Scott Anderson v SAS Trustee Corporation [2019] NSWDC 406

District Court New South Wales

Medium Neutral Citation: Scott Anderson v SAS Trustee Corporation [2019] NSWDC 406 Hearing dates: 6 - 8 March 2019 Date of orders: 08 March 2019 Decision date: 08 March 2019 Jurisdiction: Civil Before: Neilson DCJ Decision: See [87] Catchwords: POLICE SUPERANNUATION - Legislation Cited: Police Regulation (Superannuation) Act 1906, Workers Compensation Act 1987 Cases Cited: Boland v SASTC (1999) 97 IR 127, Morley v SASTC [2007] NSWIRC 90, SASTC v Ainsworth [2011] NSWIRC 128, Locker v SASTC [2014] NSWIRC 144, Cook v SASTC [2014] NSWIRC 43 Category: Principal judgment Parties: Scott Anderson (Plaintiff) SAS Trustee Corporation (Defendant) Representation: Counsel: Mr M Hammond (Plaintiff) Mr T Ower (Defendant)

Solicitors: Carroll & O'Dea (Plaintiff) SASTC (Defendant) File Number(s): RJ 231/18 Publication restriction: Nil

Judgment [7 MARCH 2019] 1. HIS HONOUR: The plaintiff, Scott George Anderson, is a former senior constable of the police. He was attested as a probationary constable of police on 25 November 1983. He there upon became a contributor to the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906. The plaintiff submitted his resignation from the police force on 18 June 1996 and asked that his last day of duty be 25 June 1996. That came to pass. At the time that he resigned that plaintiff did not tell anybody in authority nor did he mention in any document that he was incapacitated for the duties of his office as a senior constable of police. 2. On 1 December 2011 the defendant received from the plaintiff's then solicitors, an application under s 10B(2) of the Act applying for a medical discharge benefit. The date of the application may be 1 September 2011. The date is difficult to read. It is clear that the application was originally sent to the defendant on 30 August under a cover of a letter dated 30 August 2011 but it went astray. It was resubmitted under the cover of a letter on 30 November 2011. On 24 September 2015, almost four years later, the Police Superannuation Advisory Committee, under delegated authority from the defendant, declined to certify pursuant to s 10B(2) of the Act that the plaintiff was incapable from a specified infirmity of body or mind of discharging the duties of his office because of the paucity of medical evidence available. 3. That gave the plaintiff the right to apply to this Court within six months of that decision. However, the defendant gave the plaintiff erroneous advice and advised him that he could within two years of the notification of the decision of 25 September 2015 make an application to the dispute officer of the defendant. The matter went before the defendant's Dispute Committee on 5 September 2017, two years later, and it determined that it was not satisfied that there was sufficient basis to certify that the plaintiff was incapable of discharging the duties of his office at the time of his resignation on 25 June 1996. 4. The defendant then gave the plaintiff further erroneous legal advice and advised him that he may appeal to the Supreme Court within six months of notification of that decision. The plaintiff did so. However, whilst the matter was pending in the Supreme Court, the Court of Appeal determined that the correct method of appeal was to this Court, and that there was no right of appeal at any time from PSAC to the Dispute Committee or either the Industrial Relations Commission In Court Session, or the Supreme Court. The Supreme Court then transferred the matter back to this Court and the proceedings began in this Court on 13 June 2018. Very prudently, the defendant has not raised any defence of the plaintiff's application being out of time. 5. The relevant law that I must apply is the law in force at the time that the plaintiff resigned. I have been provided by the defendant with a number of authorities to establish that point. In particular, I have been referred to Boland v SASTC (1999) 97 IR 127, Morley v SASTC [2007] NSWIRC 90, SASTC v Ainsworth [2011] NSWIRC 128, Locker v SASTC [2014] NSWIRC 144 and Cook v SASTC [2014] NSWIRC 43. However, I really need go no further than to consider the dicta in SASTC v Cox [2011] NSWCA 408 which dicta are conveniently set out in Locker which is a mercifully short judgment. 6. Section 10B(2) was at the relevant time this: (2.) An annual superannuation allowance or gratuity must not be granted under s 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 six months of receiving the injury which has caused the member's infirmity of body or mind, of that injury: (a)(i) where regulations so require, the notification was in or to the effect of the prescribed form, and (b) the Board (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 his office at the time of his resignation or retirement." Section 10B(2B) was in the following terms: "(2B) The Board 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." The reference to the "Board" which is contained in the legislation I have quoted is a reference to the State Authorities Superannuation Board which, of course, was the predecessor to the current defendant. 1. The Act requires me to consider the duties of the office that the plaintiff was actually performing at the time of his resignation. There are alternatives to considering that role in (2B), but the relevant conjunction is "and" and not the disjunctive quote "or", so that the plaintiff can be incapable of doing either the actual duties of his office at the time of his discharge and other work which was available to him at the same or higher rank and which it would have been reasonable to expect him to have done.