Federal Court of Australia

Barron v BT Funds Management Ltd (Leave to File) [2026] FCA 1220

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application dated 26 June 2026 be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    I previously made orders striking out Mr Barron’s amended statement of claim and providing for him to file and serve an interlocutory application seeking leave to file a further amended statement of claim: Barron v Australian Financial Complaints Authority (Strike Out) [2026] FCA 673. Mr Barron filed such an interlocutory application, which the remaining respondents, BTFM and TAL, oppose. Following my previous judgment, the proceeding as against AFCA, the then first respondent, was dismissed by consent, so BTFM and TAL have been reindexed as the first and second respondents respectively. These reasons for judgment assume familiarity with my previous reasons for judgment concerning the strikeout application.

2    The amended statement of claim that I struck out comprised 56 paragraphs spanning 16 pages. I barred Mr Barron from repleading certain of the claims, including the claims against AFCA, and I was critical of the amount of repetition. The proposed further amended statement of claim in respect of which Mr Barron now seeks leave has ballooned to more than 400 paragraphs over 33 pages in very small font and single-spaced lines. It is replete with 112 references to documents by filename as they are saved on Mr Barron’s computer. Although some of those documents are in evidence before me, they are named differently such that the references in the proposed pleading are meaningless.

3    The proposed pleading is also highly repetitive, in the first few pages it is not separated into consecutively numbered paragraphs (as required by r 16(1)(a) of the Federal Court Rules 2011 (Cth)), it is prolix, confusing and very difficult to follow. It has obviously been produced by generative artificial intelligence, which Mr Barron confirmed during the hearing. It is a good example of what has come to be referred to as “AI slop”. The AI platform available to me offers the following answer to the prompt “What is AI slop?”:

“AI slop” is a disparaging term for low-quality content produced by generative AI, often rapidly and in large quantities, with little human judgement, checking or editing. It may be grammatically fluent or visually polished while being repetitive, vague, inaccurate, incoherent or devoid of substance.

4    The proper and prudent use of generative AI can assist (in particular) litigants in person to present their cases better than they would have been able to do without it. But that is only if they use it thoughtfully and critically, otherwise it is prone to produce slop. Suffice it to say that the proposed pleading does not meet the expectations that the Court has in relation to the use of generative AI as expressed in its Use of Generative Artificial Intelligence Practice Note (GPN-AI), in particular at [1.3], [1.4] and [2.1].

5    In the circumstances, in addition to its many other vices, the proposed pleading is undoubtedly likely to cause prejudice, embarrassment or delay in the proceeding within the meaning of r 16.02(2)(d) and on that basis alone leave to file it must be refused. The question thus thrown up by the interlocutory application is: what now? Should Mr Barron be given yet another opportunity to try to plead his claims, or should the proceeding be dismissed, or is there some other more appropriate way forward?

6    Both BTFM and TAL submit that not only are no reasonable causes of action pleaded against them in the proposed pleading, but that on the evidence before me I can be satisfied that no reasonable cause of action can be pleaded. However, they take different approaches to what follows. BTFM submits that the interlocutory application should be dismissed and the proceeding as against it should be dismissed. In contrast, TAL submits that the interlocutory application should be dismissed with no further leave to plead being granted, but that the proceeding as against it should not be dismissed. TAL takes that approach on the basis that procedural fairness issues may arise if I were to dismiss the proceeding as against it in the absence of any summary dismissal application by it.

7    For the reasons that follow, I have decided that although Mr Barron’s application for leave to file his proposed pleading should be dismissed, the proceeding should not be dismissed as against BTFM or TAL. In brief, that is because there is a possibility that Mr Barron may be able to plead a reasonable cause of action against TAL based on policy wording that applied before 1 January 2018 and which was novated to TAL’s predecessor, Westpac Life Insurance Services Ltd (Westpac Life). If indeed there is such a claim, it may be that Mr Barron can plead a claim against BTFM based on BTFM’s acceptance of TAL’s reliance on the incorrect policy wording.

8    It is convenient to commence by identifying some applicable principles.

Applicable principles

9    Much as in the present case, in KTC v David (Summary Dismissal) [2020] FCA 1012, Perram J was faced with an application for leave to file a further amended statement of claim after a previous version of the statement of claim had been found to be inadequate. His Honour concluded that if the proposed pleading were a filed pleading it would be struck out and for that reason leave to file it should be refused. His Honour also dismissed the proceeding as against the defendants against whom it was liable to be struck out. That was on the basis that the plaintiff had had two previous unsuccessful attempts to try to plead a claim against the relevant defendants, the plaintiff’s continuing inability to plead the case “is a potential marker that it does not have a case” and the proceeding should therefore be dismissed (at [42]).

10    An appeal against Perram J’s judgment was dismissed by the Full Court in KTC v David [2022] FCAFC 60. On the question why the proceeding as against the relevant defendants should be dismissed rather than any further opportunity being given to plead, Wigney J reasoned that because there had previously been an opportunity to prepare an acceptable pleading, it could be inferred that the plaintiff was unable to plead a reasonable cause of action and had no reasonable prospects of success (at [228]). Justice Jackson reasoned that the history of the plaintiff’s several attempts to plead the case properly compelled the conclusion that leave to replead should not be given, “meaning the case against [the relevant defendants] must be dismissed” (at [441]). Justice Anastassiou was in dissent.

11    Notwithstanding the three judgments, including one in dissent, the justices agreed as to the relevant principles – Anastassiou J (at [329]) and Jackson J (at [418]) agreed with the principles as expressed by Wigney J at [108]-[132]. Relevantly, the following can be extracted from those paragraphs (omitting references to authorities, including those from which the quotations are extracted):

(1)    The Court’s power to grant leave to amend is broad and has the remedial objective of ensuring that any defect in the pleadings is cured and that the real questions in the controversy are properly agitated. The power must be exercised in a “way that best promotes the Court’s overarching purpose to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible”. The object of the Court is “not to punish parties for mistakes made in the conduct of their case, but to correct errors with the result that a decision can be made on the real matters in controversy” (at [110]).

(2)    Leave to amend should generally be granted unless the proposed amendment is futile, including, for example, because the issue sought to be raised by the amendment has no reasonable prospects of success, or would be liable to be struck out as not raising a reasonable cause of action, or where the amendment would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by the award of costs (at [111]).

(3)    A “reasonable cause of action”, for the purposes of r 16.21(1)(e) of the Rules which provides for the striking out of a pleading that fails to disclose a reasonable cause of action, is a cause of action that has some chance of success having regard to the allegations pleaded; a cause of action cannot be struck out merely on the basis that it appears to be weak (at [123]).

(4)    Normally the power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect or deficiency; the power is discretionary and should be employed sparingly and only in a clear case “lest one deprive a party of a case which in justice it ought to be able to bring” (at [125]).

(5)    Section 31A(2) of the Federal Court of Australia Act 1976 (Cth) relevantly provides that the Court may give judgment for a party if the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding. Rule 26.01 of the Rules, which also deals with summary judgment, provides that a party may apply to the Court for an order that judgment be given against another party on grounds that essentially mirror the grounds for striking out a pleading in r 16.21 of the Rules (at [127]).

(6)    A “failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success” (at [130]).

(7)    An applicant may have no reasonable prospect of successfully prosecuting the proceeding even if it cannot be concluded that the proceeding is hopeless or bound to fail (at [131]).

(8)    The “exercise of powers to summarily terminate proceedings must always be attended with caution”, whatever may be the basis upon which that disposition is sought. It is not a power “to be exercised lightly”. There must be a “high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way” (at [132]).

12    To those principles can be added the observation that “[t]he authorities repeatedly emphasise that the power to strike out a claim and refuse leave to replead must be exercised with great caution and only in a very clear case”: DHI22 v Qatar Airways Group QCSC (No 1) [2025] FCAFC 91; 310 FCR 361 at [187].

13    In the present case, as is common even in a pleading dispute, the parties have adduced evidence in support of their respective positions. The approach that I have taken to the question of leave is to have regard, first, to the pleaded facts and assume that they can be proved. Then, in assessing whether some reasonable cause of action might be able to be pleaded, I have had regard to the evidence but in the event of any conflict in the evidence I have assumed that Mr Barron’s version might ultimately be accepted; I have not resolved any conflicts in the evidence against Mr Barron.

The essential facts

14    Mr Barron pleads the following pertinent facts (the paragraph references being references to his proposed pleading).

15    Mr Barron was a member of superannuation arrangements administered and controlled by BTFM as the trustee of the Asgard Independence Plan Division Two (the Fund) ([2]).

16    At all material times, Mr Barron “held insurance cover associated with those superannuation arrangements”, including salary continuance insurance (SCI), total and permanent disablement insurance (TPD) and life insurance ([3]).

17    TAL and its predecessor, Westpac Life, was “at all material times” responsible for underwriting, assessing, administering and determining claims arising under Mr Barron’s insurance arrangements ([6]).

18    Westpac Life informed Mr Barron that it (and hence TAL) was not the insurer on risk prior to 1 January 2018 ([8], [31]).

19    Mr Barron commenced employment with Transfield Services on 21 September 2009 ([35]).

20    Mr Barron joined his employer’s default superannuation plan in the Asgard Employee Super Account on or about 13 November 2009 ([36]).

21    As part of that membership, Mr Barron became insured for various benefits including life insurance, TPD and SCI ([38]).

22    Mr Barron commenced employment as a mechanic/automotive technician with Palmer Ford in Cootamundra on 28 November 2011 ([46]-[47]). He was working full-time at Palmer Ford in the three months immediately prior to his disablement in March 2017 ([107]).

23    Mr Barron became disabled in or about March 2017 when, on 10 March 2017, he ceased being employed by Palmer Ford because of illness, impairment and disability, specifically a long-standing history of depression and anxiety exacerbated by workplace bullying ([10]-[11], [60], [63]).

24    Mr Barron’s then solicitors, Stacks Law Firm, were advised that “AIA may be the insurer on risk for your client’s claim” if the date of disability was prior to 1 January 2018 ([28]). The evidence is that that advice was given by letter dated 16 September 2019 from “BT” – it not being clear which Westpac or BT entity that was. [AB2/206] AIA is a reference to AIA Australia Ltd. [AB3/426]

25    Mr Barron was first diagnosed with anxiety and depression on 22 July 2009 ([56], [66]).

26    During his employment at Palmer Ford, Mr Barron’s condition progressively affected his capacity to perform occupational duties, exacerbated by workplace bullying ([57]).

27    Mr Barron was first certified totally unfit for work on 10 September 2018 ([67]).

28    The following chronology of events, which is either common ground or cannot reasonably be disputed, provides further necessary background.

29    BTFM held group insurance for certain members of the Fund commencing on 1 January 2009 under TPD policy MP9962 and an SCI policy MP9962. Prior to 1 January 2018, AIA was the insurer under those policies.

30    On 1 January 2018, the policies were novated to Westpac Life which became the group insurer for cover provided to certain members of the fund, and the terms of the policies were varied.

31    Westpac Life was subsequently named TAL Life Insurance Services Ltd on 1 August 2022. The life insurance business of that company was transferred to TAL pursuant to a scheme confirmed pursuant to s 194 of the Life Insurance Act 1995 (Cth) on 24 February 2025 with effect from 11:59pm on 31 March 2025.

32    The result is that Westpac Life came on risk under its policies as varied by endorsement on and from 1 January 2018 and those obligations were transferred to TAL on 1 April 2025. As at March 2017, and immediately prior to 1 January 2018, BTFM did not in fact hold a group insurance policy with Westpac Life or TAL providing insurance cover for Mr Barron. However, and as is explained in greater detail below, the terms of the novation from AIA may be such that Westpac Life (and therefore TAL) incurred obligations that predate 1 January 2018 – being obligations analogous to AIA’s obligations under its policies when it was on risk.

The case against TAL

33    Mr Barron’s proposed pleading contends that Westpac Life (and subsequently TAL) came on risk for TPD and SCI benefits under TPD and SCI policies numbered MP9962 with effect from 1 January 2018, the policies having been novated to Westpac Life ([45], [78] and [121]). Each policy records on its face that it “was novated to [Westpac Life] on 1 January 2018”, and that the “terms of the Policy are varied with effect on and from 1 January 2018 to the extent required for the Policy to be in the form of the attached amendments”. [AB3/303, 346] Mr Barron seeks to plead that his claim was wrongly assessed under the post-1 January 2018 policy rather than the “pre-2018 AIG Life (sic) framework” ([32]).

34    The effect of a novation of the policies from AIA to Westpac Life is that “a new contract is … substituted for the old and the obligations of the parties under the old agreement are … discharged”: ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue (NSW) [2012] HCA 6; 245 CLR 338 at [12]. “Novation involves the extinguishment of one obligation and the creation of a substituted obligation in its place”: Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; 47 NSWLR 473 at [78] per Sheller, Stein and Giles JJA.

35    The proposed pleading seeks to bridge the gap between the pre-2018 insurance position and TAL by pleading that “the continuation and automatic-transfer provisions preserved the assessment basis that applied immediately before cessation of employment, so that he remained entitled to assessment by reference to the preserved pre-cessation employment, occupation, income and insured status” (emphasis added) ([91N]) – noting that cessation of employment was on 10 March 2017.

36    The proposed pleading provides no particulars of “the continuation and automatic-transfer provisions” referred to in paragraph 91N and about 15 other paragraphs of the proposed pleading. Mr Barron could not identify any such provisions in submissions. However, given the novation of the policies from AIA to Westpac Life, it may be the case that Westpac Life assumed the liabilities of AIA for the pre-2018 period under the policy wordings as they were in that period. That would be the ordinary result of a novation of policies.

37    Unfortunately, the evidence does not deal with the terms of the novation of the policies or with what the pre-2018 policy terms were. That is understandable insofar as Mr Barron is concerned as he would have no access to that evidence, but it is regrettable that neither BTFM nor TAL has seen fit to put that evidence before the Court. TAL’s evidence is that there were previous SCI and TPD policies issued by AIA which were novated to Westpac Life on 1 January 2018 and also varied with effect from that date, but it says nothing about the prior policy wording or who now bears liability in respect of the pre-2018 period. [AB2/4-5]

38    It may be that TAL does not have any liability for the pre-2018 period and/or that Mr Barron in any event has no viable claim under the pre-2018 policy wording because the facts do not support such a claim. However, that is not a matter that the Court is currently in a position to assess, and it is not a claim that Mr Barron is currently able to plead in view of the critical documents – the pre-2018 policy wording and the novation agreement – presumably not being available to him. All that can really be said at present is that there may be claims that can be pleaded by Mr Barron against TAL under the pre-2018 wordings. In light of that it cannot be said that Mr Barron has no reasonably arguable claim against TAL.

39    Mr Barron should accordingly have the opportunity to seek those documents by way of notices to produce. In any event, TAL may just as well simply provide them to Mr Barron because if it intends to apply for summary dismissal, as it has indicated, it would have to satisfy me that it has no reasonable possibility of liability for the pre-2018 period, which would require it to put those documents before the Court. The same is true for BTFM should it also wish to apply for summary dismissal. I will not order TAL to provide those documents because it has not had the opportunity to oppose such an order. If it contends that it should not have to provide those documents, then it can apply to set aside any notice to produce served by Mr Barron which seeks those documents, and I will then decide the question. But for the moment, there does not seem to me to be any reason why TAL should not simply provide those documents to Mr Barron. I might add that the same goes for BTFM as trustee of the Fund.

The TPD claim against TAL post-1 January 2018

40    Mr Barron also seeks to plead in the alternative that if the post-2018 MP9962 policies apply, he satisfies the relevant entitlement requirements under them ([106]). It is therefore necessary to consider the post-1 January 2018 position to assess whether there is any reasonable claim that could be pleaded against TAL based on the policy terms applicable in that period.

The TPD policy wording

41    In the TPD policy, the “Date of Disablement” is defined as the earlier of:

a)     the date the loss of use of limbs and/or sight occurred; and

b)     the date the Insured Member was first absent from work due to Sickness or Injury, provided they consulted a Medical Practitioner within seven (7) days; and

c)     the date the Insured Member first consulted a Medical Practitioner for the claimed condition, if the Insured Member has already been off work due to the Sickness or Injury for more than seven (7) days.

42    Paragraph (a) of that definition is inapplicable as Mr Barron does not claim loss of the use of limbs or sight. That leaves (b) and (c) in play. Mr Barron claims that the applicable Date of Disablement is 10 March 2017 when he ceased working for Palmer Ford which is determined with reference to para (b) ([138]-[140], [273]). TAL says the applicable Date of Disablement is 10 September 2018 determined with reference to para (c). I will return to the question of which one might apply.

43    The definition of TPD is separated into Parts A to F which each supply different meanings for TPD. The Part or Parts that apply to the assessment of a claim by an Insured Member are determined by the Insured Member’s circumstances at the Date of Disablement.

44    In summary:

(1)    Parts A, B, D or E of the TPD definition apply where the Insured Member is aged less than 65 and is working 15 hours or more per week on average over the 13 weeks immediately prior to the Date of Disablement, or is on Approved Leave for up to 24 months.

(2)    Parts A, B, C or E of the TPD definition apply where the Insured Member is working less than 15 hours per week on average over the 13 weeks immediately prior to the Date of Disablement, or is aged 65 or more, or is working in a Special Risk Occupation, or is on Approved Leave for more than 24 months.

(3)    Parts A, B, E or F of the TPD definition apply where the Insured Member is a nonworking Spouse Member engaged in unpaid domestic duties at home.

45    On Mr Barron’s claimed Date of Disablement, Parts A, B, D or E of the TPD definition apply under (1) above. On TAL’s approach, Parts A, B, C or E of the TPD definition will apply under (2) above. The combination in (3) cannot apply as no claim as contemplated there is made.

46    There are two versions of the TPD definition set out in a table with two columns: the version in the left-hand column is applicable to Insured Members with TPD cover greater than nil immediately prior to 1 July 2014, and the version in the right-hand column is applicable to members who joined or obtained cover on or after 1 July 2014. Mr Barron’s cover commenced on or about 21 September 2009 when he became a member of the Fund. Therefore, the version of the TPD definition appearing in the left-hand column of the table applies in relation to him.

47    In summary, of Parts A, B, C or E of the version of the TPD definition in the left-hand column of the table:

(1)    Part A applies only if the Insured Member has suffered permanent loss of the use of two limbs, the sight in both eyes or the use of one limb and the sight in one eye;

(2)    Part B responds only if “solely because of Sickness or Injury” the Insured Member has suffered at least 25% impairment of Whole Person Function, is not engaged in any occupation and is disabled to such an extent as to render the Insured Member unlikely to ever be engaged in any occupation for which they are reasonably suited by education, training or experience;

(3)    Part C applies if the Insured Member is unable to perform at least two of the Activities of Daily Living listed in Part C, namely:

(i)     Dressing – the ability to put on and take off clothing without assistance; or

(ii)     Bathing – the ability to wash or shower without assistance; or

(iii)     Toileting – the ability to use the toilet, including getting on and off, without assistance; or

(iv)     Mobility – the ability to get in and out of bed or a chair without assistance; or

(v)     Feeding – the ability to get food from a plate into the mouth without assistance.

where ‘assistance’ means the assistance of another without assistance; or person.

(4)    Part D applies if the Insured Member has been absent from employment as a result of Sickness or Injury for three consecutive months and, in the opinion of the insurer, after consideration of all relevant evidence, the Insured Member is disabled to such an extent to render them unlikely to ever be engaged in any occupation for which they are reasonably suited by their education, training or experience; and

(5)    Part E requires the Insured Member to have suffered “Cognitive Loss” which is defined to mean, in summary, a total and permanent deterioration or loss of intellectual capacity that requires the Insured Member to be under continuous care and supervision by another adult person for at least 3 consecutive months, and at the end of that period the Insured Member is likely to require permanent ongoing continuous care and supervision by another adult person.

The pleaded TPD claim

48    To determine whether the TPD claim is one that can be reasonably advanced it is necessary to determine what the Date of Disablement is. As I have already explained, the date in paragraph (a) of the definition of Date of Disablement is irrelevant for the purposes of Mr Barron’s claim.

49    The date in paragraph (b) of the definition of Date of Disablement is the date Mr Barron was first absent from work due to Sickness or Injury, but provided that he consulted a medical practitioner within seven days of that date.

50    On what is pleaded, and on the evidence at this stage, Mr Barron cannot have been “first absent from work” due to his medical condition on 10 March 2017. The expression “absent from work” used in paragraph (b) presupposes that the Insured Member is still employed and so there is in principle some work for them to return to. A person cannot be absent from an employment that they no longer have. In this case, Mr Barron resigned and was no longer employed by Palmer Ford on 10 March 2017. He therefore cannot have been “absent from work” on and from the date of his resignation in the way that paragraph (b) requires. In any event, Mr Barron does not plead, and there is no evidence, that he consulted a medical practitioner within seven days of his resignation. In fact, the evidence indicates that the first time Mr Barron did so was on 10 September 2018, which was when Dr Hinze certified him as totally unfit for work.

51    The date in paragraph (c) of the definition of Date of Disablement is the date that Mr Barron first consulted a medical practitioner for the claimed condition (being his depression and anxiety) if he had been off work due to the Sickness or Injury for more than seven days. Although Mr Barron was first diagnosed with anxiety and depression on 22 July 2009, he does not plead, and there is no evidence to suggest, that he had been off work for any period prior to that, and certainly not for more than seven days.

52    On what is pleaded, and on the evidence, the first time that Mr Barron consulted a medical practitioner for his condition after he had been off work for more than seven days was on 10 September 2018. On that basis, the Date of Disablement is 10 September 2018.

53    It follows that the definition of TPD is governed by Parts A, B, C and E on the basis set out in [42(2)] above. Although Mr Barron is aged less than 65, he was working less than 15 hours per week on average over the 13 weeks immediately prior to 10 September 2018, the Date of Disablement, because he was not employed at all. Also, Mr Barron was not on Approved Leave from Palmer Ford immediately prior to this date because he had resigned, and resignation and leave are mutually exclusive. It follows that Parts D and F of the definition do not apply here.

54    Mr Barron does not claim that Part A or E of the TPD definition are satisfied. In relation to Part A, Mr Barron does not claim, and there is no evidence, that he has suffered any permanent loss of the use of any of his limbs or the sight in either of his eyes. Likewise in relation to Part E, Mr Barron does not claim, and there is no evidence, that he has suffered Cognitive Loss as defined in the TPD policy. [AB4/535/58]

55    In relation to Part C, an expert report prepared by Dr Erin Redmond, a clinical psychiatrist engaged by BTFM, establishes that Mr Barron can perform the Activities of Daily Living listed in Part C: [AB3/508/6]

His mental health condition impacts on his ability to perform activities of daily living; however this is not because he is unable to do these activities but more that he lacks motivation to do so. He is able to perform such activities as bathing, dressing, eating, toileting and transferring but he requires encouragement to get out of bed to perform self-care and to eat properly.

56    Indeed, on his initial claim form Mr Barron indicated that he could perform those activities of daily living (and others) without assistance. [AB4/555/16] Dr Hinze’s Medical Attendant’s Initial Mental Health Statement (MAS) dated 10 April 2019 checked as “normal” Mr Barron’s state of impairment for “self-care” and “domestic chores”. [AB4/561/16] There does not appear to be any real dispute about this, so much so that Mr Barron expressly disavows reliance on Part C saying instead that it is not applicable because his date of disablement is 10 March 2017. Mr Barron pleads that these items were actually checked “impaired”, but this is clearly incorrect having regard to the evidence and so this contention cannot be maintained ([70], [72], [164]).

57    In relation to Part B, Mr Barron does not allege that he has suffered at least 25% impairment of Whole Person Function, but as Mr Barron rightly points out there is no evidence before me that such an assessment was ever carried out. [AB4/535/59] It did not form part of Dr Redmond’s clinical assessment. He has also not been assessed as to whether he is disabled to such an extent as to render him unlikely to ever be engaged in any occupation for which he is “reasonably suited by education, training or experience”. The parties did not make any submissions on this point. The medical evidence before me does not definitively rule out this possibility.

58    It seems that the only way Mr Barron could establish that he is totally and permanently disabled for the purposes of the TPD policy, and therefore that TAL is liable to pay him a TPD benefit under the post-1 January 2018 wording, would be by bringing a claim under Part B of the TPD definition. That is not to say that such a claim would succeed – it may be that Mr Barron has never sought to advance a claim in this way because the facts are decisively against it succeeding.

59    The result is that save for the (remote) possibility of a claim under Part B, which is not a claim that Mr Barron has thus far indicated that he might pursue, I do not see the possibility of any reasonable TPD cause of action in reliance on the post-1 January 2018 policy wording being pleaded.

The SCI claim against TAL post-1 January 2018

The SCI policy wording

60    Mr Barron’s SCI claim arises from what he claims is Total Disability and not Partial Disability as defined in the policy.

61    The definition of “Total Disability or Totally Disabled” is separated into Part A and Part B. The Part that applies is determined by the Insured Member’s circumstances at the date of disablement, in summary as follows:

(1)    Part A of the definition applies where the Insured Member was working 15 hours or more per week on average over the three months immediately prior to disablement (other than when working in a Special Risk Occupation), or is on Approved Leave for up to 24 months;

(2)    Part B of the definition applies where the Insured Member was working less than 15 hours per week on average over the three months immediately prior to disablement, or is working in a Special Risk Occupation, or is on Approved Leave for more than 24 months.

62    Unlike in the TPD policy, there is no definition of the date of disablement in the SCI policy.

63    As mentioned, Mr Barron seeks to plead that he ceased work on 10 March 2017. That fact is confirmed by the Employment Separation Certificate signed by Mr Barron and his employer. [AB3/460] However, he was first certified as being unfit for work on 10 September 2018 – he seeks to plead that and it is confirmed by a medical certificate and the MAS completed by Dr Hinze for Mr Barron and on which Mr Barron relies. [AB3/462, 4/559] As at that date, Mr Barron had not worked for approximately 18 months – he states in his affidavit that he did not work from March 2017 until a brief attempted return to employment in September 2022. [AB4/532/23] It follows that Part B of the Total Disability definition applies. Part A could only apply if the relevant date is taken to be the date that Mr Barron ceased work, but then he would not be covered under the policy that only commenced some nine months later.

64    There are two versions of Part B: one for existing Insured Members with SCI cover greater than nil immediately prior to 1 July 2014, and one for members who joined the Fund or obtained cover on or after 1 July 2014. As Mr Barron joined the Fund and obtained cover under the SCI Policy on or about 21 September 2009, the pre-1 July 2014 version applies.

65    The applicable Part B definition is that Total Disability or Totally Disabled:

Means disablement resulting solely from Sickness or Injury which occurs while the Policy is in force and as a result of which the Insured Member:

(i)     remains under the regular care and attendance or is following the advice of a Medical Practitioner in relation to that Sickness or Injury; and

(ii)     is not engaged in any occupation, whether paid or unpaid; and

(iii)     is continuously and totally unable to perform at least two (2) of the following activities of daily living as certified by a Medical Practitioner:

Bathing: The ability to wash oneself either in the bath or shower or by sponge bath, without the assistance of another person.

Dressing: The ability to put on and take off all garments and medically necessary braces or artificial limbs usually worn, and to fasten and unfasten them, without the assistance of another person.

Eating: The ability to feed oneself once food has been prepared and made available, without the assistance of another person.

Toileting: The ability to get to and from and on and off the toilet, without the assistance of another person, and ability to manage bowel and bladder functions through the use of protective undergarments or surgical appliances, if appropriate.

Transferring: The ability to move in and out of a chair, without the assistance of another person.

66    The SCI policy defines “Sickness” as meaning: “an illness or disease suffered by the Insured Member which manifests itself while the Insured Member is covered under this Policy.” It defines “Injury” as meaning: “an injury to the Insured Member occurring while the Insured Member is covered under this Policy.”

The pleaded SCI claim

67    The word “disablement” appears in the definition of Totally Disability and it is central to its operation, but it is not defined anywhere in the policy wording. Its meaning therefore falls to be determined in accordance with the orthodox canons of contractual interpretation. It suffices to say for present purposes that an Insured Member may be considered “disabled” under the SCI policy at a date that is different to the Date of Disablement under the TPD policy. But as will soon become apparent, it is unnecessary for me to decide what this word means because it is ultimately unnecessary for me to determine when exactly Mr Barron was “disabled” within the meaning of the policy. That is because regardless of when Mr Barron was disabled (if in fact at all for these purposes), his claim against TAL under the SCI policy cannot succeed.

68    If Mr Barron was disabled within the meaning of the policy sometime before 1 January 2018 (such as when he resigned from Palmer Ford on 10 March 2017, or perhaps on 22 July 2009 when he was first diagnosed with depression and anxiety), his claim against TAL would fail because his “Sickness or Injury” did not occur while the SCI policy was in force. That is true regardless of whether Part A or Part B of the definition of Total Disability or Totally Disabled applies. Mr Barron’s “Sickness or Injury” occurred while the policy with AIA was in force.

69    Mr Barron says that AIA’s policy transferred to Westpac Life (and ultimately to TAL) and so his “Sickness or Injury” all occurred under the same policy, but, as dealt with above, this is not in fact the case. There is no pleaded mechanism by which AIA’s obligations were transferred to TAL.

70    If the position was instead that Mr Barron was disabled within the meaning of the policy sometime on or after 1 January 2018 (such as when he was first certified by Dr Hinze as unfit for work on 10 September 2018), his claim against TAL would still fail. Under that scenario, Mr Barron’s claim would fall to be assessed under Part B of the definition of Total Disability or Totally Disabled as by this time Mr Barron had resigned from Palmer Ford and was not employed elsewhere. That is to say, Mr Barron would have been working less than 15 hours per week on average over the 13 weeks immediately prior to this date (whatever it may be) and he could not have been on Approved Leave.

71    The core difficulty with Mr Barron’s claim is that although Mr Barron is not currently engaged in any occupation (paragraph (i)) and even assuming that he is following the advice of a medical practitioner in relation to his depression and anxiety (paragraph (ii)), he clearly does not satisfy paragraph (iii) of the definition of Total Disability or Totally Disabled. As I have already explained, the evidence establishes that Mr Barron can perform activities of daily living, being dressing, bathing, eating, toileting and transferring. Certainly, there is no basis on which it might be established that Mr Barron “is continuously and totally unable to perform at least two … of the [listed] activities of daily living”, and he does not contend that there is.

72    It follows that if this were a strike out application Mr Barron would not have leave to replead the SCI claim against TAL based on the post-1 January 2018 policy wording.

The utmost good faith claim against TAL

73    Mr Barron also claims that TAL failed to comply with its duty of utmost good faith: Insurance Contracts Act 1984 (Cth) ss 13(1) and 13(2) ([186], [213]). It suffices to say for present purposes that in every contract of insurance to which that Act applies, there is an implied term that each party must act towards the other in respect of any matter arising under or in relation to it with the utmost good faith. In the proposed pleading, Mr Barron says that TAL failed to do so by “mischaracterising medical evidence”, “maintaining incorrect framework”, “relying on unverified employer account” and “failure to commission independent medical examination” ([187]).

74    This is certainly a claim that can be advanced by Mr Barron but at present it is vague and embarrassing. The matters that Mr Barron identifies and which are set out above seem to be grievances with the evidence and information that TAL relied on in considering Mr Barron’s claim. The proposed pleading does not attempt to explain how TAL’s conduct rises to the level of mala fides that breaches the implied term. It does not, for example, suggest that no reasonable insurer would have relied on that information in assessing his claim and that a benefit would have been paid to him had it not been taken into account. However, depending on what TAL’s possible liability is on the pre-2018 policy wording, it may well be a breach of its duty of utmost good faith to have assessed Mr Barron’s claim under the later policy wording, as he seeks to plead.

Conclusion in relation to TAL

75    In the result, it may be that a reasonable cause of action can be pleaded against TAL in reliance on the pre-2018 policy wording and the novation to Westpac Life and then TAL. In respect of the post-1 January 2018 wording, on what Mr Barron has thus far sought to plead and on the evidence that he has adduced, save for the remote possibility of a Part B TPD claim, there is no reasonable cause of action that he can plead against TAL. In the circumstances, as concerns TAL, I will simply dismiss Mr Barron’s application for leave to file his proposed pleading leaving him to apply once again for leave to file a pleading that pleads causes of action against TAL based on the pre-2018 policy wording and, if the facts support it, a Part B TPD claim under the post-1 January 2018 wording. In referring to causes of action based on the pre-2018 policy wording, I include a claim for breach of the duty of utmost good faith.

The case against BTFM

76    It is difficult to identify the claims that Mr Barron asserts against BTFM given the prolixity, repetitiveness and complexity of the proposed pleading. Taken at its highest, Mr Barron says the following.

Breach of trust

77    Mr Barron says that BTFM breached its fiduciary obligations as trustee of the fund that it owed to him as a member (Part E of the proposed pleading).

78    Mr Barron contends that BTFM breached its fiduciary obligations by, among other things, affirming TAL’s decisions to decline his claims under the SCI and TPD policies ([163]-[166]). Such a claim against BTFM can only be made good if Mr Barron is entitled to a benefit under one or other of those policies – that is, if TAL was wrong in declining Mr Barron’s claims. For the reasons I have already given, that would appear to be highly unlikely in respect of the post-1 January 2018 policy wordings but, depending on the wording and the nature of the novation, it may be possible in reliance on the pre-2018 policy wording.

Breach of contract

79    Mr Barron seeks to plead that BTFM “was required to administer insurance arrangements according to the governing contractual framework” and failed to do so which amounts to a breach of contract ([207]-[211]). Insofar as any claim can be discerned, its success would depend on success in the TPD and/or SCI claims against TAL ([212]).

Waiver and estoppel

80    Mr Barron seeks to plead some sort of estoppel or waiver claim. It is plain on the face of the proposed pleading that Mr Barron raises these matters on a basis that is confused and manifestly untenable. There is nothing in the proposed pleading or the evidence that discloses an apparent basis for an estoppel or waiver, and accordingly if this were a strike out application there would be no leave to replead that claim.

81    That aside, Mr Barron contends that BTFM has misled him into thinking that he had a claim under the SCI policy when in fact he did not (ie he was led down the garden path), or that BTFM misled him into thinking that he did not have a claim under the TPD policy when in fact he did. The only particulars given by Mr Barron in the proposed pleading in support of this claim is an exchange between Mr Barron and Asgard in 2019 when he first sought information from Asgard about his salary continuation insurance cover. In short, when that exchange is considered in full it is overwhelmingly clear this argument is not one that can be sustained by Mr Barron. It seems Mr Barron misunderstood what was communicated to him.

82    On 5 March 2019, Mr Barron sent the following email inquiry to Asgard Investor Services inquiring about his salary continuance insurance cover (as written): [AB4/614]

Subject: account closure confusion

hi there iv just recently applied for financial hardship as i am struggling beyond anything i could have comprehended so i need all the money and wasnt exactly sure on whether i should close my account or not but not being 100 percent familiar with my insurance and what was covered , iv been unable to work due to medical conditions which i have a medical certificate for e last six months at least, does my salary continuance cover me for that ?

83    On 11 March 2019, a representative from Asgard Investor Services responded as follows: [AB4/614]

Dear Glenn,

Thank you for your recent enquiry.

Salary Continuance insurance covers you if you are not able to perform your normal work duties due to an inury (sic) or medical condition that has arisen. If this sounds like the situation you have previously found yourself in you may be potentially applicable to claim. The underwriter makes the final decision on whether or not you are applicable so I would not be able to give you any guarantee.

If you are wanting to go through the claim process we will have to get a few details taken down over the phone. If you could please give us a call on 1800 998 185 at your earliest convenience, any of the consultants that you get will be able to take down these details for you.

84    Mr Barron’s cover was later reinstated to allow him to lodge a claim. [AB4/616-617]

85    There is nothing in this reply that can reasonably be understood as a representation by Asgard to Mr Barron as to the prospects of any possible claim under the SCI policy. Asgard has merely invited Mr Barron to submit a formal claim for a benefit if he thinks that what has happened to him broadly aligns with the circumstance the representative described. The representative is also very clear in the email that it is the underwriter, then Westpac Life, who considers whether the policy responds to the claim, and not Asgard. Indeed, it would be very difficult for Asgard to form any view on cover based on what little information Mr Barron provided at that time.

86    It is also clear that Asgard had not made any representation to Mr Barron about the TPD policy. That was not the subject of Mr Barron’s email inquiry. There is no inference that should be drawn from the fact that Asgard’s email does not refer to a possible TPD claim. If this were a strike out there would be no leave to plead this misleading conduct claim. There is also no inference that should be drawn from the reinstatement of Mr Barron’s account.

Conclusion in relation to BTFM

87    In the result insofar as any claim against BTFM is concerned, if no reasonable cause of action can be pleaded against TAL, as explained above, no reasonable cause of action can be pleaded against BTFM. But since a reasonable cause of action may be able to be pleaded against TAL, for the moment I must accept that such a cause of action might be able to be pleaded against BTFM. I am satisfied in the circumstances that the application for leave to file the proposed pleading as against BTFM should be dismissed, leaving Mr Barron to again seek leave to file a pleading that pleads reasonable causes of action against BTFM.

Disposition

88    Mr Barron’s application seeking leave to file his proposed pleading should be dismissed.

89    Once again, neither of the respondents seeks a costs order against Mr Barron.

Associate:

Dated:    28 August 2026