Goodin v Colonial Mutual Superannuation Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Goodin v Colonial Mutual Superannuation Pty Ltd [2011] QDC 38

PARTIES:

BRETT JAMES GOODIN
(Plaintiff)

AND

COLONIAL MUTUAL SUPERANNUATION PTY LTD
(First Defendant)

AND

COLONIAL MUTUAL LIFE ASSURANCE SOCIETY LTD
(Second Defendant)

FILE NO/S:

D869/09

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

25 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

17, 18 June 2010

JUDGE:

McGill DCJ

ORDER:

Judgment for the plaintiff in terms to be finalised.

CATCHWORDS:

INSURANCE – Duty of Utmost Good Faith – total and permanent disablement – liability dependent on satisfaction of insurer – whether breach of duty shown in decision to reject claim

SUPERANNNUATION AND PENSIONS – Permanent Incapacity – liability dependent on satisfaction of insurer – whether decision to reject claim valid

Re Beloved Wilkes’ Charity (1851) 3 Mac & G 440, 42 ER 330 – considered.
Curwen v Vanbreck Pty Ltd [2008] VSC 338 – cited.
Davis v Rio Tinto Staff Superannuation Ltd (2002) 118 FCR 170 – cited.
Edwards v The Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113 – cited.
Finch v Telstra Super Pty Ltd (2010) 84 ALJR 726 – cited.
Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214 – applied.
Karger v Paul [1984] VR 161 – considered.
Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No. 3) [2009] FCA 53 – cited.
Re Londonderry’s Settlement [1965] Ch 918 – considered.
McArthur v Mercantile Mutual Life Insurance Co Ltd [2002] 2 Qd R 197 – applied.
Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583 – cited.
Tonkin v Western Mining Corporation Ltd (1998) 10 ANZ Ins Cas 61-397 – cited.
Vance v MIM Coal Staff Fund Pty Ltd [1999] QSC 210 – cited.
White v State Public Sector Superannuation Scheme [1997] QSC 24 – cited.
Wyllie v National Mutual Life Association Ltd (1997) 217 ALR 324 – cited.

COUNSEL:

C. Newton for the plaintiff

K.A. Barlow for the defendants

SOLICITORS:

Maurice Blackburn for the plaintiff

Cooper Grace Ward for the defendants

1. On 24 December 2001 the plaintiff, who was then in employment, became a member of the Colonial Super Retirement Fund, a superannuation fund established by trust deed of which the first defendant is trustee.  The second defendant is an insurance company which has provided an insurance policy to the trustee in respect of its members; the plaintiff’s interest in the policy was paid for from contributions to the fund by or on behalf of the plaintiff.  The insurance policy provided benefits in various circumstances, including upon total and permanent disablement.

1. The plaintiff has worked in various positions since he left school in 1979, ultimately working as a delivery driver, delivering alcohol to bottle shops:  p 15.  He had been doing this work for about one year when on 25 May 2004 he suffered an injury to his lower back, which prevented him from continuing to work.  He was dismissed from that employment on 18 April 2005.  He has not worked since.  He…