Case: Cullinane v Mercer Benefit Nominees Ltd [2006] FCAFC 82 ; (2006) 152 FCR 1
Outcome: cited
A party may appeal to the Federal Court, on a question of law, from a determination of the Tribunal: s 46 of the Act . Such proceedings come before the Court for hearing and determination in the exercise of its original, rather than appellate, jurisdiction: Cullinane v Mercer Benefit Nominees Ltd [2006] FCAFC 82 ; (2006) 152 FCR 1. 3 The applicant, through its Further Amended Application for an Order of Review, seeks the following orders: 1. The decision of the first respondent be set aside. 2. The Complaint be referred to the Tribunal for hearing and determination according to law. 3. The respondents pay the applicant's costs on and incidental to this application. 4 The background facts to this matter can be found in the Tribunal's "Review Determination and Reasons" (the Determination and Reasons) and the applicant's Chronology of Events. They may be summarised as follows: &#8226; in May 1994 the applicant was employed by Penrith City Council (employer) as a labourer and became a member of the First State Superannuation Scheme (the former fund); &#8226; in January 1995 the applicant was injured at work; &#8226; in early 1996 the applicant returned to work on light duties; &#8226; in July 1996 the applicant injured his back at work; &#8226; in October 1996 the applicant received a letter from his employer stating that his employment would be terminated on 1 November 1996 due to a lack of medical evidence as to when he could return to his pre-injury employment; &#8226; in early 1997 the applicant purportedly telephoned an officer of the former fund enquiring about payment of benefit application; &#8226; on 1 July 1997 liability for the applicant was transferred from the former fund to the second respondent; &#8226; in late 1999 the applicant settled a workers' compensation claim; &#8226; on 6 November 2003 the applicant applied to the former fund for payment of a benefit on the basis that he was permanently incapacitated. The application was accompanied by two incapacity certificates by medical practitioners; &#8226; on 18 November 2003 the applicant's payment of his account balance was approved by the former fund on the basis the applicant was totally and permanently incapacitated. The balance was paid on 21 November 2003; &#8226; on 20 January 2005 the applicant was informed by the former fund that the second respondent should be contacted regarding total and permanent disability insurance; &#8226; in February 2005 the applicant received and completed a statement of claim from the second respondent; &#8226; in April 2005 the second respondent drew the applicant's attention to time limits in making a claim and invited him to provide the second respondent with information why the statement of claim was outside the proscribed time. The applicant provided information; &#8226; in July 2005 the applicant completed a statement of claim; &#8226; on 1 May 2006 the applicant was informed by the second respondent that his application for benefit was refused; &#8226; on 10 December 2006 the applicant lodged a complaint with the first respondent; &#8226; on 15 February 2007 the first respondent wrote to the applicant stating that it had "established its jurisdiction to deal with your complaint"; &#8226; in its determination and reasons handed down on 7 December 2007 the Tribunal found that it did not have jurisdiction to deal with the applicant's complaint because the complaint was out of time; &#8226; the applicant appealed the Tribunal's decision by application to the Federal Court filed on 7 January 2008.