Case: Flexiplan Australia Ltd v Pankhurst [2001] FCA 1535
Outcome: cited
In summary, the second respondent submitted: &#8226; in exercising its powers under s 37(1) of the Act , the Tribunal stands in the shoes of the decision-maker: National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562 &#8226; the task of the Tribunal is that it must first consider whether the decision complained of was fair and reasonable in the circumstances. The words "fair" and "reasonable" are of broad content and purpose: Flexiplan Australia Ltd v Pankhurst [2001] FCA 1535 &#8226; the Tribunal noted that the issue to be determined was whether the decision of the Trustee to refuse payment of the TPD benefit, on the grounds that the applicant's total and permanent disability was caused by a condition related to his pre-existing schizophrenia, was fair and reasonable in its operation to the applicant in the circumstances &#8226; in relation to the medical evidence before it, the Tribunal noted the considerable variation in the clinical history provided by the applicant to the various medical experts, and the competing medical opinions relevant to the applicant's case &#8226; the Tribunal ultimately concluded that it was satisfied that the Trustee's decision to decline payment of the TPD benefit to the applicant on the grounds that, on the balance of probabilities his medical condition, be it PTSD or an anxiety disorder, was related to the pre-existing, long-standing paranoid schizophrenia, was fair and reasonable given the conflicting psychiatric opinions. After reviewing all the available medical evidence, the Tribunal also expressed the opinion that the applicant's PTSD or anxiety disorder was sufficiently related to his schizophrenia such as to render the decision of the Trustee fair and reasonable in its operation in relation to the applicant in the circumstances &#8226; contrary to the submission of the applicant, the Tribunal did not misdirect itself as to the fundamental issue it was obliged to consider, namely whether the decision of the second respondent was fair and reasonable in the circumstances &#8226; the reasons of the Tribunal must be read as a whole and fairly &#8226; it was not necessary for the Tribunal to decide afresh all findings of fact made by the second respondent &#8226; it was open for the Tribunal to conclude that favourable opinions expressed in the expert medical reports were outweighed by countervailing considerations including the opinions of Dr Butler and Dr Reddan &#8226; the Tribunal has examined the medical evidence, was fully aware of the task it had to embark on, and had regard to all the evidence in reaching its decision &#8226; the onus is on the applicant to demonstrate that there has been an error of law. The Tribunal does not commit an error of law because it finds facts wrongly or upon a doubtful basis or because it adopts some unsound or questionable reasoning at the end of the day &#8226; the second respondent in effect relied upon the findings of Dr Reddan and Dr Butler that the conditions complained of were not related to work &#8226; the second respondent relied on the following comments of Allsop J in Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 at 367, which were endorsed by the Full Court in Cameron v Board Trustees of the State Public Sector Superannuation Scheme [2003] FCAFC 214 ; (2003) 130 FCR 122: "The Tribunal's task is not to engage in ascertaining generally the rights of the parties, nor is it to engage in some form of judicial review of the decision of the trustee or insurer. Rather it is to form a view, from the perspective of the trustee or insurer, as to whether the decision of either was (recognising the overriding framework given by the governing rules and policy terms, respectively) unfair or unreasonable."