MX v FSS Trustee Corporation as Trustee of the First State Superannuation Scheme & Anor [2018] NSWSC 923

Supreme Court New South Wales

Medium Neutral Citation: MX v FSS Trustee Corporation as Trustee of the First State Superannuation Scheme & Anor [2018] NSWSC 923 Hearing dates: 15 June and 4 August 2017 Date of orders: 24 July 2018 Decision date: 24 July 2018 Jurisdiction: Equity Before: Slattery J Decision: The separate questions for determination are both answered in the affirmative. Second defendant's decisions of December 2014 and June 2017 declared to be void and of no effect. The second defendant ordered to pay the plaintiff's costs of the separate determination. Directions made for the parties to prepare for a second stage hearing. Catchwords: INSURANCE – general – total and permanent disablement – plaintiff was an undercover policeman with the NSW Police Force – as a result of an incident in 1997 in the course of undercover work the plaintiff claims to suffer post-traumatic stress disorder – first defendant is a trustee of the Police Superannuation Fund – first defendant takes out a policy of insurance for the benefit of members of the fund with the second defendant insurer – plaintiff claims he is totally and permanently disabled after being off work for six months from September 2010 to March 2011 and that he is entitled to a benefit under the policy – the second defendant declines the plaintiff's claim on various grounds in December 2014 ("the first decision") – more material supplied to second defendant, which is requested to re-consider the first decision – second defendant makes another decision to the same effect in June 2017 ("the second decision") – identification of the duties applicable to the second defendant in making the decisions to decline the plaintiff's claim – separate question for determination – whether the second defendant insurer acted with the utmost good faith in dealing with the plaintiff's claim and reasonably in forming an opinion as to whether the plaintiff qualified as totally and permanently disabled under the policy – separate question ordered to be determined as to whether the defendants' respective decisions involved a breach of duty and therefore whether they can be set aside – if the decisions are set aside, what should now be directed in relation to the determination of whether the plaintiff is totally and permanently disabled under the policy at the second stage. Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 Life Insurance Act 1995 (Cth) Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Attorney General (NSW) v Quinn (1990) 170 CLR 1 Banovic v United Super Pty Ltd [2014] NSWSC 1470 Beverly v Tyndall Life Insurance Co Ltd (1999) 21 WAR 327 Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd (2015) 89 NSWLR 412 Bosnjak's Bus Service Pty Ltd v Commissioner for Motor Transport (1970) 92 WN (NSW)1003 Bread Manufacturers of New South Wales & Ors v Evans & Ors (1981) 180 CLR 404 Chammas v Harwood Nominees (1993) 7 ANZ Ins Cas 61-175 CGU Insurance Ltd v AMP Financial Planning Pty Ltd (2007) 235 CLR 1 Edwards v The Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113 Erzurumlu v Kellogg Superannuation Pty Ltd [2013] NSWSC 1115 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Finch v Telstra Super Pty Ltd (2010) 242 CLR 254 Forsikringsaktieselskapet Vesta v Butcher [1986] 2 Lloyd's Rep. 179 Halloran v Hardwood Nominees Pty Ltd (2007) ANZ Ins Cas 90-142 Hannover Life Re of Australasia Ltd v Colella (2014) 47 VR 1 Hannover Life Re of Australasia Ltd v Dargan (2013) 83 NSWLR 246 Hannover Life Re of Australasia Ltd v Jones [2017] NSWCA 233 Hannover Life Re of Australia Ltd v Sayseng (2005) ANZ Ins Cas 90-123 Jones v United Super Pty Limited [2016] NSWSC 1551 Lazarevic v United Super Pty Ltd [2014] NSWSC 96 McArthur v Mercantile Mutual Life Insurance [2002] 2 Qd R 197 MetLife Insurance Limited v FSS Trustee Corporation and Maund [2014] NSWCA 281 MetLife Insurance Ltd v RGA Reinsurance Company of Australia Ltd [2016] NSWSC 980 MetLife Insurance Ltd v RGA Reinsurance Company of Australia Ltd [2017] NSWCA 56 Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Re Stevenson's Settled Estate (1906) 6 SR (NSW) 420 Re NRMA Limited (2000) 33 ACSR 595 Repatriation Commission v Hill (2005) 142 FCR 88 Savelberg v United Super Pty Ltd t/a Cbus Superannuation Fund [2011] NSWSC 1482 Shuetrim v FSS Trustee Corporation [2015] NSWSC 464 Talbot v NRMA Limited (2000) 34 ACSR 650 Thorby v Goldberg (1964) 112 CLR 597 R v Anderson; Ex Parte IPEC-Air Pty Ltd (1965) 113 CLR 177 Weber v Tiss Pty Ltd [2005] NSWSC 67 Wyllie v National Mutual Life Association of Australasia Ltd (1997) 217 ALR 324 Ziogos v FSS Trustee Corporation as Trustee of the First State Superannuation Scheme [2015] NSWSC 1385 Texts Cited: W I B Enright and R M Merkin, Sutton on Insurance Law (4th ed, 2015, Thompson Reuters)