HIS HONOUR: I decided the current proceedings on 28 July 2015: [2015] NSWDC 183; (295) 20 DCLR (NSW) 362. The plaintiff appealed to the Court of Appeal. The majority (McColl and Ward JJA, Basten JA dissentiente) held that I had committed a jurisdictional error, allowed the appeal and remitted the matter back to me to determine according to law: [2016] NSWCA 111. The issue remains that which I identified in [1] of my earlier judgment, the date on which a superannuation benefit, payable to the plaintiff, pursuant to s 10(1A)(b) or (c) of the Police Regulation (Superannuation) at 1906 ("the Act") ought commence.
It is necessary to recite, again, a few of the basic facts. The plaintiff was medically discharged from the NSW Police on 5 September 2003 with a number of psychiatric conditions. I outlined those in [3] of my earlier reasons. Eventually, on 13 March 2006, the Commissioner of Police determined that the condition of chronic post-traumatic stress disorder (PTSD) was caused by the plaintiff's having been hurt on duty. I recited that at [4] of my earlier reasons. Following upon that determination of the Commissioner of Police, the current defendant wrote a letter to the plaintiff which bears date 18 April 2006. I discussed that letter at [5] to [7] of my earlier reasons. That letter, amongst other things, advised the plaintiff of his right to seek an increased pension benefit under s 10(1A) of the Act. That advice is recorded in [6] of my earlier reasons. Despite a denial by the plaintiff, I held that the plaintiff received that letter: [8]. There was then some delay until the next relevant events. Those events are outlined between [9] and [13] of my earlier reasons. The events of that period have been more fully explained in the documentary evidence which was tendered yesterday, and in the oral evidence adduced from the plaintiff. I shall recapitulate the events of this period.
The plaintiff had been attending a support group with his wife, for those suffering PTSD or similar conditions, at the St John of God Hospital under the overall supervision of Dr Selwyn Smith. At some time, perhaps in late 2011 or early 2012, a question was raised at a group meeting as to how obtain lump sum compensation for a psychiatric injury. There could be a lump sum payable for a psychiatric injury in the whole person impairment scheme introduced into the Workers Compensation legislation, in effect from 1 January 2002. It appears that the plaintiff has not sought any such lump sum, and that is clearly because he stopped working on or about 14 August 2001. There accordingly could be no lump sum compensation for the plaintiff for a psychiatric illness. However, it appears that Dr Selwyn Smith also discussed with the plaintiff and his wife the question of the amount of the superannuation allowance then being paid to him, and it appears that Dr Smith suggested to the plaintiff and his wife that both he and she could apply to have their pension benefits increased.
Daley v SAS Trustee Corporation [2016] NSWDC 285 | Case summary | Zoe
On 8 February 2012, the plaintiff contacted Mrs Walter Madden Jenkins, his current solicitors, and spoke with, I infer, Ms Sarah McLean. He was advised to seek, in essence, illegal aid from the Police Association of New South Wales, which is, in essence, a trade union. On 20 April 2012, the plaintiff wrote to the Police Association of New South Wales seeking legal assistance, both to increase his pension benefit and in connection with a claim for industrial deafness. I leave the latter consideration to one side as it is irrelevant. The Police Association decided to grant legal assistance to the plaintiff. On 2 May 2012, the Police Association wrote to Mrs Walter Madden Jenkins, a letter received by that firm on 4 May 2012. It is exhibit K. The Police Association advised Mrs Walter Madden Jenkins of the grant of assistance to its member, the plaintiff, and provided the plaintiff's details and details of what additional benefits he was seeking.
On 22 May 2012, Ms McLean wrote to the plaintiff a letter which is part of exhibit L. It provided legal advice as to how the plaintiff's pension benefit could be increased. It provided to the plaintiff medical authorities that he was asked to sign and return, and it asked him ten questions. In addition, Ms McLean enclosed for the plaintiff's consideration a standard costs agreement and costs disclosure. The plaintiff appears to have failed to reply to that letter. On 17 August 2012, a further letter was sent to him by Ms McLean, asking him to respond. In the meantime, the solicitors obtained, from the administrator of the police superannuation fund, a copy of the defendant's documents concerning the plaintiff's pension entitlement.
On 27 November 2012, the plaintiff's solicitors wrote to him, advising what their reading of the defendant's documents told them, and asking him for instructions to ask his treating psychiatrist, Dr Smith, to prepare a report. That letter appears also to have been overlooked for some time, and a copy of it was forwarded to the plaintiff on 14 January 2013, asking for a response. On 31 January 2013, the plaintiff made a telephone call to Ms McLean. She prepared a file note. It became exhibit O. Again, she provided certain advice to him. On 11 February 2013, as a result of instructions that the plaintiff had conveyed to Ms McLean, Mrs Walter Madden Jenkins wrote to Dr Smith, requesting a report. Dr Smith provided a report bearing the date 10 July 2013, which was received by Mrs Walter Madden Jenkins on 15 July 2013. It took Dr Smith five months to prepare and forward a report. This hardly expedites matters.
On 23 July 2013, the plaintiff's solicitors wrote to him, enclosing a copy of Dr Smith's report and drawing his attention to certain parts of it, and on page 2, enclosing an application form to increase his annual superannuation allowance. I infer that it was the document which eventually became exhibit 1, the defendant's form 14, headed "Application Form for an increase in a hurt-on-duty pension (s 10(1A))". The plaintiff's solicitor's letter of 23 July 2013 continues thus:
"We ask that you review this application to ensure all of the details [so far completed] are correct. Please sign and return the form to the writers office so that we are able to submit the application to the SAS Trustee Corporation on your behalf. Further, we note that questions 16 to 25 inclusive have not been answered. In the circumstances, we request you provide the writer, in a separate document, answers to these questions. They are as follows: ..."
Then follow ten questions, being the same ten questions initially asked of the plaintiff by Walter Madden Jenkins in their letter of 22 May 2012. There was delay in responding to this communication. Part of exhibit L is an email transmission sent by Ms McLean to the plaintiff and his wife. The substance of that email is this:
"I understand that you may have misplaced my letter dated 23 July 2013, as per telephone message left by Paula [the plaintiff's wife] on 19 August 2013. Therefore, I attach a further copy of my letter with attachments for your information and records. Please review Dr Smith's report, sign the application form on page 11, and email me answers to questions 1 to 10 on page 2 of my letter. Upon receipt, I will be able to lodge the application form with the SAS Trustee Corporation on your behalf."
The email goes on to cordially request a response, and if there were any questions arising, for the recipient to contact Ms McLean. However, although the original letter of 23 July 2013 may have been "misplaced", the email appears to have been, in essence, ignored. There was a follow-up letter from Ms McLean on 19 November 2013. Again, a response was requested.
On 22 January 2014, the plaintiff, by email, answered the ten questions that had been initially asked of him by his solicitors on 22 May 2012, and which were repeated on 23 July 2013. According to exhibit 1, the plaintiff dated the application to increase his superannuation allowance, the form 14, on 16 January 2014, and he obviously returned it to Ms McLean. That application was sent to the defendant under a cover letter bearing the date 3 February2014. That was obviously received by the defendant on the following day, 4 February 2014, which is the date on which the defendant chose to commence the plaintiff's increased pension benefit.
One can see from reviewing that evidence that there were inordinate delays by the plaintiff himself in answering correspondence addressed to him by his solicitors, in providing information requested by his solicitors, and doing things required of him by his solicitors to obtain his increased pension benefit.
In his oral evidence, the plaintiff said that the reason for not replying promptly to the letter of 22 May 2012 was that answering the questions, "starting up the whole process" and resulted in "reliving things again." The plaintiff was indicating by that, turning his mind to issues relating to his pension entitlement, made him relive events of the past, made him relive the circumstances in which his career as a sergeant of police ended, and in essence, ended his working life. When pressed about why he did not reply promptly to other correspondence, the same reason was given on each occasion. It was pointed out to the plaintiff that the questions asked of him related essentially to his education and experience prior to joining the NSW Police, and as to what he had been doing since he was medically discharged and did not require him to relive the traumatic events which gave rise to his PTSD. The plaintiff agreed with that. The plaintiff admitted that his response seemed to be illogical, but he maintained that the PTSD had caused him to lose his career and his livelihood and merely answering questions as to what he did before his police career, and how his life had been affected since he left the police force, raised the whole question of the loss of his police career.
I was not impressed by the inherent logicality of what the plaintiff said, but he acknowledged that it was illogical. However, I was equally impressed by what appeared to me to be the plaintiff's sincerity in telling me what he did. Furthermore, the responses that he gave really rule out any suggestion that the plaintiff's motivation is purely monetary, that it is due to some form of cupidity. Although I did not accept the plaintiff's denial of receiving the defendant's letter of 18 April 2006 last year, I otherwise formed a favourable impression of him and I was again struck by the evidence which he gave yesterday as to the extent of his sincerity and lack of guile.
In my earlier reasons, between [14] and [16], I recited the defendant's decision to increase the plaintiff's basic pension from 72.75% of the salary of his office to 85% of the salary of his office, and to commence that increased pension benefit from 4 February 2014, the day on which the defendant received the plaintiff's application to increase his pension benefit. I pointed out that, in essence, the defendant accepted that the plaintiff was totally incapacitated for work outside the police force. I reviewed the medical evidence available to the defendant between [17] and [28] and at [29] found the plaintiff had been totally incapacitated for all forms of employment since he was medically retired on 5 September 2003.
The plaintiff, in his address yesterday, laid considerable stress on the extent of the plaintiff's incapacity for work since stopping work on or about 4 August 2001, and the date of the defendant's decision on 2 May 2014. The plaintiff, by his counsel, again referred me to certain parts of the reports of Dr Moorthy of 6 August 2003, which is exhibit G, parts of the evidence of the reports of Dr Selwyn Smith, which are exhibit F, and parts of the reports of Dr Mark Kneebone of 14 March 2014, which are exhibit H. Perhaps I need only reiterate certain parts of the last report, which I cited in my earlier reasons. At [26] I recited this part of the evidence of Dr Kneebone:
"His symptoms are mood disturbance, hyper-arousal and re-experiencing of previously encountered traumatic scenes in his police work, documented by Dr Moorthy, psychiatrist, in his report dated 6 August 2003, and Dr Selwyn Smith, psychiatrist, in his reports dated 6 and 8 May 2013, just one to four months prior to his retirement, are essentially the same as those documented by the author of this report."
In other words, the doctor who examined the plaintiff on 14 March 2014 found the plaintiff to be essentially the same as he had been back in 2003. The significance of that is that, commencing on 23 August 2004, the plaintiff was admitted to the St John of God Hospital to undergo alcohol detoxification and has not, since that time, taken any alcohol. As I pointed out in [20] of my earlier reasons:
"His abstention from alcohol removed some of his symptoms or impressions or views which he himself now describes as being weird, unusual or bizarre. However, most of his symptoms remain. One might expect from the detoxification and weaning himself from alcohol that the plaintiff's condition may have improved somewhat."
On the one hand, there was improvement, but on the other hand, there remained essentially the same sort of symptoms as those that had been identified prior to the plaintiff's detoxifying.
In [27] of my earlier reasons, I quoted some of the statements of Dr Kneebone, some of which, again, need to be considered. They are these:
"Mr Daley's HOD conditions significantly impair his cognitive abilities, social judgment and interpersonal functioning. These impairments are thought to prevent him from undertaking any employment, even on a part-time basis.
[...]
"Mr Daley's HOD medical condition is felt to have changed only modestly since his medical retirement from the NSW Police Force on 5/09/2003 on the basis of the reports of Dr Smith and Dr Moorthy in 2003. Both Mr Daley's post-traumatic stress disorder and major depressive disorder continued to be of at least moderate severity. He has, however, been able to completely abstain from alcohol and reports an amelioration in his nightmares since the assessment of Dr Smith and Dr Moorthy."
It is to be pointed out that the plaintiff's cognitive impairment appears to stem from the extent of his alcohol intake when he was abusing that substance, and although he now has weaned himself off alcohol and is alcoholism could be said to be in full remission, unfortunately, the cognitive deficit did not go away. His ability to think clearly is organically compromised.
[59] of my earlier reasons commences thus:
"The defendant itself advised the plaintiff of his ability to do so [seek an increased pension benefit]. He did not take up the invitation. I am now asked to believe that the plaintiff did not know he had the ability to apply for an increased pension, but that I cannot accept. I can accept, however, that with a certified infirmity, the plaintiff found it difficult to make decisions, to take in information, to peruse closely a letter such as the letter of 18 April 2006 sent to him by the defendant. I can readily accept that the plaintiff probably would have been more interested in the financial information contained on the first page of the letter, namely the total net arrears which he was to receive, a sum of $21,259.98, rather than the information contained on the subsequent pages of the letter. I can also accept that the plaintiff was glad to be rid of the litigation in which he had been involved with the Commissioner of Police since 2004 up until the settlement that was reached on or about 13 March 2006."
Those observations have been reinforced by the evidence which the plaintiff gave yesterday about his inability/reluctance to grapple with issues relating to his police pension. His agreement that some of his behaviour appears to have been illogical is, in essence, his telling me of the results of the cognitive deficit that has resulted from his alcoholism, which in itself is the consequence of the PTSD.
In [59] I went on to refer to advice which I believe the plaintiff would have been given by Mr Les Nichols. I refer to Mr Nichols in [58] of my earlier reasons. Mr Nichols was then a solicitor who acted for the plaintiff in connection with his proceedings in this Court between 2004 and 2006. Mr Nichols was then with Mrs Walter Madden Jenkins.
In [59] I said that I found it difficult to accept that Mr Nichols would merely have told the plaintiff that have won his case, he could go out and find himself a job, rather than to draw his attention to his right to seek an increased pension entitlement. That, perhaps, was not well-expressed. I can well accept that Mr Nichols may have advised the plaintiff that he could go out and try to find work if he could, but I also believe that he would have also advised the plaintiff of his right to seek an increased pension benefit. I am fortified in maintaining that finding, in light of the fact that I alluded to that in my earlier reasons and that Mr Nichols was not called in the plaintiff's case at this rehearing, nor was his absence from the witness box explained.
However, I can readily accept that back in 2006, the plaintiff was more concerned about his arrears of compensation than his further entitlement to seek an increased pension benefit. I can equally accept that the plaintiff probably forgot about the alternative advice that was given to him by Mr Nichols. Furthermore, the plaintiff's presentation persuades me that he probably wanted to forget certain things, if he could, because of the effects of his chronic PTSD. However, it appears to me that when the issue was again raised in a "therapeutic" environment by Dr Smith, in a less confrontational or adversarial background than talking to lawyers with a prospect of a court case, the plaintiff elected to follow up the advice given by Dr Smith. However, the plaintiff did so very slowly and only under repeated prompting by Ms McLean. Eventually the position was reached where a further application form could be lodged with the defendant, as occurred on 4 February 2014.
Some observations made by the learned judges in the Court of Appeal provide me with some guidance. McColl JA said this:
"51. In my view, the appellant was a person aggrieved by the STC's decision to commence his additional HOD pension from the date on which his application form was received. He was entitled to have the STC consider whether his additional pension should be backdated. The fact that question 28 was not completed, for whatever reason, did not indicate that he did not seek the backdating of any additional pension. It left that question at large for the STC's exercise of its s 10(1D) discretion.
52. Further, the quantum of any additional amount the appellant received had to be determined as "commensurate … [with his] incapacity for work outside the police force". In circumstances where he had attached to the application a medical opinion that he had been unable to engage in remunerative employment since he left the Police Force by reason of the psychiatric disorder which had led to his medical discharge, the appellant was entitled to have a reasonable expectation, in my view, that STC would find an earlier date than that on which his application form was received was the "appropriate" date from which any additional HOD pension should commence.
53. The STC's decision to commence the additional HOD pension from the date the application was received, rather than from an earlier date, was a decision within s 21(1)(a) which gave rise to a legitimate grievance which prejudicially affected the appellant's financial interests. Neither the formal decision, nor, I would add, the form of his application was the determinant."
Basten JA said this:
"The next three paragraphs dealt with the absence of evidence as to why no application had been made to the STC to backdate the payment sought and what inferences might be drawn from the absence of evidence. Although it is true that there was reference to factors which might be described as involving delay, or more accurately prevarication, there was no reference in these paragraphs to the finding of total incapacity throughout the relevant period. The period of full incapacity would have been an important consideration (though not necessarily decisive) in addressing the "appropriate" date from which the new allowance should be paid."
Delay in seeking the increased pension benefit appears to me, despite what was said by learned counsel for the plaintiff yesterday, a relevant consideration. That appears to have been accepted by Basten JA in [90] and also in [133]. It appears also to have been a relevant consideration by Ward JA at [139]. It was not said by McColl JA that it was an irrelevant consideration. In my earlier reasons, I quoted from the decision of Truss DCJ in Pinkerton v SAS Trustee Corporation (10 August 2007, RJ00319/06, unreported). Her Honour held at [21] of her reasons that the Act and related subsidiary legislation did not mandate that the additional allowance be backdated to the date of discharge - in other words, the Court has a discretion whether to backdate the pension benefit or not, and a relevant consideration was delay. It was not suggested in the Court of Appeal in the current matter that her Honour's decision was wrong. In fact, it was not even adverted to. If her Honour's decision had been wrong, then there would have been an error of law and it would not have been necessary to go to the question of jurisdictional error.
For centuries, the Courts have looked unfavourably on delay. There can be found in Sir Edward Coke, Institutes of the Laws of England, the following maxim: "Vigilantibus, non dormientibus, iura subveniunt." Sir Edward Coke was the Lord Chief Justice of the Court of King's Bench. He was a common lawyer. The maxim is now preserved in equity. The seventh maxim of equity is that delay defeats equities or the alternative maxim, relying upon the dictum I have just quoted, is that equity aids the vigilant and not the indolent. The Latin plural noun iura is to be contrasted with the Latin plural leges. The latter is apt to describe the written law. The former is apt to describe legal principals deriving from the common law and equity. In equity, delay sufficient to defeat an equity is called laches, but there can be no suggestion that delay in the current case could defeat any entitlement the plaintiff had to backdating. Delay is merely a consideration and not some form defence.
If I might encapsulate the defendant's submission it is this: there has been delay, the delay is unexplained, there was a failure to ask for backdating and the failure to ask for backdating remains unexplained. The delay has, in my view, been explained. The delay directly stems from the plaintiff's certified infirmity for chronic PTSD which led to alcoholism which led to cognitive impairment. The cognitive impairment and the plaintiff's desire to avoid re-agitating anything to do with his police service explain the delay.
It is true that there was no request made to the defendant for backdating. However, I do not accept that the reason for that remains "unexplained." A partially completed application form was sent to the plaintiff. It had been partially completed by Ms McLean. I can tell that from handwriting of the file note, which is exhibit O, which was compiled by Ms McLean. The form was returned by the plaintiff to Ms McLean in January 2014. Very shortly thereafter, the plaintiff provided the answers to the ten questions initially asked of him on 22 May 2014. It is clear that Ms McLean completed the rest of the document, but omitted to complete question 28. If I may so, the plaintiff's camp has been rather coy in admitting this omission. Ms McLean is well known to me. I have the utmost respect for her and the utmost confidence in her ability. However, none of us is perfect. We all make mistakes. I am today giving judgment because last year I made a mistake. It appears that the question was overlooked and that has led to mischief that I am now seeking to deal with.
I now believe I know why question 28 was not completed - it was overlooked. In particular, it should be borne in mind that the plaintiff himself did not have his attention drawn to question 28, but his attention was drawn in the letter to him of 23 July 2013 to questions 16 to 25, and that letter which may have been misplaced was sent to him again by email on 23 August 2013. It was copied again to him on 19 November 2013. The plaintiff himself was not asked to provide any information which would enable Ms McLean to answer question 28, and unfortunately she failed to do so. The omission is now, in my view, adequately, albeit unsatisfactorily, explained.
Other than delay itself, there is no suggestion of any prejudice or detriment to the defendant. I had available to me adequate information to make the finding that the plaintiff had been totally incapacitated for all forms of work since his medical discharge. The defendant had come to the same conclusion, at least since 4 February 2014, and it could have made a similar survey of the plaintiff's condition prior to that time. If anything, the plaintiff's condition prior to that time was a little worse, rather than a little better. There is no missing evidence. The defendant has not proved any detriment to it. There is no evidence of any detriment to the Police Superannuation Fund from which the plaintiff's benefits are theoretically payable.
I have accordingly come to the view that in the special circumstances of this case, it is appropriate to backdate the pension to the date of grant. I, again, stress that I do so because of the special circumstances of this case. There are many former members of the NSW Police, who were contributors to the Police Superannuation Fund, who have been medically discharged on account of PTSD or similar psychiatric conditions. However, many of them do not suffer from an organic cognitive deficit - a cognitive deficit due to alcoholism. Many of them can adequately defend their rights and pursue their entitlements. However, this plaintiff is not one of those. Had there been missing medical evidence caused by the plaintiff's delay, such that one could not determine exactly when total incapacity commenced, then the decision I might make would be otherwise. However, looking at the whole of this matter, I am satisfied that it is appropriate to backdate the pension to the time of grant.
For those reasons, I set aside the decision of the defendant made on 2 May 2014, commencing the plaintiff's payment pension benefit on 4 February 2014. I determine that the pension of 85% of the salary of the plaintiff's office at the date of medical discharge be payable to him from 6 September 2003.
[The parties agreed as to costs.]
[2]
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Decision last updated: 03 November 2016