Howitt-Steven v Unisuper Limited [2001] FCA 1599 (15 November 2001)

Last Updated: 19 November 2001

FEDERAL COURT OF AUSTRALIA

Howitt-Steven v Unisuper Limited [2001] FCA 1599

SUPERANNUATION - disability benefits - appeal from Superannuation Complaints Tribunal - whether applicant had a pre-existing medical condition not disclosed by the applicant at the time that he joined the superannuation scheme - onus of proof - whether Tribunal applied correct test in finding that decision of trustee was not "unfair" or "unreasonable" for the purposes of s 14 and s 37 of the Superannuation (Resolution of Complaints) Act 1993 (Cth)

Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 14, 18(1), 23(2), 27, 36, 37, 46

Insurance Contracts Act 1984 (Cth) ss 21, 26

National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562; [2000] FCA 852, referred to

Seafarers' Retirement Fund Pty Ltd v Oppenhuis (1999) 94 FCR 594; [1999] FCA 1683, distinguished

Flexiplan Australia Ltd v Pankhurst & Others [2001] FCA 1535, referred to

Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330, applied

WARREN ARTHUR HOWITT-STEVEN v UNISUPER LIMITED

N 1177 of 2000

BRANSON J

SYDNEY

15 NOVEMBER 2001

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

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

THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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

BETWEEN:	WARREN ARTHUR HOWITT-STEVEN APPLICANT
AND:	UNISUPER LIMITED RESPONDENT

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

REASONS FOR JUDGMENT

INTRODUCTION

1 Section 46 of the Superannuation Industry (Resolution of Complaints) Act 1993 (Cth) ("the Act") provides that a party may appeal to this Court, on a question of law, from a determination of the Superannuation Complaints Tribunal ("the Tribunal"). The Applicant, who is dissatisfied with a decision of the Tribunal given on 9 October 2000, on 6 November 2000 exercised the right of appeal created by s 46 of the Act by filing a notice of appeal in the Court. The notice of appeal was amended on 21 February 2001.

2 The determination of the Tribunal given on 9 October 2000 affirmed the decision of Unisuper Limited ("the Trustee"), the Trustee of the Superannuation Scheme for Australian Universities ("SSAU"), to refuse to pay benefits to the Applicant under the SSAU. The refusal was based on a finding made by the Trustee that the benefits claimed by the Applicant related to a pre-existing medical condition not disclosed by the Applicant at the time that he joined the SSAU.

3 The amended notice of appeal is less helpful than is desirable in identifying the questions of law upon which the Applicant appealed to this Court. The written submissions of the Applicant contain the following paragraph:

"4. In summary, the grounds of appeal that the Applicant says involve errors of law by SCT [the Tribunal] are as follows:

(a) Adverse findings of credit where there was no evidence at all to support the findings

(b) Considering irrelevant matters

(c) Procedural unfairness

(d) Failing to acknowledge and consider evidence before it

(e) Failing to consider and apply relevant legislation and law

(f) Making findings and inferences not reasonably open to SCT to make on the evidence

(g) Failing to or misapplying the provisions of the Complaints Act [the Act]

(h) Exceeding its jurisdiction

(i) Considering matters that were irrelevant to the issue of whether the Respondent's decision was unfair and unreasonable

(j) Acting contrary to law."

4 Doing the best I can, having regard to the documents referred to above and the Applicant's oral submissions, I conclude that the questions of law upon which the Applicant ultimately placed reliance were:

(a) that the Tribunal erred in law by failing to conduct an oral hearing before reaching its decision;

(b) that the Tribunal erred in law in failing to try to settle the complaint by conciliation;

(c) that the Tribunal erred in law in failing to join certain medical practitioners as parties to the complaint;

(d) that the Tribunal erred in law by failing to consider whether there were special or exceptional circumstances to justify the payment of a benefit to the Applicant;

(e) that the Tribunal misconstrued cl B.13 of the SSAU Consolidated Trust Deed in that it found that cl B.13 deals with disclosure of pre-existing conditions rather than disclosure of "a condition which existed at the time of joining the Scheme";

(f) that the Tribunal erred in law in that it wrongly acted on the basis that the Applicant bore an onus of proving that he had not failed to make proper disclosure at the time that he joined the SSAU;

(g) that the Tribunal erred in law in failing to take into account evidence that it was bound to take into account, namely evidence that the Applicant was not, at the relevant time, aware of the condition which was not disclosed by him;

(h) that the Tribunal erred in law in failing to "apply" the Act and the "principles of fiduciary duties" in considering the Applicant's complaint; and

(i) that the Tribunal erred in law in taking an adverse view of the Applicant's credit.

PROCEDURES BEFORE THE TRIBUNAL

5 Subsection 23(2) of the Act provides:

"(2) If:

(a) a party to a complaint is not a body corporate or unincorporate; and

(b) the Tribunal is satisfied that the party cannot adequately act on his or her own behalf because he or she has a disability;

the party may be represented by an agent."

6 By letter dated 16 May 2000 addressed to Maurice Blackburn Cashman, Lawyers, the Tribunal advised that firm that the Tribunal had granted approval for the Applicant to be legally represented by that firm. Correspondence placed before the Court indicates that Messrs Maurice Blackburn Cashman had in fact been acting for the Applicant in respect of his complaint from at least 10 June 1999. The Applicant agreed in cross-examination that he had first sought legal assistance from Messrs Maurice Blackburn Cashman as a result of receiving a letter from the Tribunal dated 29 July 1998. I conclude that the Applicant has been in receipt of legal assistance in respect of his complaint since approximately August 1998.

7 By letter dated 15 June 1998 the Tribunal inquired of the Trustee whether the Trustee would be prepared to participate in a conciliation conference to attempt to resolve the Applicant's complaint, or alternatively, whether the Trustee wished to propose another approach to try to resolve the matter. By letter dated 9 July 1998 the Trustee confirmed that it would not participate in a conciliation conference. It did not advance any alternative proposal for possible resolution of the matter.

8 By letter dated 16 May 2000 sent to the Applicant and the Trustee respectively the Tribunal advised:

"As attempts by the Tribunal to resolve the complaint by conciliation have been unsuccessful, a Review Meeting will be held at the 8^th Floor, 60 Collins Street, Melbourne, Victoria on Monday 17 July 2000 at 1.00pm. ...

Unless the Tribunal subsequently determines otherwise, the Review Meeting will be conducted on the papers without oral submissions. Parties may only attend the Review Meeting if the Tribunal has made an Order allowing oral submissions."

The letter invited the making of written submissions for consideration by the Review Meeting of the Tribunal.

9 By letter dated 29 May 2000 the Trustee provided the following brief submission:

"The Trustee contends that Mr Howitt-Steven made a false statement regarding his state of health (Clause 6(3)) and his benefit is therefore restricted in accordance with Clause B.13 of the Trust Deed."

The Applicant's solicitor, by letter 16 June 2000 provided a longer written submission to the Tribunal which supplemented written submissions earlier made on the Applicant's behalf. The submission reviews the medical evidence concerning the Applicant. It contended that the opinion, diagnosis and prognosis of the Applicant's treating doctors over a long period should be preferred over the report of "Dr. K". It concluded:

"In our submission, the trustee has improperly determined that Mr Howitt-Stevens was suffering from a `condition which existed at the time of joining the scheme', as referred to in clause B.13 of the Amended Trust Deed. In our submission the conditions are entirely separate, which is supported by the medical evidence."

The written submission provided to the Tribunal on behalf of the Applicant did not contend that:

(a) the Tribunal had failed to try to settle the matter by conciliation;

(b) the Tribunal should, either as a matter of discretion, or alternatively, as a matter of legal obligation, conduct an oral hearing with respect to the Applicant's complaint; or

(c) that the Tribunal should join one or more medical practitioners as parties to the complaint.

Nor did the written submissions address the proper construction of cl B.13 of the Deed, and particularly whether the clause was restricted in its application to medical conditions of which the member was aware at the time of joining the SSAU. By letter dated 5 July 2000 the Applicant's solicitor supplemented the earlier written submissions. This letter concluded

"In summary:

(a) Mr Howitt-Steven did not make any false statement given his state of knowledge at the time.

(b) Mr Howitt-Steven did not become disabled as a result of `a condition which existed at the time of joining the scheme', but rather because of a separate and distinct condition which later developed."

10 The written reasons for decision of the Tribunal are dated 9 October 2000. The Tribunal, in its written reasons for decision, identified the following as the background to the Applicant's complaint:

"The Complainant is 54 years of age (date of birth being 16 February 1946).

The Fund became regulated on 10 August 1994.

On 18 October 1994, the Complainant was admitted to hospital for one week suffering from adjustment disorder and secondary alcoholism. The Complainant explained (in a letter to the Trustee in July 1997) that his increase in alcohol consumption in 1994 was due to work related stresses, was short lived and did not include anxiety or depression.

The Complainant was employed in an administrative capacity by the Employer from January 1995.

When the Complainant joined the Fund on 10 April 1996 he wrote `no' on the Health Declaration Form in response to the question asking if he had ever had a mental or nervous disorder.

On 11 February 1997 the Complainant ceased work. On 10 April 1997 he applied for payment of a disablement benefit describing his illness or injury as "severe depression and anxiety, insomnia". In his disablement claim nomination form, he said symptoms of his condition had first appeared in November 1994 and that he had been hospitalised because of them in November 1994. This form was supported by a form completed by Dr S who first attended the Complainant on 19 February 1997 and said that the Complainant's symptoms first appeared in November 1994.

The disablement claim was denied by the Trustee on 5 June 1997. The reason given was that the Complainant had failed to disclose his symptoms of depression and anxiety when he applied for Membership of the Fund in April 1996. The Trustee determined that he was not eligible to claim due to the provisions of Clause B.13 of the Trust Deed.

On 5 June 1998, the Complainant permanently ceased employment.

The Complainant claims that the condition he suffered from in 1994 and the condition which was the basis of his claim in April 1997 are not the same and he denies he was suffering from the condition complained of in 1997 at the time he joined the Fund.

The disablement benefit amount is an annual pension of $19,855.00 or, if the Complainant is determined to have had an undisclosed pre-existing condition, a lump sum of $15,200.00 paid as a restricted benefit in accordance with Clause B.13 of the Trust Deed and calculated in accordance with the formula at Clause B.6.

No benefit has been paid to the Complainant by the Trustee.

The Complainant applied for Department of Social Security (DSS) sickness benefits on 22 May 1998 and as at 2 August 1999 was in receipt of a Disability Support Pension."

11 The Tribunal reviewed the medical evidence before it in the following way:

"Record of hospital admission (for treating doctor) 25/10/94

A hospital admission form reveals that the Complainant was admitted to hospital on 18 October 1994 and released on 25 October 1994, with a principal diagnosis of `adjustment disorder' and secondary diagnosis of `alcoholism'.

Dr S (Psychiatrist for Trustee) 17/4/97, 19/8/97

Dr S provided a report dated 17 April 1997 on a Disablement Claim Notification form provided by the Trustee. He described the Complainant as having:

`generalised anxiety disorder, major depression disorder.'

The Symptoms were:

`depression, poor concentration, anxiety, insomnia ...'

being symptoms that first occurred in November 1994.

The definition of disablement under the Deed was quoted and Dr S answered `yes' to the question `in your opinion and giving consideration to the member's occupation and duties is the claimant disabled in terms of this definition.' This condition was considered to be permanent.

Dr. S Psychiatrist (for Complainant) 19/1/98

On 19 August 1997 Dr S provided a report on 7 examinations of the Complainant conducted by him. He noted that the Complainant was admitted to hospital in October 1994 with adjustment disorder and alcoholism.

Dr S noted that at the present time the Complainant was depressed, has impairments to sleep patterns, was on medication and was recovering quite well.

Dr S provided a letter to the Tribunal dated 19 January 1998 stating that:

`...it is my definite medical opinion that ...[the Complainant] developed psychiatric symptomatology in approximately December 1996. ...In my opinion, the psychiatric impairments that he displayed at the time of my examination (in February 1997) were very different to the personal stressors he experienced in October 1994 and which resulted in his admission to ...hospital. ...he was diagnosed with an adjustment disorder which essentially is a broad based terminology for a transient situation or disturbance of a non permanent psychiatric kind ... the interpersonal difficulties he experienced at that time and which warranted his admission for a brief period were more in the form of respite and were not connected at all with the symptomatology he presented to me in February 1997.

... there is no evidence that the conditions were ongoing ... he suffered a separate and discrete episode of a vary (sic) different type to that which necessitated his admission to ...[hospital]'.

Dr E, Psychiatrist (for the Trustee) 16/9/97

Dr E reported on 16 September 1997 that the Complainant was hospitalised with an alcohol problem and adjustment disorder in October 1994, both of which were short lived.

Dr G, General Practitioner (for the Trustee) 17/9/97

Dr G's report dated 17 September 1997, provided a medical history dating back to 1988. He said that the first reference in his clinical notes to depression was on 11 February 1997. Dr G reported `work related stress' in October/November 1994.

Dr K, Psychiatrist, (for the Trustee) 23/4/98

Dr K noted the restriction regarding death and disablement benefits under the Deed. He also read the report of Dr S dated 19 January 1998, the hospital admission form, the letter from the Complainant indicating he did not have a consultation with Dr G in November 1994 regarding anxiety and depression. He also noted the disablement claim form by the Complainant and by Dr S.

Dr K said that an adjustment disorder would basically include increased anxiety and depressive features even if there were some associated behavioural symptoms.

`...I consider that it is well understood that an adjustment disorder does include anxiety and depression in its overall diagnosis. ...In my opinion there would have been clearly anxiety/depression in 1994 and thus, the illness is a primarily ongoing chronic illness situation. Naturally as happens in psychiatry, there are some minor or different variations time to time.'

Dr K did not accept the finding by Dr S that the difficulties the Complainant experienced in 1994 were not connected at all with the symptomatology presented by the Complainant in 1997.

`Given that there was anxiety and depression in 1994 associated with alcoholism, on the strong balance of probabilities and as well that there has been some further depression in 1997, I consider that this man had a pre-existing illness from 1994 onwards in a fluctuating way.'"

12 The Tribunal identified the issue for its determination as being whether the decision of the Trustee to reject the Applicant's claim for a disablement benefit was "fair and reasonable in the circumstances." In particular the Tribunal considered that it was required to determine whether:

"1. The member became disabled or suffered temporary incapacity within 3 years of joining the Scheme by reason of a condition which existed at the time of joining the Scheme which was not disclosed to the Trustee at that time or

2. The member did not provide an accurate statement in a form approved by the Trustee as to the member's health and such other matters as the Trustee may require at the time the member joined the scheme."

13 The Tribunal was persuaded by the contents of a report by the psychiatrist whom it identified as "Dr K". The Tribunal's summary of Dr K's report is set out in [11] above. The Tribunal concluded that the Applicant's "1994 condition of adjustment disorder was in the nature of a mental or nervous disorder which ought to have been disclosed." It further concluded that the Applicant had not provided an accurate statement as to his health when he joined the SSAU, and that there were no special or exceptional circumstances to justify payment of the benefit under cl B.8 of the Deed.

CONSOLIDATED TRUST DEED OF SSAU

14 The Consolidated Trust Deed of SSAU ("the Deed") at the time that the Applicant joined the scheme, and at the time that he notified the Trustee of his disablement claim, was in the form identified below.

15 Clause 1 of the Deed, which is concerned with interpretation, provided, amongst other things, that:

"`disablement' in relation to a member means being absent from employment through injury or illness for three months within a period of twelve consecutive months and in such state of health (not due to or induced by any wilful action on the part of the member designed or intended to bring about a state of health to obtain a benefit under the Scheme) as in the opinion of the Trustee, after consideration of all the facts and evidence before it, renders the member permanently incapable of performing duties or engaging in employment for which the member is or was by reason of training and experience, reasonably qualified;"

16 Clause 6 relevantly provided:

"(1) Every eligible employee shall as a condition of membership complete an application for membership in such form as the Trustee shall from time to time determine and in so doing shall be deemed to agree to comply with and to be bound by the provisions of the Deed.

(2) ...

(3) Where the Trustee is of the opinion that a member has made a false, misleading or inappropriate statement as to the member's age, state of health or otherwise or has failed to disclose any relevant fact or information in relation to his or her application for membership or in any medical examination or test for the purposes of the Scheme the Trustee may reduce or adjust any benefit payable to or in respect of the member in such manner as the Trustee may determine."

17 The Tribunal found, and it is accepted by the parties, that Division B of the Deed applied to the Applicant. Clause B.13 provided:

"Restriction on death and disablement benefits - pre-existing conditions

B.13 Notwithstanding anything expressed or implied to the contrary in this Division, where the Trustee is of the opinion based on such evidence as the Trustee considers satisfactory that the member died or became disabled or suffered temporary incapacity within three years of joining the Scheme by reason of a condition which existed at the time of joining the Scheme which was not disclosed to the Trustee at that time or the member did not provide an accurate statement in a form approved by the Trustee as to the member's health and such other matters as the Trustee may require at the time the member joined the Scheme, the benefit in respect of the Member's death or disablement shall be a lump sum calculated in accordance with the following formula:

benefit salary x contributing service x 21% x ASF ["Average Service Fraction" as defined by the Deed].

The temporary incapacity benefit under Clause B.8 shall not be payable unless by reason of special or exceptional circumstances the Trustee other [sic] determines in any particular case."

STATUTORY SCHEME

18 Section 14 of the Act authorised the Applicant to make a complaint to the Tribunal that the decision of the Trustee was "unfair or unreasonable."

19 Subsection 18(1) of the Act provides:

"The parties to a complaint under section 14 are:

(a) the complainant; and

(b) the trustee; and

(c) if the subject matter of the complaint relates to a death benefit or a disability benefit under a contract of insurance between the trustee and an insurer and the Tribunal decides that the insurer should be a party to the complaint) - the insurer; and

(d) if the subject matter of the complaint relates to a disability benefit (whether under a contract of insurance or otherwise) and the Tribunal decides that a person other than a trustee or insurer is responsible for determining either or both of the existence and the extent of the disability (whether total and permanent or otherwise) - that person; and

(e) if any other person has applied to the Tribunal to be made a party to the complaint (whether under section 24A or otherwise) and the Tribunal decides that the person should be a party to the complaint ) - that person."

20 Section 36 and 37 of the Act are concerned with the Tribunal's procedures and powers in determining a complaint under s 14. They provide:

"36. The Tribunal, in reviewing a decision or conduct:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) is to act as speedily as proper consideration of the review allows, having regard to:

(i) the objectives laid down by section 11; and

(ii) if the complaint relates to a fund - the interests of all the members of the fund; and

(c) may inform itself of any matter relevant to the review in any way it thinks appropriate.

37.(1) For the purpose of reviewing a decision of the trustee of a fund that is the subject of complaint under section 14:

(a) the Tribunal has all the powers, obligations and discretions that are conferred on the trustee; and

(b) subject to subsection (6), must make a determination in accordance with subsection (3).

(2) If an insurer or other decision-maker has been joined as a party to a complaint under section 14:

(a) the Tribunal must, when reviewing the trustee's decision, also review any decision of the insurer or other decision-maker that is relevant to the complaint; and

(b) for that purpose, has all the powers, obligations and discretions that are conferred on the insurer or other decision-maker; and

(c) subject to subsection (6), must make a determination in accordance with subsection (3).

(3) On reviewing the decision of a trustee, insurer or other decision-maker that is the subject of, or relevant to, a complaint under section 14, the Tribunal must make a determination in writing:

(a) affirming the decision; or

(b) remitting the matter to which the decision relates to the trustee, insurer or other decision-maker for reconsideration in accordance with the directions of the Tribunal; or

(c) varying the decision; or

(d) setting aside the decision and substituting a decision for the decision so set aside.

(4) The Tribunal may only exercise its determination-making power under subsection (3) for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both, that the Tribunal has determined to exist in relation to the trustee's decision that is the subject of the complaint no longer exists.

(5) The Tribunal must not do anything under subsection (3) that would be contrary to law, to the governing rules of the fund concerned and, if a contract of insurance between an insurer and trustee is involved, to the terms of the contract.

(6) The Tribunal must affirm a decision referred to under subsection (3) if it is satisfied that the decision, in its operation in relation to:

(a) the complainant; and

(b) so far as concerns a complaint regarding the payment of a death benefit) - any person (other than the complainant, a trustee, insurer or decision-maker) who:

(i) has become a party to the complaint; and

(ii) has an interest in the death benefit or claims to be, or to

be entitled to benefits through, a person having an interest in the death benefit;

was fair and reasonable in the circumstances."

21 The scheme set in place by the Act, following the making of a complaint of the kind with which this proceeding is concerned, was described by the Full Court of this Court in National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852; (2000) 99 FCR 562 at 565; [2000] FCA 852 at [10]- [12] in the following way:

"Section 14 is one of a number of sections which allows a complaint to be made to the Tribunal that a particular decision or particular conduct of a trustee, insurer or other designated person is or was unfair or unreasonable: (s 14, 14A, 15A, 15B, 15CA, 15E, 15F, 15H and 15J). The functions of the Tribunal are to enquire into the complaint, and to try to resolve it by conciliation and, if that fails, to review the decision or conduct to which the complaint relates (s 12). The Tribunal must pursue the objective of providing a mechanism for review that is fair, economical, informal and quick (s 11).

The body the subject of the complaint is required to provide to the Tribunal documents that are relevant to the complaint (s 24) and the Tribunal is empowered to obtain further information or documents relevant to a complaint both from the body in relation to whom the complaint is made, and from other persons (s 25).

If conciliation (s 27) fails, then the Tribunal is to fix a review meeting, and to notify the parties accordingly (s 32). Ordinarily, parties to the review are confined to making written submissions to the Tribunal for the purpose of the review meeting, but the Tribunal may, if it thinks it necessary, make an order allowing the parties to make oral submissions to the Tribunal at the review meeting (ss 33, 34). In reviewing a decision or conduct, the Tribunal is not bound by technicalities, legal forms or rules of evidence, and may inform itself of any matter relevant to the review in any way it thinks appropriate (s 36). A decision of the Trustee or insurer as varied by the Tribunal, or a decision made by the Tribunal in substitution for a decision of the Trustee or insurer is, for all purposes (other than the making of a complaint about the decision), taken to be a decision of the Trustee or insurer as the case may be (s 41(3)). The Tribunal's powers in dealing with a complaint under s 14 are contained in s 37. Its powers when dealing with complaints made under other sections of the Act are as set forth in s 37A and following."

CONSIDERATION

Oral Hearing

22 Section 36 of the Act is concerned with the Tribunal's procedures. It provides that the Tribunal is "not bound by technicalities, legal forms or rules of evidence" and that it "may inform itself of any matter relevant to the review in any way it thinks appropriate".

23 In this case the Tribunal advised the Applicant, by his solicitor, that unless it should subsequently determine otherwise, its review would be conducted on the papers and without oral submissions. The Applicant did not seek a determination that the review be conducted in a way different from that proposed by the Tribunal. No submission was made to the Tribunal on his behalf that the course which it proposed to adopt was contrary to the Act or otherwise inappropriate. In the circumstances it may well be that the Applicant has waived any right to object to the procedure in fact adopted by the Tribunal. However, I do not consider it necessary to base my decision on this ground on the issue of waiver.

24 In my view, s 36 of the Act authorises the Tribunal, in a case in which it considers it appropriate to do so, to conduct a review on the papers - provided that it does not thereby deny the parties such procedural fairness as is appropriate having regard to the statutory context in which the Tribunal operates. The failure of the Applicant, by his solicitor, to object to the Tribunal's proposal to conduct the review on the papers until after a decision adverse to him had been made, suggests against the procedure being either inappropriate from his point of view or otherwise unfair to him. I am not satisfied that the decision of the Tribunal to conduct its review on the papers resulted in a denial of procedural fairness to the Applicant.

25 I conclude that the Tribunal did not err in law in failing to conduct an oral hearing before reaching its decision.

Conciliation

26 The submission that the Tribunal erred in law in failing to try to settle the complaint by conciliation was similarly made for the first time to this Court. The Act requires the Tribunal to try to settle by conciliation complaints made to it (s 27 of the Act) but it does not give the Tribunal the power to compel the parties to attend a conciliation conference or otherwise to take steps to facilitate conciliation. The Tribunal in this case asked the Trustee whether it was prepared to participate in a conciliation conference and received the response that it was not. The Trustee did not respond to the invitation of the Tribunal to propose another approach to the resolution of the matter. In the circumstances the Tribunal was entitled to conclude, as it plainly did, that its attempts to implement a process of conciliation had been unsuccessful because of the unwillingness of the Trustee to take part in such a process.

27 The submission that the Tribunal erred in law in failing to try to settle the complaint by conciliation is rejected.

Parties

28 Paragraph 18(1)(d) of the Act provides that the parties to a complaint under s 14 are:

"(d) if the subject matter of the complaint relates to a disability benefit (whether under a contract of insurance or otherwise) and the Tribunal decides that a person other than a trustee or insurer is responsible for determining either or both of the existence and the extent of the disability (whether total and permanent or otherwise) - that person"

29 The Applicant did not submit that in this case the Tribunal ought to have decided that one or more medical practitioners was or were responsible for determining either or both of the existence and the extent of the Applicant's disability. The Deed does not provide for medical practitioners to make determinations of this kind. In this respect this case is distinguishable from Seafarers' Retirement Fund Pty Ltd v Oppenhuis (1999) 94 FCR 594; [1999] FCA 1683. In any event, the existence and the extent of the Applicant's disability has not been disputed by the Trustee. What has been disputed is whether the Applicant became disabled by reason of a condition which existed at the time that he joined the SSAU and whether the Applicant provided an accurate statement at that time as to his health.

30 The Tribunal was under no obligation to join any medical practitioner as a party to the complaint and, indeed, would have erred in law had it done so.

Special or Exceptional Circumstances

31 This question of law is not identified in the Applicant's Amended Notice of Appeal or in his written submissions. However, it was raised in oral submissions.

32 The submissions that the Tribunal failed to consider whether there were special or exceptional circumstances to justify the payment of a benefit to the Applicant overlooks the fact that the Tribunal's written reasons for decision record that:

"... the Tribunal does not find that there are special or exceptional circumstances to justify payment of the benefit under clause B.8."

33 The failure of the Tribunal to amplify this finding may well reflect the failure of the Applicant by his solicitor to submit to the Tribunal that there were any special or exceptional circumstances. As the only reference in Cl B.13 to "special or exceptional circumstances" is in a sentence which qualifies the circumstances in which a temporary incapacity benefit is payable, and the Applicant has at all relevant times claimed to be permanently disabled, this is probably not surprising.

34 The Tribunal did not err in law by failing to consider whether there were special or exceptional circumstances to justify the payment of a benefit to the Applicant. The Tribunal found that there were no such circumstances. However, the relevance of this finding is not clear as no submissions were advanced which would support any entitlement in the Applicant to be paid a temporary incapacity benefit.

Proper Construction of Clause B.13

35 Only limited submissions were addressed to the Court on the proper construction of cl B.13 of the Deed. It was submitted on behalf of the Applicant that, as he was not aware at the time that he applied to join the SSAU that he had earlier been diagnosed as having a nervous or mental disorder, it was unfair and unreasonable of the Trustee to invoke cl B.13 of the Deed. However, it was not argued that an "accurate statement" within the meaning of cl B.13 of the Deed was a statement which accurately reflects the members knowledge concerning his or her health at the relevant time.

36 On the issue of the proper construction of cl B.13, the submission advanced on behalf of the Applicant was that the Trustee had misinterpreted the Deed by equating a "pre-existing condition" with a condition that existed at the time of the application to join the SSAU. The Applicant contended that, whatever the nature of his 1994 illness, that condition no longer existed at the time of his application to join the SSAU. Counsel for the Trustee, as I understood his submissions, accepted that there was no relevant condition "which existed at the time of joining the Scheme which was not disclosed to the Trustee at that time" within the meaning of cl B.13 of the Deed. It is therefore unnecessary for me to consider this issue further.

37 Counsel for the Trustee contended that the decision of the Tribunal was supported by its finding that the Applicant "did not provide an accurate statement in a form approved by the Trustee as to [his] health ... at the time [he] joined the Scheme" within the meaning of cl B.13 of the Deed. Counsel for the Applicant, on the other hand, contended that cl B.13 did not, on a proper reading, provide two separate bases upon which the benefit payable under the Deed would be the lump sum calculated in accordance with the formula set out in cl B.13. She argued that cl B.13 was throughout concerned with conditions which existed at the time that the member joined the SSAU.

38 The "statement in a form approved by the Trustee as to the member's health" within the meaning of cl B.13 is, in my view, the "Personal Health Statement" which the Applicant was required to complete when he applied to join the SSAU. Question 3 of the Personal Health Statement asked "[h]ave you ever had any of the following?" A number of conditions is then listed, including `mental or nervous disorder'. It is plain that this question is not designed solely to elicit information as to the Applicant's present state of health but is rather intended to establish whether the Applicant for membership of the SSAU has ever suffered from any of the nominated conditions.

39 In my view the Tribunal rightly concluded that cl B.13 has two limbs. That is, that the lump sum benefit provided for by cl B.13 is payable where the Trustee is, relevantly, of the opinion:

(a) that the member became disabled within three years of joining the Scheme by reason of a condition which existed at the time of joining the Scheme which was not disclosed to the Trustee at that time; or

(b) that the member did not provide an accurate statement in a form approved by the Trustee as to the member's health.

40 The submission that the Tribunal misconstrued cl B.13 by finding that the clause was concerned with disclosures concerning pre-existing conditions, as opposed to conditions existing at the time of joining the SSAU, is rejected.

Onus of Proof

41 The Tribunal is an administrative, not a judicial body. Section 36 of the Act (see [20] above) confirms that the legal concept of "onus of proof" has no relevance to the Tribunal's determinations. Nonetheless, it remains the position that a complainant to the Tribunal carries a practical onus of establishing to the satisfaction of the Tribunal that the decision complained of is "unfair or unreasonable" for the purposes of subs 37(3) and subs  37(4) (see [20] above).

42 The Tribunal's task was relevantly summarised by Lee J in Flexiplan Australia Ltd v Pankhurst & Others [2001] FCA 1535 at [23]- [24]:

"As explained by Allsop J in Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330 at [21]- [32], the Tribunal's task, standing in the shoes of the decision-maker, is to determine whether the Trustee's decision was unfair or unreasonable in the circumstances. This task may be ascertained by reference to several considerations: that a complaint may be made to the Tribunal under s 14(2) as to the unfairness or unreasonableness of the Trustee's decision; that, pursuant to s 37(4), the Tribunal may only exercise its determination-making power under subsection 37(3) for the purpose of placing the complainant in a position such that the unfairness or unreasonableness no longer exists; and that the Tribunal is required to affirm the Trustee's decision if satisfied it was fair and reasonable to the parties in the circumstances (s 37(6)).

In carrying out its task of considering whether the Trustee's decision was unfair or unreasonable in the circumstances, the Tribunal must not make a determination that would be contrary to law, to the governing rules of the fund, or, where relevant, to a contract of insurance. Subsections 37(1) and (2) state that the Tribunal has all the powers, obligations and discretions that are conferred on the Trustee..."

43 Allsop J had explained in Retail Employees Superannuation Pty Ltd v Crocker that:

"The unfairness or unreasonableness must be of the decision [of the Trustee] (as expanded by s 4) under, and in conformity with, the governing rules or the terms of the policy. It is not some other perceived (rightly or wrongly) unfairness or unreasonableness in and about the conduct of the fund."

44 As Lee J noted in Flexiplan Australia Ltd v Pankhurst & Others at [24], "[t]he broad discretion and subjective nature of the Tribunal's (and, necessarily, the Trustee's) task of determining what is unfair and unreasonable in the circumstances" was considered by Kirby J in Attorney-General (Cth) v Breckler [1999] HCA 28; (1999) 197 CLR 83 at [88] where his Honour said:

"Obviously, the occasions for the intervention of the Tribunal on the grounds of "unfairness, unreasonableness, or both" (s 37(4)) may, as a practical matter, be confined to cases where the law, the rules of a fund or the terms of the contract of insurance do not yield a single result. The "unfairness" or "unreasonableness" which the Tribunal may address will thus arise where the exercise by a trustee of its powers involves an element of discretion, opinion or judgment."

45 The reasons for decision of the Tribunal reveal that, faced with medical evidence which was in part in conflict, the Tribunal was "persuaded by the findings and reasonings of Dr K." Being persuaded by the findings and reasonings of Dr K, the Tribunal formed the view that "the 1994 condition of adjustment disorder was in the nature of a mental or nervous disorder which ought to have been disclosed" and that "the [Applicant] did not provide an accurate statement as to his health when he joined the Fund".

46 Nothing in the reasons for decision of the Tribunal provides support for the contention of the Applicant that the Tribunal acted on the basis that the Applicant bore a legal onus of proving that he had not failed to make proper disclosure at the time that he joined the SSAU. Indeed, the Tribunal expressly recognised in its reasons for decision that the disagreement between the parties was whether the decision of the Trustee to reject the Applicant's claim, in its operation in relation to the Applicant, was fair and reasonable in the circumstances. It further recognised that:

"The Tribunal must for the purposes of a Review, stand in the shoes of the Trustee and apply the relevant provisions of the applicable Deed to the facts as found by the Tribunal."

47 I reject the contention that the Tribunal erred in law by wrongly acting on the basis that the Applicant bore an onus of proof. I am satisfied that the Tribunal did not act on the basis that the Applicant bore any onus of proof before it.

Failure to Consider Evidence

48 The Applicant contended that the Tribunal erred in law by failing to take into account relevant evidence, namely that the Applicant was not, at the time that he applied to join the SSAU, aware of the medical condition not disclosed by him. The Applicant's solicitor, by a letter dated 5 July 2000 addressed to the Tribunal, had advised the Tribunal as follows:

"At the time that he completed the form, Mr Howitt-Steven was totally unaware of any such diagnosis and accordingly the form was completed in total good faith. It should be noted that the form does not specify in any manner whether or not Mr Howitt-Steven had been admitted to hospital in the last five years and for what he had been treated. If those questions had been asked, then Mr Howitt-Steven would have answered in the affirmative, but given the wording of the question and Mr Howitt-Steven's own information at the time, he answered the form correctly and made no false statement regarding the state of his health."

49 The written submissions of the Applicant pointed out, accurately, that the Tribunal, in its written reasons for decision, made no reference to the above paragraph of the letter of 5 July 2000. The written submissions continue:

"[The Tribunal] appears to have completely overlooked these submissions which are critical to the determination of whether the Respondent acted fairly and reasonably in the circumstances given the fact that one of the reasons for the Respondent's refusal to pay benefits is an alleged non-disclosure of this condition by the Applicant."

50 The Applicant did not contend that "an accurate statement" within the meaning of cl B.13 of the Deed is a statement which accurately reflects the Applicant's state of knowledge at the time that the statement is provided. That the Applicant did not so contend is confirmed by a consideration of his Amended Notice of Appeal and his written and oral submissions. The Amended Notice of Appeal identifies an aspect of the proper construction of cl B.13 as a question of law raised on the appeal but not this aspect. No submissions were advanced by the Applicant as to the true meaning of the expression "an accurate statement" appearing in cl B.13 and, presumably for this reason, no answering submissions were made by the Trustee. Further, the attempts of the Applicant's counsel to place reliance on s 21 and s 26 of the Insurance Contracts Act 1984 (Cth) ("the Contracts Act") suggest that the Applicant's concerns with respect to the Tribunal's failure to advert to the submission identified in [46] above arose independently of the proper construction of cl B.13.

51 An application made on behalf of the Applicant to further amend his Amended Notice of Appeal during the course of the hearing to place reliance on s 21 of the Contracts Act was refused as the Court accepted that the Trustee would be prejudiced by the amendment.

52 In the circumstances, the relevance of the evidence that the Applicant contends that the Tribunal failed to take into account is not entirely clear. It may be (and the Applicant's written submissions tend to confirm this view) that the Applicant regards the evidence as relevant either to the proper application of the Contracts Act or to the question of whether the Trustee acted fairly and reasonably in its dealings with the Applicant.

53 The issue of whether the Tribunal failed to act in accordance with the Contracts Act is not before the Court. The question of whether the Trustee acted fairly and reasonably in its dealing with the Applicant is to be determined primarily by reference to the Deed. It is the Deed that governs the Applicant's entitlement, if any, to a disability benefit under the SSAU. As Allsop J pointed out in Retail Employees Superannuation Pty Ltd v Crocker (see [42]-[43] above), the phrase "unfair or unreasonable" in the Act does not detract from the obligation of a Tribunal to act in accordance with the governing rules of a fund. The phrase is not a statutory invitation to the Tribunal to disregard the rules of a fund.

54 There being no challenge to the interpretation of the phrase "an accurate statement" adopted by the Tribunal, I am not satisfied that the Tribunal failed to take into account evidence that it was bound to take into account, namely evidence that the Applicant was not at the relevant time aware of the condition that was not disclosed by him.

The Act and Principles of Fiduciary Duties

55 Little particularly was provided of the contention that the Tribunal failed to apply the Act and the "principles of fiduciary duties". To the extent that this contention was intended to stand independently from the other asserted grounds of appeal it is, in my view, without substance.

Credit

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

CONCLUSION

57 The appeal will be dismissed.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated: 15 November 2001

Counsel for the Applicant:	Ms K M Dulhunty
Solicitor for the Applicant:	Maurice Blackburn Cashman
Counsel for the Respondent:	Mr T G R Parker
Solicitor for the Respondent:	Allens Arthur Robinson
Date of Hearing:	30 July 2001
Date of Judgment:	15 November 2001