FEDERAL COURT OF AUSTRALIA

Chapman v QSuper Board [2020] FCA 88

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The applicant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant appeals from a decision of the second respondent, the Superannuation Complaints Tribunal (the Tribunal), made on 7 February 2019. The Tribunal affirmed a decision of the first respondent, QSuper Board (the Trustee), to pay the applicant interest upon his Total and Permanent Disablement benefit (TPD benefit) limited to an amount of $5,414.91 calculated from 16 September 2013.

2    Before the Tribunal, the applicant contended that the Trustee’s decision declining to pay interest upon the TPD benefit from 1 April or 3 December 2010, and instead only paying interest from 16 September 2013, was unfair and unreasonable. He argued that he became entitled to the TPD benefit at one of the earlier dates and should have been paid interest from then, as the Trustee unreasonably delayed until 24 October 2013 in deciding to pay the benefit. The applicant also contended that the Trustee’s unreasonable delay had led to his suffering financial hardship and loss, and that the Trustee should pay compensation for his losses.

3    In the appeal, the applicant submits that the Tribunal’s decision to affirm the Trustee’s decision involved errors of law. I propose to describe the applicant’s applications to the Trustee and the Tribunal and the relevant legislation and terms of insurance, before turning to consider the applicant’s submissions.

The application to the Trustee

4    The Trustee administers the “QSuper” scheme. On about 17 July 2010, the applicant submitted an application to the Trustee for payment of a TPD benefit. The applicant was then a member of the Queensland Police Service. He claimed to be suffering from a psychiatric condition, Major Depression. The application was supported by a report from a psychiatrist, Dr Alston Unwin.

5    On 2 August 2011, a delegate of the Chief Executive Officer determined that the applicant was not totally and permanently disabled. The applicant sought review by the Trustee of that decision. The Trustee sought to have the applicant attend a psychiatrist for the purpose of a medical assessment, but the applicant declined to attend, alleging that the Trustee was not acting reasonably and in good faith.

6    On 15 December 2011, the Trustee made a decision affirming the delegate’s decision. The Trustee’s reasons noted that in January 2010, the Crime and Misconduct Commission had sought review in the Queensland Civil and Administrative Tribunal (QCAT) of a decision dismissing misconduct charges which had alleged that the applicant had assaulted and injured a youth. The applicant ceased work in January 2010 and, in July 2010, lodged his application for a TPD benefit. In December 2010, the applicant resigned from the Queensland Police Service. QCAT made a declaration that if he had not resigned, he would have been dismissed. The relevance of this history to the Tribunal’s decision was that QCAT found that the applicant’s evidence lacked candour, consistently with a psychiatric report which also noted a lack of candour about his compliance with prescribed anti-depressant medication.

7    The Trustee preferred the opinions of Dr Nielsen and Dr Alcorn to that of Dr Unwin, as they had considered the effect of the applicant’s failure to take prescribed anti-depressant medication upon his employability. The Trustee considered that the applicant did not suffer from a disability which was such as to render him unlikely to be able to work in a job for which he was reasonably qualified by his education, training or experience for the rest of his working life.

8    The applicant then applied to the Tribunal for review of the Trustee’s decision. On 23 July 2013, the Tribunal decided to adjourn the review until a further report had been obtained from Dr Nielsen. Following the receipt of Dr Nielsen’s report, the Trustee reconsidered its decision. On 24 October 2013, it determined that the applicant was totally and permanently disabled at the date of termination of his employment and should be paid a TPD benefit. It also decided that he should be paid interest from 16 September 2013, the date the Trustee had received Dr Nielsen’s report.

The complaint to the Tribunal

9    On 12 May 2016, the applicant lodged a complaint with the Tribunal about the Trustee’s decision of 24 October 2013. The delay has not been explained in the material. The complaint form stated that the Trustee’s decision was unfair and unreasonable because interest on the amount payable should have run from 3 December 2010.

10    In addition, in a statutory declaration provided to the Tribunal, the complainant alleged that due to the Trustee’s unreasonable delay of three years in paying the TPD benefit, he had lost his home and motor vehicle and incurred substantial financial losses. He assessed those losses at $848,710. He sought an order from the Tribunal that the Trustee pay him the amount of $414,710.

11    On 7 February 2019, the Tribunal decided to affirm the Trustee’s decision. The Tribunal’s reasons commenced by describing the decision under review, some procedural matters, the nature of the complaint and the background. The Tribunal went on to summarise the respective contentions of the parties.

12    The Tribunal observed that the complaint concerned the Trustee’s delay in paying the applicant the TPD benefit. The Tribunal noted that the applicant argued that the Trustee had unreasonably declined the claim in its decision of 15 December 2011 despite having had Dr Unwin’s evidence that he was totally and permanently disabled and a report from Dr Nielsen endorsing Dr Unwin’s view. The applicant argued that when the Tribunal reversed its decision on 24 October 2013, it acknowledged that he had been totally and permanently disabled since the date of termination of his employment, being 3 December 2010. The applicant argued that the Trustee had wrongfully retained the benefit of the funds as a result of its refusal to pay the TPD benefit, and, accordingly, he should be paid interest for the period from 3 December 2010 to 16 September 2013. The Tribunal noted that the applicant also alleged that he had suffered loss and damage, including losing his home, as a result of the Trustee’s delay. He submitted that the Trustee’s conduct was unreasonable, particularly as he had notified the Trustee at an early stage that he was experiencing financial hardship as a result of the delay. The applicant also submitted that the Trustee had engaged in unreasonable and unfair conduct in declining the applicant’s total and permanent disability claim by its reliance on Dr Alcorn’s opinion, which did not apply the correct test for total and permanent disability. He submitted that by obtaining Dr Alcorn’s report, the Trustee had been, “shopping for a contrary medical opinion”.

13    The Tribunal went on to describe the question for determination as follows:

43.    Under s37(6) of the Complaints Act the Tribunal must determine whether the decision of the Trustee to pay interest arising from the award of the Benefit to the Complainant at the Fund’s cash rate from 16 September 2013 was fair and reasonable in its operation in relation to the Complainant in the circumstances. In answering this question, the Tribunal has considered:

•    The powers of the Trustee,

•    When the Trustee could have reasonably made a decision to admit the claim, and

•    Whether there was any delay by the Trustee.

44.    The issue is not what decision the Tribunal would have made on the material before the Trustee but whether the decision was fair and reasonable.

45.    In reaching its determination, the Tribunal has taken into account all the material provided by the parties, the provisions of the Trust Deed and relevant law...

14    The Tribunal then considered the complaint under headings corresponding to the three issues described at para [43] of its reasons. Under the heading, “The Trustee’s powers”, the Tribunal said:

52.    The Tribunal considers that no provisions in the Trust Deed or Insurance Terms dictate the payment of interest. It falls within the Trustee’s discretion as to the payment of interest, and therefore the Tribunal’s task is to determine whether the exercise of that discretion was fair and reasonable in its operation in relation to the Complainant in the circumstances.

15    Under the heading, “When could the Trustee have reasonably made a decision to admit the claim?”, the Tribunal said:

60.    The Tribunal considers that in light of the conflicting opinions above, it was not unreasonable for to the Trustee to decline the claim until after it had received the report of Dr [Neilsen] dated 26 August 2013, a report which significantly contributed to clarification of the nature of the Complainant’s illness and its temporal relation to his TPD status. Whilst the Tribunal agrees that Dr [Alcorn’s] approach in his reports of 19 and 21 July 2011 incorrectly expressed a ‘mere expression of hope that a person will return to a relevant form of work’ per TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68, Dr [Neilsen’s] opinion dated 17 April 2010 was also that the Complainant was not TPD. The Tribunal therefore disagrees with the Complainant that the Trustee unreasonably preferred the evidence of Dr [Alcorn] to that of Dr [Unwin]. Even the information from Dr [Unwin] was somewhat equivocal and qualified, with statements such as his inability to predict the future with a ‘crystal ball’, and ‘…I have said that he may in the distant future be able to undertake employment but it would be of an isolative and preferably self-employment.’

61.    The Tribunal also notes that during the course of the First Tribunal Complaint the Tribunal itself considered it necessary to adjourn its review meeting in July 2012 in order to seek a further medical opinion of Dr [Neilsen].

62.    The Tribunal therefore considers that it was fair and reasonable that the Trustee did not admit the claim prior to the receipt of Dr [Neilsen’s] 26 August 2013 report.

16    Under the heading, “Whether there was any delay by the Trustee”, the Tribunal said:

65.    From the medical evidence, the Complainant was suffering from the psychiatric illnesses of major depression and delusional disorder. This condition may well have contributed to his reasons for non-compliance with medication and refusing to undergo a further medical examination. Accordingly, the Tribunal considers that any refusal of the Complainant to comply with medication or submit to further examination does not represent any conscious attempt at non-cooperation by the Complainant and was not in any way the ‘fault’ of the Complainant. Nevertheless, the Tribunal considers that this failure of compliance and the other delays described by the Trustee above were largely beyond the Trustee’s control and did not constitute any unreasonable delay on the part of the Trustee in the claim process.

17    The Tribunal then set out a heading, “The claim for damages for financial loss”. The Tribunal said:

66.    The Complainant has made a claim for damages in the sum of $414,710. This claim is made on the basis that by 3 December 2010, it was clear on the evidence that the Complainant was TPD and would not be able to work again. The Complainant claims that the Trustee’s failure to pay him the Benefit until November 2013 resulted in the loss of his home.

67.    Under s37(4) of the Complaints Act the Tribunal may only exercise its determination making power for the purpose of placing the Complainant as nearly as practicable, in the position that they would have been in but for the unfairness, unreasonableness, or both, that the Tribunal has determined to exist in relation to the Trustee’s decision.

68.    The Tribunal notes its earlier finding that it was fair and reasonable for the Trustee to determine that the Complainant was not TPD until after it received Dr [Neilsen’s] report on 16 September 2013. The Tribunal is satisfied that following receipt of the report, the Trustee then admitted the Complainant’s claim and paid the Benefit with interest in a reasonable period of time. It thus follows that the Complainant’s claimed loss did not arise as a consequence of the Trustee’s decision.

18    The Tribunal concluded that it was satisfied that the Trustee’s decision was fair and reasonable in the circumstances and, accordingly, affirmed the Trustee’s decision.

The terms of insurance, the superannuation deed and the legislation

19    The Trustee’s function, under ss 4 and 12(1) of the Superannuation (State Public Sector) Act 1990 (Qld) (the State Superannuation Act), is to administer the scheme known as QSuper, established by the Superannuation (State Public Sector) Deed 1990 (Qld) (the QSuper Deed). Section 12(2) of the State Superannuation Act provides that the QSuper Deed is subordinate legislation.

20    The relevant provisions of the State Superannuation Act and the QSuper Deed described below have remained unchanged between 2010 and the present, except where the contrary is indicated.

21    Section 7 of the State Superannuation Act provides:

(1)    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.

(2)    Without limiting subsection (1), the board has, for or in connection with the performance of its function, all the powers of an individual, including, for example, the power to—

…

(f)    do anything else necessary or convenient to be done for, or in connection with, the performance of its function.

(3)    Also, without limiting subsection (1), the board has the powers conferred on it by this or another Act.

22    Clause 12 of the QSuper Deed provides:

The board shall administer the scheme in accordance with the provisions of this deed and the Act for the purpose of providing benefits upon retirement and certain other contingencies for present and future members of the scheme and their dependants.

23    At the relevant times, cl 13 of the QSuper Deed provided:

In addition to any other powers and authorities contained in the Act or this deed, the board may—

…

(n)    do all acts and things as and when and in the manner it considers in its discretion necessary or expedient or convenient for or in connection with the management, operation, control and administration of the scheme and for the exercise and performance of its powers, authorities, functions and duties or to comply with a RSE licensee law.

24    At the relevant times, cl 65(1) of the QSuper Deed provided that the Trustee may provide insurance to employed members against death or for total and permanent disablement. Under cl 65(2)(c), the Trustee was required to decide the terms on which the insurance was provided.

25    Clause 4 of the QSuper Deed defines “total and permanent disablement” to mean:

disablement of a degree which, in the opinion of the board 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.

26    The Trustee is self-insured. At the relevant times, the “Insurance Terms” for TPD insurance included the following:

4.    Amount of Insurance Cover

…

4.4    An insured member’s death and total and permanent disablement benefit shall become payable on the insured member’s death or upon total and permanent disablement. The date on which an insured member shall be considered by the board 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.

…

9.    Payment of Claims

9.1    Upon receipt by the board of proof satisfactory to it that any insured member has died or suffered total and permanent disablement while an insured member and of the age of such insured member, the board will, subject to these insurance terms, pay the amount of insurance cover in accordance with clause 4 at the date of the death or total and permanent disablement of the insured member.

…

27    The applicant’s complaint to the Tribunal was made pursuant to s 14 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Complaints Act). That section provides, relevantly:

(1)    This section applies if the trustee of a fund has made a decision (whether before or after the commencement of this Act) in relation to:

(a)    a particular member or a particular former member of a regulated superannuation fund; or

    ...

…

(2)    Subject to subsection (3) and section 15, a person may make a complaint (other than an excluded complaint) to the Tribunal, that the decision is or was unfair or unreasonable.

…

28    The powers of the Tribunal upon a complaint are described in s 37 of the Complaints Act:

(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).

…

(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;

…

was fair and reasonable in the circumstances.

29    In Board of Trustees of the State Public Sector Superannuation Scheme v Edington (2011) 119 ALD 472; [2011] FCAFC 8, Kenny and Lander JJ held:

46    Under the Complaints Act, the Tribunal is not called on to make the same kind of determination as the Administrative Appeals Tribunal under its governing legislation. That is, in contrast to the Administrative Appeals Tribunal, the Tribunal under the Complaints Act is not called upon to determine whether the trustee made the correct or preferable decision. Rather, the Tribunal stands in the shoes of the trustee and determines, based on all the information before it, whether or not a decision taken by the trustee was fair or reasonable in the circumstances...

47    If the Tribunal is satisfied that the decision of the trustee was not fair and reasonable, the Tribunal makes a decision that is fair or reasonable in substitution for the decision of the trustee, always providing that the Tribunal cannot do anything contrary to law, the rules of the fund, or the terms of insurance: see ss 37(3), (4), (5) and 41(3).

(Citations omitted.)

Consideration

Grounds 1 and 2(d): Misconstruction of cl 4.4 of the Insurance Terms

30    Ground 1 of the Further Amended Notice of Appeal pleads:

If on the proper construction of clause 4.4, the Tribunal had no discretion to refuse or pay interest, then interest accrued on the Benefit becoming payable on 1 April 2010 the Tribunal having so found at Reasons [49].

31    This ground is at odds with the applicant’s submissions, which accept that the Trustee had a discretion to pay or refuse to pay interest, and that the Tribunal was required to stand in the Trustee’s shoes to determine whether the decision was fair and reasonable. It is therefore unnecessary to consider this ground further, except to say that its intention may be to raise the issue of construction of cl 4.4 of the Insurance Terms that is raised more precisely by Ground 2(d). That ground contends that, if the Tribunal had a discretion to refuse or pay interest then the Tribunal erred by:

…incorrectly construing the Trust Deed by failing to have regard to the proper construction of the words in clause 4.4 “shall become payable”.

32    The applicant’s argument is that the Tribunal failed to construe the words “shall become payable” in cl 4.4 of the Insurance Terms such that he was entitled to payment of the TPD benefit on 1 April 2010, when his psychiatric illness commenced, or 3 December 2010, when he ceased to be at work due to his psychiatric illness. The applicant submits that the Tribunal accepted the applicant was totally and permanently disabled when he resigned from the Queensland Police Service on 3 December 2010. He acknowledges that the Tribunal had a discretion pursuant to cl 13 of the QSuper Deed to pay interest, but argues that, as the TPD benefit became “payable” on 1 April 2010 or 3 December 2010, interest was, prima facie, payable from then. The submission continues that the Tribunal erred by failing to consider the exercise of the discretion in accordance with that prima facie position.

33    The Trustee submits that the applicant’s argument focuses too narrowly upon the words “shall become payable” in cl 4.4 of the Insurance Terms and fails to construe the clause in light of cl 9.1 and the definition of “total and permanent disablement” in cl 4 of the QSuper Deed. The Trustee submits that an insured member is only entitled to payment when the Trustee is satisfied on the proof available to it that the member has suffered total and permanent disablement. The Trustee determined that it first had sufficient proof when it received Dr Nielsen’s report on 16 September 2013, and paid interest from that date. The Trustee submits that there was no misconstruction of cl 4.4 of the Insurance Terms by the Tribunal.

34    The applicant’s argument depends upon the proposition that an injured member is entitled to payment of the TPD benefit when, within cl 4.4 of the Insurance Terms, the sickness or injury commenced or occurred or the member ceased to be at work due to the sickness or injury, whichever is later. Such a construction was rejected by Reeves J in Aslami v Board of Trustees of the State Public Sector Superannuation Scheme as Trustee for the QSuper Fund [2019] FCA 1560, where his Honour considered a later version of cl 4.4 of the Insurance Terms. The two sentences of cl 4.4 were, by then, separated into two paragraphs, but the clause was not otherwise materially different. His Honour held:

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...

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...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.

(Emphasis in original)

35    I respectfully agree with his Honour’s analysis. The first sentence of cl 4.4 of the Insurance Terms (set out above at [26]) is directed to when it is that a member becomes entitled to be paid a TPD benefit. The entitlement does not arise until the member satisfies the definition of “total and permanent disablement” in cl 4 of the QSuper Deed. That cannot occur until, having obtained the opinions of at least two medical practitioners, the Trustee forms the opinion that the degree of disablement 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 second sentence of cl 4.4, which is expressed to operate “for the purposes of calculating a benefit”, deals with a different issue, namely the date at which the benefit is to be calculated.

36    This analysis is supported by reference to cl 9.1 of the Insurance Terms. Clause 9.1 provides that the obligation to pay an amount to the insured member arises, “[u]pon receipt by the board of proof satisfactory to it that any insured member has…suffered total and permanent disablement while an insured member and of the age of such insured member”. Until such satisfaction is attained, the Trustee has no obligation to pay a TPD benefit.

37    Further, under cl 9.1, the Trustee must, “pay the amount of insurance cover in accordance with clause 4 [of the Insurance Terms] at the date of…total and permanent disablement of the insured member”. The amount of insurance cover to be paid is determined at the date determined in accordance with the second sentence of cl 4.4. The amount of TPD benefit diminishes with the increasing age of the member (the reason why, under cl 9.1, the Trustee must have proof of the age of the member). It may take some substantial time before the steps outlined by Reeves J at [38] and [39] of Aslami can be completed and the Trustee’s satisfaction is attained. The effect of cl 9.1 and the second sentence of cl 4.4 is to preserve the amount of the benefit at the identified date. As an illustration of the operation of these provisions, the amount of the TPD benefit paid to the applicant was $1,771,200, being the amount applicable at 1 April 2010; whereas the amount applicable at the date of approval of the TPD application on 24 October 2013 would have been $1,336,500. In summary, the date identified under the second sentence of cl 4.4 of the Insurance Terms is not the date when the TPD benefit becomes payable to the member.

38    The applicant’s submission is that cl 4.4 of the Insurance Terms should be construed such that he was entitled to be paid the TPD benefit on 1 April 2010, when his psychiatric illness commenced, or 3 December 2010, when he ceased work due to his psychiatric illness, so that the prima facie position is that he should be paid interest from then. However, the applicant’s entitlement to be paid did not arise until 24 October 2013, when the Trustee was satisfied that the applicant had suffered total and permanent disablement. The Trustee’s decision to pay interest from 16 September 2013, when it received Dr Neilsen’s report, was presumably made so the applicant would not be disadvantaged by the delay between the receipt of the report and the making of the decision.

39    There was no misconstruction of cl 4.4 of the Insurance Terms by the Trustee, or by the Tribunal when affirming the Trustee’s decision. Accordingly, Ground 2(d) of the Further Amended Notice of Appeal must be rejected.

Ground 2(a): failing to take into account relevant considerations

40    Ground 2(a) of the Further Amended Notice of Appeal alleges that the Tribunal erred by:

…failing to take into account relevant considerations including:

(i)    the fact of the Applicant’s serious financial hardship;

(ii)    the Trustee’s knowledge of the Applicant’s serious financial hardship;

(iii)    the cause of the Applicant’s serious financial hardship;

(iv)    the length of the delay in the decision making process:

(v)    the explanation for the Respondent’s change of position—from rejection of, to acceptance of, the claim;

(vi)    the medical evidence which had been relied upon by the Respondent and whether it had addressed the correct criteria such as to deny the claim;

(vii)    that the medical evidence did not justify a denial of the benefit;

(viii)    the Applicant’s entitlement to interest and/or restorative compensation;

(ix)    the purpose of interest and compensation.

41    The applicant observes that the Tribunal stated at para [43] of its reasons that it considered three issues, namely: the powers of the Trustee; when the Trustee could reasonably have made a decision to admit the claim; and whether there was any delay by the Trustee. Each of these matters was then discussed under a corresponding heading. The applicant submits that para [43] and the discussion under corresponding headings demonstrate that these were the only matters which the Tribunal took into account. The applicant submits that the Tribunal failed to take into account the “relevant considerations” he identifies in the ground.

42    The Trustee submits that the applicant’s argument misapprehends what is meant by “relevant considerations” in the authorities, and, in substance, seeks merits review of the Tribunal’s decision. The Trustee also submits that the Tribunal’s reasons, read as a whole, demonstrate that it did take into account the factors identified by the applicant.

43    In Edington, Kenny and Lander JJ held:

36    The jurisdiction invoked by Mr Edington in the proceeding before the primary judge was that conferred by s 46(1) of the Complaints Act, which provides that a party to a proceeding before the Tribunal may appeal to the Federal Court on a question of law. The jurisdiction is thus a limited one. The appeal for which s 46(1) provides is a proceeding in the original jurisdiction of the Court. The subject matter of an appeal under this provision is the question or questions of law on which the appeal is brought. No appeal under s 46(1) will lie from the Tribunal’s findings of fact, unless those findings were reached in a manner giving rise to a question of law. Accordingly, if the question is whether the decision-maker in answering questions of fact failed to take into account a relevant consideration, had regard to an irrelevant consideration, adopted a wrong approach, or reached a decision so unreasonable that no reasonable decision-maker could have come to it, then that question is a question of law.

…

49    The Complaints Act does not specify 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. These considerations must therefore be determined by reference to the subject matter, scope and purpose of the Act. A purpose of the Act is “to ensure members and beneficiaries are not adversely affected by unfair and unreasonable decisions of insurers and trustees”. Considered in this light, the governing trust deed and insurance terms will necessarily be relevant considerations. This is because an essential part of the statutory scheme is that a determination under s 37(3) substitutes the Tribunal’s decision for the decision of the trustee; and in consequence, the substituted decision must itself be one that is authorised by the legal instruments governing the fund.

(Citations omitted; emphasis in original)

44    The applicant’s argument proceeds upon an assumption that an error of law is established if the Tribunal fails to take into account some factor that may objectively be seen as relevant to its decision. However, for an error of law to arise, the “relevant consideration” must be one that a decision-maker is bound to take into account by reference to the subject matter, scope and purpose of the relevant statutory provision: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–40.

45    The Tribunal’s role was to stand in the shoes of the Trustee and determine, based on all the information before it, whether the Trustee’s exercise of its discretion to award interest only from 16 September 2013 was fair and reasonable in all the circumstances. There is no dispute between the parties that under cl 13(n) (now cl 13(o)) of the QSuper Deed, the Trustee exercises a broad discretion in determining whether to pay interest on TPD benefit and over what period. The applicant has not demonstrated, as a matter of construction of the QSuper Deed, the Insurance Terms, or the relevant legislation, that any of the factors relied on by the applicant in Ground 2(a) were factors that the Trustee or the Tribunal was expressly or impliedly bound to take into account. Those factors were not “relevant considerations”. Ground 2(a) must fail for this reason.

46    In any event, I accept the Trustee’s submission that the Tribunal did consider the factors described by the applicant in Ground 2(a). It is unnecessary for the Tribunal to refer to every piece of evidence advanced, as, for example, its consideration may be subsumed into findings of greater generality: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]–[47]. However, where the reasons do not expressly refer to an issue, an inference may, but will not necessarily, be drawn that the issue was not adverted to as part of the decision-maker’s mental process: Applicant WAEE at [47].

47    The Tribunal’s statement at para [43] of its reasons that it had considered the powers of the Trustee, when the Trustee could reasonably have made a decision to admit the claim and whether there was any delay by the Trustee was a reflection of the manner in which the argument was put by the applicant. The applicant explained the financial hardship he had suffered and sought to attribute that hardship to what was asserted to be the Trustee’s unreasonable delay in paying him the TPD benefit. In the course of considering that argument, the Tribunal expressly stated at para [45] that it had, “taken into account all the material provided by the parties”. Written reasons may, and generally will, be taken to be a statement of those matters considered and taken into account; although sweeping statements that matters have been considered will not shield from scrutiny whether in fact they have been considered: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [76]; Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423; [2018] FCAFC 225 at [38]. A broad self-serving statement unsupported by other evidence may readily be displaced by evidence to the contrary: Chetcuti v Minister for Immigration and Border Protection (2019) 165 ALD 236; [2019] FCAFC 112 at [70].

48    However, there is no indication that the Tribunal’s statement that it had taken into account all the material was an empty one. It is necessary to read the Tribunal’s reasons as a whole. The reasons had earlier summarised the applicant’s submissions, including that he had suffered loss and damage, such as losing his home, as a result of the Trustee’s delay. The Tribunal summarised the applicant’s arguments concerning the conduct of the Trustee and the consequences for the applicant. The Tribunal later expressly considered the applicant’s claim for “damages” for financial loss. In view of these matters, the Tribunal’s indication that it had considered three issues in determining whether the Trustee’s decision to pay interest from 16 September 2013 was fair and reasonable does not mean that it failed to consider the whole of the material. It has not been demonstrated that the Tribunal failed to take into account any of the factors relied upon by the applicant. Ground 2(a) must also fail for this reason.

49    In the course of the appeal, the applicant submitted that the Tribunal should have considered whether the applicant’s financial hardship of itself, regardless of whether the hardship resulted from the Trustee’s unreasonable delay, warranted the payment of interest from the time the applicant became unable to work. The submission suggested that an argument of this kind was advanced before the Tribunal, but not considered by the Tribunal. It is true that there may be an error of law where a decision-maker fails to respond to a substantial, clearly articulated argument relying on established facts involves an error of law: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24]. However, no such argument was raised before the Tribunal. The applicant’s argument was that it was unfair and unreasonable for the Trustee to fail to award interest from 1 April 2010 in circumstances where the applicant’s financial hardship had resulted from the Trustee’s unreasonable delay in deciding that the applicant was totally and permanently disabled. There was no argument advanced that, independently of the Trustee’s delay, the very fact of the applicant’s financial hardship warranted payment of interest from 1 April 2010. Therefore, this submission must fail.

Ground 2(b): Having regard to irrelevant considerations

50    Ground 2(b) of the Further Amended Notice of Appeal pleads that the Tribunal erred by:

…having regard to irrelevant considerations including:

(i)    the mere expression of hope regarding the Applicant’s possible return to work (in Dr Alcorn’s report of July 2011) when that opinion did not inform the correct test of totally and permanently disabled within the meaning of the policy;

(ii)    the Applicant’s service with the Queensland Police Service rather than his satisfaction of the definition of TPD.

51    The second of these matters was not addressed in written or oral submissions and I will not consider it further.

52    The error of law described as “taking into account an irrelevant consideration” arises only where, as matter of construction of the relevant provisions, the decision-maker is bound to not take into account that consideration: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 39–40. The content of Dr Alcorn’s report is not such a consideration. In any event, it is difficult to see how the Tribunal could have made an error of law by considering Dr Alcorn’s opinion when the applicant had invited the Tribunal to do so by submitting that Dr Alcorn had applied the wrong test. Ground 2(b) cannot succeed.

Ground 2(c): Adopting an incorrect approach

53    The applicant pleads in Ground 2(c) of the Further Amended Notice of Appeal that the Tribunal erred by:

…adopting an incorrect approach by:

(i)    failing to balance, properly or at all, the considerations in favour of interest (ie those in paragraph 2(a) above) against those not in favour;

(ii)    applying (or failing to discount) the evidence of Dr Alcorn from July 2011 which contained a mere expression of hope and not a satisfaction of the definition of TPD.

54    The first of these matters does not identify any error of law, but appears to seek merits review of the Tribunal’s decision. The Tribunal was aware that in deciding whether the Trustee’s decision was fair and reasonable, it was required to consider the discretionary power exercised by the Trustee. The Tribunal described, and therefore considered, the factors relied on by the applicant favouring an award of interest from 1 April 2010 and the factors relied upon by the Trustee in response. The weight to be given to those factors was quintessentially a matter for the Tribunal’s evaluative judgment. The Tribunal concluded that the Trustee’s exercise of the discretion was not unfair or unreasonable. Ground 2(c)(i) seems to merely disagree with that outcome, rather than pointing to any error of law.

55    The applicant seems to allege in Ground 2(c)(ii) that the Trustee applied Dr Alcorn’s opinion against him. That is not so. The Tribunal acknowledged that Dr Alcorn had applied an incorrect test. In that sense, the Tribunal did discount Dr Alcorn’s opinion. However, the Tribunal went on to conclude that the Trustee had not acted unreasonably by not initially paying the TPD benefit in view of Dr Nielsen’s opinion that the applicant was not totally and permanently disabled and that Dr Unwin’s opinion was somewhat equivocal. The Tribunal did not use Dr Alcorn’s opinion against the applicant, but concluded that, despite Dr Alcorn’s application of the incorrect test, the Trustee’s decision was not unreasonable. This ground does not identify any error of law.

Ground 2(e): Reaching a decision so unreasonable that no reasonable decision-maker could have made it

56    Ground 2(e) of the Further Amended Notice of Appeal is that the Tribunal erred by:

…reaching a decision so unreasonable that no reasonable decision maker could have made it, having regard to the matters in paragraph 2(a), (b), (c) and (d) above.

57    This ground relies upon the matters stated in Grounds 2(a)–(d). Since those grounds fail, Ground 2(e) must also fail. In any event, the Tribunal’s decision was logical, reasonable, rational and was obviously open on the material. The ground also fails for that reason.

58    The applicant’s grounds of appeal must each be rejected. The appeal will be dismissed with costs.

Associate:    

Dated:    11 February 2020