FEDERAL COURT OF AUSTRALIA Hannover Life Re of Australasia Limited (ACN 062 395 485) v Farm Plan Pty Limited (ACN 067 241 016) [2001] FCA 801 SUPERANNUATION – Complaints Tribunal – whether Tribunal addressed the right question. Insurance Contracts Act 1984 (Cth) ss 53, 54(1) Life Insurance Act 1945 (Cth) Life Insurance Act 1995 (Cth) Superannuation Industry (Supervision) Act 1993 (Cth) s 52 Superannuation (Resolution) of Complaints Act 1993 (Cth) ss 37, 37(2), (4), (6), 46(1) Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 referred to Attorney-General v Breckler (1999) 197 CLR 83 referred to National Mutual Life Association of Australasia Ltd v Campbell (2000) 99 FCR 562 referred to HANNOVER LIFE RE OF AUSTRALASIA LIMITED (ACN 062 395 485) v FARM PLAN PTY LIMITED (067 241 016) AND LEE CHERYL RALPH N-1151 OF 1999 HANNOVER LIFE RE OF AUSTRALASIA LIMITED (ACN 062 395 485) v FARM PLAN PTY LIMITED (067 241 016) AND ALISON BLACK N-1152 OF 1999 HANNOVER LIFE RE OF AUSTRALASIA LIMITED (ACN 062 395 485) v FARM PLAN PTY LIMITED (067 241 016) AND JAMES FRANK FILMER N-1175 OF 1999 LEE J PERTH 25 JUNE 2001 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY N-1152 OF 1999 BETWEEN: HANNOVER LIFE RE OF AUSTRALASIA LTD (ACN 062 395 485) APPLICANT AND: FARM PLAN PTY LTD (ACN 067 241 016) FIRST RESPONDENT ALISON BLACK SECOND RESPONDENT JUDGE: LEE J DATE OF ORDER: 25 JUNE 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: The "appeal" be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY N-1152 OF 1999 BETWEEN: HANNOVER LIFE RE OF AUSTRALASIA LTD (ACN 062 395 485) APPLICANT AND: FARM PLAN PTY LTD (ACN 067 241 016) FIRST RESPONDENT ALISON BLACK SECOND RESPONDENT JUDGE: LEE J DATE: 25 JUNE 2001 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an "appeal" under s 46 of the Superannuation (Resolution) of Complaints Act 1993 (Cth) ("SRC Act") from a decision of the Superannuation Complaints Tribunal ("the Tribunal"). Pursuant to s 46(1) of the SRC Act, the appeal is restricted to a question of law. The "appeal" was heard together with "appeals" in Hannover Life Re of Australasia Ltd v Ralph and Hannover Life Re of Australasia Ltd v Filmer as matters involving the same issues. The applicant presented a single argument in respect of all "appeals". 2 These reasons are to be read with those provided in the matter of Ralph in which relevant statutory provisions, documents and facts are referred to. 3 The second respondent (Mrs Black) is the mother of a person who became a Member of the Plan on 30 November 1992. That person, Kelly Black, died at the age of 18 on 3 March 1993. It is not clear when the deceased became a "Life Insured" under the Policy. 4 An Employer made a contribution to the Plan in respect of the deceased on 30 November 1992 and a further contribution on 16 August 1993. Apparently the Employer paid contributions to the fund "on an annual basis". 5 On 3 May 1993, Mrs Black claimed payment from the Trustee of the Death Benefit payable under the Plan. 6 The Insurer informed the Trustee in February 1996 that the insurer would not pay to the Trustee a sum insured in respect of the deceased under the Policy because the deceased "was not financial" at the date of death. By that that Insurer meant that the deceased "was not a financial Member of the Fund at the time of death". That, of course, was neither a fact nor a ground on which payment of the sum insured in respect of the deceased could be refused under the Policy. 7 At all material times, the deceased was Member of the Plan and had sufficient funds in her Member's Account to pay the whole of the annual premiums for death and disability cover under the Policy. 8 On 7 March 1996 Mrs Black lodged a complaint with the Tribunal under s 14 of the SRC Act. Pursuant to s 18 of the SRC Act, the Tribunal joined the Insurer to the complaint and the decision of the Insurer not to pay the claim of the Trustee under the Policy, being a decision relevant to Mrs Black's complaint, became subject to review by the Tribunal under s 37(2) of the SRC Act. It is implied in that subsection that the basis of review of such a decision is as set out in s 14(2) in respect of a decision of a Trustee. 9 The Tribunal determined pursuant to s 37 of the SRC Act that it was not satisfied that the decision of the Insurer, or of the Trustee, was fair and reasonable in the circumstances. By implication, the Tribunal then determined that the decisions were unfair or unreasonable in the circumstances by determining that the respective decisions were to be set aside and decisions made in substitution thereof by which the Insurer was to pay to the Trustee the insured benefit unless any unpaid premiums to the date of death, plus interest from the date of death to the date of payment. The Trustee was to distribute to the personal representative of the deceased the Death Benefit with interest calculated at "the fund crediting rate" from the date of death to payment of the benefit. 10 When the "appeal" came on for hearing the Trustee had altered its position by supporting the determinations made by the Tribunal. 11 It was submitted by all parties that the "appeal" turned on the same issues as those to be determined in Ralph. 12 Accordingly, for the reasons I have set out in Ralph, I determine in this matter that the Tribunal, in making its decision, addressed the right questions and duly exercised the powers provided to it by the SRC Act. 13 Accordingly, the "appeal" must be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: 25 June 2001 Counsel for the Applicant: N J Mullany Solicitor for the Applicant: Marks & Sands Counsel for the First Respondent: S Penglis Solicitor for the First Respondent: Freehills Counsel for the Second Respondent: M Ryan Solicitor for the Second Respondent: Messrs Bostock & Ryan Date of Hearing: 24 October 2000 Date of Judgment: 25 June 2001