Haematite Proprietary Limited v Ristevski

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FEDERAL COURT OF AUSTRALIA

Haematite Proprietary Limited v Ristevski [2002] FCA 408

SUPERANNUATION – appeal from decision of Superannuation Complaints Tribunal –claim for disablement benefit – determination that complainant disabled – failure to consider whether Trustee’s decision fair and reasonable.

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

Lykogiannis v Retail Employees Superannuation Pty Ltd (2000) 97 FCR 361 applied
National Mutual Life Association of Australasia v Campbell (2000) 99 FCR 562 distinguished
National Mutual Life Association of Australia Ltd v Jevtovic (Sundberg J, 8 May 1997, unreported) applied
Adkins v The Health Employees Superannuation Trust Australia Ltd (Heerey J, 15 August 1997, unreported) applied

HAEMATITE PROPRIETARY LIMITED as Trustee for the BHP Superannuation Fund v TOME RISTEVSKI

V 752 of 2000

GOLDBERG J
MELBOURNE
9 APRIL 2002


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 752 of 2000

On Appeal from the Superannuation Complaints Tribunal

BETWEEN:

HAEMATITE PROPRIETARY LIMITED as Trustee for the BHP Superannuation Fund
Applicant

AND:

TOME RISTEVSKI
Respondent

JUDGE:

GOLDBERG J

DATE OF ORDER:

9 APRIL 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be allowed.

2.The decision of the Superannuation Complaints Tribunal on 24 August 2000 is set aside.

3.The matter is remitted to the Superannuation Complaints Tribunal for further consideration and determination according to law.

4.        The respondent pay the applicant’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 752 of 2000

On Appeal from the Superannuation Complaints Tribunal

BETWEEN:

HAEMATITE PROPRIETARY LIMITED  as Trustee for the BHP Superannuation Fund
Applicant

AND:

TOME RISTEVSKI
Respondent

JUDGE:

GOLDBERG J

DATE:

9 APRIL 2002

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Introduction

  1. The applicant, Haematite Pty Ltd (“the Trustee”), appeals from a determination of the Superannuation Complaints Tribunal (“the Tribunal”) of 24 August 2000 setting aside the Trustee’s decision not to pay the respondent a disability benefit and substituting a decision that the respondent was entitled to be paid a disability benefit.

    Background

  2. The respondent was born on 20 September 1950.  On 20 January 1971, he commenced working for The Broken Hill Proprietary Company Limited as a labourer and later worked as plant operator.  He joined the BHP Superannuation Fund on 6 July 1976.   The respondent injured himself on 30 December 1992 when undertaking heavy lifting and developed bilateral inguinal hernias.  In March 1994, he developed pain in his right elbow while screwing a large bolt during the course of his work.  On 25 November 1994, he fell backwards against a fence during the course of his employment and injured his back.  In 1995, the respondent noticed pain in his left knee which increased when he knelt, squatted or stood.  On 12 July 1996, he accepted a voluntary redundancy from The Broken Hill Proprietary Company Limited and finished work that day.  The respondent lodged a claim for the payment of a total and permanent disablement benefit on…

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Details
Case
[2002] FCA 408
Decision Date

CaseChat Overview and Summary

In Haematite Proprietary Limited v Ristevski, the Trustee, Haematite Pty Ltd, challenged a decision by the Superannuation Complaints Tribunal that overturned the Trustee’s refusal to pay the respondent, Ristevski, a disability benefit. The dispute centred on whether Ristevski was entitled to a total and permanent disablement benefit under the terms of the BHP Superannuation Fund, following his termination of employment on 12 July 1996.

The legal issues before the court were whether the Tribunal had the authority to set aside the Trustee’s decision and substitute its own, and if the decision of the Tribunal was reasonable and justified. Specifically, the court needed to determine whether the Tribunal’s decision was in accordance with the powers granted to it under the Superannuation (Resolution of Complaints) Act 1993 (Cth). The court also had to consider the extent to which the Tribunal could rely on medical evidence to support its decision.

The court found that the Tribunal had the power to substitute its own decision for that of the Trustee, as outlined in s 37(3) of the Act. However, the court held that the Tribunal’s decision to set aside the Trustee’s decision was not supported by the evidence. The court emphasised that the Trustee, as the decision-maker, had the discretion to determine whether the respondent’s condition rendered him permanently incapable of suitable employment. The medical evidence presented was conflicting, and the court held that the Tribunal had not adequately considered the full range of medical opinions and the respondent’s capacity to perform work within the constraints of his injuries.

The appeal was allowed, and the decision of the Superannuation Complaints Tribunal was set aside. The matter was remitted to the Tribunal for further consideration and determination according to law. Additionally, the respondent was ordered to pay the applicant’s costs of the application.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Superannuation Complaints Tribunal on 24 August 2000 is set aside.

3. The matter is remitted to the Superannuation Complaints Tribunal for further consideration and determination according to law.

4. The respondent pay the applicant’s costs of the application.

Background

Background to the litigation

The applicant, Haematite Pty Ltd (“the Trustee”), appeals from a determination of the Superannuation Complaints Tribunal (“the Tribunal”) of 24 August 2000 setting aside the Trustee’s decision not to pay the respondent a disability benefit and substituting a decision that the respondent was entitled to be paid a disability benefit.Background The respondent was born on 20 September 1950. On 20 January 1971, he commenced working for The Broken Hill Proprietary Company Limited as a labourer and later worked as plant operator. He joined the BHP Superannuation Fund on 6 July 1976. The respondent injured himself on 30 December 1992 when undertaking heavy lifting and developed bilateral inguinal hernias. In March 1994, he developed pain in his right elbow while screwing a large bolt during the course of his work. On 25 November 1994, he fell backwards against a fence during the course of his employment and injured his back. In 1995, the respondent noticed pain in his left knee which increased when he knelt, squatted or stood. On 12 July 1996, he accepted a voluntary redundancy from The Broken Hill Proprietary Company Limited and finished work that day. The respondent lodged a claim for the payment of a total and permanent disablement benefit on 3 October 1996. The relevant trust deed executed by The Broken Hill Proprietary Company Limited and the Trustee is dated 9 December 1994. The trust deed confirmed the rules pursuant to which the BHP Superannuation Fund was to be administered. The trust deed and the rules were relevantly amended on 16 December 1994, 9 October 1995 and 23 November 1995. Under the rules, the respondent was a member who was entitled to the benefits set out in Pt 10 of Div B of the rules: r A.1.11. The rules provided that the Trustee shall pay a disablement benefit to a member whose services were terminated by the member’s employer at a time when, “in the absolute opinion of the Trustee”, the member was in a state of, or suffering from, disablement: r 5.2 in Pt 10 of Div B. In making a determination as to the member’s disablement, the Trustee could act upon such medical and other evidence as it thought fit, but was required to take into consideration any evidence submitted by, or on behalf of, the member: r 5.1 in Pt 10 of Div B. Rule A.2.1 defined “Disablement” as meaning:“physical or mental disablement caused through illness infirmity or accident to a degree which the Trustee in its absolute discretion, after obtaining the advice of a registered medical practitioner, considers likely to render the Member permanently incapable of obtaining or continuing suitable employment as determined by the Trustee having regard to the Member’s qualifications training and experience.” The Trustee reviewed the respondent’s claim on 16 October 1996, 14 May 1997, 16 February 1998 and 25 June 1999 and determined that the respondent did not qualify for a disablement benefit at the date the respondent’s employment terminated on 12 July 1996 for the following reasons: ·The respondent was not suffering from a condition that precluded him from performing the functions of his position;·His incapacity was not likely to be permanent;·The incapacity was not likely to render the respondent incapable of obtaining or continuing in suitable employment; ·Such a condition was not likely to render the respondent permanently incapable of performing suitable employment with reference to the respondent’s training, education and experience.Medical Evidence before the Tribunal

Evidence

Evidence Before The Court

The Trustee reviewed the respondent’s claim on 16 October 1996, 14 May 1997, 16 February 1998 and 25 June 1999 and determined that the respondent did not qualify for a disablement benefit at the date the respondent’s employment terminated on 12 July 1996 for the following reasons: ·The respondent was not suffering from a condition that precluded him from performing the functions of his position;·His incapacity was not likely to be permanent;·The incapacity was not likely to render the respondent incapable of obtaining or continuing in suitable employment; ·Such a condition was not likely to render the respondent permanently incapable of performing suitable employment with reference to the respondent’s training, education and experience.Medical Evidence before the Tribunal The following medical evidence was before the Tribunal:·Report from Dr BW, occupational physician, dated 20 January 1994. Dr BW provided a work certificate after the respondent’s operations for repair of bilateral hernias. The certificate stated, inter alia, that the respondent was fit for selected duties and that his restrictions were permanent.·Report from Dr BO, treating – general practitioner, dated 21 August 1996. The report stated that the respondent’s physical limitations were significant.·Report from Dr BO dated 13 January 1998. The report stated that the respondent suffered from long term back pain which was constant and was not responding well to symptomatic treatment. In Dr BO’s opinion the respondent was permanently disabled and could not find suitable work or obtain new skills.·Report from Dr D, a qualified medical practitioner and a Fellow of the Australian Faculty of Occupational Medicine, dated 30 August 1996. He stated that the hernias had been well repaired, the back problem was vague lumbosacral pain in which no specific aetiology was apparent and the range of movement and strength were good. He said that in a working environment, it may be necessary for there to be a restriction on frequent, heavy lifting, but there would be no other restriction on the duties the respondent was trained to do. In his opinion, the respondent was not disabled and did not have any medical or surgical conditions which would prevent him working.·Report of Dr P, surgeon, dated 20 December 1996. His opinion was that the respondent appeared to be suffering from some genuine discomfort and disability in the right elbow, continuing lumber strain, pain in the left groin, retro‑patellar chondritis in the left knee, and some continuing disability in his left leg resulting from the problem in the left groin and as a result of which there was a permanent loss of efficient use of the left leg at and above the knee. He expressed the opinion that the respondent was only fit for light duties which did not place strains on the various sites where he was complaining of pain and that it appeared that his current complaints would continue indefinitely.·Report of Dr M, rehabilitation and musculo‑skeletal specialist, dated 15 April 1997. Dr M initially assessed the respondent on 12 December 1996. Dr M identified the respondent’s problems as muscular strain of the left sacroiliac region, chronic pain syndrome and probable disc lesion. Dr M saw the respondent again on 21 December 1996, 16 January 1997 and 18 February 1997 and on 10 April 1997. Dr M stated in his report of 15 April 1997 that the respondent had pain in the right elbow, the lumbosacral region and the left knee. Dr M concluded that the respondent would not be capable of re‑entering the work force as a labourer in the production section.Legislation

Decision

Reasons for decision

GOLDBERG J
Under s 14(2) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (“the Act”) a person may make a complaint to the Tribunal that a decision of a trustee in relation to a member of a regulated superannuation fund was unfair or unreasonable. Section 37 of the Act, which sets out the Tribunal’s powers in relation to complaints under s 14 of the Act, provides, relevantly:“(1)For the purpose of reviewing a decision of the trustee of a fund that is the subject of a complaint under section 14:(a)the Tribunal has all the powers, obligations and discretions that are conferred on the trustee; and(b)subject to subsection (6), must make a determination in accordance with subsection (3).…(3)On reviewing the decision of a trustee, insurer or other decision‑maker that is the subject of, or relevant to, a complaint under section 14, the Tribunal must make a determination in writing:(a)affirming the decision; or(b)remitting the matter to which the decision relates to the trustee, insurer or other decision‑maker for reconsideration in accordance with the directions of the Tribunal; or (c)varying the decision; or(d)setting aside the decision and substituting a decision for the decision so set aside. (4)The Tribunal may only exercise its determination‑making power under subsection (3) for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness or unreasonableness, or both, that the Tribunal has determined to exist in relation to the trustee’s decision that is the subject of the complaint no longer exists.…(6)The Tribunal must affirm a decision referred to under subsection (3) if it is satisfied that the decision, in its operation in relation to:(a)the complainant; and(b)so far as concerns a complaint regarding the payment of a death benefit – any person (other than the complainant, a trustee, insurer or decision‑maker) who:(i) has become a party to the complaint; and(ii)has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person having an interest in the death benefit;was fair and reasonable in the circumstances.”Tribunal’s decision The Tribunal set out the relevant background to the complaint, the medical reports, the submissions of the Trustee and the respondent, in particular in relation to the medical reports, and the relevant education, training and experience of the respondent. The Tribunal’s reasons, then continued under a heading “Tribunal’s consideration”. In this section of the reasons the Tribunal set out its consideration. First, the Tribunal considered the injuries which the respondent had suffered and noted that he had received a workers’ compensation pay‑out of $98,000 in respect of the injuries he received in the workplace. The Tribunal noted that this confirmed that the respondent had suffered injuries, but said that, this decision was not relevant to the determination of the permanency of any injury found to exist. The Tribunal considered the permanency of the respondent’s injuries. After referring briefly to the principal evidence of each of the doctors, the Tribunal stated that “In summary, all doctors considered part or all of the Complainant’s disabilities to be permanent”.

Ratio Decidendi

Legal Principle Established

Established by: GOLDBERG J

Full text does not contain this section.