Tuftevski v Total Risks Management Pty Ltd

13 On 24 March 1999 the plaintiff submitted an Application for Disablement Benefit to the Fund.

The First Decision - 15 November 1999 On receipt of the plaintiff's application the Trustee sought a report from the plaintiff's doctor, Dr Manohar and wrote to BHP Integrated Steel Division (BHP) requiring the enclosed Notification of Disablement Claim Form to be completed by the appropriate Human Resources Officer involved with the employee's termination of employment. It was stated: "The purpose of this form is to obtain a clear picture of the employee's work history and abilities. To successfully complete this form it is necessary to consult with the member's supervisor, foreman, Manager, OH&S, rehabilitation officer, Workers' compensation officer and pay officer."

Dr Manohar, in his report of 22 April 1999 to the Trustee, stated that he initially assessed the plaintiff on 26 February 1998 and that his presenting problem was low back pain. Dr Manohar recorded that the plaintiff had stated that he initially hurt his back in February 1985, that he was treated by John Bannister and was helped with an infiltration, that he was on permanent light work and a Technical Officer for BHP. 14 I interpolate that John Bannister was a well-known orthopaedic surgeon who frequently gave evidence in the 1980s in NSW Courts in cases involving lower back injuries and his treatment of them. Infiltrations were common in the 1980s. 15 Dr Manohar further recorded that the plaintiff told him that the back pains had been worsening, the pain was felt in the lumbo sacral region, his back had stiffened up and remained so for two weeks with no particular provoking factor, that the frequency and duration of his symptoms were increasing, that he currently had pain aggravated by bending, lifting, reaching, grasping, twisting, standing and sitting. 16 Dr Manohar detailed the results of his examination. The doctor also saw the plaintiff on 21 March 1998 and 11 August 1998. On the latter occasion, Dr Manohar found that the plaintiff's spinal movements were quite restricted. When Dr Manohar saw the plaintiff on 22 April 1999, the doctor recorded that the plaintiff stated that he still had back ache and was unable to work. 17 Dr Manohar wrote: "The CT scan definitely shows an L4/L5 posterior disc protrusion and an L5/S1 protrusion.

He has a hypomobile lumbar spine and decreased spinal muscle strength.

He has a disc lesion. He is hypomobile. He has been awarded the invalid pension. The likelihood of his working under these conditions is quite remote." 18 The Notification of Disablement Form states that the BHP Officer coordinating the completion of the form was John Williams, Senior Human Resources Consultant, Employee Relations - BHP Flat Products. He appears to have completed most of the form. It is recorded that BHP was aware that the plaintiff had a medical condition that affected his ability to work. The date of the accident is noted as 23 February 1985 and that BHP had accepted the member's claim and settled it. 19 The form completed by BHP and signed by Mr J Williams states that the plaintiff ceased actively attending work and his employment was terminated on 30 November 1998. Under the heading "Reason for Termination of Employment" the box ticked was "Voluntary Redundancy". There was no tick or other marking in the box beside "Retirement by reason of Disability". This is to be contrasted with the Form headed "Leaving Service Details" completed by the plaintiff's employer, which ticks the boxes marked "Retrenchment" and "Ill health/disability". That form was sent by the employer to BHP Superannuation Fund (BHP Billiton Superannuation Fund) at about the time the plaintiff left BHP. 20 The duties performed by the plaintiff as Technical Engineering Officer were described and they were light duties. 21 In answer to a series of questions it was stated by mean of ticking boxes that: a) the position held by the employee at the date of termination was not a temporary modified position created to accommodate the plaintiff's illness/injury; b) the plaintiff's termination position was a bona fide position with the BHP Workforce; c) the position was to be filled by another person (not suffering from illness/injury); and d) the plaintiff was capable of performing the duties normally required of the position at the date of termination to an acceptable standard. 22 This statement was added: "Mr Tuftevski had never asked if he could be found an alternate position - if he had a search would have begun. The requirements of his existing position are similar to many other positions so it is quite likely that he would have been able to perform other roles." 23 An important section of the Form was not completed because the plaintiff's immediate supervisor was on extended leave. It asked questions as to the plaintiff's performance of his duties, for example, whether he was performing his duties with minor difficulties, with difficulties, with no known difficulties or not capable of performing most of his duties. Mr Williams provided this further information: "Mr Tuftevski left of his own volition and was performing the inherent requirements of the position at time of departure.

He had been previously counselled about his absenteeism at which time he was specifically asked if his complaint was aggravated by his duties. He denied this was so and denied that his inability to do his duties contributed to his absenteeism.

Mr Tuftevski was also counselled by management about his decision to leave the company after an approach to management by a relative who thought he was making the wrong decision. He had gone through the motions of leaving the company on several previous occasions but had always changed his mind at the last minute (for example, see attached).

During the course of his employment at the lab he had been on restrictions from time to time. Some time ago (no records in dept) there was a review of his workplace as to suitability and he attended a back care program. It is believed that he was previously involved in manual labour work outside BHP performing concreting and tile work." 24 The source of Mr Williams' apparent knowledge was not stated. The plaintiff pointed out that his personal circumstances relating to the 1992 incident were known to his employer. He was leaving to look after his wife who was still distressed by the earlier loss of a child and who informed him after he had first handed in his resignation that she was again pregnant and did not want him to leave work. The facts or source of information for the belief in the last sentence of the passage quoted are not stated, nor when he is alleged to have been performing concreting and tile work. 25 After receipt of the completed form, the defendant wrote to Dr Victor Hadlow, Consultant Orthopaedic Surgeon, requesting that he examine the plaintiff and report on his medical condition at the date he ceased employment. The defendant advised that the plaintiff was employed at the Integrated Steel Division as a Technical Engineering Officer at the time of ceasing employment on 30 November 1998. The letter of instructions asked Dr Hadlow to cover some 12 areas, including prognosis of the injury, his opinion of the plaintiff's work capacity for both physical duties and sedentary/clerical type duties and whether the employer's assessment of the plaintiff's ability to perform his duties/alternative duties as indicated in the enclosed Notification of Disablement Claim is consistent with his examination. 26 Dr Hadlow wrote on 31 July 1999 that he had reviewed the available records and file data and interviewed and examined the plaintiff. 27 Dr Hadlow briefly summarised the plaintiff's work history up to the time of his injury on 23 February 1985. Dr Hadlow recorded: "Because work was unsatisfactory he resigned spontaneously in November 1998. He is now an invalid pensioner and has not sought any other work." 28 Dr Hadlow further recorded under the heading: "Current status

Mr Tuftevski is never free of pain in his back. It is present all the time and is present even sitting at this consultation. The pain varies in intensity and can get so severe he is crippled. When it is severe he cannot get out of bed or conversely if it comes on when he is sitting he cannot get out of a chair.

He states that there is no cause for this to come on although sitting, standing, walking, lying, bending and lifting all cause the disability." 29 Dr Hadlow summarised the plaintiff's current stated daily activities, which included various household tasks and doing the garden, but noted that the plaintiff stated that when he is "bad" none of these activities were possible. 30 Dr Hadlow set out the results of his physical examination. His diagnosis was : "1) Probable past annular tear at L4/5 disc on 23 February 1985; 2) severe chronic pain syndrome and hyper-reactivity." 31 Dr Hadlow wrote that the history given was inconsistent, namely, the onset of severe pain for no reason at times of a crippling nature while at other times the plaintiff is able to carry out his activities of daily living. Dr Hadlow added that clinical examination was inconsistent with marked non-organic signs present. Dr Hadlow thought that there were minimal signs of severe spinal injury or disc prolapse orthopaedically but marked signs of chronic pain which is of abnormal duration at four years from injury - "four" should read "fourteen". Dr Hadlow added, "The prognosis is for little change from the current state". 32 Dr Hadlow expressed these further opinions: "1) The prognosis for the musculo-skeletal aspects of the injury is that healing has probably taken place with a minor amount of residual disability, which is impossible to assess due to hyper-reactivity. The main problem now remains chronic pain syndrome.

2. Due to the chronic pain syndrome Mr Tuftevski is not currently capable of physical duties but this would be better assessed by a separate specialty such as psychiatry.

3. Mr Tuftevski is capable of sedentary duties or clerical duties.

(Dr Hadlow does not explain why this is so given the chronic pain syndrome and the manifestations of it recounted earlier in his report.)

4. Further treatment should be directed away from the musculo-skeletal aspects of his disability and concentrated more on the management of his pain syndrome.

5. In Mr Tuftevski's present state the employer's Assessment on the Notification of Disablement Claim is not consistent with the findings on examination in that Mr Tuftevski has episodes of such great disability that he would be unable to do the type of work noted in the claim. "

(This opinion is probably based on the chronic pain syndrome.) 33 The defendant commented that, while the report of Dr Hadlow set out the work done by the plaintiff up to and at the time of the injury and his current status as an invalid pensioner who was not seeking other work, it did not expressly refer to the light duties he was performing in 1998 as mentioned in the letter of instructions from the Trustee. It was stated that the plaintiff was employed as a Technical Engineering Officer at the time of ceasing employment on 10 November 1998. In two places in his report Dr Hadlow refers to the records/report of Dr Manohar and his notation of gross reduction of spinal movement. The report of 22 April 1999 of Dr Manohar refers to the spinal movements of the plaintiff being "quite restricted" (being 0 - 39, whereas the normal range is 0 - 72). Dr Manohar in that report records that the plaintiff was on permanent light work and was a Technical Officer for BHP. Further, Dr Hadlow had a copy of the Notification of Disablement Claim and that set out the duties performed by the plaintiff as a Technical Engineering Officer prior to the date of termination (30 November 1998). Dr Hadlow wrote that the plaintiff had episodes of such great disability he would be unable to do the type of work noted in the claim. Presumably the doctor thought that this was due to the chronic pain syndrome. 34 Following receipt of Dr Hadlow's report, the Trustee, by letter dated 20 August 1999, sought the opinion of Dr David J Kenner, who describes himself as a Consultant Physician in Internal Medicine and Pain Management. He examined the plaintiff on 14 September 1999; it is recorded that he contacted the Claims Co-ordinator. 35 On that day, presumably after the examination, Dr Kenner advised the Trustee that the plaintiff should be the subject of video surveillance because of these stated inconsistencies: "Member not requesting alternative duties; HR advising member capable; Member absent for long periods; Member takes 1 - 2 analgesics per day but claims his pain is very severe; Hyperactivity at examination; Inconsistencies in medicals." 36 Dr Kenner, in his report of 23 September 1999, recorded that the plaintiff had, as at November 1998 and for the previous nine years, been working as a technical officer in a laboratory analysing steel samples for impurities. 37 Dr Kenner recorded that after his accident the plaintiff attended an Orthopaedic Surgeon, was admitted to Burwood Hospital and was apparently given several epidural injections by an anaesthetist with some relief of his pain. Dr Kenner continued: "Dating from this time he told me his back has never been right since. He described how his back would 'lock on me' and subsequent investigations showed degenerative disc disease, particularly at the L4/5 level." 38 Dr Kenner wrote that the plaintiff said he was able to wash his car, sometimes did some gardening, was able to do maintenance around the home and that his wife apparently attends to most of the domestic duties. 39 Dr Kenner recorded that the plaintiff had stated that he had declined surgery in the past as he feared that it may make him worse rather than better. 40 Dr Kenner expressed difficulty in examining the plaintiff's back or spine, as the plaintiff exhibited hyper-reactivity and tended to hold the lower spine fairly rigid. 41 Dr Kenner wrote: "Mr Tufteski undoubtedly has some organic disease with evidence of disc degeneration presumably the result of the work injury which occurred 15 years ago.

It is likely that he will always have some back pain but it is not clear exactly how impaired he is from this on a day to day basis. His condition may well have stabilised at the present time but I believe it would be worthwhile obtaining more information about his apparent disability with an attempt at an ex-office examination or video surveillance.

… the proven degenerative disc disease would preclude him from heavy physical work in the future." 42 On this last mentioned point, the doctors seem agreed. Dr Kenner then dealt with lighter physical duties: "Regarding Mr Tuftevski's capacity for sedentary/clerical type duties his past history appears to demonstrate that he was unable to tolerate the relatively non-physical duties as a technical officer with BHP, taking a redundancy package in November 1998. It is not clear to me that he is definitely incapacitated regarding this work however, and I refer, in particular, to the inconsistencies in history and also the statement by Mr John Borg, Occupational Health and Safety Officer from 19 August 1998."

(While Mr Borg's name appears on the Claim Form the statement appears to be that of Mr J Williams, the Human Resources Consultant. Dr Kenner seems to have misunderstood the Form.) 43 Dr Kenner considered the employer's assessment of the member's ability to perform duties as indicated in the Notification of Disablement Claim was consistent with his (Kenner's) examination. This is to be contrasted with Dr Hadlow's opinion that the employer's assessment was not consistent with his (Hadlow's) findings on examination in that Mr Tuftevski has episodes of such great disability he would be unable to do the type of work noted in the Claim. 44 Dr Kenner noted that the employer felt that the member was capable of performing duties normally required of the position at the date of termination to an acceptable standard. 45 In the final substantive paragraph of his report, Dr Kenner returned to his suggestion that "full resolution of this case may require some evidence obtainable by video surveillance in an attempt to further clarify just how much pain and impairment Mr Tuftevski appears to have during his normal day to day activities". 46 There is an interesting contrast between the approaches of Dr Kenner and Dr Hadlow in that Dr Kenner refers to the pain and impairment during the plaintiff's "normal day to day activities", whereas Dr Hadlow refers to "episodes of such great disability that he (the plaintiff) would be unable to do the type of work noted in the claim". 47 In the history recorded by Dr Hadlow he has noted both the periods of intense pain (crippling) and typical daily activities. These vary depending upon the level of pain being experienced. 48 Dr Kenner has recorded under the heading "Current Status" that the plaintiff: "… has had ongoing problems with back pain, albeit intermittently. He tells me that over the last few years the back 'goes on me' and at times it gets him in awkward positions such that he 'can't move it for ten or twelve days'." 49 Dr Kenner has recorded that the plaintiff said that the pain in his lower back "is there almost continuously but at times is worse than at other times". 50 The history, as recorded by the two doctors, refers to daily activities and to periods of intense pain and extended disability. 51 The plaintiff's application was considered by the Trustee on 15 November 1999. At that meeting the BRC had a paper prepared for it. That paper stated: "The key issues to be considered are: · Did the Member terminate his employment on 30 November 1998 by reason of disablement? · If so, did the Member satisfy the definition of 'Disablement Under the Fund Rules' on that date?" 52 At the bottom of the paper the following appeared: "Decision (Please indicate one only)"

There appeared a series of alternatives (each of which had a blank box against it): "Approve disablement

Reject application for Disablement as termination of employment was not by reason of Disablement

Reject application for Disablement as does not satisfy definition

Reject application for Disablement as injury deliberately self-inflicted

Obtain more information from member, employer, doctor or assessor" 53 The box that was ticked was "Reject application for Disablement as termination of employment was not by reason of Disablement". That decision was signed by the three members of the Benefits Review Committee, the Trustee's delegate. 54 This Minutes of the Meeting of 15 November 1999 of the BRC state: "3.10 Mr Peter Tuftevski's claim for a Disablement benefit was forwarded by Independent Claims Management for determination by the Benefits Review Committee.

After considering all the information presented to it, including the report by Independent Claims Management dated 28 October 1999, the Committee determined that the member did not satisfy the criteria for Disablement under the Fund Rules as the termination of employment was not by reason of Disablement and that he was not entitled to a Disablement benefit." 55 In her letter of 18 November 1999 to the plaintiff, the Secretary of the BRC and Insurance Claims Manger, Ms Hurley, wrote, inter alia: "On 15 November 1999, the Trustee of the BHP Superannuation Fund considered your application for a Disablement benefit and determined that you do not satisfy the criteria for Disablement under the Fund's governing Rules.

A Disablement benefit is payable on a Member ceasing to be an Officer and a Member prior to Normal Retirement Age by reason of his 'Disablement'. If Disablement was not the reason for the cessation of employment, for example the Officer resigned in order to accept a Redundancy Package, then a Disablement benefit is not payable." 56 The Trustee submitted that the critical document was the Minute recording the Board's decision, but I do not think that the court should ignore the terms of the Decision signed by the three members of the Benefits Review Committee, or the terms of the letter of the Secretary to the Committee who is also the Insurance Claims Manager. She appears to have been present at the Committee's Meeting. The signed Decision was the real reason why the plaintiff's application was rejected. 57 The Trustee addressed a further argument and one that tended to obscure the distinction between "Reject Application for Disablement as termination of employment was not by reason of Disablement" and "Reject Application for Disablement as does not satisfy definition". 58 The Trustee contended that under the former of these alternatives it would have to consider whether the applicant satisfied the definition of Disablement. If the applicant did not satisfy that definition, the termination was not by reason of Disablement. The Trustee contended that it could tick either of these alternatives and that it did not matter which one was ticked. 59 One of the difficulties with this submission is that it does not recognise the distinction being drawn between the two situations. I do not accept that these two alternatives were not designed to meet different situations. The former one looked at whether the termination of employment was not by reason of disablement, for example, to take up a position elsewhere, or to go into business, either alone or with others, or to accept voluntary redundancy, especially if accompanied by a substantial financial package, or to embark upon different tasks such as undertaking a training course or a course of study. The latter alternative concentrates on the definition of disablement. 60 Miss Hurley, on behalf of the Trustee or its delegate, encapsulated the position when she wrote: "If Disablement was not the reason for the cessation of employment, for example, the Officer resigned in order to accept a Redundancy Package, then a Disablement benefit is not payable." 61 Her example was a pointer to the present case. A member may resign or retire because of "Disablement" and also at the same time seek to take advantage of a Voluntary Redundancy Package being offered. They are not mutually exclusive. BHP were well aware that the plaintiff's position was not truly redundant. The form signed by BHP Senior Officers on 28 September 1998 and 6 October 1998 was incorrect. It was signed for Concessional Taxation Eligibility purposes and appears to have been a taxation manoeuvre. It also helped to reduce the staff numbers.

9 December 1999 - 14 March 2000 62 By letter of 9 December 1999, the plaintiff sought further information as to why his application was rejected. He sought a copy of the documents on which his case was assessed. Amongst other things, he wrote: "Before I left work I was advised by the BHP representative, Mr Hans Kosh at the Financial Information Seminar, that taking the VRS would not affect my claim for Disablement Benefit due to my circumstances after I had explained my situation to him. I was advised that I had to put on my form of resignation VRS and Disablement. Please note that my position was not redundant but I was given the opportunity of taking VRS because of my disability.

Towards the end, prior to my retirement, I persevered with going to work because it would have been unfair to leave my section short-staffed. I was very fortunate to have my work colleagues to help me and be supportive of my condition in my work place." 63 A decision was made not to make a copy of Dr Kenner's report available to the plaintiff as it suggested surveillance - see the note of Ms Hurley on the copy letter to Dr Kenner and her letter of 21 February 2000 to the solicitors for the plaintiff that the doctors other than Dr Hadlow had not given authority for their reports to be released. 64 On 3 March 2000 the plaintiff's then solicitors forwarded to BHP Superannuation the Report of Dr Steven Ng of 3 February 2000, a copy of the report of Dr Ajam of 28 January 2000 and a letter from Stefan Stamatovski of 20 January 2000. Dr Ajam, the plaintiff's general medical practitioner, wrote that due to his disability the plaintiff "is unable ever to be employed in a capacity for which he is reasonably qualified because of education, training or experience". 65 Dr S Ng, a Consultant Occupational Physician, conducted a medical assessment of the plaintiff's back and wrote a detailed report. Dr Ng thought that the plaintiff would only be able to perform very sedentary work duties on a part time basis at his best. He added: "In view of Mr Tuftevski having regular 'locking' of his back up to two times monthly and the subsequent inability to ambulate effective for ensuing days it would be realistic that his employer could not maintain ongoing full time employment for him as a technical officer." 66 In his letter of 20 January 2000, Mr Stamatovski, Senior Shift Chemist (Shift Supervisor), BOS Laboratory, wrote that the plaintiff was employed in that Laboratory for the past eight years a Technical Officer - grade 3, but bad health forced him to take voluntary redundancy. Mr Stamatovski wrote that the plaintiff: "… was constantly complaining from severe back aches and had the worst attendance record in all Laboratory Services.

The last year of his employment was the worst. He had 30 working days off on account of his back problems for which he had numerous doctors' certificates which stated that his problem is genuine. … Although [the plaintiff] was in constant pain he was persistent in doing his job and trying to help his workmates as much as he could …" 67 That material does not seem to have found its way into the record keeping system of the employer. The Minutes of Meeting of the delegate (BRC), held on 14 March 2000, relevantly read: "4.14 Mr Pande Tuftevski's complaint against the committee's determination of 15 November 1999 was received on 9 December 1999.

After considering all the information presented to it, the Committee affirmed its determination of 15 November 1999 that the member did not satisfy the criteria for Disablement under the Fund Rules as termination of employment was not by reason of Disablement and that he was not entitled to a Disablement benefit. The Committee further determined that surveillance of Mr Tuftevski be conducted." 68 It is noted that the Minutes repeat the introductory words "after considering all the information presented to it" used in the Minutes of 15 November 1999. Does this have any real meaning or is it a mantra repeated for legal purposes? It is repeated in the Minutes of 20 February 2001 of BRC. On the paper prepared for the Benefits Review Committee there is a section at the end headed "Decision". Two of the Committee members have signed the Decision and they have ticked the boxes: "Reject application for Disablement as termination of employment was not by reason of Disablement"

and "Obtain more information from member, employer, doctors or assessors"

Under the latter the word "surveillance" has been written. 69 The material before the Committee included that which had been before the Committee on 15 November 1999 and further material received since 15 November 1999. That included Mr Stamatovski's letter of 20 January 2000 and the reports of Doctors Ajam and Ng. 70 By letter of 28 March 2000, Ms Hurley arranged for surveillance of the plaintiff by Brosnans. That letter states: "We instruct that the cost of this surveillance be initially limited to $1,500, but expect that you will keep in contact with us during the period of surveillance and we could raise the limit if we thought the circumstances warranted it." 71 Brosnans would have been aware that, because of costs factors, the time was limited in which to produce a useful result. Brosnans carried out surveillance on 14 and 17 April 2000, and 18 and 23 May 2000 and prepared a report of 7 June 2000. The Summary stated: "1.3 EVIDENCE OBTAINED At least four hours of video show the Claimant working in the garden of his property and undertaking tasks inconsistent with his alleged injury.

1.4 INVESTIGATION DETAILS The Claimant is active and we exposed a considerable amount of video of his activities on a number of occasions but especially on the last day we attended.

On that occasion the Claimant was observed working in the garden where he erected and positioned timber frames around the bases of trees. He used a handsaw, used a hammer to hammer in posts, wrapped plastic sheeting around tree supports and carried out a wide range of demanding physical activities. This was done without any apparent restriction." 72 On 14 April 2000, the plaintiff was the subject of surveillance from 5.55am to 9.30 am. He was observed to drive a vehicle for about 20 minutes. Nothing of consequence was observed. On 27 April 2000 the plaintiff was the subject of surveillance from 10.56 am to about 5.13 pm. In the early afternoon he was observed to unload shopping from the boot of his vehicle. This involved several trips to and from the vehicle. From about 4.46 pm to 4.55 pm he was observed bending from the waist to pick up items, e.g. picking up a hose, squatting to place the end fitting of the hose onto the tap, picking up items in the yard and squatting several times to clean the yard. The activities observed were minor. 73 About 26 April 2000 the Superannuation Complaints Tribunal received a complaint from the plaintiff. 74 The plaintiff was the subject of surveillance on 18 May 2000 from about 7.15 am to about 9.45 am. He was observed to drive a short distance to a school where he dropped off his children and made some other stops. Nothing of consequence was observed. 75 On 23 May 2000 the plaintiff was the subject of surveillance from 10.05 am to about 3.30 pm. The plaintiff was not sighted after 3.00 pm. 76 Brosnans state that at about 10.21 am the plaintiff began using a handsaw to cut through some lengths of timber, that he spent the next four hours building frames to go around his palm trees, and that, after cutting the lengths, he put them together around the base of the trees. It was stated that he always sawed on the ground, that he crouched down to do this and that throughout the day he performed many activities which exerted stress on his back, for example, he hammered posts into the ground, sawed timber and cut lengths of plastic sheet to wrap around the trees. The handsaw was a hacksaw and appeared to be light. 77 On 22 May 2000, in answering the Tribunal's questions, the plaintiff wrote, amongst other matters: "At my best I am able to do some light gardening, some household duties, driving myself and light walking, given it is for an ex (sic) amount of time." 78 He listed a number of domestic and recreational activities which he was restricted in performing. 79 Attempts by the Tribunal to resolve the complaint by conciliation were unsuccessful. It was stated in the Tribunal's letter of 22 January 2001, following an unsuccessful conciliation, that the Trustee was to further consider information provided by co-workers of the complainant dated 7 March 2000 and an extract from the SPAN issue No 2 of 6 October 1998. 80 It seems that the SPAN extract and the letter of the co-workers of 7 March 2000 had not previously been considered by the BRC as it arrived after the Meeting on 14 March 2000 had started. 81 The Insurance Claims Supervisor and the Manager, Policy and Planning submitted an Assessment on 14 February 2001 of the plaintiff's Disablement claim. That placed reliance on the Notification of Disablement Form completed by Mr Williams. It referred to 19 of the plaintiff's work colleagues on 7 March 2000 signing a statement: "We have observed many occasions of him being in severe pain trying to carry out his job to the best of his ability. On many occasions he could not perform his normal duties because of chronic pain …" 82 The Assessment gave a short summary of the reports of Doctors Manohar, Hadlow, Kenner and Ng. The Assessment concluded: "Taking into account his relatively young age (39 at date ceased work), the consensus of medical opinion that he is capable of performing light duties including his previous duties as a technical engineering officer, it is likely that the member could obtain suitable employment and could have continued in employment with BHP." 83 These officers recommended: "Reject application for Disablement as termination of employment was not by reason of Disablement. Reject application for Disablement as does not satisfy definition." 84 On 20 February 2001 the BRC held a further meeting. The Minutes relevantly read: "4.5 Mr Peter Tuftevski's complaint against the Committee's determinations of 15 November 1999 and 14 March 2000 to reject his application for a Disablement benefit was lodged with the Superannuation Complaints Tribunal on 26 April 2000. As a result of a Conciliation Conference held on 22 January 2001, the Committee reviewed his claim. After considering all the information presented to it, the Committee determined that the member does not satisfy the definition for Disablement under the Fund Rules and to reject the application for a Disablement benefit." 85 In the paper prepared for the Board Meeting it was stated that the plaintiff had accepted a Voluntary Retrenchment Package. The paper refers to the report of 28 October 1999 of the Independent Claims Management, the lodgement of a complaint with the Superannuation Complaints Tribunal and the comments of the officers of BHP Superannuation of 14 February 2001 and states that on 15 November 1999 and on 14 March 2000 the Benefits Review Committee determined that the plaintiff does not meet the definition of Disablement in the Fund Rules. The accuracy of that statement is in dispute. 86 Before the BRC at the February 2001 meeting were the Surveillance Report (and, presumably, the surveillance videos) and the Supplementary report of 14 August 2000 by Dr DJ Kenner. The plaintiff had not been told at that stage of the surveillance material or Dr Kenner's report or of their thrust and had no opportunity to respond to them. 87 The Superannuation Complaints Tribunal requested the Fund to produce to it copies of any surveillance reports and surveillance videos. The Fund did so and copies were made available by the Tribunal to the plaintiff under cover of the Tribunal's letter of 5 March 2001. Neither the plaintiff nor his advisers had previously seen these. The Trustee had given the plaintiff no opportunity to respond to these prior to making its determination on 20 February 2001. 88 The signed Decision by two of the members on 20 February 2001 reads: "Taking into account the totality of the member's medical conditions, age and transferable skills the Trustee is of the opinion that the member could obtain or continue in suitable employment having regard to the Member's qualifications, training and experience and therefore determines to reject the application for a Disablement benefit as the member does not satisfy the definition of Disablement." 89 On 14 August 2000 Dr Kenner had written that he had carefully examined the video evidence provided, including the four hours of surveillance showing the plaintiff working in his garden. Dr Kenner continued: "I believe this video evidence is particularly enlightening and, indeed, most incriminating. I have particularly examined the evidence provided by Brosnans on Day 4 of surveillance, on Tuesday 23 May 2000. During this period of surveillance the claimant has spent at least four hours in his garden, carrying out a number of physical tasks, seemingly without any problems whatsoever. I note that on many occasions Mr Tuftevski would crouch close to the ground whilst using a hand saw or hammering and on one occasion, I noted he bounced upwards on his heels to regain the upright posture, something which would be extremely difficult, if not impossible to do, if one had any sort of chronic back complaint.

I believe we are now in a position to say that Mr Tuftevski may well be malingering to some degree and that my previous diagnosis of a chronic lumbar back pain syndrome with some 'non-organic features' should now be interpreted to be predominantly non-organic in nature.

I feel we can now say that Mr Tuftevski is quite physically capable and anyone who can perform four or five hours of physical work in the garden has not got a significant organic back problem. Although he may have some evidence of disc degenerative disease, this is unlikely to be causing any symptoms at all at present and I believe that a good deal of the history obtained from Mr Tuftevski at my clinical examination may well have been unreliable. I also believe that he is fit for work and can see no reason why he could not have performed his previous work as a technical officer in BHP Laboratories. As I have previously noted, Mr Tuftevski chose to resign from work in November 1998 and at the time of my examination of him in September 1999, he freely volunteered that, 'If I resign, then I'm entitled to my super'." 90 Counsel for the plaintiff pointed to the use of the word "we" at the start of each of the latter paragraphs quoted as indicating that Dr Kenner regarded himself as part of a team to reject the plaintiff's claim. Counsel also stated that the remarks attributed to the plaintiff in the last sentence of the passage last quoted did not appear in Dr Kenner's earlier report on his interview and examination of the plaintiff. 91 In the submissions of 13 June 2002 to the Superannuation Complaints Tribunal, the plaintiff's then solicitor at pp 14 - 18, attacked the videotapes submitting that the videotape has been severely edited and did not show the numerous breaks taken by the plaintiff. It was submitted that as to tape 2 of 23 May 2000, the camera-man, presumably the surveillance operative, made racist, malicious, biased and contemptuous remarks and that they can be heard on the videotape. They include comments such as, "Come on Wog, move that big rock there or something"; "come on mate, I am losing another f-g tape, f- off inside"; "mate, me arm's getting pretty f- sore you know"; "when you gonna get up? I wanna have a drink, wait there" and "sit up, freak". The solicitors submitted that the supporting notes of Brosnans concentrate upon the physical duties performed by the plaintiff without showing the numerous rest periods and the cautious way in which the plaintiff moved, bent and stretched. 92 In her letter of 24 June 2002 to the Complaints Tribunal, Ms J Hurley, Insurance Claims Supervisor, submitted that the breaks in recording were not sinister and endeavoured to meet some of the criticisms made. She wrote: "We refer to the comments made by the cameraman on 23 May 2000. The Trustee's Benefits Review Committee viewed the surveillance tapes at its meeting on 20 February 2001. The Trustee did not listen to the soundtrack of the tapes as the sound was turned off once the radio music was heard. Today I reviewed the tapes and found that I needed complete silence and the volume of the TV turned to 18 to enable me to discern what the cameraman said. The Trustee abhors the comments made by the cameraman and will advise the surveillance company concerned that comments of any kind, let alone what was said in this instance, are totally unacceptable. Please assure Mr Tuftevski that the Trustee was not aware of the comments and does not condone such comments being made.

The soundtrack of the video played no part in the deliberations of the Trustee. We believe that the visual evidence shows that Mr Tuftevski is capable of sustained work that is inconsistent with his claimed levels of limitation and pain." 93 The plaintiff's point was that what was said and done affected the reliability of the surveillance evidence and that the Benefits Review Committee, in not having heard the soundtrack, had not adequately assessed the weight to be attached to the surveillance evidence. 94 On 30 September 2002 the Tribunal in its reasons held: "Although there is medical evidence suggesting he is permanently unfit for work, there is also medical evidence pointing to inconsistencies in the Complainant's presentation, and although all doctors agree that he has a lower spinal condition, the degree to which it impairs the Complainant's work ability is disputed. Video surveillance has further thrown some doubt on the extent to which the Complainant's back condition affects his mobility.

The question to be answered by the Tribunal is determined in Section 37(6) of the Complainants Act, is whether in its operation in relation to the Complainant in the circumstances, the Trustee's decision is fair and reasonable. The question is not whether the Tribunal might on the evidence before it, substitute a different decision to that of the Trustee. The Tribunal is satisfied that the video surveillance throws sufficient doubt as to the extent to which the Complainant's back condition affects his mobility and hence his ability to work so that given the conflicting medical evidence the Trustee's decision could not be said to be unfair or unreasonable in its operation to the Complainant in all the circumstances. That being the conclusion of the Tribunal, the decision under review must be affirmed." 95 The defendant relied on the Tribunal's decision as some evidence that the decision in the present case was one to which a Trustee acting reasonably could come. It was not suggested that the Tribunal's decision acts as a limitation on the powers of the court.

Rejection of 24 February 2006 96 On 22 February 2006 the plaintiff completed and submitted to the Fund a Complaint Form in which he gave these details: "The Trustee acted unreasonably in rejecting the application for a Disablement Benefit. No reasonable Decision Maker would have acted in the same manner."

He attached the report from Dr I Gotis-Graham. 97 In its letter of 24 February 2006, the Fund wrote that it had received the plaintiff's completed complaint form and medical report from Dr I Gotis-Graham. The letter of the Enquiries and Complaints Officer continued: "We have searched our available records and note that you have previously lodged a complaint with the Fund against the rejection of your Disablement Benefit. We further note that you subsequently lodged a complaint with the Superannuation Complaints Tribunal (SCT) regarding the rejection of your Disablement Benefit.

Therefore, the Fund is not in a position to consider your complaint again." 98 The report of Dr Gotis-Graham records, by way of history, the accident in 1985, the onset of severe back pain and the plaintiff being unable to work for 18 months. It continues: "He had multiple investigations including CT, myelogram and discogram. He underwent two spinal steroid injections, possibly epidural injections. He stated that following the myelogram and discogram, he developed headache, nausea, vomiting and difficulty walking. He stated that he also had severe pain in both legs.

He stated that he was able to return to work on light duties from 1985 until 1998. He resigned from his job in 1998 as he was unable to work because of severe low back pain and the effect of analgesic medication." 99 A continuing history of disabling low back pain with at least one severe flare of low back pain each week and adverse side effects of some medications taken was given. The doctor records that the plaintiff said that he has been using up to six Endone tablets a day for severe pain, when he does not have severe pain he minimises the dose, that during severe episodes of pain he smokes marijuana, that he smokes several cigarettes of marijuana each week and that he stopped smoking cigarettes three years ago. It is not clear if the last reference to cigarettes is to cigarettes generally or cigarettes of marijuana. 100 Dr Gotis-Graham's report further states: " Investigations

In November 2001, an MRI scan of the lumbar spine was performed. There was posterior lateral disc protrusion at L4/5. There was clumping of the nerve roots involving the cauda equina, extending from the level posterior to the L2 vertebral body to the L4/5 level.

In July 2003, an MRI scan of the cervical and lumbar spines were performed. In the cervical spine, there was a broad based posterior protrusion at the C6/7 level. There was no significant nerve root compression or canal stenosis in the cervical spine. The MRI scan of the lumbar spine revealed dehydration of the L3/4, L4/5 intervertebral discs with posterior protrusion.

There was evidence of facet joint osteoarthritis at L4/5. There was clumping of the nerve roots in the proximal cauda equina.

Mr Tuftevski has chronic lumbar spine pain. This is due to a previous lumbar spine injury in 1985. He also has arachnoiditis, which is likely due to the interventions including myelogram, discogram and epidural steroid injection.

It is highly unlikely that Mr Tuftevski will be able to return to any form of paid employment. He is not fit to return to his previous employment. I feel that he is totally and permanently impaired from returning to any form of permanent employment. The main factors limiting his return to any form of employment include his chronic lumbar spine pain associated with significant flares, and the effect that analgesic medications and marijuana has on his ability to work. His level of education is poor. It is highly unlikely that he will be able to be trained for any form of gainful employment.

Lumbar spine surgery is not indicated for his lumbar spine problem. There is no benefit in considering lumbar spine surgery.

It is likely that Mr Tuftevski's symptoms will fluctuate in intensity and severity. However, he has chronic long standing pain. His history of significant flares of lumbar spine pain are consistent with the history and physical examination. It is likely that when his pain is not severe, he will be able to perform simple household chores. His exercise tolerance fluctuates according to the level of his pain. When he does not have severe pain, he is able to walk [up] fifteen to twenty steps. When his pain is severe, he not able to walk up any stairs at all. Therefore, there is no inconsistency in the fact that his level of physical activity fluctuates.

It is likely that there will be gradual deterioration over time. There is no significant possibility of any spontaneous improvement."

I have added the word "up" in brackets as this seems to accord with what Dr Gotis-Graham is writing. 101 In Blakiston's Gould Medical Dictionary, 4th edition, "arachnoiditis" is defined as "inflammation of the piarachnoid of the spinal cord and brain". "Arachnoid" is explained thus: "The arachnoid membrane is the central of the three meninges covering the brain (arachnoidea encephali) and spinal cord (arachnoidea spinalis). It is very fine and delicate in structure … The two membranes are often considered as one, the piarachnoid." 102 The radiology reports of 1 and 13 November 2001 and July 2003 were admitted into evidence. That of 1 November 2001 stated that the clumping of the nerve roots described in the reports suggested underlying arachnoiditis. The report of 2 July 2003 also referred to some clumping of the nerve roots in the proximal cauda equina. 103 As requested, I have viewed videotapes 1 and 2. They show the plaintiff moving around and engaging in various activities. I have earlier quoted the views of Dr Kenner in his 14 August 2000 report as to what they show. On the other hand, Dr Ajam, in his report of 13 December 2001, wrote that the plaintiff was unemployable. He continued: "… He is permanently incapable of obtaining or continuing in suitable employment taking into account his past education, training and experience.

This opinion is based on an examination of the patient by the writer, his MRI scan findings and the opinions of Dr Ashish Diwan, Chief, Spine Service, St George Hospital and Dr Steven Ng… My opinion remains unchanged after viewing surveillance videos taken of Mr Tuftevski. " 104 Dr Ashish Diwan thought that Mr Tuftevski's incapacity met the Fund's definition of Disablement. 105 Dr Ng reviewed the two video surveillance tapes. He concurred with the radiology report of 1 November 2001. He wrote: "My medical opinion on Mr Tuftevski's medical condition of chronic mechanical low back pain and secondary psychological condition of chronic pain disorder/ chronic pain syndrome remains unchanged …

As I stated in my initial report, I had considered Mr Tuftevski to be able to perform very sedentary work duties on a part-time basis at his best on 3 February 2000 and my opinion on his work capability remained unchanged on 6 November 2001. His work capability was mostly restricted by his psychological condition as well as to a lesser degree contribution by his physical condition. The unpredictable frequency of flare up of his back pain and spasm would make it very difficult for any potential employers to offer Mr Tuftevski regular suitable duties of sedentary nature on a part-time basis." 106 The reports of Doctors Ajam, Diwan and Ng were sent to the Superannuation Complaints Tribunal. They were not before the BRC on 16 February 2001. 107 I have noted the divergent views of the doctors, the approach of the Superannuation Complaints Tribunal and the stated views of the plaintiff's co-workers and supervisors based on extended personal observations, and that the plaintiff and his doctors were not given the opportunity to respond to the surveillance materials and Dr Kenner's reports prior to the BRC decision of 20 February 2001. I have also noted that the plaintiff has by affidavit intimated responses to the video surveillance material. Questions have also been raised as to the validity of an approach based on the video surveillance material when the plaintiff has contended that these are times when his pain condition does not flare up and, although he is suffering pain, he is able to carry out light duties and attend to domestic tasks, including light gardening. 108 There is a further complicating factor in that Dr Gotis-Graham states that the plaintiff also has arachnoiditis which is likely due to the interventions including myelogram, discogram and epidural steroid injection. 109 Dr Gotis-Graham does not spell out the effects of arachnoiditis, nor whether the plaintiff had, or would have had, this condition in November 1998, even if it was then but slightly known. Its relevance and importance does not clearly appear. 110 The interventions to which Dr Gotis-Graham refers were frequently given in evidence in personal injuries cases in this Court in the 1980s. 111 The evidence does not explain whether arachnoiditis was likely to have a compounding effect, via pain or otherwise, when allied with a previous lumbar spine injury in 1985, nor how long it takes to develop.

Some Legal Principles 112 The plaintiff placed reliance upon the covenant by each Trustee taken to be included in the governing rules by virtue of ss 52(1) and 52(2)(b) of the Superannuation Industry (Supervision) Act 1993, namely: "(b) to exercise in relation to all matters affecting the entity, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with the property of another for whom the person felt morally bound to provide." 113 While I appreciate the value of an express statutory covenant in the terms quoted, the obligation in it was debated, and is debatable, namely, whether it imposes a higher duty than the law would impose on a trustee. In my opinion it probably goes a little further in that the ordinary prudent person in the situation envisaged would probably disclose, in dealing with property of another, to the person for whom he felt morally bound to provide, facts adverse to the interests of that person. That would be part of exercising the requisite degree of care, skill and diligence. 114 I would note this expression of opinion of Lord Wilberforce in McPhail & Ors v Doulton & Ors [1971] AC 424 at 452: "I prefer not to suppose that the great masters of equity, if faced with the modern trust for employees, would have failed to adapt their creation to its practical and commercial character." 115 Lord Reid and Viscount Dilhome agreed with Lord Wilberforce. As Lord Wilberforce stated at 447, that appeal was concerned with the validity of a trust deed by which the deceased established a fund for the benefit, broadly, of the staff of the respondent company. It is dealing with a situation which differs from the one arising in the present case. 116 In Vidovic v Email Superannuation Pty Ltd (3 March 1995), BC9504297 at [11] Bryson J remarked: "It is a marked anomaly to use mechanisms drawn from fields of law remote from employment and relating to trusts for bounty or charity to administer important entitlements in an employment relationship. I find it difficult to understand why the entrenchment of such important rights against review is so usual, and why this kind of an arrangement is so commonly found acceptable to employees in view of the economic significance of such decisions and the economic function of superannuation, not well represented in terms of the documents, as a contracted employment benefit for which value is given. These anomalies appear particularly clearly where, as in this case, the fund out of which benefits are paid is contributory and an employee claiming benefits is claiming to be paid, at least in part, in his own coin. In an arrangement with a contractual character in which value is given in the expectation that a benefit will be available in stated circumstances, a construction in which one party has an entire and unreviewable power to determine whether that party will pay a sum of money to the other or retain it in its own funds has an element of absurdity …" 117 In Sayseng v Kellog Superannuation Pty Ltd & Anor [2003] NSWSC 945 at [59] Bryson J reiterated his view of the importance of the context of the employment relationship. 118 Senior counsel for the plaintiff submitted that the trustee was bound to apply the rules of natural justice. This was putting the plaintiff's case at its highest. Senior counsel recognised that there was a considerable body of authority against such a proposition, but he pointed to the remarks of Ormiston JA in Telstra v Flegeltaub [2000] 2 VR 276 at [4] and the absence of decisions of appellate courts. On the law, as it presently stands, I do not apply the rules of natural justice. 119 In Flegeltaub v Telstra Super Pty Ltd (3 April 2000), BC 2000 01407, Byrne J said: "It is clear that the trustee is not bound by the rules of natural justice, but the circumstances of the case may demand, as a matter of fairness, that, on a particular matter, the position of the applicant be sought so that a proper decision can be made on that matter. This may arise because there is an apparently adverse matter of fact which is peculiarly within the knowledge of the applicant or for which the applicant may reasonably be expected to have an explanation. It may involve a disclosure to the applicant or to her representative of the adverse material …" 120 On appeal, at [30], Callaway JA pointed out: "… One cannot ordinarily decide a question of fact in good faith and give it real and genuine consideration without conducting some investigation and in some cases that will entail making an inquiry of a person who is willing to provide information and is in the best position to do so. It is not a matter of natural justice but bona fide inquiry and genuine decision making." 121 Fairness required that the plaintiff be acquainted with the thrust of the matters put against him by Dr Kenner in his September 1999 report. I accept that the plaintiff could not be told that he was to be the subject of surveillance. Further, the statements of Mr J Williams in the Notification of Disablement Claim were not disclosed to the plaintiff. Many of the important statements in that were in dispute, but an assumption appears to have been made that such statements were correct and reliance appears to have been placed upon them. The source of Mr William's knowledge is, as mentioned, not stated. 122 I am of the opinion that the real ground of the decision of 15 November 1999 of the BRC was that the plaintiff resigned to accept a VRS package. Further, the failure to tell the plaintiff of the substance of Mr Williams' statements or the substance of Dr Kenner's report (excluding the surveillance recommendation) and to give him and his advisors an opportunity to respond meant that there was no bona fide inquiry and no genuine decision making. These latter reasons and conclusions also affect the BRC's decision of March 2000. 123 As to the decision of February 2001 of the BRC, the plaintiff had not been told of the surveillance material and of the thrust of the report of Dr Kenner of August 20000 and the strong adverse conclusions he drew. It is true that the BRC had the earlier reports of doctors from whom the plaintiff had sought opinions, but the plaintiff was given no opportunity to deal with the surveillance material and point to the alleged errors in Dr Kenner's conclusions and the validity of his approach in his latter report. 124 I have not overlooked the principles propounded by McGarvie J in Karger v Paul 1984 VR 161 and this oft-quoted summary by McLelland J in Rapa v Patience (Unreported, NSWSC, 4 April 1985 - BC 8500 888) "The grounds on which the performance by trustees of functions such as these may be successfully challenged are those applicable generally to the exercise by trustees of discretionary powers, helpfully discussed by McGarvie J in Karger v Paul (1984) VR 161. As encapsulated by his Honour in that case there are three such grounds and in some circumstances a fourth. They are, first, that the discretion was not exercised by the trustees in good faith, second, that the discretion was not exercised upon real and genuine consideration (which includes consideration of the wrong question - see Scott on Trusts 3rd ed. Vol. 3, para, 187.3), third, that the discretion was not exercised in accordance with the purposes for which it was conferred and, fourth, where the trustees have disclosed (otherwise than in the course of the proceedings in which the discretion is challenged) the reasons for the exercise of their discretion that those reasons are not sound." 125 In Flegeltaub the VCA was able to dispose of the case on the basis of these principles and the failures there identified. It did not have to embark upon a fundamental re-examination of the applicable principles. Ormison JA, at 4, pointed out that the disputes now being presented for decision had arisen out of circumstances quite different from those which were raised in earlier authorities, and that one particular problem is the extent to which courts will examine the exercise of a discretionary power by a trustee where the trustee is a company set up by an employer for the purpose of a pension or superannuation fund. That judge thought that further discussion and analyses were required in relation to pension and superannuation funds and he queried the applicability of the older principles to pension and superannuation funds. 126 Both Callaway JA and Batt JA made clear that a decision of a superannuation fund trustee is different in kind from, and arises in a context different from that of, the exercise of a discretion by a trustee of a trust for bounty or charity. 127 At [6] Orimiston JA remarks that it seems to have been assumed since the decision by McLelland J in Rapa v Patience that similar restrictions to those discussed in Karger v Paul should also apply to the formation of more arguably "discretionary" opinions under superannuation deeds. 128 This area of the law is in urgent need of Law Reform. Superannuation provided by a fund is one of the incidents of employment. The employer appoints the Trustee and, in the present case, the Trustee delegated its decisions to a Committee which met on BHP premises and apparently accepted the accuracy of the employer's records. It is absurd that such a committee has a power which is substantially unreviewable in contested cases. It acts as both investigator and judge. Principles as to the exercise of the powers of a trustee borrowed from earlier days are inappropriate. What is required is a review of the merits and not the application of a system of trustee principles taken from bygone eras and different circumstances. The matter is far too important to employees and workers to be left in its present state. Their future and those of the families are at issue. The unfairness of the present system is highlighted by adverse decisions being made by the BRC without the employee being told of all the material adverse to his application.

February 2006 refusal 129 The plaintiff placed considerable reliance on the decision of the Full Court of the Supreme Court of Western Australia in Tonkin & Ors v Western Mining Corporation Ltd & Anor [1998] WASCA 101. The principal judgment was that of Franklyn J, with whom the other members of the Court agreed. The case raised a number of issues. One was whether the plaintiff met the definition of "Total and Permanent Disablement" (TPD) contained in the Trust Deed of a Staff Superannuation Fund. The appellant plaintiff alleged that the respondent had a continuing duty up to trial to take into account medical reports supplied by the appellant in exercising his discretion under the Deed. The plaintiff relied on this passage from the judgment of Franklyn J: "In my opinion it has at all times been open to the appellant to submit further medical evidence … to the respondent for its consideration pursuant to the deed definition in respect of the claim for the TPD Benefit. In such case the respondent is bound to give them proper consideration. No time limit is fixed or imposed by the Deed for making application for the Benefit or for the required consideration of medical evidence. Whether any statutory limitation might apply is not relevant to our consideration as no issue in that respect has been raised. In the event of the respondent, having considered medical evidence before it, failing to form the necessary opinion, there is nothing in the Deed or rules to inhibit the appellant from providing, for its further consideration, further medical evidence relevant to the formation of that opinion. There is nothing in the Deed to lead to the conclusion that, once having failed or refused to form the necessary opinion after consideration of the medical evidence then before it, the respondent is under no obligation to consider further medical evidence relevant to the formation of that opinion. Indeed, in my opinion, on the proper construction of the deed and having regard to the fiduciary nature of the trustee's obligations, the respondent, if requested to do so, is bound to consider such evidence relevant to formation of the opinion as may from time to time be put before it. Consequently, medical evidence, whether coming into existence prior or subsequent to any particular failure or refusal to form the necessary opinion will necessarily have to be considered if made available by or on behalf of the applicant for that purpose." 130 The defendant submitted that where the Superannuation Complaints Tribunal had held that the Trustee's decision was fair and reasonable and affirmed the Trustee's decision, after having afforded to the plaintiff a full opportunity to be heard and where a right of appeal from the tribunal's determinations existed which had not been exercised by the plaintiff, the Trustee has no duty to reconsider the plaintiff's claim, at least unless:

(a) the plaintiff presented new evidence relevant to the question upon which the disablement entitlements hinged, namely, whether the plaintiff ceased his employment in November 1998 by reason of Disablement;

(b) the new evidence was not before the Tribunal and could not have been put before the Tribunal; and

(c) the plaintiff's claim was not otherwise statute barred, that is, the request for re-consideration was made within six years of the date when the Trustee first rejected the plaintiff's claim. 131 The Tribunal's decision was made on the papers. It took no other evidence. I would be reluctant to describe that as a full opportunity to be heard, although the course taken was permitted. It is difficult to see how the Tribunal committed any error that could lead to a successful appeal. I do not attach weight to the submission that the appellant did not appeal. 132 As to (b) above, I do not attach weight to this submission. If new evidence emerges it should be considered if it could be relevant to the decision made. For example, further developments in understanding medical matters may emerge, or it may appear from new evidence that additional material casting light on the question of Disablement is available. I do not think that the plaintiff has to demonstrate that the new evidence could not have been obtained by the exercise of reasonable diligence. This would be very difficult when he has not been told of the material against him. 133 The report of Dr Gotis-Graham seems to be referring to the plaintiff's condition in May 2005. The report does not deal with the plaintiff's position in November 1998, save that it states: "He resigned from his job in 1998 as he was unable to work because of severe low back pain and the effect of analgesic medication." 134 The lump sum benefit is payable to a member on his ceasing to be an officer and a member by reason of his Disablement (cl B.1.8). I have earlier set out the definition of Disablement. It refers to physical or mental disablement caused through illness or infirmity likely to render the member permanently incapable of obtaining or continuing in suitable employment. 135 The benefits are to be paid to a former member only upon his ceasing to be an officer and a member on retirement in specified circumstances. Clauses B.1.4 and B.1.8 have to be read together. 136 The provisions envisage that at about the time of retirement the physical or mental condition of the member is likely to preclude him or her from obtaining or continuing in employment. There is an element of futurity involved and I would insert, after the words "suitable employment", "within a reasonable time". A member who has been injured may be likely to continue in employment upon recovery, even if that recovery takes many months or some years. In times when there is a depressed labour market the prospect of obtaining or continuing in suitable employment may be much reduced. I do not think that the provision is looking at the position eight to ten years after the member has retired. The provisions have a more immediate operation. 137 On the other hand, if it can now be demonstrated that the plaintiff was, in or about November 1998, or within a reasonable time thereafter, suffering from a permanently disabling condition, then the trustee would have to reconsider, subject to any limitation defence. It may be some years after retirement that it can be proved that the member was suffering from disabling conditions likely to render the member permanently incapable of obtaining or continuing in suitable employment about the time of the member's retirement. 138 The surveillance of the plaintiff took place in April and May 2000, that is, some 16 - 17 months after the plaintiff ceased to be an employee on 30 November 1998. It was not suggested that the activities recorded in the surveillance material, especially those on 23 May 2000, were not relevant and did not bear upon the plaintiff's condition as at November 1998. Relevant materials obtained or arising after the plaintiff ceased employment and to be a member can be used both in support of and in opposition to his application. The Trustee is bound to consider relevant new evidence placed before it. The difficulty in this case is that the new evidence does not sufficiently relate back to the plaintiff's condition in November 1998 or within a reasonable time thereafter. I would have taken a different view if, for example, the report of Dr Gotis-Graham had stated that the conditions of the plaintiff he identifies and describes probably existed, or were developing, in 1998 and that their effect was such as to render the plaintiff "Disabled", that is, incapable of present and future employment on light duties as at November 1998 or within a reasonable time thereafter. This may need to be related to his pain history and the "flare ups".

Limitation Issues 139 The initiating Summons was filed on 8 January 2007. 140 It was common ground that Rule A.2.4 provided: "The Rules shall be governed by and construed and shall take effect in accordance with the laws of the State of Victoria …" 141 The Trustee contended that the disablement benefit claimed by the plaintiff was a benefit provided for in the Fund Rules and not the 1926 Trust Deed. It also submitted that the breaches of the Trustee complained of relate to decisions made by the trustee in administering the Fund Rules and that the relief claimed was based upon the Fund Rules. Accordingly, the Fund Rules govern the situation. 142 The plaintiff submitted that the correct starting point for limitation purposes was the date of decision. On this approach the decisions of February 2001 and February 2006 were not statute barred. The defendant submitted that the correct starting date was earlier and probably November 1999. 143 The plaintiff accepted that, if a six year period is applicable to the 1999 decision and the 2000 decision, counting from the dates of the decision in question, then claims based on those decisions are statute barred. 144 The plaintiff submitted, and I accept, that it is the Deed of Trust that governs the entitlement of the plaintiff. The recitals of the Deed of 20 June 2002 of Appointment and Retirement of Trustee state: "A. By a Trust deed dated 1 July 1926 (the Trust Deed) a superannuation fund known as the BHP Billiton Superannuation Fund (the Fund) was established. [In 1926 the name was probably BHP Superannuation Fund.]

B. The Fund is administered in accordance with the Rules established under the Trust Deed (the Rules).

F. The Company [BHP Billiton] has resolved to appoint the New Trustee to the office of the trustee of the Fund." 145 Reference is made to Rule A.5.3 which deals with the retirement and appointment of the Trustee. 146 The Deed is expressed to be governed by the laws of Victoria. It has been executed by the retiring Trustee and the new Trustee and BHP Billiton Ltd. 147 The Trust Deed is subject to some proper law. It is that law which governs the Trust. The rules do not purport to amend the Trust Deed. 148 Having regard to a combination of the provision in the Rules, the provision in the Deed of Appointment and Retirement of Trustee, that BHP Billiton Limited's address is in Melbourne (see the address given in the Deed) and that its headquarters have been, as a matter of common knowledge, located in Melbourne for many years, it is more probable than not that the Trust Deed is governed by Victorian law. This necessitates consideration of the Limitation of Actions Act 1958 (Vic). 149 Section 5 of the Act deals, amongst other things, with actions based on simple contract or founded on tort. It contains specific provisions dealing with actions for defamation and for damages in respect of personal injuries and actions for an account. Section 5(3) provides: "(3) An action upon a bond or other specialty shall not be brought after the expiration of fifteen years from the date on which the cause of action accrued."

However, section 21(2) provides: "… an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of six years from the date on which the right of action accrued:

Provided that the right of action shall not be deemed to have accrued to any beneficiary entitled to a future interest in the trust property until the interest fell into possession." 150 The question is whether the plaintiff's action is one for which a period of limitation is prescribed by any other provision of the Victorian Limitation of Actions Act. This assumes that the plaintiff's action is one by a beneficiary to recover trust property or in respect of any breach of trust within s 21(2). 151 I think the plaintiff's action is one based upon the trust Deed rather than the rules which are subsidiary and made under the Deed. I do not regard the rules as having an independent existence. I think that the plaintiff's action is based on a specialty, that is, the Trust Deed establishing the superannuation fund. It is the Fund from which the lump sum benefit payable on Disablement (as defined) is paid. As, in my opinion, s 5(3) of the Act applies, the plaintiff's action is one for which a period of limitation is prescribed by another provision of the Act within the meaning of s 21(2) of the Act, so that his action is not caught by the limitation period of six years in that section. 152 I am of the opinion that the plaintiff's cause of action does not accrue until a decision is made (and possibly notice given of it to the applicant) or the Trustee declines or fails to make a decision within a reasonable period after its investigations and procuring specialist advice are completed. The latter is an unusual scenario which is unlikely to arise in practice and does not arise in this case. 153 The plaintiff also relied on s 5(8) of the Act which provides: "(8) This section shall not apply to any claim for specific performance of a contract or for an injunction or for other equitable relief, except in so far as any provision thereof may be applied by the Court by analogy in like manner as the enactment corresponding to that provision was applied before the repeal of that enactment by the Limitation of Actions Act 1995." 154 In Williams v The Minister (1994) 35 NSWLR 497 the applicant sought an order extending the period within which she could bring proceedings for damages against the Minster administering the Aboriginal Land Rights Act 1983 and the State of New South Wales. The Court paid careful attention to the Limitation Act 1969 (NSW). At 509 Kirby P stated that historically statutes of limitation did not apply to equitable claims. However, the courts of equity developed their own limitation defences, most importantly by the defence of Laches. Kirby P stated in relation to the NSW Limitation Act, "Analogous application of the Statute does not necessarily mean exact application of its terms." He had earlier stated that the NSW Limitation Act does not apply in its own terms to a cause of action for equitable relief, it only applies by way of analogy. 155 There are a number of ways in which the court could approach the operation of s 5(8). One way would be to determine, apart from s 5(8), the correct result on the construction of ss 5 and 21 of the Limitation of Actions Act (Vic). I have earlier expressed my view. The next step on this approach would be to consider whether s 5(8) results in the court applying s 5 by analogy. In McNeil (1932) 31 CLR 76 at 100, Isaacs J described the adoption of "the measure of time which Parliament has indicated in analogous cases" as the usual practice. His discussion of the principles at 100 is informative. There is no good reason in the present case why the court would not follow the result which would apply at law. 156 Another way would be to adopt a composite approach rather than a step-by-step approach. This would lead to the same result. A composite approach would be to note that the plaintiff's claim is based on an equitable cause of action and that what is involved is analogous application of the Victorian Limitation of Actions Act and that at law under that Act an action on a specialty (a Deed) cannot be brought after the expiration of 15 years from the date on which the cause of action accrued and hold that there is no reason why equity would not follow that result by analogy. That would allow the plaintiff's action to proceed. 157 The Trustee avoids that result by contending that the plaintiff's cause of action is based not upon the Deed but upon breaches of the Rules. 158 Section 21 of the Victorian Act is designed to deal with actions in respect of trust property. 159 Section 21(1) provides that no period of limitation prescribed by the Act shall apply to an action by a beneficiary in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy, or to recover trust property or the proceeds previously received by the trustee and converted to his use. 160 Section 21(3) limits the benefits a beneficiary can obtain. The terms of s 21(2) have been set out earlier and I have expressed my view as to its operation. That has to be read with the earlier provisions of the Act which, apart from s 5(8), deal with actions at law. 161 Section 5(8) confirms that limitation defences to claims for equitable relief based upon a deed are to be applied by analogy in the manner specified. 162 The Trustee submitted that s 5(8) has the effect that the fifteen-year period in s 5(3) does not apply to claims for equitable relief except insofar as s 5(3) may be applied by analogy. It further submitted that there is no occasion for applying s 5(3) by analogy where there is a direct limitation period in s 21(2) which applies to the proceedings. The Trustee submitted that the effect of s 5(8) is that s 5(3) does not apply to the proceedings. I do not agree that there is no occasion for applying s 5(3) by analogy. Section 21(2) refers to the action by a beneficiary "not being an action for which a period of limitation is prescribed by any other provision of this Act". 163 The Trustee further submitted that all facts which the plaintiff must prove to succeed had occurred by 15 November 1999 when the Trustee considered and decided to reject the plaintiff's application for Disablement benefit. It further submitted that subsequent affirmations by the Trustee of this 15 November 1999 decision do not create new causes of action. The decision of February 2001 involved a fresh consideration of the issues with further material as a result of the conciliation conference. In particular, the Trustee was asked to consider the statement signed by 19 work colleagues of the plaintiff. It also considered all adverse material. In any event, for the reasons given earlier, the six-year limitation period did not apply. 164 I reject the limitation defences.

Non Application of Rules of Natural Justice 165 As I have not applied the rules of natural justice in whole or in part, I have found it unnecessary to deal with the detailed submissions of the defendant that any defect or failure in the determinations of the trustee of 15 November 1999, March 2000 and February 2001 have been cured as a result of the proceedings before the Superannuation Complaints Tribunal. 166 I have earlier held that, as to the decision of the BRC on 15 November 1999, it focussed upon and considered the wrong question and, further, that it did not conduct a bona fide inquiry and engage in genuine decision making in not seeking from the plaintiff any information or response as to the thrust of the September 1999 report of Dr Kenner (excluding his surveillance recommendation) and the thrust of the information provided by Mr J Williams in the Notification of Disablement form. 167 The plaintiff was not asked to respond to or deal with the contention that he did not resign or retire due to Disablement but to accept a VRS package. There was material before the BRC that the plaintiff had resigned to accept a VRS package, but acceptance of such a package and retirement due to disablement are not mutually exclusive. An applicant who meets the Disablement definition could decide to struggle on until a VRS package became available, especially if he had heard that it was in the offing. The plaintiff contended that he had tendered his resignation based on Disablement and that the words as to a VRS package were added on the advice of a Superior Officer. 168 I have held that the BRC did not conduct a bona fide inquiry and engage in genuine decision making in its decision of March 2000 in not seeking from the plaintiff any information or response as to the thrust of the report of Dr Kenner of September 1999 (excluding his surveillance recommendation) and the thrust of the information provided by Mr J Williams, nor did it ask the plaintiff if he wanted to respond to the contention that he resigned not because of Disablement but to accept a VRS package. 169 The BRC did not conduct a bona fide inquiry and engage in genuine decision making in its decision of February 2001. It did not seek from the plaintiff any information or response as to the thrust of the report of Dr Kenner of 14 August 2000 and the thrust of the surveillance material. It did not make the surveillance videos available to the plaintiff. It did not consider the remarks of the operative carrying out the surveillance and the extent to which they may reflect upon the value of the surveillance material which was directed to the movements and activities of the plaintiff. The plaintiff was subsequently able to obtain medical reports discounting the value of the surveillance videos. 170 With the three earlier decision of 15 November 1999, March 2000 and February 2001 being set aside, the refusal of the defendant in February 2006 to further consider the plaintiff's application or complaint of February 2006 is of lesser importance. The report of Dr Gotis-Graham is useful so far as it deals with the plaintiff's present position in that it provides some support for the plaintiff's assertion of present Disablement. However, it needs to deal with the situation which probably existed in November 1998 and also within a reasonable time thereafter. 171 Dr Gotis-Graham is relying upon the history of the plaintiff in receiving injections and undergoing procedures including CT, myelogram and discogram shortly after his 1985 accident and the x-ray reports of 1 November 2001 and July 2003 as to the clumping of nerve roots involving the cauda equina. Dr Gotis-Graham thinks the plaintiff has arachnoiditis and that this is likely due to the interventions including myelogram, discogram and epidural steroid injection. Dr Gotis-Graham has written that the main factors limiting the plaintiff's return to any form of employment include his chronic lumbar spine pain associated with significant flares and the effect that analgesic medications and marijuana has on his ability to work. 172 What troubled some of the doctors retained by the Trustee was the lack of consistency in the back pain and the "flare-ups". The reports do not make clear when the arachnoiditis was probably first present and how long it has continued for, whether it was present in November 1998 and whether it is likely to explain the chronic lumbar spine pain and the flare ups. Dr Gotis-Graham refers to the effects of analgesics and marijuana on the plaintiff' ability to work. That may need to be further explored as Dr Hadlow (at p 3 of his report) deals with the medications the plaintiff is taking and Dr Kenner commented on the plaintiff's "relatively small intake of analgesics" (pp 3, 6. 7 of his report of September 1999). Whether the plaintiff was taking marijuana when he saw these doctors is an open question. It does not seem to have been mentioned. 173 Perhaps a further report from Dr Gotis-Graham may be helpful. 174 If I am wrong in setting aside the decisions of 15 November 1999, March 2000 and February 2001 of the BRC, I would not order the Trustee to reconsider its decision of February 2006 as I take the view that, because of the matters it does not cover, as previously mentioned, the report of Dr Gotis-Graham does not, by its terms, provide a sufficient basis to warrant the Trustee reconsidering the matter. That may change depending upon the terms of any further report from Dr Gotis-Graham. If a further report is to be submitted this should be done promptly. 175 On the three decisions of 15 November 1999, March 2000 and February 2001 being set aside, the consideration of further material would be permissible, including the radiology reports earlier mentioned (November 2001 and July 2003) and the reports of Dr Gotis-Graham.

Execution of Trust 176 The plaintiff submitted that the court should execute the Trust after hearing all the evidence. 177 In Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 at [63] McDougall J said: "The general rule is that when a trustee's decision is fundamentally flawed, it is in law no decision at all. In normal circumstances, the court will not itself exercise the discretion but will remit the matter to the trustee to be considered on a proper basis … "

and "I accept that, in the case of at least some kinds of discretionary trust powers, the Court may in a proper case execute the trust by substituting its own discretion for that of trustees (see McPhail v Doulton [supra] at 451 and cases there cited, and also at 457). … In my opinion it can only be right to take such a course where at the very least it is established that the existing trustees are unlikely to fulfil the relevant duty in a proper manner." 178 The plaintiff relied on the behaviour of the Trustee. He referred to the Trustee holding back materials from the plaintiff so that he did not know what was being said against him. There is the related fact that he was given no opportunity to respond to what was being put against him. 179 The plaintiff did not complain about the trustee undertaking video surveillance but he complained about not being told about material allegedly adverse to him and not being given an opportunity to meet it. Senior Counsel for the plaintiff submitted that it was what the Trustee did after receiving the surveillance material which was where it erred. 180 Senior Counsel for the plaintiff pointed out that no one from the defendant ever interviewed the plaintiff and that it did not ask him for his response to the material against him, that the trustee only heard from one person employed by BHP and that person had little to do with the plaintiff. The Trustee received a communication from 19 fellow workers and also one from Mr Wilkinson, a Supervisor of the plaintiff, all of whom supported what the plaintiff alleges. The Trustee rejected what they said despite the fact that they had an extended opportunity to observe and assess the plaintiff. 181 Senior Counsel accepted that the Trustee had a duty to investigate claims and to reject claims which were unjustified. The Trustee has the dual functions of considering and investigating applications on the one hand and, on the other, determining whether they should be accepted. In Tonkin, supra, Franklyn J pointed out that a Trustee is not an adversary either for or against an applicant for the benefit. Senior Counsel submitted that in the present case the behaviour of the Trustee was such that it was effectively acting as an adversary against the applicant. In this Court the Trustee conducted a vigorous and determined case against the applicant. The operative filming the plaintiff, particularly on 23 May 2000, adopted, by his comments, the approach of a vigorous adversary. 182 Having regard to the behaviour of the Trustee in the circumstances of the present case, I am of the opinion that the matter should not be remitted to the Trustee but that the Court should execute the Trust. 183 The Trustee submitted that the critical issue was a medical one. It is apparent that the Trustee wishes to rely on the surveillance material, and that the plaintiff wishes to rely on the observations of former fellow workers and Supervisors who witnessed how he coped with his daily work. The "flare ups", the fluctuating condition of the plaintiff, the differing assessments of the doctors of the surveillance material and generally, and the extent and disabling effect of the plaintiff's alleged chronic pain syndrome will require careful analysis. It should not be overlooked that, after medical examination, the plaintiff was granted a disability (or invalid) pension by the Commonwealth. In my opinion there were materials before the Trustee from which the Trustee (by the BRC) could reach the conclusion that the plaintiff did not satisfy the definition of disablement. The vice lay in the Trustee not disclosing adverse material to the plaintiff so he and his advisors had the opportunity to meet such material. This led to there being no bona fide inquiry and no genuine decision making. Both the plaintiff and some doctors discounted the value of the surveillance material. 184 The plaintiff should bring in Short Minutes to give effect to this judgment. I do not think that declarations should be made in terms of paragraphs 1, 3 and 4 of the relief claimed. Paragraph 6 of the relief claimed will need to be modified and confined to an order to the effect of that sought in the first line of that paragraph, that is, to the effect of the first order sought in that paragraph. I take the view that, as the decisions of 15 November 1999, March 2000 and February 2001 are being set aside, the refusal of the Trustee of February 2006 to further consider the plaintiff's application should be set aside. There should be no hindrance to the Court executing the Trust. I set the following timetable: a) On or before 8 May 2009 the plaintiff should serve on the defendant a draft of the Short Minutes of Order giving effect to this judgment which he seeks (with a copy to my Associate); b) on or before 15 May 2009 the defendant should serve on the plaintiff any amendment it seeks or its draft of the Short Minutes (with a copy to my Associate); c) list the matter on 19 May 2009 at 9.30 am to settle the Short Minutes and deal with any outstanding matters. **********

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