Phillips v Commissioner for Superannuation [2004] FCA 28 (30 January 2004)

SUPERANNUATION – determination of retirement benefits – issuing of a benefit classification certificate based on answers to questions put in pre-employment medical examination – failure to properly answer questions – Administrative Appeals Tribunal re-issuing benefit classification certificate to record medical history accurately – application of ss 25(1) and (4) Administrative Appeals Tribunal Act 1976 (Cth) and s 154(4) of the Superannuation Act 1976 (Cth) – issue of determining whether link exists between conditions specified on the benefit classification certificate and the condition that caused retirement sufficient to satisfy s 66(2)(c) – whether causal connection required – meaning of ‘connected with’ for purposes of s 66(2)

PRACTICE AND PROCEDURE – application of s 44(1) of the Administrative Appeals Tribunal Act 1976 (Cth) – jurisdiction of the Federal Court – jurisdiction limited to questions of law

Administrative Appeals Tribunal Act 1975 (Cth) ss 25(1), 25(4), 44(1)
Superannuation Act 1976 (Cth) ss 16(2), 16(4), 16(11), 16AC, 16AC(9), 66(2), 154(4)
Superannuation Legislation Amendment Act 1994 (Cth)

Commissioner for Superannuation v Benham (1989) 22 FCR 413 referred to
Fry v Commissioner for Superannuation (1984) 2 FCR 472 referred to
Harris v Repatriation Commission (2002) 62 ALD 174 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 referred to
Perrett v Commissioner for Superannuation (1991) 29 FCR 581 referred to

GAIL ROSLYNNE PHILLIPS v COMMISSIONER FOR SUPERANNUATION
Q20 OF 2003

STONE J
30 JANUARY 2004
SYDNEY (Heard in Brisbane)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY DISTRICT REGISTRY	Q20 OF 2003

ON APPEAL FORM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A PRESIDENTIAL MEMBER

BETWEEN:	GAIL ROSLYNNE PHILLIPS APPLICANT
AND:	COMMISSIONER FOR SUPERANNUATION RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	30 JANUARY 2004
WHERE MADE:	SYDNEY (Heard in Brisbane)

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
QUEENSLAND DISTRICT REGISTRY DISTRICT REGISTRY	Q20 OF 2003

ON APPEAL FORM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A PRESIDENTIAL MEMBER

BETWEEN:	GAIL ROSLYNNE PHILLIPS APPLICANT
AND:	COMMISSIONER FOR SUPERANNUATION RESPONDENT

JUDGE:	STONE J
DATE:	30 JANUARY 2004
PLACE:	SYDNEY (Heard in Brisbane)

1 On 24 June 1988 the applicant retired from the Commonwealth Public Service (‘CPS’) on invalidity grounds. As the applicant had been with the CPS for less than twenty years an investigation was undertaken to determine if her invalidity was related to any condition from which she had suffered prior to joining the CPS. As a result of this investigation a delegate of the Commissioner for Superannuation, the respondent in this proceeding, determined that when the applicant joined the CPS she had not disclosed all required information or she had given false or misleading information about her health at that time. Consequently her superannuation entitlement was reduced. After another delegate of the Commissioner confirmed that decision on 29 March 2000, the applicant sought review of the decision in the Administrative Appeals Tribunal (‘Tribunal’). Although the Tribunal made some changes to the decision of the delegate (discussed below) the outcome for the applicant in terms of the reduction to her superannuation entitlement was unchanged. The applicant now applies under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) for review of the Tribunal’s decision.

2 The applicant was born on 2 December 1949. She commenced employment with the CPS on 14 February 1983. Pursuant to s 16(2) of the Superannuation Act 1976 (Cth) (‘Superannuation Act’) the applicant was required to undergo a medical examination as a pre-condition to permanent employment with the CPS and admission to the relevant superannuation fund. On 14 July 1983, in the course of that medical examination, the applicant was required to complete a questionnaire entitled ‘Statement of Personal Medical History’. In answering the questionnaire the applicant indicated that the only disability from which she had suffered or was suffering from was hay fever or allergic rhinitis. Relevantly, the applicant responded ‘NO’ to each of the six questions in Part 1 of the questionnaire and ‘NO’ to Part 12. The applicant also signed a declaration specifying that this statement was ‘true and correct to the best of my knowledge’. The questions in Parts 1 and 12 were:

3 Based on the physical examination and the applicant’s responses to the questionnaire the Commonwealth Medical Officer reported to the Commissioner that while the applicant was fit for employment, she did not meet the general medical standard because of her allergic rhinitis. Pursuant to s 16(4) of the Superannuation Act, the Commissioner issued a Benefit Classification Certificate (‘BCC’) on 4 January 1984 specifying allergic rhinitis as a condition by reason of which the applicant might not continue to be an eligible employee of the CPS until she attained maximum retirement age. The purpose of the BCC is to identify conditions affecting an employee at the time of entry to the superannuation scheme. If, in the event of death or medical retirement, those conditions are related to the reason for the death or retirement the superannuation entitlement of an employee may be reduced or limited.

4 From January 1987 the applicant commenced a period of sick leave and on 24 June 1988 was retired from the CPS with effect from 1 March 1988. The stated retirement incapacity was ‘inability to perform her duties, or other duties appropriate to her classification because of physical or mental incapacity viz obsessive compulsive disorder’. It should be noted that this statement refers to the applicant’s inability to perform her duties (‘retirement incapacity’) as well as the reason for this incapacity, her obsessive compulsive disorder (‘OCD’) which can also be referred to as her ‘retirement condition’. Failure to distinguish between these two elements can lead to confusion. Both parties accepted that the identification of OCD as the retirement condition was correct.

5 Because the applicant had not completed twenty years of service at the time of her retirement, there was a review of her medical history and the BCC issued in 1984. On 13 March 1990 a delegate of the Commissioner determined that at the time of her medical examination (see [2] above), the applicant had failed to give required information or had given false or misleading information in that she did not disclose a previous psychiatric illness. For convenience I shall refer to this finding as the applicant’s ‘failure to disclose’. Because of this failure to disclose, and pursuant to s 16(11) of the Superannuation Act, the Commissioner’s delegate issued a substitute BCC, which noted the condition ‘schizo affective disorder’ as well as allergic rhinitis. The delegate also determined that the applicant’s retirement condition, namely her OCD, was caused or substantially contributed to by the schizo affective disorder specified on the substitute BCC. Pursuant to s 16(11)(d)(ii) the substitute BCC was deemed to have been in force on 4 January 1984, the date of her retirement. In these circumstances s 66(2)(e) of the Superannuation Act provides that for more limited retirement benefits than would otherwise be the case. Relevantly s 66(2) provides:

6 This decision was reviewed by another delegate of the Commissioner and was confirmed on 29 March 2000. No explanation was given for the time gap of over ten years between the decisions of the two delegates and neither party made any submissions in respect of it.

7 The Superannuation Legislation Amendment Act 1990 (Cth) (‘Amending Act’), which commenced on 7 June 1990, repealed s 16(11) of the Superannuation Act and replaced it by s 16AC which provides for the issue of a substitute BCC where a ‘relevant person’ breaches the duty of disclosure. Section 21(3) of the Amending Act provides that s 16AC applies in relation to a question asked of a person or information given before or after the commencement of the section on 1 July 1990. It was therefore not in contention that s 16AC applied to the applicant’s situation and that she was a relevant person for the purposes of s 16AC which provides as follows:

16AC Issue of benefit classification certificate where duty of disclosure breached

(2) Subsections (4) to (8), inclusive, apply where the Board is satisfied, in respect of a person who is a relevant person:

the person failed to answer properly a question asked of him or her or gave false or misleading information; and

(i) where there is in force, or there was in force immediately before the person’s retirement or death, a benefit classification certificate in respect of the person--a condition or conditions of the person not specified in the certificate would be or would have been so specified; or

(ii) where subparagraph (i) does not apply--there would be in force, or there would have been in force immediately before the person’s retirement or death, a benefit classification certificate in respect of the person specifying a condition or conditions of the person.

(4) If subparagraph (2)(b)(i) ... applies, the Board shall revoke the certificate and issue in substitution for it a new benefit classification certificate in which the condition or conditions referred to in that subparagraph is or are specified either in addition to, or instead of, the condition, or some or all of the conditions, specified in the revoked certificate.

(5) If subparagraph (2)(b)(ii) or (3)(b)(ii) applies, the Board shall issue in respect of the relevant person a benefit classification certificate specifying the condition or conditions referred to in that subparagraph.

(6) Except for the purposes of this section, a certificate revoked under subsection (4) is taken never to have been issued.

(7) A certificate issued under subsection (4) in substitution for a revoked certificate is taken to have been issued on the day on which, and under the provision under which, the revoked certificate was issued.

(8) A certificate issued under subsection (5) shall be taken to have been issued on the day, and under the provision, that the Board determines to be the day on which, and the provision under which, a benefit classification certificate would have been issued, or would have been taken to have been issued, as the case requires, in respect of the relevant person if the relevant person, or the non-discloser, as the case may be, had answered the question properly, or had not given the false or misleading information, as the case may be.

(9) For the purposes of this section, a person answers a question properly if, and only if, he or she gives in answer to the question all the information that he or she could reasonably be expected to give, on the basis of:

if he or she answered the question fully and truthfully on the basis of the knowledge referred to in paragraphs (a) and (b).

(i) at or in connection with a medical examination that the person was required under subsection 16(2) or (6) or 16AB(3) to undergo; or

(iii) in connection with an application under subsection 16AB(2) for the revocation of a certificate issued in respect of the person;

8 When first introduced s 16AC referred to the ‘Commissioner’ rather than the Board. This was amended in by the Superannuation Legislation Amendment Act 1994 (Cth). For present purposes this amendment has no significance.

9 In paragraph 10 of its reasons the Tribunal identified three questions which it needed to address in reviewing the second delegate’s decision:

The applicant does not challenge the Tribunal’s identification of the issues it had to decide.

10 The Tribunal summarised evidence given by the applicant, a number of medical experts and Ms Jennifer Jensen, a librarian with whom the applicant worked in 1977-8. The following brief summary of the evidence of these witnesses is based on the Tribunal’s summary. The applicant has not challenged the factual elements of the evidence although she takes issue with aspects of the medical opinions.

11 The applicant worked as a high school teacher from 1969 until 1977 when she resigned from her teaching position for reasons that are not relevant here. After leaving teaching she worked as a library assistant until April 1979, although she had 5-6 months sick leave from August 1978. For most of this period of sick leave she lived with her parents and worked as a volunteer at the Brisbane Youth Service. After leaving the library she was employed as a teachers’ aide from July 1979 to December 1980. In 1981 she moved to Ormiston in the Redlands Shire and attended a commercial college as part of the NEAT scheme, a Commonwealth retraining scheme, and in 1982 and 1983 she did some part-time teaching at a TAFE college. The applicant was initially employed in the CPS by the Australian Taxation Office but, after about six months she transferred to the Commonwealth Employment Service (‘CES’) in August 1983. The applicant said she began to have symptoms of OCD in late 1983 and that the symptoms worsened over the next few years. She was on sick leave from December 1986 until she was retired on invalidity grounds in March 1988.

12 The applicant mentioned a number of factors that led to her taking the period of sick leave that commenced in 1978. These factors included an incident involving a violent neighbour, a difficult relationship with a young man, some tensions with a co-worker at the library and physical debility resulting from a long and strict diet. She went to see her general medical practitioner who immediately referred her to a psychiatrist, Dr Maria Weekes. The applicant saw Dr Weekes frequently over a period of four months and attended some group therapy sessions. She was given antidepressant medication but said she could not remember why it was prescribed. The applicant said that she did not think that she was depressed at this time but was feeling ‘run down’.

13 When the applicant moved to Ormiston she was receiving unemployment benefits and so was interviewed by staff at the CES at Cleveland, including Ms Carmel Conners. Ms Conners referred her to a clinic, the Stones Corner Clinic, where on several occasions she saw Mr Michael Dent whom she learned was a psychologist. The applicant said she believed that she had been referred to the clinic for financial advice. She said she could not recall having told Mr Dent that she had emotional problems or was depressed or that she had had a nervous breakdown. She said she was not aware that Dr Weekes or the CES had sent Mr Dent a letter about her.

14 The applicant’s explanation for her negative answers to Parts 1 and 12 of the questionnaire (see [2] above) was that she believed the problems for which she had been referred to Dr Weekes and then to the Stones Corner Clinic were related to fatigue, severe dieting, distress at the death, in December 1979, of the young man referred to above and financial problems. She said that she did not understand any of these difficulties to amount to the problems referred to in the questionnaire.

15 In February 1987 her general practitioner, Dr Bignell, referred her to Dr Elizabeth O’Brien, a consultant psychiatrist who treated the applicant until December 1987. Seven reports from Dr O’Brien were in evidence before the Tribunal as well as a report prepared by Dr Varghese, also a consultant psychiatrist, who examined the applicant on 22 November 2001. Although they expressed their conclusions somewhat differently, Dr Varghese and Dr O’Brien were broadly in agreement on the following:

16 Dr O’Brien was firmly of the opinion that, as at July 1983, the applicant’s ‘combination of her personality vulnerabilities plus her history of depression ... contributed to by the nature of her personality dysfunction’ was such as to pose a real risk of premature retirement on medical grounds. In her report of 6 January 1988 Dr O’Brien stated that she considered that there was a connection between the applicant’s condition in July 1983 and her subsequent OCD. The Tribunal summarised Dr O’Brien’s oral evidence,

17 Dr Varghese’s views on a connection between the applicant’s OCD and her prior mental condition were more equivocal. The Tribunal summarised his evidence as follows:

18 Dr Bendeich, who was a Senior Medical Officer with the Commonwealth Department of Health for 11 years, also gave evidence before the Tribunal. Dr Bendeich told the Tribunal that if the applicant had disclosed her dealings with Dr Weekes and Mr Dent on the questionnaire, an up-to-date psychiatric report would have been requested and a BCC in relation to a psychiatric disorder would have been issued.

19 At the hearing before me the applicant was critical of the counsel who appeared for her before the Tribunal. However, the Tribunal’s summary of the submissions made on behalf of the applicant and the transcript of the Tribunal hearing indicate that she was ably represented and strong submissions were made on her behalf.

20 Before the Tribunal the applicant challenged the Commissioner’s finding of her failure to disclose, submitting that she was a very thorough person and had read the medical questionnaire carefully. She claimed that her negative response to the questions in Parts 1 and 12 of the questionnaire was carefully considered and that, at the time, she genuinely believed those answers to be correct and that her belief was reasonable given her state of mind and means of information. It would appear that no submissions were made as to the implications of s 16AC(9) and its explanation of what is required for a person to answer a question properly for the purposes of the section.

21 The applicant further contended that even if she had responded affirmatively to questions 1(b) and 1(d) in the questionnaire, the only additional condition that may have been included on the substitute BCC was ‘schizo affective disorder’ which, for the purposes of s 66(2), has no connection with her retirement condition, OCD. She also submitted that there is no connection between depression and/or obsessive compulsive personality and OCD and therefore it would have made no difference if those conditions had been specified in a substitute BCC.

22 The written reasons of the Tribunal show that it carefully considered the evidence before it and the submissions made by both parties. Having done so it made findings of fact largely adverse to the applicant’s claims. The Tribunal did not accept the applicant’s evidence that she was not aware of the reason for her being given antidepressant medication and was satisfied that she was aware she was suffering from a psychiatric condition while she was seeing Dr Weekes. The Tribunal carefully identified the aspects of the evidence that led it to this conclusion. The Tribunal determined that at the time of completing the questionnaire, while the applicant may have lacked insight as to the nature and extent of her conditions, she was aware that she was suffering from or had suffered from a psychiatric condition and that by answering ‘NO’ to questions 1(b) and 1(d), she failed properly to answer a question asked and that she had provided false information. Given these findings it was not necessary for the Tribunal to consider arguments that had been put to it as to whether it was possible to fail to answer a question properly if one had a genuine belief in the truth of the answer given.

23 The second issue that the Tribunal addressed was if the applicant had answered the questions properly, would a different BCC have been issued and, if so, what conditions would have been specified in the BCC. The Tribunal accepted Dr Bendeich’s evidence and found that a reference on the questionnaire to depression or psychiatric illness would have resulted in a request for a further psychiatric report and that any such report would have resulted in the diagnosis of personality disorder and recurrent major depression. It accepted the applicant’s submission that such report would not have provided a diagnosis of schizo affective disorder. The Tribunal attached considerable weight to Dr O’Brien’s opinion that the applicant’s psychiatric problems placed her at greater than normal risk of premature retirement and held that had the questionnaire been answered properly a BCC would have been issued specifying those conditions.

24 The Tribunal then considered the relationship between the applicant’s retirement condition, which was accepted on all sides as being OCD, and the conditions that would have been specified in a BCC had the questionnaire been answered properly.

25 The Tribunal considered the evidence given by Dr Varghese and Dr O’Brien on this point and concluded:

26 The applicant appeared without representation in this appeal. In her notice of appeal she listed three ‘points of law’ which can be summarised as follows:

27 The applicant provided lengthy handwritten submissions that discussed in meticulous detail some of her complaints about the Tribunal’s decision and the decisions of both delegates of the respondent. Undoubtedly her ability to argue the appeal was affected by her lack of legal training and, presumably, by her OCD. For that reason I gave her considerable latitude at the hearing in an attempt to discern any grounds for appeal. Early in the hearing I explained in some detail the limited nature of the Court’s jurisdiction in reviewing decisions of the Tribunal under s 44(1) of the AAT Act. Not surprisingly however, the applicant appeared unable to grasp the distinction between issues of fact and issues of law or to confine her submissions to defects in the Tribunal’s decision or to matters that were before the Tribunal. Rather, she took issue with decisions made at each step in the process of reviewing her superannuation entitlement and with the opinions expressed by medical experts. Unfortunately, her oral submissions displayed the same concentration on factual issues as her written submissions.

28 The questions raised in the notice of appeal can be dealt with briefly. In relation to the first question, the applicant dwelt at length on the difference between OCD and obsessive compulsive personality disorder (‘OCPD’). She alleged that the former was her retirement condition not the latter. It is sufficient to note here that there was no dispute between the parties on this issue either in this Court or before the Tribunal. It was accepted by the Tribunal that OCD is the correct retirement condition.

29 The second question in the notice of appeal relates to the initial decision by a delegate of the Commissioner. It is not subject to challenge in this Court. The subject of this appeal is the decision of the Tribunal which replaces the decisions that preceded it. As stated above, there was no dispute before the Tribunal as to the correct retirement condition.

30 The third question in the notice of appeal raises an issue that was not before the Tribunal. It did not form part of the reviewable decision that gave the Tribunal its jurisdiction and was not raised by the applicant before the Tribunal. It is not a matter that this Court has jurisdiction to consider.

31 Irrespective of the questions raised in the notice of appeal, the applicant, in her written and oral submissions can be seen to have challenged the Tribunal’s conclusions on each of the three issues that the Tribunal had identified (see [8] above). I propose to deal with each of these issues.

32 In relation to the first issue, namely whether she failed to answer the questionnaire properly, the applicant’s complaint amounted to an assertion that the Tribunal reached the wrong conclusion. The detail of her submissions was directed to how the Tribunal had erred in assessing the evidence. In part her complaint was that the Tribunal should have accepted that she had answered the questionnaire properly because she genuinely believed her answers to be correct. The difficulty for the applicant is that the Tribunal’s findings of fact are against her. The Tribunal did not accept that she had that a genuine belief in the accuracy of her answers. The Tribunal supported its conclusion with reference to the evidence before it and its evaluation of that evidence. That finding was open to the Tribunal and this Court does not have jurisdiction to review this finding. In the circumstances, submissions about whether a genuine belief is sufficient to satisfy the statutory requirement are irrelevant. This situation is clearly distinguishable from that in Fry v Commissioner for Superannuation (1984) 2 FCR 472, where the facts as found by the Tribunal included a determination that the applicant had honestly answered the questions at his medical examination and in the medical questionnaire.

33 The applicant’s notice of appeal states that a ground for her appeal before this Court is that ‘there is no connection between "schizo-affective disorder" ... and the independent and primary condition of OCD.’ This claim is puzzling given that this was the one point on which the applicant was successful before the Tribunal. The Tribunal did not draw any connection between OCD and schizo-affective disorder. Rather, on this point, the Tribunal accepted the evidence of Dr Varghese and Dr O’Brien and rejected that diagnosis which had been made in Dr Weekes’ final report. Ultimately the Tribunal set aside the delegate’s decision to issue a BCC referring to schizo affective disorder and ordered that a substitute BCC specifying personality disorder and major depressive disorder be issued effective from 4 January 1984. It was clearly within its powers under the AAT Act s 25(1) and (4) and the Superannuation Act s 154(4) to do so.

34 The applicant also challenges the Tribunal’s determination that there was a link between the condition that caused her incapacity and subsequent retirement and the conditions listed on the BCC, sufficient to satisfy s 66(2). The applicant contends that OCD (the cause of her incapacity) and personality disorder (a condition listed on the applicant’s BCC) ‘are separate and different medical conditions’ and that ‘the incapacity from OCPD would be very different from that resulting from OCD.’ While on the face of the matter the applicant’s contention is one challenging the factual finding of the Tribunal, and hence outside the jurisdiction of this Court, the point does raise the important question of the legal standard to be applied under s 66(2). To restate, the s 66(2)(c) requires that:

35 It can be seen that s 66(2)(c) raises two distinct and alternate questions. In this context the first question is, ‘Was the applicant’s incapacity caused or substantially contributed to by a condition or conditions specified in the BCC?’ The question must be answered in the negative. It was accepted on both sides that the incapacity was caused by OCD and, pursuant to the orders made by the Tribunal, the substitute BCC specified ‘personality disorder and major depressive disorder’ not OCD.

36 This takes one to the next question: ‘Was the applicant’s incapacity caused or substantially contributed to by a physical or mental condition connected with personality disorder and major depressive disorder?’ Putting it another way, the second question is, "Is there a connection between OCD and either or both of personality disorder and major depressive disorder?" If there is a positive answer to this question then the requirements of s 66(2)(c) are satisfied.

39 This latter formulation is not correct. Section 66(2)(c) does not require a causal connection between the applicant’s OCD and the conditions specified in the BCC, it requires only a connection between the two conditions. In Commissioner for Superannuation v Benham (1989) 22 FCR 413 (‘Benham’), the Full Federal Court identified the correct approach at 421:

The Court expressly rejected any necessity for a causal relationship between the two conditions. This approach was affirmed in Perrett v Commissioner for Superannuation (1991) 29 FCR 581 (‘Perrett’), at 592.

40 Although I am satisfied that the Tribunal, in the paragraph quoted in [38] above, expressed the test incorrectly, I am satisfied, on the whole, that the Tribunal applied the correct test. Not only did the Tribunal twice formulate the test correctly but it also referred to both Benham and Perrett as authorities for the proposition that it was not necessary to find a causal relationship. It would make no sense to cite these authorities if the Tribunal was under the impression that a causal relationship (or at least substantial contribution) was necessary to meet the requirements of s 66(2)(c).

41 In addressing this issue the Tribunal considered the evidence of Dr Varghese and Dr O’Brien and concluded, in a passage quoted at [25] above, that the applicant’s OCD was substantially contributed to by her personality disorder and depressive disorder.

42 The Tribunal’s conclusion is one of fact and was open to it on the evidence. The Court has no jurisdiction to interfere with this conclusion unless it is affected by error of law. If the Tribunal applied the wrong test then there would be an error of law. While the Tribunal, in expressing its conclusion, has used the language of ‘substantial contribution’ I do not conclude from that language that the Tribunal was applying the wrong test. More likely it is a slip of language which must be viewed in the light of the High Court’s comments in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272. In any event, a decision that the applicant’s incapacity from OCD was substantially contributed to by personality disorder and/or major depressive disorder necessarily involves a decision that the conditions are connected. As already indicated I am far from convinced that the Tribunal applied the wrong test. Even if I were to be convinced I would not be prepared to remit the matter to the Tribunal as to do so would be manifestly futile. The error, if error there was, has no practical significance; Harris v Repatriation Commission (2002) 62 ALD 174.

43 For the reasons given above the appeal must be dismissed. In the normal course costs follow the event and the respondent would be entitled to its costs of the appeal. The respondent however, has taken the generous position that there should be no order as to costs and therefore I shall not make any costs order.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Counsel for the Applicant:	The Applicant appeared in person

Counsel for the Respondent:	Ms Mortimer SC

Solicitor for the Respondent	Australian Government Solicitor

Date of Hearing	26 November 2003

Date of Judgment:	28 January 2004

(i)	at or in connection with a medical examination that the person was required under subsection 16(2) or (6) or 16AB(3) to undergo; or
(ii)	in connection with a request under subsection 16(6) by the person;

(a)	whether ‘comsuper (sic) changed the retirement condition without justification, from OCD to OCPD’ at the time of the applicant’s retirement in 1988;
(b)	whether ‘the correct retirement condition being adhered to in the primary decision of 13/3/90 would have resulted in a different outcome’ for the applicant;
(c)	whether there has been a failure to address defects in the process of the applicant’s retirement on invalidity grounds such that she has been denied the right to ‘complete the S21R form of election’ and choose the date of her retirement.

Federal Court of Australia

Phillips v Commissioner for Superannuation [2004] FCA 28 (30 January 2004)