Miles v SAS Trustee Corporation [2010] NSWIRComm 69 | Case summary

Industrial Relations Commission (NSW)|2010-04-19|Before: Staff J

The application be remitted to the Trustee for their proper consideration. 5 The determination of the Trustee, the subject of the appeal, was attached to the notice of appeal. The attachment was a copy of a letter from the Trustee addressed to the applicant's solicitor. After setting out the background to the applicant's claim to amend his s 10B(1) certificate of the Police Regulation (Superannuation) Act 1906 ("the Superannuation Act") by adding post traumatic stress disorder ("PTSD") to it, the letter concluded: The application for amendment of the s 10B(1) certificate is therefore rejected on the basis that there is no dispute because the Applicant cannot be aggrieved by the original decision that certified all the medical conditions he claimed. 6 In this appeal Mr T Edwards of counsel appeared for the applicant, and Mr T Ower of counsel appeared for the Trustee. Background 7 The applicant joined the NSW Police Force on 5 May 1975. On 15 July 2002, the applicant made an application to be medically discharged from the NSW Police Force based on the following injuries: (i) lumbar strain/shoulder injury/right knee;

(v) back. 8 The application was successful and the applicant became entitled to a superannuation pension under the Superannuation Act. He did not suggest he suffered an injury of a psychiatric nature. 9 The applicant has suffered for some time from a non-work related condition, "idiopathic epilepsy." He referred to this condition in his application for discharge, stating: All injuries claimed have been accepted as work related, except for idiopathic epilepsy. This condition was classed as not work related in 1984 and not related to my work environment. 10 The Trustee considered the applicant's application for discharge on or about 15 July 2003, and issued a certificate pursuant to s 10B(1) of the Superannuation Act. 11 The Trustee certified that as a result of the following infirmities, the applicant was incapable of exercising his functions as a police officer: (i) cervical spine - symptomatic degenerative changes; (ii) lumbar spine - symptomatic degenerative changes; (iii) left shoulder - recurrent dislocation; (iv) right knee - symptomatic chondromalacia. 12 The Trustee was not called upon to make any determination, or otherwise consider an injury or an infirmity caused by a psychiatric condition. 13 The Trustee's determination was subsequently referred to the Commissioner of Police who exercised his function on or about 4 September 2003 to determine, pursuant to s 10B(3) of the Superannuation Act that the infirmities were caused by the member being "hurt on duty". Accordingly, the applicant became entitled to a superannuation benefit pursuant to the Superannuation Act. 14 On 2 July 2008, the applicant made an application pursuant to s 10B(2) of the Superannuation Act, seeking to amend the s 10B(1) superannuation certificate previously issued by the Trustee. In this application, he required the Trustee to consider the additional infirmity of PTSD. This application was subsequently withdrawn and a further application was made seeking to amend the original s 10B(1) certificate. The application to the Trustee was supported by medical reports from Dr W D Wade, a consultant physician in psychiatry, dated 6 May 2008 and Dr M Peters, a consultant psychologist, dated 21 January 2008. 15 The application was, in effect, that at the time of his discharge, the applicant was unaware of any psychiatric condition from which he suffered. The medical reports provided to the Trustee concluded that at the time of discharge, the applicant suffered from PTSD, which rendered him incapable of carrying out his duties of office. 16 The applicant contends that his idiopathic epileptic condition "effectively camouflaged the symptoms of PTSD" and that "any symptoms of a psychiatric type were effectively understood by the applicant as sequelae to his known epileptic condition." 17 The applicant contends that it was only upon his referral to Dr Wade that he became aware that the symptomology suffered by him was caused by PTSD, as opposed to being related to his idiopathic epilepsy. 18 This history is based on evidence given by the applicant in the proceedings, and documentary evidence contained in the applicant's and the Trustee's tender folders, which were admitted into evidence. In light of the issue that falls for determination in this appeal, it is unnecessary to analyse in any detail the documentary material, much of which overlapped. 19 The material tendered included an application for medical discharge, various medical reports from the applicant's treating doctors and doctors who had examined the applicant at the request of the Trustee, and various correspondence between the applicant's solicitor and the administrator of the Trustee. In any event, there was little dispute between the parties as to the facts of the present matter. 20 Perhaps for completeness, it should be recorded that the applicant applied to the Trustee, and was granted an increase in his annual superannuation pension to 81 per cent salary of office. He appealed that decision to the District Court. 21 On 2 February 2006, following a full hearing on the issue of incapacity, Neilson DCJ upheld the appeal and increased the applicant's pension to 82.55 per cent salary of office. Issue for determination 22 The key issue for determination here is whether by its action of rejecting his application, the Trustee has made a determination, and accordingly the applicant is entitled to bring proceedings pursuant to s 88 of the Superannuation Administration Act. The statutory scheme 23 It is convenient to refer to the statutory scheme relevant to the present matter. The statutory scheme is to be found in two statutes: the Superannuation Administration Act and the Superannuation Act. The fund relevant to the scheme is defined in s 1 of the Superannuation Act. Section 3(3) requires the STC to pay from the fund benefits provided by the Superannuation Act, administration costs, other money properly payable from the fund and such amounts necessary to satisfy liability under Commonwealth statutes relevant to income, taxation and superannuation contributions surcharge. Section 3 provides that various benefits are available to certain categories of retired and former police officers. The benefit relevant to the present proceedings is the superannuation allowance payable when members are determined to be "hurt on duty" under s 10. That section provides for various levels of benefits to "hurt on duty" officers, or former officers. These benefits, understandably, are more generous than those payable in respect of "non hurt on duty" officers. A distinction is made between serving officers who apply for medical discharge and former officers who have already been discharged for "non hurt on duty" reasons. This distinction is borne out by the different paths to certification contained in s 10B(1) and s 10B(2) respectively. These sections relevantly provide: 10B Medical examination of disabled member and determination of whether hurt on duty (1) An annual superannuation allowance or gratuity must 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 personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990. (2) An annual superannuation allowance or gratuity must 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, and (b) if the regulations so require, the notification was in the prescribed form, and (c) STC (having regard to medical advice on the condition and fitness for employment of the member) 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. 24 It is clear that following certification of infirmity, the different statutory paths merge and the subsequent steps are the same, namely, that a certificate of the infirmity as "hurt on duty" is determined by the Commissioner of Police (s 10B(3)(a)). Section 10(1A) makes provision for the payment of the pension at the base rate of 72.75 per cent salary of office. There is a capacity for the base rate to be increased to 85 per cent, commensurate with the incapacity. If totally incapacitated, provision is made for a further increase to 100 per cent commensurate with exposure to risks not normally experienced by the general workforce. 25 In my view, the steps envisage that there is no issue concerning the terms of the infirmity. Indeed, the certificate is conclusive and binding on the parties in any litigation concerning those steps: Saad v Commissioner of Police (1995) 12 NSWCCR 70; Murray v Commissioner of Police (2004) 2 DDCR 31; Day v SAS Trustee Corporation (2009) 187 IR 338. 26 Section 67 of the Superannuation Administration Act enables disputes concerning, inter alia, the Police superannuation fund and the related superannuation scheme, to be dealt with by the STC. It provides: 67 Determination of disputes (1) A dispute under this or any other Act concerning an STC scheme is to be determined by STC or an STC disputes committee, except as otherwise provided by the regulations. (2) Regulations made for the purposes of subsection (1) may require that a dispute concerning the entitlements or obligations of an employee or beneficiary arising in respect of service by the employee with an employer that:

(a) was responsible for the payment of benefits under an STC scheme of which the employee was a member or to which the employee was a contributor, and (b) has ceased to be responsible for the payment of benefits under that scheme but is responsible for the payment of benefits under a new superannuation scheme created in accordance with section 127, be determined, not by STC or an STC disputes committee, but by the trustee of the new superannuation scheme.

(3) In determining a dispute, STC, an STC disputes committee or the relevant trustee may inform itself on any matter in such manner as it thinks fit and, in so doing, is not bound to observe rules of law relating to evidence. (4) A trustee acting in accordance with regulations referred to in subsection (2) and an STC disputes committee have and may exercise the powers conferred on STC by sections 66 and 68. (5) This section does not apply to a dispute in respect of which an application may be made to the District Court under section 21 of the Police Regulation (Superannuation) Act 1906. 27 Section 23E of the Superannuation Act provides that since 11 June 2008, notices of disputes are required to be served within two years of the "person aggrieved" being notified of the decision at issue. Submissions 28 Mr Ower submitted that the essence of any grievance must be demonstrated from the decision made by the Trustee. 29 Mr Edwards' answer to this contention was that the Trustee of the STC had powers and functions determined by the Superannuation Administration Act, which included that the STC was to determine disputes under relevant statutes. Counsel contended that upon the provision by the applicant to the Trustee of a proper application supported by medical evidence, the Trustee is bound to consider that application: Tonkin v Western Mining Corporation Limited (1998) 10 ANZ Insurance Cases 61 - 397, Supreme Court of Western Australia, Full Court, (at 74 - 270); Gilberg v Stevedoring Employees Retirement Fund Pty Limited [2008] NSWSC 1318. 30 Mr Edwards submitted that the applicant in these proceedings was not required to establish his entitlement through the medical evidence provided with the application. Rather, it was sufficient if the material provided related to the infirmity. In other words, counsel submitted that the material was sufficient to cause the Trustee to consider it and to form an opinion as required by s 10 of the Superannuation Act. Consideration 31 In my opinion, there is a relatively clear path to a decision on the issue raised in this appeal. In this case, it was common ground that the Trustee certified all of the infirmities claimed by the applicant as relevant to his medical discharge in 2003. The actual terms of the claim were clarified on two occasions before the certificate under s 10B was issued. 32 Importantly, the Trustee was specifically directed by the applicant not to consider the condition of "idiopathic epilepsy". It is now claimed that the symptoms of this condition "effectively camouflaged the symptoms of PTSD" and that "any symptoms of a psychiatric type were effectively understood by the applicant as sequelae to his known epileptic condition." These arguments do not explain why, if the applicant believed he was incapacitated by such symptoms, he did not claim them as such, notwithstanding the lack of formal diagnosis. On the one hand, the applicant cannot claim an infirmity if he is unaware of it, and equally the Trustee cannot certify it if it is not claimed, as was the case here. 33 There is much to be said for the proposition that in this case, once the procedures in s 10B have been followed and have produced a result, that is determinative of the infirmities. True it is that the applicant contends that there is medical evidence and the applicant's evidence that he, on a retrospective analysis suffered from PTSD at the time of his discharge, although such evidence has not been the subject of any assessment. The appeal was argued on the basis that the decision of the Trustee of 21 August 2009, which determined there was no dispute between the applicant and the Trustee, be set aside. The order sought by the applicant was that the application be remitted to the Trustee for proper consideration. 34 Put simply, if a member has certified all of the infirmities that he or she relies upon, then I have some difficulty with how it can be said that a dispute can arise, and on what basis the member could contend that he or she was aggrieved by the decision. Furthermore, the Trustee took an additional step of enquiring of the applicant as to whether there was anything further that he wanted considered. 35 Subsequently, the Trustee was asked to increase the applicant's pension on the determined infirmities, which occurred. The decision of the Trustee was appealed and a further increase was awarded. At no time during these steps was an infirmity of PTSD relied upon. The Trustee was of course obliged to consider the application for an increase in his pension based upon the conclusive nature of both the certificates pursuant to s 10B(1) and s 10B(3)(a). At no time during these steps was it suggested that the applicant was incapacitated by any medical condition, other than those already certified pursuant to s 10B(1). 36 It follows that in these circumstances, the decision in Tonkin v Western Mining Corporation Limited can be distinguished. Essentially, the principles set out by Franklyn J were that a trustee: ... has a duty only to act in accordance with the trust. If it fails to perform the same, the court will compel it to do so or do so for it. It is not bound by any rules as to how it exercises a discretion conferred on it, save such as it is obliged to comply with by the terms of the Deed, provided always that it must act honestly and in good faith, on an informed view of whether or not to exercise its discretion, and exercise the power with due consideration for the purpose for which it was conferred and for no ulterior purpose. 37 Having obtained all that he claimed up to 2 February 2006 (except for a finding of total incapacity) and having specifically relied upon the conclusive nature of the certificate to obtain his increase in pension, in my view, the applicant cannot now be validly "aggrieved" by the terms of the s 10B(1) certificate. To permit the applicant to be "aggrieved", in these circumstances, would be contrary to the statutory scheme and would add a further layer of complexity to an already complicated process, which, in my view, should be avoided: see observations of Wright P in Commissioner of Police v SAS Trustee Corporation (2002) 131 IR 243. 38 For these reasons, the appeal should be dismissed. ORDERS 39 I make the following orders: 1. The appeal is dismissed. 2. I reserve the question of costs. The parties are granted liberty to apply. Such liberty is to be exercised within 28 days of the date of this judgment.

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.

Commissioner of Police v SAS Trustee Corporation (2002) 131 IR 243 Day v SAS Trustee Corporation (2009) 187 IR 338 CASES CITED: Gilberg v Stevedoring Employees Retirement Fund Pty Limited [2008] NSWSC 1318 Murray v Commissioner of Police (2004) 2 DDCR 31 Saad v Commissioner of Police (1995) 12 NSWCCR 70 Tonkin v Western Mining Corporation Limited (1998) 10 ANZ Insurance Cases 61 - 397, Supreme Court of Western Australia, Full Court, (at 74 - 270)

Miles v SAS Trustee Corporation

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