Kristoffersen v Superannuation Complaints Tribunal

The "appeal" before the primary judge 23 The appellant appealed pursuant to s 46(1) of the Act to the Federal Court from the decision of the Tribunal. That section provides: A party may appeal to the Federal Court, on a question of law, from the determination of the Tribunal. 24 The appellant was represented by counsel acting on a pro bono basis in the proceedings before the primary judge. The submissions made to the primary judge on the appellant's behalf were careful, thorough and competent. 25 The appellant's counsel identified four questions of law before the primary judge. They were, in summary: (a) Whether the Tribunal was obliged to enquire of the trustee and the insurer as to the originals of documents governing the appellant's membership and the insurance policies and to require production of them, and whether failure on the Tribunal's part to do so gave rise to jurisdictional error. (b) Whether the Tribunal's conclusion as to the correct income protection policy was not reasonably open because that conclusion was made without any evidentiary support. (c) Whether the Tribunal failed to address submissions made to it by the appellant and thereby failed to conduct a review in accordance with the Act. (d) Whether or not the Tribunal had failed to address for itself, on the evidence before it, the test for total and permanent disablement under the TPD Policy. 26 The first and second questions identified by his Honour related to the submission by the appellant that the Tribunal had not determined his claim by reference to the correct policy. The appellant maintained that the relevant policy was a "Corporate 1 Managers Policy". The appellant's argument before the primary judge was that the Tribunal was obliged to require production of the original policy documents. His Honour held that the Tribunal did not need to have the original policy documents before it to reach a conclusion as to what was the appropriate policy. It was not bound by the rules of evidence and was entitled to act on secondary evidence. His Honour held that the Tribunal was not obliged to conduct some roving enquiry. There was no failure to conduct the review required by s 37 of the Act. 27 As to the third question, the appellant contended before the primary judge that the Tribunal had failed to address certain submissions: as to the need for production of the original documents; that the insurer had made part payments of income protection benefits and thereby acknowledged liability under the true policy; and as to the correct amount of the monthly payments. His Honour said that it was true that the Tribunal did not in its reasons expressly mention a request by the appellant that it seek production of the original documents, but there was nothing in the Act which obliged the Tribunal to conduct its review by reference to the originals of the policy documents. His Honour concluded that the insurer had not made part payment of a liability which extended until the appellant reached aged 65, but rather paid all that it was obliged to pay him by way of income protection payments. The Tribunal had stated that it was satisfied that it had received the maximum income protection benefit and the Tribunal was not obliged to do any more than it did. 28 As to the fourth question, the appellant submitted to the primary judge that the Tribunal should have asked itself the question, "Is [the appellant] totally and permanently disabled within the definition in the policy?", and had instead erroneously and impermissibly "[analysed] the medical evidence to determine which medical report was preferable or more reliable." His Honour held that the Tribunal had identified the correct issue and concluded its review by reference to that issue and in so doing discharged its functions according to law. His Honour relied primarily upon the decision of the Full Court in Board of Trustees of the State Superannuation Scheme v Edington (2011) 119 ALD 472 in reaching this conclusion.

The appeal to the Full Court 29 The appellant was not legally represented in the appeal against the judgment of the primary judge. He relied upon 15 grounds set out in his amended notice of appeal.

Grounds 1, 2 and 7 30 Grounds 1, 2, and 7 involve allegations by the appellant that the trustee and the insurer had engaged in a fraud by placing information before the Tribunal that it knew to be false. It is true that fraud on a Tribunal can provide a basis for vitiating the decision of the Tribunal: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [11]-[27]. 31 The appellant relied upon a litany of allegedly fraudulent representations made by the trustee and insurer, too numerous to conveniently repeat. Their flavour can be gleaned by summarising some of the allegations said to constitute the fraud on the Tribunal. The appellant claims that the submissions made by the trustee and the insurer to the Tribunal contained numerous misstatements of facts, incorrect reporting of statements and opinions contained in medical reports, attempts to discredit a doctor's report that favoured his case, selective citation of facts and opinions from medical reports and incomplete reference to information that supported his claims. One orthopaedic surgeon provided a report dated 6 February 2004 that refers to an MRI scan dated 9 February 2004. The appellant contends that this is an "obviously fabricated pre-empted report". An "Employability Assessment report" apparently prepared by a employment specialist was "deliberately fabricated for the purpose of committing red blooded fraud". The trustee and the insurer fraudulently claimed that they did not receive the original TPD claim. 32 In summary, the appellant alleges that the trustee and the insurer fraudulently led the Tribunal into error by presenting submissions and relying on medical reports which they knew contained deliberate untruths or half-truths. 33 The appellant did not argue before the primary judge that the trustee and the insurer had engaged in fraud (the appellant only hinted at the possibility of fraud in his submission to the Tribunal, and then only in relation to the trustee's and insurer's claims that they had lost some original documents). It is necessary to consider whether the appellant should be permitted to rely on that ground in this appeal. A factor vital to whether such leave will be granted is whether the point is one that could have been met below by calling evidence: Park v Brothers (2005) 80 ALJR 317 at [34]; Water Board v Moustakas (1988) 180 CLR 491 at 497. 34 The appellant should not be permitted to now rely on the ground of fraud because the ground could possibly have been met by calling evidence before the primary judge. The trustee and the insurer did not have an opportunity before the primary judge to produce evidence to counter the allegations now made by the appellant that they produced information to the Tribunal which they knew to be false. 35 Further, the appellant's allegations of fraud are without merit. The appellant's approach is to allege that any statement of fact or opinion or interpretation of a report which was placed before the Tribunal by the trustee and the insurer that he disagrees with was false. He goes further and says that such disputed facts or opinions were known to be false by the trustee and insurer. Beyond making this bald assertion, he has not produced a shred of evidence which supports his allegation that the trustee and the insurer knowingly provided false information to the Tribunal. Mere assertion does not prove the truth of what is being asserted. 36 The disputed facts, opinions and interpretations are explicable on the more mundane basis that the insurer and the trustee, and the doctors whose opinions they relied upon, took a different view to that of the appellant. Some are explicable on the basis that the submissions to the Tribunal simply picked up or relied upon the views most favourable to the trustee and insurer. That is what submissions often do. Where the appellant has demonstrated that aspects of the submissions are incorrect (and there are certainly some statements contained in those submissions which are inaccurate), they are explicable as simple errors. 37 One of the allegations of fraud is that the insurer misled the Tribunal by telling the Tribunal that it had offered to review the appellant's claim and had sought to obtain and consider an up to date medical opinion, but that the appellant had refused that offer. That allegation is demonstrably wrong. The documents placed before the Court include an email from the insurer dated 8 April 2011 to the Tribunal offering to give the appellant an opportunity to submit new information in support of his claim and offering to conduct a full review of his claim. The insurer said that it was prepared to organise an independent examination by an orthopaedic surgeon. There is also a file note dated 12 April 2011 prepared by an officer of the Tribunal indicating that he had telephoned the appellant and conveyed the insurer's offer, but that the appellant had declined the offer of an independent orthopaedic examination. The Tribunal wrote to the insurer on 13 April 2011 stating that the appellant was not prepared to undergo a further examination and had requested that the complaint proceed to a review meeting. It is clear that there is no substance in the appellant's allegation that the insurer had fraudulently misled the Tribunal in the way that he alleges. 38 It may be that some latitude should be allowed to the appellant in respect of the serious allegations of fraud he has made without evidence, given that he is not legally represented. However, it should be clearly recognised that the allegations have the potential to cause distress to those who are the subject of the allegations. They should not have been made without evidence.

Ground 3 39 Ground 3 does not articulate any appealable error.

Grounds 4 and 9 40 Grounds 4 and 9 allege that the primary judge erred in deciding that the Tribunal was not bound by the rules of evidence and was entitled to act on secondary evidence. 41 Section 36 of the Act provides, relevantly: The Tribunal, in reviewing a decision or conduct: (a) is not bound by technicalities, legal forms or rules of evidence. 42 His Honour was clearly correct to conclude that the Tribunal was not bound by the rules of evidence. 43 The appellant also argued that the Tribunal was not entitled to make its decision based on the allegedly fraudulent information provided to it by the trustee and the insurer. The appellant's allegations of fraud have already been dealt with. Grounds 4 and 9 cannot succeed.

Ground 5 44 Ground 5 alleges that the primary judge incorrectly interpreted the words has "been absent from active employment for a period of 6 consecutive months" because of sickness or injury in the definition of "total and permanently disabled" in the TPD Policy as limiting the medical evidence that could be considered to evidence produced in that six month period. 45 The short answer is that the primary judge made no such finding. The Tribunal had decided that the appellant was required to meet the definition of totally and permanently disabled at a point in time six months from when he had ceased employment and beyond that point. The Tribunal took into account all of the medical evidence before it. It took into account evidence concerning the appellant's medical condition in the initial stages after his injury, as well as the more recent reports. The primary judge found no error in the approach taken by the Tribunal. There is no substance in Ground 5.

Ground 6 46 Ground 6, inconsistently with Ground 5, alleges that the primary judge erred in failing to give consideration to medical evidence produced by Dr Gray, Dr Canavan and Ms Anderson, a physiotherapist, when their evidence was the only evidence produced in the six month period after he ceased work. The appellant claimed that the primary judge by upholding the Tribunal's decision, regarded those reports as irrelevant and that this constituted an error of law. The answer is that the Tribunal expressly took into account the reports of Dr Gray, Dr Canavan and Ms Anderson. The premise on which the ground is based is not made out.

Ground 8 47 Ground 8 alleges that the Tribunal failed to consider all of the decisions under review. The appellant relies on s 37 of the Act which requires the Tribunal to review a "decision" of a trustee and insurer. Under s 37(3) the Tribunal has the power to affirm the decision or remit the decision for reconsideration or vary the decision or set aside the decision and substitute another decision. 48 The appellant argues that the relevant "decisions" that the Tribunal was required to review were those identified in his written submissions to the Tribunal. The "decisions" identified by the appellant are, in fact, merely the issues that he raised before the Tribunal. All of the issues identified by the appellant were dealt with by the Tribunal, save those that it was unnecessary to decide because of its decisions on other issues. In that category, for example, the Tribunal did not decide whether the insurer should pay interest on any TPD benefit because it found that no TPD benefit was payable. Ground 8 cannot succeed.

Ground 10 49 Ground 10 alleges that the primary judge erred in finding that the Tribunal was not required under s 25 of the Act to require production of the original policy documents. Section 25(1) has the effect that the Tribunal "may…require" a trustee and an insurer to produce the originals of copies of relevant documents in their possession or control. 50 His Honour held, adopting the approach taken in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [25], that it is for a complainant to put forward the material that he or she wishes the Tribunal to consider. Its task is to form its own view of the material before it as to whether the decision under review was fair and reasonable. His Honour held that there was no obligation on the Tribunal to obtain the originals of the documents, irrespective of whether the appellant did or did not seek production of the originals. 51 The primary judge was plainly correct, for the reasons he gave, to decide that the Tribunal was under no obligation to exercise its power under s 25(1) to require the trustee and insurer to produce original policy documents. It was open to the Tribunal to act upon copies of documents that were provided to it. In any event, the appellant conceded in the appeal that he had not sought production of original documents, but had only sought "true copies of the policy document". 52 For completeness, it should be added that the Tribunal had before it a copy of the appellant's employer's application dated 29 August 2002 for group membership of its employees in the Colonial Select Corporate Superannuation Fund. The application form was in respect of three categories of employees: managers, staff and casuals. The appellant was a manager. In the form, a box was ticked for a benefit period of 2 years for income protection insurance for managers and staff (there was no such coverage for casuals). Another box provided for a benefit period to age 65, but that box was left unticked. What this means is that the employer had only ever sought income protection coverage for a maximum period of 2 years for its employees. The Tribunal had before it a copy of the document containing the terms of the insurer's group income protection policies. It refers to two policies, one providing coverage to age 65 and the other for 2 years. The Tribunal found, having regard to the insurer's schedule of premiums, that the premium paid by the appellant was consistent with income protection coverage for 2 years, as the premium for coverage to age 65 would have been substantially more expensive. It appears that the appellant is simply mistaken in his assertion that he was entitled to income protection benefits to the age of 65.

Ground 11 53 Ground 11 asserts that the primary judge erred in accepting the Tribunal's statement that there is no evidence that a "Corporate 1 Managers Policy" exists. The appellant alleged that the Tribunal's finding was in error because he had produced a product disclosure statement that demonstrates the existence of such a policy. 54 It does not appear that this argument was raised before Logan J and, even if it was, it would not have availed the appellant. The appellant's complaint is that the Tribunal overlooked a product disclosure statement that refers to the policy he refers to. We have not been able to locate a reference to such a policy in the material before the Tribunal, but even if the Tribunal did overlook such a reference, the error was an error of fact. An appeal from a decision of the Tribunal is only available on a question of law. 55 In any event, if any such error was made by the Tribunal, it was not an error that ultimately affected the outcome of the Tribunal's decision. The Tribunal held that the income protection policy allowed for a maximum of two years of benefits by reference to the trustee's and the insurer's documents concerning the policy taken out by the appellant's employer and by the Tribunal's own analysis of the premiums paid.

Ground 12 56 Ground 12 alleges that the primary judge erred in accepting as correct the Tribunal's finding that it was satisfied that the appellant had received the maximum income protection benefit payable to him under the policy. He argued that the Tribunal should have found that the insurer was liable to pay him interest upon the income protection benefits that he received. 57 It was no part of the appellant's case before the primary judge that the Tribunal made an error of law by failing to decide that the insurer should have paid him interest. It is not clear from the appellant's submission to the Tribunal that there was any specific submission that the insurer should have paid interest upon the benefits it had actually paid to him. Rather, the appellant's focus was on his argument that he was entitled to income protection benefits and interest on those benefits beyond the 2 year period. It is not apparent from the material whether the benefits that had been paid by the insurer included interest. 58 In these circumstances, the appellant should not be permitted to raise this ground upon the appeal.

Ground 13 59 Ground 13 asserts that the primary judge erred in assuming the Tribunal had attempted to settle the complaint by conciliation. His Honour did make the assumption that conciliation had been attempted and had failed. The appellant asserted that there had been no offer of conciliation by the Tribunal. 60 Section 27 of the Act requires the Tribunal to inquire into a complaint and "try to settle it by conciliation". 61 The appellant did not make any submission to the primary judge that the Tribunal lacked jurisdiction because it had not offered conciliation. He also concedes that he had not made any such submission to the Tribunal itself. The appellant makes the assertion that the Tribunal did not offer conciliation, but he did not provide any evidence to establish that assertion. The material before the Court includes a file note apparently prepared by an officer of the Tribunal indicating that, "A Conciliation Conference was held on 6 August 2009 concluded on 22 February 2010." The limited material before the Court on the issue indicates that the Tribunal did try to settle the complaint by conciliation. 62 Even if that is incorrect, the point is one that could possibly have been met below by calling evidence. In these circumstances, the appellant should not be permitted to raise this ground for the first time upon the appeal. Further, even if it is assumed that the Tribunal committed an error of law by failing to attempt to resolve the complaint by conciliation, the appellant acquiesced in the Tribunal proceeding to determine the complaint and relief should be refused for that reason.

Ground 14 63 Ground 14 alleges that the Tribunal has an obligation under s 16 of the Act to assist a complainant in making a complaint and that the Tribunal had failed in its obligation to assist him. This ground was not raised before the primary judge. 64 Section 16 provides: If the Tribunal thinks that: (a) a complainant wishes to make a complaint; and (b) the complainant needs help to make the complaint or to put it in writing; the Tribunal must take reasonable steps to help the complainant. 65 The appellant conceded that the Tribunal had provided him with some assistance to make his complaint. He appears to allege that the Tribunal was required to go further and provide him with pro bono legal assistance to present his complaint. 66 Section 14(2) of the Act allows a person to make a complaint to the Tribunal that a decision was unfair or unreasonable. Section 33 allows a party to a review meeting to make written submissions for the purpose of a review meeting. Any obligation upon the Tribunal under s 16 applies to the making of the complaint to the Tribunal, but does not extend to a requirement to provide assistance to make written submissions to the Tribunal upon its determination of the complaint. The Tribunal was under no obligation to provide the appellant with assistance to present his case to the Tribunal. 67 In any event, the Tribunal appears to have provided what it considered were reasonable steps to assist the appellant to make his complaint. He has not identified any error of law on the part of the Tribunal in making that assessment.

Ground 15 68 Ground 15 alleges that the primary judge failed to apply the decisions in Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28 and Canute v Comcare (2006) 226 CLR 535. The appellant asserts that those cases require that in considering whether he was totally and permanently disabled, the Tribunal and the Court were required to adopt the methodology of assessment under the "impairment tables" referred to in the decisions. Those decisions concerned the application of tables for the assessment of permanent impairment contained in Comcare's Guide to the Assessment of Permanent Impairment, promulgated under the Safety, Rehabilitation and Compensation Act 1988 (Cth). They have no relevance to the present case. 69 For these reasons, the appellant has not made out any of his grounds of appeal. The appeal should be dismissed with costs. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Dowsett, Collier and Rangiah.