Purcell v APS Chemicals Superannuation Pty Ltd [2009] FCA 154 (26 February 2009)

Last Updated: 27 February 2009

FEDERAL COURT OF AUSTRALIA

Purcell v APS Chemicals Superannuation Pty Ltd [2009] FCA 154

SUSAN CAROLYN PURCELL v APS CHEMICALS SUPERANNUATION PTY LTD ACN 065 209 074 and THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALIA LIMITED ACN 004 020 437

VID 932 of 2008

JESSUP J
26 FEBRUARY 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 932 of 2008

BETWEEN:	SUSAN CAROLYN PURCELL Applicant
AND:	APS CHEMICALS SUPERANNUATION PTY LTD ACN 065 209 074 First Respondent THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALIA LIMITED ACN 004 020 437 Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	26 FEBRUARY 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. Subject to compliance with order 2 below, the applicant be allowed until 13 March 2009 to institute an appeal from the determination of the Superannuation Complaints Tribunal made on 10 October 2008 in relation to her complaint.
2. In such an appeal, the applicant be limited to the questions of law, and to the grounds, specified in the Draft Notice of Appeal tendered by her on 5 February 2009 and marked Exhibit “A”.
3. The applicant pay the costs of the respondents.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 932 of 2008

BETWEEN:	SUSAN CAROLYN PURCELL Applicant
AND:	APS CHEMICALS SUPERANNUATION PTY LTD ACN 065 209 074 First Respondent THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALIA LIMITED ACN 004 020 437 Second Respondent

JUDGE:	JESSUP J
DATE:	26 FEBRUARY 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant applies for an extension of time within which to institute an appeal from a determination of the Superannuation Complaints Tribunal (“the Tribunal”) made on 10 October 2008, and received by her on 13 October 2008. A right of appeal, on a question of law, is given by s 46(1) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (“the Act”), but the appeal must be instituted “not later than the 28th day after the day on which a copy of the determination of the Tribunal is given to the person or within such further period as the Federal Court...allows”: s 46(2)(a) of the Act. In the circumstances of the present case, the 28th day was 10 November 2008. The present application for an extension of time was filed on 11 November 2008, and was accompanied by a draft notice of appeal.
2. The respondents to the present application are APS Chemicals Superannuation Pty Ltd (“the trustee”), the trustee of the superannuation fund of which the applicant was a member, and the National Mutual Life Association of Australia Ltd (“the insurer”), the insurer of the trustee, which was a party to the complaint before the Tribunal pursuant to s 18(1)(c) of the Act. The burden of the case in opposition to the application was carried by the insurer, with the trustee being content to adopt the insurer’s position. It was not submitted by either that it would be prejudiced by the extension of time sought by the applicant. Further, although neither went to the point of agreeing that the applicant had provided an acceptable explanation for her failure to institute an appeal within the time limited by s 46(2) of the Act, the applicant’s case in that regard is a strong one (as I shall develop in the next paragraph), and the respondents’ opposition to it, in relevant respects, was, as I read it, fairly nominal.
3. According to the affidavit of the applicant’s solicitor sworn on 11 November 2008, she (the deponent) received the determination of the Tribunal on 13 October 2008. She perused the Tribunal’s reasons in the week commencing 20 October 2008. On 30 October 2008, the applicant instructed her to draw and lodge an appeal. She drew a Notice of Appeal, and on 5 November 2008 left a copy of it in the post box of the applicant. Unbeknown to the deponent, the applicant was absent from her home, having been called away to provide assistance to her elderly mother, who was unwell as the result of an injury. The applicant returned home on 11 November 2008, and contacted the deponent on that day. At that time it was realised that an appeal would have been out of time. The applicant then acted promptly, by the filing of the present application, to put the respondents on notice that she desired to institute an appeal. I consider that the applicant’s mistake was innocently made, and that she acted promptly to rectify the situation. In the circumstances, I am persuaded that the applicant has a satisfactory explanation for her failure to institute an appeal within time.
4. The substantial part of the respondents’ resistance to the present application was their submission that the proposed appeal, as foreshadowed by the applicant, would be bound to fail. The approach which the court should take to a submission of that kind, in my view, is that to which I referred in Culley v Australian Securities and Investments Commission [2008] FCA 1784, at pars [5]-[6]. Culley arose under s 44(2A) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), but the terms thereof are relevantly indistinguishable from those of s 46(2) of the Act.
5. On the facts of the present case, the applicant had applied to receive a Total and Permanent Disablement (“TPD”) benefit from the superannuation fund of which she was a member. The trustee had insured itself against claims of that kind. In the rules of the fund, TPD was defined as having the same meaning as in the insurance policy taken out by the trustee. In that policy, TPD was defined in a way which included the following requirement:

...after considering all evidence which we [ie the insurer] believe is necessary to reach our view, in our opinion the person insured is unable ever again to work in any business, occupation or regular duties for which he or she is reasonably qualified by education, training or experience.

The expression “usual business, occupation or regular duties” was defined to mean –

...full-time, casual or part-time duties where the person insured is defined as a full-time, casual or part-time employee (as applicable) under the policy....

It seems that the applicant was defined as a full-time employee under the policy.

6. After considering a number of medical reports, the insurer did not form the opinion that the applicant was unable ever to work again within the meaning of the definition of TPD in the policy. This meant that the applicant was not entitled to a TPD benefit from the fund, and the trustee decided accordingly. The applicant challenged that decision in the Tribunal and, as I have said, the insurer was joined as a respondent to her complaint.
7. The Tribunal too considered many medical reports provided with respect to the applicant, and containing opinions as to whether she was able to work again, and if so, to what extent. Having done so, the Tribunal reached the conclusion that the decision of the insurer, in its operation in relation to the applicant, was fair and reasonable in the circumstances. Following the injunction contained in s 37(6) of the Act, the Tribunal affirmed the decision of the trustee. The essence of the Tribunal’s reasons is contained in the following paragraphs thereof:
   51. The medical reports almost universally conclude that the Complainant has a permanent impairment of her spine. The Complainant’s GP has at all relevant times assessed the Complainant as being TPD. However, none of the medical reports obtained for workers’ compensation purposes or for the Insurer conclude that the Complainant is TPD. The reports from Dr CB and Dr BD referred to motivational and other issues that were considered to be factors in preventing the Complainant from returning to work. Many medical reports referred to the Complainant’s dissatisfaction with the Employer.
   52. The Trust Deed and Policy require the Complainant to be “unable ever again to work in any business, occupation or regular duties for which he or she is reasonably qualified by education, training or experience”. The definition of TPD looks to the Complainant’s work capacity and transferable skills. The Insurer appears to have assessed the claim on the basis of whether the Complainant was able to work full time in an occupation for which she was reasonably qualified. The identified suitable occupation was light sedentary administrative work. On the basis of the medical reports and other information as to the Complainant’s work history and skills, the Tribunal is of the view that the Insurer’s decision to deny the TPD claim is, in its operation in relation to the Complainant, fair and reasonable in the circumstances.
8. In her draft notice of appeal (as amended during the hearing of the application), the applicant identified the following questions of law which, she contended, were involved in her proposed appeal:

(a) Whether the Tribunal erred in finding that the decisions under review in their operation in relation to the Applicant were fair and reasonable in the circumstances where:
(i) the decision makers and the Tribunal had no material upon which they could find that the Applicant was or would ever be able to work full-time;

• (iii) the decision makers and the Tribunal wrongly treated “light sedentary administrative work” as an occupation or duties for which the Applicant was reasonably qualified by education, training or experience within the meaning of the Insurance Policy;
• (iii) the decision makers and/or the Tribunal accepted psychological evidence from medical practitioners who were not psychologists or psychiatrists;

(b) Whether the Tribunal gave proper reasons for its determination.

The applicant foreshadowed the following grounds:

(a) The Tribunal did not consider the whole of the medical evidence which was consistent only with a conclusion that the Applicant was and would always be unable to work full-time;
(b) The Tribunal in paragraph 39 of its Reasons omitted to quote the words of Dr CB relating to initially working reduced hours and so misstated the conclusion of Dr CB;
(c) The reference in paragraph 39 of the Tribunal’s Reasons to “light sedentary work” in the report of Mr BD was not in context a reference to full-time work;
(d) The Tribunal failed (as it ought to have done) to reject reliance on the reports of Dr CB and Mr BD on the basis that they were dependent on psychological questions but those persons were not psychologists or psychiatrists;
(e) The Tribunal failed to give any reasons for not rejecting the psychological evidence;
(f) The Tribunal failed to give any reasons for finding that the Applicant was able to work full-time;
(g) The Tribunal failed to canvass or canvass properly the submissions made by the Applicant concerning her inability to work full-time and the psychological evidence;
(h) “Light sedentary administrative work” was not work of a kind for which the Applicant was reasonably qualified within the meaning of the Insurance Policy given that her occupation had been that of a senior sales executive in the wholesale chemical industry.

9. As presented by her counsel on the hearing of the application, the main features of the applicant’s proposed case on appeal are the following. She will contend that there was no evidence at all from which the Tribunal (or, for that matter, the insurer) could have concluded that she was able to work on a full time basis, even if the work in question was light, sedentary and administrative. She will say that none of the medical practitioners whose opinions the insurer consulted went so far as to express an opinion that a return to full time work, with any duties, was possible. She will also contend that observations contained in the reports of two of those medical practitioners about what might be called psychological aspects of the applicant’s disposition to work were made without the makers having appropriate qualifications in psychology, and should, as a matter of law, have been disregarded by the insurer and the Tribunal. She will also contend that the Tribunal’s reasons, the essence of which is set out above, were inadequate to the extent that the Tribunal should be held to have defaulted on its obligation under s 40 of the Act to “give written reasons for its determination”.
10. Counsel for the insurer (whose submissions were relevantly adopted by counsel for the trustee) contended that the questions identified by the applicant were not questions of law at all. Further, he stressed that the question for the Tribunal was not whether the applicant was, or was not, entitled to a TPD benefit, but, rather, whether the decisions of the insurer and the trustee to decline that benefit were fair and reasonable in their operation in relation to the applicant. The issue of the applicant’s capacity to do full time work was entirely one of fact, and could not be the subject of an appeal in the court. Counsel also contended that the Tribunal had not based its determination upon a conclusion with respect to the applicant’s psychological state. As to the adequacy of the Tribunal’s reasons, counsel submitted that the reasons given, while succinct to an extent, were sufficient for the purposes at hand and conformed with the practice of the Tribunal in cases of this kind.
11. It is, of course, inappropriate for the court, on an occasion such as this, to go further than is necessary to decide whether the applicant’s proposed appeal would be bound to fail. The applicant proposes to contend that there were no facts at all which were capable of supporting the determination made by the Tribunal. I consider that this amounts to an allegation of an error of law and, therefore, that it legitimately raises a question of law as required by s 46(1) of the Act. Whether the facts before the Tribunal with respect to the applicant’s capacity to perform full time work could on any view have supported the Tribunal’s determination can only be decided after a detailed examination of the material that was before the Tribunal. I do not think it would be appropriate, on an application such as this, to shut out the applicant from putting such an examination before the court.
12. The applicant’s proposition that the Tribunal failed to discharge its obligation to give reasons under s 40 of the Act is self-evidently one of law. While I recognise the force of the response made by counsel for the insurer, the sufficiency of the Tribunal’s reasons is not so obvious as to warrant the conclusion that the applicant’s case is bound to fail, without further consideration of the whole of the Tribunal’s reasons in their proper context and of the jurisprudence which has developed with respect to the obligation for which s 40 provides.
13. As I said in Culley, an applicant does not require leave to institute an “appeal” under s 44(1) of the AAT Act. The same may be said of a proceeding commenced under s 46(1) of the Act. For reasons which I have attempted to explain above, I am not persuaded that the applicant should be cut out from instituting her appeal upon the grounds relied upon by the insurer and the trustee.
14. My consideration of the present application has proceeded wholly in accordance with the draft notice of appeal tendered by the applicant at the hearing. The original draft notice, filed on 11 November 2008, was deficient in ways to which counsel for the insurer adverted and which were, in any event, plain to see. Since I took the view that an appeal conducted in accordance with that original notice would be bound to fail, I gave counsel for the applicant the opportunity to prepare another draft, which was the draft by reference to which I have decided this application. In extending time, I do not propose that the applicant should be at liberty to revert to her original draft, or otherwise to rely upon matters that were not the subject of her subsequent draft. In the orders which I propose to make extending time, I shall make this condition explicit.
15. I shall hear the parties on the question of costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated: 26 February 2009

Counsel for the Applicant	Mr D S Robertson
Solicitor for the Applicant	Ms K Moorhouse-Perks
Counsel for the First Respondent	Ms H Mentiplay
Solicitor for the First Respondent	TurksLegal
Counsel for the Second Respondent	Mr D J Christie
Solicitor for the Second Respondent	AXA Australia

Date of Hearing:	5 February 2009
Date of Judgment:	26 February 2009