Sharp v Maritime Super Pty Ltd

Claim for interest/equitable compensation 15In Mr Sharp's Statement of Claim, various allegations of breach of trust were made:

• at [14], that the trustee was in breach of trust in refusing to accept that Mr Sharp "was TPD [totally and permanently disabled] in the circumstances";
• at [16], that the trustee was in breach of a duty by virtue of the operation of s 14 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) to form a fair and reasonable opinion on his entitlement to the benefit;
• at [17], that the trustee was in breach of the said duty [presumably, that pleaded in [16]] in declining Mr Sharp's claim;
• at [20], that in refusing to accept that the plaintiff "was TPD in the circumstances" the trustee was in breach of the statutory duties and covenants implied by operation of s 52 of the Superannuation Industry (Supervision) Act 1993 to exercise, in relation to all matters affecting the Fund, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide
• (s 52(2)(b)); and to ensure that the trustee's duties and powers are performed and exercised in the best interests of the beneficiaries
• (s 52(2)(c));
• at [22], that by failing to determine the application for "TPD" benefits favourably and expeditiously the trustee failed to ensure that it exercised, in relation to all matters affecting the Fund, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide; and
• at [23], that by failing to determine the application for "TPD" benefits favourably and expeditiously the trustee also failed to ensure that it had exercised its duties and powers in the best interests of the beneficiaries including the plaintiff. 16Particulars of the respective breaches in some instances overlapped (such as the particulars to [22] and [23] above, in which reference is made to failure of the trustee to accept that the expert and lay evidence confirmed that Mr Sharp met the requirements of Rule 23(b) and failure to recognise that the trustee had thereby failed to comply with Rule 23(c)). 17The breach of trust alleged at [14] was particularised at [15] by reference to a series of alleged failures (at (a)-(f)): failure to act with utmost good faith; failure to form an opinion based on a real and genuine consideration of the evidence; failure to consider the correct question (namely, whether the plaintiff prior to termination was incapable of fully performing his duties or a danger to others because of his mental condition); failure to give any or any reasonable consideration to the expert evidence confirming the plaintiff's incapacity/danger to others because of his mental condition prior to termination; failure to give any or reasonable consideration to the evidence of Mr Sharp's father and former work colleagues as to the said incapacity/danger to others because of his mental condition prior to termination; and failure to follow Rule 23(c) when the trustee knew that Mr Sharp had provided expert and lay evidence confirming the satisfaction of Rule 23(b). 18The breach of trust alleged at [17] was particularised at [18] by reference to another series of failures (at (a)-(e)), namely: failure to form an independent opinion at all; failure to form its opinion fairly and reasonably; failure to form the correct opinion on whether the plaintiff satisfied the definition of total and permanent disablement; failure fully to investigate and take into account information, evidence and advice that the trustee may or should have considered relevant; and failure to seek relevant information or resolve conflicting bodies of material. 19The principal claim for interest (in the pleading) was a claim for interest under s 100 of the Civil Procedure Act 2005 (NSW) (the claim for equitable interest being pleaded in the alternative). Section 100(1) of that Act provides that, in proceedings for the recovery of money (including any debt or damages or the value of any goods), the Court may include interest in the amount for which judgment is given, such interest to be calculated at such rate as the Court thinks fit on the whole or any part of the money and for the whole or any part of the period from the time the cause of action arose until the time the judgment takes effect. 20While the proceedings brought by Mr Sharp included a claim for the payment of the monetary benefit (the entitlement to which was disputed by the trustee) and hence fell within s 100 as being proceedings for the recovery of money, the position adopted by the trustee to the claim based for interest under s 100 was, as I understand it, that there was no amount for which judgment was given (the damages claim not having been pressed) and hence an order for interest under s 100 would not lie. 21In relation to the claim for payment of the benefit, I accept that there would be a question as to when the cause of action for recovery of that money arose, insofar as the entitlement to a payment under the Rules was dependent on the making of a determination by the trustee that had not been made as at the time of the judgment (in the same way that the cause of action for recovery of moneys in Lahoud v Lahoud [2011] NSWCA 405 did not accrue until the audit was complete). However, as ultimately pressed, the claim for interest was for interest to be awarded on equitable principles (as explained in Tuftevski v Total Risks Management Pty Ltd [2009] NSWSC 1021 per Smart AJ). Therefore, it is not necessary to consider the objections raised by the trustee to an order for interest under s 100. 22Mr Sharp's claim for equitable interest (in effect being a claim by way of equitable compensation for the alleged breach or breaches of duty) was one that, in oral submissions by Mr Rayment, focussed on two alleged breaches by the trustee of its duties: first, the failure to investigate the claim by Mr Sharp until the trustee obtained its own medical reports in 2011; and, second, the failure correctly to understand the trust instrument (by taking as dispositive of the plaintiff's claim the subjective reasons of the employer for his dismissal). (As to the second, there is no doubt that the trustee acted on the basis of an incorrect understanding of the operation of Rule 23, having regard to the manner in which I ultimately found it should be construed.) 23It is submitted that the trustee's failure to investigate (and the continued assertion of an incorrect basis for rejection of) Mr Sharp's claim supports an order for interest at the Court interest rates (by reference to what was said in Morgan Equipment Co v Rodgers (1993) 32 NSWLR 467 and Tuftevski). Calculated on that basis, the claim for interest (from 22 August 2007) is in the sum of $247,555.17. 24The trustee contends that no such order is warranted. It contends that there was no breach of trust but that, if there was, it should be excused for any breach of trust that is found to have been committed (though no defence based on s 85 of the Trustee Act 1925 (NSW) was pleaded). In that regard, Mr Cavanagh SC notes that at [198] of my principal reasons I expressed the following views: I consider that the matter should be remitted to the trustee for consideration of the claim based on the finding I have made as to the sole ground for termination of the employment and the medical evidence that such a ground (the danger to safety posed by the 6 June 2006 incident) was caused by a mental condition falling within Rule 23(a). The trustee, at least from 2008, has acted with the benefit of legal advice. It has acted on a construction of the Rule that, on balance, I consider to be wrong but in circumstances where the Rule is by no means felicitously expressed. Had the issue arisen as to whether the trustee should be excused for breach of trust, then s 85 of the Trustee Act 1925 (NSW) would in my view be likely to have applied. As it is, it is not necessary to make any findings as to breach of duty. 25In that regard, I appear there to have raised somewhat of a red herring since no claim against the trustee in its personal capacity was raised and no issue as to the application of s 85 arose. My comment at [198] should be seen as surplusage. It was not intended to suggest that there had been no breach of duty by reason of a failure to investigate matters of which the trustee was on notice by reference to the medical reports served in May 2007 in support of the application by Mr Sharp for a total and permanent disablement benefit. 26The focus at the principal hearing was largely on the construction of Rule 23 and the factual material put forward by the plaintiff to establish that his claim satisfied the requirements of Rule 23. The plaintiff's principal position was that the Court should substitute its own decision (or discretion) for that of the trustee. For the reasons set out in my principal judgment I declined to do so and remitted the matter to the trustee. As no claim for damages was pressed, and I then saw no utility in so doing, I made no declarations as to any breach of trust. 27Turning now to the question whether and when there was any breach of trust in the present case, I note that the duty of a trustee of a superannuation fund when considering an application of the kind made by Mr Sharp was considered in Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254 and Alcoa of Australia Retirement Plan Pty Ltd v Frost [2012] VSCA 238, to which decisions I referred in my principal reasons. Relevantly, in Finch, the High Court noted that "[t]he duty of trustees properly to inform themselves is more intense in superannuation trusts in the form of the Deed than in trusts of the Karger v Paul type. It is extremely important to the beneficiaries of superannuation trusts that where they are entitled to benefits, those benefits be paid". 28In Finch, the High Court noted that the power of the trustee in that case to take into account "information, evidence and advice the trustee may consider relevant" was coupled with a duty to do so and, hence, considered that the trustee's failure to seek relevant information in order to resolve conflicting bodies of material was a breach of duty. There, the superannuation scheme (as is the case here) was said to be a strict trust, the beneficiary being entitled as of right to a benefit provided the beneficiary satisfied any necessary condition of the benefit. 29In Alcoa, Nettle JA considered the import of the decision in Finch and said at [57] that where a member of a superannuation trust fund claims to be entitled to a total and permanent disability benefit, and the claim depends on the formation by the trustee of an opinion by the trustee as to the likelihood of the member ever again engaging in work for which he is reasonably suited by education, training or experience, the formation of the opinion is not a "mere discretionary decision" and: ... The trustee is under a duty to give "properly informed consideration" to the application and, because "it is extremely important to the beneficiaries of superannuation trusts that where they are entitled to benefits, those benefits be paid", there is a "high duty" on trustees to make such inquiries as they may reasonably consider relevant in order properly to determine the application. 30Earlier, at [40], his Honour had referred to the importance of the trustee's opinion and its place in the scheme of the Fund and had noted that the trustee had a duty exercise its powers "to the extent reasonably considered necessary or expedient in order to reach a properly informed decision". 31His Honour considered, at [47]-[48], that the trustee might have a duty to make inquiries even in the absence of conflicting opinions and went on to raise (but not decide) the question whether it was incumbent on the claimant to put forward "some material" in support of the claim. Relevantly, for present purposes, his Honour considered that, where the material provided to the trustee in support of the claimant's application was capable of yielding an inference that the claimant was totally and permanently disabled at the time of termination, [t]hereupon at least, if not before, the trustee came under a duty to give properly informed consideration to the application. Assuming, as the trustee says, it reached the view that Mr Frost's material was insufficient to found a properly informed decision (whether because of competing bodies of material or simply because of a dearth of material), the trustee was thereupon bound to make further inquiries. (my emphasis) 32At [58], Nettle JA rejected the contention by the trustee in that case that, if there were a duty to make further inquiries, the trustee had discharged the duty by inviting the claimant to submit further material. His Honour quoted Young J (as his Honour then was) in Maciejewski v Telstra Super Pty Ltd [1999] NSWSC 341: Very often if a trustee and its officers have acted fairly and conscientiously they will have ensured that sufficient material is before them, so that they can make a decision. However, it is just a complete "cop out" to act on material which ... is inadequate, and then say that the plaintiff has not supplied sufficient material. If the plaintiff has not supplied sufficient material then, if that is necessary to make a proper decision, it has to be obtained somehow or other. One cannot merely dismiss the plaintiff's claim out of hand. 33Nettle JA, emphasising at [59] the duty of trustees of superannuation funds to give properly informed consideration to applications for entitlements "and, if that necessitates further inquiries, [to] make them", said at [60]: So to say does not mean that a trustee is required to do the impossible. Nor is it to suggest that a trustee is expected to go on endlessly in pursuit of perfect information in order to make a perfect decision. The reality of finite resources and the trustee's responsibility to preserve the fund for the benefit of all beneficiaries according to the terms of the deed means that there must be a limit. Like the judge below, I accept that a trustee is not under an obligation to go on endlessly seeking more and more information. It may also be that a trustee is not required to undertake any inquiries until and unless a claimant puts forward sufficient material to show that there is a case to be investigated. But, in this case, the trustee's failure in neglecting to make further inquiries is palpable. As I have said, the material which Mr Frost put forward in support of his claim went at least as far as establishing that he had a strong prima facie case of entitlement. If the trustee regarded that as insufficient, it was bound to make further inquiries sufficient to confirm or allay its concerns. (my emphasis) 34The relevant chronology of events in the present case is set out in my earlier reasons but it is necessary briefly to revisit this. In summary (and interposing the dates of relevant meetings of the trustee's Benefit Sub-Committee):
• Mr Sharp's employment was terminated on 23 June 2006;
• in May 2007, a claim was made by Mr Sharp for a total and permanent disablement benefit (within the two year period specified in the Rules); [Although a copy of the application was not in evidence, there were copies of two medical reports (one from a consultant psychiatrist (Dr Benjamin) dated 12 April 2007 and one from Mr Sharp's general practitioner (Dr Samaraweera) dated 25 April 2007, both of which were addressed to the trustee and expressly related to the claim for total and permanent disablement benefit. There is no suggestion that the trustee did not have that material by some time in May 2007.]
• on 7 May 2007, the trustee received a copy of the employer's standard form Advice of Termination of Employment, identifying the basis of his termination (by the ticking of a box) as "Resignation (Standard) includes Dismissal";
• on 22 May 2007, the trustee responded to the claim, referring to the employer's termination advice and suggesting that Mr Sharp contact his employer to discuss the reason for his termination; [While not a rejection as such, it was not suggestive of an acceptance of the claim and it might be read as having placed (or sought to place) responsibility on Mr Sharp to make enquiries of his employer as to the ground of termination.]
• on 31 May 2007, the trustee responded to a request for withdrawal of accumulated benefits in terms that made clear that the report from Dr Benjamin was in the trustee's possession and that the trustee was not then satisfied that there was total and permanent disablement;
• on 25 June 2007, the trustee's Benefit Sub-Committee considered the request to access superannuation benefits on the grounds of permanent incapacity; the minutes of that meeting record that the directors noted Mr Sharp had previously made a claim for total and permanent disablement benefit under the rules. While not recording a decision on that claim the minutes suggest that the employer's termination advice was regarded as inconsistent with that claim; [This is said by Mr Rayment to involve two errors by the trustee: reliance on the termination advice as relevant evidence and the taking of the employer's reasons as definitive.]
• a response was sent to Mr Sharp on 3 July 2007 in relation to the claim for access to superannuation benefits and it was noted that the committee was unable to determine that he was permanently incapacitated and would require examination by two trustee appointed directors;
• Mr Sharp's claim to access accumulated benefits was considered again by the Committee on 31 July 2007 and on 19 September 2007; on the latter occasion the Committee determined that Mr Sharp should be considered permanently incapacitated and granted access to his preserved benefits; it further resolved that "based on the information provided to date" Mr Sharp did not qualify for a total and permanent disablement benefit "because, according to the advice the Trustee had received from Mr Sharp's employer his employment was not terminated solely on the grounds [set out in rule 23(a)]"; the minutes also recorded that the Committee would not assess whether the other pre-conditions to a benefit under Rule 23 were met on the basis that Mr Sharp did not meet the first pre-condition set out in the Rule. [Mr Rayment points to the reference to the decision being based on "information provided to date" as highlighting the failure of the trustee to investigate.]
• on 3 October 2007, the trustee confirmed to Mr Sharp's father (who had become involved in pressing his son's claim) that Mr Sharp was not entitled to a total and permanent disablement benefit "because in the first instance, he does not satisfy the criteria in Rule 23(a)" (making it clear that reliance was being placed on the termination advice received from the employer as to the ground of termination), and stating that "[t]he Trustee has not assessed whether your son meets any of the other pre-conditions for a Total and Permanent Disablement Benefit under Rule 23, on the basis that he does not meet the first pre-condition set out in Rule 23(a)" (my emphasis). (The letter noted that even if the employer were to advise an alteration to the reason for termination of employment, Rule 23 would require the Trustee to obtain other evidence and consider additional factors);
• on 28 November 2007, the Committee noted the determinations made on 19 September 2007 and that Mr Sharp had referred the matter to his lawyers;
• on 5 February 2008, the lawyers then acting for Mr Sharp, formally requested a reconsideration by the trustee of the decision to decline the application for a total and permanent disablement benefit (referring, as to the reason for termination, to the employer's termination letter of 23 June 2006 and a file note of the meeting on that date at which Mr Sharp's employment was terminated, both of which made reference to Mr Sharp's conduct posing a danger to others); [By 5 February 2008, therefore, the trustee had before it documents indicating that the employer's reasons for termination related to a matter or matters that might fall within Rule 23(a) if they were caused by a relevant mental condition at the time.]
• on 10 March 2008, the Committee met and noted that the previous consideration of Mr Sharp's dismissal and the determination that his claim could not proceed "as he was not terminated on medical grounds";
• on 4 April 2008, having resolved so to proceed at a committee meeting on 2 April 2008, the trustee wrote to the employer enclosing the three items of written information it said it had from the employer relating to the termination of his employment (namely, the termination advice, the 23 June 2006 termination letter and the file note), requesting the employer to review its records, consult with relevant personnel and answer questions as to whether Mr Sharp's employment "was, or was not, terminated due wholly or partially" to Mr Sharp being permanently incapable of performing his duties satisfactorily or a danger to others or both; and, if so, whether that was in turn due to his physical or mental condition at the time or something else; [This, I interpose to note, seems to be the high point of the trustee's investigations as to the basis of termination (and proceeds on an assumption that the employer's subjective grounds are relevant, if not determinative, of that issue).]
• on 1 May 2008, the employer responded to the trustee confirming that it was not aware of any mental condition impacting on Mr Sharp or other grounds for his termination (and confirming that incapacity/danger to others were not factors in the termination decision - a statement inconsistent with both the employer's termination letter and what was recorded in the file note of the meeting at which Mr Sharp was dismissed);
• on 8 May 2008, the trustee's solicitors advised as to the trustee's re-consideration of the decision in relation to Mr Sharp's application, enclosing a copy of the correspondence with the employer and confirming that the trustee 'remained' unsatisfied that Mr Sharp's employment was terminated solely on the grounds that his physical or mental condition at the time was such that he was permanently incapable of performing his duties satisfactorily or was a danger to others;
• on 8 December 2009, the trustee's solicitors responded to a letter of 1 October 2009 from new lawyers now acting for Mr Sharp, advising that the trustee had determined that Mr Sharp had not satisfied the condition in Rule 23(a) and was not entitled to the claimed benefit;
• by letter dated 6 December 2010, Mr Sharp's lawyers requested that there be a re-consideration of the claim, and enclosing copies of various statements (signed by Mr Sharp and other Toll employees) and medical reports of Dr Samaraweera (dated 31 October 2010) and Dr Benjamin (dated 30 July 2010), those medical reports largely updating the earlier medical opinions;
• by letter dated 22 December 2010, the trustee's lawyers wrote, confirming that the trustee would reconsider Mr Sharp's claim in light of the further information and materials provided (and foreshadowed the making of further requests of the employer, though it is not clear what if anything transpired in that regard);
• there being no determination by the trustee by then, these proceedings were commenced in May 2011;
• the trustee obtained its own medical reports in October/November 2011, which concluded (as Mr Sharp's medical reports had done) in terms that satisfied the requirement in Rule 23(b) (though qualified to the extent that this was based on Mr Sharp's history of events). 35Mr Cavanagh confirmed at the principal hearing (as is evident from the trustee's own documents - such as the minutes of 19 September 2007 and the trustee's response to Mr Sharp's father in October 2007) that the trustee had approached the matter on the basis that, unless and until Rule 23(a) was satisfied, it was not necessary for it to deal with the other conditions in Rule 23 (an approach to which I have previously referred as the 'gateway' construction of Rule 23). Mr Rayment submitted (and I agree) that what this approach failed to deal with was the question whether the cause of the termination of Mr Sharp's employment was a medical condition that caused him to be permanently incapable of performing his duties satisfactorily or a danger to others. 36It is submitted by Mr Rayment that the reliance on the subjective reasons of the employer involved a departure from what was required under the terms of the trust deed. I agree. 37The complaint by Mr Sharp is that the trustee failed, in 2007, to ascertain from the employer the stated reasons for dismissal (relying at that stage simply on the employer's notice of termination as conclusive that Mr Sharp was not terminated on medical grounds) and also failed at that time to make enquiries from the employer or any other source for the purposes of confirming whether (as suggested in the medical reports furnished by the plaintiff) his (by then) diagnosed mental condition was in existence at the time of dismissal (and was objectively the sole ground that Mr Sharp's employment had come to an end). 38It was submitted by Mr Cavanagh at the hearing that the trustee was not required to 'second guess' the employer or to become embroiled in a dispute as to the basis of dismissal as between the employer and the employee. On the present application, the rhetorical question was posed as to what the trustee's duty to investigate would comprise in that regard. Mr Cavanagh contended that the trustee's duty would not have extended, for example, to the appointment by the trustee of a private investigator to interview people as to the circumstances of the dismissal nor would the trustee have been obliged to write again to the employer (after receiving its response to the April 2008 correspondence). It is also submitted that there is no reason to expect that any different information would have been provided by the employer had there been further enquiries made at the time. 39In Tuftevski at [16], a similar question arose as to what was required by way of enquiry on the part of a trustee in the context where the trustee had received material adverse to the employee's claim. There, Smart AJ said: ...In my opinion bona fide enquiry and genuine decision making where these are required constitute an integral part of performing a fiduciary obligation. The obligation is to determine, in the exercise of its discretion, whether the applicant for a Disablement benefit meets the definition of Disablement. There is a further obligation to pay a Disablement benefit where the Fund Rules so provide. The process followed by the Trustee... must involve deciding a question of fact in good faith and giving it real and genuine consideration. This often cannot be done without conducting some investigation and making relevant inquiries... 40His Honour considered that the trustee's duty might in those circumstances involve giving the applicant the opportunity to provide explanatory material. Further insight as to what the trustee might have been expected to do in the present case is gleaned by reference to the other authorities referred to above. 41The question as to what the trustee would have been expected to do in compliance with a duty to investigate may most conveniently be addressed together with the question as to when any duty to investigate arose. Mr Rayment submits that this was as at May 2007 or at the latest February 2008; the trustee submits that if there was (and it did not accept there should be) a duty to investigate, it did not arise until 2010 at the earliest, when the updated medical reports were provided from the plaintiff's doctors that made clear the pre-existing nature of the medical condition. 42As at May 2007, what the trustee had was the claim from Mr Sharp, the two medical reports and the employer's termination advice. As at February 2008 the trustee also had the two contemporaneous documents relating to the dismissal (being the letter of termination and the file note that made reference to Mr Sharp's conduct being a danger to himself and to others), both of which linked the termination to the incident in June 2006 (though also referring to previous unsatisfactory performance by Mr Sharp). 43The employer's termination report, relevantly, indicated no more than that the employment had not been terminated on "medical grounds". The medical reports, however, made a clear diagnosis of a mental condition (albeit that there was not a clear statement in those reports as to when that mental condition had arisen) and, in Dr Samaraweera's case at least, linked the termination to issues that might well have been referable to such a condition (poor concentration and interpersonal difficulties). Dr Benjamin referred to loss of employment because of inability to perform work duties. 44In his report of 25 April 2007, Dr Samaraweera, made reference to a referral to a consultant psychiatrist on 17 July 2006 (a date that subsequently appeared to be wrong insofar as there was an earlier referral in May that year); to a patient history including that his employment "was terminated in June 2006 due to poor concentration and interpersonal difficulties" and that "[s]ince then he has been depressed, anxious, paranoid...". The report nevertheless stated that "[a]t the time Ben ceased his employment he was suffering from poor concentration and interpersonal difficulties and chronic psychotic disorder which in my opinion is attributable to a great extent to Stimulant Substance Dependence" (my emphasis). Dr Samaraweera concluded (at 7(iii)) that: I am of the opinion that is that the member's employment as an Employee or a Permanent Employee was terminated solely on the grounds that the Member's physical or mental condition at that time is such that the Member is permanently incapable of performing the Member's duties satisfactorily or is a danger to others. 45Dr Benjamin's report of 12 April 2007 recounted that Mr Sharp had given him a two-year history (i.e. going back before his termination) of increasing psychotic symptoms (including paranoid and persecutory beliefs related to workmates and people in public places, bizarre delusions and feelings that people or vehicles were spying on him, and the hearing of voices). Dr Benjamin stated that Mr Sharp "eventually lost from [sic] his job because of his inability to perform his work duties". Dr Benjamin said that Mr Sharp exhibited formal thought disorder and had admitted to delusional thinking and auditory hallucinations. He diagnosed Mr Sharp on 2 August 2006 as suffering from Stimulant Substance Dependence and Acute Psychotic Disorder with a "differential diagnosis of Schizophrenia and Drug induced Psychosis". He concluded that: Because of the above psychiatric condition, Ben is incapable of ever performing his previous work duties or any other work duties which he is suitably qualified for, experienced in or trained to do. 46In my principal reasons I expressed the opinion that the trustee might have been able (pursuant to Rule 41) to rely on the employer termination advice as an employee separation certificate in the first instance but that this could not excuse the trustee from the duty to make further enquiries once it was on notice that the employer's certificate might be incomplete or incorrect or where there was a basis on which the rule might otherwise apply even if the ground of termination was as stated in the certificate. I remain of that view. 47Notwithstanding that the report from Dr Samaraweera (inconsistently with the note that was discovered in the course of the litigation) did not make reference to a referral to a consultant psychiatrist until after the termination of the employment, I consider that the medical reports served in May 2007 were sufficient to put the trustee on enquiry as to the existence of a potential medical condition at the time of Mr Sharp's dismissal that might have been causative (or a ground) of dismissal. Hence, the conclusion I expressed last year that, at least by the time that the 2007 medical reports were received, there was a duty on the part of the trustee to investigate the question as to whether there was an underlying medical condition that lay behind the cause(s) of the termination of Mr Sharp's employment. 48The trustee, however, seems to have made no enquiry as to whether the requirement in Rule 23(a) was satisfied after having received the medical reports in May 2007. It treated the employer's termination advice as dispositive and simply referred Mr Sharp back to the employer. At that point, had the trustee made more specific enquiries of the employer (or of Mr Sharp) (or even, through Mr Sharp, of the doctors), it seems likely that the trustee would have received (at the very least) the material provided in February 2008 in which there were references to an incident or incidents putting Mr Sharp or others in danger. 49As to the significance of the late discovery of the referral note, Mr Rayment submits that the first report of Dr Samaraweera was in existence in 2007 and that there is no reason that, had the trustee made further enquiries at that stage, such a note would not have been produced at an earlier time. It is submitted for Mr Sharp that the April 2007 reports from the doctors were ample reason for the trustee to make further enquiries of the employer and to engage its own medical practitioners because those doctors' reports asserted that the employment was terminated because of the underlying medical condition. While I think the trustee would not necessarily have had a duty, immediately on receipt of the April 2007 reports, to proceed to obtain its own medical opinions without further enquiry, the difficulty I have with the trustee's conduct is that it made no enquiries at that stage as to the factual circumstances leading to Mr Sharp's termination so as to enable it to form a fully informed view as to whether Rule 23(a) had been satisfied (in circumstances where on a fair reading of the medical reports it was certainly possible that this requirement would be shown to have been satisfied). 50As to whether any such enquiry would have provided a different response, Mr Rayment submits that there is no reason why the material provided in February 2008 (referring to Mr Sharp having "once again involved [himself] in an incident" involving danger to others because of the inappropriate operation of equipment") would not have been provided in 2007 had the relevant enquiries been made. 51By February 2008, the position was that the contemporaneous notes provided to the trustee raised a potential issue as to whether Mr Sharp's mental condition may have caused the incident leading to the dismissal. However, no more than a fairly formal enquiry was made of the employer in 2008, on receipt of the material in February 2008 that linked the dismissal to the incident raising safety concerns in June 2006. Although I accept that the trustee did engage in some enquiry at this stage (by raising the issue with the employer), I remain doubtful that the extent of that enquiry was consistent with the scope of the trustee's duty identified in Finch and Alcoa. 52The trustee seems to have taken a largely reactive role from the time of receipt of the claim at least up to April 2008 and in my view up until the commencement of the litigation (apparently operating on the understanding that the employer's termination advice was determinative of the issue to be satisfied under Rule 23(a) and therefore no further enquiry was necessary). 53Mr Cavanagh accepts that if the trustee had merely accepted what was said in the employer's termination advice then there would have been a failure to investigate but he submits that the trustee did investigate the position by writing to the employer on 4 April 2008 enquiring as to the position at that stage. However, I am not satisfied that what the trustee did at that stage was sufficient to discharge its duty. The trustee simply relied on the rather dismissive response from the employer (not surprisingly, perhaps, given the construction the trustee had given to Rule 23). Had the trustee not misunderstood Rule 23(a) as being the gateway to entitlement under the Rule, and dependent on the employer's subjective reasons for dismissal, it might be expected to have raised with Mr Sharp or his lawyers the need for the objective ground for termination to be a cause linked to Mr Sharp's mental condition (which might then have precipitated the provision of information of the kind that was ultimately forthcoming in the litigation and which established the basis of Mr Sharp's entitlement to the benefit). 54As recognised in Alcoa, the duty of the trustee is properly to consider a claim for the benefit provided under Rule 23. To the extent that this requires a determination to be made as to the objective grounds for termination of the member's employment, then the trustee must make proper enquiries to satisfy itself as to what those grounds were (and as to the causal link between those grounds and any relevant medical condition of which it is made aware). 55While emphasis was placed for the trustee on the fact that I had referred in my earlier reasons to a note of Dr Samaraweera of 17 July 2006 and Dr Samaraweera's referral of Mr Sharp to a specialist in May 2006 (that note not having been made available to the trustee at any time prior to the hearing of the matter), that does not change the fact that the materials available in May 2007 put the trustee on enquiry as to whether the mental condition was the cause of the incident leading to Mr Sharp's dismissal. (I note that I had referred to those matters in my previous reasons as material against which Mr Sharp's subjective history of events might be tested, not as something that absolved the trustee from the duty to make the relevant enquiries, once it was on notice of the potential link between an underlying medical condition and the termination or the incident on which the termination was based.) 56In my view, the observations in the authorities to which I have referred above indicate that, at the very least, more comprehensive enquiries should have been made of the employer in May 2007 to ascertain the ground(s) for dismissal. It can be assumed that this would have produced, at the least, a reference to the incident regarded by the employer as posing a danger to Mr Sharp and others (in the form of the material produced in February 2008). If the trustee then considered that the causal link between termination of his employment and his mental condition at the time was not established, Mr Sharp should have been alerted to this issue and given an opportunity, at that stage, to explain the position and/or to obtain evidence to support his position. Instead, as at May 2007 the trustee relied simply on the fact that the employer's termination advice did not state that termination was on medical grounds and adopted the position (which it maintained in the October 2007 correspondence) that it was not necessary for it to assess the balance of the matters in Rule 23 because Rule 23(a) had not been satisfied. 57Had the trustee made the proper enquiries, and obtained the relevant material, then on the operation of the Rule 23(a) as properly construed, I must assume that the trustee would have paid the benefit earlier since, once it had that material, the trustee quite properly did so. Therefore, I consider there was a breach of duty as at May 2007, for which equitable compensation should be awarded. (Were that conclusion to be wrong, I should note my view that at the latest such enquiries should have been made by February 2008.) By reference to the pleadings, the particular breach of duty that I so find is of the duty pleaded at [17] as particularised at [18(d) and (e)], although I consider that the conduct particularised in is also established and would also amount to a breach of the trustee's duty. While those breaches may themselves lead to a conclusion of breaches as alleged at [20], [22] and [23], those breaches would not lead to any different outcome in terms of compensation and it is not necessary to deal with them separately for that reason. 58I accept that interest at Court rates on the amount of the benefit is an appropriate measure of compensation (having regard to the authorities referred to earlier). As to the time period in respect of which compensation in the form of interest is sought, for Mr Sharp it is contended that a reasonable time for the trustee to have completed its investigations and deliberations had elapsed by 22 August 2007 (three months after the letter in effect rejecting his claim on 22 May 2007). Hence, the interest/equitable compensation claim is calculated from that date to the date of payment of the benefit on 18 December 2012. 59For the trustee, it was submitted that any interest component should take into account the delay on the part of Mr Sharp in commencing the proceedings. Mr Rayment submits in response, that Mr Sharp was entitled to an order to make good the loss suffered by him caused by the wrongful retention by the trustee of his benefit over many years and that delay is not relevant. 60In Tuftevski, a similar submission as to delay in prosecuting the claim was made and it was rejected by his Honour, who noted that much of the force of that complaint was lost as the Fund had retained the principal (and there the interest on investment of the fund was said to have equated to almost the same amount as interest at the trustee rate per annum). In Morgan, Giles J, as his Honour then was, noted that a court exercising equitable jurisdiction is concerned to ensure that there is proper compensation for a legal wrong (at p 487). 61I consider that no deduction should be made for any delay (such as it was) in prosecuting the claim. Spigelman CJ in O'Halloran v R T Thomas & Family Pty Ltd 45 NSWLR 262 said at 272 that: The object of equitable compensation is to restore persons who have suffered loss to the position in which they would have been if there had been no breach of the equitable obligation. 62At 273, his Honour adopted, as reflecting the law in Australia, the observations in Canson Enterprises Ltd v Boughton & Co (1991) 95 DLR (4th) 129 of McLachlan LJ (dissenting in the result) at 163E-G: In summary, compensation is an equitable monetary remedy which is available when the equitable remedies of restitution and account are not appropriate. By analogy with restitution, it attempts to restore the plaintiff what has been lost as a result of the breach, i.e. the Plaintiff's lost opportunity. The Plaintiff's actual loss as a consequence of the breach is to be assessed with the full benefit of hindsight. Foreseeability is not a concern in assessing compensation, but it is essential that the losses made good are only those which on a common sense view of causation were caused by the breach. (my emphasis) 63As to the fact that the trustee had relied (at least from 2008) on legal advice, Mr Rayment pointed to HIH Casualty & General Insurance v Insurance Australia (No 2) [2006] VSC 128 where Bongiorno J (at [8]) referred to and adopted the approach of Cole J in Bankstown Football Club Ltd v CIC Insurance Ltd ( unreported, 17 December 1993) that a reasonable period must be given to the insurer to investigate and determine its position but that if it adopts an incorrect position in relation to its obligation to pay under the policy, its bona fides as to that position are irrelevant. At [9], Bongiorno J said: ... Once the Court has rejected the insurer's defence to a policyholder's claim, that defence becomes irrelevant, as does the fact that the insurer had a bona fide belief in its efficacy. To hold otherwise would put a premium on erroneous advice. Taken to its logical extreme, an insurer which relied upon incorrect legal advice or an inadequate report of a loss adjuster to form a belief as to the possibility of its successfully defending a policyholder's claim would be advantaged by having obtained bad legal or loss adjusting advice. The successful policyholder would be correspondingly disadvantaged by the same irrelevant circumstances. 64Nevertheless, I am not persuaded that, had the trustee approached the matter on a proper construction of the Trust Deed and considered the May 2007 material with a view to what further enquiries should be made to determine Mr Sharp's entitlement, the benefit would have been received within three months. It seems to me that some time would have been taken in the making of those enquiries, obtaining information from the employer and seeking the trustee's own medical opinions (noting that the process by which the trustee reconsidered the claim after my earlier judgment itself took around 6 weeks). Therefore, I consider that a slightly longer period should be allowed for that process. In the absence of evidence as to the time within which such a claim would ordinarily be determined but having regard to the time involved in various of the steps that were taken in this matter, I consider that around six months would be a reasonable time to allow for the investigation and completion of the appropriate enquiries and determination of the claim. Therefore I propose to allow interest at Court rates, by way of equitable compensation for the trustee's breach of duty from 1 January 2008 to 18 December 2012.

Costs 65The only remaining question is as to costs. There is no dispute that Mr Sharp should have his costs of the proceedings on an ordinary basis. However, Mr Sharp seeks them from 2 August 2012 on an indemnity basis. 66Although not in evidence before me, the parties accepted that an offer of compromise had been served by Mr Sharp on 1 August 2012 in the amount of $520,000 excluding legal costs. There was no dispute that it had been served in accordance with the Rules and no issue was raised as to the validity of the offer. 67The amount of the plaintiff's benefit was in the order of $453,000. The interest claimed was $247,555.17 (though I note that the amount I propose to award by way of interest will be slightly less). Taken together, the amount received by way of benefit and interest will (even on the lesser interest award) be more than the amount of the offer of compromise. 68For the trustee, it is submitted that Mr Sharp is not entitled to costs on an indemnity basis since he has not obtained an order or judgment on the total and permanent disablement benefit claim (that having been paid in December 2012 not pursuant to any Court order). 69Rule 42.14 of the Uniform Civil Procedure Rules provides that where an offer of compromise under the rules is made by the plaintiff and not accepted by the defendant, and the plaintiff obtains "an order or judgment on the claim concerned no less favourable to the plaintiff than the terms of the offer", then (relevantly) unless the Court orders otherwise the plaintiff is entitled to indemnity costs from the day following the day on which the offer was made. 70The question here is not whether or not there was a valid offer of compromise; the question is whether the order or judgment in these proceedings is no less favourable to the plaintiff than the terms of the offer. 71The argument for the trustee is that since there has been no judgment on the claim for any monetary amount (as my earlier decision was to refer the question of determination of Mr Sharp's claim back to the trustee for consideration), any judgment for equitable compensation (which would be restricted to interest) would not exceed the amount of the offer of compromise. 72Mr Rayment invokes the public policy rationale for offers of compromise (as emphasised in cases such as Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344) in response to what he characterises as the technical approach urged by the trustee. It is submitted that, in the present circumstances, the practical effect of my judgment was that Mr Sharp received the benefit he had claimed and that in those circumstances the order was "no less favourable" than the terms of the offer. 73The rules do not preclude the making of offers of compromise in non-monetary claims. The relevant question is whether the judgment obtained is more or less favourable than the relevant offer. So, for example, in Clift v Timms (unreported Court of Appeal Supreme Court of Queensland), in defamation proceedings the Court of Appeal rejected a contention that the relevant rules in the District Court in Queensland in relation to offers of compromise did not apply because the offer in question included a requirement that an apology be published and that this was not quantifiable in monetary terms. The Court of Appeal noted that the relevant question (where an offer to settle had been made on terms including an apology) was whether the effect of the judgment overall was "no less favourable" to the plaintiff than the offer. The Court of Appeal considered that there had been no chance of an apology but that in any event noted that an apology was not obtained under the judgment. However, in circumstances where the award of damages was much higher than the sums sought in the offers to settle, it considered that the result of the judgment "include[d] ample vindication of the respondent's position" was more favourable to the respondent than the relevant offers. 74Here, the relevant judgment for the purposes of the special costs rules applicable to offers of compromise is not simply the order to be made for equitable interest. It must in my view encompass the order made remitting to the trustee for consideration the plaintiff's total and permanent disablement benefit claim. As a result of that remittal the plaintiff has obtained what the plaintiff had sought in the proceedings, namely, the favourable determination of his claim. Had the proceedings not been commenced and that order not been made, there is nothing to suggest that the trustee would have re-considered the plaintiff's claim. The value of the order remitting the matter to the trustee, therefore, can be measured by the ultimate payment by the trustee of the disablement benefit (albeit that the payment of that benefit was not pursuant to an order from the Court). 75Therefore, I consider that the value of the judgment obtained was more favourable to Mr Sharp than the offer and that indemnity costs should be awarded for the period from the making of the offer until payment of the disputed benefit. It is not necessary to resort to the public policy rationale for the offer of compromise rules in order to reach that conclusion (though the outcome is consistent with that rationale). I do not, however, consider that indemnity costs should be awarded in respect of the costs incurred in relation to the disposition of the proceedings after payment of the benefit. (While not agreeing with that approach, I understood Mr Rayment to accept that there might be a relevant distinction to be drawn in relation to the position after payment of the benefit.) 76Had I not reached the conclusion as to the effect of the judgment in comparison with the offer of compromise, the question as to whether in the exercise of the Court's discretion costs should be ordered other than in the ordinary course would have arisen. Mr Cavanagh made clear that the trustee accepted (as was recognised in Gilberg v Maritime Super (No. 2) [2009] NSWCA 394) that the Court has a broad discretion in awarding costs. However, the trustee submitted that in all the circumstances (including reference to an offer said to have been made by the trustee to settle the matter made on 31 July 2012, which is also not in evidence) the Court should order costs on the usual basis. 77The offer to which Mr Cavanagh referred in submissions (the making of which was not disputed) was to settle these proceedings for an amount of $62,000 more than the benefit payable. It was submitted that it was not unreasonable on the part of the trustee to reject Mr Sharp's offer in circumstances where it had made its own offer and in a case in which the plaintiff's approach to the Deed was rejected and the factual finding was based at least in part on evidence (the referral note) not provided to the trustee at the time of the offer or before. Mr Rayment submits to the contrary that, even if failure to accept the offer of compromise does not in the circumstances trigger Rule 42.14, nevertheless in all the circumstances the failure by the trustee to accept the offer warrants departure from the ordinary rule as to costs from the time of offer. As I understand it, the difference between the respective offers relates to the component of interest on the claimed benefit. 78This issue does not arise given my finding that Rule 42.14 was applicable. Had it arisen I would not have been inclined to order indemnity costs, since I do not consider that the conduct of the case by the trustee (or its refusal of Mr Sharp's offer) would have brought the matter within the category of cases in which indemnity costs may otherwise be warranted (such as considered in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397).

Orders 79For the reasons set out above, I consider that the following orders should be made:

1. The defendant pay to the plaintiff, by way of equitable compensation for breach of its duty as at May 2007 properly to investigate the plaintiff's total and permanent disablement benefit claim, interest at Court rates on the amount of the total and permanent disablement benefit ($453,000) from 1 January 2008 to the date of payment by the trustee of the said benefit (18 December 2012).
2. The defendant pay the plaintiff's costs of the proceedings up to 1 August 2012 on the ordinary basis; from and including 2 August 2012 up to 18 December 2012 on an indemnity basis; and from and including 19 December 2012 on the ordinary basis. **********` DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 April 2013