Case: Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359
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." 15 The Tribunal is required by s 37(6) of the Act to affirm a relevant decision of a Trustee if it is satisfied that the decision was fair and reasonable in the circumstances. Relevant principles as to fairness and reasonableness in this context include the following: &#8226; the words "unfair" and "unreasonable" as used in the Act are of broad content and purpose, and not to be read restrictively: National Mutual Life v Campbell 99 FCR at 571 &#8226; whether a decision, or its operation in relation to a person, is fair and reasonable in the circumstances involves a value judgment, the making of which is committed to the Tribunal: National Mutual Life v Campbell 99 FCR at 570-571 &#8226; where the Tribunal forms the view that the decision was fair and reasonable it must affirm the decision even though the Tribunal might not itself have made the same decision ( National Mutual Life Association of Australia v Scollary [2002] FCA 695 at [37] , Colonial Mutual Life Assurance Society Ltd v Brayley [2002] FCA 1333 at [31] ) &#8226; a decision under review pursuant to s 37 may be one which so involves elements of fact, degree, opinion or value judgement that different minds can legitimately differ in reaching a decision. That is why the Tribunal's task is not to ask itself whether such a decision was the correct or preferable decision, nor to engage in ascertaining generally the rights of the parties, nor 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, as to whether the decision was - recognising the overriding framework given by the rules of the fund - unfair or unreasonable (Allsop J in Crocker at ATR 366, 367, the Full Court in Cameron 130 FCR at 133) &#8226; as explained by Branson J in Brayley [2002] FCA 1333 at [32] , if the Tribunal is not satisfied that the decision was fair and reasonable in the circumstances, ss 37(1) and (2) require the Tribunal put itself in the position of the trustee and, in an appropriate case, the insurer and other relevant decision-maker ( National Mutual Life v Campbell 99 FCR at 570; Briffa v Hay (1997) 75 FCR 428 at 443-445). From that position or positions the Tribunal must determine whether, consistently with: (a) the general law; (b) the governing rules of the fund concerned; and (c) if a contract of insurance between the insurer and a trustee is involved, the terms of the contract, the unfairness or unreasonableness that the Tribunal has identified in respect of the trustee's decision can be addressed in whole or in part &#8226; a decision of a trustee or insurer as varied by the Tribunal, or a decision of the Tribunal in substitution for a decision of the trustee or insurer, is for all purposes (other than the making of a complaint about the decision) taken to be a decision of the trustee or insurer and, on the coming into operation of the determination by the Tribunal, unless the Tribunal otherwise orders, has effect on and from the day on which the original decision had effect: s 41(3) &#8226; the Tribunal is obliged to consider the evidence before it by way of hearing de novo : Seafarers' Retirement Fund Pty Ltd v Oppenhuis [1999] FCA 1683 ; (1999) 94 FCR 594 at 598-599. Indeed in reviewing a decision of a Trustee of a fund, the Tribunal has all the powers, obligations and discretions that are conferred on the trustee: s 37(1)(a). In exercising its powers of review, the Tribunal is not restricted to the documents which were before the Trustee, nor is it confined to the manner in which the applicant addressed the subject matter: Commonwealth Superannuation Scheme Board v Dexte r [2004] FCA 1434 ; (2004) 142 FCR 151 at 166-167, Crocker 48 ATR 387-388, Oppenhuis 94 FCR at 599, HEST Australia Ltd v Sykley [2005] FCA 1381 ; (2005) 147 FCR 248 at 259.