SAS Trustee Corporation v Ainsworth [2011] NSWIRComm 128

Industrial Relations Commission New South Wales Medium Neutral Citation: SAS Trustee Corporation v Ainsworth [2011] NSWIRComm 128 Hearing dates: 15 July 2011 Decision date: 27 September 2011 Jurisdiction: Industrial Court of NSW Before: Boland J, President, Marks J, Staff J Decision: 1. Except to the extent leave is granted in this judgment, leave to appeal is refused. 2. To the extent leave to appeal is granted, the appeal is upheld. 3. The matter of whether the knee injuries suffered by Mr Ainsworth constituted a specified infirmity in accordance with the version of s 10B(1) Police Regulation (Superannuation) Act 1906 that applied as at 26 November 1997 and as that provision was construed by the Full Bench in Morley, is remitted to Backman J for determination. 4. The appellant shall have 14 days from the date of this decision in which to file any submissions regarding the costs of the appeal and the respondent shall have a further 14 days in which to respond. Unless either party wishes to be heard orally costs will be determined on the papers. Catchwords: APPEAL - SUPERANNUATION - POLICE - Superannuation Administration Act 1996 - dispute - certificate of incapacity - application to include additional infirmities - amendment to Police Regulation (Superannuation ) Act 1906 - s 10B(1) - whether retrospective - held - amendment affected an existing right or obligation - trial judge erred in determining amendment should be given retrospective operation - statutory interpretation - principles - leave to appeal granted as to construction of s 10B(1) as amended by the Police Superannuation Amendment Act 2007 otherwise refused - matter remitted to trial judge to be determined in accordance with this judgment Legislation Cited: Police Regulation (Superannuation) Act 1906 Superannuation Administration Act 1996 Police Superannuation Amendment Act 2007 Cases Cited: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 Ace Business Brokers Pty Ltd v Phillips - Treby [2000] NSWIRComm 163; (2000) 100 IR 420 Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264 David Ainsworth v SAS Trustee Corporation [2010] NSWIRComm 113 De Simone Consulting Pty Ltd v Ison [2000] NSWIRComm 91; (2000) 97 IR 478 Fox v Percy [2003] HCA 22; (2003) 214 CLR 188 Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381 Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 Miles v SAS Trustee Corporation [2011] NSWIRComm 15 Morley v SAS Trustee Corporation [2007] NSWIRComm 90; [2007] 162 IR 177 Perrott v XcelleNET Australia Ltd (1998) 84 IR 255 Category: Principal judgment Parties: SAS Trustee Corporation (Appellant) David Ainsworth (Respondent) Representation: Counsel Mr T Ower of counsel (Appellant) Mr B Dooley SC (Respondent) Solicitors SAS Trustee Corporation (Appellant) Kim Smith and Associates (Respondent) File Number(s): IRC 921 of 2010 Decision under appeal Citation: David Ainsworth v SAS Trustee Corporation [2010] NSWIRComm 113 Date of Decision: 2010-08-18 00:00:00 Before: Backman J File Number(s): IRC 921 of 2010