FEDERAL COURT OF AUSTRALIA

Aslami v Board of Trustees of the State Public Sector Superannuation Scheme as Trustee for the QSuper Fund [2019] FCA 1560

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s notice of appeal is dismissed.

2.    The appellant is to pay the respondent’s costs of this appeal to be taxed failing agreement.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    In this appeal, Mr Aslami claims that the Superannuation Complaints Tribunal (the Tribunal) erred in its decision to affirm an earlier decision of the Board of Trustees (the Trustee) of the State Public Sector Superannuation Scheme for the QSuper Superannuation Fund (the Superannuation Fund) to decline his claim for a total and permanent disablement benefit (TPD benefit).

THE QUESTIONS OF LAW

2    Central to this appeal is the expression “is reasonably qualified by education, training or experience” which appears in the definition of the expression “total and permanent disablement” in cl 4 of the Superannuation Fund Trust Deed (the Trust Deed). Accordingly, the three questions of law stated in Mr Aslami’s amended notice of appeal all focus on the approach the Tribunal took with regard to that expression. They are:

1A.    Whether the Tribunal adopted the correct approach in determining [Mr Aslami’s] education, training and experience as at May 2014 rather than as at June/September 2012.

2.    Whether the Tribunal applied the correct test in determining [Mr Aslami’s] reasonable qualifications to work in the job constituted by his own business insofar as:

(a)    Whether the Tribunal erred in concluding that [Mr Aslami] has utilised skills that he acquired through his education, training and experience prior to ceasing work with [TAFE].

(b)    That the Tribunal erred when it found at, paragraph 69, that [Mr Aslami’s]:

...previous roles...have not only afforded [Mr Aslami] the technical knowledge to supervise installation on large projects but also the knowledge and skills to liaise with staff, customers and regulatory authorities in his day to day work. And

… It is the view of the [Trustee] therefore that [Mr Aslami] was clearly utilising his education, training and experience prior to his cessation of employment with [TAFE] in 2014.

(c)    That the Tribunal erred when it found, at paragraph 71, that:

The operation of his Own Business utilises [Mr Aslami’s] skills acquired through his education, training and experience prior to ceasing work with [TAFE].

3.    Whether the Tribunal erred in concluding that the decision of the Trustee was fair and reasonable by reason of the errors referred to above.

(Italics in original)

3    Similarly, all of Mr Aslami’s grounds of appeal relied on in support of the above questions focus on the abovementioned expression. They are:

1.    The approach of the Tribunal, as stated in paragraph 66 of the Reasons, the “phrase ‘unlikely ever to be able to work again in a job’ requires a prognostic view from, in the case of [Mr Aslami], the date he ceased work in May 2014 due to his sickness.”

2.    The approach of the Tribunal, as stated in paragraphs 66 to 69 and 71 of the Reasons, that [Mr Aslami] was working in a job being his Own Business prior to ceasing work with [TAFE] which job was based on his education, training or experience or which job utilised skills acquired through his education, training or experience prior to ceasing work with [TAFE].

3.    The conclusion reached by the Tribunal, in paragraph 72 of the Reasons, that “the advice of the medical practitioners does not lend itself to a conclusion that [Mr Aslami’s] disablement is of a degree to render him ‘unlikely ever to be able to work again in a job for which he is reasonably qualified by education, training or experience.’”

4.    The decision by the Tribunal, in paragraphs 73 to 75 of the Reasons, to uphold the Trustee’s decision to decline [Mr Aslami’s] [total and permanent disablement] claim on the grounds that there had been no unfairness or unreasonableness.

FACTUAL CONTEXT

4    Mr Aslami is a qualified electrician having obtained a Certificate III as an Electrical Fitter Mechanic in 1999.

5    In 2005, he suffered a back injury while working as an electrician.

6    In 2007, he changed his occupation and obtained a full time position as a Technical and Further Education (TAFE) Electrical Teacher. At about the same time (23 June 2007), he joined the Superannuation Fund.

7    Between 2007 and his retirement in 2014, Mr Aslami furthered his education, training and experience in a number of respects. First, in 2008 and 2011, he obtained certificates in “Teaching and Assessment” and in “Photovoltaic System Design & Installation” respectively. As well, he obtained a taxi licence and worked on and off as a taxi driver until approximately 2010. Finally, on 26 March 2013, Mr Aslami registered a business name “Can Do Solar and Electrical” and began to operate a business under that name.

8    From as early as 2010, Mr Aslami began to develop a psychological condition which was later diagnosed as “chronic adjustment disorder with mixed depression and anxiety symptoms”. He was certified unfit for work because of that condition from September 2012 until September 2014. Relatedly, in April 2013, he submitted a claim to the Superannuation Fund for an income protection benefit. That claim was accepted and he was paid that benefit from 5 February 2013 to 17 November 2013.

9    Between 30 September 2013 and May 2014, Mr Aslami undertook a return to work program. That program appears to have been unsuccessful because he completed his last physical day of work as an Electrical Teacher on 30 May 2014. Approximately six months later, on 7 November 2014, he was “ill-health retired” from his employment at TAFE due to his abovementioned psychological condition.

10    Mr Aslami made his application for the TPD benefit which is at the centre of this appeal on 25 November 2014. By letter dated 9 September 2016, the Trustee notified him that his claim had been rejected. Thereafter, he made a complaint to the Tribunal with respect to that decision. Following a review meeting which it held on 2 October 2018, the Tribunal affirmed the Trustee’s decision on 24 November 2018.

THE TRUST DEED

11    Clause 4.4 of the Trust Deed describes the total and permanent disablement insurance benefit to which a Superannuation Fund member is entitled, and the date on which that member is considered to have suffered such disablement for the purposes of calculating that benefit. It is expressed in the following terms:

An amount equivalent to the Insured Member’s death and Total and Permanent Disablement insurance benefit shall become payable upon the Insured Member’s death or Total and Permanent Disablement.

The date on which an Insured Member shall be considered by the [Trustee] to have suffered Total and Permanent Disablement, for the purposes of calculating a benefit, will be the later of the dates on which:

(a)    the sickness or injury causing the Total and Permanent Disablement commenced or occurred; or

(b)    the member ceased to be at work due to the sickness or injury causing the Total and Permanent Disablement.

12    As is already mentioned above, the expression “is reasonably qualified by education, training or experience” is a constituent phrase in the following definition of the expression “total and permanent disablement” in cl 4 of the Trust Deed:

total and permanent disablement means disablement of a degree which, in the opinion of the [Trustee] after obtaining the advice of not fewer than 2 medical practitioners, is such as to render the member unlikely ever to be able to work again in a job for which the member is reasonably qualified by education, training or experience.

THE LEGISLATIVE FRAMEWORK TO THIS APPEAL

13    It is convenient, first, to describe the statutory background to the Superannuation Fund and the Tribunal’s review function under the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Complaints Act) with respect to a decision made by the Trustees of that Fund. Those matters were succinctly outlined by the Full Court of this Court in Board of Trustees of the State Public Sector Superannuation Scheme v Edington (2011) 6 ASTLR 21; [2011] FCAFC 8 (Edington) (per Kenny and Lander JJ, with whom Logan J generally agreed). First, at [4], their Honours described the statutory background to the Superannuation Fund as follows:

4    Pursuant to the Superannuation (State Public Sector) Act 1990 (Qld), which “provide[s] the machinery for the establishment of a new superannuation scheme for the State public sector”, the State Public Sector Superannuation Fund “is continued in existence”: see the preamble and s 10. Pursuant to s 12, the Superannuation (State Public Sector) Deed 1990 (the trust deed) establishes a scheme (the scheme) for the provision of superannuation, retirement, provident or other similar benefits payable from the fund (the fund). The Board of Trustees of the State Public Sector Superannuation Scheme (the Board of Trustees) is also established under the Act: see s 3. The function of the Board of Trustees is to administer the scheme: see s 4. Section 7(1) provides that: “The board’s powers and the exercise of discretion by the board are, except as specified in this Act, to be as set out in the deed.” Membership of the scheme is limited to State public sector employees: see s 13.

14    Next, at [5]–[6], their Honours described the Tribunal’s review function as follows:

5    The Superannuation Complaints Tribunal is established under federal legislation, by s 6 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (Complaints Act). Pursuant to s 14, subject to certain presently immaterial matters, a person may make a complaint to the Tribunal that a decision by the trustee of a regulated superannuation fund, in relation to a particular member or a particular former member of the fund, is or was unfair or unreasonable. The fund in this case is a regulated superannuation fund.

6    Section 11 of the Complaints Act provides that, in carrying out its functions or exercising its powers, the Tribunal must pursue the objectives of providing mechanisms for (amongst other things) “the review of the decision … to which the complaint relates … that [is] fair, economical, informal and quick”. Section 12 provides that, if the complaint cannot be resolved by conciliation, the function of the Tribunal is to review the decision to which the complaint relates.

15    The powers of the Tribunal with respect to a complaint under s 14 of the Complaints Act are set out in s 37 as follows:

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

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

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

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

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

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

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

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

(a)    affirming the decision; or

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

(c)    varying the decision; or

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

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

(5)    The Tribunal must not do anything under subsection (3) that would be contrary to law, to the governing rules of the fund concerned and, if a contract of insurance between an insurer and trustee is involved, to the terms of the contract.

(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.

16    In Edington, their Honours highlighted the following series of principles with respect to the Tribunal’s review function under s 37 above:

(a)    “[T]he Tribunal is to conduct a form of administrative review of the decisions made by trustees of regulated superannuation funds” (see at [45]).

(b)    In conducting that review, the Tribunal’s primary concern is “the question whether or not the decision of the trustee was fair and reasonable”. Thus, the “whole of its inquiry, including its fact-finding, is directed to answering [that] question” (see at [50]).

(c)    The words “unreasonable” and “unfair” have been said to be “words of broad content” which are not readily defined (see at [44]).

(d)    The hearing before the Tribunal is a hearing de novo at which the Tribunal is not “restricted to the documents which were before the trustee, nor is it confined to the manner in which the applicant addressed the subject matter” (see at [45] and [50]).

(e)    The Tribunal is required to “[stand] in the shoes of the trustee and [determine], based on all the information before it, whether or not a decision taken by the trustee was fair or reasonable in the circumstances” (see at [46]).

(f)    The Tribunal is required to make its own assessments, findings and determination, that is (see at [51]):

… the Tribunal must make its own assessment of the evidence and other information with a view to making its own findings of fact directed to the fundamental question for determination – whether the decision of the trustee was fair and reasonable. The Tribunal may, of course, accept the findings made by the trustee if it agrees with them, but the Tribunal’s function is not discharged merely by forming a view that the trustee’s factual findings were fair and reasonable. Rather, the Tribunal must ascertain the facts for itself upon the material before it and satisfy itself by reference to these facts whether the trustee’s decision was fair and reasonable in the circumstances.

(g)    The Tribunal’s focus is directed to the “actual decision” rather than the process that led to it, including the reasoning process adopted by the Trustee (see at [46] and [53]). It is not concerned, therefore, with whether the Trustee “misapplied the law to the facts” or “mistook their powers and obligations under the governing rules of the fund” (see at [48]).

(h)    The “considerations that the Tribunal is bound to take into account in deciding whether or not a decision of the trustee was fair or reasonable … [is] determined by reference to the subject matter, scope and purpose of the [Complaints] Act”. In this respect, a purpose of the Act is “to ensure members and beneficiaries are not adversely affected by unfair and unreasonable decisions of insurers and trustees”; and the “governing trust deed and insurance terms will necessarily be relevant considerations” (see at [49]).

(i)    If the Tribunal is satisfied, in the circumstances, that the decision of the Trustee was fair and reasonable in its operation in relation to Mr Aslami, it is required to affirm the decision. However, if the Tribunal is not so satisfied, it is required to make a decision that is fair or reasonable in substitution for the decision of the Trustee. In doing so, it must comply with the law, the rules of the fund or any legal instruments governing the fund. Any new decision by the Tribunal will speak from the time specified in its determination and the object of that determination will be to remove the unfairness and unreasonableness which the Tribunal has determined to exist (see at [47]–[49]).

17    Two other well-established principles bearing upon the Tribunal’s review function were identified in Edington. They are that:

(a)    simply making a wrong finding of fact does not constitute an error of law (at [60]); and

(b)    the Tribunal’s decision should be read as a whole and “without an eye keenly attuned to the perception of error” (see at [67]).

18    This Court’s jurisdiction with respect to a decision of the Tribunal is contained in s 46(1) of the Complaints Act. That section provides that a party to a proceeding before the Tribunal may appeal to the Federal Court on a question of law. The meaning to be given to the expression “question of law” with respect to the corresponding provision of the Administrative Appeals Tribunal Act 1975 (Cth) (s 44) was authoritatively considered by a Full Court in Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 (Haritos). Pertinent to this appeal are the following parts of the Court’s summary of its conclusions (at [62]):

(1)    The subject matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.

(2)    The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.

(3)    The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.

(4)    Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.

(5)    In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.

(6)    Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.

(7)    A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.

(8)    The expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s 44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.

…

19    Further to (8) above, later in its reasons, the Court made the following observations about mixed questions of fact and law (at [192]):

… the right of appeal in s 44 should not be read as meaning that “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” may never extend to a mixed question of fact and law or as requiring that the question of law be a “pure” question. Rather, it may more accurately be said that the right of appeal does not extend to mere questions of fact ... It follows that the right of appeal does not extend to mixed questions of fact and law where, in order to decide the question of law, the Court must positively determine a question of fact itself, rather than judicially review the Tribunal’s fact finding …

20    Having set out this summary from Haritos, it is convenient, at this point, to deal with the Trustee’s contention that none of Mr Aslami’s three questions above (at [2]) identifies a question of law as required by s 46(1) of the Complaints Act. There is, in my view, some force in that contention, at least with respect to questions 2 and 3. Taking them in reverse order, question 3 is directed to the Tribunal’s ultimate decision to affirm the Trustee’s decision. As such, it is so broad that it is not possible to discern whether it involves a question of law and, if so, what. I do not therefore consider that question properly raises a question of law under s 46(1).

21    As for question 2, the examples given in subparagraphs (a) to (c) all identify alleged errors in the Tribunal’s fact finding. However, the reference to whether the Tribunal applied the “correct test” in the introductory words to that question may raise a question of law to the extent that it involves the construction of cl 4 of the Trust Deed to determine whether there is such a test and, if so, what it is. If that is so, that question, at least prima facie, raises a mixed question of fact and law. In that event, Haritos requires an assessment to be made to determine whether, despite this mixing, it, in substance, raises a question of law. I will therefore consider that question for that purpose and, if I conclude it, in substance, raises a question of law, I will then consider that question.

22    Finally, question 1 is less problematic than the other two questions. Read in context, it appears, at least partially, to raise a question of law concerning the construction of the phrase “education, training or experience” as it appears in the definition of the expression “total and permanent disablement” in cl 4 of the Trust Deed. In particular, the timing of the assessment of Mr Aslami’s education, training or experience. With these observations in mind, I now turn to consider questions 1 and 2 in order.

THE TRIBUNAL’S DECISION

23    In their submissions, both Mr Aslami and the Trustee focused on [60]–[71] of the “Deliberations and Findings” section of the Tribunal’s reasons. However, before highlighting the relevant parts of those paragraphs, it is convenient to briefly summarise the earlier parts of the Tribunal’s reasons. First, in the introductory paragraphs of its reasons, the Tribunal identified the decision under review (at [2]–[4]), certain procedural matters (at [5]–[9]) and the details of the “[c]omplaint and [b]ackground” (at [10]–[18]). Then, at [19] of its reasons, the Tribunal noted that the amount of the benefit in dispute in this matter was $246,720 and it also set out certain events that were not in dispute as follows:

24    At [20]–[23] of its reasons, the Tribunal set out the details of the relevant provisions of the Trust Deed and it then turned to review the medical evidence before it, specifically the opinions expressed by the four medical practitioners who provided that evidence (at [24]–[45]).

25    At [49]–[53] of its reasons, the Tribunal summarised the positions put by the parties. In the meantime (at [46]–[48]), it set out a number of factual findings about “[Mr Aslami’s] education[,] training and [sic – or] experience”. Since that expression is, as noted above, central to this appeal, it is appropriate to set those paragraphs out verbatim as follows:

46.    [Mr Aslami] completed secondary school overseas and he commenced a Bachelor of Science which he did not complete. In Australia, he commenced a Bachelor of Electrical Engineering which he also did not complete. Subsequently, [Mr Aslami] obtained a Certificate III for ‘Electrical Fitter Mechanic’ (1999), a Certificate III in ‘Teaching and Assessment’ (2008) and a Certificate III in ‘Photovoltaic System Design & Installation’ (2011).

47.    [Mr Aslami’s] employment history consists of 12 years working as an electrician before joining [TAFE] in 2007 as a teacher, a position he held for approximately seven years. [Mr Aslami] also held a taxi licence for approximately three years between 2007 and 2010.

48.    [Mr Aslami’s] Income Tax Returns for the 2013, 2014 and 2015 financial years include reference to income and expenses related to his Own Business, which is in the electrical field. [Mr Aslami] described the nature of his work in [his] Own Business as ‘solar panel installation and sales,’ but from 2014 onwards he only worked as a salesman and ‘did not do much hands on installation.’

26    In the earlier paragraphs of the “Deliberations and Findings” section of its reasons, the Tribunal began by identifying its task (at [54]–[55]), namely “whether the decision of the Trustee to reject [Mr Aslami’s] claim for a TPD benefit was fair and reasonable in its operation in relation to [Mr Aslami] in the circumstances”. I interpose to note that, in broad terms, this accurately describes the Tribunal’s function (see at [16(b)] above). The Tribunal then identified the material it had taken into account (at [56]) and provided a summary of its earlier review of the medical evidence relating to Mr Aslami’s medical condition and back injury (at [57]–[59]).

27    At [60], the Tribunal expressed its views concerning “the test contained in the [Superannuation] Fund’s definition of [total and permanent disablement]”. In particular, it said:

Nonetheless, the test contained in the [Superannuation] Fund’s definition of [total and permanent disablement] is not confined to [Mr Aslami’s] ability to work as an electrician and a vocational teacher, but also includes the likelihood of being able to ever ‘work again in a job for which [he] is reasonably qualified by education, training or experience.’ It is [Mr Aslami’s] education, training or experience existing at the time of his ceasing work with [TAFE] that is applicable, not work that requires a significant amount of re-training or obtaining further qualifications.

(Emphasis added)

28    Next, at [61], the Tribunal expressed its views as to whether Mr Aslami’s business activities were a relevant consideration, as follows:

The Tribunal notes [Mr Aslami’s] education, training and experience combines to have enabled [him] to operate his Own Business in the electrical field. Of relevance, [Mr Aslami] was operating his Own Business prior to the cessation of his employment with [TAFE] and hence is a relevant consideration in determining this complaint.

29    The Tribunal then turned to consider the expression “gainful employment”, which it noted had been raised in Mr Aslami’s submissions before it. In particular, it addressed the contention that “[Mr Aslami’s] involvement in his Own Business should be excluded from consideration”. The Tribunal rejected that contention at [64].

30    After setting out the definition of the expression “total and permanent disablement” in cl 4 of the Trust Deed (at [65]), the Tribunal made the following critical findings (at [66]–[68]):

66.    In relation to the phrase ‘unlikely ever to be able to work again in a job’ requires a prognostic view from, in the case of [Mr Aslami], the date he ceased work in May 2014 due to his sickness. Again, at that time, [Mr Aslami] was also operating his Own Business based on his education, training and experience. The words ‘work’ and ‘job’ are not defined and hence take their ordinary meaning. Referring to The Macquarie Concise Dictionary, Third Edition, the meaning of each word includes the following:

work ... productive or operative activity.

job ... a piece of work; an individual piece of work done in the routine of one’s occupation or trade … a piece of work of defined character undertaken for a fixed price … the product or result ... anything one has to do.

67.    Prior to ceasing work with [TAFE], [Mr Aslami] was working in a job (his Own Business) which was based on his then current education, training or experience and he continued to do so after ceasing work with [TAFE]. Even accepting [Mr Aslami] may have focussed his activities on sales from 2014, his income tax returns for the 2013 and 2014 financial years described the nature of his work as ‘solar panel installation and sales.’ Therefore, the Tribunal finds as fact [Mr Aslami] was involved in sales in operating his Own Business at the time he ceased work in March 2014.

68.    The Tribunal therefore finds that [Mr Aslami’s] activities in his Own Business equate to working in a job, a job which was and is within his education, training or experience.

(Emphasis in original)

31    In the concluding paragraphs of its reasons, the Tribunal first noted (at [69]) that it considered the findings above:

… accords with the Trustee in its submissions when it stated:

The Board … notes that his previous roles as an electrician for 12 years, and as a TAFE Teacher for 7 years have not only afforded [Mr Aslami] the technical knowledge to supervise installation on large projects but also the knowledge and skills to liaise with staff, customers and regulatory authorities in his day to day work.

... It is the view of the [Trustee] therefore that [Mr Aslami] was clearly utilising his education, training and experience prior to his cessation of employment with [TAFE] in 2014.

...Further [Mr Aslami’s] role with [Own Business] accommodates the physical restrictions he has with respect to his back pain.

… The [Trustee] submits that the decision that [Mr Aslami] was not entitled to a [TPD] benefit ... was fair and reasonable in the circumstances having regard to the definition of ‘total and permanent disablement’ contained within the [Superannuation Fund] Trust Deed.

(Errors in original; emphasis in original)

32    At [70]–[71], the Tribunal returned to its earlier summary of the medical evidence and noted that that medical evidence agreed that Mr Aslami’s “conditions render him unsuited to work as an electrician and a vocational teacher” (at [70]) and that that evidence is “of similar opinions in that [Mr Aslami] would be, and is, capable of working outside the TAFE environment. [Mr Aslami] is working outside this environment; he is operating his Own Business. The operation of his Own Business utilises [his] skills acquired through his education, training and experience prior to ceasing work with [TAFE]” (at [71]).

33    Finally, the Tribunal came to the following ultimate conclusions in affirming the fairness and reasonableness of the Trustee’s decision (at [72]–[75]):

72.    Therefore, in the Tribunal’s view, the advice of the medical practitioners does not lend itself to a conclusion that [Mr Aslami’s] disablement is of a degree to render him ‘unlikely ever to be able to work again in a job for which [he] is reasonably qualified by education, training or experience.’

73.    Accordingly, the Tribunal can find no unfairness or unreasonableness in the Trustee’s decision to decline [his] [total and permanent disablement] claim.

…

74.    Under s37(6) of the Complaints Act the Tribunal must affirm the decision under review if it is satisfied that the decision, in its operation in relation to [Mr Aslami], was fair and reasonable in the circumstances. The Tribunal is so satisfied.

75.    The Tribunal affirms the decision of the Trustee.

CONSIDERATION

Question 1 – whether the Tribunal adopted the correct approach

34    On this question, Mr Aslami focused on [60], [61] and [66] of the Tribunal’s decision where, so he claimed, the Tribunal found that the definition of the expression “total and permanent disablement” in the Trust Deed required consideration of his qualifications “as at the date he last ‘physically worked’ for [TAFE] being May 2014”. He claimed this misconstrued the terms of that definition because the words “ceased to be at work” in cl 4.4(b) of the Trust Deed referred to the work the member was doing prior to the sickness which caused his or her total and permanent disablement (TPD) to commence, as referred to in cl 4.4(a). Instead, he contended, that definition required consideration of his “existing [education, training or experience] at the date he first ceased to be at work with [TAFE] due to the psychological condition – that is June 2012”. He contended that the Tribunal was therefore in error in considering his “[education, training or experience] as at May 2014”. He claimed that adopting that date “operates unfairly against [him] in that it impermissibly takes into account [his] efforts to set up a new business, retrain himself in the operations of that business and as a salesperson after the occurrence of disablement from his prior occupation as a teacher” (emphasis removed). Conversely, he claimed that adopting the earlier 2012 date operated fairly in the circumstances because it did not take account of this self-motivated retraining.

35    In response, the Trustee contended that the appropriate date for the assessment of Mr Aslami’s education, training or experience was the date he “last physically worked for [TAFE] in May 2014”. It contended that Mr Aslami’s focus on the words “ceased to be at work” in cl 4.4(b) of the Trust Deed was misplaced because cl 4.4 did not, so it contended, “provide the criteria [Mr Aslami] must meet in order to meet the definition of [total and permanent disablement], rather it is concerned with the date on which an applicant shall be considered [totally and permanently disabled] for the purposes of calculating the benefit to be paid to a person who has been found to be [totally and permanently disabled]” under the terms of the Trust Deed.

36    It claimed that Mr Aslami was placing “an artificial construction on the words ‘cease to work’ by linking that phrase to the date [he] first started suffering from the injury rather than linking it to the undisputed evidence as to the last day [he] physically worked and consequently from that time ‘ceased to work’ for the purpose of calculating the benefit sum payable”. Finally, it also contended that the Tribunal had made a factual finding that the latter of the two dates expressed in cl 4.4(a) and (b) was the date Mr Aslami ceased to be at work, namely 30 May 2014. It contended that this finding was not open for review in this appeal.

37    In my view, both of these sets of contentions have, to varying degrees, misapprehended what is required by the provisions of cl 4.4 and the definition of “total and permanent disablement” in the Trust Deed. In particular, they have confused the issues that fall to be determined under the first and second paragraphs of that clause.

38    The first paragraph of cl 4.4 fixes when it is that a member becomes entitled to be paid a death or TPD benefit. That is “upon” that member’s death or TPD. The question whether such a TPD exists is, in turn, determined by the Trustee forming an opinion in accordance with the definition of the expression “total and permanent disablement” in cl 4. That definition requires the Trustee to form its opinion:

(a)    only after obtaining advice; and

(b)    obtaining that advice from not fewer than two medical practitioners; and

(c)    obtaining it by reference to the question whether “the member [is] unlikely ever to be able to work again in a job for which the member is reasonably qualified by education, training or experience”.

39    Furthermore, (c) above requires the Trustee to have regard to whether:

(a)    the member is unlikely ever to be able to work again;

(b)    in a job; and

(c)    for which the member is reasonably qualified by education, training or experience.

40    The second paragraph of cl 4.4, however, deals with an entirely different issue. That is, the date from which a member’s entitlement to a TPD benefit is to be calculated. That date is also determined by the Trustee but, in this instance, it is dictated (“shall be considered”) by the provisions of subparagraphs (a) and (b). Those subparagraphs, it is important to note, do not focus on the member’s TPD itself, but rather on the sickness or injury that caused that disablement. Accordingly, they require the Trustee to calculate the TPD benefit by reference to the latter of the following events:

(a)    when the sickness that caused the disablement commenced; or

(b)    when the injury that caused the disablement occurred; or

(c)    when the member ceased work due to the sickness or injury that caused the disablement.

41    The timing of the formation of the opinion under the first paragraph will depend on numerous factors. First, and most obviously, it will depend upon when the member concerned makes his or her claim for a TPD benefit. Among other things, that step will likely be affected by variations in the degree and extent of the disablement concerned. Further, once such a claim is made, it will obviously take some time for the Trustee to obtain the advices of the two medical practitioners and, having obtained those advices, to form its opinion. In that process, particularly where a fluctuating condition is involved, the Trustee may also be justified in waiting to ascertain when or whether the resultant disablement becomes total or permanent. Accordingly, the Trustee’s opinion about whether a member has a TPD is likely to be formed many months, if not years, after the disablement concerned first becomes apparent. For example, in this matter, it took almost two years (see [10] above).

42    Because the entitlement to a TPD benefit is dependent on the Trustee forming its opinion under the first paragraph of cl 4.4, the second paragraph is not likely to come into operation until such a TPD is determined, by that opinion, to exist. In this respect, I interpose to note the curiosity arising from the fact that the amount of Mr Aslami’s TPD benefit appears to be agreed (see at [23] above). However, once that opinion is formed, the potential for further delay is likely to be limited. That is so because the date from which the TPD benefit becomes payable under that paragraph is almost entirely fixed by subparagraphs (a) and (b). I say “almost entirely fixed” because it is conceivable that there may be some delay in the ascertainment of the causative effects of the sickness or injury concerned. Nonetheless, that issue will depend on past events, namely the onset of the sickness, or the occurrence of the injury, and is therefore unlikely to be affected by the sorts of delays mentioned above associated with the formation of the Trustee’s opinion.

43    So, in summary, the first paragraph of cl 4.4 is directed to whether or not a TPD exists and that issue is determined by the Trustee forming an opinion in accordance with the criteria contained in the definition of the expression “total and permanent disablement” in cl 4. In contrast, the second paragraph of cl 4.4 is directed to the sickness or injury that caused the disablement concerned and fixing a date associated with the causative effect of that sickness or injury from which a TPD benefit is to be calculated. The timing of the former is not fixed by cl 4.4 and will depend, among other things, on the nature and stability of the disablement concerned. However, the timing of the latter, whilst affected by the former, is, to a large extent, fixed by the second paragraph of cl 4.4, particularly subparagraphs (a) and (b) thereof and unlikely to be associated with any significant delay.

44    For present purposes, two things follow from these conclusions about of the provisions of cl 4.4. First, the second paragraph of that clause does not fix the date upon which a member’s TPD is determined to exist, but rather it concerns the date from which that member is entitled to be paid the TPD benefit once that state of affairs is so determined. It follows that the date of assessment of a member’s education, training or experience for the purposes of the definition of the expression “total and permanent disablement” is not fixed by the dates or events in that second paragraph. Secondly, and relatedly, the date on which Mr Aslami “ceased to be at work” under subparagraph (b) of the second paragraph and the date he began to suffer from his sickness under subparagraph (a) therefore have no relevant bearing on the assessment of his education, training or experience for the purposes of the definition of the expression “total and permanent disablement” in cl 4 of the Trust Deed.

45    It follows that most of Mr Aslami’s contentions above (at [34]) must be rejected. It may also be noted that the Trustee (at [35] above) and the Tribunal made similar errors in their construction of the second paragraph of cl 4.4 of the Trust Deed. On the Tribunal’s part, it used the date fixed by subparagraph (b) at various points in its reasons (see, for example, [60]–[61] and [66]–[67]) as the point in time at which it assessed Mr Aslami’s education, training and experience. However, for the reasons that will emerge below, I do not consider that error ultimately distracted the Tribunal from its primary function of reviewing the Trustee’s decision to determine whether it was fair and reasonable as it affected Mr Aslami.

46    The issue in Mr Aslami’s contentions above that is not addressed by these conclusions is his claim that the Tribunal “unfairly” took account of, what may be described as, the self-motivated job creation which he achieved when he established his own business from about 2013. That is so because that issue is not determined by the timing of the assessment of Mr Aslami’s education, training or experience, but rather by the broader consideration of fairness which is at the heart of the Tribunal’s review function under s 37 of the Complaints Act (see at [16] above).

47    In Fernance v Wreckair Pty Ltd (No 2) (1992) 43 IR 300, Hungerford J was required to consider whether the plaintiff was “reasonably qualified” by education, training or experience for an alternative occupation. At 329, his Honour observed:

Inherent in those findings of unfairness is my conclusion that the definition of “totally and permanently disabled”, by referring to “any occupation or work for which he is reasonably qualified by education training or experience” makes the assessment of the relevant incapacity as at the time of the assessment and not after retraining. In other words, whether a member is unlikely ever to engage in work is to be determined according to his qualifications, after the period of six consecutive months absence, at that time and not at some future time as a result of retraining … The definition does not admit, in my view of it, qualifications by education, training or experience which the member may or may not be able to obtain in the future. If it did, I would think it to be surprising because that would involve an amount of speculation and an anticipated capacity in a member from possible future efforts by him. I consider the definition does not so speculate but rather takes a member as he is as a result of the injury occasioned to him …

(Emphasis added)

48    In Jones v United Super Pty Limited [2016] NSWSC 1551, Brereton J was required to consider a similar issue with respect to the phrase “education, training or experience”, namely whether the plaintiff “is unlikely ever to be able to engage in any [r]egular [r]emunerative [w]ork”. Pertinent to this matter, his Honour made the following observations (at [70]–[71]):

70    … it is well-established that a claimant is not to be regarded as fitted by education, training or experience for an occupation for which he or she would be suited only after retraining.

71    … The [education, training or experience] clause confines the scope of the “regular remunerative work” from which the insured is disabled to that for which the insured is reasonably fitted by education, training or experience. In that phrase, the word “by” is important – it postulates a connection between the suggested future work, and the insured’s past education, training and experience … The purpose of the provision is to provide a benefit for those who are disabled from following the vocations for which their past education, training and experience has prepared them – not any occupation which may be conceived, however far removed from his or her vocational history, which can be performed without further education, training or experience …

(Footnote omitted; italics in original; emphasis added)

49    In Board of Trustees of the State Public Sector Superannuation Scheme v Gomez [2018] QCA 67, the Queensland Court of Appeal (Henry J, with Sofronoff P and Fraser JA agreeing) made the following observations about the phrase “for which the member is reasonably qualified by education, training or experience”:

[66]    The need for certificates in this job was a potentially concerning issue for the Board. In Hannover Life Re Of Australasia v Colella Garde AJA, with whom Ashley JA and Beach JA agreed, observed:

“It has been accepted that inability to perform work does not (apart from a short qualifying or refresher course) require a claimant to undergo a course of retraining in order to make him or her employable. Rather the assessment of TPD takes into account any job or occupation for which the claimant is reasonably fitted having regard to his then current education, training or (sic-and) experience.” (citations omitted)

[67]    In Hannover Life Re Of Australasia Ltd and Anor v Dargan, Bathurst CJ, with whom MacFarlan JA, Meagher JA, Hoeben JA and Tobias JA agreed, reasoned that the word “reasonably” informs the extent of existing qualification required. He concluded an experienced former truck driver who had the education, training and experience to capably pass a test required to hold a certificate to work as a taxi driver was reasonably fitted by his education, training and experience to work as a taxi driver. His Honour acknowledged the need for caution in referring to cases involving differently worded tests - there the relevant words were “reasonably fitted by education, training or experience”. However, his Honour’s reasoning adopted the reasoning of Hodgson J in Chammas v Harwood Nominees Pty Ltd, where the relevant words were, “reasonably qualified by education, training or experience”. They are the same words as the test here.

…

[90]    As is apparent from the earlier discussed authorities, the word “reasonably” in the phrase “for which the member is reasonably qualified by education, training or experience” may provide some latitude in respect of requirements for on-the-job training and certification. Nonetheless, the phrase focusses upon the extent of the member’s existing rather than future qualifications. The provision of Ms Hague’s contradictory opinion, supported by an ostensibly straightforward explanation, should have made it obvious to the Board’s delegate that at the time of the second decision there had in truth been insufficient information available about the substance of what was required for certification. On the whole of the evidence the true demands of the certification requirement are unclear. In the absence of such information, properly informed consideration could not be given to whether Mr Gomez was reasonably qualified to work as a Pathology Collector.

(Footnotes omitted; emphasis added)

See also Citicorp Life Insurance Ltd v Smith [2005] FCAFC 102 at [19] which reinforces fairness as the central focus of the Tribunal’s review.

50    With due allowance for the differences in the terminology used in the various tests under consideration, these authorities establish a number of basic principles. First, the overriding consideration is whether the decision under review was fair or reasonable as it affected the appellant. Secondly, and maintaining that central focus, the expression “education, training or experience” is directed to the member’s existing qualifications. Thirdly, and conversely, the possibility of the member undertaking future retraining is not a relevant consideration.

51    It is apparent from the Tribunal’s reasons that it was clearly alert to its central function to assess the fairness and reasonableness of the Trustee’s decision as it affected Mr Aslami (see at [26] above). It is also apparent that the Tribunal was well aware that Mr Aslami’s existing education, training or experience was the relevant consideration and not any retraining he may be able to undertake in the future (see the emphasised part of [60] set out at [27] above).

52    Finally, and most importantly, it is apparent from the following findings and conclusions that the Tribunal maintained its focus on its central function and had due regard to the abovementioned considerations in making its assessment of Mr Aslami’s education, training or experience:

(a)    first, it made the necessary factual findings concerning that expression (at [46]–[48] set out at [25] above);

(b)    secondly, it relied on those findings to conclude that Mr Aslami’s education, training or experience combined to enable him to operate his own business in the electrical field (at [61] set out at [28] above);

(c)    thirdly, it adopted the Trustee’s submissions before it to the effect that Mr Aslami’s previous roles as an electrician for 12 years and as a TAFE teacher for seven years not only afforded him the “technical knowledge to supervise installation on large projects but also the knowledge and skills to liaise with staff, customers and regulatory authorities in his day to day work” (at [69] set out at [31] above);

(d)    fourthly, and further to the above, it adopted the Tribunal’s submissions that Mr Aslami “was clearly utilising his education, training and experience prior to his cessation of employment with [TAFE] in 2014” (emphasis removed) (at [69] set out at [31] above);

(e)    fifthly, it concluded that, in the operation of his business, Mr Aslami utilised the skills he had “acquired through his education, training and experience prior to ceasing work with [TAFE]” (at [71] set out at [32] above); and

(f)    finally, the Tribunal reached its ultimate and most critical conclusions that it was unable to find any unfairness or unreasonableness in the Trustee’s decision (at [73] set out at [33] above) and that “the decision, in its operation in relation to [Mr Aslami], was fair and reasonable in the circumstances” (at [74] set out at [33] above).

53    The following important features emerge from this review of the Tribunal’s reasons. First, in assessing Mr Aslami’s education, training and experience, the Tribunal did not consider any future retraining Mr Aslami may be able to undertake. Secondly, it focused firmly on his existing education, training and experience as an electrician and an electrical teacher and the use he had made of the skills acquired in those occupations. Thirdly, it concluded that Mr Aslami had used those existing skills to establish and operate his business in the same field, namely the electrical field. Its conclusions may well have been different if Mr Aslami had chosen to establish and operate a business in a field in which he made no use of his pre-existing skills, but that was not what happened.

54    For these reasons, I consider that the Tribunal properly conducted its review function under s 37 of the Complaints Act and duly decided to affirm the Trustee’s decision to refuse Mr Aslami’s application for a TPD benefit. This question, therefore, provides no basis for interfering with that decision.

Question 2 – whether the Tribunal applied the correct test

55    In this question, Mr Aslami focused on [66]–[69] and [71] of the Tribunal’s reasons and the use the Tribunal made of the experience he obtained in setting up and operating his own business. In particular, Mr Aslami focused on the following findings of the Tribunal:

(a)    that the word “job” is not defined in the Trust Deed and therefore takes its ordinary meaning (at [66]);

(b)    that, prior to ceasing work with TAFE in May 2014, he was working in his own business and he continued to do so after ceasing work (at [67]); and

(c)    that his activities in his own business “equated to working in a ‘job’ within his [education, training and experience] in that [he] in the operation of his own business utilised skills acquired through his education, training and experience prior to ceasing work with [TAFE]”.

56    Accordingly, Mr Aslami claimed that the Tribunal erred because it was required, but failed, to ask itself whether the “job” he had created in his own business was a “‘job’ existing as a recognised occupation in the community for which [he] was reasonably qualified by his [education, training or experience] as at June 2012”. Instead, he claimed the Tribunal had wrongly asked itself whether he “utilised his [education, training or experience] in his own business”. Absent from the Tribunal’s reasons, so Mr Aslami claimed, was “any analysis of the manner by which [his education, training or experience] as at June 2012 ‘reasonably qualified’ him for such work and why”.

57    The Trustee contended that Mr Aslami’s reliance on the date June 2012 was “misconceived and inconsistent with the terms of the [Trust Deed] and the intent of the Statutory Scheme”. It contended that there was no need for Mr Aslami to be retrained to perform the job in his business as he was already utilising his education, training or experience in performing that role by May 2014. It contended that the Tribunal properly had regard to the only job that Mr Aslami was in fact performing, namely operating his own business. It contended that the Tribunal had made a finding of fact with respect to the work that Mr Aslami was performing in his own business as at May 2014 and that finding of fact was not amenable to review under s 46 of the Complaints Act.

58    For the following reasons, Mr Aslami’s contentions must be rejected. First, the Tribunal committed no error in relying on the natural and ordinary meaning of the word “job”. Secondly, for the reasons set out above, the Tribunal also made no error in its review of the fairness and reasonableness of the Trustee’s decision. Specifically, it made no error in having regard to Mr Aslami’s existing education, training or experience as he employed that in his business in determining whether he had a “total and permanent disablement” within the terms of the definition of that expression in cl 4 of the Trust Deed. Thirdly, referring back to the issue raised at [21] above, I consider the Trustee is broadly correct in its submissions that Mr Aslami has essentially sought to challenge the Tribunal’s factual findings under this question. Put differently, I do not consider this question, in substance, raises a question of law for the purposes of s 46 of the Complaints Act such that it can be properly considered in this appeal.

CONCLUSION

59    For these reasons, I do not consider any of Mr Aslami’s challenges to the Tribunal’s decision have merit. It follows that his notice of appeal must be dismissed with costs.

60    The orders will be:

1.    The appellant’s notice of appeal is dismissed.

2.    The appellant is to pay the respondent’s costs of this appeal to be taxed failing agreement.

Associate:    

Dated:    20 September 2019