Fry, Ian James v Commissioner for Superannuation [1984] FCA 220

The orders sought by the applicant are that the decision of the Tribunal be set aside and there be substituted for it a decision to set aside the Certificate, a declaration that the applicant is entitled to a superannuation pension pursuant to s.66 of the Act, and an order that the

In its reasons for decision the Tribunal set out the

effect of the relevant sections of the Act, as follows:-

"2. Section 16 of the Act provides for the conduct of medical examinations. By s.16(2) a person who proposes to become, or becomes, an eligible employee may be required to undergo such medical examination or examinations by an approved medical practitioner or practitioners as the Commissioner for Superannuation requires. Section 16(3) provides that a report of the result of the medical examination or examinations shall be furnished to the Commissioner. Section 16(4) provides:

'The Commissioner shall consider the report or reports, and such other matters (if any) as the Commissioner considers relevant, and, if he is of the opinion that the person is not likely, by reason of or for a reason connected with a physical or mental condition or conditions referred to in the report or reports, to continue to be an eligible employee until the person attains his maximum retiring age, the Commissioner shall issue a benefit classification certificate to that effect, being a certificate in which the

relevant condition or conditions is or are specified.'

3. The above mentioned provisions enabling the issue of a benefit classification certificate ("Bcc") cater for the situation of persons becoming contributors to the Superannuation Fund whose physical or mental condition prevents unqualified entry as a contributor to the fund. Under the system of BCCs specific provision is made in relation to the case of a person failing to make appropriate disclosure of relevant information at the time when he or she is medically examined. This is effected by s.16(11) which provides as follows:

(a) a person ceases to be an eligible employee by reason of death or retirement on the ground of invalidity;

(b) his period of contributory service 1s less than 20 years and, on the day on which he ceases to be an eligible employee, he has not attained his maximum retiring age;

(c) a benefit classification certificate 1s not in force in respect of the person immediately before his death or retirement or, if a benefit classification certificate 1s in force in respect of him at that time, the Commissioner is not of the opinion that the death or incapacity which was the ground for his retirement was caused, or substantially contributed to, by a physical or mental condition or conditions of the person specified in the certificate, or by a physical or mental condition or conditions connected with such a condition or such conditions; and

(i) that, at or in connexion with a medical examination which the person was required to undergo under this section, the person failed to furnish any information required to be furnished by him or furnished false information; and

(i1) that, if the person had not failed to furnish that information or had not furnished that false information, there would have been in force in respect of the person, immediately before his death or retirement, a benefit classification certificate in which there would have been specified the physical or mental condition or conditions which caused, or substantially contributed to, the death or retirement or a physical or mental condition or conditions connected with such a condition or such

the Commissioner shall issue in respect of the person a benefit classification certificate in which there is or are specified the physical or mental condition or conditions of the person which, in the opinion of the Commissioner -

(e) in a case where a benefit classification certificate is in force in respect of the person at the time he dies or retires - would have been the physical or mental condition or conditions of the person specified in the certificate at that time; or

(f) ain any other case - would have been the physical or mental condition or conditions of the person specified, at the time the person dies or retires, in the benefit classification certificate that would have been in force in respect of the person,

if the person had not failed to furnish that information or had not furnished that false information and, for the purposes of this Act, the certificate shall be deemed to have been in force in respect of the person immediately before his death or retirement.'

4. The respondent claims that the provisions of s.16(11), and in turn the provisions of s.66(2) of the Act, are applicable in the circumstances of the present application. The relevant portion of s.66(2) is that which relates to the formation by the Commissioner of the opinion that the incapacity

which was the ground for the applicant's retirement 'was caused, or was substantially contributed to, by a physical or mental condition or conditions specified in the certificate or by physical or mental condition or conditions connected with such

a condition or such conditions'. Where such opinion is formed the benefit entitlement of the retiree is limited. Of particular importance in

the present case, the retiree who ceases to be pensionable is no longer subject to the provisions of the Act which enable the Commissioner to have a pensioner medically examined for the purpose of returning him to employment if found fit therefore: See ss.74-77 of the Act."

The applicant joined the Public Service on 25 September 1978, and he was medically examined in March 1979 in relation to his permanent appointment and admission to the Superannuation Fund. In the meantime he had contracted

The Tribunal expressed the opinions that had all the facts of the applicant's history been known in March 1979 a Benefit Classification Certificate would have been issued, specifying the conditions "history of anxiety state" and "inadequate personality", and that it was probable that the applicant would have been rejected for permanent appointment

The Tribunal then reminded itself that the question was not "what would have been known had all been revealed", but rather what information should have been furnished by the applicant in the light of his own knowledge of his history

and medical state, and cited the cases of Watts (1981) 3 ALD

In re Watts the Tribunal described the obligation of an

employee who was asked questions by an examining doctor in

"When such questions were asked, they demanded full and fair answers. Should an applicant be in doubt as to whether some possibly relevant fact should be disclosed, we think it plain that the doubt has to be, and has always to be, resolved in favour of disclosure. - - - - The answering of the questions demands, and at the relevant time in this case demanded, the utmost good faith, and in this sense it is true that some analogy may be drawn with the principles applicable to contracts of life insurance."

"We conclude that at a medical examination conducted pursuant to s.16(2) of the 1976 Act for the purpose of a report being made for the purposes of s.16(3) of the same Act of the result of the medical examination, the prospective employee was obliged to answer all questions put to him full

and truthfully having regard to the knowledge which might fairly have been attributed to him of his then present condition and his past medical history. {emphasis added In this Context we would however adopt as apposite for present purposes what Fletcher Moulton LJ said in Joel v Law Union and Crown Insurance Company [1908] 2 KB

'But in my opinion there is a point here which often is not sufficiently kept in mind. The duty is a duty to disclose, and you cannot disclose what you do not know. The obligation to disclose, therefore, necessarily depends on the knowledge you possess. I must not be misunderstood. Your opinion of the materiality of that knowledge is of no moment. If a reasonable man would have recognized that it was material to disclose the knowledge in question, it is no excuse that you did

not recognize it to be so. But the question always is, Was the knowledge you possessed such that you ought to have disclosed it? Let me take an example. I will suppose that a man has, as is the case with most of us, occasionally had a headache. It may be that a particular one of those headaches would have told a brain specialist of hidden mischief. But to the man it was an ordinary headache undistinguishable from the rest. Now no

reasonable man would deem it material to tell an insurance company of all the casual headaches he had had in his life, and, if he knew no more as to this particular headache than that it was an ordinary casual headache, there would be no breach of his duty towards the insurance company in not disclosing it. He possessed no knowledge that it was incumbent on him to disclose, because he knew of nothing which a reasonable man would deem Material or of a character to influence the insurers in their action. It was what he did not know which would have been of that character, but he cannot be held liable for non-disclosure in respect of facts which he did not know.'

What Fletcher Moulton LJ said above is entirely consistent with one of the conclusions that should be drawn from s.i6(11), namely that what has to be revealed is something that has come to the mind of the person. It must be information. A person may be informed by his doctor that he has diabetes, and he then possesses that information. The person may have a very sore toe. He is informed of that fact by reason of the pain that 1s registered. But one way or another the pain has come to his notice. It is something 'of which (the person) is apprised or told' (see Shorter Oxford Dictionary). The section clearly requires this. This disposes of any question of the duty of disclosure being absolute, with the consequence that if it should be later found that there was some pre-existing condition that had not previously manifested itself at all, then nevertheless the provisions of s.184(5) would operate to permit the issue of a benefit classification certificate accordingly."

It was submitted on behalf of the Commissioner that this

was the appropriate construction to be placed upon the section. Counsel for the Commissioner described the test as

It involved looking to see of what facts and matters the applicant in question was actually aware, and then deciding what opinions a reasonable man with such awareness would have

held, how he would have answered the questions posed, and

The Tribunal appeared to apply this hybrid test when it held that the applicant "should have known" that he had "experienced incidents of anxiety and depression" and he

should have revealed the hospital admissions, saying:

that the problems in question were in the past and should be regarded as no longer relevant. We consider that enough was asked of him to have led him to think 'Well, there were those admissions to the Psychiatric Hospital, I don't think they're relevant any more but I'd better refer to them so

that they can make up their minds about it.' The incidents were in our opinion significant enough to

require them to have been revealed and not left to his own judgment."

Under such a test an employee, who did not in fact hold a particular opinion which a reasonable man in his position would have held, would fall short of what was required of him under the section if an answer which he gave according to his actual knowledge differed from the answer which a reasonable man would have given. If an employee, being of opinion that he had not suffered from a mental or nervous condition,

answered "No" to a question asking whether he had suffered

from such a condition, he would fall short of what was required of him if a reasonable man in the employee's position would have been of this opinion and would have answered "Yes", even though it would have been a lie for the employee, given the actual state of his mind, to answer

It was submitted that a comparison of the language of the present section with that of s.48B of the 1922 Act supported such a construction. Section 48B included a reference to "a physical or mental condition that, to the knowledge of the contributor, existed at the time when he

The absence of the words "to the knowledge of the contributor" from the present section was said to be significant, and it was submitted that, if the legislature had intended the obligation upon an employee under the

present section to be limited to his actual knowledge as opposed to "the knowledge which might fairly have been attributed to him", words similar to those used in s.48B of

The Tribunal had earlier made the following references

"14. In accordance with usual practice the applicant was for the purposes of his medical

examination provided with a form in which a large number of questions were set out relating to his medical history. This form was filled in by him beforehand and handed to the Commonwealth Medical Officer. In this case the applicant answered 'No' to the following questions:

"Are you now suffering or have you ever suffered from any of the following disabilities -

l(a) nervous fatigue or neurasthenia (b) mental or nervous conditions (c) anxiety state (d) depression or difficulty in sleeping

12(b) Have you had any complaints, illness or injury not mentioned above?

13(b) Are you aware of any circumstances regarding your health which will interfere with the satisfactory discharge of the duties of the position for which you are now applying?

To a further question 3(e) relating to the specific disabilities 'Jaundice or Hepatitis' the applicant answered 'Yes' and in the section provided for the furnishing of details following upon an affirmative answer he wrote '1979 jaundice and hepatitis - mild only'. He also provided affirmative answers and some detail relating to certain other matters not relevant in this review."

The Tribunal recognized that an applicant who has to answer the questions asked of him in the form used for the purposes of such an examination may have some difficult

"We put on one side the case of someone who deliberately conceals the fact of some presently existing condition or of some prior illness or

accident. What we are concerned with here is a case where there was perhaps room for doubt as to whether there was a requirement to furnish information. The information that was needed to be furnished was not really so much that the applicant had in the past had, or still had, certain disabilities or disorders, namely anxiety state or inadequate personality, or some other mental or nervous condition. What was in the circumstances required was information of the fact of the hospital admissions. Such fact, if it had been conveyed to the examining doctor, would have given him the opportunity to make enquiries and to come -to a proper decision. What the problem exposes once again is the highly unsatisfactory nature of the form of questionnaire that is handed to applicants to answer. We have already commented on this in Re Watts and Commissioner for Superannuation (1981) 3 ALD 267 and suggested a form of question in relation to absences from work. Such a question is here asked, but a matter of fact worth observing is that Question 12(c) limits its enquiry, viz 'Have you been absent from school or work through illness over the past two years?,' to quite a short period, and may well suggest to a person filling in the form some limitation on the time span in which the questioner is interested. A question which it would be apposite to ask is whether an applicant has been admitted to hospital in the past, say, 10 years. Even a specific question related to admission to a psychiatric hospital at any time might be indicated. The point is that everything possible should be done, as we see it, to remove the matter from the area of self diagnosis and/or self judgment on the part of the applicant and to place it firmly in the area of the provision of objective information to the examining medical officer. At present the form is deficient in this regard. We were informed at the hearing that a new form of questionnaire is in the course of preparation, and we trust that it will reflect the need for the revelation of the fact of admissions, and names of treating doctors, rather than the present approach of self revelation of diagnoses. In today's world a specific question about drug use may be indicated, even if it is unlikely to attract a truthful answer."

unfortunate fact in this case" in that three doctors whose

reports were in evidence had all contemplated that:

"the applicant would recover and be readmitted to the Public Service. The officers in his Department all recognized his talent and potential. Perhaps the delegate whose administrative act retired the applicant also thought that this would or at least could happen. But the effect of the decision under review was to remove the possibility of ss.74-77 of the Act being applied. Had he remained a pensioner he could have been re-examined and been found fit for employment. With his Higher School Certificate behind him he is now better qualified and would be eligible for the Third Division of the Public Service. The Public Service does not, it is true, owe the applicant a living. But the finding that he failed to disclose required information is not a moral or condemnatory judgment. It is simply a fact. Also, while the unsatisfactory nature of the form cannot be blamed for everything, it played its part in the misjudgment which the applicant made. We accept also that had the applicant been aware of the ultimate consequences of his being retired he would have strongly contested the retirement procedures at the time. We would commend that the applicant, who is aged only 33, be given another chance, in a different area, no doubt as a temporary appointment. If he did settle down, permanent appointment later with an appropriate BCC issued would be in order. We have no power even to make a recommendation in this area, but a combination of the tolerance of the age and a recognition that the applicant's total retirement, his being 'torn away' as Dr G put it, was not contemplated by those whose actions resulted in it, might we hope lead to sympathetic consideration of his position."

During the hearing of the appeal the Court was informed

that the applicant has been re-employed by the Commonwealth.

questions before it by drawing an analogy from the principles

applicable to contracts of life insurance, and applied the

views that the answering of the questions demanded the utmost good faith having regard to what an applicant "should have known" or to "the knowledge which might fairly have been attributed to him", and that "should an applicant be in doubt as to whether some possibly relevant fact should be disclosed, we think it plain that the doubt has to be, and has always to be resolved in favour of disclosure." It said that "the duty of disclosure is not absolute, but it is

Approaching the matter in this way, the Tribunal held that the applicant should have answered "Yes" to the question "Are you now suffering or have you ever suffered from mental or nervous conditions," and "possibly also, although it is not necessary to decide the point" to the question relating to (c) anxiety state and (d) depression or difficulty in sleeping. It also held that he should have revealed the

Later in its reasons the Tribunal returned to the question relating to anxiety state and stated that the

applicant should have answered that question affirmatively.

"We are unable to say from the evidence what went through the applicant's mind at the time. It is true that he was emphatic that he regarded his admissions to the Psychiatric Hospital and everything that went on there as having related to

his homosexuality and, as far as the September 1969 admission is concerned, to his domestic difficulties. He said that when he answered 'No' to the question about mental or nervous conditions it never occurred to him that he might have had, in the Psychiatric Hospital, a mental or nervous condition even for a short period: 'As far as I really knew, the ... times I was in (the Psychiatric Hospital) I was there for my homosexuality only and I have cried and stayed in bed just recently, you know, because I have been a little bit upset about something, but, I mean, who has not.'"

In my opinion, the Tribunal fell into errors of law in its approach to this case. It was called upon to decide whether at or in connexion with a medical examination which the applicant was required to undergo under s.16 of the Act, he failed to furnish any information required to be furnished by him or furnished false information (see s.16(11), set out

Its consideration of these questions turned upon the construction of the Act. Section 16(2) empowered the respondent to require the applicant to undergo such medical examination or examinations by an approved medical practitioner or practitioners as the respondent required. In connexion with such a medical examination the respondent furnished the applicant with a form on which many questions were set out and which bore an instruction that those questions "must be answered 'Yes' or 'No', and that full details of all 'Yes' answers must be furnished in Part C on

Page 3" of the form, before attending for the medical

examination. Opposite each question was a small box, with

In my opinion, the Tribunal erred in law in holding that

the appropriate test was to be expressed as follows:-

"when such questions were asked they demanded full and fair answers. Should an applicant be in doubt as to whether some possibly relevant fact should be disclosed, we think it plain that the doubt has to be, and has always to be, resolved in favour of disclosure. - - - = The answering of the

questions demands, and at the relevant time in this case demanded, the utmost good faith, and in this sense it is true that some analogy may be drawn with the principles applicable to contracts of life insurance."

The respondent had complete control over the form on which the questions were listed and did not include any question enquiring whether the applicant had ever been admitted to hospital. No such question was put to the

The Tribunal expressly held that the applicant should have furnished information about his admissions to hospital. The only possible place in the form in which he could have given such information was in Part C, in the form of a detail relating to an answer "Yes" to one of the questions in Part

B. The applicant's failure to disclose the information about

the hospital admissions was not, therefore, in itself, a

failure to furnish information required to be furnished by

him. It was such a failure only if a) the Tribunal was correct in saying that the applicant should have answered "yes" to the questions about "mental or nervous conditions" and "anxiety state"; and b) if the facts of the hospital

admissions were necessary details of those answers.

Once the appropriate question was asked, there was no

difficulty in obtaining the relevant information from the applicant. When he approached the Australian Government Retirement Benefits Office in January 1982 about his retirement benefit, he disclosed in the course of discussion that he had been admitted to the Psychiatric Hospital and he

provided the necessary authority to enable that office to

approach the hospital for details of his medical history.

The absence from the present Act of the words "to the knowledge of the contributor" does not justify the conclusion that the obligation resting upon a person in the position of the applicant should be determined by reference to the

knowledge which might fairly have been attributed to him.

The language of s.16(11)(d) makes it clear that the Act does not impose an obligation upon an employee to furnish information generally but limits his obligation to information required to be furnished by him "at or in

connexion with" a medical examination. Under s.16(2) the

Commissioner may require the employee to undergo such medical

examination or examinations as he determines. A medical

examiner is at liberty to ask such questions as he wishes.

There must be a requirement made of the employee to furnish information before any obligation arises. The extent of that obligation depends upon the questions asked of him

and the actual state of his knowledge in relation to them.

The obligation upon him is to "furnish information". "Purnish" means "to provide or supply with (something

necessary, useful, or desirable)" and "information" is something "of which one is apprised or told." (see The

To fall within the scope of the section an employee must have failed to provide or supply something required of

In my opinion the language of the section does not support the hybrid test for which the Commissioner contends. There is no justification for approaching the obligation placed upon the employee on the basis of "the knowledge which might fairly have been attributed to him" or upon what "he

An employee complies with the section if he answers the

questions truthfully according to his actual knowledge and

It was submitted on behalf of the Commissioner that if the court was of opinion that the Tribunal had erred in law in deciding that the applicant had "failed to furnish any information required to be furnished by him" it should not in the exercise of its discretion allow the appeal because the decision reached by the the Tribunal could be supported on the ground that the applicant had "furnished false information". It was submitted that "false" should be interpreted as meaning false in fact, not false to the Knowledge of the employee, so as to create an absolute

An employee who answered in the negative a question whether he suffered from a particular condition would fail such a test if at the time of the examination he in fact suffered from that condition. It would not be an answer to show that he was not then aware of it, or that no medical examination would then have revealed it, as in a case where a later examination or an autopsy disclosed facts which justified a finding that the condition must have been present at the time of the examination. Plain words would be required to justify so harsh a consequence and in my opinion

The Tribunal found that: (1) "there was perhaps room for doubt as to whether there was a requirement to furnish

(2) "the information that was needed to be furnished was not really so much that the applicant had in the past had, or still had, certain disabilities or disorders, namely anxiety state or inadequate personality, or some other mental or nervous condition."

(3) "what was in the circumstances required was information of the fact of the hospital admissions."

(4) "we consider that enough was asked of him to have led him to think 'Well, there were those admissions to the Psychiatric Hospital. I don't think they're relevant anymore but I'd better refer to them so that they can make up their minds about it.'"

This approach by the Tribunal placed the applicant in a position such as would have been appropriate had the form

included a question as to whether he had ever been admitted

to hospital or had he been asked such a question at the

The difficulties which have arisen in this case stem, not from the applicant's answers, but from the respondent's questions and it would be unjust to penalise the applicant for the deficiencies in the respondent's form and for its

The Tribunal's finding against the applicant was based

upon its view that he was under a legal obligation to set out

in his answers his admissions to hospital. Once it is seen that no such obligation rested on the applicant, the situation is that the Tribunal had found that the applicant was not one "who deliberately conceals the fact of some presently existing condition or of some prior illness." No finding adverse to his credit was made and he had sworn that it had never occurred to him that he might have had a mental

In the light of the Tribunal's findings of fact in relation to the honesty of the applicant, if 1t had applied what is in my opinion the true construction of the section it should have found for the applicant. Accordingly, I would not remit the matter to the Tribunal for further

I would allow the appeal with costs, order that the decision of the Tribunal be set aside and that in its place there be substituted a decision to set aside the Benefit Classification Certificate issued by the respondent and that there be a declaration that the applicant is entitled to a

superannuation pension pursuant to s.66 of the Act.

I certify that this and the nineteen (19) preceding pages are a true copy of the Reasons for Judgment herein of The Honourable Mr. Justice Sweeney.

BETWEEN : IAN JAMES FRY Applicant AND: COMMISSIONER FOR SUPERANNUATION Respondent CORAM: Blackburn, Sweeney and Neaves JJ. DATE: 31 July 1984 REASONS FOR JUDGMENT Neaves J. I have had the advantage of reading the

reasons for judgment of my brother Sweeney. I agree in his conclusions and with the reasons he advances for

I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable