Industrial Court of New South Wales CITATION: Bennett v SAS Trustee Corporation & Anor (No 3) [2008] NSWIRComm 97 PAUL GRAHAM BENNETT Appellant PARTIES: SAS TRUSTEE CORPORATION First Respondent MARGARET ANNE SCHOFIELD Second Respondent FILE NUMBER(S): IRC 1492 of 2007 CORAM: Schmidt J CATCHWORDS: Superannuation - notice of motion - orders seeking certificate issued by Commissioner of Police under section 12 C of the Police Regulation (Superannuation) Act 1906 be revoked - provisions of the Superannuation Administration Act 1996 considered - orders sought refused - motion dismissed LEGISLATION CITED: Police Regulation (Superannuation) Act 1906 Superannuation Administration Act 1996 CASES CITED: Bennett v SAS Trustee Corporation [2008] NSWIRComm 39 Bennett v SAS Trustee Corporation & Anor (No 2) [2008] NSWIRComm 89 HEARING DATES: 9 May 2008, 14 May 2008, 21 May 2008, 6 June 2008 DATE OF JUDGMENT: 6 June 2008 APPELLANT: Mr P Bennett, self represented FIRST RESPONDENT: LEGAL REPRESENTATIVES: Mr TM Ower of counsel SAS Trustee Corporation SECOND RESPONDENT No appearance JUDGMENT: - 12 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Schmidt J 6 June 2008 Matter No IRC 1492 of 2007 PAUL GRAHAM BENNETT v SAS TRUSTEE CORPORATION Application by Paul Graham Bennett to appeal against the decision of the SAS Trustee Corporation given on 4.4.2007 JUDGMENT (No 3) [2008] NSWIRComm 97 1 These proceedings concern an appeal brought by Mr Paul Graham Bennett under the Police Regulation (Superannuation) Act 1906, against a determination made on 4 April 2007, by the Disputes Committee of the SAS Trustee Corporation ('the Corporation'). The determination was made pursuant to s 67 of the Superannuation Administration Act 1996. It affirmed a decision to pay Ms Margaret Schofield a superannuation allowance by way of pension, in accordance with s 11AA(1)(b) of the Police Regulation (Superannuation) Act. 2 By motion filed on 5 March 2008, Mr Bennett sought an order that a certificate issued by the Commissioner of Police under s 12C of the Police Regulation (Superannuation) Act, be revoked. The order was opposed by the Corporation as being beyond the Court's jurisdiction, having regard to the provisions of s 21 of that legislation. 3 The matter was listed for judgment on the motion on 14 May, but judgment was deferred, after a late approach from Mr Bennett, who sought an opportunity to put further evidence before the Court. There was no appearance for Mr Bennett on 14 May and on 21 May, when the matter was relisted, it appeared that there had been certain difficulties in the Court communicating with Mr Bennett, which had led to his non appearance on the earlier occasion. 4 Mr Bennett is an unrepresented litigant. After explaining that he had not appreciated the need to tender all of the documents he wished to rely on, in support of his motion, the other parties did not oppose the motion being listed for further hearing. That hearing was listed today, 6 June. 5 At the hearing today, there was no appearance for one of the respondents, Ms Schofield, who on 30 May, wrote a letter addressed to the Registrar, advising: I Margaret Schofield have to discontinue these proceedings because I cannot afford to keep paying lawyers to attend court for Mr Bennet's(sic) baseless claims and harassment. I work part time three days per week and I am paying off a home and I am unavailable to attend court myself and would not have the confidence to do so anyway and I am unable to keep paying lawyers and I hereby discontinue my action. 6 Ms Schofield had earlier been represented in the proceedings by Mr Glenn Henniker, solicitor, who filed a notice of ceasing to act on 4 June. Ms Schofield had been made a respondent to the proceedings, by order of the Court, given on 29 February 2008. (See Bennett v SAS Trustee Corporation [2008] NSWIRComm 39.) 7 It followed that Ms Schofield was not entitled to 'discontinue' these proceedings. She had not commenced the proceedings and despite what she has said in her letter, Mr Bennett is, undoubtedly, entitled to pursue them, given the Court's judgment on jurisdiction. (See Bennett v SAS Trustee Corporation & Anor (No 2) [2008] NSWIRComm 89.) 8 The Registrar will now be asked to write to Ms Schofield, care of her former solicitor, because Mr Henniker has failed to advise the Court of an address at which Ms Schofield may be contacted and who, perhaps, has also failed to advise her that the step she has sought to take, to discontinue these proceedings, is ineffective. I make these observations, given that Ms Schofield's letter was, it appears, sent to the Court by Mr Henniker. Mr Henniker should also ensure that he promptly provides information to the Court, as to where it may contact Ms Schofield, as the Court's Rules required him to do, when filing his notice of ceasing to act. 9 Whatever sympathy one might have for Ms Schofield, given the personal circumstances she alludes to in her letter, these proceedings will nevertheless continue, whether or not Ms Schofield participates in them. Given what is sought in these proceedings, it would appear to be an application very much in her interests to respond to. Whether she elects to do so, or not, however, is a matter for her. 10 What Ms Schofield may not do, is to refuse to deal with the summons which has been served upon her. There is already certain material on the file, dealing with the summons, sent to the Court by Mr Henniker. Plainly, as an officer of the Court, he ought to take care that he has ensured that he has advised Ms Schofield of her obligations in relation to that summons, unless and until it is dealt with, or set aside. 11 I turn then to the motion. I have considered the further material which Mr Bennett has tendered today, which I note included a letter of 15 May from the NSW Police, which advised Mr Bennett that issues which he has raised are being considered. The Legislature 12 Sections 12C and 21 of the Police Regulation (Superannuation) Act respectively provide: 12C Determination as to whether death resulted from being hurt on duty (1) If a member of the police force dies, the Commissioner of Police is to decide whether or not the member's death was caused by the member having been hurt on duty and is to notify STC of the decision. (2) At the request of STC, the Commissioner of Police is to decide whether or not the death of a former member of the police force was caused by the former member having been hurt on duty while a member of the police force. (3) The Commissioner of Police is to give STC written notification of each decision made by the Commissioner under this section. (4) On being notified of a decision of the Commissioner under this section, STC: (a) is to give written notification of the decision to each person who, in the opinion of STC, would be benefited by a decision under this Act that the member or former member had been hurt on duty, and (b) is to do so whether or not the decision of the Commissioner was that the member or former member had been hurt on duty. 21 Determination by District Court (1) A person who considers himself or herself aggrieved by: (a) a decision made by STC on a matter that arises under this Act by reason of a member of the police force being hurt on duty, or (b) a decision made by the Commissioner of Police under section 10A (1), 10B (3) (a), 12C (1), 12C (2) or 12D (4) (a), may, within the period of 6 months after the person is notified of that decision, apply to the District Court for a determination in relation to that decision. (2) Notification of a decision under subsection (1) is to be given in writing. (3) STC or the Commissioner of Police, as the case may be, is entitled to be represented at the hearing of an application under this section. (4) The District Court, after considering an application under this section, may make a determination that the decision of STC or the Commissioner of Police, as the case may be, in respect of which the application was made: (a) be confirmed, or (b) be set aside and replaced by a different decision made by the District Court. (5) The District Court shall not make a decision referred to in subsection (4) (b) unless STC or the Commissioner of Police, as the case may be, could pursuant to this Act make that decision. (6) Where the District Court makes a decision referred to in subsection (4) (b), that decision shall, for the purposes of this Act, be deemed to be made by STC or the Commissioner of Police, as the case may be, and shall be carried into effect. (7) (Repealed) (8) The District Court, after hearing an application under this section, may assess the costs of the successful party to the application (including costs of representation and witness expenses, if any) and order that the costs so assessed or any part of them be paid to the successful party by any other party within a time specified in the order. (9) The District Court shall not order the payment of costs under subsection (8) by the applicant for a determination under this section unless satisfied that the application was frivolous or vexatious or was made fraudulently or without proper justification. (10) Where costs assessed under subsection (8) are not paid within the time specified in the order made under that subsection in respect of them, the person in whose favour the order was made may recover the costs in a court of competent jurisdiction as a debt due to that person by the person against whom the order was made. (11) In this section: District Court means the District Court of New South Wales established by the District Court Act 1973 . 13 Mr Bennett's case was that the Court had power to make the order he sought, because his complaint concerned the Corporation's breach of s 51 of the Superannuation Administration Act 1996, which required that: 51 Duties relating to functions (1) STC must: (a) act honestly in all matters relating to its functions relating to the STC schemes, and (b) exercise, in relation to all matters affecting the STC schemes, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide, and (c) ensure that its functions relating to the STC schemes are exercised in the best interests of persons entitled to receive benefits under the STC schemes, and (d) not enter into any contract or arrangement, or do anything else, that would prevent STC from, or hinder STC in, properly exercising STC's functions as a trustee. Note. The duties contained in subsection (1) reflect the covenants required of superannuation scheme trustees under the Superannuation Industry (Supervision) Act 1993 of the Commonwealth. (2) In exercising its functions, STC must have regard to: (a) the interests of persons entitled to receive benefits under the STC schemes, and (b) the Heads of Government Agreement, commencing 1 July 1996, relating to the exemption of certain State public sector superannuation schemes from the Superannuation Industry (Supervision) Act 1993 of the Commonwealth, and (c) the future liabilities of the STC funds, and (d) any statement in writing of the policy of the Government on any matter that is relevant to the functions of STC given by the Minister to STC. (3) Subsection (1) (d) does not prevent STC from entering into a contract or an arrangement under section 53. The circumstances 14 Mr Bennett's father, a former member of the police force, died in 2003. Thereafter, a pension was paid to Ms Margaret Schofield, in accordance with the provisions of s 11AA of the Police Regulation (Superannuation) Act, it being accepted by the Corporation that as Mr Bennett senior's de facto partner at the time of his death, she had an entitlement to such a pension. Mr Bennett challenged that decision. These proceedings resulted when the Corporation determined that Ms Schofield was entitled to the pension which she was receiving. 15 Despite the payment of the pension to Ms Schofield, the certificate required to be given by the Commissioner of Police on Mr Bennett senior's death, was not obtained until 2007. An application for that certificate was made by the Corporation by letter of 29 March 2007, which provided: Advice has been received that the above named member passed away on 26 April 2003. We note that the cause of death as stated on the certified copy of the death certificate is: "Cerebral metastases from melanoma". It would be appreciated if arrangements could be made to issue a certificate pursuant to Section 12C(2) of the Police Regulation (Superannuation) Act, stating whether or not Mr Bennett's death was caused by him being hurt on duty. 16 The date of the death certificate referred to in the Corporation's request to the Police Commissioner for the s 12C certificate, was not specified. Nevertheless, given the date of the request in March 2007, it is clear that it must have been the death certificate dated 10 January 2006, to which reference was being made. That certificate identified the cause of death to be: 5 MEDICAL Cause of Death a) Cerebral metastases, about 6 months and Duration of last illness b) From melanoma, 1997 Name of Certifying Medical Practitioner or Coroner Dr. R. Phipps 17 The Commissioner of Police issued a certificate on 21 May 2007, which specified: In terms of Section 12C(2) of the Police Regulation (Superannuation) Act 1906 I have decided that Former Sergeant Bennett's death was not caused by him being hurt on duty. 18 In a covering letter of the same date, it was advised that the certificate: 'indicates that the late Paul Bennett's death due to 'Cerebral metastases from melanoma' has not been accepted as being related to his duties as member of the NSW Police Force. 19 As the result of steps taken by Mr Bennett in other proceedings, a second death certificate was issued in October 2007. It also identified the cause of death, in identical terms to the earlier death certificate. 20 As Mr Bennett explained it, his complaint was not that the Police Commissioner had issued the s 12C certificate, but rather that the Corporation had proceeded on the basis of an incorrect death certificate, in seeking that a s 12C certificate be issued. 21 I finally note that the various documents which Mr Bennett tendered today do not touch directly on the matters which arise for determination, at this stage of the proceedings. Mr Bennett advanced no further submissions in support of his motion, by reference to that material. Consideration 22 Mr Bennett viewed both death certificates to be incorrect in various respects, including the cause of death specified. His view was that the illness in question had persisted for longer than the six months specified in the two certificates. 23 What information the Commissioner took into account, in coming to the conclusion reached in his May 2007 certificate, was not put in evidence. What s 12C required was that 'the Commissioner of Police is to decide whether or not the death of a former member of the police force was caused by the former member having been hurt on duty while a member of the police force.' No doubt, in coming to the view expressed in the certificate, the Commissioner had regard to information which was relevant to a determination of that question. What that information was, is not known. 24 Such matters were not explored in Mr Bennett's case, no doubt because his argument was that this Court could make the revocation order sought, because his concern was with the Corporations' actions, in seeking the s 12C certificate, which he complains was done inconsistently with the Corporation's obligations under s 51 of the Superannuation Administration Act. He was not seeking to agitate a grievance in relation to the Commissioner's decision. 25 One aspect of Mr Bennett's complaint was that the s 12C certificate was sought by the Corporation, after these proceedings were commenced. That was not made out on the evidence. These proceedings were commenced on 13 September 2007. The Corporation's request for the certificate was dated 29 March 2007. It was explained for the Corporation that the certificate had been sought at that time, because it had become aware that there had been an administrative oversight. The certificate should have been sought in 2003, upon Mr Bennett senior's death. Once the oversight came to light, the request for the certificate was made. 26 That submission appears to accord with the statutory scheme. How it was that the oversight occurred was not explored. That the Corporation was obliged to seek the certificate, once it came to light, that it had not been sought on the death of Mr Bennett senior, cannot be doubted, given the provisions of s 12C of the Police Regulation (Superannuation) Act. 27 Another aspect of Mr Bennett's complaint was that the reference made in the Corporation's request to the 2006 death certificate, was to a document which the Corporation knew to be incorrect. There was no evidence led on which it could be found that this was what had occurred. 28 Nevertheless, even if Mr Bennett be correct in his claim that in seeking the s 12C certificate, the Corporation acted inconsistently with its obligations under s 51 of the Superannuation Administration Act, in acting on the 2006 death certificate, I am satisfied that this Court does not have the jurisdiction to order the revocation of the Commissioner of Police's s 12C certificate. Revocation of a certificate issued by the Commissioner of Police is not a matter which this Court is empowered to deal with, given the express provisions of s 21 of the Police Regulation (Superannuation) Act. Any grievance which Mr Bennett has as to the accuracy of the decision made by the Commissioner, as expressed in the certificate, must be taken to the District Court. 29 In any event, there is nothing which appears to be incorrect, on the face of the certificate, even having regard to what appears in the October 2007 death certificate, which post dated the Commissioner's May 2007 s 12C certificate. 30 Further, even if it were proven that the second death certificate was incorrect, in specifying that Mr Bennett senior had suffered from the illness which caused his death, for only a period of six months, so far as the Commissioner of Police's s 12C certificate is concerned, it is difficult to see that any consequential alteration could thereby be required, given the terms of the certificate. It, after all, makes no reference at all to how long the illness was suffered prior to death. 31 It should also be observed that before any order of revocation of the certificate in question could be made, the Commissioner of Police would also be entitled to be heard on the application. It does not appear that Mr Bennett's motion was served on the Commissioner of Police, no doubt because of Mr Bennett's view, that his complaint concerned the request which the Corporation had made for the certificate to be issued, rather than with what the Commissioner of Police had done, in reaching the conclusion expressed in the certificate. Given the issue on which the parties joined, however, I took the view that it was unnecessary to require Mr Bennett to go to the trouble and expense of serving his motion on the Commissioner of Police, or for the Commissioner to be heard on that application. 32 It follows, for the reasons I have explained, that I must decline to make the order sought as to the revocation of the Police Commissioner's s 12C certificate, given the express terms of s 21 of the Police Regulation (Superannuation) Act. 33 I accept that in these proceedings, Mr Bennett is entitled to challenge the Corporation's conduct, which led to the decision here in question being made, namely the decision that Ms Schofield was entitled to a pension, as being inconsistent with the Corporation's obligations under s 51 to the Superannuation Administration Act. This flows from the provisions of ss 67 and 88 of that Act. 34 Nevertheless, I am also satisfied that any order that the Police Commissioner's s 12C certificate be revoked, must be pursued in accordance with the provisions of s 21 of the Police Regulation (Superannuation) Act, before the District Court. Such a certificate is issued by the Police Commissioner as the result of decisions which he makes, even though the statutory mechanism which results in such a certificate being issued, is the request which the Corporation makes, in accordance with s 12C(2). While the Court has the power to deal with grievances in relation to the Corporation's decisions, it does not have the power to deal with grievances concerning the Police Commissioner's decision to issue a s 12C certificate. Orders 35 For the reasons given, the order sought in the motion of 5 March 2008 is refused and the motion dismissed accordingly. ------------------------ 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.