Edser v QSuper Board

Case [2023] FCA 1120

FEDERAL COURT OF AUSTRALIA

Edser v QSuper Board [2023] FCA 1120

File number(s): QUD 360 of 2022
Judgment of: MEAGHER J
Date of judgment: 20 September 2023
Catchwords:

ADMINISTRATIVE LAW – Appeal from determination of the Australian Financial Complaints Authority (Authority) – Whether Authority erred in its interpretation of the clear causation test – Whether Authority made a legally unreasonable, irrational or illogical finding, or a critical finding of fact for which there was no evidential support – Whether Authority was required to resolve ambiguities in medical report – Whether Authority erred in its determination of the clear causation test – Whether Authority erred in failing to consider whether bullying and threats suffered by the applicant were so substantial such as to deny any clear causation – Application dismissed

QUESTIONS OF LAW – Notice of objection to competency – Appeal brought pursuant to s 1057 of the Corporations Act 2001 (Cth) – Whether notice of appeal identified questions of law – Whether mixed questions of law and fact – Notice of objection to competency upheld in part

Legislation:

Corporations Act 2001 (Cth)

Insurance Contracts Act 1984 (Cth)

Superannuation (State Public Sector) Act 1990 (Qld)

Superannuation (State Public Sector) Deed 1990 (Qld)
Cases cited:

AIA Australia Ltd v Lancaster [2017] FCA 962

Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1

Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8

Carrette v Superannuation Complaints Tribunal [2017] FCA 640

E & J Gallo Winery v Lion Nathan Australia Pty Limited (2009) 175 FCR 386; [2009] FCAFC 27

Edser v QSuper Board [2021] FCA 1437

Felix v NULISNominees (Australia) Ltd [2020] FCA 591

Hannover Life Assurance Re of Australasia Ltd v Membrey (2004) 210 ALR 462; [2004] FCA 1095

Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92

Hornsby v Military Superannuation and Benefits Board of Trustees (No 1) (2003) 126 FCR 484; [2003] FCA 54

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

Piper & Mueller [2015] FamCAFC 241

Rauchle v Q-Super Board [2022] FCA 1537

Waraich v Minister for Home Affairs (2021) 286 FCR 45; [2021] FCAFC 155
Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 91
Date of hearing: 27 March 2023
Counsel for the Applicant: Mr D Kelsey-Sugg and Mr N Scott
Solicitor for the Applicant: Maurice Blackburn
Counsel for the First Respondent: Mr K Holyoak and Ms N Manosca
Solicitor for the First Respondent: Mills Oakley Lawyers
Counsel for the Second Respondent: The Second Respondent submitted to any order of the Court

ORDERS

QUD 360 of 2022
BETWEEN:

SHANON EDSER

Applicant
AND:

QSUPER BOARD

First Respondent

AUSTRALIAN FINANCIAL COMPLAINTS AUTHORITY

Second Respondent

ORDER MADE BY:

MEAGHER J

DATE OF ORDER:

20 SEPTEMBER…

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Details
AGLC
Edser v QSuper Board [2023] FCA 1120
Case
[2023] FCA 1120
Decision Date

CaseChat Overview and Summary

Edser v QSuper Board involved an appeal from the Australian Financial Complaints Authority's (AFCA) decision to affirm QSuper Board's refusal to pay a Total and Permanent Disability (TPD) benefit to the applicant. The applicant argued that the AFCA erred in its interpretation of the clear causation test and failed to consider various factors, including the impact of bullying and threats he suffered during his employment. The applicant also argued that the AFCA was required to resolve ambiguities in a medical report and made various other submissions regarding the interpretation and application of the relevant legislation and contract terms. The QSuper Board filed a Notice of Objection to Competency, asserting that the appeal raised factual disputes, mixed questions of fact and law, or broad and open enquiries.

The central legal issues in the case were whether the AFCA erred in its interpretation of the clear causation test, made a legally unreasonable, irrational or illogical finding, or a critical finding of fact for which there was no evidential support, and whether the AFCA was required to resolve ambiguities in the medical report. Additionally, the court had to consider whether the AFCA erred in failing to consider the impact of bullying and threats the applicant suffered during his employment. The applicant raised five questions of law in his Notice of Appeal, and the QSuper Board objected to the competency of the appeal on the basis that it raised factual disputes, mixed questions of fact and law, or broad and open enquiries.

Perram J found that the applicant's first ground of appeal, concerning the AFCA's consideration of the applicant's eligibility for the TPD benefit, was not well-founded as the applicant was never eligible for the benefit. The court considered the two differing views on the interpretation of "pre-existing medical condition" and found that there was evidence to support both perspectives. The court also addressed the other questions of law raised by the applicant, including the interpretation of the clear causation test, the resolution of ambiguities in the medical report, and the impact of bullying and threats on the applicant's claim. The court found that the AFCA's decision was not legally unreasonable, irrational or illogical, nor was it based on a critical finding of fact for which there was no evidential support. Consequently, the application was dismissed, and the Notice of Objection to Competency was upheld in respect of questions two and four(a) in the Notice of Appeal.

The court ordered that the application be dismissed, the Notice of Objection to Competency be upheld in respect of questions two and four(a) in the Notice of Appeal, and the applicant pay the first respondent's costs as agreed or assessed. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application be dismissed.

2. The Notice of Objection to Competency be upheld in respect of questions two and four(a) in the Notice of Appeal.

3. The applicant pay the first respondent’s costs as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

The Authority's jurisdiction to make a determination of a superannuation complaint arises from s 1055 of the Corporations Act. Pursuant to subsection (2), the Authority must affirm a decision if it is satisfied that it “was fair and reasonable in all the circumstances”. DECISION OF PERRAM J As the parties’ submissions relied heavily upon the decision of Perram J, it is first necessary to set out a summary of his Honour’s reasons. Similar to this matter, Edser appealed against the Decision of the Authority which affirmed QSuper Board’s determination not to pay the applicant TPD benefit. The appeal raised six questions of law, and ultimately turned on four matters:(1)Whether the Authority failed to consider a mandatory relevant consideration; (2)The definition of “pre-existing medical condition”;(3)The proper construction of the words “not related to” in cl 6.2(b) of the Insurance Terms; and(4)The application of the Insurance Contracts Act 1984 (Cth). The applicant’s first question of law was whether the Authority properly considered whether the decision was “fair and reasonable” in accordance with s 1055 of the Corporations Act. The applicant contended that the Authority did not determine the duration of his insured membership with QSuper and therefore failed to consider his eligibility for the TPD benefit under cl 6.2(c) of the Insurance Terms (at [15]). His Honour rejected this ground, finding that if the Authority had considered the applicant’s eligibility under cl 6.2(c) it would have been bound to conclude that he was not eligible as he would have had to be an “insured member” for between 2 and 7 years (at [16]). His Honour found that the applicant became an insured member on 31 October 2011, and ceased when he became TPD on 3 January 2013, in accordance with cl 11.1(b) of the Insurance Terms (at [23]). Accordingly, the applicant was never eligible to make a claim pursuant to cl 6.2(c) (at [23]). His Honour concluded that the applicant could only make a claim pursuant to cl 6.2(b) stating that, consistent with Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [10] (Gleeson CJ) and [68]-[69] (McHugh, Gummow and Hayne JJ), it is well established that provisions of this sort do not impose an enforceable obligation on a decision maker to make a particular finding of fact (at [25]). The second question of law asked whether the Authority's construction of “pre-existing medical condition” was too expansive. The applicant submitted that the Authority treated a prior diagnosis in 1998 as evidence of a continuous depressive condition which existed up until the applicant became an insured member, despite evidence from doctors showing that depressive conditions might resolve (at [28]-[29]). His Honour considered each parties’ view on this question, detailing at [30]: The first, which was advanced by QSuper, was that [the applicant’s] depressive episodes (including those which he experienced after mid-2012) were instances of a single underlying depressive condition which had manifested itself. The second, advanced by [the applicant], was that these episodes were distinct medical conditions, each of which had fully resolved and as such did not reflect the existence of a single underlying depressive condition. There was evidence before the panel capable of supporting both views.

Ratio Decidendi

Legal Principle Established

The appeal is brought pursuant to s 1057(1) of the Corporations Act 2001 (Cth), which provides that a party may appeal to this Court on a question of law. While, in a technical sense, this is an appeal, it lies within the Court’s original jurisdiction: Hannover Life Assurance Re of Australasia Ltd v Membrey (2004) 210 ALR 462; [2004] FCA 1095 at [11] (Crennan J). By virtue of s 1057(3) of the Corporations Act the Court has the jurisdiction to hear and determine the appeal and make any such orders it thinks fit. By a Notice of Appeal filed on 13 September 2022, the applicant raised the following five questions:1. Whether the Authority erred in law:a. by misconstruing and/or misapplying the phrase “causally connected to his TPD in a way which is clear” as requiring only a preference for the view of one medical expert over another, instead of a causal connection that was obvious.b. alternatively, by failing to make any findings about the proper construction of the phrase “causally connected to his TPD in a way which is clear”;c. alternatively, in making a critical finding of fact that the Applicant’s pre-existing medical condition was “causally connected to his TPD in a way which is clear” when there was no evidentiary support therefore.2. Whether the Authority’s finding that there was a “key single common element” in each of the diagnosed conditions present in the Applicant’s medical history, was legally unreasonable, alternatively irrational or illogical, or was a critical finding of fact for which there was no evidential support3. Whether the Authority was required, in order to properly consider the matter, to resolve ambiguities in the report of Professor McFarlane:a. in the meaning of his reference to asymptomatic individuals;b. as to whether or not his statement that the stressors might produce psychiatric symptoms in such an individual referred to the symptoms which the Applicant developed –having not done so.4. Whether the Authority erred in law in concluding that the Applicant’s pre-existing medical condition was “causally connected to his TPD in a way which is clear” when:a. the only possible basis therefore was a finding the Applicant was “predisposed to an increased risk of recurrence and a potential for precipitation of exacerbations of acute depression in response to exposure to significant stress”; andb. the Authority was required to but did not make findings as to whether that predisposition and/or potential had a clearly causative role in rendering the Applicant totally and permanently disabled.5. Whether the Authority erred in law in failing to consider whether the effect of the bullying and threats suffered during the Applicant’s employment beginning in 2011 was itself so substantial that it denied any clearly causative role to his pre-existing medical condition. On 28 October 2022, QSuper Board filed a Notice of Objection to Competency, contending that the Notice of Appeal:a. raises factual disputes or the merits of the Authority's determination of the complaint;b. alternatively, comprises or implies mixed questions of fact and law; andc. does not pose questions of law but are broad or open enquiries to determine if there is a question of law.BACKGROUND