Purcell v APS Chemicals Superannuation Pty Ltd [2009] FCA 981

FEDERAL COURT OF AUSTRALIA

Purcell v APS Chemicals Superannuation Pty Ltd [2009] FCA 981

SUPERANNUATION – appeal from Superannuation Complaints Tribunal to affirm decision to reject member's claim for total and permanent disablement benefit – whether evidence before Tribunal to show member capable of return to full‑time work – no medical evidence of member's capacity for full‑time work – matter remitted to Tribunal

Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 37, 40, 46

Samaras v Australian Retirement Fund Pty Ltd [2007] FCA 1323, followed Davis v Rio Tinto Staff Superannuation Fund Pty Ltd (2002) 118 FCR 170, followed Constantinides v Du Pont Superannuation Fund Pty Ltd [2002] FCA 534, followed Edwards v Giudice (1999) 94 FCR 561, applied Edwards v Postsuper Pty Ltd [2007] FCAFC 83, applied

SUSAN CAROLYN PURCELL v APS CHEMICALS SUPERANNUATION PTY LTD (ACN 065 209 074) and THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALIA (ACN 004 020 437)

VID 159 of 2009

MARSHALL J

31 AUGUST 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION VID 159 of 2009

BETWEEN: SUSAN CAROLYN PURCELL

Applicant

AND: APS CHEMICALS SUPERANNUATION PTY LTD (ACN 065 209 074)

First Respondent

THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALIA (ACN 004 020 437)

Second Respondent

JUDGE: MARSHALL J

DATE OF ORDER: 31 AUGUST 2009

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is allowed. 2. The decision of the Superannuation Complaints Tribunal of 10 October 2008 is set aside. 3. The matter is remitted to the Superannuation Complaints Tribunal to be determined again in accordance with the direction contained in [42] of the reasons for judgment. 4. The respondents pay the applicant's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.