FEDERAL COURT OF AUSTRALIA

Miljevic v Holden Employee Superannuation Fund Pty Ltd [2016] FCA 718

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    Mr Mile Miljevic appeals against a decision of the Superannuation Complaints Tribunal (“the Tribunal”) under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (“the SROC Act”). The respondent to the appeal is the Holden Employees Superannuation Fund Pty Ltd ACN 065 656 948 (“the Trustee”), which is the trustee of the Holden Employees Superannuation Fund (“the Fund”). The Trustee filed a submitting notice in this proceeding and did not appear at the hearing.

2    The appeal relates to a decision of the Tribunal made on 22 September 2015 to affirm a decision of the Trustee to reject the applicant’s claim for a Total and Permanent Disability (“TPD”) benefit. The applicant signed a TPD claim form for the Fund on 28 June 2012. The Trustee notified the applicant by letter dated 3 July 2013 and, following review, by letter dated 5 December 2013 of its decision to reject the applicant’s claim for the payment of a TPD benefit.

3    On 3 January 2014 the applicant lodged a complaint with the Tribunal to the effect that the decision of the Trustee to reject his claim for payment of a TPD benefit was unfair or unreasonable. The Tribunal was satisfied that the decision was fair and reasonable in the circumstances and, accordingly, affirmed the decision of the Trustee.

The Facts

4    The Tribunal conducted the review on the papers. As it was required to do under s 32 of the SROC Act, the Tribunal invited the parties to make written submissions. The Tribunal received submissions from both parties and those submissions were exchanged. The parties were invited to provide responses and both parties provided responses.

5    The facts are set out in the reasons of the Tribunal and the following is taken from those reasons.

6    The applicant was 52 years of age at the time of the review. It is not necessary for me to repeat details of the applicant’s qualifications and work history which are set out in the Tribunal’s reasons.

7    The applicant commenced work with GM Holden Ltd as a production operator in 2003 and worked with the company in that position until 2012. In the course of his employment with GM Holden Ltd, the applicant claimed a variety of soft tissue injuries and received Workers’ Compensation payments from August 2008 to January 2012. The conditions claimed by the applicant were a back injury in 2006 and a groin strain, left wrist strain and right shoulder strain in 2007. The Tribunal said that the conditions had been thoroughly investigated and that the applicant had been psychiatrically assessed. In 2011, the applicant was diagnosed with sleep apnoea.

8    The Tribunal noted that the applicant had had his injuries examined by a large number of medical practitioners over a long period of time. It noted that while many of the expert medical practitioners accepted that the applicant had physical symptoms, they also assessed the applicant as exhibiting a major psychiatric component to his health complaints, which made his prognosis poor and his capacity for work reduced or void. The Tribunal noted that these opinions were retracted by those medical practitioners who later viewed a surveillance video showing the applicant moving freely, lifting a 10 kg bag of cement and loading a van with building materials and tools.

9    Following the gathering of the surveillance evidence referred to, the applicant decided to resign from his employment with GM Holden Ltd. He was paid a redemption payment of $30,000.

10    The applicant sought to be paid the TPD benefit he believed he was entitled to pursuant to the trust deed of the Fund, being an amount of $154,272.35.

11    The Tribunal said that the following events (established by the material before it) were not in dispute (at [17]):

4 October 1962    –    the Complainant’s date of birth.

14 April 2003    –    the Complainant commenced employment with the Employer.

15 April 2003    –    the Complainant joined the Fund.

13 May 2003    –    the date of a letter from the Employer to the Complainant advising that his claim for compensation for a right leg injury had been accepted for a closed period from 8 May 2003 to 18 June 2003.

5 March 2004    –    the date of a letter from the Employer to the Complainant advising that his claim for compensation for left arm and right shoulder injuries had been accepted tor medical expenses only.

1 August 2005    –    the date of a letter from the Employer to the Complainant advising that his claim for compensation for a groin injury had been accepted for a closed period from 26 July 2005 to 18 August 2005.

5 July 2006    –    the date of a letter from the Employer to the Complainant advising that his claim for compensation for a back injury had been accepted but that he was not entitled to income maintenance as he had not had time off work and suitable duties had been made available for him.

14 May 2007    –    the date of a letter from the Employer to the Complainant advising that rehabilitation services were being made available to him for his groin strain.

23 August 2007    –    the date of letters from the Employer to the Complainant advising that his claims for compensation for both a left wrist strain and a right shoulder strain had been accepted but that he was not entitled to income maintenance as he had not had time off work and suitable duties had been made available for him.

15 August 2008    –    the Complainant commenced receiving Workers’ Compensation payments.

7 November 2008    –    the Complainant last physically worked.

20 January 2012    –    the Complainant’s employment with the Employer was terminated and he was paid a settlement of $30,000 on 5 March 2012.

28 June 2012    –    the Complainant signed a TPD claim form for the Fund.

12    The Tribunal set out the provisions of the Trust Deed which were relevant to the claim. They are as follows:

1.    INTERPRETATION

Total and Permanent Disablement in relation to a Member or Employee means having been absent from work with the Company through injury or illness for:

(i)    six consecutive months; or

(ii)    where in the opinion of the Trustee and the Company the Member or Employee is terminally ill and has a short life expectancy or the Member or Employee is or was engaged in work for the Company involving light duties which are substantially different from the duties undertaken by the Member or Employee prior to the illness or injury – six consecutive months or such shorter period agreed between the Trustee and the Company,

and in the opinion of the Trustee after consideration of medical evidence having become, at the date that the Member’s or Employee’s employment terminated, incapacitated to such an extent as to render the Member or Employee unlikely ever to engage in or work for reward in any occupation or work for which he or she is reasonably qualified by education, training or experience provided that a Member or Employee shall be deemed to have become Totally and Permanently Disabled if he or she has suffered the loss of two limbs or the sight of both eyes or the loss of one limb and the sight of one eye where “limb” means the whole hand or the whole foot. “Totally and Permanently Disabled” has a corresponding meaning.

For the avoidance of doubt, the Member or Employee must satisfy the definition of ‘Total and Permanent Disablement’ as at the date that the Member’s or Employee’s employment with the Company terminates or terminated, but for administrative purposes the Trustee is permitted to assess whether the definition is satisfied either before or after the termination of employment.

13    The Tribunal then set out a summary of the medical reports which were provided to it. It is necessary to set out the summary in full, having regard to the applicant’s submissions in support of his appeal. It is as follows:

MEDICAL REPORTS

24.    The Tribunal was provided with the reports of the treating general practitioner (‘GP’), two general surgeons, a respiratory physician, one orthopaedic surgeon, a psychologist, a chiropractor, two occupational physicians, a rehabilitation physician, a consultant physician and two pain physicians.

Dr VJ, Treating GP

Clinical records of Complainant, certificates for Workers’ Compensation purposes and a report to the Trustee dated 25 September 2012

25.    Dr VJ has treated the Complainant for hypertension and hay fever for some years. In November 2007, the records state that the Complainant had developed right shoulder pain and recurrent left groin pain. He had an indirect left inguinal hernia repaired in 2005, and as a result, was working at modified duties. Dr VJ certified the Complainant as unfit for work until late January 2008 when he resumed part-time modified duties at 20 hours per week while undertaking physiotherapy and rehabilitation for right shoulder and back pain.

26.    In February 2008, the Complainant requested referral to a surgeon regarding his left groin pain and in March 2008, he reported that he was depressed and also requested an MRI of his cervical spine. The antidepressant Zoloft was commenced and referral was made to a pain management clinic. The Complainant remained depressed as he did not take the prescribed Zoloft and in August 2008, he complained of pain in the left groin, left wrist, right shoulder and back. Dr VJ commenced a six-month course of counselling and continued to supply Workers’ Compensation certificates of work­related ill health.

27.    In July 2011, a diagnosis of obstructive sleep apnoea was made and treatment with CPAP (continuous positive airways pressure) was commenced with great improvement but poor tolerance of the CPAP machine noise.

28.    In late 2011, the Complainant reported his Employer’s medical adviser to the police as he believed the doctor had stolen his medical records. He also reported being followed and being spied upon.

29.    Dr VJ completed medical reports supporting the Complainant’s application for the Disability Support Pension (‘DSP’) after his Workers’ Compensation payments ceased, but according to the records, the DSP claim was rejected.

30.    In his report to the Trustee of 25 September 2012, Dr VJ summarised the above clinical entries, stated that the Complainant’s medical conditions were part somatic and part psychosocial, that his prognosis was poor and his work capacity zero. In Dr VJ’s opinion the Complainant met the definition of TPD.

Hospital report of 23 October 2007

31.    The Complainant had attended the Emergency Department of a hospital complaining of chest wall pain and an episode of syncope (fainting), having taken two extra tablets of his antihypertensive medication when he recorded his own blood pressure as 170 systolic.

Dr MS, Orthopaedic Surgeon

Report to the GP dated 26 June 2008

32.    Dr MS saw the Complainant in relation to his right shoulder and left wrist pain. Dr MS diagnosed left carpal tunnel syndrome based on the reported symptoms, but noted that the nerve conduction studies were entirely normal. On examination of the Complainant’s right shoulder, he noted tenderness over the right acromio-clavicular joint but good strength and range of movement of the joint. Dr MS considered surgical treatment might be required in the future if the symptoms did not settle.

Dr JM, Occupational Physician

Report to the Complainant’s solicitors dated 12 August 2008 and report to solicitors dated 21 November 2011

33.    On the first occasion, Dr JM noted the history of right shoulder pain, possible left carpal tunnel syndrome, low back pain, depression and non-specific neck and thoracic spinal pain. As Dr JM ‘ran out of time’ to assess the Complainant properly, he did not provide an opinion and was to see the Complainant again.

34.    Apparently Dr JM did review the Complainant on 20 August 2008 and had advised restriction of lifting and above shoulder height work, but because of ‘marked non­organic signs’, he was unable to assess the right shoulder in terms of permanent impairment.

35.    Dr JM viewed a surveillance video of the Complainant taken in May 2011 that revealed a normal range of movement of the Complainant’s right shoulder during various activities including digging with a shovel, loading cabinets onto a trailer and lifting weights with his left arm. Dr JM concluded that the Complainant was ‘intentionally misrepresenting his level of disability’. As a result, Dr JM opined that the Complainant was fit for unrestricted normal duties with possibly a lifting restriction of 15 kg and did not require any further treatment. Dr JM maintained the whole person impairment in relation to spinal function at 6%.

Dr SS, Psychologist

Seven reports to the GP, Dr VJ, over 2008-2012

36.    Dr SS first saw the Complainant and reported on 10 September 2008. She diagnosed an Adjustment Disorder with anxiety and depression secondary to the Complainant’s physical ailments. Counselling was provided on a regular basis but little improvement occurred. Psychometric re-testing on 23 December 2009 revealed no change despite 15 months’ treatment. Dr SS opined that the Complainant would not improve until his Workers’ Compensation claim was finalised.

37.    Dr SS provided a detailed report to the Trustee on 15 October 2012, outlining her treatment of the Complainant and his only partial response. She stated that the Complainant did not meet the definition of TPD.

Dr GW, Physician

Reports to the GP, Dr VJ, dated 16 January 2009, 13 August 2009 and 16 November 2009

38.    Dr GW listed all the Complainant's medical conditions but questioned their severity. He opined that the Complainant would not improve until his Workers’ Compensation claims were resolved. He maintained this opinion throughout until he discharged the Complainant from his care in November 2009.

Dr AM, Chiropractor

Reports of 15 December 2008 and 20 December 2010 addressed ‘to Whom it may Concern’

39.    Dr AM considered the Complainant to have ‘physical responses to examination [which] were not within the normal range’ and that his clinical signs were non­organic. He did, however, provide treatment in the form of massage, mobilisation, ‘corrective spinal adjustments’ and acupuncture. He advised the Complainant to avoid stress.

40.    In the report dated 20 December 2010, Dr AM supported the purchase of a ‘gravity invertor’ by the Complainant.

Dr AT, Occupational Physician

Report for Workers’ Compensation purposes dated 9 June 2009 and to solicitors dated 7 November 2011

41.    Initially Dr AT assessed the Complainant's back pain as his major incapacitating condition, as on examination his range of spinal movement was markedly reduced, but while the reflexes in the lower limbs were diminished, this was bilateral. Dr AT concluded that while there was a physical basis for the Complainant’s pain, industrial grievances and psychological factors were very prominent. He advised continuation of a pain management course and early resolution of the Workers’ Compensation claim.

42.    After reviewing the surveillance video, Dr AT, having commented on the Complainant’s activities, concluded the Complainant ‘was lying about his level of disability’ as the history given was inconsistent with the video portrayal.

Dr AG, Rehabilitation Physician

Reports to the GP, Dr VJ, between February 2010 and 30 May 2012

43.    Dr AG provided reports on five occasions. He noted the Complainant's L5-Sl disc bulge/prolapse, questionable facet joint pathology and the ‘significant workplace conflict’. Initially he advised exercise, but when a subsequent CT spine showed changes commensurate with the Complainant's age, hydrotherapy was advised. In September 2010, facet joint injections provided some relief. Dr AG then recommended referral to a pain management clinic.

Dr MG, Pain Physician

Reports for Workers’ Compensation purposes dated 2 September 2011 and 2 December 2011

44.    Dr MG recommended lumbar nerve root medial branch blocks for possible control of the Complainant's back pain, but also noted the strong psychological overlay. He sought approval for the procedure but it would appear that he was provided with the surveillance video, following which he determined that there were predominating psychological factors and that the Complainant was fit for part-time light sedentary duties.

Dr MA, Consultant Physician

Reports for Workers’ Compensation purposes dated 16 August 2011 and 10 November 2011

45.    Dr MA obtained a full history from the Complainant and examined all systems. He found no real evidence of a right rotator cuff syndrome as the Complainant’s shoulder movement was only limited to 90 degrees in abduction, there was no muscle wasting, his back examination was normal except for non-organic signs, there was no mass or recurrent left inguinal hernia, and three sets of nerve conduction studies relating to the left wrist postulated carpal tunnel syndrome were all normal.

46.    In the report of 10 November 2011 Dr MA stated that all the radiological changes demonstrated were age-related and not work caused.

Dr BD, Thoracic Medicine Registrar

Report to GP Dr VJ dated 22 May 2012

47.    Dr BD advised that investigations had confirmed that the Complainant suffered from severe obstructive sleep apnoea and had achieved ‘an excellent result’ with the use of CPAP. As the Complainant considered the machine to be too noisy, a new machine had been ordered.

Dr PK, Pain Physician

Reports to the referring physician, Dr AG, from 2012-2013 and to the Trustee dated 26 February 2012

48.    Dr PK performed facet joint blocks followed by the injection of epidural steroids in an effort to control the Complainant’s back pain. These were of no benefit. On 21 January 2013, treatment with Panadol and Kapanol was prescribed as was the continuing use of a TENS machine as this gave partial relief.

49.    In the report to the Trustee, Dr PK advised that none of the treatments given had been of benefit, that there was no somatoform disorder and that the Complainant could not perform physical work but did not meet the definition of TPD.

Further report provided by the Complainant on 20 August 2015

50.    The Complainant forwarded the results of a renal ultrasound examination the day before the hearing. This showed two simple cysts in the cortex of the left kidney (Tribunal comment - a common innocent finding) and a slight enlargement of the prostate gland (Tribunal comment - as the Complainant is 52 this would be commensurate with his age).

14    The Tribunal then set out a summary of the submissions of the parties which I need not repeat.

The Tribunal’s reasons for affirming the decision under review

15    The Tribunal said that it had to determine whether the decision of the Trustee to reject the applicant’s claim for a TPD benefit was fair and reasonable in its operation in relation to the applicant in the circumstances.

16    The Tribunal noted that to satisfy the TPD definition, the applicant had to be “unlikely ever to engage in or work for reward in any occupation or work for which he is reasonably qualified by education, training or experience” at the date his employment was terminated (i.e., 20 January 2012).

17    The Tribunal then considered the medical evidence. The Tribunal’s conclusions were as follows:

59.    The Tribunal considered the medical evidence. The majority of specialist opinions, while accepting there was some organic basis to the Complainant’s symptoms, were perturbed by non-organic factors, over-reaction on examination and a failure to respond to usual treatment modalities.

60.    The Tribunal noted that appropriate investigations did not reveal underlying pathological change consistent with the Complainant’s symptoms. For example, the CT of his lumbar spine did not show any disc abnormality and only minor facet joint arthritis. An MRI of his spine revealed only some bulging of the L5-Sl disc, upper limb nerve conduction studies were normal and ultrasound examination of his right shoulder revealed a small supraspinatus muscle tear and acromioclavicular bursitis. The Tribunal was of the opinion that none of these radiological findings accounted for the claimed severity of the Complainant’s symptoms.

61.    The Tribunal was not provided with any surveillance video evidence of the Complainant. However, the Tribunal noted that Drs JM, AT and MG, having viewed the surveillance video, taken for Workers’ Compensation purposes concluded that the Complainant had misrepresented his symptomatology. Dr VJ, the treating GP, has certified the Complainant as being TPD but every other reporting medical practitioner has declared his fit for more sedentary duties.

62.    The Tribunal noted that the Complainant terminated employment after the release of the surveillance video, and at that time, there was no support from the medical practitioners for his TPD claim except for Dr VJ.

63.    The Tribunal was of the opinion that the majority of the medical evidence indicated that the Complainant did not meet the Trust Deed definition of TPD at the relevant date.

18    The Tribunal concluded that, having regard to the evidence submitted, the decision of the Trustee to reject the applicant’s claim for a TPD benefit was fair and reasonable in its operation in relation to the applicant in the circumstances. The Tribunal therefore affirmed the decision of the Trustee.

Grounds of Appeal

19    The applicant identifies two “questions of law” in his Amended Notice of Appeal:

1.    The Tribunal (standing in the shoes of the Respondent) has erred in law in not making further enquiries to resolve inconsistencies in the expert evidence available.

2.    The Tribunal (standing in the shoes of the Respondent) has erred in law in not having formed a fair and reasonable opinion as to entitlement to a TPD benefit.

20    The Amended Notice of Appeal seeks an order setting aside the determination of the Tribunal and an order that the TPD benefit be paid immediately by the respondent to the applicant. In oral submissions, counsel for the applicant acknowledged that the appropriate order, if the applicant is successful, is an order setting aside the decision of the Tribunal and remitting the matter to the Tribunal to be heard and determined in accordance with such directions as the Court considers appropriate.

Relevant Principles

21    The appeal to this Court is limited to an appeal on a question of law from the determination of the Tribunal. In hearing and determining an appeal, the Court may make such orders as it thinks appropriate and that may include an order affirming or setting aside the determination of the Tribunal and an order remitting the matter to be determined again by the Tribunal in accordance with the directions of the Court (s 46 SROC Act).

22    A person’s ability to make a complaint to the Tribunal is limited to a complaint that the Trustee’s decision is or was unfair or unreasonable (s 14(2)) and the Tribunal must affirm a decision under review if it is satisfied that, in its operation in relation to the complainant, it was fair and reasonable in the circumstances (s 37(6)).

23    The nature and extent of the duty of a trustee of a superannuation fund when considering an application for a benefit provided for by the rules of the fund was considered by the High Court in Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254 (“Finch”), and by the Court of Appeal of the Supreme Court of Victoria in Alcoa of Australia Retirement Plan Pty Ltd v Frost [2012] VSCA 238; (2012) 36 VR 618 (“Frost”). The applicant submits that the principles laid down in those cases apply to the Tribunal, having regard to its power and functions under the SROC Act. The applicant submits that the Tribunal failed to perform its duties in that it did not give his case properly informed consideration.

24    In Finch, the relevant benefit under the superannuation trust fund was a benefit for total and permanent invalidity as defined in the trust deed. The trustee rejected Mr Finch’s application and he challenged the trustee’s decision in proceedings in the Supreme Court of Victoria. The High Court upheld the primary judge’s decision that the trustee’s decision was flawed and the order the primary judge made remitting the matter to the trustee. The Court said in the course of its reasons, the following (at 280-281 [66]):

Byrne J’s reasoning is, however, reinforced by one qualification to Karger v Paul principles in the present context. There is no doubt that under Karger v Paul principles, particularly as they have been applied to superannuation funds, the decision of a trustee may be reviewable for want of “properly informed consideration”. If the consideration is not properly informed, it is not genuine. The duty of trustees properly to inform themselves is more intense in superannuation trusts in the form of the Deed than in trusts of the Karger v Paul type. It is extremely important to the beneficiaries of superannuation trusts that where they are entitled to benefits, those benefits be paid. Here, for example, the applicant was claiming a Total and Permanent Invalidity benefit to support himself for the rest of his life. His claim depended on the formation of an opinion by the Trustee about the likelihood that he would ever engage in “gainful Work”: that was not a mere discretionary decision. In the Deed there was a power to take into account “information, evidence and advice the Trustee may consider relevant”, and that power was coupled with a duty to do so. It would be bizarre if knowingly to exclude relevant information from consideration were not a breach of duty. And failure to seek relevant information in order to resolve conflicting bodies of material, as here, is also a breach of duty. The Scheme is a strict trust. A beneficiary is entitled as of right to a benefit provided the beneficiary satisfies any necessary condition of the benefit. Whether or not it will be decided hereafter that, consistently with s 14 of the Complaints Act, the duty of a trustee in forming an opinion of the present type is a duty to form a fair and reasonable opinion, or even a duty to form a correct opinion, there is because of the importance of the opinion and its place in the Scheme a high duty on the Trustee to make inquiries for “information, evidence and advice” which the Trustee may consider relevant. The existence of that duty in a more intense form than exists under Karger v Paul principles in their standard application is further support for the correctness of Byrne J's decision.

(Footnote omitted, emphasis added).

25    The applicant in this case bases his principal argument on the appeal on the proposition that the Tribunal failed to resolve conflicting bodies of expert material. It is important to note the precise nature of the conflicting bodies of material in Finch. On the one hand, the primary judge found that there was “very strong evidence” from the doctors in favour of the applicant. On the other hand, the trustee relied on the claimant’s work experience without any or very much inquiry as to its nature and the primary judge identified three matters with respect to which the trustee had failed to make inquiries. For example, whether work was ordinary work or activity in the nature of rehabilitation, had not been properly explored.

26    In Frost, the benefit in issue was a benefit payable from the employer’s superannuation retirement plan for total and permanent disablement. Mr Frost’s application for the benefit was refused by the directors of the trustee. A challenge to the decision was allowed on the basis that the directors of the trustee had failed in their duty to seek relevant information sufficient to enable them to undertake a properly informed consideration of the application. The Court of Appeal dismissed an appeal against that decision. Nettle JA (as his Honour then was) (with whom Davies AJA agreed) wrote the leading judgment. His Honour considered that the trustee had made insufficient inquiries to attempt to resolve conflicting reports of orthopaedic surgeons as to whether the applicant was totally and permanently disabled. The two orthopaedic surgeons were Mr Kierce and Mr O’Brien. His Honour expressed his conclusion in a passage which was heavily relied on by the applicant in this case (at 629 [45]):

At all events, I consider that, since the trustee was not satisfied the claim was made out, the prima facie inconsistencies between Mr Kierce’s and Mr O’Brien’s reports required investigation, at least by way of further inquiries of those two experts if not by taking advice from further medical and other experts, in order to establish whether Mr Kierce and Mr O’Brien were or were not agreed as to the nature and extent of Mr Frost’s disability; and, if they were agreed that he was totally and permanently disabled, whether they were agreed that he had reached that stage by the time his employment was terminated.

27    As it was with Finch, it is important to note the factual context of the decision made in Frost. In Frost, it was arguable that neither orthopaedic surgeon had addressed the key question. As Nettle JA said (at 634 [63]):

In the same way here, if the material which Mr Frost provided in support of his application were insufficient, it could only be because the leading characteristic of Mr Kierce’s report was pre-finality and because, on one possible view of that material, neither Mr Kierce’s report nor Mr O’Brien’s report directly addressed the central question of whether Mr Frost’s illness or injury was sufficiently serious to render him unlikely ever to resume work in an occupation to which he was reasonably fitted by knowledge, education or experience as at the date of termination. Assuming for the sake of argument that the trustee addressed itself to that question, as it alleges it did, the only conclusion to which it could reasonably have come was that further inquiries were required. It failed to make those inquires and it follows that its determination to decline Mr Frost’s application was not an effective exercise of its power to determine the claim.

28    The key point in Frost in terms of the present issue is that it was possible to identify further inquiries that could and should have been made. Furthermore, Nettle JA made the point that the trustee’s duty to inquire does not require the trustee to do the impossible. His Honour said (at 633 [60]):

So to say does not mean that a trustee is required to do the impossible. Nor is it to suggest that a trustee is expected to go on endlessly in pursuit of perfect information in order to make a perfect decision. The reality of finite resources and the trustee’s responsibility to preserve the fund for the benefit of all beneficiaries according to the terms of the deed means that there must be a limit. Like the judge below, I accept that a trustee is not under an obligation to go on endlessly seeking more and more information. It may also be that a trustee is not required to undertake any inquiries until and unless a claimant puts forward sufficient material to show that there is a case to be investigated. But, in this case, the trustee’s failure in neglecting to make further inquiries is palpable. As I have said, the material which Mr Frost put forward in support of his claim went at least as far as establishing that he had a strong prima facie case of entitlement. If the trustee regarded that as insufficient, it was bound to make further inquiries sufficient to confirm or allay its concerns. On the evidence, it could easily have made appropriate further inquiries of Mr Kierce and Mr O’Brien and Alcoa, or perhaps asked Mr Frost in precise terms for exactly what it wanted. Yet it chose to do nothing at all.

(Footnote omitted).

29    With respect, this analysis by Nettle JA accords with my own view of the matter. There will be cases where there is a conflict that cannot or is unlikely to be resolved by further inquiries. The trustee or the Tribunal, as the case may be, will have to make a decision on the material it has, and providing it is within the bounds of fairness and reasonableness, the decision will stand.

30    The significance of the factual context in Frost was that there was reason to think that the apparent differences between Mr Kierce and Mr O’Brien had not been properly explored and that, had that been done, there may well have been no conflict and the medical evidence may have supported the applicant’s claim.

Issues on the Appeal

31    As I have said, having defined the issues and summarised the medical evidence, the Tribunal noted that to satisfy the TPD definition the applicant had to be “unlikely ever to engage in or work for reward in any occupation or work for which he is reasonably qualified by education, training or experience” at the date his employment was terminated, which was 20 January 2012.

32    The Tribunal considered the medical evidence and drew a number of conclusions which may be analysed as follows. First, the majority of specialist opinions were to the effect that, although they accepted that there was some organic basis for the applicant’s symptoms, they were “perturbed” by non-organic factors, over-reaction on examination and a failure to respond to usual treatment modalities. That conclusion was, it seems to me, justified to varying degrees, having regard to the opinions of Dr MS, Dr JM, Dr GW, Dr AM, Dr AT, Dr MG and Dr MA. Secondly, the Tribunal referred to the investigations that had been carried out, including a CT of the applicant’s lumbar spine, an MRI of the applicant’s spine, upper limb nerve conduction studies and an ultrasound examination of the applicant’s right shoulder and it said that none of the radiological findings accounted for the claimed severity of the applicant’s symptoms. I do not understand that that conclusion can be challenged. Thirdly, although the Tribunal itself did not view the surveillance video, it noted that three of the specialists had seen the video and expressed the view that the applicant had misrepresented his symptomology. Again, I do not understand that that conclusion can be challenged. Fourthly, the Tribunal noted that, although the applicant’s GP, Dr VJ, had certified him as being totally and permanently disabled, “every other reporting medical practitioner has declared him fit for more sedentary duties”. As far as the Tribunal’s own summary of the medical reports is concerned, that is true of Dr JM, Dr SS (although, as the applicant pointed out, Dr SS is a psychologist and not a medical practitioner), Dr MG and Dr PK who all concluded either that he did not meet the TPD definition or was fit for some form of work. Fifthly, the Tribunal said that the applicant terminated his employment after the release of the surveillance video and at that time, (i.e., 20 January 2012) there was no support from the medical practitioners for his claim to be totally and permanently disabled, other than by Dr VJ. Finally, (and it needs to be borne in mind that these matters overlap) the Tribunal said that the majority of the medical evidence indicated that the applicant did not meet the definition of TPD as at 20 January 2012.

33    One of the difficulties with the Tribunal’s reasons is that they did not indicate which specialists comprised “the majority of specialist opinions” (at [59]) or which medical practitioners comprised “every other reporting medical practitioner” (at [61]), and what evidence comprised “the majority of the medical evidence” (at [63]).

34    I think that the medical evidence which the Tribunal summarised can be characterised in the following way. First, there is the evidence of Dr SS and Dr PK who addressed the issue of total and permanent disablement in 2012 and who concluded that the applicant was not totally and permanently disabled. Secondly, there is the evidence of Dr JM and Dr MG who addressed the applicant’s working capacity in 2011 and who concluded that the applicant had a level of working capacity. Thirdly, there is the evidence of Dr MS, Dr GW, Dr AM, Dr AT and Dr MA who, although they did not address the applicant’s working capacity, noted that objective tests were normal or at least did not explain the level of symptoms or there were signs or factors which were non-organic. Fourthly, there is the evidence of Dr AG and Dr BD which seems to me relatively neutral as far as the applicant’s current claim is concerned. Finally, there is the evidence of Dr VG who expressed the opinion that the applicant met the definition in the Trust Deed of totally and permanently disabled.

35    If it be assumed that the Tribunal considered the most relevant evidence to be that of Dr VJ, Dr SS and Dr PK and weighed that evidence, then I do not think it can be said that its decision was unfair or unreasonable. I have read the relevant reports of Drs VJ, SS and PK. Each of the reports addresses the correct question in terms of the definition of the TPD benefit in the trust deed. Each of the reports addresses the relevant medical issues and there is nothing obvious which has been overlooked. The reports of Dr SS and Dr PK were obtained by the trustee through an independent consulting firm, Mercer Outsourcing Australia Pty Ltd, and that was done to assist the trustee in determining the very issue the trustee was required to decide. I do not think the trustee was required to seek another medical report simply because there was a conflict between the opinions of Dr SS and Dr PK respectively on the one hand, and the opinion of Dr VJ on the other. In submissions, the applicant was not able to identify a particular matter or particular inquiry which was such that it might reasonably lead to a resolution of the conflict.

36    That circumstance distinguishes this case from Finch and Frost. There would be no error if the Tribunal took into account the evidence of Dr JM and Dr MG who, near the relevant time, addressed the applicant’s working capacity and expressed a view which was unfavourable to his case. The balance of the medical evidence is more general. I do not think the Tribunal erred in taking it into account, although I note that it did not indicate what weight it placed on particular items of evidence. However, I do not think the fact that the Tribunal did not do that gives rise to a question of law. As the Full Court of this Court said in Board of Trustees of the State Public Sector Superannuation Scheme v Edington and Another [2011] FCAFC 8; (2011) 119 ALD 472 (at [61] per Kenny and Lander JJ), “Generally speaking, issues of the weight to be given to evidence do not give rise to a question of law”.

Conclusion

37    In my opinion, the Tribunal did not err in law in reaching the conclusion that the decision of the trustee should be affirmed.

38    For these reasons, the appeal should be dismissed.

Associate:    

Dated:    17 June 2016