Tambakeras v UniSuper Limited

[2022] NSWSC 1162

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Tambakeras v UniSuper Limited [2022] NSWSC 1162

Hearing dates:

17, 18, 19 and 20 August 2021. Further written submissions 3 and 8 September 2021.

Date of orders:

30 August 2022

Decision date:

30 August 2022

Jurisdiction:

Equity

Before:

Henry J

Decision:

Plaintiff’s Amended Statement of Claim is dismissed.

Catchwords:

SUPERANNUATION – Plaintiff applied for benefits including a Disablement benefit under trust deed – Whether decisions to refuse payment of Disablement benefit involved breaches of trustee’s duties – Whether trustee gave properly informed consideration to application – Whether there were conflicts in the medical evidence before the trustee that it was required to resolve – Whether trustee acted in good faith and was required to provide the plaintiff access to particular materials – Whether definition of Disablement was satisfied – Construction of superannuation trust deed – Whether trustee was required to consider the exercise of discretions – Whether the consent judgment sum could be offset against a Disablement benefit payment

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Motor Accidents Compensation Act 1999 (NSW)

Superannuation Industry Superannuation Act 1993 (Cth)

Uniform Civil Procedure Rules 2005 (NSW)

Workers Compensation Act 1987 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

Alcoa of Australia Retirement Plan Pty Ltd v Frost [2012] VSCA 238

Board of Trustees of the State Public Sector Superannuation Scheme v Gomez [2018] QCA 67

BTR Engineering (Australia) Ltd v Dana Corp [2000] VSC 246

Buswell v TAL Life Ltd (2018) [2018] NSWSC 1507 Carroll v United Super Pty Ltd [2018] NSWSC 403

Commonwealth Bank Officers Superannuation Corporation Pty Ltd & Anor v Beck & Anor [2016] NSWCA 218

Coutts v Close [2014] FCA 19

Cullinane v Mercer Benefit Nominees Ltd [2006] FCAFC 82

Edington v Board of Trustees of State Public Sector Superannuation Scheme [2016] QCA 247

Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2015] QSC 245

Finch v Telstra Super Pty Ltd (2010) 242 CLR 254; [2010] HCA 36

FSS Trustee Corp v Eataugh [2017] VSCA 218

Gilberg v Maritime Super Pty Ltd [2009] NSWCA 325

Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913

Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57

Hannover Life Re of Australasia Ltd v Jones [2017] NSWCA 233

Hannover Life Re of Australia Ltd v Sayseng [2005] NSWCA 214

Jones v Dunkel (1959) 101 CLR 298

Karger v Paul [1984] VR 161

Lutheran Church of Australia South Australia District Inc v Farmers Co-operative Executives and Trustees Ltd (1970) 121 CLR 628

Manglicmot v Commonwealth Bank Offices Superannuation Corp Pty Ltd [2011] NSWCA 204

McArthur v Mercantile Mutual Life Insurance Co Ltd [2002] 2 Qd R 197

MetLife Insurance Ltd v MX [2019] NSWCA 228

Newcrest Mining v Thornton (2012) 248 CLR 555

Owies v JJE Nominees Pty Ltd (in its capacity as the trustee for the Owies Family Trust) [2022] VSCA 142

Rapa v Patience (Supreme Court (NSW), McLelland J, 4 April 1985, unrep)

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6

Reavill Farm Pty Ltd v Burrell Solicitors Pty Ltd [2017] NSWCA 156

SZLPH v Minister for Immigration & Border Protection (2018) 266 FCR 105; [2018] FCAFC 145

TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68

Telstra Super Pty Ltd v Flegeltaub [2000] VSCA 180

Wareham (as trustees of the Swanson Superannuation Fund) v Marsella (both personally and as executor of the estate of Marsella also known as Swanson) [2020] VSCA 92

Ziogos v FSS Trustee Corporation as Trustee of the First Sate Superannuation Scheme [2015] NSWSC 1385

Texts Cited:

JD Heydon, MJ Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths)

Category:

Principal judgment

Parties:

Marc Tambakeras (Plaintiff)
UniSuper Limited (Defendant)

Representation:

Counsel:
A M Coombes (Plaintiff)
D A Lloyd SC with N J Olsen (Defendant)

Solicitors:
Maurice Blackburn Lawyers (Plaintiff)
Turks Legal (Defendant)

File Number(s):

2019/108647

Publication restriction:

Nil

Judgment

1. The plaintiff, Marc Tambakeras, was employed by the University of Sydney from 14 January 2004 until 25 February 2011, having accepted redundancy at the age of 53. During that period, he was a member of the superannuation fund known as UniSuper (formerly known as the Superannuation Scheme for Australian Universities) (Fund).

2. The defendant, UniSuper Limited (Trustee), is the trustee of the Fund. It is bound to administer the Fund in accordance with the UniSuper Consolidated Trust Deed (Deed) and Regulations which provide, among other things, for benefits to be paid to Fund members who suffer an illness or injury that renders them permanently incapable of working.

3. On 14 May 2013, Mr Tambakeras applied to the Trustee for disability benefits payable under the Deed. He claims that he accepted the redundancy and ceased working at the University because of a major depressive disorder that was caused by workplace conflict and he has been unable to work since due to that condition.

4. On 24 April 2014, the Trustee advised Mr Tambakeras that his claim had been considered and declined as he did not satisfy the definition of “Disablement” or “Temporary Incapacity” under the Deed.

5. In response to a complaint to the Superannuation Complaints Tribunal (SCT) and requests for review, the Trustee’s delegate committee reconsidered Mr Tambakeras’ claim for benefits under the Deed and declined them on three other occasions. On 1 March 2019, the Trustee notified Mr Tambakeras that it maintained the second and third decisions that declined his claims as he did not meet the eligibility criteria for benefits under the Deed.

6. By these proceedings, which were commenced on 8 April 2019, Mr Tambakeras challenges the decisions and asks the Court to find that he is entitled to payment of a benefit under the Deed.

Claims and issues for determination

7. In his Amended Statement of Claim (ASOC), Mr Tambakeras seeks a declaration that the four decisions made by the Trustee’s delegate committees are void and of no effect. He also seeks a declaration that he is entitled to payment under the Deed of a Disablement benefit or, alternatively, a Temporary Incapacity benefit, a Continued Inbuilt Temporary Incapacity benefit or a Continued Inbuilt Disablement benefit and an order for the payment of the benefit under the Deed, plus interest and costs.

8. At the hearing, Mr Tambakeras confined his claim to a Disablement benefit and did not press his alternative pleaded claims or his challenge to the third decision (which was made on 27 June 2018) (T25.12-16; T79:27-30).

9. The Trustee maintains that the decisions were validly made and says that Mr Tambakeras does not meet the definition of Disablement as, assessed at the time he ceased employment, his depression did not render him permanently incapable of undertaking duties or engaging in work. This is in the context where he had accepted a redundancy and was certified as fit for duties at the time and after he left the University.

10. The Trustee also contends that if Mr Tambakeras meets the definition of Disablement under the Deed, he is not entitled to a benefit for three reasons.

11. First, it says that the amount of Mr Tambakeras’ workers compensation payments from 25 February 2011 to 6 June 2017 together with the consent judgment sum he received in 2017 in satisfaction of his damages claim against the University exceed the value of his Disablement benefit claim and the Trustee is entitled to and has, by a decision made on 9 August 2021, determined to reduce his benefits by those amounts, in accordance with cl 41.2 of the Deed.

12. Second, the Trustee raises delay as a bar to Mr Tambakeras’ claim. It contends that in accordance with cl 51.2 of the Deed, Mr Tambakeras’ benefits ceased being payable as he failed to make and establish his claim to the Trustee’s satisfaction within 2 years, and the Trustee has not extended that time or determined to reinstate all or part of his benefits, relying on a decision made on 11 August 2021 to that effect.

13. Third, the Trustee says that in accordance with cl 51.4 of the Deed, Mr Tambakeras’ right to claim benefits the subject of these proceedings terminated on his withdrawal of his entire benefit account balance on 25 May 2021 absent a determination by the Trustee that Mr Tambakeras was incapable of managing his affairs or that exceptional or special circumstances existed, also relying on the 11 August 2021 decision that the Trustee was not satisfied of those matters.

14. There was debate at the hearing about the Trustee’s reliance on cll 41.2, 51.2 and 51.4 of the Deed, the decisions made on 9 August 2021 and 11 August 2021 and the scope of the issues to be determined.

15. On the first day, Mr Tambakeras sought and was granted leave to file a notice of motion seeking to strike out the paragraphs of the Trustee’s defence to the ASOC that pleads reliance on cl 51.4 of the Deed and the matters referred to at [14]. I dismissed the motion, indicating that I would provide further reasons for that decision, which I have below. Mr Tambakeras was subsequently granted leave to file points of claim by which he contends that the August decisions should be set aside as they were made in breach of the Trustee’s duties. He also advised that he does not press his allegations of waiver and estoppel in relation to cll 42.1(c) and 51.2 (T20.9-18).

16. In written submissions received after the hearing, the parties agreed on the issues to be determined.

17. The first issue is whether the first, second and fourth decisions (made on 23 April 2014, 25 June 2015 and 8 February 2019) that declined Mr Tambakeras’ claim for a Disablement benefit were made in breach of the Trustee’s duties or without power and are void or should be set aside. This involves consideration of the material that was before the Trustee’s delegated committees when each of the decisions were made. If the Court concludes that the final decision made on 8 February 2019 is not void and should not be set aside, then Mr Tambakeras’ claim will fail.

18. If the decisions are set aside, the parties agree that the Court should determine whether Mr Tambakeras qualifies for a Disablement benefit and substitute its own decision with that of the Trustee (T167:8-12, Trustee’s supplementary submissions at [2]). For this stage, the parties rely on all the available evidence, including additional medical evidence that was not before the Trustee when the declinature decisions were made.

19. In the event the Court sets aside the declinature decisions and finds that Mr Tambakeras is within the definition of Disablement, the issues for determination are:

1. whether cl 51.2 of the Deed has the effect that any Disablement benefit payable to Mr Tambakeras ceased to be payable on 25 February 2013 without the need for the Trustee to make any determination under that clause, as the Trustee contends (the Trustee’s cl 51.2 contention);

2. if the Court rejects the Trustee’s cl 51.2 contention, whether the consent judgment sum is an amount that falls within cl 41.2(c) of the Deed such that the Trustee may reduce Mr Tambakeras’ Disablement benefit by that sum; and

3. if the answer to (b) is yes, whether the Court should set aside the decision made on 9 August 2021 for breach of duty by the Trustee. If it does, the parties agree to the Court stepping in and executing the trust under cl 41.2 of the Deed.

20. The Trustee does not accept Mr Tambakeras’ grounds of challenge to the 11 August 2021 decision (as set out in his points of claim). However, it is common ground that if the Court finds that Mr Tambakeras is within the definition of Disablement and rejects the Trustee’s cl 51.2 contention, then the Court should set aside the 11 August 2021 decision and refer the matter back to the Trustee for a determination regarding the application of cll 51.2 and 51.4 to Mr Tambakeras’ Disablement claim.

21. As to quantum, it is agreed that the amount to which Mr Tambakeras would be entitled as a Disablement benefit is $481,979.61 (as at 3 September 2021). It is also agreed that Mr Tambakeras’ statutory workers compensation payments (which are agreed at $208,743.00) should be deducted if he is successful, leaving a figure of $273,236.61 that may be reduced to nil or $33,236.61, if the Court determines that Mr Tambakeras’ benefit can be reduced by the consent judgment sum.

Evidence and submissions

22. Mr Tambakeras relied on his affidavits affirmed 17 October 2019 and 17 August 2021. He was not cross examined.

23. The Trustee did not read any affidavits but relied on the documents contained in the Court Book. The Court Book included the Deed, various medical reports, WorkCover certificates of capacity, documents relating to Mr Tambakeras’ claim and the Trustee’s consideration of that claim, and documents relating to the various decisions made by the Trustee (Exhibit A: tabs 6 to 117 at pages 55 – 2064AAAAK).

24. There were no expert reports prepared for the purposes of the proceedings and no doctors gave evidence at the hearing.

25. The parties relied on written submissions that were provided prior to and after the hearing had completed, as well as oral submissions at the hearing. The Court was also assisted by documents prepared by the Trustee that identified the evidence before the Trustee for each decision and the medical evidence relevant to the stage two issues.

Mr Tambakeras’ motion to strike out part of the defence

26. The strike out application was made in the following context.

27. On 3 August 2021, Mr Tambakeras was granted leave, by consent, to file and serve the ASOC, which he did on 4 August 2021. The Trustee’s defence to the ASOC was filed on 11 August 2021 (Defence), also pursuant to those consent orders. Paragraph 27(f) to (j) of the Trustee’s Defence (together the New Defences) pleads that:

1. Mr Tambakeras had on or around 25 May 2021, withdrawn his entire defined benefit account balance with the Fund less $6,000 and transferred that $6,000 to his account in Division D of the Fund from or around that date (Withdrawal);

2. by reason of the Withdrawal and cl 35.2 of the Deed, was not entitled to the Inbuilt Temporary Incapacity benefit; and

3. by reason of the Withdrawal, cl 51.4 of the Deed (which is set out at [45] below) and the Trustee not being satisfied that at the time the benefit was received that Mr Tambakeras was incapable of managing his own affairs or special or exceptional circumstances existed, Mr Tambakeras was not entitled to make a claim against the Trustee for a Disablement benefit or Temporary Incapacity benefit.

28. Mr Tambakeras objected to the New Defences as he said they did not arise from the amendments that were made in the ASOC. He submitted that the Trustee should have given him prior notice before seeking to rely on the New Defences and he would need to adduce further evidence to meet them. He submitted that the Court should not allow the Trustee to advance the New Defences in circumstances where it had not taken the appropriate steps to obtain leave, given prior notice to Mr Tambakeras or otherwise approached the matter in accordance with the rules of the Court.

29. The Trustee’s Senior Counsel accepted that the New Defences were raised late but submitted that this was because the facts on which they were based only came to the Trustee’s attention in early June 2021, noting that Mr Tambakeras’ Withdrawal from the Fund was made on 25 May 2021. He argued that the New Defences should not be struck out in circumstances where they would not cause any prejudice to Mr Tambakeras or delay to the hearing.

30. I approached Mr Tambakeras’ application by reference to the principles applicable to r 14.28(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the case management principles set out in ss 56 to 58 of Civil Procedure Act 2005 (NSW) (CPA), and the principles applicable to the grant of leave to amend under s 64 of the CPA which, subject to s 58 of the CPA, requires that “all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings”. 

31. I had regard to the objects stated in s 57 of the CPA, which refer to the just determination of the proceedings, the efficient disposal of the business of the Court, the efficient use of the available judicial and administrative resources, and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable to the respective parties.

32. To my mind, the key issue in relation to Mr Tambakeras’ application was whether allowing the New Defences to proceed would likely cause prejudice to Mr Tambakeras, including by way of delay to the hearing of the proceedings. I was not satisfied that it would. This was in the context where the factual issues raised by the New Defences were known to the parties and only occurred in late May 2021. Relevantly, Mr Tambakeras conceded that he was able to file and serve an affidavit that day that responded to the factual issues raised and no further evidence was required from the Trustee, other than some documents that were agreed could be included in the Court Book.

33. In my view, it was consistent with case management principles and the interests of justice for the Trustee to be allowed to rely on the New Defences as they raised issues that were relevant to the question of whether Mr Tambakeras was entitled to be paid benefits under the Deed, noting that there was no submission made to the contrary. Nor was any submission advanced that the New Defences were futile or pleaded in such a way that Mr Tambakeras was not on notice of the real substance of the defences.

34. I should record that, as a consequence of Mr Tambakeras confining his case to a claim for a Disablement benefit and the consensus between the parties that the Trustee’s 11 August 2021 decision to rely on cl 51.4 of the Deed should be set aside and referred back to the Trustee if the Court finds that he is within the definition of Disablement, the substantive issues raised by the New Defences no longer require determination by the Court. Those issues being first, whether by reason of the Withdrawal and the operation of cl 35.2 of the Deed, Mr Tambakeras is entitled to the Inbuilt Temporary Incapacity benefit and second, whether the Withdrawal, the terms of cl 51.4 of the Deed and the Trustee’s decision on 11 August 2021 mean that Mr Tambakeras is not entitled to payment a Disablement benefit.

The Deed and the Trustee’s delegate committees

35. The Fund was established by a trust deed dated 24 December 1982 to provide benefits, initially for the employees of University of Tasmania (the initial participating institution) and their dependants. Other eligible institutions, including the University of Sydney, and their employees, were permitted to join the Fund and become members.

36. Subject to applicable superannuation law, the general control, management and administration of the Fund is vested in the Trustee who is to administer the Fund in accordance with the Deed: cl 3.3.

37. A member’s entitlement to benefits is determined by whether they are a member of Divisions A, B, C and D of the Fund. Mr Tambakeras was a Division B member of the Fund. That division relevantly provides:

B.3    Benefits under Division B

B.3.1   Benefits subject to Deed

This Clause B.3 operates subject to the Deed (other than the provisions of Division A, Division C or any agreement or undertaking entered into or given pursuant to Clause 31.2).

B.3.2   Types of benefits payable

The Trustee must pay benefits (or cause benefits to be paid) out of UniSuper as follows:

…

(b)   if a Member ceases to be in the Service due to Disablement, a Disablement Benefit calculated in accordance with Clause B.5;

38. Clause 1.1 of the Deed includes the following definitions:

Disablement means, in relation to Divisions A, B and C, a state of health which in the opinion of the Trustee renders a Member permanently incapable of performing duties or engaging in employment for which they are reasonably qualified by training and experience where:

(a)   the Member has been absent from employment through injury or illness for three months within a period of twelve consecutive months immediately prior to ceasing to be in the Service; and

(b)   the Trustee is satisfied that the state of health is not due to or induced by any wilful action on the part of the Member to obtain a benefit.

…

Employer means:

(a)   an Eligible Institution which has entered into a deed with the Trustee pursuant to Clause 27; and

(b)   in relation to a particular Employee, the Employer employing them for the time being.

…

Service means, in relation to a Member, continuous employment with one or more Employers since last becoming a Member.

39. It is common ground that the University was Mr Tambakeras’ Employer within the meaning of the Deed and that Mr Tambakeras was absent from employment through injury or illness, namely depression, for three months within a period of 12 consecutive months immediately prior to ceasing to be employed with the University on 25 February 2011. No issue is taken by the Trustee that Mr Tambakeras’ state of health was due to or induced by any wilful action on his part to obtain a benefit.

40. Division B of the Deed also provides:

B.5.1   Benefits prior to age 65

If a Member is entitled to a Disablement Benefit under this Clause B.5, the Disablement Benefit prior to age 65 will be an immediate pension payable until the Member’s 65^th birthday or earlier death at an annual rate calculated as follows:

Benefit Salary by 60% x ASF.

41. Clause 1.1 of the Deed defines ASF or Average Service Fraction as the time weighted average of a member’s Service Fractions during their Contributing Service.

42. It is agreed that the monthly pension payable under cl B.5.1 of the Deed in the case of Mr Tambakeras was $3,521.74 per month (as at 30 June 2011 (CB624)).

43. Clause B.5.7 provides that benefits may be subject to cessation, as follows:

Clause B.5.7 Benefits subject to cessation

The benefits payable under this Clause B.5 are subject to cessation or reduction pursuant to Clause 41.

44. Clause 41 of the Deed sets out general provisions applicable to members receiving Disablement and Temporary Incapacity benefits. Relevantly to the issues in these proceedings, cl 41.2 provides:

41.2   Reduction of benefits

…

(c)   The Trustee may reduce a Member’s Disablement Benefit or Temporary Incapacity benefit by an amount determined by the Trustee and not exceeding the total amount payable to the Member in respect of their Disablement or Temporary Incapacity under:

(i)   any legislation dealing with workers compensation and similar payments; and

(ii)   any award or agreement relating to their employment with the Employer.

45. Clause 51 of the Deed concerns making a claim for a benefit or other amount from the Trustee, and relevantly provides:

51.1   Obligation to establish claims

It is the responsibility of each person who may be entitled to receive a benefit or other amount from UniSuper to make and establish their claim to the satisfaction of the Trustee by:

(a)   notifying the Trustee as to their whereabouts; and

(b)   providing the Trustee with such other information as the Trustee may acquire.

51.2   Failure to make a claim, unclaimed moneys and lost Members

(a)   All claims to benefit or other amounts must be made and established to the satisfaction of the Trustee within 2 years (or such further period as the Trustee may determine) after the date on which the benefit or amount could have commenced or become payable. Subject to paragraph (b) of this Clause 51.2, if a claim is not made in this time the benefit or other amount will cease to be payable and:

(i)   will be retained by the Trustee for the general purposes of UniSuper; or

(ii)   if Superannuation Law requires the amount to be dealt with in a particular manner, the amount will be dealt with in that manner,

unless the Trustee determines to reinstate all or part of the benefit or other amount which would be payable to a person but for this Clause 51.2.

…

51.4   Claims for further benefits restricted

A person who has received a benefit which was payable on ceasing to be in the Service under Division A, B or C or who has transferred or rolled over that benefit to an Approved Fund or to an another account within UniSuper shall not be entitled to make a claim for a Terminal Medical Condition, Disablement or Temporary Incapacity benefit from UniSuper unless the Trustee is satisfied that at the time the benefit was received, transferred or rolled over, the person was incapable of managing his or her own affairs or that special or exceptional circumstances existed in relation to the person at that time.

Delegate Committees

46. The Deed’s powers of management authorise the Trustee to appoint one or more committees to perform such duties as may be delegated or conferred by the Trustee at its discretion: Deed, cl 10(a).

47. As at 10 November 2013, the Trustee had established an Insurance Committee (IC) and an Insurance Management Committee (IMC) pursuant to cl 10(a) of the Deed. The IMC is a subcommittee of the IC.

48. According to the IC Charters in operation, the IC was responsible for, amongst other things, monitoring and overseeing the IMC, including decisions to decide claims for Disablement benefits provided by Division B of the Deed, considering and dealing with complaints relating to declined Disablement claims, and considering and reviewing applications made by members relating to a trustee’s discretion under the Deed in so far as it relates to the making of a claim for a payment of a Disablement benefit: IC Charter as at 11 November 2013, cll 9(c), (h) (CB958); IC Charter as at 9 October 2014, cll 9(d),(i) and (j) (CB1450).

49. The IMC Charter in operation as at 23 April 2011 provided that (CB952):

1. the responsibilities of the IMC included consideration and determination of recommendations by Management to approve and decline member claims for Disablement benefits made under the relevant provisions of the Deed and to consider and review decisions by the Insurer to decline disablement and income protection claims made by member’s under the Trustee’s Group Life Insurance Policy: cl 4(c), (d);

2. the IMC consisted of the Executive Manager Business Technology and Operations, Head of Operations and the Insurance and Claims Manager: cl 5;

3. the agenda and supporting papers would be distributed to members of the IMC in advance of the meeting: cl 7; and

4. the quorum for a meeting of the IMC was two members and if a quorum was not present within 15 minutes after the time set for the meeting, the meeting was to be adjourned to such place and time as the IMC members decided: cl 8.

50. On 1 May 2014, the Trustee’s board approved amendments to the IMC’s Charter to provide that the composition of the IMC would consist of the Executive Manager Operations, the Manager, Member and Employer Administration, and the Insurance and Claims Manager and, if it was not possible to form a quorum due to IMC members being unable to attend scheduled meetings, that a replacement IMC member would be appointed by the IMC Chair, who was the Executive Manager Operations or a delegated representative: cll 5, 6 and 7 (CB2064G, CB2064AE, CB2064AJ).

Factual matters and summary of the evidence

51. The following is drawn from the affidavit and documentary evidence. The facts are generally not in dispute. Unless otherwise indicated, I am satisfied of the following matters.

Mr Tambakeras

52. Mr Tambakeras was born in Egypt in 1958. He moved to Australia with his family when he was 10 years old. He was 63 years old at the time of the hearing.

53. Mr Tambakeras is separated from his wife and has one daughter, of whom he has joint custody.

54. After leaving school, Mr Tambakeras was employed in a variety of clerical and other jobs with the New South Wales Police Department, the Commonwealth Bank of Australia and Australia Post. In 1987, he obtained a Certificate in Architecture Drafting. In 1990, he commenced working as a CAD Documenter. He has an Associate Diploma in Applied Science (Architectural Studies) and in 2008, completed a Masters in Facilities Management at the University.

Employment with the University

55. On 14 January 2004, Mr Tambakeras commenced employment with the University as a computer aided design (CAD) Officer in the Facilities Management Office (now known as the University’s Campus Infrastructure Services (CIS) department) on a full-time, permanent basis, working 35 hours per week.

56. In 2009, Mr Tambakeras held the position of CAD Draftsman. His duties included managing and updating the drawings register, maintaining the Facilities Management Officer’s CAD specifications relating to both buildings and grounds, maintaining and preparing 3D CAD massing models of various campuses of the University, attending meetings with other groups of the Facilities Management Officer and maintaining and enforcing relevant policies.

57. In around late March 2009, Mr Tambakeras came into a degree of conflict with his immediate supervisor at the University. For the purposes of these proceedings, it is not necessary to detail that conflict other than to note that allegations of bullying and harassment were made by Mr Tambakeras in relation to his supervisor’s conduct over a continuing period.

58. In May 2009, the difficulties in his work situation led to Mr Tambakeras consulting a doctor about the stress he was experiencing and taking a week off work. He then saw another general practitioner, Dr Paul Ristuccia, who certified that Mr Tambakeras was unfit to work from 13 May 2009 to 14 August 2009. WorkCover medical certificates issued by Dr Ristuccia for that period refer to the date of Mr Tambakeras’ injury as 13 May 2009, describe the injury as “severe work stress related [to] perceived intimidation from management” and record a diagnosis of reactive depression with acute anxiety features.

59. On around 11 June 2009, Mr Tambakeras lodged a workers compensation claim with Allianz Insurance (CB536). Mr Tambakeras’ Worker’s Injury Claim Form refers to his injury/condition as depression and that it occurred on 13 May 2009 from “stress, pressure, harassment, intimidation at work”. The Employer Injury Claim Report completed by the University’s Workers Compensation Claims Officer on 11 June 2009 agrees that Mr Tambakeras had depression, his injury was work-related and states that Mr Tambakeras had been provided with a return-to-work plan and performance management issues may delay or prevent a return to work. From around this time, Mr Tambakeras commenced receiving weekly workers compensation payments.

60. On 19 August 2009, Mr Tambakeras’ returned to work having been certified by Dr Ristuccia as fit to work two half days per week. He worked in that reduced capacity until 22 October 2009. He was then absent from 23 October 2009 to 25 November 2009. WorkCover medical certificates issued by Dr Ristuccia certified him as fit to work two half days per week during the period from 19 August 2009 to 22 October 2009, unfit on 3 September 2009, 8 October 2009 to 13 October 2009, on 15 October 2009 and during the period 27 October 2009 to 29 November 2009.

61. Mr Tambakeras returned to work on or around 25 November 2009, working three half days per week. The WorkCover certificates issued by Dr Ristuccia certified him as fit to work three half days per week from 30 November 2009 to 30 April 2010.

62. On 8 January 2010, Mr Tambakeras commenced treatment with a psychiatrist, Dr Patrick Morris, who diagnosed Mr Tambakeras as having adjustment disorder, with mixed anxiety and depressed mood secondary to the work stress that he had been under.

63. According to Mr Tambakeras, from 22 February 2010, he commenced receiving workers compensation payments from Allianz in the amount of $514 per week. [1]

    1. See Member’s Statement. I note that, according to the Allianz List of Payments, weekly benefits were paid from 13 May 2009 (CB1675).

64. From May 2010, Mr Tambakeras increased his working hours, having been certified by Dr Ristuccia as fit for suitable duties for six hours per day for three days per week during the period 30 April 2010 to 22 May 2010 and three full days per week, from 22 May 2010 to 28 October 2010.

65. From 28 October 2010, Dr Ristuccia certified that Mr Tambakeras was fit to work three full days per week from home and recommended that he work from home on those days if feasible. Mr Tambakeras was certified as fit for three days per week working from home for the remainder of the time that he was employed at the University.

66. In late 2010, the University offered Mr Tambakeras redundancy as it was unable to provide him with suitable duties that he could complete from home. Mr Tambakeras accepted the offer and ceased his employment with the University with effect on 25 February 2011.

67. Mr Tambakeras deposes that he did not feel well enough to work at this time due to his ongoing difficulties with his mental health, that he could not be in the office any longer and his self-esteem was at an all-time low (CB1687). He says he accepted the redundancy because he had “had enough of the stress and victimisation” he was feeling in the workplace and saw it as “a way out” for him. According to leave records in evidence, Mr Tambakeras was on leave (a combination of annual leave, workers compensation leave and HDC leave) over the period 13 December 2010 to 25 February 2011.

68. Mr Tambakeras and the University entered into a separation agreement dated 17 March 2011 (Separation Agreement) which records that Mr Tambakeras’ position was made redundant as part of a restructure that was then occurring within CIS (Background (B)). It also records that the parties agreed that Mr Tambakeras’ employment would end on 25 February 2011 due to the position of CAD Officer being deemed redundant (cll 1.1, 2), Mr Tambakeras received a separation payment of $60,052.74 (cl 3.1(b)) and the parties agreed that the Separation Agreement could be pleaded as a bar to proceedings arising out of the matters referred to except any proceedings in respect of a workers compensation claim (cl 7) (CB600).

2011: Post-employment with the University

69. After Mr Tambakeras ceased working with the University, he continued to be treated by Drs Ristuccia and Morris (who made a change to Mr Tambakeras’ medication). In 2011, he was assessed as part of a return to work rehabilitation program (details of which are set out at [96] below) and started seeing a new psychologist, Ms Rose Cantali.

70. During the period 25 February 2011 to 1 November 2011, Dr Ristuccia issued WorkCover medical certificates that certified that Mr Tambakeras was:

1. fit for permanently modified duties between 25 February until 5 July 2011, with the capability to work full hours for three days per week; and

2. fit for permanent duties at full hours for five days a week between 5 July 2011 and 1 November 2011.

71. Between March 2011 and August 2011, Mr Tambakeras attempted to secure employment. He applied for CAD-based design and documentation positions at approximately 50 architecture and design firms but was unsuccessful in obtaining a position.

72. On 18 August 2011, the Trustee sent a letter to Mr Tambakeras noting the change in his employment resulted in him no longer being a contributing member of the Fund’s Defined Benefit Division and that he had the option to elect to defer his defined benefit component or to transfer his benefit to an Accumulation 1 account. On 12 October 2011, the Trustee received notification from Mr Tambakeras that he had elected to defer his defined benefit component of his superannuation benefits.

73. On 1 November 2011, Dr Ristuccia issued a medical certificate that certified Mr Tambakeras was unfit for duties from 1 November 2011 until 15 December 2011 and referred to a “significant recent worsening” with a change to suitable duties for that reason. The WorkCover medical certificates issued by Dr Ristuccia after that period continued to certify that Mr Tambakeras as unfit for duties, with some noting that “Rehab program was felt to be unhelpful if not counter productive” and, from 1 May 2013, referring to Mr Tambakeras as having no current work capacity for employment and “severe chronic depression” as a factor delaying recovery.

14 May 2013: Mr Tambakeras submits claim to the Trustee

74. On 14 May 2013, Mr Tambakeras submitted a claim to the Trustee for a Total and Permanent Disablement benefit together with medical reports from Dr Ristuccia and Dr Morris, each of which consisted of answers to questions on a printed form.

75. Mr Tambakeras’ claim was made by a member statement, completed on 7 May 2013 (Member’s Statement). It identifies that the delay in notifying the Trustee of the claim was due to Mr Tambakeras being “not well” and that he ceased employment on 25 February 2011 as he “reluctantly took redundancy after suffering continual bullying and harassment in the workplace”. It also states that he ceased normal duties on 13 May 2009, the nature of his injury or illness is “depression”, that he was unable to work at present, and that he had applied for a full-time drafting position in the architecture industry but had not worked in any capacity since leaving the University.

76. Dr Ristuccia’s report was completed on 16 April 2013 (Dr Ristuccia’s April 2013 Report). It identifies that Mr Tambakeras became completely unable to perform all the normal duties for his occupation on 13 December 2011; he suffered anhedonia, depressed mood, sleep disturbance and appetite change; rehabilitation was not likely to benefit him, Mr Tambakeras was unable to perform all duties at present, with “severe depression preclud[ing] any work”, and that he was not expected to return to his normal work because of his severe depression, poor concentration, poor stress tolerance and poor job prospects.

77. Dr Morris’ report was completed on 1 May 2013 (Dr Morris’ May 2013 Report). It refers to Mr Tambakeras’ injury occurring in March 2009 in the context of conflict with a work supervisor; he became completely unable to perform all the duties of his occupation in February 2011; Mr Tambakeras fulfils the diagnostic criteria for major depressive disorder (with symptoms of loss of pleasure, depressed mood, insomnia, guilt, reduced motivation, energy and hopelessness) and had been on antidepressant medication since August 2010; and Mr Tambakeras would not benefit from rehabilitation, was not expected to return to his normal work, would not be able to engage in employment for which he was reasonably qualified and would never return to work due to his depressive symptoms being “so chronic and severe”.

78. In response to Mr Tambakeras’ claim, the University prepared an Employer’s Statement that is dated 17 July 2013 and is also in the form of answers to questions on a printed form (Employer’s Statement). It refers to Mr Tambakeras having ceased performing normal duties on 21 May 2009 because he had instigated a workers compensation claim for reactive depression with acute anxiety features (referring to an attached medical certificate), performing suitable duties tailored to accommodate his three days per week working arrangement with the University on the last day of his work with the University and there being no other positions that Mr Tambakeras could perform at the University and that his position was not open. It identifies Mr Tambakeras’ qualifications and the specific duties of his position and attaches a list of leave taken by Mr Tambakeras in the last 12 months of his employment, which shows that he was absent for 165 days (approximately five months) during the twelve consecutive months prior to ceasing his employment on 25 February 2011.

August - November 2013: Approval of optional TPD Insurance

79. In addition to being a Division B member of the Fund, Mr Tambakeras had optional Total and Permanent Disability (TPD) insurance cover through the Fund in the amount of $36,000, which was insured by Hannover Life Re of Australasia Ltd (Hannover).

80. On 19 August 2013, the Trustee referred Mr Tambakeras’ Disablement claim to Hannover for assessment in relation to his optional TPD insurance (CB836).

81. On 29 August 2013, the Trustee (on behalf of Hannover) asked Mr Tambakeras to provide a list of jobs that he had applied for since ceasing work with the University on 25 February 2011. By email dated 2 September 2013, Mr Tambakeras advised that he had applied for a total of 48 CAD-based design and documentation positions between March and August 2011, most of which were through “Seek” and various recruitment agencies with the end result being one interview and no placements.

82. On 12 November 2013, the IMC considered and approved Mr Tambakeras’ claim for payment of the optional TPD insurance.

83. A memorandum dated 25 October 2013 in relation to the claim was prepared for the IMC by Mr Darren Gyss, an employee of the Trustee. It records that Hannover provided its final assessment decision admitting Mr Tambakeras’ TPD claim on 30 September 2013 and forwarded the insured benefit of $36,000 to the Trustee on 3 October 2013. It states that the Claims Team (which I infer to be the Trustee’s Claims Team) completed its final assessment of Mr Tambakeras’ optional TPD insurance claim on 25 October 2013 based on the claim documentation and medical evidence provided, which included the Member’s Statement, Employer’s Statement, Dr Ristuccia’s April 2013 Report, Dr Morris’ May 2013 Report, a medical certificate from The Ramsay Street Medical Centre dated 28 August 2013, a report from Dr Morris dated 6 September 2013 and the various WorkCover NSW medical certificates (which I infer is a reference to the medical certificates issued by Dr Ristuccia, as described at [58], [65] and [70] above).

84. The memorandum from Mr Gyss states that the Claims Team recommended that the IMC approve Mr Tambakeras’ TPD claim based on satisfaction that Hannover’s decision to pay $36,000 in full settlement of the claim was fair and reasonable as Mr Tambakeras’ claim satisfied the TPD definition and was in accordance with the terms and condition of the Group Life Insurance Policy. The memorandum refers to the TPD definition relevant to the Group Life Insurance Policy and states:

“UniSuper has completed a legislative requirements check to confirm that the member meets a condition of release. The member has ceased employment on 25 February 2011 due to a permanent disability, therefore meets a condition of release.

In addition, the member has satisfied the following clauses under the UniSuper Trust Deed:

Regulation 8.C – Disablement and Permanent Incapacity which states “in relation to a member, means ill-health (whether physical or mental), where the trustee is reasonably satisfied that the member is unlikely because of the ill-health, ever again to engage in gainful employment for which the member is reasonably qualified by education, training or experience”.

Regulation 9 – Insurance Cover (Part B of Division D), which states “To purchase death and disablement cover Part B of Division B, a member must satisfy the relevant requirements of the Insurer.”

85. On 18 November 2013, the Trustee wrote to Mr Tambakeras and confirmed that his optional TPD benefit had been approved and was payable in the amount of $36,000. On 25 November 2013, Mr Tambakeras elected to have the total amount paid to him.

86. On 3 December 2013, Mr Tambakeras spoke to the Trustee and requested that the accumulation component of his superannuation be released along with his optional TPD insurance payment (CB1690).

87. On 4 December 2013, the Trustee paid the amount of $92,788.49 to Mr Tambakeras, comprising the accumulation component of his superannuation together with the optional TPD insurance benefit of $36,000.

Late 2013 – March 2014: Trustee considers Mr Tambakeras’ Disablement claim

88. As part of its assessment of Mr Tambakeras’ claim, the Trustee’s Claims Team obtained documents from the Allianz workers compensation file relating to Mr Tambakeras. They were the WorkCover Medical Certificates completed by Dr Ristuccia for the period 14 May 2009 to 24 August 2013, a letter from Dr Ristuccia to Hannover dated 28 August 2013, a letter from Dr Morris to Hannover dated 6 September 2013, a report from Mr Thomas O’Neill, Clinical Psychologist, dated 24 July 2012 (O’Neill Report), a report from Dr Graham Vickery, Psychologist, dated 11 June 2013 (Vickery Report), a report from Mr George Haralambous, Clinical and Forensic Psychologist, dated 19 September 2013 (Haralambous Report) and an Integrait RTW (return to work) Strategy Plan dated 6 April 2011 by Mr Simon Pertot, Senior Rehabilitation Consultant (Integrait Report) (together the WorkCover Materials).

Summary of WorkCover Materials

89. The letter dated 28 August 2013 from Dr Ristuccia to Hannover (Dr Ristuccia’s August 2013 letter) states:

“1.   Significant exacerbation of depression occurred on 25/02/2011 that resulted in Mr Tambakeras ceasing all work.

2.    Severe ongoing depression.”

90. It is not clear from Dr Ristuccia’s August 2013 letter what his letter responds to. However, based on the contents of the letter from Dr Morris to Hannover (set out below) and the fact that they are both addressed to the same Claims Administrator at Hannover, I infer that Dr Ristuccia sent it in response to a request for a report that asked him to address the same questions referred to in Dr Morris’ letter.

91. The letter from Dr Morris addressed to Hannover dated 6 September 2013 (Dr Morris’ September 2013 letter) states:

“I refer to your request for this report dated 27/8/2013. I shall answer the two questions that you asked me to address in the report:

1.   What occurred on 25/2/2011 that enabled Mr Tambakeras to cease all work?

Mr Tambakeras accepted a redundancy from his work on that date. Prior to that date he was working three days a week for eight hours a day from 2010 to 25/02/2011.

2.   Noting the capacity given which appears to be from 2010 onwards, why can’t Mr Tambakeras work in the same capacity for a new employer?

Mr Tambakeras accepted a redundancy on 25/02/20011. He accepted the redundancy because he was finding it difficult to cope with work stress because of his depression at that time. Since the redundancy he has been unsuccessful in obtaining work. His insurer, Allianz referred him to an employment program which he was in for seven or eight months but was unsuccessful in gaining employment. His inability to find work has worsened his depression over the intervening years.

Mr Tambakeras has been having ongoing psychological therapy form a psychologist, Ms Rose Cantali and has been seeing me regularly for psychiatric review over that time. He has also required increasing doses of antidepressant medication and addition of other medication over that time.

It remains my opinion that Mr Tambakeras will not return to any work due to the severity of his ongoing depression.”

92. The O’Neil Report records that Mr O’Neill assessed Mr Tambakeras on 24 July 2012 on instructions from Allianz. It refers to Mr Tambakeras as somewhat guarded in the meetings but generally cooperative, reporting extremely high levels of depressive symptomology that was unusual even in clinical samples, that Mr Tambakeras’ self-reported symptoms (of depression, worthlessness and loss of interest) were not evident during the interview and that the level of inconsistency made a diagnosis impossible. The report notes a past assessment of adjustment disorder and states that it was uncertain whether Mr Tambakeras had a diagnosable disorder and that he did not meet the criteria for major depressive disorder. Mr O’Neil assessed Mr Tambakeras as fit for full-time work and normal duties. His report notes that Mr Tambakeras was currently declared unfit for work but refers to speaking to Dr Ristuccia, who agreed that Mr Tambakeras was fit for job seeking, initially 20 hours per week (being 4 hours per day, five days a week) and slowly upgrading this over a four-to-six-week period to normal hours and records there were no psychological or psychiatric impairments identified as negatively impacting his ability to return to work. It also refers to Mr Tambakeras having been referred to a rehabilitation provider to assist in job-seeking, applying for over 100 jobs, getting only two interviews, not having a job and not job-seeking since as the process reduced his confidence. The O’Neill Report also refers to other medical and health reports: a report by Dr Robertson, Psychiatrist, from June 2009 who diagnosed a mild adjustment disorder with an anxious mood; a Section 40 Assessment Report by Injury Treatment dated 28 October 2011 that indicated there were various occupations that Mr Tambakeras was deemed suitable for; a letter by Dr Onzy Mattar dated 14 July 2011 which noted that Mr Tambakeras was suffering stress, anxiety, depressive disorder and an adjustment disorder; a report from Dr Lee, Psychiatrist, dated 19 January 2010, who administered the “Structured Interview of Reported Symptoms” that concluded that Mr Tambakeras’ “combination of elevated scores is characteristic of individuals who are feigning mental disorder and are rarely seen in client’s responding truthfully” and that he was unlikely to have had a diagnosis given his presentation.

93. The Vickery Report records that Dr Vickery undertook an independent medical examination of Mr Tambakeras on 11 June 2013 and refers to Mr Tambakeras reporting symptoms of disturbed sleep pattern, initial and middle phase insomnia and daytime fatigue, rumination in relation to his work issues and social withdrawal from his friends, undertaking psychological counselling and consulting a psychiatrist every two to three weeks and taking the following medications, Venlafaxine, Valium and Alprazolam. It refers to Mr Tambakeras presenting as tense, despondent and withdrawn but no evidence of clinically significant anxiety, major depression, paranoid delusional ideation, formal thought disorder or gross cognitive impairment in concentration or memory. Dr Vickery opines that: Mr Tambakeras does not suffer from any diagnosable psychiatric psychological condition as a result of a work-related injury; his current symptomology was not chiefly related to the original incident from 13 March 2009 but related to his current life situation associated with not finding employment, financial stressors and “a lack of direction”; Mr Tambakeras’ symptoms are consistent with panic disorder with agoraphobia and his employment was not a main contributing factor; he had become disillusioned with job seeking and assessed as unfit but that was not directly related to his injury and should not have been compensable; and Mr Tambakeras is fit to undertake a return-to-work and capable of participating in employment, and his not participating in work is a result of his disillusionment rather than any psychiatric incapacity. Dr Vickery recommended that a “MMPI-II” assessment be undertaken by Mr Haralambous which was considered to be able to diagnose the presence or absence of clinical disorders with much greater accuracy than any conventional psychological assessments.

94. The Haralambous Report records that Mr Haralambous undertook an independent psychological assessment of Mr Tambakeras on 10 September 2013 for the purposes of providing a report pertaining to his workers compensation claim. The assessment included a clinical interview, administration of psychological tests and a review of accompanying documents. Mr Haralambous had access to the reports referred to at [92] and [93], the WorkCover certificates and claim forms, a statement of Mr Tambakeras dated 5 June 2009 as well as reports from Dr Michael Robertson dated 4 and 25 June 2009, Dr Kipling Walker dated 27 January 2011, Dr Morris dated 2 May 2012 and 5 July 2013 and Dr David Allen dated 27 October 2010.

95. The Haralambous Report also records that Mr Tambakeras presented as sullen in affect, conveyed a sense of despondency and reported feeling depressed, sometimes anxious and finding it difficult to accept his current circumstances, but that Mr Tambakeras did not demonstrate any signs of elevated levels of anxiety or psychomotor disturbance. The report records Mr Haralambous findings as follows: on an objective valuation, there were predominantly exaggerated and/or embellished forms of psychological and cognitive dysfunction which cannot be accounted for by age, gender, education, background, depression (even in severe forms), anxiety or other genuine diagnosable psychological condition; Mr Tambakeras’ scores, responses and behaviours on tests designed to assess the validity of his purported psychological complaints suggest that he took the opportunity provided by the assessment to exaggerate and/or embellish psychological disturbance; in his opinion, Mr Tambakeras did not present with any objectively verifiable manifestations of a genuine diagnosable psychological or psychiatric condition that may be reasonably attributed, either by way of cause or persistent aggravation, to the alleged circumstances of his employment with the University, or that would limit his capacity for any type of employment for which he has suitable qualifications, training and experience.

96. The Integrait Report was prepared as part of an employer program to facilitate Mr Tambakeras’ return to work. Integrait conducted an initial assessment of Mr Tambakeras on 22 March 2011, at which time it was considered that a vocational assessment was not required as it would be most appropriate for Mr Tambakeras to pursue work as a CAD technician with a different employer, and there was no medical restriction precluding him from doing so. It was noted that Mr Tambakeras had been certified fit for three full days’ work (suitable duties) from 5 April 2011 to 1 June 2011 and his fitness for work was due to be reviewed on 1 June 2011. The report refers to Injury Treatment speaking to Dr Ristuccia on 6 April 2011, who advised it was appropriate for Mr Tambakeras to commence working part-time in a CAD role, being able to increase to full-time work over a period of two months from when he commences work and working as a CAD technician would be preferable that a job that involved changing roles. It also refers to Mr Tambakeras having a very negative view about and adopting a passive approach to his return to work, being concerned about his experience at the University being viewed negatively by potential employers, that Mr Tambakeras would benefit from some job seeking education modules (such as how to deal with rejection and motivational guidance), and that the employment outlook was classified as “not too hard” (with 20 job vacancies for CAD technician/architectural draftsperson roles advertised in the Sydney metropolitan area on 7 April 2011).

November 2013: Referral of draft assessment to Dr Samuell

97. On 26 November 2013, the Trustee’s Claims Assessor, Ms Nicole Mackay, completed a draft assessment of Mr Tambakeras’ Disablement claim. Ms Mackay sent her draft assessment (together with the materials provided by Mr Tambakeras in support of his claim and the WorkCover Materials) to the Trustee’s Chief Medical Officer, Dr Doron Samuell.

98. Dr Samuell provided comments to Ms Mackay in a memorandum dated 11 December 2013. Dr Samuell’s memorandum records that he supported Ms Mackay’s recommendation but suggested some changes to the assessment document. Dr Samuell referred to page 5 of Ms Mackay’s assessment document (which states “… I am satisfied on the balance of probabilities that Mr Tambakeras suffers from some form of psychological condition. As will become evident later in this assessment, it is not necessary to specifically identify the psychological condition from which Mr Tambakeras suffers”) and states that, in his view, “Mr Tambakeras’ difficulties are not so straight forward”. Dr Samuell’s memorandum refers to two of the sources that the Trustee is relying upon as not having made any psychiatric diagnosis and Mr Haralambous providing compelling evidence that Mr Tambakeras was exaggerating his difficulties. He suggested a modification of Ms Mackay’s position to state that it is possible that Mr Tambakeras suffers from some form of psychological condition and to note that there are concerns about the veracity of Mr Tambakeras’ self-report.

December 2013: Procedural fairness letter

99. On 20 December 2013, the Trustee sent a letter to Mr Tambakeras (which the parties referred to as the Procedural Fairness Letter) in relation to his claim for a Disablement benefit. The letter noted that to receive a benefit, the Trustee required evidence demonstrating that he met the definition of Disablement under the Deed and stated:

“At this stage of the process, the evidence supplied in relation to your claim suggests that you may not meet the definition of Disablement. In particular, that you may not be permanently incapable for performing duties or engaging in employment for which you are reasonably qualified by training and experience.”

100. The Procedural Fairness Letter set out a summary of the evidence the Trustee had taken into consideration in reaching that conclusion, which summarised in dot-point form information from Mr Tambakeras’ claims documentation (including from Dr Ristuccia’s April 2013 Report and Dr Morris’ May 2013 Report) and from the WorkCover Materials (referring to the Integrait Report, the O’Neill, Vickery and Haralambus Reports, Dr Ristuccia’s letter dated 28 August 2013, Dr Morris’ letter dated 6 September 2013 and the WorkCover medical certificates). The letter advised that Mr Tambakeras had an opportunity to provide further information which the Trustee would consider, attached a list of all documents relied on in the assessment of the claim (which referred to the Member Statement, Employer’s Statement and the Allianz Workers Compensation file). It also stated:

“Conclusion

The balance of medical evidence on the file suggests that you remained capable of performing your normal duties and/or engaging in employment for which you are reasonably qualified by training and experience (albeit in a reduced capacity at times) after being made redundant by the University, on 25 February 2011.

In particular:

The Attending Doctor's Report indicates that you were capable of performing your normal duties until 13 December 2011.

The WorkCover NSW Medical Certificates indicate that you were:

Capable of working 3 full days per week until 4 July 2011.

Capable of working 5 full days per week from 5 July 2011 until 1 November 2011.

Unfit for work from 1 November 2011.

Based on medical reports obtained through your workers compensation claim, it appears that any incapacity to work was triggered by failed attempts to find new employment.

Prima facie, your treating doctor, Dr Ristuccia agreed with Mr Pertot’s and Mr O’Neill’s opinion that you were fit for work in July 2012 and June 2013, respectively.

Dr Vickery and Mr Haralambous both opine that you are not prevented from working due to any psychological condition.”

101. On 20 March 2014, Adams & Co Lawyers (Adams & Co, acting for Mr Tambakeras) wrote to the Trustee in response to the Procedural Fairness Letter. Their letter attached a further report from Dr Morris dated 20 December 2013 and a report from Dr Ben Teoh, Consultant Psychiatrist, dated 5 February 2014. In the letter, Adams & Co asserted that where there was a conflict, the reports of Dr Morris and Dr Teoh should be preferred to the notes of Mr Pertot and the O’Neill Report; the reports of Mr Tambakeras’ treating doctors (Dr Ristuccia and Dr Morris) should be preferred to that of Mr Haralambous and Dr Vickery; and that Dr Ristuccia’s August 2013 letter should be preferred to the WorkCover certificates, asserting there was a conflict between them. Adams & Co’s letter stated that Mr Tambakeras fell within the definition of Disablement and that it was not accepted that he was fit for part-time work at the time he was made redundant. It also referred to and sought to distinguish Manglicmot v Commonwealth Bank Officers Superannuation Corp Pty Ltd [2011] NSWCA 204 (Manglicmot) (arguing that there was no clause under the Deed that specifically excluded those who can work part-time from being TPD), referred to the High Court’s decision in Finch v Telstra Super Pty Ltd (2010) 242 CLR 254; [2010] HCA 36 (Finch), and asked the Trustee to give due consideration to the matters.

101. Dr Morris’ report dated 20 December 2013 (Morris December 2013 Report) records that Dr Morris had seen Mr Tambakeras 17 times from 24 August 2012 to 20 December 2013 and treated him with antidepressant medication over that time, had added another antidepressant medication (mirtazapine) on 19 June 2013 in response to his worsening depression and was arranging a referral to The Black Dog Institute at the University of New South Wales due to the severity, chronicity and treatment-resistance of his depression. The report refers to Mr Tambakeras as remaining severely depressed despite intensive psychological and psychiatric treatment and continuing to suffer from the psychiatric condition of major depressive disorder according to DSM-IV-TR criteria which, in Dr Morris’ opinion, was precipitated by the stressors suffered in his employment at the University in 2009. Dr Morris opines that Mr Tambakeras’ condition originally began as an adjustment disorder with anxiety and depressed mood but developed into a major depressive disorder, and that his whole person impairment was now at 22% (an increase from 15% when he rated him on 13 July 2012) which was indicative of a worsening of his disability as a result of the chronic major depressive disorder. According to the PIRS Rating Form completed by Dr Morris, Mr Tambakeras’ depressive symptoms were so severe, especially his despondent mood, poor concentration and inability to cope with stress, that he cannot work at all anymore. In the report, Dr Morris takes issue with the Vickery Report and disagrees that Mr Tambakeras’ current symptomology is not chiefly related to the original work incident from 13 March 2009.

102. Dr Teoh is a Consultant Psychiatrist and Physician in Addiction Medicine. His February 2014 report records that he examined Mr Tambakeras on 30 January 2014 and had been provided with a number of reports and medical certificates. It records that Mr Tambakeras was cooperative and spontaneous during the interview and that he reported significant depressive symptoms and having sleeping problems, but there was no evidence of psychiatric symptoms or suicidal ideations. In Dr Teoh’s opinion, Mr Tambakeras’ presentation was consistent with a diagnosis of an adjustment disorder with depressed and anxious mood (adopting the DSM IV diagnostic criteria), his condition was caused by the work related stress as a result of harassment and bullying, his prognosis was poor as his condition had become chronic and he was not fit to return to his usual employment.

103. On 28 March 2013, Ms Mackay completed a written assessment of Mr Tambakeras’ claim and sent it to Paul Woodburn, the Trustee’s in-house counsel. On 9 April 2014, Ms Mackay discussed her assessment with Mr Woodburn and incorporated his feedback into a memo for the IMC (CB839).

23 April 2014: First decision

105. On 23 April 2014, the IMC held a meeting to consider claims under the Deed, including Mr Tambakeras’ claim.

106. According to the minutes, the meeting was held at 9.00am on 23 April 2014, was attended by two out of three IMC members (Steve Leach, Executive Manager Operations, as Chair, and Joe Zahra, Manager-Member and Employer Administration), Ms Mackay, Mr Woodburn (Legal Counsel) and others, and closed at 10.25am. The minutes (which are redacted in part for privacy reasons) record that Mr Tambakeras’ claim was one of approximately 30 claims (or sets of claims) considered at the meeting, the IMC noted Management’s recommendations and the IMC approved the decision to decline Mr Tambakeras’ claim for a Disablement benefit in relation to depression with a benefit amount of $3,521.74. The decision recorded in the minutes is referred to in the following terms:

“The [IMC] declined the member’s claim for a Disablement and Temporary Incapacity benefit as the member does not meet either the definition of Disablement or Temporary Incapacity as per the requirements of the … Deed.”

107. Management’s recommendations are set out in a memorandum dated 16 April 2014 from Ms Mackay to the IMC which recommended declining Mr Tambakeras’ Disablement benefits claim and attached copies of the following documents: Occupational History and Training and Experience forms; the Member’s Statement; the Employer’s Statement; Dr Ristuccia’s April 2013 Report and August 2013 letter; Dr Morris’ May 2013 and December 2013 Reports and September 2013 letter; the Integrait Report, the O’Neill, Vickery, Teoh and Haralambous Reports, and the WorkCover medical certificates for the period from 14 May 2009 to 24 August 2013.

108. Ms Mackay’s memorandum states that Mr Tambakeras ceased all occupational duties on 25 February 2011 due to depression, his employment with the University was terminated on the same day and that Mr Tambakeras had applied for an “Inbuilt Benefit – Division B – Disablement”. It sets out information about Mr Tambakeras and his claim, the Disablement definition and other clauses from the Deed and summarises, in dot point form, information from Mr Tambakeras’ and the University’s documentation, the medical and supporting evidence, the WorkCover Materials, and the additional medical reports provided by Mr Tambakeras’ legal representatives, namely, the Morris December 2013 Report and Dr Teoh’s 5 February 2014 report.

109. In the section headed, “What is the injury of [sic] illness suffered by Mr Tambakeras”, the memorandum states:

“Based on medical evidence on the file, it appears that Mt Tambakeras suffered from depression, anxiety and adjustment disorder at or about the time he ceased work with the University.

However, there is debate about whether Mr Tambakeras continues to suffer from these psychological conditions.

Dr Ristuccia and Dr Morris maintain that Mr Tambakeras suffers from ongoing severe / major depression.

Mr O’Neill, engaged by the insurer in the workers compensation claim, opined that it is uncertain whether Mr Tambakeras suffers from a diagnosable disorder as there were significant inconsistencies during the assessment not in line with a clear diagnosis. Mr Tambakeras does not meet the criteria for Major Depressive Disorder however.

Dr Vickery, also engaged by the insurer in the workers compensation claim, opined that Mr Tambakeras presented as tense, despondent and withdrawn. However, there was no evidence of major depression, paranoid delusional ideation, formal though disorder or any cognitive impairment in concentration or memory.

Mr Haralambous, also engaged by the insurer in the workers compensation claim, opined that findings on objective evaluation are not consistent with any genuine known form of diagnosable psychological pathology.

UniSuper’s Chief Medical Office (CMO) has reviewed all medical evidence on the file and notes that Mr Haralambous had provided compelling evidence that Mr Tambakeras is overstating his difficulties which casts doubt over the veracity of his self-report.”

110. The memorandum identifies that Mr Tambakeras was absent for 165 days (approximately 5 months) during the 12 consecutive months immediately prior ceasing to be in the service of the University and that he satisfied the element of the definition that required him to be absent for three months.

111. In the section headed “Is Mr Tambakeras permanently incapable of performing duties or engaging in employment for which he is reasonably qualified by training and experience”, the memorandum refers to the conclusions in the Procedural Fairness Letter (detailed at [99]-[100] above) and summarises the response from Adams & Co (detailed at [101] above). It then proceeds to consider the “Case Law”, referring to Manglicmot, Hannover LifeReof Australasia Ltd v Dargan [2013] NSWCA 57 (Hannover Life v Dargan) and Finch and Mr Tambakeras legal submissions, with which she disagrees.

112. The memorandum identifies the date that Mr Tambakeras ceased employment with the University (25 February 2011) as the date on which the Trustee must assess whether Mr Tambakeras was, through depression, rendered permanently incapable of performing duties or engaging in employment for which he is reasonably qualified by training and experience and states:

“Conclusion

Based on the claims documentation and medical evidence on the file, I am not satisfied that Mr Tambakeras meets this element of the definition of Disablement. I have reached this conclusion on the basis that:

In the Attending Doctor's Medical Report dated 16 April 2013, Dr Paul Ristuccia advised that Mr Tambakeras became completely unable to perform all the normal duties of his occupation on 13 December 2011.

As at 25 February 2011, WorkCover NSW Medical Certificates completed by Dr Paul Ristuccia certified Mr Tambakeras fit to work three days per week. Dr Ristuccia then certified Mr Tambakeras fit to work 5 days per week from 5 July 2011 to 12 November 2011.

Therefore, I am not satisfied that Mr Tambakeras is entitled to a Disablement Benefit under the UniSuper Trust Deed.

…..

Recommendation

In light of the claim documentation and information provided for the assessment of the member’s Disablement claim, the recommendation to the Trustee is to decline the benefits the Disablement/Temporary Incapacity benefits on the basis that:

Mr Tambakeras does not meet the definition of Disablement under the [Deed]. …”

113. The memorandum also considers whether Mr Tambakeras was entitled to a Temporary Incapacity benefit under the Deed and concludes that he was not.

114. On 24 April 2014, the Trustee sent a letter to Adams & Co advising that it had completed the assessment of Mr Tambakeras’ Disablement claim and the IMC (a delegate of the IC, which is a delegate committee of the Trustee) had determined that the claim was unsuccessful. The Trustee’s letter confirms that Mr Tambakeras’ application for a Disablement benefit relates to depression and was assessed against the Disablement definition under the Deed. It also lists the information provided in support of Mr Tambakeras’ claim and records that the Trustee had also requested a copy of his workers compensation file. The letter states:

“After careful consideration of the material submitted in support of the claim, the IMC has determined that the claim is unsuccessful on the basis that, at all material relevant times, Mr Tambakeras was not permanently incapable of performing duties or engaging in employment for which he is reasonably qualified by training and experience.”

115. The letter goes on to state that in reaching its decision, the IMC noted:

1. matters related to the application of Manglicmot and disagreed with Adams & Co’s submission that Manglicmot was distinguishable;

2. matters relating to principles in Finch and considered that the circumstances in that case were distinguishable to the circumstances of Mr Tambakeras’ claim but, in any event, it is accepted that Mr Tambakeras was absent from employment for three months prior to ceasing work; and

3. that in relation to the date on which the Trustee must assess whether Mr Tambakeras was rendered permanently incapable of performing duties or engaging in employment for which he is reasonably qualified by training and experience, the definition of Disablement in the Deed is similar to the definition of TPD considered in Rapa v Patience (Supreme Court (NSW), McLelland J, 4 April 1985, unrep) (Rapa v Patience) and, based on the case law, it is satisfied that the date at which the Trustee must assess whether Mr Tambakeras was, through depression, rendered permanently incapable of performing duties or engaging in employment for which he was reasonably qualified by training and experience was the date he ceased employment with the University, being 25 February 2011.

116. The letter then states:

“Further, the IMC noted that:

In the Attending Doctor’s Medical Report dated 13 April 2013, Dr Paul Ristuccia advised that Mr Tambakeras became completely unable to perform all the normal duties of his usual occupation on 13 December 2011

As at 25 February 2011, WorkCover NSW Medical Certificates completed by Dr Ristuccia certified Mr Tambakeras fit for work three days per week. Dr Ristuccia then certified him fit to work five days a week from 5 July 2011 to 12 November 2011.”

117. The Trustee’s letter also advised that the IMC was not satisfied that Mr Tambakeras was entitled to a Temporary Incapacity benefit. The letter stated that if he disagreed with the IMC’s decision, he should notify the Trustee, noting that the next meeting was in August 2014, and if the original decision was affirmed by the Committee, he could lodge a complaint with the SCT.

February 2015: Mr Tambakeras lodges SCT complaint

118. On 16 February 2015, Mr Tambakeras lodged a complaint with the SCT regarding the Trustee’s decision to decline his claim. That prompted the Trustee to deem the complaint as a request for review of the IMC’s decision.

June 2015: Second decision

119. On 25 June 2015, the IC met to consider Mr Tambakeras’ disputed Disablement claim. The minutes of the IC meeting record that the IC reviewed the decision of the IMC to decline Mr Tambakeras’ claim for a Disablement benefit, resolved to maintain the original decision on the basis that, at all relevant times, he was not permanently incapable of performing duties or engaging in employment for which he was reasonably qualified by training and experience, and that the IC declined Mr Tambakeras’ Continued Inbuilt Temporary Incapacity and Continued Inbuilt Disablement benefit claims.

120. The minutes of the meeting record that Ms Mackay presented a paper which recommended that the IC decline Mr Tambakeras’ claims for a Disablement benefit, Temporary Incapacity benefit and Continued Inbuilt Disablement benefit. The paper prepared by Ms Mackay is a memorandum dated 25 June 2015 that attaches Ms Mackay’s 16 April 2014 memorandum (referred to at [107]-[113] above), the Trustee’s letter dated 24 April 2014 informing Mr Tambakeras of the Trustee’s decision to decline his claim, a copy of Mr Tambakeras’ complaint to the SCT and copies of the materials provided by Mr Tambakeras in support of his claim, the Employer Statement and the materials obtained by the Trustee from the WorkCover file.

121. Ms Mackay’s memorandum refers to Mr Tambakeras’ complaint to the SCT and that he had not provided any new evidence in support of his claims. It records that Mr Tambakeras had applied for and been paid the optional TPD benefit under the Hannover policy and had fulfilled the requirement to be absent from employment for a period of six months although did not meet the Deed definition of Disablement as a result of having been declared fit for work at various periods since ceasing employment in February 2011. It sets out the relevant Deed definitions and a summary of the relevant evidence in dot-point form. Under the heading ‘Relevant evidence’, the first section deals with the information provided by Mr Tambakeras, including the Occupational History and Training and Experience forms, the Member’s Statement, Dr Ristuccia’s 2013 Report, Dr Morris’ May and December 2013 Reports and Dr Teoh’s February 2014 report. The second section summarises information obtained by the Trustee from the Employers Statement and material from the WorkCover file, being the Integrait Report, the O’Neill Report, the Vickery Report, Dr Ristuccia’s 2013 letter to Hannover, Dr Morris’ 2013 letter to Hannover, the Haralambous Report and the WorkCover medical certificates by Dr Ristuccia for the period 14 May 2009 to 24 August 2013.

122. The memorandum states that a full review of Mr Tambakeras’ claims had been undertaken based on the information on the file and identifies the date for assessment as 25 February 2011. It refers to cl 51.2 of the Deed as restricting the period for a member to establish a claim for benefits to a two-year period, unless the Trustee exercises its discretion to grant an extension, and states that Management does not consider the exercise of this discretion is necessary in the circumstances. It then states:

“Management is of the view that the following evidence in particular, demonstrates that the member did not meet the Trust Deed definition of Disablement at all relevant times:

• In the Attending Doctor's Medical Report dated 16 April 2013, Dr Paul Ristuccia advised that the member became completely unable to perform all the normal duties of his occupation on 13 December 2011 (10 months after ceasing employment).

• As at 25 February 2011, WorkCover NSW Medical Certificates completed by Dr Paul Ristuccia certified the member as fit to work three days per week. Dr Ristuccia then certified the member fit to work 5 days per week from 5 July 2011 to 12 November 2011.”

123. On 2 July 2015, the Trustee sent a letter to Mr Tambakeras that referred to his complaint to the SCT, in which he asked for a review of the Trustee’s decision on 23 April 2014 to decline his claim. The letter advised Mr Tambakeras that his Disablement benefit was considered by the Trustee; that on 25 June 2015, the IC (as a delegate committee of the Trustee) reviewed his claim for a Disablement benefit and retrospective claim for a Temporary Incapacity claim; and that after careful consideration of Mr Tambakeras’ submissions in his complaint to the SCT and all other information made available to the Trustee, the IC determined that he was not entitled to a Disablement benefit (or Temporary Incapacity benefit). The letter states that the IC was not satisfied that he met the definition of Disablement at the relevant times and determined to maintain the Trustee’s decision and had, in reaching its decision, noted the matters in Dr Ristuccia’s April 2013 Report and the WorkCover medical certificates as at 25 February 2011 and from 5 July 2011 to 12 November 2011 (which are set out in the letter to Adams & Co (as detailed in [116] above).

June 2016 – May 2017: District Court proceedings and consent judgment

124. On 29 June 2016, Mr Tambakeras commenced proceedings in the District Court of New South Wales seeking damages from the University on the basis that it had breached its duty of care which caused Mr Tambakeras to suffer injury by the harassment and bullying by his supervisor in 2009 and 2010. The particulars filed by Mr Tambakeras referred to the injuries he received as major depressive disorder, adjustment disorder with anxiety and depressed mood, depression and anxiety, and state that Mr Tambakeras was injured in or about February 2011 and was thereafter totally and/or partially unfit for work. The University filed a defence denying Mr Tambakeras’ claim.

125. On 3 May 2017, the District Court proceedings were settled on terms that provided for judgment in the sum of $350,000 to be entered by consent and without admission of liability in favour of Mr Tambakeras with each party to pay their own costs (Consent Judgment). The Consent Judgment noted that the University was not at liberty to deduct from the judgment sum any sum paid to Mr Tambakeras pursuant to the Workers Compensation Act 1987 (NSW) (WCA).

126. On 15 May 2017, Centrelink advised Allianz Australia Workers Compensation (NSW) Limited that Mr Tambakeras was eligible for a lump sum compensation payment of $350,000 on 3 May 2017.

127. Mr Tambakeras gives evidence that he received close to $240,000 from the Consent Judgment after deduction of his legal fees of $110,000 (Affidavit of Marc Tambakeras sworn 17 August 2021 at [2]).

July 2017: SCT affirms Trustee’s decision

128. On 19 July 2017, the SCT handed down its determination that affirmed the Trustee’s decisions under review. It was satisfied that the decision by the Trustee to reject Mr Tambakeras’ claim for a Disablement benefit or a Temporary Incapacity benefit was fair and reasonable in the circumstances.

129. The SCT’s reasons refer to the complaint and some background facts, the terms of the Deed, summaries of medical reports provided to the SCT from his GP (Dr Ristuccia), five psychiatrists (which include Dr Morris, Dr Vickery and Dr Teoh) and four psychologists (including Mr O’Neill and Mr Haralambous), and the parties respective positions. The summaries of the reports from psychiatrists and psychologists referred to in the SCT’s decision include the following:

258. I am satisfied that the evidence establishes that Mr Tambakeras’ redundancy came about, in large part, because of his state of health, in the context where the University determined that there were no duties which he could perform within the part-time and working from home restrictions referred to in Dr Ristuccia’s medical certificates.

259. Mr Tambakeras’ evidence, which was not challenged on cross-examination, is that he did not feel well enough to work in the lead up to accepting his redundancy due to his mental health, which is not inconsistent with Dr Morris’ opinion that Mr Tambakeras was suffering from a major depressive disorder from August 2010 and was completely unfit for duties from February 2011. However, for the reasons I will come to, I am not persuaded to accept Dr Morris’ opinion as evidence that demonstrates that Mr Tambakeras accepted redundancy because he could not cope with the psychological condition that he was suffering and was permanently incapable of working at that time.

260. Mr Tambakeras’ evidence that he did not feel well enough to work in early 2011 and did not want to be in the office at that time may be supported by the leave records, which indicate he was on leave in the month prior to formally accepting redundancy. But, in my view, that leave is also explicable, by the holiday period at that time of year and the fact that he was aware of the redundancy. It is also inconsistent with Dr Ristuccia’s WorkCover certificates that certified him as fit to work part-time during that time (which Mr Tambakeras had signed).

261. During the 12 months leading up to the cessation of his employment, Mr Tambakeras had been increasing his work hours. A report from Mr Fischer in August 2011 refers to Mr Tambakeras feeling unsafe with regards to his supervisor and the work-situation being very difficult (CB598). But it also records the possibility of Mr Tambakeras working in another section and, in that setting, he “would be able to work full-time”. While that did not occur, it is contemporaneous evidence that supports a finding that Mr Tambakeras’ psychological condition and depression at that time did not render him permanently incapable of working.

262. Dr Morris’ 13 July 2012 report refers to reviewing Mr Tambakeras on 26 November 2010 (he refers to 2011 but, in the context, I take it to be a typographical error) who was very upset after receiving an offer of redundancy and had described his work situation as very depressing. The report notes that Dr Morris reviewed him again on 21 December 2010, on which occasion Mr Tambakeras told him that he had been off work since 10 December 2010 as the University had said there was no work for him to do. While reporting that he was not sleeping well, Dr Morris’ report does not refer to Mr Tambakeras reporting being unable to work due to his health or that Dr Morris considered that he was incapable of working at that time.

263. When Dr Morris saw Mr Tambakeras next, on 4 March 2011, Mr Tambakeras had accepted the redundancy and was looking for work. He reported feeling tired with reduced energy and motivation, still seeing a psychologist three times a week, receiving medication to help with sleep and having enjoyed a two-week holiday in Bali. Dr Morris continued to see Mr Tambakeras and on 17 May 2011, he was looking for work but was unsuccessful and on 1 July 2011 he reported being “not well”. That is consistent with other evidence to which I have referred. Dr Morris’ report indicates that Mr Tambakeras’ state of health was negatively impacted by his lack of success in job seeking and records that he continued to have difficulty in finding work and was consequently disappointed until 21 October 2021, when he records Mr Tambakeras being “very depressed” and commencing him on another medication.

264. Dr Morris reviewed him again on 27 January 2012, 21 March 2011, 2 and 18 May 2012, 8 June 2012 and in August 2010, in which he records that he was still very depressed and that he had changed (retrospectively) his diagnosis from an adjustment disorder to major depressive disorder.

265. Relevantly, in this respect, Dr Morris does not express any opinion as to Mr Tambakeras’ capacity to work at the time he ceased working at the University and refers to his diagnosis of major depressive disorder being precipitated by the stresses suffered at the University and being aggravated by his lack of success in finding other employment. He records that his prognosis was not particularly good, a reference to his psychological condition, rather than Mr Tambakeras capacity to work.

266. In relation to the question of whether Mr Tambakeras was permanently incapable of working, assessed as at 25 February 2011, there is also evidence that he was not suffering any disorder, was fit for work and had exaggerated his symptoms (outlined above at [94]-[95]). The tests administered showed inconsistent responding and over-reporting, although a later report from Dr Senior (referred to at [141]) raises doubts about the reliability of Haralambous’ Report. In the absence of any oral evidence from the doctors, it is difficult to assess the competing opinions, noting that they are based in large part by what they were told by Mr Tambakeras. Ultimately, I am not persuaded that I can simply accept Dr Morris’ opinions over the other contemporaneous evidence to find that in February 2011 Mr Tambakeras’ state of health rendered him permanently incapable of performing duties and engaging in employment.

267. In my view, the opinions expressed by Dr Ristuccia, as Mr Tambakeras’ treating general practitioner, in the WorkCover certificates is powerful evidence that, assessed at the time he left the University he was fit to work in a part-time capacity, and I prefer these opinions and his May 2013 Report to Dr Morris’ opinion. Dr Ristuccia’s WorkCover certificates provided contemporaneous opinions, directed to the relevant time. In contrast, Dr Morris’ opinion in his May 2013 Report seems to be an expression of when Mr Tambakeras actually ceased working, rather than an assessment directed to Mr Tambakeras’ capability of working and fitness for duties at the relevant time. Further, Dr Morris answered February 2011 in response to a question framed as “when did the claimant become completely unable to perform all the normal duties of his… occupation” rather than a question framed using the term “permanently”.

268. I also note that the contents of Dr Morris’ May 2013 Report which, if taken to refer to Mr Tambakeras not ever being able to return to work, is seemingly inconsistent with the Integrait Progress Report dated 12 March 2012 that records Dr Morris reporting that Mr Tambakeras would be able to return to full-time work but could not provide a timeframe and deferred to his treating psychologist, who at the time was Ms Cantali. According to that report, Ms Cantali agreed to a goal of changing Mr Tambakeras’ certificate to fit for suitable duties, with a view to a transition to full-time paid work.

269. In my view, the evidence overall demonstrates that Mr Tambakeras’ state of health deteriorated after he left the University and his depression was negatively impacted by his inability to obtain work during 2011 (see, in particular, the evidence referred to at [92], [93], [272]). I do not consider that I can infer from the contents of the Integrait Report (which refers to Mr Tambakeras’ negative worldview, desire to isolate himself and his passive approach) and the Section 40 Assessment Report (which refers to his interview presentation as a possible significant factor in why he is not obtaining second interviews) that Mr Tambakeras’ depression was the cause of his inability to obtain and engage in employment at that time. Based on the self-reports made by Mr Tambakeras (as referred to at [139]) and the Section 40 Assessment Report, it is equally open to conclude that he was unable to secure employment because he had been out of the market and was unwilling to apply for jobs outside of architectural drafting despite his qualifications and experience being relevant to other areas of drafting and facilities management, factors which may be unrelated to his state of health and capacity to work.

270. Mr Tambakeras had been working at the University part-time in the period prior to accepting redundancy on 25 February 2011 (albeit at reduced hours) notwithstanding he had depression and subsequently sought work in various companies. This seems to me to be indicative of a person who was (and saw themselves as) capable of working outside the University (albeit initially on reduced hours). It seems that if Mr Tambakeras had been offered a position with another employer, then he would have accepted it and resumed working. The evidence does not suggest otherwise.

271. I am satisfied that Mr Tambakeras is now and has been since at least 2013, permanently incapable of working due to a major depressive disorder. The report from Dr Parmegiani (an independent doctor who prepared a report for the Workers Compensation Commission) is particularly persuasive on that issue and I accept it. The later reports from Dr Dinnen and Dr Senior are consistent with this finding in respect of later years. Dr Parmegiani’s report also refers to Mr Tambakeras’ health and function having deteriorated since January 2013, consistent with the finding that his state of health was in decline.

272. I cannot exclude the possibility that Mr Tambakeras was permanently incapable of working from November 2011. Such a finding is consistent with Dr Ristuccia’s WorkCover Certificates and Dr Sharah’s report, which records a rating of 18% on the Psychiatric Impairment Rating Scale and a total impairment of 22%.

273. The critical question is whether I am satisfied that the evidence establishes that Mr Tambakeras left his role at the University because his state of health, assessed as at 25 February 2011, caused him to be unable to work at all, including for another employer, at that time and forever more. For the reasons set out above, I am not persuaded that it does.

Construction issues: cll 41.2(c) and 51.2

Legal principles

283. The principles to be applied in construing a superannuation trust deed were summarised by Keogh AJA (Tate and Santamaria JJA agreeing) in FSS Trustee Corp v Eataugh [2017] VSCA 218 at [61] in the following terms:

“A superannuation trust deed is a commercial document and should be given a business like interpretation, which requires attention to be paid to the language used in the deed, the commercial circumstances which the deed addresses, the context in which it operates and the objects it is intended to secure. [Hannover Life Re of Australasia Ltd v Colella (2014) 47 VR 1 at 4 [3]] It is necessary to consider what a reasonable person would understand by the language used in the deed and the rules. [Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 179 [41] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).] The Rules must be interpreted to give the words used their ordinary and fair meaning. [McCann v Switzerland Insurance Australia Ltd (2000) 176 ALR 711, 725 [74] (Kirby J)] When questions arise as to the meaning of words used in the Rules they are ‘to be answered in a practical and realistic way, not in a way which adopts an overly fine or theoretical approach that is alien to commercial agreements.’[Ibid 729 [81] (Kirby J)] The words or terms used are to be understood in the context and in relation to the circumstances in which they are used. [Apple & Pear Australia Ltd v Pink Lady America LLC (2016) 343 ALR 112, 147–8 [118] (Tate JA), 178 [229] (Ferguson and McLeish JJA).] A practical and purposive approach should be applied to the interpretation of superannuation schemes. [Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd (2002) 174 FLR 1, 54 [215] (Warren J)].”

284. The approach of construing the documents that constitute a superannuation fund in a practical and purposive way was also endorsed by Bathurst CJ (Macfarlan and Gleeson JJA agreeing) in Commonwealth Bank Officers Superannuation Corporation Pty Ltd & Anor v Beck & Anor [2016] NSWCA 218 at [89].

Does cl 51.2 operate as a bar to Mr Tambakeras’ claim?

285. The Trustee submits that, in circumstances where Mr Tambakeras first made his claim on 14 May 2013 (more than two years after the date on which any benefit could have commenced), the two-year limitation period imposed by cl 51.2 acts as an absolute bar to his Disablement claim in the absence of a determination by the Trustee of “such further period”. It submits that cl 51.2 does not involve any exercise of discretion as the wording of the clause is mandatory in nature, providing that, if a claim is not made and established to the Trustee’s satisfaction within the relevant period, the benefit “will be retained by the Trustee for the general purposes of the Fund. It also submits that, as Mr Tambakeras’ claim was not made and established within the relevant two-year period, there was no requirement on the Trustee to make any determination to identify any relevant and different periods, such that there is a lack of any discretionary component within the clause (T199.5-32).

286. The Trustee says that this construction reflects the purpose of cl 51.2(a), which is to limit the time in which the Trustee and the assets of the Fund are exposed to a claim in order to achieve a balance between individual Fund members and the Fund as a whole, and to ensure that claims are brought promptly so as to enable the Trustee to manage assets which are held for the benefit of all Fund members.

287. Mr Tambakeras submits that, having regard to the language, context and purpose of cl 51.2, it does not operate as a complete bar in the manner contended by the Trustee, and that the Trustee is obliged to consider whether to exercise its discretion to permit his claim that is otherwise brought out of time if the Trustee determines he is within the Disablement definition. On this aspect, I agree with Mr Tambakeras’ submission.

288. Clause 51.2 addresses the circumstances where a member fails to make and establish a claim under the Deed within the two-year period proscribed. The plain language of the clause means that, having not made and established his claim to the Trustee’s satisfaction by 25 February 2013, prima facie, any benefits to which Mr Tambakeras was entitled ceased to be payable.

289. However, that position is subject to the Trustee exercising its discretion to extend the time for Mr Tambakeras to make and establish his claim, and a determination by the Trustee to reinstate all or part of his benefit or other amount which would be payable to him but for the operation of that clause. In my view, those matters involve discretionary powers on the part of the Trustee which it must consider whether to exercise in circumstances where Mr Tambakeras has made a claim for benefits under the Deed.

290. The discretionary power given to a trustee to act (or not) in a specified manner imposes a duty on that trustee to at least consider the matter and decide deliberately whether to exercise the power: Lutheran Church of Australia South Australia District Inc v Farmers Co-operative Executives and Trustees Ltd (1970) 121 CLR 628 at 652. In Karger v Paul, McGarvie J referred to this (at 164), where His Honour said:

“I regard it as an inherent requirement of the exercise of any discretion that it be given real and genuine consideration. To borrow a phrase from passage quoted in Partridge v Equity Trustees Executors and Agency Co Ltd (1947) 75 CLR 149, at p 164, there must be the “exercise of an active discretion”. It has been held that when the occasion for the exercise of a discretionary power has arisen, trustees, while not bound to exercise the discretion, are bound to consider whether it ought in their judgment to be exercised: Klug v Klug [1918] 2 Ch 67; In re Gulbenkian's Settlement [1970] AC 508, at p. 518.”

291. Recently, the principle that a trustee must consider whether to exercise a discretionary power was reaffirmed in Owies v JJE Nominees Pty Ltd (in its capacity as the trustee for the Owies Family Trust) [2022] VSCA 142 at [98], where the Victorian Court of Appeal stated:

“where there is a discretionary power, the trustee must turn its mind to whether to exercise the power…”

292. It follows, in my view, that when Mr Tambakeras made a claim for benefits under the Deed outside the two year period provided for in cl 51.2, the Trustee was obliged to consider whether to exercise its discretionary powers under cl 51.2 to extend the period in which his claim may be made and established to the Trustee’s satisfaction and, if the claim is made out, to reinstate all or part of the benefit or other amount to him. In other words, cl 51.2 does not act as an absolute bar to Mr Tambakeras’ claim as the Trustee submits, but subjects the Trustee to an obligation to turn its mind to whether it will exercise the discretionary powers given to it under the Deed if such a claim is made.

293. This construction is consistent with the underlying purpose of the Fund and the nature of the Trustee’s obligations, which is to act in the best interests of beneficiaries, and its role as a fiduciary that is required to make decisions which may lead to payments of money, none of which is owned beneficially by the Trustee: Shuetrim at [187].

294. Accordingly, if I had set aside the decisions and found that Mr Tambakeras was entitled to a Disablement benefit, I would have concluded that cl 51.2 of the Deed was not an absolute bar to his claim and the Trustee was obliged to consider whether to exercise its discretion to extend the period for making and establishing his claim and reinstate all or part of his benefit.

295. Finally, I note that neither party referred to cl 22 of the Deed which provides:

22. Absolute discretion of the Trustee

“All authorities, powers and discretions of the Trustee under this Deed may be exercised, or not exercised, at the absolute discretion of the Trustee (unless expressly specified otherwise).”

296. An absolute discretion may be reviewed on the grounds explained in Karger v Paul, which includes the duty to exercise discretions upon a real and genuine consideration: Wareham at [90]-[91]. Thus, in this case, it seems that despite cl 22 of the Deed, the Trustee would have been obliged to consider whether to exercise its discretionary powers under cl 51.2.

Does cl 41.2(c) entitle the Trustee to reduce Mr Tambakeras’ benefit by the Consent Judgment sum?

297. This issue raises a question of construction of cl 41.2(c) of the Deed (referred to at [44] above) and concerns what amounts the Trustee may, in its discretion, offset against a Disablement benefit payable to Mr Tambakeras.

298. The parties are agreed that Mr Tambakeras’ weekly workers compensation payments fall within cl 41.2(c). It is also common ground that, for the purposes of cl 41.2(c), the common law damages received by way of the Consent Judgment is an amount payable to Mr Tambakeras in respect of his Disablement.

299. The dispute is whether the Consent Judgment sum is an amount payable to Mr Tambakeras in respect of his Disablement under:

1. any legislation dealing with workers compensation and similar payments: cl 41.2(c)(i); (or)

2. any award or agreement relating to Mr Tambakeras’ employment with the University: cl 41.2(c)(ii).

300. The Trustee’s primary position is that the Consent Judgment is an amount payable “under any legislation dealing with workers compensation”, or alternatively, as “similar payments”.

301. It submits that the word “under” should be construed broadly as including “governed, controlled or bound by; in accordance with”, referring to the statement by Warren J in BTR Engineering (Australia) Ltd v Dana Corp [2000] VSC 246 at [24], as referred to by White J in Buswell v TAL Life Ltd (2018) [2018] NSWSC 1507 at [34] (Buswell). It submits the Consent Judgment sum represents work injury damages, the quantum and receipt of which are controlled by ss 151G and 151I of the WCA and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) (T153.44–T154.11, T154.50–T155.11, T156.20–25, T156.45–8).

300. If the Consent Judgment sum is not an amount payable under the WCA, then the Trustee says it comes within the expression “similar payments” as it is “similar” to payments under the WCA, in the sense that common law damages represent compensation for the loss of the capacity to earn income, which is a payment of the same nature as the payment of statutory weekly compensation. The Trustee argues that “similar payments” capture those that are similar to payments made under workers compensation legalisation (rather than payments under the legislation itself) and relies on the use of the expression “similar payments” together with workers compensation in the definition of “Salary” in the Deed as suggesting that this is the intended meaning of “similar payments (T157.10–T158.12).

301. The Trustee submits that if the Consent Judgment sum does not fall within cl 41.2(c)(i), it is properly characterised as an award of damages, as it is a payment of a “Judgment for the plaintiff” (as described in the Consent Judgment), or alternatively, it is a payment under an agreement that relates to Mr Tambakeras’ employment with the University.

302. The Trustee submits that its construction is supported by the language and purpose of the Deed and is practical, referring to the structure of cl 41 that provides the Trustee with the ability to reduce benefits payable if amounts relating to the exercise or non-exercise of working capacity are received by the member. It submits that the clear purpose of cl 41.2(c) is to permit the Trustee to reduce the benefits payable if an amount is payable in respect of the member’s Disablement or Temporary Incapacity, and that common law work injury damages satisfy that test. It also submits that such a construction accords with the purpose of the Deed, noting that it applies to a large number of members whose interests are best served by fairly representing the loss occasioned by Disablement or Temporary Incapacity not being paid where they are relevantly compensated for their incapacity to work from another source.

303. As to the first condition, I accept Mr Tambakeras’ submission that as the source of the right to claim work injury damages is the common law, a payment in satisfaction of that right is not a payment “under any legislation dealing with workers compensation”: Buswell at [14] and [48]. The WCA may recognise and preserve the remedy to claim for “modified common law damages” and modify what may be available at common law, and the WIM Act may control the procedures necessary to be invoked to recover common law damages, but an amount received by way common law damages is not, in my view, payable under that Act.

304. While there is force to the Trustee’s submission that the purpose and context of the clause might support a broad interpretation, I consider the better construction that reflects what an ordinary business person would understand the clause to mean is that the words “under any legislation dealing with workers compensation” are directed to payments that the member receives as provided for by legislation, such as the WCA, and does not extend to an amount that is received pursuant to a claim brought by the member for modified common law damages: Buswell at [39].

305. In relation to “similar payments”, Mr Tambakeras submits that it should be read as payable under “legislation relating to similar payments” (such as s 47 of the Motor Accidents Compensation Act which deals with payments in respect of lost earnings relating to a disability) (T180.39–T181.21). He submits that the payment of work injury damages is not a similar payment to a payment under the WCA notwithstanding they both arise out of an injury in the workplace because the entitlement, amount and length of payments under the WCA are controlled by that Act, in contrast to the lack of statutory control as to the amount that can be awarded for work injury damages (T181.43–T182.47).

306. On this issue, I also prefer Mr Tambakeras’ submission. While accepting that there is some awkwardness in the drafting, in my view, on the better construction of the clause, the phrase “similar payments” does not extend to a lump sum payment received by way of a consent judgment arising from a common law damages claim. This is because that the Consent Judgment amount, though similar to workers compensation in the sense that it seeks to compensate for the loss of the capacity to earn income, is not payable to Mr Tambakeras under any legislation.

307. In my view, the words “payable… under… any legislation” are to be read so as to condition “similar payments” as referred to in cl 41.2(c)(i). In other words, the concept of similarly in the clause is directed to payments that are similar in nature to workers compensation but also have some statutory source and are payable under legislation. If, as the Trustee submissions suggest, the object of the clause is to allow the offsetting of a payment similar to workers compensation that was not made under legislation, the drafter could have included a new sub-clause to deal with such payments.

308. As to cl 41.2(c)(ii), in my view, the references to “award” and “agreement” in cl 41.2(c)(ii) are directed to payments under industrial instruments, awards or agreements, akin to the University of Sydney Enterprise Agreement which sets out a method for calculating entitlements for staff who are made redundant by reference to their salary, as Mr Tambakeras submits. A consent judgment merely gives effect to an agreement to settle and does not, without more, amount to an award of damages or agreement in respect of employment: Newcrest Mining v Thornton (2012) 248 CLR 555; [2012] HCA 60 at [29].

309. In conclusion, I accept Mr Tambakeras’ submission that, on a proper construction of cl 41.2(c), the Consent Judgment sum does not fall within cl 41.2(c) of the Deed such that the Trustee may reduce Mr Tambakeras’ Disablement benefit by that amount.

310. Finally, I should record that if the Consent Judgment sum fell within cl 41.2(c), then I would have been inclined to refer the matter back to the Trustee to consider whether to exercise its discretion in accordance with that clause having regard to the further information received during the course of the hearing in relation to the costs of the District Court proceedings, rather the Court stepping in and making a decision on that issue in place of the Trustee.

Costs and orders

313. As I have concluded that Mr Tambakeras has failed to establish that the second and fourth decisions are void and of no effect and that he has any entitlement to relief, I will order that the ASOC be dismissed.

314. Given the outcome, I see no reason why the usual order that costs follow the event should not apply and propose to make an order that Mr Tambakeras pay the Trustee’s costs of these proceedings.  However, as they have not addressed the Court on costs, I have deferred entry of the proposed order for 21 days to enable any party to make an application if they consider that a different order should be made. In that event, the party seeking a different costs order should confer with the other party and, before the orders take effect, notify my Associate by email of the costs order sought together with a short outline of submissions (of no more than two pages) and an agreed date for submissions in response, with a view to the issue of costs being determined on the papers.

315. For these reasons, I make the following orders:

1. Dismiss the plaintiff’s Amended Statement of Claim.

2. Unless a party makes an application for a different cost order within 21 days, the plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis as agreed or assessed.

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Endnote

Amendments

31 August 2022 - 31/08/2022 - "valid" changed to "validly" in [9]; "to be" changed to "can" in [21]; "[0]" changed to "[92]" in [94]; "which to suggests" changed to "which suggests" in [181]; "explanation" changed to "opinion" in [274]; paragraph break inserted in [277] between "work." and "In my view"

Decision last updated: 31 August 2022