Naylor v SAS Trustee Corporation [2002] NSWCC 19

Reported Decision : (2002) 23 NSWCCR 385

Compensation Court of New South Wales

CITATION : Naylor v SAS Trustee Corporation [2002] NSWCC 19 PARTIES : Stephen Craig Naylor SAS Trustee Corporation MATTER NUMBER(S) : 1425 of 2001 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 10/4/02 DATE OF JUDGMENT: 04/10/2002

FOR APPLICANT: Mr J J Klarica instructed by Messrs Taylor & Scott. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr T M Ower instructed by Brian Matthews.

JUDGMENT: 1. This is an appeal pursuant to s 21 of the Police Regulation (Superannuation) Act 1906 by Stephen Craig Naylor against the SAS Trustee Corporation, in which by his Application for Determination he simply claims an annual superannuation allowance under s 10(1A) of the Police Regulation (Superannuation) Act 1906. However as the matter was developed in argument by counsel it eventually appeared that Mr Naylor had already been granted, as a result of what was admitted by the Commissioner of Police to be injury as a result of being "hurt on duty" within the statute abovementioned, a police superannuation pension of 72.75 per cent of his "salary of office" within s 10(1A) of the abovementioned statute. 2. An affidavit was tendered by Mr Ower for the respondent before me, it being of Brian Thomas Matthews, his instructing solicitor, sworn on 12 March 2002. It set out the matters which had emerged in the course of counsel's argument and in particular set out the initial pension which the appellant was granted as discussed above. It also set out that this pension was paid from the date of the appellant's discharge from the Police Force on 13 August 1999. It also set out that this pension was subsequently increased to 77 per cent of the "salary of office" within s 10(1A) of the abovementioned statute, this increase occurring in circumstances set out in annexure "B" of the affidavit just mentioned and dating from 14 August 1999, that being the date of discharge abovementioned. In the manner in which the matter was contested by the parties, it was perfectly clear that what the appellant sought by this appeal was the setting aside of that determination by the Board and an increase in that pension from the date of discharge abovementioned and not from some later date. 3. A preliminary point has arisen in relation to the proper interpretation of s 10 of the statute abovementioned, which the appellant and respondent agree I should deal with before hearing the substantive appeal. The parts of s 10 which are relevant to the present argument are as follows: (1) In this section: "disabled member of the Police Force" means: (a) a member of the Police Force who is discharged after being certified, pursuant to s 10B(1), to be incapable, from a specific infirmity of body or mind, of discharging the duties of his office; or (b) a former member of the Police Force who resigned or retired and who, according to a certificate given pursuant to s 10B(2) at any time after his resignation or retirement, would have been incapable, from an infirmity of body or mind, of discharging the duties of his office at the time of his resignation or retirement, that infirmity being determined, pursuant to s 10B(3) or on appeal, to have been caused by the member being hurt on duty or the former member having been hurt on duty when he was a member of the Police Force, as the case may be; "retired " includes discharged as referred to in s 7 or 14;