Maciejewski v Telstra Super Pty. Limited [1999] NSWSC 341

New South Wales Supreme Court CITATION : Maciejewski v Telstra Super Pty. Limited [1999] NSWSC 341 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 4210 of 1997 HEARING DATE(S) : 9 April 1999 JUDGMENT DATE : 9 April 1999

PARTIES : Helen Maciejewski (Plaintiff) Telstra Super Pty. Limited (Communications) (Defendant) JUDGMENT OF : Windeyer J at 1

COUNSEL : Mr. J. Fernon (Plaintiff) Mr. J Sexton (Defendant) SOLICITORS : Andrew Fegent & Company (Plaintiff) Phillips Fox (Defendant) CATCHWORDS : SUPERANNUATION - Review of decisions and related matters - Plaintiff's claim for benefits under Telecom Superannuation Scheme - whether or not the trustee fulfilled its obligation under the Scheme ACTS CITED : Commonwealth Employees Rehabilitation and Compensation Act 1988 Compensation Commonwealth and Government Employees Act 1971 DECISION :

- 9 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

Friday 9 April 1999

004210/97 - HELEN MACIEJEWSKI -V- TELSTRA SUPER PTY LTD

JUDGMENT

1 HIS HONOUR: This is the second part of proceedings under which the plaintiff claims to be entitled to benefits under the Telecom Superannuation Scheme because, she says, that she ceased to be an employee of what is now Telstra as a result of total and permanent invalidity, her employment having come to an end on 13 September 1991. It came to an end pursuant to a statutory regime under which she was required to attend work and failed to do so and as a result of that after a time her employment was deemed to have come to an end. 2 It is accepted that the amended summons which was filed 7 November 1997 is inappropriate because it seeks a declaration that the plaintiff ceased to be an employee of her employer through total and permanent disability within the meaning of the Scheme rules, and secondly, seeks an order for payment of the amount which the plaintiff would be entitled to if she was entitled to a payment because of total and permanent invalidity. 3 These proceedings came on for hearing in the first place before Mr Justice Young on 17 August 1998 when he drew attention to this and it was accepted that at least in this case the appropriate relief was, if any were granted, that the matter be sent back to the Trustee for a proper determination. He came to the conclusion on the material before him that the defendant Trustee failed to deal with the plaintiff's claim for benefits fairly and adequately as it was required to do and, therefore, he ordered that the defendant properly consider the plaintiff's claim and present a report to the Court as to its consideration. That has now been done and the matter is back before the Court. 4 It is therefore accepted that a further amended summons is to be filed under which the plaintiff will seek an order that the matter be referred back again to the Trustee to make a proper determination as required by it under the Fund rules. The matter has therefore proceeded on the basis that an amended summons will be filed and it will be necessary for me to make an order that that be done by not later than Monday next. 5 The defendant has reported to the Court and there is evidence now of the material which was taken into account by the directors of the defendant Trustee when they made their decision on 25 November 1998 and rejected the claim of the plaintiff for benefits. That material, amongst other things, included reports of at least sixteen doctors some of whom gave two reports. In the cases where two reports were given it could be said in general that the first report was given in connection with the claim under the Compensation Commonwealth and Government Employees Act 1971 or its successor the Commonwealth Employees Rehabilitation and Compensation Act 1988. 6 As was pointed out by Mr Justice Young in his earlier judgment entitlement under that Act required that the injury, or if you like, the disability arose as a result of or in the course of the work the plaintiff was employed to do, whereas an entirely different consideration would arise under the provisions of the Superannuation Scheme. 7 Under cl 2.3.3 of the Trust Deed for the Telecom Superannuation Scheme in force at the time in question it is provided as follows: Subject to Pt 2.4 if a member ceases to be an employee before attaining the age of sixty years because of total and permanent invalidity there is payable to the member from the Fund a lump sum benefit of an amount equal to the benefit which would have been payable under cl 2.3.2 if the member had died on the date of invalidity." 8 Total invalidity is defined under the rules as follows: Total and permanent invalidity means in relation to a member disablement as a result of which (a) Unless otherwise agreed between the Trustee and the principal employer from time to time either generally or in any particular case the member has been continuously absent from all active work for a period of at least six months and had been required by the employer to participate in a rehabilitation programme and