Tambakeras v UniSuper Limited

Tambakeras v UniSuper Limited - [2022] NSWSC 1162 - NSWSC 2021 case summary — Zoe

[4]

Claims and issues for determination

In his Amended Statement of Claim (ASOC), Mr Tambakeras seeks a declaration that the four decisions made by the Trustee's delegate committees are void and of no effect. He also seeks a declaration that he is entitled to payment under the Deed of a Disablement benefit or, alternatively, a Temporary Incapacity benefit, a Continued Inbuilt Temporary Incapacity benefit or a Continued Inbuilt Disablement benefit and an order for the payment of the benefit under the Deed, plus interest and costs.
At the hearing, Mr Tambakeras confined his claim to a Disablement benefit and did not press his alternative pleaded claims or his challenge to the third decision (which was made on 27 June 2018) (T25.12-16; T79:27-30).
The Trustee maintains that the decisions were validly made and says that Mr Tambakeras does not meet the definition of Disablement as, assessed at the time he ceased employment, his depression did not render him permanently incapable of undertaking duties or engaging in work. This is in the context where he had accepted a redundancy and was certified as fit for duties at the time and after he left the University.
The Trustee also contends that if Mr Tambakeras meets the definition of Disablement under the Deed, he is not entitled to a benefit for three reasons.
First, it says that the amount of Mr Tambakeras' workers compensation payments from 25 February 2011 to 6 June 2017 together with the consent judgment sum he received in 2017 in satisfaction of his damages claim against the University exceed the value of his Disablement benefit claim and the Trustee is entitled to and has, by a decision made on 9 August 2021, determined to reduce his benefits by those amounts, in accordance with cl 41.2 of the Deed.
Second, the Trustee raises delay as a bar to Mr Tambakeras' claim. It contends that in accordance with cl 51.2 of the Deed, Mr Tambakeras' benefits ceased being payable as he failed to make and establish his claim to the Trustee's satisfaction within 2 years, and the Trustee has not extended that time or determined to reinstate all or part of his benefits, relying on a decision made on 11 August 2021 to that effect.
Third, the Trustee says that in accordance with cl 51.4 of the Deed, Mr Tambakeras' right to claim benefits the subject of these proceedings terminated on his withdrawal of his entire benefit account balance on 25 May 2021 absent a determination by the Trustee that Mr Tambakeras was incapable of managing his affairs or that exceptional or special circumstances existed, also relying on the 11 August 2021 decision that the Trustee was not satisfied of those matters.
There was debate at the hearing about the Trustee's reliance on cll 41.2, 51.2 and 51.4 of the Deed, the decisions made on 9 August 2021 and 11 August 2021 and the scope of the issues to be determined.
On the first day, Mr Tambakeras sought and was granted leave to file a notice of motion seeking to strike out the paragraphs of the Trustee's defence to the ASOC that pleads reliance on cl 51.4 of the Deed and the matters referred to at [14]. I dismissed the motion, indicating that I would provide further reasons for that decision, which I have below. Mr Tambakeras was subsequently granted leave to file points of claim by which he contends that the August decisions should be set aside as they were made in breach of the Trustee's duties. He also advised that he does not press his allegations of waiver and estoppel in relation to cll 42.1(c) and 51.2 (T20.9-18).
In written submissions received after the hearing, the parties agreed on the issues to be determined.
The first issue is whether the first, second and fourth decisions (made on 23 April 2014, 25 June 2015 and 8 February 2019) that declined Mr Tambakeras' claim for a Disablement benefit were made in breach of the Trustee's duties or without power and are void or should be set aside. This involves consideration of the material that was before the Trustee's delegated committees when each of the decisions were made. If the Court concludes that the final decision made on 8 February 2019 is not void and should not be set aside, then Mr Tambakeras' claim will fail.
If the decisions are set aside, the parties agree that the Court should determine whether Mr Tambakeras qualifies for a Disablement benefit and substitute its own decision with that of the Trustee (T167:8-12, Trustee's supplementary submissions at [2]). For this stage, the parties rely on all the available evidence, including additional medical evidence that was not before the Trustee when the declinature decisions were made.
In the event the Court sets aside the declinature decisions and finds that Mr Tambakeras is within the definition of Disablement, the issues for determination are: 1. whether cl 51.2 of the Deed has the effect that any Disablement benefit payable to Mr Tambakeras ceased to be payable on 25 February 2013 without the need for the Trustee to make any determination under that clause, as the Trustee contends (the Trustee's cl 51.2 contention); 2. if the Court rejects the Trustee's cl 51.2 contention, whether the consent judgment sum is an amount that falls within cl 41.2(c) of the Deed such that the Trustee may reduce Mr Tambakeras' Disablement benefit by that sum; and 3. if the answer to (b) is yes, whether the Court should set aside the decision made on 9 August 2021 for breach of duty by the Trustee. If it does, the parties agree to the Court stepping in and executing the trust under cl 41.2 of the Deed.
The Trustee does not accept Mr Tambakeras' grounds of challenge to the 11 August 2021 decision (as set out in his points of claim). However, it is common ground that if the Court finds that Mr Tambakeras is within the definition of Disablement and rejects the Trustee's cl 51.2 contention, then the Court should set aside the 11 August 2021 decision and refer the matter back to the Trustee for a determination regarding the application of cll 51.2 and 51.4 to Mr Tambakeras' Disablement claim.
As to quantum, it is agreed that the amount to which Mr Tambakeras would be entitled as a Disablement benefit is $481,979.61 (as at 3 September 2021). It is also agreed that Mr Tambakeras' statutory workers compensation payments (which are agreed at $208,743.00) should be deducted if he is successful, leaving a figure of $273,236.61 that may be reduced to nil or $33,236.61, if the Court determines that Mr Tambakeras' benefit can be reduced by the consent judgment sum.

[6]

Mr Tambakeras' motion to strike out part of the defence

The strike out application was made in the following context.
On 3 August 2021, Mr Tambakeras was granted leave, by consent, to file and serve the ASOC, which he did on 4 August 2021. The Trustee's defence to the ASOC was filed on 11 August 2021 (Defence), also pursuant to those consent orders. Paragraph 27(f) to (j) of the Trustee's Defence (together the New Defences) pleads that: 1. Mr Tambakeras had on or around 25 May 2021, withdrawn his entire defined benefit account balance with the Fund less $6,000 and transferred that $6,000 to his account in Division D of the Fund from or around that date (Withdrawal); 2. by reason of the Withdrawal and cl 35.2 of the Deed, was not entitled to the Inbuilt Temporary Incapacity benefit; and 3. by reason of the Withdrawal, cl 51.4 of the Deed (which is set out at [45] below) and the Trustee not being satisfied that at the time the benefit was received that Mr Tambakeras was incapable of managing his own affairs or special or exceptional circumstances existed, Mr Tambakeras was not entitled to make a claim against the Trustee for a Disablement benefit or Temporary Incapacity benefit.
Mr Tambakeras objected to the New Defences as he said they did not arise from the amendments that were made in the ASOC. He submitted that the Trustee should have given him prior notice before seeking to rely on the New Defences and he would need to adduce further evidence to meet them. He submitted that the Court should not allow the Trustee to advance the New Defences in circumstances where it had not taken the appropriate steps to obtain leave, given prior notice to Mr Tambakeras or otherwise approached the matter in accordance with the rules of the Court.
The Trustee's Senior Counsel accepted that the New Defences were raised late but submitted that this was because the facts on which they were based only came to the Trustee's attention in early June 2021, noting that Mr Tambakeras' Withdrawal from the Fund was made on 25 May 2021. He argued that the New Defences should not be struck out in circumstances where they would not cause any prejudice to Mr Tambakeras or delay to the hearing.
I approached Mr Tambakeras' application by reference to the principles applicable to r 14.28(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the case management principles set out in ss 56 to 58 of Civil Procedure Act 2005 (NSW) (CPA), and the principles applicable to the grant of leave to amend under s 64 of the CPA which, subject to s 58 of the CPA, requires that "all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings".
I had regard to the objects stated in s 57 of the CPA, which refer to the just determination of the proceedings, the efficient disposal of the business of the Court, the efficient use of the available judicial and administrative resources, and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable to the respective parties.
To my mind, the key issue in relation to Mr Tambakeras' application was whether allowing the New Defences to proceed would likely cause prejudice to Mr Tambakeras, including by way of delay to the hearing of the proceedings. I was not satisfied that it would. This was in the context where the factual issues raised by the New Defences were known to the parties and only occurred in late May 2021. Relevantly, Mr Tambakeras conceded that he was able to file and serve an affidavit that day that responded to the factual issues raised and no further evidence was required from the Trustee, other than some documents that were agreed could be included in the Court Book.
In my view, it was consistent with case management principles and the interests of justice for the Trustee to be allowed to rely on the New Defences as they raised issues that were relevant to the question of whether Mr Tambakeras was entitled to be paid benefits under the Deed, noting that there was no submission made to the contrary. Nor was any submission advanced that the New Defences were futile or pleaded in such a way that Mr Tambakeras was not on notice of the real substance of the defences.
I should record that, as a consequence of Mr Tambakeras confining his case to a claim for a Disablement benefit and the consensus between the parties that the Trustee's 11 August 2021 decision to rely on cl 51.4 of the Deed should be set aside and referred back to the Trustee if the Court finds that he is within the definition of Disablement, the substantive issues raised by the New Defences no longer require determination by the Court. Those issues being first, whether by reason of the Withdrawal and the operation of cl 35.2 of the Deed, Mr Tambakeras is entitled to the Inbuilt Temporary Incapacity benefit and second, whether the Withdrawal, the terms of cl 51.4 of the Deed and the Trustee's decision on 11 August 2021 mean that Mr Tambakeras is not entitled to payment a Disablement benefit.

[7]

The Deed and the Trustee's delegate committees

The Fund was established by a trust deed dated 24 December 1982 to provide benefits, initially for the employees of University of Tasmania (the initial participating institution) and their dependants. Other eligible institutions, including the University of Sydney, and their employees, were permitted to join the Fund and become members.
Subject to applicable superannuation law, the general control, management and administration of the Fund is vested in the Trustee who is to administer the Fund in accordance with the Deed: cl 3.3.
A member's entitlement to benefits is determined by whether they are a member of Divisions A, B, C and D of the Fund. Mr Tambakeras was a Division B member of the Fund. That division relevantly provides: B.3 Benefits under Division B B.3.1 Benefits subject to Deed This Clause B.3 operates subject to the Deed (other than the provisions of Division A, Division C or any agreement or undertaking entered into or given pursuant to Clause 31.2). B.3.2 Types of benefits payable The Trustee must pay benefits (or cause benefits to be paid) out of UniSuper as follows: … (b) if a Member ceases to be in the Service due to Disablement, a Disablement Benefit calculated in accordance with Clause B.5;
Clause 1.1 of the Deed includes the following definitions: Disablement means, in relation to Divisions A, B and C, a state of health which in the opinion of the Trustee renders a Member permanently incapable of performing duties or engaging in employment for which they are reasonably qualified by training and experience where: (a) the Member has been absent from employment through injury or illness for three months within a period of twelve consecutive months immediately prior to ceasing to be in the Service; and (b) the Trustee is satisfied that the state of health is not due to or induced by any wilful action on the part of the Member to obtain a benefit. … Employer means: (a) an Eligible Institution which has entered into a deed with the Trustee pursuant to Clause 27; and (b) in relation to a particular Employee, the Employer employing them for the time being. … Service means, in relation to a Member, continuous employment with one or more Employers since last becoming a Member.
It is common ground that the University was Mr Tambakeras' Employer within the meaning of the Deed and that Mr Tambakeras was absent from employment through injury or illness, namely depression, for three months within a period of 12 consecutive months immediately prior to ceasing to be employed with the University on 25 February 2011. No issue is taken by the Trustee that Mr Tambakeras' state of health was due to or induced by any wilful action on his part to obtain a benefit.
Division B of the Deed also provides: B.5.1 Benefits prior to age 65 If a Member is entitled to a Disablement Benefit under this Clause B.5, the Disablement Benefit prior to age 65 will be an immediate pension payable until the Member's 65th birthday or earlier death at an annual rate calculated as follows: Benefit Salary by 60% x ASF.
Clause 1.1 of the Deed defines ASF or Average Service Fraction as the time weighted average of a member's Service Fractions during their Contributing Service.
It is agreed that the monthly pension payable under cl B.5.1 of the Deed in the case of Mr Tambakeras was $3,521.74 per month (as at 30 June 2011 (CB624)).
Clause B.5.7 provides that benefits may be subject to cessation, as follows: Clause B.5.7 Benefits subject to cessation The benefits payable under this Clause B.5 are subject to cessation or reduction pursuant to Clause 41.
Clause 41 of the Deed sets out general provisions applicable to members receiving Disablement and Temporary Incapacity benefits. Relevantly to the issues in these proceedings, cl 41.2 provides: 41.2 Reduction of benefits … (c) The Trustee may reduce a Member's Disablement Benefit or Temporary Incapacity benefit by an amount determined by the Trustee and not exceeding the total amount payable to the Member in respect of their Disablement or Temporary Incapacity under: (i) any legislation dealing with workers compensation and similar payments; and (ii) any award or agreement relating to their employment with the Employer.
Clause 51 of the Deed concerns making a claim for a benefit or other amount from the Trustee, and relevantly provides: 51.1 Obligation to establish claims It is the responsibility of each person who may be entitled to receive a benefit or other amount from UniSuper to make and establish their claim to the satisfaction of the Trustee by: (a) notifying the Trustee as to their whereabouts; and (b) providing the Trustee with such other information as the Trustee may acquire. 51.2 Failure to make a claim, unclaimed moneys and lost Members (a) All claims to benefit or other amounts must be made and established to the satisfaction of the Trustee within 2 years (or such further period as the Trustee may determine) after the date on which the benefit or amount could have commenced or become payable. Subject to paragraph (b) of this Clause 51.2, if a claim is not made in this time the benefit or other amount will cease to be payable and: (i) will be retained by the Trustee for the general purposes of UniSuper; or (ii) if Superannuation Law requires the amount to be dealt with in a particular manner, the amount will be dealt with in that manner, unless the Trustee determines to reinstate all or part of the benefit or other amount which would be payable to a person but for this Clause 51.2. … 51.4 Claims for further benefits restricted A person who has received a benefit which was payable on ceasing to be in the Service under Division A, B or C or who has transferred or rolled over that benefit to an Approved Fund or to an another account within UniSuper shall not be entitled to make a claim for a Terminal Medical Condition, Disablement or Temporary Incapacity benefit from UniSuper unless the Trustee is satisfied that at the time the benefit was received, transferred or rolled over, the person was incapable of managing his or her own affairs or that special or exceptional circumstances existed in relation to the person at that time.

[8]

Delegate Committees

The Deed's powers of management authorise the Trustee to appoint one or more committees to perform such duties as may be delegated or conferred by the Trustee at its discretion: Deed, cl 10(a).
As at 10 November 2013, the Trustee had established an Insurance Committee (IC) and an Insurance Management Committee (IMC) pursuant to cl 10(a) of the Deed. The IMC is a subcommittee of the IC.
According to the IC Charters in operation, the IC was responsible for, amongst other things, monitoring and overseeing the IMC, including decisions to decide claims for Disablement benefits provided by Division B of the Deed, considering and dealing with complaints relating to declined Disablement claims, and considering and reviewing applications made by members relating to a trustee's discretion under the Deed in so far as it relates to the making of a claim for a payment of a Disablement benefit: IC Charter as at 11 November 2013, cll 9(c), (h) (CB958); IC Charter as at 9 October 2014, cll 9(d),(i) and (j) (CB1450).
The IMC Charter in operation as at 23 April 2011 provided that (CB952): 1. the responsibilities of the IMC included consideration and determination of recommendations by Management to approve and decline member claims for Disablement benefits made under the relevant provisions of the Deed and to consider and review decisions by the Insurer to decline disablement and income protection claims made by member's under the Trustee's Group Life Insurance Policy: cl 4(c), (d); 2. the IMC consisted of the Executive Manager Business Technology and Operations, Head of Operations and the Insurance and Claims Manager: cl 5; 3. the agenda and supporting papers would be distributed to members of the IMC in advance of the meeting: cl 7; and 4. the quorum for a meeting of the IMC was two members and if a quorum was not present within 15 minutes after the time set for the meeting, the meeting was to be adjourned to such place and time as the IMC members decided: cl 8.
On 1 May 2014, the Trustee's board approved amendments to the IMC's Charter to provide that the composition of the IMC would consist of the Executive Manager Operations, the Manager, Member and Employer Administration, and the Insurance and Claims Manager and, if it was not possible to form a quorum due to IMC members being unable to attend scheduled meetings, that a replacement IMC member would be appointed by the IMC Chair, who was the Executive Manager Operations or a delegated representative: cll 5, 6 and 7 (CB2064G, CB2064AE, CB2064AJ).

[11]

Employment with the University

On 14 January 2004, Mr Tambakeras commenced employment with the University as a computer aided design (CAD) Officer in the Facilities Management Office (now known as the University's Campus Infrastructure Services (CIS) department) on a full-time, permanent basis, working 35 hours per week.
In 2009, Mr Tambakeras held the position of CAD Draftsman. His duties included managing and updating the drawings register, maintaining the Facilities Management Officer's CAD specifications relating to both buildings and grounds, maintaining and preparing 3D CAD massing models of various campuses of the University, attending meetings with other groups of the Facilities Management Officer and maintaining and enforcing relevant policies.
In around late March 2009, Mr Tambakeras came into a degree of conflict with his immediate supervisor at the University. For the purposes of these proceedings, it is not necessary to detail that conflict other than to note that allegations of bullying and harassment were made by Mr Tambakeras in relation to his supervisor's conduct over a continuing period.
In May 2009, the difficulties in his work situation led to Mr Tambakeras consulting a doctor about the stress he was experiencing and taking a week off work. He then saw another general practitioner, Dr Paul Ristuccia, who certified that Mr Tambakeras was unfit to work from 13 May 2009 to 14 August 2009. WorkCover medical certificates issued by Dr Ristuccia for that period refer to the date of Mr Tambakeras' injury as 13 May 2009, describe the injury as "severe work stress related [to] perceived intimidation from management" and record a diagnosis of reactive depression with acute anxiety features.
On around 11 June 2009, Mr Tambakeras lodged a workers compensation claim with Allianz Insurance (CB536). Mr Tambakeras' Worker's Injury Claim Form refers to his injury/condition as depression and that it occurred on 13 May 2009 from "stress, pressure, harassment, intimidation at work". The Employer Injury Claim Report completed by the University's Workers Compensation Claims Officer on 11 June 2009 agrees that Mr Tambakeras had depression, his injury was work-related and states that Mr Tambakeras had been provided with a return-to-work plan and performance management issues may delay or prevent a return to work. From around this time, Mr Tambakeras commenced receiving weekly workers compensation payments.
On 19 August 2009, Mr Tambakeras' returned to work having been certified by Dr Ristuccia as fit to work two half days per week. He worked in that reduced capacity until 22 October 2009. He was then absent from 23 October 2009 to 25 November 2009. WorkCover medical certificates issued by Dr Ristuccia certified him as fit to work two half days per week during the period from 19 August 2009 to 22 October 2009, unfit on 3 September 2009, 8 October 2009 to 13 October 2009, on 15 October 2009 and during the period 27 October 2009 to 29 November 2009.
Mr Tambakeras returned to work on or around 25 November 2009, working three half days per week. The WorkCover certificates issued by Dr Ristuccia certified him as fit to work three half days per week from 30 November 2009 to 30 April 2010.
On 8 January 2010, Mr Tambakeras commenced treatment with a psychiatrist, Dr Patrick Morris, who diagnosed Mr Tambakeras as having adjustment disorder, with mixed anxiety and depressed mood secondary to the work stress that he had been under.
According to Mr Tambakeras, from 22 February 2010, he commenced receiving workers compensation payments from Allianz in the amount of $514 per week. [1]
From May 2010, Mr Tambakeras increased his working hours, having been certified by Dr Ristuccia as fit for suitable duties for six hours per day for three days per week during the period 30 April 2010 to 22 May 2010 and three full days per week, from 22 May 2010 to 28 October 2010.
From 28 October 2010, Dr Ristuccia certified that Mr Tambakeras was fit to work three full days per week from home and recommended that he work from home on those days if feasible. Mr Tambakeras was certified as fit for three days per week working from home for the remainder of the time that he was employed at the University.
In late 2010, the University offered Mr Tambakeras redundancy as it was unable to provide him with suitable duties that he could complete from home. Mr Tambakeras accepted the offer and ceased his employment with the University with effect on 25 February 2011.
Mr Tambakeras deposes that he did not feel well enough to work at this time due to his ongoing difficulties with his mental health, that he could not be in the office any longer and his self-esteem was at an all-time low (CB1687). He says he accepted the redundancy because he had "had enough of the stress and victimisation" he was feeling in the workplace and saw it as "a way out" for him. According to leave records in evidence, Mr Tambakeras was on leave (a combination of annual leave, workers compensation leave and HDC leave) over the period 13 December 2010 to 25 February 2011.
Mr Tambakeras and the University entered into a separation agreement dated 17 March 2011 (Separation Agreement) which records that Mr Tambakeras' position was made redundant as part of a restructure that was then occurring within CIS (Background (B)). It also records that the parties agreed that Mr Tambakeras' employment would end on 25 February 2011 due to the position of CAD Officer being deemed redundant (cll 1.1, 2), Mr Tambakeras received a separation payment of $60,052.74 (cl 3.1(b)) and the parties agreed that the Separation Agreement could be pleaded as a bar to proceedings arising out of the matters referred to except any proceedings in respect of a workers compensation claim (cl 7) (CB600).

[12]

2011: Post-employment with the University

After Mr Tambakeras ceased working with the University, he continued to be treated by Drs Ristuccia and Morris (who made a change to Mr Tambakeras' medication). In 2011, he was assessed as part of a return to work rehabilitation program (details of which are set out at [96] below) and started seeing a new psychologist, Ms Rose Cantali.
During the period 25 February 2011 to 1 November 2011, Dr Ristuccia issued WorkCover medical certificates that certified that Mr Tambakeras was: 1. fit for permanently modified duties between 25 February until 5 July 2011, with the capability to work full hours for three days per week; and 2. fit for permanent duties at full hours for five days a week between 5 July 2011 and 1 November 2011.
Between March 2011 and August 2011, Mr Tambakeras attempted to secure employment. He applied for CAD-based design and documentation positions at approximately 50 architecture and design firms but was unsuccessful in obtaining a position.
On 18 August 2011, the Trustee sent a letter to Mr Tambakeras noting the change in his employment resulted in him no longer being a contributing member of the Fund's Defined Benefit Division and that he had the option to elect to defer his defined benefit component or to transfer his benefit to an Accumulation 1 account. On 12 October 2011, the Trustee received notification from Mr Tambakeras that he had elected to defer his defined benefit component of his superannuation benefits.
On 1 November 2011, Dr Ristuccia issued a medical certificate that certified Mr Tambakeras was unfit for duties from 1 November 2011 until 15 December 2011 and referred to a "significant recent worsening" with a change to suitable duties for that reason. The WorkCover medical certificates issued by Dr Ristuccia after that period continued to certify that Mr Tambakeras as unfit for duties, with some noting that "Rehab program was felt to be unhelpful if not counter productive" and, from 1 May 2013, referring to Mr Tambakeras as having no current work capacity for employment and "severe chronic depression" as a factor delaying recovery.

[13]

14 May 2013: Mr Tambakeras submits claim to the Trustee

On 14 May 2013, Mr Tambakeras submitted a claim to the Trustee for a Total and Permanent Disablement benefit together with medical reports from Dr Ristuccia and Dr Morris, each of which consisted of answers to questions on a printed form.
Mr Tambakeras' claim was made by a member statement, completed on 7 May 2013 (Member's Statement). It identifies that the delay in notifying the Trustee of the claim was due to Mr Tambakeras being "not well" and that he ceased employment on 25 February 2011 as he "reluctantly took redundancy after suffering continual bullying and harassment in the workplace". It also states that he ceased normal duties on 13 May 2009, the nature of his injury or illness is "depression", that he was unable to work at present, and that he had applied for a full-time drafting position in the architecture industry but had not worked in any capacity since leaving the University.
Dr Ristuccia's report was completed on 16 April 2013 (Dr Ristuccia's April 2013 Report). It identifies that Mr Tambakeras became completely unable to perform all the normal duties for his occupation on 13 December 2011; he suffered anhedonia, depressed mood, sleep disturbance and appetite change; rehabilitation was not likely to benefit him, Mr Tambakeras was unable to perform all duties at present, with "severe depression preclud[ing] any work", and that he was not expected to return to his normal work because of his severe depression, poor concentration, poor stress tolerance and poor job prospects.
Dr Morris' report was completed on 1 May 2013 (Dr Morris' May 2013 Report). It refers to Mr Tambakeras' injury occurring in March 2009 in the context of conflict with a work supervisor; he became completely unable to perform all the duties of his occupation in February 2011; Mr Tambakeras fulfils the diagnostic criteria for major depressive disorder (with symptoms of loss of pleasure, depressed mood, insomnia, guilt, reduced motivation, energy and hopelessness) and had been on antidepressant medication since August 2010; and Mr Tambakeras would not benefit from rehabilitation, was not expected to return to his normal work, would not be able to engage in employment for which he was reasonably qualified and would never return to work due to his depressive symptoms being "so chronic and severe".
In response to Mr Tambakeras' claim, the University prepared an Employer's Statement that is dated 17 July 2013 and is also in the form of answers to questions on a printed form (Employer's Statement). It refers to Mr Tambakeras having ceased performing normal duties on 21 May 2009 because he had instigated a workers compensation claim for reactive depression with acute anxiety features (referring to an attached medical certificate), performing suitable duties tailored to accommodate his three days per week working arrangement with the University on the last day of his work with the University and there being no other positions that Mr Tambakeras could perform at the University and that his position was not open. It identifies Mr Tambakeras' qualifications and the specific duties of his position and attaches a list of leave taken by Mr Tambakeras in the last 12 months of his employment, which shows that he was absent for 165 days (approximately five months) during the twelve consecutive months prior to ceasing his employment on 25 February 2011.

[14]

August - November 2013: Approval of optional TPD Insurance

In addition to being a Division B member of the Fund, Mr Tambakeras had optional Total and Permanent Disability (TPD) insurance cover through the Fund in the amount of $36,000, which was insured by Hannover Life Re of Australasia Ltd (Hannover).
On 19 August 2013, the Trustee referred Mr Tambakeras' Disablement claim to Hannover for assessment in relation to his optional TPD insurance (CB836).
On 29 August 2013, the Trustee (on behalf of Hannover) asked Mr Tambakeras to provide a list of jobs that he had applied for since ceasing work with the University on 25 February 2011. By email dated 2 September 2013, Mr Tambakeras advised that he had applied for a total of 48 CAD-based design and documentation positions between March and August 2011, most of which were through "Seek" and various recruitment agencies with the end result being one interview and no placements.
On 12 November 2013, the IMC considered and approved Mr Tambakeras' claim for payment of the optional TPD insurance.
A memorandum dated 25 October 2013 in relation to the claim was prepared for the IMC by Mr Darren Gyss, an employee of the Trustee. It records that Hannover provided its final assessment decision admitting Mr Tambakeras' TPD claim on 30 September 2013 and forwarded the insured benefit of $36,000 to the Trustee on 3 October 2013. It states that the Claims Team (which I infer to be the Trustee's Claims Team) completed its final assessment of Mr Tambakeras' optional TPD insurance claim on 25 October 2013 based on the claim documentation and medical evidence provided, which included the Member's Statement, Employer's Statement, Dr Ristuccia's April 2013 Report, Dr Morris' May 2013 Report, a medical certificate from The Ramsay Street Medical Centre dated 28 August 2013, a report from Dr Morris dated 6 September 2013 and the various WorkCover NSW medical certificates (which I infer is a reference to the medical certificates issued by Dr Ristuccia, as described at [58], [65] and [70] above).
The memorandum from Mr Gyss states that the Claims Team recommended that the IMC approve Mr Tambakeras' TPD claim based on satisfaction that Hannover's decision to pay $36,000 in full settlement of the claim was fair and reasonable as Mr Tambakeras' claim satisfied the TPD definition and was in accordance with the terms and condition of the Group Life Insurance Policy. The memorandum refers to the TPD definition relevant to the Group Life Insurance Policy and states: "UniSuper has completed a legislative requirements check to confirm that the member meets a condition of release. The member has ceased employment on 25 February 2011 due to a permanent disability, therefore meets a condition of release. In addition, the member has satisfied the following clauses under the UniSuper Trust Deed: Regulation 8.C - Disablement and Permanent Incapacity which states "in relation to a member, means ill-health (whether physical or mental), where the trustee is reasonably satisfied that the member is unlikely because of the ill-health, ever again to engage in gainful employment for which the member is reasonably qualified by education, training or experience". Regulation 9 - Insurance Cover (Part B of Division D), which states "To purchase death and disablement cover Part B of Division B, a member must satisfy the relevant requirements of the Insurer."
On 18 November 2013, the Trustee wrote to Mr Tambakeras and confirmed that his optional TPD benefit had been approved and was payable in the amount of $36,000. On 25 November 2013, Mr Tambakeras elected to have the total amount paid to him.
On 3 December 2013, Mr Tambakeras spoke to the Trustee and requested that the accumulation component of his superannuation be released along with his optional TPD insurance payment (CB1690).
On 4 December 2013, the Trustee paid the amount of $92,788.49 to Mr Tambakeras, comprising the accumulation component of his superannuation together with the optional TPD insurance benefit of $36,000.

[16]

Summary of WorkCover Materials

The letter dated 28 August 2013 from Dr Ristuccia to Hannover (Dr Ristuccia's August 2013 letter) states: "1. Significant exacerbation of depression occurred on 25/02/2011 that resulted in Mr Tambakeras ceasing all work. 2. Severe ongoing depression."
It is not clear from Dr Ristuccia's August 2013 letter what his letter responds to. However, based on the contents of the letter from Dr Morris to Hannover (set out below) and the fact that they are both addressed to the same Claims Administrator at Hannover, I infer that Dr Ristuccia sent it in response to a request for a report that asked him to address the same questions referred to in Dr Morris' letter.
The letter from Dr Morris addressed to Hannover dated 6 September 2013 (Dr Morris' September 2013 letter) states: "I refer to your request for this report dated 27/8/2013. I shall answer the two questions that you asked me to address in the report: 1. What occurred on 25/2/2011 that enabled Mr Tambakeras to cease all work? Mr Tambakeras accepted a redundancy from his work on that date. Prior to that date he was working three days a week for eight hours a day from 2010 to 25/02/2011. 2. Noting the capacity given which appears to be from 2010 onwards, why can't Mr Tambakeras work in the same capacity for a new employer? Mr Tambakeras accepted a redundancy on 25/02/20011. He accepted the redundancy because he was finding it difficult to cope with work stress because of his depression at that time. Since the redundancy he has been unsuccessful in obtaining work. His insurer, Allianz referred him to an employment program which he was in for seven or eight months but was unsuccessful in gaining employment. His inability to find work has worsened his depression over the intervening years. Mr Tambakeras has been having ongoing psychological therapy form a psychologist, Ms Rose Cantali and has been seeing me regularly for psychiatric review over that time. He has also required increasing doses of antidepressant medication and addition of other medication over that time. It remains my opinion that Mr Tambakeras will not return to any work due to the severity of his ongoing depression."
The O'Neil Report records that Mr O'Neill assessed Mr Tambakeras on 24 July 2012 on instructions from Allianz. It refers to Mr Tambakeras as somewhat guarded in the meetings but generally cooperative, reporting extremely high levels of depressive symptomology that was unusual even in clinical samples, that Mr Tambakeras' self-reported symptoms (of depression, worthlessness and loss of interest) were not evident during the interview and that the level of inconsistency made a diagnosis impossible. The report notes a past assessment of adjustment disorder and states that it was uncertain whether Mr Tambakeras had a diagnosable disorder and that he did not meet the criteria for major depressive disorder. Mr O'Neil assessed Mr Tambakeras as fit for full-time work and normal duties. His report notes that Mr Tambakeras was currently declared unfit for work but refers to speaking to Dr Ristuccia, who agreed that Mr Tambakeras was fit for job seeking, initially 20 hours per week (being 4 hours per day, five days a week) and slowly upgrading this over a four-to-six-week period to normal hours and records there were no psychological or psychiatric impairments identified as negatively impacting his ability to return to work. It also refers to Mr Tambakeras having been referred to a rehabilitation provider to assist in job-seeking, applying for over 100 jobs, getting only two interviews, not having a job and not job-seeking since as the process reduced his confidence. The O'Neill Report also refers to other medical and health reports: a report by Dr Robertson, Psychiatrist, from June 2009 who diagnosed a mild adjustment disorder with an anxious mood; a Section 40 Assessment Report by Injury Treatment dated 28 October 2011 that indicated there were various occupations that Mr Tambakeras was deemed suitable for; a letter by Dr Onzy Mattar dated 14 July 2011 which noted that Mr Tambakeras was suffering stress, anxiety, depressive disorder and an adjustment disorder; a report from Dr Lee, Psychiatrist, dated 19 January 2010, who administered the "Structured Interview of Reported Symptoms" that concluded that Mr Tambakeras' "combination of elevated scores is characteristic of individuals who are feigning mental disorder and are rarely seen in client's responding truthfully" and that he was unlikely to have had a diagnosis given his presentation.
The Vickery Report records that Dr Vickery undertook an independent medical examination of Mr Tambakeras on 11 June 2013 and refers to Mr Tambakeras reporting symptoms of disturbed sleep pattern, initial and middle phase insomnia and daytime fatigue, rumination in relation to his work issues and social withdrawal from his friends, undertaking psychological counselling and consulting a psychiatrist every two to three weeks and taking the following medications, Venlafaxine, Valium and Alprazolam. It refers to Mr Tambakeras presenting as tense, despondent and withdrawn but no evidence of clinically significant anxiety, major depression, paranoid delusional ideation, formal thought disorder or gross cognitive impairment in concentration or memory. Dr Vickery opines that: Mr Tambakeras does not suffer from any diagnosable psychiatric psychological condition as a result of a work-related injury; his current symptomology was not chiefly related to the original incident from 13 March 2009 but related to his current life situation associated with not finding employment, financial stressors and "a lack of direction"; Mr Tambakeras' symptoms are consistent with panic disorder with agoraphobia and his employment was not a main contributing factor; he had become disillusioned with job seeking and assessed as unfit but that was not directly related to his injury and should not have been compensable; and Mr Tambakeras is fit to undertake a return-to-work and capable of participating in employment, and his not participating in work is a result of his disillusionment rather than any psychiatric incapacity. Dr Vickery recommended that a "MMPI-II" assessment be undertaken by Mr Haralambous which was considered to be able to diagnose the presence or absence of clinical disorders with much greater accuracy than any conventional psychological assessments.
The Haralambous Report records that Mr Haralambous undertook an independent psychological assessment of Mr Tambakeras on 10 September 2013 for the purposes of providing a report pertaining to his workers compensation claim. The assessment included a clinical interview, administration of psychological tests and a review of accompanying documents. Mr Haralambous had access to the reports referred to at [92] and [93], the WorkCover certificates and claim forms, a statement of Mr Tambakeras dated 5 June 2009 as well as reports from Dr Michael Robertson dated 4 and 25 June 2009, Dr Kipling Walker dated 27 January 2011, Dr Morris dated 2 May 2012 and 5 July 2013 and Dr David Allen dated 27 October 2010.
The Haralambous Report also records that Mr Tambakeras presented as sullen in affect, conveyed a sense of despondency and reported feeling depressed, sometimes anxious and finding it difficult to accept his current circumstances, but that Mr Tambakeras did not demonstrate any signs of elevated levels of anxiety or psychomotor disturbance. The report records Mr Haralambous findings as follows: on an objective valuation, there were predominantly exaggerated and/or embellished forms of psychological and cognitive dysfunction which cannot be accounted for by age, gender, education, background, depression (even in severe forms), anxiety or other genuine diagnosable psychological condition; Mr Tambakeras' scores, responses and behaviours on tests designed to assess the validity of his purported psychological complaints suggest that he took the opportunity provided by the assessment to exaggerate and/or embellish psychological disturbance; in his opinion, Mr Tambakeras did not present with any objectively verifiable manifestations of a genuine diagnosable psychological or psychiatric condition that may be reasonably attributed, either by way of cause or persistent aggravation, to the alleged circumstances of his employment with the University, or that would limit his capacity for any type of employment for which he has suitable qualifications, training and experience.
The Integrait Report was prepared as part of an employer program to facilitate Mr Tambakeras' return to work. Integrait conducted an initial assessment of Mr Tambakeras on 22 March 2011, at which time it was considered that a vocational assessment was not required as it would be most appropriate for Mr Tambakeras to pursue work as a CAD technician with a different employer, and there was no medical restriction precluding him from doing so. It was noted that Mr Tambakeras had been certified fit for three full days' work (suitable duties) from 5 April 2011 to 1 June 2011 and his fitness for work was due to be reviewed on 1 June 2011. The report refers to Injury Treatment speaking to Dr Ristuccia on 6 April 2011, who advised it was appropriate for Mr Tambakeras to commence working part-time in a CAD role, being able to increase to full-time work over a period of two months from when he commences work and working as a CAD technician would be preferable that a job that involved changing roles. It also refers to Mr Tambakeras having a very negative view about and adopting a passive approach to his return to work, being concerned about his experience at the University being viewed negatively by potential employers, that Mr Tambakeras would benefit from some job seeking education modules (such as how to deal with rejection and motivational guidance), and that the employment outlook was classified as "not too hard" (with 20 job vacancies for CAD technician/architectural draftsperson roles advertised in the Sydney metropolitan area on 7 April 2011).

[18]

December 2013: Procedural fairness letter

On 20 December 2013, the Trustee sent a letter to Mr Tambakeras (which the parties referred to as the Procedural Fairness Letter) in relation to his claim for a Disablement benefit. The letter noted that to receive a benefit, the Trustee required evidence demonstrating that he met the definition of Disablement under the Deed and stated: "At this stage of the process, the evidence supplied in relation to your claim suggests that you may not meet the definition of Disablement. In particular, that you may not be permanently incapable for performing duties or engaging in employment for which you are reasonably qualified by training and experience."
The Procedural Fairness Letter set out a summary of the evidence the Trustee had taken into consideration in reaching that conclusion, which summarised in dot-point form information from Mr Tambakeras' claims documentation (including from Dr Ristuccia's April 2013 Report and Dr Morris' May 2013 Report) and from the WorkCover Materials (referring to the Integrait Report, the O'Neill, Vickery and Haralambus Reports, Dr Ristuccia's letter dated 28 August 2013, Dr Morris' letter dated 6 September 2013 and the WorkCover medical certificates). The letter advised that Mr Tambakeras had an opportunity to provide further information which the Trustee would consider, attached a list of all documents relied on in the assessment of the claim (which referred to the Member Statement, Employer's Statement and the Allianz Workers Compensation file). It also stated: "Conclusion The balance of medical evidence on the file suggests that you remained capable of performing your normal duties and/or engaging in employment for which you are reasonably qualified by training and experience (albeit in a reduced capacity at times) after being made redundant by the University, on 25 February 2011. In particular: The Attending Doctor's Report indicates that you were capable of performing your normal duties until 13 December 2011. The WorkCover NSW Medical Certificates indicate that you were: Capable of working 3 full days per week until 4 July 2011. Capable of working 5 full days per week from 5 July 2011 until 1 November 2011. Unfit for work from 1 November 2011. Based on medical reports obtained through your workers compensation claim, it appears that any incapacity to work was triggered by failed attempts to find new employment. Prima facie, your treating doctor, Dr Ristuccia agreed with Mr Pertot's and Mr O'Neill's opinion that you were fit for work in July 2012 and June 2013, respectively. Dr Vickery and Mr Haralambous both opine that you are not prevented from working due to any psychological condition."
On 20 March 2014, Adams & Co Lawyers (Adams & Co, acting for Mr Tambakeras) wrote to the Trustee in response to the Procedural Fairness Letter. Their letter attached a further report from Dr Morris dated 20 December 2013 and a report from Dr Ben Teoh, Consultant Psychiatrist, dated 5 February 2014. In the letter, Adams & Co asserted that where there was a conflict, the reports of Dr Morris and Dr Teoh should be preferred to the notes of Mr Pertot and the O'Neill Report; the reports of Mr Tambakeras' treating doctors (Dr Ristuccia and Dr Morris) should be preferred to that of Mr Haralambous and Dr Vickery; and that Dr Ristuccia's August 2013 letter should be preferred to the WorkCover certificates, asserting there was a conflict between them. Adams & Co's letter stated that Mr Tambakeras fell within the definition of Disablement and that it was not accepted that he was fit for part-time work at the time he was made redundant. It also referred to and sought to distinguish Manglicmot v Commonwealth Bank Officers Superannuation Corp Pty Ltd [2011] NSWCA 204 (Manglicmot) (arguing that there was no clause under the Deed that specifically excluded those who can work part-time from being TPD), referred to the High Court's decision in Finch v Telstra Super Pty Ltd (2010) 242 CLR 254; [2010] HCA 36 (Finch), and asked the Trustee to give due consideration to the matters.
Dr Morris' report dated 20 December 2013 (Morris December 2013 Report) records that Dr Morris had seen Mr Tambakeras 17 times from 24 August 2012 to 20 December 2013 and treated him with antidepressant medication over that time, had added another antidepressant medication (mirtazapine) on 19 June 2013 in response to his worsening depression and was arranging a referral to The Black Dog Institute at the University of New South Wales due to the severity, chronicity and treatment-resistance of his depression. The report refers to Mr Tambakeras as remaining severely depressed despite intensive psychological and psychiatric treatment and continuing to suffer from the psychiatric condition of major depressive disorder according to DSM-IV-TR criteria which, in Dr Morris' opinion, was precipitated by the stressors suffered in his employment at the University in 2009. Dr Morris opines that Mr Tambakeras' condition originally began as an adjustment disorder with anxiety and depressed mood but developed into a major depressive disorder, and that his whole person impairment was now at 22% (an increase from 15% when he rated him on 13 July 2012) which was indicative of a worsening of his disability as a result of the chronic major depressive disorder. According to the PIRS Rating Form completed by Dr Morris, Mr Tambakeras' depressive symptoms were so severe, especially his despondent mood, poor concentration and inability to cope with stress, that he cannot work at all anymore. In the report, Dr Morris takes issue with the Vickery Report and disagrees that Mr Tambakeras' current symptomology is not chiefly related to the original work incident from 13 March 2009.
Dr Teoh is a Consultant Psychiatrist and Physician in Addiction Medicine. His February 2014 report records that he examined Mr Tambakeras on 30 January 2014 and had been provided with a number of reports and medical certificates. It records that Mr Tambakeras was cooperative and spontaneous during the interview and that he reported significant depressive symptoms and having sleeping problems, but there was no evidence of psychiatric symptoms or suicidal ideations. In Dr Teoh's opinion, Mr Tambakeras' presentation was consistent with a diagnosis of an adjustment disorder with depressed and anxious mood (adopting the DSM IV diagnostic criteria), his condition was caused by the work related stress as a result of harassment and bullying, his prognosis was poor as his condition had become chronic and he was not fit to return to his usual employment.
On 28 March 2013, Ms Mackay completed a written assessment of Mr Tambakeras' claim and sent it to Paul Woodburn, the Trustee's in-house counsel. On 9 April 2014, Ms Mackay discussed her assessment with Mr Woodburn and incorporated his feedback into a memo for the IMC (CB839).

[19]

23 April 2014: First decision

On 23 April 2014, the IMC held a meeting to consider claims under the Deed, including Mr Tambakeras' claim.
According to the minutes, the meeting was held at 9.00am on 23 April 2014, was attended by two out of three IMC members (Steve Leach, Executive Manager Operations, as Chair, and Joe Zahra, Manager-Member and Employer Administration), Ms Mackay, Mr Woodburn (Legal Counsel) and others, and closed at 10.25am. The minutes (which are redacted in part for privacy reasons) record that Mr Tambakeras' claim was one of approximately 30 claims (or sets of claims) considered at the meeting, the IMC noted Management's recommendations and the IMC approved the decision to decline Mr Tambakeras' claim for a Disablement benefit in relation to depression with a benefit amount of $3,521.74. The decision recorded in the minutes is referred to in the following terms: "The [IMC] declined the member's claim for a Disablement and Temporary Incapacity benefit as the member does not meet either the definition of Disablement or Temporary Incapacity as per the requirements of the … Deed."
Management's recommendations are set out in a memorandum dated 16 April 2014 from Ms Mackay to the IMC which recommended declining Mr Tambakeras' Disablement benefits claim and attached copies of the following documents: Occupational History and Training and Experience forms; the Member's Statement; the Employer's Statement; Dr Ristuccia's April 2013 Report and August 2013 letter; Dr Morris' May 2013 and December 2013 Reports and September 2013 letter; the Integrait Report, the O'Neill, Vickery, Teoh and Haralambous Reports, and the WorkCover medical certificates for the period from 14 May 2009 to 24 August 2013.
Ms Mackay's memorandum states that Mr Tambakeras ceased all occupational duties on 25 February 2011 due to depression, his employment with the University was terminated on the same day and that Mr Tambakeras had applied for an "Inbuilt Benefit - Division B - Disablement". It sets out information about Mr Tambakeras and his claim, the Disablement definition and other clauses from the Deed and summarises, in dot point form, information from Mr Tambakeras' and the University's documentation, the medical and supporting evidence, the WorkCover Materials, and the additional medical reports provided by Mr Tambakeras' legal representatives, namely, the Morris December 2013 Report and Dr Teoh's 5 February 2014 report.
In the section headed, "What is the injury of [sic] illness suffered by Mr Tambakeras", the memorandum states: "Based on medical evidence on the file, it appears that Mt Tambakeras suffered from depression, anxiety and adjustment disorder at or about the time he ceased work with the University. However, there is debate about whether Mr Tambakeras continues to suffer from these psychological conditions. Dr Ristuccia and Dr Morris maintain that Mr Tambakeras suffers from ongoing severe / major depression. Mr O'Neill, engaged by the insurer in the workers compensation claim, opined that it is uncertain whether Mr Tambakeras suffers from a diagnosable disorder as there were significant inconsistencies during the assessment not in line with a clear diagnosis. Mr Tambakeras does not meet the criteria for Major Depressive Disorder however. Dr Vickery, also engaged by the insurer in the workers compensation claim, opined that Mr Tambakeras presented as tense, despondent and withdrawn. However, there was no evidence of major depression, paranoid delusional ideation, formal though disorder or any cognitive impairment in concentration or memory. Mr Haralambous, also engaged by the insurer in the workers compensation claim, opined that findings on objective evaluation are not consistent with any genuine known form of diagnosable psychological pathology. UniSuper's Chief Medical Office (CMO) has reviewed all medical evidence on the file and notes that Mr Haralambous had provided compelling evidence that Mr Tambakeras is overstating his difficulties which casts doubt over the veracity of his self-report."
The memorandum identifies that Mr Tambakeras was absent for 165 days (approximately 5 months) during the 12 consecutive months immediately prior ceasing to be in the service of the University and that he satisfied the element of the definition that required him to be absent for three months.
In the section headed "Is Mr Tambakeras permanently incapable of performing duties or engaging in employment for which he is reasonably qualified by training and experience", the memorandum refers to the conclusions in the Procedural Fairness Letter (detailed at [99]-[100] above) and summarises the response from Adams & Co (detailed at [101] above). It then proceeds to consider the "Case Law", referring to Manglicmot, Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57 (Hannover Life v Dargan) and Finch and Mr Tambakeras legal submissions, with which she disagrees.
The memorandum identifies the date that Mr Tambakeras ceased employment with the University (25 February 2011) as the date on which the Trustee must assess whether Mr Tambakeras was, through depression, rendered permanently incapable of performing duties or engaging in employment for which he is reasonably qualified by training and experience and states: "Conclusion Based on the claims documentation and medical evidence on the file, I am not satisfied that Mr Tambakeras meets this element of the definition of Disablement. I have reached this conclusion on the basis that: In the Attending Doctor's Medical Report dated 16 April 2013, Dr Paul Ristuccia advised that Mr Tambakeras became completely unable to perform all the normal duties of his occupation on 13 December 2011. As at 25 February 2011, WorkCover NSW Medical Certificates completed by Dr Paul Ristuccia certified Mr Tambakeras fit to work three days per week. Dr Ristuccia then certified Mr Tambakeras fit to work 5 days per week from 5 July 2011 to 12 November 2011. Therefore, I am not satisfied that Mr Tambakeras is entitled to a Disablement Benefit under the UniSuper Trust Deed. ….. Recommendation In light of the claim documentation and information provided for the assessment of the member's Disablement claim, the recommendation to the Trustee is to decline the benefits the Disablement/Temporary Incapacity benefits on the basis that: Mr Tambakeras does not meet the definition of Disablement under the [Deed]. …"
The memorandum also considers whether Mr Tambakeras was entitled to a Temporary Incapacity benefit under the Deed and concludes that he was not.
On 24 April 2014, the Trustee sent a letter to Adams & Co advising that it had completed the assessment of Mr Tambakeras' Disablement claim and the IMC (a delegate of the IC, which is a delegate committee of the Trustee) had determined that the claim was unsuccessful. The Trustee's letter confirms that Mr Tambakeras' application for a Disablement benefit relates to depression and was assessed against the Disablement definition under the Deed. It also lists the information provided in support of Mr Tambakeras' claim and records that the Trustee had also requested a copy of his workers compensation file. The letter states: "After careful consideration of the material submitted in support of the claim, the IMC has determined that the claim is unsuccessful on the basis that, at all material relevant times, Mr Tambakeras was not permanently incapable of performing duties or engaging in employment for which he is reasonably qualified by training and experience."
The letter goes on to state that in reaching its decision, the IMC noted: 1. matters related to the application of Manglicmot and disagreed with Adams & Co's submission that Manglicmot was distinguishable; 2. matters relating to principles in Finch and considered that the circumstances in that case were distinguishable to the circumstances of Mr Tambakeras' claim but, in any event, it is accepted that Mr Tambakeras was absent from employment for three months prior to ceasing work; and 3. that in relation to the date on which the Trustee must assess whether Mr Tambakeras was rendered permanently incapable of performing duties or engaging in employment for which he is reasonably qualified by training and experience, the definition of Disablement in the Deed is similar to the definition of TPD considered in Rapa v Patience (Supreme Court (NSW), McLelland J, 4 April 1985, unrep) (Rapa v Patience) and, based on the case law, it is satisfied that the date at which the Trustee must assess whether Mr Tambakeras was, through depression, rendered permanently incapable of performing duties or engaging in employment for which he was reasonably qualified by training and experience was the date he ceased employment with the University, being 25 February 2011.
The letter then states: "Further, the IMC noted that: In the Attending Doctor's Medical Report dated 13 April 2013, Dr Paul Ristuccia advised that Mr Tambakeras became completely unable to perform all the normal duties of his usual occupation on 13 December 2011 As at 25 February 2011, WorkCover NSW Medical Certificates completed by Dr Ristuccia certified Mr Tambakeras fit for work three days per week. Dr Ristuccia then certified him fit to work five days a week from 5 July 2011 to 12 November 2011."
The Trustee's letter also advised that the IMC was not satisfied that Mr Tambakeras was entitled to a Temporary Incapacity benefit. The letter stated that if he disagreed with the IMC's decision, he should notify the Trustee, noting that the next meeting was in August 2014, and if the original decision was affirmed by the Committee, he could lodge a complaint with the SCT.

[21]

June 2015: Second decision

On 25 June 2015, the IC met to consider Mr Tambakeras' disputed Disablement claim. The minutes of the IC meeting record that the IC reviewed the decision of the IMC to decline Mr Tambakeras' claim for a Disablement benefit, resolved to maintain the original decision on the basis that, at all relevant times, he was not permanently incapable of performing duties or engaging in employment for which he was reasonably qualified by training and experience, and that the IC declined Mr Tambakeras' Continued Inbuilt Temporary Incapacity and Continued Inbuilt Disablement benefit claims.
The minutes of the meeting record that Ms Mackay presented a paper which recommended that the IC decline Mr Tambakeras' claims for a Disablement benefit, Temporary Incapacity benefit and Continued Inbuilt Disablement benefit. The paper prepared by Ms Mackay is a memorandum dated 25 June 2015 that attaches Ms Mackay's 16 April 2014 memorandum (referred to at [107]-[113] above), the Trustee's letter dated 24 April 2014 informing Mr Tambakeras of the Trustee's decision to decline his claim, a copy of Mr Tambakeras' complaint to the SCT and copies of the materials provided by Mr Tambakeras in support of his claim, the Employer Statement and the materials obtained by the Trustee from the WorkCover file.
Ms Mackay's memorandum refers to Mr Tambakeras' complaint to the SCT and that he had not provided any new evidence in support of his claims. It records that Mr Tambakeras had applied for and been paid the optional TPD benefit under the Hannover policy and had fulfilled the requirement to be absent from employment for a period of six months although did not meet the Deed definition of Disablement as a result of having been declared fit for work at various periods since ceasing employment in February 2011. It sets out the relevant Deed definitions and a summary of the relevant evidence in dot-point form. Under the heading 'Relevant evidence', the first section deals with the information provided by Mr Tambakeras, including the Occupational History and Training and Experience forms, the Member's Statement, Dr Ristuccia's 2013 Report, Dr Morris' May and December 2013 Reports and Dr Teoh's February 2014 report. The second section summarises information obtained by the Trustee from the Employers Statement and material from the WorkCover file, being the Integrait Report, the O'Neill Report, the Vickery Report, Dr Ristuccia's 2013 letter to Hannover, Dr Morris' 2013 letter to Hannover, the Haralambous Report and the WorkCover medical certificates by Dr Ristuccia for the period 14 May 2009 to 24 August 2013.
The memorandum states that a full review of Mr Tambakeras' claims had been undertaken based on the information on the file and identifies the date for assessment as 25 February 2011. It refers to cl 51.2 of the Deed as restricting the period for a member to establish a claim for benefits to a two-year period, unless the Trustee exercises its discretion to grant an extension, and states that Management does not consider the exercise of this discretion is necessary in the circumstances. It then states: "Management is of the view that the following evidence in particular, demonstrates that the member did not meet the Trust Deed definition of Disablement at all relevant times: • In the Attending Doctor's Medical Report dated 16 April 2013, Dr Paul Ristuccia advised that the member became completely unable to perform all the normal duties of his occupation on 13 December 2011 (10 months after ceasing employment). • As at 25 February 2011, WorkCover NSW Medical Certificates completed by Dr Paul Ristuccia certified the member as fit to work three days per week. Dr Ristuccia then certified the member fit to work 5 days per week from 5 July 2011 to 12 November 2011."
On 2 July 2015, the Trustee sent a letter to Mr Tambakeras that referred to his complaint to the SCT, in which he asked for a review of the Trustee's decision on 23 April 2014 to decline his claim. The letter advised Mr Tambakeras that his Disablement benefit was considered by the Trustee; that on 25 June 2015, the IC (as a delegate committee of the Trustee) reviewed his claim for a Disablement benefit and retrospective claim for a Temporary Incapacity claim; and that after careful consideration of Mr Tambakeras' submissions in his complaint to the SCT and all other information made available to the Trustee, the IC determined that he was not entitled to a Disablement benefit (or Temporary Incapacity benefit). The letter states that the IC was not satisfied that he met the definition of Disablement at the relevant times and determined to maintain the Trustee's decision and had, in reaching its decision, noted the matters in Dr Ristuccia's April 2013 Report and the WorkCover medical certificates as at 25 February 2011 and from 5 July 2011 to 12 November 2011 (which are set out in the letter to Adams & Co (as detailed in [116] above).

[23]

July 2017: SCT affirms Trustee's decision

On 19 July 2017, the SCT handed down its determination that affirmed the Trustee's decisions under review. It was satisfied that the decision by the Trustee to reject Mr Tambakeras' claim for a Disablement benefit or a Temporary Incapacity benefit was fair and reasonable in the circumstances.
The SCT's reasons refer to the complaint and some background facts, the terms of the Deed, summaries of medical reports provided to the SCT from his GP (Dr Ristuccia), five psychiatrists (which include Dr Morris, Dr Vickery and Dr Teoh) and four psychologists (including Mr O'Neill and Mr Haralambous), and the parties respective positions. The summaries of the reports from psychiatrists and psychologists referred to in the SCT's decision include the following: "30. Dr MR, Psychiatrist, saw the Complainant in June 2009 and provided two reports. He diagnosed a Mild Adjustment Disorder with Anxious Mood. Whilst noting that that workplace stress may have been a substantial contributor to the Complainant's condition he felt that the perception of harassment may have arisen in part due to a restructuring process at work. He considered that the Complainant required a further six months of medication plus psychological counselling. 31. Dr KW, Psychiatrist, provided a report after his interview with the Complainant. The date of the interview is mentioned as 8 December 2010, but must have been 2009, as the date for the report is 10 January 2010. He considered that the Complainant had mild symptoms of depression, due to predominantly industrial issues, and that the symptoms were not amenable to specialist treatment. … 34. Ms TG, Psychologist, understood the Complainant to have Reactive Depression with Anxiety features and referred to a plan for reduced hours in the workplace as well as a period of working from home. 35. Ms FG, Psychologist, in addressing a plan for work noted that the restructuring, which was occurring in his workplace, might lead to a change in the Complainant's duties regardless of the interaction with the managing supervisor."
In relation to the Disablement benefit, the SCT noted there was no dispute that Mr Tambakeras met the criteria that he was absent from employment through his illness for three-months within a period of 12 months prior to ceasing employment and that his illness was not due to any wilful action on his part to obtain a benefit. It concluded that the Trustee's opinion that Mr Tambakeras was not permanently incapable of performing duties as at the time he ceased employment or in subsequent years was open on the evidence before it and that it was fair and reasonable for the Trustee to determine that Mr Tambakeras did not qualify for a Disablement benefit. Reference was made to the weight of opinion that supported the contention that Mr Tambakeras was capable of working in the relevant time period, the material from Dr Ristuccia and evidence from at least two of the psychiatrists that Mr Tambakeras may be misrepresenting his symptoms and exaggerating his cognitive dysfunction based on the results of widely accepted and objective psychological tests.

[25]

June - July 2018: Third decision

On 27 June 2018, the IC met to consider whether to continue to decline Mr Tambakeras' claim for the Temporary Incapacity benefit and the Continued Inbuilt Temporary Incapacity benefit. The minutes of the IC meeting record that the IC decided to decline Mr Tambakeras' Temporary Incapacity benefit claim and his Continued Inbuilt Temporary Incapacity benefit claim.
The IC was provided a paper prepared by Alison Devitt dated 27 June 2018 which attached a copy of the SCT decision, Dr Dinnen's report and the letter from Maurice Blackburn Lawyers. Ms Devitt's paper recommended that the IC maintain its decision to continue to decline Mr Tambakeras' claim for a Temporary Incapacity benefit. Ms Devitt's memorandum states (CB1354): "With respect to Dr Dinnen's report dated 27 February 2018, and having regard to the Fund's Claims Philosophy, Management is of the view that greater weight should be given to the contemporaneous opinion of the Member's treating doctor, Dr Ristuccia over that of Dr Dinnen, who did not consult the Member until seven years after the Cover Period. Therefore, the Member is not entitled to a Continued Inbuilt Temporary Incapacity benefit under the Regulations."
In relation to the reference to the "Fund's Claims Philosophy", at that time, the Trustee had developed a document titled "Claims Philosophy UniSuper" (Claims Philosophy). It refers to the Trustee's claims philosophy as "an underlying interpretive document" that compliments operation manuals and regulations, to incorporate the values, knowledge and language of the organisation with the intent to improve member satisfaction through the adoption of a consistent, reliable approach and to provide general guidance value for the effective management of claims of the Trustee's self-insured claims, including member's Temporary Incapacity and Disablement claims under the Deed.
The Claims Philosophy refers to the Fund's obligations as including "to make decisions that are evidence based". It also refers to Management's obligations when assessing claims to involve the Chief Medical Officer when the medical evidence is, amongst other things, inconsistent and inadequate, properly evaluating all forms of evidence and preparing a record of Management's views (which is to be used by the IMC in making decisions). Section 6 of the Claims Philosophy deals with "Acceptable forms of Medical Evidence". It acknowledges that there may be multiple sources of medical evidence, that there is a usual hierarchy of reliable information and Management will generally place weight on opinions according to the expertise of the practitioners, and that the focus of treating doctors is on the clinical management of their patients and as such, may not always be suitable for the purpose of assessing claims. Section 10 provides that decisions made by claim assessors should be based on medical and factual evidence, Management places more weight on those opinions that are based on documented facts or observations and states: "Decisions on incapacity should be made once there is a comprehensive, clear understanding of the member's symptoms and the impact that those symptoms have on the member's role and responsibilities at work."
On 2 July 2018, the Trustee wrote to Maurice Blackburn Lawyers and advised that the IC had determined that Mr Tambakeras was not entitled to a Temporary Incapacity benefit. Amongst other things, the Trustee's letter referred to Dr Dinnen's report and the IC's determination to give greater weight to the contemporaneous opinion of Mr Tambakeras' treating doctor, Dr Ristuccia, over that of Dr Dinnen who did not consult Mr Tambakeras until seven years after the Cover Period.

[26]

November 2018: Further request for review

On 19 November 2018, Maurice Blackburn Lawyers (on behalf of Mr Tambakeras) wrote to the Trustee and requested a further review of the Trustee's determination that Mr Tambakeras was not entitled to a Temporary Incapacity benefit within 28 days, failing which, they would seek instructions to commence proceedings in this Court. Their letter asserted that Mr Tambakeras had provided sufficient medical and other evidence which ought to have satisfied the Trustee that he was entitled to a Disablement benefit or, alternatively, a Temporary Incapacity benefit, the Trustee had insufficient regard to Mr Tambakeras' limited education, training and experience, his age and realistic prospects of obtaining work in the open labour market and the reports of Dr Dinnen dated 27 February 2018, Dr Morris' May 2013 Report and another dated 20 December 2013 and Dr Ristuccia's April 2013 Report and that Mr Tambakeras' condition was severe, unremitting and totally disabling on a continuing basis, thereby entitling him to a disability benefit under the Deed. The letter also attached a report from Dr Graeme Senior, Psychologist, dated 16 October 2018.
Dr Senior's report states that Mr Tambakeras had been referred for psychological assessment in relation to a Temporary Incapacity benefit and had been examined by Dr Senior in Brisbane on 8 May 2018. Dr Senior's report sets out details of the case background, refers to Mr Tambakeras having tried to secure work for about a year after his redundancy, since then he had given up looking for work and notes that Mr Tambakeras considered that his current skills were not adequate or competitive in his field and that his GP had advised him to stop looking for work.
As part of the case history, Dr Senior's report refers to assessments by various doctors and health providers, including the reports referred to previously (at [77], [90]-[94], [102], [103] and [131]) and other reports as follows (CB1652 - 1656): 1. Reports of Dr Robertson, Psychiatrist, dated 4 June 2009 and 25 June 2009: Dr Robertson evaluated Mr Tambakeras on 2 June 2009 and considered that he was suffering from a mild adjustment disorder with anxious mood, noting that Mr Tambakeras attributed the onset of his symptoms to the workplace. Dr Robertson raised a concern that non-workplace interpersonal difficulties may have had an impact and considered it likely that he would be able to return to work. In the later report, Dr Robertson observed that "Mr Tambakeras perceived the pattern of behaviour as one of harassment, however the objective facts appear to be that the actions… were consistent with a line manager attempting to effect change within the workplace and manage problematic behaviours on the part of Mr Tambakeras". Dr Robertson noted that there was no clear indication of "other sources of distress factoring into the development of his anxiety"; 2. Report of Ms Green, Rehabilitation Consultant, dated 15 June 2009: Mr Tambakeras reported experiencing sleep difficulties, poor concentration and memory, anger, loss of appetite, poor motivation, and pre-occupation with the events he had experienced in his workplace; 3. Report of Mr Fischer, Clinical Psychologist, dated 14 September 2009: Mr Fischer had seen Mr Tambakeras eight times by the time of his report, but noted that his role did not include managing his return to the workplace. Mr Fischer detailed Mr Tambakeras' work situation and his deteriorating relationship with his new manager and considered him to be "seriously depressed and anxious as a result of what appears to be quite serious harassment at his workplace" and to have a "good" prognosis. Mr Fischer also considered him to be fit for work for two mornings per week, and fit for full-time work if his workplace situation was resolved; 4. Reports of Dr Dinnen, Psychiatrist, dated 2 September 2009: Dr Dinnen evaluated Mr Tambakeras on 26 August 2009 and considered he was suffering from a depressive (dysthymic) disorder and assessed his level of impairment under WorkCover guidelines at 10% and that his symptoms may impact his successful return to work if they worsen; 5. Report of Dr Morris, Psychiatrist, dated 8 January 2010: Dr Morris saw Mr Tambakeras on 8 January 2010 in relation to his work-related stress dating back to March 2009 and considered he suffered from an adjustment disorder with mixed anxiety and depressed mood secondary to work stress; 6. Reports of Ms Gilbert, Psychologist, dated 3 May 2010, 2 June 2010 and 12 October 2010: Ms Gilbert met with Mr Tambakeras on 22 March 2010 to discuss his return to work. In her second report, she noted that he was not to be supervised by the original staff member who precipitated the problem but could work seven hours per day for three days each week, which was reiterated in her third report; and 7. Reports of Dr Walker, Psychiatrist, dated 10 January 2011 and 27 January 2011: Dr Walker met with Mr Tambakeras on 8 December 2010 and considered that he had mild symptoms of depression which was not amenable to specialist treatment since his issues were predominately with his employer. In the second report, Dr Walker indicated that he had spoken with Dr Ristuccia on 18 January 2011 who considered that Mr Tambakeras had reactive depression and personality issues and certified him fit to work for three days each week (from home where possible). Dr Walker considered that Mr Tambakeras would be fit for work away from the University.
Dr Senior is critical of some of the conclusions in the O'Neill and Vickery reports and takes issue with the approach in the Haralambous Report. While accepting that psychological tests play an important role in evaluating the status of cognitive abilities and psychosocial functioning, Dr Senior opines that the pattern of test findings indicated an individual with overall intact cognitive abilities with reduced attention and graphomotor speed which were likely the result of the severe symptoms of depression and the medications he takes to treat it. Dr Senior opines that Mr Tambakeras' anxiety had resolved, his symptoms of depression had persisted and worsened and the current assessment supports that Mr Tambakeras has a persistent depressive disorder. He opines that the deterioration in Mr Tambakeras' psychological wellbeing occurred following his unsuccessful application for the manager's position at the University and the hiring of a new manager, that his current difficulties are a direct consequence of the events that happened in his workplace between 2008 when his new manager was hired and February 2011 when he was made redundant and, unless there is dramatic change in Mr Tambakeras' situation, such as being provided with the necessary training to upgrade his technical skills and returning to successful employment as a draftsman, his symptoms are likely to persist unabated.

[27]

February and March 2019: Fourth decision

On 8 February 2019, the IC met to consider, amongst other things, Mr Tambakeras' disputed claim for Disablement and Temporary Incapacity benefits. The minutes of the IC meeting record that the IC declined Mr Tambakeras' claims for Temporary Incapacity and Disablement benefits under the Deed and for Continued Inbuilt Temporary Incapacity and Continued Inbuilt Disablement benefits under the Regulations on the basis that he did not meet the eligibility criteria and resolved to maintain its decisions of 25 June 2015 and 27 June 2018. They also record that Ms Devitt, Insurance and Claims Manager, presented a paper in relation to Mr Tambakeras' claim.
Ms Devitt's paper is a memorandum dated 8 February 2019 which recommended that the IC maintain the decisions made on 25 June 2015 and 27 June 2018 to decline Mr Tambakeras' claims for, amongst other things, a Disablement benefit having regard to the information presented to date. Ms Devitt's paper sets out the history of Mr Tambakeras' claim and refers to Mr Tambakeras' request for a review and the provision of the additional medical evidence. It attaches copies of the SCT decision, Maurice Blackburn Lawyers' 19 November 2018 letter and Dr Senior's report.
Ms Devitt's paper also refers to the previous meetings and decisions made by the IC by reference to materials on "Diligent Boards". The parties agree that Diligent Boards is the Trustee's electronic system that houses documents and the same documents that were before the IC on 25 June 2015 and 2 July 2018 were available to the IC on Diligent Boards for the purpose of the 8 February 2019 meeting.
Ms Devitt's paper states as follows (CB1633): "3 DISCUSSION A full review of the Member's claims has been completed and Management advises that after reviewing the additional medical evidence provided by Dr Senior in his report dated 16 October 2018, and having regard to the Fund's Claims Philosophy, Management is of the view that greater weight should be given to the contemporaneous opinion of the Member's treating doctor, Dr Ristuccia over that of Dr Senior, who did not consult the Member until some seven years after the Cover Period. To that extent Management notes that Dr Senior does not appear to dispute Dr Ristuccia's certification of the Member's work capacity immediately prior to, during and/or immediately after 25 February 2011 when he ceased Service. Accordingly, Management is of the view the new evidence provided should not alter the Committee's previous decisions made having regard to all information on the file and the relevant provisions of the Trust Deed and Regulations and refers to and repeats the following decisions with respect to: Temporary Incapacity benefit and Regulation 16 - Continued Inbuilt Temporary Incapacity benefit, in the Committee's decision dated 27 June 2018. Disablement benefit in the Committee's decision dated 25 June 2015. For completeness, Management notes that the Member is not eligible for a Disablement benefit under Regulation 16 - Continued Inbuilt benefits, due to the Member failing to meet the permanent incapacity limb of the definition."
At the time of the decision, the Trustee's Claims Philosophy has been updated (on 20 September 2018). Relevantly, it provides that generally, more weight will be given to the opinion of an independent medical examination (IME) over other medical information on file as it is generally considered to be more objective than that provided by a treating GP, and on par with the opinions obtained from a treating specialist.
In addition to the Claims Philosophy, at all relevant times, the Trustee had a Procedural Fairness Policy which, relevantly, states as follows: "1. Where obviously ambiguous or incomplete information is provided, obtain clarification and/or additional information from the provider of that information (or another appropriate person) before making a decision. 2. Where there is inconsistent medical information on the file, and if approved appropriate by the Senior Claims Assessor, provide a copy of the Claims Assessor's preliminary assessment and relevant medial information to UniSuper's Chief Medical Officer (CMO) for opinion."
On 1 March 2019, the Trustee wrote to Maurice Blackburn Lawyers and advised that the IC (a delegate committee of the Trustee) had reviewed Mr Tambakeras' request to provide a review decision in relation to his Disablement benefit claim and declined the claim. The letter refers to careful consideration of the submissions in Maurice Blackburn's letter in particular, Dr Senior's report and of all other information made available to the Trustee. It advises that the IC determined that the new evidence did not alter the previous decisions of 25 June 2015 and 27 June 2018. With respect to the additional medical evidence, the letter advises that the IC determined that it was appropriate to give greater weight to the contemporaneous opinion of Mr Tambakeras' treating GP, Dr Ristuccia, over that of Dr Senior, who did not consult Mr Tambakeras for some seven years after the Cover Period. The letter also states that the IC determined to maintain its decisions of 25 June 2015 and 27 June 2018 to decline his claims for, inter alia, a Disablement benefit under the Deed on the basis that Mr Tambakeras did not meet the eligibility criteria.
On 8 April 2019, Mr Tambakeras commenced these proceedings.

[29]

9 August 2021 decisions

On 9 August 2021, the IC held a special meeting at which Mr Tambakeras' claim in these proceedings was discussed. The minutes of the meeting record that the IC resolved that Legal be authorised to proceed to trial and to instruct the Trustee's UniSuper's external solicitors accordingly, because of the IC's position on Mr Tambakeras' ineligibility for a benefit and how any benefit would be entirely offset by virtue of clause 41.2(c). They also record that the Trustee's inhouse solicitors briefed the IC on the status of the litigation. A memorandum dated 6 August 2021 from the Trustee's legal department to the IC (CB1802L) over which legal professional privilege has been waived by the Trustee (CB1802C) is in evidence.
The 6 August 2021 memorandum considers whether the weekly compensation payments made to Mr Tambakeras during the period 25 February 2011 to 6 June 2017 in the amount of $208,743 and the Consent Judgment sum should be offset from Mr Tambakeras' claim, assuming he is successful. Reference is made to Mr Tambakeras' position that the Trustee is not entitled to offset the Consent Judgment sum. The memorandum records the Trustee's legal department's view that the Consent Judgment sum was a common law payment that came within the ambit of cl 41.2(c)(i) of the Deed and that Mr Tambakeras would unreasonably benefit if he were allowed to retain inbuilt Disablement benefits from on or about 25 February 2011 until 24 January 2023 (at the age of 65).
The 6 August 2021 memorandum also endorses the IMC's view that Mr Tambakeras was capable of performing duties or engaging in employment for which he was reasonably qualified by training and experience as the weight of evidence at or around the time he ceased service with the University indicated that Mr Tambakeras was capable of working in suitable employment. It lists, in appendices 3 and 4 respectively, the reports relied upon by the IMC and later opinions evidencing Mr Tambakeras' condition. Appendix 3 refers to the Integrait Plan, the O'Neill, Vickery and Haralambous Reports, and reports from Dr Leonard Lee dated 19 January 2010 and Dr Kipling Walker dated 10 January 2011 and 27 January 2011 in the following terms: DATE REPORT OPINION/VERBATIM EXTRACTS He had four scales in the probable range or feigning…This combination of elevated scores is characteristic of individuals who are feigning a mental disorder and rarely seen in clients responding truthfully. It is unlikely that he actually has a diagnosis given his presentation and his markedly elevated scores on the Structured Interview of Reported Symptoms. 19.01.10 Dr Leonard Lee It appears that he is capable of return to full duties and there should not be consequences provided that there are clear guidelines as described on page 2 of your letter of instructions. He is capable of working now. Unfortunately, it appears MT has been feigning. He has no signs of anxiety or depression. He cannot work at the University, but can do the work because it is simple. To progress to fulltime duties, he wants to transfer to another department, work from home, and not have to go to work at the University. 10.01.11 Dr Kipling Walker He says that he is fit to work from home, but not fit to work at the University of Sydney. He has mild symptoms of depression and is not willing to maintain his suitable pre-injury duties at the University of Sydney. Dr Ristuccia understands that Mr Tambakeras is fit to work away from the University, where he has damaged his professional relationships. Dr Ristuccia has certified Mr Tambakeras fit to work three days per week, from home if possible. I discussed information from the University of Sydney that there are not three-day per week jobs available in other departments. 27.01.11 Dr Kipling Walker Dr Ristuccia agreed to consider increasing Mr Tambakeras' hours at work in the near future. Dr Ristuccia and I agree that Mr Tambakeras is fit to work away from the University of Sydney. Dr Ristuccia will consider increasing Mr Tambakeras' certified hours for work in the near future.

[32]

Additional medical and allied health evidence

In addition to the material that was before the Trustee at the time of its decisions (which I have referred to above), there are other medical and allied health reports in evidence upon which the parties rely (as part of the stage two considerations) and to which I was taken during submissions. A summary of the substance of those reports is set out below.
A report from Dr Dinnen dated 2 September 2009 (CB542, referred to above at [140(d)]) records that Dr Dinnen evaluated Mr Tambakeras on 26 August 2009 to determine the reasonable medical treatment for his condition and to provide an opinion on his capacity to work. Dr Dinnen considered he was suffering from a depressive (dysthymic) disorder. Under the heading "permanent impairment", Dr Dinnen stated that the condition developed at the end of 2008 but an assessment should be carried out in a year to determine the level of "ongoing permanent impairment". Dr Dinnen stated that Mr Tambakeras presented with "significant depressive symptoms following problems in the workplace concerning his certainty of employment and what he perceived as harassment" and "he ceased work because of his psychiatric condition in May". He considered it reasonable to certify Mr Tambakeras as fit for a graduated return to work programme, but "it is possible that he may not be able to succeed in [the] return to work plan" and any incapacity for work is "due to the work related depressive illness".
Mr Alex Fischer, clinical psychologist, produced reports dated 14 September 2009, 8 February 2010, 22 June 2010 (which is incomplete) and 25 August 2010, which relevantly state: 1. as at 14 September 2009, Mr Tambakeras was fit to work two mornings per week but not for full-time work unless the present situation was resolved, in which case he would be able to return to full-time work over a period with medical and psychological support; 2. as at 8 February 2010, Mr Tambakeras was still depressed and anxious because of his work situation and was locked into his present situation by the lack of work elsewhere though he would consider leaving his position if work were available in his field; 3. as at 25 August 2010, Mr Tambakeras' main problems at work were his "relative isolation" and the low level of work that he was being given which, in Mr Fischer's opinion made his work situation still very difficult, but that (as noted previously) there is a possibility he might work in another section which Mr Fischer thought he would be able to do working full-time.
An Injury Treatment Section 40 Assessment Report dated 28 October 2011 (CB780, referred to at [92] above) relates to assessments conducted by Erin Rowlatt (Vocational Assessment) and Bill Ada (Psychological Assessment) on 25 October 2011. It records the date of Mr Tambakeras' injury as 13 May 2009, his diagnosis as reactive depression with anxiety features, his injury status as "currently fit to work with suitable duties" and current status of his work as "fit for suitable duties for full hours per day for 5 days per week from 4 October 2011 to 12 November 2011 (review day). No restrictions indicated". The report concludes that, considering Mr Tambakeras' psychological capacity at the time of the assessment, he would be suitable to work as an architectural draftsperson, a facilities manager or a mechanical draftsperson, however Mr Tambakeras was unwilling to apply for jobs outside of architectural drafting. The report records that Mr Tambakeras stated he had applied for "maybe 50 jobs and has had 3 interviews". It states that Mr Tambakeras was motivated to find suitable employment (but had lost motivation in recent weeks due to his lack of success).
Dr Alex Sharah, Consultant Psychiatrist, examined Mr Tambakeras on 14 November 2011 and produced a report dated 15 November 2011 (CB2061). Dr Sharah asked him whether he would be able to work elsewhere, to which he responded that he did not know if he could because "[t]he way he is he couldn't meet deadlines… [i]f people are difficult he doesn't feel he could handle it now". Dr Sharah described Mr Tambakeras as having had a "severe response to the harassment and the threat and eventual loss of his work situation… and he is very depressed and angry". Dr Sharah opined that Mr Tambakeras had depression of a severe degree, a guarded prognosis and the stress that brought this on occurred in 2009 and was "topped up" by incidents 2010. According to the Psychiatric Impairment Rating Scale included in Dr Sharah's report, Mr Tambakeras scored 18%, had major depression and in relation to his employability, Dr Sharah stated that he was "Too depressed. No confidence. Fears people".
An Integrait Progress Report dated 12 March 2012 refers to Mr Tambakeras currently being certified as unfit for work and lists the "return to work goal" as "Same Job/Different Employer; CAD Technician/Architectural Draftsperson (Injury Treatment recommends also Different Job/Different Employer goal to expand vocational options, once Mr Tambakeras is re-engaged)". In relation to the treating psychiatrist case conference, the report notes: "Dr Morris reported that his role was to look after medication and that any recommendations for prognosis or treatment should be directed to Treating Psychologist Ms Rose Cantali. He did however report that Mr Tambakeras will be able to return to full time work but could not provide a timeframe and [was not] comfortable providing this as a recommendation to the NTD, instead deferring to the Treating Psychologist."
In relation to the treating psychologist case conference, the report notes that Ms Cantali agreed that Mr Tambakeras would be transitioned to full time paid work. The report stated that Injury Treatment recommended that a work trial would be useful to allow Mr Tambakeras "to upgrade from his current unfit status".
A report by Ms Rosaria Cantali, Clinical Psychologist, dated 26 May 2012 relates to a clinical interview and assessment conducted in May 2012 (CB807; T76.9-14). It records a number of psychological symptoms that were impacting his quality of life which concern relationships with family and friends, somatic complaints (such as lack of concentration, difficulty focusing and symptoms of panic), feelings of sadness, hopelessness, fear and frustration and an inability to plan for the future. Ms Cantali stated that he had symptoms of post-traumatic stress as a consequence of bullying and victimisation in the workplace. Further, he suffered from an extreme level of depression, stress and anxiety as is consistent with the psychological trauma consequent on bulling in the workplace. Ms Cantali wrote that these symptoms influenced all aspects of his life, including work and his emotional symptoms and negative appraisals about the future "make recovery a more challenging process".
Dr Morris' report dated 13 July 2012 (CB812) is based upon his assessment of Mr Tambakeras on 13 July 2012 and information in his file. It records his previous diagnostic opinion that Mr Tambakeras suffered from an adjustment disorder with mixed anxiety and depressed mood secondary to work stresses and previous symptoms of depression in August 2010 when he was working three days per week. It also detailed the events leading up to his acceptance of the redundancy package, noting that he "was going to try and look for other work", was searching for jobs in May 2011 and by July 2011 he had "had six or seven interviews… without any success". Throughout the period from July 2011 to September 2011, he was still looking for jobs but had been unsuccessful. Dr Morris reported that he changed his diagnosis from adjustment disorder to major depressive disorder because of the severity of his psychiatric symptoms over time, and recorded that the diagnosis changed in August 2010. Dr Morris opined that his prognosis is not particularly good, his condition was precipitated by the stresses he suffered in his employment at the University, his condition was currently severe and it had been exacerbated by the fact that he had to stop working at the University and his lack of success in finding other employment.
Dr Parmegiani, Psychiatrist, produced a Workers Compensation Medical Commission Medical Assessment Certificate on 5 November 2014 which assessed Mr Tambakeras' degree of permanent impairment after having assessed him on 3 November 2014 (CB1452). Dr Parmegiani refers to the Haralambous' Report and concludes that "[w]hile the psychometric test results [obtained by Mr Haralambous] suggested that Mr Tambakeras exaggerated cognitive difficulties, there was no evidence suggesting that he was able to function at a higher level than he claimed. Dr Parmegiani opined that Mr Tambakeras has major depressive disorder and refers to his function having deteriorated since they last met in January 2013. He also set out some of the other medical opinions and details his reasons for why his opinion differs. He noted the similarity of his opinion with Dr Teoh's report dated 5 February 2014 (referred to at [103] above) and Dr Morris's report dated 1 August 2014. He disagreed with Dr Vickery's diagnosis of social phobia in his report dated 18 March 2004 as it manifests in adolescence and Dr Vickery did not explain how Mr Tambakeras was able to obtain tertiary qualifications and sustain employment until the onset of occupational problems. In respect of the Haralambous Report, Dr Parmegiani noted that the results which suggest exaggeration do not exclude the possibility that Mr Tambakeras has a psychiatric impairment.
Another report of Dr Morris, dated 27 January 2016 (CB1532), relates to his meeting with Mr Tambakeras that day and records that he continues to feel depressed and while his symptoms have slightly improved, he is still significantly disabled by his depressive symptoms. Dr Morris opines that, because of the severity and duration of his depressive symptoms (particularly his reduced concentration and difficulty coping with stress), he had no capacity to work in suitable duties and he did not have a good prognosis for him with regard to returning to work. He was also not motivated to work and the major barrier for returning to work is the severity of his major depressive disorder.
Another report by Ms Rosaria Cantali, dated 13 December 2016 (CB1561), provides her clinical opinion with regard to Mr Tambakeras' working memory, thought capacity and readiness to re-enter the workforce. Ms Cantali observes that he was experiencing extremely severe symptoms of depression, anxiety and stress and his working memory was significantly lower than expected of someone of his age. Ms Cantali stated that he could possibly be diagnosed with adjustment disorder with mixed anxiety and depressed mood. While she considered a differential diagnosis of major depressive disorder, it was ruled out as the former diagnosis would fit Mr Tambakeras better and his symptoms and presentation were more related to the bullying and harassment incidents and difficulty in securing alternative employment. Ms Cantali opined that, as a result of the work related incidents of harassment and bullying, he was not currently fit to work and his capacity to handle stress and solve problems within an occupational environment is impaired. She concluded that his deficits in working memory can be improved over time with therapy and a graduated return to work and job seeking plan.
Also in evidence is a letter dated 28 July 2021 from Dr Ristuccia to Maurice Blackburn Lawyers (CB1721). It states that it was written to obviate the need to attend to give evidence and goes on to state: "1. Diagnosis- Severe ongoing depression. Partial response to anti depressant medication and psychologist counselling. Suggest contact his treating psychiatrist - Dr Patrick Morris for a more specialist opinion. 2. Prognosis- Due to length of time of illness and lack of resolution the depression is unlikely to significantly improve. Unlikely to be able to resume gainful employment."

[34]

Delegate committee decisions: quorum and nature of the decisions

In the ASOC, Mr Tambakeras asserts (in particular) that each decision was not made by the Trustee but by an allegedly delegated person or persons who had no power to make any such decision. In written and oral submissions, he argued that the first decision was improperly made by reason of the absence of a quorum of the IMC members at the 23 April meeting (and should be set aside), and contended that this meant that the second and fourth decisions were also improperly made and should be set aside. This contention was put on the basis that the second decision of the IC was a review of the first decision in the exercise of the IC's management and oversight responsibility over the IMC (rather than a fresh consideration and decision by the IC) and, if there was no valid decision of the IMC to maintain, the second decision by the IC was also invalid. He also submitted that it would follow that the fourth decision was improperly made as it was a review of the second decision (T40.1-41.49).
The Trustee's position is that any lack of quorum does not invalidate the first decision but, even if it did, the second decision (and the fourth) was a fresh decision made by the IC rather than a decision that merely confirmed the IMC's decision. It submitted that, as fresh decisions, the second and fourth decisions stood on their own and were not affected if the first decision was set aside due to a lack of quorum. The Trustee also submitted that the fourth decision is the key decision as it replaced the other decisions and acknowledged that if it is set aside and the Trustee is left to rely on the second decision (or first decision), Mr Tambakeras would have a good claim that the Trustee had failed to consider all relevant material (T117.3-6).
I have approached the matter on the basis that the IC's decisions were fresh decisions in relation to Mr Tambakeras' claim to a Disablement benefit and that each decision replaced the previous decision, such that the fourth decision became the operative decision of the Trustee. This reflects the position that was finally put by Mr Tambakeras (T68.45-47), correctly in my view.
In my opinion, a fair reading of the Trustee's letter to Mr Tambakeras dated 2 July 2015, together with the minutes of the IC meeting on 25 June 2015 and Ms Mackay's paper (presented to that meeting) make plain that, in reaching its second decision, the IC undertook a fresh consideration of Mr Tambakeras' claim for payment of a Disablement benefit. It did so by reference to all the material that was available to the IMC at the time of the first decision and other materials (as described at [120]). The outcome of that review was a determination by the IC that Mr Tambakeras was not, at the relevant times, permanently incapable of performing duties or engaging in employment for which he was reasonably qualified by training and experience and that his claim should be declined, consistent with the first decision of the IMC: MetLife Insurance Ltd v MX [2019] NSWCA 228 at [86] - [91] (MetLife).
If the first decision is invalid due to a lack of quorum, I accept there may have been no valid decision for the IC to monitor and oversee. However, I am not persuaded by Mr Tambakeras' submission that this means the IC's second decision (and fourth decision) was improperly made.
Mr Tambakeras had made a complaint to the SCT about the first decision, in essence, seeking for it to be reviewed. It was that complaint which led to the IC's review of the first decision, reconsideration of Mr Tambakeras' claim and the second decision to decline his claim. The IC's responsibilities and functions provided for it to consider and deal with complaints relating to declined claims for Disablement benefits under Division B of the Deed and any other decision made by the IMC: IC Charter as at 9 October 2014, cl 9(i). It follows, in my view, that the IC (as a delegate committee of the Trustee) was empowered to consider and deal with Mr Tambakeras' complaint and its decision that Mr Tambakeras did not qualify for a Disablement benefit was not improperly made, irrespective of any lack of quorum at the IMC meeting and no valid first decision for the IC to monitor and oversee.
As to whether there was a quorum on 23 April 2014, in my view, there is force to Mr Tambakeras' submission that there was an absence of a quorum at that meeting having regard to the terms of the IMC Charter in operation at that time (referred to at [49(d)] and [50] above). A quorum required two committee members to be present and Mr Zahra, who is recorded as one of only two IMC members present at the meeting, held a position (Manager - Member and Employer Administration) that did not, at that time, qualify for membership of the IMC: IMC Charter, cll 5 and 8.
I am unpersuaded by the Trustee's submission that the board resolution on 1 May 2014 which resolved to amend the IMC Charter to, amongst other things, update the composition of the IMC (to include the position held by Mr Zahra and as detailed at [50] above), should be construed as operating retrospectively with effect from 16 April 2014, the date on which the IC had considered and approved the changes and recommended approval to the Trustee's Board (T113.50-114.4). While the memorandum to the Trustee's Board and the minutes of its meeting record that recent changes to the Trustee's Executive Leadership team and Operations Business Units were reflected in the Charter, neither the resolution of the Board or the supporting documents include wording which suggests that it was intended that the Board's approval of the amendments to the IMC Charter would be retroactive, such that they would operate with effect at the time of the first decision meeting.
The absence of a quorum of the IMC at the first decision meeting was an irregularity that involved a failure by the Trustee to follow its own internal process for making decisions. As accepted by Trustee's Counsel, it would be open to the Court to set aside the first decision as not being one properly made for that reason. However, for the reasons set out above, I do not accept that a lack of quorum of the IMC on 23 April 2014 (and invalidity of the first decision for that reason) means that the second decision was improperly made by the IC and is of no effect. Nor would it vitiate the fourth decision, which was made by the IC on 8 February 2019 in response to Mr Tambakeras' request for a review of the third decision.
To the extent that it deals with Mr Tambakeras' claim for a Disablement benefit, in my view, the fourth decision also involved a review and reconsideration of the second decision. It was a new decision as it reconsidered Mr Tambakeras' claim for a Disablement benefit and determined to decline it on the basis that he did not meet the eligibility criteria. As identified by the reasons set out in the Trustee's letter to Mr Tambakeras dated 1 March 2019, the minutes of the IC meeting and Ms Devitt's paper (that was presented to the meeting), the fourth decision was based on consideration of all the material and submissions available to the Trustee, which included the materials on Diligent Boards relating to the first, second and third decisions and the additional submissions and report from Dr Senior sent to the Trustee by Mr Tambakeras on 19 November 2018.
In conclusion, while accepting the absence of a quorum at the meeting of the IMC on 23 April 2014 vitiated the first decision, I am satisfied that this does not affect the validity of the second and fourth decisions or the power of the IC to make those decisions. I approach the matter on the basis that the fourth decision replaced the second decision (which replaces the first decision) and, if Mr Tambakeras is successful in establishing errors made during the process of consideration that infected the fourth decision, then it and the other decisions should be set aside.

[35]

Legal principles: Trustee's duties

The relevant legal principles are not substantially in dispute. The parties accepted that the Trustee's decision-making duties are those referred to by Slattery J in Carroll v United Super Pty Ltd [2018] NSWSC 403 at [88] (Carroll): "In making its determination, a trustee has a duty to apply a trust fund, such as the Fund, in accordance with the trust deed, in this case the Deed: Finch v Telstra Super Pty Ltd (2010) 242 CLR 254; [2010] HCA 36 ("Finch") at [30] ff. It is also required to act in good faith, on a real and genuine consideration of the material before it, for the purpose for which it was conferred, for sound reasons where the trustee has disclosed reasons, although the Trustee is not obliged to give reasons for its decision: Hannover Life Re of Australia Ltd v Sayseng [2005] NSWCA 214 ("Sayseng") at [32] ff (per Santow JA). Where no reasonable person deciding whether to form the opinion required of the trustee could have reached that decision, a failure of good faith, a failure of genuine consideration, or a lack of proper purposes may be inferred: Sayseng at [33]. The ambit of any challenge to a trustee's decision is restricted to consideration of the material available to the trustee: Sayseng at [33]."
The Trustee was also under a duty to be properly informed of the relevant facts and its decisions may be reviewable for want of "properly informed consideration". As observed by the High Court in Finch, a case in which (like here) the trustee of Telstra's superannuation trust fund had to form an opinion about a member's capacity to work for the purposes of obtaining a benefit under the deed and also had a duty to distribute to those who fell within the relevant definition, the formation of such an opinion is not a discretionary decision but an ingredient in the performance of the trust duty, with the member to be regarded as a beneficiary of a trust rather than the object of a discretionary power: Finch at [30].
In Finch, the High Court stated at [66]: "… There is no doubt that under Karger v Paul principles, particularly as they have been applied to superannuation funds, the decision of a trustee may be reviewable for want of "properly informed consideration". If the consideration is not properly informed, it is not genuine. The 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. Here, for example, the applicant was claiming a Total and Permanent Invalidity benefit to support himself for the rest of his life. His claim depended on the formation of an opinion by the Trustee about the likelihood that he would ever engage in "gainful Work": that was not a mere discretionary decision. In the Deed there was a power to take into account "information, evidence and advice the Trustee may consider relevant", and that power was coupled with a duty to do so. It would be bizarre if knowingly to exclude relevant information from consideration were not a breach of duty. And failure to seek relevant information in order to resolve conflicting bodies of material, as here, is also a breach of duty. The Scheme is a strict trust. A beneficiary is entitled as of right to a benefit provided the beneficiary satisfies any necessary condition of the benefit. Whether or not it will be decided hereafter that, consistently with s 14 of the Complaints Act, the duty of a trustee in forming an opinion of the present type is a duty to form a fair and reasonable opinion, or even a duty to form a correct opinion, there is because of the importance of the opinion and its place in the Scheme a high duty on the Trustee to make inquiries for "information, evidence and advice" which the Trustee may consider relevant. …"
In Finch, the High Court affirmed Byrne J's opinion that the Trustee did not comply with its duty of inquiry (at [56] and [66]). At first instance, Byrne J considered that the trustee ought to have made further inquiries in view of the strength of medical evidence in favour of the applicant that he was unlikely ever to engage in gainful work again, rather than relying on evidence as to the claimant's work experience without any or very much inquiry as to its true nature.
Although the High Court left open the application of the principles in Karger v Paul [1984] VR 161 (Karger v Paul) to superannuation trusts, it has been said that they remain applicable, subject to the qualification in Finch: Wareham (as trustees of the Swanson Superannuation Fund) v Marsella (both personally and as executor of the estate of Marsella also known as Swanson) [2020] VSCA 92 at [61] (Wareham). In Karger v Paul, McGarvie J stated that the exercise of a discretion by a trustee will not be reviewed if the discretion is exercised in good faith, upon real and genuine consideration and in accordance with the purposes for which it is conferred: at 163.
The duty to give properly informed consideration in the context of superannuation funds was explained by Nettle JA (Redlich JA and Davies AJA agreeing) in Alcoa of Australia Retirement Plan Pty Ltd v Frost [2012] VSCA 238 (Alcoa), in the following terms: "[57] As has been seen, in Finch the High Court held that the duty of a trustee properly to inform itself is "more intense in superannuation trusts in the form of the Deed than in trusts of the Karger v Paul type". It follows 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". 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. …. [59] With respect, I entirely agree with his Honour. As the decision in Finch has enabled us better to understand, trustees of superannuation funds are no longer to be conceived of in the same way as custodians of charitable or family settlements through the exercise of whose absolute discretion settlors have chosen to channel their beneficence. The economic, industrial and ultimately social imperatives which inform the advent of the superannuation industry, not to mention that beneficiaries of the kind with which we are concerned in one way or the other invariably purchase their entitlements, are productive of legitimate expectations which the law will enforce. Superannuation fund trustees are bound to give properly informed consideration to applications for entitlements and, if that necessitates further inquiries, then they must make them." (citations omitted)
The extent to which a trustee ought to make further inquiries will vary with the circumstances of the case. The duty to make further inquiries does not oblige a trustee to inquire to a point of factual perfection or resolve all conflicts in information and should not be taken as suggesting that any conflict or lack of information before a trustee will oblige it to make further inquiry: Alcoa at [60]; Board of Trustees of the State Public Sector Superannuation Scheme v Gomez [2018] QCA 67 (Gomez) at [50]-[51].
Much will depend upon the significance of the lack of information or conflict in the information. Whether a lack of detail is so significant as to mean relevant facts cannot be ascertained and whether a conflict in information is so significant as to require further information to resolve it is a matter of degree. A conflict in information may be resolved without further inquiry where the overall information already available allows a properly informed choice to be made between rival sources of information: Gomez at [51], [56] and [57]. In circumstances where there is evidence of differences of opinion between doctors, the Trustee may be entitled to make a reasoned choice as to which opinion they prefer: Edington v Board of Trustees of State Public Sector Superannuation Scheme [2016] QCA 247 at [70] (Edington).
The duty to give properly informed consideration also means that it will usually be wrong for a trustee to move to refuse an application on the basis that a claimant beneficiary has an onus of proof and failed to put forward proof that is satisfactory to it. If a claimant puts forward material of substance in support of their claim that establishes a strong prima facie case of entitlement but the trustee regards it as insufficient for a properly informed decision, it is bound to make further inquiries: Alcoa at [46] and [60]; Gomez at [25].
A superannuation trustee also has a duty to act honestly, to exercise the same degree of care, skill and diligence as a prudent superannuation trustee would exercise and to perform its duties and exercise its powers in the best interests of beneficiaries: Superannuation Industry (Supervision) Act 1993 (Cth), ss 52(2)(a), (b), (c) (SIS Act). Those covenants and duties correspond with and do not add materially to the Trustee's general law duty to act honestly, exercise reasonable care, give real and genuine consideration and form a fair and reasonable opinion based on the material before it and act in the best interests of the fund: Manglicmot at [119]-[121; JD Heydon, MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) at [29-19], [29-20], [29-23] and [29-24].
A Trustee is not bound by the rules of natural justice although its duties of good faith and real and genuine consideration may entail making an inquiry of a person who is willing to provide information and providing them with an opportunity to comment on adverse information: Telstra Super Pty Ltd v Flegeltaub [2000] VSCA 180 at [30]; Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2015] QSC 245 at [57] (Edington QSC).
In Edington QSC, Bond J observed that the authorities did not require natural justice in the full sense although some attention to the requirements was part of fairness and reasonableness. His Honour adopted a similar approach (not disturbed on appeal) in assessing whether a trustee in a superannuation context had discharged the high duty of making inquiries and considered that a trustee's duty in a particular case may require the trustee to give the claimant a chance to address adverse information and an opportunity to respond to it, and that a failure to do so would amount to a failure to make appropriate enquiries: at [50] and [57].
Consideration of whether the Trustee breached its duties does not involve a general merits review of the decisions that were made and is limited to considering the material that was available to the Trustee and its delegate committees at the relevant times: Hannover Life Re of Australasia Ltd v Jones [2017] NSWCA 233 at [9].
The general rule where a trustee has failed to discharge its duties in considering a member's claim is to refer the matter back to the trustee for reconsideration: Carroll at [90], citing Hannover Life Re of Australia Ltd v Sayseng [2005] NSWCA 214 at [33] (Hannover Life v Sayseng). Capacity exists for the Court to step in and substitute its own decision with that of a Trustee if it is satisfied that the Trustee is unlikely to fulfil its duties to the claimant in a proper manner: Rapa v Patience; Gilberg v Maritime Super Pty Ltd [2009] NSWCA 325 at [34] (Hodgson JA, with whom Allsop P and Campbell JA agreed).
As already noted, the parties agree that the Court should step in and substitute its own decision as to whether Mr Tambakeras meets the definition of Disablement if it concludes that the decisions are of no effect.

[37]

Duty to give properly informed consideration

It was common ground that, as the Trustee was required to form an opinion as to whether Mr Tambakeras suffered from Disablement, its decisions may be reviewable for want of "properly informed consideration" and it was subject to a duty of the nature described in Finch (T138.7-14).
Mr Tambakeras submits that the Trustee breached its duty to give properly informed consideration of his application (which breach is common across the three decisions) by failing to properly inform itself and make further inquiries to resolve the inconsistencies in the body of medical evidence. He relies primarily on internal inconsistencies in Dr Ristuccia's opinions as to when Mr Tambakeras became incapacitated for work, which he says obliged the Trustee to make further inquiries of Dr Ristuccia. He also relies on the conflicts in the opinions of Mr Tambakeras' treating doctors (Dr Ristuccia and Dr Morris) as to when Mr Tambakeras became totally unfit for work, which he says the Trustee should have averted to and attempted to resolve by making further inquiries of those doctors. Finally, in written submissions, he referred to the inconsistencies in the medical opinions expressed on the one hand by Dr Morris and Dr Dinnen, and on the other hand, in the medical reports of Dr Vickery, Mr O'Neil and Mr Haralambous.
Mr Tambakeras submits that all the opinions cannot be correct and comfortably coexist and the Trustee cherry-picked aspects from within the conflicting material (namely from Dr Ristuccia's April 2013 Report and the WorkCover Certificates) that were supportive of the premise most favourable to the Trustee's own interests, which was in breach of its duties. He contends that the Trustee should have made inquiries with Drs Ristuccia and Morris with a view to reaching some understanding or resolution of the inconsistences, or the Trustee could have utilised its power under the Deed to arrange an independent medical examination of Mr Tambakeras, although he did not say it should have done both.
Mr Tambakeras places reliance on the IMC's decision on 13 November 2013 that considered and approved the release of the optional TPD benefit from Hannover. He submits that, in circumstances where the IMC clearly preferred Dr Morris' views as to when Mr Tambakeras suffered TPD and met the condition of release and the subsequent decisions on Mr Tambakeras' Disablement claim came to the opposite view, there must be real doubt as to whether then Trustee engaged with the material, including by recognising the issues of inconsistency (T171.26-41). He also referred to the Trustee's Procedural Fairness policy regarding ambiguous information (referred to at [147] above) (T108.41-49) and aspects of the Claims Philosophy. It was submitted that the Trustee's failure to make inquiries from Dr Ristuccia was not consistent with its policy and its preference for Dr Ristuccia's opinion over that of Dr Morris and its lack of reliance on Dr Teoh's report was contrary to aspects of the Claims Philosophy (outlined at [135]-[136] and [147] above).
Mr Tambakeras submits that the failure to make inquiries and resolve the inconsistences was a breach of duty in relation to both the first and second decisions as the material before the Trustee at the time of those decisions was effectively the same and flowed through to the fourth decision.
Mr Tambakeras also argues that the Trustee breached its duty to make a properly informed decision at the time of the fourth decision as Ms Devitt's memorandum to the IC failed to engage with the material raised by Mr Tambakeras in Maurice Blackburn's letter dated 19 November 2018, which included Dr Dinnen's May 2013 report that had not otherwise been provided to the Trustee in respect of Mr Tambakeras' Disablement claim. He also submits that the IC could not have made a properly informed decision as Ms Devitt's paper described Management's recommendation to give greater weight to Dr Ristuccia's opinion over that of Dr Senior by reference to the Claims Philosophy and Ms Devitt's statement was "entirely at odds" with the Claims Philosophy (T64.5-65.2).
The Trustee submits that there was no breach of duty to give properly informed consideration in the circumstances of this case. It argues that where there is a large array of inconsistent medical evidence (as there was in this case), a trustee is not obliged to seek further opinions from each doctor (nor seek more opinions) and it is sufficient to resolve the conflicts by making a judgement on the preponderance of evidence as to what is the more powerful or relevant material. It submits that it was unnecessary for the Trustee to seek clarification where there was a clear difference of opinion, including opinions which might contain errors apparent and readily inferred from reading the reports, and there was substantial information before the Trustee, relying on the observations in Edington at [70] and Gomez at [50]-[51] and [56]-[57].
The Trustee submits, in relation to the first two decisions, that there were limited inconsistencies on the material before the Trustee and it was entitled to rely on more contemporaneous medical certificates and Mr Tambakeras' own accounts as reflected in the medical reports and other lay evidence. It also takes issue with Mr Tambakeras' contention that it determined that he did not fall within the definition of Disablement based on a preference for Dr Ristuccia's opinions over that of Dr Morris, as it had a range of other material available from which, it says, it was apparent that any incapacity developed for reasons apart from his state of health, such as the stress and associated strain of job seeking. It submits that it was fair and reasonable for the Trustee not to place significant weight on Dr Morris' identification of February 2011 as the relevant date of incapacity.
The Trustee also submits that it was fair and reasonable not to prefer Dr Teoh's opinion and the decision by the IMC to pay out the TPD benefit from Hannover has no bearing on the decisions regarding Disablement.
As to the fourth decision, the Trustee submits that it acted fairly and reasonably by giving little weight to the opinion of Dr Dinnen that Mr Tambakeras was permanently incapable of working since 25 February 2011 as it was an ipse dixit assertion that largely parroted the question that he was asked and was to the opposite effect of much of the evidence before the Trustee and to Dr Senior, given he only assessed Mr Tambakeras in May 2018 (T145.17-28).
As the principles referred to at [185]-[196] make clear, the Trustee's duty to give properly informed consideration of Mr Tambakeras' claim imposed on it a high duty that extended to making further inquiries to resolve conflicting material, if such inquiries were necessary for the Trustee to be fully informed of relevant evidence: Alcoa at [60]; Gomez at [51].
Dealing first with Dr Ristuccia, I accept that the material before the Trustee includes some internally inconsistent opinions of Dr Ristuccia. In 2011, his opinions, as contained in the various WorkCover Certificates, were that Mr Tambakeras was capable and fit for work until 1 November 2011 (albeit for reduced hours until 5 July 2011). In the April 2013 Report, he opined that Mr Tambakeras became completely unable to work on 13 December 2011. A few months later, in his August 2013 letter to Hannover, he expressed the opinion that "Significant exacerbation of depression occurred on 25/02/2011 that resulted in Mr Tambakeras ceasing all work".
I do not consider that the difference between the first and second opinions as to the date on which Mr Tambakeras became unfit to work (namely, 1 November 2011 compared to 13 December 2011) is an inconsistency to be of significance as to warrant further inquiry on the part of the Trustee. In my view, the contents of these opinions would be understood to be generally consistent with and supportive of a finding that Mr Tambakeras was not permanently incapable of working assessed as at 25 February 2011, rather than a conflict that meant the Trustee was unable to ascertain the relevant facts for the purposes of making a properly informed decision.
At the hearing, the Trustee stated that Dr Ristuccia's August 2013 letter expressed an opinion that was inconsistent with other things that he had said (such as in the WorkCover certificates which do not record any exacerbation of depression or incapacity to work on 25 February 2011). However, it submitted, and I accept, that the apparent inconsistency did not necessitate further inquiry from Dr Ristuccia for the Trustee to comply with its duty to give properly informed consideration of Mr Tambakeras' claim. This is for the following reasons.
First, I am not convinced by Mr Tambakeras' submission that the August 2013 letter should be read as an opinion by Dr Ristuccia that Mr Tambakeras was unable to work at all from 25 February 2011 (T29.16-T29.19; T29.37-T30.6). In my view, Dr Ristuccia's statement expresses an opinion about the reason that Mr Tambakeras ceased working at the University rather than about Mr Tambakeras' capability to work on and from the date referred to more generally (such as for another employer). In that context, it seems to me that the opinion did not give rise to an inconsistency of the significance that Mr Tambakeras asserts or of the sort that was spoken about in Finch or Alcoa.
Second, there was a range of evidence available to the Trustee that was more contemporaneous and thus, more likely to be accurate and reflective of Dr Ristuccia's views, than the August 2013 letter. In particular, the opinions contained in Dr Ristuccia's 2011 WorkCover Certificates, which did not identify any change to Mr Tambakeras' capacity or fitness for work at the time of his redundancy and only referred to a "significant recent worsening" of his condition on and from 1 November 2011, were based on information provided by Mr Tambakeras (and which he certified was correct). The Integrait Report also refers to discussions with Dr Ristuccia in April 2011 to the effect that Mr Tambakeras was fit to work part-time but he expected that Mr Tambakeras could increase to full-time work in a couple of months. In my view, it was open to the Trustee to rely on that material as a way of resolving any apparent inconsistency raised by Dr Ristuccia's August 2013 letter.
Third, in addition to Dr Ristuccia's materials, there was evidence before the Trustee, including in the form of statements made by Mr Tambakeras and other doctors, which was consistent with and justified the weight placed by the Trustee on Dr Ristuccia's first two opinions, and also provided a basis on which the Trustee could resolve any appearance of inconsistency raised by Dr Ristuccia's August 2013 letter. Dr Vickery's and Mr O'Neill's reports record that Mr Tambakeras told them that he had been working three days per week at the time he accepted the redundancy and he had made multiple attempts to secure work, which he found stressful, and which had led to Dr Ristuccia certifying him as unfit from 1 November 2011. The reports from Drs Dinnen and Senior, to which reference is made below, are also generally consistent with Mr Tambakeras' self-report as to what happened after he accepted redundancy which led to him being certified as unfit for work at the end of 2011.
As to the conflict between Dr Ristuccia's April 2013 Report and Dr Morris' May 2013 Report, namely the different dates on which they opine that Mr Tambakeras became completely unable to perform all the normal duties for his occupation, in my view, there would have been force to Mr Tambakeras' submission if their reports comprised the only medical evidence before the Trustee at the time of the first and second decisions. In that situation, I would have been inclined to the view that further enquiries should have been made by the Trustee, along the lines of the approach of the Court in Alcoa.
Unlike the position in Alcoa and Finch, in this case, the Trustee had a large body of opinions (some of which are in conflict) from doctors, psychologists and allied health providers that dealt with the nature of Mr Tambakeras' condition and his capacity to undertake work. The summaries of those opinions to which I have referred above (at [92]-[96], [132] and [139]-[141]) make that plain.
On the critical question for the Trustee of whether Mr Tambakeras was suffering from a depressive disorder that caused him to be permanently unable to work on and from 25 February 2011, the doctors and psychologists were not evenly divided. At the time of the first and second decisions, Dr Morris' May 2013 Report was the only opinion before the Trustee that could be said to fully support the view that he was (noting my reasons at [217] as to Dr Ristuccia's August 2013 letter). Dr Morris' identification of February 2011 as the date on which Mr Tambakeras became unable to perform all the normal duties of his occupation is also somewhat at odds with his September 2013 letter to Hannover, which refers to Mr Tambakeras accepting a redundancy because he was finding it difficult to deal with the work stress because of his depression at the time, his depression worsening as a result of being unable to find work since accepting redundancy and not being able to return to work due to the severity of the ongoing depression. The references to worsening depression and an inability to work due to the severity of the depression (at the time of the report) are not inconsistent with Dr Ristuccia's first and second opinions and other material before the Trustee to which I have referred, to the effect that Mr Tambakeras was not incapable of working outside the University when he accepted redundancy and his mental health subsequently declined to a state where he was certified as unfit to work as a consequence of factors such as the stress and associated strain of job seeking.
In addition to the opinions from Dr Ristuccia, the Trustee had a body of other material before it that conflicted with Dr Morris' opinion. Mr O'Neill, Dr Vickery and Mr Haralambous each considered that Mr Tambakeras was fit for work and, in some cases, that he was not suffering from any diagnosable disorder or psychological pathology. The O'Neill Report concludes that Mr Tambakeras was, at the date of the report, fit for fulltime work and normal duties, refers to his doctor agreeing that he was fit for job seeking and states that it was uncertain whether he had a diagnosable disorder. The findings of the Vickery Report are that Mr Tambakeras did not suffer from any diagnosable psychiatric psychological condition as a result of a work related injury, he was not working due to disillusionment rather than due to any psychiatric incapacity and he was, at that date, fit to return to full time work in suitable duties. The Haralambous Report concludes that, at the time of the report, Mr Tambakeras did not have any objectively verifiable manifestations of diagnosable psychological pathology that was likely to limit his capacity for employment and that he was exaggerating and/or embellishing the negative psychological effects.
There was also information in Dr Dinnen's and Dr Senior's report that was not inconsistent with Dr Ristuccia's first and second opinions and Mr Tambakeras' self-report. Dr Dinnen referred to Mr Tambakeras looking for work after his redundancy, that he could not find anything and found he could not work in the same capacity as before. As to Dr Senior's report, it refers to Mr Tambakeras advising that, following his redundancy, his skills and knowledge were out-of-date and no longer competitive, as well as his current test findings that referred to psycho-social difficulties he faced in relation to his depression.
Having regard to the body of information available to the Trustee, I do not accept that the inquiries proposed by Mr Tambakeras were ones that the Trustee was required to make to comply with its duty to properly inform itself of relevant information and give properly informed consideration of Mr Tambakeras' application. It seems there would have been little point in making further inquiry of Dr Morris given the extent of the material that conflicted with his opinion and the views he had already expressed. As to Dr Ristuccia, the range of other material that was generally consistent with his opinions satisfies me that there was insufficient reason for the Trustee to believe that the opinions he expressed (and on which reliance was placed) were based on an inaccurate picture of Mr Tambakeras' state of health and capacity to work at the relevant times, such that a further inquiry from Dr Ristuccia was necessary. It is also difficult to see how an independent medical examination (which would have been undertaken more than two and half years after Mr Tambakeras had ceased working at the University) and further report would have assisted the Trustee in determining whether Mr Tambakeras was incapable of undertaking any work and if so, whether that incapacity was permanent, as at 25 February 2011.
As has been observed, the presence of conflicts in information is not remarkable in factual disputes: Gomez at [56]. In my view, the conflicts in information in this case were readily resolved without further inquiry as the overall information available to the Trustee allowed it to make a properly informed choice as between the various opinions. To determine whether Mr Tambakeras met the definition of Disablement, the material before the Trustee dictated a choice between, in essence, Dr Morris' opinion and the bulk of the other material that provided a generally consistent picture that aligned with Dr Ristuccia's opinions that Mr Tambakeras was not permanently incapable of working, assessed at the time he was made redundant from the University.
I am also unpersuaded that the IMC's decision to approve and release the TPD benefit from Hannover is significant and gave rise to an inconsistency of the nature that required further inquiries to be made or was indicative of a breach of duty by the Trustee to give properly informed consideration of Mr Tambakeras' claim. On my reading of Mr Gyss' memorandum, the material before the IMC was different from that which was before the IMC and IC for the first and second decisions, in that it was limited to the materials from Dr Ristuccia and Dr Morris and did not include the Vickery, O'Neill, Haralambous or Integrait Reports. Further, the decision to approve the release is, as the Trustee submitted, based on an assessment of permanent incapacity at the time the funds are to be released (namely, in late 2013), in contrast to Disablement, which the parties accept is to be assessed as at the date Mr Tambakeras ceased employment with the University.
As to Dr Teoh's Report, I do not consider that Mr Tambakeras has established any failure of duty on the part of the Trustee to make a properly informed or fair and reasonable decision, or that it was in breach of its own policy by not preferring Dr Teoh's report in the context where his opinion was more directed to a diagnosis of Mr Tambakeras' condition in 2014, the cause of that condition and his future prognosis.
As to Mr Tambakeras' criticism of the Trustee's approach to the fourth decision, that complaint is of a failure to properly consider Dr Dinnen and Dr Senior's reports and the other matters referred to in Maurice Blackburn's letter dated 19 November 2018, although it is not suggested that any further inquiries were required by the Trustee. It seems that underlying Mr Tambakeras complaint is an assertion that a different decision should have been reached based on the new evidence and the matters referred to in the letter, which is not a sufficient basis to set aside the fourth decision.
In any event, based on the evidence, I am not satisfied that Mr Tambakeras has established that the Trustee failed to properly consider those reports or give real and genuine consideration to his claim by making a reasoned choice between competing bodies of medical opinion and deciding to place greater weight on Dr Ristuccia's opinions over that of Dr Dinnen and Dr Senior.
In my view, the Trustee was entitled to place little weight on Dr Dinnen's opinion that Mr Tambakeras had been permanently incapable of working since 25 February 2011 in circumstances where he had not seen Mr Tambakeras since 2009, was prepared to respond to a question regarding his capacity as at 25 February 2011 almost verbatim with the words suggested to him by Mr Tambakeras' lawyers, and Dr Dinnen's response was in conflict with much of the evidence before the Trustee. Ms Devitt's memorandum to the IC in relation to the fourth decision may not have expressly referred to Dr Dinnen's report but it was contained in the materials on Diligent Boards and was considered by the same IC members present at both the third and fourth decision meetings.
The Trustee's letter to Maurice Blackburn and the contents of Ms Devitt's paper for the fourth decision also satisfy me that the Trustee had regard to Dr Senior's report and, acting fairly and reasonably, considered that the new information did not alter the decision to decline Mr Tambakeras' Disablement claim. Based on the material before the Trustee, that was a decision that was open to the Trustee to make, noting that Dr Senior's report was focused on a diagnosis of Mr Tambakeras having been referred to Dr Senior in relation to his Temporary Incapacity claim and Dr Senior did not express any opinion about Mr Tambakeras' state of health and capacity to engage in work at 25 February 2011 or in short to medium term thereafter.
I also do not accept that Ms Devitt's reference to the Claims Philosophy or her recommendation that preference should be given to Dr Ristuccia's opinions is indicative of a failure by the Trustee to give properly informed consideration of Mr Tambakeras' claim or that there was no proper basis for that recommendation.
The Claims Philosophy may be silent about whether the Trustee should place greater weight on contemporaneous material but there are other aspects that support Ms Devitt's reference to it and Management's view (and the Trustee's reasons) that greater weight should be placed on Dr Ristuccia's opinions than that of Dr Senior (and Dr Dinnen). For example, section 10 of the 9 January 2014 Claims Philosophy and section 4.8 of the 20 September 2018 Claims Philosophy states that the Trustee should place greater weight on opinions that are based on documented facts or observation and acknowledges that a diagnosis itself does not necessarily speak to the member's capacity.
In contrast to Dr Senior, Dr Ristuccia's opinions were based on regular observations of Mr Tambakeras over some years, recorded in contemporaneous documents and directed to Mr Tambakeras' capability for work. Considered in that light, the decision to prefer those opinions over Dr Senior was one that was reasonably open to the Trustee.
It follows that I am not satisfied that the Trustee breached its duty to give properly informed consideration of Mr Tambakeras' claim and that the decisions should be set aside for that reason.

[38]

Breach of good faith

Mr Tambakeras submits that the Trustee's duties of good faith and to form a fair and reasonable opinion incorporate an obligation to accord Mr Tambakeras procedural fairness in the consideration and determination of his claims. He submits that it failed to do so as it did not provide him with an opportunity to consider certain materials that were relevant to the Trustee's consideration of his claim.
Mr Tambakeras says that the Trustee should have provided him an opportunity to consider Ms Mackay's memorandum and her recommendations to the IMC in relation to the first decision, as it considered the issues raised and further medical reports (Dr Morris' December 2013 and Dr Teoh's 2014 Reports) provided by Adams & Co in their letter which responded to the Procedural Fairness Letter. He submits that, as the memorandum contained an assessment of Mr Tambakeras' evidence and formed part of the matrix of matters that the IMC considered, it was akin to the position of medical evidence, referring to Hannover Life v Sayseng. For similar reasons, he contends that the Trustee should have provided him with an opportunity to consider and respond to the summaries and recommendations in Ms Mackay's memorandum in relation to the second decision and Ms Devitt's paper in relation to the fourth decision.
Mr Tambakeras also submits that, prior to the first decision, the Trustee should have informed him about Dr Samuell's involvement in the consideration of his claim and provided him with the contents of Dr Samuell's letter to Ms Mackay (referred to at [98] above). This is particularly so as Dr Samuell's opinion, as the Trustee's Chief Medical Officer, carries weight in the light of his professional background and specialty (psychiatry) aligning with Mr Tambakeras' claim.
Mr Tambakeras argues that it was particularly incumbent on the Trustee to provide access to these materials as his ability to assess whether the Trustee's decisions had been made in accordance with its duties was compromised by the fact that it had no duty to give reasons.
In relation to the fourth decision, Mr Tambakeras also submits that the Trustee should have revealed the existence of the Claims Philosophy prior to that decision, as it appears to have prompted Ms Devitt to summarily discount evidence relevant to Mr Tambakeras' claim that came into existence in more recent years. He argues that the Claims Philosophy would have guided him as to what evidence would have been considered relevant to the Trustee's decision and assisted him in advancing his claim. In addition, Mr Tambakeras submits that, based on the Claims Philosophy in force at the time of the fourth decision which did not state that the Trustee should prefer contemporaneous medical evidence, there was no proper basis for Ms Devitt's statement to that effect and her preference for Dr Ristuccia's evidence over that of Dr Senior, which also constitutes a lack of good faith and breach of duty.
I accept the Trustee's submission that it was not obliged to provide Mr Tambakeras with its internal memoranda in relation to the first, second and fourth decisions or notify him of Dr Samuell's review of the draft assessment.
In my view, the materials and matters raised by Mr Tambakeras' submissions involve aspects of the Trustee's internal deliberative processes and proposed conclusions that were not required to be disclosed to Mr Tambakeras. They are in a different category to medical reports or adverse information to which the Trustee may have had access but did not provide to Mr Tambakeras in advance of the decisions for comment (noting that there is no evidence of such reports in relation to the first, second and fourth decisions): Edington QSC at [50] and [57].
The memoranda prepared by Ms Mackay and Ms Devitt and Dr Samuell's comments did not identify some critical fact, argument or piece of evidence which had not previously arisen. Mr Tambakeras had been notified that the Trustee was taking account of the materials to which Dr Samuell had access. The summaries, analysis and recommendations in the various memoranda dealt with those materials, as well as the matters and new evidence that Mr Tambakeras had asked the Trustee to consider. In view of the matters identified by the Trustee in the Procedural Fairness Letter (particularly the conclusion), the adverse recommendations drawn by Ms Mackay and Ms Devitt in their memoranda and the suggestions made by Dr Samuell to Ms Mackay do not seem to me to be conclusions which were not obvious or natural evaluations of the material known to or supplied by Mr Tambakeras: SZLPH v Minister for Immigration & Border Protection (2018) 266 FCR 105; [2018] FCAFC 145 at [38].
In those circumstances, to find that the Trustee needed to provide Mr Tambakeras with its internal memoranda, including Dr Samuell's comments, would be akin to obliging the Trustee to adopt an "open file" policy, an approach which, in my view, is not required by the Trustee's duties of good faith and real and genuine consideration or consistent with existing authority: Reavill Farm Pty Ltd v Burrell Solicitors Pty Ltd [2017] NSWCA 156 at [262]; Coutts v Close [2014] FCA 19 at [114] (Coutts).
As to the Claims Philosophy, as a matter of general principle, I would accept, that a party may be denied procedural fairness if policy considerations were fundamental to the process and of a nature that could be characterised as unexpected or not well known, and some practical injustice flowed as a consequence: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 at [37]. But in this case, I am not persuaded that the Claims Philosophy falls within that category or that the Trustee breached its duty by not making it available to Mr Tambakeras in advance of the fourth decision.
The Claims Philosophy may provide a guide as to how the Trustee might approach its internal decision-making process, but it was of a general nature that did not, in my view, raise any matters which may come as a surprise to Mr Tambakeras. This is particularly as he had been informed of the nature and content of adverse material that the Trustee was taking account of and the outcomes of the first and second decisions and reasons given in the Trustee's letters dated 24 April 2014 and 2 July 2015 made plain that the Trustee placed greater weight on the contemporaneous opinions from Dr Ristuccia, his treating doctor. Ultimately, the question is whether Mr Tambakeras was given a reasonable opportunity to address adverse information and issues that were critical to the Trustee's decision, and in my view, he was: Edington QSC at [50]; Coutts at [117].
Accordingly, I am not satisfied that Mr Tambakeras has established that the decisions should be set aside for breach of the Trustee's duties of good faith.

[41]

Does Mr Tambakeras qualify for a Disablement benefit under the Deed?

To qualify for a Disablement benefit, Mr Tambakeras must establish that he fell within the definition of Disablement and his employment at the University ceased because of that Disablement. The words "due to" in cl B.3.2(b) of the Deed require Disablement to be the cause of his cessation of employment.
There are three limbs to the definition of Disablement. There is no dispute that Mr Tambakeras was absent from employment due to depression for three months in the year before he accepted redundancy (the second limb) and no issue is taken in relation to the third limb. The issue is whether, based on all of the evidence, Mr Tambakeras satisfied the first limb, which states: "a state of health which, in the opinion of the Trustee, renders the Member permanently incapable of performing duties or engaging in employment for which they are reasonably qualified by training and experience"
The words "state of health" are suggestive of the overall physical and mental condition of the member (or well-being), rather than being limited to a specific injury or illness, although it seems implicit that the member's state of health (and consequential incapacity to work) would have some connection to the illness or injury that kept them absent from work given the wording of the second limb. The word "renders" also requires a causal connection between the state of health and the member's incapacity to work.
In my view, the expression "permanently incapable" imposes a higher test than "unlikely ever", as that term is commonly used in TPD policies, see for example, in TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at [89] (Shuetrim). The requirement for the incapacity to be permanent is quite emphatic (adopting the words of Giles JA in Manglicmot at [88] when describing a clause in not dissimilar terms) and is more analogous to "unable ever". It means an incapacity to work that is not "temporary" or "indefinite". Permanent requires that the incapacity to work caused by the state of heath currently exists and is one from which (on the balance of probabilities) the member will not recover.
The inability to perform duties or engage in employment is without distinction between work that is full-time or part-time. The only limitation is that the permanent incapacity relates to work for which Mr Tambakeras is reasonably qualified by training and experience: Hannover Life v Dargan at [46]; Manglicimot at [88]. Thus, if Mr Tambakeras was capable of working part-time in a role for which he was reasonably qualified at the time he ceased working at the University, he will not come within the definition of Disablement.
There was no issue at the hearing about the interpretation of the phrase "reasonably qualified by training or experience". I accept Mr Tambakeras' submissions that the concept of training encompasses both education and practical training, the clause directs attention to his vocational history at the time he ceased work and to occupations for which that vocational history fits and does not refer to work for which he might have physical and mental capacity without further training (Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913 at [34]-[36]) and the relevant question is not whether, in theory, he might obtain employment of the type that he is reasonably qualified for but the actual likelihood of obtaining paid employment of that nature given his state of health: Metlife at [128]; Ziogos v FSS Trustee Corporation as Trustee of the First Sate Superannuation Scheme [2015] NSWSC 1385 at [84].
It was common ground that the date on which to assess whether Mr Tambakeras' state of heath caused him to be permanently incapable of working is 25 February 2011, the date he ceased employment with the University. Unlike the definition of TPD in Finch and in other cases, Mr Tambakeras had to be absent from work while he was employed at the University, rather than during a period after he left. In that sense, and as he needs to prove he was permanently incapable of working (rather than unlikely ever), it seems to me to be a more difficult definition to satisfy.
Whether Mr Tambakeras ceased employment due to Disablement involves consideration of whether, as at 25 February 2011, he was incapable of working in any role for which he was qualified (if he was not, he does not come within the definition of Disablement) and, if he was not capable of working on that date, whether he would never be able to work again. Evidence as to how his medical condition progressed over time may be relevant to the Court's determination of whether, assessed at that date, his state of health rendered him permanently incapable of working: Shuetrim at [150]; McArthur v Mercantile Mutual Life Insurance Co Ltd [2002] 2 Qd R 197 at [74]; Finch at [18]. .
In assessing the evidence, I also note that a diagnosis of depression largely depends on self-reporting and on one view (and unlike a physical injury) it is more difficult to examine and assess, in an objective way, at a particular point in time. It has also been observed that, as a matter of common knowledge, a number of mental illnesses, though perhaps amenable to treatment, tend to be of lengthy duration and it is difficult to predict with any certainty whether, and if so when, any treatment will be effectual: Cullinane v Mercer Benefit Nominees Ltd [2006] FCAFC 82 at [67].
In light of the above, and based on a consideration of all the evidence and the parties' submissions, in my view, Mr Tambakeras has failed to establish that he satisfied the definition of Disablement and ceased his employment with the University for that reason.
I accept that the evidence establishes that Mr Tambakeras was suffering a psychological condition from at least 2009 and had depression at the time he ceased working with the University. While the cause of that condition is not a significant issue in this case, it was accepted by the Trustee that Mr Tambakeras got bullied in obviously highly unfair ways by his supervisor which negatively impacted his mental health and lead to him being certified as only capable of performing duties on reduced hours and, by the end of 2011, with those duties to be undertaken from home (T126.31-41; T127.35-39). The evidence makes clear that he did not have any past history of mental illness.
I am satisfied that the evidence establishes that Mr Tambakeras' redundancy came about, in large part, because of his state of health, in the context where the University determined that there were no duties which he could perform within the part-time and working from home restrictions referred to in Dr Ristuccia's medical certificates.
Mr Tambakeras' evidence, which was not challenged on cross-examination, is that he did not feel well enough to work in the lead up to accepting his redundancy due to his mental health, which is not inconsistent with Dr Morris' opinion that Mr Tambakeras was suffering from a major depressive disorder from August 2010 and was completely unfit for duties from February 2011. However, for the reasons I will come to, I am not persuaded to accept Dr Morris' opinion as evidence that demonstrates that Mr Tambakeras accepted redundancy because he could not cope with the psychological condition that he was suffering and was permanently incapable of working at that time.
Mr Tambakeras' evidence that he did not feel well enough to work in early 2011 and did not want to be in the office at that time may be supported by the leave records, which indicate he was on leave in the month prior to formally accepting redundancy. But, in my view, that leave is also explicable, by the holiday period at that time of year and the fact that he was aware of the redundancy. It is also inconsistent with Dr Ristuccia's WorkCover certificates that certified him as fit to work part-time during that time (which Mr Tambakeras had signed).
During the 12 months leading up to the cessation of his employment, Mr Tambakeras had been increasing his work hours. A report from Mr Fischer in August 2011 refers to Mr Tambakeras feeling unsafe with regards to his supervisor and the work-situation being very difficult (CB598). But it also records the possibility of Mr Tambakeras working in another section and, in that setting, he "would be able to work full-time". While that did not occur, it is contemporaneous evidence that supports a finding that Mr Tambakeras' psychological condition and depression at that time did not render him permanently incapable of working.
Dr Morris' 13 July 2012 report refers to reviewing Mr Tambakeras on 26 November 2010 (he refers to 2011 but, in the context, I take it to be a typographical error) who was very upset after receiving an offer of redundancy and had described his work situation as very depressing. The report notes that Dr Morris reviewed him again on 21 December 2010, on which occasion Mr Tambakeras told him that he had been off work since 10 December 2010 as the University had said there was no work for him to do. While reporting that he was not sleeping well, Dr Morris' report does not refer to Mr Tambakeras reporting being unable to work due to his health or that Dr Morris considered that he was incapable of working at that time.
When Dr Morris saw Mr Tambakeras next, on 4 March 2011, Mr Tambakeras had accepted the redundancy and was looking for work. He reported feeling tired with reduced energy and motivation, still seeing a psychologist three times a week, receiving medication to help with sleep and having enjoyed a two-week holiday in Bali. Dr Morris continued to see Mr Tambakeras and on 17 May 2011, he was looking for work but was unsuccessful and on 1 July 2011 he reported being "not well". That is consistent with other evidence to which I have referred. Dr Morris' report indicates that Mr Tambakeras' state of health was negatively impacted by his lack of success in job seeking and records that he continued to have difficulty in finding work and was consequently disappointed until 21 October 2021, when he records Mr Tambakeras being "very depressed" and commencing him on another medication.
Dr Morris reviewed him again on 27 January 2012, 21 March 2011, 2 and 18 May 2012, 8 June 2012 and in August 2010, in which he records that he was still very depressed and that he had changed (retrospectively) his diagnosis from an adjustment disorder to major depressive disorder.
Relevantly, in this respect, Dr Morris does not express any opinion as to Mr Tambakeras' capacity to work at the time he ceased working at the University and refers to his diagnosis of major depressive disorder being precipitated by the stresses suffered at the University and being aggravated by his lack of success in finding other employment. He records that his prognosis was not particularly good, a reference to his psychological condition, rather than Mr Tambakeras capacity to work.
In relation to the question of whether Mr Tambakeras was permanently incapable of working, assessed as at 25 February 2011, there is also evidence that he was not suffering any disorder, was fit for work and had exaggerated his symptoms (outlined above at [94]-[95]). The tests administered showed inconsistent responding and over-reporting, although a later report from Dr Senior (referred to at [141]) raises doubts about the reliability of Haralambous' Report. In the absence of any oral evidence from the doctors, it is difficult to assess the competing opinions, noting that they are based in large part by what they were told by Mr Tambakeras. Ultimately, I am not persuaded that I can simply accept Dr Morris' opinions over the other contemporaneous evidence to find that in February 2011 Mr Tambakeras' state of health rendered him permanently incapable of performing duties and engaging in employment.
In my view, the opinions expressed by Dr Ristuccia, as Mr Tambakeras' treating general practitioner, in the WorkCover certificates is powerful evidence that, assessed at the time he left the University he was fit to work in a part-time capacity, and I prefer these opinions and his May 2013 Report to Dr Morris' opinion. Dr Ristuccia's WorkCover certificates provided contemporaneous opinions, directed to the relevant time. In contrast, Dr Morris' opinion in his May 2013 Report seems to be an expression of when Mr Tambakeras actually ceased working, rather than an assessment directed to Mr Tambakeras' capability of working and fitness for duties at the relevant time. Further, Dr Morris answered February 2011 in response to a question framed as "when did the claimant become completely unable to perform all the normal duties of his… occupation" rather than a question framed using the term "permanently".
I also note that the contents of Dr Morris' May 2013 Report which, if taken to refer to Mr Tambakeras not ever being able to return to work, is seemingly inconsistent with the Integrait Progress Report dated 12 March 2012 that records Dr Morris reporting that Mr Tambakeras would be able to return to full-time work but could not provide a timeframe and deferred to his treating psychologist, who at the time was Ms Cantali. According to that report, Ms Cantali agreed to a goal of changing Mr Tambakeras' certificate to fit for suitable duties, with a view to a transition to full-time paid work.
In my view, the evidence overall demonstrates that Mr Tambakeras' state of health deteriorated after he left the University and his depression was negatively impacted by his inability to obtain work during 2011 (see, in particular, the evidence referred to at [92], [93], [272]). I do not consider that I can infer from the contents of the Integrait Report (which refers to Mr Tambakeras' negative worldview, desire to isolate himself and his passive approach) and the Section 40 Assessment Report (which refers to his interview presentation as a possible significant factor in why he is not obtaining second interviews) that Mr Tambakeras' depression was the cause of his inability to obtain and engage in employment at that time. Based on the self-reports made by Mr Tambakeras (as referred to at [139]) and the Section 40 Assessment Report, it is equally open to conclude that he was unable to secure employment because he had been out of the market and was unwilling to apply for jobs outside of architectural drafting despite his qualifications and experience being relevant to other areas of drafting and facilities management, factors which may be unrelated to his state of health and capacity to work.
Mr Tambakeras had been working at the University part-time in the period prior to accepting redundancy on 25 February 2011 (albeit at reduced hours) notwithstanding he had depression and subsequently sought work in various companies. This seems to me to be indicative of a person who was (and saw themselves as) capable of working outside the University (albeit initially on reduced hours). It seems that if Mr Tambakeras had been offered a position with another employer, then he would have accepted it and resumed working. The evidence does not suggest otherwise.
I am satisfied that Mr Tambakeras is now and has been since at least 2013, permanently incapable of working due to a major depressive disorder. The report from Dr Parmegiani (an independent doctor who prepared a report for the Workers Compensation Commission) is particularly persuasive on that issue and I accept it. The later reports from Dr Dinnen and Dr Senior are consistent with this finding in respect of later years. Dr Parmegiani's report also refers to Mr Tambakeras' health and function having deteriorated since January 2013, consistent with the finding that his state of health was in decline.
I cannot exclude the possibility that Mr Tambakeras was permanently incapable of working from November 2011. Such a finding is consistent with Dr Ristuccia's WorkCover Certificates and Dr Sharah's report, which records a rating of 18% on the Psychiatric Impairment Rating Scale and a total impairment of 22%.
The critical question is whether I am satisfied that the evidence establishes that Mr Tambakeras left his role at the University because his state of health, assessed as at 25 February 2011, caused him to be unable to work at all, including for another employer, at that time and forever more. For the reasons set out above, I am not persuaded that it does.

[42]

Legal principles

The principles to be applied in construing a superannuation trust deed were summarised by Keogh AJA (Tate and Santamaria JJA agreeing) in FSS Trustee Corp v Eataugh [2017] VSCA 218 at [61] in the following terms: "A superannuation trust deed is a commercial document and should be given a business like interpretation, which requires attention to be paid to the language used in the deed, the commercial circumstances which the deed addresses, the context in which it operates and the objects it is intended to secure. [Hannover Life Re of Australasia Ltd v Colella (2014) 47 VR 1 at 4 [3]] It is necessary to consider what a reasonable person would understand by the language used in the deed and the rules. [Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 179 [41] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).] The Rules must be interpreted to give the words used their ordinary and fair meaning. [McCann v Switzerland Insurance Australia Ltd (2000) 176 ALR 711, 725 [74] (Kirby J)] When questions arise as to the meaning of words used in the Rules they are 'to be answered in a practical and realistic way, not in a way which adopts an overly fine or theoretical approach that is alien to commercial agreements.'[Ibid 729 [81] (Kirby J)] The words or terms used are to be understood in the context and in relation to the circumstances in which they are used. [Apple & Pear Australia Ltd v Pink Lady America LLC (2016) 343 ALR 112, 147-8 [118] (Tate JA), 178 [229] (Ferguson and McLeish JJA).] A practical and purposive approach should be applied to the interpretation of superannuation schemes. [Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd (2002) 174 FLR 1, 54 [215] (Warren J)]."
The approach of construing the documents that constitute a superannuation fund in a practical and purposive way was also endorsed by Bathurst CJ (Macfarlan and Gleeson JJA agreeing) in Commonwealth Bank Officers Superannuation Corporation Pty Ltd & Anor v Beck & Anor [2016] NSWCA 218 at [89].

[43]

Does cl 51.2 operate as a bar to Mr Tambakeras' claim?

The Trustee submits that, in circumstances where Mr Tambakeras first made his claim on 14 May 2013 (more than two years after the date on which any benefit could have commenced), the two-year limitation period imposed by cl 51.2 acts as an absolute bar to his Disablement claim in the absence of a determination by the Trustee of "such further period". It submits that cl 51.2 does not involve any exercise of discretion as the wording of the clause is mandatory in nature, providing that, if a claim is not made and established to the Trustee's satisfaction within the relevant period, the benefit "will be retained by the Trustee for the general purposes of the Fund. It also submits that, as Mr Tambakeras' claim was not made and established within the relevant two-year period, there was no requirement on the Trustee to make any determination to identify any relevant and different periods, such that there is a lack of any discretionary component within the clause (T199.5-32).
The Trustee says that this construction reflects the purpose of cl 51.2(a), which is to limit the time in which the Trustee and the assets of the Fund are exposed to a claim in order to achieve a balance between individual Fund members and the Fund as a whole, and to ensure that claims are brought promptly so as to enable the Trustee to manage assets which are held for the benefit of all Fund members.
Mr Tambakeras submits that, having regard to the language, context and purpose of cl 51.2, it does not operate as a complete bar in the manner contended by the Trustee, and that the Trustee is obliged to consider whether to exercise its discretion to permit his claim that is otherwise brought out of time if the Trustee determines he is within the Disablement definition. On this aspect, I agree with Mr Tambakeras' submission.
Clause 51.2 addresses the circumstances where a member fails to make and establish a claim under the Deed within the two-year period proscribed. The plain language of the clause means that, having not made and established his claim to the Trustee's satisfaction by 25 February 2013, prima facie, any benefits to which Mr Tambakeras was entitled ceased to be payable.
However, that position is subject to the Trustee exercising its discretion to extend the time for Mr Tambakeras to make and establish his claim, and a determination by the Trustee to reinstate all or part of his benefit or other amount which would be payable to him but for the operation of that clause. In my view, those matters involve discretionary powers on the part of the Trustee which it must consider whether to exercise in circumstances where Mr Tambakeras has made a claim for benefits under the Deed.
The discretionary power given to a trustee to act (or not) in a specified manner imposes a duty on that trustee to at least consider the matter and decide deliberately whether to exercise the power: Lutheran Church of Australia South Australia District Inc v Farmers Co-operative Executives and Trustees Ltd (1970) 121 CLR 628 at 652. In Karger v Paul, McGarvie J referred to this (at 164), where His Honour said: "I regard it as an inherent requirement of the exercise of any discretion that it be given real and genuine consideration. To borrow a phrase from passage quoted in Partridge v Equity Trustees Executors and Agency Co Ltd (1947) 75 CLR 149, at p 164, there must be the "exercise of an active discretion". It has been held that when the occasion for the exercise of a discretionary power has arisen, trustees, while not bound to exercise the discretion, are bound to consider whether it ought in their judgment to be exercised: Klug v Klug [1918] 2 Ch 67; In re Gulbenkian's Settlement [1970] AC 508, at p. 518."
Recently, the principle that a trustee must consider whether to exercise a discretionary power was reaffirmed in Owies v JJE Nominees Pty Ltd (in its capacity as the trustee for the Owies Family Trust) [2022] VSCA 142 at [98], where the Victorian Court of Appeal stated: "where there is a discretionary power, the trustee must turn its mind to whether to exercise the power…"
It follows, in my view, that when Mr Tambakeras made a claim for benefits under the Deed outside the two year period provided for in cl 51.2, the Trustee was obliged to consider whether to exercise its discretionary powers under cl 51.2 to extend the period in which his claim may be made and established to the Trustee's satisfaction and, if the claim is made out, to reinstate all or part of the benefit or other amount to him. In other words, cl 51.2 does not act as an absolute bar to Mr Tambakeras' claim as the Trustee submits, but subjects the Trustee to an obligation to turn its mind to whether it will exercise the discretionary powers given to it under the Deed if such a claim is made.
This construction is consistent with the underlying purpose of the Fund and the nature of the Trustee's obligations, which is to act in the best interests of beneficiaries, and its role as a fiduciary that is required to make decisions which may lead to payments of money, none of which is owned beneficially by the Trustee: Shuetrim at [187].
Accordingly, if I had set aside the decisions and found that Mr Tambakeras was entitled to a Disablement benefit, I would have concluded that cl 51.2 of the Deed was not an absolute bar to his claim and the Trustee was obliged to consider whether to exercise its discretion to extend the period for making and establishing his claim and reinstate all or part of his benefit.
Finally, I note that neither party referred to cl 22 of the Deed which provides: 22. Absolute discretion of the Trustee "All authorities, powers and discretions of the Trustee under this Deed may be exercised, or not exercised, at the absolute discretion of the Trustee (unless expressly specified otherwise)."
An absolute discretion may be reviewed on the grounds explained in Karger v Paul, which includes the duty to exercise discretions upon a real and genuine consideration: Wareham at [90]-[91]. Thus, in this case, it seems that despite cl 22 of the Deed, the Trustee would have been obliged to consider whether to exercise its discretionary powers under cl 51.2.

[44]

Does cl 41.2(c) entitle the Trustee to reduce Mr Tambakeras' benefit by the Consent Judgment sum?

This issue raises a question of construction of cl 41.2(c) of the Deed (referred to at [44] above) and concerns what amounts the Trustee may, in its discretion, offset against a Disablement benefit payable to Mr Tambakeras.
The parties are agreed that Mr Tambakeras' weekly workers compensation payments fall within cl 41.2(c). It is also common ground that, for the purposes of cl 41.2(c), the common law damages received by way of the Consent Judgment is an amount payable to Mr Tambakeras in respect of his Disablement.
The dispute is whether the Consent Judgment sum is an amount payable to Mr Tambakeras in respect of his Disablement under: 1. any legislation dealing with workers compensation and similar payments: cl 41.2(c)(i); (or) 2. any award or agreement relating to Mr Tambakeras' employment with the University: cl 41.2(c)(ii).
The Trustee's primary position is that the Consent Judgment is an amount payable "under any legislation dealing with workers compensation", or alternatively, as "similar payments".
It submits that the word "under" should be construed broadly as including "governed, controlled or bound by; in accordance with", referring to the statement by Warren J in BTR Engineering (Australia) Ltd v Dana Corp [2000] VSC 246 at [24], as referred to by White J in Buswell v TAL Life Ltd (2018) [2018] NSWSC 1507 at [34] (Buswell). It submits the Consent Judgment sum represents work injury damages, the quantum and receipt of which are controlled by ss 151G and 151I of the WCA and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) (T153.44-T154.11, T154.50-T155.11, T156.20-25, T156.45-8).
If the Consent Judgment sum is not an amount payable under the WCA, then the Trustee says it comes within the expression "similar payments" as it is "similar" to payments under the WCA, in the sense that common law damages represent compensation for the loss of the capacity to earn income, which is a payment of the same nature as the payment of statutory weekly compensation. The Trustee argues that "similar payments" capture those that are similar to payments made under workers compensation legalisation (rather than payments under the legislation itself) and relies on the use of the expression "similar payments" together with workers compensation in the definition of "Salary" in the Deed as suggesting that this is the intended meaning of "similar payments (T157.10-T158.12).
The Trustee submits that if the Consent Judgment sum does not fall within cl 41.2(c)(i), it is properly characterised as an award of damages, as it is a payment of a "Judgment for the plaintiff" (as described in the Consent Judgment), or alternatively, it is a payment under an agreement that relates to Mr Tambakeras' employment with the University.
The Trustee submits that its construction is supported by the language and purpose of the Deed and is practical, referring to the structure of cl 41 that provides the Trustee with the ability to reduce benefits payable if amounts relating to the exercise or non-exercise of working capacity are received by the member. It submits that the clear purpose of cl 41.2(c) is to permit the Trustee to reduce the benefits payable if an amount is payable in respect of the member's Disablement or Temporary Incapacity, and that common law work injury damages satisfy that test. It also submits that such a construction accords with the purpose of the Deed, noting that it applies to a large number of members whose interests are best served by fairly representing the loss occasioned by Disablement or Temporary Incapacity not being paid where they are relevantly compensated for their incapacity to work from another source.
As to the first condition, I accept Mr Tambakeras' submission that as the source of the right to claim work injury damages is the common law, a payment in satisfaction of that right is not a payment "under any legislation dealing with workers compensation": Buswell at [14] and [48]. The WCA may recognise and preserve the remedy to claim for "modified common law damages" and modify what may be available at common law, and the WIM Act may control the procedures necessary to be invoked to recover common law damages, but an amount received by way common law damages is not, in my view, payable under that Act.
While there is force to the Trustee's submission that the purpose and context of the clause might support a broad interpretation, I consider the better construction that reflects what an ordinary business person would understand the clause to mean is that the words "under any legislation dealing with workers compensation" are directed to payments that the member receives as provided for by legislation, such as the WCA, and does not extend to an amount that is received pursuant to a claim brought by the member for modified common law damages: Buswell at [39].
In relation to "similar payments", Mr Tambakeras submits that it should be read as payable under "legislation relating to similar payments" (such as s 47 of the Motor Accidents Compensation Act which deals with payments in respect of lost earnings relating to a disability) (T180.39-T181.21). He submits that the payment of work injury damages is not a similar payment to a payment under the WCA notwithstanding they both arise out of an injury in the workplace because the entitlement, amount and length of payments under the WCA are controlled by that Act, in contrast to the lack of statutory control as to the amount that can be awarded for work injury damages (T181.43-T182.47).
On this issue, I also prefer Mr Tambakeras' submission. While accepting that there is some awkwardness in the drafting, in my view, on the better construction of the clause, the phrase "similar payments" does not extend to a lump sum payment received by way of a consent judgment arising from a common law damages claim. This is because that the Consent Judgment amount, though similar to workers compensation in the sense that it seeks to compensate for the loss of the capacity to earn income, is not payable to Mr Tambakeras under any legislation.
In my view, the words "payable… under… any legislation" are to be read so as to condition "similar payments" as referred to in cl 41.2(c)(i). In other words, the concept of similarly in the clause is directed to payments that are similar in nature to workers compensation but also have some statutory source and are payable under legislation. If, as the Trustee submissions suggest, the object of the clause is to allow the offsetting of a payment similar to workers compensation that was not made under legislation, the drafter could have included a new sub-clause to deal with such payments.
As to cl 41.2(c)(ii), in my view, the references to "award" and "agreement" in cl 41.2(c)(ii) are directed to payments under industrial instruments, awards or agreements, akin to the University of Sydney Enterprise Agreement which sets out a method for calculating entitlements for staff who are made redundant by reference to their salary, as Mr Tambakeras submits. A consent judgment merely gives effect to an agreement to settle and does not, without more, amount to an award of damages or agreement in respect of employment: Newcrest Mining v Thornton (2012) 248 CLR 555; [2012] HCA 60 at [29].
In conclusion, I accept Mr Tambakeras' submission that, on a proper construction of cl 41.2(c), the Consent Judgment sum does not fall within cl 41.2(c) of the Deed such that the Trustee may reduce Mr Tambakeras' Disablement benefit by that amount.
Finally, I should record that if the Consent Judgment sum fell within cl 41.2(c), then I would have been inclined to refer the matter back to the Trustee to consider whether to exercise its discretion in accordance with that clause having regard to the further information received during the course of the hearing in relation to the costs of the District Court proceedings, rather the Court stepping in and making a decision on that issue in place of the Trustee. Costs and orders
As I have concluded that Mr Tambakeras has failed to establish that the second and fourth decisions are void and of no effect and that he has any entitlement to relief, I will order that the ASOC be dismissed.
Given the outcome, I see no reason why the usual order that costs follow the event should not apply and propose to make an order that Mr Tambakeras pay the Trustee's costs of these proceedings. However, as they have not addressed the Court on costs, I have deferred entry of the proposed order for 21 days to enable any party to make an application if they consider that a different order should be made. In that event, the party seeking a different costs order should confer with the other party and, before the orders take effect, notify my Associate by email of the costs order sought together with a short outline of submissions (of no more than two pages) and an agreed date for submissions in response, with a view to the issue of costs being determined on the papers.
For these reasons, I make the following orders: 1. Dismiss the plaintiff's Amended Statement of Claim. 2. Unless a party makes an application for a different cost order within 21 days, the plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis as agreed or assessed.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (46 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (40)

Cited By (1)