Cullinane v Mercer Benefit Nominees Limited - [2005] FCA 1470

FEDERAL COURT OF AUSTRALIA
Cullinane v Mercer Benefit Nominees Limited
(formerly known as Mellon Nominees Limited) [2005] FCA 1470

SUPERANNUATION – Superannuation Complaints Tribunal – whether Tribunal applied wrong test of applicant’s entitlement – ‘total and permanent disablement’ or ‘disablement’ – construction of deed establishing superannuation fund and deeds varying it.
WORDS AND PHRASES – ‘disablement’ – ‘total and permanent disablement’ – ‘unable’.
Superannuation (Resolution of Complaints) Act 1993 (Cth)
Lykogiannis v Retail Employees Superannuation Pty Ltd (2000) 97 FCR 361 followed
Colonial Mutual Life Assurance Society v Brayley [2002] FCA 1333 followed
Attorney General (Cth) v Breckler (1999) 197 CLR 83 followed
Pope v Lawler (1996) 41 ALD 127 followed
National Mutual Life Association of Australasia Ltd v Scollary [2002] FCA 695 followed
National Mutual Life Association of Australia Ltd v Jevtovic [1997] FCA 359 followed

Citicorp Life Insurance Ltd v Smith [2005] FCAFC 102 followed
Davis v Rio Tinto Staff Superannuation Fund Pty Ltd (2002) 118 FCR 170 followed
Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330 followed
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 followed
JUDITH ANNE CULLINANE v MERCER BENEFIT NOMINEES LIMITED
(formerly known as MELLON NOMINEES LIMITED)
WAD 44 of 2005
LINDGREN J
19 OCTOBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

WAD 44 OF 2005

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL CONSTITUTED BY ELLA DE ROOY (PRESIDING MEMBER),
CAROLYN RE (MEMBER) AND JANET MARTIN (MEMBER)

BETWEEN:

JUDITH ANNE CULLINANE
APPLICANT

AND:

MERCER BENEFIT NOMINEES LIMITED
(formerly known as MELLON NOMINEES LIMITED)
RESPONDENT

JUDGE:

LINDGREN J

DATE OF ORDER:

19 OCTOBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

WAD 44 OF 2005

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL CONSTITUTED BY ELLA DE ROOY (PRESIDING MEMBER),
CAROLYN RE (MEMBER) AND JANET MARTIN (MEMBER)

BETWEEN:

JUDITH ANNE CULLINANE
APPLICANT

AND:

MERCER BENEFIT NOMINEES LIMITED
(formally known as MELLON NOMINEES LIMITED)
RESPONDENT

JUDGE:

LINDGREN J

DATE:

19 OCTOBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT
INTRODUCTION

The applicant (‘Ms Cullinane’) ‘appeals’ to the Court under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (‘the Act’) from a decision of the Superannuation Complaints Tribunal (“the Tribunal”) given on 1 February 2005. The Tribunal is not a court and does not exercise judicial power, and an appeal from it is in the nature of an application in the original jurisdiction of the Court.
The Tribunal affirmed a decision of the first respondent (‘the Trustee’) to reject Ms Cullinane’s claim for a superannuation benefit. The Trustee made its decision in April 2003, after it received advice on 31 March 2003 from AMP Life Limited (‘AMP’).
AMP was the insurer in respect of certain superannuation benefits payable out of the superannuation fund in question, although…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FCA 1470
Decision Date: 19 OCTOBER 2005

CaseChat Overview and Summary

The case of Cullinane v Mercer Benefit Nominees Limited involves a dispute between Ms Cullinane, the applicant, and Mercer Benefit Nominees Limited, the respondent. The applicant is appealing against a decision made by the Trustee of a superannuation fund, which rejected her claim for a disability benefit. The dispute came before the Federal Court of Australia, where the primary issue was whether the Tribunal erred in its interpretation of the definition of 'disablement' under the relevant legislation.

The legal issues that the court had to address included whether the Tribunal correctly understood the definition of 'disablement' and whether it properly applied the test for 'fair and reasonable' decision-making as outlined in the legislation. Additionally, the court had to consider whether the Tribunal had sufficient evidence to support its findings and whether it had overlooked certain relevant considerations in its decision-making process.

In its reasoning, the court found that the Tribunal did not misconstrue the definition of 'disablement' nor did it fail to apply the statutory test for 'fair and reasonable' decision-making. The court held that the Tribunal's findings were supported by the evidence and that the applicant's arguments did not demonstrate any error on the part of the Tribunal. The court further noted that certain issues raised by the applicant were not properly before the Tribunal and hence could not form the basis for an appeal. Consequently, the application was dismissed with the applicant ordered to pay the respondent's costs.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Finally, Ms Cullinane submits that the Tribunal did not identify the quantum of work required in order to assess whether the definition of ‘disability’ was met, that is to say, whether Ms Cullinane had a full‑time or part‑time work capacity. However, this issue was not raised before the Tribunal and the Tribunal was therefore not required to address it: Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330 at [90]; cf Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at, 193 – 195 per Bowen CJ, 199 per Fox J, 205 per Deane J. In any event, I accept the Trustee’s submission that according to a proper understanding of them, the Tribunal’s findings amount to a finding that Ms Cullinane would be able eventually to return to substantially similar hours of work as those in which she had engaged, and there was sufficient material before the Tribunal to support a finding to that effect.CONCLUSION For the above reasons the application should be dismissed with costs.

Ratio Decidendi

Legal Principle Established

By her amended notice of appeal filed on 19 May 2005, Ms Cullinane suggests that the Tribunal erred in law in numerous respects. The grounds of appeals may be summarised as follows:(a)The Tribunal misconstrued the definition of ‘disablement’ by treating it as having the same meaning as ‘Total and Permanent Disablement’ in an insurance policy (‘the Policy’) issued by the Trustee’s insurer (the reference is to the ‘unable and unlikely ever again’ definition referred to at [30] above);(b)The Tribunal failed to apply the test laid down by s 37(6) of the Act because: ‘(i)Despite finding that the trustee’s decision was not fair and reasonable in relation to the applicant, in relation to the trustee’s finding that there was no medical test or objective method of verification that could be used to confirm that the applicant was suffering from the condition of MCS, the Tribunal affirmed the decision.(ii)The Tribunal failed to consider whether the trustee’s finding as to the applicant being able to undertake alternative duties was “fair and reasonable”; the Tribunal only considered whether it was “reasonable”.(iii)There was insufficient evidence before the Tribunal to support the trustee’s finding that the applicant was able to undertake alternative duties.(iv)It was an irrelevant consideration for the Tribunal to take into account:(A)the assessor’s opinion as to the applicant’s work capacity when the Tribunal considered whether the applicant met that part of the definition of “disablement” that addressed work capacity; or(B)whether it was fair and reasonable for the assessor not to take into account a report of a Dr CW when the assessor considered the applicant’s claim.’(c)The Tribunal failed to find that the Trustee’s decision was not ‘fair and reasonable’ within s 37(6) even though:‘(i)The trustee had erroneously considered that for the applicant to be eligible for a disablement benefit, the applicant must have left employment as a result of disablement; (ii)The trustee had not applied that part of the definition of “disablement that required consideration of whether the applicant had “a medical state of physical or mental incapacity”.(iii)The trustee had not applied that part of the definition of “disablement” that required consideration of whether the applicant had capacity “to engage in any gainful occupation or business or to perform any work for which, in either case, the [applicant] is reasonably fitted by education, training or experience”.(iv)The trustee had purported to find that the applicant was able to undertake alternative duties, but had not identified what those alternative duties were, or on what material it relied to make that finding.(v)The trustee had taken into account irrelevant considerations, namely an assessor’s opinion, despite the assessor’s opinion being bases on a different definition by which eligibility for a disability was to be established.’CONSIDERATION

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	WAD 44 OF 2005

BETWEEN:	JUDITH ANNE CULLINANE APPLICANT
AND:	MERCER BENEFIT NOMINEES LIMITED (formerly known as MELLON NOMINEES LIMITED) RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	19 OCTOBER 2005
WHERE MADE:	SYDNEY

JUDGE:	LINDGREN J
DATE:	19 OCTOBER 2005
PLACE:	SYDNEY