Oberlechner v Watson Wyatt Superannuation Pty Ltd

Alfredo Oberlechner v EDS (Australia) Pty Limited NSWCC 16 August 2002 unreported Beverley v Tindall Life Insurance Co Ltd [1999] WASCA 198 Chammas v Harwood Nominees Pty Ltd (1993) 7 ANZ Ins Cas 61-175 Diosdado Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583 Edwards v The Hunter Valley Co-op Dairy Co Limited (1992) 7 ANZ Ins Cas 61-113 Hannover Life Re of Australasia Limited v Sayseng [2005] NSWCA 214 CASES CITED : McArthur v Mercantile Mutual Insurance Company Limited [2002] QdR 197 Muinos v Johnson and Johnson Retirement Benefits Ltd NSWSC 5 December 1996 unreported Oberlechner v Tower Australia Limited NSWSC 6 September 2002 unreported Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 Tower Australia Ltd v Farkas (2005) 64 NSWLR 253 Vidovic v Email Superannuation Pty Ltd NSWSC 3 March 1995 unreported White v Board of Trustees [1997] 2 QdR 659 Willis v The Commonwealth (1946) 73 CLR 105

Alfredo Oberlechner (P) PARTIES : Watson Wyatt Superannuation Pty Ltd (D1) The National Mutual Life Association of Australasia Limited (D2)

T J Boyd (P) COUNSEL : A M Colefax SC (D1) D F Villa (D2)

Herbert Weller Esq (P) SOLICITORS : Hunt & Hunt (D1) Turks Legal (D2)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1911/06 OBERLECHNER v WATSON WYATT SUPERANNUATION PTY LTD & ANOR JUDGMENT 1 HIS HONOUR: Introduction 2 The plaintiff, Alfredo Oberlechner, a member of a superannuation fund, of which the first defendant ("the trustee") is the trustee, challenges a decision of the trustee that the plaintiff was not totally and permanently disabled within the meaning of the trust deed relating to the superannuation fund ("the trust deed"). The plaintiff also challenges a decision of the second defendant ("the insurer") to reject a claim in relation to the total and permanent disablement of the plaintiff made on a policy of insurance the benefit of which is held by the trustee in respect of the total and permanent disablement of members of the superannuation fund including the plaintiff ("the term policy"). Factual framework 3 The plaintiff was, prior to 1999, employed by EDS (Australia) Pty Ltd ("EDS") as an IT consultant. He ceased working in 1999 and, apart from some short term returns to work at EDS, has not worked since that time. 4 By rule 7 of the rules of the superannuation fund contained in the first schedule to the trust deed, it was provided that, subject to the provisions of the trust deed, the trustee should pay a lump sum benefit to a member upon the member ceasing to be an employee before his normal retirement date on account of his "Total and Permanent Disablement". Total and Permanent Disablement in relation to a member was defined in cl 1 of the trust deed as having the same meaning as that phrase has in and for the purposes of the term policy. The term policy was a policy taken out by the trustee under cl 20 of the trust deed to secure the benefits payable under the trust deed on the death or Total and Permanent Disablement of a member. It is a policy with the second defendant being AXA Group Life Insurance Policy No GL21540 ("the term policy"), under which the expression Total and Permanent Disablement is defined in part K as meaning: " Part (a) Unable to Work When all of the following apply to the person insured: · an injury or sickness stops the person insured working in his or her usual occupation continuously for 6 months; · after considering all evidence which we believe is necessary to reach our view, in our opinion the person insured is unable ever again to work in any business, occupation or regular duties for which he or she is reasonably qualified by education, training or experience. For the purpose of this definition: · usual business, occupation or regular duties means full-time, casual or part-time duties where the person insured is defined as a full-time, casual or part-time employee (as applicable) under the policy; and · it is immaterial whether a business, occupation or regular duty is paid or unpaid."

5 There were in evidence two earlier judgments concerning the plaintiff's illness and incapacity arising from his employment by EDS.

6 The first judgment (Alfredo Oberlechner v EDS (Australia) Pty Limited NSWCC Burke AJ 16 August 2002 unreported) was in proceedings brought by the plaintiff in the Compensation Court to recover workers compensation arising from his incapacity. Burke AJ found that as a result of the plaintiff's work on and before 13 December 1999 he "suffered psychiatric injury by way of major depressive illness". His Honour found that this illness "would impinge upon his capacity to function in a reasonably accessible labour market" and awarded him compensation by reason of total and partial incapacity for different periods.

7 The second judgment (Oberlechner v Tower Australia Limited NSWSC Palmer J 6 September 2002 unreported) was in proceedings brought by the plaintiff in this Division of this Court under an income protection policy administered by the defendant. His Honour set aside under the Contracts Review Act 1980 a release executed by the plaintiff and rejected a claim by the defendant that the plaintiff ceased to be entitled to benefits under the policy as and from 3 September 2000, when it alleged that the plaintiff became capable of working. 8 The plaintiff in due course claimed from the trustee payment from the superannuation fund on the basis that he was totally and permanently disabled and a claim was made on the insurer under the term policy accordingly. The plaintiff commenced these proceedings on 22 April 2004 (originally in the Common Law Division against the trustee alone). The insurer rejected the claim in November 2005 and the trustee subsequently resolved to decline the claim on 29 November 2005. Course of these proceedings 9 I shall deal first with the challenge in these proceedings to the insurer's rejection of the claim under the term policy. That is because, if that challenge is upheld, the decision of the trustee, which was in large part based upon that rejection, will in any event require to be revisited by the trustee. If I decide to uphold that challenge, I shall in due course order that the challenge to the trustee's determination be decided separately from and after the other issues in the proceedings. The medical evidence 10 The condition by reason of which the plaintiff has been unable to work has been, in general terms, a depressive condition, which he has said he came to suffer by reason of the demands of a major and technically demanding project in which he was involved in the course of his employment with EDS. The project went live in November 1999. When I say that the relevant condition is, in general terms, a depressive condition, there is a good deal of dispute in the medical evidence as to precisely how the condition should be described or categorised and whether or not it should be described as a major depressive illness. 11 The overall management of the plaintiff's condition has been, since December 1999, undertaken by his general practitioner, Dr Grahame Hadfield. The plaintiff has on a number of occasions been seen and reported on by Dr Andrew Robertson, consultant psychiatrist. 12 The plaintiff has since December 1999 seen a number of other specialist practitioners and received treatment from several of them. These practitioners include Dr Frank Hughes, clinical psychologist, Dr Brian Timney, consultant psychiatrist, and Dr John J Baker, consultant psychiatrist. I do not propose to set out at length the opinions of those specialists. It is not that I disregard their reports or regard them as totally irrelevant. They provide support in a number of ways for Dr Robertson's views, to which I refer below, and provide other views concerning the plaintiff's condition and its progress. They indicate the ongoing difficulty of having the plaintiff adhere to any treatment regime. 13 Dr Andrew Robertson initially saw the plaintiff in August 2001 to prepare a medico legal report. Dr Robertson's opinion at that time was that the plaintiff had developed a severe depressive illness, which began in the latter part of 1999 and was attributable to the considerable stress to which he was subjected in the course of his work. At that stage, Dr Robertson had some hope of the plaintiff returning to work, although he did not think that the plaintiff should contemplate returning to EDS. Dr Robertson thought that the plaintiff would probably need to continue taking antidepressant medication for a further 12 months. 14 Dr Robertson saw him again in March 2003 to prepare a follow up medico legal report. His opinion was that the plaintiff's depression was clearly significantly worse than in 2001. He added: "…. the chronicity of his depression is a poor prognostic factor, as is the lack of support from his wife and the severely dysfunctional marital relationship."

In a short report of 19 May 2003, Dr Robertson opined: "With regard to the issue of permanent disability, and the likelihood that Mr Oberlechner will ever return to the type of employment which he was doing in the latter part of 1999, I think that it is extremely unlikely that he will ever be able to do work of this kind again. I consider that, in this regard, he is permanently disabled. His permanent disability is dealt with at some length in my report of 4 March 2003." 15 Dr Hadfield saw him on 62 occasions up to June 2004. It should be noted that Dr Hadfield, in a comprehensive report dated 23 June 2004, expressed the following views: " 6 Level of Disability Mr Oberlechner's level of disability is most likely severe. Although apparently employed at a higher level of software design, Mr Oberlechner has now spent about 20 - 25% of his employed life off work with this illness. Considering his lack of concentration and reliability, it would be surprising for him to return to his pre-morbid duties.

Likewise, Mr Oberlechner's ability to be employed in other areas need [sic] to be assessed by a rehabilitation assessor. Such an assessment is impossible until some closure occurs in respect to Mr Oberlechner's employment at EDS.

7 Prognosis Mr Oberlechner initially presented a consistent self-motivation during an independently managed recovery process. His symptoms although ongoing and fluctuating, diminished in parallel with the degree of his personal stress as he remained separated from the EDS work environment. However, with the protracted nature of the situation, Mr Oberlechner's improvement stagnated. At times he is less agitated and considers that he is capable of returning to his job. This is despite feeling that the issues at the root of his situation have not been addressed. His approach to such a return to work remains naïve and uncompromising. He continues to be treated with anti-depressant medication, and is expected remain so [sic] for the foreseeable future.

It was hoped that Mr Oberlechner might be able to return to gainful employment in his own occupation by mid 2001. His return to his current employer would have necessitated the workplace being conscientious in their approach to his continued employment, and being seen by Mr Oberlechner to be positive. Rather he has perceived the attitude of EDS to be uncompromising, uninterested in his recovery or his return to productive functioning. Unfortunately, his ability to cope with a return to work can only be definitively assessed by having a trial of suitability. Nevertheless, it is highly unlikely to succeed." 16 In a further report dated 27 September 2004, Dr Robertson expressed the following views under the heading "Opinion": "I think that your client continues to suffer a quite severe psychiatric illness, in response to the various problems and difficulties which he experienced in his work situation, as described in my report of 30 August 2001.

The diagnosis of his condition is of a Major Depression with melancholic features.

The chronicity of his depression is a poor prognostic factor. He has not worked for a considerable time, and I did not think that he was fit for gainful employment when I saw him on this occasion. The prognosis for a return to work at anything like his previous level of employment must be seen as very dubious.

I am quite pessimistic concerning your client's potential to recover from his psychiatric illness, and also his potential to return to gainful employment. I do not think that it is reasonable to be any more specific at this stage, given that his legal matters are still current. However, he has made no improvement over the past 18 months. When treating depression, the longer the condition has been present, the worse the prognosis; in other words, 'chronicity predicts chronicity'." 17 In a further report of 28 July 2005, Dr Robertson expressed the view that, "if your client stuck with a psychiatrist, and was punctual and compliant, his condition could be improved significantly, but after such a long illness I do not see him making a full recovery." 18 In late 2004 the insurer made an abortive attempt to obtain a report concerning the plaintiff from Dr Robert D Lewin, general and forensic psychiatrist. 19 On 17 August 2005, the insurer wrote to Dr Lewin as follows: "AXA Australia is considering a claim for a disablement benefit for Mr A Oberlechner. …… We require a detailed medical report. Please include in your report specific reference to the: s diagnosis, s level of disability, s prognosis, and s the type of work the claimant might be currently capable of or may be capable of in the future." 20 Dr Lewin entered on that assessment on 9 September 2005. The terms of the assessment requested were outlined by Dr Lewin in his report of 15 September 2005 as follows: "Thank you for asking me to assess the case of Mr Oberlechner with particular reference to his claim for disablement benefits. You asked me to express my opinion with regard to psychiatric diagnosis, fitness for work, his current level of disability and the prognosis."

In the final section of his report, under the heading "Summary Diagnosis And Opinion", as to diagnosis, Dr Lewin said: "I diagnosed a partially treated Depressive Reaction. His condition is complicated by a drinking problem and by poor adherence to treatment.

I did not diagnose Major Depression. The reason for this is the absence of morbid depressive symptoms and the clinical patterns of his condition. It is evident that his mood his [sic] responsive to both pleasant and unpleasant experience. I based the conclusion both upon the history reported by Mr Oberlechner and upon the observed clinical data."

As to his employability, Dr Lewin wrote: "Finally I considered your question with regard to fitness for work. When considering Mr Oberlechner's current pattern of drinking and his psychiatric condition alone, I reached a number of conclusions. I noted that his medication does not impair his cognitive capacity. He is not unduly sedated. There was no distortion in the pattern of his thinking as a result of his psychiatric symptoms. For example, Mr Oberlechner is not deluded or hallucinated. It is my opinion that his pattern of lateness is not explained on the basis of his psychiatric condition. It is likely that this is related to volitional factors.

At the present time Mr Oberlechner is considered fit to participate in a programme of occupational rehabilitation on a full-time basis. It is also my opinion that he is fit for work on a half-time basis at the present time. With a positive attitude to work, he would be fit for full-time work within a reasonable period of time, say four to six weeks from the time of commencing part-time work. However, I note Mr Oberlechner firmly argued 'No one would employ me.' He listed various reasons why he believed he would never be able to find work.

It is my opinion that his current lack of work is not explained on the basis of his current psychiatric condition." 21 It should be said at once that every other doctor whose reports are available (other than the insurer's own medical officers) expressed the view that the plaintiff suffered from a major depressive illness. 22 In addition to Dr Robertson's reports before the impugned decisions were made in late 2005, there are in evidence two reports of Dr Robertson of 2007. The first of those is dated 26 March 2007, written after Dr Robertson saw the plaintiff again for a follow up medico legal report on 23 March 2007. Dr Robertson's opinion as to the nature and cause of his psychiatric disorder remained unchanged. He added: "I cannot see him getting back into the workforce again, in gainful employment of any kind. He has not worked since the failed attempts to return to work in 2001." 23 There is a further report of Dr Robertson dated 23 May 2007, which is principally a commentary on Dr Lewin's report. Dr Robertson criticises Dr Lewin's report and states that there is nothing in Dr Lewin's report that causes him to alter his opinions. The determination of the claim by the insurer 24 The process of determination of the claim by the insurer is, so far as the evidence goes, recorded in the following documents. 25 There is a "Claim Assessment Summary" dated 16 September 2005. That contains a "Psychiatry file Review" by Dr Yvonne Greenberg. The body of that document is as follows: "Issue is TPD or not TPD.

File info refers to dispute about ability to work at greater or lesser capacity around 80%.

• Dr Robertson 3/3/03 19% Psych Disability
• Dr Robertson 27/9/04
• NSW Workers Compensation Panel Jan 2002 ∆ Adjustment disorder [with] dep[ressed] mood Total whole person imp[airment] 15% In the absence of pending report from Dr Lewin (IME) it sounds as if he is not totally and probably not permanently disabled.

Suggest review file after Dr Lewin's report to hand." 26 The next document is dated 29 September 2005, after Dr Lewin's report was received. This is a claim assessment summary by the Chief Medical Officer ("the CMO") of the insurer. His signature is illegible and he is not otherwise named in the evidence. The content of that document is as follows: "29.09.05 Medical I reviewed the file and Dr Lewin's report. Dr Lewin's report is very comprehensive, well reasoned and give [sic] a good chronology of events. Claimant last worked in 1999, [illegible] can be called the onset of his [illegible] condition. Recently he received a lump sum settlement on his IP [income protection] policy. There is a history of non-compliance with prescribed medications and abuse of alcohol intake, however no evidence of alcohol dependance [sic]. According to Dr Lewin no evidence of major depression. Claimant is suffering from a depressive reaction which is partially treated. No evidence of melancholia or psychosis. His psychiatric condition has not become a permanent condition and further improvement could be achieved if he receives more active treatment. His current level of impairment is mild & very minimal - 5%. He is fit for part time work and can participate in a programme of occupational rehabilitation on a full time basis. With a positive attitude he can RTW [return to work] in 4-6 weeks from the time of commencing part-time work. His current lack of work can not be explained on the basis of his current psychiatric condition and most likely is due to unemployment, poor motivation and expectation that his TPD claim would be admitted.

I recommend: Decline TPD claim and release report to treating doctor. In future we may have to get further independent opinion if claimant's solicitor argues with our decision." 27 The next document was prepared by Anne Newell, a claims assessor, and is described as an "Initial Claim Assessment". It is not dated. It appears that it was prepared between 29 September 2005, which is the date of the CMO's review, and 14 October 2005, which is the date of a further review by Dr Yvonne Greenberg. Although it is of some length, it is important to set the Initial Claim Assessment out in full: "History In July 1999 the claimant undertook a project with the expectation of financial bonus and gratitude from his employer. He worked very long hours to complete the project but believed the support given him inadequate. His health suffered and in December 1999 he suffered an acute stress reaction and a major depressive illness. He has not worked since. Financial difficulties forced him to court, settlement was achieved re his income protection insurance. TPD claim submitted in Nov 2003 to Watson and wyatt [sic] by claimants [sic] solicitors

Chronology May 04 request for authorities Request for report from Dr Robertson Request for report from Dr Hadfield Request for report from Dr Timney June 04 Request for Work cover [sic] documents

Dr report for Claim Dr Hadfield 23/06/04 Consultations for depression, prognosis poor to guarded. Diagnosis major depression with acute stress reaction. Level of disability considered to be severe.

Dr report for claim Dr Robertson Sept 04 History as per above Claimant suffers a severe psychiatric illness in response to workplace problems. He has a major depression with melancholic features. He has not worked for some time and the prognosis for RTW is poor. He has not improved over the last 18 months, pessimistic re potential.

IME Requested Dr R Lewin Appointment 20/10/04, non attendance " 09/09/05, late for appointment and continued at a later date History as per above Diagnosis, partially treated depressive reaction complicated by a drinking problem and poor adherence to treatment. s No evidence of schizophrenia s No diagnosis of major depression s No diagnosis of alcohol dependence s In relation to treatment he has made himself untreatable Prognosis: unless claimant resolves to cease drinking intervention treatment will not be of benefit and he has not reached maximal medical improvement. He is currently fit to participate in a program of occupational rehabilitation on a full time basis and fit for work part time.

Review by CMO Comprehensive report by Dr Lewin with a clear chronology. There has been settlement of his IP policy and there is a history of non compliance with prescribed medications, treatments and abuse of alcohol, however no evidence of dependence. As per above diagnosis: s Loss of capacity, minimal 5%. s Fit for part time work and with occupational rehab s Positive attitude, occupational rehabilitation could see a RTW in 4-6 weeks. His current lack of work not explained on the basis of his psychiatric condition and most likely due to unemployment and expectation of legal settlement. Decline TPD and release report to treating Dr.

Actions Refer to Dr Greenberg for comment Implement procedural fairness" 28 Dr Yvonne Greenberg's review of 14 October 2005 is referred to above. That document is described as a psychiatric file review, and the text is as follows: Reference: Dr Lewin 15/09/05

The report details a clear history of the current (alleged) symptoms. The history suggests dysphoria but is not consistent with so called major depression or melancholic depression. Dr Lewins [sic] conclusions are congruent with the history he elicited.

He notes claimant chooses not to take medications for his blood pressure and that he is not compliant with prescribed antidepressants.

Claimant alleges substantial alcohol intake but no withdrawal symptoms in December 2004 which he was admitted to hospital for an unrelated condition. Alcohol history may be exaggerated.

14/10/05 No evidence of clinical Psych. Disorder prior to age 35. Episode of illness precipitated by work place event, he therefore could get better.

On examination Dr Lewin found insufficient signs of mental illness to support a diagnosis of significant depression.

Opinion 1 Dr Lewin's report is detailed and dispassionate, the report deserves respect. 2 Evidence suggests client is mildly/moderately dysfunctional at this point and that he may have absence of entitlement. 3 No clear evidence of major mental illness or of total disablement 4 Permanent disability is a separate matter. A 40 year old man who was well until 35 years of age and whose illness was caused by a workplace issue should be treatable.

29 On 14 October 2005, the insurer wrote to Citistreet Australia Pty Limited ("Citistreet"), to which the trustee outsourced the provision of administration services in relation to the superannuation fund, forwarding copies of Dr Lewin and Dr Greenberg's recent reports and asking Citistreet to pass them on to the plaintiff to permit him to comment on them. The letter added: "Further, we will be forwarding copies of Dr Lewins [sic] Report to Mr Oberlechner's doctor, Dr Hadfield for comment." 30 On 14 October 2005, the insurer in fact wrote to Dr Hadfield, but contrary to the suggestion in its letter to Citistreet, that letter merely stated: "Please find enclosed a copy of a medical report from Dr Robert Lewin, consultant psychiatrist for your records." 31 On 20 October 2005, Citistreet, under cover of a fax, sent a letter to the plaintiff's solicitor. The fax stated: "Please note that I am not faxing a copy of Dr Lewins [sic] report as you have already received a copy however a copy of Dr Greenbergs [sic] report follows."

The accompanying letter stated: "As part of the assessment of the claim AXA have [sic] obtained a medical report from Dr Robert D Lewin dated 15th September 2005 and Dr Greenberg (visiting AXA consultant) who has provided a report dated 14/10/05.

It appears to AXA that this material contains information which is adverse to the claim that Mr Oberlechner is making. AXA wish [sic] to give Mr Oberlechner an opportunity to comment on this material and give AXA any further material in response before AXA make [sic] a decision about whether the member is entitled to benefits under the policy.

AXA have [sic] further advised that they [sic] will be forwarding copies of Dr Lewin's report to Mr Oberlechner's treating doctor, Dr Hadfield for comment.

Please advise if Mr Oberlechner wishes to comment or provide further material in response, before AXA finalise their [sic] assessment of the claim.

Any comments should be received by AXA within 28 days from the date of this letter." 32 No response was sent by the plaintiff's solicitor. In particular, there was no denial that the plaintiff's solicitor had received Dr Lewin's report. There was not in the evidence any explanation by the plaintiff's solicitor for the failure to respond in any way to the invitation made to comment on or respond to the matters adverted to in the communication of 20 October 2005. Dr Hadfield did not comment. That is not surprising, since, despite the terms of the insurer and Citistreet's letters, he was not in fact asked to do so. 33 The document most closely associated with the decision and by reference to which I infer the decision was made is headed "Final Claim Summary". It is not apparent from the document, and there is no evidence, as to who was the author of this document. The terms of the document must again be set out in full and are as follows:

MEMBER: Alfredo Oberlechner PLAN NO: GL 21540/216

WHEN CONSIDERING THE CLAIM ALL THE EVIDENCE AVAILABLE (MEDICAL AND NON-MEDICAL) WAS CONSIDERED TOGETHER WITH ALL THE ELEMENTS OF THE DEFINITION.

THE FOLLOWING COMMENTS ARE AXA AUSTRALIA'S VIEWS OF THE EVIDENCE RECEIVED. WHEN CONSIDERING THE CLAIM, THE TRUSTEES SHOULD READ ALL THE AVAILABLE EVIDENCE IN ITS ENTIRETY IN CONJUNCTION WITH THIS SUMMARY ------------------- o -------------------

The claimant is a 41 year old IT specialist with a claim for TPD based on a major depressive disorder.

Diagnosis, partially treated depressive reaction complicated by a drinking problem and poor adherence to treatment s No evidence of schizophrenia s No diagnosis of major depression s No diagnosis of alcohol dependence s In relation to treatment he has made himself untreatable Prognosis: unless claimant resolves to cease drinking intervention treatment will not be of benefit and he has not reached maximal medical improvement. He is currently fit to participate in a program of occupational rehabilitation on a full time basis and fit for work part time. His loss of capacity is limited

WE ARE OF THE VIEW THAT IT WOULD BE UN_REASONABLE [sic] TO CONSIDER THAT THE CLAIMANT IS TOTALLY AND PERMANENTLY DISABLED WITHIN THE TERMS OF THE POLICY DEFINITION.

THE CLAIM FOR TOTAL AND PERMANENT DISABLEMENT IS THEREFORE DECLINED." 34 It should be noted that it was accepted that Anne Newell, who played some part in dealing with the matter for the insurer, was precluded from giving evidence by distressing personal circumstances. However, the only evidence which it was specifically said she might have given was as to follow up calls to Dr Hadfield concerning any possible comment by him on Dr Lewin's report. There was no evidence that she was a participant in the insurer's final decision. The law: The insurer's duty 35 The obligations of an insurer in determining a claim such as the present and the circumstances in which its determination may be set aside are discussed in a number of cases. 36 The cases I have selected to cite are cases where the liability or non liability of the insurer is dependent upon it forming an opinion as to a certain matter. It was relevantly said by McLelland J in Edwards v The Hunter Valley Co-op Dairy Co Limited (1992) 7 ANZ Ins Cas 61-113 at 77,536: "It is next necessary to examine the nature and content of Zurich's relevant obligations under the policy. Those obligations were contractual and not fiduciary. Zurich was an insurer, not a trustee. Since the commercial purpose of the policy was, relevantly, to provide insurance against the risk of total and permanent disablement, and since the policy was expressed in terms requiring the formation by Zurich of a particular opinion as a condition of Zurich's own liability, there was clearly an implied obligation on Zurich to consider and determine whether it should form that opinion. That involved a consideration and determination of the correct question (see James Noel Eric Butcher v Martin Port (1985) 3 ANZ Insurance Cases 60-638; (1985) 1 NZLR 491 at 496, 504, and cf Wilson v Metro Goldwyn Mayer 18 NSWLR 730 at 734). Furthermore, in the exercise of powers affecting the interests both of itself and the claimant, Zurich was under a duty of good faith and fair dealing which required it to have due regard for the interests of the claimant (see The Distillers Company Biochemicals (Australia) Pty Limited v Ajax Insurance Company Limited 130 CLR 1 at 29-31). This duty is in my opinion analogous to the duty to which a mortgagee is subject in exercising a power of sale of mortgaged property, and to the duty to which a controlling shareholder of a company is subject in exercising a right to procure the passage of a resolution affecting the interests of the shareholders at a general meeting of the company (cf Peters' American Delicacy Company v Heath & Ors 61 CLR 457 at 502-4). (It is to be noted that the policy was issued prior to the commencement of the Insurance Contracts Act 1984).

Where under a contract, rights or liabilities depend upon the subjective state of mind of a party, e.g. the party's approval, opinion or satisfaction, of or about something, it can be a difficult question whether the party is subject to an implied obligation in reaching that state of mind, or failing to reach it, as the case may be, to be bound by objective standards of reasonableness (see the discussion by Mason J in Meehan v Jones & Ors 149 CLR 571 at 590-1, and see also VL Credits Pty Ltd v Switzerland General Insurance Co Ltd (No 2) (1991) 2 VR 311 at 315-6). However in the field of insurance, it is well established that where under a contract of insurance an element of the insurer's liability is expressed in terms of the satisfaction or opinion of the insurer, the insurer is obliged to act reasonably in considering and determining that matter (see Moore v Woolsey (1854) 4 El & Bl 243, 119 ER 93, Braunstein v Accidental Death Insurance Co (1861) 1 B & S 782, 121 ER 904, London Guarantie Co v Fearnley (1880) 5 App Cas 911 at 916, 921, Doyle v City of Glasgow Life Insurance Co (1884) 53 LJ Ch 527, Harvey v Ocean Accident and Guarantee Corporation (1905) 2 IR 1, James Noel Eric Butcher v Martin Port (1985) 3 ANZ Insurance Cases 60-638; (1985) 1 NZLR 491, cf Teur v London Life Insurance Co (1936) 1 DLR 161).

To say that an insurer must act reasonably in forming or declining to form an opinion is not to say that a Court can substitute its own view for that of the insurer. As North J pointed out in Doyle at 529, 'reasonable persons may reasonably take different views'. Unless the view taken by the insurer can be shown to have been unreasonable on the material then before the insurer, the decision of the insurer cannot be successfully attacked on this ground." 37 In Chammas v Harwood Nominees Pty Ltd (1993) 7 ANZ Ins Cas 61-175, Hodgson J (as his Honour then was) considered and summarised at 77,999 what was said by McLelland J in Edwards as to the obligations of an insurer as follows: "In Edwards v The Hunter Valley Co-Op Dairy Co Ltd , at 9 to 11 of the unreported judgment, he discussed the obligations of an insurer under a clause similar to the present. He stated that in that case, there was an implied obligation on the insurer to consider and determine whether it should form the relevant opinion. He went on to say that that involved a consideration and determination of the correct question; and that, in the exercise of powers affecting the interest both of itself and the claimant, the insurer was under a duty of good faith and fair dealing, which required it to have due regard for the interests of the claimant. He went on to say that in the field of insurance, it was well established that where, under a contract of insurance, an element of the insurer's liability is expressed in terms of the opinion of the insurer, the insurer is obliged to act reasonably in determining and considering that matter."

His Honour then gave further consideration as to aspects of the plaintiff's claim. His Honour concluded that the defendant considered the correct question, but continued at 78,000: "It seems to me that the substantial complaints come down to this: lack of enquiries made of the treating medical practitioners; lack of consideration of the plaintiff's capabilities, having regard to his education, experience, etc; and the suggestion that the defendant did no more than rubber stamp views expressed by Dr Kater and Dr Watts."

In light of the above matters, his Honour (at 78,001) came to the conclusion that the defendant did not act fairly and reasonably in coming to a decision on the plaintiff's claim. 38 The law in this area was usefully summarised in the Court of Appeal by Santow JA in Hannover Life Re of Australasia Limited v Sayseng [2005] NSWCA 214 at [35], [36] as follows: "35 Turning to the challenge to Hannover's decision as insurer, the matter in issue on this appeal, the trial judge observed that when the decision of an insurer is challenged, while the grounds of challenge are generally similar to those applicable to trustees, the court proceeds to determine the facts should the insurer have actually failed to form the relevant opinion or have constructively failed to do so by proceeding on the wrong basis ([77] Red, 55M-S).

36 The nature and content of Hannover's obligations vis-à-vis Mr Sayseng were derived by the trial judge from the principles stated in Edwards v The Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113 at 77,536. The relevant principles were said to be these ([81] Red, 57K-58Z): (a) There was an implied obligation on Hannover to consider and determine whether it should form an opinion on the matter which was a condition of its own liability; (b) That obligation involved consideration and determination of the correct question; (c) Hannover was under a duty of good faith and fair dealing which required it to have due regard for the interest of the claimants, meaning Mr Sayseng, as well as the Trustee; (d) Hannover was also obliged to act reasonably in considering and determining what its opinion was; (e) If the view taken by Hannover can be shown to have been unreasonable on the material before it, its decision can be successfully attacked; (f) If Hannover's decision is successfully attacked, the matter upon which its opinion was required becomes one for determination by the Court; (g) It has been held to be unfair for an insurer to act upon detailed and adverse medical reports obtained by the insurer itself without giving the claimant an opportunity to balance the report by obtaining a detailed report from a treating doctor, or giving the claimant a chance to answer the adverse elements in the report ([88], Red, 60L-O) citing Chammas v Harwood Nominees Pty Ltd (1993) 7 ANZ Ins Cas 61-175, Hodgson J at 78000 and 78001; Wyllie v National Mutual Life Association Ltd (Hunter J, 18 April 1997, unreported) and Beverley v Tyndall Life Insurance Co Ltd (1999) WAR 327 per Ipp J at [25], [33 to 37] and [84 to 95] and Malcolm CJ at [6], [12] and [13], [14] and [15]. Anderson J who agreed in the result of the appeal did not agree with this holding: see [97] to [98]."

Santow JA did not demur to any of these principles. His Honour specifically held that the approach of McLelland J in Edwards and of Hodgson J in Chammas was correct. See also Beverley v Tindall Life Insurance Co Ltd [1999] WASCA 198. The law: Interpretation of the policy definition 39 In relation to a similar definition to the present, a useful summary is contained in the decision of Nicholas J in Diosdado Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583 at [63], [64]: "63 The definition of 'total and permanent disablement' has been considered in many cases. To meet the test in the definition the insured is required to prove that he is incapable of performing any occupation or work which he is reasonably capable of performing by reason of education, training, or experience. It is said to be a stringent test. It is one to be considered by reference to his existing education, training, and experience. The court is required to ascertain what the insured is actually capable of doing with regard to the qualification that the capacity for work under consideration is that for which the insured is reasonably capable of performing by reason of education, training, or experience. If he requires retraining in order to be employable, he is totally and permanently disabled within the definition. ( Dumitrov v SC Johnson & Son Superannuation Pty Ltd [2006] NSWSC 1372, para 29; Ivkovic v Australian Casualty and Life Ltd (1994) 10 SR (WA) 325, p 351.)

64 The definition relates to disability to obtain future employment. It requires consideration of whether or not, on the evidence, it is probable that the insured would actually obtain work for reward (i.e. paid employment) for which he is qualified by education, training or experience, and whether his condition has disabled him from doing what he is qualified to do. The court is expected to take a realistic and common sense approach in its assessment. The application of the definition is directed to the realities affecting the capacity of the insured under consideration. It is not about theory. ( Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945, per Bryson, J para 54; Ivkovic p 351; Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55, paras 64, 65, 68.)"

His Honour at [72], [73] applied those principles to the facts of the case before him: "72 The opinions of Drs Funnell, Billett and Miss Gosling are, in substance, inconsistent with the finding that the plaintiff's disablement is total. I have taken their evidence into account. My impression of their evidence was that it was directed to the question of, to use Miss Gosling's words, future employability rather than to the narrower one of whether the plaintiff was unable ever to work for reward in work which he was reasonably capable of performing by reason of education, training or experience. However I am satisfied that when it is assessed with regard to the bulk of the other evidence, including that of the plaintiff's wife and daughter, it does not justify a different conclusion.

73 The part-time work which the insurer submitted the plaintiff was capable of doing was never adumbrated, apart from reference to the duties and limitations specified in the rehabilitation programmes. I find it significant that there was no evidence which identified any form of work which the plaintiff would be capable of performing free of pain, and without the need to take frequent breaks for relief of pain and changes in posture. According to the evidence, the plaintiff's condition is, and has been continuously since 11 December 1997, such that he is possibly able to perform light tasks which allow him to relieve pain by lying down, sitting, standing, moving about, and changing posture regularly during a shift, and does not involve bending, lifting or twisting. As a matter of reality and common sense, it is difficult to envisage the probability of the existence of paid employment for work of that kind. On any view, such work would not be of the kind that the plaintiff is reasonably capable of performing by reason of education, training or experience." 40 Three propositions emerge from what was said by Nicholas J and from other judicial pronouncements as to the interpretation of the criterion. The terms of the criterion must be stringently observed. The test must be applied by reference to the insured's existing training, education and experience. And a realistic and common sense approach must be taken to the assessment of whether or not the insured meets the criterion. Whilst Nicholas J was speaking in a context where the Court was to make the assessment, naturally, the proper meaning of the criterion as it should be applied by the insurer is the same. The plaintiff's contentions 41 The grounds on which the plaintiff claims that the insurer breached its duty to the plaintiff are set out as follows in the particulars appended to paragraph 24 of the second further amended statement of claim ("the statement of claim"): "b The second defendant failed to afford the plaintiff any reasonable opportunity to respond to adverse medical reports, including the reports of Drs Lewin and Greenberg. c The second defendant failed to obtain as a matter of fairness, comments on the reports of Drs Lewin and Greenberg from Dr Hadfield and Dr Robertson. d When qualifying Dr Lewin, the second defendant failed to provide to Dr Lewin relevant material including the affidavit of the plaintiff sworn 13 September 2004 and reports of Dr Andrew Robertson dated 19 May 2003 and 27 September 2004. e The second defendant failed to further and adequately investigate the matter between receipt of Dr Lewin's report of 15 September 2005 and declining the claim on 29 November 2005. …… g The second defendant failed to carry out a real and genuine consideration of all the evidence. …… i The second defendant failed to act reasonably in considering and determining what its opinion was by simply relying upon the opinion of Dr Lewin. j The second defendant made a misrepresentation in a letter dated 14 October 2005 that it had forwarded a copy of the report of Dr Lewin to Dr Hadfield for comment." The insurer's contentions 42 The insurer contended that there was no lack of opportunity for the plaintiff to present material in answer to the adverse material the insurer relied on. Citistreet's letter to the plaintiff's solicitor dated 20 October 2005 drew attention to the adverse reports and specified a period within which the plaintiff was to respond. The insurer submitted that it was not itself obliged to obtain comments on the adverse medical reports: see Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 per Bryson J at [88]. 43 The insurer submitted that it was not required under the obligation of fair dealing to furnish Dr Lewin with all material relevant to the plaintiff's claim: an insurer's doctor ought give an independent opinion based upon the history elicited from the claimant and examination of him. 44 The insurer submitted that the misstatement that a copy of Dr Lewin's report had been forwarded to Dr Hadfield for comment did not mislead the plaintiff or result in unfairness to him. 45 The insurer submitted that it is clear that it had regard to all the relevant evidence. Counsel referred to Dr Yvonne Greenberg's file review of 16 September 2005; the insurer's CMO's review of 29 September 2005; Anne Newell's initial claim assessment; and Dr Yvonne Greenberg's comments of 14 October 2005 on Dr Lewin's report. He also referred to statements contained in the final claim. Conclusion: The insurer's decision 46 The breaches of duty by the insurer contended for by the plaintiff fall into two groups for consideration. 47 The first group, being particulars b, c, e, and j appended to paragraph 24 of the statement of claim, deal with the insurer's obligation to afford the insured a reasonable opportunity for response and the insurer's obligation itself to investigate the matter. 48 So far as concerns the affording of an opportunity to comment upon or answer Dr Lewin and Dr Greenberg's views, the conduct of the insurer in this regard was far from satisfactory. On the one hand, it would seem that it was thought appropriate for an invitation to be issued direct to Dr Hadfield to respond. On the other hand, it was not thought appropriate to make any such invitation to Dr Robertson, who was the specialist psychiatrist most relied upon by the plaintiff to support his case. Furthermore, the supposed invitation to Dr Hadfield to comment was non existent. When Dr Lewin's report was in fact sent to Dr Hadfield, it was not said to be for him to comment on, but was said only to be for his records. There was a misleading element in the plaintiff being informed through his solicitor that Dr Hadfield had been asked to comment. 49 Despite these unsatisfactory features, I do not think that the plaintiff can in the circumstances rely on a failure to be given an opportunity to comment on the adverse material. It must be concluded, in the absence of denial, that the plaintiff's solicitor had received Dr Lewin's report. And he was certainly sent Dr Yvonne Greenberg's report. He was given time to respond. He simply did not do so. His failure to do so is unexplained. He could himself have obtained reports from Dr Hadfield and Dr Andrew Robertson answering the insurer's material. Despite the misleading statements about the direct invitation to Dr Hadfield to respond, there is no evidence that this misleading statement was relied upon by the plaintiff to his detriment. There is simply silence concerning the non response. In these circumstances, I do not think it can be said that there is a just complaint that the plaintiff was not invited to respond. 50 As to the allegation that the insurer itself failed to make further investigations after the receipt of Dr Lewin and Dr Yvonne Greenberg's reports, this is no doubt correct, in view of the lack of invitation to Dr Hadfield to respond. In some circumstances, it may be deemed that an insurer is obliged to conduct further investigation. However, this is a case where the plaintiff was dealing with the trustee and the insurer through a solicitor and had, indeed, already by that solicitor brought proceedings in the Supreme Court. The insurer had on a number of occasions been furnished with material, including medical reports, in support of the plaintiff's claim, emanating from that solicitor. In those circumstances, it does not seem to me that the insurer was obliged itself to gather further medical material, rather than issuing an invitation to the plaintiff's solicitor to respond to the material that the insurer had obtained. There is therefore nothing in the first group of complaints that would vitiate the insurer's decision. 51 The other group of alleged breaches consists of particulars d, g and i appended to paragraph 24 of the statement of claim. As to particular d, on the evidence I conclude that the insurer did not furnish the affidavit and the reports of Dr Andrew Robertson mentioned in that particular to Dr Lewin. There is no evidence that the insurer in fact had the affidavit at the relevant time. But I conclude that it did have the relevant reports of Dr Robertson, which it should have forwarded to Dr Lewin. This was a deficiency. However, it did furnish other reports of Dr Robertson. I do not accept the insurer's contention that it was not under a duty to furnish its medical expert with medical opinions in its possession supporting the plaintiff's case. 52 But at the heart of this matter are the complaints made by the plaintiff in particulars g and i about the lack of a real and genuine consideration of all the evidence and the rubber stamping, in effect, of the opinion of Dr Lewin. These complaints are exacerbated by the fact that Dr Lewin did not even have the correct question posed for his opinion. 53 When one examines the process of decision as it is set out in paragraphs [24] to [34] above, there is little reference to any of the material except the adverse opinions of Dr Lewin and Dr Yvonne Greenberg. The final claim summary is the document by reference to which it appears on the evidence that the final decision was made, although it does not appear by whom. There is a separate section at the head of the final claim summary that states that, when considering the claim, all the evidence that was available was considered together with all the elements of the definition. However, virtually everything else in the evidence tends to characterise this statement as lip service to correctness. Dr Yvonne Greenberg in her earlier file review, made before Dr Lewin's report was received, referred passingly to reports of Dr Andrew Robertson. But the only material cited by Dr Yvonne Greenberg to support her later opinion is Dr Lewin's report. Again, the CMO of the insurer in his claim assessment summary refers only to Dr Lewin's report and recommends declining the claim, whilst conceding that, "in future, we may have to get further independent opinion if claimant's solicitor argues with our decision". The main body of the final claim summary is taken virtually word for word from Dr Lewin's report. 54 The insurer referred in its submissions to the fact that some of its medical evidence, particularly Dr Lewin's, referred to medical evidence of the plaintiff. But there are only two places where the insurer's documentation created in the decision making process refers to some of the plaintiff's medical material. There are the passing references to reports of Dr Robertson in Dr Yvonne Greenberg's earlier review, which were noted above. And in the initial claim assessment, views of Dr Hadfield and Dr Robertson are set out, but only briefly and in far less detail than the views of Dr Lewin and the insurer's CMO. It is not clear whether and to what extent, if at all, even these brief extracts were taken into account when the final decision was made, by whomever made it on the insurer's behalf. No evidence has been called by the insurer to amplify the documentation as to the decision that is in evidence or what can be gleaned from it in relation to the decision making process. 55 The situation is rendered all the more unsatisfactory by the fact that Dr Lewin was not asked to express a view as to whether the policy criterion (which it would seem was not communicated to him) had been met. The CMO and Dr Yvonne Greenberg's views were repetitive of and dependent upon Dr Lewin's views. The documents leading to the decision indicate a very one sided consideration by the insurer of the available material. And that material did not even address the correct criterion. There is no evidence that suggests that the question of incapacity was considered in any realistic way by reference to the plaintiff's education, training and experience, or that there was any consideration of what work might be available to the plaintiff, whether he could do it and whether he was realistically likely to obtain it. 56 In my view, the insurer's consideration which led to the claim being declined was seriously flawed and was in breach of the insurer's duty to the plaintiff to consider and determine the correct question, to have due regard for the interests of the plaintiff, and to act reasonably in considering and determining what its opinion was. There will therefore be a declaration that the insurer's determination is void. Conclusion: Determination whether the plaintiff met the policy criterion 57 There is no doubt on the authorities that the Court may proceed to make a determination of the insured's claim, if it strikes down a determination of it by the insurer. The claim is to be determined by the Court as at the date of the insurer's determination. See Edwards; Chammas; McArthur v Mercantile Mutual Insurance Company Limited [2002] QdR 197; Sayseng [2003] per Bryson J at [82]. 58 For the purpose of making this determination, I have before me the affidavit evidence of the plaintiff, on which he was not cross examined. I have before me the medical evidence previously referred to in this judgment. The doctors have not been cross examined before me. I have considered the whole of the evidence. On considering the whole body of medical evidence, I prefer the evidence on behalf of the plaintiff, and particularly the evidence of Dr Hadfield and Dr Andrew Robertson to the medical evidence on behalf of the defendants. The defendants' medical evidence is in substance the evidence of Dr Lewin, because Dr Yvonne Greenberg and the CMO of the insurer did not see the plaintiff and, in effect, repeat Dr Lewin's views, without giving any reasons for preferring them to those of the plaintiff's doctors, to any extent that they really considered the latter. An important reason for my preference of Dr Hadfield and Dr Andrew Robertson's views is that those doctors saw the plaintiff on many occasions over a period of years, whereas Dr Lewin saw him on one occasion only. Dr Hadfield had seen the plaintiff on 62 occasions up to 2004. Dr Robertson, like Dr Lewin, is a specialist psychiatrist. Whilst Dr Hadfield is a general practitioner, he cared for the plaintiff over many years and his reports are well and cogently written. 59 To turn to particular matters, I find that the plaintiff had suffered and was as at November 2005 suffering from a major depressive illness. This is the opinion of Dr Robertson and Dr Hadfield. It is also the opinion of the other medical experts whose evidence the plaintiff has adduced. Furthermore, it seems to me, from the serious and persisting consequences of the plaintiff's depression, that it is more likely that his depressive illness should be regarded as major or severe, rather than as some comparatively minor and perhaps passing condition, as Dr Lewin regarded it. 60 Dr Lewin appears to have taken the view that, if only the plaintiff would cease to drink and would adhere to some regime of psychiatric treatment, it is likely that he would quickly recover. Various regimes of treatment have been recommended to or tried by the plaintiff in the past, but he has not adhered to them. Those who have treated him have regarded him, certainly at times, as well motivated to return to work if he could. I draw the conclusion that his inability or failure to adhere to regimes of treatment is less likely to be as a result of some wayward attitude on his part, than as being itself a result of the depressive symptoms from which, on all accounts, he suffers. 61 The medical evidence must be read as a continuum and as a whole and I have done so. The fact of the matter, on the plaintiff's medical evidence, is that his depressive condition has become not better, but worse, over the years. For some years, Dr Robertson in particular has been saying that chronicity is itself an indicator of a poor prognosis: "chronicity breeds chronicity", as he once put it. The plaintiff had as at November 2005 been unemployed for something approaching a quarter of his working life. Whilst not forgetting that they must be read in context, I advert to Dr Andrew Robertson's view in 2003 that: "With regard to the issue of permanent disability, and the likelihood that Mr Oberlechner will ever return to the type of employment which he was doing in the latter part of 1999, I think that is extremely unlikely that he will ever be able to do work of this kind again. I consider that, in this regard, he is permanently disabled."

I also advert to Dr Robertson's view in 2004 that he was "quite pessimistic concerning your client's potential to recover from his psychiatric illness, and also his potential to return to gainful employment." I advert similarly to Dr Hadfield's view in that year that a return to work was "highly unlikely to succeed". 62 The degree to which subsequent evidence may be considered by the Court is not without controversy: see Willis v The Commonwealth (1946) 73 CLR 105 per Dixon J at 116; McArthur supra per McPherson JA at [23]; Tower Australia Ltd v Farkas (2005) 64 NSWLR 253 per Mason P at [17] - [20]. The degree to which such evidence may be used may depend upon the terms of the particular policy. I have thought it safer in light of this controversy not to place any reliance on Dr Robertson's 2007 reports in coming to my conclusion. If it were permissible to do so, I should take the plaintiff's continuing poor condition as reported by Dr Robertson in 2007 as confirmatory of the plaintiff's poor condition in November 2005. 63 The incapacity which must be found for the plaintiff to be entitled under the term policy is an incapacity for work "in any business, occupation or regular duties for which he … is reasonably qualified by education, training or experience". There is no evidence of what work the plaintiff is qualified for by education, training or experience, other than the computer related work that he was doing with EDS. The importance of the consideration of this aspect of the definition was emphasised by Bryson J in Vidovic v Email Superannuation Pty Ltd NSWSC 3 March 1995 unreported; by McLelland CJ in Eq in Muinos v Johnson and Johnson Retirement Benefits Ltd NSWSC 5 December 1996 unreported; by White J in White v Board of Trustees [1997] 2 QdR 659; and by Nicholas J in Sayseng [2007] at [64]. Furthermore, there was no evidence of the availability to the plaintiff as at November 2005 of any work. 64 Authority commands the Court to take a realistic and common sense approach in its assessment of this matter: see per McLelland CJ in Eq in Muinos supra; and per Nicholas J in Sayseng [2007] at [64]. On the evidence, looked at realistically, as at November 2005, I cannot see what employment the plaintiff in his then condition was able or likely to gain, then or subsequently, particularly bearing in mind his long history of unemployment by reason of depressive illness, which would have been unattractive to any prospective employer. 65 I am well aware that the test to be met is a stringent one and must be stringently applied. For the plaintiff to be qualified under the definition in the term policy, there must be a finding that he "is unable ever again to work in any" of the capacities mentioned. I also bear in mind that that finding must be made upon the civil onus, that is, upon the balance of probabilities. 66 Upon the balance of probabilities, I find that the plaintiff was, as at November 2005, unable ever again to work in any in any business, occupation or regular duties for which he was reasonably qualified by education, training or experience. 67 In view of this conclusion, I propose to make the order for separate decision of questions foreshadowed as a possibility in [9] above. The undecided balance of the proceedings will be stood over, whilst the first defendant considers its position in the light of my conclusions. Short minutes should be brought in to give effect to those conclusions. Questions of costs may be raised at that time.

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