SAS Trustee Corporation v Learmont [2023] NSWCA 272

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: SAS Trustee Corporation v Learmont [2023] NSWCA 272 Hearing dates: 19 May 2023 Date of orders: 15 November 2023 Decision date: 15 November 2023 Before: Mitchelmore JA at [1] Basten AJA at [81] Rothman J at [137] Decision: (1) Appeal allowed. (2) Set aside the orders of the District Court made on 18 July 2022. (3) Remit the matter to the District Court to be determined according to law. (4) The parties bear their own costs of the appeal. (5) The costs of the trial before Acting Judge Kearns abide the outcome of the remitted hearing. (6) The respondent's notice of motion dated 21 March 2023 is dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Superannuation – where respondent was a NSW Police Officer who resigned in 1999 – where respondent applied for superannuation allowance under Police Regulation (Superannuation) Act 1906 (NSW), s 10B, relying on depressive illness – where Act amended after resignation but before application – whether question of incapability considered by primary judge in requisite sense – whether respondent was incapable, in a permanent or persistent sense, from carrying out the functions of a police officer as at the date of his resignation – whether applicable version of s 10B was that in force as at the date of resignation or application – whether primary judge had regard to the infirmity, as distinct from a susceptibility to an infirmity on question of incapability Legislation Cited: Aboriginal Land Rights Act 1983 (NSW) District Court Act 1973 (NSW), s 142N Police Regulation (Superannuation) Act 1906 (NSW), ss 10, 10B, 21 Superannuation Legislation Amendment Act 2006 (NSW) Cases Cited: Day v SAS Trustee Corporation [2021] NSWCA 71 Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547 Locker v SAS Trustee Corporation [2013] NSWIRComm 23 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 SAS Trustee Corporation v Ainsworth [2011] NSWIRComm 128 SAS Trustee Corporation v Colquhoun [2022] NSWCA 184 SAS Trustee Corporation v Cox [2011] NSWCA 408; (2011) 285 ALR 623 SAS Trustee Corporation v Woollard (2014) 86 NSWLR 367; [2014] NSWCA 75 SAS Trustee v Daykin [2002] NSWIRComm 124 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 Swift v SAS Trustee Corporation [2010] NSWCA 182 Williams v Metropolitan Coal Company Ltd (1948) 76 CLR 431 Category: Principal judgment Parties: SAS Trustee Corporation (Appellant) Andrew Learmont (Respondent) Representation: Counsel: S Callan SC / S Palaniappan (Appellant) J Morris SC / M Weightman (Respondent)