Hannover Life Re of Australasia Limited (ACN 062 395 485) v Farm Plan Pty Limited (ACN 067 241 016)

[2001] FCA 802

FEDERAL COURT OF AUSTRALIA

Hannover Life Re of Australasia Limited (ACN 062 395 485) v Farm Plan Pty Limited (ACN 067 241 016)
[2001] FCA 802

SUPERANNUATION – Complaints Tribunal – whether Tribunal addressed the right question.

Insurance Contracts Act 1984 (Cth) ss 53, 54(1)
Life Insurance Act 1945 (Cth)
Life Insurance Act 1995 (Cth)
Superannuation Industry (Supervision) Act 1993 (Cth) s 52
Superannuation (Resolution) of Complaints Act 1993 (Cth) ss 37, 37(2), (4), (6), 46(1)

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 referred to
Attorney-General v Breckler (1999) 197 CLR 83 referred to
National Mutual Life Association of Australasia Ltd v Campbell (2000) 99 FCR 562 referred to

HANNOVER LIFE RE OF AUSTRALASIA LIMITED (ACN 062 395 485) v FARM PLAN PTY LIMITED (067 241 016) AND LEE CHERYL RALPH
N-1151 OF 1999

HANNOVER LIFE RE OF AUSTRALASIA LIMITED (ACN 062 395 485) v FARM PLAN PTY LIMITED (067 241 016) AND ALISON BLACK
N-1152 OF 1999

HANNOVER LIFE RE OF AUSTRALASIA LIMITED (ACN 062 395 485) v FARM PLAN PTY LIMITED (067 241 016) AND JAMES FRANK FILMER
N-1175 OF 1999

LEE J
PERTH
25 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	N-1175 OF 1999

BETWEEN:

HANNOVER LIFE RE OF AUSTRALASIA LTD
(ACN 062 395 485)
APPLICANT

AND:

FARM PLAN PTY LTD
(ACN 067 241 016)
FIRST RESPONDENT

FRANK JAMES FILMER
SECOND RESPONDENT

JUDGE:

LEE J

DATE OF ORDER:

25 JUNE 2001

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

The “appeal” be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	N-1175 OF 1999

BETWEEN:

HANNOVER LIFE RE OF AUSTRALASIA LTD
(ACN 062 395 485)
APPLICANT

AND:

FARM PLAN PTY LTD
(ACN 067 241 016)
FIRST RESPONDENT

FRANK JAMES FILMER
SECOND RESPONDENT

JUDGE:	LEE J
DATE:	25 JUNE 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an “appeal” under s 46 of the Superannuation (Resolution) of Complaints Act 1993 (Cth) (“SRC Act”) from a decision of the Superannuation Complaints Tribunal (“the Tribunal”). Pursuant to s 46(1) the “appeal” is limited to a question of law. The “appeal” was heard together with “appeals” in Hannover v Ralph and Hannover v Black as matters involving the same issues. The applicant presented a single argument in respect of all “appeals”.

2. These reasons are to be read with the reasons provided in the matter of Ralph in which the relevant statutory provisions, documents, and facts are referred to.

3. The second respondent (Filmer) became a Member of the Plan on 10 March 1989 at the age of 35. He worked as a shearer in casual employment with different Employers from time to time. On 11 May 1992 Mr Filmer suffered an injury to his right eye in the course of his shearing employment. As a result of the injury he lost the sight of that eye and has not been able to return to “full-time” employment thereafter.

4. To this point there has been no determination by the Trustee or the Insurer as to whether Mr Filmer is totally and permanently disabled under the terms of the Policy.

5. Before the injury occurred an Employer had made a contribution to the Plan in respect of the deceased on 27 June 1991. The Employer of Mr Filmer at the date Mr Filmer suffered his injury made a contribution to the Plan in respect of that period of employment in May 1996.

6. At all material times, Mr Filmer was a Member of the Plan and had sufficient funds in his Member’s Account for the annual premium, or any part thereof, to be paid by the Trustee as the Trustee was required to do on his behalf.

7. Mr Filmer made a claim upon the Trustee for payment of a Disablement Benefit under cl 14 of the Plan. As a result the Insurer arranged for Mr Filmer to undergo medical examinations.

8. On 15 May 1996 the Trustee refused Mr Filmer’s claim on the following basis:

   “In accordance with the member statement the date you last attended work was 11 May 1992. The last contribution received prior to the date you last worked was 27 June 1991. This contribution entitled you to insurance cover for a period of three months ending 27 September 1991. Consequently no Total and Permanent Disability benefit is payable.”

9. It appears that the Insurer had advised the Trustee on 14 May 1996 that the Trustee’s claim under the Policy would not be met and provided reasons for that decision similar to those set out by the Trustee.

10. On 16 May 1996, Mr Filmer lodged a complaint with the Tribunal under s 14 of the SRC Act. Pursuant to s 18 of the SRC Act, the Tribunal joined the Insurer to the complaint and the decision of the Insurer not to pay the claim of the Trustee under the Policy, being a decision relevant to Mr Filmer’s complaint, became subject to review by the Tribunal under s 37(2) of the SRC Act. It is implied in the subsection that the basis of review of such a decision is as set out in s 14(2) in respect of a decision of a trustee.

11. The Tribunal determined, pursuant to s 37 of the SRC Act, that it was not satisfied that either the decision of the Insurer, or of the Trustee, was fair and reasonable in the circumstances. By implication the Tribunal then determined that the decisions were unfair or unreasonable in the circumstances by determining that the respective decisions were to be set aside and decisions made in substitution by which the Tribunal would determine whether Mr Filmer was entitled to be paid a total and permanent disability benefit pursuant to the Plan after receiving and considering submissions from the Insurer, the Trustee and Mr Filmer.

12. When the “appeal” came on for hearing, the Trustee supported the decision of the Tribunal.

13. It was submitted by all parties that the “appeal” turned on the same issues as those to be determined in Ralph.

14. Accordingly, for the reasons I have provided in Ralph, I determine in this matter that the Tribunal, in making its decision, addressed the right questions and duly exercised the powers provided to it by the SRC Act.

15. Accordingly, the “appeal” must be dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate:

Dated:             25 June 2001

Counsel for the Applicant:	N J Mullany
Solicitor for the Applicant:	Marks & Sands
Counsel for the First Respondent:	S Penglis
Solicitor for the First Respondent:	Freehills
Counsel for the Second Respondent:	M Seaman
Solicitor for the Second Respondent:	Michael Seaman
Date of Hearing:	24 October 2000
Date of Judgment:	25 June 2001