Australian Super Pty Ltd v Woodward

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

INTRODUCTION 1 These proceedings concern an appeal, and cross-appeal, from a judge of this Court who allowed an appeal by the first respondent, Mr Woodward, from a decision of the Superannuation Complaints Tribunal (the Tribunal): Woodward v Australian Super Pty Ltd (formerly STA) [2008] FCA 706. 2 The Tribunal had affirmed the decisions of the first appellant (the trustee) and the second appellant (the insurer) to reject Mr Woodward's claim for a Total and Permanent Disability (TPD) benefit. Mr Woodward, who was and still is self-represented, made an application to this Court under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Act). Though nominally termed an "appeal", such an application is a proceeding in this Court's original jurisdiction. Such an "appeal" from the Tribunal lies only on a question of law. In this sense, the proceeding is analogous to an appeal to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal. 3 For the most part, Mr Woodward's grounds of appeal in the original jurisdiction were not directed to questions of law. The primary judge nevertheless dealt with each of them in turn, rejecting them all. His Honour, however, ultimately allowed the appeal on a ground that was not agitated by Mr Woodward but had been raised by his Honour in the course of oral submissions. The ground was that the Tribunal conducted its review by reference to the wrong version of the trust deed. His Honour found that the relevant version was that in effect at the time the appellants made their decisions to reject Mr Woodward's claim (ie 27 September and 16 December 2005). On this basis his Honour allowed the appeal, quashed the Tribunal's decision and ordered that the matter be remitted to the Tribunal for hearing and determination according to law. 4 The trustee and the insurer have together appealed against these orders. The appellants' grounds of appeal to this Court are directed towards the one contention: that the primary judge erred in coming to his conclusion as to the Tribunal's having looked to the wrong version of the trust deed. They submit that relevant version of the trust deed was that in effect at the time Mr Woodward's claimed TPD arose (said to be 2 August 2002). For the reasons that follow, we respectfully agree. 5 Mr Woodward has cross-appealed. In so doing, he has rehearsed one of the grounds rejected by the learned primary judge. That ground is predicated upon there being an inconsistency between the decision of the Tribunal under appeal below and another decision of the Tribunal concerning a separate TPD claim which he made. As will appear, we agree with the learned primary judge, for the reasons his Honour gave, that there is no inconsistency. 6 Mr Woodward's only other appeal ground claimed that the learned primary judge erred in not awarding him costs. Mr Woodward had no entitlement to seek costs.

BACKGROUND 7 On 6 November 1999, Mr Woodward became a member of the superannuation fund of which the first appellant is trustee while employed by NESS Security Products Pty Ltd. He also thereby became covered by a Group Life Insurance Policy No K003779 issued by the insurer. 8 On 9 April 2001, Mr Woodward commenced employment with Rexel Australia Pty Ltd (Rexel). Rexel continued to make superannuation payments to the trustee on his behalf. The last contribution paid was for the period ending 30 August 2002, with the consequence that Mr Woodward's TPD insurance cover expired on 28 February 2003. 9 On 19 April 2002, Mr Woodward was involved in an accident while riding his motor cycle home from work. As a result of the accident, he claimed to have suffered injuries to his ankles, right knee and lower back. He continued to work at Rexel with the aid of painkillers and anti-inflammatory medication until he resigned on 2 August 2002, citing "back pain, ankle pain, nightmares and 'an extreme amount of pressure from management'": Woodward [2008] FCA 706 at [9]. 10 In October 2002, allegedly on the advice of his general practitioner, Mr Woodward commenced employment at Mayne Armaguard. He said that the job involved very light duties and no stress. He nevertheless resigned in November 2002 as his pain was too intense, despite the use of painkillers and muscle relaxants. 11 From 13 January 2003 Mr Woodward was in receipt of a Commonwealth Disability Support Pension administered by Centrelink. In August 2003 the Commonwealth Rehabilitation Service arranged for him to work as a concreter with Northside Mini Mix. He claims he took up this placement as a result of pressure exerted by Centrelink. He resigned on 30 June 2004 and has not worked since that date. 12 The insurer received Mr Woodward's claim for TPD against the trustee, which was then known as the STA Superannuation Fund, on 29 July 2003. He claimed to have been incapacitated from 2 August 2002, which was the date he resigned from Rexel. At the time the claim was received, the trust deed defined TPD as follows: (73) "Total and Permanent Disablement" means disablement of a Member resulting from an illness, accident or injury to the Member which commenced or occurred whilst the Member was employed and whilst a Member as a result of which - (a) the Member has been precluded for a period of six consecutive months after the date of occurrence of such event from following any occupation for which the Member is reasonably suited by education training or experience; and (b) the Member will, in the opinion of the Trustee after consideration of medical evidence satisfactory to it, continue to be so disabled to such an extent as to render the Member unlikely ever again to resume work in or attend to any such occupation; and "totally and permanently disabled" shall have a corresponding meaning PROVIDED THAT where at any time all or part of the Benefit payable in the event of Total and Permanent Disablement is insured with an insurance company, the term "Total and Permanent Disablement" shall bear the meaning ascribed to it in the relevant Policy in lieu of the above definition unless the Trustee in its absolute discretion otherwise determines; … 13 This clause has been amended from time to time following the initial settlement of the superannuation fund: by a Deed of Variation dated 29 May 2001, effective 1 April 2001; by a Deed of Variation dated 27 June 2002, effective 27 June 2002; and by a Deed of Variation dated 19 December 2002, effective 26 February 2003 (Woodward [2008] FCA 706 at [81]). The learned primary judge (at [81]) did not regard the amendment, effective on 26 February 2003 as relevant. Nor do we. Evidently though, his Honour considered that the Tribunal ought to have looked to a yet later, 2005 version, of the trust deed. Quite how the definition of TPD in any such later version of the trust deed differed, if at all, from that in effect at 2 August 2002 is not apparent in the material concerning the wording of the trust deed from time to time which was before the learned primary judge. Be this as it may, it was the conception that the wrong version of the trust deed had been looked to which occasioned the quashing of the Tribunal's decision. 14 The definition extracted at [12] incorporated by reference the definition of TPD in the insurance policy. There was no suggestion by either party that this definition was materially other than in the form of the insurance policy in evidence before the Tribunal and reproduced in the appeal book. The insurance policy defined TPD as: disablement where we are satisfied on medical or other evidence that an insured member: (a) has been absent from employment for 6 consecutive months because of sickness or injury; and (b) (i) is so incapacitated because of the sickness or injury that the person is prevented from ever engaging in is or her own occupation or any occupation for which he or she is reasonably suited by education, training or experience; or (ii) has suffered the total and permanent loss of the use of: · 2 hands; or · 2 feet; or · 1 hand and 1 foot; or · the sight in both eyes; or · 1 hand and the sight in 1 eye; or · 1 foot and the sight in 1 eye, where "hand" means whole hand below the wrist and "foot" means the whole foot below the ankle. 15 On 18 August 2005 the insurer rejected the claim and, after conducting an internal review, affirmed the decision on 27 September 2005. The reason given was that Mr Woodward had earned an income and demonstrated work capacity after the date from which he claimed to be totally and permanently disabled (ie 2 August 2002) and therefore did not meet the definition of TPD in the trust deed [AB 195]. 16 On 3 November 2005 the trustee also rejected the claim and, upon review, affirmed the decision on 16 December 2005. The reason given was that Mr Woodward had worked after his insurance cover had ceased on 23 February 2003 and therefore did not meet the definition of TPD in the insurance policy [AB 198]. 17 On 28 April 2006 Mr Woodward lodged a complaint with the Tribunal claiming that the decision of the trustee was unfair or unreasonable: see s 14 of the Act. Pursuant to s 18(1), both the trustee and insurer were named as parties. 18 When a complaint is made to the Tribunal under s 14 of the Act, the Tribunal has all the powers, obligations and discretions that are conferred on the trustee: s 37(1). Where an insurer has been joined as a party to a complaint, the Tribunal must, when reviewing the trustee's decision, also review any decision of the insurer that is relevant to the complaint and, for that purpose, has all the powers, obligations and discretions that are conferred on the insurer: s 37(2). 19 Upon reviewing the decision of the trustee or insurer, the Tribunal may affirm the decision; remit the matter to the trustee or insurer for reconsideration in accordance with the directions of the Tribunal; vary the decision; or set aside the decision and substitute another: s 37(3) of the Act. The Tribunal must affirm a decision of the trustee or insurer if it is satisfied that the decision, in its operation in relation to the complainant, was fair and reasonable in the circumstances: s 37(6). 20 The Tribunal conducted the review on the papers and, pursuant to s 32 of the Act, requested submissions from the parties. Submissions were received from the trustee and Mr Woodward. The Tribunal found that there was "little medical evidence to support the [insured's] decision to cease work due to his back condition in late 2002". It found that Mr Woodward had "resigned from his position in August 2002 for his own reasons". It found that, due to his age and the sedentary nature of his work, there was a good "possibility that he could return to some form of employment for which he is suited by education, training or experience at some time in the next 30 years" [AB 11]. The Tribunal found the decisions of the trustee and insurer to have been fair and reasonable and affirmed the decisions pursuant to s 37(6) of the Act. 21 Importantly, for the purposes of the present appeal, the Tribunal found that "the version of the superannuation fund's trust deed that is relevant in this matter is that which was in effect on the date when the [insured] ceased employment with [Rexel] (ie 2 August 2002), being the trust deed as amended to 27 June 2002". It is with respect to this finding that the primary judge found the Tribunal to have erred. 22 For the purposes of the disposition of the cross-appeal, it is also necessary to say something about another, separate TPD claim Mr Woodward made against the ANZ Super Advantage Superannuation Fund (ANZ) in 2003. 23 On 9 February 1999 Mr Woodward joined ANZ whilst employed by Bradflo Pty Ltd. He was covered by ANZ's insurance policy for TPD and death. His last insurance premium was deducted from his account on 9 September 2003 and he withdrew all of his superannuation on 26 September 2003 due to financial hardship. 24 On 6 August 2003 Mr Woodward lodged a claim for TPD against ANZ which was rejected by Tower Australia Ltd (Tower), the insurer to ANZ, on 29 August 2005 and by ANZ on 26 September 2005. ANZ and Tower both rejected the claim on the basis that Mr Woodward had continued to work until 30 June 2004 (when he resigned from Northside Mini Mix). Any entitlement to a TPD benefit could only have arisen on or from that date, by which time Mr Woodward's cover had lapsed. 25 Mr Woodward sought review of the decisions of ANZ and Tower before the Tribunal. The Tribunal held that ANZ and Tower did not have the necessary evidence to conclude that Mr Woodward did not meet the definition of TPD, as neither had sufficiently clarified the facts surrounding his accident or obtained appropriate specialist medical reports ("the ANZ decision"). The Tribunal found that the decisions operated unfairly and unreasonably in relation to Mr Woodward and remitted the matter to ANZ and Tower with directions that they obtain further evidence. It is with this latter Tribunal decision that Mr Woodward contends the decision of the Tribunal under appeal is inconsistent.

THE PRIMARY JUDGE'S DECISION 26 As indicated above, the ground on which the learned primary judge ultimately allowed the appeal was not included in the Notice of Appeal. Rather, it would appear that, during the course of the hearing of the appeal, his Honour perceived that there may have been a fatal error of law nonetheless in the Tribunal's decision. His Honour then properly raised that subject with the parties as a matter for submissions. The appeal being one on a question of law, the point raised perhaps ought strictly to have been translated into an amendment to the Notice of Appeal. Nothing however turns on this as the point on which the appeal came to turn was fully exposed in a procedurally fair way. 27 Under the heading "Other Matters" (at [80]-[104]), the primary judge addressed three different concerns that he had about the TPD definition adopted by the Tribunal. 28 The first was that, although it had specified that the relevant version of the trust deed was that in effect on 27 June 2002, and although it had cited the definition of TPD as contained in that version of the deed, the Tribunal had numbered the definition as if it were taken from a previous version. His Honour found that this error did not affect the integrity of the Tribunal's decision (at [89]). 29 The second was that, although the definition of TPD in the trust deed incorporated by reference the definition of TPD in the insurance policy, the Tribunal did not specify whether it was reviewing the decisions against the definition in the trust deed or the definition in the insurance policy. His Honour found that it was implicit in the Tribunal's reasoning that it had regard to definition in the insurance policy and that, even if it did not, the result would have been the same because there was no material difference in meaning between the definitions in the trust deed and the insurance policy (at [96]-[97]). 30 The third concern articulated by the learned primary judge is that which has given rise to the present appeal. The Tribunal found that the relevant version of the trust deed was that in effect on the date when Mr Woodward ceased employment with Rexel. His Honour found this approach to be incorrect. His Honour held that the role of the Tribunal was to determine whether the decisions of the trustee and the insurer "were correct when they were made" (at [99]). In this regard, his Honour referred to the decision of Heerey J in Davis v Rio Tinto Staff Superannuation Fund Pty Ltd (2002) 118 FCR 170 at 173-175 at [15]: Under s 37 of the Act the function of the Tribunal was to determine whether the decision of the Trustee was fair and reasonable in the circumstances: see National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562 and the cases therein cited. Counsel for the applicant submitted that the relevant time to consider whether the applicant was TPD within the meaning of the contract of insurance was 19 February 1999, that being six months from the date on which he last worked. I do not agree. What the Tribunal had to review and either affirm, vary or set aside was the decision of the Trustee made on 23 December 1999 and subsequently reviewed and affirmed by the Trustee on 1 June 2000 and 28 June 2000. Although not explicitly stated, it would seem that the Tribunal regarded its task as reviewing the decision of the Trustee as at the last mentioned date, an approach I think was correct. The system of review under the Act is to be distinguished from claims made by an insured under a policy: cf Giles v National Mutual Life Association of Australasia Ltd (1986) 4 ANZ Ins Cas 60-751. 31 His Honour also referred to the decision of Gordon J in Samaras v Australian Retirement Fund Pty Ltd (2008) 15 ANZ Ins Cas 90-133, in which her Honour noted it was common ground between the parties that "the relevant time for the Tribunal to consider [the applicant's] claim for TPD benefit was the date of the decision of the Trustee" (at [18]). His Honour therefore concluded that the Tribunal had "conducted its review by reference to the wrong date" (at [102]). His Honour noted that there was no evidence as to the terms of the trust deed or the insurance policy as at the date when the review needed to be conducted. Nevertheless his Honour allowed the appeal, quashed the decision of the Tribunal and remitted the matter for determination according to law. It would seem that his Honour envisaged that evidence of the later versions would be placed before the Tribunal on rehearing and that a submission supported by evidence was not put to his Honour that remission was pointless because the definitions in the trust deed and in the insurance policy had not materially changed.

The parties' submissions 32 The appellants submit that the relevant definition of TPD is that which was in effect when Mr Woodward ceased employment at Rexel - that is, 2 August 2002 - not that which was in effect when the decisions of the trustee and insurer were made. 33 They submit that the primary judge incorrectly concluded that the nature of the merits review jurisdiction exercised by the Tribunal was such that it was bound to consider whether the decisions made by the trustee and the insurer (which was inferentially adopted by the trustee) in 2005 (the dates of the decisions the subject of the merits review) as determining, by necessity, the dates of the relevant documents to which the Tribunal must have regard. It is said that the Tribunal conflated two separate questions that confront any trustee/insurer when determining whether a claimant is eligible for a TPD benefit: 1. what were the terms of the trust deed/insurance policy by reference to which the claimant may be entitled to a TPD payment? ("the relevant definition inquiry"); and 2. did the claimant satisfy the relevant definition of TPD? ("the factual inquiry"). 34 The appellants submit that the cases upon which the primary judge relied (see [30]-[31] of these reasons) are directed towards the second question: the "factual inquiry". They submit that, in any event, even if they can be regarded as supporting the conclusion to which the learned primary judge came, the weight of authority is against holding that the "factual inquiry" should be conducted by reference to the date of the trustee's/insurer's decision. They further submit that those cases that do address the "relevant definition inquiry" establish that the version of the deed to be applied is that in effect at the time the claimant's TPD arose. 35 The appellants also outline a number of what is said to be illogical or unjust consequences that flow from the position adopted by the primary judge: · A member's entitlement becomes uncertain and arbitrary, dictated not by the terms of the trust deed at a fixed point in time (when the TPD arose) but by reference to the date upon which the trustee happens to make the decision. · A member who had a valid claim under the version of the trust deed in effect at the date upon which he or she became TPD could nevertheless have that claim rejected if the trust deed had been amended by the time the trustee came to make a decision. · If the trust deed is amended in between the date of the trustee's decision and the date of the insurer's decision, then the definitions applied by each could be different and produce different results. This problem could also arise where the deed is amended in between the trustee's/insurer's original decision and the decision on review. · Where a member's entitlement is determined after their membership or insurance cover has expired, that member could benefit from any amendments to the trust deed that occurred after that expiration date. · Trustees and insurers will be unable to alter deeds and policies without having regard to the interests of those who have since left the relevant superannuation fund. 36 Mr Woodward does not appear to attempt to challenge the legal or logical arguments made by the appellants. Instead, he submits that the Tribunal erred in relying on the TPD definition as it stood on 2 August 2002 because his employment with Rexel actually expired on 1 September 2002. Mr Woodward says that he gave one month's notice on 2 August 2002 and, although he stopped working on 2 August 2002, he was paid out to 1 September 2002. He further submits that the appellants' arguments for a "fixed date" are undermined by the fact that the trustee, in a letter dated 7 March 2005, informed him that the insurer now considered 7 January 2003 as the relevant date for assessment. 37 The appellants' reply to this was that it was Mr Woodward himself who identified 2 August 2002 as the date of his TPD. The trustee's letter of 7 March 2005 merely indicated that the insurer could only assess his claim from 7 January 2003 because Mr Woodward had provided no evidence of TPD before that date.

Consideration 38 The superannuation fund is but a particular species of trust. As a matter of general principle and in the absence of an express power of amendment to revoke the trust or statutory warrant to do so, an amendment to a trust deed which sought retrospectively to curtail rights that had already accrued, would constitute a fraud on the power of amendment. In equity, the donee of a power of amendment of a trust deed: Shall, at the time of exercise of that power, and for any purpose for which it is used, act with good faith and sincerity, and with an entire and single view as to the real purpose and object of the power, and not for the purpose of accomplishing or carrying into effect any bye or sinister object (I mean sinister in the sense of its being beyond the purpose and intent of the power) which he may desire to effect in the exercise of power

• Duke of Portland v Topham (1864) 11 HL Cas 32 at 54. As the learned authors of Jacobs' Law of Trust in Australia (Heydon JD, 7th Ed, Lexis Nexis Butterworths 2006) p 1, [101] observe by reference to Registrar of the Accident Compensation Tribunal v Commissioner of Taxation (1993) 178 CLR 145 at 175, "a trust is an institution developed by equity and cognisable by a court of equity". An amendment of a trust deed which constituted a fraud on a power would not be cognisable by a court of equity. It would be invalid. 39 Thus, if, under the then terms of a superannuation fund trust deed a member of that fund had a TPD entitlement, it would be contrary to equitable principle to regard any later amendment of the deed governing that fund as capable, validly, of removing or otherwise affecting that accrued entitlement. 40 The restraint which the law of equity imposes on the ability freely to amend a trust deed so as to interfere with accrued rights is, in part, buttressed so far as regulated superannuation funds are concerned, by reg 13.16 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) (SIS Regs). Subject to exceptions which are not presently relevant, that regulation provides that a standard applicable to the operation of regulated superannuation funds is that a beneficiary's rights or claim to accrued benefits, and the amount of those accrued benefits, must not be altered adversely to the beneficiary by amendment of the governing rules or by any other act carried out, or consented to, by the trustee of the fund. Reference should also be made to cl 25 of the deed establishing the superannuation fund which expressly prohibits a variation to the deed which "adversely affects a Member's rights or claim to accrued benefits". 41 Against this background, we turn to review the jurisprudence in relation to the review function consigned to the Tribunal to see whether it reveals anything which would challenge this approach. In so doing, we find it helpful first to consider what the appellants term the "relevant definition inquiry". 42 The two cases cited by the primary judge - Davis 118 FCR 170 and Samaras (2008) 15 ANZ Ins Cas 90-133 were directed towards the "factual inquiry" and therefore not strictly authority for his Honour's ultimate finding. 43 In Davis 118 FCR 170 the issue was whether the claimant's satisfaction of the TPD definition should be determined at 19 February 1999 (six months from the date on which he last worked) or 28 June 2000 (the date on which the trustee's decision was affirmed). Heerey J adopted the latter approach. In Samaras (2008) 15 ANZ Ins Cas 90-133,Gordon J did not substantively address this question at all. Her Honour merely set out that it was common ground between the parties that "the relevant time for the Tribunal to consider Mr Samaras' claim for TPD benefit was the date of the decision of the Trustee" (at [18]). In accordance with this common ground, her Honour later held that "the Insurer and the Trustee were required to consider the medical evidence that existed at the time of their decision" (at [37]). 44 The appellants pointed to two authorities that directly address the "relevant definition inquiry": Howitt-Steven v Unisuper Ltd (2002) 193 ALR 207 (Dowsett and Stone JJ; Madgwick J dissenting) and Auspine Staff Superannuation Pty Ltd v Henderson (2007) ANZ Ins Cas 90-127. 45 In Howitt-Steven 193 ALR 207the relevant trust deed had been amended on 1 July 1997. The deed defined "disablement" as "being absent from employment through injury or illness for three months within a period of twelve consecutive months" and being "incapable of performing duties or engaging in employment for which the member is or was by reason of training and experience, reasonably qualified". The amendments did not affect the definition of TPD but did affect the amount a claimant could receive. The claimant in question had stopped working on 11 February 2007. He submitted that the post-1 July 1997 deed should apply because his contract of service was not formally terminated until 5 June 1998. The majority (Dowsett and Stone JJ) held that, on the construction of the trust deed, the existence of ongoing contractual relations between the employer and employee would not "operate to suspend or defer commencement of the [employee's] entitlement to the benefits conferred by the deed" (at [140]). Their Honours found that "the better view is that any entitlement arose at the time of disability" and that therefore "it should be determined by reference to the trust deed [pre-amendment]" (at [140]). 46 Howitt-Steven 193 ALR 207is, in a sense, of limited utility given that the Full Court was not asked to decide between the date of disability and the date of the trustee's/insurer's decision. It should also be noted that, in that case, cl 55(5)(a) of the trust deed specified that no amendment should "prejudice or affect any pension or other benefit payable under the Scheme", although Dowsett and Stone JJ referred to this clause as merely a "further ground for rejecting the [claimant's] argument" (at [140]). Howitt-Steven 193 ALR 207 nevertheless supports the appellant's proposition that a TPD claim should be determined by reference to the version of the trust deed in effect at the time of disability. 47 In Auspine (2007) ANZ Ins Case 90-127, the trust deed had been amended on 26 November 1999. A member suffering from "total and permanent disablement" was defined as meaning "a member who…is, by reason of permanent incapacity or permanent invalidity unlikely to engage in any occupation for which the Member is reasonably qualified by education, training and experience and which provides an equivalent level of remuneration". Rule 4.3 provided that a "member who retires from Service on the grounds of Permanent Disablement shall be entitled to receive a Permanent Disablement Benefit". The 1999 amendments did not alter the definition of TPD, but did affect the amount a claimant could receive. Notably, Recital F of the amending deed provided that its terms would be effective retrospectively, as at 1 July 1996. The last day upon which the claimant had worked was 19 May 1999. The claim was rejected by the insurer on 17 April 2002 and by the trustee on 2 August 2002. Those decisions were later affirmed by the insurer and trustee respectively. 48 On review, the Tribunal found that the relevant version of the trust deed was that in effect when the claimant ceased work (ie 19 May 1999). On appeal to the Federal Court, the trustee submitted that it was obliged to determine the claim by reference to the deed in effect when the claimant submitted his TPD claim on 26 June 2001. The claimant submitted that, when he retired from service on the ground of permanent disablement, he was thereupon entitled to the benefits the deed provided for in those circumstances. The claim should be determined by reference to the deed at that time and the fact the claim was made some time later was immaterial. The trustee responded by reference to Recital F of the amending deed. The claimant replied by reference to reg 13.16(1) of the SIS Regs. 49 Jessup J held that the Tribunal did not err by having regard to the version of the trust deed in effect on the date of the claimant's retirement. His Honour accepted that, if the claimant had retired on the ground of permanent disablement on 19 May 1999, then the relevant rule of the trust deed gave rise to an immediate entitlement on that date to be paid the TPD benefit. Likewise, by the operation of reg 13.16, if the claimant had such an immediate entitlement when he retired, no subsequent amendment of the deed could retrospectively affect that entitlement detrimentally to the claimant. 50 Again, Auspine (2007) ANZ Ins Case 90-127 does not address the specific options presented to us in this appeal, but it too at least supports the proposition that the reference date for the "relevant definition inquiry" should be date on which the TPD arose. The outcomes in Auspine and Howitt-Steven are each also consistent with the general equitable principle which we mentioned which would deny efficacy to any trust deed amendment which sought to interfere with rights already accrued under the terms of that trust deed. 51 One element of the TPD definition in the trust deed itself was "disablement of a Member resulting from an illness, accident or injury to the Member which commenced or occurred whilst the Member was employed and whilst a Member" (emphasis added). On the findings of fact made by the Tribunal, Mr Woodward was last employed by Rexel on 2 August 2002. It was on that date that he claimed that his disablement commenced. Mr Woodward's assertion before us that his employment with Rexel actually ceased on 1 September 2002 impermissibly seeks to agitate a question of fact. Such questions of fact were for the Tribunal to resolve, not for this Court on an "appeal" from the Tribunal and even more so not for a Full Court. Further, even if there were any such error of fact it would lead nowhere because it would remain the case that Mr Woodward's TPD claim was predicated on a period of disablement which was said to have commenced on 2 August 2002. 52 Other elements of that definition looked to preclusion from undertaking particular employment for a period of six months after that particular date of claimed disablement and to the engendering of a particular opinion on the part of the trustee. In this case, the six month preclusion from employment period could not expire until February 2003. However, the last day upon which the necessary correspondence of commencement of disablement and employment could and was claimed to have occurred was 2 August 2002. As a matter of construction, the critical definitional element was the commencement or occurrence of disablement, here claimed to be 2 August 2002. It was that event which served to fix the TPD definition as it stood at 2 August 2002 as the version of that definition against which the merits of Mr Woodward's claim fell to be assessed both by the trustee and, on review, by the Tribunal. 53 Further, if the other elements of the TPD definition as it stood at that time came to be satisfied, Mr Woodward had an entitlement to be paid a TPD benefit on and from the date his service ceased, not on and from the date when all of the elements of the TPD definition were satisfied: see cl 13.1 of Sch 3 to the trust deed ("the Benefit payable to [a member] who ceases service … having suffered Total and Permanent Disablement"). That date was 2 August 2002. 54 There was no evidence before the Tribunal (or in the original jurisdiction for that matter) of any amendment of the trust deed after 2 August 2002 which even purportedly sought to alter the rights then open in respect of a disability which commenced or occurred on that date. Had there been such an amendment and a related submission that it affected what would otherwise have been Mr Woodward's rights, that would have raised for consideration the efficacy of the power of amendment in the trust deed having regard to the equitable doctrine of fraud on a power and also to reg 13.16 of the SIS Regs. It is unnecessary in the circumstances to consider such matters. 55 The TPD definition in the trust deed also incorporates by reference and, unless the trustee in its absolute discretion determines otherwise, gives primacy to, the TPD definition in any relevantly applicable insurance policy. No different result follows if one looks to the definition in the insurance policy. Again as a matter of construction, the critical event in terms of identifying the rights open to be claimed is disability while employed. In this case Mr Woodward claimed that that had occurred on 2 August 2002. On that date, the insurance policy conferred a range of rights upon him, one of which was the ability to claim a TPD benefit governed by particular criteria then specified. 56 Thus the "relevant definition inquiry" in this case leads to a conclusion that the definition in the trust deed as at 2 August 2002 governs matters. As it happens, such a conclusion avoids the illogical or unjust consequences identified by the appellants in their submissions. However, the conclusion is one which follows in any event as a matter of construction. 57 It is neither necessary nor desirable for the purposes of deciding this appeal to embark upon any consideration of the case law concerning the "factual inquiry" step in a trustee's deciding a TPD claim or in the review of that trustee's decision.

THE CROSS-APPEAL 58 Mr Woodward's notice of cross-appeal contained two grounds. He added to these in the course of his submissions. We shall address those two grounds and make some brief comments about the other arguments Mr Woodward raised.

Costs 59 Mr Woodward's first ground of appeal alleges that the primary judge erred in not awarding costs against the trustee and insurer at first instance, despite the appeal being allowed. 60 A court has no power to award costs in favour of an unrepresented litigant. In Cachia v Hanes (1994) 179 CLR 403, Mason CJ, Brennan, Deane, Dawson and McHugh JJ held (at 409) that the costs provided for in the New South Wales Supreme Court Rules: …do not include time spent by a litigant who is not a lawyer in preparing and conducting his case. They are confined to money paid or liabilities incurred for professional legal services. It is only in that sense that the Rules speak of 'costs'. 61 The same rationale can be applied to the award of costs in the Federal Court of Australia.

The previous decision of the Tribunal 62 Mr Woodward's second ground of appeal is that the primary judge erred in failing to find that the Tribunal's decision should have been the same as the ANZ decision, described at [21]-[23] above. 63 A judge of this Court, upon hearing an appeal from the Tribunal under s 46 of the Act, does not have the power to re-make the decision or order the making of a particular decision. A judge may only resolve the question of law raised by the Notice of Appeal and either dismiss the appeal; or allow it and remit the matter to the Tribunal for further consideration according to law. 64 In any event, there is no reason why the decision of the Tribunal in this case should be the same as the ANZ decision. In that case, the Tribunal found that ANZ and Tower did not have the necessary evidence to conclude that Mr Woodward did not meet the relevant TPD definition. The Tribunal remitted the matter back to ANZ and Tower with directions that Tower obtain the opinion of a specialist and that ANZ and Tower assess his claim in light of the correct facts and further medical evidence. Mr Woodward says the trustee and insurer failed to act in good faith by refusing to seek further medical evidence. 65 The ANZ decision concerned a different set of circumstances and a different definition of TPD. There is nothing to indicate that the trustee and insurer in this case did not have the necessary medical evidence information before them.

Other issues 66 Mr Woodward also made the following arguments in the course of submissions, which do not relate to either ground of appeal. Even treating such arguments as tantamount to an application for leave to amend the notice of appeal, they do not affect the outcome of this case, for the reasons which we give below in a summary way: (a) The primary judge erred in finding that the insured commenced working at Northside Mini Mix in August 2003. The work undertaken from August to December 2003 was unpaid. Mr Woodward says he only commenced a paid work trial or "employment" on 4 January 2004, and that this was as a result of pressure exerted by the Commonwealth Rehabilitation Scheme. This contention is not supported by the findings of the primary judge, who held that Mr Woodward commenced "paid employment" with Northside Mini Mix in August 2003. In any event, the date upon which Mr Woodward commenced employment is irrelevant to the assessment of whether he was "unlikely ever again to resume work" (as specified in the trust deed). (b) The primary judge erred in failing to find that the Tribunal should have followed Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913and Fernance v Wreckair Pty Ltd (No 2) (1992) 43 IR 300. As outlined above, those cases established that a claimant's retraining, subsequent to the time the TPD is said to have arisen, was not relevant to the assessment of their TPD. Mr Woodward submits that the employment he undertook at Mayne Armaguard involved training and education. The fact that the Tribunal took that employment into account means they have referred to an irrelevant consideration. It is not established by the findings of the Tribunal or the primary judge that Mr Woodward's role at Mayne Armaguard required new training or qualifications. In any event, Mr Woodward's role at Mayne Armaguard was not a decisive factor in the Tribunal's decision. (c) The primary judge erred in failing to find that the Tribunal should have applied s 54 of the Insurance Contracts Act 1984 (Cth). This provision relates to circumstances where an insured's actions contribute to the loss for which he/she is making a claim. It specifies certain instances where an insurer may not refuse to make a payment for the loss, for example where the insured's act was necessary to protect the safety of a person. This provision has no application to the present case. (d) The primary judge erred in remitting the matter back to the Tribunal as the Tribunal had failed to take into account the Convention on the Rights of the Child (opened for signature, 20 November 1989), 1991 ATS 4 (entered into force 2 September 1990). Mr Woodward submits that the insurer breached Article 16 and that the Tribunal breached Article 27 of the Convention. He relied upon the decision of the High Court in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. Mr Woodward has misconceived the effect of the decision in Teoh 183 CLR 273. There is no obligation on decision-makers to take that Convention into account. Teoh 183 CLR 273 related only to Article 3 of that Convention, which provides that "in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration". The majority found that Australia's ratification of the Convention created a legitimate expectation that decision-makers will take the best interests of the child into account as a primary consideration and that, if a decision-maker intends to depart from that expectation, they will provide the subject of a decision the opportunity to be heard on the issue. (e) Mr Woodward also made submissions on the Tribunal's interpretation of the word "unlikely" in the trust deed, the insurer's lack of good faith and fair dealing, and the principles to be applied to the grant of an interlocutory injunction. These arguments are either misconceived or unsubstantiated or both.

CONCLUSION 67 For these reasons, we would allow the appeal and dismiss the cross-appeal. The orders of the primary judge made on 22 May 2008 should be set aside. 68 Mr Woodward should pay the appellants' costs. We grant the parties liberty to apply for a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the appeal. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finkelstein, Greenwood & Logan.

Counsel for the Appellants: Mr J Gleeson SC with Mr A Dinelli

Solicitor for the Appellants: Bain Gasteen Lawyers

Counsel for the First Respondent: The First Respondent appeared in person