Hannover Life Re of Australasia Ltd v Gell [2005] FCA 150 (28 February 2005)

Last Updated: 1 March 2005

FEDERAL COURT OF AUSTRALIA

Hannover Life Re of Australasia Ltd v Gell [2005] FCA 150

SUPERANNUATION – Superannuation Complaints Tribunal – review of decisions relating to complaint - Chairperson’s guidelines on constitution of Tribunal – Chairperson not obliged to notify intention not to apply guidelines – procedural fairness – jurisdiction of Tribunal unaffected by failure to apply guidelines


Superannuation (Resolution of Complaints) Act 1993, s 7A, s 9(1), s9(2A)


















HANNOVER LIFE RE OF AUSTRALASIA LTD v CHRISTINE ANNE GELL AND ANOTHER
N896 of 2004



HANNOVER LIFE RE OF AUSTRALASIA LTD v GRAHAM LLOYD MCDONALD AND OTHERS
N897 of 2004



WHITLAM J
28 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 896 of 2004

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL CONSTITUTED BY ELIZABETH ANNE SHANAHAN

BETWEEN:	HANNOVER LIFE RE OF AUSTRALASIA LTD APPLICANT
AND:	CHRISTINE ANNE GELL CLERICAL ADMINISTRATIVE AND RELATED EMPLOYEES SUPERANNUATION PTY LTD RESPONDENTS

THE COURT ORDERS THAT:

1. The appeal is dismissed.












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

		N 897 of 2004
BETWEEN:	HANNOVER LIFE RE OF AUSTRALASIA LTD APPLICANT
AND:	GRAHAM LLOYD MCDONALD CHRISTINE ANNE GELL CLERICAL ADMINISTRATIVE AND RELATED EMPLOYEES SUPERANNUATION PTY LTD RESPONDENTS
JUDGE:	WHITLAM J
DATE OF ORDER:	28 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The proceeding is 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 896 of 2004

ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL CONSTITUTED BY ELIZABETH ANNE SHANAHAN

BETWEEN:	HANNOVER LIFE RE OF AUSTRALASIA LTD APPLICANT
AND:	CHRISTINE ANNE GELL CLERICAL ADMINISTRATIVE AND RELATED EMPLOYEES SUPERANNUATION PTY LTD RESPONDENTS

		N 897 of 2004
BETWEEN:	HANNOVER LIFE RE OF AUSTRALASIA LTD APPLICANT
AND:	GRAHAM LLOYD MCDONALD CHRISTINE ANNE GELL CLERICAL ADMINISTRATIVE AND RELATED EMPLOYEES SUPERANNUATION PTY LTD RESPONDENTS
JUDGE:	WHITLAM J
DATE:	28 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1 These two proceedings have been heard together. They relate to a complaint under s 14 of the Superannuation (Resolution of Complaints) Act 1993 (‘the Act’). The subject matter of the complaint was a disability benefit under a contract of insurance. The applicant in each matter, Hannover Life Re of Australasia Ltd (‘Hannover Re’), was the insurer in relation to the complaint. Proceeding no. N896 of 2004 is an appeal from the determination of the complaint by the Superannuation Complaints Tribunal (‘the Tribunal’). The respondents to the appeal are the complainant, Christine Anne Gell, and the trustee of the CARE Superannuation Plan. Proceeding no. N897 of 2004 is an application for judicial review of the way in which the Tribunal was constituted for the purpose of dealing with the complaint and of the consequential exercise of the Tribunal’s determination-making power. The Chairperson of the Tribunal, Graham Lloyd McDonald, is named as a respondent in that matter along with Ms Gell and the trustee. Mr McDonald was given leave to intervene in the appeal, and the other respondents entered submitting appearances in both matters.

Background

2 Ms Gell was born on 2 October 1958. In 1993 she commenced employment with a firm in Melbourne and joined the CARE Superannuation Plan. Prior to this time Ms Gell had been treated at The Royal Melbourne Hospital for idiopathic or immune thrombocytopaenic purpura (‘ITP’) and Raynaud’s phenomenon. She worked as a personal assistant and administration supervisor. In 1995 Ms Gell was found to be suffering hepatitis C, for which she was also treated at The Royal Melbourne Hospital. On 17 August 1999 she quit work on the advice of her GP. Ms Gell moved soon afterwards to live in Queensland. She has not resumed work.

3 On 9 March 2000 Ms Gell lodged a claim under the CARE Superannuation Plan for payment of a total and permanent disablement benefit. The definition in the trustee’s insurance contract with Hannover Re relevantly provided:

‘ "Total and Permanent Disablement" means a Member:

(a) ... ; or
(b) having been absent from work through injury or illness for an initial period of six consecutive months and in the opinion of the Company the Member is incapacitated to such an extent as to render the Member unable ever again to engage in or work for reward in any occupation or work in which the Member is reasonably capable of performing by reason of education, training or experience.’

In support of her claim Ms Gell submitted a report from her new GP in Queensland, Dr Bruce Brodie. In that report Dr Brodie gave details of three Melbourne doctors seen by Ms Gell. They were her former GP, Dr Helen Dooley, and two specialists at The Royal Melbourne Hospital: Dr Andrew Roberts, a haematogist, and Professor Peter Gibson, a gastroenterologist. Hannover Re obtained reports from Dr Roberts and Professor Gibson. In addition, Hannover Re sought and obtained a report on an assessment made on 17 March 2000 of Ms Gell at the Gold Coast Hospital’s Liver Clinic. On 8 November 2000 Hannover Re declined the claim. The trustee accepted that decision. Ms Gell asked to have the decision reviewed and, in support of her request, submitted a report from her treating gastroenterologist at the Gold Coast Hospital, Dr George Ostapowicz. Hannover Re again declined the claim. On 27 August 2001 the trustee wrote to Ms Gell, accepting Hannover Re’s confirmation of its original decision and saying that it ‘had no medical evidence to state you were TPD at 17 August 1999 by any doctor who saw you at that time.’

Proceedings in the Tribunal

4 On 24 October 2001 Ms Gell lodged her complaint with the Tribunal. In the complaint form, she stated that she believed the trustee’s decision was unfair or unreasonable because, despite her repeated requests, it failed to seek reports from her treating doctors. Ms Gell also attached a report from Dr Dooley dated 9 October 2001 and a report from Professor Gibson dated 15 October 2001.

5 Hannover Re and the trustee declined to participate in a conciliation conference. Accordingly, on 22 May 2002, the Tribunal fixed a review meeting for 30 July 2002 and invited the parties to make written submissions.

6 Ms Gell sent the Tribunal handwritten submissions dated 12 June 2002. In particular, she asked that ‘note be taken of the numerous occasions I requested a report be obtained from my treating GP, Naturopath and Registrar of Gastro clinic at the R.M.H.’. A report dated 29 May 2002 from her naturopath was enclosed. She also attached an up-to-date report from Dr Brodie, in which he said:

‘As a result of her ITP and Hepatitis C, she suffers chronic disabling tiredness, intermittent abdominal pain and occasional vomiting. She is also more prone to developing infections. As both of these conditions are permanent, these symptoms will persist, and prevent her from working indefinitely.’

The trustee sent no submissions. On 13 June 2002 Hannover Re sent a four-page submission, reproducing extracts from the specialists’ reports and contending that there was no objective evidence to support the claim that Ms Gell was totally and permanently disabled. Ms Gell responded to that submission by a letter dated 5 July 2002.

7 On 31 July 2002 Mr McDonald selected two Tribunal members, Jennifer J Batrouney and Elizabeth Anne Shanahan, to constitute the Tribunal for the review of the decision complained of by Ms Gell. The review meeting was adjourned on 31 July 2002.

8 On 6 January 2003 Mr McDonald wrote to the trustee conveying the Tribunal’s request that a ‘whole of person’ report on Ms Gell be obtained from a general physician. Hulya Kasif, Hannover Re’s national claims manager, replied on behalf of the trustee and her company, pointing out that Ms Gell’s claim required consideration of ‘her medical condition in August 1999 and leading up to the present time’. After noting that the insurer and the trustee needed to form an opinion that was fair and reasonable, Ms Kasif said:

‘It is our opinion that the trustee and insurer are entitled to rely on contemporaneous information when deciding TPD claims, particularly where an assessment will be based on description of symptoms without an objective test.
It is our view that a current medical examination will not lead to a fair and reasonable assessment, however, on reviewing the file we can see merit in writing back to The Royal Melbourne Hospital for a copy of the full hospital notes. We also see merit in asking Ms Gell to provide details of medical attention she has received between August 1999 and March 2000 when she first consulted Gold Coast Hospital, noting that the hospital records show she was "well" at that stage and she did not have any active symptoms.’

On 19 February 2003 Mr McDonald wrote to Ms Kasif, informing her that the Tribunal agreed that, ‘as a first step’, obtaining the records from The Royal Melbourne Hospital would be helpful.

9 Hannover Re sent Ms Gell a form authorizing the release of her medical records. Ms Gell signed and returned the form in March 2003. Then, she waited.

10 On 30 May 2003 Ms Batrouney resigned her office as a Tribunal member.

11 On 1 September 2003 Ms Kasif sent Mr McDonald the material received by Hannover Re. She wrote:

‘We have now received a copy of Melbourne Hospital records which amount to a considerable stack of medical information dating back to early 1980’s. It is clear from these medical records that Ms Gell has numerous medical conditions dating back approximately 20 years. Some of these have resolved and some are ongoing. The ongoing medical conditions are the basis of her claim.
We had earlier denied this claim on the basis that there was no medical information confirming total and permanent disability or the basis for ceasing work. Despite her medical conditions and at time these being worse than others she has continued to work.
The information leading up to and relating to the time she ceased work is relatively less in volume and detail when compared to her medical conditions and consultations during the long period that she was working. It appears that the reason why she ceased work according to the hospital records is due to fatigue. On 11 August 1999 the registrar wrote to Dr Dooley detailing the review at the clinic and comments "overall Christine appears to be quite stable and I am unsure of the cause of her fatigue.".
On reviewing the hospital records, reviewing her ongoing medical problems, her ability to work for a number of years and lack of any deterioration leading up to her ceasing work we are unable to deem her as totally and permanently disabled.’

12 Mr McDonald contacted Miss Shanahan on 8 September 2003 to see if she could ‘cope timewise’ with Ms Gell’s complaint by herself. Miss Shanahan said she felt able to conduct the review alone. Mr McDonald then reconstituted the Tribunal to comprise just Miss Shanahan. He took this course because Miss Shanahan was a surgeon, Hannover Re had declined to arrange the further medical assessment requested by the Tribunal, and the assessment of the medical evidence was pivotal to the determination of Ms Gell’s complaint.

The Tribunal’s Determination and Reasons

13 The Tribunal made its determination on 23 April 2004. It set aside the decisions of the trustee and Hannover Re and determined that the total and permanent disability benefit should be paid to Ms Gell. The Tribunal gave a twelve-page statement of reasons for its determination.

14 In the background section of those reasons, the Tribunal said (at p 4):

‘▪ At the time of the hearing on 31 July 2002, the Tribunal had before it a large volume of medical reports relating to the two disease processes suffered by the Complainant, namely hepatic cirrhosis due to hepatitis C viral infection, and idiopathic immune thrombocytopaenic purpura. The medical opinions provided by consultants limited themselves to one or other of these disease states and declined to consider the combined effect of these two processes on the Complainant.
▪ The Tribunal requested the Trustee to seek a "whole person assessment" by a consultant physician. Before a response was received from the Trustee the Presiding Member, Ms Jennifer Batrouney, resigned from her position on the Superannuation Complaints Tribunal and the Chairperson of the Tribunal reconstituted the Tribunal to consist of Ms E Anne Shanahan, who is a surgeon as well as a barrister. The Insurer, with the Trustee’s concurrence, declined to obtain a whole of person medical assessment on 20 January 2003 on the basis that such a report would not be contemporaneous with the Complainant’s state of health when she last worked in August of 1999. The Tribunal was not assisted by the unhelpful attitude adopted by the Insurer to the obtaining of a whole of person assessment. Experienced occupational physicians are in a position to opine as to the likely state of a person’s abilities to engage in work where uncontroverted diagnoses have been made at a time earlier than that on which the occupational physician sees the individual.

▪ The Insurer, in its letter of 20 January 2003 stated:

...(we know she didn’t work [for six consecutive months], but whether her medical condition was of such severity that she was unable to work is the issue).

However, the Insurer agreed, at the Tribunal’s request, to obtain the full hospital records from [the hospital]. This complete medical record was eventually obtained in September of 2003 and consisted of over 700 pages. No attempt was made by the Insurer or the Trustee to prepare an overview of the medical record or give a view as to the contents of the medical record vis-à-vis the Complainant’s circumstances. This left the Tribunal, again in the absence of any cooperation from the Trustee or the Insurer, to fully examine the medical records. That examination has proved very helpful in determining the facts surrounding the Complainant’s illnesses’

15 After noting (at p5) the definition of ‘total and permanent disability’ in the insurance contract, the Tribunal referred (at pp 5-7) to the various medical reports and set out  (at pp 8 - 9) its assessment of the medical records from The Royal Melbourne Hospital. The Tribunal referred (at pp 9-10) to the written submissions made by the parties prior to the review meeting on 30 July 2002. It then said (at pp 10-11):

‘The Tribunal’s role is to determine whether the decisions of the Trustee and the Insurer were fair and reasonable in their operation in relation to the Complainant in the circumstances. In reaching its determination, the Tribunal took the whole of the evidence into account and the additional evidence provided by the Complainant’s public hospital entire medical record. The Tribunal is bound by the operation of the law under which it operates, which requires it to review the decisions of the Trustee and the Insurer and to not interfere with those decisions unless the decisions are not fair and reasonable in their operation in relation to the Complainant in the circumstances.
All of the specialist physicians found the Complainant capable of part-time work but, in each case, they considered only one disease process, that which they were dealing with. Whilst some of the physicians mentioned the Complainant’s Raynaud’s disease, they commented no further on this condition. Both the treating general practitioners found the Complainant totally unfit for any form of work ....
The Tribunal notes that the Complainant’s health has deteriorated since the year 2000 but has not taken this into consideration in determining this complaint.
Having read the entire public hospital medical record of the Complainant the Tribunal, necessarily relying on its own assessment of the medical records, is of the opinion that the combination of hepatitis C cirrhosis, idiopathic thrombocytopaenic purpura and severe Raynaud’s disease rendered the Complainant unfit for her normal duties. Her condition is permanent and will not improve. These duties were as a personal assistant-administrative supervisor, which required a great deal of keyboard work. Both her training and experience has been in the secretarial field, both clerical and as a typist.
The Tribunal is of the opinion the Insurer has not taken into account all the medical data that should have been available to it. Its decision was based on specialist physician reports dealing with only one disease process, ie that in each physician’s field of expertise. Each specialist declined to comment on the impact of the other two disease illnesses on the whole person.
The public hospital medical record indicates that the Complainant was extremely fatigued in 1999 and a change to part-time work was suggested by a gastroenterology registrar in March of 1999. The Tribunal accepts that in June 1999 the Complainant’s treating GP advised her to cease work.
On this basis, the Tribunal finds that the decisions of the Trustee and the Insurer to decline the Complainant’s claim for TPD were not fair and reasonable in their operation to her in the circumstances that they reached their conclusion on incomplete medical opinion.’

The Grounds of Appeal and Review

16 The present proceedings were commenced on 2 June 2004. The notice of appeal does not properly state a question of law: Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321. I raised this problem with counsel for Hannover Re at directions hearings on three separate occasions. However, no attempt to amend the notice was made until the day fixed for hearing of the appeal. I refused to allow the amendment sought because it raised fresh allegations against Mr McDonald and because Ms Gell was not given notice of it. Counsel for Hannover Re then applied to vacate the hearing date so as to permit such notice to be given to Ms Gell and to allow Mr McDonald time to deal with the new matters alleged. I also refused that application. Ms Gell should not have to wait any longer to have these proceedings disposed of simply because she has chosen not to defend them. More than three years had elapsed since she lodged her complaint.

17 Hannover Re has invoked a plethora of grounds of judicial review in order to challenge both the constitution of the Tribunal and its determination. Those relating to the constitution of the Tribunal are a good starting point. They concern the guidelines made by Mr McDonald on 30 June 2001 and revised by him with effect from 1 July 2003. Mr McDonald purported to make those guidelines pursuant to s 9(2A) of the Act.

18 As in force on 31 July 2002 the guidelines relevantly stated:

‘As far as possible, the Tribunal will be constituted by 3 Members. In the event of circumstances where a limited number of Members are available to sit, the following guidelines will be applied:

(i) The Tribunal will be constituted by 3 Members where:

•	large sums of money are at issue; and/or
•	the matters to be determined are particularly complex; and/or
•	a wide range of qualifications and experience is required on the Tribunal.

Typical classes of such complaints would be:

•	Total and Permanent Disability Benefit disputes involving many conflicting medical and work-capability reports;
•	the issue of whether the member was insured at the relevant time;
•	complex disputes over the allocation of large sums of money for a death benefit.

(ii) The Tribunal will be constituted by 2 Members where:

•	large sums of money are at issue; and/or
•	the matters to be determined are moderately complex; and/or
•	more than one type of qualification or experience was required on the Tribunal

Typical classes of such complaints would be:

•	Total and Permanent Disability Benefit disputes where there was only limited and/or relatively consensual medical and work-capacity reports;
•	death benefit allocation disputes without excessive complexity or large sums involved;
•	a complaint where legal and actuarial skills were required in a dispute about the calculation of a significant benefit.

(iii) The Tribunal will be constituted by only one member where:

•	the sums of money at issue are small; and/or
•	the matters to be determined are relatively straightforward; and/or
•	either one specific qualification or a person with general superannuation experience is required on the Tribunal.

Typical classes of such complaints would be:

•	complaints about a failure to provide information;
•	disputes involving minor adjustments to member balances;
•	complaints about the failure to pay interest.’

On and after 1 July 2003 they stated:

‘While recognising the desirability for the Tribunal to be constituted by 3 Members at hearings, the following guidelines will apply –

(i) Total and Permanent Disability cases
The Tribunal wherever possible will be constituted by 3 Members, one of whom shall be a member of the medical profession, e.g. a medical practitioner, physiotherapist etc. (in the event of a 2 Member Tribunal every effort will be made to ensure one Member is from the medical profession).
(ii) Death Benefit Distribution involving sums –

•	Below $20,000 – Single Member Tribunal
•	Between $20,000 - $40,000 – 2 Members
•	Above $40,000 – 3 Members

(iii) In other cases where the complaint involves a claim of less than $10,000, the Tribunal to be constituted by one Member.
(iv) In cases where a party notifies the Tribunal in advance that there is an issue of principle to be determined, or where the Tribunal identifies such an issue or there is some unusual difficulty associated with the complaint, then the Tribunal may, where the matter under the above guidelines may otherwise be determined by a 1 or 2 Member Tribunal, list the matter before a 3 Member Tribunal.’

In the present case the value of the total and permanent disablement benefit was $60,000.

19 Ms Kasif gave evidence by an affidavit made on 15 November 2004. She has been involved on behalf of Hannover Re in over 50 matters before the Tribunal, and in her experience total and permanent disablement cases were generally dealt with by three Tribunal members. Ms Kasif could not recall such a case being decided by a single Tribunal member. In the present case Hannover Re was never notified of any proposal that the Tribunal be constituted by less than three members or that it be reconstituted. Ms Kasif did not know how the Tribunal was constituted until 5 May 2004, when she received a copy of its determination. Prior to that time she was not aware of the existence of the guidelines. Ms Kasif said:

‘If it had been drawn to my attention, before the Tribunal’s determination that the Tribunal was sitting or proposed to sit as a panel of 2 or 1 persons, I would have made a submission to the Tribunal that it convene as a panel of 3 persons because I assumed that is how the Tribunal would sit to hear this matter and because, in my opinion, reviewing Hannover’s decision on Ms Gell’s application for benefits involves considering relatively complex medical evidence about which opinions may differ.’

20 Counsel for Hannover Re submits that Mr McDonald failed to apply the guidelines. The consequence, she says, is that the Tribunal was not constituted in accordance with the Act and thus lacked jurisdiction to determine Ms Gell’s complaint. In the alternative, she contends that Hannover Re was denied procedural fairness in the circumstances where Mr McDonald failed to notify his intention to depart from the guidelines.

21 Mr McDonald did not say, in either of his affidavits that have been read, whether he turned his mind to the guidelines when he originally constituted the Tribunal or when he reconstituted it. In his first affidavit, which was made on 25 June 2004, he did refer to the large volume of complaints dealt with by the Tribunal during the year ended 30 June 2003 and to the Tribunal’s statutory objective of providing ‘fair, economical, informal and quick’ mechanisms for review of the decisions that were the subject of those complaints. Nonetheless, the use of the expressions, ‘as far as possible’ and ‘wherever possible’, suggest a fairly thoroughgoing commitment to provide a three-member Tribunal in a case such as Ms Gell’s. Mr McDonald did not say that a limited number of Tribunal members were available to sit when he originally constituted the Tribunal. I think it must be accepted that the guidelines were not applied in the present case.

22 The guidelines arguments call for consideration of the following provisions in the Act:

‘7A (1) The Tribunal Chairperson is the executive officer of the

Tribunal and is responsible for the overall operation and administration of the Tribunal.

(2) The Tribunal Chairperson is to:

(a) monitor the operations of the Tribunal to ensure that those operations are as fair, just, economical, informal and quick as practicable; and

(b) allocate the work of the Tribunal among the Tribunal members in accordance with guidelines under subsection (3).

(3)	The Tribunal Chairperson may formulate written

guidelines for the allocation of the work of the Tribunal.’

‘9 (1) Subject to section 10, for the purposes of the

performance or exercise of its functions or powers under this Act in relation to a particular complaint, the Tribunal is to be constituted by one or more, but not more than 3, Tribunal members selected by the Tribunal Chairperson.

(1A) After the Tribunal has been constituted for the purpose

of dealing with a particular complaint and before it has made a determination in respect of the complaint, the Tribunal may be reconstituted under subsection (1) if the Tribunal Chairperson considers that the reconstitution of the Tribunal is desirable:

(a)	to remove any perception of bias; or
(b)	to ensure the timely performance or exercise of the Tribunal’s functions or powers under this Act.

(2) In selecting the Tribunal member or Tribunal members

to constitute the Tribunal for the purposes of a particular complaint, the Tribunal Chairperson is to take into account their qualifications, experience and suitability having regard to the nature of that complaint.

(2A) The Tribunal Chairperson:

(a)	is to formulate written guidelines setting out how the Tribunal will usually be constituted for the purposes of dealing with different classes of complaints; and
(b)	is to make the guidelines available to the public.’

‘10. (3) If a Tribunal member who is selected by the

Tribunal Chairperson to be one of the members constituting the Tribunal in relation to a particular matter has a direct or indirect financial interest in that matter, the member must give written notice to the Tribunal Chairperson of the fact that the Tribunal member has an interest as soon a practicable after becoming aware of the relevant facts.

(4)	If such a notice is given by a Tribunal member, the

Tribunal Chairperson must reconstitute the Tribunal and select another Tribunal member to replace the member who gave the notice.’

23 Counsel for Hannover Re submits that the guidelines reproduced at [18] above were guidelines formulated pursuant to s 7A(3) of the Act. Counsel for Mr McDonald points out, correctly, that those guidelines purport to have been made under s 9(2A). Section 7A is concerned with the overall operation and administration of the Tribunal, not with how the Tribunal is to be constituted for the purpose of a review. Any guidelines under s 7A(3) would cover a different topic, namely, the allocation of work ‘among Tribunal members’. The Chairperson is not obliged to formulate such guidelines. Nor, if made, is there any obligation to publish them, but s 7A(2) ensures the smooth and harmonious operation of the Tribunal by requiring that work be allocated in accordance with them. It is a matter for the Chairperson whether he chooses to equip himself with such a management tool. The guidelines in question here were not, in my opinion, made under s 7A(3) of the Act.

24 Section 9(2A) requires the Chairperson to formulate guidelines such as those in issue here, but nowhere in s 9 is the Chairperson required to constitute the Tribunal in accordance with them. Accordingly the jurisdiction ground must fail. Section 9(1) permits the Tribunal to be constituted by one member, and the Chairperson’s power of selection is only qualified by s 9(2). In the present case, in reconstituting the Tribunal, Mr McDonald plainly took into account Miss Shanahan’s ‘qualifications, experience and suitability’.

25 Counsel for Hannover Re relies on s 9(2A) for her procedural fairness argument. She submits that it creates a legitimate expectation that such guidelines will be followed. Further she says that, if the Chairperson proposes to depart from the guidelines, an insurer must be given notice and an adequate opportunity of presenting a case against the taking of such a course. Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 291-292 is cited in support of this last proposition.

26 The limited utility of the notion of legitimate expectation in cases of alleged procedural unfairness was recently acknowledged by Kirby J in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 79 ALJR 397 at 409, where his Honour said (at [69]):

‘If the law requires a particular course to be followed, such as was the case in the present proceedings, the true legal issue is not, or is not only, whether the person adversely affected by a decision has had his or her legitimate expectations disappointed. That may be a consequence of the departure from the legal standard; but it is not the invalidating cause. The failure to observe proper procedures itself amounts to a legal defect in the performance of the task conferred by law as the law requires. In this sense, the invalidating element is not the disappointment but the anterior failure to conform to the law.’

27 Counsel for Mr McDonald contends that, in deciding how the Tribunal will be constituted for the purpose of dealing with a particular complaint, the Tribunal Chairperson is under no obligation to afford procedural fairness because such a decision does not affect the rights or interests of the parties to the complaint. Once a Tribunal is constituted, she accepts that a party could raise a question of apprehended or actual bias on the part of a member. (In a case such as the present, where the parties were not informed of the names of the Tribunal members, it is difficult to see how such an opportunity would arise.) However that may be, I think that this threshold submission is correct. The Act contains specific provisions that apply after a Tribunal is constituted. Under s 10(3) a member must disqualify himself or herself for interest, and the Tribunal Chairperson has power to reconstitute the Tribunal if he considers it desirable for the purposes specified in s 9(1A)(a) and (b). They are apt to deal with questions of bias. There is no ‘interest’ of the insurer party to complaint under s 14 of the Act relevantly affected by the Tribunal Chairperson’s decision as to the number of members who are to constitute the Tribunal such as would require that party to be given an opportunity to be heard on that question before such a decision is made. No such procedure is required by the law in the sense explained by Kirby J in Applicant NAFF of 2002.

28 Section 9(2A)(a) of the Act only requires the guidelines to state how the Tribunal will ‘usually’ be constituted. It is true that the revised guidelines contemplate an increase in the number of Tribunal members where there is ‘an issue of principle’ or ‘some unusual difficulty’. It is also common experience that discussion between the members of a fact-finding body can result in individual members changing their initial views. Ms Kasif may believe that there is an advantage in having three Tribunal members determine any total and permanent disablement case. Her evidence produced at [19] above is, no doubt, an attempt to overcome the kind of problem described in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at 13 [36]. However, Ms Kasif’s omission to make her hypothesised submission has not resulted in any unfairness or practical injustice. The determination of a Tribunal constituted by a single member under s 37 of the Act is not qualitatively different to one made by a three-member Tribunal. There was no denial of procedural fairness on any view of the obligations imposed upon Mr McDonald in constituting the Tribunal. Put another way, a departure from the guidelines could not produce unfairness. It should also be borne in mind that the recent spate of migration cases, where it has been held that a denial of procedural fairness constituted jurisdictional error, involved the reviews purportedly conducted by the tribunals themselves. Any interior failure of Mr McDonald to apply the guidelines will not vitiate the exercise of jurisdiction by the Tribunal constituted in accordance with s 9(1) of the Act.

29 I turn now to the grounds arising out of the Tribunal’s request made on 6 January 2003. Under the rubric of ‘taking into account irrelevant matters’, Hannover Re challenges what the Tribunal said in the passage from its reasons reproduced at [14] above. The initial submission is that s 25 of the Act, giving power to obtain information and documents, did not authorise the making of that request. So much may be accepted. Indeed, counsel for Hannover Re points out that the letter of 6 January 2003 did not purport to be a notice under s 25 of the Act. The consequential submission is that the failure to comply with the Tribunal’s request must be disregarded. Counsel for Hannover Re contends that such failure was one of the reasons for the unfairness and unreasonableness that the Tribunal ultimately determined to exist. I do not accept this submission. The Tribunal referred in the background section of its reasons to the ‘attitude’ adopted by Hannover Re, but the piqued tone of that passage is not reflected in the reasons for its determination reproduced at [15] above. The Tribunal’s references to ‘incomplete medical opinion’ in the final paragraph of that extract is not a reference to the failure to arrange the further medical examination, but to the failure to look at the hospital records which were available at the time Hannover Re declined Ms Gell’s claim. This ground fails.

30 Next, counsel for Hannover Re alleges a denial of procedural fairness by the Tribunal in finding that her client adopted an ‘unhelpful attitude’ without warning that it might make such an ‘adverse’ finding. I reject this submission. The Tribunal’s observation on the response to its request was not a finding on a material question of fact upon which its determination depended.

31 Section 36(b) of the Act provides that the Tribunal, in reviewing a decision, is to act ‘as speedily as proper consideration of the review allows’. Counsel for Hannover Re submits that this provision was not substantially complied with and that accordingly the Tribunal lacked jurisdiction to determine the complaint. I reject this submission. The exhortation in s 36 is directed to the Tribunal dealing with the complaint. Here that is the reconstituted Tribunal, which examined a huge volume of material in order the determine the complaint. There was no excessive delay, and there was certainly no failure on the part of the Tribunal to conduct a review at all.

32 I have set out at [11] above the terms of Ms Kasif’s covering letter enclosing the records from The Royal Melbourne Hospital. Counsel for Hannover Re submits that the Tribunal denied her client procedural fairness by failing to consider this ‘written submission’. Such failure on the part of the Tribunal is to be inferred, she says, from the Tribunal’s statement in the third dot point of the extract reproduced at [14] above that: ‘No attempt was made by the Insurer or the Trustee to... give a view as to the contents of the medical record vis-à-vis the Complainant’s circumstances.’ I decline to draw such an inference. In fact, the Tribunal referred in its assessment of the hospital records to the entries on 11 August 1999, which was the only specific date mentioned in Ms Kasif’s letter. This is a ridiculous submission, and I reject it.

33 Hannover Re’s attack on the Tribunal’s determination and reasons commences, somewhat oddly, with the type of determination made under s 37(3). It is submitted that the Tribunal exceeded its power in substituting its own decision instead of remitting the matter for reconsideration. This is said to be so because of what the Tribunal said in the last paragraph of the extract reproduced at [15] above about the conclusion of the trustee and Hannover Re being reached on ‘incomplete medical opinion’. However, that finding does not compel a remittal. Once a Tribunal is not bound to affirm a decision by virtue of s 37(6), it may exercise its power under par (b), par (c) or par (d) of s 37(3) so long as it observes the purposive limitation in s 37(4). This means that it may make its own decision on the merits if that is what the circumstances require.

34 Finally, under a variety of labels, counsel for Hannover Re submits that the Tribunal erred either by failing to construe or by wrongly construing the definition of ‘total and permanent disablement’ reproduced at [3] above. Her submissions on this topic were supported by a vast array of authorities on every element of the definition. If such submissions had been made to the Tribunal, it might have chosen to address them. No such submissions were made. Hannover Re’s submissions to the Tribunal were focused on Ms Gell’s medical condition. What the Tribunal said about Ms Gell’s education, training and experience does not betray the slightest misunderstanding of the requirements of the definition, the terms of which it had earlier set out in its reasons. No error of law is made out.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated: 28 February 2005

Counsel for the applicant:	V M Heath
Solicitors for the applicant:	PricewaterhouseCoopers Legal
Counsel for the intervener in N896 of 2004 and for the first respondent in N897 of 2004:	D S Mortimer SC
Solicitors for the intervener in N896 of 2004 and for the first respondent in N897 of 2004:	Australian Government Solicitor
Dates of hearing:	25 and 26 November 2004
Date of judgment:	28 February 2005