Industrial Relations Commission of New South Wales in Court Session CITATION : 'H' v First State Super FSS Trustee Corporation [2003] NSWIRComm 395 APPELLANT Ms 'H' PARTIES : RESPONDENT First State Super FSS Trustee Corporation FILE NUMBER: IRC5864 of 2002 CORAM: Peterson J CATCHWORDS : Superannuation - Superannuation Appeal - Orders - Quantification - Money Value - Interest. LEGISLATION CITED : First State Superannuation Act 1992 HEARING DATES: 11/07/2003 DATE OF JUDGMENT: 11/14/2003 APPELLANT Mr I J Collins SOLICITOR Higging & Higgins LITHGOW. LEGAL REPRESENTATIVES: RESPONDENT Mr L J Ellison of counsel SOLICITOR SAS Trustee Corporation JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 14 NOVEMBER 2003 Matter No. IRC5864 of 2002 H v FIRST STATE SUPER FSS TRUSTEE CORPORATION Application by Ms H to appeal against the decision of the First State Super FSS Trustee Corporation given on 28 May 2002. SUPPLEMENTARY JUDGMENT 1 This matter was the subject of a primary judgment given on 16 September 2003 concerning the appellant's claim, by way of appeal, for the payment of an invalidity benefit due to her alleged permanent incapacity for any form of relevant employment. 2 The conclusion was drawn that the appellant, now referred at her request and with the consent of the respondent as Ms 'H', was entitled to an order to the effect that she is totally and permanently incapacitated pursuant to s 38(1) of the First State Superannuation Act 1992. 3 It was also necessary to resolve an issue between the parties in the event that the order referred to in the immediately preceding paragraph was to be made. That issue concerned the amount of the payment due to the appellant. I identified that issue as one to determine the applicable amount out of two thought to be presented, namely $29,000 or as Ms H claimed, $63,750. The conclusion was drawn that the appropriate sum to which she was entitled under the scheme was $29,000. This depended upon her death or invalidity payment being identified by way of insurance cover as $29,000 at 30 June 1998 and that applicable on 1 July 1998 as $63,750 "subject to acceptance by the insurer". 4 The appellant did not perform any work on or after 1 July 1998 and was not able to establish that the higher rate of cover was accepted by the relevant insurer and, consequently, the lower sum was regarded as the appropriate one. 5 In seeking to draw together an order, the parties have identified two supplementary issues: 1. The quantification of the lump sum payable; and 2. interest on that lump sum. 6 The amount of compensation payable to the appellant is not flexible; the amount is that which is due under the relevant superannuation scheme. While, in the primary judgment I identified the sums in dispute as $29,000 or $63,750, the lower of those two sums is an amount which is dependent upon the date upon which the appellant's employment actually ceased. The respondent contends that the correct sum is $26,000, that sum being referable to a termination of employment date of 6 February 2000. The respondent contends that the identification in the primary judgment of the sum of $29,000 was in effect an error which is correctable according to the slip rule. The appellant argues for the higher sum but accepts that the court may correct the error if such is found. I should observe that the respondent has already paid the appellant the sum of $26,000 and awaits the finding of the Commission as to the balance. 7 The respondent contends that the records of the Opera House show that the appellant's employment ceased on 6 February 2000. The appellant contends that the date of cessation of employment was December 1997, that being the last day of work. In that respect, the appellant relies upon an observation I made in par. [12] of the primary judgment which was in the following terms: 12 On 20 August 1998 she made application to the respondent for payment of a benefit identifying the employer who paid FSS contributions for her as the Sydney Opera House Trust and her date of cessation of employment as 7 December 1997. The basis of the application was identified as "I have retired on the grounds of total and permanent incapacity". 8 That paragraph does not express a conclusion by the Commission that the appellant's employment ceased at that date but rather what she herself was indicating to be the position. In the primary proceedings there was no particular issue between the parties advanced for determination that one date was to be preferred over another. The issue has arisen since my reliance upon the notice to the appellant identifying her particular potential cover. It is thus necessary that I now determine the actual date of termination of the appellant. 9 The appellant advances the view that the subsequent termination was artificial in the sense that it took place in the context of workers' compensation proceedings. The respondent submits that the records of the Opera House show the cessation of employment as 6 February 2000. 10 The appellant accepts that December 1997 is not the correct time for determining the amount payable. If it were otherwise, that amount would be $33,000; that is not being claimed. Despite that, an employment termination advice was provided in an uncertified form by the appellant which appears to indicate the last date of employment as 7 November 1997. 11 The evidence is not overly clear about this matter. The appellant's claim for benefit in August 1998 depended upon there being a termination of employment at that point. She advised that she was retiring on account of incapacity. At that time she was in the course of consideration in the context of the Workers Compensation Act and the resignation was one necessary in that context not to evidence the actual date of resignation for present purposes but for the purpose of enabling the workers' compensation issue to be finally resolved. 12 In September 1998 the appellant wrote to the Sydney Opera House Trust seeking payment of what appears to have been accrued extended leave to meet then current medical expenses. This is inconsistent with the notion that she had previously resigned or retired, the letter making no reference to that fact. 13 There is however now tendered on this point evidence which demonstrates that the appellant received income in the financial year ended 30 June 1999, although of a limited amount, and was recorded in the Sydney Opera House website listing of staff as a person who did perform work during that year. 14 I consider in the circumstances that it is not possible for the court to view 7 December 1997 as of any relevance other than being the last day on which the appellant performed work prior to her proceeding on leave due to her injury. The August 1998 date is equally uncertain given the later events to which I have just referred. In these circumstances I find that the appellant's date of termination was 6 February 2000. 15 As to interest, the respondent has submitted that given some of the findings against Ms H's interest which were made in the primary judgment, that the court's discretion with respect to interest ought influence the result against her receiving full interest at the Supreme Court rate for the period from the date of termination of employment. I am unable to view the matter that way. The justice of the case seems to me to require that the appellant be reimbursed for her loss by way of interest on the sum which fell due to her on the relevant date. That seems to me to be an entitlement which ought not be diminished by reference to her subsequent actions. I would therefore give her interest at the Supreme Court rate on the sum of $26,000 from 6 February 2000. 16 The parties may file short minutes of order which will encompass these matters. 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