superannuation Complaints Tribunal the documents transmitted to the Court by that Tribunal pursuant to s 48(a) of that Act.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant, Mr Kurt Kristoffersen (Mr Kristoffersen) had the misfortune to suffer injuries in two separate accidents in 2003. In October 2003, he injured his left knee in a motor cycle accident (the first accident). In December 2003, he again injured his left knee and also this time his back in a fall on a staircase at his then place of employment. He had commenced the employment concerned in July 2003. That employment was terminated on 14 January 2004.

2    When he commenced the employment concerned, Mr Kristoffersen became eligible and did join a superannuation fund. The rules of the fund provided that the fund trustee, Colonial Mutual Superannuation Pty Ltd, the second respondent (the trustee), might establish within the fund plans, divisions, sections and categories and insure fund members for benefits. The trustee entered into arrangements with Colonial Mutual Life Assurance Society Ltd, the third respondent (the insurer) for the insurance of members in respect of, materially, total and permanent disablement (TPD) and income protection during disablement.

3    By a letter dated 19 April 2007, the insurer notified Mr Kristoffersen’s then solicitors that it had decided to approve the claim made by him for an income protection benefit for the period between 3 January 2004 and 24 April 2004. He sought a reconsideration of this decision by the insurer. By a letter dated 17 November 2009, the insurer notified Mr Kristoffersen that it had decided to approve his claim for an income protection benefit, subject to offsetting other benefits received, for a period between 3 January 2004 and 2 January 2006. On 18 March 2010, the insurer notified Mr Kristoffersen by letter of the net balance of the income protection benefit payable to him after these offsets.

4    By a letter dated 1 February 2010, the insurer notified Mr Kristoffersen that it had decided to reject his claim for a total and permanent disablement benefit. The following year, on 10 May 2011, it notified him of a decision made on review to affirm its earlier decision to reject his TPD claim.

5    By letters dated 24 May 2011, the trustee notified Mr Kristoffersen that it had decided to affirm the insurer’s rejection of both his income protection claim beyond 2 January 2006 and his TPD claim.

6    Mr Kristoffersen sought the review of the decisions of the trustee and the insurer by the Superannuation Complaints Tribunal (Tribunal or, if context requires, Complaints Tribunal). The Tribunal identified the decisions under review as:

(a)    those of the insurer to reject Mr Kristoffersen’s claim for an income protection benefit for the period beyond 2 January 2006 and his claim for a TPD benefit; and

(b)    those of the trustee to affirm the insurer’s rejection of Mr Kristoffersen’s claim for an income protection benefit for the period beyond 2 January 2006 and of his claim for a TPD benefit.

7    On 6 March 2013, the Tribunal decided, for reasons which it published to Mr Kristoffersen, the insurer and the trustee, to affirm the decisions of the insurer and trustee under review.

8    On 28 March 2013, Mr Kristoffersen then filed a notice of appeal in this Court by which he sought to institute an “appeal” pursuant to s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Complaints Act) against the Tribunal’s decision. Though termed an “appeal” by the Complaints Act, the proceeding is in point of law one in the Court’s original jurisdiction: see s 19(2) of the Federal Court of Australia Act 1976 (Cth).

9    Such an appeal lies only on a question of law. In this sense and as I observed in Board of Trustees of the State Public Sector Superannuation Scheme v Edington (2011) 199 ALD 472 at [71] (Edington), the position with respect to an appeal to this Court under s 46 of the Complaints Act is not materially different to that in respect of an appeal to this Court from the Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (Administrative Appeals Tribunal Act). The existence of a question of law goes to the very jurisdiction of the Court to entertain the appeal: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178. As filed, the notice of appeal in this case, which was drawn at a time when Mr Kristoffersen was acting for himself, exhibits the very vice described by Kenny and Lander JJ (with whom I agreed in this regard) in their joint judgment in Edington in that it posits no questions of law for determination by the Court as required by s 46 of the Act but instead states general propositions of law or mixed fact and law.

10    Recognising this difficulty when the matter was called on for its first directions hearing earlier this year, I suggested to Mr Kristoffersen that this was a case where he might be advantaged if it were possible to secure for him legal representation via the Queensland Bar Association’s pro bono arrangements with the Court. Mr Kristoffersen signified that he wished to have such assistance if possible. The District Registrar then made contact with the Queensland Bar Association and, as a result, Mr Hogg of Counsel, came to act, pro bono, for Mr Kristoffersen. I am grateful to Mr Hogg for his careful and concise submissions both orally and in writing, which well served both Mr Kristoffersen and the wider administration of justice. Appreciating the difficulties inherent in the way in which the notice of appeal was drawn, Mr Hogg came in submissions to recast certain of the propositions in the notice of appeal in a way which raised questions of law and to abandon others. I shall detail the questions which, as a result, arise for determination in the appeal shortly. The result though was to make clear that there was an invocation of jurisdiction. It is first necessary to refer to another aspect of the pre-trial management of the appeal.

11    When the appeal was called for directions hearings there was no appearance by or on behalf of either the trustee or the insurer. This struck me as unusual, even though Mr Kristoffersen claimed to have served each of them, a claim for which there was some evidence. If only out of an abundance of caution, I made interlocutory orders requiring the District Registrar to notify both the insurer and the trustee of the proceeding, using for this purpose the address for correspondence which each had provided to the Tribunal in the course of its undertaking the review. This the District Registrar did but the notice did not elicit at the hearing of the appeal any appearance by or on behalf of either the insurer or the trustee. As with any party to a court proceeding, whether or not to appear and, on appearance, the nature of the position to take is one for the value judgment of the litigant concerned. That said, it is to be hoped in future appeals that an insurer and trustee will at least give an applicant and the Court the courtesy of an acknowledgment of service and, if so disposed, advice of an intention to abide the order of the court if neither proposes actively to act as a contradictor.

12    The Tribunal, which was named by Mr Kristoffersen as a respondent, understandably, did not appear. I assume that its stance is the expected one of abiding the order of the Court. Further, and in any event, the joinder of the Tribunal as a respondent party does not strike me as necessary. It is not a requirement flowing directly from s 46 of the Complaints Act. Neither is it a requirement imposed by Div 33.2 of the Federal Court Rules, as made applicable to appeals from the Tribunal by Div 33.3 of those rules. The requirement is that the notice of appeal be served on the Tribunal’s Registrar, as well as on a party to the appeal, not that the Tribunal itself must be made a party: see r 33.12(4), as applied by r 33.34. Upon an appeal being instituted, an obligation falls on the Tribunal, pursuant to s 48(a) of the Complaints Act, to “send to the Court all documents that were before the Tribunal in connection with the consideration of the matter to which the appeal relates”. That is why it must be served with a copy of the notice of appeal. The appropriate parties to an appeal are the trustee of the fund concerned and, if joined in the complaint resolution proceedings before the Tribunal, also the insurer. In certain cases, of which the present is not one, there may be other necessary parties to an appeal depending upon whether other parties have been joined in the complaint resolution process by the Tribunal pursuant to s 24A of the Complaints Act.

13    Having regard to the way in which Mr Kristoffersen’s appeal came ultimately to be presented, the following questions of law fall for determination:

(a)    whether, in the circumstances prevailing in respect of the review of the insurer’s and trustee’s decisions in respect of Mr Kristoffersen’s claim, which included a request by him of the Tribunal to make an inquiry in that regard, the Tribunal was obliged to enquire of the trustee and the insurer as to the originals of the documents governing Mr Kristoffersen’s membership of the fund and insurance cover related to his membership and to require production of the same to him for the purposes of the review. Related to this question is a subsidiary question which is, in the event that the Tribunal was so obliged, whether a failure on its part so to do gave rise to a jurisdictional error invalidating its decision;

(b)    related to (a), whether the Tribunal’s conclusion as to what was the correct policy was not reasonably open, because the Tribunal’s conclusion was made without any evidentiary support;

(c)    whether the Tribunal failed to address the submissions made to it by Mr Kristoffersen and thereby failed to conduct a review in accordance with the Act;

(d)    whether or not the Tribunal in determining to affirm the TPD decision under review failed to address for itself on the evidence before it the TPD test in the governing policy.

14    I shall consider each of these questions in turn.

Absence of Inquiry or Supporting Evidence?

15    Following the lodging of a complaint with it under s 14 of the Complaints Act, the Tribunal’s statutory remit was to inquire into the complaint, try to resolve it by conciliation and, if the complaint could not be so resolved, to review the decision(s) to which the complaint related: s 12 of the Complaints Act. Here, conciliation did fail so it fell to the Tribunal to review the trustee’s decisions given in respect of Mr Kristoffersen’s claims and, because the insurer had been joined as a party to the complaint, also to review the insurer’s decisions in respect of the complaint. For the purpose of conducting that review the Tribunal was, by s 37 of the Complaints Act, invested with all of the powers and discretions vested in the trustee or, as the case may be, the insurer but not so as to violate the rules of the fund or the contract of insurance concerned.

16    The model adopted by Parliament in s 37 of the Complaints Act is akin to that adopted by Parliament in respect of the Administrative Appeals Tribunal in s 43 of the Administrative Appeals Tribunal Act in the sense that each tribunal stands in the shoes of the maker of the decision under review, but very different in another sense in that the review function consigned to the Complaints Tribunal is not as pervasive as the merits review function consigned to the Administrative Appeals Tribunal. That is because s 37(6) of the Complaints Act imposes the following stricture on the Complaints Tribunal:

(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.

The authorities concerning the operation of s 37 of the Complaints Act were helpfully collected by Kenny and Lander JJ (with whom I agreed) in their judgment in Edington at [44] to [51]. Included in those authorities are passages from two judgments of Mansfield J, Lykogiannis v Retail Employees Superannuation Pty Ltd (2000) 97 FCR 361 (Lykogiannis) and Hornsby v Military Superannuation and Benefits Board of Trustees (No 1) (2003) 126 FCR 484 (Hornsby) concerning the meaning and effect of s 37 of the Complaints Act in respect of the Tribunal’s function, which their Honours cite with approval (Edington at [50]):

Lykogiannis at [48]:

[48]     … Ultimately, whatever findings the Tribunal must make standing in the shoes of the trustee … s 37(6) requires the Tribunal to decide whether the decision under review, in its operation, was fair and reasonable in the circumstances. The focus of s 37(6) is upon the consequence or outcome of the decision in its practical operation, rather than upon the process by which the decision under review came to be made.

Hornsby at [19] - [20]:

[19]    [T]he Tribunal may have to make its own findings of fact for the purpose of determining whether, in its opinion, the decision under review in its operation was fair and reasonable in the circumstances. But it is necessary to make such findings of fact only for that purpose. It does not decide afresh all findings of fact of the primary decision-maker as if that decision had not been made. It does not, in that sense, simply stand in the shoes of the primary decision-maker.

[20]    Hence, under s 37, although the Tribunal is required to make its own decision in relation to the complaint, it is required to make only such findings of fact as are necessary for its decision. It must do so upon the evidence before it. In the light of such findings or conclusions as it has reached, the Tribunal must consider whether the decision it is reviewing, in its operation, was fair and reasonable in the circumstances: Military Superannuation and Benefits Board (No 1) v Stanger (2002) 68 ALD 12 at [21]. Section 37(6) requires that step. Ultimately the object of the Tribunal’s review is to remove unfairness or unreasonableness in the decision under review …

17    The Tribunal’s primary function therefore is one of review, albeit review in the sense described in the passages quoted but nonetheless one of review. Once conciliation of a complaint has failed such that it must embark upon a review, the Tribunal is empowered to make its own inquiries but only as an incident of discharging that primary function of review. So far as inquiries by the Complaints Tribunal are concerned and subject to the necessary qualification as to the more limited nature of the review it conducts, in comparison, materially, with the merits review function consigned to yet another Commonwealth tribunal, the Refugee Review Tribunal, the following observations of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1129 at [25] with respect to the Refugee Review Tribunal are just as apt with respect to the Complaints Tribunal:

[25]    Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

18    Later, in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR) at [84], another case where a failure on the part of the Refugee Review Tribunal to act on a request by a migration agent to make an inquiry was alleged to have occurred in circumstances giving rise to jurisdictional error Gummow J (with whom Heydon and Crennan JJ agreed), having referred to this passage from SZIAI and also to remarks made in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH (2006) 231 CLR 1 at [40], another case concerning the nature of the jurisdiction exercised by the Refugee Review Tribunal, observed:

[84]     Accordingly, neither the Tribunal itself nor the primary decision-maker acts as a contradictor to a visa applicant’s case. But an applicant for a protection visa must put forward the evidence the applicant wishes the Tribunal to consider.

[Footnote references omitted]

19    These observations in SZGUR, too, are applicable to the Complaints Tribunal by analogy. To paraphrase, neither the Complaints Tribunal itself nor the trustee or, if joined, the insurer acts as a contradictor to a complainant’s case in a review conducted by that tribunal. It is for the complainant to put forward the material that he or she wishes the Tribunal to consider. That may or may not comprise the material which was before the trustee or, as the case may be, the insurer at the time when the decision under review was made. Neither the Tribunal nor the parties to the review are restricted just to the use of material before the decision-maker. The Tribunal reviews neither the process of the decision-maker nor that person’s reasons but must form its own view on the material before it as to whether the decision under review was fair and reasonable.

20    I was also taken in the course of submissions to Hourn v Farm Plan Pty Ltd [2003] FCA 1122 (Hourn v Farm Plan). A question there was whether the Complaints Tribunal had failed to conduct an inquiry it was obliged to make in the circumstances of that case. Hourn v Farm Plan was decided prior to SZIAI and SZGUR and at a time before the reminder offered by those cases that approaching the question of whether an administrative tribunal had a “duty to inquire” and, if so, had breached that duty was apt to district from deciding whether that tribunal’s decision was affected by jurisdictional error. For that reason, its precedential value is now limited. The trial judge, R D Nicholson J, did no more than assume that, if the law did permit the existence of a duty to inquire even in the absence of a request to make an inquiry, no such duty arose in the circumstances of that case.

21    Recalling these features of the Tribunal’s function under the Complaints Act, I turn now to the circumstances in which the first question posed arises in this case.

22    Mr Kristoffersen’s written submissions to the Tribunal included an assertion that the insurer had not determined his income protection claim by reference to the applicable policy. More particularly, he put to the Tribunal in respect of one of the documents before it:

Doc (1) appears to be for a “personal policy 2” and appears to be a rewrite of the document previously dated 30th may 2005, not a “corporate 1 manager policy” as the insurer has already admitted as the true policy held in their letter 1/3/2007 …

[sic]

It was put on Mr Kristoffersen’s behalf on the hearing of the appeal that the Tribunal was on notice as a result of this submission that there was an issue as to what was the correct policy and that it was in turn obliged to exercise its powers under ss 24, 24AA or 25 of the Complaints Act to require production, including, in the circumstances, production of the original of the governing policy. The failure to exercise these powers was said to be a failure on the part of the Tribunal properly to inform itself or alternatively a failure to take into account a relevant consideration. As I understood the submission, these were but ways of particularising how it was that the Tribunal failed to conduct a review according to law.

23    There is no doubt that the governing insurance policy or, as the case may be, fund rules are always relevant considerations in a review by the Tribunal: Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 at [28].

24    The Tribunal’s reasons disclose that it expressly turned its mind to what were the governing rules of the fund and what was the governing insurance policy. Moreover, it is not possible to read paragraph 80 of the Tribunal’s reasons other than as directly responsive to the proposition put by Mr Kristoffersen in his written submission:

80.    One of the contentions of the Complainant is that the policy under which he was insured was a ‘corporate 1 Managers policy’. He has not identified any such policy and there is no evidence that any such policy exists, the IP Policy being, in the Tribunal’s view, the one relevant to the Complainant. He also contends that the Employer Application is required to be renewed each financial year. For the reasons already outlined this is clearly not the case.

[sic]

25    What follows after paragraph 80 up to and including paragraph 88 in the Tribunal’s reasons is a very detailed consideration of what the income protection policy applicable to him was and, more particularly, whether the cover under it extended to age 65. It is not necessary to set those details out. It is though noteworthy that in this section of the reasons the Tribunal expresses the view that, “whether or not the Insurer disputed the contention that the cover was until age 65 is immaterial. The Complainant is only entitled as is permitted by the Employer Application and IP policy.” This nicely illustrates the Tribunal’s correct understanding that it cannot, in conducting a review, substitute a decision which is not in accordance with what is truly the governing fund rule or policy.

26    It is also necessary to read this section of the Tribunal’s reasons in the context of those reasons as a whole. So doing discloses that the Tribunal was well aware of the trustee’s letter of 1 March 2007, for it lists and describes that letter as a relevant event in the comprehensive chronology offered at paragraph 18 of its reasons and expressly refers (at paragraph 61, elaborated further in paragraph 63) to Mr Kristoffersen’s contention that he is insured through the Fund for a monthly income protection benefit until age 65.

27    So far as the applicable TPD benefit is concerned, the Tribunal refers at paragraph 16 (and in more detail at paragraphs 61 and 64) to Mr Kristoffersen’s contention that the benefit limit applicable to him is $250,000 rather than $41,667 as contended by both the trustee and the insurer. The Tribunal comprehensively deals in its reasons with what is the applicable TPD benefit in the event that such a disability were to be found (paragraphs 99 to 101). Once again, it is not necessary to set out those reasons. They include an express reference to the trustee’s letter of 1 March 2007 and the conclusion (paragraph 101) that the Tribunal does not consider that Mr Kristoffersen as complainant could have been misled by the erroneous information in the Trustee’s letter of 1 March 2007. The Tribunal added, “Even if this had been the case, the letter was sent considerably after the relevant date for consideration of his TPD claim. There could have been no reliance on this information which led to any detriment to the Complainant.”

28    Yet further, it is necessary to recall that the Tribunal expressly stated in its reasons what it considered to be the trust deed for the Fund (paragraph 22) and excerpted (paragraph 23) what it considered to be the pertinent parts of that deed. The Tribunal did the same in respect of what it considered to be the governing insurance policy (respectively paragraphs 24 and 25 in relation to income protection and paragraphs 26 and 27 in respect of TPD).

29    It was submitted that the Tribunal did not there say why it considered these to be the governing fund rules and insurance policy. Reading this part of the Tribunal’s reasons in isolation this is true but one cannot read the reasons as a whole, which include an express engagement with his assertion that a different income protection policy was applicable to him or that a different TPD lump sum limit was applicable to him, otherwise than on the basis that the Tribunal expressly turned its mind to what was the correct position under the Fund rules and what was the correct policy. As it happened, in so doing and as I have explained, it rejected Mr Kristoffersen’s contentions. It is well settled that the reasons of an administrator or administrative tribunal are not on judicial review to be subjected to narrow, zealous reading with an eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 - 272.

30    Mr Kristoffersen pressed the Tribunal to call for production of originals. The Tribunal did not need to have the originals before it to reach a conclusion as to what were the governing fund rules and policy. It was not bound by the rules of evidence: s 36(a) of the Complaints Act. It was entitled to act on the secondary evidence which it had as to the governing fund rules and insurance policy.

31    The Tribunal examined the foundation for why it was that Mr Kristoffersen contended that a different limit applied to his TPD claim and why it was that a different income protection policy applied to him. For the reasons which it gave, the Tribunal concluded that he was mistaken in each of these contentions. This was no reflection on his honesty, only on the correctness, as the Tribunal saw it, of his understanding of what was the true position. There was nothing unreasonable or illogical about the reasoning process that led the Tribunal to this conclusion.

32    Mr Kristoffersen did not produce material other than that with which the Tribunal dealt in support of his contentions. The Tribunal was not, in the face of this material and on the basis of those conclusions which it reached, having considered this material as well as the contentions of the trustee and the insurer and the other material before it, obliged to go on some roving inquiry, irrespective of whether Mr Kristoffersen did or did not seek this. So much is patent from the application in the circumstances related to the statements of principle which are set out in the passages which I have quoted from SZIAI and SZGUR. All that the Tribunal did was to address a relevant consideration and reach conclusions it was entitled on the material before it to reach. There was no failure to conduct the review required by s 37 constituted by a failure to make an inquiry.

Failure to address submissions?

33    Mr Kristoffersen contended that the Tribunal had failed to address in its reasons his submission as to a need for the production of original documents, that the insurer had made part payments and what were the correct amount of monthly payments.

34    It is true that the Tribunal does not in its reasons expressly mention a request by Mr Kristoffersen that it seek the production of original documents. There was nothing in the Complaints Act which obliged to the Tribunal only to conduct its review by reference to, materially, the originals of the governing fund rules or insurance policy. What the Tribunal was obliged to do was to take into account relevant considerations, which materially were the governing fund rules and insurance policy. If it failed to do this, it would not have conducted a review according to law. As I have already stated, the Tribunal reached a conclusion it was entitled to reach as to what were the governing fund rules and insurance policy. It did so taking into account Mr Kristoffersen’s contentions in his submission as to what were the content, meaning and effect of the governing rules and policy. The Tribunal’s reasons were, in the sense described by French CJ and Kiefel J in SZGUR at [33], “sufficient unto the day for what they disclosed” in its approach to Mr Kristoffersen’s submission.

35    The same may be said of his submissions in relation to part payments and monthly payments.

36    Having examined the question of what were the governing rules and the terms of the governing policy, including by making reference to the monthly premium amounts paid by Mr Kristoffersen, the Tribunal stated (paragraph 90) that it was “satisfied that the Complainant has received the maximum IP insurance benefit payable to him under the IP Policy and in line with the specification set out in the Employer Application”. So far as the income protection benefit controversy was concerned, the Tribunal’s satisfaction was reached against the background of its expressly noting that Mr Kristoffersen’s contention was that “the IP benefit due to him is $3,794.38 per month from the end of the 30 day waiting period until his 65th birthday together with interest on the past due amount” (paragraph 63). The Tribunal also recorded that the insurer had contended that it had paid the correct amount (paragraph 69).

37    Having identified what it considered to be the governing insurance policy, the Tribunal construed that policy such that it rejected Mr Kristoffersen’s contention as to insurance protection coverage until age 65 and instead upheld the trustee’s and insurer’s contention that the cover expired on 2 January 2006. It followed that the insurer had not made part payment of a liability which extended until Mr Kristoffersen reached age 65 but rather had paid all that it was obliged to pay him by way of income protection payments.

38    The duration of cover was always the principal income protection controversy. It was no part of Mr Kristoffersen’s case on appeal that, assuming that the terms of the governing insurance policy were as found by the Tribunal, the conclusion reached as to the duration of cover was erroneous in law. Nor was it contended that, on the true construction of that policy and having regard to evidence before the Tribunal as to salary and as to benefits otherwise received, the Tribunal’s conclusion that Mr Kristoffersen had received the amounts due to him under the policy was necessarily wrong in law because it must have been grounded in an erroneous construction of the terms of the insurance policy governing how the benefit was calculated. The Tribunal’s reasons were written against the background of the history of the correspondence to Mr Kristoffersen and the solicitors formerly acting for him by both the trustee and the insurer, which notably included a letter of 18 March 2010 in which the insurer set out for Mr Kristoffersen “the calculation and breakdown of the balance payable to him under his IP claim” (see paragraph 18 of the Tribunal’s reasons). Necessarily, it was this detailed breakdown which the Tribunal upheld when it stated that it was satisfied that he had received the maximum income protection benefit. So far as reasons in relation to the payment of the correct income protection amount are concerned, the Tribunal was not in the circumstances of this case obliged to do any more than it did.

Failure to address for itself the TPD test?

39    I have set out above the authorities which state the nature of the review which the Tribunal conducts under the Complaints Act.

40    This basis of challenge was confined to so much of the Tribunal’s decision as related to the TPD claim. It was submitted that the Tribunal should have asked for itself the question, “Is [Mr Kristoffersen] totally and permanently disabled within the definition in the policy?” and had instead erroneously and impermissibly “[analysed] the medical evidence to determine which medical report was preferable or more reliable”, which, it was submitted, was an improper confinement of the review function and an error of the kind found by R D Nicholson J in Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139 at [49] - [51] (Alcoa of Australia Retirement Plan Pty Ltd v Thompson). His Honour there observed, materially:

[49]    In Jevtovic, Sundberg J concluded it was clear from the Tribunal's own statement of its understanding of its task and from the process of its reasoning, that it had not asked itself whether the decisions complained of were fair and reasonable in the circumstances (the s 37(6) inquiry) but whether in its opinion the respondent was totally and permanently disabled. The result was that the tribunal had, in that case, failed to appreciate the role assigned to it by s 37(6) and had erred in law.

[50]    In my opinion the Tribunal similarly erred in this case. It commenced by correctly stating the question it was required to address … . It then embarked on an extensive review of the medical evidence. It formed its own view on that evidence … . Its decision was based on that view… . No other consideration played a part in the resolution of its decision. Specifically there was no evident regard to whether there had been conformity to the governing rules or terms of the relevant policy. Nor did it have regard to other circumstances. In substance the inquiry by the tribunal was limited to the formation of its opinion on the medical evidence as appearing in the medical reports.

[51]    In so approaching the matter the tribunal did not have regard to its proper function … . It failed to address the correct question by confining itself to a consideration of the medical evidence.

This passage from Alcoa of Australia Retirement Plan Pty Ltd v Thompson must be understood against the background of the error identified by Sundberg J in the case referred to by R D Nicholson J in the passage quoted, National Mutual Life Association of Australia Ltd v Jevtovic [1997] FCA 359 (Jevtovic). In Jevtovic, though the Tribunal had in one part of its reasons identified the issue for determination on review in a way similar to the way the Tribunal did in this case (see paragraph 109 of the Tribunal’s reasons, quoted below), it also elsewhere stated that the "role of a tribunal is to decide whether or not the correct or preferable decision has been made" and then, having referred to the relevant TPD definition, stated that it must “decide whether or not [the respondent] satisfies that definition”. The Tribunal in Jevtovic then considered the medical evidence to that end.

41    I accept that, if the Tribunal had directed itself to the task of reaching the correct or preferable decision, it would, on the authorities explaining its s 37 review function, have failed to conduct a review according to law. A review to the end of reaching the correct or preferable decision on the merits is a review of the kind conducted by the Administrative Appeals Tribunal, not the Complaints Tribunal. Neither Alcoa of Australia Retirement Plan Pty Ltd v Thompson nor Jevtovic required the Tribunal to ask itself the question “Is [Mr Kristoffersen] totally and permanently disabled within the definition in the policy?” Indeed, had in this case the Tribunal posed for itself such a question, and it did not, it would have committed just the error of law identified by Sundberg J in Jevtovic.

42    Materially, the Tribunal in the present case commenced its consideration by identifying this issue (paragraph 109):

109.    The final issue is whether, under the TPD definition contained in the TPD policy, the Trustee and the Insurer fairly and reasonably decided that the Complainant was not TPD at the relevant date being 6 months after he last ceased work.

43    Having so done, the Tribunal comprehensively assessed for itself the medical evidence through the prism it identified in this issue statement and concluded (reasons paragraph 138 - 141):

138.    In the view of the Tribunal, having regard to the somewhat qualified opinions expressed by the 3 general practitioners, and, in relation to Drs GN and PP, the somewhat late time frame of their exposure to the Complainant, it was fair and reasonable for the Insurer to regard the reports of Dr TK and Dr BH as more persuasive. Additionally, it is noteworthy that the Insurer had offered in 2011 to review the Complainant’s claim and, in order to do so, to obtain and consider an up to date medical opinion. The Complainant refused this offer.

139.    Other relevant evidence supportive of the view taken by the Trustee and the Insurer is the Employability Assessment report dated 25 June 2009 and the fact that the complainant chose to stand for election as a municipal councillor, a role which would seem to require some physical energy.

140.    In the absence of any persuasive evidence supporting the complainant’s claim to have been TPD at and from the relevant date, it is the view of the Tribunal, on the balance of the available evidence, that the Insurer and the Trustee were entitled to take the view, on the evidence, that the Complainant had not satisfied the Policy TPD definition.

141.    For the reasons outlined above, and having regard to the evidence submitted, the Tribunal considers that the decisions of the Trustee and the Insurer to reject the Complainant’s claim for … a TPD benefit, were fair and reasonable in their operation in relation to the Complainant in the circumstances.

[Emphasis added]

44    By the time that the Tribunal came to do this, it had already identified in its reasons the relevant TPD definition and the decisions made by the trustee and the insurer. The Tribunal decided for itself, on the basis of the medical and other evidence before it and by reference to the TPD definition, whether those decisions were fair and reasonable. It did not consider the medical evidence to the end of deciding for itself whether Mr Kristoffersen was totally and permanently disabled. Rather, it commenced by identifying the correct issue and concluded its review by reference to that issue. In so doing, it discharged its function according to law.

45    The Tribunal had before it and analysed to the end of resolving the issue it correctly identified a range of medical reports concerning Mr Kristoffersen. Those of Dr BH, which included a revision which he made responsively to a letter from Mr Kristoffersen, admitted of the conclusion to which the Tribunal came as to the decisions under review being fair and reasonable. I am not persuaded, reading the reasons as a whole, that the Tribunal was unaware of that revision. It is to be noted that Dr BH expressly couched his opinions by reference to the TPD definition in the policy. His opinion was that Mr Kristoffersen was not totally and permanently disabled but, rather, was partially disabled. It is true that there was other medical evidence before the Tribunal which offered a more pessimistic prognosis in respect of Mr Kristoffersen, notably the report of Dr MB. The Tribunal expressly took this practitioner’s report into account in reaching the conclusion that the decisions under review were fair and reasonable. It had before it evidence which reasonably admitted of this conclusion taking into account the definition of TPD.

46    It follows that the appeal must be dismissed.

Associate:

Dated:    19 September 2013