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 toSuperannuation (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
APPELLANTAND:
MERCER BENEFIT NOMINEES LIMITED (formerly MELLON NOMINEES LIMITED)
RESPONDENTJUDGES:
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
APPELLANTAND:
MERCER BENEFIT NOMINEES LIMITED (formerly MELLON NOMINEES LIMITED)
RESPONDENT
JUDGES:
TAMBERLIN, WEINBERG &…
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- Case
- [2006] FCAFC 82
- Decision Date
CaseChat Overview and Summary
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
Decision
Reasons for decision
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