Busk v Board of Trustees of the State Public Sector Superannuation Scheme

[2008] FCA 2014

FEDERAL COURT OF AUSTRALIA

Busk v Board of Trustees of the State Public Sector Superannuation Scheme
[2008] FCA 2014

DONNA BUSK v BOARD OF TRUSTEES OF THE STATE PUBLIC SECTOR SUPERANNUATION SCHEME and SUPERANNUATION COMPLAINTS TRIBUNAL

QUD 171 of 2007

DOWSETT J
4 DECEMBER 2008
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 171 of 2007

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL CONSTITUTED BY ROSS CHRISTIE (PRESIDING MEMBER), CATHERINE DEAN (MEMBER) AND WILLIAM HASSELL (MEMBER)

BETWEEN: DONNA BUSK
Applicant

AND:

BOARD OF TRUSTEES OF THE STATE PUBLIC SECTOR SUPERANNUATION SCHEME
First Respondent

SUPERANNUATION COMPLAINTS TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	4 DECEMBER 2008
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.the application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) be dismissed; and

2.the appeal pursuant to s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 171 of 2007

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL CONSTITUTED BY ROSS CHRISTIE (PRESIDING MEMBER), CATHERINE DEAN (MEMBER) AND WILLIAM HASSELL (MEMBER)

BETWEEN: DONNA BUSK
Applicant

AND:

BOARD OF TRUSTEES OF THE STATE PUBLIC SECTOR SUPERANNUATION SCHEME
First Respondent

SUPERANNUATION COMPLAINTS TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	4 DECEMBER 2008
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. These proceedings arise out of a decision of the Superannuation Complaints Tribunal, reviewing a decision made pursuant to the superannuation arrangements in place with respect to State Government employees in Queensland.  The relevant superannuation document is the Superannuation (State Public Sector) Deed 1990 (Qld) (the “Deed”).  Pursuant to that deed a member of the superannuation scheme may be either a defined benefit member or an accumulation account member.  The matter has been conducted on the basis that the applicant is an accumulation account member.  At one stage, she suggested to the contrary, but there is no evidence to that effect.  The suggestion was probably a misunderstanding.  

2. One of the benefits to which the applicant was entitled was the benefit provided by cl 84 of the Deed.  It provides that the Superannuation Board will provide insurance against death or total and permanent disablement.  The term “total and permanent disablement” is defined in cl 4 of the Deed as follows:

   “Total and permanent disablement” means disablement of a degree which, in the opinion of the board after obtaining the advice of not fewer than 2 medical practitioners, is such as to render the member unlikely ever to be able to work again in a job for which the member is reasonably qualified by education, training or experience.

3. On 2 July 2003 the applicant was injured in a motor vehicle accident at work.  She was, at that time, employed by the Queensland Ambulance Service.  She received income support for some eight months and subsequently claimed the benefits payable upon the basis that she was totally and permanently disabled.  The Board decided that she was not totally and permanently disabled.  She applied to the Tribunal complaining, pursuant to s 14, that the decision was unfair or unreasonable. 

4. The Tribunal received written submissions and various documents from the parties. It upheld the decision. The applicant now appeals, pursuant to s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the “Resolution of Complaints Act”), against that decision. An appeal pursuant to that section is available only on a question of law. In fact, the applicant’s original application to this Court was in the form of an application for review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”), which provides numerous grounds other than error of law. At the commencement of proceedings today I extended time in which the applicant could apply pursuant to s 46 and also ordered that the application previously filed should stand as an application pursuant to that section. In other words, the applicant has two applications, one pursuant to the ADJR Act and the other pursuant to the Resolution of Complaints Act. There may be some doubt as to whether review pursuant to the ADJR Act is available in light of the specific provisions for appeal contained in s 46. Mr McLeod referred me to numerous decisions concerning that matter, but it is fair to say that the position is unclear. In the circumstances, and in view of the conclusion to which I have come concerning this matter, it is not necessary that I resolve the question. I proceed upon the basis that the applicant is entitled to make both applications.

5. The applicant advances three grounds of complaint. The first is that she was denied procedural fairness by the Tribunal. This complaint is clearly without substance. The Resolution of Complaints Act itself identifies the procedure which is to be followed in hearing a complaint pursuant to s 14. Section 32 provides that if the Tribunal has tried to settle the complaint by conciliation and failed, it is to fix a date for a review meeting. It is to notify the parties in writing, inviting written submissions, which the parties may make pursuant to s 33. Pursuant to s 24(1) the meeting is to be conducted without oral submissions from the parties, unless the Tribunal otherwise orders. The applicant was invited to make written submissions pursuant to ss 32 and 33. There can be nothing in this point.

6. In argument the applicant referred to a document which she had found in the course of the current proceedings.  She said that she had not previously seen it.  She does not rely upon it for present purposes.  In any event, the document is quite innocuous. 

7. Her second ground is an allegation of bias against the Tribunal.  Such an allegation is very serious.  The applicant’s argument is simply that the Tribunal’s decision, in light of the evidence, demonstrates bias.  I can see no justification for that conclusion.   The reasons disclose nothing more than that the Tribunal considered the evidence and formed a view based upon it.  Understood in that context the applicant’s complaint must be of actual and not apparent bias.  Such complaint is simply not made out on the evidence.  There is no basis for an allegation of apparent bias. 

8. I turn to the third ground.  It is rather discursive in nature.  It is not entirely clear that it raises a question of law at all, unless it be construed as an assertion that there was no evidence to support the Tribunal’s decision.

9. In its reasons the Tribunal set out the nature of the complaint and the history of the matter.  It also identified the source of the decision by the Board, which decision was  subject to review in the Tribunal.  The Tribunal then referred in detail to various aspects of the medical evidence.  A number of medical practitioners have been consulted in this matter.  As was said in the course of argument, some of the evidence is favourable to the position advanced by the applicant.  Other aspects of the evidence are not so favourable.  The Tribunal summarised the respective positions advanced by the applicant and the Board and then rehearsed the nature of its own function.  Having completed this process it concluded at para 44:

   For the reasons outlined above, the Tribunal considers that the decision of the Trustee that the Complainant was not [totally and permanently disabled] at the date she ceased employment with the Employer was fair and reasonable in its operation in relation to the Complainant in the circumstances.

10. No point would be served for present purposes in seeking to examine in detail the medical evidence. No specific criticism has been made of any aspect of the Tribunal’s deliberations. It has not been suggested that any of its observations concerning the evidence was incorrect, nor has it been suggested that any undisputed aspect of the evidence necessarily dictated a different result from that which the Tribunal reached. The applicant’s dissatisfaction is simply that - dissatisfaction with an outcome that has not met her expectations. In those circumstances there is no proper basis upon which this Court could interfere in the decision. Both the appeal pursuant to s 46 and the application pursuant to the ADJR Act will be dismissed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:        30 January 2009  

Counsel for the Applicant:	The Applicant appeared in person.
Counsel for the First Respondent:	Mr SA McLeod
Solicitor for the First Respondent:	Crown Solicitor
Counsel for the Second Respondent:	The Second Respondent did not appear.

Date of Hearing:	4 December 2008
Date of Judgment:	4 December 2008