Commonwealth Superannuation Scheme Board of Trustees v Kitching
[2004] FCA 605
•18 MAY 2004
FEDERAL COURT OF AUSTRALIA
Commonwealth Superannuation Scheme Board of Trustees v Kitching
[2004] FCA 605SUPERANNUATION – public service superannuation scheme – retirement benefits – retirement on ground of invalidity – whether the condition generalised anxiety disorder and depression was “connected with” the condition bipolar disorder – whether causal connection required – whether Superannuation Complaints Tribunal failed to apply the law correctly
Superannuation Act 1976 (Cth) ss 16, 54C, 66, 66(2), 66(2)(c), 66(2A), 153AH
Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 14(2), 17, 37(6), 46, 46(1)Federal Court Rules O 80
Commissioner of Superannuation v Benham (1989) 22 FCR 413 discussed
Commissioner for Superannuation v Miller (1985) 8 FCR discussed
Commissioner for Superannuation v Perrett (1989) 23 FCR 425 discussed
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Perrett v Commissioner for Superannuation (1991) 29 FCR 581 discussed
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited
Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 cited
COMMONWEALTH SUPERANNUATION SCHEME BOARD OF TRUSTEES v JOHN ANDREW KITCHING
V377 of 2002LEE J
18 MAY 2004PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
V377 OF 2002
BETWEEN:
COMMONWEALTH SUPERANNUATION SCHEME BOARD OF TRUSTEES
APPLICANTAND:
JOHN ANDREW KITCHING
RESPONDENTJUDGE:
LEE J
DATE OF ORDER:
18 MAY 2004
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The decision of the Superannuation Complaints Tribunal made 16 May 2002 be set aside and the matter remitted to the Tribunal for determination according to law.
2.There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
V377 OF 2002
BETWEEN:
COMMONWEALTH SUPERANNUATION SCHEME BOARD OF TRUSTEES
APPLICANTAND:
JOHN ANDREW KITCHING
RESPONDENT
JUDGE:
LEE J
DATE:
18 MAY 2004
PLACE:
PERTH
REASONS FOR JUDGMENT
LEE J:
This is an “appeal” under subs 46(1) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (“the Complaints Act”) from a decision of the Superannuation Complaints Tribunal (“the Tribunal”) whereby the Tribunal set aside a decision of the appellant (“the Trustee”) and determined that the respondent was “entitled to an invalidity benefit calculated without reference to the Benefit Classification Certificate [“the BCC”] issued in respect of the [respondent] on 6 April 1987”. Although described as an “appeal” the matter, of course, is a proceeding in the original jurisdiction of the Court.
The relevant facts may be shortly stated as follows.
The respondent is now 63. At the age of 15 he enlisted in the Australian Regular Army. When discharged from the Army at the age of 28 he had reached the rank of Captain. In 1968 it was diagnosed that the respondent suffered from the medical condition bipolar disorder and in 1969 he was discharged from the Army on that ground. Bipolar disorder is also described as “manic depressive psychosis” (“the condition”). Thereafter, the respondent took prescribed medication which successfully treated the condition.
Some years later, on 30 September 1986, the respondent commenced employment as a Commonwealth public servant in the Department of Employment, Education, Training and Youth Affairs (“DEETYA”). From that date he was an “eligible employee” for the purposes of the Superannuation Act 1976 (Cth) (“the Act”) and pursuant to s 16 of the Act he was required to undergo a medical examination.
The relevant provisions of s 16 read as follows:
‘(2)The Commissioner may, for the purposes of this section, require a person (other than a person to whom section 184 applies) who proposes to become or becomes an eligible employee to undergo, within such period as the Commissioner specifies, such medical examination or examinations by an approved medical practitioner or practitioners as the Commissioner determines.
(3)A report or reports of the result or results of the medical examination or examinations shall be furnished to the Commissioner.
(4)The Commissioner shall consider the report or reports, and such other matters (if any) as the Commissioner considers relevant, and, if he is of the opinion that there is a real risk that the person, by reason of or for a reason connected with a physical or mental condition or conditions referred to in the report or reports, will not continue to be an eligible employee until the person attains his maximum retiring age, the Commissioner shall issue a benefit classification certificate to that effect, being a certificate in which the relevant condition or conditions is or are specified.
...
(5)In the application of this Act to an eligible employee at any time, a reference in this Act to a benefit classification certificate that is in force in respect of an eligible employee shall, in the case of an eligible employee whose period of contributory service would, if he ceased to be an eligible employee at that time, be not less than 20 years or an eligible employee who has attained his maximum retiring age, be read as not including a reference to a benefit classification certificate that has been issued in respect of him.
...
(6)Where a benefit classification certificate is in force in respect of an eligible employee, he may, on grounds specified in the request, request the Commissioner to revoke the certificate or to revoke the certificate and issue in substitution for the certificate a new benefit classification certificate and, where an eligible employee makes such a request, he shall, within such period as the Commissioner requires, undergo such further medical examination (if any) or examinations by an approved medical practitioner or practitioners as the Commissioner requires.
(7)A report or reports of the result or results of the further medical examination or examinations shall be furnished to the Commissioner.
(8)The Commissioner shall consider the report or reports (if any), and such other matters as he considers relevant, and:
(a)where there is not more than 1 physical or mental condition specified in the benefit classification certificate and the Commissioner is of the opinion that there is not a real risk that the person, by reason of or for a reason connected with that condition, will not continue to be an eligible employee until he attains his maximum retiring age-the Commissioner shall revoke the certificate;
(b)where there is more than 1 physical or mental condition specified in the benefit classification certificate:
(i)if the Commissioner is of the opinion that there is not a real risk that the person, by reason of or for a reason connected with those conditions, will not continue to be an eligible employee until the person attains his maximum retiring age-the Commissioner shall revoke the certificate; or
(ii)if the Commissioner is of the opinion that there is a real risk that the person, by reason of or for a reason connected with 1 or some only of the conditions specified in the certificate, will not continue to be an eligible employee until he attains his maximum retiring age-the Commissioner shall revoke the certificate and issue in substitution for the certificate a new benefit classification certificate specifying only the condition or conditions in respect of which the Commissioner is of the opinion referred to in this subparagraph; and
(c)in any other case-the Commissioner shall refuse the request to revoke the benefit classification certificate and to issue in substitution for the certificate a new benefit classification certificate.
...’
On 14 October 1986, a Commonwealth Medical Officer examined the respondent. Pursuant to subs 16(4) of the Act a delegate of the Commissioner for Superannuation (“the Commissioner”) considered the report provided by the medical officer and issued the BCC which stated that the delegate was of the opinion that there was a real risk that the respondent “by reason of or for a reason connected with the...condition...manic depressive psychosis” would not continue to be an eligible employee until attainment of the maximum retiring age. From the date of issue the BCC was “a benefit classification certificate [‘bcc’] in force” in respect of the respondent for the purposes of the Act.
In January 1997 the respondent’s employment within the public service was transferred from DEETYA to “Centrelink”. It was accepted by the Trustee that since commencing work as a public servant in September 1986 the respondent had carried out his duties without being incapacitated by the condition. By reason of the nature of his work “at Centrelink”, in particular the need to deal with aggressive and abusive clients, the respondent developed the condition generalised anxiety disorder and depression and became unable to continue his work.
On 17 November 1999 a delegate of the Trustee issued a certificate under s 54C of the Act which approved retirement of the respondent from the public service on the ground of invalidity and certified that if the respondent so retired he would be entitled to receive benefits under the Act. On 18 November 1999, pursuant to subs 66(2A) of the Act, the same officer, as delegate of the Commissioner, decided that she was of the opinion that the incapacity that was the ground for the respondent’s retirement had been caused, or had been substantially contributed to, by the condition, or by a physical or mental condition connected with the condition. The only physical or mental condition identified by the delegate was the condition.
On 31 December 1999 the respondent retired on the ground of invalidity. On 24 February 2000, pursuant to s 153AH of the Act, the respondent requested the Trustee to review the foregoing decision of the Commissioner, made, apparently, as a delegate of the Trustee . On 11 October 2000 the Trustee affirmed the decision of the Commissioner that the respondent’s incapacity for work was caused, or substantially contributed to, by the condition. The Trustee provided reasons for its decision which included the further statement that although the point was unnecessary to decide, it could be said that a physical or mental condition “depressive illness and generalised anxiety disorder”, (“the further condition”) had substantially contributed to the incapacity and was “connected with” the condition.
On 19 November 2000, pursuant to subs 14(2) of the Complaints Act, the respondent sought review by the Tribunal of the Trustee’s decision. On 16 May 2002 the Tribunal set aside the Trustee’s decision.
The Trustee now “appeals” from the decision of the Tribunal. The jurisdiction conferred on the Court by s 46 of the Complaints Act is limited to “an appeal on a question of law”. The limitations of that jurisdiction are discussed by Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178‑182. The questions of law on which the “appeal” rested were said to be whether the Tribunal had applied the proper construction of subs 66(2A)(c) of the Act and whether the Tribunal had made a finding of fact in the absence of evidence. On the hearing of the “appeal” the Trustee was represented by senior counsel. The respondent was represented by counsel assigned by the Court pursuant to O 80 of the Federal Court Rules. It is appropriate to record that the continued willingness of the legal profession to accept assignments under O 80 and to provide services ‘pro bono publico’ promotes the efficient conduct of Court business and the interests of justice.
The principal submission made by counsel for the Trustee was that the Tribunal misunderstood and, therefore, failed to apply to the facts before it the proper construction of subs 66(2A)(c). The further submission that the Tribunal had made a finding of fact in the absence of evidence to support it was peripheral to the primary submission.
The relevant part of the Tribunal’s reasons commenced with a summary of the findings that followed and read as follows:
‘Summary of findings
The Tribunal considered the relevant legislation and all of the evidence including the medical evidence and decided that on balance, the invalidity which was the ground for [the respondent’s] retirement was not caused or substantially contributed to by a condition specified in the BCC issued to [the respondent] on 6 April 1987, namely “manic depressive psychosis”.
The BBC [sic] certificate was issued on 6 April 1987, 12 years before [the respondent’s] retirement. It was not reasonable to treat the certificate as being in force “immediately before the person’s retirement”.
Furthermore, the Tribunal found on the evidence that the ground for the [the respondent’s] retirement, namely anxiety, was not caused by “manic depressive psychosis”. Anxiety is not a function of bipolar affective disorder. There is an important psychiatric distinction. The second condition suffered by the [the respondent] was almost a new illness, as applied to someone who was already unwell.
Furthermore, if the [the respondent] had not transferred to Department C, it was unlikely he would have suffered from this condition.
The Superannuation Act 1976
In examining the medical evidence regarding [the respondent’s] incapacity, the Tribunal considered Section 66(2A)(c) of the Act which requires that “the incapacity which will be the ground for the person’s retirement was caused or was substantially contributed to, by a physical or mental condition or conditions specified in the certificate or by a physical or mental condition or conditions connected with such a condition or conditions”.
The question, therefore, was whether [the respondent’s] incapacity was caused or was substantially contributed to, by the condition specified in the certificate, namely ‘manic depressive psychosis’ or by a connected condition.
The medical evidence
[The respondent] was first diagnosed with bipolar disorder in 1968. The Tribunal was not provided with a history of [the respondent’s] symptoms at that time, nor did Dr PB, the psychiatrist, seek or obtain a history of specific symptoms suffered by [the respondent] from 1968 until 1986. Nevertheless, the Tribunal is satisfied that [the respondent] suffered with bipolar disorder and had been successfully treated with Lithium Carbonate since is diagnosis, apart from some relapses requiring hospitalisation, the last being in 1982. There was no evidence before the Tribunal relating to [the respondent’s] presentation or symptoms during these relapses.
From 1982 until 1997, [the respondent’s] condition remained “reasonably well controlled with Lithium Carbonate.” However, due to work stresses which commenced in 1997 when he was moved from department D to Department C of the Employer, [the respondent] developed “an exacerbation of both anxiety and depression” according to Dr JP and “symptoms [which]...were consistent with the depressive phase of his bipolar disorder, but in addition he had a wide array of symptoms of a general anxiety disorder” according to Dr PB.
Dr PB further defined bipolar disorder as “as long standing condition characterised by relapses of depression and of mania, which is usually well controlled in most patients with Lithium Carbonate. There were no symptoms of mania...[in [the respondent]]...in the 1997 to 1999 period.”
There was no evidence before the Tribunal that a “general anxiety disorder” which [the respondent] was diagnosed as suffering by Dr PB after 1997, is part of the condition “bipolar disorder”. There is no evidence that the depression which [the respondent] developed at this time may be a part of his bipolar disorder, but that this was not necessarily the case. According to Dr PB “there are no distinguishing features between the signs or symptoms of a depressive illness which develops...[as a result of major stress in the workplace]...and that during the depressive phase of a bipolar disorder.” Dr PB explained that “...[the respondent] had much more severe anxiety than usually seen in patients during the depressive phase of bipolar disorder” and that “many of the symptoms he had...were those often seen by people who have major psychiatric disturbance secondary to work stress and who do not have an underlying bipolar disorder”.
The Tribunal accepts that it is difficult to distinguish whether or not depression in an individual with pre-existing Bipolar disorder is a part of that Bipolar disorder or has arisen de novo, so to speak, as a result of stress in the workplace. However the Tribunal is satisfied that this dilemma was addressed by Dr PB in his report dated 1 September 2001 wherein he states: “the depression which...[the respondent] developed in 1997 as a result of the stress he experienced while working at...[Department C], on the balance of probabilities would have been caused by stress in his work triggering a major depressive disorder which would have occurred regardless of whether or not...[the respondent] had pre-existing bipolar disorder.” [Tribunal’s emphasis]
The Tribunal therefore has evidence that between 1997 and 1999 [the respondent] suffered with a generalized anxiety disorder which is not a recognised symptom of a Bipolar disorder, a major depression which Dr PB conceded would have arisen regardless of his history of Bipolar disorder and furthermore there is no evidence of a manic phase of the Bipolar disorder. On this evidence, it appears to the Tribunal that [the respondent] suffered with a psychiatric disease which developed in 1997 but which did not fit the template of a Bipolar disorder and indeed, was not specifically diagnosed as a Bipolar disorder by Dr PB. Dr PB stated only that “Bipolar disorder placed...[the respondent] at a higher risk of developing his psychiatric breakdown in reaction to the major stress he encountered in the work force.” Dr JP, who is not a psychiatrist, commented that [the respondent’s] anxiety and depression were “related to “his” longstanding bipolar affective disorder”.
The question for the Tribunal to address, however, is not whether [the respondent] was at a higher risk of developing his breakdown due to his pre-existing Bipolar disorder, nor whether the [the respondent’s] anxiety and depression were related to this Bipolar disorder but whether his incapacity was “caused or was substantially contributed to, by” the Bipolar disorder.
[The respondent’s] Bipolar disorder had been well controlled since 1982. After commencing work...[Department D] in 1987 he had remained well until transfer to...[Department C] in 1997. It was only then that he developed symptoms which, as described above, were not essentially those of a Bipolar disorder, but rather a generalised anxiety disorder together with a major depression which Dr PB believed would have developed as a result of stress at work regardless of whether or not [the respondent] had per-existing Bipolar disorder. The Tribunal is therefore not satisfied that [the respondent’s] illness was “caused” by his Bipolar disorder.
The Tribunal then examined whether or not [the respondent’s] incapacity was “substantially contributed to, by” the Bipolar disorder. As outlined above, both Drs PB and Dr JP believed that [the respondent’s] Bipolar disorder did play a role in, or contribute to some degree, to the illness which developed in 1997. However, the Tribunal is satisfied that Dr PB’s evidence of September 2001 strongly supports the contention that it was the stress in [the respondent’s] work place that triggered his illness, and that on the balance of probabilities, this illness would have developed regardless of whether he had pre-existing Bipolar disorder. The Tribunal understands this to mean that it was the stress in [the respondent’s] work place that was the substantial contributor to [the respondent’s] 1997 breakdown, not his pre-existing Bipolar disorder.
Therefore, the Tribunal is not satisfied that the incapacity which was the ground for [the respondent’s] retirement was caused or was substantially contributed to, by his Bipolar disorder. It follows that the decision of the Trustee was not fair and reasonable in the circumstances in its operation in relation to [the respondent].’
Subsections 66(2), (2A) of the Act read as follows:
‘(2)Subject to subsections (3), (3A) and (4) of this section and section 79, where:
(a)a person ceases to be an eligible employee by reason of retirement on the ground of invalidity before attaining his maximum retiring age;
(b)there was in force in respect of the person, immediately before the person’s retirement, a benefit classification certificate; and
(c)the Commissioner is of the opinion that the incapacity which was the ground for his retirement was caused, or was substantially contributed to, by a physical or mental condition or conditions specified in the certificate or by a physical or mental condition or conditions connected with such a condition or such conditions;
the person is entitled:
(d)where the period of contributory service of the person is not less than 8 years:
(i)if the person does not make an election under section 71 or 72-to invalidity pension in accordance with section 70 and, where the person has paid supplementary contributions, a lump sum benefit in accordance with that section;
(ii)if the person makes an election under section 71-to invalidity pension, and a lump sum benefit, in accordance with that section; or
(iii)if the person is entitled to make an election under section 72 and makes such an election-to a lump sum benefit in accordance with that section; or
(e)where the period of contributory service of the person is less than 8 years-to a lump sum benefit in accordance with section 73.
(2A) Where the Commissioner is of the opinion that:
(a)a person will, in the near future, cease to be an eligible employee by reason of retirement on the ground of invalidity before attaining the person’s maximum retiring age;
(b)there will be in force in respect of the person, immediately before the person’s retirement, a benefit classification certificate; and
(c)the incapacity which will be the ground for the person’s retirement was caused, or was substantially contributed to, by a physical or mental condition or conditions specified in the certificate or by a physical or mental condition or conditions connected with such a condition or such conditions;
then:
(d)the Commissioner shall inform the person in writing that the Commissioner had formed the opinions referred to in paragraphs (a), (b) and (c); and
(e)where the person becomes a person referred to in paragraph (2)(a) and to whom paragraph (2)(b) applies, the Commissioner shall be taken to have formed the opinion referred to in paragraph (2)(c) in relation to that person immediately on the person becoming a person referred to in paragraph (2)(a) unless, whether before or after the person became a person so referred to, the Commissioner informed the person in writing that this subsection is not to apply to the person.’
It is to be noted that there is a variation between the words used in subs 66(2), (2A) and s 16 to define the circumstances in which a bcc may issue to condition the operation of the former subsections. No reason for that difference in terminology is apparent in the Act and on their face the provisions are directed to the same outcome. Subsections 16(4), (8) make it plain that it is intended by the Act that an eligible employee be given notice by the issue of a bcc of a defined future event that will be treated by the Commonwealth as a disqualifying factor in respect of payment of some part of the benefits payable to the employee under the Act. The future event defined by the issue of a bcc under s 16 is the incapacity of the employee to continue employment until the maximum retiring age where that incapacity is “by reason of” the condition or conditions specified in the bcc or “for a reason connected with” that or those conditions.
In Commissioner for Superannuation v Perrett (1989) 23 FCR 425 Jenkinson J, (at 432-433), suggested that ss 16 and 66 served different purposes in that s 16 dealt with an uncertain future cause of incapacity whilst s 66 dealt with a known cause and, therefore, perhaps it had been unnecessary in s 16 to refer to the possibility that the actual cause of incapacity may not have had a causal connection with the condition specified in the bcc. The infelicitous lack of symmetry between the two provisions does not speak necessarily of such a legislative intent and, with great respect to his Honour, no justification for that conclusion is provided by the Act as a whole, or by the purpose to which ss 16 and 66 in combination are directed.
Insofar as subs 66(2), (2A) refer to an incapacity that is ground for retirement “caused, or...substantially contributed to, by a...condition...connected with [the] condition” specified in a bcc, and subss 16(4), (8) refer to “a real risk” that the employee will “not continue to be an eligible employee” until the maximum retiring age “for a reason connected with” the condition specified in a bcc, it is not obvious that the former subsections are intended to introduce a lesser degree of connection between the incapacitating condition and the condition specified in the bcc, than that set out in subs 16(4), (8). Subsections 66(2), (2A) better define the disqualifying event by specifying that the cause of the incapacity that is connected with the condition specified in the bcc must also be a “physical or mental condition”. The meaning of the words “connected with” where used in ss 16 and 66 should be taken to be constant and that the purpose of the Act is that there be a causal link between the conditions.
So much was stated by Davies J in Commissioner for Superannuation v Miller (1985) 8 FCR 153, (at 154-155):
‘In the context, it appears to me that the words “connected with” were introduced to deal with the circumstance where the early retirement arises not from the medical condition which existed at the time the employee became an eligible employee but as a result of another medical condition that arose out of or developed from that condition. Thus, in the present case, the immediate or proximate cause of the retirement was not the employee’s condition of “hormonal mastopathy presenting as breast lumps”, which had ceased to exist, but from the adhesions which had arisen as a result of the operation on the employee’s breasts.
In the context, I would read the words “connected with” in ss 16(10)(b) and 66(2)(c) as dealing with the circumstance where the immediate or proximate cause of the incapacity leading to the retirement was a medical condition other than the condition existing at the time the employee became an eligible employee but where, nevertheless, there is a chain of causation such that the medical condition existing at the time when the employee became an eligible employee can be said, through a chain of events, to have caused or substantially contributed to the incapacity causing the retirement.’
Pincus J, (at 163), expressed agreement with the opinion of Davies J that a causal connection was required:
‘The expression “connected with” is not very precise. It is my view that the sort of connection which is meant is a causal one. For the purposes of s 16(10)(b) and s 66(2)(c) of the Superannuation Act 1976 (Cth), two conditions are connected with one another if there is a substantial causal link between the two. That may be so because one is a cause of the other, or because both have a common cause. It is my opinion that unless there is a substantial causal link, there is no connection. I appreciate that the word “substantial” introduces questions of degree, but they are neither questions which need to be resolved for the purposes of this case, nor questions as to which one can usefully give any guidance. The view I have expressed on this point accords, I think, with that set out in the reasons of Davies J.’
Beaumont J (at 160) said, without deciding, that if a causal connection were required it was present on the facts of that case.
In Commissioner of Superannuation v Benham (1989) 22 FCR 413 Morling, Beaumont and Burchett JJ, (at 420), commented as follows on the question of construction addressed in Miller:
‘Although, as Pincus J pointed out, his addition of the word “substantial” was perhaps not at odds with the views Davies J expressed, and both spoke in terms of a causal link, there is significant difference between their applications of this concept to the terms of s 66(2)(c). For Davies J, the associated condition must have arisen out of or developed from the certificated condition, so that it could be said the incapacity was caused by the certificated condition. For Pincus J, it would suffice that each condition arose from some common origin, and that the incapacity was caused by the associated condition. There is discord between the constructions of the section.
The third judgment is that of Beaumont J. His appears to us to be the majority view, since Davies J, while adding comments to which reference has been made, expressed general agreement with it. Beaumont J expressly refrained from asserting that the required connection must necessarily be causal.’
With great respect to their Honours the respective reasons of Davies J and Pincus J were in accord on the need for a “chain of causation” or a “substantial causal link” and each disavowed the possibility canvassed in the reasons of Beaumont J that in subs 66(2) the words “connected with” may encompass mere association and absence of a causal connection. It would be unsafe to attribute to the reference made by Pincus J to the possibility that two conditions may have a “common cause” the conclusion by his Honour that it was unnecessary for there to be a causal connection between the conditions. The full context of the reasons of Pincus J make it clear that it was his Honour’s opinion that there had to be a causal connection.
It is to be noted that in Benham their Honours did not hold that if the construction applied by Davies J and Pincus J required the words “connected with” to be read as a causal connection such a construction was plainly wrong.
In Commissioner for Superannuation v Perrett (1989) Jenkinson J adopted the construction he thought Beaumont J had decided upon in Miller, namely, that the words “connected with” were intended to extend to and include a link or association between medical conditions that was short of cause and effect. His Honour ventured the opinion that “such a link or association might be constituted by a higher incidence in a community, of a medical condition among those of the community in whom another medical condition is known to exist than among the rest of that community”. With great respect to his Honour, as set out above, the reasons provided in Miller by Davies J and Pincus J did not permit his Honour to treat Miller as authority for that view. Indeed it is difficult to see how the Act could have intended such a meaning to be applied given that it would leave at large the measure of disparity of incidence that would determine what fell within or outside the words “connected with”.
On appeal from the decision of Jenkinson J in Perrett v Commissioner for Superannuation (1991) 29 FCR 581, Wilcox, Burchett and Ryan JJ, (at 592), said that it was “too late to reopen the issue of causality” in respect of the proper construction of s 66. Although their Honours did not say that the reasons set out in Miller permitted the Full Court in Benham to reject the argument that the words “connected with” required a causal relationship to be shown, they accepted that Benham had proceeded to do so and endorsed that view.
In my respectful opinion no decision of this Court has treated the respective reasons of Davies J and Pincus J in Miller to be plainly wrong and, until so dealt with, Miller remains as authoritative as subsequent expressions of view upon the proper construction of s 66. For the reasons I have already expressed, I am of the opinion that the statements in Miller cannot be said to be plainly wrong, and, with respect, I consider them to construe correctly the words “connected with” as used in ss 16 and 66, namely, that a causal connection is required to be established between the condition which causes incapacity for employment and the condition or conditions specified in a bcc.
Ordinary fairness dictates that the foregoing construction was intended by Parliament. By the use of a bcc the Commonwealth gives notice to an eligible employee of the event that will reduce the amount of retirement benefits to which the employee will otherwise be entitled under the Act, such benefits being obtained from the contributions made by the employee and the Commonwealth during the period of the employee’s employment. Section 66 cannot be read in isolation and must be read together with s 16 under which a bcc is issued and a disqualifying event defined.
Furthermore, the objective of the Act is to provide for benefits to be paid as the outcome of contributions made to a superannuation scheme and if there is ambiguity in provisions of the Act that impose a limitation upon the amount of benefits that would ordinarily be payable, the more benevolent construction must be preferred as more consonant with the purpose of the Act (See: Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 per Fullagar J at 335).
Turning now to the grounds of the “appeal” I accept the submission of counsel for the Trustee, that the Tribunal did not follow the requirements of the Act in reaching its decision. The Tribunal considered only whether the condition specified in the BCC caused the incapacity for employment and did not consider whether a condition “connected with” that condition caused, or substantially contributed to, that incapacity.
Although in the extract from the Tribunal’s reasons set out above the Tribunal began by reciting correctly the requirements of the Act and, therefore, may be taken to have understood the questions it had to answer, the Tribunal thereafter failed to address the question whether the further condition was “connected with” the condition. Indeed the Tribunal stated that it did not need to consider whether the further condition was “related” to the condition and stated that the only question to be determined was whether the incapacity for employment was caused, or substantially contributed to, by the condition.
The Tribunal proceeded to find that it was not satisfied that the incapacity that became the ground for the respondent’s retirement was caused, or substantially contributed to, by the condition. The Tribunal appeared to be satisfied that the incapacity had been caused, or substantially contributed to, by the further condition. Although the Tribunal did state that it was not satisfied that the respondent’s “illness” was “caused” by the condition it is apparent that the Tribunal meant to state that it was not satisfied that the “incapacity” was “caused” by the condition and that the reference to “illness” did not indicate that the Tribunal had considered the question whether the further condition had been causally “connected with” the condition.
Counsel for the respondent submitted that it should be inferred that the Tribunal considered the issue of “connection” between the condition and the further condition but I am unable to be persuaded that is so. Although the reasons of the Tribunal are not to be read through a prism calibrated to the discovery of error, (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) the clear words used by the Tribunal leave no room for the inference contended for.
It is unnecessary to deal with the further submissions on the finding of fact said to have been made by the Tribunal in the absence of evidence.
Notwithstanding that if the Tribunal had properly instructed itself on the law to be applied to the facts before it and had addressed the right question as required by the Act, it may have been open to the Tribunal to arrive at the same conclusion, the Tribunal did not make a decision it was authorized by the Act to make and it follows, therefore, that the “appeal” must be allowed, the decision of the Tribunal set aside and the matter remitted to the
Tribunal for determination according to law. The Trustee undertook not to seek costs against the respondent if the Trustee succeeded in the appeal and there will be no order as to costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate:
Dated: 18 May 2004
Counsel for the Applicant:
P J Hanks QC Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: R J L McCormack (pro bono publico) Date of Hearing: 21 October 2003 Date of Judgment: 18 May 2004
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