New South Wales Court of Appeal CITATION: SAS Trustee Corporation v Patterson [2010] NSWCA 167 HEARING DATE(S): 6 July 2010 JUDGMENT DATE: 15 July 2010 JUDGMENT OF: Allsop ACJ at 1; Campbell JA at 30; Handley AJA at 31 DECISION: Appeal dismissed with costs. CATCHWORDS: APPEAL – statutory appeal – District Court Act 1973, s 142N – party aggrieved by an award of the District Court in point of law - SUPERANNUATION – police superannuation – entitlement to additional amount of annual superannuation allowance – Police Regulation (Superannuation) Act 1906, s 10(1A)(b) – disabled member of the police force – benefits – no requirement to make application for payment and no time constraint prior to 30 June 2006 - STATUTES – interpretation – Police Regulation (Superannuation) Act 1906 – effect of s 10(1BA) inserted by the Superannuation Legislation Amendment Act 2006 – right accrued before the date of its operation – no contrary intention to affect accrued rights – construction in accordance with the Interpretation Act 1987, s 30(1)(c) District Court Act 1973 (NSW), s 142 G, J, M, N LEGISLATION CITED: Interpretation Act 1987 (NSW), s 30(1)(c) Police Regulation (Superannuation) Act 1906 (NSW) ss 1, 3, 10, 10(1A), 10(1BA), 16A, 21 Superannuation Legislation Amendment Act 2006 (NSW) CATEGORY: Principal judgment Maxwell v Murphy [1957] HCA 7; 96 CLR 261 CASES CITED: Rodway v The Queen [1990] HCA 19; 169 CLR 515 Victrawl Pty Ltd v Telstra Corporation Ltd [1995] HCA 51; 183 CLR 595 PARTIES: SAS Trustee Corporation (Appellant) Trevor Hilton Patterson (Respondent) FILE NUMBER(S): CA 2009/298573 COUNSEL: Mr T Ower (Appellant) Dr C Birch SC (Respondent) SOLICITORS: SAS Trustee Corporation (Appellant) Walter Madden Jenkins (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/34 LOWER COURT JUDICIAL OFFICER: Quirk DCJ LOWER COURT DATE OF DECISION: 10 September 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/298573 ALLSOP ACJ CAMPBELL JA HANDLEY AJA Thursday 15 July 2010 SAS TRUSTEE CORPORATION v PATTERSON Judgment 1 ALLSOP ACJ: This is an appeal under the District Court Act 1973 (NSW), s 142N from proceedings in the District Court's residual jurisdiction under the District Court Act, s 142G by reason of proceedings heard by it under the Police Regulation (Superannuation) Act 1906 (NSW) (the "Act"), s 21. Relevantly, the appeal to this Court is given to a party aggrieved by an award of the District Court in point of law: s 142N(1). An "award" is defined in s 142M to include, amongst other things, an order, decision or determination. 2 The respondent (Mr Patterson) made an application for an additional amount of annual superannuation allowance under the Act. The appellant (the "STC") which is a statutory corporation that controls and administers the Police Superannuation Scheme (the "Scheme") under the Act (see in particular s 3) and cognate legislation, refused the application on the basis that it was out of time by reference to provisions of the Act. 3 The primary judge (Quirk DCJ) heard Mr Patterson's complaint about the STC's decision under an application brought by him under the Act, s 21 which, relevantly, was in the following terms: "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) 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. …. (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." 4 In making a determination under the Act, s 21 the primary judge's task was given further content by the District Court Act, s 142J, which is in the following terms: " 142J Decisions of Court when exercising residual jurisdiction (1) The following apply in the exercise of the Court's residual jurisdiction: (a) a decision of the Court in any matter is to be on the real merits and justice of the case, (b) the Court is not bound to follow strict legal precedent, (c) subject to Subdivision 3: (i) a decision or proceeding of the Court is not vitiated by reason of any informality or want of form, and (ii) a decision or proceeding of the Court is not liable to be appealed against, reviewed, quashed or called in question by any court, and (iii) no proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of any decision or proceeding of the Court relating to, or on the face of the proceedings appearing to relate to, any matter within its residual jurisdiction, and (iv) the validity of any decision or proceeding of the Court cannot be challenged in any manner. (2) Nothing in subsection (1) prevents the Court from reconsidering any matter that has been dealt with by it in its residual jurisdiction (or had been dealt with by the Compensation Court), or from rescinding, altering or amending any decision previously made or given by the Court in the exercise of that jurisdiction (or by the Compensation Court), all of which the Court has authority to do. (3) In this section, decision includes award, order, determination, ruling and direction." 5 The judge set aside the decision of the STC and in its place made a decision that the right of Mr Patterson to an additional superannuation allowance was to be determined by reference to the terms of the Act as they stood before 30 June 2006 without any relevant time limit as to the making of an application. 6 In order to understand the decisions of the STC and the primary judge, the circumstances of Mr Patterson should be explained and the relevant provisions of the Act set out. 7 Mr Patterson was born in 1946. He became a constable in the New South Wales Police Force in 1966 and thereupon became a contributor to the Scheme. On 27 June 2001, he was certified unfit for duty due to ischaemic heart disease, lymphedema of the left leg, obesity, hypertension and sleep apnoea. From July 2001 until November 2005, there was a dispute between Mr Patterson and the Commissioner of Police as to whether the infirmities which made Mr Patterson unfit for duty were caused by Mr Patterson being "hurt on duty" as that phrase is defined in the Act, s 1. Disputes took place in relation to this which led to proceedings being commenced by Mr Patterson in the District Court in 2005. Within those proceedings, Mr Patterson notified the STC that his application would be limited to determining whether infirmities of hypertension and personality of obsessive type associated with anxiety and depression were caused by him being hurt on duty. In 2005, the proceedings in the District Court were settled. Part of that settlement involved the Commissioner of Police issuing an amended certificate determining that the infirmities that I have just set out were caused by Mr Patterson being hurt on duty. 8 The certification by the Commissioner of Police that the relevant infirmities were caused by Mr Patterson being hurt on duty is to be understood by reference to the Act, ss 10 and 10B. At relevant times prior to 30 June 2006, the Act, ss 10 and 10B were in the following terms: "10 Superannuation allowance where member hurt on duty (1) In this section: attributed salary of office means: (a) in relation to a member of the police force who is discharged—the member's attributed salary of office at the date of the member's discharge, or (b) in relation to a former member of the police force who resigned or retired—the member's attributed salary of office at the date of the member's resignation or retirement. disabled member of the police force means: (a) a member of the police force who is discharged after being certified, pursuant to section 10B (1), to be incapable, from a specified infirmity of body or mind, of discharging the duties of the member's office, or (b) a former member of the police force who resigned or retired and who, according to a certificate given pursuant to section 10B (2) at any time after the member's resignation or retirement, would have been incapable, from an infirmity of body or mind, of discharging the duties of the member's office at the time of the member's resignation or retirement, that infirmity being determined, pursuant to section 10B (3) or on appeal, to have been caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be. retired includes discharged as referred to in section 7 or 14. (1A) Subject to this section, the annual superannuation allowance for a disabled member of the police force is: (a) an amount that is equal to 72.75 per cent of the member's attributed salary of office, (b) except where paragraph (c) applies, an additional amount that is: (i) not more than 12.25 per cent of the member's attributed salary of office, and (ii) commensurate, in the opinion of STC, with the member's incapacity for work outside the police force, and (c) if the disabled member is totally incapacitated for work outside the police force and, in the opinion of STC, the member was hurt on duty because the member was required to be exposed to risks to which members of the general workforce would normally not be required to be exposed in the course of their employment, an additional amount that is: (i) not less than 12.25 per cent and not more than 27.25 per cent of the member's attributed salary of office, and (ii) commensurate, in the opinion of STC, with the risks to which the member was so required to be exposed, multiplied by the equivalent service ratio of the member as at the date of the member's discharge, resignation or retirement. (1AA) If STC has made a determination under section 14AA in relation to an annual superannuation allowance payable under this section, the amount of the allowance is reduced by the amount specified in STC's determination. (1B) An annual superannuation allowance may be granted under this section to a disabled member of the police force whatever the member's length of service. (1C) Where a former member of the police force who resigned or retired is granted an annual superannuation allowance under this section, the allowance shall, at the time it first becomes payable, be increased or reduced, as the case may require, by the total amount (if any) that it would have been increased or reduced under Division 2 or any other provision of this Act if it had been granted when the former member resigned or retired. (1D) STC may: (a) make a determination at any time of an additional amount of a superannuation allowance under this section, and (b) vary any such determination at any time, and may direct that the determination or variation take effect from such date as STC considers appropriate. (2) An annual superannuation allowance under this section shall not be payable to a former member of the police force who: (a) commuted under Division 3 a superannuation allowance that previously became payable to the former member under this Act, or (b) has been paid a disengagement benefit under section 8A. (3)–(7) (Repealed) … 10B Medical examination of disabled member and determination of whether hurt on duty (1) An annual superannuation allowance shall not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of discharging the duties of the member's office. (2) An annual superannuation allowance shall not be granted under section 10 to a former member of the police force who resigned or retired unless: (a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, (a1) where the regulations so require, the notification was in or to the effect of the prescribed form, and (b) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member would have been incapable, from that infirmity of body or mind, of discharging the duties of the member's office at the time of the member's resignation or retirement. (2A) STC may certify that a member of the police force is incapable of discharging the duties of the member's office only if the member is incapable of discharging the duties of the office in the police force in which the member is then employed and also any other office in the police force: (a) which is available to the member, (b) which is not lower in rank than the office in which the member is then employed, and (c) in which it would be reasonable to expect the member to be employed. (2B) STC may certify that a former member of the police force would have been incapable of discharging the duties of the member's office if the member would have been incapable of discharging the duties of the office in the police force in which the member was employed at the time of the member's resignation or retirement and also any other office in the police force: (a) which was available to the member at that time, (b) which was not lower in rank than the office in which the member was then employed, and (c) in which it would have been reasonable to expect the member to have been employed. (2C) In this section: medical advice means the advice of: (a) 2 members of the Police Medical Board, or (b) any one or more medical practitioners nominated by the STC. (3) Where a member or former member of the police force is duly certified under subsection (1) or (2), the Commissioner of Police shall: (a) decide whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be, and the date or dates on which the member or former member was hurt on duty, and (b) give the member or former member written notification of the decision." 9 Section 10 deals with superannuation allowances where the member was hurt on duty. Section 10B concerns the prerequisites for an allowance or gratuity under s 10 to a member or former member of the police force, including certification of hurt on duty. 10 It was common ground that once the Commissioner gave a certificate as to Mr Patterson's infirmities being caused by his being hurt on duty, subsections 10B(2) and (3) were satisfied and Mr Patterson fell within the definition of a "disabled member of the police force" for the purposes of s 10(1). 11 Following that certification, the STC commenced paying Mr Patterson a hurt on duty pension at the rate of 72.75 per cent of his attributed salary being the allowance provided for under the Act, s 10(1A)(a). 12 In November 2005, Mr Patterson gave instructions to his solicitor to make an application for an additional amount of the pension referred to in the Act, s 10(1A)(b). 13 Prior to 30 June 2006, the terms of the Act, including the terms of s 10, did not expressly require a member to apply for an additional allowance under s 10(1A)(b). Once a member fell within the definition of "disabled member of the police force", he or she became eligible and entitled to receive benefits under s 10(1A)(a) and (b), subject to the operation of those provisions. The allowance described by (b) involved the formation of an opinion by the STC; the allowance in (a) did not. The evidence before the primary judge was that in the administration of the Scheme, the STC generally only considered the question of an additional amount under s 10(1A)(b) if a member made an application for it. 14 On 30 June 2006, the Superannuation Legislation Amendment Act 2006 (NSW) ("the Amending Act") came into force inserting subsection (1BA) into s 10 after subsection (1B) and before subsection (1C). Section 10 (1BA) was in the following terms: "A superannuation allowance referred to in subsection (1A) or an additional amount of a superannuation allowance referred to in subsection (1D) is not payable to a disabled member of the police force unless an application for payment of the allowance or additional amount concerned is made: (a) before the member reaches the age of 60 years, or (b) not later than 5 years after the member resigns or retires, whichever is the later." 15 One can see immediately that s 10(1BA) introduced two qualifying elements not previously present in s 10: (a) the need to make an application for payment; and (b) a time constraint on making that application. 16 The decision of the primary judge and the issue on appeal centred upon the meaning of s 10(1BA) and whether its terms disentitled Mr Patterson from succeeding in any application for an additional amount under s 10(1A)(b). 17 The relevant facts which potentially brought s 10(1BA) into play can be shortly stated. Mr Patterson was born in early 1946. He turned 60 in early 2006. The fifth anniversary of the retirement of Mr Patterson from the force was 5 July 2006. It was not until 17 April 2008 that Mr Patterson applied for an additional amount of superannuation allowance under s 10(1A)(b). Thus, if s 10(1BA) applied to Mr Patterson's position, the additional allowance was not payable (he having turned 60 and more than five years having passed since he was discharged). This position was subject only to the operation of s 16A of the Act which gave the STC a discretion to accept a late application. The terms of s 16A were as follows: "16A Late elections, applications and choices (1) STC may accept an election, application or choice that is not made or received within the time required under this Act if it is satisfied that in all the circumstances of the case it is desirable to do so. (2) STC may impose conditions on the acceptance of the election, application or choice. (3) STC may deal with the election, application or choice accepted under this section as if it had been made or received within the required time." 18 The learned primary judge came to the conclusion that, by reason of his circumstances as at 30 June 2006, Mr Patterson had a form of accrued right to an allowance under the Act, s 10 such that if s 10(1BA) were to have the operation contended for by the STC that accrued right would be destroyed. Thus, her Honour concluded that the Amending Act should be construed in accordance with the Interpretation Act 1987 (NSW), s 30(1)(c) as not affecting any such right acquired or accrued before the date of its operation. Her Honour was of the view that the Amending Act and s 10(1BA) should not be taken as exhibiting an intention contrary to this and so the Amending Act should not be construed as intending to apply to persons in the position of Mr Patterson. 19 It was accepted by the STC in argument before us that Mr Patterson had a species of accrued right. 20 It is not necessary for the disposition of this appeal to deal with the nature and manner of acquisition or accrual of rights under the Act, s 10 beyond the position of Mr Patterson. Before 30 June 2006, he fully satisfied the definition of "disabled member of the police force" under s 10(1), having satisfied all the requirements of s 10B, there having been relevant certifications under s 10B(2) (as to infirmity) and s 10B(3) (as to hurt on duty). 21 Mr Patterson was therefore entitled to an amount under s 10(1A)(a). He was entitled also to have the STC consider his position and form an opinion, according to law, under s 10(1A)(b). The Act as it existed prior to 30 June 2006 did not require him to apply for either allowance under s 10(1A)(a) and (b). Given the matters the subject of s 10(1A)(b)(ii) it is understandable, however, that the STC would not embark on forming any opinion without having material from the member as to his or her incapacity. There was, however, no statutory requirement for the member to make application. The right of someone in Mr Patterson's position under s 10(1A)(b) was not one which gave him a present entitlement to receive any particular sum calculated by reference to any given percentage; but rather, such a person had an existing right to have the STC consider his or her circumstances and form an opinion as to the matters in s 10(1A)(b) and thereafter pay him any sum conformable with the opinion thus formed. 22 Section 30(1)(c) of the Interpretation Act is in the following terms: "30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not: … (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule …" 23 Mr Patterson undoubtedly had prior to 30 June 2006 a species of acquired or accrued rights sufficient to engage the Interpretation Act, s 30(1)(c); so that unless legislation revealed a contrary intention it would not be construed as affecting the accrued or acquired rights. See also the principles in cases such as Maxwell v Murphy [1957] HCA 7; 96 CLR 261 at 285; Rodway v The Queen [1990] HCA 19; 169 CLR 515 at 518-519; and Victrawl Pty Ltd v Telstra Corporation Ltd [1995] HCA 51; 183 CLR 595 at 615. 24 It was submitted on behalf of the STC that her Honour erred in failing to construe the Amending Act and s 10(1BA) as exhibiting a contrary intention sufficient to overcome the effect of the terms of the Interpretation Act, s 30(1)(c). It was submitted that s 10(1BA) was directed to retrospectivity. It was submitted that the conjunction "or" appearing twice in the section made it clear that s 10(1BA) covered persons such as Mr Patterson who had a base pension already, but who did not have, as yet, any additional allowance pursuant to s 10(1A)(b). 25 I reject the submission of the STC. The use of the word "or" and the general text and structure of the Amending Act are insufficient to indicate that Parliament was directing itself to the position of persons with a accrued entitlement to allowances under the Act. The use of the word "or" in particular is not conclusive. It can be taken as providing for the future and for persons who thereafter become otherwise entitled to apply for an allowance (the condition of application now being introduced). Nothing in the terms of the Amending Act or s 10(1BA) reveals an intention to affect accrued rights. I see nothing to the contrary of the position called for by the Interpretation Act, s 30(1)(c). 26 That s 10(1BA) does not operate and was not intended to operate in the manner contended for by the STC can be seen from the potentially capricious and arbitrary operation that would obtain if s 10(1BA) applied to persons in Mr Patterson's position. Mr Patterson only had 5 days after the commencement of the Amending Act on 30 June 2006 to lodge his application if s 10(1BA) applied to him. 27 It is unnecessary to discuss whether any relevant right would accrue for the purposes of the Interpretation Act, s 30(1)(c) before all relevant certifications under s 10B were made or before the member became, unequivocally, someone who met the definition of "disabled member of the police force" for the purpose of s 10(1). 28 It is also unnecessary to discuss whether Mr Patterson could have been taken to have made an application for an additional allowance under s 10(1A)(b) before 2006 by his claim that his infirmities were caused by his being hurt on duty and his claim to be entitled to a certification in that regard. In circumstances where his length of service (over 30 years) was such as apparently to give him rights under the Act, s 7 to a superannuation allowance of 72.75 per cent (that is the same allowance as provided for under s 10(1A)(a)) it may be that his claim to be entitled to certification that his infirmities were caused by being hurt on duty was a claim for any benefits under the Act that would flow from that circumstance (such as an additional allowance under s 10(1A)(b)). This matter was not addressed by the parties before the primary judge. 29 The appeal should be dismissed with costs. 30 CAMPBELL JA: I agree with Allsop ACJ. 31 HANDLEY AJA: I agree with Allsop ACJ. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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