Michael John Lattin v Optus Administration Pty Ltd & anor. [2004] NSWIRComm 352

Industrial Relations Commission of New South Wales in Court Session

CITATION : Michael John Lattin v Optus Administration Pty Ltd & anor. [2004] NSWIRComm 352 PARTIES : Michael John Lattin v Optus Administration Pty Ltd and anor FILE NUMBER: IRC 7412 of 2001 CORAM: Haylen J CATCHWORDS : Unfair contract - death and disablement insurance cover available under superannuation plan - insurance cover provided by independent third party insurer - termination of senior executive immediately due to re-organisation and redundancy - ability to continue policy cover without medical required to be exercised within 30 days of cessation of employment - applicant unaware of continuation option and time limit on its operation until notified by respondents 45 days after termination - third party insurer declines to waive time limit - respondents regard issue as being between applicant and insurer - respondents decline to intervene to assist applicant secure the benefit of the continuation option - health of applicant disqualifies him from obtaining insurance cover himself - benefit only available under group insurance arranged by respondents - Deed of Release executed before applicant aware of expired time limit for exercising continuation option - whether terms of Deed extended to those superannuation benefits - dispute as to continuation option not in mind of parties at time Deed executed - Deed in general terms - Deed read down to limit effect to matters actually contemplated by parties - lack of appropriate information as to existence of benefit - insurance policy a valuable entitlement especially in circumstances of applicant - applicant's health well known to respondents - unfairness found - orders sought in Summons unclear and possibly vague in operation - parties to confer on appropriate orders in light of findings made by the Court Brown v Reizitis (1970) 127 CLR 157 Commonwealth v Verwayen (1990) 170 CLR 394 Coulton v Holcombe (1986) 162 CLR 1) Dugmore v Porter and ors (1982) 3 IR 182 CASES CITED : Grant v John Grant and Sons Pty Ltd (1954) 91 CLR 112 Mitchforce Pty Ltd v Industrial Relations Commission (2003) 57 NSWLR 212 Qantas Airways Ltd v Gubbins and ors (1992) 28 NSWLR 26 Solution 6 Holdings Ltd and ors v Industrial Relations Commission of NSW and ors [2004] NSWCA 200. Torrens Aloha Pty Ltd v Citibank NA (1997) 144 ALR 89 HEARING DATES: 10/18/2004; 10/20/2004 DATE OF JUDGMENT: 11/19/2004