Court of Appeal Supreme Court New South Wales Medium Neutral Citation: SAS Trustee Corporation v Arthur Cox [2011] NSWCA 408 Hearing dates: 3 February 2011 Decision date: 20 December 2011 Before: McColl JA at [1]; Campbell JA at [136]; Sackville AJA at [154] Decision: 1. Appeal allowed. 2. Set aside the determination of Ashford DCJ made on 26 November 2009. 3. Remit the matter to the District Court in its residual jurisdiction for determination by that Court in accordance with law. 4. Respondent to pay the costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: SUPERANNUATION - police superannuation - backdating of superannuation entitlement for hurt on duty injury to date of medical discharge - application made 16 years after discharge - whether primary judge took into account irrelevant considerations or disregarded relevant considerations - Police Regulation (Superannuation) Act 1906 s 9A(4), s 10B TRUSTS - Superannuation - defined benefit scheme - trustee a statutory body - duty of trustee -- whether trustee had a duty to advise beneficiaries of potential rights - relevance of contributions of fund SUPERANNUATION - where delay in processing application pending legislative amendments - whether error in position of law in considering delay between application for benefit and decision Legislation Cited: Constitution (Consolidated Fund) Amendment Act 1982 Courts Legislation Amendment Act 2004 District Court Act 1973 Interpretation Act 1987 Police Act 1990 Police Regulation (Superannuation) Act 1906 Police Superannuation Legislation Amendment Act 2007 Superannuation Administration Act 1987 Superannuation Administration Act 1996 Superannuation Industry (Supervision) Act 1993 (Cth) Superannuation Legislation Amendment Act 2006 Trustee Act 1925 Workplace Injury Management and Workers Compensation Act 1998 Contracts of Employment and Redundancy Payments Act (Northern Ireland) 1965 (NI) Cases Cited: Air Jamaica Ltd v Charlton [1999] 1 WLR 1399 Amaca Pty Ltd v Doughan [2011] NSWCA 169 Asea Brown Boveri Superannuation Fund No 1 Pty Ltd v Asea Brown Boveri Pty Ltd, McKeown, Gray & ABB Properties (Vic) Pty Ltd [1999] 1 VR 144 Attorney-General (NSW) v Perpetual Trustee Company Ltd [1955] HCA 9; (1955) 92 CLR 113 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 13 Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; (1998) 195 CLR 566 Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; (2011) 119 ALD 472 Boland v SAS Trustee Corp (1999) 97 IR 127 Brittlebank v Goodwin (1868) LR 5 Eq 545 Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 75 ALJR 312 Corin v Patton (1990) 169 CLR 540 Cowan v Scargill [1985] Ch 270 CSR Ltd v Chief Commissioner of State Revenue [2006] NSWSC 1380; (2006) 68 NSWLR 440 Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 Enever v R [1906] HCA 3; (1906) 3 CLR 969 Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254 Gerrard & Kirchner v Mayne Nickless Ltd (1996) 135 ALR 494 Goodwin v Commissioner of Police [2010] NSWCA 239 Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 Hawkesley v May [1956] 1 QB 304 Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539 HEST Australia Ltd v Sykley [2005] FCA 1381; (2005) 147 FCR 248 Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd [1991] 2 All ER 597; [1991] 1 WLR 589 In re Lewis [1904] 2 Ch 656 Invensys Australia Superannuation Fund Pty Ltd v Austrac Investments Ltd [2006] VSC 112; (2006) 15 VR 87 Johnston v Maclarn [2001] NSWSC 932 Karger v Paul [1984] VR 161 Lambidis v Commissioner of Police (1995) 37 NSWLR 320 Larson v Commissioner of Police [2004] NSWCA 126 Lock v Westpac Banking Corporation (1991) 25 NSWLR 593 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Manglicmot v Commonwealth Bank Officers Superannuation Corp Pty Ltd [2011] NSWCA 204; (2011) 282 ALR 167 Maurice Blackburn Cashman v Brown [2011] HCA 22; (2011) 242 CLR 647 Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46 Murray v Commissioner of Police [2004] NSWCA 365 National Australia Bank Ltd v Nemur Varity Pty Ltd [2002] VSCA 18; (2002) 4 VR 252 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Osland v Secretary to the Dept of Justice [2010] HCA 24; (2010) 241 CLR 320 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 (1998) 194 CLR 355 Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 Re Manisty's Settlement [1974] Ch 17 Re Manufacturing Grocers' Employees Federation of Australia; Ex parte Australian Chamber of Manufactures [1986] HCA 23; (1986) 160 CLR 341 Saad v Commissioner of Police (1995) 12 NSWCCR 70 Scally v Southern Health and Social Services Board [1992] 1 AC 294 Scicluna v NSW Land and Housing Corp [2008] NSWCA 277; (2008) 72 NSWLR 674 Seafarers' Retirement Fund Pty Ltd v Oppenhuis [1999] FCA 1683; (1999) 94 FCR 594 Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215 Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 Swift v SAS Trustee Corporation [2010] NSWCA 182 Terry Swift v SAS Trustee Corporation [2009] NSWDC 149 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230 TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175 Uncle v Parker (1994) 55 IR 120 Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 Water Conservation & Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19 Wrightson Ltd v Fletcher Challenge Nominees Ltd (2001) 1 NZSC 40,532; [2002] 2 NZLR 1 Texts Cited: J C Campbell, "Exercise by superannuation trustees of discretionary powers", (2009) 83 Australian Law Journal 159 J C Campbell, "Should the 'Rule in Hastings Bass' Be Followed in Australia? - Trustees' Duties to Enquire and Trustees' Mistakes" (2011) 34 Australian Bar Review 259 J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia, 7th ed (2006) LexisNexis Butterworths R Walker, "Some Trust Principles in the Pensions Context", Trends in Contemporary Trust Law, AJ Oakley (ed), Clarendon Press (Oxford) (1996), 123 Superannuation Legislation Amendment Bill 2006, Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard), 7 June 2006 Category: Principal judgment Parties: SAS Trustee Corporation - Appellant Arthur Cox - Respondent Representation: T Ower - Appellant G Lindsay SC with P O'Rourke - Respondent SAS Trustee Corporation - Appellant Oates and Smith Solicitors - Respondent File Number(s): CA 2009/326261 Publication restriction: No Decision under appeal Date of Decision: 2009-11-26 00:00:00 Before: Ashford DCJ File Number(s): RJ540 of 2008 Judgment Legislative Framework: overview [5] Legislative Framework: pre-June 2006 [12] Legislative framework post-June 2006 [17] Nature of the case [26] The s 21 hearing [41] The primary judgment [51] Issues on appeal [58] Appellant's submissions [60] Respondent's submissions [64] Nature of the s 21 hearing [67] Effect of the 2006 amendments [72] Error in point of law [81] Duty to advise [91] Nature of the Fund [104] Orders [135] 1McColl JA : The appellant, the SAS Trustee Corporation, appeals from a decision of Ashford DCJ in which her Honour held that a superannuation allowance to which the respondent, Arthur Cox, was entitled should be backdated to 9 June 1988, the date of his retirement from the New South Wales Police Force: Arthur Cox v SAS Trustee Corporation (District Court of New South Wales, unreported, 26 November 2009). 2In so holding, her Honour exercised the power conferred by s 21(4)(b) of the Police Regulation (Superannuation) Act 1906 (the "Police Superannuation Act") to set aside a determination made by the appellant's delegate, the Police Superannuation Advisory Committee ("PSAC") that the respondent's superannuation allowance should commence on and from 9 July 2004, the date he applied for the allowance. The primary judge was exercising the "residual jurisdiction" of the District Court: District Court Act 1973, s 142G, s 142I (see also sch 7, cl 7, Courts Legislation Amendment Act 2004). 3The appellant appeals to this Court pursuant to s 142N(1) of the District Court Act which permits an appeal to this Court by "a party to any proceedings before the Court in its residual jurisdiction [who] is aggrieved by an award of the Court in point of law". "Award" includes an "order, decision, determination, ruling and direction": s 142M(1), District Court Act . 4For the reasons which follow I am of the view that the appellant has demonstrated that the primary judge erred in point of law in concluding the appellant owed the respondent a duty to advise the respondent of his potential rights under the Police Superannuation Act and in failing to take relevant considerations into account. The matter must be remitted to the District Court in its residual jurisdiction for determination by that Court in accordance with law. Legislative Framework: overview 5The appellant is a corporation originally established under the Superannuation Administration Act 1987, whose existence was continued relevantly by s 48(1) of the Superannuation Administration Act 1996 (the "Administration Act"). It may be called either "SAS Trustee Corporation" or "STC": s 48(2), Administration Act. It is a statutory body representing the Crown, with duties and responsibilities as defined by the Administration Act: s 48(3). 6The appellant is the trustee for the STC schemes (s 4, Administration Act), one of which is the superannuation scheme constituted under s 3 of the Police Superannuation Act (the "Fund"). The Fund is made up of the monies referred to in s 3(2) of the Police Superannuation Act. Those monies included deductions made under s 5 from the salary of each qualified person (being a member of the NSW Police Force or employee of the Police Association of New South Wales who is a contributor) of an amount equal to 6 per cent of that person's salary. If at any time the amount at credit of the Fund is insufficient to meet, inter alia, the superannuation allowances payable under the Police Superannuation Act, the amount of the deficiency is a charge against the Consolidated Revenue Fund (s 4, Police Superannuation Act) - properly referred to as the "Consolidated Fund": Constitution (Consolidated Fund) Amendment Act 1982, Schedule 2, cl 3. 7The principal functions of the appellant include, relevantly, administering the Fund, investing and managing the Fund and ensuring that benefits payable to the persons entitled to receive benefits under the Fund are paid in accordance with the Police Superannuation Act: s 50(1)(a), (b) and (d), Administration Act. It holds in trust for the persons who are or will be entitled to benefits under the Fund all assets held by, and all contributions and other money paid or payable to, it under the Administration Act and the Police Superannuation Act: s 49(1), Administration Act. It must pay the benefits provided by the Police Superannuation Act out of the Fund: s 3(3)(a), Police Superannuation Act. 8The appellant's duties are set out in s 51 of the Administration Act relevantly as follows: "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 ... ... (2) In exercising its functions, STC must have regard to: (a) the interests of persons entitled to receive benefits under the STC schemes, and ... (c) the future liabilities of the STC funds ..." 9As the Note to s 51(1) explains, the duties contained in that subsection reflect the covenants required of superannuation scheme trustees under the Superannuation Industry (Supervision) Act 1993 (Cth) (the "SIS Act"). Those covenants appear in s 52 of the SIS Act and, save as to s 51 being drafted to accommodate the fact it relates to "STC schemes" and for the omission of the word "performed" in s 51(1)(c) (cf s 52(2)(c), SIS Act), s 51(1) achieves that end. 10The appellant is also a trustee for the purposes of the Trustee Act 1925. Accordingly, subject to the Administration Act, and contrary legislative provision, it has the obligations, rights and duties of a trustee under Division 2 of Part 2 of the Trustee Act : s 49(2), Administration Act. The respondent referred the Court to the obligations in s 14A(2) (Duties of trustee in respect of power of investment) and s 14B(2)(a) and (c) (rules and principles of law or equity that impose a duty on a trustee exercising a power of investment continue to apply save as set out) of the Trustee Act which appear in that division, but did not contend that those provisions relevantly conferred any larger duty on the appellant than those imposed by s 51 of the Administration Act. 11The PSAC is constituted by s 2H of the Police Superannuation Act. Its functions include advising the appellant on such matters relating to the administration of the Act as are referred to it by the appellant (s 2I). The appellant may delegate to it any of its functions under the Act other than the power of delegation: s 2J. PSAC appears to have been the appellant's delegated authority in respect of Fund matters. Legislative Framework: pre-June 2006 12Both at the date of the respondent's retirement from the Police Force and on 9 July 2004 when he applied for a superannuation allowance, the Police Superannuation Act relevantly provided: " 9A Commencement of pension (1) Where an annual superannuation allowance is granted under this Act to a member of the police force who retires, the allowance is payable as from the day that next succeeds the day on which the member retires. (2) (Repealed) ... (4) Where an annual superannuation allowance is granted under section 10 to a former member of the police force who resigned or retired, the allowance is payable as from the day determined by STC for that purpose." 13On the same dates, s 10 relevantly provided, (subject to amendments to its June 1988 form to make it gender-neutral): " 10 Superannuation allowance where member hurt on duty (1) In this section: ... 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 a 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. ... (1B) An annual superannuation allowance may be granted under the section to a disabled member of the police force whatever the member's length of service." 14As Basten JA (Allsop P and Young JA agreeing) observed in Swift v SAS Trustee Corporation [2010] NSWCA 182 (at [10] - [11]) (" Swift "), while s 10 ostensibly took the form of the operative provision pursuant to which a disabled member of the force "may be granted" a relevant gratuity or allowance, it "contains no unequivocal conferral of power to make such a grant" and s 10(1B) is "the closest to an express power" to grant an annual superannuation allowance to be found in the Police Superannuation Act. 15Section 10B as in force on 9 June 1988 relevantly provided: " 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 2 members of the Police Medical Board have certified the member to be incapable, from a specified infirmity of body or mind, of discharging the duties of his 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 his 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, ... (b) 2 members of the Police Medical Board have certified that the former member would have been incapable, from that infirmity of body or mind, of discharging the duties of his office at the time of his resignation or retirement. (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 was a member of the police force, as the case may be, and (b) notify the member or former member of that decision." 16Section 10B as in force on 9 July 2004 relevantly provided: " 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, ... (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 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." Legislative framework post-June 2006 17The Superannuation Legislation Amendment Act 2006 amended the Police Superannuation Act with effect from 30 June 2006: Sch 1.2, s 2; New South Wales Government Gazette, No 84, 30 June 2006, at 4791 (the "2006 amendments"). 18Section 9A(4) was omitted and replaced by the following: "(4) An annual superannuation allowance granted under section 10 to a former member of the police force who resigned or retired is, subject to this Act, payable as from: (a) the date the former member lodged the application for the allowance that was determined by STC certifying the matters referred to in section 10B (2) (b), or (b) such earlier date as STC may determine if STC is satisfied that there are exceptional circumstances that merit STC doing so." 19Section 10B was amended, relevantly to insert after s 10B (2B): "(2BA) For the purposes of subsections (2A) and (2B), the duties of the office in the police force in which a member of the police force is then or was employed includes (but is not limited to) the duties of a police officer referred to in section 14 (1) of the Police Act 1990 ." 20Part 9 was inserted after Schedule 6, Part 8 and relevantly provided: " Part 9 - Superannuation Legislation Amendment Act 2006 28 Certification not invalid if in compliance with Act as amended A certification given by STC under section 10B (2A) or (2B) is not invalid merely because of a failure to comply with this Act as in force before the commencement of an amendment made to this Act by the Superannuation Legislation Amendment Act 2006, if the certification was given before that commencement and would have been valid had it been given under this Act as in force after that commencement." 21Section 14 (1) of the Police Act 1990 provided: " 14 Additional functions of police officers (1) In addition to any other functions, a police officer has the functions conferred or imposed on a constable by or under any law (including the common law) of the State." 22In the second reading speech to the Superannuation Legislation Amendment Bill 2006, the Hon Tony Kelly said (New South Wales Legislative Council, Parliamentary Debates (Hansard), 7 June 2006, at 697): "The bill contains several amendments to the Police Regulation (Superannuation) Act 1906 . This Act governs the Fund which was closed to new members from 1 April 1988. The scheme covers around 3,700 serving officers and 5,300 former officers now receiving pensions from the scheme. The Fund also provides workers compensation style benefits for officers who are killed or injured as a result of their occupation. Officers covered by the Fund are not eligible for coverage by the New South Wales workers compensation arrangements. The proposed amendments mainly affect invalidity benefits payable from the Fund to officers who cease employment because of injury or ill-health. The SAS Trustee Corporation, which is the trustee for the Fund, is responsible for determining whether an officer is eligible for an invalidity benefit on the basis of whether he or she is incapable of performing his or her duties of office. A decision of the Full Bench of the Industrial Relations Commission in Derrick Boland v SAS Trustee Corporation, 2 November 1999, cast doubt on the validity of the interpretation of 'duties of office' that has been applied for this determination over the past 20 years or more. The judgment concluded in respect of the Act governing the Fund: '...The legislation should plainly be revisited by the Legislature in order to ensure that a logical, consistent and readily understood regime applies to the important work which police officers perform in the State, particularly that aspect which regulates their circumstances in the event that they are injured in the performance of their duties.' The bill clarifies the definition of 'duties of office' to ensure that it includes the general duties imposed on all police officers by reference to section 14 (1) of the Police Act 1990, which states: 'In addition to any other functions, a police officer has the functions conferred or imposed on a constable by or under any law (including the common law) of the State.' The amendment makes clear that the interpretation of 'duties of office' that has applied in practice for many years can continue. The bill also validates any past decisions made by the SAS Trustee Corporation..." 23There were no savings or transitional provisions explicitly stating the effect of the 2006 amendments on applications made before their commencement. However Schedule 6 (Savings and Transitional Provisions), cl 1 of the Police Superannuation Act was amended to insert a reference to the Superannuation Legislation Amendment Act so that it now relevantly provides: " 1. Regulations (1) The regulations may contain provisions of a savings or transitional nature consequent upon the enactment of the following Acts: ... Superannuation Legislation Amendment Act 2006, but only to the extent to which it amends this Act. .... (2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day. (3) To the extent to which any such provision takes effect on a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as: (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication." 24The legislature appears to have overlooked the necessity to amend s 10(1) of the Police Superannuation Act so that the definition of "disabled member of the police force" corresponded with the certification provisions of s 10B(1) and s 10B(2). That omission was addressed by the Police Superannuation Legislation Amendment Act 2007, pursuant to which, relevantly, s 10 was amended by omitting the words "discharging the duties of the member's office" wherever occurring in the definition of "disabled member of the police force" in s 10(1) and inserting instead "personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990". That amendment commenced on the date of assent to the 2007 Act, 4 July 2007: New South Wales Government Gazette 2007, No 90, 13 July 2007, at 4486. 25The appellant contended that it was common ground that it was entitled to, and had, determined the commencement date of the respondent's superannuation allowance on the basis of s 9A(4) as in force prior to the 2006 amendments. However it also acknowledged that it had determined the respondent's eligibility for that allowance on the basis of s 10B(2) as in force after the 2006 amendments, albeit that it contended that it had done so as a matter of grace rather than compulsion. Nature of the case 26The respondent was attested as a probationary constable in the New South Wales Police Force on 4 August 1969. He rose to the rank of sergeant in 1984. He was a contributor to the Fund at all relevant times prior to his medical discharge: see s 5(1), Police Superannuation Act. 27The respondent was injured twice while performing police duties at Mount Panorama at Bathurst. On 2 April 1983 he sustained injuries to his right shin and left arm and also bruising to his left foot. On 6 April 1985 he was struck on the left foot by a Besser brick and sustained a fracture. He was off work for a month after the second injury which was classified as "hurt on duty". He had continuing problems with his left foot thereafter. 28On 3 July 1985 the police medical officer recorded: "Has recently started jogging without difficulty. Returned to full duties 8/7/85." Thereafter the respondent apparently had some further time off work due to his left foot injury, in about August 1985. Apart from a record of that fact, there was no police medical record concerning his left foot prior to his retirement in June 1988. 29On 19 April 1986 the respondent was involved in an off duty motor vehicle accident in which he was severely injured. He was off work for 14 months. He resumed work on 1 June 1987 and was placed on restricted duties of 20 hours a week. Following further periods of absence from work, he retired medically unfit because of his motor vehicle accident injuries on 9 June 1988. This process apparently entailed an application prepared by a police medical officer for him to appear before the Police Medical Board to which was attached a report from the Director of the Police Medical Services supporting his application to retire on the basis that "his disabilities are of such a nature that prevent him from performing [his] duties". It referred only to the injuries he suffered in that accident. It recorded the respondent had been on restricted duties from 5 June 1987 for 20 hours a week, but had not been able to cope with that since October 1987. The application was approved by PSAC. The primary judge recorded (at [22]) that the respondent "did not discuss the condition of his left foot with the police medical officer at the time". 30He was paid a lump sum benefit of $61,952 from the Fund on his retirement. 31The respondent undertook various forms of part time work intermittently from August 1988 until 12 May 2005. Throughout this period he continued to experience physical pain/difficulties as a result of his injuries, including those to his left foot. In 2003 he was seen by a Dr Kuo and had a bone scan. It was suggested that surgery was required to his left foot. He appears to have learned of the possibility of applying for a superannuation allowance when he contacted the Police Association when making inquiries as to whether the Police Force would cover the cost of that surgery. 32On or about 9 July 2004, after receiving legal advice, the respondent made an application to the appellant for a Certificate of Medical Incapacity pursuant to s 10B(2) of the Police Superannuation Act. He gave evidence before the primary judge that prior to receiving that legal advice he was unaware of any rights he may have had to an annual superannuation allowance. 33On 10 September 2004 the appellant notified the respondent's solicitors that the application had been received. On 9 November 2004 the appellant wrote to the respondent advising him that he had complied with the provisions of the Police Superannuation Act in that he had notified the Commissioner of Police of his injury claim prior to his retirement and within six months of the injury. The letter asked him to submit medical reports "concerning his fitness for policing duties around the time of his exit from the NSW Police in June 1988". 34On 7 July 2005, the appellant wrote to the respondent's solicitors advising that the s 10B(2) application had been "partly processed" by the PSAC. The letter also advised that the appellant had made recent decisions concerning eligibility for s 10B(2) pensions in terms of an attached Information Sheet which set out a new procedure for dealing with pending s 10B(2) applications and that the respondent's application would be processed under the revised procedures. 35The Information Sheet stated relevantly that the appellant had decided that the date of commencement of a s 10B(2) pension would be "the date of the application unless determined otherwise by the Superannuation Trustee Corporation after taking into account relevant medical evidence to support an earlier date". It also described a new eligibility test under which an applicant for a s 10B(2) pension could apply on the basis of a present incapacity, caused by a hurt on duty incident. I do not understand either party contends that that eligibility test was applied to the respondent's application. 36The 7 July 2005 letter also asked the respondent to complete a s 10B(2) application form and that failure to do so would lead to his application lapsing. The completed form was returned to the appellant on 7 September 2005 by the respondent's solicitors with advice that they did not "consent to your interpretation of the Act". 37On 31 January 2006 the appellant wrote to the respondent advising that PSAC had made no decision in respect of his application, that amendments to s 10B(2) of the Police Superannuation Act were likely to be made in the future and that it had determined that any s 10B(2) application pending as at 7 December 2005 was to await finalisation and commencement of those amendments. The letter also advised that should such application "be successful under the proposed amendments, the date for commencement for any benefit that would be payable (being the date of application unless strong medical evidence supports an earlier date) would not be adversely affected by this delay." 38As will be recalled the 2006 amendments took effect on 30 June 2006. On 14 December 2006 PSAC certified in terms of s 10B(2) of the Police Superannuation Act as then in force that "on 9 June 1988 [the respondent] was incapable due to the infirmity of 'bursitis of the right hip joint; osteoarthritis of the left mid foot' of discharging the duties of office and any other office in the police force at the date of his discharge". The submission to PSAC recommending the certification drew attention, relevantly, to the 2006 amendments and suggested there was "a basis to certify [the respondent's] left foot condition as having contributed to his incapacity for full operational duties at the time of discharge." On 20 April 2007 the Commissioner of Police's delegate certified for the purposes of s 10B(3)(a) that the respondent's left foot infirmity arising from the second Mount Panorama injury was caused by him being "hurt on duty". 39By letter dated 2 October 2007 the appellant advised the respondent that as a result of his left foot infirmity having been determined pursuant to s 10B(3) to be a hurt on duty injury, he was entitled to a "pension benefit" (presumably meaning a superannuation allowance) which would commence as and from 10 June 1988, the day after his medical discharge. It appears the advice as to the commencement date was an error. On 29 April 2008 the appellant advised him that the commencement date of his superannuation allowance was 9 July 2004, the date of his s 10B(2) application. It apparent that the appellant added interest to the superannuation allowance. 40The respondent then applied to the District Court for a determination in relation to that decision: s 21, Police Superannuation Act. The s 21 hearing 41The parties agreed that the s 21 hearing should be conducted on the basis that it was a hearing de novo. 42The respondent sought an order that his superannuation allowance be made payable from 9 June 1988, the date of his retirement from the New South Wales Police Force. He contended that date was appropriate because he was unaware of his entitlement to an annual superannuation allowance at the date of his retirement, that the appellant should have advised him of that entitlement prior to his medical discharge and that, had the appellant done so, he would have been in receipt of that allowance from that time. 43The respondent gave the following evidence in the course of his cross-examination: "Q. But am I right in saying that it's your evidence that so far as your left foot was concerned that didn't cause you a great deal of problem in performing the duties that you were given of the 20 hours a week is that right? A. That's correct. Q, It would have caused you a problem had you been out doing general duties, is that right? A. Had I been performing full duty, yes. Q. Indeed after 1985 you stopped running altogether, and that obviously had to chase an offender - that would be something you couldn't do because of your left foot, is that right? ... Q. And part of the general duties that you would have had before you got injured in the car accident in 1986 would have from time to time required you to arrest offenders, is that right? A. Yes Q. Your foot even then would've given you a bit of a problem in chasing people, is that right? A. That's correct. ... Q. By that I mean your left foot didn't necessarily stop you doing those selected duties but you had real problems with the other parts of your body that were injured in the motor vehicle accident, correct? A. That's correct. Q. So because of that you had to cease the selected duties, correct? A. Yes." 44A bundle of medical reports was tendered in the respondent's case. Some of those were historical, relating to the injuries he suffered in the motor vehicle accident as well as his medical condition generally over the period following his retirement. To the extent that any sought to address the incapacity arising from his left foot injury as it might have affected his ability to work prior to his retirement, none addressed that issue by reference to the fact that he was on restricted duties at that time. Rather, all the reports spoke at a level of generality of him being unfit to carry out work as a police officer at that time. One based that opinion on many of the respondent's injuries, not merely that to his left foot. 45The respondent's counsel did not, in any event, rely upon those medical reports before the primary judge as supporting his purported retirement date entitlement to an allowance. Rather, he submitted that the respondent satisfied all the requirements for payment of the superannuation allowance at the date of his medical discharge because of the "certificate" issued to this effect. He contended that this meant that if the respondent had pursued a hurt on duty medical discharge as at June 1988 it would have been granted. 46The appellant accepted before the primary judge that it could not point to general information brochures or the like in circulation at the time of the respondent's retirement which explained the benefits available to beneficiaries of the Fund, but contended such were not necessary as that information was a matter of public record which could be accessed by reading the legislation. 47The appellant also submitted that the primary judge should reject the respondent's evidence that he was unaware of his superannuation entitlement at the date of his discharge having regard to the fact he had been a serving police officer and contributor to the Fund for 18 years. In any event, even if he was so unaware, the appellant contended that he could have obtained legal advice concerning his superannuation entitlements through the Police Association. 48The appellant also argued that even accepting the respondent's evidence as to his ignorance of his superannuation entitlements in 1988, the respondent would not have been entitled to an annual superannuation allowance at that date. This was because, prior to the 2006 amendments, the effect of s 10B(2) was that the respondent's entitlement to an annual superannuation allowance depended on him being "incapable, from a specified infirmity of body or mind, of discharging the duties of the member's office". The appellant contended that the respondent's hurt on duty left foot condition alone did not prevent him in 1988 from performing the restricted duties to which he had been assigned by reason of the injuries he suffered in the non-hurt on duty motor vehicle accident. 49The appellant accordingly submitted that the respondent had been the beneficiary, in effect, of a windfall arising from the fact it had determined his application for an allowance on the basis of the 2006 amendments. This was because, it contended, the effect of those amendments was that he could qualify for that allowance if his hurt on duty foot condition rendered him incapable, inter alia, of discharging the functions conferred or imposed on a constable pursuant to s 14(1) of the Police Act : s 10B(2BA), Police Superannuation Act. The appellant also referred her Honour to the 2006 amendment to s 9A(4) as demonstrating the legislature's intention that those who benefited from the 2006 amendments would, prima facie, only receive an allowance from the date of application. Accordingly the appellant submitted that to accede to the respondent's submission that his allowance should be backdated to the date of his retirement would confer on him a benefit unintended by the legislature. 50The respondent resisted the proposition that he had been the beneficiary of any boon, arguing that the fact he had been certified as qualifying under s 10B(2) for an allowance, was "unassailable [evidence] that he was incapacitated at the relevant time". The primary judgment 51The primary judge referred generally (at [44] - [51]) to the legislative scheme created by the Police Superannuation Act, the Administration Act and the Trustee Act . She recorded (at [8]) the parties' agreement that s 9A(4) as in force prior to the 2006 amendments was the operative provision in terms of her determining the date from which the allowance should commence. 52The primary judge set out the correspondence between the respondent and the appellant discussing the proposed 2006 amendments to which I have referred. Her Honour recorded (at [45]) the respondent's submission that the "certificate" of infirmity proved he had satisfied every s 10B(2) requirement, that it should be inferred that he would also have done so at the date of his medical discharge and that, had he obtained the same certification in June 1988, he would have been entitled to a superannuation allowance. She also noted the appellant's submission that the respondent had only qualified for an allowance because it had applied the "less demanding" post-2006 amendments test, and that, having done so, the amended s 9A(4) indicated the prima facie commencement date for the allowance. 53After referring (at [58]) to the respondent's submission that "the trustee's obligation to this group of beneficiaries in terms of advising them of their rights at an appropriate time is not ...onerous", her Honour said: "59 Clearly at some stage close to the time of any police beneficiary leaving the service money is paid out in some manner from the funds. It is on that basis it is submitted that it would be an easy matter rather than an onerous one to advise of any potential right. Noting the fund had closed to new members in April 1988 I am satisfied that this is a class of persons easily ascertainable and that it was incumbent on the defendant to advise those leaving the service of potential rights." 54The primary judge (at [69]) distinguished Armitage DCJ's decision in Terry Swift v SAS Trustee Corporation [2009] NSWDC 149 in which his Honour rejected submissions that the appellant was obliged to inform Swift of his rights at the time of his resignation from the Police Force on the basis that Swift was aware of the option of taking medical retirement (and presumably applying for an annual superannuation allowance) and resigned to pursue a commercial opportunity. The critical point of distinction in her Honour's view appeared to be that the police service was entitled to suppose Swift was aware of his rights at the time he resigned. 55The primary judge found (at [71], [73]) that "there was [inordinate] delay occasioned by [the appellant]" in processing the respondent's application. She said: "75 Had the present application been placed before the Committee meeting and processed on 24 February 2005 instead of some two and a half years later, then it may well be the decision to commence the pension from July 2004, being the date of the application, would appear more apposite." 56Her Honour (at [76]) held that it was incumbent upon the appellant to advise the respondent of his "entitlements" the time of his medical discharge. She accepted the respondent's evidence that he was unaware of "those rights and entitlements" at that time. She concluded: "77. Clearly the plaintiff had been accepted as being [hurt on duty] HOD in relation to his left foot injury. He was off work for a reasonably substantial time as a result of that injury. He had returned to work for about 7 months albeit with some difficulty until suffering serious injury in a motor vehicle accident. Clearly the police medical officer had records of injury to the plaintiff's left foot and records noting time off work as a result of that injury. As well the plaintiff had many discussions with the medical officer having been reviewed by him on many occasions. It is submitted that the plaintiff continued to have problems as a result of the motor vehicle accident including a right hip operation in December 1990 and it was not until there was deterioration of his left foot condition in about June 2003 that he made some enquiry relevant to payment of any treatment expenses in respect of his left foot. 78. I accept that up to that point he was unaware and had no real basis upon which to find out whether he had any entitlement in respect of superannuation. 79 In the present claim therefore I am of the opinion that the plaintiff presents a factual circumstance which justified backdating his superannuation allowance to the date of discharge accepting the submission that had he been aware of his rights and applied at the date of his discharge a superannuation payment would have been made to him from that time noting always that he had paid into that fund for some substantial period of time." 57Accordingly her Honour (at [80]) set aside the determination of the Delegate and determined that the superannuation allowance payable to the respondent be backdated and made payable from his date of discharge, 9 June 1988. Issues on appeal 58The appellant relies on the following grounds of appeal : (1)Her Honour erred in finding that the appellant had a duty to advise the respondent of his potential rights pursuant to the Act. (2)In applying s 9A(4) her Honour erred by: (a)taking into account the irrelevant consideration of the appellant's delay in processing the respondent's claim; (b)failing to address the appellant's submission concerning whether the respondent would have qualified for certification pursuant to s 10B(2) had he applied earlier; (c)accepting the respondent's ignorance of the law as a relevant consideration; and (d)accepting the extent of the Respondent's contributions to the fund as a relevant consideration. 59In the event the appeal is successful, the appellant seeks orders setting aside the primary judge's order, remitting the matter to the District Court for rehearing and determination according to law and costs. Appellant's submissions 60The appellant first submitted that the primary judge erred in holding that it had a duty to advise the respondent that he could apply for an annual superannuation allowance for three reasons. First, that such a duty should not be found having regard to the statutory basis of the Fund, the information concerning which is in the public domain. It submitted that, assuming the respondent was ignorant of his statutory entitlements, he could have informed himself by reading publicly available legislation or seeking legal advice. Secondly, that at the time of the respondent's medical discharge in 1988 he was not seeking a hurt on duty superannuation allowance, and in these circumstances there was no reason to advise him of his potential rights in this respect. Thirdly, that the statutory discretion conferred by s 9A(4) as in force at the time of the respondent's application for an annual superannuation allowance should not be fettered by reference to the obligations of a private trustee, but, rather should be understood in the context of the statutory scheme and the power it was exercising. 61Secondly, the appellant submitted that (as it accepted) the fact there was an inordinate delay in processing the respondent's application was an irrelevant consideration to the commencement of his annual superannuation allowance. It contended that the respondent was not prejudiced by that delay as his allowance was backdated to the date of his application, and he was paid interest from that date on the allowance awarded. It emphasised that on its determination, the respondent's superannuation allowance was backdated for four years, whereas on the primary judge's, it was backdated for 20. Even if there was a delay, it contended the primary judge's response was disproportionate. 62Thirdly, the appellant submitted that the primary judge did not give any consideration to the fact the respondent's superannuation allowance depended on it giving him the benefit of the 2006 amendments. 63Fourthly, the appellant submitted that the primary judge erred (at [79]) in considering it was relevant that the respondent had paid superannuation contributions for a "substantial period". It contended that whether the respondent made contributions for one day or twenty years made no difference to his right to a superannuation allowance and should also be irrelevant to the commencement date of that superannuation allowance. Respondent's submissions 64The respondent cavilled with the appellant's contention that the primary judge found it owed him a "duty to advise" of his entitlements at the time of his medical discharge, emphasising that her Honour merely said it was "incumbent" upon the appellant to do so. He submitted that that obligation was consistent with the provisions of the Administration Act to which I have referred (at [8]), the appellant's obligations to pay the benefits and other monies properly payable out of the Fund referred to in s 3(3)(a) and (d) of the Police Superannuation Act (as well as with the subject matter of the legislation as arising out of the industrial entitlements of a police officer), the appellant's obligations under the Trustee Act and s 14J(1)(a) of the District Court Act . 65Next, the respondent contended that the pre-2006 version of s 9A(4) conferred an unfettered discretion on her Honour which, taken with s 142J(1)(a) and (b) and s 142N(1) and (2) of the District Court Act meant, in substance, that there could be no room for complaints about irrelevant considerations. 66Finally, the respondent argued that the primary judge's finding (at [79]) that had he been aware of his entitlements at the time of his retirement he would have been entitled to a superannuation allowance was a finding of fact decisive of the issue and not open to challenge in circumstances where there had been no argument from the appellant suggesting that the reasons for judgment were in any way deficient. Nature of the s 21 hearing 67As I have said, the parties and the primary judge approached the application on the basis that a s 21 determination is a hearing de novo . This would appear to be the correct approach, having regard to the fact that the determination the District Court makes is that which, relevantly, the appellant may have made: s 21(4), Police Superannuation Act; see also Seafarers' Retirement Fund Pty Ltd v Oppenhuis [1999] FCA 1683; (1999) 94 FCR 594 (at [19] - [23]) per Merkel J. 68However Young JA cast doubt on that approach in Swift (at [72] - [78]), observing that it was "contrary to the usual approach that courts have consistently taken to applications to review the decisions of trustees". His Honour did not finally decide the point. Allsop P ( Swift at [1]) was of the view that the "precise status of the District Court in the exercise of its residual jurisdiction in an application such as this (to the extent not already dealt with by decisions of this Court) can await an occasion when it is determinative". Basten JA did not directly address the issue. His Honour appears (at [44]) to have approached the primary judge's reasons on the basis that the latter had conducted a hearing de novo , exercising power as the trustee of the Fund, albeit referring to the appellant's submission that the primary judge had been obliged to conduct the s 21 hearing in accordance with Karger v Paul [1984] VR 161 - a case which would support Young JA's tentative approach. 69Although both parties in this appeal addressed submissions to Swift , neither (understandably bearing in mind their consent to the de novo approach at trial) challenged the primary judge's approach to the hearing. The Court should, in my view therefore, approach the resolution of the appeal on the basis that the primary judge was entitled to conduct a hearing de novo . The significance of that is that her Honour was not restricted to the documents which were before the appellant or confined to the manner in which it addressed the question of the respondent's entitlement to a superannuation allowance: HEST Australia Ltd v Sykley [2005] FCA 1381; (2005) 147 FCR 248 (at [40]) per Crennan J; Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; (2011) 119 ALD 472 (at [50]) per Kenny and Lander JJ (Logan J generally agreeing). 70However, that does not, in my view, mean that the appellant's documents or reasoning process are irrelevant - not least because the appellant relied upon them in defending its decision. The primary judge was determining whether to confirm or set aside the appellant's determination (s 21(4)) and was only able to make a decision that the appellant or the Commissioner of Police could make pursuant to the Police Superannuation Act: s 21(5). Once made, the primary judge's determination is deemed to be that made by the appellant. As Young JA said in Swift (at [72]), if the s 21 determination is a hearing de novo , that would seem to suggest "that the Court must approach the matter in the same way as the original decision maker ... as if the judge were a trustee." 71Young JA also considered the s 21(4) power meant the s 21 judge "might consider that it should give due weight to the fact that the respondent is the primary authority to make decisions under the Act": Swift (at [76]). Neither party contended for that approach and it is unnecessary to explore the questions concerning the nature of the s 21 hearing Swift left undecided. Effect of the 2006 amendments 72There was discussion during the hearing of the appeal as to the effect of the 2006 amendments on the respondent's application for a superannuation allowance and, in turn, on the appellant's decision to apply them in determining the respondent's application. This was significant for the appellant, because, on its case, the primary judge had failed to give any consideration to its submission that the date of application was a proper date from which the allowance should commence, as the respondent would not have been entitled to an allowance at the date he retired. 73It is relevant first to consider which version of s 9A(4) applied to the application. As I have said the parties conducted the s 21 determination on the basis that the relevant s 9A was that in force at the date of his application. That was, in my view, the correct approach. As a result of his 2004 application the respondent had a substantive right to have that application considered by the appellant and the appellant had a duty to determine, once the criteria for an allowance had been established, how it would exercise the s 9A(4) unfettered discretion to determine the date his allowance commenced. Absent contrary intention, that right was protected by s 30 of the Interpretation Act 1987: Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 (at 440 - 441) per Mason CJ, Deane, Toohey and Gaudron JJ; Gerrard & Kirchner v Mayne Nickless Ltd (1996) 135 ALR 494 (at 512). No contrary intention appeared in the 2006 amendments. Basten JA reached the same conclusion in Swift (at [19]). 74I would reach the same conclusion in relation to the 2006 amendments. In my view they did not apply to the 2004 application. They were substantive, not procedural, changes. They "require[d] a different assessment of the effect of the infirmity of body or mind, removing the focus from the office held by the member at the time of his or her resignation or retirement, to the functions of a police officer, generically, identified in the Police Act , s 14(1)": Swift (at [13]). 75In such circumstances, the general rule is that "a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events": Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 (at 267) per Dixon CJ; see also s 30, Interpretation Act . 76A different approach appears to have been taken in Swift where (at [14]) Basten JA considered that the relevant parts of s 10B applicable to the appellant who had applied for a superannuation allowance in March 2004 (at [3]) was that section as in force at the date of the appellant's decision (19 December 2007) and of the District Court considering his s 21 application - 5 June 2009. (The dates appear in the first instance decision: Terry Swift v SAS Trustee Corporation . It is not apparent that the applicability of the 2006 amendments was in issue in Swift , it having been assumed that they applied. Swift is not authority, accordingly, for the proposition that the 2006 amendments apply to pre-2006 applications: Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46 (at [39]) per Campbell JA (Macfarlan JA agreeing); Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 (at [134]) per Campbell JA (Basten JA and Sackar J agreeing). 77The second reading speech to the Superannuation Legislation Amendment Act explained the purpose of the 2006 amendments to the definition of "duties of office" to include the general duties imposed on all police officers by reference to s 14(1) of the Police Act. It said that those amendments were intended to remedy the doubt that the majority decision in Boland v SAS Trustee Corp (1999) 97 IR 127 had cast on the interpretation of that phrase that had been applied for 20 years, and to make clear that the interpretation of the definition that had applied in practice historically could continue. That statement is some indication that the 2006 amendments were intended to apply to all applications whenever made. 78The second reading speech is extrinsic material to which it is sometimes permissible to refer for the purpose of construing s 10B(2): s 34, Interpretation Act . However s 34(1)(a) and (b)(ii) of the Interpretation Act also direct that when using extrinsic material the court must consider the text of the provision in its statutory context. Relevantly that includes the more restrictive s 9A(4) introduced by the 2006 amendments which created a presumption that a superannuation allowance should be payable from the date of application, save in exceptional circumstances. That demonstrated, in my view, a legislative intention that the more liberal regime introduced by the new definition should be accompanied by a stricter regime concerning the commencement of any superannuation allowance. In other words, despite the Minister's statement that the new definition was intended to continue a previous practice, the 2006 amendments effected a more substantial change to the pre-existing regime than the mere addition of a new definition. In my view the second reading speech is, for that reason, an unreliable point of reference: cf Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 (at 226) per Mason CJ and Toohey J. 79It would, moreover, be anomalous to conclude that the new s 9A(4) did not apply to applications for superannuation allowances made before the 2006 amendments commenced, but the expanded eligibility criteria did. Such a construction would defeat the unity of the statutory scheme: cf Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 (1998) 194 CLR 355 (at [70]). 80Accordingly, in my view the appellant correctly approached the determination of the respondent's application on the basis that, as a matter of law, his eligibility for that allowance turned on s 10B(2) as in force prior to the 2006 amendments. It was not in dispute, however, that it was open to it to apply the new definition as a matter of grace. Error in point of law 81For the purposes of s 142N of the District Court Act the appellant must identify an award or decision of the District Court in point of law, as the subject matter of the appeal which aggrieves it: Scicluna v NSW Land and Housing Corp [2008] NSWCA 277; (2008) 72 NSWLR 674 (at [3] - [4]) per Basten JA (Hodgson JA agreeing); (at [68], [70]) per Campbell JA. "Decisions in point of law refer to the substance of the decision-making process": Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19 (at [137]) (per Basten JA, Allsop P and Handley AJA agreeing). 82The necessity that the notice of appeal properly identifies the decision in point of law of which the appellant complains needs to be emphasised. It is the existence of a point of law which "is ... not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself": see TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175 (at 178) per Gummow J, cited with approval in Osland v Secretary to the Dept of Justice [2010] HCA 24; (2010) 241 CLR 320 (at [21]) per French CJ, Gummow and Bell JJ. 83These comments should not be taken as a criticism of the appellant's notice of appeal, rather as prefatory comments to considering its grounds of appeal. 84The appellant's complaint that the primary judge misdirected herself in law in finding it had a duty to advise the respondent of his entitlements is an error in point of law if the facts inferred from the evidence are necessarily within the description of a word or phrase in a statute or necessarily outside that description: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 13 (at 156); Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 (at [24]). 85The appellant's complaint that the primary judge failed to address its submissions about its benevolent use of the post-2006 s 10B(2), if it went to a relevant issue, may be characterised as a complaint about an implicit "decision" that it was not necessary to do so: Goodwin v Commissioner of Police [2010] NSWCA 239 (at [22]), ([43]) (per Basten JA, McColl JA and Sackville AJA agreeing); Amaca Pty Ltd v Doughan [2011] NSWCA 169 (at [31] per Sackville AJA, Giles and McColl JJA agreeing). Further, insofar as it constituted a challenge to her Honour's conclusion that the respondent would have qualified for an allowance at the date of his retirement (its contention being there was no evidence of that "fact"), it identified a grievance in point of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (at 355) per Mason P. 86As to this complaint, I would note that the primary judge did record (at [67]) the appellant's submission about s 10B(2). It is not, accordingly, strictly speaking correct to say that her Honour failed to address the submission. On that approach, her Honour's failure thereafter to refer to the appellant's s 10B(2) submission was an implicit decision to reject it which satisfied the s 142N requirement. 87The respondent submitted, in effect, that the primary judge's decision was inscrutable because s 9A(4) conferred an unfettered discretion. There can be an error of law which vitiates a discretionary decision constituted, for example, by failing to take into account relevant considerations or taking irrelevant considerations into account: Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230 (at [66]) per Spigelman CJ (Mason P, Beazley, Giles and Ipp JJA agreeing); see also Swift (at [28] - [29]). 88Accordingly, even accepting, as the respondent submits, that s 9A(4) as in force prior to 2006 conferred an unfettered discretion does not render her Honour's decision inscrutable. Such a discretion is "unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view": Water Conservation & Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 (at 505) per Dixon J; see also Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (at [22]) Gaudron and Gummow JJ. It must be exercised in good faith and not arbitrarily, capriciously or so as to frustrate the legislative intent discernible from the context in which the discretion operates. 89The respondent's unelaborated reference to s 142J(1)(a) and (b) and s 142N(1) and (2) of the District Court Act as somehow enlarging the discretion s 9A(4) conferred does not, in my view, advance matters. Section 142J(1)(a) requires a decision of the District Court in any matter in the exercise of the residual jurisdiction to be on the real merits and justice of the case. That provision primarily removes procedural constraints which might otherwise constrain the exercise of the Court's jurisdiction: Swift (at [34]) per Basten JA. It does not release the court from the obligation to apply substantive rules of law in arriving at its decisions: Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 (at [42]) per Gleeson CJ, Gummow and Hayne JJ; Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 (at 31 per Gleeson CJ and Handley JA); Lambidis v Commissioner of Police (1995) 37 NSWLR 320. 90Further, and in any event, describing the task the primary judge was required to undertake as "discretionary" does not adequately describe the s 21 exercise which required the resolution of factual controversies such as whether the respondent would have received an allowance when he retired: Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 (at [40]); see also Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254 (at [29]). Duty to advise 91I turn to the appellant's first complaint, that the primary judge erred in concluding the appellant had a "duty" to advise the respondent of his "potential rights". That ground is framed in terms of the primary judge's finding to that effect (at [58]). I will assume it also embraces her somewhat re-framed finding (at [76]) expressed in terms that it was incumbent upon the appellant to advise the respondent of his "entitlements" at the time of his medical discharge - a formulation which comprehends the appellant's "complaint that there was no evidence that he had any such 'entitlement'." 92The primary judge did not identify the theoretical foundation for her conclusion that the appellant was subject to such a duty. The appellant's characterisation of her conclusion as a finding of a "duty to advise" was similarly not placed in a theoretical construct - although as framed carried tortious connotations. The respondent, while contending her Honour had not devised a legal duty, relied upon the statutory functions imposed upon the appellant by the Administration Act and the Trustee Act as the source of the obligation. In my view the respondent's submission is a semantic quibble - it is apparent that the primary judge considered the appellant was subject to such a "duty" vis-a-vis the respondent. It would only be relevant to the exercise of the discretion if it was a legal duty. The question is whether such a duty was imposed as a matter of law. 93The issue of the appellant's obligations should be resolved by reference to its statutory functions and the duties imposed upon it as trustee both by the statutory scheme and by reference, if necessary, to principles of law and equity applying to trustees not ousted by that statutory scheme. This ensures conformity with "the deliberate trend in courts of final appeal...to arrest on grounds of policy the expansion of the law of negligence into areas governed by contract, equity or statute": National Australia Bank Ltd v Nemur Varity Pty Ltd [2002] VSCA 18; (2002) 4 VR 252 (at [47]) per Batt JA. That trend is grounded in concerns to ensure coherence of the law ( Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 (at [50]) per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ), in this case having regard to the different conceptual origins of tortious, contractual and equitable obligations: cf Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 75 ALJR 312 (at [26]) per Gleeson CJ, Gaudron and Gummow JJ. Whatever "duty" may be discerned as devolving on the appellant by reason of the Administration Act, must be consistent with the Police Superannuation Act: Swift (at [30]) per Basten JA. 94The appellant is the "trustee" of the Fund. There is no reason to think the legislature intended to use that expression in other than its legal and technical sense (cf Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; (1998) 195 CLR 566 (at 585 - 586)), although it must be accepted that the Fund lacks that element of the "traditional trust [as] one under which the settlor, by way of bounty, transfers property to trustees to be administered for the beneficiaries as objects of his bounty [and in respect to which] [n]ormally, there is no legal relationship between the parties apart from the trust [and] [t]he beneficiaries have given no consideration for what they receive": Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd [1991] 2 All ER 597 (at 605); [1991] 1 WLR 589 per Lord Browne-Wilkinson VC; Air Jamaica Ltd v Charlton [1999] 1 WLR 1399 (at 1407) (Privy Council). No doubt it is for that reason that s 49(1) of the Administration Act expressly provides that the appellant "is a trustee for the purposes of the Trustee Act [and] [a]ccordingly, subject to the Administration Act, and unless otherwise provided in any statute, has the obligations, rights and duties of a trustee under Division 2 of Part 2 of the Trustee Act ". 95I have already set out the appellant's functions under s 51(1) of the Administration Act. These correspond substantially with a trustee's general law obligations: J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia , 7 th ed (2006) LexisNexis Butterworths (at [2920] - [2922]); Invensys Australia Superannuation Fund Pty Ltd v Austrac Investments Ltd [2006] VSC 112; (2006) 15 VR 87 (at [102] - [107]) per Byrne J; see also Manglicmot v Commonwealth Bank Officers Superannuation Corp Pty Ltd [2011] NSWCA 204; (2011) 282 ALR 167 (at [110] - [122]) per Giles JA (Young and Whealy JJA agreeing). It is appropriate, in those circumstances to have regard to a trustee's general law obligations in determining the scope of the appellant's obligations to advise 96Jacobs' Law of Trusts in Australia (at [1715]) states that "[t]here is no general law duty on trustees to volunteer documents to beneficiaries or possible beneficiaries...". However it also notes that "[a] trustee is bound to inform a beneficiary, who, on attaining majority is entitled to share in a trust fund, of that interest". It cites Brittlebank v Goodwin (1868) LR 5 Eq 545 and Hawkesley v May [1956] 1 QB 304 as supporting that proposition, noting doubts expressed in Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 and Re Manisty's Settlement [1974] Ch 17. 97It is necessary only to consider Hawkesley v May and Hartigan Nominees. 98In Hawkesley v May , Havers J held (at 322) that the trustee under a deed of settlement benefiting an identified brother and sister was under a duty to inform the brother that he had an interest in the capital and income of the trust funds when he turned 21 and his interests under the trust accrued. His Honour distinguished the authorities holding that there is no legal duty on an executor to give notice of the terms of a legacy to the legatee, a principle apparently founded upon the premise that "a will ... is a public document in the sense that anybody can go to Somerset House and see it": Hawkesley v May (at 322) referring to In re Lewis [1904] 2 Ch 656; see also Johnston v Maclarn [2001] NSWSC 932 (at [17]) per Young CJ in Eq (as his Honour then was). Havers J declined to extend that doctrine to trustees under an express trust constituted by "a trust deed, which is a private document to which the cestui que trust has no access". 99Brennan J (as his Honour then was) referred to Hawkesley v May in Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539 (553 - 554) as supporting his conclusion that the custodian of a will after the death of the testator owed a duty of care in tort to disclose the existence of the will to the nominated executor and beneficiary including taking steps to locate that person or person if necessary to discharge the duty. His Honour referred (at 553) to Havers J's Somerset House distinction as "seem[ing] tenuous". In his Honour's view (at 553 - 554) "another ground of distinction may be that an executor's duty is to distribute to legatees who are entitled rather than to assist them to satisfy conditions of entitlement". 100In Hartigan Nominees Pty Ltd v Rydge the Court of Appeal held by majority (Mahoney and Sheller JJA, Kirby P dissenting) that a memorandum of wishes provided by the instigator of a discretionary trust for the use of the trustees in exercising their powers was not a document which the trustees were obliged to disclose to a beneficiary on request if the memorandum was provided on a confidential basis. In considering the "right" of the beneficiary to inspect the memorandum, Mahoney JA referred (at 432) to Hawkesley v May and to what he said Havers J's "suggested", namely "that a trustee has an obligation to explain to a beneficiary what his rights are". His Honour observed that "[t]he extent of that obligation remains ... in doubt", he did not appear to disapprove of it insofar as Havers J "was referring to the right of a beneficiary who is entitled to inspect trust documents to have his rights explained to him". While his Honour added that Hawkesley v May had, in some respects, been disapproved by Deane J in Corin v Patton (1990) 169 CLR 540 (at 584), but, I note, that was with respect to severance of a joint tenancy in equity. As Mahoney JA added, Brennan J had referred to Hawkesley v May (as is apparent from [99] above with apparent approval) in relation to the duty of a fiduciary to make disclosures in Hawkins v Clayton . 101Mahoney JA then said (at 432): "For myself, I doubt whether it is the duty of a trustee to inform all persons who may possibly take under a discretionary power of the nature and extent of that possibility. As I have indicated, a class of possible beneficiaries under a discretionary trust may be wide and may be capable...of significant extension. I doubt that it is the duty of a trustee to seek out such persons and inform them of the possibility that, in certain circumstances, they may acquire rights under the trust. I do not think that, for example, where property may be appointed among a group of employees, past, present and future, of a company, the trustee has a duty to seek out and convey information of this kind ." (Emphasis added) 102It is not necessary, in my view, to undertake a detailed analysis of Hartigan Nominees Pty Ltd v Rydge a case decided in a very different factual matrix from the present. As Mahoney JA said (at 436) in the course of a careful disquisition on the rights of beneficiaries to information, it was important in resolving that case to have regard to "the essential nature of ... discretionary trust[s] [which] ... is not a mere commercial document in which the public may have an interest [but] ... is a private transaction, a disposition by the settlor of his own property, ordinarily voluntarily, in the manner which he is entitled to choose [and] [s]pecial cases apart, it is proper that his wishes and his privacy be respected." Sheller JA expressed substantially the same concerns: Hartigan Nominees Pty Ltd v Rydge (at 442). 103In this case regard must be had to the nature of the Fund in seeking to identify the duties which devolved on the appellant. As the High Court said in Finch v Telstra Super Pty Ltd (at [33]), "[d]ifferent criteria might be thought to apply to the operation of a superannuation fund from those which apply to discretionary decisions made by a trustee holding a power of appointment under a non-superannuation trust"; see also Lock v Westpac Banking Corporation (1991) 25 NSWLR 593 (at 601) per Waddell CJ in Eq. Nature of the Fund 104The Fund is a defined benefit scheme in which a disabled member of the police force so certified pursuant to s 10B(1) or s 10B(2) receives the benefit defined in s 10(1A) of the Police Superannuation Act. 105Members of the police force are "in some sense, a servant of the Crown" ( Enever v R [1906] HCA 3; (1906) 3 CLR 969 (at 975 - 6) per Griffith CJ) but their relationship with the Crown is not that of employer - employee: Attorney-General (NSW) v Perpetual Trustee Company (Ltd) [1955] HCA 9; (1955) 92 CLR 113 (Privy Council). Some statutes, such as s 85 of the Police Act , have the effect of deeming an employer - employee relationship to exist for some purposes. What is relevant for present purposes is that the Fund, as a general proposition, bears a strong resemblance to an employee superannuation scheme. It is created in the context of a relationship having many of the hallmarks of an employer - employee one. A person only qualified to make contributions if they were a member of the police force, or an employee of the Police Association of New South Wales: s 5 (3), Police Superannuation Act. Contributions were deducted from member's salaries: s 5(1), Police Superannuation Act. The fact that there was no apparent relationship between the appellant as trustee and the police force does not detract from characterising it, at least by analogy, as an employee superannuation scheme: Re Manufacturing Grocers' Employees Federation of Australia; Ex parte Australian Chamber of Manufactures [1986] HCA 23; (1986) 160 CLR 341 (at 357). 106In Finch v Telstra Super Pty Ltd , the High Court considered the nature of such superannuation funds as relevant contextual material in determining the ambit of the duty of a trustee of a defined benefit fund forming an opinion as to who should be the beneficiary of a distribution under the trust deed. The Court said (footnotes omitted): "[33] Another aspect of the factual context is that the Deed is dealing with the superannuation of employees. For some people, superannuation is their greatest asset apart from their houses; for others it is even more valuable . Different criteria might be thought to apply to the operation of a superannuation fund from those which apply to discretionary decisions made by a trustee holding a power of appointment under a non-superannuation trust . Employer superannuation is part of the remuneration of employees. Membership of the employee superannuation fund may be compulsory. Superannuation, unsurprisingly, is a matter of trade union interest. The question of superannuation entitlements may form the subject of an industrial dispute within the meaning of s 51(xxxv) of the Constitution. Superannuation is not a matter of mere bounty, or potential enjoyment of another's benefaction. It is something for which, in large measure, employees have exchanged value - their work and their contributions. It is 'deferred pay'. These are propositions which are not falsified by arguments advanced by the Trustee to the effect that the Death and Total and Permanent Invalidity benefits under the Deed involve in part an element of bounty . Superannuation is a method of attracting labour. The legitimate expectations which beneficiaries of superannuation funds have that decisions about benefit will be soundly taken are thus high. So is the general public importance of them being sound. ... [35] Because of the potentially lengthy time periods over which superannuation savings are accumulated, it was natural, and it is now in many instances mandatory, for a trust mechanism to be employed. These funds have increasingly come under detailed statutory regulation. The government considers that the taxation advantages of superannuation should not be enjoyed unless superannuation funds are operating efficiently and lawfully. For that reason it has, by procuring the enactment of the Superannuation Industry (Supervision) Act 1993 (Cth) ('the Supervision Act') and regulations made under it, imposed quite rigorous regulatory standards. The Deed reflects the enactment of that legislation. [Their Honours set out s 3(1) and 3(2) of the Supervision Act and continued] [36] Thus the public significance of superannuation and the close attention paid to it through statutory regulation support the conclusion that the decisions of superannuation trustees are not likely to be largely immunised from judicial control without clear contrary language in the relevant trust document. Decisions like those which the Trustee made in this case are not discretionary decisions in the sense used in Karger v Paul . [37] Those reasons also suggest, though the contrary was apparently not put to it, that the Court of Appeal was wrong to approach the present controversy as if the principles stated in Karger v Paul , developed in and appropriate to other fields, were applicable in the present field without any qualification. But the question how far those principles should be qualified may be postponed for a time." See also J C Campbell, "Exercise by superannuation trustees of discretionary powers", (2009) 83 Australian Law Journal 159 (at 167 - 173). 107The High Court's remarks are apposite, particularly bearing in mind that the Introductory Note to Part 3 of the Administration Act which, although not part of the Act (s 6, Administration Act), is relevant extrinsic material (s 34(2)(a), Interpretation Act ) states: "Generally, the trustee will have functions (which include powers, authorities and duties) that are consistent with the requirements of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth. That Act regulates the functions of trustees of superannuation funds and the administration of superannuation schemes but does not apply directly to the STC schemes...." 108Writing extra-judicially, Sir Robert Walker contrasted the "linear process" of a family trust under which "the settlor's or testator's bounty proceeds through the trustees to the beneficiaries" with "[a] pension trust [which] is more aptly envisaged as a triangle [with] [t]he trustees ... at the apex, the employer and the employees ... at the other corners [and] ... linked to the trustees by both fiduciary and contractual obligations": "Some Trust Principles in the Pensions Context", Trends in Contemporary Trust Law , AJ Oakley (ed), Clarendon Press (Oxford) (1996), 123 (at 124). That geometric analogy carries particular force in this case when it is recalled that PSAC (which is constituted under the Police Superannuation Act) both advises the appellant and was its delegated authority in respect of Fund matters. 109The fact that the Fund operates against an employment background might suggest "a greater tenderness for the employee's rights, so long as it does not mean that benefits to the employee inconsistent with the bargain or quite outside its conceivable contemplation should automatically flow to the employee": Uncle v Parker (1994) 55 IR 120 (at 123) per Santow J (as his Honour then was) referring to Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41. However it should be recognised that, ordinarily, "a member of a superannuation fund is neither the legal nor the beneficial owner of the amount that stands to the credit of his account from time to time": CSR Ltd v Chief Commissioner of State Revenue [2006] NSWSC 1380; (2006) 68 NSWLR 440 (at [12]) per Gzell J; Wrightson Ltd v Fletcher Challenge Nominees Ltd (2001) 1 NZSC 40,532; [2002] 2 NZLR 1 (at [28]) (Privy Council). I say "ordinarily" because the question whether the respondent had any such interest or, indeed, whether he had any "account" in the Fund was not debated. 110I do not understand Basten JA's statement in Swift (at [32]) that the fact Mr Swift had contributed to the scheme, being an "underlying facet[] of the scheme ... had no bearing one way or the other on the exercise of the discretion and the statute did not require their express consideration in this context" to mean that the fact of such contributions is not relevant to the larger, and different, question of ascertaining the scope of the appellant's duties. The fact of such contributions has been said to "make it even more important that the trustees should exercise their powers in the best interests of the beneficiaries": Cowan v Scargill [1985] Ch 270 (at 290) per Sir Robert Megarry V-C; see also Asea Brown Boveri Superannuation Fund No 1 Pty Ltd v Asea Brown Boveri Pty Ltd, McKeown, Gray & ABB Properties (Vic) Pty Ltd [1999] 1 VR 144 (at [57] [59]) per Beach J. The significance of employees' contributions was also emphasised in Finch (at [33]). 111The appellant sought to distinguish Hawkesley v May on the basis that the respondent's entitlement, if any, to an allowance was set out in public documents. However that fact has not always proved decisive, at least in an employment context. 112In Scally v Southern Health and Social Services Board [1992] 1 AC 294 the House of Lords held that where a contract of employment, negotiated between employers and a representative body, contained a particular term conferring upon the employee a valuable right contingent upon his or her acting as required to obtain the benefit, of which the employee could not be expected to be aware unless the term was brought to the attention of the employee, there was an implied obligation on the employer to take reasonable steps to publicise the term: see Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 (at 452) per McHugh and Gummow JJ. 113In Scally , under the terms of their contracts of employment negotiated by representatives of their professional bodies or trade unions, employees of the Northern Ireland Health Board were required to make contributions to a statutory superannuation scheme whereby they would receive full pension benefits upon completion of 40 years' contributory service. By the terms of the Health Services (Superannuation) (Amendment) (No 3) Regulations (Northern Ireland) 1974, employees who had joined the health services too late to complete 40 years service before retirement were given the right to purchase "added years" of pension entitlement on advantageous terms in order to make up the full 40 years' contributions. That right was only exercisable within 12 months of the date the regulation came into force or the commencement of employment, if later. Thereafter the right could be exercised only on less favourable terms. The plaintiffs were four doctors who each had to purchase "added years" to qualify for pension benefits. The department which employed the doctors had, apparently, brought to the attention of employees in the health services details of the superannuation scheme to which they were required to contribute, but had not drawn the plaintiffs' attention to the amendment which conferred the "added years" entitlement. They took proceedings against the boards by which they were employed claiming damages for breach of contract, negligence and breach of statutory duty under s 4 of the Contracts of Employment and Redundancy Payments Act (Northern Ireland) 1965 (NI) in respect of the failure to inform them of their right to buy added years. 114Lord Bridge of Harwich (with whom Lords Roskill, Goff, Jauncey and Lowry agreed) (at 304) identified the problem as "a novel one which could not arise in a classical contractual situation in which all the contractual terms, having been agreed between the parties must, ex hypothesi, have been known to both parties." He referred to the modern trend: "... for individuals to enter into contracts, particularly contracts of employment, on complex terms which had been settled in the course of negotiations between representative bodies or organisations and many details of which the individual employee cannot be expected to know unless they are drawn to his attention." 115His Lordship identified the case as being an example of this phenomenon "arising in the context of the statutory provisions which regulate the operation of the health services in Northern Ireland". He concluded (at 306 - 307) that a term to the effect of that I have set out (at [112]) would be implied as a necessary incident of the relationship of employer and employee in circumstances where: "(1) the terms of the contract of employment have not been negotiated with the individual employee but result from negotiation with a representative body or are otherwise incorporated by reference; (2) a particular term of the contract makes available to the employee a valuable right contingent upon action being taken by him to avail himself of its benefits ; (3) the employee cannot, in all the circumstances, reasonably be expected to be aware of the term unless it is drawn to his attention." (Emphasis added) 116Scally has, in my view, some relevance in informing the content of the appellant's s 51(1)(c) duty to exercise its functions in relation to the Fund in the best interests of persons entitled to receive benefits under it. In particular, it casts doubt upon the proposition that a person should be expected to be aware of all matters of public record in favour of emphasising the obligation of those responsible for administering statutory schemes in an employment context to inform its beneficiaries of their statutory rights. In Scally , Lord Bridge (at 305) regarded as "so unattractive that [he] would accept it only if driven to the conclusion that there was no other legally tenable alternative", the proposition "that the law provided no means of ensuring that the intended beneficiaries of the opportunity to buy added years became aware of it, so that it would be a matter of chance whether or not, in relation to any individual employee, [the regulation] achieved its intended purpose". In so saying his Lordship clearly regarded it as inherently implausible that employees would stumble across a regulation creating a "right", of whose nature they were completely unaware. 117Hawkesley v May , Hartigan Nominees (per Mahoney JA) and Scally support the proposition that a trustee and/or an employer is obliged to advise persons with actual entitlements to benefits of their rights in this respect - even if ( Scally ) those rights are recorded in public documents. 118However before the reasoning in those cases can be applied analogically to a trustee in the appellant's position, the question must be answered as to how it can come under such an obligation in relation to a person or persons of whose "potential rights" or "entitlement" it may be unaware. Is the fact, as the primary judge appears to have assumed, that it is aware of an identifiable class of contributors sufficient? 119The focus of the inquiry must be on the statutory scheme and the positions of the parties. Although expressed in the context of whether a tortious duty of care was owed, and/or a cause of action for breach of statutory duty existed, observations to like effect in, for example, Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330 (at [126] per Gummow J and Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215 (at [112]) per Gummow, Hayne and Heydon JJ; see also French J (at [53]); Crennan and Kiefel JJ (at [139] - [145]) are of utility in framing the inquiry. 120Here there is no doubt the appellant owed duties to "beneficiaries": s 51, Administration Act. The legislature appears to have operated on the premise, however, that that is a self-identifying class, and, implicitly, identified to the appellant upon application. 121The primary judge appears to have based her "duty" conclusion (at [58], [76]) on the fact that some sort of relationship would exist between the appellant and retiring police officers because the latter would be being paid monies from the Fund. That, with respect, begs the question as to how the appellant should deduce that any such individual might have an entitlement to a superannuation allowance falling within the s 10B criteria, which entitlement depends upon matters peculiarly within the police officer's knowledge and, possibly the Police Medical Service and the Commissioner of Police. Even that may be doubted in this case, bearing in mind the respondent's evidence that he did not discuss his left foot with the police medical officer at the time of his retirement (primary judgment (at [22])) and, as the historical documents reveal (see [28] above), had not apparently complained of it since 1985. 122It was not, accordingly, to point to use as the foundation for the perceived obligation the fact that the class of persons to whom the advice obligation was owed was easily ascertainable, even if that class was confined, as the primary judge appears to have reasoned, to those leaving the police force. Many in that class, it might be inferred, would be retiring because of reasons entirely unconnected with a medical condition, such as reaching retirement age or, like Mr Swift, to pursue a commercial venture: Swift (at [21]). 123Before exploring this issue further, it is appropriate to examine the appellant's further complaint that the primary judge erred in failing to consider its s 10B(2) submission. That submission, in turn, has force only if, as the appellant contends and I would accept, there was no evidence to support the proposition that the respondent would have qualified for an allowance at the date of his retirement. 124The primary judge said (at [79]) that she accepted a submission that had the respondent "applied at the date of his discharge a superannuation payment would have been made to him from that time". There was, however, no evidence, in my view, to support the factual premise underlying the submission. 125Accepting, as I have found, that the version of s 10B(2) applicable at the time the respondent was discharged was that which allowed for a superannuation allowance only if the member of the police force was incapable of discharging the duties of his office at that time, there was evidence (see [43] above) that the respondent's left foot injury did not prevent him from discharging the restricted duties to which he was assigned as that time. 126The position was not advanced, should the contrary be thought, in my view, by the s 10B(2) "certification" (see [38] above). As is apparent, that certification adopted the language of s 10B(2) following the 2006 amendments. 127There is no provision in the Police Superannuation Act dealing with the effect of s 10B(2) certification. This Court has held that a judge hearing a s 21 application is bound to accept the anterior finding that a police officer was suffering from an infirmity when the Commissioner (or the Commissioner's Delegate) certified, pursuant to the s 10B(3)(a) whether that infirmity was a hurt on duty injury: see Saad v Commissioner of Police (1995) 12 NSWCCR 70 (at 75); Larson v Commissioner of Police [2004] NSWCA 126 (at [35]) and Murray v Commissioner of Police [2004] NSWCA 365 (at [29]). However those decisions turn, as I understand them, on the fact that the question whether a person was suffering such an infirmity cannot be the subject of a s 21 determination. 128The word "certified" is not used in s 10B(1) or (2) as a term of art. The certification is given no special status: cf Workplace Injury Management and Workers Compensation Act 1998 s 326 (medical assessment certificate conclusive evidence on enumerated matters). It does not lead to the issue of a "certificate", although if it did, absent statutory provision, that would not imbue it with any special lustre. Even when such conclusive certification provisions exist, they are strictly construed: Maurice Blackburn Cashman v Brown [2011] HCA 22; (2011) 242 CLR 647. 129It was, however, apparent from the correspondence between the appellant and the respondent that it postponed consideration of his application for an allowance pending the 2006 amendments coming into force. That was correspondence to which the primary judge, acting in effect as trustee of the Fund, should have had regard. As the appellant submitted, it provided the context for the matters the appellant "certified". Her Honour should also have had regard to s 10B(2) as in force at the time the appellant retired, and his evidence that, at that time, he was able to discharge the restricted duties to which he was assigned. It was also relevant that the appellant's decision to apply the 2006 amendments to the respondent's application was made in the context of the new s 9A(4) regime establishing a presumption that the date from which any such allowance should date would be that of the application, unless exceptional circumstances merited doing otherwise. 130While, as the appellant accepted, there had been a lengthy delay in considering the respondent's application, the reasons for that delay were relevant to the date from which the allowance commenced. If the delay had, in substance, redounded to his advantage, that was highly relevant to the exercise of the s 9A(4) discretion. The primary judge does not, with respect, appear to have appreciated when looking (at [75]) at the position in February 2005 that at that date the respondent would not have had the benefit of the 2006 amendments. 131These matters were, in my view, highly relevant to the question as to the date of commencement of any superannuation allowance awarded to the respondent. The primary judge failed to take them into consideration. 132In my view, it was incumbent upon the primary judge in making the s 21 determination to take into consideration the fact that the granting of the respondent's superannuation allowance had depended upon the application of the 2006 amendments. In failing to do so her Honour failed to take into account a relevant consideration. Her Honour, also, in my view, erred in point of law in concluding, contrary to the evidence, that the respondent would have been entitled to an allowance had he applied in June 1988. These errors were material to her Honour's decision as to the commencement date for that allowance. 133The question of the extent to which any obligation devolved upon the appellant to advise persons of their entitlements under the Fund can, accordingly, await an occasion when it is determinative. 134Since preparing these reasons I have had the benefit of reading Campbell JA's reasons. I agree with his Honour's (as always) illuminating analysis. Orders 135I propose the following orders: 1. Appeal allowed. 2. Set aside the determination of Ashford DCJ made on 26 November 2009. 3. Remit the matter to the District Court in its residual jurisdiction for determination by that Court in accordance with law. 4. Respondent to pay the costs of the appeal. 136CAMPBELL JA: I have had the advantage of reading the draft reasons for judgment of McColl JA. I agree substantially with those reasons, but will state shortly some additional reasons. These reasons presuppose an understanding of facts and legislative provisions as set out in the judgment of McColl JA. 137The respondent retired, medically unfit, on 9 June 1988. The substantial cause of the injuries that made him unfit was a motor accident that he had sustained in April 1986 while off duty. Earlier, he had sustained an on-duty injury to his left foot, but by the time of the motor vehicle accident that was no longer interfering with his performance of the duties that he actually had. 138On 9 July 2004 he applied for a certificate of medical incapacity pursuant to s 10B(2) of the Police Superannuation Act . 139The test prescribed by s 10B for incapacity has changed from time to time. In June 1988 it required the police officer in question to be incapable "of discharging the duties of his office" . That test was in substance the same on 9 July 2004 (though put into gender neutral language by then). 140The legislative provisions governing the date from which a superannuation allowance is payable have also changed with time. Both in June 1988 and in July 2004, s 9A(4) of the Police Superannuation Act made the allowance payable from a date determined by the trustee. 141For many years prior to 1999, the test for infirmity in s 10B was treated as though it was satisfied if a police officer was incapable of performing the full range of duties that a police officer might be called on to perform. In 1999 there was a decision to the effect that all that was required was that the police officer was incapable of performing the duties of the particular office in which he or she was serving: Boland v SAS Trustee Corporation (1999) 97 IR 127. On that understanding of the test, a police officer who had been injured on duty, who was incapable by reason of that injury of performing the full range of police duties, but could perform the light duties or limited duties that were actually allocated to them, would not be incapable. The correctness of the decision in Boland has never been questioned in this Court, including in the present appeal. 142The Superannuation Legislation Amendment Act 2006 amended s 10B so that disability depended upon being incapable of performing the full range of duties of a police officer. The 2006 legislation also amended s 9A(4), to the effect that a superannuation allowance was payable from the date that the application was lodged, or such earlier date as the trustee might determine if it was satisfied that there were exceptional circumstances. 143If the respondent had been assessed on the pre-2006 version of s 10B, as it had come to be understood by 2004, he would not have qualified for a superannuation allowance. That was because, even though as at the time of his retirement in 1988 the injury to his left foot had the effect that he could not perform the full range of a police officer's duties, such as running after and apprehending a wrongdoer, the injury to his left foot did not interfere with his ability to do those particular duties that were assigned to him. However his medical condition was such that, if assessed on the version of s 10B introduced by the 2006 amendment, he was incapable at the time of his retirement. 144Because the 2006 amendments made substantive change to the law, the respondent's application should have been assessed by reference to the criteria applicable at the time he made his application in 2004. However, the applicant delayed deciding it, and eventually decided the respondent's unfitness by reference to the 2006 criteria. That resulted in the respondent receiving a certificate that on 9 June 1988 he was incapable, due to the condition of his left foot and also his right hip, "of discharging the duties of office and any other office in the police force at the date of his discharge" . On the basis of that certificate, the trustee granted him a superannuation allowance, payable from the date of his application. 145He appealed to the District Court against that decision. The primary judge held that the allowance should have been payable from the date of his discharge. In making that decision, the primary judge was re-exercising the trustee's discretion under s 9A(4) in the form it had in 2004. The question on this appeal is whether the primary judge made an error of law in exercising the discretion in that way. 146The primary judge made three errors of law. Any one of them is sufficient to require the discretion to be re-exercised. 147The first was in finding that the trustee had been under a duty to advise the respondent of his entitlements at the time of his discharge and had breached that duty. The case below, and this appeal, seems to have been conducted on the basis that a breach of duty by the trustee provided a reason for backdating the superannuation allowance, rather than giving rise to a personal liability of the trustee. I will not depart from that assumption. Likewise, the case was not put as one where the trustee was in breach of a duty to enquire, so there is no occasion to discuss that topic. 148As I have endeavoured to explain elsewhere, the duty of any particular trustee depends on what is involved in faithfully carrying out the office of being trustee of that particular trust (JC Campbell, "Should the 'Rule in Hastings-Bass ' Be Followed in Australia? - Trustees' Duties to Enquire and Trustees' Mistakes" (2011) 34 Australian Bar Review 259 at 270-277). There may be a core of duties that would always, or nearly always, be involved in faithfully carrying out a trust, regardless of its individual peculiarities. Beyond that, any additional duties of a particular trustee come to be understood through considering the practical exigencies of the types of decision that that particular trustee has to make, in the particular social or business environment in which that trustee is operating. To those factual matters one applies the standards of faithful performance of those duties that are laid down in the trust instrument, and of faithfully attempting to achieve the objectives articulated in the trust instrument. Because that is the way in which trustees' duties arise, one cannot say that trustees always are, or always are not, under a duty to inform a potential beneficiary of his or her entitlements under the trust. 149In the present case, because of the fact that the respondent was paid a lump sum by the trustees on his retirement, one can conclude that the trustee knew that the respondent was retiring. However, the trustee had no reason to believe that the respondent's retirement had anything (or even might have had anything) to do with having been hurt on duty. His injuries arising from the off-duty motor vehicle accident seemed to provide the reason why he was not medically fit to continue as a police officer. The documents he submitted to the trustee in 1988 did not even mention that he had been hurt on duty. There was no positive duty to provide information in the trust instrument. Absent such a positive duty, I cannot see how a trustee is in breach of a duty it owes to a beneficiary by failing to give the beneficiary information that the trustee has no reason to believe will be of the slightest practical use to the beneficiary. 150It is likely that in 1988 the trustee would have acted under what has since been accepted as being a misapprehension of law concerning the range of duties that a police officer had to be incapable of performing to satisfy the pre-2006 test. However even if this were the case, the trustee would still not have had any reason to believe that the respondent was retiring for a reason that had anything to do with his having been hurt on duty. Thus, even in that situation, it would not have had a duty to inform him concerning the rights that were available to those police officers who were retiring through having been hurt on duty. 151The second error is that the judge held that if the respondent had applied in 1988 he would have been granted a benefit. The relevant question for a judge deciding now how to exercise the s 9A(4) discretion, is whether he would have been entitled to a benefit, had he applied for one in 1988. In light of the unquestioned decision in Boland , he would not have been entitled, had he applied in 1988. It is not relevant to the proper exercise of s 9A(4) that, if he had sought the benefit in 1988, the trustee would probably have applied a wrong legal test to his application. The judge incorrectly failed to give significant weight to the fact that the certificate had been granted on the basis of the 2006 test. 152The judge's third error was taking into account that there had been a long delay between the respondent lodging his application and the appellant eventually making a decision on it. To the extent to which the delay was harmful to the respondent (and it is hard to see how it was harmful to him, when his application would probably have failed had it been assessed immediately), it has been made good by the payment of interest. Even if the delay in assessing the application had been a breach of duty on the part of the appellant, that breach of duty would provide no reason for giving the respondent the added benefit of back-dating the start of his superannuation allowance by some 16 years before he applied for it. 153I agree with the orders proposed by McColl JA. 154SACKVILLE AJA: I have read the comprehensive reasons for judgment prepared by McColl JA and the judgment prepared by Campbell JA. I agree with the orders proposed by McColl JA for the reasons given by Campbell JA." ********** 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. Decision last updated: 20 December 2011