Felix v NULIS Nominees (Australia) Ltd

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FEDERAL COURT OF AUSTRALIA

Felix v NULIS Nominees (Australia) Ltd [2020] FCA 591

File number: NSD 181 of 2019
Judge: STEWART J
Date of judgment: 4 May 2020
Catchwords: SUPERANNUATION – appeal against determination by Superannuation Complaints Tribunal – entitlement of fund
member to total and permanent disablement (TPD) benefit under insurance policy – whether Tribunal determination inconsistent with terms of insurance policy – construction of definition of ‘total and permanent disablement’ and other provisions of policy – whether six-month qualifying period requires inability to work in ‘any’ job or the insured’s actual job – whether findings in relation to applicant’s ability to work in the future infected by legal error – appeal dismissed
Legislation:

Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 14, 37, 46

Workers Compensation Act 1987 (NSW) s 43A
Cases cited:

AIA Australia Ltd v Lancaster [2017] FCA 962

Australian Casualty Co Limited v Federico [1986] HCA 32; 160 CLR 513

Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; 119 ALD 472

Bonovice v United Super Pty Ltd [2014] NSWSC 1470

Hannover Life Re of Australasia Ltd v Colella [2014] VSCA 205

Hannover Life Re of Australasia Ltd v Jones [2017] NSWCA 233

Jones v United Super Pty Ltd [2016] NSWSC 1551

McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; 203 CLR 579

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259

National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852; 99 FCR 562

Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330

Samaras v Australian Retirement Fund Pty Ltd [2007] FCA 1323
Date of hearing: 29 April 2020
Registry: New South Wales
Division General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 87
Counsel for the Applicant: J Sleight
Solicitor for the Applicant: Marsdens Law Group
Counsel for the First Respondent: The first respondent filed a submitting appearance save as to costs
Counsel for the Second Respondent: J G Duncan
Solicitor for the Second Respondent: Clyde & Co Australia

ORDERS

NSD 181 of 2019
BETWEEN:

KERRY FELIX

Applicant
AND:

NULIS NOMINEES (AUSTRALIA) LTD

First Respondent

AMP LIFE LTD

Second Respondent

JUDGE:

STEWART J

DATE OF ORDER:

4 MAY 2020

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The parties have leave to file written submissions of no more than five pages within 14 days of these orders in support of any costs order which they may seek, failing which there shall be no order as to costs.

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


REASONS FOR JUDGMENT

STEWART J:

Introduction

  1. The underlying claim which the applicant seeks to vindicate in this proceeding is a claim for total and permanent disablement (TPD) benefit under an insurance policy provided by the second respondent, AMP Life Ltd.  The applicant obtained cover under the policy by virtue…

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Details
Case
[2020] FCA 591
Decision Date

CaseChat Overview and Summary

In Felix v NULIS Nominees (Australia) Ltd, the applicant, who had been employed as a call centre operator, sought a total and permanent disablement (TPD) benefit from her superannuation fund under an insurance policy following an injury and subsequent medical conditions. The Superannuation Complaints Tribunal had dismissed her appeal against the denial of her claim, and the applicant now appealed to the court. The central legal issues were whether the Tribunal's interpretation of the insurance policy terms was correct, specifically the definition of ‘total and permanent disablement’ and the six-month qualifying period, and whether the Tribunal’s findings were tainted by legal errors.

The court found that the Tribunal's interpretation of the insurance policy was consistent with its terms. The court examined the definition of ‘total and permanent disablement’ and concluded that it required the inability to work in any occupation, not just the insured's own occupation. Furthermore, the court found no legal error in the Tribunal's reasoning regarding the six-month qualifying period. The court also determined that the Tribunal's findings were not infected by legal error, as they were based on the medical evidence provided. Consequently, the applicant's appeal was dismissed.

In light of the dismissal of the appeal, the court granted the parties leave to file written submissions on any question of costs within 14 days of the orders. The court emphasized that if no submissions were received within the specified timeframe, there would be no order as to costs.

ORDERS:
1. The appeal is dismissed.
2. The parties have leave to file written submissions of no more than five pages within 14 days of these orders in support of any costs order which they may seek, failing which there shall be no order as to costs.

Orders

Orders of the court

1. The appeal is dismissed.

2. The parties have leave to file written submissions of no more than five pages within 14 days of these orders in support of any costs order which they may seek, failing which there shall be no order as to costs.

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

Background

Background to the litigation

By notice of appeal filed on 5 February 2019, the applicant appeals against the determination of the Tribunal pursuant to s 46(1) of the Act. Background After having worked in a number of different roles for different employers over many years, the applicant commenced employment as a call centre operator on 31 January 2008. On that day, she joined the Fund whereby she became a beneficiary of a Group Life Superannuation Policy held by the Fund. She was 41 years of age. On the 28 March 2008, the applicant injured her right ankle and knee when she tripped at a railway station on her way to work. Between that date and 15 January 2010, the applicant attended work sporadically. For much of this period she was provided with WorkCover medical certificates indicating that she was unfit for work or for her normal duties. During the calendar year 2009, the applicant attended work for only 22 days. On 15 January 2010, the applicant ceased reporting for work at the call centre. On 4 February 2010, her employer terminated her employment on the basis that she was unable to fulfil the inherent requirements of her appointment. In February 2011, the applicant initiated her TPD claim. Due to non-response from the applicant, the claim was closed on four different occasions. It was re-opened in March 2014 and submitted to AMP for assessment. As indicated, it was declined in January 2015 and then again on review by AMP in November 2015, and on each occasion AMP’s decision was affirmed by the trustee of the Fund. For simplicity, in referring to AMP’s decision I will not refer also to the former trustee’s affirmation decision which was also the subject of the complaint to the Tribunal.The policy terms There was no disagreement about the applicable policy terms. Clause 1.9 identifies three categories of cover, namely death, terminal illness and TPD. In respect of TPD, it refers to clause 3.5. Clause 3.5 provides for a TPD benefit, and states that the meaning of “total and permanent disablement depends on which definition of total and permanent disablement the person insured has under this policy, as detailed in the schedule”. Needless to say, the italicised terms are defined terms in the policy. Relevantly, the defined terms set out in clause 8 include the following:Own occupation means the occupation or regular duties in which the person insured has spent most amount of time engaged in with the employer during the 12 months prior to the last day at work.…Total and permanent disablement means: The relevant schedule indicates in respect of the TPD cover that the relevant choice was “any occupation” rather than “own occupation”. It was common ground that the result is that it is only the “any occupation” part of the TPD definition in Part (a) of the overall TPD definition which is applicable.The Tribunal’s determination and reasons The Tribunal recorded that it had been provided with a number of medical and paramedical reports concerning the applicant’s medical conditions of injured right ankle and inflammatory arthritis affecting both ankles and feet. It recorded that the injury to the right ankle occurred on 28 March 2008 and was slow to settle which adversely affected the applicant’s medical fitness for some considerable period. The inflammatory arthritis was diagnosed initially as rheumatoid arthritis in late 2010 after the left ankle also became inflamed.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Ground 5 must also fail.Conclusion For the reasons given above, the applicant’s appeal against the determination of the Tribunal falls to be dismissed. The submitting notice of the first respondent states that it wishes to be heard on any question of costs, although its written submissions do not ask for costs. AMP’s written submissions also do not ask for costs, and no oral submissions were addressed to me about costs. It may be that the respondents do not intend to seek costs. However, since costs have not been addressed I give the parties leave to make any application for costs by way of filing short submissions within 14 days of my orders.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.