Machin v Board of Trustees of the State Public Sector Superannuation Scheme - [2010] FCA 969 - FCA 2010 case summary — Zoe

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

[2010] FCA 969

Federal Court of Australia|2010-01-08|Before: Mr P, Streeton J, State P

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Court

Federal Court of Australia

Decision date

2010-01-08

Before

Mr P, Streeton J, State P

Source

Original judgment source is linked above.

Judgment (41 paragraphs)

[1]

Introduction 1 By a notice of appeal dated 26 February 2010, the applicant, Wendy‑Jane Machin, appeals from the determination of the Superannuation Complaints Tribunal (constituted by Janet Martin, John Hart and David Thomas) ("the Tribunal") given on 13 January 2010. Mrs Machin, who sought a disablement benefit under the Superannuation (State Public Sector) Deed 1990 (Qld) ("the Deed"), complained to the Tribunal pursuant to s 14 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) ("Complaints Act") of the decision made on 25 June 2006 by the respondent, the Board of Trustees of the State Public Sector Superannuation Scheme ("the Board"). The Tribunal, by a majority, determined to affirm the Board's decision. 2 As discussed below, because the Board expressed its determination in a number of different ways, the exact nature of its decision is unclear. Further, while the obscurity of the Board's and the Tribunal majority's determinations admits the possibility that they did not reject, but simply failed to determine, Mrs Machin's eligibility for one category of benefits available under the Deed, on the better view, both the Board and the Tribunal majority determined that Mrs Machin was not entitled to any disablement benefit. 3 The appeal is brought pursuant to s 46 of the Complaints Act, which relevantly provides that a party may appeal to the Federal Court from a determination of the Tribunal on a question of law. 4 Section 14 of the Complaints Act relevantly provides: (2) Subject to subsection (3) and section 15, a person may make a complaint (other than an excluded complaint) to the Tribunal, that the decision is or was unfair or unreasonable. Note: Although a complaint is about the decision of a trustee, the Tribunal may join an insurer or other person as a party to the complaint (see subsection 18(1)). The Tribunal may then review any decision of a person joined as a party that may be relevant to the complaint. … (7) A complaint under subsection (2) is to be made by sending or delivering a written complaint to the office of the Tribunal. Note: See section 3 for definitions of complaint, complainant, excluded complaint and excluded subject matter. 5 Section 37 of the Complaints Act relevantly provides: (1) For the purpose of reviewing a decision of the trustee of a fund that is the subject of a complaint under section 14: (a) the Tribunal has all the powers, obligations and discretions that are conferred on the trustee; and (b) subject to subsection (6), must make a determination in accordance with subsection (3). (2) If an insurer or other decision-maker has been joined as a party to a complaint under section 14: (a) the Tribunal must, when reviewing the trustee's decision, also review any decision of the insurer or other decision-maker that is relevant to the complaint; and (b) for that purpose, has all the powers, obligations and discretions that are conferred on the insurer or other decision-maker; and (c) subject to subsection (6), must make a determination in accordance with subsection (3). (3) On reviewing the decision of a trustee, insurer or other decision-maker that is the subject of, or relevant to, a complaint under section 14, the Tribunal must make a determination in writing. … 6 In an application in the nature of an appeal to the Federal Court under s 46(1) of the Complaints Act, the Court exercises its original, rather than its appellate, jurisdiction: Cullinane v Mercer Benefit Nominees Ltd (2006) 152 FCR 1 at [1]; Vision Super Pty Ltd v Poulter (2006) 154 FCR 185 at [2]; Mohandoss v AMP Superannuation Ltd [2007] FCA 497 at [2]. 7 The Court's jurisdiction does not extend to a review of the Tribunal's decision on the merits, but is limited to the resolution of the controversy between the parties on questions of law: Webb v Teeling [2009] FCA 1094 at [4]; Flexiplan Australia Ltd v Pankhurst [2001] FCA 1535 ("Flexiplan") at [5]; TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178-182. Questions of Law 8 In the present case, the applicant submits that the Tribunal majority, in affirming the decision of the Board, misconstrued the relevant provisions of the Deed and failed to address the right questions, and instead addressed the wrong questions or took into account irrelevant considerations. 9 The questions of law identified in the notice of appeal are: (A) whether the Tribunal ought to have but failed to address itself to the decision of the respondent the subject of the complaint by the applicant under section 14 of the Superannuation (Resolution of Complaints) Act ("the decision complained of"); (B) whether the majority of the Tribunal ought to have but failed to address itself to the question of whether the decision complained of, in its operation in relation to the applicant, was fair and reasonable in all the circumstances; (C) whether the Tribunal ought to have but failed to address. itself to the question of whether the respondent could fairly and reasonably have formed the opinion that the disablement of the applicant was not of such a degree as to entitle her to a permanent and partial disablement benefit; (D) whether the majority of Tribunal erred in law in its construction and application of Ss. 4, 32, 46 and 49 and 46 of the Superannuation (State Public Sector) Deed 1990 (Qld) ("the Deed") in considering, alternatively took into account the irrelevant questions of: (i) whether, or whether the respondent could fairly and reasonably conclude that, or how many medical practitioners had concluded that the applicant was or would be "able to work", "unable to work" or "capable of work"; (ii) whether, or whether the respondent could fairly and reasonably conclude that, or how many medical practitioners had concluded that the applicant was able to work part time; (iii) whether, in the majority of the Tribunal's view, a significant number of the conditions from which the applicant suffered were not necessarily irreversible; (iv) whether, in the majority of the Tribunal's view, a significant number of the conditions from which the applicant suffered were functional; (v) whether or not, in majority of the Tribunal's view, a diagnosis of CFS could be made; (vi) whether or not, in the majority of the Tribunal's view, the treaters or independent medical assessors had indicated that the applicant was totally and permanently disabled.

[4]

13 The Deed thus provides for the payment of two kinds of benefit. First, by s 46 of the Deed, the Board shall credit the member's account with defined benefits and pay the member an annual pension calculated as specified (for convenience, "a TPD benefit") if an employed member becomes totally and permanently disabled ("TPD") before attaining the age of 55. 14 Secondly, by s 49 of the Deed, if an employed member becomes permanently and partially disabled ("PPD") before attaining the age of 55: …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 basic benefit. (for convenience, "a PPD benefit"). 15 In the present case, if the applicant were entitled to a PPD benefit she would receive the sum of $106,189.65 ($21,904.97 unpreserved). If she were entitled to a TPD benefit, she would receive an additional $327,961.99. 16 In May 2003, the applicant, who was then employed by Queensland Health as a senior psychologist, ceased to work. She lodged an income protection claim stating her condition to be "marked disc" profusion c#5 requiring neurosurgery (disc graft). The applicant received income protection payments for two years, which was the maximum period allowable. 17 On 20 May 2005, the applicant applied for a benefit by filling out an application form entitled "permanent disability benefit application". On the application form, the applicant stated that the medical conditions preventing her from performing her job were: 1. Chronic fatigue syndrome; 2. Fibromyalgia; 3. Degenerative spinal diseases - all regions, of which one arose in 1998 and two and three in early 2003. 18 In answer to the question "when did you first experience difficulty arising out of the above medical condition", the applicant stated: 1. (as to chronic fatigue syndrome) - 2000 significant pain and as to Fibromyalgia and degenerative spinal diseases - early 2003. 19 In response to the question "what particular duties are/were you prevented from doing", the applicant stated "all of them". 20 In response to the question "Have you been able to work in any job whether full or part‑time, paid or unpaid, since you became disabled? If so, please give details", the applicant stated "No - physically unfit and cognitively impaired (CFS and "Fibro-Fog")". 21 In response to requests to "give details of previous occupations you have had, including periods of employment", the applicant stated: "N/A - I have been with QHealth as a Psychologist for > than 10 years". 22 In response to the request "Please list qualifications, certificates or specialist work skills you have", the applicant stated: "BA(Hons1) Psch:MAPS Qld Registration". 23 The applicant was examined by an independent medical assessor, Dr P Stevenson. She provided medical reports to the Board prepared by Dr Rice, Dr Williams and Dr Olsen. The Board's delegate, the manager of insurance claims, received the application of Mrs Machin and the reports of Dr Rice, Dr Williams, Dr Olsen and Dr Stevenson.

[8]

28 A submission to the Board on behalf of the delegate stated that the issue to be resolved was "Is Mrs Machin permanently disabled? If so, was she permanently and partially disabled or totally and permanently disabled as set out in the QSuper Trust Deed when she terminated her employment?" The submission set out statements extracted from the medical reports and from the applicant's "final comments" letter dated 12 July 2006. It set out three options, under which the Board could: A affirm its delegate's decision that the applicant was not unfit from discharging or incapable of discharging the duties of her office efficiently when she terminated her employment on 16 June 2005; or: B determine that the applicant was permanently and partially disabled pursuant to the QSuper Unit Trust Deed; or: C determine that the applicant was totally and permanently disabled pursuant to the QSuper Trust Deed. 29 The further submission of the QSuper Fund to the Board dated 25 July 2006 stated the issue to be resolved as "is Mrs Machin permanently disabled? If so, was she permanently and partially disabled or totally and permanently disabled as set out in the QSuper Trust Deed when she terminated her employment?" 30 The submission described the delegate's decision as being "that Mrs Machin was not permanently disabled pursuant to the QSuper Trust Deed". The submission set out three options for the Board's decision: Option A: Affirmation of the decision of the Board's delegate that Mrs Machin was not permanently unfit from discharging the duties of her office efficiently when she terminated her employment on 16 June 2005. Option B: A determination that Mrs Machin was permanently and partially disabled pursuant to the QSuper Trust Deed when she terminated her employment on 16 June 2005. Option B stated: Based upon the medial evidence, the Board believes Mrs Machin is permanently unable to work as a Clinical Psychologist. However, the Board believes Mrs Machin is capable of working in administrative and clerical positions or in a supervisory position in a health related industry. Option C: A determination that Mrs Machin was totally and permanently disabled pursuant to the QSuper Trust Deed when she terminated her employment on 16 June 2005. 31 Under Options A and B, material findings were set out. No material facts were set out under Option C.

[16]

The Tribunal's Decision 47 On 8 January 2010, the Tribunal determined the applicant's complaint. 48 The Tribunal published reasons for decision dated 8 January 2010. The Tribunal's reasons comprised a joint section by all members (which, inter alia, summarised the medical evidence and the parties' submissions) and separate deliberations by the majority and the President (dissenting). 49 The Tribunal's joint reasons described its role as follows: "58. The Tribunal's role is to determine whether the Trustee's decision to reject the Complainant's claim for a TPD benefit was fair and reasonable in its operation in relation to the Complainant in the circumstances. The issue is not what decision the Tribunal would have made on the evidence before it. 50 The Tribunal set out the background and, inter alia, stated that the applicant "in May 2005…applied for a TPD benefit". 51 The Tribunal set out the definitions of TPD and PPD, and summarised each of the medical reports, the submissions of the applicant and those of the Trustee. It referred to the Trustee's submission that the applicant "was not permanently incapable of working as a clinical psychologist at the time she terminated her employment. [The Trustee] relied on her age and the words of the definition of TPD as set out in the rules". The Tribunal set out the Trustee's submissions on the judicial construction of "unlikely ever to be able to work in a job for which [she] is reasonably qualified by education, training or experience" and the views of two doctors. The Tribunal then referred to the Trustee's summary of medical opinion on the applicant's "orthopaedic disability", which indicated that it was likely that she would be able to work in the future and was not permanently unable to perform her duties. 52 The Tribunal discussed the nature of the Board's decision and the subject matter of the Tribunal's review as follows: 60. It should be noted that the Tribunal conducted this review noting that when the Trustee first refused the Complainant's application for a disability benefit it was because it decided that she was not "permanently unfit from discharging..." the duties of her office. It would seem too that, when the Trustee affirmed its decision to refuse the application for a disability benefit, it was for the same reason. In neither case did the Trustee make a specific determination about the Complainant's eligibility for a PPD or a TPD benefit. Nevertheless, the Tribunal accepts that the Trustee acted on the basis that the Complainant would have been entitled to a disability benefit if it had considered that she was `permanently' disabled, and that, had it found a 'permanent disablement' it would then have determined her level of disablement, namely, PPD or TPD. However, it is reasonably clear from the Trustee's records that as it had decided that there was no permanent disablement it did not turn its mind to the question of the level of disablement (whether she qualified for a PPD or a TPD benefit) because it was not necessary. The Complainant's position, as set out in the complaint, is that she should not have been denied a 'disability benefit' and that the benefit she ought to receive was a TPD benefit. It is for this reason that the Tribunal has reviewed this matter on the basis that it is the Complainant's entitlement to a TPD benefit that is in issue.

[20]

Dissenting member's reasons 60 The Presiding Member dissented. The Presiding Member reviewed the evidence of the medical assessors, observing that they were confined to their respective expertise and the particular time of their assessment. While none categorically found that the applicant was suffering from a TPD, none stated that she was fit for work when they saw her and all thought that she required further treatment in a number of different areas. 61 The Presiding Member concluded: 75. Taking into account all the medical evidence, diagnosing a number of physical and mental disorders, the Presiding Member's view is that no fair minded decision maker would take any other view than that, on the balance of probabilities, the Complainant was, at the relevant time, disabled, and that her disablement was "of a degree" as to render her unlikely ever to be able to work again in a job for which she was qualified by education, training or experience. It is plainly not possible, as the Complainant urges, for any findings to be made about whether or not she has CFS or FMS and, in the circumstances, it is not necessary. This is because, when all of the Complainant's medical conditions and medication requirements are taken together and considered against the background of the unsuccessful treatment that she has undergone and the lack of any "pathway to return to work ... which would result in a continued, sustained and reproducible improvement in her symptoms" the Presiding Member's view is that it is unfair and unreasonable for any decision maker to conclude 'that she did not satisfy the relevant TPD definition. 62 The Presiding Member also stated: 76. As the Trustee's initial decision to reject the Complainant's claim for superannuation benefits on the basis of her ill health and medical conditions was couched in the language off the PPD definition, the Presiding Member has further considered whether it was unfair or unreasonable in the circumstances for it to so conclude. It is noted that the Trustee has decided that the Complainant is "not permanently unfit from discharging or incapable of discharging" her duties of office, and hence has not qualified for any benefit. 77. As the PPD definition imposes a test for a benefit that is less onerous than that set for qualification for a TPD benefit, in that it does not require the Complainant to be "unlikely ever" to be able to work again in a job for which she is reasonably qualified by education, training or experience, it is the Presiding Member's opinion that, at the very least, the Complainant fairly and reasonably qualifies for a PPD benefit for the same reasons that she, in all fairness, ought to be considered as having qualified for the TPD benefit.

[22]

Tribunal's Determination 65 On the basis of the majority's determination, the Tribunal affirmed the Board's decision. Relevant Case Law 66 The role, jurisdiction and obligations of the Tribunal under the Complaints Act have been analysed in a number of decisions. 67 In Briffa v Hay (1997) 75 FCR 428, Merkel J allowed an appeal under s 46 of the Complaints Act by trustees of a superannuation fund from a determination of the Tribunal setting aside their rejection of the respondent's claim to certain benefits. The respondent had complained to the Tribunal under s 14 of the Complaints Act. The Tribunal determined that the respondent was entitled to increased benefits. 68 The questions of law raised on appeal to the Federal Court included whether the Tribunal's jurisdiction under the Complaints Act was confined to the exercise of discretionary powers by the trustees of a regulated fund, and whether the exercise of the Tribunal's jurisdiction could require trustees to make payments or engage in conduct in relation to members which was not provided for or authorised under the terms of the trust deed. 69 Merkel J discussed the history and aims of the Complaints Act. His Honour observed that it was enacted "as part of a co‑ordinated Commonwealth statutory scheme to provide for the prudent management and supervision of, inter alia, certain superannuation funds. … An objective of the Complaints Act was to provide, via the Tribunal, a "fair, economical, informal and quick" mechanism for the conciliation and, if necessary, review of the decisions or conduct of trustees which are the subject of complaints: see ss 11, 12 and 36 of the Complaints Act"(at [435]). 70 Merkel J recognised that the Complaints Act created significant new procedural and substantive rights for members of regulated superannuation funds, including "the right to challenge certain decisions of Trustees, which were otherwise valid and intra vires, on the ground that they were unfair or unreasonable" (at [437]). His Honour stated (at [437]) that: The Complaints Act confers wide powers on the tribunal, including the power to stand in the "shoes" of the trustee of a regulated fund and to itself make a decision which is fair or reasonable in substitution for the decision of the trustee: see s 37(3) and (4).

[31]

79 In Hest, Crennan J noted that the Tribunal's task under s 37 of the Complaints Act was to determine whether the decision of the trustee fund was fair and reasonable by standing in the shoes of the decision‑maker. 80 Her Honour nevertheless held that the Tribunal was entitled to consider an issue relevant to the unfairness and unreasonableness of the applicant's decision, although the applicant itself did not consider it. In Hest, the applicant had had no materials relevant to the question, but Crennan J stated that the Tribunal was not "restricted to the documents which were before the trustee, nor is it confined to the manner in which the applicant addressed the subject matter" ([40]). 81 Crennan J also noted that as the Complaints Act did not expressly identify specific considerations which the Tribunal was bound to consider. The relevant considerations were to be determined by reference to the subject matter, scope and purpose of the Complaints Act, the purpose of which "is to ensure members and beneficiaries are not adversely affected by unfair and unreasonable decisions of insurers and trustees: see ss 14 and 37" (at [49]). 82 The authorities indicate that the Tribunal's function is to conduct a "limited merits review", in the sense described by Pamela McAlister in "The Demise of the Superannuation Complaints Tribunal: The Decisions in Wilkinson v Care and Breckler v Leshem" (1998) 22 Melbourne University Review 281 at 287 (adopted by Marshall J in Constantinides at [30]), as follows: The Tribunal 'steps into the shoes' of the trustee and addresses the actual trustee decision de novo, based on all of the information before it. In awarding a remedy, however, it does not ask itself whether the trustee's decision was the correct or preferable decision, but rather asks whether the trustee's decision was within a range of decisions which were fair and reasonable. 83 In Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 ("Crocker"), Allsop J stated: [31] The Tribunal's task is not to engage in ascertaining generally the rights of the parties, nor is it to engage in some form of judicial review of the decision of the trustee or insurer. Rather it is to form a view, from the perspective of the trustee or insurer, as to whether the decision of either was (recognising the overriding framework given by the governing rules and policy terms, respectively) unfair or unreasonable. 84 In Crocker at [28], Allsop J recognised that a relevant consideration for the Tribunal was whether the delegate's decision conformed with the rules of the fund. Allsop J stated: [28] The question as to whether a decision was unfair or unreasonable cannot be judged otherwise than by having regard to the conformity of the decision with the governing rules of the fund and the terms of the policy. The conformity of the decision with those matters is therefore a relevant consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-40 and see Telstra Corp Ltd v Seven Cable Television Pty Ltd (2000) 178 ALR 707 (special leave refused on 20 August 2001). If conformity with the governing rules or the terms of the policy required the very decision, which was made, to be made, the strictures of subs37(5), the universe of possible conduct under subs37(3) and the balance of the Act, including subs37(6), would require a conclusion of the Tribunal that the decision was not unfair or unreasonable. It could not be otherwise, as it would, on this hypothesis, be the only decision capable of being reached by the Trustee or the Insurer in the light of the governing rules or terms of the policy; or, put another way, any determination under para37(3)(b), para37(3)(c) or para37(3)(d) would involve the Tribunal doing an act contrary to the governing rules or the terms of the policy. 85 In Cameron, the Full Federal Court confirmed that "[t]he Tribunal must take into account the relevant definitions in the Deed…" ([32]). 86 In Lykogiannis v Retail Employees Superannuation Pty Ltd (2000) 97 FCR 361 at [48], Mansfield J described the Tribunal's obligations as follows: [48] … Upon hearing a complaint, the Tribunal must make its own decision. In the course of doing so, it must make findings of fact relevant to its deliberations. The hearing by the Tribunal is a hearing de novo (see in particular the discussion by Merkel J in Oppenhuis at [18]-[22]). Ultimately, whatever findings the Tribunal must make standing in the shoes of the trustee (see the observations of Merkel J in Briffa and in Oppenhuis) s37(6) requires the Tribunal to decide whether the decision under review, in its operation, was fair and reasonable in the circumstances. The focus of s37(6) is upon the consequence or outcome of the decision in its practical operation, rather than upon the process by which the decision under review came to be made.

[32]

87 See also Mansfield J's observations in Hornsby v Military Superannuation & Benefits Board of Trustees No 1 (2003) 126 FCR 484 at [19]. 88 In Cameron, the Full Federal Court considered the definitions of TPD and PPD under the Deed at issue in this case. The Full Court recognised that it was not the role of the medical practitioners to form an opinion whether the member satisfied the definitions of TPD or PPD under the Deed. Nor would a medical practitioner's view of the meaning of the definitions in the Deed constitute medical opinion (at [31]). 89 The Full Court also recognised that the words following "job" in the definition of TPD might be words of limitation, of which the Tribunal should be conscious when performing its task, together with "the realities of the labour market in determining whether an appellant was 'unlikely' ever to be able to work in a job so qualified" (at [36]). 90 In Davis v Rio Tinto State Superannuation Fund Pty Ltd (2002) 118 FCR 170, Heerey J considered a definition of "totally and permanently disabled" which included the phrase "unlikely he will ever be able to engage in any regular remunerative work for which he is reasonably fitted by education, training or experience". His Honour adopted (at [18]) the view of the Commissioner in Ivkovic v Australian Casualty & Life Limited (1994) 10 SR (WA) 325 ("Ivkovic") that it would be necessary, in that context, to take into account not just physical capacity, but education, training, experience and prospects of "ever actually being able to obtain employment in any relevant occupation". Further, Heerey J agreed that "unlikely" [to follow employment] was a lower test than "incapable" [of working] ([18]-[19]). 91 In Riley v National Mutual Life Association of Australasia [1986] 4 ANZ Ins Cas 60‑684, Cosgrove J stated: "'Totally and permanently disabled' in relation to a member means having been absent from employment with the company through injury or illness for six consecutive months and in the opinion of the National Mutual after consideration of medical evidence having become incapacitated to such an extent as to render the member unlikely ever to engage in or work for reward in any occupation or work for which he is reasonably qualified by education, training or experience ................ ".. See also Cavill Power Products Pty Ltd v Royle (1991) 42 IR 229; Chammas v Harwood Nominees Pty Ltd (1993) 7 ANZ Ins Cas 61-175; Wyllie v National Mutual Life Association of Australasia Ltd (1997) 217 ALR 324; Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139. 92 In Constantinides, a definition of totally and permanently disabled initially stated "unable ever to engage in or work for reward", but was subsequently amended to provide "unlikely ever to engage in or work". Marshall J referred to Heerey J's decision in Ivkovic. His Honour accepted that the Tribunal did not err in determining that a definition containing the word "unable" set a more difficult threshold than one containing the word "unlikely" (at [28]).

[33]

The respondent's submissions 93 In its written submissions, the respondent submitted that the Tribunal's determination in this case was not affected by error. Rather, the Tribunal correctly discharged its statutory task of forming a view, from the trustee's perspective, whether the Board's decision was (in the light of the governing rules and policy terms) either unfair or unreasonable. The Tribunal did so, the respondent submitted, by recognising in para 60 of its reasons that although the Board did not make a specific determination that the applicant was eligible for either a PPD or TPD benefit under the terms of the Deed, it acted on the basis that permanent disablement was a necessary precondition of eligibility for either benefit and (as it found that there was no permanent disablement) it was unnecessary to consider the level of any disablement. 94 The respondent submitted that the Board's approach was based not on confusion about the definitions the Deed required it to address, but on a proper construction of the relevant provisions. Under the Deed before considering whether or not the applicant was TPD or PPD, the Board "was required to first determine whether the applicant suffered from a condition that would render her permanently disabled in either capacity". If that threshold were not met, she would not fall within the definitions of either TPD or PPD. It was necessary first to determine the existence of a permanent disability, as each of the definitions for TPD and PPD required a finding of a "degree of disablement". 95 Before me, the respondent submitted that: (a) In para 60 of its reasons, the Tribunal correctly characterised the Board's decision and approach to the construction of the relevant provisions of the Deed and, as a matter of inference, approved of that construction, which was indeed correct. (b) At another point, however, counsel conceded that the Board (despite the various articulations of its decision) probably in substance decided that the applicant was not PPD. The construction of the Deed adopted by the Board and approved by the Tribunal was nevertheless correct, because unless the preliminary condition that the claimant is permanently disabled be satisfied, it is unnecessary to consider the discrete definitional categories of TPD or PPD under the Deed. (c) Nevertheless, despite its implicit approval of the Board's construction of the Deed (which was itself implicit), the Tribunal majority did not err in addressing the TPD definition solely or at all, as that was the benefit sought by Mrs Machin in her application and correspondence. (d) Further, the Tribunal majority properly had regard to the medical evidence (including an unfavourable report more recently obtained) which indicated that Mrs Machin could resume employment in a different environment in about six to 12 months. It was open to both the Board and the Tribunal to conclude that she was not TPD. (e) The respondent conceded that the Tribunal majority did not consider, made no reference to and expressed no determination on PPD, but submitted that, by inference, if concluded that the applicant was not PPD and was not entitled to any benefit at all under the Deed.

[34]

The applicant's submissions 96 The applicant submitted that the Tribunal majority failed to address the correct questions and instead addressed the wrong questions or took into account irrelevant considerations. 97 The applicant contended that the Tribunal majority, the Board and indeed the delegate, successively misconstrued the Deed. The Deed required the Board to ask whether Mrs Machin had suffered a disablement which was either TPD or PPD. Instead, the Board erroneously (as its application form reflected) asked whether she were permanently disabled, and ultimately addressed neither the PPD or TPD definition. 98 The Tribunal then conducted its review on the basis that the Board decided that Mrs Machin would have been entitled to a benefit had she been permanently disabled and then would have determined her level of disability. The majority determined that Mrs Machin was not TPD and did not consider the question of her eligibility for a PPD benefit. 99 The applicant submitted that the Tribunal (and indeed, the Board and its delegate) erred in law in approving and applying a potentially two‑stage test, with a preliminary precondition of permanent disablement which, if not satisfied, dispensed with the need to consider the definitions of TPD and PPD. 100 The applicant submitted that the Tribunal majority also erred by considering only Mrs Machin's eligibility for TPD and failing to consider her eligibility for PPD. The majority compounded the error by applying the wrong tests for TPD and considering irrelevant matters, including whether a condition were irreversible (thus failing to distinguish between the underlying condition and the disability) and that few of the doctors considered the applicant to be TPD (although the doctors did not address that question but were directed to different questions by the Board). The majority misinterpreted the medical reports and relied on statements therein out of context. Further, the majority (like the Board and the Board's delegate) merely set out extracts from various medical reports in its reasons, without any analysis or exposed path of reasoning. 101 The applicant submitted that the Board's delegate, the Board and the Tribunal, particularly the majority, expressed their determinations in a number of ambiguous and inconsistent ways, and failed to characterise the decision they were reviewing accurately, evincing a fundamental confusion that persisted in para 60 of the Tribunal's reasons and the deliberations of the majority. It was not possible to discern which of the conflicting expressions of the Board's or the Tribunal's decisions prevailed. In any event, the absence of clarity was itself an error, and left open the possibility that there was no consideration or determination of the applicant's eligibility for PPD.

[36]

Whether Tribunal misconstrued relevant provisions of the Deed 103 As discussed below, no clear and consistent construction of the relevant provisions of the Deed emerges from the reasoning and expressions of either the Board or the Tribunal majority. The opacity and inconsistency with which the Tribunal majority expressed its own determination and characterised the decision it affirmed is explicable by the ambiguity of the antecedent decisions of the Board and the delegate, and the inconsistent statements in submissions successively forwarded to each decision maker. 104 It is, nevertheless, in my view, a reasonable inference that both the Board and the Tribunal majority construed the Deed as imposing a threshold requirement that an applicant for benefits be "permanently disabled" which, if unsatisfied, dictated a denial of any benefit and eliminated the need to consider whether the applicant satisfied the elements of the definitions of TPD and PPD. 105 On another interpretation, the Board and the Tribunal majority construed the Deed as requiring the consideration of only one category of available benefits and permitting the denial of any disablement benefit at all if the applicant were ineligible under either TPD or PPD. 106 In my opinion, each of the above constructions and applications of the relevant provisions of the Deed are erroneous. The relevant provisions, when construed in the context of the Deed as a whole and accorded a coherent mutual operation, require the Board to address the definitions of both TPD and PPD and to consider the particular elements thereof. The imposition of a threshold requirement of permanent disability or permanent disablement is unwarranted. 107 The Deed neither uses nor defines the composite term "permanent disablement" or variants thereof, such as "permanent disability". It does not define the word "permanent". It does not provide that any benefit is payable if an employed member becomes "permanently disabled". Rather, ss 46 and 49 of the Deed require the Board to credit the member's account if they satisfy, inter alia, the criteria of the relevant TPD or PPD definitions. 108 The word "permanent" is an element of the composite phrases TPD and PPD, each of which are defined at length and with great particularity. Although the word "permanently" is included in the definition of PPD to define the duration of the member's unfitness or incapacity to discharge the duties of office efficiently, the word is not an element of the definition of TPD, where different language ("unlikely ever again") describes the duration of the inability to work in a relevant job. The different language to describe duration in each definition indicates that the meaning of "permanent" differs from that of "unlikely ever again" discussed in relevant authority. "Disablement" is defined in s 4 to mean any mental or bodily injury, illness, disease or infirmity. 109 On analysis, the temporal element in the definitions of TPD and PPD is not directed at the injury, illness, disease or infirmity but at the member's likely or actual resultant unfitness, incapacity or inability to perform various specified occupations, roles or functions. The categories of TPD and PPD are labels identifying a degree of disablement which is defined, inter alia, by the duration or likely duration and extent of its effects, on which, inter alia, eligibility for a benefit depends. 110 The permanence or other duration of the member's degree of disablement is, despite potential overlap, distinct from, and does not necessarily coincide with, the permanence or duration of the resulting unfitness, incapacity or inability to work or discharge duties. 111 It does not necessarily follow that because a disablement is not "permanent", the resultant unfitness or incapacity to fulfil the duties of office efficiently would not be permanent or that the claimant would not be unlikely ever again to work in a suitable job. 112 No provision of the Deed authorises, expressly or implicitly, a threshold question whether the applicant has a permanent disablement or is permanently disabled. Such a question focuses on the duration of the disablement, as opposed to its effect on occupational capacity or ability as required by the TPD and PPD definitions. 113 On the respondent's construction, the definitions of TPD and PPD merely delimit different levels of a pre‑established condition of "permanent disablement" which is neither referred to nor defined in the Deed. In my opinion, however, the definitions of TPD and PPD constitute essential criteria of eligibility for the two distinct categories of disablement benefit available under the Deed, rather than different modes of measuring the magnitude of an antecedent state of permanent disablement or permanent disability. The imposition of a pre‑condition unwarranted by the terms of the Deed operates to deprive those applicants who fail to satisfy it of the opportunity to achieve eligibility under the definitions of TPD or PPD. 114 Eligibility under each category must be separately considered as the definitions are (by the express terms of the PPD definition) mutually exclusive and contain significantly different elements. The failure to satisfy the requirements of eligibility for a TPD benefit would not ipso facto exclude eligibility for a PPD benefit. Further, although the PPD definition apparently contemplates a lower level of incapacity, it is not clear that a failure to satisfy its requirements would, in every case, exclude eligibility for a TPD benefit. 115 The respondent submitted that, consistently with the approach adopted by the Board and the Tribunal majority, in White v Board of Trustees, State Public Sector Superannuation Scheme [1997] 2 QdR 659 ("White") the Court construed the Deed as authorising a threshold question of whether a claimant were permanently disabled. 116 White concerned the judicial review of the Board's decision that an applicant was PPD, as opposed to TPD, within the meaning of the Deed. White J considered the elements of the definition of TPD under the Deed, and in particular the meaning of "unlikely ever to be able to work again in a job for which the member is reasonable qualified by education, training or experience" and the correct test for a future event occurring. White J considered authorities which held that "unlikely" was not synonymous with uncertainty. Her Honour also referred to Ivkovic and considered the meaning of "a job". 117 Nothing in White J's reasoning, analysis or conclusions authorised the imposition of a preliminary or threshold requirement of permanent disablement which, unless satisfied, dispenses with the need to consider whether the elements of the definitions of TPD and PPD are satisfied.

[37]

Whether Tribunal failed to identify and address Board's decision 118 In my opinion, the Tribunal erred in that (despite an accurate formal articulation of the Tribunal's role) it failed to identify accurately, precisely or consistently the Board's decision. The Tribunal's difficulty in accurately identifying the Board's decision was unsurprising, given the Board's various inconsistent articulations of its determination. 119 In its Statement of Reasons for Decision, the Board identified the issue for resolution as whether Mrs Machin was permanently disabled. It stated that its decision was that "based upon the medical evidence the Board believed that Mrs Machin was not permanently incapable of working as a Clinical Psychologist at the time she terminated her employment". That conclusion did not, in terms, address the definitions of either the PPD or TPD categories. The terminology echoed elements of the definition of PPD, but referred to working as a clinical psychologist, rather than discharging the duties of office, and omitted the word "efficiently". 120 In contrast, the Board's minute and letter advising Mrs Machin of its decision stated that "the Board affirmed the delegate's decision that you were not permanently unfit from discharging or incapable of discharging the duties of your office efficiently when you terminated your employment on 16 June 2005". 121 The terms of the Board's minute and letter reflected the definition of PPD in the Deed. While the minute and letter indicated that the Board had affirmed its delegate's decision that the applicant was not PPD, the delegate's decision was itself ambiguously expressed. The conclusion in his reasons echoed the definition of PPD, but the delegate also appeared to address the question whether the applicant were permanently disabled. There was, at least, a dissonance between the Board's description of its decision in its reasons and its articulation of the decision in the minutes and the letter to Mrs Machin. 122 At para 2 of its reasons, the Tribunal identified the decision under review as "the Trustee's decision to deny the Complainant's Total and Permanent Disablement ('TPD') claim". 123 That statement, in my view, mischaracterised the Board's decision. Whatever the precise nature of its decision, the Board did not in terms, or by inference, deny a TPD claim. Rather, if anything, its decision was expressed, albeit inconsistently, as denial of a benefit based on the PPD definition. 124 At para 3 of its reasons, the Tribunal stated that by its letter, the Trustee advised the complainant that it had decided that she was "not permanently unfit from discharging or incapable of discharging the duties of her office…", inaccurately omitting the word "efficiently" the Board used in its letter. 125 In para 60 of its reasons, inconsistently with its previous statements, the Tribunal considered that the Board had affirmed its delegate's decision to refuse a disability benefit and for the same reason (that is, she was not permanently unfit from discharging the duties of her office, i.e. was not PPD). The Tribunal did not recognise that the Board, in its reasons, decided that the applicant was "not incapable of working as a clinical psychologist". The Tribunal, noting that the Board did not make a specific determination about the applicant's eligibility for PPD or TPD, explained the failure to do so by attributing to the Board an assumption that it was unnecessary, given that it had decided that there was no permanent disablement. 126 The Tribunal expressed no criticism of the Board's putative approach of determining permanent disablement and therefore not specifically considering the TPD or PPD categories. By inference, the Tribunal considered that approach to be, in substance, correct, as it should otherwise have rejected the Board's approach, identified the correct approach and applied it in the context of its determination. In so far as the Tribunal endorsed the construction of the Deed it attributed to the Board, in my opinion, it erred, for the reasons expressed above. 127 The Tribunal nevertheless observed that as the applicant complained of denial of a disability benefit and asserted that she should have received a TPD benefit, it would therefore review the matter on the basis that the applicant's entitlement to a TPD benefit was in issue.

[38]

Whether Tribunal failed to address whether Board could have fairly and reasonably decided applicant not PPD 128 The Tribunal's analysis in para 60 is, even on a benevolent reading, inexplicable in the light of the majority's subsequent deliberations. If the Tribunal rejected the approach it imputed to the Board it did not say so, yet (consistently with the Board's assumed approach) it should have considered whether the applicant were permanently disabled. Instead (while appearing to endorse the Board's assumed approach) the Tribunal stated that it would consider whether the applicant were TPD. That question would appear unnecessary on the Board's assumed approach, yet any reasonable alternative construction would also require a consideration of eligibility for a PPD benefit. The majority nevertheless considered only TPD, leaving the applicant's eligibility for PPD wholly unaddressed and, in my view, thereby erred. The majority did not expressly reject a claim for PPD but if, as the respondent submitted, it did so implicitly, the majority erred in failing to make clear its decision and giving no reason why a decision that the requirements for PPD were likewise unsatisfied was fair and reasonable in its operation on the applicant in the circumstances. 129 Further, the Tribunal erred in so far as (in para 60) it concluded that the terms in which the applicant expressed her claim justified its failure to consider her eligibility for a PPD benefit and authorised it to consider only her eligibility for a TPD benefit. 130 In her submissions, Mrs Machin claimed a TPD benefit, but she expressly disavowed any legal understanding of the Deed and its terms. Further, she inaccurately identified the Board's decision with the statement in the minutes (which used the phraseology of the PPD definition) as a rejection of a TPD claim. Nothing in Mrs Machin's communications could reasonably be construed as surrendering her claim to any PPD benefit to which she was entitled, should she be found ineligible for the higher TPD benefit she primarily sought. 131 The Tribunal was obliged to consider whether the Board's decision operated fairly and reasonably on the applicant in the circumstances, which included the applicable legal requirements, properly construed, of her eligibility for any disablement benefit under the Deed. In the event of any unfair or unreasonable operation, the Tribunal was required to stand in the Board's shoes and ameliorate it to the extent practicable. In that context, it was obliged to consider Mrs Machin's eligibility for a PPD benefit if she did not satisfy the conditions for a TPD benefit, irrespective of the focus on the latter in her submissions. 132 Although para 60 was included in the joint section of the Tribunal's reasons, the President (dissenting), in contrast to the majority, separately considered the applicant's entitlement to both a TPD and a PPD benefit consistently, in my view, with a proper construction of the terms of the Deed and the Tribunal's role.