Phillips v Commissioner for Superannuation - [2004] FCA 28 - FCA 2004 case summary — Zoe

CTHFCA

Phillips v Commissioner for Superannuation

[2004] FCA 28

Federal Court of Australia|2004-01-30|Before: Stone J

View original source

At a glance

Source facts

Court

Federal Court of Australia

Decision date

2004-01-30

Before

Stone J

Source

Original judgment source is linked above.

Judgment (40 paragraphs)

[1]

INTRODUCTION 1 On 24 June 1988 the applicant retired from the Commonwealth Public Service ('CPS') on invalidity grounds. As the applicant had been with the CPS for less than twenty years an investigation was undertaken to determine if her invalidity was related to any condition from which she had suffered prior to joining the CPS. As a result of this investigation a delegate of the Commissioner for Superannuation, the respondent in this proceeding, determined that when the applicant joined the CPS she had not disclosed all required information or she had given false or misleading information about her health at that time. Consequently her superannuation entitlement was reduced. After another delegate of the Commissioner confirmed that decision on 29 March 2000, the applicant sought review of the decision in the Administrative Appeals Tribunal ('Tribunal'). Although the Tribunal made some changes to the decision of the delegate (discussed below) the outcome for the applicant in terms of the reduction to her superannuation entitlement was unchanged. The applicant now applies under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ('AAT Act') for review of the Tribunal's decision.

[2]

2 The applicant was born on 2 December 1949. She commenced employment with the CPS on 14 February 1983. Pursuant to s 16(2) of the Superannuation Act 1976 (Cth) ('Superannuation Act') the applicant was required to undergo a medical examination as a pre-condition to permanent employment with the CPS and admission to the relevant superannuation fund. On 14 July 1983, in the course of that medical examination, the applicant was required to complete a questionnaire entitled 'Statement of Personal Medical History'. In answering the questionnaire the applicant indicated that the only disability from which she had suffered or was suffering from was hay fever or allergic rhinitis. Relevantly, the applicant responded 'NO' to each of the six questions in Part 1 of the questionnaire and 'NO' to Part 12. The applicant also signed a declaration specifying that this statement was 'true and correct to the best of my knowledge'. The questions in Parts 1 and 12 were:

[7]

5 Because the applicant had not completed twenty years of service at the time of her retirement, there was a review of her medical history and the BCC issued in 1984. On 13 March 1990 a delegate of the Commissioner determined that at the time of her medical examination (see [2] above), the applicant had failed to give required information or had given false or misleading information in that she did not disclose a previous psychiatric illness. For convenience I shall refer to this finding as the applicant's 'failure to disclose'. Because of this failure to disclose, and pursuant to s 16(11) of the Superannuation Act, the Commissioner's delegate issued a substitute BCC, which noted the condition 'schizo affective disorder' as well as allergic rhinitis. The delegate also determined that the applicant's retirement condition, namely her OCD, was caused or substantially contributed to by the schizo affective disorder specified on the substitute BCC. Pursuant to s 16(11)(d)(ii) the substitute BCC was deemed to have been in force on 4 January 1984, the date of her retirement. In these circumstances s 66(2)(e) of the Superannuation Act provides that for more limited retirement benefits than would otherwise be the case. Relevantly s 66(2) provides: 'Subject to subsections (3), (3A) and (4) of this section and section 79, where: (a) a person ceases to be an eligible employee by reason of retirement on the ground of invalidity before attaining his or her maximum retiring age; (b) there was in force in respect of the person, immediately before the person's retirement, a benefit classification certificate; and (c) the Board is of the opinion that the incapacity which was the ground for his or her retirement was caused, or was substantially contributed to, by a physical or mental condition or conditions specified in the certificate or by a physical or mental condition or conditions connected with such a condition or such conditions; the person is entitled: (d) … (e) where the period of contributory service of the person is less than 8 years - to a lump sum benefit in accordance with section 73. 6 This decision was reviewed by another delegate of the Commissioner and was confirmed on 29 March 2000. No explanation was given for the time gap of over ten years between the decisions of the two delegates and neither party made any submissions in respect of it. 7 The Superannuation Legislation Amendment Act 1990 (Cth) ('Amending Act'), which commenced on 7 June 1990, repealed s 16(11) of the Superannuation Act and replaced it by s 16AC which provides for the issue of a substitute BCC where a 'relevant person' breaches the duty of disclosure. Section 21(3) of the Amending Act provides that s 16AC applies in relation to a question asked of a person or information given before or after the commencement of the section on 1 July 1990. It was therefore not in contention that s 16AC applied to the applicant's situation and that she was a relevant person for the purposes of s 16AC which provides as follows: 16AC Issue of benefit classification certificate where duty of disclosure breached

[8]

(1) … (2) Subsections (4) to (8), inclusive, apply where the Board is satisfied, in respect of a person who is a relevant person: (a) that: (i) at or in connection with a medical examination that the person was required under subsection 16(2) or (6) or 16AB(3) to undergo; or (ii) in connection with a request under subsection 16(6) by the person; the person failed to answer properly a question asked of him or her or gave false or misleading information; and (b) that, if the person had answered the question properly or had not given that false or misleading information: (i) where there is in force, or there was in force immediately before the person's retirement or death, a benefit classification certificate in respect of the person - a condition or conditions of the person not specified in the certificate would be or would have been so specified; or (ii) where subparagraph (i) does not apply - there would be in force, or there would have been in force immediately before the person's retirement or death, a benefit classification certificate in respect of the person specifying a condition or conditions of the person. (3) … (4) If subparagraph (2)(b)(i) … applies, the Board shall revoke the certificate and issue in substitution for it a new benefit classification certificate in which the condition or conditions referred to in that subparagraph is or are specified either in addition to, or instead of, the condition, or some or all of the conditions, specified in the revoked certificate. (5) If subparagraph (2)(b)(ii) or (3)(b)(ii) applies, the Board shall issue in respect of the relevant person a benefit classification certificate specifying the condition or conditions referred to in that subparagraph. (6) Except for the purposes of this section, a certificate revoked under subsection (4) is taken never to have been issued. (7) A certificate issued under subsection (4) in substitution for a revoked certificate is taken to have been issued on the day on which, and under the provision under which, the revoked certificate was issued. (8) A certificate issued under subsection (5) shall be taken to have been issued on the day, and under the provision, that the Board determines to be the day on which, and the provision under which, a benefit classification certificate would have been issued, or would have been taken to have been issued, as the case requires, in respect of the relevant person if the relevant person, or the non‑discloser, as the case may be, had answered the question properly, or had not given the false or misleading information, as the case may be. (9) For the purposes of this section, a person answers a question properly if, and only if, he or she gives in answer to the question all the information that he or she could reasonably be expected to give, on the basis of: (a) his or her knowledge about the relevant matters; and (b) the knowledge that, having regard to his or her knowledge about the relevant matters, he or she could reasonably be expected to have about those matters; if he or she answered the question fully and truthfully on the basis of the knowledge referred to in paragraphs (a) and (b). (10) In subsection (9): relevant matters, in relation to a question asked of a person, means: (a) in any case - the matters that the person could reasonably be expected to regard as relevant to answering the question; and (b) if the question is asked of the person: (i) at or in connection with a medical examination that the person was required under subsection 16(2) or (6) or 16AB(3) to undergo; or (ii) in connection with a request by the person under subsection 16(6); or (iii) in connection with an application under subsection 16AB(2) for the revocation of a certificate issued in respect of the person; the person's medical history and past and present state of physical and mental health.' 8 When first introduced s 16AC referred to the 'Commissioner' rather than the Board. This was amended in by the Superannuation Legislation Amendment Act 1994 (Cth). For present purposes this amendment has no significance.

[34]

This Appeal 26 The applicant appeared without representation in this appeal. In her notice of appeal she listed three 'points of law' which can be summarised as follows: (a) whether 'comsuper (sic) changed the retirement condition without justification, from OCD to OCPD' at the time of the applicant's retirement in 1988; (b) whether 'the correct retirement condition being adhered to in the primary decision of 13/3/90 would have resulted in a different outcome' for the applicant; (c) whether there has been a failure to address defects in the process of the applicant's retirement on invalidity grounds such that she has been denied the right to 'complete the S21R form of election' and choose the date of her retirement. 27 The applicant provided lengthy handwritten submissions that discussed in meticulous detail some of her complaints about the Tribunal's decision and the decisions of both delegates of the respondent. Undoubtedly her ability to argue the appeal was affected by her lack of legal training and, presumably, by her OCD. For that reason I gave her considerable latitude at the hearing in an attempt to discern any grounds for appeal. Early in the hearing I explained in some detail the limited nature of the Court's jurisdiction in reviewing decisions of the Tribunal under s 44(1) of the AAT Act. Not surprisingly however, the applicant appeared unable to grasp the distinction between issues of fact and issues of law or to confine her submissions to defects in the Tribunal's decision or to matters that were before the Tribunal. Rather, she took issue with decisions made at each step in the process of reviewing her superannuation entitlement and with the opinions expressed by medical experts. Unfortunately, her oral submissions displayed the same concentration on factual issues as her written submissions. 28 The questions raised in the notice of appeal can be dealt with briefly. In relation to the first question, the applicant dwelt at length on the difference between OCD and obsessive compulsive personality disorder ('OCPD'). She alleged that the former was her retirement condition not the latter. It is sufficient to note here that there was no dispute between the parties on this issue either in this Court or before the Tribunal. It was accepted by the Tribunal that OCD is the correct retirement condition. 29 The second question in the notice of appeal relates to the initial decision by a delegate of the Commissioner. It is not subject to challenge in this Court. The subject of this appeal is the decision of the Tribunal which replaces the decisions that preceded it. As stated above, there was no dispute before the Tribunal as to the correct retirement condition. 30 The third question in the notice of appeal raises an issue that was not before the Tribunal. It did not form part of the reviewable decision that gave the Tribunal its jurisdiction and was not raised by the applicant before the Tribunal. It is not a matter that this Court has jurisdiction to consider. 31 Irrespective of the questions raised in the notice of appeal, the applicant, in her written and oral submissions can be seen to have challenged the Tribunal's conclusions on each of the three issues that the Tribunal had identified (see [8] above). I propose to deal with each of these issues. 32 In relation to the first issue, namely whether she failed to answer the questionnaire properly, the applicant's complaint amounted to an assertion that the Tribunal reached the wrong conclusion. The detail of her submissions was directed to how the Tribunal had erred in assessing the evidence. In part her complaint was that the Tribunal should have accepted that she had answered the questionnaire properly because she genuinely believed her answers to be correct. The difficulty for the applicant is that the Tribunal's findings of fact are against her. The Tribunal did not accept that she had that a genuine belief in the accuracy of her answers. The Tribunal supported its conclusion with reference to the evidence before it and its evaluation of that evidence. That finding was open to the Tribunal and this Court does not have jurisdiction to review this finding. In the circumstances, submissions about whether a genuine belief is sufficient to satisfy the statutory requirement are irrelevant. This situation is clearly distinguishable from that in Fry v Commissioner for Superannuation (1984) 2 FCR 472, where the facts as found by the Tribunal included a determination that the applicant had honestly answered the questions at his medical examination and in the medical questionnaire. 33 The applicant's notice of appeal states that a ground for her appeal before this Court is that 'there is no connection between "schizo-affective disorder" … and the independent and primary condition of OCD.' This claim is puzzling given that this was the one point on which the applicant was successful before the Tribunal. The Tribunal did not draw any connection between OCD and schizo-affective disorder. Rather, on this point, the Tribunal accepted the evidence of Dr Varghese and Dr O'Brien and rejected that diagnosis which had been made in Dr Weekes' final report. Ultimately the Tribunal set aside the delegate's decision to issue a BCC referring to schizo affective disorder and ordered that a substitute BCC specifying personality disorder and major depressive disorder be issued effective from 4 January 1984. It was clearly within its powers under the AAT Act s 25(1) and (4) and the Superannuation Act s 154(4) to do so. 34 The applicant also challenges the Tribunal's determination that there was a link between the condition that caused her incapacity and subsequent retirement and the conditions listed on the BCC, sufficient to satisfy s 66(2). The applicant contends that OCD (the cause of her incapacity) and personality disorder (a condition listed on the applicant's BCC) 'are separate and different medical conditions' and that 'the incapacity from OCPD would be very different from that resulting from OCD.' While on the face of the matter the applicant's contention is one challenging the factual finding of the Tribunal, and hence outside the jurisdiction of this Court, the point does raise the important question of the legal standard to be applied under s 66(2). To restate, the s 66(2)(c) requires that: '… the Board is of the opinion that the incapacity which was the ground for his or her retirement was caused, or was substantially contributed to, by a physical or mental condition or conditions specified in the certificate or by a physical or mental condition or conditions connected with such a condition or such conditions;' 35 It can be seen that s 66(2)(c) raises two distinct and alternate questions. In this context the first question is, 'Was the applicant's incapacity caused or substantially contributed to by a condition or conditions specified in the BCC?' The question must be answered in the negative. It was accepted on both sides that the incapacity was caused by OCD and, pursuant to the orders made by the Tribunal, the substitute BCC specified 'personality disorder and major depressive disorder' not OCD.

[37]

The Court expressly rejected any necessity for a causal relationship between the two conditions. This approach was affirmed in Perrett v Commissioner for Superannuation (1991) 29 FCR 581 ('Perrett'), at 592. 40 Although I am satisfied that the Tribunal, in the paragraph quoted in [38] above, expressed the test incorrectly, I am satisfied, on the whole, that the Tribunal applied the correct test. Not only did the Tribunal twice formulate the test correctly but it also referred to both Benham and Perrett as authorities for the proposition that it was not necessary to find a causal relationship. It would make no sense to cite these authorities if the Tribunal was under the impression that a causal relationship (or at least substantial contribution) was necessary to meet the requirements of s 66(2)(c). 41 In addressing this issue the Tribunal considered the evidence of Dr Varghese and Dr O'Brien and concluded, in a passage quoted at [25] above, that the applicant's OCD was substantially contributed to by her personality disorder and depressive disorder. 42 The Tribunal's conclusion is one of fact and was open to it on the evidence. The Court has no jurisdiction to interfere with this conclusion unless it is affected by error of law. If the Tribunal applied the wrong test then there would be an error of law. While the Tribunal, in expressing its conclusion, has used the language of 'substantial contribution' I do not conclude from that language that the Tribunal was applying the wrong test. More likely it is a slip of language which must be viewed in the light of the High Court's comments in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. In any event, a decision that the applicant's incapacity from OCD was substantially contributed to by personality disorder and/or major depressive disorder necessarily involves a decision that the conditions are connected. As already indicated I am far from convinced that the Tribunal applied the wrong test. Even if I were to be convinced I would not be prepared to remit the matter to the Tribunal as to do so would be manifestly futile. The error, if error there was, has no practical significance; Harris v Repatriation Commission (2002) 62 ALD 174.