Barghouthi v ING Custodians Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Barghouthi v ING Custodians Pty Ltd [2003] FCA 1272

SUPERANNUATION COMPLAINTS TRIBUNAL – appeal on question of law – application struck out – no question of law disclosed.

Administrative Appeals Tribunal Act 1975 (Cth) subs 44(1)

Federal Court of Australia Act 1976 (Cth) s 32

Insurance Contracts Act 1984 (Cth)

Judiciary Act 1903 (Cth) s 39B(1A)(c)

Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 14, 37, 46(1)

Federal Court Rules

Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305

Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244

Australian Telecommunications Corporation v Lambroglou

Barghouthi v ING Custodians Pty Ltd [2003] FCA 636.

Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232

Burgundy Royale Investments Pty Ltd v Westpac (1987) 18 FCR 212

Commissioner of Taxation v Roberts (1992) 37 FCR 246

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Felix v General Dental Council [1960] AC 704

Hoddinott v Newton, Chambers & Co Ltd [1901] AC 49

Johnstone v Sutton (1786) 1 TR 510, 545; 99 ER 1225

Lombardo v Federal Commission of Taxation (1979) 40 FLR 208

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24.

National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562

Nizich v Commissioner of Taxation (1991) 91 ATC 4,747

Parisienne Basket Shoes Pty ltd v Whyte (1938) 59 CLR 369

Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330

Re Wakim; Ex parte McNaly (1998) 198 CLR 511

Waterford v The Commonwealth (1987) 163 CLR 54

Wespac Banking Corporation v Paterson (1995) 95 FCR 59

Brown “Fact and Law in Judicial Review” (1943) 56 Harv LR 899

Farnsworth “‘Fact’ or ‘Law’ in cases stated under the Income Tax Acts” (1946) 62 LQR 248

Jaffé “Judicial Review: Question of Law” (1955) 69 Harv LR 239

Jaffé “Judicial Review: Question of Fact” (1955) 69 Harv LR 1020

Morris “Law and Fact” (1942) 55 Harv LR 1303

Stern “Review of Findings of Administrators, Judges and Juries” (1944) 58 Harv LR 70

Wilson “A Note on Fact and Law” (1963) 26 Mod LR 609

RAMZI BARGHOUTHI v ING CUSTODIANS PTY LTD & OTHERS
N 505 of 2002

ALLSOP J
7 NOVEMBER 2003
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N505 of 2002

BETWEEN:

RAMZI BARGHOUTHI
APPLICANT

AND:

ING CUSTODIANS PTY LTD
FIRST RESPONDENT

ING LIFE LIMITED
SECOND RESPONDENT

PLESTEL PTY LIMITED
THIRD RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

7 NOVEMBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Paragraphs 2 and following of the notice of appeal filed on 31 May 2002 be struck out.

2.The applicant have leave to replead the notice of appeal as against the first and second respondents, any such further pleading is to be annexed to a notice of motion seeking leave to file the annexed draft amended notice of appeal, such notice of motion to be filed and served on…

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Details
Case
[2003] FCA 1272
Decision Date

CaseChat Overview and Summary

In this case, the applicant, Barghouthi, brought a complaint against ING Custodians Pty Ltd and another insurer regarding the denial of his claim for a Group Salary Continuance (GSC) benefit. The dispute arose from the applicant's claim that he sustained an injury while employed by Plessey and subsequently suffered from total disability. The insurer and the trustee rejected his claim, leading to the applicant lodging a complaint with the tribunal. The key legal issues involved the interpretation and application of the policy terms regarding eligibility for the GSC benefit, particularly focusing on the criteria for total disability and the timing of the injury in relation to the policy coverage.

The tribunal reviewed the insurer's decision and the trustee's subsequent review, finding that the applicant did not meet the eligibility criteria for the GSC benefit. The tribunal held that the applicant's injury did not occur within the specified time frame for coverage, nor was he considered totally disabled at the relevant times under the policy terms. The tribunal further noted that the applicant's employment with Transfield after leaving Plessey further complicated his claim. Based on these findings, the tribunal upheld the decision to deny the applicant's claim for GSC benefits.

The tribunal ordered that certain paragraphs of the appeal notice be struck out and granted the applicant leave to replead the notice of appeal against the first and second respondents. Additionally, the tribunal dismissed the amended notice of motion filed by the applicant and stood over the matter for directions and argument regarding costs. This decision confirmed the rejection of the applicant's claim for GSC benefits and set the stage for further proceedings concerning the costs associated with the tribunal's decision.

Orders

Orders of the court

1. Paragraphs 2 and following of the notice of appeal filed on 31 May 2002 be struck out.

2. The applicant have leave to replead the notice of appeal as against the first and second respondents, any such further pleading is to be annexed to a notice of motion seeking leave to file the annexed draft amended notice of appeal, such notice of motion to be filed and served on or before 5 December 2003.

3. The amended notice of motion filed by the applicant on 30 June 2003 and amended by hand be dismissed.

4. The matter be stood over for directions and argument as to costs on 19 December 2003 at 9.30 am.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ALLSOP J
By letter dated 7 August 2000 the 1 R-Trustee advised the applicant that his claim was rejected. The letter was in the following terms:We refer to your claim for the GSC benefit under the above policy. Your claim for the GSC benefit has been considered by Mercantile Mutual Life Insurance Company Limited (“the Insurer”). The Insurer has decided that your GSC claim should be declined.We advise that your claim has been referred to us, as the Trustee of the Fund, for a review of the Insurer’s decision. The Trustee notes the following:Facts1.You state that you sustained an injury on 16 October 1998, whilst employed by Plessey.2.You obtained leave without pay from Plessey on 29 December 1998.3.On 4 January 1999 you commenced full-time employment with Transfield.4.On 26 February 1999 Plessey formally terminated your employment. You continued to work for Transfield until 1 March 1999.As to terms of the Policy5.To be eligible for payment of benefit under a Group Salary Continuance specified criteria must be satisfied, including:(i)the sickness or injury must occur after the date of admission(ii)that a person must be a Member at the time claimant suffers from total disability;6.A person ceases to be a Member when that person ceases to be employed full-time by the participating employer.7.Total disability is defined in the policy as “total inability solely by reason of sickness or injury to engage in the Member’s trade, profession or occupation”.The Trustee notes that your date of entry into the Fund is 1 November 1998 and therefore you have not satisfied the criterion referred to at paragraph 5(i) above. Alternatively, the Trustee is of the view that you were not suffering from total disability on either of the dates you may be regarded as having ceased full-time employment with Plessey (that is on 4 January 1999, when you repudiated your employment with Plessey by commencing full-time work elsewhere, or on 26 February 1999 when Plessey formally terminated your employment). Therefore you have not satisfied the criterion referred to in paragraph 5(ii) above.The Trustee has accepted the views of the Insurer and has accordingly made an initial decision to affirm the Insurer’s decision that your claim for GSC be denied.[emphasis in original] On 13 November 2000, the applicant signed a complaint form with the Tribunal naming the “Mercantile Mutual Corporate Super” Fund and stating that the fund had declined his claim and that his claim was for his weekly income. He claimed his wages for two years or until he recovers (if before two years). In November 2000, the Tribunal joined the 2 R-Insurer as a party to the complaint under s 18 of the Act. The reasons, at least as at July 2000, for the 2 R-Insurer’s actions can be seen in a memorandum of the relevant claims assessor dated 13 July 2000 which was in the following terms:· The Member alleges that he injured his lower back at work on 16th October 1998 however he continued to undertake all his duties until 25th December 1998.· On 29th December, he informed his Employer of his injury and completed Workers Compensation Claim Forms. On this day, he requested leave without pay from 4th January 1999.· On 4th January 1999, the Member commenced full time work with Transfield. This was uncovered after PlesTel instigated surveillance as the authenticity of the Claim was in doubt. Confirmation of the Member’s employment with Transfield was confirmed by Lyn Longbottom (of Transfield). The Member completed a Pre-employment Questionnaire in November 1998 claiming that he was fit for full duties and had no injury. At no time did the Member advise PlesTel of his employment with Transfield.· The claim has been disputed and denied by both PlesTel and Royal & Sun Alliance Workers Compensation.· The Member sates on his Member’s Statement that he has been totally disabled since 1st March 1999, however he was dismissed on 26th February 1999 due to the fraudulent nature of his actions.· The Member was only off work for a total of 10 Days prior to commencing full time work at Transfield. There is a 90 Day Waiting Period applicable to this Policy in order to make a Claim and the Member was clearly not Totally Disabled for this period.We believe that this Claim should be denied as he was not Totally Disabled for the duration of the Waiting Period, notwithstanding the fraudulent nature of the Member’s actions. Furthermore, the Member is Claiming Total Disablement from a period when he was not in the employ of Plestel.Please refer the file to the Trustees for their decision.Reasons of the Tribunal

Ratio Decidendi

Legal Principle Established

Established by: ALLSOP J

Full text does not contain this section.