Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2012] QSC 211

EQUITY - TRUSTS AND TRUSTEES - PROCEEDINGS BETWEEN TRUSTEES AND BENEFICIARIES OR THIRD PARTIES - where the applicant was injured whilst working and received income protection payments - where the applicant applied for a total and permanent disablement benefit under the insurance administered with the work superannuation scheme - where the application was denied by the Board of trustees administering the scheme on the basis the disablement related to an undeclared pre-existing medical condition - where the Board's decision was reviewed by the Superannuation Complaints Tribunal - where the applicant applies under s 8 Trusts Act 1973 (Qld) for review of the Board's decision for alleged breach of duty as trustees- whether the review of the Board's decision by the Tribunal precludes this application in relation to the Board's process of decision making

PROCEDURE - JUDGMENTS AND ORDERS - IN GENERAL - CLASSIFICATION - FINAL AND INTERLOCUTORY - where the respondent applies under r 16 of the Uniform Civil Procedure Rules 1999 (Qld) for orders either striking out, setting aside or permanently staying the proceeding - whether the applicant has no real prospect of succeeding on any of the allegations - whether there should be a final hearing of the application

Superannuation (Resolution of Complaints) Act 1993 (Cth), s 14, s 20, s 32, s 34, s 37, s 46

Superannuation Industry (Supervision) Act 1993 (Cth), s 350

Superannuation (State Public Sector) Act 1990 (Qld), s 3, s 12, s 41

Trusts Act 1973 (Qld), s 8

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 14, r 16, r 293

Attorney-General (Cth) v Breckler (1999) 197 CLR 83, considered

Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8, considered

Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254, considered

LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105, considered

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, considered

Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119; [2011] 2 Qd R 114, considered

Rusterholz v Board of Trustees of the State Public Sector Superannuation Scheme [2011] QSC 276, considered Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118, considered

[1] The respondent Board which is established under s 3 of the Superannuation (State Public Sector) Act 1990 (Qld) (the Act) administers the State Public Sector Superannuation Scheme (known as QSuper) pursuant to the Superannuation (State Public Sector) Deed 1990 (the deed). The applicant who is a former member of the scheme applies for declaratory and other relief in relation to a decision by the Board made on 25 September 2008 to decline his application for a total and permanent disablement (TPD) benefit. The applicant's relief is based on a claim that the Board breached its duties as trustee by rejecting his claim for a TPD benefit.

[2] The Board applies pursuant to r 16 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) or the inherent jurisdiction of the court for orders either striking out, setting aside or permanently staying the proceeding. The grounds relied on by the Board are that the applicant has exercised his rights for an independent review of the Board's decision pursuant to the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Complaints Act) which affirmed the Board's decision as fair and reasonable, and/or the applicant seeks to re-litigate in this proceeding issues that are hopeless, and the grounds relied on to review the Board's decision as a trustee have no prospects of success.

[3] The Act applies to the State Public Sector Superannuation Fund. Pursuant to s 12 of the Act the scheme under the deed was established for the provision of superannuation, retirement, provident or other similar benefits payable from the fund.

[4] "Disablement" is defined in s 4 of the deed to mean "any mental or bodily injury, illness, disease or infirmity." The definition of "total and permanent disablement" is:

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

[5] The functions and duties of the Board are set out in s 12 of the deed:

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

[6] The benefit that is payable on total and permanent disablement is set out in s 46(1) of the deed:

"(1) Where an employed member becomes totally and permanently disabled before attaining the age of 55 years the board shall credit to the member's accumulation account a percentage of final salary comprised of-

(a) the member's compulsory contribution benefit; and

(b) the member's prospective membership benefit if payable; and

(c) the member's basic benefit."

[7] The member's prospective membership benefit where the member has fewer than 10 years contributory membership is specified in s 47(1)(c) of the deed:

"(1) An employed member's prospective membership benefit shall be the applicable percentage as set out in schedule 1 multiplied by prospective membership and shall be payable where-

(c) (i) the member has fewer than 10 years contributory membership; and

• (ii) the member did not lodge a personal medical statement at or about the time of entry to membership; and
• (iii) it is established to the satisfaction of the board that the total and permanent disablement or death was not related to a condition that ought reasonably to have been disclosed had a personal medical statement been submitted at or about the time of entry to membership."

[8] The reference to "personal medical statement" in s 47(1)(c)(ii) of the deed refers to a personal medical statement in the form provided by the Board from time to time and furnished by an employed member to the Board: s 63(1) of the deed.

[9] The Board is required under s 77 of the deed to keep an accumulation account for each member. Under s 84 of the deed, the Board must provide insurance against the debt or total and permanent disablement of each person who becomes an employed member on or after 1 July 1995. It is for the Board to decide the terms on which the insurance is provided: s 86 of the deed. As the applicant had that insurance, he did not need to rely on s 47(1)(c) of the deed. The Board referred to the scheme under the deed in order to show the consistency in terms between the deed and the insurance terms.

The circumstances of the applicant's claim for the TPD benefit

[10] The applicant was diagnosed with schizophrenia in 1994 when he was 29 years old. After treatment and with medication, he entered a stable phase. He was interviewed for a position with the Department Primary Industry (DPI) and disclosed that he suffered from schizophrenia and of the current status of his condition. It was determined that he was able to carry out the duties of a field assistant with DPI in its Fire Ant Eradication Program and the applicant commenced employment with DPI on 10 September 2001.

[11] The applicant automatically became a member of the scheme entitled to four units of Death and TPD Insurance. In December 2001, the applicant applied for and was given 17 additional units of Death and TPD Insurance. The applicant did not lodge a personal medical statement with the Board.

[12] It is common ground that the terms of the insurance that applied to the applicant are those entitled "QSuper Insurance for Accumulation Accounts and Additional Insurance for Defined Benefit Accounts" dated 18 December 2001 with a commencement date of 1 May 2000. Under those terms, any term which is defined in the Act or the deed bears a corresponding meaning in the document containing the insurance terms, unless otherwise defined. Under clause 4.1 of the terms, but subject to clause 6 and the maximum cover specified in clause 4.1, the amount of death and TPD insurance cover for an insured member at the date of death or TPD is to be determined in accordance with schedule 1. The applicant claims to be entitled to $991,200 as at 23 June 2003 calculated in accordance with schedule 1 together with interest from that date.

"An insured member's death and total and permanent disablement benefit shall become payable on the insured member's death or upon total and permanent disablement. The date on which an insured member shall be considered by the board to have suffered total and permanent disablement will be:

(a) where an insured member terminates employment after a determination by the board that a total and permanent disablement benefit is payable, the date of termination of employment of the insured member; or

(b) where an insured member terminates employment prior to a determination by the board that a total and permanent disablement benefit is payable, the date which is 4 weeks after the date of termination of employment of the insured member."

"No insurance benefit will be paid for a claim unless:

(a) the member has been an insured member for 10 continuous years or more; or

(i) the member has been an insured member for fewer than 10 continuous years; and

(ii) the member lodged a personal medical statement at or about the date on which the member became an insured member; and

(iii) the board is of the opinion that the total and permanent disablement or death or temporary disablement was not related to a condition that was disclosed on the personal medical statement or which in the opinion of the board should reasonably have been disclosed on the personal medical statement; or

(i) the member has been an insured member for fewer than 10 continuous years; and

(ii) the member did not lodge a personal medical statement at or about the date on which the member became an insured member; and

(iii) it is established to the satisfaction of the board that the total and permanent disablement or death or temporary disablement was not related to a condition that ought reasonably to have been disclosed had a personal medical statement been submitted at or about the date on which the member became an insured member."

"Where an insured member increases the number of units of insurance, any increase in benefit resulting from the increased number of units will not be paid unless:

(a) the member has held the increased number of units for 10 continuous years or more; or

(i) the member has held the increased number of units for fewer than 10 continuous years; and

(ii) the member lodged a personal medical statement at or about the date of the increase in the number of units; and

(iii) the board is of the opinion that the total and permanent disablement or death or temporary disablement was not related to a condition that was disclosed on the personal medical statement or which in the opinion of the board should reasonably have been disclosed on the personal medical statement at or about the date of the increase in the number of units; or

(i) the member has held the increased number of units for fewer than 10 continuous years; and

(ii) the member did not lodge a personal medical statement at or about the date of the increase in the number of units; and

(iii) it is established to the satisfaction of the board that the total and permanent disablement or death or temporary disablement was not related to a condition that ought reasonably to have been disclosed had a personal medical statement been submitted at or about the date of the increase in the number of units."

[16] As a field assistant, the applicant worked as part of a small team that would search for fire ants by inspecting domestic and commercial premises. On 2 January 2002 in the course of carrying out his duties the applicant was involved in an incident concerning two Rottweiler dogs. The applicant was able to continue working. He ceased work with DPI on 8 July 2002. The applicant made a claim dated 13 September 2002 for income protection benefits on the basis that he damaged his right foot when he was running away from vicious dogs, tried to jump a fence and fell. That claim was successful and he commenced receiving income protection payments as from 26 July 2002.

[17] On 12 February 2003 the applicant applied for the TPD benefit. He described his medical condition that prevented him from working as "damaged body anxiety stress phobic nerves feet". On 26 May 2003 the delegate of the Board determined that as a result of schizophrenia the applicant was unlikely to work again and was therefore totally and permanently disabled, but he was not entitled to the TPD benefit because the evidence did not establish the schizophrenia was not related to a medical condition existing before he became a member. The applicant was retired from DPI on 23 June 2003.

[18] The applicant appealed to the Board against the decision of the delegate. On 31 August 2004 the Board affirmed the decision of the delegate for reasons expressed in similar terms to the delegate's decision. The Board therefore accepted that the applicant was totally and permanently disabled, and the focus of its decision was on whether that disablement was related to the schizophrenia.

[19] On 5 November 2004 the applicant lodged a complaint with the Superannuation Complaints Tribunal (the Tribunal) under s 14 of the Complaints Act in respect of the Board's decision. Under s 14(6A) of the Complaints Act the Tribunal was unable to deal with a complaint, unless it was made within two years after the making of the decision to which the complaint related. The applicant's complaint was therefore lodged within time.

[20] The Tribunal's power to deal with a complaint is restricted, if the subject matter of the complaint was subject to court proceedings, as set out in s 20 of the Complaints Act:

"(1) The Tribunal cannot deal with a complaint if a proceeding has been begun in a court about the subject matter of the complaint and the proceedings has not been finally disposed of.

(2) If, after a complaint has been made to the Tribunal, a proceeding is begun in a court about the subject matter of the complaint, the Tribunal cannot deal with the complaint until the proceeding is finally disposed of."

[21] The constitutional validity of the Tribunal was considered in Attorney-General (Cth) v Breckler (1999) 197 CLR 83 where it was held that in making a determination the Tribunal was not purporting to exercise the judicial power of the Commonwealth. It was observed in the judgment of the plurality at [33] that:

"Section 20 also recognises the intention stated in s 350 of the Supervision Act that the regulatory scheme not operate to the exclusion of the law of a State or Territory to the extent that that law is capable of operating concurrently with it."

[22] The reference to s 350 is to the Superannuation Industry (Supervision) Act 1993 (Cth) which states:

"It is the intention of the Parliament that this Act is not to apply to the exclusion of a law of a State or Territory to the extent that that law is capable of operating concurrently with this Act."

[23] Under s 32 of the Complaints Act the Tribunal organises a review meeting for the purpose of reviewing the decision and must give notice to the parties of the review meeting inviting written submission. Unless the Tribunal thinks it is necessary to permit the parties to make oral submissions to the Tribunal at the review meeting, the Tribunal conducts the review meeting without oral submissions from the parties: s 34 of the Complaints Act.

[24] The Tribunal's powers in respect of a complaint under s 14 are set out in s 37 of the Complaints Act. Under s 37(1), the Tribunal has all the powers, obligations and discretions conferred on the trustee for the purpose of reviewing a decision of the trustee of a fund and must make a determination in accordance with s 37(3). The possible determinations under s 37(3) of the Complaints Act are affirming the decision, remitting the matter to the trustee, insurer or other decision-maker for reconsideration in accordance with the directions of the Tribunal, varying the decision, or setting aside the decision and substituting its own decision. The following provisions of s 37 of the Complaints Act govern the exercise of the Tribunal's determination-making power:

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

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

(6) The Tribunal must affirm a decision referred to under subsection (3) if it is satisfied that the decision, in its operation in relation to:

(a) the complainant; and

(b) so far as concerns a complaint regarding the payment of a death benefit - any person (other than the complainant, a trustee, insurer of decision-maker) who:

(ii) has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person having an interest in the death benefit;

was fair and reasonable in the circumstances."

[25] The Tribunal conducted its review of the Board's 2004 decision on the papers and received written submissions from the applicant and the Board. The applicant obtained a report dated 22 October 2005 from psychiatrist Dr de Leacy and provided it to the Tribunal. On 2 October 2006 the Tribunal affirmed the Board's decision. The Tribunal accepted that the applicant had a post traumatic stress disorder (PTSD) or anxiety disorder after the dog incident, but that it was sufficiently related to his schizophrenia such as to render the decision of the Board fair and reasonable in its operation in relation to the applicant in the circumstances. The Tribunal stated:

"Based on the Tribunal's analysis of the medical reports, the Tribunal is satisfied that the Trustee's decision to decline payment of the TPD benefit to the Complainant on the grounds that, on the balance of probabilities, his medical condition, be it PTSD or an anxiety disorder, was related to the pre-existing, long-standing paranoid schizophrenia was fair and reasonable, given the conflicting psychiatric opinions."

[26] Under s 46(1) of the Complaints Act, a party may appeal to the Federal Court, on a question of law, from the determination of the Tribunal. The applicant appealed against the Tribunal's decision to the Federal Court. That appeal was dismissed on 14 December 2007: Edington v Superannuation Complaints Tribunal [2007] FCA 1989. An appeal to the Full Court of the Federal Court was allowed by consent on 15 May 2008, as the Board conceded that the Tribunal had made an error in concluding that a relationship had been demonstrated between the applicant's schizophrenia as a pre-existing medical condition and the post traumatic stress disorder which was the basis of the claim under the relevant policy. The Tribunal's decision was set aside and the matter remitted to the Board: Edington v Superannuation Complaints Tribunal [2008] FCAFC 78. The court identified at [4] that:

"The consequence will be that the matter will go back to the Board, at which time the report of Dr De Leacy that was not before the Board when it made its decision, will be before the Board and it can make a decision fully informed about the evidence relevant to the appellant's condition."

[27] As the Tribunal's 2006 decision was set aside, it is of no further relevance.

[28] When the matter was before the Board again, it had before it Dr de Leacy's report dated 22 October 2005 and medical reports requested by QSuper from psychiatrist Dr Reddan dated 9 March 2006 and 15 July 2008. The Board had an opinion from barrister Mr McLeod which it did not disclose in its decision on the basis that it was subject to legal professional privilege. The Board also considered letters from the applicant's solicitors dated 30 June, 4 and 18 August and 11 September 2008. The applicant's solicitors were of the view that the Full Court of the Federal Court did not contemplate that fresh evidence would be obtained by the Board before reconsidering the matter. They objected to Dr Reddan's report dated 15 July 2008. The applicant therefore elected not to put further evidence before the Board, but his solicitors' submissions in the letter dated 11 September 2008 addressed deficiencies they perceived in Dr Reddan's report dated 15 July 2008 and argued that the applicant had been left with a chronic PTSD, because QSuper decided to have him retired instead of assisting in treating the PTSD. Despite the applicant's solicitors' submissions, the Board was not limited to acting on the evidence that was before the Full Court, if there were further evidence available or required (such as Dr Reddan's 2008 report) to deal properly with the issue it had to decide.

[29] The Board also had before it a submission prepared by the Manager Legal Review of QSuper for the purpose of making its decision on 25 September 2008. That submission set out the question to be resolved as "Was Mr Edington's total and permanent disablement related to a pre-existing condition pursuant to the QSuper Insurance Terms?" The submission summarised the background of the claim and set out clauses 6.2 and 6.5 of the insurance terms. The evidence to be considered was in an appendix to the submission. The submission then summarised some of the evidence and then proposed the options for the Board's decision. Option A was a finding of total and permanent disablement that was related to pre-existing schizophrenia which should reasonably have been disclosed in a personal medical statement submitted at or about the time the applicant became an insured member and when he increased his insurance which would result in the Board affirming its previous decision that the applicant was not entitled to the insurance benefit for his 21 units. Proposed material findings for option A comprising 19 numbered paragraphs were then set out in the submission. Option B was a determination that the applicant's symptoms of stress were due to his reaction from the dog incident in 2002 and caused his total and permanent disablement, and he was entitled to the insurance benefit for his 21 insurance units.

[30] On 25 September 2008 the Board approved option A and affirmed its previous decision that the applicant was not entitled to the insurance benefit for his 21 units after further review of the evidence, as the Board determined that:

"1. Mr Edington was totally and permanently disabled pursuant to the QSuper Trust Deed.

1. Mr Edington's disablement was related to his schizophrenia which should reasonably have been disclosed had a personal medical statement been submitted at or about the time he became an insured member with 4 units ie 10 September 2001 and when he increased his insurance by 17 units ie 10 December 2001."

[31] The Board made material findings in terms of the 19 numbered paragraphs in the submission made by QSuper. Those findings identified the incident on 2 January 2002 as the cause of the applicant's injury to his right foot. The Board expressly noted diagnoses and comments made by the applicant's treating psychiatrist Dr Butler in his report dated 13 January 2003, consultant physician in occupational and environmental medicine Dr Olsen in his report dated 2 April 2003, Dr Reddan's report dated 3 May 2003, orthopaedic surgeon Dr Jameson's report dated 9 May 2003 and Dr de Leacy's report dated 22 October 2005.

[32] The Board noted that Dr Butler diagnosed schizophrenia paranoid sub type (which was first diagnosed in 1996) with ongoing residual negative symptoms and an anxiety disorder and considered that the applicant's work options had been drastically reduced and he would be suitable for part time work involving predominantly manual duties. The Board referred to treating psychologist Ms Jooste's report dated 11 March 2003 in which she expressed the opinion that, with suitable counselling and therapy, the applicant should make a full recovery from the traumatic effects of the Rottweiler incident and that his condition of schizophrenia would continue as before.

[33] The Board's findings recorded that Dr Olsen made a primary diagnosis of an injury to the applicant's right foot as well as his back and neck, and a secondary diagnosis of schizophrenia and that the applicant was "struggling with his psychiatric illness" and he could not predict the short term progress, but was of the opinion that the applicant qualified for total and permanent disability.

[34] The Board set out Dr Reddan's opinion from her report dated 3 May 2003 that the applicant was permanently unable to perform the duties as a field assistant and the most significant issue which prevented him from returning to that position was the residual symptoms of schizophrenia, the applicant's anxiety around dogs would not prevent him from returning to some form of work, and the negative features of the applicant's schizophrenia on its own were of sufficient severity to impair the applicant's capacity for sustained work.

[35] The report noted that the applicant "was extremely defensive about his schizophrenia to Dr Reddan and apart from admitting that he may have been hospitalised, once or twice, he refused to provide any details."

[36] The report noted that Dr de Leacy stated that "although Mr Edington's anxiety symptoms may result from him being more susceptible as a result of his schizophrenia, his current symptoms of stress ... were not due to schizophrenia but due to a severe stress reaction from the dog incident in 2002."

[37] The Board noted in paragraph 13 of the findings that Dr Butler had recorded in his report that when the applicant was seeking reemployment he "described a considerable improvement in his physical symptomatology and that he no longer had the marked anxiety associated with exposure to dogs." The Board noted in paragraph 14 of the findings that the applicant subsequently reported to Dr de Leacy an extreme fear of dogs and that Dr de Leacy stated that the applicant "had a range of symptoms that fulfilled the DSM IV criteria for post traumatic stress disorder by having the requisite number of symptoms from each category of intrusive symptoms, avoidance symptoms and hyperarousal symptoms." The Board then set out what Dr Reddan stated in her report dated 15 July 2008 that "the dog incident in 2002 was not a severely traumatic event for a diagnosis of post traumatic stress disorder" and that Dr Reddan stated "it was the schizophrenia which prevented Mr Edington from successfully maintaining a longitudinal work history."

[38] In paragraph 16 of the findings the Board expressed the preference for the reasoning outlined in Dr Reddan's reports "because of the different medical histories given by Mr Edington to Dr Butler and Dr De Leacy." That particular finding was the focus of the subsequent proceedings under the Complaints Act, although the reference to medical histories appears to refer back to the findings in paragraphs 13 and 14.

[39] On 15 January 2009 the applicant lodged a complaint with the Tribunal on the ground that the Board's decision was unfair and unreasonable. The Tribunal conducted the review of the Board's decision on the papers and received submissions from the applicant and the Board. The applicant lodged with the Tribunal extensive written submissions to which some documents were attached which comprise exhibit 1 in this proceeding. The attachments included Ms Jooste's report dated 11 March 2003, Dr Butler's reports dated 13 January 2003 and 15 July 2004 and QSuper's letter dated 26 June 2008 to Dr Reddan requesting her reasons as to why Dr de Leacy's report did not cause her to alter the opinions expressed in her report dated 3 May 2003.

[40] The applicant's written submissions to the Tribunal advanced detailed arguments as to why the Board failed to have proper regard to the opinions of Dr Butler and Ms Jooste and the unsoundness of reasoning resulting in the Board's preference for Dr Reddan's opinion over Dr de Leacy's opinion. The submissions treated the Board's statement in paragraph 16 of its findings as finding that "there were seemingly different versions given by the complainant to Dr Butler and Dr De Leacy with regard to the intensity of his fear of dogs." The submissions suggested that a careful analysis of Dr Butler's reports and Dr de Leacy's report and the circumstances in which they were given would show there was no anomaly and result in the conclusion that the applicant had a PTSD as diagnosed by Dr de Leacy, in the absence of a specific phobia regarding dogs, which was consistent with Dr Butler's report. The submissions also dissected Dr Reddan's criticisms of Dr de Leacy to advance the submission that they were without foundation and that Dr Reddan's opinions were based on erroneous assumptions. The ultimate submission was that Dr Reddan's opinions could not have provided a legitimate justification for rejecting the opinions of Dr de Leacy, as supported by those of Dr Butler and Ms Jooste, and little or no weight could reasonably have been placed on Dr Reddan's opinions on a proper analysis of the material on which they were based.

[41] The Tribunal in its reasons summarised the medical reports, set out the essence of the respective submissions made by the applicant and the Board, and then explained the results of its deliberations. The Tribunal considered at [102] that the history given by the applicant in late 2005 to Dr de Leacy differed significantly to that given by to Drs Butler and Reddan. The Tribunal concluded at [110]:

"The Tribunal accepts that the Complainant experienced an anxiety reaction/disorder in response to the dog incident and that his response may have been exaggerated by his pre-existing schizophrenia. The majority of the psychiatric evidence indicates that his anxiety disorder was temporary and had essentially resolved by mid 2003 based on the medical history proffered by the Complainant to his treating psychiatrist at that time. There is no evidence that he was subsequently re-exposed to a similar or new event which might have reactivated his anxiety or caused PTSD. Thus his accepted incapacity for any form of work arises from his long-standing schizophrenia."

[42] On 11 September 2009 the Tribunal affirmed the Board's decision on the basis that it was satisfied that it was fair and reasonable, given the conflicting psychiatric opinions and the Tribunal's preference for the opinions of Dr Butler and Dr Reddan.

[43] The applicant successfully appealed to the Federal Court and the Tribunal's decision was set aside by Reeves J: Edington v Superannuation Complaints Tribunal [2010] FCA 504. Reeves J considered (at [36]) that the Tribunal's role under s 37 required it to identify the reasoning process that the Board employed to reach its decision and to assess whether, having regard to that reasoning process, the decision was fair and reasonable. Because the Board had noted that the applicant had given different medical histories to Dr Butler and Dr de Leacy, Reeves J considered (at [39]) that the Tribunal should have considered the different medical histories that the Board said the applicant had given to Dr Reddan on the one hand and to Drs Butler and de Leacy on the other and determined whether, and how, those different histories affected the cogency of the various opinions given, to determine whether it was fair and reasonable for the Board to accept and rely upon Dr Reddan, but not the other two doctors. Reeves J noted (at [40]) that whereas the Board accepted and relied upon Dr Reddan's opinions in preference to those of Drs Butler and de Leacy, the Tribunal accepted and relied upon the opinions of both Drs Reddan and Butler, but did not ask the question whether it was fair and reasonable for the Board not to accept Dr Butler's opinions when the Tribunal thought they should be accepted and relied upon. Reeves J raised (at [47]) that the Tribunal should have examined whether the Board had due regard to the context in which the various medical opinions were expressed. Reeves J therefore concluded (at [51]) that the Tribunal committed an error of law by not properly exercising its powers of review of the Board's decision in accordance with s 37 of the Complaints Act.

[44] The Board appealed to the Full Court of the Federal Court and the appeal was allowed and in lieu of the orders made by the Federal Court, it was ordered that the appeal from the Tribunal's decision be dismissed: Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8. The Full Court considered (at [42] and [71]) there were fundamental defects in the appeal from the Tribunal to the Federal Court in that the notice of appeal did not posit questions of law for determination by the court as required by s 46 of the Complaints Act, but proceeded to hear the appeal on the basis that the issue that was determined by Reeves J about whether the Tribunal misdirected itself as to the nature of its powers of review could be characterised as a question of law. Kenny and Lander JJ (with whose reasons Logan J generally agreed) stated (at [53]) that the Tribunal in discharging its functions under s 37 of the Complaints Act must make its own assessment of the evidence and other information before it, in order to determine whether or not it is satisfied that the decision under review was, in its operation in relation to the applicant, fair and reasonable in the circumstances.

[45] Kenny and Lander JJ then stated (at [54]):

"Thus, we do not consider that it was incumbent on the Tribunal to focus on the reasoning that supported the decision of the Board of Trustees. In deciding whether the decision of the Board of Trustees was relevantly fair and reasonable, the Tribunal was required, plainly enough, to consider the decision the Board of Trustees had made; and the Board's reasoning process, as outlined in its written statement, was necessarily part of the information before the Tribunal. The Tribunal's own reasons for decision make it clear that the Tribunal was well aware of the Board's reasoning process, including the fact that the Board of Trustees preferred the evidence of Dr Reddan to that of Dr Butler and Dr de Leacy because of the different histories given to them. However, the Tribunal undertook its own assessment of the evidence and information before it, as it was required to do; and, as a consequence, made its own findings with a view to determining whether the decision under review was relevantly fair and reasonable, as it was entitled to do. The Tribunal's findings differed in some respects from those of the Board and so did its reasoning. Since the Tribunal was undertaking a hearing de novo for the purpose of determining for itself whether or not the decision (as opposed to the reasoning) of the Board of Trustees was, in its operation in relation to the complainant, fair and reasonable, the Tribunal was not obliged to scrutinize the reasoning process of the Board; but, rather, was required to make its own decision on the material before it as to whether the decision made by the Board was fair and reasonable in its operation in relation to Mr Edington. In so doing, it might pursue a process of reasoning that it considered best took account of the facts as it found them, bearing in mind the trust deed, the insurance terms and the law as the Tribunal understood it: compare the Complaints Act, s 37(5). The Tribunal was not required to take the extra step of comparing the Board's reasoning process with its own."

[46] Kenny and Lander JJ found that the Tribunal did not commit any error of law in the discharge of its functions under s 37 of the Complaints Act and, in particular (at [59]):

"The Tribunal's conclusion that the medical condition in the nature of an anxiety disorder attributable to the dog incident was supported by Dr Butler's evidence. Its conclusion that Mr Edington's incapacity for work was related to his pre-existing schizophrenia was supported by Dr Reddan's evidence. The Board of Trustees had also accepted Dr Reddan's evidence in this latter regard. In substance, in concluding as it did, the Tribunal accepted different aspects of the evidence of the medical opinions given by these two medical practitioners. It was open to the Tribunal to approach the matter in this way and, on the basis of Dr Reddan's evidence, to find that Mr Edington's total and permanent disability was related to a pre-existing condition of schizophrenia. It was therefore open to the Tribunal to make the finding it did, and no error of law is disclosed in this regard.

[47] The result of the 2011 Full Court judgment was that the Tribunal's 2009 decision remained in effect. Section 41 of the Complaints Act deals with the operation of a determination made by the Tribunal. Unless the Tribunal specifies otherwise, it comes into effect immediately upon the making of the determination.

[48] After the applicant had exhausted his rights under the Complaints Act, he commenced this proceeding by originating application on 12 September 2011, relying on s 8 of the Trusts Act 1973 (Qld) (Trusts Act). The applicant seeks a declaration that the decision made by the Board on 25 September 2008 was void for breach of fiduciary duty by it as trustee, that it be set aside, and that a substitute decision be made by order of the court, recognising that when the applicant ceased work with DPI on 23 June 2003 he was totally and permanently disabled within the meaning of s 4 of the deed and the insurance terms issued pursuant to the deed, the applicant's total and permanent disablement was not related to his pre-existing schizophrenia, and that the applicant be paid his full TPD entitlement.

[49] In accordance with directions given by the court, the applicant filed points of claim, the Board filed points of defence, and the applicant filed a reply to the points of defence. These documents are in the nature of pleadings.

[50] The points of claim raise the construction to be given to clauses 4, 6.2 and 6.5 of the insurance terms. The applicant claims that, as a consequence of the dog incident, he developed PTSD/anxiety disorder and it worsened until he ceased work on 8 July 2002 because of the PTSD/anxiety disorder and his physical injuries and, as a result of not being able to meet the expense of treatment for the PTSD, it became chronic. The applicant claims that his PTSD is due to the PTSD/anxiety disorder and is not related to his pre-existing schizophrenia condition.

[51] The applicant's allegations that the Board failed to exercise its duties as trustee in accordance with the law can be summarised as:

(a) the Board did not carry out a real and genuine consideration of the evidence because it relied on an inadequate record of the evidence, as it did not have before it the whole of the file that was before the Full Court of the Federal Court on 15 May 2008;

(b) the Board abrogated the decision making function vested in it when making the 25 September 2008 decision, as it adopted verbatim the reasons submitted to it by QSuper Limited and failed to conduct any analysis of the submissions made on behalf of the applicant, and was tainted by the bias and bad faith of QSuper;

(c) the Board misapplied the deed and the insurance terms causing it to accept flawed evidence and to ignore probative evidence, so that any consideration that it carried out could not be said to have been real or genuine;

(d) the Board accepted the reports of Dr Reddan which were flawed as Dr Reddan failed to identify a date when the applicant became totally and permanently disabled, Dr Reddan relied on a written position description for the applicant's job as a field assistant, instead of consideration what he actually did in the role, referred to the wrong dog incident in making her assessment, and failed to identify any fluctuation in the applicant's pre-existing schizophrenia condition referable to the dog incident;

(e) the Board failed to give appropriate weight to the opinions of the applicant's treating doctors on the basis of the different histories given to them, when on close analysis there was no inconsistency between the opinions based on the histories given by the applicant;

(f) the Board failed to obtain additional evidence to determine the nature of the applicant's performance at work with DPI prior to the dog incident in light of conflicting medical reports.

[52] In its points of defence, the Board claims that the applicant by seeking to have the 2008 decision reviewed by the Tribunal elected to be bound by the Tribunal's decision, this proceeding is an abuse of process or a collateral attack on the determination of the Tribunal and the 2011 Full Court judgment, and the matters that are raised in this proceeding could and should have reasonably been raised before the Tribunal. The Board asserts that its 2008 decision is no longer the operative decision, as the Tribunal upon a de novo hearing affirmed the Board's decision on the basis that it was fair and reasonable in the circumstances. The Board denies that it did not carry out a real and genuine consideration of the evidence and puts in issue the allegations to that effect made by the applicant and claims that it properly assessed and weighed the reports of Drs de Leacy and Butler. The Board denies that there was any obligation on the Board to obtain information as to the applicant's performance at work prior to 2 January 2002, in order to assess the effect of the pre-existing schizophrenia condition on the applicant's work. After the Board filed its points of defence, it filed the application on 23 December 2011 that seeks to summarily dispose of the proceeding.

[53] As the proceeding was commenced by originating application and no order was made under r 14 of the UCPR that the proceedings continue as if started by claim, the Board was unable to rely on r 293 of the UCPR to pursue summary judgment. It has therefore based its application to bring the proceeding to an end summarily on the court's inherent jurisdiction to control its own processes to prevent an abuse of process or the jurisdiction conferred by r 16 of the UCPR, but the application is in substance seeking summary judgment. In view of the fact that points of claim, points of defence and a reply to the points of defence have been filed and served which articulate the issues, the approach to determining whether the proceeding should be brought to an end summarily should be no less stringent than that provided under r 293.

[54] Under r 293(2) of the UCPR, the two conditions of which the court must be satisfied before it can give judgment for a defendant is that the plaintiff has no real prospect of succeeding on its claim and there is no need for a trial of the claim. Although r 293 (and its counterpart r 292) are modern procedural rules for applying for summary judgment in the context of the philosophy of the UCPR found in r 5, authoritative statements about exercising caution in terminating a proceeding summarily remain applicable: Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24] and [60], LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105 at [29], and Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119; [2011] 2 Qd R 114 at [80]- [81]. Although the provision considered in Spencer was that applying in the Federal Court where the test for summary judgment is "no reasonable prospect," rather than "no real prospect," the comments in the judgments in Spencer about the exercise of caution in dismissing an action summarily were intended to apply generally in respect of the procedure of summary judgment.

[55] At the commencement of the hearing I invited the parties to consider whether I should hear the matter as a final hearing, rather than the application for summary judgment. It appeared to me that the parties had placed before the court extensive material that was relevant to the final hearing and that for the purpose of the application I had to traverse much of the ground that would be considered in the final hearing. The applicant was concerned, however, that not all the documents that might be necessary for the final hearing were before the court and could not say with confidence that there might not be further evidence. The applicant's solicitors had obtained disclosure of 247 folios from DPI prior to making the submissions to the Tribunal in 2009, but noted that FOI access to 25 folios had been declined by DPI. The applicant's solicitors did not identify in specific terms any outstanding documents or evidence that the applicant intended to obtain for this proceeding, other than raising the possibility in general terms of expert evidence and putting before the court parts of the applicant's personnel file. I proceeded to hear the submissions relevant to whether the Board should obtain the summary relief sought in its application on the basis of the material that had been filed in the proceeding.

[56] The Board's submissions reflected its points of defence, submitting that it is oppressive for the applicant to exhaust his rights under the Complaints Act and on appeal, "vexing" the Board on each occasion, before seeking to review the same exercise of discretion under the Trusts Act. It is submitted that the applicant is seeking to canvass in this proceeding the same issues already canvassed and resolved before the Tribunal and the Full Court of the Federal Court. The Board submits that, on the basis of the need for finality of litigation and to avoid collateral attack of the Tribunal's 2009 determination that was upheld in the Full Court of the Federal Court, there is no real prospect that, if the proceeding were allowed to continue, the discretion to grant declaratory relief would be exercised. The Board submits that, in any case, the complaints made about the failures of the Board in its decision making process are doomed to fail. The Board relies on the circumstance that that the entitlement to a benefit under clauses 6.2(c)(iii) and 6.5(c)(iii) of the insurance terms is conditioned on it being established to the satisfaction of the Board that the TPD was not related to a condition that ought reasonably to have been disclosed had a personal statement been submitted when the applicant became an insured member or increased the number of units of insurance.

[57] The applicant's written submissions are primarily directed to why the applicant should be allowed to proceed in this proceeding after exercising his rights under the Complaints Act. The applicant submits that it was appropriate for him to exhaust his rights under the Complaints Act, before bringing the application under s 8 of the Trusts Act, because of the operation of s 20 of the Complaints Act.

[58] The applicant seeks to distinguish between the respective processes under the Complaints Act and s 8 of the Trusts Act and that the review by the Tribunal which was an administrative review of a limited nature to ascertain whether the Board's decision was fair and reasonable in the circumstances did not require the Tribunal to consider the process by which the Board reached its decision, as recognised in the 2011 Full Court judgment at [54].

[59] The applicant relies on the confirmation by the High Court in Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254 at [66] that the decision of a trustee of a superannuation fund may be reviewable for want of "properly informed consideration" on the basis that if the consideration is not properly informed it is not genuine. The applicant relies on the observations made by Reeves J in the course of his 2010 decision about possible deficiencies in the Board's reasoning processes and submits there is a serious question to be tried on whether the Board breached its duties as trustee or under the insurance terms in the way it considered the applicant's application for TPD benefits.

[60] On the basis of the importance of TPD benefits to a person of the applicant's age who can no longer work and is in a relatively vulnerable position vis-a-vis the Board, it is submitted that the interests of justice tips the balance in his favour against striking out, setting aside or permanently staying the proceeding.

[61] The issues that will decide this application are:

(a) does the review of the Board's 2008 decision by the Tribunal under the Complaints Act preclude the applicant's seeking to invoke s 8 of the Trusts Act in relation to the Board's process of decision making?

(b) has the applicant no real prospect of succeeding on any of his allegations?

(c) should there be a final hearing of this application?

The relevance of the Board's 2008 decision being affirmed by the Tribunal

[62] In view of the administrative nature of the review by the Tribunal under the Complaints Act, the limited jurisdiction given to the Federal Court under s 46 of the Complaints Act to hear an appeal from the Tribunal's determination only on a question of law, and that s 20 of the Complaints Act contemplates that an applicant may pursue a complaint under the Complaints Act in addition to pursuing the same subject matter in a court proceeding, the fact that the Tribunal affirmed the Board's 2008 decision does not, as a matter of law, preclude the applicant from seeking to invoke s 8 of the Trusts Act in respect of the Board's 2008 decision, as affirmed by the Tribunal. Any consideration of the Board's 2008 decision under s 8 of the Trusts Act cannot ignore that the Board's decision has been affirmed by the Tribunal. There may be practical consequences from the intervention of the process of review by the Tribunal in affirming the Board's decision for the application under s 8 of the Trusts Act.

[63] To the extent that the applicant's complaints about process in respect of the Board's decision making were addressed in the course of the Tribunal's decision making, pursuit of those same complaints under s 8 of the Trusts Act may be affected by the opportunity the applicant had to address those matters on the review before the Tribunal and how the Tribunal dealt with them.

[64] The Board asserts that, even if the applicant had some prospects of success in showing that the Board breached its duty in making its 2008 decision, there are good reasons arising from the applicant's exercise of his rights under the Complaints Act for not exercising its discretion to grant relief. In a particular case, it may be that the nature of the declaratory relief sought by an applicant under s 8 of the Trusts Act after being unsuccessful in the review by the Tribunal of a trustee's decision will result in a court refusing to grant relief on discretionary grounds, because of the prior exercise of rights under the Complaints Act. This possibility was adverted to in Rusterholz v Board of Trustees of the State Public Sector Superannuation Scheme [2011] QSC 276 at [2]. Whether that should be done on a summary basis is another question. It is not appropriate at this stage where a particular breach of duty has not yet been the subject of a finding (because there has not been a final hearing) and therefore where all the factors relevant to the exercise of the discretion cannot be stated with precision to predict how the discretion would be exercised.

[65] The Board is not entitled to have the proceeding struck out on the basis that the applicant had the Board's 2008 decision reviewed under the Complaints Act.

The prospects of success of the applicant's allegations

[66] When the Board came to make its 2008 decision, it proceeded on the basis that the applicant was totally and permanently disabled when he was retired from DPI, but the issue to be resolved was whether that TPD related to a pre-existing condition. This was a reasonable approach, in view of the conditions that had to be fulfilled under the insurance terms for an insured member to receive benefits for TPD where the member had been an insured member for the relevant units of insurance for fewer than ten continuous years. The applicant's contention that under clause 4.4 of the insurance terms the TPD benefit became payable upon the applicant's becoming totally and permanently disabled and that clauses 6.2(c)(iii) and 6.5(c)(iii) were disentitling or exclusionary terms is incorrect. Clause 4.4 refers to the TPD benefit that becomes payable under the insurance terms which relevantly brings in clauses 6.2 and 6.5 that set out the conditions on which the benefit becomes payable.

[67] In relation the allegation by the applicant that the Board did not have before it the whole of the file that was before the Full Court of the Federal Court on 15 May 2008, the applicant identifies that the Board did not have the report of Dr Butler dated 15 July 2004 and the report of Ms Jooste dated 19 November 2001 (sic). The Board had before it the QSuper submission that had been made to it on 26 August 2004 that summarised Dr Butler's report of 15 July 2004 which was also referred to in other documents before the Board and was appended to the 26 August 2004 submission. (The 2008 QSuper submission records the 2004 submission as comprising 91 pages which must include its appendices.) Similarly, the report of Ms Jooste (incorrectly dated November 2011) was an appendix to that same submission, but in addition was a referral to a general medical practitioner that was subsumed by Ms Jooste's comprehensive medico-legal report provided to QSuper on 11 March 2003 and addressed in Dr Reddan's 2003 report. This allegation has no substance.

[68] The applicant's allegation that the Board abrogated its decision making function by adopting the reasons submitted to it by QSuper does not take account of the role of the trustees of the Board in making decisions and the role of QSuper in preparing the material and reports for the purpose of equipping the Board to make decisions. The reliance by the Board on the observations in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 30-31 and 65-66 by analogy is apt. The Board is still bound to give real and genuine consideration to all materials and submissions relevant to the decision that it has to make, but the process by which the QSuper submission with proposed options A and B was prepared and put before it does not of itself indicate that the Board abrogated its decision making function. There is no substance in this allegation.

[69] With respect to the allegation that QSuper was biased and acted in bad faith, it is relevant that the decision was made by the Board and not QSuper. The applicant challenged putting Dr Reddan's 2008 report before the Board, but that was a relevant document for the Board's consideration in making its decision. The alleged bad faith and bias of QSuper was not reflected in improper material or submissions before the Board. There does not appear to be any substance in this allegation.

[70] The applicant alleges that the Board misapplied the terms of the deed in the insurance terms by concluding that a relationship existed between the applicant's disablement and the pre-existing schizophrenia condition as at the date of the Board's decision on 25 September 2008 rather than the date of his retirement on 23 June 2003. That is not a correct characterisation of the Board's findings and overlooks the fact that there was no issue about the applicant's TPD from the time he ceased his employment with the DPI. The Board correctly identified the issue that had to be resolved in relation to the applicant's claim at the 25 September 2008 meeting and acted on Dr Reddan's report of permanent disablement when she examined the application on 29 April 2003. There is no substance in this allegation.

[71] In relation to the allegation that the reports of Dr Reddan were flawed, the Board had before it the applicant's solicitors' letter dated 11 September 2008 that made the submissions about flaws in Dr Reddan's reports that are the basis of this allegation. (Those submissions were repeated and expanded unsuccessfully before the Tribunal.) It was a matter for the satisfaction of the Board on the relevant issue. It does not follow from the fact that the Board preferred Dr Reddan's opinion that there was not real and genuine consideration by the Board of all the psychiatric, psychological and related evidence. This allegation suggests the applicant is seeking a merits review in this proceeding which is not available under s 8 of the Trusts Act.

[72] To the extent that the applicant challenges the Board's decision making where it expressed its preference for Dr Reddan's opinion "because of the different medical histories" given by the applicant to Dr Butler and Dr de Leacy, those different histories were patent from the reports, identified in paragraphs 13 and 14 of the findings on the Board and were the subject of observations in Dr Reddan's 2008 report. The applicant submits in this proceeding, as he did before the Tribunal, that on "close analysis" there was no inconsistency between the opinions of Dr Butler and Dr de Leacy based on the histories given by the applicant. That again is descending into a consideration of the merits which is not available in this proceeding.

[73] The applicant's challenge to the Board's decision making on the basis that it failed to obtain additional evidence (such as the applicant's personnel file with DPI) to determine the nature of the applicant's performance at work with DPI assumes that the symptoms of his schizophrenia affected him the same way before and after the dog incident. That was a matter for expert opinion and was addressed by Drs Reddan, Butler and de Leacy. It is simplistic reasoning to suggest that as the applicant had schizophrenia when he was employed by DPI before the dog incident and could do the job, when he became disabled from employment after the dog incident, it could not have been attributable to his schizophrenia. This allegation has no substance.

[74] There does not appear to be any real prospects of success of the applicant's allegations on the basis of the material relied on for the application to end the proceeding in a summary way.

[75] The claim for insurance benefits for total and permanent disablement that is pursued by the applicant is a significant sum. If there is any prospect that the applicant could be successful after a full hearing of his claim, this matter should not be terminated summarily. I am conscious that to express the view that I have on the applicant's prospects of success in showing a breach of duty on the part of the Board under s 8 of the Trusts Act, I have analysed the material that was relied on by both parties in great detail in a way that is inconsistent with the usual role of the court in an application to strike out the proceeding under r 16 or the inherent jurisdiction, and where it was not conceded by the applicant that all the evidence to be adduced by the applicant in the proceeding was available for the hearing of the application. I am also concerned that the submissions made by the Board on the merits of the applicant's claims were more appropriate to addressing the application, as if it were under r 293 of the UCPR, when that was not the type of application the applicant had primarily come to meet. Having regard to the sense of grievance that the applicant has about the Board's decision making, he might have a justifiable sense of grievance if he were denied the opportunity to pursue this proceeding to a final hearing.

[76] In all the circumstances of this proceeding, I am not prepared to exercise the discretion to terminate the proceeding summarily.

[77] It follows that the application filed on 23 December 2011 is dismissed.

[78] I will hear submissions of the parties on an appropriate costs order. It is relevant that the Board took the forensic decision (with the associated risk) of attempting to bring this proceeding to an end on a summary basis. That would have been an appropriate strategy, if the Board had been successful in showing that the exercise by the applicant of his rights under the Complaints Act precluded him from seeking to invoke s 8 of the Trusts Act. The Board has been unsuccessful in convincing the court to dispose otherwise of the proceeding on a summary basis. Subject to hearing the parties' submissions, my inclination is to order the Board to pay the applicant's costs of the application to be assessed.