Case: Auspine Staff Superannuation Pty Ltd v Henderson (2007) 14 ANZ Insurance Cases 90-127 
Outcome: referred to
In general terms, Mr Samaras contended that it was unnecessary for him to identify an illness or illnesses attached to his period of employment with the ATC and that the question for the Insurer and the Trustee was whether, at the time of their respective decisions, there was any illness or illnesses that cumulatively resulted in Mr Samaras being unlikely to ever be able to engage in any regular remunerative work for which he was reasonably fitted by education, training or experience. Mr Samaras sought to support his construction of the definition by reference to the decision of Jessup J in Auspine Staff Superannuation Pty Ltd v Henderson (2007) 14 ANZ Insurance Cases 90-127 at [63] and [64]. 36 For the reasons that follow, I reject Mr Samaras' construction of the definition of TPD. The definition contained two limbs. Both had to be satisfied. The first limb required that the 'disablement' occurred while the insured was a member: see definition of TPD in [24] above. To satisfy the first limb of the definition of TPD, Mr Samaras had to be less than 60 years of age, the disablement had to exist no later than 30 days after he ceased employment with ATC and result from an illness, accident or injury that resulted in him being continuously absent from his employment for at least 6 consecutive months. That limb of the definition required identification of the illness or illnesses suffered by Mr Samaras no later than 30 days after he ceased employment with ATC and which resulted in him being absent from work for at least 6 consecutive months. 37 If an illness or illnesses of the kind described could be identified, then the second limb of the test becomes relevant - consideration of medical and other evidence to determine whether it was unlikely that Mr Samaras would ever be able to engage in any regular remunerative work for which he was reasonably fitted by education, training or experience. This second limb requires consideration of medical and other evidence limited to the illness or illnesses identified under the first limb but not limited in time to the period prior to the cessation of Mr Samaras' employment. The Insurer and the Trustee were required to consider the medical evidence that existed at the time of their decisions, namely June 2005 and August 2005. 38 Moreover, the decision of Jessup J in Auspine Staff Superannuation did not support Mr Samaras' construction of the definition of TPD. The first point of difference is that the definition of TPD in that case was different. Not substantially different, but different. Secondly, even taking into account the differences in language between the definitions of TPD, there is nothing in the reasons for decision of Jessup J which suggested that the insurer in that case was to ignore the requirement that the disablement was to have occurred " while he [was] in the active service of the Employer ". Such a contention ignored the express words of the definition of TPD in that case and para [63] of his Honour's reasons for decision. 39 Against that background, I turn to consider Mr Samaras' various grounds of appeal to the extent to which I have not already dealt with them in considering the proper construction of the definition of TPD. 40 This ground of appeal should be dismissed. 56 In addition, it cannot be said that the Tribunal made a determination adverse to Mr Samaras' interests without giving him a reasonable opportunity to make written submissions to the Tribunal on the approach that it was contemplating: Auspine at [57] and the authorities cited. Mr Samaras, in fact, lodged 6 written submissions comprising more than 100 pages. As the Tribunal stated: "[Mr Samaras] provided over 100 pages of submissions in which he broadly argued that the Trustee and the Insurer chose irrelevant medical history and issues involving the relationship with his employer as the basis of their decision to decline his TPD application. He asked that the Tribunal confine itself to his ongoing health issues." The substance of those submissions was then summarised by the Tribunal. 57 After receiving those written submissions from Mr Samaras, the Tribunal contacted Mr Samaras on 15 May 2006 and asked him for his response submission. Mr Samaras told an officer attached to the Tribunal that he did not wish to provide a response submission and relied upon the material he had already provided to the Tribunal. This ground of appeal is dismissed. 58 Mr Samaras contended that the Tribunal, in denying Mr Samaras an opportunity to make an oral submission, " made a determination adverse to the interests of Mr Samaras to that review without giving him a reasonable opportunity and in effect denied him procedural fairness." In general terms, Mr Samaras submitted that he did not understand how the Tribunal's processes worked and, in particular, did not understand the gravity or implications of the comments about the credit of Mr Samaras made by a number of medical practitioners whose medical reports were before the Tribunal. This ground of appeal raises similar grounds to Ground (g) and should be dismissed on the same bases. Moreover, the substance of Mr Samaras' complaints arose not from the manner in which the Tribunal dealt with the matter but the fact that he did not agree with comments made by some medical practitioners about the inconsistencies in his behaviour and that he was, in the words of one doctor, " economical with the truth ". The medical reports had been provided to Mr Samaras. He was aware of them, able to comment upon and did comment upon them in the written submissions he provided to the Tribunal. The failure to provide Mr Samaras an oral hearing did not amount to a denial of procedural fairness.