Host-Plus (Qld) Pty Limited v Kelley - [2009] FCA 1504

FEDERAL COURT OF AUSTRALIA
Host-Plus (Qld) Pty Limited v Kelley [2009] FCA 1504
Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 14(2), 30, 36(a) and (c), 37(3) and (5), 46
Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330
HOST-PLUS (QLD) PTY LIMITED V ADRIAN NEIL KELLEY and AUSTRALIAN INCOME PROTECTION PTY LIMITED
NSD 414 of 2007
AUSTRALIAN INCOME PROTECTION PTY LIMITED v ADRIAN NEIL KELLEY and HOST-PLUS (QLD) PTY LIMITED
NSD 416 of 2007
BUCHANAN J
15 DECEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 414 of 2007

BETWEEN:
HOST-PLUS (QLD) PTY LIMITED
Applicant

AND:
ADRIAN NEIL KELLEY
First Respondent

AUSTRALIAN INCOME PROTECTION PTY LIMITED
Second Respondent

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 416 of 2007

BETWEEN:
AUSTRALIAN INCOME PROTECTION PTY LIMITED
Applicant

AND:
ADRIAN NEIL KELLEY
First Respondent

HOST-PLUS (QLD) PTY LIMITED
Second Respondent

JUDGE:

BUCHANAN J

DATE OF ORDER:

15 DECEMBER 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The determination of the Superannuation Complaints Tribunal made on 16 February 2007 be set aside and, in lieu thereof, the decisions of Australian Income Protection Pty Limited and Host Plus (Qld) Pty Limited that Mr Kelley was not entitled to a

benefit for temporary total disablement be affirmed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 414 of 2007

BETWEEN:
HOST-PLUS (QLD) PTY LIMITED
Applicant

AND:
ADRIAN NEIL KELLEY
First Respondent

AUSTRALIAN INCOME PROTECTION PTY LIMITED
Second Respondent

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 416 of 2007

BETWEEN:
AUSTRALIAN INCOME PROTECTION PTY LIMITED
Applicant

AND:
ADRIAN NEIL KELLEY
First Respondent

HOST-PLUS (QLD) PTY LIMITED
Second Respondent

JUDGE:

BUCHANAN J

DATE:

15 DECEMBER 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT
BUCHANAN J:

These proceedings, in the original jurisdiction of the Court, concern an “appeal” under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (“the Act”). The appeal is available against determinations of the Superannuation Complaints Tribunal (“the Tribunal”) established under the Act. It is only available on a question of law.
Mr Kelley, whose interests are directly involved in the present matter, has not appeared in the proceedings. He cites financial incapacity to do so.
Mr Kelley worked as a chef. He was admitted as a member of the Intrust Super Fund (“the Fund”) on 17 January 2001. The trustee of the Fund was Host-Plus (Qld) Pty Limited. The trust deed contemplated the payment to members of benefits for temporary total disablement but only in the event that the trustee had insured for such a benefit and the insurer accepted a claim that such a benefit should be paid. The capacity of the Fund to provide that benefit, among others, was secured by a policy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Host-Plus (Qld) Pty Limited v Kelley and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] FCA 1504
Decision Date: 15 DECEMBER 2009

CaseChat Overview and Summary

Host-Plus (Qld) Pty Limited v Kelley involved a dispute over a claim for a benefit for temporary total disablement. The Superannuation Complaints Tribunal had found in favour of the claimant, Mr Kelley, but Host-Plus appealed this decision to the court. The legal issues in the case centred on the interpretation of the term "disablement" under the relevant superannuation regulations, and whether Mr Kelley met the criteria for a temporary total disablement benefit.

The court examined the definitions provided in the Superannuation Industry (Supervision) Regulations 1994 and the relevant superannuation fund rules. It was necessary to determine whether Mr Kelley's condition constituted a total disablement as defined, and if his disability was temporary. The court also considered the evidence provided by medical experts and the decision-making processes followed by the respondent funds.

The court found that the Superannuation Complaints Tribunal had erred in its interpretation of the term "disablement" and the nature of Mr Kelley's condition. The tribunal had placed undue emphasis on the subjective experience of disability rather than the objective medical evidence. The court held that the decisions of the respondent funds, affirming that Mr Kelley was not entitled to a benefit for temporary total disablement, were correct. The determination of the Superannuation Complaints Tribunal was set aside, and the decisions of the respondent funds were affirmed.

Orders

Orders of the court

1. The determination of the Superannuation Complaints Tribunal made on 16 February 2007 be set aside and, in lieu thereof, the decisions of Australian Income Protection Pty Limited and Host Plus (Qld) Pty Limited that Mr Kelley was not entitled to a

benefit for temporary total disablement be affirmed.

Note:

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

BUCHANAN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: BUCHANAN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION		NSD 414 of 2007
BETWEEN:	HOST-PLUS (QLD) PTY LIMITED Applicant
AND:	ADRIAN NEIL KELLEY First Respondent AUSTRALIAN INCOME PROTECTION PTY LIMITED Second Respondent
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION		NSD 416 of 2007
BETWEEN:	AUSTRALIAN INCOME PROTECTION PTY LIMITED Applicant
AND:	ADRIAN NEIL KELLEY First Respondent HOST-PLUS (QLD) PTY LIMITED Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	15 DECEMBER 2009
WHERE MADE:	SYDNEY

JUDGE:	BUCHANAN J
DATE:	15 DECEMBER 2009
PLACE:	SYDNEY