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Superannuation, total and permanent benefit

Smith v Superannuation Complaints Tribunal and Local Government Superannuation Scheme (NSW) [2008] FCA 1528. Collier J. 15.10.08.

At [19], Collier J: "Furthermore it is accepted by this Court that the doctrine of procedural fairness is applicable to decisions made by the Superannuation Complaints Tribunal: cf Employers First v Tolhurst Capital Ltd (2005) 143 FCR 356 and Auspine Staff Superannuation PL v Henderson [2006] FCA 1281).

"So, for example, in Employers First, Branson J said at [69]: 'The obligation on the Tribunal to afford procedural fairness to the parties to a review means that it may not make a determination adverse to the interests of a party to that review without giving that party a reasonable opportunity to make written submissions to the Tribunal on the approach that the Tribunal is contemplating.' "

His Honour said [23]: "Given that the only issue decided by the Tribunal concerned the question of jurisdiction, in my view the facts demonstrate that the Tribunal failed to provide procedural fairness, and accordingly erred in law as claimed by the applicant."

On the discretion, [in 24]: "At a reconstituted Tribunal hearing the applicant would have an opportunity to make submissions to the Tribunal in relation to the timing of the filing of his claim with the Trustee.

"Further, I accept the submission of Mr Scott-McKenzie that there is additional medical evidence available to the Tribunal which, if accepted, could result in a decision favourable to the applicant. Of course whether the second respondent made a decision that was fair and reasonable within the meaning of the Act is a question for the Tribunal to decide upon the factual evidence before it, not a decision for this Court. However in my view the applicant's case before the Tribunal is not so hopeless that remitting this matter to the Tribunal could not possibly result in a different outcome."

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