Purcell v APS Chemicals Superannuation Pty Ltd - [2009] FCA 981

FEDERAL COURT OF AUSTRALIA
Purcell v APS Chemicals Superannuation Pty Ltd [2009] FCA 981
CORRIGENDUM
SUSAN CAROLYN PURCELL v APS CHEMICALS SUPERANNUATION PTY LTD (ACN 065 209 074) and THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALIA (ACN 004 020 437)
VID 159 of 2009
MARSHALL J
31 AUGUST 2009 (CORRIGENDUM 2 SEPTEMBER 2009)
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 159 of 2009

BETWEEN:
SUSAN CAROLYN PURCELL
Applicant

AND:
APS CHEMICALS SUPERANNUATION PTY LTD (ACN 065 209 074)
First Respondent

THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALIA (ACN 004 020 437)
Second Respondent

JUDGE:

MARSHALL J

DATE:

31 AUGUST 2009

PLACE:

MELBOURNE

CORRIGENDUM

In paragraph [19] of the Reasons for Judgment, replace “29 September 2009” with “29 September 2005”.
In paragraph [42] of the Reasons for Judgment, the phrase “Mr Purcell” should read “Ms Purcell”.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.
Associate:
Dated: 2 September 2009
FEDERAL COURT OF AUSTRALIA
Purcell v APS Chemicals Superannuation Pty Ltd [2009] FCA 981
SUPERANNUATION – appeal from Superannuation Complaints Tribunal to affirm decision to reject member’s claim for total and permanent disablement benefit – whether evidence before Tribunal to show member capable of return to full‑time work – no medical evidence of member’s capacity for full‑time work – matter remitted to Tribunal
Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 37, 40, 46
Samaras v Australian Retirement Fund Pty Ltd [2007] FCA 1323, followed
Davis v Rio Tinto Staff Superannuation Fund Pty Ltd (2002) 118 FCR 170, followed
Constantinides v Du Pont Superannuation Fund Pty Ltd [2002] FCA 534, followed
Edwards v Giudice (1999) 94 FCR 561, applied
Edwards v Postsuper Pty Ltd [2007] FCAFC 83, applied
SUSAN CAROLYN PURCELL v APS CHEMICALS SUPERANNUATION PTY LTD (ACN 065 209 074) and THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALIA (ACN 004 020 437)
VID 159 of 2009
MARSHALL J
31 AUGUST 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 159 of 2009

BETWEEN:
SUSAN CAROLYN PURCELL
Applicant

AND:
APS CHEMICALS SUPERANNUATION PTY LTD (ACN 065 209 074)
First Respondent

THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALIA (ACN 004 020 437)
Second Respondent

JUDGE:

MARSHALL J

DATE OF ORDER:

31 AUGUST 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The decision of the Superannuation Complaints Tribunal of 10 October 2008 is set aside.
3.The matter is remitted to the Superannuation Complaints Tribunal to be determined again in accordance with the direction contained in [42] of the reasons for judgment.
4.The respondents pay the applicant’s costs of the appeal.

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

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 159 of 2009

BETWEEN:
SUSAN CAROLYN…

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: [2009] FCA 981
Decision Date: 31 August 2009

CaseChat Overview and Summary

Purcell v APS Chemicals Superannuation Pty Ltd involves a dispute between Ms Purcell and APS Chemicals Superannuation Pty Ltd regarding the eligibility for superannuation benefits. Ms Purcell claims she is unable to work due to a severe injury, while the trustee, APS Chemicals Superannuation Pty Ltd, disputes this claim and seeks to terminate her benefits. The Superannuation Complaints Tribunal was tasked with determining the reasonableness of the trustee’s decision to terminate benefits, considering medical evidence available to the trustee as of 31 May 2006.

The primary legal issue before the court was whether the Tribunal properly assessed the reasonableness of the trustee’s decision based on the available medical evidence. The court had to determine whether the Tribunal correctly interpreted the medical evidence regarding Ms Purcell's ability to work and whether this interpretation was fair and reasonable. This involved a detailed analysis of various medical reports that provided differing assessments of Ms Purcell's capacity to work, some suggesting severe limitations while others indicated potential for reduced hours or lighter work.

The court found that the Tribunal did not adequately consider certain aspects of the medical evidence, particularly Dr CB's report which suggested Ms Purcell could undertake suitable employment under specific conditions. The Tribunal's omission of critical parts of Dr CB's report led to an incomplete and potentially biased assessment of Ms Purcell's ability to work. Consequently, the court concluded that the Tribunal's decision was not fair and reasonable. The appeal was allowed, the Tribunal’s decision was set aside, and the matter was remitted for reconsideration in light of the court's directions. Additionally, the respondents were ordered to pay the applicant's costs of the appeal.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Superannuation Complaints Tribunal of 10 October 2008 is set aside.

3. The matter is remitted to the Superannuation Complaints Tribunal to be determined again in accordance with the direction contained in [42] of the reasons for judgment.

4. The respondents pay the applicant’s costs of the appeal.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Tribunal was required by s 37(6) of the Act to affirm the decision of the trustee if the decision was a fair and reasonable one in the circumstances. A consideration of whether the trustee’s decision was fair and reasonable necessarily required the Tribunal to consider the medical evidence available to the trustee as at 31 May 2006.THE MEDICAL EVIDENCE Ms Purcell’s chiropractor, referred to by the Tribunal as “Dr JH”, reported in June 2002 that she found it “very difficult to believe that Ms Purcell would be able to work whether it is a part-time or a full-time position” because of the severity of Ms Purcell’s injury and her poor progression. In December 2002, the chiropractor agreed with the assessment of Ms Purcell’s general practitioner, Dr MG, that Ms Purcell would only be able to work a maximum of one hour per day. Dr MG later confirmed this limitation in a medical report dated 17 February 2005. Dr MW, an occupational physician produced a report for Ms Purcell’s workers compensation insurer dated 16 December 2002. Dr MW reported to the effect that due to ongoing pain Ms Purcell would struggle to work a full day and that “perhaps reduced hours would be reasonable if she is not able to manage”. In a report provided by Dr JL for Centrelink on 20 January 2003, it was noted that Ms Purcell was “unfit [for] any work for award wages for more than two years, probably permanently”. However, in August 2005, Dr BD, an orthopaedic surgeon engaged by the insurer reported that:There are psychological factors involved in the physical injury and I think that [Ms Purcell] would be capable of lighter sedentary work in the administrative and office type fields. On 17 August 2005, a Medical Panel established for workers’ compensation purposes, said that it:accepted the worker’s description of the benefits obtained from chiropractic and massage treatment in relieving her pain and stiffness and noted that the worker had improved significantly since the original injury. A report by an occupational physician, Dr CB, dated 29 September 2009 concluded:she notes that she is precluded from undertaking any voluntary work by nature of the ongoing WorkCover claim. However, I would anticipate that if she was not signing this document on a monthly basis she would undertake some voluntary work.Dr CB went on to further say:I would consider [Ms Purcell] is currently able to undertake “suitable employment”. She is skilled in telephone work and computers and could undertake administrative tasks provided she is not require to undertake repeated bending, heavy lifting, prolonged standing or repeated ascending or descending of stairs. I would consider that a position which would be suitable for her would be one which is reception‑based where she has the ability to move about and change her position frequently. ...I would consider in the first place that she should work reduced hours. (emphasis added) The above are the reports referred to by the Tribunal which address the ability of Ms Purcell to return to some form of employment. However the Tribunal omitted from its quote of the report the key words emphasised in the preceding paragraph.THE TRIBUNAL’S REASONING

Decision

Reasons for decision

MARSHALL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 159 of 2009

JUDGE:	MARSHALL J
DATE:	31 AUGUST 2009
PLACE:	MELBOURNE

JUDGE:	MARSHALL J
DATE OF ORDER:	31 AUGUST 2009
WHERE MADE:	MELBOURNE