Michael John Lattin v Optus Administration Pty Ltd & anor.

3 It was a term of his employment that the applicant was required to become a member of the Optus Superannuation Plan and, as successive contracts were entered into in his employment, that obligation continued. The applicant's employment contract required him to remain a member of the Plan. In accordance with these obligations the applicant became a member of the Plan which provided a death benefit and disablement protection. The amount of benefit reflected the salary arrangements and, immediately prior to his termination, the applicant had an entitlement to a benefit returning over $900,000 in the event of his total incapacity or death. The arrangement also permitted employees to obtain a capped benefit if they did not submit to a medical examination. In the applicant's case this sum was $700,000 and represented his entitlement under the policy because he had a medical history which he was aware would be likely to disqualify him for the highest benefit: in those circumstances, the applicant did not submit himself to medical examination and was aware that his benefits under those arrangements would be capped at the figure of $700,000.

A DISPUTE ARISES 4 Approximately 45 days after his termination and after the Deed of Release had been executed the applicant received a letter carrying the title "Optus Superannuation Plan". This letter provided a statement of the applicant's benefits on ceasing his employment with Optus. Under a heading "Your death benefit and insurance protection" the letter stated: You are entitled to a replacement cover of up to $700,000 within 30 days of leaving service, on 26/03/2001(provided you are under age 60). The continuation option is subject to an AIDS exclusion. Please refer to your Notes for further information. If you wish to take advantage of this offer, please contact William M Mercer Pty Ltd ... William M Mercer Pty Ltd managed a group life insurance policy which had been purchased from National Australia Financial Management Ltd by the Optus Superannuation Plan.

5 On receiving this statement and advice, the applicant immediately contacted William M Mercer Pty Ltd seeking to take up the continuation benefit understanding that under the arrangement he would be obliged to pay the usual premiums. He was informed that he was out of time to exercise his right to obtain replacement cover. The applicant sought re-consideration on the basis that he had only just been informed of his entitlement to continuation of the policy and had immediately sought to exercise it. He was informed that the normal practice was to adhere strictly to the time limit set by the policy, in this case 30 days, but steps would be taken to see what could be done. Having heard nothing from William M Mercer Pty Ltd, approximately five days later the applicant contacted the company again but was told there was nothing that could be done to allow him to continue the policy under the terms of the Optus Superannuation Plan. The applicant then raised the matter with his solicitors and representations were made on his behalf directed to the Optus Superannuation Plan seeking to have the continuation benefit made available to the applicant. These representations were unsuccessful.

6 Having failed to secure continuation of the insurance benefit, the applicant commenced these proceedings under s 106 of the Industrial Relations Act 1996. The Summons, as amended, makes no claim in relation to appropriate termination and redundancy payments (those matters having been settled and being the subject of the Deed of Release executed by the parties). The claim pursued centred on the unfairness of the applicant not being properly informed of his entitlement under the Optus Superannuation Plan to take up the continuation option capped at a figure of $700,000. He regarded this as a valuable benefit because of his state of health and his inability to obtain similar cover as an individual: he accepted his liability to pay the usual premiums for such cover.

7 As the issues were clarified by the parties in the preparation of the matter for hearing, the respondents raised as an absolute bar to the relief sought the terms of the Deed of Release which the applicant had executed. In those circumstances, the applicant's case centred on paragraph 1A of the Amended Summons seeking an order varying the Optus Superannuation Plan and/or the contracts of employment between the applicant and the first respondent so as to provide that the first and/or second respondents (whether jointly or severally) should either insure the applicant against death or accidental disablement for an amount of $700,000 or obtain for the applicant the benefit of a policy insuring him against death or accidental disablement for an amount of $700,000 - in either case so as to put the applicant in the same position he would have been in had he applied for replacement death and disability insurance under the terms of the Optus Superannuation Plan on or before 10 May 2001. The applicant's case, as presented at the hearing, focused on what was described as a traditional approach of restoring the applicant to the position he was in prior to his redundancy. The respondents' case emphasised the information regularly made available to all employees including the applicant as to the availability of the continuation option and asserted there was no unfairness arising from their conduct. The respondents' primary position was that the claim, in any event, was barred on the application of the principle of issue estoppel because of the terms of the Deed of Release.

8 Because of deterioration in the health of the applicant, the hearing of the Summons for Relief was, by consent of the parties, expedited. This judgment therefore reflects the urgency of the matter and may account for any lack of felicity of expression in its terms.

THE EVIDENCE 9 Mr Lattin gave the following medical history: in 1969 he was diagnosed and treated for Hodgkin's lymphoma; he suffered arterial damage during radiology treatment; in 1992 he underwent a coronary angioplasty, and in 1998 he underwent triple coronary by-pass surgery. By August 2004, the applicant had been diagnosed with non-Hodgkin's lymphoma and was scheduled to undergo a course of chemotherapy. A medical report supporting the application for expedition stated that Mr Lattin had been admitted to hospital with peritonitis secondary to a perforated colon and appendicitis related to non-Hodgkin's lymphoma. The condition would require immediate intensive therapy in hospital and, while he appeared to be doing well as at August 2004, his latest illness represented a potential threat to his life in the short, medium and longer term. His response to chemotherapy would effectively determine his medium and longer term future.

10 The applicant said that his experience since 1969 was that his medical history prevented him from qualifying for life or disability insurance. He was able to qualify for life and disability insurance under the Optus Superannuation Plan. That insurance gave him cover of $700,000 and was available notwithstanding his medical history. He had never been asked to provide any statement as to his medical history or condition in order to qualify for this level of life and disability insurance under the Plan up to the amount of $700,000.

11 During the course of evidence, it became clear that, as a result of his earlier employment with Channel 10, Mr Lattin had also qualified for death and disability insurance cover with that cover continuing after the termination of that employment. That policy commenced on 30 January 1995 and provided for life insurance cover in the amount of $955,089. It was a policy acquired and held without the need for any medical assessment and, as at the end of December 2003, the policy was transferred without the need for a medical assessment, to Australian Casualty and Life with the sum insured being increased by the automatic application of an indexation formula to $1,173,078.

12 The applicant stated that, because of his medical history and the senior positions he was being offered with the first respondent, it was his obligation to disclose his medical condition. He said that on a number of occasions he discussed his medical history and its effects on his ability to obtain life or disability insurance with officers or employees of the first respondent. Mr Chris Anderson became the Chief Executive Officer of the first respondent in 1997 but when they were colleagues in New Zealand at TVNZ in 1994, the applicant told Mr Anderson that he had cancer when he was a young man and that because of radiology the arteries around his heart had been scarred. This had led to blood flow problems to the heart and when he was 42, following a heart attack, he had angioplasty to widen the arteries to allow normal blood flow. It was a continuing problem which would get worse and he might require chest arteries to be replaced in the future. In 1996, while he and Mr Anderson were still in New Zealand, he reported to Mr Anderson that he required a week of tests to the arteries around his heart. In 1998, while he was an employee of the first respondent, he underwent by-pass surgery and he made Mr Anderson and other employees of the first respondent aware of that procedure. Later in 1998, when Mr Anderson offered the applicant the position of head of Pay Television for the first respondent, he was asked whether he would be fit enough for the job and was also asked how he had been since being hospitalised. The applicant replied that since the operation he seemed well enough, his health was a lot better but he had to keep monitoring his health. The applicant stated that Mr Anderson regularly enquired about his health. In 1999, he discussed his medical history with Mr George, the Director of Corporate Strategy for the first respondent.

13 In late October 1999, some two and a half years into his employment with the first respondent, the applicant received a letter from William M Mercer Pty Ltd. That letter informed him that, under the Optus Superannuation Plan, there had been an annual review of his benefits in relation to death and total and permanent disablement cover. Under the fund formula, he was entitled to cover delivering a benefit of $774,687 but there was also a restricted level of cover capped at $700,000. He was instructed to supply medical information, complete a medical examination with his general practitioner and to supply a blood test. Until that course was completed, the amount of insurance paid if he died or became disabled would be limited to the sum of $700,000. The applicant spoke with Mr Chris Hancock, the head of Human Resources for the first respondent, and asked what he should do in relation to the letter, having informed Mr Hancock that previous enquiries relating to health insurance indicated to the applicant that, because of his medical history, he would be unable to receive life insurance cover that depended upon a favourable medical assessment of his health. In the course of this discussion, he informed Mr Hancock of his medical condition. Mr Hancock stated that he was aware of his medical situation because he had been told about it by Mr Anderson and that the applicant should not worry about the matter because he was guaranteed the restricted level of cover of $700,000 without having to produce any medical records. He said he would advise the appropriate people about the matter.

14 As a result of the conversation with Mr Hancock, the applicant did nothing about the matter and did not submit to a medical. In November 2000, he received a letter from the first respondent informing him that it had received correspondence from William M Mercer advising that his medical cover had been restricted to $700,000 because he had not supplied any medical documentation to them.

15 In late 1999 or early 2000, the applicant said he discussed his medical history with Mr Nick Smith who was employed in the Human Resources department of the first respondent. This discussion took place during the course of a conversation about aspects of the Plan. Mr Smith had asked the applicant why he had limited his life insurance and disability cover to only $700,000. The applicant said he then described his medical history and also informed Mr Smith that he had spoken to Chris Anderson and Chris Hancock about these health problems. The applicant also informed Mr Smith that he could not get cover that required him to supply a current medical status or history and that he had to depend on what he could get automatically under the terms of the superannuation scheme. 16 The applicant said that he was not aware until 10 May 2001, after his termination, of the existence of the continuation option. He was not aware of the group life insurance policy or its terms dealing with the continuation option. If he had been aware of the option, because of his knowledge of his inability to obtain cover himself, he would have immediately availed himself of the option. Although he was aware of the first respondent's intranet site he had no cause to access that site during his employment nor did he use that site to obtain information about the Plan or the insurance policy. During his employment, he had not been provided with a booklet describing the benefits provided under the Plan.

17 In relation to the termination of his employment, the applicant said that he was called to a meeting on 26 March 2001 at 9.00 am and informed that his position had been made redundant effective that day. The meeting was attended by Mr Chamberlain (Managing Director of Consumer and Multimedia, Cable and Wireless Optus Ltd) and Mr Smith (Director of Human Resources). He had no prior warning or suspicion that his employment was going to be terminated that day and he had not been told that his termination was being contemplated by the first respondent. In those circumstances, he had not made any preparations for the possibility of his termination and had not considered his financial position or his position under the Optus Superannuation Plan. He was told not to return to his office, to hand in all his employment related possessions and that his personal possessions would be gathered by his personal assistant and returned to him. He was escorted from the premises and had no access from that moment to his computer, the first respondent's intranet site or to any other details of the Optus Superannuation Plan.

18 At this meeting, Mr Chamberlain and Mr Smith advised him that all details regarding his termination and superannuation entitlements would be sent to him immediately. As he was accompanied from the Optus offices, Mr Smith told him that all the paper work concerning the termination of his employment, tax, superannuation etc would be sent to him over the next couple of days. This meeting took place at the first respondent's North Sydney offices, whereas the applicant worked from offices in North Ryde.

19 On 26 March 2001, the applicant was provided with a letter signed by Mr Chamberlain advising him of the restructure and that his position had been made redundant effective that day. He was informed that there was no suitable redeployment available to him, that "within the next seven days you will be provided with a breakdown of your final payments as at today's date" and thanked him for his efforts and contributions. In terms, it does not appear that the applicant received a document setting out all his entitlements including his superannuation entitlements but, on 27 March 2001, he received a letter advising that a number of discretionary incentive awards were included in the final payment in return for entering a deed, a copy of which was enclosed. The applicant sent this correspondence to his solicitors who negotiated a Deed of Release which was executed by the applicant on 5 April 2001. The Deed made no reference to superannuation or superannuation entitlements.

20 On 10 May 2001, the applicant received a letter dated 7 May 2001, under the letterhead "Optus Superannuation Plan" which gave details of his benefits upon cessation of his employment with Optus. That letter confirmed a total benefit of $255,717.99 and stated: "The attached benefit statement on leaving service provides additional information on your benefit entitlement". The applicant was further advised that his benefit had been transferred to the AMP Eligible Rollover Fund and that information about his entitlements to the benefit would be forwarded under separate cover. This letter was signed by "Stuart Watson", Client Services Associate, a person unknown to the applicant. The letter contained a note at the bottom of the first page in the following terms: "Trustee: Optus Superannuation Pty Ltd ACN 056 251 622". For taxation purposes, the following page gave membership details by reference to date of birth, the date the applicant had joined employment, details of the retrenchment benefit and under a heading "Your Death Benefit and Insurance Protection", the following was stated: · your death benefit on the date you finished service was $954,838.27. · you are covered for $700,000 for death and accidental disablement for 30 days after leaving service on 26/03/2001 (provided you are under 60). Please refer to your member booklet for details. · you are entitled to replacement cover of up to $700,000 within 30 days of leaving service on 26/03/2001 (provided you are under aged 60). The continuation option is subject to an AIDS exclusion. Please refer to your Notes for further information. If you wish to take advantage of this offer, please contact William M Mercer Pty Ltd on (02) 8272-6413. The Notes attached to the letter advised the recipient to read the membership booklet and annual report for more details about benefits but invited contact with the Optus Super Helpdesk if a copy of the booklet or report was not held. Further, if there were any questions, the recipient was advised to contact the Optus Super Helpdesk - a postal address as well as a telephone number was provided.

21 The applicant stated that this letter from Optus Superannuation Plan dated 7 May 2001 was the first time following termination of his employment that anyone on the part of the respondents had communicated any information to him about replacement insurance or had informed him that he was entitled to replacement insurance under the Plan, but only if he applied for it within 30 days of the termination of his employment.

22 Upon receiving the correspondence and reading it, the applicant immediately telephoned the number provided and spoke to a Mr Tai at William M Mercer Pty Ltd. Mr Tai advised him that, even though he had only received the letter that day, he was out of time to exercise his right to obtain replacement cover. Mr Tai gave an indication that he would look into the matter and the applicant telephoned him again on 15 May 2001, only to be told by Mr Tai that nothing was able to be done as his request was not made within the 30 days option period. The applicant then instructed his solicitors to write to Optus to raise the difficulty concerning the continuation option.

23 By letter dated 22 May 2001 the applicant's solicitors wrote to Mr McIntosh, Manager, Employee Relations for the first respondent recounting the fact that the applicant had been advised well after the expiration of the 30 day time limit that the option was available and asking Mr McIntosh to raise the matter "with the appropriate people" in light of William M Mercer's indication that it would strictly apply the option time limit. In this correspondence it was pointed out that the applicant was not aware of his rights until he had received the letter on 10 May 2001 and had immediately acted upon it. The insurance cover was a significant benefit to the applicant and was a matter of "some priority to him". Having received no response to that correspondence, on 6 June 2001 contact was made with the first respondent: Mr McIntosh was on leave but another member of the staff informed the applicant's solicitor that the issue of the continuation option was one between William M Mercer Pty Ltd and the applicant.

24 On 25 July 2001, Mr McIntosh sent a facsimile to the applicant's solicitors advising that an "indicative premium" available to the applicant had been obtained from the NRMA and City Corp Executive. In both cases, the cover for $700,000 relating to death or total and permanent disability showed coverage at approximately $6,500 per year was available for smokers and at about $3,500 per year for non-smokers. They were advised further that the applicant might be able to obtain "some further more beneficial rates if he contacted other insurance brokers".

25 On 13 July 2001 the applicant's solicitors wrote to the Trustee of the Optus Superannuation Plan setting out the circumstances of the applicant's termination and his rights as a member of the Plan. The letter recounted the contact with William M Mercer Pty Ltd and the correspondence with Mr McIntosh. William M Mercer Pty Ltd was unwilling to accept an out-of-time election by the applicant and Mr McIntosh had indicated that the issue was one for William M Mercer Pty Ltd and did not involve the first respondent. The Trustee was asked in those circumstances to forward a copy of the Rules under which the Trustee administered the Plan and to advise what steps the Trustee proposed to take to "remedy the unfairness visited upon our client".

26 By letter dated 20 July 2001, the Optus Superannuation Plan through Mr Ian Grey, Assistant Plan Secretary, replied to the applicant's solicitors' correspondence of 13 July 2001. After enclosing a copy of the Plan Trust Deed, it was stated that the position of the Trust was that all members of the Plan were provided with sufficient information to enable them to continue their insured superannuation benefits in a timely manner following the cessation of employment. Information in that regard was placed on the Optus Super website which was available to all members and clearly indicated the circumstances in which replacement insurance cover could be arranged on termination of employment. The letter then continued: On the basis that members will receive information regarding their benefits from the Plan Administrators some six to eight weeks after they have ceased employment, it is not the Trustees' intention that the Benefit Statement issued to members on leaving is the main source of information that members receive in terms of the availability of replacement cover. Reference to the replacement insurance cover option is also made on page 6 of the member booklet ... . Therefore, in response to your query, the Trustees contend that sufficient information was available to Mr Lattin to enable him to effect a replacement insurance policy within 30 days of ceasing employment.

27 The applicant's evidence was that the indicative premiums supplied by Mr McIntosh on 25 June 2001 were of no assistance because he was already aware that with his medical history he was unable to obtain such cover at any price outside of the Optus Superannuation Plan.

28 In cross-examination, the applicant stated that he was 51 years of age when he was terminated, and was now 54. After his employment with the first respondent was terminated, he was working through his own company. The applicant accepted that the first respondent used the email system to communicate with its employees but that that was only one method of communication: he had received many memoranda and it was his experience that sometimes hard copies were sent to all staff. He accepted that he had access to a computer and that the Human Resources Manual, among other things, was on the intranet site. However, he could not remember one email being forwarded to him or emails from time to time being forwarded to him concerning the superannuation Plan. He did not recall receiving any updates in relation to the Superannuation Plan. He was aware of the existence of the Plan's membership book but only after this case was started, and was not aware of it while he was employed.

29 The applicant was shown his application for membership of the Plan which he signed in April 1997. He said that this document had been given to him by the CEO of MovieVision and that he signed it as part of paper work and general housekeeping documents that he was required to sign. The application for membership contained an acknowledgement that he had received the membership booklet, but the applicant said he did not receive that booklet from the CEO or from Optus at that time or later. He was given some petrol cards and three or four other things and he was simply told to sign the documents. He did not recall receiving any information pack concerning his employment.

30 He was shown a document which he said was faxed to him in New Zealand and was his first contract with Optus and its related companies. Although he had carefully read the document, including the part that said he had received a copy of the booklet concerning superannuation, in fact, he did not receive that booklet. He recalled that at the time Mr Johnson was anxious to have the contract signed, had sent it to him in New Zealand and he had sent it back. The applicant believed that when he arrived in Australia he would be given a number of documents but, as it turned out, he had little contact with Optus and all his contact was with VisionWorld.

31 The second contract with the first respondent and its related companies was signed in Australia. Again reference was made to superannuation and being supplied with the superannuation booklet and annual report. The applicant said he received no documents and it was signed with Mr Johnson in a hurried way in the Optus building. He thought he would obtain these documents at a later date but that did not occur.

32 The applicant read the annual report each year relating to superannuation and in particular the analysis of the value of his portfolio. He was shown a copy of the 2000 annual report on superannuation but he could not recall if he had read it. Each year he had read the document containing his personal details but he could not recall if the annual report was with that document.

33 He was shown a document which was a flyer to members but the applicant said he did not receive it. He did recall receiving a breakdown of his own benefits.

34 The applicant said that he could not recall if he had looked at information concerning the Superannuation Plan although he knew of the restriction on the benefit if he did not submit to a medical, and he had raised that matter with Human Resources. He had tried to obtain insurance in 1969 after his first experience with cancer and had been told on several occasions that because of his medical history no cover was available. The applicant conceded that enquiries he made were of an informal nature, sometimes with financial advisers, and there were only two or three such occasions since 1969. Generally, he was aware and had been told that he could not insure himself even at a higher rate. After his termination by the first respondent, he did not go to the market to see if could organise similar insurance cover but further enquiries were made on his behalf and he was told that no such cover was possible. He had made no application for insurance cover since he left the first respondent.

35 The applicant knew Mr Paul O'Brien as a company director of the first respondent and company secretary, and had seen him regularly - two to three times a week - during his employment. The applicant was not aware that Mr O'Brien had the responsibility for the Optus Superannuation Plan. They did not usually talk about work and the applicant thought Mr O'Brien as company secretary had serviced the needs of the Board: he had not given any thought as to whether Mr O'Brien was responsible for the regulatory affairs of the company.

36 The applicant could not recall reading about the website or the Helpdesk and, although he could use the intranet, he had not used it to gain access to information concerning his superannuation. In the operations of the first respondent, the intranet was being updated for the provision of services such as employees' expenses. He had used it to look at applications for expenses and the system did not work. This was meant to be a non-paper system. He had not looked at the intranet for redundancy policies as he had no cause to do so. If he had any queries in relation to personnel policies, he would address Mr Hancock of Human Resources or Mr O'Brien and deal with it as a personal issue.

37 The applicant's role involved him spending a lot of time on the development of pay television and the considerable number of people involved in that undertaking. He had been asked by Mr Anderson to run the system. He regarded himself as a hands on executive who took an interest in all aspects of the pay television operation which involved a lot of paper work.

38 The Human Resources directors had encouraged the applicant to raise human resources matters directly with them and that was the course he had followed. He had 150 employees under direction and six in a direct line reporting position. He did not remember any human resources issues being raised with him in this position, although he raised some aspects of personal financial affairs with the Human Resources director, such as the share options that were being arranged. No one had ever asked him what their redundancy package might be.

39 The applicant conceded that he was concerned about the pay television operation losing money but he was involved in day to day solutions to finance the exercise and how to make pay television financial. At no time did he consider that his job was at risk and he considered himself to be valued by the CEO Mr Anderson.

40 In relation to the contact made to gain access to the continuation policy the applicant agreed that the only representations he had made were to William M Mercer Pty Ltd. He had never attempted to contact the insurance provider, National Australia Financial Management Ltd - William M Mercer Pty Ltd was the only company of which he was aware.

41 The applicant was questioned as to why he had not read or sought the superannuation booklet if superannuation was a matter with which he was vitally concerned. The applicant stated that he had read annually what his entitlements were under the scheme and that told him all he wanted to know. In previous employment, he had been involved in a "no questions asked" insurance policy and he had appreciated it. Insurance, however, was not important when he joined Optus - he did not join because of the insurance cover and was not even told of that cover when he accepted the appointment. It was put to him that, after May 2001, he did not tell Optus about his condition and why the insurance cover was important to him. The applicant replied that he understood Optus was aware of his medical history. He was not aware what had been told to Optus by his solicitors but Optus executives via Mr Anderson were aware of his medical situation and the importance of the scheme to him.

42 Mr Neil Watson was a financial planner who had specialised entirely in the industry of risk insurance including life and disability insurance. Mr Watson had been made aware of the applicant's medical history from 1969 and had been supplied with a number of medical reports. It was his opinion that providing life and disability insurance to Mr Lattin with his medical history involved a very substantial risk.

43 Mr Watson had made a number of enquiries of insurance providers. He gave details of the contact made with these companies and where he had sent medical information in order to receive an indication of whether insurance cover for Mr Lattin was possible. He was unable to obtain any indication that insurance cover was available. It was his professional opinion, having regard to the applicant's medical history and the contents of the medical reports, that there was no realistic prospect of him qualifying for life and disability insurance at any price and on any terms if his qualification for that insurance depended on an assessment by an insurer or underwriter of Mr Lattin's medical history or the contents of the medical reports. In Mr Watson's view, the only realistic prospect for Mr Lattin to obtain such cover was through the continuation provisions available to him under the Optus Superannuation Plan. Mr Watson was made aware of the most recent diagnosis of Mr Lattin's condition on the day he gave evidence.

44 For the respondent, Mr Gary Cobley gave evidence. He was employed by the first respondent as a consultant in its corporate Human Resources division since February 2001 and had previously been employed by William M Mercer Pty Ltd in administering corporate superannuation plans for various companies. Part of his duties was to handle superannuation enquiries from the first respondent's employees and to liaise between the Trustee of the Optus Superannuation Plan and the relevant brokers and administrators who had been contracted to provide superannuation plans for various companies. Mr Cobley stated that during the period of the applicant's employment with the first respondent, employees of the first respondent joined the Optus Superannuation Plan but that Plan had been wound up on 31 December 2001. Following that date, employees of the first respondent became members of the Life Master Trust administered by IOOF.

45 Mr Cobley was aware that members of the Superannuation Plan were provided with death and total and permanent disablement benefits under a group life insurance policy which had been purchased from a third party insurer, National Australia Financial Management Ltd. Under clause 24 of the group life policy, members of the Plan were provided with the additional benefit of the option to continue insurance benefits at their own cost after leaving the Plan due to termination of their employment with the first respondent. This option appeared on the website and in the members' booklet and stated that this additional benefit was only available to be taken up within 30 days after leaving the employment of the first respondent.

46 It was Mr Cobley's belief that waivers or extensions after the 30 day period could only be granted by the insurer since the benefit was not provided by the second respondent under the terms of the Trust Deed governing the Plan.

47 Mr Cobley had been contacted by Mr Tai of William M Mercer Pty Ltd in May or June 2001. He had been told that Mr Lattin had asked for an extension of the 30 day period and that he had been told that the insurers would not extend the time. Mr Cobley said that the refusal to extend the period was consistent with his experience in the superannuation industry, although there were varying periods of 30 or 60 days or some other period for members to elect to continue the policy.

48 Mr Paul O'Brien was the Company Secretary of the first and second respondents and a Director of the second respondent. Both respondents were wholly owned subsidiaries of Singtel Optus Pty Ltd. His affidavit evidence was authorised by both the first and second respondent. Part of his responsibilities included ensuring that the second respondent complied with its obligations as Trustee of the Optus Superannuation Plan and to liaise with entities contracted to provide services to the second respondent.

49 During the period of the applicant's employment with the first respondent AMP Consulting Pty Ltd had provided services to the second respondent to assist in carrying out its duties as Trustee of the Plan. As a consultant, AMP provided advice to the second respondent regarding its obligations under relevant superannuation legislation and general administration of the Plan, including preparing and sending correspondence to members of the Plan. From time to time the members of the Plan were provided with information about their entitlements, rights and benefits under the Plan. The main way in which that information was provided was through receipt of the member booklet: it was usual in 1997 to send a copy of the booklet with a "welcome pack" at about the time employment commenced. Information was also passed through the Optus SuperWeb website which was part of the Optus internet available to all employees of the first respondent. There was an on-line copy of the booklet available on the website which was available throughout the applicant's period of employment with the first respondent.

50 The booklet was initially prepared and distributed to members in June 1992. It had been updated on a regular basis and distributed to members as required under superannuation legislation. From time to time, Mr O'Brien had been personally involved in discussions about proposed changes to the booklet. When the applicant was initially appointed to the position of CEO of MovieVision with the first respondent, he signed a letter of appointment. In the usual course, a copy of the booklet was sent to the applicant with a letter of appointment.

51 Subsequently, the applicant was appointed to the position of head of Pay Television. The executed contract of employment for that position meant that, in the usual course, a copy of the Superannuation booklet was sent to the applicant with the letter of appointment. In order to become a member of the Plan, employees of the first respondent, such as the applicant, were required to complete an application for membership. The application form signed by the applicant confirmed that he applied for membership of the Plan "on the terms and conditions in the trust deed and the rules of the Plan" and that he had "received a member booklet providing details of the Plan's operations and benefits".

52 In relation to the operation of the website, Mr O'Brien recalled that, since around 1997 and from time to time thereafter, he had received calls from the Remuneration and Benefits consultant to the first respondent informing him that the website had been updated to reflect changes to the Plan required by amendments to superannuation legislation. Mr O'Brien was advised of these changes to the website in his capacity as trustee and secretary of the Plan. It was usual when these amendments occurred, that emails were sent to employees of the first respondent under the title "Optus staff everywhere". He understood that this advised all staff of changes to the Plan.

53 In addition to the booklet and the website, it was the practice of the second respondent throughout the applicant's employment to issue annual benefit statements and annual reports to members of the Plan in November of each year. Mr O'Brien, as Company Secretary, was involved in the preparation of the annual report for the Plan and the approval of the standard form annual benefits statement provided to members.

54 Mr O'Brien set out the usual practice in relation to the annual report and annual benefit statement commencing with a meeting between the Trustee of the Plan and AMP in order to review and approve the contents and form of the report and benefit statement to be sent to members. When that content and form had been finalised, the Trustee of the Plan would direct AMP to produce the individual benefit statements to each member and AMP would then produce the benefit statements. The Trustee of the Plan would then direct AMP to distribute these benefit statements to members and AMP would distribute the annual report as directed. Following distribution of the annual report and benefit statement each November, AMP would provide confirmation to the second respondent at a Trustee's meeting in the following December or January that it had distributed the documents to members of the Plan.

55 Mr O'Brien was also aware through discussions with the account manager from AMP that the insurance related benefits under the Optus Plan were not considered to be part of AMP's core competencies and they had appointed William M Mercer Pty Ltd to carry out these services because they were insurance experts in that area. When that arrangement was made, William M Mercer Pty Ltd carried out all the administration associated with the insurance parts of the Plan and liaised with the insurer. Mr O'Brien stated that he was aware that William M Mercer Pty Ltd was responsible for liaising with NAFM regarding aspects of the Plan that were insurance related benefits.

56 As Trustee of the Plan, Mr O'Brien said that the second respondent was aware of its obligations to provide members with adequate disclosure about their benefits and obligations under the Plan. The booklet and website were regularly checked to ensure that they provided members with sufficient information about the Plan. Mr O'Brien regularly checked that the information provided in the booklet and on the website advised members that if they elected to continue their life insurance coverage on an individual basis after leaving the service of the first respondent, they were required to do so within a specified period and that the cost of continuing the insurance on an individual basis was a matter for each member to determine with the insurer and was not a cost which would be borne by the first respondent.

57 Mr O'Brien said that at all relevant times Optus had engaged approximately 9,000 employees. During the applicant's period of employment, the information on the continuation option was the same. Mr O'Brien had drafted the clause and the words used in the booklet about this option and the words had remained the same during the applicant's employment.

58 Mr O'Brien approved the draft of any email dealing with superannuation. Employees were connected to the email system and if there was a communication failure it was brought to his attention. Mr O'Brien thought there was on average about two up-dates of the superannuation Plan sent by email each year, the first in April or May inviting employees to an information session, and the second in October or November advising of the annual benefit statement and annual report. When the booklet was reprinted from time to time it was also sent to members. Communication with staff was by email and also by verbal communication in groups. The Plan used emails and seminars and hard copy documents to communicate.

59 Mr O'Brien was not aware of the person called "Stuart Watson" who had signed the letter advising the applicant about his entitlements under the Plan including exercising the continuation option following his termination. He was not aware of the applicant's medical condition when he was employed. 60 In cross-examination, Mr O'Brien accepted that his position in both companies reflected the important part that the Optus Superannuation Plan played in the relations between the first respondent and its employees. The Plan was seen by the first respondent as an important incident of employment of its employees which was known to the second respondent. He had not been involved in any of the discussions about the Deed of Release signed by the applicant.

61 Mr O'Brien was aware that, when the first respondent made an employee redundant it took prompt steps to bring to their attention the existence of the continuation option and the limitation on its exercise, as well as other matters. He could not give precise assurances about what information was passed on about the continuation option but he knew that a lot of information about vested benefits and other matters was made available to employees who were made redundant.

62 In relation to the documents said to be passed on to the applicant, such as the superannuation booklet and the annual report, Mr O'Brien had made no enquiry as to whether or not the applicant had in fact received those documents. He did not actually see any such document being delivered to the applicant. He accepted that his offices were in North Sydney and the applicant's offices were at North Ryde.

63 Mr Cameron McIntosh was the National Employees' Relations Manager for the first respondent between February 2000 and November 2003. He had since left the employment of the first respondent. He recalled that in or around May 2001 solicitors for the applicant telephoned raising a problem with the applicant's life insurance. The problem was not discussed during the telephone conversation because Mr McIntosh asked for the matter to be put in writing so it could be considered. When the letter was received, Mr McIntosh discussed it with Mr Cobley and asked him if he could take care of the enquiry. Mr Cobley had told him that the continuation option was part of a life insurance policy that was attached to the superannuation fund and that he would look after the enquiry.

64 It was Mr McIntosh's view that the continuation option was part of the life insurance policy and that any extension or waiver was a matter to be determined by the insurer and not by the first respondent. He recalled that Mr Cobley had provided him with quotes for life insurance available to the applicant and that those were communicated to the applicant's solicitors.

ADDRESSES 65 For the applicant, it was submitted that the essential features of the applicant's case had not been put in issue. It was clear that the continuation option and the 30 day condition for its exercise were not negotiated individually by the applicant but were part of the wider superannuation plan established by the first and second respondents, maintained by them and made available by them to the applicant as an incident of his employment.

66 The continuation option was a valuable right: a right to make provision for his beneficiaries in the event of his death in the amount of $700,000 or for his and their livelihood in the event of his total and permanent disablement. The right was especially valuable to the applicant by reason of his medical history that otherwise disqualified him from obtaining insurance over his life and his health. The evidence was clear that as an individual the applicant could not obtain this cover for himself in the market at any price. The evidence of Mr Watson confirmed that conclusion.

67 It was further submitted that the special circumstances that made the continuation option a particularly valuable right to the applicant in 2001 were well known to the first respondent at all material times or ought to have been well known to the first respondent. The applicant gave evidence of his discussion with senior management as to his health and that he had also specifically discussed the insurance cover under the Plan.

68 The continuation option was required to be exercised within a very limited time after termination. This requirement had to be considered in the context of a continuation option being, inferentially, intended by both respondents to be for the benefit of the members of the Optus Superannuation Plan, both in their capacity as members of the Plan and as employees of the first respondent. It was a benefit which was an incident of their employment. They were required to join the Plan under the terms of their contract of employment.

69 Both the contingent benefit and the requirement to act within the limited period of 30 days to obtain that contingent benefit were critical features of the Plan and of the employment. If both these matters did not come to a member's attention within 30 days, then the benefit would be rendered nugatory. The evidence was that, until 10 May 2001, the applicant did not know of the continuation option or of the need to act within 30 days of the termination of his employment. The cross-examination of the applicant concentrated entirely on his knowledge of the continuation option but effectively left unconsidered the applicant's lack of knowledge of the 30 day time limit. Even if the applicant knew of the continuation benefit, given the assurances provided by Mr Smith on his termination that he would be given full details of all his benefits including his superannuation benefits, then the applicant was entitled to act on that assurance and to be told of any limitation on the insurance benefit in time for the applicant to be allowed to act on the option.

70 The applicant gave quite clear evidence of what was said to him by Mr Smith, assuring him that all the details regarding his benefits, including his superannuation benefit, would be provided to him shortly. That evidence stood entirely unchallenged and therefore should be accepted by the Court. While it appeared that Mr Smith was no longer in the employment of the first respondent, he was not called to rebut the applicant's version of the conversation and the assurances upon which he said he relied.

71 The letter from the Superannuation Plan dated 7 May 2001 and received on 10 May 2001 was in terms that assumed that the recipient would act upon the information it contained if so advised. That letter advised of the 30 day time limit and gave a telephone number to call in order to achieve the continuation option benefit but was forwarded to the applicant well after the time limit had expired. The respondents' position that this document was not the primary document to inform employees of their entitlement was not to the point - in the context of a termination that had taken place the letter provided information as to superannuation benefits (rollover funds in the applicant's case) and clearly held out the ability to secure the benefit of the continuation option. There was no suggestion in the evidence that this information about the continuation option could not have been made available immediately upon the termination of the applicant.

72 The substance of the respondents' case was that there were a variety of places where the information about the continuation option was available to be read and acted upon by the applicant. The difficulty with that approach was that, on the evidence, the applicant had no apprehension prior to the moment he was told that he was to be made redundant that there was a possibility that in the foreseeable future his employment might come to an end. There was no discussion even in a general sense about the need to reduce senior personnel. In those circumstances, there was no reason for the applicant to make inquiries as to his entitlement should he be terminated. It was simply not in contemplation.

73 For the applicant, it was submitted that he could not reasonably have been expected to have been aware, at the material time, of either the continuation option or the 30 day limit placed upon its exercise. This position had to be considered in circumstances where Mr Lattin had no apprehension prior to the moment that he was told he was redundant that there was any possibility that his employment might come to an end. On the basis of his evidence it would appear that, if the applicant had read the relevant clauses of the Plan, because of his medical condition it is likely that he would have both retained that information and acted upon it. The respondents' case, properly understood, is that the applicant ought to have read these provisions and, having read it, retained it and then at the appropriate time acted upon it. In essence, the respondents' case was that the applicant had been provided with the information and he simply did not read it. The applicant's evidence was, however, that the circumstances surrounding his various contracts was such that he was not provided by the respondents with the booklet and had no other cause to search the intranet in relation to the Plan. He had no reason to think that he would be terminated shortly and therefore to make enquiries about his termination entitlements. The circumstances of the interview on 26 March 2001 were such that he was dismissed without notice and not permitted to return to his office. His termination was without warning, was immediate in its effect and therefore removed his capacity to gain access to the intranet once having been told, unexpectedly, that his employment was terminated. It was asked rhetorically: how could the applicant have the least suspicion that he would not be given time after the termination of his employment to consult in relation to his position and that he would be denied access to the relevant information on the intranet site which was only available to employees? He did not have a copy of the annual report or the superannuation booklet and if they were in his office he was not allowed to return to his office. Importantly, there was no evidence from the respondents that the person who collected the applicant's personal effects from his office and sent them on to him retrieved from the office and sent to the applicant a copy of the annual report or the members' book or any other source of information relating to his membership of the Plan and his rights on termination under membership of the Plan and his rights on termination generally.

74 It was an easy task for anyone from the respondents, aware of the way in which the applicant had been dealt with on the morning of 26 March 2001, to have picked up a copy of the booklet or the annual report or any other document referring to the continuation option and the 30 day limit and to have included them amongst the material sent to Mr Lattin. It was also just as simple to include all that information in the letter dated 27 March 2001 which was sent to the applicant. It could have been included in his personal effects that were returned to him. The evidence clearly supported the conclusion that if any such step had been taken and the option drawn to the applicant's attention he would have exercised it. On his own evidence, as soon as he became aware of the option on 10 May 2001, he immediately attempted to exercise the option.

75 At all material times, it was the respondents who were in a position to avoid the problem which arose for the applicant. It was the first respondent who decided that the applicant's employment should be brought to an end without arrangement or notice; it also decided that it would not allow the applicant to collect his papers and possessions from his office; it was the first respondent through Mr Smith who assured the applicant that he would be sent all the details pertaining to, amongst other things, his superannuation and that it would be done immediately. Despite Mr Smith's undertaking on behalf of the first respondent, two important pieces of information, important in the circumstances of the applicant, were not promptly passed on to the applicant and certainly not in a time frame that allowed him to have any realistic chance of exercising the continuation option.

76 The respondents' evidence was that it took six to eight weeks to generate a statement of entitlements under the Superannuation Plan. It was obvious that such a notice, despite its terms drawing attention to the continuation option and providing a contact number if the option was to be exercised, could not be relied upon as a means of informing the recipients of these benefits. It was in the hands of the respondents to make that valuable information available to members of the Plan whose employment was being terminated. It was a task that was simple to achieve and was uncomplicated in its exercise: a simple letter of a few lines would have been sufficient. If the respondents had turned their mind to the issue then they must have appreciated the deficiency in a notification that arrived six to eight weeks after termination where the continuation option had to be exercised within 30 days of termination. It was in the power of the respondents to make the option a realistic option rather than leaving it an absurd state where the option simply became nugatory.

77 A further proposition apparently relied upon by the respondents appeared to be that, because the scheme had been closed and a new insurance policy purchased, it was now too late for the respondents themselves to obtain cover under the third party policy for the applicant. There was, however, no evidence to support that proposition nor had the respondents tendered any evidence as to the attitude of the third party insurer. Further, Mr Cobley's evidence was to the effect that the winding-up of the previous Plan and its replacement by the Master Trust did not appear to have affected the employees whose employment came to an end and who exercised the continuation option prior to the winding-up of the Superannuation Plan. The inference was irresistible that if the applicant had exercised the option, he would have continued to be covered under those arrangements. The other gap in the respondents' case was that there was no evidence as to any arrangement between the respondents and the third party insurer that would make good the proposition that the respondents could not go to the third party insurer and get third party insurance cover even if they wanted to. The respondents could not rely upon their own unfairness to excuse them from liability to the applicant.

78 The respondents did not appear to have made any representations to the third party insurer and there was no evidence to suggest that, if such representations were now made by the respondents, they would be rejected. This type of evidence might have been expected to be called from the respondents but it was not.

79 On the evidence, the contract was unfair or became unfair because the benefit of the continuation option which was an incident of the Plan and the contracts of employment, was, by the conduct of the respondents, rendered nugatory or seriously undermined. The respondents by their conduct failed to ensure that the applicant received the benefit of the continuation option with the consequence that the contract of employment including the Plan or the overall employment became unfair. The approach and intention behind order 1A in the Amended Summons was to ensure that the applicant was left precisely in the same position that he would have been had he exercised the continuation option within the 30 day option period. In argument, it was accepted on behalf of the applicant that the circumstances of this case were most unusual and that the crafting of a restitutional order was not a simple task. If the Court found unfairness then it may be appropriate for the parties to address what orders should be made in light of the findings made by the Court.

80 The respondents relied primarily upon the Deed of Release as constituting a complete defence to the proceedings. Properly construed, the release comprehended the claim made by the applicant. The right to superannuation together with the requirement that the applicant be a member of the Plan resulted in this superannuation benefit and the rights flowing from it being a term of the applicant's employment. The Deed of Release was fundamentally about the applicant's employment which included superannuation rights. There was no dispute that the principles enunciated by the High Court in Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 were applicable: in that case, the deed was in very general language unlike the deed in this case.

81 If the Deed did contemplate an action of this nature, arising from the employment, then the Deed could not be attacked in this Court under s 106. The Deed itself was not a contract of employment nor was it an arrangement whereby work was performed in an industry. The Deed was a stand alone arrangement or remote from the employment relationship, such as to be beyond the jurisdiction of the Commission (Solution 6 Holdings Ltd and ors v Industrial Relations Commission of NSW and ors [2004] NSWCA 200). The respondents contended that the Deed operated by way of conduct estoppel so as to bar the applicant from bringing and maintaining the proceedings under s 106 of the Act: the relevant principles were those laid down in Commonwealth v Verwayen (1990) 170 CLR 394.

82 In relation to the merit of the case, the respondents raised the credibility of the applicant, submitting that he was inclined to colour his evidence to suit his case. Of significance was the fact that the applicant had stated that he was unable to get insurance cover and it was only revealed in the evidence of Mr Watson that he indeed had the benefit of insurance cover under a continuation option arising from previous employment.

83 The applicant was bound by the relief claimed which revolved around paragraph 17 of the Amended Summons. The Commission, however, had no jurisdiction to consider the conduct of the respondents because that impugned conduct fell outside the contract or arrangement whereby work was performed. The formal relationships and contractual obligations had been discharged by all parties by the time the conduct of the applicant was identified and challenged, namely in May 2001.

84 The Commission would not, in any event, be persuaded that the conduct of the respondents was unfair. The second respondent was bound by the terms of the policy with the third party insurer and had no legal recourse regarding the ability to impact upon the operation of the policy. It was only the third party insurer who could extend the time period in relation to the 30 day continuation option as set out in clause 23 of the policy. Neither the applicant nor his legal representatives made any approach to the third party insurer but simply approached William M Mercer Pty Ltd. William M Mercer Pty Ltd's response and the third party insurer's response was, according to the evidence of Mr Cobley, consistent with insurance practice. Time limits were strictly applied.

85 There was no reason to believe that the employees of the respondents handling the applicant's enquiries about the continuation option had any idea why the option was so important to the applicant. There was no reason Mr McIntosh or Mr Cobley would be aware of his state of health and those matters were not drawn to attention by either the applicant or solicitors acting on his behalf. That is why the applicant's inquiry was met by a number of indicative quotes from other insurers based upon an otherwise healthy person. In those circumstances, there were good reasons why the respondents would leave the matter as one to be dealt with by the applicant and William M Mercer Pty Ltd. The respondents had provided sufficient information to employees during the course of their employment to enable them to continue their insurance benefits. The continuation option was dealt with on the Optus SuperWeb and in the member booklet, whereas the information provided to the applicant in the members' benefit statement dated 7 May 2001 was never the main source of information to members in relation to rights to replacement cover.

86 The respondents had no ability to influence the insurer's decision not to allow the applicant to exercise the continuation option out of time. The relationship between the second respondent and the third party insurer was at arm's length and entirely commercial. If the applicant wanted waiver of the operation of the 30 day limit, then he needed to make an application and apply to the insurer.

87 Various conversations conducted by the applicant with senior officers of the respondents did not operate to vest in some manner that information with the corporate entities which are the respondents. It could not be realistically or reasonably expected that this knowledge would be conveyed in some way to Mr McIntosh and/or Mr Cobley at the relevant time or that they became fixed with information that was passed on to other officers.

88 The evidence of Mr O'Brien showed the steps regularly taken by the respondents to inform employees of the extent of their benefits and rights under the Optus Superannuation Plan. Information about the continuation option was contained in the member booklet and on the first respondent's website: in addition the booklet was available on line. Members' booklets were provided to employees upon commencement of employment and joining the Plan. When changes were made to the Superannuation Plan, the website was updated and emails were forwarded to employees advising of the changes and referring them to the website for further information. Each year, members were forwarded a benefit statement and annual report and those documents directed members' attention to the website in order to obtain more information about the plan. In 2000, a covering letter to the annual report and member benefit statement referred to the website as being a source of information about the Plan and the benefits under the Plan. The applicant admits that he read the member's benefit statement, that he looked at the annual report but only to read his superannuation analysis. The applicant communicated by email and had a desktop computer and thereby had access to the website and the intranet. He accepted that he was provided with a copy of the 2000 covering letter and the 2000 annual report and was aware that he could obtain further information concerning his rights and entitlements under the Plan from Human Resources personnel and the intranet. By these various means, the respondents took reasonable steps to bring to the attention of employees relevant provisions of the Plan's benefits including the benefits of the insurance cover. All of the necessary information was available to the applicant and this was a case where, on that evidence, the Court would not go to the aid of a person in the applicant's position who did not help himself.

89 If, against these submissions, the respondents were found to be unfair in their dealings with the applicant then the extent of that liability must be considered in light of the failure of the applicant to join the third party insurer to the proceedings. If the applicant otherwise made out his case then it is a case where applying Brown v Reizitis (1970) 127 CLR 157 the Court could have made an order joining the third party insurer because of its culpable involvement in the unfairness and the fact that it derived a benefit from refusing to entertain the application made on behalf of the applicant. There was no explanation given by the applicant as to why the third party insurer was not joined: it was not for the respondents to join the third party insurer in circumstances where they had no complaints against that entity. If there is a clear and compelling case suggesting that another party is liable the question of the extent of the liability of the respondents must be considered and factored into the Court's findings on liability and relief. 90 As to the nature of the relief sought, attention was directed to the content of Order 1A of the Amended Summons. Here, there was no claim for compensation, which was not surprising as there had been no insurable event which would have otherwise triggered the policy. The Court could not be satisfied that such an event would ever occur since the policy only operated to age 65 and the medical evidence suggested that the applicant's response to chemotherapy would determine his medium and longer term future, thus suggesting a capacity for the applicant to live beyond the age of 65.

91 It was also submitted that the Court had no power to grant the relief in the form of Order 1A which was in the nature of specific performance or a mandatory injunction and was not therefore referable to the power vested in the Court under s 106 (Mitchforce Pty Ltd v Industrial Relations Commission (2003) 57 NSWLR 212). There were four problems with the relief being sought: (a) the Trust Deed for the Plan could not be varied; (b) the order is, in substance, not referable to the statutory powers conferred on the Court; (c) the order compelled the respondents to actively do something; and (d) in substance, the order is directed to the formation of a new contract.

92 As a practical matter, the order sought would leave the parties in a state of flux, with the respondents having to act as an insurer or take steps to obtain insurance for the applicant in the market. The evidence suggested that it would now be impossible for the respondents to obtain insurance for the applicant in the light of his recent diagnosis. The respondents could not act as insurer because it would require them to meet obligations and perform tasks, including exercising certain discretions in relation to the operation of the policy: for instance, in relation to total and permanent disablement. All these matters reinforced the conclusion that the order sought was in the nature of specific performance.

DELIBERATION 93 The first issue to be determined is the scope and application of the Deed of Release executed by the applicant in April 2001. The respondents argue that the Deed specifically deals with the employment of the applicant and that membership of the Superannuation Plan and that the benefits available under it were part of the contract of employment. By signing the Deed the applicant had settled all actions relating to the employment and that, by definition, must include any issue relating to superannuation including the issue of the continuation option under the Plan. The applicant submits that, at the time the Deed was executed, there was no dispute or issue between the parties concerning the rights of the applicant under the Superannuation Plan and in particular there was no dispute as to the operation of the continuation option: indeed, there could not be any dispute in relation to the continuation option since the 30 day time limit for its exercise was still running at the time the Deed was executed. The applicant relies on the principles established by the High Court in Grant for the proposition that a release in general terms will be read down to conform to the contemplation of the parties at the time the release was executed.

94 The recitals to the Deed record the applicant's employment from March 1997 and his termination in March 2001 with the most recent position held as that of Director of Optus Television. It then recites the review of the structure of Optus Television and the decision to make the applicant's position redundant. Liability to the applicant in relation to aspects of his employment, past, present or future was denied and without admitting liability, the respondents agreed to pay certain monies by way of notice, severance pay, incentive payments and annual leave. Certain amounts were also payable under executive option plans and share allocations. Under Clause 2, "Release of Indemnity", the Deed provided: "The employee releases the beneficiaries from all claims arising out of, or related to, the circumstances". It is common ground that the 'beneficiaries" include the first and second respondents. The term "the circumstances" was defined to mean any or all present and future claims touching upon the matters recited including but not limited to the employment, the terms of the employment and the termination of the employment except for claims for workers compensation. "Claims" was defined to include any action, application, arbitration, cause of action, complaint, cost, debt due, demand, determination, enquiry, judgment and verdict at law or in equity arising under any statute, or arising under any award, enterprise agreement or other instrument made or approved under any law.

95 It will be immediately seen that nowhere in the recitals or in the sums paid is there any reference made to superannuation nor is there specific reference made to the operation of the continuation option or any other part of the Superannuation Plan and the benefits and rights conferred on the applicant under that Plan.

96 At the hearing, there was no issue that at the time the Deed was executed there was no present or contemplated dispute between the applicant and the respondents as to the operation of the Superannuation Plan and in particular as to the operation of the continuation option relating to the insurance cover. Mr Cobley was authorised to give evidence on behalf of both respondents and in his role dealing with the Superannuation Plan, he confirmed that no such dispute or possible dispute was in contemplation nor was any thought given to addressing the issue of the operation of the continuation option at the time the Deed was executed. The applicant's evidence was to the same effect: he did not know about the option nor did he know about the time limit for its operation and, at the time of executing the Deed, there was no known or contemplated dispute about that matter. The Deed simply did not address this issue.

97 In Grant, the High Court referred to the long established authority for the proposition that the general words in a release are limited always to that thing or those things which were especially in contemplation of the parties at the time the release was given. The headnote to the case states: "In cases where to a plaintiff's claim the defendant seeks to rely upon a general release the plaintiff's right to equitable relief will depend upon the principle that a release must not use the general words of a release as a means of escaping the fulfilment of obligations falling outside the true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances, including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor". The respondents did not contest that this remained a correct statement of the law but urged that, on a proper construction of the Deed, the release operated in relation to all aspects of the employment and that, of necessity, included the terms of the Plan and the various benefits and rights available to the applicant under the Plan.

98 The joint judgment in Grant (at 125-126), quoted with apparent approval the comments of Sir Frederick Pollock in his "Principles of Contract" 13th ed, 1929, p 412. After referring to the statement of principle that the general words in a release are limited always to that thing or those things which were especially in contemplation of the parties at the time when the release was given, Sir Frederick Pollock said: This includes the proposition that in equity 'a release shall not be construed as applying to something of which the party executing it was ignorant'. There is at least much reason to think that it matters not whether such ignorance was caused by a mistake of fact or of law. In Torrens Aloha Pty Ltd v Citibank NA (1997) 144 ALR 89, Sackville J, speaking for the Full Court of the Federal Court, after citing the above passages from Grant continued (at 106): It is clear in the present case that the dispute between the parties in 1987 did not relate to the terms of the credit agreement requiring the appellant to make grossed-up payments of interest to CitiBank NA. That issue did not arise between the parties until 1994. The principle of construction to which I have referred strongly suggests that the deed should not be construed as applying to a claim which was not the subject of any consideration by any of the parties at the time it was executed. This view was reinforced by the language of the deed itself. The recital refers to the fact that disputes had arisen between the parties, indicating that the release was intended to relate to the disputes and differences between the parties. Clause 1 itself is limited to causes of action and claims which the appellant 'now has'. While the language of cl 1 is literally capable of applying to a cause of action in existence but not adverted to by the parties, the absence of broader language often found in releases militates against a sweeping construction of the release. It follows that I do not construe the deed of waiver as barring the appellant pursuing the course of action upon which it wishes to rely.

99 In Qantas Airways Ltd v Gubbins and ors (1992) 28 NSWLR 26, the Court of Appeal was dealing with an appeal from a determination by the Anti-Discrimination Board concerning female flight attendants who had executed general deeds releasing the employer from all possible claims of discrimination. In the joint judgment of Gleeson CJ and Handley JA, the contentions were summarised: There was no dispute before the Tribunal that a settlement agreement had been entered into. The question was whether it covered the claims which the respondents wished to pursue. The case for the respondents was that, although they had executed releases in general terms, they had been assured by the appellant that the claims they were releasing were different from the claims now in issue, which had been said to be 'entirely separate'. They said they had been assured that the releases would not be raised as a defence to their present claims, and, on the faith of that assurance, gave the releases. Surprisingly, the legal representatives of the parties debated that issue in terms of the legal concepts of waiver and estoppel, without adverting to the decision of the High Court in Grant v John Grant and Sons Pty Ltd (1954) 91 CLR 112, which is directly in point, and which sets out the principles by reference to which a court will decided whether a general release will be held to cover a particular dispute. The rule is that the general words of a release, will, in an appropriate case, be read down to conform to the contemplation of the parties at the time the release was executed . (At 22-29). Later in the joint judgment it was stated: The Tribunal acted on circumstantial evidence in finding that the complainants had relied upon the representations made by Qantas. The relevant evidence and the findings of the Tribunal are set out in the reasons for judgment of the President. Qantas made the representation to solicitors and the union officials acting for other complainants in a similar interest. It did not make those representations to the present complainant. However in our opinion the Tribunal was entitled to infer that the representations reached the complainants indirectly and that, if Qantas had not made them, the union and the solicitors would have warned the complainants against signing the deed and they would not have signed. (At 32).

100 In a separate judgment, Kirby P noted that the Deed recited the previous engagement of the employee under the Federal Airline Flight Hostesses' Award; the decision in favour of a flight attendant under the Act; the lodgement by the employee concerned of a claim on the basis of discrimination in employment "concerning opportunities for promotion"; the integration of the seniority lists in June 1983; the denial of liability by the appellant; and its desire to settle "all outstanding issues" and "all existing or potential claims whatsoever" concerning "alleged or any possible claims" of discrimination. "Claim" in the Deed was defined to mean potential or possible claim by the employee against the appellant for discrimination on the grounds of sex. A lump sum was to be paid to the employee and the employee agreed to release the company unconditionally "from all actions, claims, demands and liabilities" arising "directly or indirectly" out of the claim and not to make a demand or to take or institute any proceedings. Kirby P referred to the well established principle of equity that the general words of a release are limited always as to such matters as were especially in contemplation of the parties at the time the release was given and that principle had been relied upon by the High Court in Grant. At 44, his Honour noted: This principle is still good law in Australia. It has never been modified by the High Court. The change in the system of pleadings has not altered its continuing operation. ... If a deed of release is signed by a party, perhaps as a compromise as in Grant and here, it should be open to a party to contend that the generality of the language of the deed of release was not, in the circumstances, intended to cover a particular matter. Deeds of release are usually expressed in very wide terms, as in Grant and here. In the days of Grant, such deeds came out of the conveyancer's collection. Nowadays, they come rolling off the word processor. Most people, at least in the position of these respondents, execute them without attention to the detail and to the generality of their expression. It is thus entirely legitimate to consider what is the subject matter to which such a deed was directed if it is later contended that, despite the generality of its language, the parties at execution had something more confined in mind. Such is a rule of equity. Unsurprisingly, given the origins of that rule, it is a rule which 'equity, good conscience and the substantial merits of the case' would have made relevant to the present litigation before the Tribunal.

101 The recitals contained in the Deed deal with the applicant's employment and his redundancy. It makes provision for payment of money to the applicant arising out of that redundancy, namely, the usual considerations of appropriate notice and severance. Money is paid on account of incentive schemes and certain share and share options as provided under various plans including the Optus Executive Option Plan. The options were to be executed within 12 months of the date of the termination of the employment. On its face, the Deed simply does not deal with any issue concerning the operation of the Superannuation Plan or the continuation option available under the policy of insurance provided under the Plan. The respondents attempted to avoid this construction of the Deed by simply stating that the Deed specifically covered employment and the Superannuation Plan and everything available under it was part of the contract of employment and therefore specifically dealt with by the Deed. I am unable to accept that submission. In my view, the recitals focus on the redundancy and then makes arrangements for the payments of certain amounts by reference to the usual considerations when a redundancy occurs, and also concludes what level of shares and share options are to be made available to the applicant on the termination of employment. Importantly, the Deed extended to entities associated with the first respondent but they were not the employer of the applicant. The release is in general rather than specific terms. The principles in Grant apply and the general words of the Deed are to be read down so as not to extend to matters not within the contemplation of the applicant and in this case, on the evidence, not within the contemplation of any of the parties.

102 The proposition may be tested another way. The respondents' submission that the Deed covered this type of application was founded on superannuation being part of the contract of employment - the Deed covered "employment". The Deed did not cover every aspect of "employment" as is evident from its terms. Once the respondents were placed in the position of arguing that superannuation benefits (including the continuity option under the insurance policy) were covered by the term "employment" it was impossible to maintain the argument that this was a specific Deed as on their own approach it had to be a general Deed dealing with all possible incidents of employment. The evidence disposes of that submission - it was not in the minds or contemplation of any party to the Deed that it was intended to apply to any dispute or claim arising under the Superannuation Plan or the death and disability insurance cover. The principles in Grant therefore apply and the general words of the Deed shall be read down and the Deed will not operation as a bar to the continuation of these proceedings.

103 It then becomes necessary, having dealt with the respondents' submissions regarding the effect of the Deed, to consider whether there was unfairness such as to permit the Court to bring into operation the unfair contracts provisions of the Act. The respondents' case could be summarised as follows: every employee of the first respondent was obliged to become and remain a member of the Optus Superannuation Plan; on signing an application to join the Plan, in the normal course of administering new employment contracts, each employee was to be provided with a copy of a booklet summarising the benefits available to employees under the Plan; page 6 of the booklet at all relevant times informed employees that they were automatically covered for insured benefits up to $700,000 without the need for medical evidence, such cover being for death and total permanent disablement; that, on leaving the company, the cover continued for 30 days and during this period the cover could be extended by the employee taking a new policy for the same benefits and by paying the premiums for that cover; that this information as to the automatic insurance cover and its continuation on termination of employment was also available on the Optus website; the applicant had a computer as part of his work equipment and had the capacity to gain access to the Optus website; the website also allowed access to an online copy of the booklet; the booklet was initially distributed to members in June 1992 and had been updated on a regular basis and distributed to members; changes to the Superannuation Plan were updated regularly on the website and email messages were forwarded to all employees advising them of those changes; each employee was sent an annual report together with a benefit statement relating to superannuation and that annual report advised members that they should review both the booklet and the website in order to obtain information about their benefits under the Plan. There was, in this way, a variety of methods placed in the hands of or at the disposal of the applicant, while an employee, to establish the extent of the benefits and the rights available to him under the Plan. The applicant did not avail himself of these opportunities and did not seek to exercise the continuation option within the 30 day limit required by the third party insurer. The letter containing details of final superannuation payments and advising of the availability of the continuity option was always likely to take more than 30 days to deliver and therefore was never intended by the respondents to be the primary means of informing employees such as the applicant of the extent of their benefits and their rights under the Plan. In those circumstances, there was simply no unfairness.

104 Having encapsulated the respondents' case, it is appropriate to consider the nature of the information available to employees of the first respondent in relation to the Plan and the insurance cover available under it. The first matter to note is that, although email advice was forwarded to every employee concerning changes to the Plan, the evidence was that the wording of the booklet regarding the continuation option remained the same during the applicant's employment and thus no email, if forwarded to the applicant, was relevant to this particular topic.

105 The intranet appeared to have a page dealing with the Optus Superannuation Plan entitled "Questions answered - help with common tasks". The next heading immediately under this was "What to do when leaving Optus". After an introductory line, the next heading is "Your responsibilities", which is followed by four paragraphs, the last of which refers to an employee having 30 days from the date of leaving Optus to take up the option to continue the death and total and permanent disablement cover currently held with the Optus Superannuation Plan. The paragraph continues: "This is particularly relevant for those people who are leaving the company and setting up their own business or retiring. To do this you should contact Ronald Tai at William M Mercer Pty Ltd ... within the 30 day period." The page then continues with the sub-headings "Retirement", and "Payment of benefits" but nothing under these headings deals with the continuation options.

106 The member booklet, tendered in evidence, contained some 28 pages. The member booklet dealt with the Optus Superannuation Plan and, at page 6 under the heading "Insurance choice", it stated that on joining the Plan employees were automatically covered by an insurance benefit up to $700,000 without need for medical evidence. If full insurance cover was not available or not delivered the employee would be informed of the adjusted benefits. An employee who had not reached 60 years of age and left the Plan could arrange for a continuing individual life insurance policy with the insurer at the employee's cost. The insurance policy had to be arranged within 30 days of leaving the company. The booklet did not advise the name of the third party insurer. The booklet indicated that the insurance cover was available up to the age of 65 years. At the end of the booklet the following statement appeared: Finally, remember that this member booklet is only a guide. It is not a definitive statement about your rights and entitlements. Within in the booklet under the heading "Making enquiries", it was stated that the Trustee was committed to resolving employee queries or problems quickly and effectively. Any difficulty or concern that arose was initially to be directed to the Optus Super Helpdesk . If the concern was not resolved, employees were directed to contact the Assistant Plan Secretary and the enquiry would be dealt with within 90 days.

107 The 2000 annual report for the Optus Superannuation Plan was the last of its kind available before the applicant was terminated by the first respondent. That document makes reference to the Optus SuperWeb and the Optus Super Helpdesk. It refers to the website having superannuation updates and also refers to the member booklet and annual reports. This document also refers to the Trustee being committed to answering enquiries of employees and resolving any problems quickly and effectively. The reader is told that if a difficulty arises to contact the Helpdesk and the Assistant Secretary of the Plan.

108 This collection of documents (the member booklet, the annual report and the website) represent the primary sources for informing employees of their entitlement and in particular informing them of the existence of the continuation option and that it had to be exercised within 30 days of leaving employment with the first respondent. It is the respondents' case that the statement of benefits which contains information about the existence of the continuation option and the 30 day time limit is not designed to be the primary source of information to employees about that matter as it can take six to eight weeks to send out that document, during which period the time limit would have expired. Nevertheless, the letter sent to the applicant, which appeared to be in a standard form, was written in terms which suggest that the information is being passed on in a timely way such that an employee could take advantage of the benefit. There is no point in including this information in the statement of benefit if it comes into the possession of the employee well after the expiration of the 30 day time limit. It is also to be remembered that Mr O'Brien believed that where an employee was retrenched there was a raft of information readily made available to that person including information about the continuity benefit and the time limit applicable to its exercise. Despite Mr O'Brien's expectation, that did not occur in the applicant's case and there appears to be no standard form document other than the statement of benefits which meets this description.

109 What may be said in these circumstances about the adequacy of the information made available to employees about the continuation option and the time limit for its exercise? In this discussion it is to be remembered that on the website the availability of the continuation benefit and the time limit was referred to as being "particularly relevant" for those people who were leaving and setting up their own business or retiring. At the age of 51, having been retrenched as the Head of Pay Television, it might have been expected that the applicant would consider consultancy work in his own business, at least in the short term, while looking for other employment at this level and in this type of industry. The importance and significance of the benefit appears beyond doubt: it is specifically referred to as being particularly relevant and the obtaining of the cover itself, through the Superannuation Plan also speaks of the respondents' understanding of the importance of the benefit. Indeed, in his oral evidence Mr O'Brien accepted that proposition. It is surprising in those circumstances that more prominence was not afforded to the availability of the benefit especially when there was a confined time limit in which to exercise it. In the absence of direct advice prior to or at the time of termination or redundancy, an employee was left to scroll through the website under headings such as "Questions answered" and the detail introduced by the words "Your responsibilities" - those entries hardly drew attention or highlighted the existence of the benefits. Similarly, in the member booklet the information is contained under the heading "Insurance choice" and "Joining the Plan". Nevertheless, the booklet was only a "guide" and not "definitive" of employees' rights and entitlements: where was such a detailed statement to be found? Considering that the respondents regard the member booklet and the website as the primary sources of information regarding this benefit, it is not surprising that employees might be ignorant of the benefit. I will deal later with the applicant's evidence that at no stage was he provided with a member booklet which effectively left him to obtain the information from the website.

110 In November 2000, Mr O'Brien said that a covering letter was sent to members of the Plan together with their statements of benefits under the Plan. This document was referred to as the employee's "Superannuation Information Package" for the year 2000. That document referred to the Optus Super Website as providing "specific information about your Plan" and also referred to the "Optus Superhelp Desk" which was available for queries about superannuation and which would provide "general information" regarding the Plan. This covering letter made no direct mention of the group insurance policy, the continuity benefit or the 30 day limit on its operation.

111 Two other documents in evidence appear not to be generally available to employees but probably could have been made available for inspection if so required. The first was the Optus Superannuation Plan Deed dated 1999. This document was more than 50 pages in length and made no mention of the specific insurance cover to be provided to employees as part of the Plan or of the continuation option and the time limit on its operation. Under Clause 1.13.1 the Trustee was empowered to enter into any type of insurance policy; Clause 1.13.3 dealt with self insurance. "Group life insurance" was defined. Clause 2.8 dealt with retirement benefits, Clause 2.9 with death and total and permanent disablement in employment, Clause 2.10 dealt with retrenchment benefit and Clause 2.11 dealt with cessation of employment in other circumstances. None of these clauses mentioned the insurance policy or the continuation option as benefits available to members of the Plan. The second document was the 2000 insurance policy provided by National Australia Finance Management Ltd, which carried the heading "National Tailored Group Protection". This document covered 11 pages in total and declared the ceasing age at 65 years and that the automatic assessment level was $700,000. The initial number of lives covered was 6,663 with a three year guarantee rate and an initial deposit premium of $841,049. Clause 23 dealt with cessation of cover and noted that cover would cease 30 days after the insured person retired also and after the date an insured person effected a continuation option as described in Clause 24. Clause 24 stated that, if the employee terminated before the age of 60, the employee could make an application within 30 days to continue the policy upon the payment of the premium. The document stated that the individual policy benefits would be as similar as possible to those under this particular policy and that standard terms and conditions would apply.

112 In relation to the disclosure of the benefit in the member booklet, it was Mr O'Brien's evidence that he was responsible for drafting this particular part of the member booklet and during the applicant's employment the wording had not been altered. Mr O'Brien's evidence was indicative of some care taken to ensure that the existence of the benefit and the time limit placed upon the operation of the continuation option was properly and accurately described in recognition of the fact that it was an important and significant benefit.

113 Were there any other documents where it might have been appropriate for the respondents to disclose to the applicant the existence of the continuation benefit and the time limit on its operation? The evidence discloses that during his employment, the applicant entered into two contracts. His February 1997 contract was to take up the position of CEO of MovieVision, which was described as being the equivalent of the position of Vice-President in US industry terms. The applicant was initially employed by Optus, the first respondent, but on or before 30 June 1997 he was to be transferred to MovieVision under equivalent terms. When transferred to MovieVision, that company would become his employer and Optus would no longer be the employer or responsible for employment obligations. The 1997 contract was an eight page closely typed document and covered a variety of subjects. In relation to superannuation, it referred to the applicant becoming a member of the Optus Superannuation Plan and purportedly enclosed a superannuation booklet. The applicant was informed that the Trustee's report would provide details of the Plan. It was then noted that when his contract transferred to MovieVision he would cease to be a member of the Optus Superannuation Plan and that MovieVision would then provide a superannuation structure "equivalent" to that offered by the Optus Superannuation Plan. The contract went on to deal with termination but no mention was made of the group insurance policy, the cap on benefits without a medical, the continuation option and the time limit for its operation. The contract said that it represented the entire agreement between the parties on the subject matters covered by it.

114 The March 2000 contract dealt with the applicant's appointment to the position of Director of Optus Television and occupied nine pages with seven pages of schedules. The contract dealt with a variety of subject matters. Clause 5 was headed "Your salary and other benefits" and, Clause 5.4 stated that the applicant would be eligible to apply for other benefits offered by the first respondent including employee and spouse insurance. The applicant was advised that, if he had not already received information about these benefits, he would be provided with that information shortly. Clause 13 dealt with the issue of termination, Clause 14 dealt with redundancy, Clause 15 dealt with what happened after termination of employment and Schedule 3 dealt with the Optus Superannuation Plan. There was no reference anywhere in the contract or the Schedules to the existence of the group insurance policy, the availability of the continuation option or the limitation on its operation. Like the 1997 contract, the document declared that it constituted the entire agreement as to the subject matters contained in it.

115 Considering the length and detail of these documents, it is difficult to understand why no mention was made of the insurance policy and the terms of the continuation option, especially when the contracts dealt specifically with the subject matters of superannuation, termination and redundancy. This omission is even more surprising considering the fact that the first respondent had organised this cover for more than 6,000 employees at a cost of approximately $850,000. The specific mention of the scheme in the 28 page member booklet, without emphasis, may suggest that the respondents did not regard this aspect of the policy as being of wide relevance but it was obviously significant enough (especially for those who were leaving to start their own business or retiring) for the benefit to be secured by the respondents. A short note within the contract detailing the benefit and directing attention to the member booklet and its website version for details might have been sufficient to inform employees about these important benefits and rights.

116 In October 1999 and November 2000, the applicant was advised about the restricted level of cover under the policy. The October 1999 letter was from William M Mercer Pty Ltd, and informed the applicant of the restricted level of cover, the full level of cover and the requirement that medical evidence was to be supplied in order to be assessed for cover in excess of the limit. The applicant was invited to discuss the matter William M Mercer Pty Ltd. That letter made no mention of the continuation benefit or the time limit on its operation. The applicant discussed the content of this letter directly with Mr Chris Hancock, head of Human Resources, informing him that because of his previous medical history he would not be able to receive life insurance cover that depended upon a favourable medical report. Mr Hancock was informed of the applicant's medical history. Mr Hancock assured him that the minimum cover would be available and said he would look after the issue. No mention was made in this conversation of the continuation option. In November 2000, Optus wrote to the applicant stating that it had recently received advice from William M Mercer Pty Ltd that the level of medical cover for the applicant under the Plan had been restricted to $700,000 because of the lack of medical evidence supplied by the applicant. He was advised that if he wished to increase his cover he was to obtain the necessary information and contact Mr Tai at William M Mercer Pty Ltd. Any queries were also to be raised with William M Mercer Pty Ltd. No mention was made in this correspondence of the continuation option and its terms.

117 The only document forwarded directly to the applicant by name which specifically drew attention to the continuation option and its terms was the letter dated 7 May 2001 from Optus Superannuation Plan, which provided the applicant with his statement of benefits upon retrenchment. By the time this letter was received, it was some 45 days after his termination without notice and 15 days after the time limit had expired. The terms of that letter were pellucid: he was advised of his rights and his ability to exercise the continuation option and was advised that if he wished to take advantage of the offer he was to contact William M Mercer Pty Ltd on the telephone number nominated in the letter. If there were any questions, he was to contact the Optus Super Helpdesk at a nominated address and telephone number. This was a document which, in the normal course, was to be sent to employees who were leaving the first respondent, advising them of their superannuation benefits and their rights to the continuation option. I have difficulty with the respondents' evidence that this letter normally took six to eight weeks to be because of payroll details. It has the appearance of a form letter and it simply makes no sense that, six to eight weeks after termination, an employee would be told of a benefit which was then impossible to obtain. Mr O'Brien thought this information was quickly put into the hands of people who were terminated, especially those who were retrenched. It was what was promised to the applicant by Mr Smith on the day of his termination without notice: a notation about the availability of the benefit could have been supplied in the letter sent to the applicant the next day after termination, with the Deed proposed by the respondents. During the course of the applicant's employment and upon his termination, the conduct of the respondents was, in my view, unfair in their failure to properly and specifically advise him of the terms of the continuation option.

118 It is significant that once made aware of this benefit the applicant moved immediately to attempt to secure it. As advised in a number of documents, including the letter dated 7 May 2001, he contacted William M Mercer Pty Ltd. His solicitors contacted the Trustee of the Plan after the applicant failed in his representations to William M Mercer Pty Ltd. The respondents took the view that the matter was one between the applicant and the third party insurer and rendered no assistance. In addition, they argued that neither the applicant nor his legal representatives made any "application" to the third party insurer but instead mistakenly directed their representations to William M Mercer Pty Ltd and the Trustee of the Plan. In light of the numerous documents produced by the respondents nominating William M Mercer Pty Ltd, the Helpdesk, the Trustee and the Assistant Secretary of the Plan as the means by which queries, complaints and disputes could be resolved, they cannot legitimately take that point. There is no evidence that the applicant or any other member was aware of the identity of the third party insurer. Having regard to their special position as a very large employer paying some $850,000 to secure insurance cover with automatic death and disability cover up to $700,000 for approximately 6,000 employees, it would seem logical to approach the respondents to request them to use their undoubted influence.

119 In this context it is significant that on 22 May 2001 the applicant's solicitors wrote to Mr McIntosh, Manager of Employee Relations of the first respondent, drawing attention to the terms of the letter of 7 May 2001 and the fact that the applicant did not know about his right to the continuity option. Importantly, Mr McIntosh was asked to take the issue up with the "appropriate people" and he was informed that the insurance cover was "a significant consideration" for the applicant and therefore to take appropriate steps to see if the matter could be rectified. On the respondents' own case the "appropriate people" were the third party insurers yet the respondents declined to take up the issue on behalf of the applicant. The applicant's solicitors in July 2001 wrote to the Trustee making further representations on behalf of the applicant but were informed to take up the matter with William M Mercer Pty Ltd. No mention was made of taking it up with the third party insurer.

120 The respondents then complain that at this point the applicant and his legal advisers had not disclosed to Mr McIntosh or those responsible for the Plan, such as Mr Cobley, precisely what were the applicant's health problems. This could only be relevant, however, if the respondents were prepared to make some representations on behalf of the applicant. The ignorance of the officers immediately concerned with the Plan and the applicant's rights under it were irrelevant if the respondents' hands were tied as they submit. I can see nothing in the insurance policy that would support that conclusion. The reaction of the respondents complaining that they did not know of the medical status of the applicant also suggests that they had a capacity to influence the third party insurer about the option and to take some step in that direction shortly after the termination to address the issue.

121 I am unable to accept the respondents' submission that the corporation could not be fixed with the knowledge of the applicant's medical condition simply because of a few conversations with senior officers. The applicant gave details of conversations with senior officers over a period of time which evidence was not contradicted: none of those officers were called to give evidence to contradict the applicant's version nor was it put to him that, in terms, those conversations did not take place. Mr Anderson was the CEO of the first respondent and his knowledge of the applicant's medical condition went back to days when they worked together in NZTV. They discussed the applicant's medical condition when he was first offered a position with the first respondent. Mr Anderson was told of the bypass surgery in 1998, and regularly asked about the applicant's health. The decision to terminate the Head of Pay Television in March 2001 after a re-organisation must have been a decision taken at the highest level of the first respondent. It is inconceivable that Mr Anderson and other senior officers were not involved in that decision making process or at least approved of it. There was clearly some discussion about making arrangements for the applicant in light of his speedy termination such that a Deed was able to be supplied to him the day after he was terminated. The termination itself, being the result of a redundancy brought about by re-organisation, must have involved senior officers of the respondents.

122 In October 1999, the applicant discussed his health and the letter from William M Mercer Pty Ltd advising of the $700,000 limit on his insurance cover of the applicant in the absence of supporting medical evidence qualifying the applicant for a higher rate of cover. The uncontradicted evidence of the applicant is that he discussed his medical condition and his inability to obtain insurance cover because of that condition with the Head of Human Resources, Mr Chris Hancock. Mr Hancock told the applicant that he was aware of the applicant's medical history and had been told of it by Mr Anderson. He said he would look after the matter and that without a medical report the applicant would be guaranteed the $700,000 capped level of insurance. I am in no doubt that the first and second respondents were well aware of the applicant's medical condition. How could it be otherwise when in 1998 he had triple bypass surgery?

123 The applicant's evidence was that he had not received the member booklet concerning the operation of the Plan. The applicant gave evidence about the circumstances surrounding the two contracts which both acknowledged membership of the Plan and being provided with a copy of the member booklet. He pointed out that, in relation to the first contract, he was employed by MovieVision not Optus which situation was set out in the contract. In relation to this contract, the applicant dealt with Mr Carter and spoke of signing a facsimile document in New Zealand, making some "household arrangements" but denied receiving the member booklet from Mr Carter. He was not sent an information package but was given other things like petrol cards and three or four matters of that kind. He referred also to dealing with Mr Johnson as a person involved in this contract but denied receiving an information pack from Mr Johnson.

124 The respondents call into question the applicant's credibility but neither Mr Carter nor Mr Johnson were called to refute this evidence. This was a matter that was central to the respondents' case, namely, that the applicant had been given the member booklet which contained information regarding the availability of the continuation option and the time limit within which it was to be exercised. In a similar way, the applicant's evidence relating to his conversations with senior managers such as Mr Anderson and Mr Hancock regarding his medical condition, was open to be refuted but the respondents did not call that evidence. Having conducted the case on this basis, it was a bold and unwarranted step to attempt to impugn the integrity of the applicant. Having regard to the totality of the evidence, I accept that, for whatever reason, the applicant was not supplied with the member booklet at the time he signed each contract. Indeed, it was accepted by counsel for the respondents that, based on his response when he received the letter of 7 May 2001, the fair inference was that, if the applicant had received the member booklet and read it, his circumstances were such that it was highly likely that he would have remembered the nature of the benefit and would have exercised the option upon his termination.

125 The applicant said when he signed the contract to join MovieVision as CEO, Mr Johnson was anxious to get the document and it was signed in New Zealand. His best memory was of a conversation that when he arrived in Australia other things were to be given to him but after subsequently joining MovieVision, he had very little contact with Optus and Optus did not get involved in the day to day operation of MovieVision. The first contract was headed "Draft" and was not meant to be the final document; the applicant had an expectation that there would be a subsequent document when he arrived in Australia but that document did not eventuate.

126 The second contract was signed with a Mr Paul Donovan in the Optus building at North Sydney in a hurried fashion but the applicant received no other material even though the contract referred to receiving the member booklet. Mr Donovan was not called by the respondents to refute this evidence.

127 The applicant's evidence was that the course of his duties did not require him to gain access to Human Resources or Personnel policies on the intranet - in fact, the senior executives had been encouraged to raise those matters on a personal level with the relevant director. The applicant used the intranet for various tasks he had to perform within the company and stated that he really ran out of hours to sit down and read about superannuation and could not recall ever reading anything on superannuation from the intranet. The information he had received about the death benefit had been in correspondence, and in 1999 it was the applicant who raised the issue of the restriction on the benefit and the need for a medical with the Head of Human Resources at the time - importantly, it was the applicant who raised this matter not the Head of Human Resources or anybody else on behalf of the respondents.

128 Although insurance cover for death benefit and total and permanent disablement was important and a subject of concern to the applicant, its availability with the first respondent was not the reason for joining the company. In fact at the time he was initially employed he was not told that there was automatic insurance cover and it was not until the letter from William M Mercer Pty Ltd in 1999 stating that he could not obtain cover above $700,000 without a medical that he raised the issue with Mr Hancock who said he would sort it out with William M Mercer Pty Ltd. It was Mr Hancock who said that the applicant was guaranteed $700,000 in cover no matter what his medical situation. Even in this discussion, there was no mention of the continuation option or the time limit on its exercise. Probably the very first time the applicant was aware that there was insurance cover was when he received the annual statement of superannuation benefits. He then realised that he had been included in a life insurance arrangement which had not been previously brought to his attention.

129 When he received the letter from William M Mercer Pty Ltd in 1999, he became aware of the cap on the benefit. In late 1999 or 2000, the applicant had a conversation with Mr Smith who was then the Human Resources Director and who had replaced Mr Hancock. In this conversation, they discussed all aspects of the Plan and its various benefits such as share options offered to Optus executives. It was quite a complex share scheme because Optus was involved in a variety of incentive programmes. Mr Smith talked about "everything, even the capping of the life insurance" but at no stage did he or anyone else draw to the applicant's attention that there was a 30 day limit on the continuation option.

130 I accept the applicant's evidence that he was not informed of the insurance benefit and continuation option when he was employed. Despite detailed conversations with both Mr Hancock and Mr Smith and although a variety of issues relating to the insurance policy were discussed, he was not informed of the continuation option and the time limit for its operation. The respondents did not call Mr Hancock or Mr Smith to challenge any aspect of these discussions as claimed by the applicant. The position, on the evidence, therefore seems to be that the applicant did not have a copy of the member booklet, had no reason to make any enquiries through the intranet as to the Superannuation Plan and its other benefits such as the insurance policy, received no relevant email concerning the insurance benefit and continuation option because it remained unchanged during the period of his employment, had discussions with senior executives of the respondents but was never informed of the policy and continuation option and, although he read his annual statement as to the status of his superannuation benefit he had no cause to gain access to either the website or the Super Helpdesk to make enquiries about a subject about which he had never previously been informed either in contractual discussions or otherwise during the performance of his duties with the respondents. In those circumstances, I am unable to accept the respondents' case that the applicant was provided with sufficient information about this benefit and ought to have known about its existence.

131 The respondents' submission that the second respondent was bound by the terms of the policy with the third party insurer and had no legal recourse or ability to impact or influence the operation of the policy is simply not established on the evidence. The respondents called no expert evidence or evidence as to practice and procedure in relation to policies of this kind purchased at a considerable sum for many thousands of employees by the employer. The terms of the policy give the appearance that it was framed, at least to a certain extent, by reference to the needs of the employer in providing benefits appropriate for its employees. I am also unable to accept the submission that the terms of the policy, and in particular Clause 23, precluded a review of the 30 day time limit or that the insurer could not be influenced by the respondents or that waiver of the time limit could not be exercised by the third party insurer at the behest and in response to representations by the respondents.

132 The suggestion that the applicant and his legal advisers ineffectively acted to have the time limit waived by not making a formal application to the third party insurer and instead made representations to William M Mercer Pty Ltd and the Trustee of the Plan is not supportable. The evidence demonstrates that in all its publications the respondents directed contact be made with William M Mercer Pty Ltd, the Super Helpdesk or the Trustee through the Assistant Secretary of the Plan. Concerns and enquiries which were not resolved were held out to be able to be addressed as soon as possible and ultimately within 90 days. There is no basis in the evidence supporting this aspect of the respondents' case.

133 The fact that neither Mr McIntosh nor Mr Cobley were informed of the reason the applicant was anxious to have the continuation option exercised led the respondents to complain that they were never properly informed of the applicant's health. There is no substance in this submission. I have already set out the circumstances in which senior officers were aware of the medical status of the applicant and the fact that his 1998 triple heart bypass must have been known to the respondents. As I have earlier observed, this submission for the respondents, contrary to their earlier submission, suggests that, if they had only known why the applicant needed the benefit of the continuation option and had been informed of his medical condition, they could have done something about it. This is at least an acknowledgement that the respondents could have made representations to the third party insurer but on the evidence they were not prepared to do so. In addition, there was no evidence from the respondents that their relationship with the third party insurer was at arm's length and entirely commercial, leaving them with no ability to influence the actions of the third party insurer in the circumstances of this senior officer being terminated and being 15 days out of time to exercise the option.

134 Mr O'Brien's evidence about the delivery of the member booklet and other information about the Superannuation Plan was, at best, evidence about the usual system of communication. Mr O'Brien was in no position to say who had given or had provided the member booklet to the applicant when he signed the two contracts, although the applicant identified the people with whom he was speaking and dealing at the time of executing those contracts. Those people were not called to say that the documents were given to the applicant nor was there any evidence of a system which ensured the documents were placed in the hands of the intended recipient. At best, Mr O'Brien's evidence was directed to what should happen in a large organisation: it is not sufficient to overcome the direct and uncontradicted evidence of the applicant on these matters.

135 The respondents also submitted that the failure of the applicant to join the third party insurer impinged upon the Court's consideration as to what, if any, relief should be granted and ultimately in what proportion the relief granted should be allocated to the existing respondents. This is a curious submission because the respondents assert that they were in no dispute with the third party insurer and had no complaint about it. It then becomes a mere assertion by the respondents that somehow the third party insurer was culpably involved in the treatment of the applicant. There is not a sufficient evidentiary basis to establish what, if anything, was done by the third party insurer or whether or not they were, in fact, informed of the applicant's desire to exercise the option.

136 The evidence called by the respondents establishes that Mr O'Brien wrote the passages of the booklet concerning the continuation option and the time limit for its operation. He authorised the form of the booklet that went out and appeared on the website. There appears to have been no step taken by the respondents to circulate the policy with the third party insurer or, indeed, to identify the third party insurer. Further, the respondents took the view that the issue was between the applicant and the third party insurer and declined to intervene in circumstances where they also took the point that the applicant did not notify the third party insurer when its identity was not disclosed. Out of this circuitous approach, it is difficult find any compelling reason why the applicant should be denied relief or have any relief granted by the Court reduced in recognition of this element.

137 The respondents then pointed to the Amended Summons for Relief and alleged that the applicant was bound by its pleadings, the Court being a court of strict pleadings. It is then alleged that the Amended Summons deals only with conduct that occurred following the termination of the employment and where the employment relationship had been terminated. Thus the applicant was bound by the terms of his pleadings and there was no jurisdiction in the Commission deal with the claim.

138 There is no doubt that more formality and particularity has been introduced in the commencement and maintenance of proceedings under s 106 of the Act than under earlier provisions. The very nature of the power, however, would tend against an over zealous approach to the documents which commence and particularise the complaint of unfairness. A similar issue was dealt with by Evatt J in Dugmore v Porter and ors (1982) 3 IR 182. In that case, the Federal Court was dealing with a rule to show cause under s 141 of the Conciliation and Arbitration Act (Cth) seeking to enforce certain rules of a registered organisation. Counsel for the respondents submitted that an applicant needed to show some specific act or omission either actual or threatened which was contrary to the express or implied rules of the organisation, and subjected the application to a detailed examination of each particular matter alleged to demonstrate that the matter was not within the provisions of the Act. During the course of argument, the Court pointed out to counsel for the applicant Mr McHugh (as he then was) that there was no evidence before the Court in respect of the passing of resolutions as referred to in argument to which counsel replied: Not at this stage because they (the respondents) are trying to summarily determine the whole action. What is said in this case is: You should be sent from the judgment seat sine die; that you look at the particulars of claim- and it was treated in these proceedings as points of claim, not a statement of claim - as though one were dealing with a special demurrer in the time of Baron Parke. Of this submission Evatt J stated (at 186): In the Industrial Division of the Federal Court it has been the practice of the Court to direct that points of claim and points of defence in any matter brought under ss 140 or 141 of the Act. Such points of claim or defence have not to my knowledge ever been treated by the Court as strict pleadings and no doubt that practice formed the basis of Mr McHugh's remarks re Baron Parke which have been referred to earlier herein. There is much to be said for a similar approach in relation to proceedings brought under s106 of the Act. Allowing for some judicious flexibility, the parties are nevertheless generally entitled to know the nature of the case they have to face.

139 The Amended Summons for Relief seeks to vary the Optus Superannuation Plan "either from its commencement, or from such other time as the Commission considers just in the circumstances of the case so as to permit the steps taken by the applicant to be regarded effective in exercising the option under the Plan". The alternate Order sought the variation of the Optus Superannuation Plan "and/or the contracts of employment between the applicant and the first respondent" so as to effectively ensure that the applicant could continue a death and disablement insurance such that in each case the applicant could be placed in the same position he would have been in had he applied for the replacement death and disablement insurance before 10 May 2001. In each case, these Orders seek that the arrangements that were in operation between the parties during the contract of employment be altered to ensure that the applicant has the benefit of the continuation option. The summary of matters of fact and law then traverse the history of the applicant from his first contract until his termination and then deals with the events following his termination whereby he sought to exercise the continuation option at the earliest opportunity after he became aware of it and was denied assistance by the respondents in securing that benefit. 140 The respondents focus on the terms of paragraph 17 which allege that that the Optus Superannuation Plan "was from the time it was entered into, or became unfair harsh or unconscionable" because of the conduct of the first respondent in failing to take any steps to assist the applicant in relation to his application, or because of the conduct of the second respondent in refusing to receive consider or to act upon the application in accordance with its merits or in that it allowed or permitted the respondents to so conduct themselves. While it might be said that the Amended Summons is not the clearest document, both in its terms and in the manner in which the case was conducted, the applicant claimed that the operation of the Plan was unfair as at the time he joined it or during the currency of his membership which resulted in the applicant losing a valuable benefit: the applicant sought a traditional "restitutionary" order. The evidence called by the parties traversed the entirety of the employment and was indicative of the nature of the case that was being brought by the applicant and was being addressed by the respondents. If this pleading point had any merit, it would have arisen at the time the evidence was being received: it would have been expected that the respondents would take objection to a vast amount of material dealing with the entire course of the contract when the Summons for Relief was allegedly confined to actions which occurred only after the contract of employment was terminated. In this respect, the respondents are bound by their own conduct of the case (Coulton v Holcombe (1986) 162 CLR 1).

141 Despite these earnest efforts on behalf of the respondents, I am satisfied that the contract between the applicant and the respondents (using that term in the widest statutory sense) was and became unfair during the course of the contract in that the continuation benefit was of special value to the applicant yet was not appropriately drawn to his attention in circumstances where the state of his health was well known to senior management of the first respondent. At the time of his termination, on the basis of redundancy arising from re-organisation, the respondents should have taken appropriate steps to ensure that the applicant was able to take advantage of the continuation option and that after termination the respondents continued to fail to take reasonable steps to assist the applicant to obtain the benefit which was an important and significant part of his employment contract with the first respondent. This was a contractual benefit which continued for 30 days after termination.

142 The next issue is the appropriate orders to be made in the light of the Court's findings. During argument, I raised with counsel for the applicant some difficulties with the primary relief sought, being Order 1A. Questions arise as to whether there is any utility in varying in any way the Superannuation Plan, and there are problems of vagueness with the alternative orders relating to securing the equivalent cover and how that might be achieved with the applicant being responsible for premiums in much the same way as he would have been if his election had been effective under the third party insurance taken out by the second respondent. In that discussion, counsel for the applicant frankly conceded that the crafting of appropriate orders was both a delicate and difficult task and ultimately proposed that, if the Court was prepared to make the necessary findings of unfairness, then the appropriate orders should be initially left to a discussion between the parties. Although this is not the usual course, there are occasions when the Court has found this approach useful. The circumstances of this case persuade me that it is appropriate to accede to the applicant's suggestion especially in circumstances where at the forefront of the respondents' case, was the Deed of Release. In light of the findings that I have made in relation to the Deed, the parties may now be able to concentrate on an appropriate way in which the unfairness to the applicant can be remedied. The matter will therefore be stood over to be relisted at the request of either party following their discussions.

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