Howitt-Steven v Unisuper Limited [2001] FCA 1599

FEDERAL COURT OF AUSTRALIA

Howitt-Steven v Unisuper Limited [2001] FCA 1599

SUPERANNUATION – disability benefits – appeal from Superannuation Complaints Tribunal – whether applicant had a pre-existing medical condition not disclosed by the applicant at the time that he joined the superannuation scheme – onus of proof – whether Tribunal applied correct test in finding that decision of trustee was not "unfair" or "unreasonable" for the purposes of s 14 and s 37 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 14, 18(1), 23(2), 27, 36, 37, 46 Insurance Contracts Act 1984 (Cth) ss 21, 26 National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562;[2000] FCA 852, referred to Seafarers' Retirement Fund Pty Ltd v Oppenhuis (1999) 94 FCR 594; [1999] FCA 1683, distinguished Flexiplan Australia Ltd v Pankhurst & Others [2001] FCA 1535, referred to Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330, applied WARREN ARTHUR HOWITT-STEVEN v UNISUPER LIMITED N 1177 of 2000 BRANSON J SYDNEY 15 NOVEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1177 of 2000

BETWEEN: WARREN ARTHUR HOWITT-STEVEN

APPLICANT

AND: UNISUPER LIMITED

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 15 NOVEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1177 of 2000

BETWEEN: WARREN ARTHUR HOWITT-STEVEN

APPLICANT

AND: UNISUPER LIMITED

RESPONDENT

JUDGE: BRANSON J

DATE: 15 NOVEMBER 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 Section 46 of the Superannuation Industry (Resolution of Complaints) Act 1993 (Cth) ("the Act") provides that a party may appeal to this Court, on a question of law, from a determination of the Superannuation Complaints Tribunal ("the Tribunal"). The Applicant, who is dissatisfied with a decision of the Tribunal given on 9 October 2000, on 6 November 2000 exercised the right of appeal created by s 46 of the Act by filing a notice of appeal in the Court. The notice of appeal was amended on 21 February 2001. 2 The determination of the Tribunal given on 9 October 2000 affirmed the decision of Unisuper Limited ("the Trustee"), the Trustee of the Superannuation Scheme for Australian Universities ("SSAU"), to refuse to pay benefits to the Applicant under the SSAU. The refusal was based on a finding made by the Trustee that the benefits claimed by the Applicant related to a pre-existing medical condition not disclosed by the Applicant at the time that he joined the SSAU. 3 The amended notice of appeal is less helpful than is desirable in identifying the questions of law upon which the Applicant appealed to this Court. The written submissions of the Applicant contain the following paragraph: "4. In summary, the grounds of appeal that the Applicant says involve errors of law by SCT [the Tribunal] are as follows: (a) Adverse findings of credit where there was no evidence at all to support the findings (b) Considering irrelevant matters (c) Procedural unfairness (d) Failing to acknowledge and consider evidence before it (e) Failing to consider and apply relevant legislation and law (f) Making findings and inferences not reasonably open to SCTto make on the evidence (g) Failing to or misapplying the provisions of the Complaints Act [the Act] (h) Exceeding its jurisdiction (i) Considering matters that were irrelevant to the issue of whether the Respondent's decision was unfair and unreasonable (j) Acting contrary to law." 4 Doing the best I can, having regard to the documents referred to above and the Applicant's oral submissions, I conclude that the questions of law upon which the Applicant ultimately placed reliance were: (a) that the Tribunal erred in law by failing to conduct an oral hearing before reaching its decision; (b) that the Tribunal erred in law in failing to try to settle the complaint by conciliation; (c) that the Tribunal erred in law in failing to join certain medical practitioners as parties to the complaint; (d) that the Tribunal erred in law by failing to consider whether there were special or exceptional circumstances to justify the payment of a benefit to the Applicant; (e) that the Tribunal misconstrued cl B.13 of the SSAU Consolidated Trust Deed in that it found that cl B.13 deals with disclosure of pre-existing conditions rather than disclosure of "a condition which existed at the time of joining the Scheme"; (f) that the Tribunal erred in law in that it wrongly acted on the basis that the Applicant bore an onus of proving that he had not failed to make proper disclosure at the time that he joined the SSAU; (g) that the Tribunal erred in law in failing to take into account evidence that it was bound to take into account, namely evidence that the Applicant was not, at the relevant time, aware of the condition which was not disclosed by him; (h) that the Tribunal erred in law in failing to "apply" the Act and the "principles of fiduciary duties" in considering the Applicant's complaint; and (i) that the Tribunal erred in law in taking an adverse view of the Applicant's credit.