Maciejewski v Telstra Super Pty. Limited

• 9 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

004210/97 - HELEN MACIEJEWSKI -V- TELSTRA SUPER PTY LTD

1 HIS HONOUR: This is the second part of proceedings under which the plaintiff claims to be entitled to benefits under the Telecom Superannuation Scheme because, she says, that she ceased to be an employee of what is now Telstra as a result of total and permanent invalidity, her employment having come to an end on 13 September 1991. It came to an end pursuant to a statutory regime under which she was required to attend work and failed to do so and as a result of that after a time her employment was deemed to have come to an end. 2 It is accepted that the amended summons which was filed 7 November 1997 is inappropriate because it seeks a declaration that the plaintiff ceased to be an employee of her employer through total and permanent disability within the meaning of the Scheme rules, and secondly, seeks an order for payment of the amount which the plaintiff would be entitled to if she was entitled to a payment because of total and permanent invalidity. 3 These proceedings came on for hearing in the first place before Mr Justice Young on 17 August 1998 when he drew attention to this and it was accepted that at least in this case the appropriate relief was, if any were granted, that the matter be sent back to the Trustee for a proper determination. He came to the conclusion on the material before him that the defendant Trustee failed to deal with the plaintiff's claim for benefits fairly and adequately as it was required to do and, therefore, he ordered that the defendant properly consider the plaintiff's claim and present a report to the Court as to its consideration. That has now been done and the matter is back before the Court. 4 It is therefore accepted that a further amended summons is to be filed under which the plaintiff will seek an order that the matter be referred back again to the Trustee to make a proper determination as required by it under the Fund rules. The matter has therefore proceeded on the basis that an amended summons will be filed and it will be necessary for me to make an order that that be done by not later than Monday next. 5 The defendant has reported to the Court and there is evidence now of the material which was taken into account by the directors of the defendant Trustee when they made their decision on 25 November 1998 and rejected the claim of the plaintiff for benefits. That material, amongst other things, included reports of at least sixteen doctors some of whom gave two reports. In the cases where two reports were given it could be said in general that the first report was given in connection with the claim under the Compensation Commonwealth and Government Employees Act 1971 or its successor the Commonwealth Employees Rehabilitation and Compensation Act 1988. 6 As was pointed out by Mr Justice Young in his earlier judgment entitlement under that Act required that the injury, or if you like, the disability arose as a result of or in the course of the work the plaintiff was employed to do, whereas an entirely different consideration would arise under the provisions of the Superannuation Scheme. 7 Under cl 2.3.3 of the Trust Deed for the Telecom Superannuation Scheme in force at the time in question it is provided as follows: Subject to Pt 2.4 if a member ceases to be an employee before attaining the age of sixty years because of total and permanent invalidity there is payable to the member from the Fund a lump sum benefit of an amount equal to the benefit which would have been payable under cl 2.3.2 if the member had died on the date of invalidity." 8 Total invalidity is defined under the rules as follows: Total and permanent invalidity means in relation to a member disablement as a result of which (a) Unless otherwise agreed between the Trustee and the principal employer from time to time either generally or in any particular case the member has been continuously absent from all active work for a period of at least six months and had been required by the employer to participate in a rehabilitation programme and

(b) In the opinion of the Trustee after consideration of any information evidence and advice provided to the Trustees by the employer and any other information evidence and advice the Trustee may consider relevant the member has ceased to be an employee and is unlikely ever to engage in any gainful work for which the member is for the time being reasonably qualified by education, training or experience. 9 There follows certain exclusions relating to what might be described as invalidity caused through a deliberate act or inaction of the claiming person. 10 Counsel for the plaintiff says that the Trustee must form the opinion as at the date it makes its determination, in this case namely November 1998, as to whether the claimant is unlikely ever to engage in any gainful work, and if the answer to that question is in the affirmative whether that state of being unable to engage in any gainful work was the reason the member ceased to be an employee, in this case, in 1991. In other words what is said is that the position as to invalidity must be looked at at the time the decision is made and not at the time of ceasing to work. 11 Counsel for the defendant says that the relevant date is the date of ceasing work but that what has happened since then is relevant and ought to be taken into account because if the member had gone back to work that is obviously a relevant matter and if the member has not gone back to work then that is evidence which might bear upon the question of whether the member was totally and permanently incapacitated from work at the date when work ceased. 12 I have come to the conclusion that it is necessary to look at the 1991 date and to establish cessation of employment because of total invalidity as at that date, because if that were not so sense could not be given to the requirements of 2.2.3. Counsel for the plaintiff says that the Trustee through its directors did not consider the appropriate question and therefore did not give real, genuine and fair consideration to the claim of the plaintiff which the Trustee was required to do. He goes on to say that because there is no evidence from any director of the Trustee company and therefore there was no opportunity to cross-examine any Trustee, and because the Trustee itself has chosen not to give reasons for its decision then one must look carefully at the matters now before the Court to determine whether or not the decision of the Trustee was based on a fair consideration of the evidence before it and the matters it was required to take into account under the rules. 13 I have some difficulty with the criticism, if it were that, levied at the defendant for not giving affidavit evidence through one of its directors thereby subjecting that director to cross-examination. This argument, as I understand it, was that questions in cross-examination could be directed towards establishing the reasons for the decision. It is accepted the Trustee is not bound to give such reasons and thus it does not seem to me that criticism is really fairly based. What the plaintiff must establish to make out her claim for relief is that the decision of the trustee to reject her claim was a decision that no reasonable person could come to on the evidence available to it. It is not the function of the Court to decide whether a particular decision might or might not have been more reasonable in its view than the decision to which the Trustees have come. If that were the position then the discretion of the Trustees, or the decision of the Trustees, would be of little significance because the Court would always be able to replace that decision with its own decision and that is clearly not the requirement under the rules nor the position in law. 14 What is required is a proper consideration of the claim of the member under the Scheme rules and a fair determination of that question. If upon the material before the Trustee a decision is come to which no reasonable person could have come to then the Court can declare that to be the position and send the matter back for proper determination by the Trustees in accordance with its duties under the rules. If there is some continuing failure to consider the matter properly then it would be my view under normal circumstances that the appropriate course would have to be for proceedings to be brought for removal of the Trustee so that a new Trustee could be put in place so that the members, being the beneficiaries under the Deed and Rules, would obtain what they are entitled to obtain, namely a proper consideration of their claims for benefits under the Scheme. 15 The question then for consideration is whether or not the Trustee fulfilled its obligation under the Scheme or, more properly, whether it has been shown that it did not. In my opinion that has not been shown. First, I do not think it has been shown that the Trustee addressed the wrong question or that it asked its medical advisers the wrong questions. Second, I do not think it has been shown that the decision to reject the plaintiff's claim was a decision which no reasonable person on a proper consideration of the materials could have come to. 16 The Trustee took two steps: first, it obtained some new medical reports, first, from Prof Muirdin, a rheumatologist and, from Dr Gibney who is a consultant psychiatrist, these reports being obtained for the purposes of its reconsideration and second, so far as was possible, it obtained new reports from those doctors who had earlier made reports in connection with the compensation proceedings. Most of those doctors were available and provided new reports. 17 In such cases the Trustee wrote to the relevant doctor stating why the information was required, namely, to assess issues relating to total and permanent invalidity, gave details of the plaintiff's educational level and employment history which may have had one mistake but in general could not be challenged, and then asked certain questions as to the diagnosis of the plaintiff's condition as at 13 September 1991; the effect of her condition on her work capacity at that time and her prognosis for a full or partial recovery; whether as at that date the plaintiff was able to perform any work; and if not the probability of her subsequently engaging in gainful work and, if so, what type of work would be suitable. 18 It is relevant to point out, in fairness to the plaintiff, that a number of these doctors had never considered that the plaintiff was suffering from any disability which prevented her from engaging in work. As I understand the position that finding had nothing to do with some work-related injury but, rather, a finding that there was no disability in any event. Thus while Dr Scarfe considered that the plaintiff had no physical condition and it would appear from his report no condition which would prevent her from engaging in any work and that opinion was given in response to her claim that she had sustained a repetitive strain injury at work, his opinion of the plaintiff's physical condition was not restricted to some result from a work injury. In those circumstances he reiterated the same view in his later report of 21 October 1998, that view being that there was no objective, organically based acceptable diagnosis for the symptoms she described. In the same way Dr Dyball, who is a specialist psychiatrist who examined the plaintiff in December 1991, considered that she had no psychiatric illness and reiterated that view in his report of 12 October 1998. In other words he said she had no psychiatric disorder so she had nothing to recover from. Much the same thing is said but in a much longer form by Dr Bell. The trustee, after consideration could have accepted the opinions of these doctors. 19 As against that type of material there was material available and before the Trustees of the plaintiff's two treating doctors and there was other material, for example, from Dr Champion, that he would prefer the view of the treating doctors to those who had given opinions only for medico-legal purposes. The two treating doctors, Dr Guirgis and Dr Samad, both at the earlier stage and both now consider that the plaintiff had and has a genuine disability. Dr Samad considers this a depressive reaction, resulting from repetitive strain injury which Dr Guirgis accepted was an injury which the plaintiff had or a disability which the plaintiff had in 1991 which required her to cease work. 20 There was thus material before the Trustee and its directors (which included the report of Dr. Gibney) on which they could have found that the plaintiff had established an entitlement to the total and permanent disability benefit under the Fund. There was also material before the Trustees on which it was possible for them to find that that was not the position. In my view it could not be said that in so finding they came to a decision which was not open to them on the evidence before them or that they considered the wrong question. In essence they found that the plaintiff was not disabled from work as a result of a disability. There was evidence that work was available to her in 1991 and that she had been asked to go back to do work and had refused to do so. Thus there could be no question that full time work was not available if there was an ability to perform that work. 21 As I have said the Court cannot substitute its view for the view of the Trustee. What it must do is determine whether the plaintiff has shown that the Trustee addressed the wrong question or in addressing the right question came to a conclusion which no reasonable person could have come to on the material which was before it. It might also be possible for the plaintiff to succeed if it were shown that the Trustee had made its decision without having sufficient material before it to enable its decision to be made. None of these matters have been made out and in those circumstances the summons should be dismissed. 22 I give leave to the plaintiff to file a further amended summons seeking that the plaintiff's claim for benefits under the Telecom Superannuation Scheme be referred back to the Trustee for proper determination. I order that the amendment be deemed to have been made. I order the plaintiff to file the further amended summons by 4 p.m. on Monday 12 April 1999 in accordance with the leave given. I order the plaintiff's claim be dismissed. (Submissions on costs.) 23 I order that the costs involved in making the determination of 25 November 1998 be paid out of the general Fund which costs include the fees for the medical reports submitted by the plaintiff. I order the defendant's costs of these proceedings since 17 August 1998 (being those separate from the costs involved in the Trustee's determination) be paid by the plaintiff. 24 I propose to order in addition that the material exhibited to the affidavit of Mr Stevens be marked as an exhibit. The whole of the material exhibited to the affidavit of Mr Stevens sworn 8 February 1999 will be marked Exhibit DX3 on the proceedings. I order that the exhibits be returned but be available for return to the Court if required.

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