Kristoffersen ats Superannuation Complaints Tribunal [2014]

Published 15 Aug 2015

Insurers for superannuation funds often reject claims with a letter recommending a person to refer the matter to superannuation complaints tribunal (SCT).

The SCT is a given powers to decide superannuation disputes, however an individual also has an inalienable right to pursue remedies at the Supreme Court.

While it may appear choice forum presents real difference is the SCT actually offers an advantage to Superannuation Funds and their Insurers.

An example of this was well commented by Judge Logan of the Federal Court of Australia in the decision of Kristoffersen  ats SCT 2013, that “the tribunal decided for itself, the basis of medical and other evidence before it and by reference an attached TPD definition, whether those decisions were fair and reasonable … identi(ied) the correct issue.

This decision was upheld an appeal to the full Court in 2014.

In layman’s terms what the His Honour identifies is that the SCT decides whether or not the decision of the Fund is fair and reasonable and not whether the person is TPD.

A decision may be reasonable yet unfair and not preferable, in such a circumstance the SCT cannot order a new decision as it was reasonable even though unfair. The Injured person would thus be unsuccessful.

This was why the SCT was held to be correct in not having arrived at a decision that the decision to not find Mr Kristoffersen TPD was reasonable per se.

On the contrary, the Supreme Court has a series of decisions that while it may have been reasonable to find in that the person not TPD, equity demands that the ambiguity be read in favour of the injured person and the fair decision be made.

The court has held that in such circumstances they would order the benefits to be paid.

While there are reasons and advantages for either forum, Superannuation Funds fail to disclose your rights to proceed to the Supreme Court,  advising only of your rights to proceed to SCT.

It needs to be repeated that Superannuation Funds are not official or neutral entities attempting to arrive at a fair decision, but gain from denying your benefit.

If you are running into issues with your insurance claim or are considering an insurance claim please allow us to assist you at Gerard Malouf and Partners and contact us for a free consultation.


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