McKenzie v SAS Trustee Corporation [2009] NSWIRComm 177

Industrial Court of New South Wales

CITATION: McKenzie v SAS Trustee Corporation [2009] NSWIRComm 177 This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES: Anthony Ronald McKenzie (Applicant) SAS Trustee Corporation (Respondent)

FILE NUMBER(S): IRC 1746 of 2008

CORAM: Haylen J

SUPERANNUATION - appeal - Superannuation Administration Act 1996 - ss 51, 66, 67, 88 - claim for certification of incapability to perform functions of a police officer because of an infirmity of mind at time of resignation - Police Regulation (Superannuation) Act 1996 - ss 1, 10, 10B - retired police officer claims to have been suffering from post-traumatic stress disorder and major depression at time of resignation in 1990 - claim not made until 2006 - whether other life stressors occurring after resignation from Police Service were the cause of disabling condition - no treatment given or diagnosis made at time of resignation - conflicting medical evidence - preponderance of medical evidence favours existence of condition claimed and incapability of performing police duties - appeal upheld - certificate issued CATCHWORDS: PRACTICE AND PROCEDURE - appeal pursuant to s 88 Superannuation Administration Act 1996 - nature of appeal - role of Court on appeal

LEGISLATION CITED: Evidence Act 1995 s 140 Police Regulation (Superannuation) Act 1906 ss 10, 10B(2),51, Superannuation Administration Act 1996, ss 5, 40, 67, 88, 88(3), 88(4)

Builder's Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 CASES CITED: Gedeon v First State Super Trustee Corporation [2005] NSWIRComm 62 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 SAS Trustee Corporation v Hazlewood [2009] NSWIRComm 157