Cameron v SAS Trustee Corporation [2011] NSWIRComm 69

Industrial Relations Commission New South Wales Medium Neutral Citation: Cameron v SAS Trustee Corporation [2011] NSWIRComm 69 Hearing dates: 2, 3 and 4 May 2011 Decision date: 25 May 2011 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: 1) The time during which the applicant must make the appeal, the subject of these proceedings, is extended to and including 11 September 2009. 2) I find that the applicant is entitled to be paid a total and permanent invalidity benefit under s 39 of the State Authorities Superannuation Act , being satisfied that his cessation of employment with NSW Maritime was due, directly or indirectly, to a permanent mental incapacity and that when he ceased to be employed by NSW Maritime, he was permanently unable, by reason of that mental incapacity, to be engaged, or to be employed in any remunerative occupation in which, in the opinion of the Court, it would otherwise be reasonable to expect him to engage. That mental incapacity is constituted by a major depressive disorder, which is moderately severe and chronic, and an adjustment disorder with mixed anxiety and depressed mood, also chronic. 3) The appeal of the applicant is upheld. 4) The respondent is to pay the applicant's costs of the proceedings in an amount assessed under the Legal Profession Act in default of agreement. Catchwords: SUPERANNUATION APPEAL - appeal against a decision of SAS Trustee Corporation to deny benefits - claim for total and permanent invalidity benefit -application lodged out of time - whether applicant should be granted leave to institute proceedings - whether applicant totally and permanently incapacitated - expert opinions - "any remunerative occupation" - burden of proof - held applicant entitled to total and permanent invalidity benefit - factors regarding whether leave should be granted for extension of time finely balanced - extension of time granted - appeal upheld - orders made Legislation Cited: State Authorities Superannuation Act 1987 - s 39 Superannuation Administration Act 1996 - s 48, s 49, s 51, s 67, s 88 Cases Cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Chammas v Harwood Nominees Pty Ltd (No 1) [1993] 7 ANZ Ins Case 61 - 175 Dolton, Noel v Sasb [1995] NSWIRComm 296 Finch v Telstra Super Pty Ltd [2010] HCA 36 Gedeon v First State Super Trustee Corporation [2005] NSWIRComm 62 Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913 Kenan Berk v Westpac Securities Administration Ltd [2010] NSWSC 28 McKenzie v SAS Trustee Corporation [2009] NSWIRComm 177 Munios v Johnson and Johnson Retirement Benefits Limited (unreported, 5 December 1996), No 3597 of 94) Nile v Club Plus Superannuation Pty Ltd & Anor [2005] NSWSC 55 Swift v SAS Trustee Corporation [2010] NSWCA 182 Category: Principal judgment Parties: Bruce Malcolm Cameron (Applicant) SAS Trustee Corporation (Respondent) Representation: Mr G Beauchamp of counsel (Applicant) Mr T Ower of counsel (Respondent) WG McNally Jones Staff (Applicant) SAS Trustee Corporation Disputes and Appeals (Respondent) File Number(s): IRC 1430 of 2009