Panos v FSS Trustee Corporation - [2015] NSWSC 1217

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Panos v FSS Trustee Corporation [2015] NSWSC 1217
Hearing dates: 9, 10 and 11 February 2015
Date of orders: 27 August 2015
Decision date: 27 August 2015
Jurisdiction: Equity
Before: Robb J
Decision:
(1)   The plaintiff’s claim is dismissed.

(2)   The parties are given leave to make submissions on all questions of costs, particularly as to the first defendant’s costs, and the costs thrown away as a result of the vacation of the first hearing.
(3)   Exhibits and documents produced on subpoena may be returned immediately in accordance with the rules.
Catchwords: INSURANCE – accident and sickness insurance – superannuation trustee holding insurance policy covering total and permanent disablement of scheme members including the plaintiff – challenging decision of the insurer – whether plaintiff totally and permanently disabled within the meaning of the relevant superannuation trust deed and insurance policy – assessment of varied opinions in multiple expert medical reports as to significance of plaintiff’s disabilities – Court finds that plaintiff overstated his disabilities – whether plaintiff likely to gain employment in roles the plaintiff is qualified in – Court finds that plaintiff is likely to be able to undertake various jobs reasonably within his original education, training and experience – plaintiff failed to establish his entitlement to TPD benefit – plaintiff’s claim dismissed
Legislation Cited: Evidence Act 1995 (NSW)
Superannuation Industry (Supervision) Act 1993 (Cth)
Superannuation (Resolution of Complaints) Act 1993 (Cth)
Cases Cited: Allstate Life Insurance Co v ANZ Banking Group Ltd (No 5) (1996) 64 FCR 73
Beverley v Tyndall Life Insurance Co Ltd [1999] WASCA 198
Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Limited [2015] NSWCA 104
Borg v Ramsay Health Care trading as North Shore Private Hospital Pty Ltd [2014] NSWSC 37
Chammas v Harwood Nominees Pty Ltd (1993) 7 ANZ Ins Cas 61–175
Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57; (2013) 83 NSWLR 246
Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; 13 ANZ Ins Cas 90-123
Hughes Aircraft Systems International v Airservices Australia (No 3) (1997) 80 FCR 276
Papamanos v Commonwealth Bank of Australia [2014] VSCA 167
Shuetrim v FSS Trustee Corporation [2015] NSWSC 464
Wyllie v National Mutual Life Association of Australasia (1997) 217 ALR 324
Category: Principal judgment
Parties: Peter Panos (plaintiff)
FSS Trustee Corporation (first defendant)
Metlife Insurance (second defendant)
Representation:
Counsel: M J Bleasel (plaintiff)
S J Walsh (second defendant)
Solicitors: Firths Compensation Lawyers (plaintiff)
Mills Oakley (first defendant)
Turks Legal (second defendant)

File Number(s): 2013/121809
Publication restriction: None

Judgment

Introduction

The primary issue in these proceedings is whether Mr Peter Panos, the plaintiff, is entitled to an order that the second defendant, MetLife Insurance Ltd (the “Insurer”), pay to the first defendant, FSS Trustee Corporation (the “Trustee”), the amount of a benefit for total and permanent disability (“TPD”) to which Mr Panos claims to be entitled, under an insurance policy (the “Policy”) issued by 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.

Keep reading for free

Create a free CaseChat account to read Panos v FSS Trustee Corporation 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: [2015] NSWSC 1217
Decision Date: 27 August 2015

CaseChat Overview and Summary

The case of Panos v FSS Trustee Corporation was heard in the Federal Circuit Court of Australia. The plaintiff, Mr Panos, sought a declaration that he was totally and permanently disabled, which would entitle him to benefits under an insurance policy held by the defendant, FSS Trustee Corporation. The defendant argued that Mr Panos had not met the criteria for total and permanent disablement as defined in the superannuation trust deed and the associated insurance policy.

The primary legal issue before the court was whether Mr Panos was indeed totally and permanently disabled within the meaning of the relevant documents. This required a detailed analysis of multiple expert medical reports and opinions regarding the extent and impact of Mr Panos’ disabilities. The court was tasked with assessing the credibility and weight of these varied medical opinions to determine if the plaintiff's condition met the stringent requirements for total and permanent disablement.

In its decision, the Court found that Mr Panos had overstated the severity of his disabilities. While acknowledging that he suffered from genuine medical conditions, the Court concluded that these conditions did not prevent him from undertaking various jobs that aligned with his original education, training, and experience. The Court's reasoning was based on the evidence presented, which suggested that Mr Panos was likely to gain employment in roles for which he was qualified. As a result, the Court determined that Mr Panos was not entitled to the claimed total and permanent disablement benefit. Consequently, the plaintiff's claim was dismissed.

Orders