Industrial Relations Commission of New South Wales in Court Session CITATION : Ford v SAS Trustee Corporation and Anor [2000] NSWIRComm 92 APPLICANT Roger Francis Ford PARTIES : FIRST RESPONDENT SAS Trustee Corporation SECOND RESPONDENT Commissioner of Police FILE NUMBER: IRC 1878 of 1999 CORAM: Hungerford J Superannuation - Application for declarations of right - Length of service for calculation of superannuation benefits - Either annual superannuation allowance or lump sum gratuity of 2 years' salary - Service of 20 years or more - Meaning of "special leave without pay which is sick leave" - Whether "leave without pay" because of medical condition qualifies as "sick leave" for inclusion as service being special leave without pay - Function of trustee - Effect of decision by employer as to nature of the leave - Jurisdiction to make declaratory orders - Whether in relation to an industrial matter - Whether in relation to a superannuation appeal - Jurisdiction upheld - Principles for grant of declaratory relief - Discretion - Purported settlement of claim - Continuing controversy between parties - Declarations made. Police - Entitlement to special sick leave without pay - Absence on leave without pay because of medical condition - Whether truly sick leave so as to be treated as such - Failure of employer to notify police officer of leave accrued and available - Relevance of employer's decision as to nature of leave for superannuation purposes - Function and role of trustee of Police Superannuation Fund in deciding qualifying period of service. Practice and Procedure - Declaration of right - Principles for declaratory relief - Jurisdiction to grant - "In relation to a matter" within jurisdiction - Real controversy between parties - One respondent submits, the other respondent opposes orders claimed - Proper contradictor available - Circumstances affecting exercise of discretion. CATCHWORDS : Industrial Relations Act 1996 s 6(1) s 6(2)(c)(g)(h) s 10 s 136 s 153(1)(h) s 154 s 174(b) s404 s 405(1)(b) Police Regulation (Superannuation) Act 1906 s 3(1) s 5A s 7 s 8 s 14 Sch 6 cl 2 Police Superannuation Regulation 1995 cl 6 Superannuation Administration Act 1996 s 4 s 40 s 49 s 50 s 51 s 57 s 66 s 67 s 88 Sch 3 cl 19(1) LEGISLATION CITED : Police Service Act 1990 s 8 s 84 s 85 s 218(1) s 219(2)(c) Police Service Regulation 1990 cl 94(1) cl 96(1) Superannuation Legislation (Further Amendment) Act 1993 Sch 2(3) Sch 2(15) Interpretation Act 1987 s 30(1) Superannuation Administration Act 1991 (repealed) s 44 Police Regulation Act 1899 (repealed) Police Rules 1977 (repealed) r 76(1)(a) r 77A Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Ford v State Authorities Superannuation Board (unreported, Marks J, CT93/1024, 14/10/94) The Russian Commercial & Industrial Bank v British Bank for Foreign Trade [1921] 2 AC 438 The King v Kelly, ex parte The State of Victoria (1950) 81 CLR 64 Fencott v Muller (1983) 152 CLR 570 Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 Atlantis Relocations (NSW) Pty Ltd (formerly known as Atlantis Removals Pty Ltd) v Department of Industrial Relations (Inspector O'Regan) [1997] NSWIRComm 185 CASES CITED : Re Glass Workers' Redundancy (State) Award [1998] NSWIRComm 297 Poletti v Ecob [1989] 30 IR 343 Australian Bank Employees' Union v Australia and New Zealand Banking Group Ltd (unreported, Federal Court, von Doussa J, 12/09/89) Nomal Industries of Australia Pty Ltd v Commissioner of Taxation [1983] 2 NSWLR 56 Hollingsworth v Commissioner of Police (1998) 47 NSWLR 104, (1998) 81 IR 276 Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648, (1999) 93 IR 1 Maxwell v Murphy (1957) 96 CLR 261 Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 HEARING DATES: 11/22/1999; 12/14/1999; 02/01/2000; 02/11/2000; 03/13/2000; 05/24/2000 DATE OF JUDGMENT: 06/07/2000 APPLICANT Ms K T Nomchong of counsel SOLICITOR Mr M H Atkinson Bateman Battersby FIRST RESPONDENT Mr B Matthews LEGAL REPRESENTATIVES: Solicitor SAS Trustee Corporation SECOND RESPONDENT Mr G J Willis of counsel SOLICITOR Mr F Hutchison Police Service of New South Wales JUDGMENT: - 66 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HUNGERFORD J Wednesday, 7 June 2000 Matter No IRC 1878 of 1999 ROGER FRANCIS FORD v SAS TRUSTEE CORPORATION AND COMMISSIONER OF POLICE Application for declarations pursuant to s 154 of the Industrial Relations Act 1996 re length of service for superannuation benefits. JUDGMENT 1 The applicant, Roger Francis Ford, has asked the Court to make declarations of right under s 154 of the Industrial Relations Act 1996 in relation to the length of his service as a police officer in the Police Service of New South Wales for the purpose of enabling the proper calculation of his statutory superannuation benefits following his medical discharge from the Police Service on 21 September 1995. The issue 2 The issue concerned the true nature of the applicant's absence from duty, whether as leave without pay or as special leave without pay (sick leave), from 5 August 1989 to the date of discharge (or some earlier date). If the leave be of the former type then the superannuation benefit would be a lump sum whereas if of the latter type it would be the considerably more favourable annual superannuation allowance as a percentage of the salary of office concerned. The differing benefits arise because the entitlement to an annual superannuation allowance on discharge requires the completion of at least 20 years' service as a police officer whereas if the service is less than 20 years the entitlement is a gratuity of 24 months' pay at the salary rate at the date of discharge. 3 The applicant joined the then Police Force of New South Wales, later the Police Service, on 16 February 1970 and his commencement date as a member of the Police Superannuation Fund was 26 March 1970; he served on a continuous full-time basis until 5 August 1989 when he commenced leave without pay. Thus, his eligible service to that date for superannuation purposes was 19 years and 4 months. It was common ground that if he had been on sick leave allowed as special leave without pay from 5 August 1989 for a period of nearly 8 months until 25 March 1990 then he would have qualified for the annual superannuation allowance. As it was, he was on leave without pay, albeit as he claimed due to a medical condition, until his discharge from the Police Service on 21 September 1995. But, because the leave was not sick leave or special leave the period of absence was excluded as service for superannuation purposes. Seen in that way, the ultimate issue for determination is quite confined and straightforward, although it might be added that due to the statutory scheme involved, the passage of time and the positions taken by the parties it is deceptively so. Relief claimed 4 The relief sought by the applicant as against both the first respondent, the SAS Trustee Corporation, and the second respondent, the Commissioner of Police, originally sought a declaration to the effect that the period from 5 August 1989 to 21 September 1995 was special leave without pay that was sick leave. However, after a number of amendments, made by consent during the hearing, the relief finally sought was in the following terms : 1. A declaration that the Applicant is entitled to be paid superannuation benefits in accordance with section 7 of Police Regulation (Superannuation) Act 1906 on the basis that the Applicant had completed 25 years of service. 2. Further, or in the alternative, a declaration that the Applicant accrued 25 completed years service for the purposes of section 7 of Police Regulation (Superannuation) Act 1906. 3. Further, or in the alternative, a declaration that the Applicant was on special leave without pay that was sick leave for the period 5 August, 1989 to 21 September, 1995. (Counsel for the applicant conceded that the date of 21 September 1995 may have to be 4 August 1991 depending upon findings made as to certain statutory provisions so that the "25 completed years" referred to would then become "21 completed years".) 5 Section 154 of the Industrial Relations Act , relied upon by the applicant to support the relief sought, provides : 154 Declaratory jurisdiction (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought. Course of the proceedings 6 Apart from any complexities arising in relation to a consideration of the merits of the applicant's claim, and there were some, the course of the proceedings itself was somewhat unusual. It is necessary to explain what occurred by summarising the way in which the proceedings developed as follows - (1) The original application was filed on 28 April 1999 and named the SAS Trustee Corporation as the sole respondent for a declaration that the applicant was on special leave without pay that was sick leave from 5 August 1989 to 21 September 1995. The respondent on 16 June 1999 entered an appearance to that claim. (2) The then sole respondent took the view, however, that the proper respondent to the application was the Police Service of New South Wales and not it because the issue was the nature of the leave, but with an effect on the superannuation benefit, while the applicant was still a member of the Police Service. Consequently, on 1 July 1999, process was served on that body as the second respondent. (3) On 19 August 1999, the second respondent, styled however as the Commissioner of Police, filed a notice of motion for an order that the applicant's claim be struck out as against the second respondent for want of jurisdiction. The proceedings were thereupon referred from the Industrial Registrar's list to the Court as presently constituted. (4) At a directions hearing on 2 September 1999, counsel for the Commissioner of Police indicated that the appropriate respondent was the Commissioner, and not the Police Service, as the decision complained of by the applicant as to the nature of the leave without pay was made by the Commissioner or his delegate. Over the objection of the second respondent, I ruled that the motion challenging jurisdiction would not be heard as a preliminary point but as part of the substantive proceedings. The matter was otherwise subject to directions to ready it for hearing. (5) On 15 October 1999, the first respondent filed an amended appearance submitting to the orders of the Court, save as to costs. (6) The hearing commenced on 22 November 1999 and, in opening, counsel for the applicant was granted leave, by consent, to substitute the Commissioner of Police as the second respondent in lieu of the Police Service. (7) The hearing resumed part-heard on 14 December 1999 at the commencement of which counsel for the applicant sought to further amend the application by adding proposed declarations in terms to effectively entitle the applicant to an annual superannuation allowance on the basis he had accrued in excess of 20 years' service by being on special leave without pay that was sick leave from 5 August 1989 to 4 August 1991. Both the first and second respondents consented to the application being so amended; the first respondent continued its submitting appearance. The hearing continued and was adjourned part-heard to 13 March 2000. (8) Then, at the request of the applicant, the matter was restored to the list on 1 February 2000 when the Court was informed by counsel for the applicant that the matter had settled on 23 December 1999 and separate short minutes of order were prepared as between the applicant and each respondent to give effect to the agreement. The short minutes were signed by counsel for the second respondent on 24 December 1999 but by letter dated 10 January 2000 the solicitor for the second respondent indicated that he did not consent to the proposed declarations settled as between the applicant and the first respondent; the first respondent thereupon declined to sign the short minutes. The applicant was thus placed in a dilemma. (9) After some discussion regarding possible enforcement of the alleged agreement, a matter not then nor subsequently furthered by the applicant, the solicitor for the second respondent expressed the view that the matter had not concluded and another hearing date should be set. The solicitor for the first respondent then indicated it would sign the short minutes "if the Court before it made the orders was satisfied that the orders could be made". At that stage, the Court had not been given the short minutes, although I expressed the view that as "declarations of right are not made by consent without enquiry … I would have to in any event myself be satisfied that the declarations of right ought to be made". Also, I noted that the Court had already conducted a hearing lasting 2 days during which extensive submissions had been put both as to the jurisdiction to make the proposed declarations and on issues of merit. Nevertheless, the solicitor for the first respondent then indicated in those circumstances he would thereupon sign the short minutes, and he did so. The applicant then tendered them and sought orders by consent. (10) The short minutes as between the applicant and the first respondent stated : In relation to the proceedings insofar as they relate to the First Respondent, by consent, the Commission in Court Session makes the following orders : 1. A declaration that, having regard to the circumstances of the Applicant's employment with the Second Respondent, that the Applicant is entitled to be paid superannuation benefits in accordance with section 7 of the Police Regulation (Superannuation) Act, 1906 - to be calculated as if the Applicant had completed 21 years of service. 2. Each party to pay their own costs. 3. The hearing date of 13 March, 2000 is vacated. (11) The short minutes as between the applicant and the second respondent stated : In relation to the proceedings insofar as they relate to the Second Respondent, by consent, the Commission in Court Session makes the following orders : 1. The proceedings as against the Second Respondent are dismissed. 2. Each party to pay their own costs. 3. The hearing date of 13 March, 2000 is vacated. (12) The difficulty which the Court then faced in processing the matter may be illustrated by what the second respondent's solicitor submitted : KERR: In relation to the declaration that has been proposed to be made, I just point out the provision of section 7 becomes operative when a police officer serves 20 years or more of service. There seems to be a requirement that there be 20 years service and no other provision for any other period of time to be substituted for that order. I have concerns as to whether a declaration in those terms can be made given the provisions of the legislation. That is my only comment about the declarations that have been sought, your Honour. The solicitor for the first respondent advised it continued its submitting appearance. (13) In the circumstances, the hearing was adjourned to permit the parties to confer in an endeavour to reformulate appropriate orders to give effect to what appeared to be an agreed result, even though it was made clear for the second respondent he would "not consent to any declarations in relation to length of service. That is very much contested as is jurisdiction". (14) At the resumed hearing on 11 February 2000 the positions of the parties were unchanged. The difficulty then confronting the Court may be best illustrated by the following extract from the transcript of the proceedings on that day : KERR: In relation to that declaration, I make the same comments that I did on the last occasion. I think your Honour has to consider whether that declaration can be made when looking at the terms of s 7 of the Act. I don't know if you wish me to repeat comments that I made on that occasion? HIS HONOUR: You say that he either had 21 years of actual service, or he didn't; and he didn't. KERR: Yes. Our position is quite clear on the issue of service. HIS HONOUR: Can I ask this: Do you persist in the submissions which Mr Willis put on the last occasion in relation to this proposal, as to jurisdiction? KERR: Yes. HIS HONOUR: This is indeed a strange case. You see I have an agreement represented by the short minutes as between the applicant and the second respondent which, if the orders are made - and I assume you ask me to make them? KERR: Yes. HIS HONOUR: Which then removes you from the proceedings. I then have short minutes proposed between the applicant and Mr Matthews' client, asking me to make certain orders. What Mr Matthews says is that all the Court has to be satisfied of is that they are appropriate to be made. I think that is right Mr Matthews? MATTHEWS: Yes, in effect. If I could just say my very short piece to that effect: Having been reassured on the previous occasion that the Court would have regard to whether the consent orders may legally be made, the first respondent is content to leave the matter to the Commission. I think that is effectively our position. HIS HONOUR: Thank you. You see the position which results? KERR: Perhaps if I put it in this way - it is a matter for your Honour. (15) The above comments are to be seen in the context that under the relevant superannuation legislation the first respondent had various functions, including to administer the Police Superannuation Fund, to ensure benefits payable thereunder were paid in accordance with the legislation and to determine disputes under the legislation; in performing its functions, the first respondent had the power to compromise or otherwise settle any claim made against it. Therefore, the terms of the declaration as agreed between it and the applicant would be effective in resolving the applicant's claim in his favour. On the other hand, the second respondent had no role in relation to the entitlement to and payment of benefits from the Police Superannuation Fund other than the prior function of allowing leave, either as special leave or ordinary leave and with or without pay; declaration 3 in the further amended application related to that but the proceedings as against the second respondent were, by consent, to be dismissed. (16) In the result, I made the following statement : I am faced with the deliberate jurisdictional impediment. Now to decide the jurisdictional question, I can't decide that in vacuum, I have got to decide it in accordance with the facts and many of the facts, if I might say so, have been put in issue by Ms Kerr's client. So they are disputed facts. They are not agreed. So I am going to have to make findings on them and then, having made findings, I have got to deal with the Commissioner's jurisdictional argument. Now even if all of that is satisfied in your favour, one then says: "Well what orders are to be made?" Well it may be that the consent orders which are proposed may not be entirely within jurisdiction, subject to some changes. So rather than making consent orders, where all of the parties come before me and say "We have got a consent position" I have got to change that or vary it. Can you understand the position the Court has been put in? And I am not being critical here, I understand the problems and I am trying to see a way through; but you can understand the position. So my reaction to all of that is, well, having all of that in mind I will hear the parties finally on 13 March and I will decide the issues. It may be in accordance with the short minutes by consent, it may not. (17) In short, the supposed agreed position put by the parties essentially involved the second respondent saying he should be dismissed from the proceedings but no orders should be made in the form as settled between the applicant and the first respondent. The difficulty in the Court proceeding to simply make orders by consent in terms of the short minutes will, therefore, be obvious. (18) The hearing then resumed on 13 March 2000. The first respondent appeared as a courtesy only and continued its submitting appearance; no submissions were made for it. On hearing final submissions from the applicant and the second respondent, the decision was reserved. 7 I have gone to some little length to refer to the course of the proceedings and, in particular, the circumstances concerning the apparent settlement of the claims because I think the settlement of a matter is of considerable importance and should, although the Court may not be bound thereby in making declarations of right, be given great respect. In the ordinary course, a consent position would likely be given effect by the making of orders in the terms sought: see s174(b) of the Industrial Relations Act and the overall discretion contained therein to do so. Here, however, it will be clear there was at best a conditional agreement which required the Court, in any event, to decide the substantive issue, namely, the true nature of the applicant's absence from police duties from 5 August 1989 to 21 September 1995 either as leave without pay or as special leave without pay which was sick leave. It was that issue which, rightly or wrongly in light of the consent orders proposed, continued in dispute between the applicant and the second respondent. It represented a real controversy between them as involving the applicant's right to an annual superannuation allowance rather than a lump sum payment under the relevant superannuation legislation. Whilst one may sympathise with the applicant who thought he had achieved his goal of an annual superannuation allowance by consent, I am of the view that the controversy must be subject to the Court's jurisdiction and, if it be so, where it is appropriate as a matter of discretion to make the declarations sought. 8 Finally on this aspect of the alleged settlement, and in light of the importance I place on parties being able to amicably resolve their differences by reaching a mutually satisfactory accommodation, I convened a hearing in chambers on 24 May 2000 to provide the parties with a final opportunity to reach a compromise. Despite what I think was a genuine endeavour, regrettably they were unable to do so. Therefore, I must proceed to determine the claims. In doing so, and although aware of the terms of the alleged settlement, I do not regard myself in any way as being bound or influenced thereby - the issues are to be determined in accordance with the evidence and submissions before the Court. Principles for declaratory relief 9 Given the general power of the Court to make a binding declaration of right under s 154 of the Industrial Relations Act , subject to it being in relation to a matter in which there is jurisdiction and as to which I will return, the present approach adopted in terms of principle to the grant of a declaration was stated in the following way by Gibbs J, as he then was, in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-438 : It is neither possible nor desirable to fetter the broad discretion by s 10 by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at p 448, should in general be satisfied before the discretion is exercised in favour of making a declaration : "The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought." Beyond that, however, little guidance can be given. As Lord Radcliffe said in Ibeneweka v Egbuna [1964] 1 WLR 219 at p 225: "After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration." I will so approach the present matter. Agreed statement of facts 10 The essential facts in this matter, including the way in which they developed, were agreed between the parties as set out in a statement in the following terms : 1. The Applicant commenced service with the NSW Police Service on 16 February, 1970. 2. The Applicant was first stationed at Liverpool Police Station on general duties, where he remained until approximately April, 1972. On about that date, he was transferred to general duties at Green Valley Police Station where he remained until approximately June, 1978. 3. Whilst Working at Liverpool and Green Valley Police Stations, the general duties undertaken by the Applicant included, amongst other things, attending accident scenes, attending domestic violence disputes, attending drug related incidents and attending post mortem examinations. 4. In or about June, 1978 the Applicant transferred to the Fingerprint Section at Police Headquarters in Sydney. 5. In March 1979, the Applicant was promoted to Senior Constable. 6. In September, 1981 the Applicant transferred to Bankstown Police Station and again undertook general duties until his transfer in January, 1982. At that time the Applicant moved to Bass Hill Police Station where he stayed until 19 December, 1988, during which time he became a sergeant third class. 7. The Applicant undertook general duties at the Bass Hill Police Station and in or about late 1986, the Applicant was also given the duties of Education Officer in the Bankstown Region being responsible for certain education programs for probationary constables and police officers in the area. 8. In or about late 1988 the Applicant declined to wear any of his appointments namely, his gun, baton and handcuffs. The Applicant was counselled by the Inspector in Charge of Bass Hill Police Station. Inspector Simpson directed the Applicant to wear his appointments but he declined to do so. The Applicant was then referred to the Police Medical Officer on 18 December, 1988. 9. The Applicant was removed as Education Officer on 19 December, 1988 without notice and was placed on restricted duties at the Bass Hill Police Station where he had no contact with the public or prisoners. 10. As at July, 1989, the Applicant had taken various periods of sick leave. 11. On 18 July, 1989, the Applicant made an application for 12 months leave without pay. 12. On 19 July, 1989 Inspector Simpson supported the Applicant's application for leave without pay. His endorsement to that effect is to be found on the bottom of the application. 13. The Applicant commenced leave without pay on 5 August 1989 and did not resume duty with the New South Wales Police Service. 14. At the time of making his initial application for leave without pay, the Applicant had applied to be medically discharged from the Police Service. 15. Between the date of the first application for leave without pay and the Applicant's medical discharge, the Applicant made numerous applications for further periods of leave without pay - all of which were approved by the Second Defendant. 16. On the 21 August, 1992, the First Defendant declined to issue a certificate pursuant to s 8(1) of the Police Regulation (Superannuation) Act 1906 to certify that he was "incapable from an infirmity of body or mind" of discharging the duties of a police officer. 17. On 3 February, 1993 the Applicant appealed to the then Industrial Court of New South Wales pursuant to s 44 of the Superannuation Administration Act in proceedings being matter No. CT1024 of 1993. The Second Defendant was not a party to those proceedings. 18. His Honour Justice Marks heard the matter and gave judgment on 14 October, 1994. His Honour found that the Applicant was incapable from an infirmity of mind of discharging the duties of his office and issues a certificate in accordance with s 8(2) of the Police Regulation (Superannuation) Act 1906. 19. The Applicant was subsequently medically discharged from the Police Service with the last day of service being 21 September, 1995. At that time, the Applicant was still on leave without pay. 20. On the 9 January, 1996, the First Defendant advised the Applicant that the period between 5 August, 1989 and the last day of service, 21 September, 1995, did not count for eligible service for the purposes of the superannuation payout and accordingly, the Applicant was to be granted a benefit on the basis of total service of 19 years and 4 months service. 21. The benefit that accrued at that time was a lump sum gratuity pursuant to s 14 of the Act in the amount of 24 months pay at the rate of his salary of office at the date of his discharge. 22. On 24 January, 1996 the Applicant's solicitors wrote to the Second Defendant seeking to have the Applicant's leave without pay reclassified as "special sick leave without pay" in respect of the period 5 August, 1989 to 21 September, 1995. 23. On the 24 January, 1996 the Applicant's solicitors again wrote to the NSW Police Service making the same request and enclosing a copy of the decision of His Honour Justice Marks dated 14 October, 1994. 24. On the 23 December, 1996 the NSW Police Service wrote to the Applicant's solicitors advising that the request for special sick leave had not been approved. The applicant's evidence 11 The agreed facts were supplemented by affidavit material filed on behalf of the applicant and of the second respondent. The applicant gave oral evidence and was the only witness cross-examined. His evidence was directed to the circumstances in which he first applied for leave without pay by written application dated 18 July 1989, having in late-1988 applied to be discharged from the Police Service on medical grounds following certain difficulties in and incidents which occurred during the performance of his duty. As to that initial application for leave without pay and a second application made about 12 months later, the applicant gave this evidence : Q. Could you please tell the Court what was said during the course of that conversation and if you could put it in direct speech such as "I said", "he said"? A. Yes. I was - a short time prior to this I was directed to Inspector Simpson's office which I acceded to. When I sat down there, he had said me he said, "You know that the motivation around here is very bad with your presence. He said the moral at this station is made very bad by your presence." What he meant by that was - Q. Just say what the Inspector said? A. He said "I know how you feel. You are not really doing much here in regard to what your rank is and your position in the station here is." He said, "My suggestion is to - and he said I also know you have got an application in to the Police Board for medical discharge." He said, "I think the best way around this is for you to take leave without pay. You do the report and he said I will sign the bottom of it and you will get leave without pay." I then acceded to Inspector Simpson's request and submitted the application. Q. At the time that you had that conversation did Inspector Simpson give you any information at all about your current leave entitlements? A. No, he never gave me any indication. As a matter of fact it wasn't until this morning - the answer to that is no. Q. And as at 18 July 1989 what was your understanding of your leave entitlements at that stage? A. My understanding was that I had already used up all my entitlements of sick leave, holiday pay et cetera. Q. As at the date that you filled out the application you were on restricted duties? A. That's correct, I was. Q. And you had been on restricted duties since referral to the police medical officer some four months beforehand? A. That's correct. Q. In terms of your medical condition would you please tell his Honour what symptoms you were experiencing as at the time that you filled out the application for leave without pay? Q. At the time I was suffering from nausea, I couldn't sleep. I was very very short tempered. I had problems at home, weren't getting better because of my condition and just overall I was different to what I used to be. It's a long time ago. I'm just going back just trying to recollect that. I just suffered from nausea. My memory was getting worse as well at the time and I had been drinking a lot of alcohol prior to that which I think at that stage I had stopped doing and I was just undergoing a lot of internal and stressful problems with myself. Q. About one year later did you make a second application for leave without pay? A. I did. Q. Prior to making that application did you have a conversation with anyone at the New South Wales Police Service? A. Inspector Simpson rang me up and said your 12 months have expired. I want you to come in now to fill another application form in for the time and I will do the same again, sign the bottom and you can be off for 12 months. Q. At that time you had that conversation did Inspector Simpson or anyone else from the New South Wales Police Service give you any information about your leave entitlement? A. No. Q. And at that time what was your understanding of your available leave entitlements? A. At the that stage it was like I have said before, I thought I had already expended everything. 12 Under cross-examination, he was challenged at having made an earlier inconsistent statement in evidence in proceedings before Marks J in this Court on his superannuation appeal as to whether he had applied for the leave without pay at his own request or at the instigation of Inspector Paul Simpson as the Patrol Commander of Bass Hill Police Station. That earlier evidence was to this effect : Q. Did you continue on in restricted duties for some 8 months until August 89? A. I think it was about August 89. I put an application to take 12 months leave without pay. Q. What was your motivation in doing that? A. Well, to me it was silly going to work every day for 8 hours work and it was very very boring to me. It was a waste of my life. … Q. Can I suggest to you in any event that you went on leave without pay at your own request? A. My own volition, yes. Q. And it was extended on each occasion at your own request? A. Every extension on my own request they acceded to it. 13 Much of the balance of the applicant's cross-examination was directed to his knowledge of his then existing sick leave credits as at August 1989 and his knowledge of an entitlement to apply for an extension of sick leave as distinct from continuing merely on leave without pay; reference was made to various circulars and publications produced by the Police Service for the information of police officers on such issues. The applicant's general response was that he was unaware of the position and relied upon what Inspector Simpson told him - the applicant said that "during the conversation the way it was phrased and explained to me this was the only way I could take action because to overcome the situation was to do it in this way which I went along with"; he agreed he made the application for leave without pay because Inspector Simpson had presented that position to him. The applicant gave this evidence on the specific point : Q. Mr Ford, so far as your application for leave without pay was concerned, making that application was something that you did of your own accord, was it not? A. No. As I said, it was drawn to my attention by Inspector Simpson. Q. But taking leave without pay was something that you wanted to do? A. That was the only alternative at that stage. That was given to me to overcome the problem we had down the station, and I suppose for my own personal self as far as my health and well-being was concerned. Q. You didn't want to be involved in doing that menial work any longer, did you? A. Well, I suppose if I had no alternative, I would have had to continue that. When the alternatives came up for me to overcome the problem I accepted that request and went on with it. Q. You didn't want to be involved in the Police Service any longer, did you? A. At that stage? Q. Yes? A. It's a long time ago. I'm trying to think, I'm sorry, about this. Put it this way, if I had an opportunity to go back today, the answer to that would be no. Q. What about as at July 1989, you didn't want to be involved in it any more? A. Considering the job allocation and my career path and the job had finished and to spend the next umpteen years doing what I wouldn't call a real uplifting job for me to at least give my well-being back together again. 14 Also, the applicant was cross-examined about his interest in a video shop as being a reason at the time to take leave without pay. He gave the following evidence : Q. As at July 1989, at that time, you had an interest in a video shop, did you not? A. I was - I had a part interest in the video shop with my brother-in-law. Q. You had had that interest for a period of about three years at that time? A. I think it was late '89, or something. Q. You had not only had an interest in it in a financial sense, but you had worked at the video shop? A. Part-time, yes. Q. For that period from 1986, this was the time you went on leave without pay in 1989? A. Yes; from memory, yes. Q. And how often did you work in the video shop? A. As I said, I'm not too sure. A matter of hours. It would have been 10, 15 hours a week, if that. Q. When you went on leave without pay, you then, immediately after, commenced to work full-time in the video shop, did you? A. No, not full-time. I did a bit of part-time work over there as well. Q. I'm sorry, you did part-time? A. I did part-time. I'm not too sure when I started over there full time. Q. It wasn't immediately after you went on long service leave? A. To the best of my recollection. Q. Leave without pay? A. To the best of my recollection, at that stage, no. Q. And you had been involved, in the sense of managing that video shop, since that time, haven't you? A. Since which time? Is that since -- Q. Since July 1989? A. No, my brother-in-law was the manager of the store. Q. Wasn't that one of the reasons why you wanted to take leave without pay from the Police Service? A. No. 15 The terms of the applicant's leave without pay application of 18 July 1989 stated : 1. I wish to make an application to take 12 months leave without pay. 2. I am presently on restrictive duties as directed by the Police Medical Officer which enables me to perform clerical duties and not to have continuous contact with the public. 3. I have lodged an application to go before the Police Medical Board to be considered unfit for Police duties and to be boarded out on medical grounds. 4. On consultation with my Psychiatrist Dr. Strum it was considered that my health would not improve until I was devoid from my present occupation. At this stage my recovery is still paramount to my occupation and therefore I consider that I cannot carry out my present duties effectively. 5. Perhaps consideration could be given for this leave to be approved for commencement from the pay period ending 5 August, 1989. I will make arrangements for the necessary deductions and superannuation as per the circular. 6. I desire that my superannuation contributions for first three months be by payment on a fortnightly basis of normal deductions whilst on leave (para 12 (11) of Circular 87/18 Annexure 2. 16 Inspector Simpson's supporting comment endorsed thereon on 19 July 1989 stated : Forwarded for favourable consideration. Sergeant Ford is of little use to me at the present due to his medical condition. There is also a staff moral ( sic ) problem caused by his attitude. It would be of great assistance if this leave was granted as soon as possible so that he has an opportunity of inprove ( sic ) his health condition and I have an opportunity to improve moral ( sic ) within the other staff at Bass Hill. The second respondent's evidence 17 Kathleen Margaret Kerr, solicitor for the second respondent, said in an affidavit sworn on 19 August 1999 that between the date of the first application for leave without pay and the date of his medical discharge on 21 September 1995 the applicant made numerous applications for further periods of leave without pay which were all approved. For instance, in an application dated 25 July 1990 for an extension of the leave without pay, the applicant stated : 1. I wish to make an application to take a further 12 months leave without pay. 2. I have an application to go before the Police Medical Board to be considered for discharge on medical grounds. This application is still being considered as I have appealed against their original decision. 3. Due to this fact I consider that I am not in the position to return to work. 4. Perhaps this application could be approved as soon as possible as I am due to return to work on 6 August, 1990. 18 In an affidavit sworn on 5 November 1999 by Mark Gilchrist, Acting Manager - Personnel in the Personnel Branch of the Police Service, the sick leave entitlements of police officers in August 1989 and the particular position as to leave concerning the applicant were indicated in the following way : 2. In August, 1989, non-commissioned police officers could be granted up to 75 calendar days sick leave in any 12 month period. During the period 6 August, 1988 to 5 August 1989, Mr Ford had availed himself of 71 calendar days sick leave, leaving an entitlement of 4 calender days. 3. In addition to 4 calendar days sick leave, Mr Ford had 3 calendar days Annual Leave, 7 working days Accrued Leave and 1 day Additional Leave available to him on 5 August, 1989. Mr Ford could have applied to avail himself of the 148.2 working days extended leave that was available to him at the 5 August, 1989, this leave could have been taken on either a full of ( sic ) half pay basis. Mr Ford could also have made an application for Sick Leave without pay or a grant of further sick leave. 4. The granting of Annual, Accrued, Additional and Extended leave is subject to the availability of the leave and the convenience of the organisation. 5. Sick leave without pay and a grant of further sick leave, or special sick leave as it is now known, was granted on a discretionary basis to police who were suffering from a protracted illness or injury that prevents their return to full duties, and who meet the criteria for the grant. Annexure A to this affidavit is NSW Police Circular No 88/220 dated 19 December 1988 titled "Closure of the Police Mutual Leave Fund - Procedures associated with sick leave and sick leave without pay". The Circular outlines the criteria for the grant of sick leave without pay or a further grant of sick leave or special sick leave as it is now known and represents the policy which would have been applicable to an application for sick leave without pay or grant of further sick leave or special sick leave as it is now known as at the 5 August, 1989. 6. Mr Ford could have applied for sick leave without pay or special sick leave as it is now known at any time at or after the 5 August, 1989, providing that he had exhausted all of his available Sick, Extended, Annual, Accrued and Additional Leave and that he was sick on sick leave at the time of his application. 19 It was the position that at the time he was on leave without pay the applicant was awaiting a decision on his application for discharge on medical grounds. Annexed to Mr Gilchrist's affidavit was a document entitled "Special Sick Leave Concessions" published in the Police Service Weekly on 17 June 1991 reflecting Police Service policy applicable at the time of the applicant's application for leave without pay on 25 July 1990. Relevantly, the article stated : Regulation 96(1) of the Police Service Act provides a discretion for the Commissioner to grant sick leave concessions to police who experience prolonged periods of ill health and who have exhausted all available leave due to them. However, all police are reminded that special sick leave concessions will only be granted in exceptional cases of hardship and no officer should expect to receive this benefit as a matter of course. It is intended to restrict the granting of special sick leave mainly to police who are in exceptional circumstances and who are awaiting a decision on their discharge from the Service on medical grounds. As a general rule, once normal leave entitlements expire, action will be taken by the Personnel and Staff Branch to place affected officers on sick leave without pay until they are fit to return to duty. It is expected that Districts will promptly advise the Branch of officers approaching the end of their entitlements to avoid the necessity to recoup overpayments. 20 It will be apparent from Mr Gilchrist's affidavit that the applicant as at August 1989 had all but used his available sick leave but, and notwithstanding the reason for the application for leave without pay based on medical grounds as known to and accepted by Inspector Simpson, no action was taken by the Personnel and Staff Branch of the Police Service - contrary to the expectation contained in the Police Service Weekly article - to place the applicant on sick leave without pay until he was fit to return to duty. Nor - contrary to what the article said - did Inspector Simpson promptly advise the Branch that the applicant was approaching the end of his entitlements so as to avoid the necessity to recoup overpayments. Importantly also, as the article stated, the facility of special sick leave was intended mainly for police officers in exceptional circumstances and who were, like the applicant, awaiting a decision on their discharge from the Police Service on medical grounds. It would seem clear from the evidence that the Police Service, regardless of the medical condition of the applicant, simply approved the grant of leave without pay to him but absent any advice or counselling of his options as to sick leave, either with or without pay, or other accrued leave available to him. Determination by Marks J of applicant's medical condition 21 The application made in late-1998 by the applicant for medical discharge required a certificate of incapacity from the then State Authorities Superannuation Board (now the first respondent) pursuant to s 8(1) of the Police Regulation (Superannuation) Act 1906 in terms that the applicant, having regard to medical advice on the condition and fitness for his employment, was "incapable, from infirmity of body or mind, of discharging the duties of (his) office". On 26 April 1990, the Police Superannuation Advisory Committee as the delegate of the first respondent declined to issue such a certificate and on 21 August 1992 the first respondent's Disputes Committee confirmed the refusal to so certify. 22 The applicant thereupon appealed to the then Industrial Court against the refusal and the matter was heard by Marks J. On 14 October 1994, his Honour in the matter of Ford v State Authorities Superannuation Board (unreported, CT93/1024) determined the appeal and issued the certificate on finding, as his Honour said, "that the appellant is incapable from infirmity of mind of discharging the duties of his office". A perusal of his Honour's judgment disclosed that in reviewing the challenged decision of the first respondent consideration was given to the circumstances of the whole of the applicant's employment as a police officer and, in particular, the difficulties experienced by him in performing his duties from 1988 until he commenced leave without pay in August 1989. Marks J referred to evidence from various medical practitioners, including the Police Medical Officer, who had examined the applicant from 1988 to 1994. Marks J also heard evidence from the applicant himself. In the result, his Honour concluded (at pp 39-40): I should add that I do not regard the appellant's disinclination to again work for the Police Force as a factor which of itself will disentitle him from succeeding in this claim. It is part and parcel of his overall condition and is a significant factor in the persistence of his feelings of anxiety and depression. His resistance to working in the Police Force stems from his experience in the Police Force. No suggestion has been made by the respondent that the appellant has been consciously feigning his symptoms or that he has been malingering. The appellant has been quite candid about his attitude to working again in the Police Force and why he resists any such move. If this were merely a question of a " lifestyle choice " or if it were merely a question of the appellant saying, without more, " I don't like working in the Police Force and I don't want to work there anymore " he would not be entitled, in my opinion, to succeed. The reasons are bound up in both the question of capability to perform the duties of his office as well as an examination as to whether there is " an infirmity of mind ". As I commented earlier, the same factors are present in a consideration of both matters. The infirmity of mind involves not only existing symptoms but also an underlying vulnerability to which I have already referred. It centres around the likely worsening of the appellant's symptoms upon return to work with the Police Force. The incapability of performing work is therefore in the nature of an inability to attempt work rather than an inability to perform work. Nevertheless, it remains an incapability as described in s 8(2) of the Act. For the above reasons I have come to the view, but admittedly not without some hesitation, that the appellant is not capable of performing any of the duties of any office within the Police Force even allowing for the offer of management, counselling and training. DOES INCAPABILITY RESULT "FROM" THE INFIRMITY OF MIND? It is a trite observation that the appellant's incapability of discharging the duties of any office in the Police Force, as I have held, is intimately bound up with his symptoms and his underlying vulnerability which are themselves associated with working within, or the prospect of working within the Police Force. In these circumstances it is quite clear that the incapability results from the infirmity of mind. 23 The certificate of incapacity was thereupon issued by his Honour and that judgment stands as between the applicant and the first respondent, although, as the second respondent submitted in the present proceedings, he was not a party to the superannuation appeal. Even so, it seems to me, the decision was an authoritative finding by a judge of this Court as to the medical condition of the applicant from 1988/89 for the purpose of assessing his incapacity for employment as a police officer. The applicant's evidence in the present proceedings, including the medical reports, was virtually a repeat of the material before Marks J as referred to in the judgment - it was not the subject of challenge here or of evidence to the contrary. I accept the evidence led for the applicant. Purpose of certificate of incapacity 24 Although not developed in the judgment, his Honour recorded (at p 1) that "the appellant requires a certificate pursuant to s 8(1) of the Act that he is incapable from infirmity of body or mind of discharging the duties of his office before becoming entitled under s 7 of the Act to the payment of an annual superannuation allowance. The appellant is a member of the New South Wales Police Force but has been on leave without pay for some years. The issue of such a certificate under s 8, is a precondition to discharge from service thus enabling him to receive a superannuation allowance under s 7". Despite his Honour's reference to the purpose for which the certificate was sought, that is, to enable the applicant to receive the annual superannuation allowance, the then respondent (now the first respondent) did not pay such allowance nor did it give the applicant the alternative benefit of the lump sum gratuity pursuant to s 14 of the Police Regulation (Superannuation) Act . Attempt to classify absence as sick leave 25 It seems that after the applicant was medically discharged from the Police Service on 21 September 1995 the second respondent did not recognise his service during leave without pay after 5 August 1989 as sick leave but rather as leave without pay: on that basis, the first respondent declined to grant the annual superannuation allowance under s 7 of the Police Regulation (Superannuation) Act because under s 5A - Leave without pay, of that Act such a period of leave, unless it be special leave without pay which was sick leave, was not a period of service for the purposes of that Act (see s 5A(2) and (4)). Correspondence passed between the applicant's solicitor and the first respondent as to his entitlement to superannuation benefits in the form of an annual superannuation allowance but, by letter dated 9 January 1996, the first respondent advised that as his eligible service for superannuation purposes between 26 March 1970 and 5 August 1989 was only 19 years and 4 months he was entitled to a lump sum gratuity in terms of s 14 of the Police Regulation (Superannuation) Act and not to an annual superannuation allowance under s 7 thereof. However, in that letter the first respondent advised in the following terms : I am aware that you were to make representations to the Police Service to try and have some or all of the period classified as leave without pay reclassified to special sick leave without pay. Should the Police Service forward amended advice and Mr Ford's service totals in excess of 20 years he would then be entitled to be paid a pension under Section 7 of the Act. As this matter has been on hold since the service's advice of 19 September 1995 you are requested to advice ( sic ) me as to the outcome of your representations to the police service within 28 days. Upon expiry of this time the Section 14 benefit will be paid with no further communication. 26 And so it was that by letter dated 24 January 1996 the applicant's solicitor asked the second respondent to classify the period from 5 August 1989 to 21 September 1995, or some part thereof, as "special sick leave without pay" in lieu of "leave without pay". It was not until 23 December 1996 that the second respondent wrote to the applicant's solicitor advising that his claim "for special sick leave has been carefully considered" but the "Commissioner's Delegate has not approved of special sick leave being granted to Mr Ford". The applicant continued to press his claim for characterisation of his leave as special sick leave but to no avail so that eventually on 28 April 1999 the present proceedings were commenced. In the meantime, however, the applicant has not received any benefit from the first respondent either by way of a lump sum gratuity or an annual superannuation allowance. True medical condition of applicant during absence from duty 27 Ms K T Nomchong , counsel for the applicant, and Mr G J Willis , counsel for the second respondent, helpfully provided written outlines of their respective submissions and supplemented them orally at the hearing. It is convenient to review first the key issue argued, that is, the true nature of the absence from duty of the applicant from 5 August 1989 to 21 September 1995, and then, dependent on the findings of fact made, to apply those findings to the relevant statutory provisions applicable from time-to-time. The jurisdictional objection advanced by Mr Willis may then be considered in light of the conclusions otherwise reached as to the nature of the leave and the resultant statutory entitlement of the applicant to a superannuation benefit. 28 The second respondent at no time accepted that the applicant on 18 July 1989 and on various dates thereafter applied for leave because he was unable to perform the duties of a police officer due to ill health; specifically, the second respondent denied the applicant applied for leave on the advice of Inspector Simpson. Mr Willis emphasised that at all relevant times there was no statutory discretion available to the second respondent to grant "special sick leave without pay" so that the leave applied for at the instance of the applicant was simply leave without pay unrelated to his medical condition. Counsel contended that, pursuant to the policy of the second respondent then in place, to be eligible for extended sick leave (where the standard sick leave entitlement of 75 days per year had been used) the position had to be that - (a) the officer was absent from duty on sick leave; (b) the officer had exhausted all available sick leave; (c) in the event no further sick leave was granted, the officer then elected whether to take extended leave; and (d) all leave entitlements had to be exhausted before further sick leave would be considered. 29 Mr Willis pointed out that there was evidence showing the applicant had during his leave period engaged in secondary employment in a video hire shop in which he had a financial interest with other family members and this factor was against him being sick and unable to perform his ordinary duties; the fact of non-approved secondary employment precluded the grant of either leave without pay or sick leave without pay. As to the decision of Marks J, Mr Willis maintained that his Honour's finding that the applicant was incapable from infirmity of mind of discharging the duties of his office did not have retrospective effect to the date of the applicant's commencement of leave without pay on 5 August 1989 and only applied from the date of his Honour's decision, that is, 14 October 1994. 30 To the contrary, Ms Nomchong submitted that the proper characterisation of the leave taken by the applicant was that of "sick leave", being absence from work by the applicant because he was incapable of performing his job due to illness; in that respect, counsel relied upon the finding of Marks J that the applicant was incapable of discharging the duties of his office due to infirmity of mind. Reference was made also to the evidence in these proceedings as to the medical condition of the applicant, including the various reports from the medical practitioners who examined him over the period from 1988 to 1994. Ms Nomchong's submissions, in summary form, made the following points - (i) The nature of sick leave does not necessarily impose a requirement that the person suffering from the ailment was incapable of performing any functions at all. The very nature of sick leave in an employment context is that the infirmity prevents the worker from discharging the particular duties for which he/she was employed. (ii) From the evidence it is plain that during the period which the applicant was on leave without pay he was unable to perform duties because of illness and, therefore, the leave ought properly be classified as special leave without pay being sick leave. (iii) In late-1988, the applicant was counselled by Inspector Simpson and then referred to the Police Medical Officer for assessment. He subsequently consulted a psychologist and a liver specialist and was then placed on restricted duties because of his psychiatric problems. (iv) When the applicant applied for leave without pay he did so on the advice of Inspector Simpson who advised him also that an appointment had been made for him to consult the Police Medical Officer. (v) The application for leave without pay was made solely on medical grounds, specifically that the applicant was unable to perform even the restricted duties then allocated to him. (vi) Accordingly, the essential elements of sick leave were present at the time the applicant applied for and took the leave without pay on 5 August 1989. Those conditions persisted until at least the decision of Marks J on 14 October 1994 so that the proper characterisation of the leave taken by the applicant should be that of sick leave. 31 Given the nature of the applicant's condition, Ms Nomchong submitted that the decision of the second respondent on 23 December 1996 not to classify the period of leave without pay between 5 August 1989 and 21 September 1995 as special leave without pay which was sick leave was manifestly unjust and unreasonable in the circumstances. The fact of the matter, so counsel submitted, was that the applicant applied for leave on the grounds of ill health and the second respondent ought to have treated it as an application for sick leave so as to enable it to be treated as special leave without pay and not merely leave without pay. In a real sense, counsel submitted, the distinction made by the second respondent seemed to be one of form rather than of substance. Further, counsel submitted it was incumbent upon the employer to provide the applicant with all relevant advice as to his employment entitlements and that was particularly so where the applicant was suffering from a psychological injury at the time he made the application for leave; indeed, he was encouraged to do so by Inspector Simpson. No advice was given to the applicant at that time or at any other time while he was on leave that he should apply for special leave without pay being sick leave. In the result, Ms Nomchong submitted that it was unreasonable and unfair in the circumstances for the second respondent to now attempt to rely on the absence of any "formal" application for special leave without pay being sick leave as distinct from an application for leave without pay. The true nature of the leave, as counsel said, was determined by examining all the facts and making a determination on those facts. 32 On any view of the evidence, I am satisfied that the leave sought by the applicant on 18 July 1989 and which he commenced on 5 August 1989 was due to his medical condition which, properly characterised, was such as to make him incapable of discharging his duties as a police officer. I reject the submission of Mr Willis that "there is no evidence that at the time of either application [for leave without pay], the Applicant was incapable of performing his duties". In my view, there was an abundance of evidence in these proceedings, both from the applicant himself and from medical practitioners, that he was ill and unable to carry out his work. That evidence was entirely consistent with that before Marks J and in respect of which his Honour found the applicant to be suffering at all relevant times from an infirmity of mind making him incapable of discharging the duties of a police officer. It is not to the point, as Mr Willis sought to argue, that "the Applicant applied for leave without pay, regarded himself as being on that type of leave and was treated by the Second [Respondent] as absent from duty on that leave" or that "what the Applicant now seeks is a change in the status of the leave well after the leave period concluded and well after his employment with the Second [Respondent] ceased". What matters, it seems to me, and as Ms Nomchong submitted, is the proper characterisation of the leave. 33 I agree too with Ms Nomchong's submission that the approach taken by the second respondent was more one of form rather than of substance. In any event, it is somewhat surprising that Inspector Simpson, on the applicant's evidence and not challenged by contrary evidence from Inspector Simpson, did not advise the applicant of his leave entitlements but asked him to apply for leave without pay. On Mr Gilchrist's evidence, as at 5 August 1989 the applicant had a credit of 4 days' sick leave, 3 days' annual leave, 7 days' accrued leave and one day's additional leave plus 148.2 days available as extended leave; as Mr Gilchrist said, the applicant "could also have made an application for Sick Leave without pay or a grant of further sick leave". None of that information was given to the applicant. Nevertheless, the comment by Inspector Simpson in supporting the application for leave without pay as from 5 August 1989 was that the applicant "is of little use to me at the present due to his medical condition", "there is also a staff morale problem caused by his attitude" and that "it would be of great assistance if this leave was granted as soon as possible so that he has an opportunity of improving his health condition and I have an opportunity to improve morale within the other staff at Bass Hill". Change in status of leave 34 In the circumstances, I have no doubt that the applicant was reasonably entitled, in fact he had a legitimate expectation, to be advised by the second respondent of his leave entitlements and the nature of the leave available to him. That he was not so advised and encouraged to apply for leave without pay rather than sick leave, either with or without pay, should not now be held against him. To do so would be plainly unjust. It would also, in my view, be contrary to the true nature of the leave taken by the applicant and the reasons therefor. 35 The answer by Mr Willis that the applicant should not be permitted to change the status of the leave well after the event cannot, in the circumstances as they developed, be held to defeat his claim. The applicant sought from the first respondent a certificate of incapacity under the Police Regulation (Superannuation) Act in order to qualify for a superannuation benefit prior to making the first application for leave without pay on 18 July 1989; that claim for a certificate was refused on 26 April 1990 but the refusal was not confirmed until 21 August 1992. Then, the applicant appealed against the refusal, in a timely way, on 3 February 1993 and on 14 October 1994 Marks J upheld his appeal and issued a certificate of incapacity. In the result, the applicant was discharged from the Police Service, but not until 21 September 1995. No superannuation benefit was allowed, either a lump sum gratuity or an annual superannuation allowance, and that was so despite the apparent commonly understood basis upon which Marks J was proceeding, namely, consideration of a certificate of incapacity under s 8 of the Police Regulation (Superannuation) Act as a precondition to the receipt of an annual superannuation allowance under s 7 thereof. 36 The applicant's solicitors made representations on his behalf to the first respondent and it was not until it advised the applicant's solicitor by letter dated 9 January 1996 that reclassification by the second respondent of the period of leave without pay as special sick leave without pay would result in total service in excess of 20 years so as to give rise to an annual superannuation allowance under s 7. The applicant's solicitor thereupon made application to the second respondent to that effect by letter dated 24 January 1996 but it was not until 23 December 1996, 11 months later, that the second respondent advised he did not approve special sick leave being granted to the applicant. Although the first respondent in its letter of 9 January 1996 advised that the s 14 lump sum gratuity would be payable within 28 days with no further communication, unless of course in the meantime the category of leave was changed, no such benefit has since been payable and the position is that the applicant has received no superannuation benefit at all since his retirement on 21 September 1995. 37 These proceedings, therefore, seek appropriate declarations which, depending upon the findings made, should at least finalise this long outstanding claim. In the history as I have detailed it, it seems to me that the applicant has been subject to a decision-making process as to his superannuation entitlements involving two parties, here the first and second respondents, over an inordinately lengthy and unexplained period of time, and where the relief sought has been stoutly resisted, but as to which the applicant, in my view, should not have to suffer on discretionary grounds the refusal of relief otherwise due to him. 38 I am moved to express consternation at the treatment afforded the applicant by the second respondent in terms of the employment relationship between them since this matter first surfaced about 11 years ago in July 1989. It was then marked by a failure by the second respondent to properly inform the applicant of his then entitlements to leave, including leave already accrued by him - it is correct to say that if the applicant had been so advised of the leave entitlements available to him, as set out in Mr Gilchrist's affidavit, and applied accordingly, then he would have achieved the minimum of 20 years' service required for an annual superannuation allowance. That failure is compounded having in mind the comments by Inspector Simpson in recommending the grant of leave without pay based on the medical condition of the applicant as manifested by his behaviour in the workplace and its effects on other officers. 39 Even given the view of the second respondent, a view he was entitled to hold, that the applicant was not unable to perform his duties from August 1989 due to illness, the decision of Marks J on 14 October 1994 finding an infirmity of mind at all relevant times, sufficient to justify the issuing of a certificate of incapacity that the applicant was incapable of discharging the duties of his office in the Police Service, should, I would have thought, provided a proper basis for the second respondent to have reviewed his earlier position as to the true nature of the leave taken by the applicant from 5 August 1989. That a further period of in excess of 11 months after the decision of Marks J elapsed before the second respondent actually discharged the applicant on medical grounds on 21 September 1995 only adds to the concern I have expressed. And then, on being expressly asked for a formal ruling by the applicant's solicitor on 24 January 1996, the second respondent took another 11 months until 23 December 1996 to not approve the grant of special sick leave to the applicant from 5 August 1989 to 21 September 1995. 40 In this long saga, the applicant has been denied a superannuation benefit, at the least the payment of the lump sum gratuity of 2 years' salary as the minimum entitlement due following the decision on 14 October 1994 by Marks J. He has, therefore, for nearly 6 years been kept out of money otherwise due to him, quite apart from interest thereon, even if the opinion of the second respondent as to the nature of the leave without pay was correct. 41 The first respondent, as the trustee and administrator of the Police Superannuation Fund, as at 14 October 1994 was in somewhat of a dilemma because the applicant, understandably perhaps in view of the way in which the case was presented to Marks J as a precondition for the grant of an annual superannuation allowance, pressed it for the pension benefit instead of the lump sum benefit based on the completed period of service being at least 20 years. Nevertheless, and consistent with its statutory duties and functions, the first respondent, no doubt having in mind the decision of Marks J, endeavoured to compromise or settle the applicant's claim. I have no doubt it was entitled to do so and, in that respect, I am satisfied the first respondent acted both properly and responsibly in the circumstances in entering a submitting appearance and in reaching an agreement with the applicant as to a consent declaration. However, whether effect may be given thereto depends upon the conclusion I reach as to the argument put by the second respondent that there is no jurisdiction in the Court to make such a declaration. If otherwise there be power, my view is that the particular circumstances of this matter in terms of discretion would warrant the applicant being afforded appropriate relief. Ability to allow absence as special sick leave without pay 42 On the first aspect as to the true nature of the leave, it only remains to consider Mr Willis ' submission that the second respondent had no statutory discretion to allow it as "special sick leave without pay"; under the applicable rules, the applicant was entitled to be absent from duty because of infirmity for up to a maximum of 75 days in any year on full pay and the second respondent had a discretion to allow additional leave only as paid "special sick leave". Thus, as Mr Willis said, the additional leave was not without pay even though the second respondent could grant a period of leave without pay "if good and sufficient reason be shown". Counsel said the applicant did not meet the criteria for special sick leave because he had not exhausted all of his leave entitlements at the time. I observe that that submission was put notwithstanding Mr Gilchrist's evidence that the applicant "could also have made an application for sick leave without pay"; as Mr Gilchrist added, "sick leave without pay … or special sick leave as it is now known, was granted on a discretionary basis to police who were suffering from a protracted illness or injury that prevents their return to full duties". Annexed to Mr Gilchrist's affidavit was a copy of NSW Police Circular No 88/220 of 19 December 1988 which set out the following policy applicable to police officers absent from duty on sick leave : 1. At the expiration of 75 days sick leave in any period of 12 months, any available extensions of sick leave will be granted. 2. At the expiration of extensions of sick leave, the member will be granted, should he/she so elect, any annual leave credits. 3. At the expiration of any annual leave taken, the Commissioner may decide to grant further sick leave, in accordance with Rule 76(1)(a), having regard to the particular case. 4. In the event of no further sick leave being granted by the Commissioner, the member of the Force be granted, should he/she elect, any extended leave owing and then will be placed on sick leave without pay until further sick leave becomes due; the member returns to duty; or is discharged from the Force. 43 I think that Mr Willis ' submission strains the language appearing in the relevant rules and also, it seems to me, is not wholly consistent with the policy as stated by Mr Gilchrist. At the time of the applicant's first application for leave on 18 July 1989 the applicable rules, so far as relevant, regarding leave were contained in rr 76(1)(a) and 77A of the Police Rules 1977 made in pursuance of the Police Regulation Act 1899, in the following terms : Sick leave 76. (1) A member of the Force absent from duty from infirmity of body or mind shall - (a) … be allowed full pay for each day he is so absent from duty up to a maximum of 75 days in any period of 12 months, which maximum number of days may be increased to a greater number in respect of a member of the Force in any particular case if the Commissioner so approves; … Leave without pay 77A. (1) The Commissioner may grant leave without pay to a member of the Force for a period not exceeding 3 years if good and sufficient reason be shown. (2) The Commissioner shall not grant leave without pay for the purpose of enabling a member of the Force to engage in other employment. (3) Leave without pay is subject to such conditions as the Commissioner may from time to time determine. (4) Leave without pay shall not be counted as service for the purposes of - (a) accrual of annual leave or sick leave; or (b) the payment of any increment. (5) So much of any period of leave without pay as exceeds 3 months shall not be counted as service for the purposes - (a) any qualification for promotion; (b) the period of any probation; or (c) eligibility to sit for any examination. (6) This Rules does not apply to leave without pay that is sick leave, maternity leave or leave for adoption purposes. 44 The applicant's period of leave from 5 August 1989 to 4 August 1990 was governed by the above provisions. As from 1 July 1990 the Police Service Act 1990 commenced and repealed the Police Regulation Act and the Rules made thereunder. Section 219 of the Police Service Act in sub-s (2)(c) enabled regulations to be made to make provision for or with respect to "the extended, annual and other leave that may be granted to members of the Police Service". With effect as from 1 July 1990, the Police Service Regulation 1990 commenced and in Pt 6 - Leave for Members of Police Service, cl 94(1) in Div 7 - Leave without pay for members of the Police Service, dealt with the subject in substantially the same terms as the former r 77A of the Police Rules and cl 96(1) in Div 8 - Sick leave for police officers,was in substantially the same terms as the former r 76(1)(a) of the Police Rules. I do not, therefore, recite those new provisions, except to comment that they were in force at the time the applicant took his second period of leave without pay from 5 August 1990 until 4 August 1991 and during his later periods of leave until discharge from the Police Service on 21 September 1995. For completeness as to the powers of the second respondent, s 8 of the Police Service Act makes him responsible for the management and control of the Police Service, including the effective, efficient and economical management of its functions and activities, and he may issue instructions to members of the Police Service with respect to its management and control. Also, s 85 of that Act enables the second respondent to determine from time-to-time "the salary, wages or other remuneration of a non-executive officer … except in so far as provision is otherwise made by law". 45 Presumably, the second respondent allowed leave without pay to the applicant under r 77A/cl 94, even though the total period of the leave was about 6 years in separate annual periods and exceeded the specified period of 3 years. In any case, the provision, as it says, "does not apply to leave without pay that is sick leave" so as to expressly recognise that sick leave may be granted as leave without pay. That, I think, is unsurprising having in mind the position of the second respondent under the Police Service Act as the employer of police officers and with the responsibility to manage and control the Police Service, including with respect to industrial matters: see ss 8, 84 and 85 thereof. Sick leave for police officers absent from duty because of infirmity of body or mind is provided under r 76(1)(a)/cl 96(1) as leave on full pay up to a maximum of 75 days in any period of 12 months, although that period may be increased by the second respondent in any particular case. Otherwise, there is no provision in either the former Rules or the present Regulation affecting or limiting the grant of leave without pay that is sick leave. 46 Mr Willis conceded, and although the Rules/Regulation did not provide specifically for the grant of "special sick leave without pay", that the Police Regulation (Superannuation) Act in s 5A(1) obviously contemplated that police officers would have available both "leave without pay" and "special leave without pay" and that administratively the second respondent granted, as Mr Gilchrist's evidence stated, special sick leave either with or without pay. The point made by Mr Willis , however, was that the circumstances here showed the applicant did not meet the criteria for the grant of special sick leave because he had not exhausted all of his leave entitlements at the time; also, counsel said, the applicant requested leave without pay and not sick leave. Therefore, he was not absent on sick leave and the position should not now be changed. 47 The counter submissions by Ms Nomchong on the proper characterisation of the leave were succinct and direct. She submitted - · In circumstances where the applicant advised the second respondent that the basis of his application was inability to perform duties because of a medical condition, the failure of the second respondent to either treat the application as one for sick leave without pay or to inform the applicant of his outstanding leave entitlements so he could avail himself of those benefits was a breach of its obligation as an employer. · The second respondent attempted to mask the true nature of the leave taken by repeating that the applicant only applied for leave without pay. Every application for leave without pay by the applicant was made purely on the basis of his medical condition and there was simply no other way to regard the leave than as sick leave. 48 I have found already that the applicant was absent from duty during the period from 5 August 1989 to 21 September 1995 by reason of his medical condition preventing him from performing his work. In truth, therefore, he was sick and on leave for that reason, a situation known to and acknowledged by Inspector Simpson. But does the fact, as Mr Willis suggested it did, that the applicant applied for leave without pay and not leave without pay that was sick leave or special sick leave mean that the absence should not now be so regarded. I think not. 49 The applicant at all relevant times, as I have found, was sick and that is the only true characterisation which may be given to the leave he took; the leave was taken on the advice of Inspector Simpson but without further advice as to the entitlement to sick leave and other leave accrued. In that situation, it seems to me, the second respondent is simply unable to argue that the leave taken was not taken as sick leave. For instance, the stated policy of the second respondent, as set out in the above extract from NSW Police Circular No 88/220, was couched in terms of "extensions of sick leave will be granted" and "will be placed on sick leave without pay" on the expiration of sick leave credits and accruals of other leave should the police officer concerned so elect - but here, the applicant gave evidence, which I accept, that he thought his leave credits had all been used and he received no advice about them. It would, in my view, be somewhat nonsensical to treat the applicant's absence from duty as anything other than sick leave. He had, I am well satisfied, an entitlement under the then policy to leave without pay which was sick leave and his medical condition was the reason for the absence. It should be so regarded. 50 Indeed, I interpose the observation that the applicant had, as Mr Gilchrist noted, sick leave and other accrued leave available to him as at 5 August 1989, and he could have claimed extended leave and further sick leave - that leave would have been, if taken, on full pay and would thus count as eligible service for superannuation purposes. That it was not so brought to account may be wondered, but, as no relief here was sought in respect of it, I take the matter no further. Statutory scheme as to superannuation benefits 51 The consequences of that finding for superannuation purposes requires attention to the relevant statutory provisions which are contained, as I earlier indicated, in the Police Regulation (Superannuation) Act . The statute has been amended on a number of occasions since the applicant first commenced his leave on 5 April 1989, although not materially so for present purposes, and, in any event, they have been in their present form since the applicant was discharged from the Police Service on 21 September 1995. Both counsel so approached the matter and I will too by referring to the statute in its present form. The sections requiring consideration are ss 5A, 7 and 14 which, in directly relevant respects, state : 5A Leave without pay (1) In this section: initial period , in relation to a period of leave, means such period commencing with the first day of that leave as is prescribed as the initial period for the purposes of this section. leave without pay means a period of leave requested by a member of the police force during which the member is not entitled to payment of the member's salary of office, being a period of leave which commences on or after the day appointed and notified under section 2 (2) of the Police Regulation (Superannuation) Amendment Act 1984. special leave without pay means any leave without pay which is : (a) sick leave, (b) maternity leave or leave in respect of the adoption of a child, (c) leave to undertake union duties for the Police Association of New South Wales or the Public Service Association of New South Wales, or (d) leave declared by the regulations to be special leave without pay within the meaning of this section. (2) A member of the police force who takes leave without pay (not being special leave without pay) shall, in accordance with directions given by STC, pay to STC for credit to the Fund such amounts as would have been deducted from the salary of office of the member in accordance with section 5 if the member had continued to receive salary of office during the initial period of any such single period of leave at the rate payable to the member immediately before that initial period. (3) A member of the police force who takes special leave without pay must, in accordance with directions given by STC, pay to STC for credit to the Fund the amounts that would have been deducted from the salary of office of the member in accordance with section 5 if the member had continued, while on leave, to receive salary of office at the rate payable to the member immediately before the commencement of the period of leave. (3A) However, a contributor who takes a single period of special leave without pay that is sick leave, maternity leave or leave in respect of the adoption of a child is not liable to make payments to STC in respect of any part of the period of special leave occurring more than 2 years after the period of special leave commences. (3B) … … (4) Any part of a single period of leave without pay taken by a member of the police force for which amounts are not payable under subsection (2) or (3A) is not a period of service for the purposes of this Act. (5) If a member of the police force fails to make any payment required by this section: (a) the amount unpaid shall be deducted from: (i) the member's salary of office, or (ii) any gratuity or allowance payable to the member under this Act, in such instalments and at such times as STC may determine, and (b) the period of leave to which the payment relates is not, while it remains unpaid, a period of service for the purposes of this Act. (6) … 7 Superannuation allowance except where member hurt on duty (1) The annual superannuation allowance for a member of the police force who has served 20 years or more of equivalent full-time service and retires on or after attaining the age of 60 years or, being under that age, is discharged after being certified under section 8(1) to be incapable, from infirmity of body or mind, of discharging the duties of the member's office, is an amount calculated in accordance with the following formula: P = Y x ESR … (the components of the formula are then explained) (2) … (3) … 14 Gratuity for discharged members not hurt on duty (1) Where a member of the police force: (a) has served for a period less than 20 years of equivalent full-time service, (b) is discharged after being certified, pursuant to section 8(1) or on appeal, to be incapable, from an infirmity of body or mind, of discharging the duties of the member's office, and (c) is not entitled to be granted an annual superannuation allowance under section 10, STC shall, subject to subsection (3), pay to the member a gratuity of 24 months' pay at the rate of the member's attributed salary of office at the date of the member's discharge. (2) … (3) … 52 It will be apparent that the entitlement to a superannuation benefit, either a lump sum gratuity under s 14 or an annual superannuation allowance under s 7, where, as here, the police officer was not hurt on duty but was discharged after being certified as being incapable from an infirmity of body or mind of discharging the duties of his office, is dependent upon the officer's length of service. The applicant had at least 19 years and 4 months of service before being discharged and so qualified for at least the s 14 lump sum gratuity. If, however, he had 20 years or more of service then he would be entitled to an annual superannuation allowance under s 7 according to the number of completed years of service. Where leave without pay occurs during a period of service, as here, then the extent to which such leave is service for the purposes of superannuation is regulated by s 5A. 53 There was no real dispute between the parties of the meaning of the statutory provisions as to leave without pay, rather the disagreement concerned who, whether the first respondent or the second respondent, was properly able to make the decision as to which of the types of leave the applicant was granted. That aspect was related to the jurisdictional arguments and I will, therefore, defer consideration of it until those arguments are considered. I attend at this point to the pure question of statutory construction. 54 The respective definitions of "leave without pay" and "special leave without pay" make it clear to me that s 5A is directed to identifying the service of a police officer who has had a period of leave without pay for the purpose of calculating the relevant superannuation benefit. The section is concerned with the single concept of "leave without pay". "Special leave without pay", according to the definition thereof, is nonetheless leave without pay but which is for specific purposes, namely, sick leave, maternity leave, adoption leave, leave to undertake union duties and leave so declared by the regulations. Here, of course, the relevant purpose is sick leave, so that if the applicant's leave without pay was of that nature then it would be special leave without pay in order to determine his service for a superannuation benefit under s 7 or s 14, as the case may be. 55 In light of the finding I have made as to the true nature of the leave without pay being for the purpose of sick leave, I conclude that from 5 August 1989 to 21 September 1995 the applicant was on special leave without pay within the meaning of that expression in s 5A(1) of the Police Regulation (Superannuation) Act. 56 In turn, the qualifying service under the statute is made referrable to contributions continued to be made by a police officer by way of deductions from the salary of office during the relevant period of leave without pay. In that respect, leave without pay which is not special leave only enables the police officer to contribute during the "initial period" of such leave so that the maximum period for service purposes is that initial period. By reason of cl 6 of the Police Superannuation Regulation 1995, the initial period is prescribed as 3 months so that that is the maximum service which may be counted for calculating superannuation benefits: see s 5A(2) and (4). If a police officer fails to make any payment during that initial period the 3 months may still count as service as it may be deducted in instalments and at such times as the first respondent may determine from any benefit otherwise allowed : see s5A(5). 57 Absence on special leave without pay which, as here, was sick leave attracts under s 5A a potentially greater period of eligible service than the 3 months' initial period of leave without pay for other reasons. A police officer during such absence must, if so directed by the first respondent, make contributions to the Fund as if the officer had continued to receive salary: see s 5A(3). However, an officer who takes such a single period of leave "is not liable to make payments … in respect of any part of the period of special leave occurring more than 2 years after the period of special leave commences": see s 5A(3A). Any part of such a single period of leave taken for which contributions are not payable under s 5A(3) "is not a period of service" for the purposes of the statute: see s 5A(4). Nevertheless, if the officer fails to make any such payment required by s 5A(3), having in mind the 2 years' limitation in s 5A(3), then the unpaid amount shall be deducted, in such instalments and at such times as the first respondent may determine, from any gratuity or allowance payable to the officer under the statute: see s 5A(5)(a)(ii); the period of leave for which contributions remain unpaid is not a period of eligible service: see s 5A(5)(b). Eligible service of applicant for superannuation purposes 58 On the basis of that statutory scheme established by s 5A, with which I understood both parties agreed, Ms Nomchong submitted that in this case the first 2 years of the period from 5 August 1989 to 4 August 1991 should therefore count as eligible service for superannuation purposes by reason of the combined operation of sub-ss (3), (3A), (4) and (5) of the section. Thus, the applicant would have in calculating the annual superannuation allowance pursuant to s 7 service of 21 years and 4 months. Although he had actually completed 25 years and 4 months of service to 4 August 1995 before his discharge on 21 September 1995, all service after the 2 years' "cap" in s 5A(3A), and for which contributions were not liable to be made, would not count because of the express exclusion thereof by s 5A(4). It was for this reason Ms Nomchong amended the application on 22 November 1999 to substitute the date of 4 August 1991 for that of 21 September 1995 in the declaration then sought. 59 Mr Willis did not demur from Ms Nomchong's approach but, very properly and fairly if I may say so, he raised the question whether the operation of s 5A should be viewed in this case in light of its terms as at August 1989 when the applicant commenced the period of leave without pay rather than in its present form. In the result, Ms Nomchong at the hearing on 13 March 2000 submitted that under s 5A as it was at that earlier time there was no limit or "cap" of 2 years on the period of special leave without pay in respect of which contributions were liable to be made; therefore, she said, eligible service during a period of special leave was then unlimited and the whole period could count. For the applicant here, that would result in 25 years and 4 months of completed service to 4 August 1995 - Ms Nomchong thereupon moved, without objection, on the further amended application based on a period of special leave from 5 August 1989 to 21 September 1995 and service of 25 completed years. The final form of the declarations thus sought is set out earlier in these reasons. 60 The Superannuation Legislation (Further Amendment) Act 1993 (Act No 111 of 1993), which commenced in relevant respects on 1 January 1994, by Sch 2(3) thereof omitted s 5A (3) and (4) of the Police Regulation (Superannuation) Act and inserted instead new sub-ss (3), (3A) and (4) in s 5A which presently remain in those terms; Sch 2(15) of that amending statute inserted in the principal Act a new Sch 6 - Savings and Transitional Provisions containing cl 2 - Leave without pay, which provided : Leave without pay 2. Section 5A, as amended by the Superannuation Legislation (Further Amendment) Act 1993, applies to a period of leave without pay commenced before 1 January 1994 and not completed immediately before that date. 61 Ms Nomchong's submission will be understood by reference to the terms of s 5A(4) as it was before the 1994 amendment, that is : (4) A member of the police force who takes special leave without pay shall, in accordance with directions given by the Board, pay to the Board for credit to the Fund such amounts as would have been deducted from the salary of office of the member in accordance with section 5 if the member had continued to receive salary of office during the period of that leave at the rate payable to the member immediately before that period. (The earlier form of s 5A(3), also amended by the 1994 amendment, related to leave without pay not being special leave without pay and so is not presently of relevance.) 62 This aspect raised by Mr Willis is resolved, in my view, by the terms of the transitional provision in cl 2 of Sch 6 to the Police Regulation (Superannuation) Act . The applicant commenced the period of leave without pay before 1 January 1994 but had not completed it until 21 September 1995. Therefore, s 5A in its amended form applied so that under s 5A (3A) a limit of 2 years applied for contributions; eligible service during the leave period for superannuation purposes under s 5A(4) was therefore 2 years expiring on 4 August 1991 and giving 21 years and 4 months of service. Jurisdictional objections to relief sought 63 It remains to deal with the jurisdictional arguments against the relief sought in the context of the findings made. Those findings included the fact that the applicant between the relevant dates of 5 August 1989 and 21 September 1995 was sick from an infirmity of mind and unable thereby to perform the duties of his office, he was absent on leave without pay and the true nature of such leave was sick leave - the conclusion reached from those findings was that the applicant was on leave without pay which was sick leave so as to be special leave without pay within the meaning of that expression in s 5A of the Police Regulation (Superannuation) Act . Therefore, so it followed, the applicant was entitled to be paid by the first respondent from the Police Superannuation Fund an annual superannuation allowance pursuant so s 7 of the statute on the basis of 21 completed years of service. 64 The three declarations sought address each of the principal findings with the ultimate purpose of the applicant receiving the annual superannuation allowance. In effect, they did so in a stepped process in this way - · a declaration that the relevant period of leave was special leave without pay which was sick leave so as to give eligible service of 20 years or more for the purpose of calculating superannuation benefits; and · a declaration that there was an entitlement to an annual superannuation allowance on the basis of 21 completed years of service. 65 In light of the reasons given earlier, a case on the merits has been made out to support such declarations and, as a matter of discretion, I see no reason to withhold relief if the jurisdiction exists to do so. After all, there is a real controversy between the parties here concerning the right of the applicant to a particular superannuation benefit, which issue has been unresolved for nearly 5 years. As Lord Dunedin said in The Russian Commercial & Industrial Bank v British Bank for Foreign Trade [1921] 2 AC 438 at 448 : The question must be a real and not a theoretical question: the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought. 66 The proposition on which Mr Willis' challenge against the power of the Court to make the declaratory orders was based on the jurisdiction being limited in present respects to superannuation appeals under s 153(1)(h) of the Industrial Relations Act which referred to the function exercised in relation to such proceedings under ss 40 or 88, depending on the particular scheme in question, of the Superannuation Administration Act 1996. However, so counsel said, the applicant's real grievance was the decision of the second respondent made on 23 December 1996 not to approve the period of leave without pay as special leave. The discretion to make that decision was that of the second respondent under the Police Service Act and the Regulation; there was no statutory right of appeal from such a decision and certainly the first respondent had no role to play in making it being responsible under the Superannuation Administration Act only for the administration of the Police Superannuation Fund and the determination of disputes under the Police Regulation (Superannuation) Act concerning benefits payable from that Fund. 67 Mr Willis , whilst conceding that the second respondent's decision affected the calculation of the applicant's entitlement under the Police Regulation (Superannuation) Act , said it was not a decision "concerning an STC scheme" as referred to in s 67(1) of the Superannuation Administration Act so as to give a right of appeal under s 88(1) thereof to this Court. 68 In the alternative, and in any event, if the operative decision here was that of the first respondent as notified to the applicant on 9 January 1996 advising eligible service of 19 years and 4 months so as to lead to the benefit of a lump sum gratuity and not a pension, any right in the applicant to challenge that decision by way of appeal had been lost. Counsel relied on the fact that any such appeal right was at the time conferred by the Superannuation Administration Act 1991 but which Act was repealed by the present Superannuation Administration Act on its commencement on 1 July 1996. In the absence of a then pending appeal, which would have been preserved by cl 19(1) of Sch 3 to that 1996 Act, there was no saving of any right of appeal not then made. 69 If the Court were to have jurisdiction in this matter, Mr Willis said it had to arise in relation to an "industrial matter" between the applicant and the second respondent. However, on the authority of The King v Kelly; ex parte The State of Victoria (1950) 81 CLR 64 at 84-85 an industrial matter was one arising between an employer and employee in their respective roles as employer and employee. What the applicant had now sought was a change in the status of the leave already allowed and taken and well after his employment by the second respondent had ended. There was, therefore, no relevant industrial matter to which the declarations sought could relate. 70 Ms Nomchong supported the competence of the Court to make the declaratory orders as being, pursuant to s 154(1) of the Industrial Relations Act , "in relation to a matter" in which there was jurisdiction. Counsel said the words "in relation to" should be interpreted widely as should the word "matter". Reference was made in those respects to Fencott v Muller (1983) 152 CLR 570 at 602-610 and to Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 289 ff. The fact that declarations of right only were claimed was not a bar to prevent them being made: see s 154(2) of the Industrial Relations Act . 71 The particular "matters" identified by Ms Nomchong in relation to which the declarations were sought were: first, the controversy concerning the determination made by the first respondent, together with the second respondent, in relation to the applicant's claim for a superannuation benefit in the form of an annual superannuation allowance under s 7 of the Police Regulation (Superannuation) Act ; and, second, the dispute between the applicant and the second respondent as to whether the applicant was on leave without pay or special leave without pay which was sick leave during the period from 5 August 1989 to 21 September 1995. The first matter was in relation to the Court's jurisdiction to determine a superannuation appeal under the Superannuation Administration Act. The second matter related to an industrial matter which was within the jurisdiction of the Commission. In either or both cases, the Court was thereby empowered to make the declarations claimed because the relevant "matter" founding jurisdiction was within either the Court's or the Commission's jurisdiction: see the reference in s 154(1) of the Industrial Relations Act to "the Commission (however constituted)". 72 In reply to Mr Willis' submissions, Ms Nomchong denied that the decision by which the applicant was aggrieved was the failure of the second respondent on 23 December 1996 to classify the leave without pay as sick leave. Counsel emphasised that the applicant was aggrieved by all of the decisions taken by the second respondent by failing to treat the leave as being sick leave, including the failure to inform the applicant of his accrued and available leave entitlements to enable him to obtain the benefits provided. The question of the nature of the leave taken by the applicant in the 2 years from 5 August 1989 was at the very heart of his claim - as such, it was an industrial matter so as to found jurisdiction for the relief sought. Ms Nomchong referred to and relied upon the decisions of this Court in Atlantis Relocations (NSW) Pty Ltd (formerly known as Atlantis Removals Pty Ltd) v Department of Industrial Relations (Inspector O'Regan) [1997] NSWIRComm 185 and Re Glass Workers' Redundancy (State) Award [1998] NSWIRComm 297. 73 As to Mr Willis' submission concerning the unavailability of a superannuation appeal to deny the making of a declaratory order in relation thereto, Ms Nomchong said it was erroneous to proceed, as Mr Willis did, on the basis that the decision giving rise to a superannuation appeal was that of the second respondent; counsel said the relevant decision complained of was that of the first respondent made on 9 January 1996 in failing to properly apply the provisions of ss 5A(1) and 7(1) of the Police Regulation (Superannuation) Act and also the determination of Marks J in relation to the medical condition of the applicant. 74 In answer to the submission that the applicant's rights to lodge a superannuation appeal had been lost as from 1 July 1996 on the enactment of the Superannuation Administration Act in its repeal of the former 1991 statute, Ms Nomchong relied on s 30(1) of the Interpretation Act 1987 preserving the appeal right of the applicant under the repealed legislation. Ms Nomchong cited as authority for that Poletti v Ecob [1989] 30 IR 343 and Australian Bank Employees' Union v Australia and New Zealand Banking Group Ltd (unreported, Federal Court, von Doussa J, 12 September 1989). 75 I think the first thing to observe about Mr Willis' jurisdictional argument is that it was based, it seems to me, and as Ms Nomchong correctly identified, on the false premise that the applicant was aggrieved by the second respondent's decision made on 23 December 1996. From there, Mr Willis built his jurisdictional argument but on an incorrect foundation; it was one, in any event, which was not decisive of the power here to make declarations of right in the terms claimed or in terms similar thereto. So too, in my view, Mr Willis was wrong in giving finality, almost exclusively, to what he effectively said was the unfettered discretion of the second respondent to decide the true nature of the applicant's period of leave without pay. Counsel, in my view, was wrong also in thereupon transferring that decision as being binding on the first respondent for the purposes of allowing superannuation benefits under the Police Regulation (Superannuation) Act in the performance of the first respondent's function under the Superannuation Administration Act to determine disputes. I prefer the general thrust and approach followed by Ms Nomchong to the jurisdictional issues. Conclusion as to existence of jurisdiction 76 My conclusions in favour of there being jurisdiction to make the declarations sought may be stated relatively shortly. The fundamental nature of the declaratory power in s 154 of the Industrial Relations Act is, in the opinion I hold, based on the existence of a matter about which the Commission (either as the Commission or sitting as the Court) has jurisdiction and even though no consequential relief is or could be claimed. In other words, a declaration of right may be made once there be identified a matter otherwise within the Commission's or the Court's jurisdiction, regardless whether any proceedings exist as to that matter, provided the declaration as sought relates to it. In Atlantis Relocations, the majority of the Full Bench ( Glynn and Maidment JJ, Marks J concurring) put it, in a manner I would respectfully adopt, in this way (at p 4) : The declaratory jurisdiction arises "in relation to a matter" in which the Commission has jurisdiction whether or not any consequential relief is or could be claimed (s 154(1)). The declaratory power is therefore not contingent upon the existence of proceedings which are otherwise within jurisdiction as the power arises in relation to a matter as opposed to proceedings. 77 Given that the Court can only deal with matters within its jurisdiction, it is nevertheless not to the point, but as Mr Willis suggested it was, that the making of declarations here would be directly inconsistent with the decision of the second respondent as to the nature of the leave without pay. I do not apprehend in any way I have been asked ultimately to review that decision - what I have been asked to do is to declare the rights of the applicant in terms of his leave entitlement under his employment relationship with the second respondent and his statutory entitlement to certain superannuation benefits. 78 In Nomad Industries of Australia Pty Ltd v Commissioner of Taxation [1983] 2 NSWLR 56, Rogers J held that the view of the Commissioner of Taxation concerning certain statutory provisions within his administration as to the liability imposed by those provisions did not bar the making of a declaration because such an order by a court was not a "review" but rather established the liability as fixed by law under the statute and was unaffected by any conduct or decision of the original decision-maker. His Honour said (at pp 63-64) : It is unnecessary in the present case to determine what are the outer parameters of the reach of the provision. In my view it is entirely inapposite to say that the declarations sought in the present case constitute a "review" of conduct engaged in by a Commonwealth officer. Whilst I accept that the word is one of wide meaning, as suggested by Waddell J, and normally extends to "any process of examining the correctness of a decision or of any conduct", it seems to me to be a misuse of language to say that a declaration as to the application of a statutory provision is a "review" of the conduct of a particular person. The foregoing in essence represents a restatement of the view which I expressed earlier in the year in Clyne v Deputy Federal Commissioner of Taxation [1983] 1 NSWLR 110; (1983) 83 ATC 4001. What the summons seeks is a statement from the court by way of declaration as to the existence or otherwise of a liability imposed by the law. As I have sought to show, no decision of the Commissioner, no conduct of the Commissioner, have anything to say, any role to play, in the answer to be returned to that question. The liability will neither be greater nor smaller, will neither arise nor be extinguished, the time at which liability arises is not fixed, and it is in no wise affected by anything which the Commissioner may do or omit to do. Thus to enunciate judicially by means of a declaratory order that there is no liability does not, in my view, constitute a "review" of any relevant matter. This conclusion adopts the second arm of the submissions advanced by the plaintiff. 79 I think that represents the position before me. It was thus no answer to the exercise of the declaratory jurisdiction to plead that the decision as to the grant of any type of leave to the applicant was confined to the second respondent. What matters, it seems to me, was the right or entitlement of the applicant to certain leave and whether the declaration sought was in relation thereto, provided the subject matter of the leave was otherwise within power. I think it may be undoubted that the Commission has jurisdiction as an industrial matter in respect of leave for police officers: see Industrial Relations Act in ss 6(1), 6(2)(c) (g) and (h), 10, 136, 404 and 405(1)(b); see also Police Service Act in ss 84, 85(1) and 218(1). 80 It follows, I would conclude, that there is power under s 154 of the Industrial Relations Act to make a declaration as to the true nature of the period of the applicant's leave without pay from 5 August 1989 to 21 September 1995. I would only add, in response to Mr Willis' submission that industrial matters concern the relations of employers and employees, that at the relevant time the applicant was employed by the second respondent, albeit on leave, and as to which a dispute arose as to the nature of the leave. 81 I am satisfied too that the declarations sought as to the applicant's rights under the Police Regulation (Superannuation) Act are jurisdictionally competent. The issue in that respect was whether the applicant was truly on special leave without pay which was sick leave during the period of 2 years from 5 August 1989. Contrary to the submission of Mr Willis , that question was to be determined by the first respondent in its administration of the Police Superannuation Fund and in its resolution of disputes thereunder. The view of the second respondent as to the nature of the leave may well be a matter for the first respondent to take into account in forming the view it did, after the applicant was discharged from the Police Service on 21 September 1995, and affirmed by it on 9 January 1996. It was for the first respondent, however, to determine the essential question as to the length of service as required by s 7 of the Police Regulation (Superannuation) Act ; that required a decision by it whether the applicant was on leave without pay or special leave without pay which was sick leave. 82 The essential question so styled, and as I have said, related to an industrial matter as would support the making of a declaration in relation to it. Also, and in any event, I consider it related to the matter of a superannuation appeal against the unfavourable decision of the first respondent declining the applicant an annual superannuation allowance. There is, therefore, jurisdiction to make a declaratory order as sought on either basis. 83 For completeness, I should identify the relevant provisions of the Superannuation Administration Act which would enable the Court under s 153(1)(h) of the Industrial Relations Act to determine proceedings on a superannuation appeal, as follows - s 4 Police Superannuation Fund is a fund or scheme under the Police Regulation (Superannuation) Act being an STC fund or STC scheme. s 49 The first respondent is the trustee for an STC fund or STC scheme. s 50 Principal functions of the first respondent are to administer the STC schemes, including the Police Superannuation Fund, to pay benefits to persons entitled in accordance with the Police Regulation (Superannuation) Act and to determine disputes. s 51 Duties of first respondent relating to its functions, including to exercise its functions in the best interests of persons entitled to receive benefits. s 57 Powers of first respondent to do all things necessary or convenient in connection with the exercise of its functions. s 66 First respondent may compromise or otherwise settle any claim made against it. s 67 First respondent is to determine disputes under the Police Regulation (Superannuation) Act , including informing itself on any matter in such manner as it thinks fit. s 88 A person aggrieved by a determination of the first respondent may appeal to the Court against the determination within 6 months thereof or within such further time as the Court allows. 84 I think it plain that the present dispute as to the entitlement of the applicant to an annual superannuation allowance under the Police Regulation (Superannuation) Act relates to a superannuation appeal able to be brought to this Court under the Superannuation Administration Act and so competent to be the subject of a declaratory order. 85 Mr Willis' point, however, was that any appeal rights were lost by the applicant when the present Superannuation Administration Act repealed the former Superannuation Administration Act 1991 on 1 July 1996 because the relevant appellable decision of the first respondent was made on 9 January 1996. I disagree and would adopt the reasoning in that respect of the majority of the Full Bench ( Hill and Hungerford JJ, Peterson J dissenting) in Hollingsworth v Commissioner of Police (1998) 47 NSWLR 104; (1998) 81 IR 276 as to the survival of statutory appeal rights notwithstanding the repeal of the statute granting the right. It would require, in my view, clear and unambiguous words in the repealing statute to abolish existing rights: see also Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648 at 664, (1999) 93 IR 1 at 14; Maxwell v Murphy (1957) 96 CLR 261 at 267-268; and Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 564. There is nothing in the 1996 repealing Act here which, as I read it, does so. As Ms Nomchong submitted, s 30(1) of the Interpretation Act saved the provisions of the former Act so as not to affect the applicant's rights acquired thereunder to appeal against a determination of the first respondent. It was common ground that the relevant provisions of the former statute in respect of appeals were effectively the same as under the present statute. I note also that although the time period within which an appeal may be brought is 6 months, that period may be extended by the Court - I would have thought that if any case justified an extension of time, the circumstances of this case would do so. 86 I am, therefore, of the view that jurisdiction exists to make the declarations sought. Discretion to justify relief sought 87 As a matter of discretion, for the foregoing reasons, I consider a case has been established by the applicant for orders to be made substantially in the terms claimed, and with costs in favour of the applicant. Orders 88 I make the following orders - 1. Declare that during the period from 5 August 1989 to 21 September 1995 the applicant was entitled in accordance with his employment relationship with the second respondent to be absent on special sick leave without pay from his duties in the Police Service of New South Wales. 2. Declare that during the period from 5 August 1989 to 21 September 1995 the applicant was on special leave without pay which was sick leave from the Police Service of New South Wales within the meaning of the definition of "special leave without pay" in s 5A(1) of the Police Regulation (Superannuation) Act 1906. 3. Declare that the applicant is entitled to be paid by the first respondent out of the Police Superannuation Fund, established under s 3(1) of the Police Regulation (Superannuation) Act 1906, the annual superannuation allowance pursuant to s 7 of the said Act on the basis that he had completed 21 years and 4 months of service from 26 March 1970 to 4 August 1991. 4. Order that the second respondent pay the applicant's costs of the proceedings in an amount as agreed or assessed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.