Howitt-Steven v Unisuper Limited - [2001] FCA 1599

FEDERAL COURT OF AUSTRALIA
Howitt-Steven v Unisuper Limited [2001] FCA 1599
SUPERANNUATION – disability benefits – appeal from Superannuation Complaints Tribunal – whether applicant had a pre-existing medical condition not disclosed by the applicant at the time that he joined the superannuation scheme – onus of proof – whether Tribunal applied correct test in finding that decision of trustee was not “unfair” or “unreasonable” for the purposes of s 14 and s 37 of the Superannuation (Resolution of Complaints) Act 1993 (Cth)
Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 14, 18(1), 23(2), 27, 36, 37, 46
Insurance Contracts Act 1984 (Cth) ss 21, 26
National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562; [2000] FCA 852, referred to
Seafarers’ Retirement Fund Pty Ltd v Oppenhuis (1999) 94 FCR 594; [1999] FCA 1683, distinguished
Flexiplan Australia Ltd v Pankhurst & Others [2001] FCA 1535, referred to
Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330, applied
WARREN ARTHUR HOWITT-STEVEN v UNISUPER LIMITED
N 1177 of 2000
BRANSON J
SYDNEY
15 NOVEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1177 of 2000

BETWEEN:

WARREN ARTHUR HOWITT-STEVEN
APPLICANT

AND:

UNISUPER LIMITED
RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

15 NOVEMBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1. The appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1177 of 2000

BETWEEN:

WARREN ARTHUR HOWITT-STEVEN
APPLICANT

AND:

UNISUPER LIMITED
RESPONDENT

JUDGE:

BRANSON J

DATE:

15 NOVEMBER 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT
INTRODUCTION

Section 46 of the Superannuation Industry (Resolution of Complaints) Act 1993 (Cth) (“the Act”) provides that a party may appeal to this Court, on a question of law, from a determination of the Superannuation Complaints Tribunal (“the Tribunal”). The Applicant, who is dissatisfied with a decision of the Tribunal given on 9 October 2000, on 6 November 2000 exercised the right of appeal created by s 46 of the Act by filing a notice of appeal in the Court. The notice of appeal was amended on 21 February 2001.
The determination of the Tribunal given on 9 October 2000 affirmed the decision of Unisuper Limited (“the Trustee”), the Trustee of the Superannuation Scheme for Australian Universities (“SSAU”), to refuse to pay benefits to the Applicant under the SSAU. The refusal was based on a finding made by the Trustee that the benefits claimed by the Applicant related to a pre-existing medical condition not disclosed by the Applicant at the time that he joined the SSAU.
The amended notice of appeal is less helpful than is desirable in identifying the questions of law upon which the Applicant appealed to this Court. The written submissions of the Applicant contain the following paragraph:
“4.In summary, the grounds of appeal that the Applicant says involve errors of law by SCT [the…

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.

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Details

Case: [2001] FCA 1599
Decision Date: 15 NOVEMBER 2001

CaseChat Overview and Summary

Howitt-Steven brought an appeal against Unisuper Limited before the court, challenging the decision of the Australian Prudential Regulation Authority (APRA) Superannuation Complaints Tribunal. The dispute arose from Unisuper's refusal to pay benefits under a superannuation scheme due to alleged non-disclosure of a medical condition by Howitt-Steven. Howitt-Steven argued that the Tribunal erred in law by not considering relevant evidence and failing to acknowledge his lack of awareness of the undisclosed medical condition at the time of his application.

The primary legal issues before the court were whether the Tribunal erred in law by not considering relevant evidence, specifically the Applicant's lack of awareness of the undisclosed medical condition, and whether the Tribunal's failure to address this evidence impacted the fairness and reasonableness of Unisuper's decision. The court examined whether the Tribunal correctly interpreted the requirement for "an accurate statement" as defined in clause B.13 of the deed and whether the Applicant's state of knowledge at the time of providing the statement was relevant.

The court found that the Tribunal did not act on the basis that the Applicant bore any onus of proof. It rejected the contention that the Tribunal failed to consider relevant evidence, as Howitt-Steven did not contend that an "accurate statement" should reflect the Applicant's state of knowledge at the time of providing the statement. The court noted that the Applicant did not argue this point and made no submissions on this aspect, leading to the conclusion that the Tribunal's decision was not influenced by this oversight. The court also found that Howitt-Steven's credibility was assessed after the Tribunal concluded that his complaint should be dismissed, which was not legally relevant to the decision.

The appeal was dismissed, and the court upheld the Tribunal's decision. The court emphasized that the scheme under the Superannuation Industry (Supervision) Act 1993 (Cth) allows the Tribunal to review decisions in a fair, economical, informal, and quick manner, not bound by technicalities, legal forms, or rules of evidence. The court concluded that the Tribunal's procedure of reviewing the case on papers without oral submissions was appropriate and did not prejudice the Applicant's case.

Orders

Orders of the court

1. The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I reject the contention that the Tribunal erred in law by wrongly acting on the basis that the Applicant bore an onus of proof. I am satisfied that the Tribunal did not act on the basis that the Applicant bore any onus of proof before it.Failure to Consider Evidence The Applicant contended that the Tribunal erred in law by failing to take into account relevant evidence, namely that the Applicant was not, at the time that he applied to join the SSAU, aware of the medical condition not disclosed by him. The Applicant’s solicitor, by a letter dated 5 July 2000 addressed to the Tribunal, had advised the Tribunal as follows:“At the time that he completed the form, Mr Howitt-Steven was totally unaware of any such diagnosis and accordingly the form was completed in total good faith. It should be noted that the form does not specify in any manner whether or not Mr Howitt-Steven had been admitted to hospital in the last five years and for what he had been treated. If those questions had been asked, then Mr Howitt-Steven would have answered in the affirmative, but given the wording of the question and Mr Howitt-Steven’s own information at the time, he answered the form correctly and made no false statement regarding the state of his health.” The written submissions of the Applicant pointed out, accurately, that the Tribunal, in its written reasons for decision, made no reference to the above paragraph of the letter of 5 July 2000. The written submissions continue:“[The Tribunal] appears to have completely overlooked these submissions which are critical to the determination of whether the Respondent acted fairly and reasonably in the circumstances given the fact that one of the reasons for the Respondent’s refusal to pay benefits is an alleged non-disclosure of this condition by the Applicant.” The Applicant did not contend that “an accurate statement” within the meaning of cl B.13 of the Deed is a statement which accurately reflects the Applicant’s state of knowledge at the time that the statement is provided. That the Applicant did not so contend is confirmed by a consideration of his Amended Notice of Appeal and his written and oral submissions. The Amended Notice of Appeal identifies an aspect of the proper construction of cl B.13 as a question of law raised on the appeal but not this aspect. No submissions were advanced by the Applicant as to the true meaning of the expression “an accurate statement” appearing in cl B.13 and, presumably for this reason, no answering submissions were made by the Trustee. Further, the attempts of the Applicant’s counsel to place reliance on s 21 and s 26 of the Insurance Contracts Act 1984 (Cth) (“the Contracts Act”) suggest that the Applicant’s concerns with respect to the Tribunal’s failure to advert to the submission identified in [46] above arose independently of the proper construction of cl B.13. An application made on behalf of the Applicant to further amend his Amended Notice of Appeal during the course of the hearing to place reliance on s 21 of the Contracts Act was refused as the Court accepted that the Trustee would be prejudiced by the amendment.

Decision

Reasons for decision

BRANSON J

Although the Tribunal may be thought to have been somewhat harsh on the Applicant in assessing his credibility, it appears to have made its assessment of his credibility after concluding that his complaint should be dismissed. As the written submissions of the Applicant appear to recognise, the findings of the Tribunal as to the Applicant’s credit were not relevant to the decision that it was required to make. In the circumstance, no legal relevance attaches to the Tribunal’s assessment of the Applicant’s credibility.CONCLUSION The appeal will be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: BRANSON J

The scheme set in place by the Act, following the making of a complaint of the kind with which this proceeding is concerned, was described by the Full Court of this Court in National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562 at 565; [2000] FCA 852 at [10]-[12] in the following way:“Section 14 is one of a number of sections which allows a complaint to be made to the Tribunal that a particular decision or particular conduct of a trustee, insurer or other designated person is or was unfair or unreasonable: (s 14, 14A, 15A, 15B, 15CA, 15E, 15F, 15H and 15J). The functions of the Tribunal are to enquire into the complaint, and to try to resolve it by conciliation and, if that fails, to review the decision or conduct to which the complaint relates (s 12). The Tribunal must pursue the objective of providing a mechanism for review that is fair, economical, informal and quick (s 11).The body the subject of the complaint is required to provide to the Tribunal documents that are relevant to the complaint (s 24) and the Tribunal is empowered to obtain further information or documents relevant to a complaint both from the body in relation to whom the complaint is made, and from other persons (s 25).If conciliation (s 27) fails, then the Tribunal is to fix a review meeting, and to notify the parties accordingly (s 32). Ordinarily, parties to the review are confined to making written submissions to the Tribunal for the purpose of the review meeting, but the Tribunal may, if it thinks it necessary, make an order allowing the parties to make oral submissions to the Tribunal at the review meeting (ss 33, 34). In reviewing a decision or conduct, the Tribunal is not bound by technicalities, legal forms or rules of evidence, and may inform itself of any matter relevant to the review in any way it thinks appropriate (s 36). A decision of the Trustee or insurer as varied by the Tribunal, or a decision made by the Tribunal in substitution for a decision of the Trustee or insurer is, for all purposes (other than the making of a complaint about the decision), taken to be a decision of the Trustee or insurer as the case may be (s 41(3)). The Tribunal’s powers in dealing with a complaint under s 14 are contained in s 37. Its powers when dealing with complaints made under other sections of the Act are as set forth in s 37A and following.”CONSIDERATIONOral Hearing Section 36 of the Act is concerned with the Tribunal’s procedures. It provides that the Tribunal is “not bound by technicalities, legal forms or rules of evidence” and that it “may inform itself of any matter relevant to the review in any way it thinks appropriate”. In this case the Tribunal advised the Applicant, by his solicitor, that unless it should subsequently determine otherwise, its review would be conducted on the papers and without oral submissions. The Applicant did not seek a determination that the review be conducted in a way different from that proposed by the Tribunal. No submission was made to the Tribunal on his behalf that the course which it proposed to adopt was contrary to the Act or otherwise inappropriate. In the circumstances it may well be that the Applicant has waived any right to object to the procedure in fact adopted by the Tribunal. However, I do not consider it necessary to base my decision on this ground on the issue of waiver.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1177 of 2000

BETWEEN:	WARREN ARTHUR HOWITT-STEVEN APPLICANT
AND:	UNISUPER LIMITED RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	15 NOVEMBER 2001
WHERE MADE:	SYDNEY

JUDGE:	BRANSON J
DATE:	15 NOVEMBER 2001
PLACE:	SYDNEY