Cullinane v Mercer Benefit Nominees Ltd - [2006] FCAFC 82

FEDERAL COURT OF AUSTRALIA
Cullinane v Mercer Benefit Nominees Limited [2006] FCAFC 82
SUPERANNUATION – appeal from decision of Superannuation Complaints Tribunal affirming decision of trustee of superannuation fund to reject member’s claim for disablement benefit – dismissal of appeal by primary judge – requirement under superannuation fund trust deed that complainant have a “physical or mental incapacity” which renders her “unable to engage” in relevant work – whether Superannuation Complaints Tribunal erred by interpreting phrase “unable to engage” as meaning “permanently unable” – whether primary judge erroneously conflated expressions “permanently unable” and “unable now and for the foreseeable future” – whether requirements for disablement benefit satisfied by complainant demonstrating she has a physical or mental incapacity and is unable to work now and for the foreseeable future
Held: (i) “permanently unable” is a more stringent requirement than “unable now and for the foreseeable future” (ii) the Tribunal erred in requiring the appellant to be “permanently unable” to engage in relevant work (iii) the appellant is entitled to have her claim considered against the requirement that she has a physical or mental incapacity which renders her unable to engage, now and for the foreseeable future, in relevant work
WORDS AND PHRASES – “incapacity” and “unable”
Al-Kateb v Godwin (2004) 219 CLR 562 referred to
Ball v William Hunt & Sons, Limited [1912] AC 496 referred to
Chammas v Harwood Nominees Pty Ltd (1993) 7 ANZ Insurance Cases ¶61-175 referred to
Leeder v The Mayor, Etc, of the Town of Ballarat East [1908] VLR 214 referred to
Minister forImmigration and Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259 cited
Repatriation Commission v Moss (1982) 59 FLR 226 referred to
Sinanoglou v Australian Iron and Steel Pty Ltd (1967) 68 SR (NSW) 279 referred to
Superannuation (Resolution of Complaints) Act 1993 (Cth), s 37(6)
JUDITH ANNE CULLINANE v MERCER BENEFIT NOMINEES LIMITED (formerly MELLON NOMINEES LIMITED)
NSD 2158 OF 2005
TAMBERLIN, WEINBERG & ALLSOP JJ
29 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2158 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL
COURT OF AUSTRALIA

BETWEEN:

JUDITH ANNE CULLINANE
APPELLANT

AND:

MERCER BENEFIT NOMINEES LIMITED (formerly MELLON NOMINEES LIMITED)
RESPONDENT

JUDGES:

TAMBERLIN, WEINBERG & ALLSOP JJ

DATE OF ORDER:

29 MAY 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1. The appeal be allowed.
2.The orders made by the primary judge be set aside.
3.The respondent pay the appellant’s costs of this appeal, and below.
4.The matter be remitted to the Superannuation Complaints Tribunal to be determined according to law.

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

NSD 2158 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL
COURT OF AUSTRALIA

BETWEEN:

JUDITH ANNE CULLINANE
APPELLANT

AND:

MERCER BENEFIT NOMINEES LIMITED (formerly MELLON NOMINEES LIMITED)
RESPONDENT

JUDGES:

TAMBERLIN, WEINBERG &…

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.

Keep reading for free

Create a free CaseChat account to read Cullinane v Mercer Benefit Nominees Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] FCAFC 82
Decision Date: 29 May 2006

CaseChat Overview and Summary

The case of Cullinane v Mercer Benefit Nominees Ltd involved an appeal against a decision of the Superannuation Complaints Tribunal (SCT) regarding the denial of a claim for disablement benefits by the appellant, Ms Cullinane. The SCT had concluded that Ms Cullinane’s claim for disablement benefits under the Flight Attendants' Superannuation Scheme (FAB Scheme) was not substantiated because she had not met the criteria for total and permanent disablement. The primary issues for determination were whether the SCT had correctly applied the statutory definition of "disablement" and whether the medical evidence adequately supported the SCT's conclusion.

The court examined the varying medical opinions presented to the SCT, noting significant differences in diagnoses and prognoses regarding Ms Cullinane’s condition. The Tribunal had accepted that Ms Cullinane had been exposed to airborne chemicals at work, resulting in a diagnosed condition of multiple chemical sensitivity (MCS). However, the SCT had determined that the evidence did not support a finding of total and permanent disablement as Ms Cullinane’s capacity to work, while limited, was not entirely precluded. The court found that the SCT had erred in applying the wrong standard of disablement by initially assuming Ms Cullinane's claim was for total and permanent disablement rather than the correct category of disablement benefit under the FAB Scheme.

Consequently, the court allowed the appeal, setting aside the orders made by the primary judge. It remitted the matter back to the SCT to be determined according to law, ensuring that the correct standard of disablement was applied. Additionally, the court ordered the respondent to pay the appellant’s costs of the appeal and the proceedings below. This decision underscored the importance of precise statutory interpretation and the application of appropriate evidentiary standards in social security appeals.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders made by the primary judge be set aside.

3. The respondent pay the appellant’s costs of this appeal, and below.

4. The matter be remitted to the Superannuation Complaints Tribunal to be determined according to law.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Tribunal correctly identified its role as being to determine whether the decision of the Trustee was “fair and reasonable” in its operation in relation to the appellant in the circumstances. It approached the matter in that way in accordance with s 37(6) of the SRC Act which provides that the Tribunal “must affirm” a decision of a trustee if it is satisfied that the decision, in its operation in relation to the complainant “was fair and reasonable in the circumstances”. the medical evidence The Tribunal’s reasons for decision set out in some detail the medical evidence that had been before the Trustee. It observed, correctly, that medical opinion varied greatly as to the nature and seriousness of the appellant’s condition. Some reports had been prepared in relation to her workers’ compensation claim. The issues relating to that claim were, of course, different from those relating to the claim for disablement benefit. The early reports, prepared soon after the commencement of her illness, suggested that there may have been a problem with leakage of the air conditioning unit chemicals into the atmosphere in the aircraft, but generally posited that this would not produce a lasting reaction. One medical expert, Dr Andrew Marsden, a specialist occupational health physician, in reports dated 17 February 1998 and 23 April 1998, described the appellant’s overall presentation, in unfavourable terms, as being “one of a major crusade”, and displaying “significant functional overlay”. Dr Marsden went on to say that he was not convinced that she had a chemical sensitivity. He diagnosed hypoglycaemia, and stated that in his opinion, this diagnosis would not preclude work. On the other hand, Dr William Barnes, a general medical practitioner and the appellant’s treating doctor, saw her on many occasions from April 1998 to September 2002. He prepared seven separate medical reports, finally diagnosing her with multiple chemical sensitivities, and chronic fatigue syndrome. His report of 19 July 2001 concluded that the appellant would not be able to return to work “for some considerable time”. With regard to alternative employment, he concluded that she would only be able to work very limited hours, and that her neurocognitive disabilities, coupled with her fatigue, would make it difficult to hold down a job. On 3 October 2001, he said that she would not be fit to return to work “in the foreseeable future” because of ongoing problems with memory, cognition, fatigue, depression, coordination and stamina. On 25 September 2002, he described her as “unemployable” and stated that, in his opinion, she would “remain so in the unforeseeable [sic] future”. Dr Wai-on Phoon, a professor of occupational health, provided two reports at the appellant’s request. He concluded from an examination of the documents supplied to him, that she had probably been exposed to a toxic chemical or chemicals in November 1997, but that there was no definite evidence of residual organ system damage. He stated that it was not possible to give an opinion as to whether she was fit for work, or whether she had any permanent disability, as he had not examined her. An examination was then arranged. His second report described her as being, clinically, “in reasonably good health”. However, he said that he did not think it possible for her to resume her career as a flight attendant.

Decision

Reasons for decision

There were a number of other medical reports available to the Trustee. It is unnecessary for present purposes to refer to them. The reports summarised above represent those that the Tribunal regarded as being of particular significance, and are a fair sample of the range of views expressed by the various medical experts who had examined the appellant.the tribunal’s decision The Tribunal accepted that, over a three day period in November 1997, the appellant, while at work, had been exposed to airborne chemicals on an aircraft. As a result, she had become unwell, and had been taken to a hospital. The doctor on duty was unable to determine the cause of her symptoms at that time. The following week, when she next flew, she suffered similar symptoms. On this occasion, these lasted for four or five weeks. The Tribunal observed:“She has been diagnosed as suffering from multiple chemical sensitivity (MCS), although there was a body of evidence before the Assessor and Trustee disputing this condition … . However, the Complainant has received a workers’ compensation settlement based on evidence that she suffered this injury in the workplace and her claim for total and permanent disablement benefits is based on this condition. It is not the role of the Assessor, Trustee or Tribunal to necessarily resolve a conflict between various medical practitioners concerning a disputed diagnosis. In a critically important passage, the Tribunal then stated:For a Complainant to succeed under the instant definition two things must be present vis:(a)“a medical state of physical or mental incapacity”. This may not necessarily be, or be able to be, identified as a known categorisable medical condition, and(b)a resultant preclusion from ever working in an area for which he/she has relevant qualifications.” The Tribunal accepted that there was a general consensus among the medical experts that the appellant would never be able to return to work as a flight attendant. It then noted that the Assessor had, initially at least, proceeded upon the assumption that the appellant’s claim was for a “Total and Permanent Disablement benefit”. That assumption was erroneous because her claim was in fact for a “disablement benefit”, as defined in the FAB Scheme, and particularly as the term “disablement” was defined in rule 1.1 of the trust deed. As a result, the Assessor had initially approached the appellant’s claim upon the basis that she had to meet what might arguably be said to be a more stringent test of “disablement” than that required by the definition of that term under rule 1.1. The Assessor’s reference to a claim for “Total and Permanent Disablement” first appears in a letter dated 31 March 2003 sent to a representative of the Trustee. That letter advised that, after careful consideration, the Assessor was unable to admit a claim for “Total and Permanent Disablement” for the appellant. It set out, in an attachment, a summary of the medical evidence that had been reviewed, and suggested that the Trustee should consider that evidence for itself in order to “be satisfied that AMP’s decision is a reasonable one”.

Ratio Decidendi

Legal Principle Established

Dr Andrew Harper, an occupational physician who examined the appellant on 17 May 2002 for workers’ compensation purposes at her solicitor’s request, diagnosed her as suffering with multiple chemical sensitivity. He said that he anticipated neither deterioration nor recovery. He regarded her as incapacitated to return to work as a flight attendant, and described her capacity to return to alternative work as “very limited”. Dr Megan Gilbert, a consultant psychiatrist, prepared two reports for the Assessor dated 11 June 2002 and 10 March 2003. She found no evidence of depression or anxiety. She concluded that the appellant did not have a psychiatric illness, and there was no psychiatric reason why she could not return to work. Dr David Rosen, a neurologist, examined the appellant at the request of the Assessor. He prepared two reports dated 18 July 2002 and 11 December 2002. He described her as “currently unfit” to do her job as a flight attendant, and recommended further psychiatric treatment. He said that he believed she would be fit for certain types of part-time, and eventually, full-time work. He said that she might function well in an office environment. He added:“I do not at this stage consider that [the appellant] ‘will never be fit to return to the workforce’”. (emphasis added) In his second report, Dr Rosen discussed the controversy within the medical community regarding multiple chemical sensitivity. He noted that the American Medical Association had recommended that this condition not be recognised as a clinical syndrome. The medical reports of Dr Gilbert and Dr Rosen were given in response to requests from AMP in letters dated 9 April 2002 seeking a report to cover, among other questions:“(v)if you consider Miss Cullinane will never be fit to return to the work force, please give detailed reasons for this.”The appendix to those letters also contained the following:“AppendixUnder the policy, disablement is established if: TOTAL AND PERMANENT DISABLEMENTAs a result of illness or injury, AMP has determined that the Insured Person is unlikely EVER to be able to engage in any regular remunerative work for which he/she is reasonably fitted by education, training or experience.” Dr JL Pearce, a specialist physician in occupational and rehabilitation medicine, examined the appellant on 30 July 2002 at the request of the Assessor. He provided two reports dated 31 July 2002 and 28 November 2002. He concluded that she was not capable of returning to her previous occupation as a flight attendant. He added that she could probably not at present perform any other full-time occupation. He considered that she might be able to engage in part-time employment in an administrative or clerical capacity, and added that as a young woman, “she does not meet the criteria for total and permanent incapacity at this point in time”. There were a number of other medical reports available to the Trustee. It is unnecessary for present purposes to refer to them. The reports summarised above represent those that the Tribunal regarded as being of particular significance, and are a fair sample of the range of views expressed by the various medical experts who had examined the appellant.the tribunal’s decision

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2158 OF 2005

BETWEEN:	JUDITH ANNE CULLINANE APPELLANT
AND:	MERCER BENEFIT NOMINEES LIMITED (formerly MELLON NOMINEES LIMITED) RESPONDENT
JUDGES:	TAMBERLIN, WEINBERG & ALLSOP JJ
DATE OF ORDER:	29 MAY 2006
WHERE MADE:	MELBOURNE