High Court of Australia Judgment Summary Notes

Alan Michael Finch v Telstra Super Pty Ltd [2010] HCA 36

The applicant, who had undergone male to female gender reassignment surgery in 1988, commenced employment with Telstra in 1992. The reassignment surgery turned out to have been unsatisfactory and distressing to the applicant. In 1996 the applicant took sick leave, reassumed a male identity and underwent surgery to reverse the gender change as far as possible. He returned to work with Telstra in 1997, but ceased employment with Telstra just under a year later in 1998. Following this, he was employed by Foxtel for one month in 1999 and by Qantas for five months in 1999-2000. From 2000, the applicant has sought a total and permanent invalidity (“TPI”) benefit from Telstra Super Pty Ltd, the trustee of the applicant’s superannuation fund (“the Trustee”). Despite medical opinion suggesting that the applicant was unlikely to engage in gainful work ever again, the Trustee rejected the applicant’s claim for a TPI benefit on an initial assessment and a subsequent reassessment.

In the Supreme Court of Victoria, the trial judge held that the Trustee failed to give genuine consideration to the matter in that it had failed to pursue sufficient inquiries into certain aspects of the claim. The trial judge remitted the matter to the Trustee for reconsideration. The Court of Appeal allowed an appeal by the Trustee and set aside the trial judge’s orders. The Court of Appeal held that for the applicant to meet a requirement in the definition of TPI in the trust deed – that the applicant be absent from active work for at least six months (“the Active Work Requirement”) — the Trustee had to be satisfied that the applicant had been absent from active work with Telstra for at least six months as at the date that the applicant ceased to work for Telstra. The applicant’s first period of absence in 1996-1997 had been six days short of the required six month period. On this basis, the Court of Appeal considered that the issue of genuine consideration did not arise, but in any event disagreed with the trial judge’s conclusion on that issue.

Today, the High Court unanimously allowed an appeal against the decision of the Court of Appeal, and remitted the matter to the Trustee. The Court rejected the Court of Appeal’s construction of the Active Work Requirement on the basis that such an approach involved unnecessarily reading words into the relevant clause. On the question of genuine consideration, the Court noted that the duty of trustees to inform themselves properly is particularly intense in respect of superannuation trusts, and considered that the determination of the question of whether an applicant fell within the definition of TPI was not a matter of discretionary power but rather an aspect of the performance of a trust duty. The Court upheld the finding of the trial judge that the Trustee did not comply with its duty of inquiry. It was not appropriate for the Court to substitute its own decision for that of the Trustee, as it had not been shown that the Trustee was incapable of approaching the task of forming its opinion satisfactorily.

The Trustee was ordered to pay the applicant’s costs.

Pollock v The Queen [2010] HCA 35

Today, the High Court quashed Andrew Murray Pollock’s conviction for murder and ordered that a new trial be held.

In November 2008, Mr Pollock was convicted in the Supreme Court of Queensland of murdering his father. The key issue at trial was whether the prosecution excluded the defence of provocation in s 304 of the Queensland Criminal Code. This was a retrial. His conviction for murder at an earlier trial was overturned on appeal to the Queensland Court of Appeal.

The deceased died at his home early in the morning of 31 July 2004. Mr Pollock had spent the previous night before at the deceased’s home drinking with a group of people. The group included the deceased, an ex-girlfriend of Mr Pollock and a female friend of hers, Mr Pollock’s brother, and a woman that Mr Pollock had met earlier in the evening. During the evening and the early hours of the following morning several events occurred. Mr Pollock told his brother he had been sexually abused as a small boy by the deceased. Mr Pollock and the deceased, who had consumed a significant amount of alcohol, exchanged hostile words. One of the women present engaged in sexual intimacies with the deceased. This last event was said to have upset Mr Pollock significantly and he demanded that the woman and Mr Pollock’s ex-girlfriend leave the premises. When the deceased was told of this demand, he became very angry and threatened to kill Mr Pollock. There was physical evidence pointing to a fight having taken place in Mr Pollock’s bedroom. There were at least two versions of how the fight may have progressed. The first was that it started in the bedroom, proceeded outside and, during its course, Mr Pollock picked up a rock and struck the deceased. On another version of events, based on admissions made by Mr Pollock to his exgirlfriend, the deceased had entered his bedroom, they wrestled, Mr Pollock injured the deceased’s face and the deceased had gone into the bathroom. Mr Pollock banged on the bathroom door, the deceased jumped out of the bathroom window, Mr Pollock and the deceased fought outside, Mr Pollock picked up a rock and the deceased challenged him in strong language to use the rock.

The judgment of the Court of Appeal setting aside Mr Pollock’s earlier conviction had set out a seven-part test, any element of which it was said would, if proved beyond reasonable doubt, exclude the defence of provocation. The fifth element was that “the loss of self-control was not sudden”. The seventh element was that, when Mr Pollock had killed, “there had been time for his loss of self-control to abate”. At Mr Pollock’s retrial in 2008, the jury was directed in terms of this test. The prosecution submitted that the interval while the deceased was in the bathroom made out the fifth and seventh elements of the seven-part test.

The High Court held that the directions given to the jury wrongly invited them to exclude provocation as a partial defence available to Mr Pollock if they found that there had been any interval between the provocative conduct and the act causing death.

The Court ordered that the appeal be allowed, that Mr Pollock’s conviction be quashed and that a new trial be held.

Workcover Queensland v Amaca Pty Ltd & Anor [2010] HCA 3

Today the High Court unanimously held that limitations on damages recoverable by an estate suing on behalf of a deceased person under s 66 of the Succession Act 1981 (Qld) (“the Succession Act”) do not apply to a workers’ compensation insurer seeking to recover from wrongdoers under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Compensation Act”) compensation paid to a worker who died before the insurer’s action came to trial.

Mr Rex Noel Thomson was a worker who died in 2006 from malignant mesothelioma contracted as a result of inhaling asbestos in products manufactured by the respondents. Prior to his death, WorkCover Queensland paid to Mr Thomson the sum of $340,000 as compensation under the Compensation Act. Mr Thomson had not instituted any action for damages against either respondent before his death. WorkCover was consequently able to pursue its entitlement under s 207B(7)(a) of the Compensation Act to be indemnified by a wrongdoer to the extent of the wrongdoer’s liability for the damages. Section 66(2) of the Succession Act operates to limit the damages recoverable where a cause of action survives a person’s death for the benefit of that person’s estate under s 66(1), by excluding matters such as damages for pain and suffering, for any bodily or mental harm or for curtailment of expectation of life.

In a case stated for the Court of Appeal of the Supreme Court of Queensland, that Court considered that the Succession Act did operate to reduce the amount of the indemnity that WorkCover was entitled to claim in the circumstances. It held by majority that the extent of the indemnity was delineated by the statutory limitations which would operate if an action was pursued by the deceased’s personal representative after death.

The High Court allowed an appeal by WorkCover, holding that s 66(2) of the Succession Act operates as a limitation on the remedy available, which applies only to an action brought by the estate of the person in whose favour a liability existed. The Court held that the section does not operate to limit the liability of a wrongdoer towards the deceased person, and thus the quantum of WorkCover’s indemnity was not reduced following Mr Thomson’s death or the consequent impact of s 66(2) on any action which may have been brought by Mr Thomson’s estate.

The respondents were ordered to pay WorkCover’s costs.