Cameron v Board of Trustees of the State Public Sector Superannuation Scheme

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Superannuation Complaints Tribunal ("the Tribunal) made on 27 November 2001 whereby the Tribunal affirmed a decision made on 27 April 1999 by the respondent to reject a total and permanent disablement claim by Andrew Patrick Cameron ("the applicant"), and determined that that rejection was fair and reasonable in its operation to Mr Cameron. 2 Section 46(1) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) ("the Act") provides that a party to a complaint made to the Tribunal "may appeal to the Federal Court, on a question of law, from the determination of the Tribunal". Section 46(3) provides: "The Federal Court is to hear and determine the appeal and may make such order as it thinks appropriate." 3 Section 14 of the Act provides that if a trustee of a fund has made a decision in relation to a particular member of a regulated superannuation fund, the person may make a complaint to the Tribunal that the decision is or was unfair or unreasonable. The powers of the Tribunal concerning a complaint made under s 14 of the Act are prescribed by s 37 of the Act. Section 37 provides: "(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 directions 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. … (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." 4 The Federal Court Rules assimilate the procedure, as far as possible, with an appeal from the Administrative Appeals Tribunal: O 53B r 3. 5 Mr Cameron was employed as a teacher. He developed a speech defect, and on 19 September 1997 gave up work as a teacher. The respondent's submissions acknowledge that Mr Cameron "suffers from the condition known as spasmodic dysphonia, which renders him unable to speak". These proceedings have as their focus, the issue of whether the applicant's condition was such as to fall within the definition of "total and permanent disablement" in the Superannuation (State Public Sector) Deed 1990 Qld) ("the Trust Deed") of the superannuation fund of which Mr Cameron was a member and which was administered by the respondent. 6 The questions of law said to arise on the appeal are the nature and function of the Tribunal in reviewing a decision under s 37 of the Act; whether the Tribunal erred in law in failing to take into account a relevant consideration, being a specialist medical opinion; the true meaning of the definition of "total and permanent disablement" in the Trust Deed; and whether the Tribunal reached a reasonable conclusion on the facts and gave adequate reasons for its decision. 7 Mr Cameron seeks an order setting aside the decisions of the respondent and the Tribunal, a declaration that the applicant is subject to "total and permanent disablement" by reason of his vocal condition or, in the alternative, that the matter be remitted to the Tribunal to be heard and determined according to law, with leave for both parties to adduce further evidence concerning the condition of the applicant. 8 The Tribunal found the following facts: · The applicant was born on 7 April 1964. · He graduated from a university with a degree in science. · He completed a Diploma in Education and commenced work as a teacher. · He reported to school on 13 June 1990 and noticed his speech was defective. He consulted a variety of professionals for assistance with that condition, and on 19 September 1997 gave up work as a teacher. · On 15 May 1998 he applied for a temporary disability pension. Payment of the pension commenced on 11 August 1998. · Mr Cameron subsequently applied for a Permanent Disablement benefit by lodging a claim form dated 2 October 1998. · If the Trustee had determined the Complainant to be totally and permanently disabled on 21 March 2001, the amount payable would be $224,313.28. 9 The Trust Deed presently relevant is subordinate legislation of the State of Queensland: s 12(2)(a) of the Superannuation (State Public Sector) Act 1990 (Qld). Under s 4 of the Trust Deed, the definition of "total and permanent disablement" applicable to the applicant's claim was: " 'total and permanent disablement'means disablement of a degree which, in the opinion of the board after obtaining the advice of not fewer than two 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." 10 Upon the respondent's refusal to pay that claim, the applicant initiated a complaint under the respondent's internal complaints procedure. On 26 April 2000 the applicant lodged a complaint with the Tribunal that the decision of the trustee was unfair or unreasonable because: "he believes he has satisfied the definition of Total and Permanent Disablement in that he is unlikely ever again to be able to engage in an occupation for which he was reasonably qualified at the date of his retirement." The Tribunal noted that since ceasing work as a teacher, the applicant had engaged in further training. 11 It is relevant to have regard to some events that occurred prior to the review of the Tribunal in Melbourne which occurred on 3 September 2001. On 11 August 1998 the payment of a temporary disablement pension commenced. As noted earlier, on 2 October 1998 Mr Cameron applied for total and permanent disablement benefit. On 27 April 1999 a delegate of the respondent decided that the applicant was permanently and partially disabled. On 1 September 1999 the applicant appealed that decision of the delegate. 12 A submission to the State Public Sector Superannuation Board at its meeting held on 19 January 2000 was headed "APPEAL TO THE BOARD FOR RECONSIDERATION OF THE DECISION OF THE BOARD'S DELEGATE AS TO THE DEGREE OF DISABLEMENT". In that document the delegate opined that: "… Mr Cameron is no longer able to function in his usual job as a teacher as defined by the 'Standard Work Profile' for a teacher in the Queensland Department of Education. …He is not fit to perform any of the duties outlined in this position description." 13 The delegate also was of the view that the duties in the claimant's job could not be modified so as to allow the claimant to return to his usual job. The delegate indicated his opinion that: Mr Cameron is fully capable of marking papers in the Department of Education's distance education programs. He is capable of making comments on students' papers and providing written guidance. He is also capable of functioning as a statistician in either the Department of Education (if they have a position for a statistician) or in some other branch of the Queensland Government. He should be able to work as a full time employee. He would not be able to return to his usual job as a classroom teacher." 14 In addition, the delegate expressed the view that Mr Cameron could work in the maths curriculum area within Education Queensland, or as a laboratory technician or biochemist's assistant, or as an operations research analyst. 15 A letter from the solicitors acting for Mr Cameron which was recorded in the report to the Board indicated that: "… our client is not qualified to work as a Statistician" and later: "Mr Salzman [the delegate] has suggested that our client would be able to work as a Laboratory Technician or a Biochemist's Assistant. Our enquiries reveal that these positions are normally only available in Government Departments, Hospitals and Universities. The skills levels for a medical technical officer or a chemistry officer, as obtained from the Australian Standard Classification of Occupations, require, at a minimum, academic qualifications as well as proven or demonstrated ability and knowledge obtained from experience in working in these areas … Mr Salzman has suggested that our client is qualified to work as an Operations Research Analyst which has a minimum education requirement of a degree in mathematics. Our client's science degree did not contain a predominance of mathematics subjects. He does not have any computer skills nor knowledge of computer programs which are used in most types of analytical occupations. He has no experience in working as an analyst." 16 The recommendation contained in that report to the Board was: "On review of the evidence, the Board affirms the determination of the Board's delegate that Mr Cameron was Permanently and Partially Disabled in terms of the QSuper Trust Deed." … After considering all the evidence including the extensive submissions by Macrossans Lawyers and listening to the tape of Mr Cameron's voice taken in a therapy session in 1995, the Board is not satisfied that Mr Cameron is unlikely ever to be able to work again in a job for which he is reasonably qualified by education, training or experience." Under the heading "BOARD DECISION" the minutes note: "Approved (five votes to two). Mr Ryan abstained from voting and did not participate in the decision." 17 The Board meeting of 16 February 2000 records: "This appeal was considered by the Board at its meeting on 19 January 2000 and the statutory requirement of seven votes in favour of the resolution was not achieved … The requirement for seven Board members to vote in favour of a resolution is set down in section 61(3) of the Superannuation (State Public Sector) Act 1990 ('the Act'). Further, section 61(5) of the Act also provides that a Trustee present at a meeting who abstains from voting is taken to have voted for the negative. … the advice from Crown Law states that no Board decision has been made with respect to this appeal and accordingly the appeal is presented again to the Board for its consideration." 18 The minutes of the meeting of 16 February 2000 record: "The Board voted 5 for and 4 against and 1 abstention and therefore was unable to make a decision. The determination of the Board's delegate on 27 April, 1999, that he was permanently and partially disabled in terms of the Deed, stands." 19 The matter was again considered by the Board at its meeting of 21 March 2001. The submission documents before the Board included an extract of the report of Dr Adam, including the final paragraph of his opinion: "In summary, it is my opinion that the occupation for which Mr Cameron is suited by education training and experience is that of a teacher. He could not readily obtain employment in the alternative fields suggested by Mr Salzman or Dr Olsen, at least not without further training. All agree that Mr Cameron is totally and permanently incapacitated for work as a classroom teacher. I therefore conclude that he satisfies the Funds definition of total and permanent disablement …" 20 The recommendation was that the Board affirm the determination of the Board's delegate, that Mr Cameron was permanently and partially disabled in terms of the QSuper Trust Deed. The minutes record that six supported, one abstained and two did not support the recommendation, and under the heading "BOARD OUTCOME" in Andrew Cameron's appeal heard on 21 March 2001, the following appears: "The Board unanimously found that Mr Cameron was permanently unfit to discharge or incapable of discharging his duties as a teacher because of his spasmodic dysphonia. The Board failed to agree whether Mr Cameron's spasmodic dysphonia prevented him from ever being able to work again in a job for which he is reasonably qualified by education, training or experience. Therefore the decision of the Board's delegate of 27 April 1999 stands and Mr Cameron is considered Permanently and Partially Disabled under the QSuper Trust Deed." 21 As earlier indicated, on 26 April 2000, Mr Cameron lodged a complaint with the Tribunal that the decision of the Trustee was unfair or unreasonable because: "he believes he has satisfied the definition of Total and Permanent Disablement in that he is unlikely ever again to be able to engage in an occupation for which he was reasonably qualified at the date of his retirement." 22 The Tribunal met in Melbourne on 3 September 2001. The Determination and Reasons of the Tribunal identified the decision as: "On 27 April 1999 the Trustee decided to reject the Complainant's Total and Permanent Disablement ("TPD") claim on the grounds that he was not Totally and Permanently Disabled as defined in the Trust Deed." 23 The Tribunal in its reasons referred to the extensive submission by Mr Cameron's lawyers and the criticisms which they made of the Trustee and the Trustee's assessment concerning possible avenues of employment for Mr Cameron. The Trustee reviewed all the medical evidence and suggested a number of occupations that Mr Cameron could pursue, having regard to the limitations he now faced. The Tribunal referred to part of the Trustee's submission to it which included: "Although Dr A, Specialist in Occupational Medicine did not reach the same conclusion as Dr O, he did state that he agreed with Dr O that …[the Complainant] retains sufficient body function to allow him to consider alternative occupations." Dr A is reference to Dr Adam. 24 After summarising the various submissions made to it, the Tribunal, under the heading "TRIBUNAL'S DELIBERATIONS" said: "The Tribunal must determine whether the Trustee's decision to reject the claim of the Complainant for a TPD benefit was fair and reasonable in relation to the Complainant in the circumstances. In making its decision, the Tribunal considered the whole of the submissions and the evidence on the file. There does not appear to be any dispute as to the medical conditions that limit the capacity of the Complainant to engage in work involving regular vocal communication. What is in dispute is whether, given his acknowledged difficulties, he is unlikely ever to be able to work again in a job for which the member is reasonably qualified by education, training or experience. The Tribunal believes the word 'unlikely' embraces a wider consideration than the capacity of the Complainant to ever again work in a job but must also consider the likelihood of obtaining employment having regard to the limitations any potential employer might see in an applicant with the limitations of the Complainant. Since ceasing work as a teacher the Complainant engaged in further training. It was submitted that this is a matter that should not be considered by the Tribunal. The Tribunal makes a de novo review and any training carried out before that review can be taken into account in determining the likelihood of obtaining employment. The medical opinion was quite consistent in suggesting that there were occupations that the Complainant could undertake having regard to his significant qualifications and experience. It was clear that the Complainant could no longer engage in tasks that required more than a very moderate level of communication particularly involving groups of people or other stressful situations. In trying to establish that he was unlikely to obtain work, the Complainant obtained information from potential employers which tended to suggest that he would not be considered by them to be capable to work in their vocational area. However, in the Tribunal's view such specific responses, particularly in regard to clerical work, cannot reasonably be translated to a general conclusion that such work will not be available. Many ex teachers do work in the fields of clerical and administrative work and it would be too narrow a view to suggest university education only prepares graduates for a specific and not a general career. There was sufficient evidence that the Complainant was likely to be able to work again in a job for which he was reasonably qualified by education, training or experience. The employer sponsor of this Fund employs a large number of people in a wide range of occupations. Some of these would fall within those categories of work that the Trustee believes the Complainant would be able to seek and obtain and therefore the opportunity exists to assist the Complainant in this regard. Despite the limitations faced by the Complainant and having regard to all the opinions expressed the Tribunal formed the view that the decision of the Trustee that the Complainant did not meet the definition of TPD was fair and reasonable given the Complainant's young age and substantial and transferable qualifications. DETERMINATION OF THE TRIBUNAL Pursuant to s.37(1)(a) of the Complaints Act, the Tribunal has all of the powers, obligations and discretions of the Trustee. By virtue of s.37(3) the Tribunal may make a determination affirming a decision, remitting the matter for consideration in accordance with the Tribunal's directions, varying the decision or setting aside the decision and substituting its own decision. Section 37(4) provides that the Tribunal may only exercise its determination making power for the purpose of placing the Complainant in such a position that the unfairness or unreasonableness no longer exists. The Tribunal determines that the decision of the Trustee was fair and reasonable in its operation to the Complainant in the circumstances." 25 The appellant contends that the Tribunal misdirected itself as to its role in reviewing the respondent's decision. It failed to appreciate that, in hearing the matter de novo, it was obliged to consider the evidence for itself and form its own preliminary view as to whether the applicant was entitled to the TPD benefit. It was said that, when the Tribunal stated: "There was sufficient evidence that the complainant was likely to be able to work again in a job for which he was reasonably qualified by education, training or experience", the Tribunal posed the wrong question for itself. The question was not whether there was "sufficient evidence" in favour of forming an opinion. Such a statement is suggestive of simply determining if the Trustee's decision was supportable. Rather, it was said, the question is whether (weighing evidence on both sides) the Tribunal finds as a fact that evidence as to capacity submitted by the applicant ought be preferred, as a precursor to deciding whether the respondent's decision was fair or reasonable. 26 The second ground was a complaint that the Tribunal failed to take into account the opinion of Dr Adam, it being submitted that the Tribunal did not even advert to the existence of the report by Dr Adam, and that failure amounted to a failure to take into account a relevant consideration. 27 Next it was said that the finding that the medical opinion was quite consistent in suggesting there were occupations that the complainant could undertake, taking into account his significant qualifications and experience, could not stand, having regard to the report of Dr Adam which was before it. There was also the complaint that the Tribunal failed the requirement adequately to give reasons for its decision. 28 In this case the Board was required to form an opinion as to whether the appellant was totally and permanently disabled in terms of the Trust Deed definition. As the Full Court in National Mutual v Campbell (2000) 99 FCR 562 noted at par 31, the formation of that opinion: "… may involve elements of fact, degree and value judgment, but the decision on that question is not appropriately characterised as being discretionary in character." That issue before the Board was an issue of fact. The issue for the Tribunal under s 37 of the Act is not whether the Board's decision is impeachable under the general law; that is, whether the Board's decision is the correct decision in the limited sense that it addressed the right question and there was material which supported the conclusion which it reached. The issue is whether the s 14(2) complaint has been made out, and whether, for the purposes of s 37(6), the Tribunal is satisfied that the decision in its operation in relation to the appellant was fair and reasonable in the circumstances. As the Full Court noted in par 33: "Whether a decision, or its operation in relation to a person, is fair and reasonable in the circumstances involves a value judgment, the making of which is committed to the Tribunal. The insurer's decision involved elements of fact, degree, opinion or judgment. A decision involving those elements is capable of being characterised as being unfair or unreasonable." 29 The submissions of the appellant is that the Tribunal had to decide, first, whether the appellant was totally and permanently disabled as a necessary step along the way in concluding whether the Trustee's decision was fair or reasonable. I do not agree. It would be an error if the Tribunal directed itself that the task it had to perform was whether, in its opinion, the respondent was totally and permanently disabled, rather than the correct question of whether the decision complained of was fair and reasonable in the circumstances: National Mutual Life Association of Australia Ltd v Jevtovic, (Sundberg J, 8 May 1997, unreported). 30 Reading the reasons of the Tribunal fairly, I reject the view that all the Tribunal did was reach a conclusion that the decision by the Trustee was one which was open to it. I do not read the statement: "There was sufficient evidence that the complainant was likely to be able to work again in a job for which he was reasonably qualified by education, training and experience" as being an assessment merely of whether a conclusion to that effect was open to the Trustee. This is not a case, in my opinion, where the Tribunal was saying merely that there was evidence to support the Trustee's conclusion. In my opinion, what the Tribunal was saying was that on all of the evidence before it, the decision of the respondent was fair and reasonable in the circumstances. That was in truth the function of the Tribunal under s 37(6) of the Act. 31 Allsop J observed in Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330: "The Tribunal's task is not to engage in ascertaining generally the rights of the parties, nor is it to engage in some form of judicial review of the decision of the trustee or insurer. Rather it is to form a view, from the perspective of the trustee or insurer, as to whether the decision of either was (recognising the overriding framework given by the governing rules and policy terms, respectively) unfair or unreasonable." It is not for the Tribunal, in my opinion, to ask itself whether the Trustee's decision was the correct or preferable one. Nor is that a necessary enquiry before asking whether the Trustee's decision was a decision which was fair and reasonable in the circumstances. 32 In my judgment, the Tribunal did not misdirect itself about the task it had to perform. 33 It seems to me, also, that the fact that the Tribunal was not persuaded by the report of Dr Adam does not mean it was not before it, or that the Tribunal did not consider it. It is clear from the Tribunal's statement of reasons that the report of Dr Adam was a relevant consideration, but the Tribunal was unpersuaded by it. As to the statement by the Tribunal that the medical opinion was quite consistent in suggesting there were occupations that the complainant could undertake having regard to his significant qualifications and experience, Dr Adam expressed the belief that the alternative occupations proposed for Mr Cameron did not fall within the definition of occupations for which the appellant was fit by reason of education, training or experience. Dr Adam's opinion in this respect is not really a medical opinion, but a view as to the adequacy of the need for further training or the depth of study that Mr Cameron has in a particular field. 34 Finally, in my opinion, the reasons of the Tribunal exposed its reasoning process, and there is no error of law for inadequacy of reasons in this case. 35 I have much sympathy for the plight of the appellant, but it is not for the Court, anymore than for the Tribunal, to substitute whatever might be its view on the merits, for that of the Trustee. 36 In my judgment, none of the grounds of appeal is made out. The application must be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .