Industrial Relations Commission New South Wales Medium Neutral Citation: Locker v SAS Trustee Corporation (No 2) [2014] NSWIRComm 14 Hearing dates: 18 November 2013 Decision date: 17 January 2014 Jurisdiction: Industrial Court of NSW Before: Boland J, President, Walton J, Vice-President, Backman J Decision: The Full Bench makes the following orders: (1)Leave to appeal is refused (2)The appellant shall pay the respondent's costs as agreed or assessed. Catchwords: APPEAL - Application for leave to appeal and appeal from a first instance judgment in which the Court dismissed an appeal brought pursuant to s 88 of the Superannuation Administration Act 1996 against a decision of the respondent - Respondent declined to certify the appellant was incapable of personally exercising the functions of a police officer thereby depriving the appellant of a hurt-on-duty pension - Parties required to address question of leave as a threshold issue - STATUTORY INTERPRETATION - which was the applicable statutory provision: was it the provision at the time of the appellant's resignation from the police force or the provision that applied when the application for certification of the appellant's infirmity was made 12 years later? No error at first instance in primary judge determining that the applicable statutory provision was the later provision - Factual findings open on the evidence - Leave refused Legislation Cited: Industrial Relations Act 1996 Police Act 1990 Police Regulation (Superannuation) Act 1906 Superannuation Administration Act 1996 Cases Cited: Locker v SAS Trustee Corporation [2013] NSWIRComm 23 SAS Trustee Corporation v Ainsworth [2011] NSWIRComm 128; (2011) 213 IR 329 SAS Trustee Corporation v Cox [2011] NSWCA 408; (2011) 285 ALR 623 Category: Principal judgment Parties: Robert John Locker (Appellant) SAS Trustee Corporation (Respondent) Representation: Mr I Latham of counsel (Appellant) Mr T Ower of counsel (Respondent) Baker & Edmunds (Appellant) SAS Trustee Corporation (Respondent) File Number(s): IRC 279 of 2013 Decision under appeal Date of Decision: 2013-03-28 00:00:00 Before: Staff J File Number(s): IRC 874 of 2012 Judgment 1In Locker v SAS Trustee Corporation [2013] NSWIRComm 23, Staff J dismissed an appeal brought pursuant to s 88 of the Superannuation Administration Act 1996 by Robert John Locker ("appellant") against a decision of the SAS Trustee Corporation ("the respondent"). The respondent had declined to certify the appellant was incapable, from infirmity of body or mind (traumatic injury to his right ankle, right foot and right toes), of personally exercising the functions of a police officer, thereby depriving the appellant of a hurt-on-duty pension. 2The appellant sought leave to appeal and, if leave were to be granted, to appeal from the decision of Staff J pursuant to ss 187 and 188 of the Industrial Relations Act 1996. 3The Full Bench required the parties to address, separately, the question of leave. Having heard the parties, the Full Bench decided to refuse leave. This judgment deals with the reasons for refusing leave. 4At the time of his resignation from the Police Force on 17 October 1998 the appellant was a police prosecutor. Prior to that the appellant had been performing highway patrol motorcycle duties and it was in that capacity the appellant injured his ankle, foot and toes. The appellant said in his evidence the injuries caused him significant pain and although the role of police prosecutor did not require him to perform the full scope of duties of an operational police officer, from time to time he was required to deal with offenders, for example, seeking to escape custody or to restrain offenders in the court room. 5Staff J observed at [26] that the appellant had said he became disheartened at the fact that he could not perform his duties effectively and was placing both himself and others at risk because of his limitations caused by the injury to his right foot and right ankle. The appellant resigned and shortly after commenced work as a law clerk. From December 1998, he commenced working as a solicitor in a sole practice specialising in criminal law. 6The appellant applied for a medical discharge on 21 December 2010 and, as we have noted, that application was declined. 7Relevantly, an annual superannuation allowance or gratuity may be granted to a former police officer who has resigned or retired if the requirements of s 10B of the Police Regulation (Superannuation) Act 1906 ("the Act") are met. Those requirements include that the respondent has "certified that the former member was incapable, from that infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member's resignation or retirement": s 10B(2)(c). Section 14(1) of the Police Act provides: 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. 8The Act's requirements for certification of an infirmity were different at the time of the appellant's resignation in 1998. At that time s 10B(2B) provided: (2B) STC may certify that a former member of the police force was incapable of discharging the duties of the member's office if the member was incapable of discharging the duties of the office in the police force in which the member was employed at the time of the member's resignation or retirement and also any other office in the police force: (a) which was available to the member at that time, (b) which was not lower in rank than the office in which the member was then employed, and (c) in which it would have been reasonable to expect the member to have been employed. 9The significance of the difference between the two provisions is that the earlier provision required the incapability of a police officer to be assessed with reference to the claimant's actual duties of office as distinct from the general duties of a constable. In the appellant's case, in 1998, s 10B(2B) would have required the respondent to determine whether the appellant was incapable, because of his injuries, of discharging his duties by reference to the particular rank or position held by him at the time of certification. In 2010, s 10B(2)(c) required the respondent at the time of certification, to determine whether the appellant was incapable, because of his infirmity, of discharging his duties by reference to "functions conferred or imposed on a constable by or under any law (including the common law) of the State". 10The later provision is potentially more favourable to the appellant because if the medical evidence is accepted that the appellant was incapable of performing the full range of duties of an operational police officer, certification is more likely to follow than if the issue was whether the appellant was incapable of performing the functions of a police prosecutor because of the injury to his ankle and foot. 11The key issue at first instance and, as the appellant conceded, on appeal, was one of statutory construction: which provision applied to the appellant's claim; the provision that applied at the time of the appellant's resignation in October 1998 (s 10B(2B) or the provision which applied when the application for certification of the infirmity was made in December 2010 (s 10B(2)(c)). The appellant's position was that his application should have been assessed by reference to the statutory criteria applicable at the time he made his application. 12The appellant's position hinged on his view that the decision of the Court of Appeal in SAS Trustee Corporation v Cox [2011] NSWCA 408; (2011) 285 ALR 623 supported his position. In Cox the respondent retired medically unfit from the Police Force in June 1998. On or about 9 July 2004, the respondent made an application to the appellant for a Certificate of Medical Incapacity pursuant to s 10B(2) of the Act. On 14 December 2006, the trustee certified in terms of s 10B(2) of the Act as then in force that as at the date of his retirement (June 1988) the respondent was incapable due to the infirmity of discharging the duties of office and any other office in the Police Force at the date of his discharge. The Court of Appeal held that the trustee had erroneously applied the statutory criteria that applied following amendments to the Act in 2006. 13In contending that his application should have been assessed by reference to the statutory criteria applicable at the time he made his application in 2010, the appellant in the present proceedings referred to what McColl JA stated in Cox at [73]: 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. 14Further reliance was placed on what Campbell JA said at [144]: [144] Because 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. 15The appellant has misconstrued Cox. McColl JA at [73] was stating no more than that as a result of his 2004 application the respondent had a substantive right to have that application considered by the appellant. Her Honour was not making a finding that the respondent's application should have been assessed by reference to the statutory criteria applicable as at 2004, although we note the relevant criteria in 2004 was in substance the same as it was in 1988, that is, the test was whether the police officer in question was incapable "of discharging the duties of his office". 16The statement by Campbell JA at [144] that "...the respondent's application should have been assessed by reference to the criteria applicable at the time he made his application in 2004" has to be seen in its proper context, which was that the statement was made shortly after his Honour had observed that: [139] The 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). 17Thus, the criteria applicable at the time the respondent made his application was the same as the applicable criteria in 1988 and, therefore, any reference to 2004 criteria was also a reference to the criteria that applied at the time of the respondent's medical discharge. 18In referring to being assessed by reference to the criteria applicable at the time the respondent made his application in 2004, Campbell JA was merely distinguishing that criteria from the criteria that applied after the 2006 amendments to s 10B. His Honour was not making a finding that an application for certification of infirmity is to be assessed by reference to the statutory criteria applicable at the time the application is made. 19It is, as the respondent submitted, the facts and circumstances at the time of resignation or retirement that give rise to the potential right to the certificate of infirmity. The Court of Appeal clearly accepted that the respondent would not have been certified as incapable of discharging his duties if the statutory criteria applicable at the time of his discharge (1988) had applied. Mc Coll JA stated at [125]: Accepting, 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. 20Campbell JA stated at [143]: If 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. 21It was accepted by the appellant in the present proceedings that the changes to s 10B in 2006 and 2007 were substantive and not procedural changes. As McColl JA observed at [74]-[75]: [74] I 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]). [75] In 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. 22It being the case that unless a contrary intention appears, a change in the law will not affect rights or liabilities which the law has defined by reference to past events, we can see no error in the primary judge having determined that, it was not the statutory criteria that applied at the time the appellant made his application in 2010, that is, after the 2006 amendments to the Act, but rather the criteria applicable at the time of resignation or retirement in 1998. 23The decision of the Full Bench in SAS Trustee Corporation v Ainsworth [2011] NSWIRComm 128; (2011) 213 IR 329 is consistent with Cox. In Ainsworth the Full Bench considered the question of whether the statutory test for incapability extended by the 2007 amendment to the Act was substantive or procedural. In that case an application was made on 7 July 2008 to amend an existing certificate pursuant to s 10B(1) which had been granted in 1997. The trial judge applied the post amendment statutory test for incapability. The Full Bench held that this was an error and that the applicable test was that contained in s 10B as at 1997. 24The test for incapability in s 10B(1) is, relevantly, essentially the same as for s 10B(2) and at all relevant times has been essentially the same. It is not evident that the primary judge erred in applying Ainsworth. 25The appellant's alternative position was that if the primary judge applied the correct statutory test, his Honour erred in failing to accept the appellant's evidence as to his incapabilty of performing the work of police prosecutor and erred in misunderstanding the medical evidence. 26In our opinion, his Honour's findings were clearly open on the evidence and, therefore, would not justify the granting of leave. Orders 27The Full Bench makes the following orders: (1) Leave to appeal is refused. (2) The appellant shall pay the respondent's costs as agreed or assessed. ********** Amendments 01 April 2014 - Mistakenly assigned a 2013 medium neutral citation: "[2013] NSWIRComm 113". Amended to now read: "[2014] NSWIRComm 14". Amended paragraphs: Coversheet/Medium Neutral Citation 01 April 2014 - "Industrial Relations Commission" amended to read "Industrial Court of NSW". 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