Harding v SAS Trustee Corporation [2011] NSWIRComm 4

Industrial Relations Commission New South Wales Medium Neutral Citation: Harding v SAS Trustee Corporation [2011] NSWIRComm 4 Hearing dates: 13 December 2010 Decision date: 22 February 2011 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: 1. Appeal Upheld 2. Costs reserved Catchwords: SUPERANNUATION APPEAL - appeal against decision of SAS Trustee Corporation - whether the appellant was suffering from an infirmity of the mind on relevant date - 'infirmity of the mind' - expert witness reports - appellant found to have adjustment disorder on the relevant date - appellant incapable of exercising functions of a police officer - appeal upheld - costs reserved Legislation Cited: Police Act 1990 - s 14, s 181B Police Regulation (Superannuation) Act 1906 - s10B Superannuation Administration Act 1996 - s 67, s 88 Cases Cited: Ford, Roger v the State Authority Superannuation Board [1994] NSWIRComm 217 Morley v SAS Trustee Corporation (2007) 162 IR 177 Texts Cited: Diagnostic And Statistical Manual of Mental Disorders, Fourth Edition published by the American Psychiatric Association Category: Principal judgment Parties: Brian Robert Harding (Appellant) SAS Trustee Corporation (Respondent) Representation: Mr I Todd of counsel (Appellant)

Mr T Ower of counsel (Respondent) Walter Madden Jenkins (Appellant)

Rodney Steventon Blume Solicitor (Respondent) File Number(s): IRC 1615 of 2009

Judgment

Introduction and background to the proceedings 1This is a superannuation appeal instituted by the appellant, Brian Robert Harding, against the respondent, SAS Trustee Corporation. The appellant was formerly a member of the New South Wales Police Force having joined in 1967. He resigned from the Police Force on 16 November 1996 in circumstances that I shall shortly describe. 2By application served on 29 May 2006 the appellant applied for an invalidity superannuation benefit, being a Hurt on Duty pension as provided for in s 10 of the Police Regulation (Superannuation) Act 1906 ("the Act"). The granting of such a pension entitlement is governed, relevantly for the purpose of these proceedings, by s 10B of the Act, which is in the following terms: 10B Medical examination of disabled member and determination of whether hurt on duty (1) An annual superannuation allowance or gratuity must 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 personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990. (2) An annual superannuation allowance or gratuity must 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, and (b) if the regulations so require, the notification was in the prescribed form, and (c) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member was incapable, from that infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member's resignation or retirement. (2A) For the purposes of determining a member's or former member's incapacity under this section: (a) STC is not to have regard to the member's or former member's actual rank or position or any functions (other than the functions referred to in subsection (2) (c)) of the member or former member at the time to which the certification relates, and (b) the capacity to exercise a function by delegation is not taken to be a capacity to personally exercise the function. (2B), (2BA) (Repealed) (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. 3The respondent, through its delegated authority, declined to make a certification under s 10B(2) of the Act. 4The appellant disputed that decision under s 67 of the Superannuation Administration Act 1996. The disputes committee declined the application on the basis that it was not satisfied that the appellant was incapable from an infirmity of body or mind of personally exercising the functions of a police officer, referred to in s 14(1) of the Police Act 1990 at the time of his exit from the service on 14 November 1996. 5The appellant brings this present appeal to this Court pursuant to s 88 of the Superannuation Administration Act , which is in the following terms: 88 Appeals (1) A person aggrieved by a determination of STC or an STC disputes committee under section 67 (relating to determination of disputes) may appeal against the determination to the Industrial Relations Commission in Court Session (the Commission ). (2) The appeal must be made within 6 months after the appellant is notified of the determination or within such further period as the Commission allows. (3) In dealing with the appeal, the Commission may exercise any function that could have been exercised by STC or the STC disputes committee, as the case may be, in making the determination the subject of the appeal. (4) In dealing with the appeal, the Commission is to have regard to this Act and any other relevant provisions regulating the superannuation scheme concerned and such other matters as it considers to be relevant. (5) In dealing with the appeal, the Commission is not bound by the rules of evidence and may inform itself in any manner it thinks fit. (6) The final determination made by the Commission on the appeal is to be given effect to as if it were a determination of STC. 6The nature of the appeal and the manner in which it was to be dealt with was not the subject of controversy in the proceedings. It is an appeal by way of a hearing de novo to be determined by reference to the state of the evidence and other material that it is appropriate to consider as at the date of the hearing of the appeal. 7In summary, in order to succeed on the appeal, the appellant had to demonstrate: 1) that he was suffering from an infirmity of the mind which was capable of being specified; 2) that the infirmity of the mind was caused by an injury that had been notified to the Commissioner of Police within 6 months of receiving it; 3) that he had so notified the Commissioner of Police before the date of his retirement from the police force, namely 14 November 1996; 4) that it was appropriate to certify that he was incapable, from that infirmity of mind, of personally exercising his functions as a police officer at the time of his retirement; 5) that all of these matters have been established in circumstances where it is appropriate to certify as to them having been established having regard to the obligations, duties and responsibilities of the STC as a trustee of the relevant superannuation fund. 8I should add for completeness that matters numbers 2) and 3) above were not put in issue in these proceedings.