Miles v SAS Trustee Corporation - [2017] NSWCA 86 - NSWCA 2017 case summary — Zoe

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Miles v SAS Trustee Corporation

[2017] NSWCA 86

Court of Appeal (NSW)|2017-03-28|Before: Payne JA, Schmidt J, Mr J

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2017-03-28

Before

Payne JA, Schmidt J, Mr J

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

Background

The appellant joined the police force in 1975. In 2003 he held the rank of Senior Constable.
On 4 September 2003, a delegate of the Commissioner certified, in terms of s 10B(3)(a) of the Superannuation Act, that: "the suffering by Senior Constable Miles of the infirmity of Cervical spine - symptomatic degenerative changes; lumbar spine - symptomatic degenerative changes; left shoulder - recurrent dislocation; and right knee - symptomatic chondromalacia as specified in the certificate of the Police Superannuation Advisory Committee, dated 28 August 2003, was caused by the member being hurt on duty." (Emphasis in original.) Each of these conditions was attributed to particular injuries sustained while the appellant worked as a police officer.
The reference to "hurt on duty" in the certification is to a term defined in s 1 of the Superannuation Act as follows: "hurt on duty , in relation to a member of the police force, means injured in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987, entitle the member to compensation under that Act."
The appellant was medically discharged from the police force on 5 September 2003. As a consequence of the Commissioner's certification, the appellant became entitled, pursuant to s 10(1A)(a) of the Superannuation Act, to an annual superannuation allowance equal to 72.75 per cent of the member's "attributed salary of office". [7]
In 2004, the appellant applied to STC pursuant to s 10(1A)(b) of the Superannuation Act to increase his annual superannuation allowance to 85 per cent of his attributed salary of office. On 30 September 2004, STC increased the allowance to 81 per cent. The appellant challenged this decision in the District Court and, on 2 February 2006, STC's decision was set aside. In lieu thereof, the District Court determined that the appellant was entitled to an annual superannuation allowance of 82.55 per cent.
In 2008, the appellant applied to STC to amend the original certificate issued by the Commissioner to include an additional infirmity of Post Traumatic Stress Disorder (PTSD). STC rejected this application on 29 October 2008.

[2]

Legislation

The argument on the appeal centred on ss 10(1), (1A) and 10B of the Superannuation Act. Each of these provisions was introduced into the Superannuation Act by the Police Regulation (Superannuation and Appeals) Amendment Act 1979 (NSW) (1979 Act). [10] As was explained in Lembcke v SAS Trustee Corporation [11] (Lembcke), prior to the 1979 Act members of the police force who were "hurt on duty" were entitled only to a superannuation allowance (often referred to as a pension) at a flat rate of 72.75 per cent of the member's salary of office. As a consequence of the introduction of s 10(1A) into the Superannuation Act, a member who was hurt on duty could claim an additional superannuation allowance in certain circumstances. [12]
Sections 10 and 10B and others in the Superannuation Act have been amended since 1979. [13] Neither party suggested that the amendments have any significance for the issue of construction raised by the appeal. Accordingly what follows is an outline of the relevant provisions of the Superannuation Act in the form they took at the date of STC's decision on 2 February 2015.
The Superannuation Act establishes the Police Superannuation Fund (the Fund) (s 3(1)). The Fund consists of moneys provided from various sources, including deductions from the salary paid to each member of the police force who is a contributor to the Fund (s 3(2)). Deductions are made in an amount equal to 6 per cent of the member's salary (s 5(1)). If the amount in the Fund is insufficient to meet superannuation allowances payable under the Superannuation Act, the amount of the deficiency is a charge against Consolidated Revenue Fund (s 4).
Section 7 of the Superannuation Act is headed "Superannuation allowance except where member hurt on duty". Section 7(1) states that: "The annual superannuation allowance for a member of the police force who has served 20 years or more of equivalent full-time service and retires on or after attaining the age of 60 years or, being under that age, is discharged after being certified under section 8(1) to be incapable, from 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, is an amount calculated in accordance with the following formula:" It is not necessary to reproduce the formula in s 7(1) except to note that the percentage of the member's attributed salary of office that is payable increases according to the member's years of service up to a maximum of 72.75 per cent for 30 or more years' service. [14] The Superannuation Act provides for the annual automatic adjustment of superannuation allowances. [15]
A superannuation allowance under s 7(1) is not payable to a member of the police force to whom a superannuation allowance is payable under s 10 (s 7(2)). As will be seen, s 10 provides for a superannuation allowance payable to a member who has been hurt on duty.
Section 8(1) of the Superannuation Act provides that a superannuation allowance must not be granted or paid under s 7 to a member of the police force who at the time of discharge is under 60 unless STC: "has certified the member to be incapable, from infirmity of body or mind, of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act 1990." [16]
The scheme of ss 7 and 8 is that a member of the police force who retires at age 60 having served for 20 or more years is entitled to a superannuation allowance calculated in accordance with a formula. The allowance is at a rate up to a maximum of 72.75 per cent of the member's attributed salary of office at the date of retirement, depending on the member's years of service. A member of the police force who is discharged under the age of 60 after being certified as medically unfit to personally exercise the functions of a police officer is entitled to receive a superannuation allowance. The superannuation allowance in this case is calculated in accordance with a similar statutory formula to that applying to a police officer who retires at age 60. The medical unfitness that entitles a member to a superannuation allowance need not result from a work-related injury, illness or disability - that is, need not be a hurt on duty infirmity.
Section 10 of the Superannuation Act is headed "Superannuation allowance where member hurt on duty". The headings to a provision of an Act are not to be taken to be part of the Act. [17] However, the text of s 10, unlike the text of s 7, contains the expression "hurt on duty". [18]
Section 10 of the Superannuation Act relevantly provides as follows: [19] "10 Superannuation allowance where member hurt on duty (1) In this section: attributed salary of office means: (a) in relation to a member of the police force who is discharged-the member's attributed salary of office at the date of the member's discharge, or (b) in relation to a former member of the police force who resigned or retired-the member's attributed salary of office at the date of the member's resignation or retirement. 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 personally exercising the functions of a police officer referred to in section 14(1) of the Police Act 1990 , 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, was incapable, from an 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, 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 … (1A) Subject to this section, the annual superannuation allowance for a disabled member of the police force is (a) an amount that is equal to 72.75 per cent of the member's attributed salary of office, (b) except where paragraph (c) applies, an additional amount that is: (i) not more than 12.25 per cent of the member's attributed salary of office, and (ii) commensurate, in the opinion of STC, with the member's incapacity for work outside the police force, and (c) if the disabled member is totally incapacitated for work outside the police force and, in the opinion of STC, the member was hurt on duty because the member was required to be exposed to risks to which members of the general workforce would normally not be required to be exposed in the course of their employment, an additional amount that is: (i) not less than 12.25 per cent and not more than 27.25 per cent of the member's attributed salary of office, and (ii) commensurate, in the opinion of STC, with the risks to which the member was so required to be exposed, multiplied by the equivalent service ratio of the member as at the date of the member's discharge, resignation or retirement. … (1B) An annual superannuation allowance may be granted under this section to a disabled member of the police force whatever the member's length of service. (1BA) A superannuation allowance referred to in subsection (1A) or an additional amount of a superannuation allowance referred to in subsection (1D) is not payable to a disabled member of the police force unless an application for payment of the allowance or additional amount concerned is made: (a) before the member reaches the age of 60 years, or (b) not later than 5 years after the member resigns or retires, whichever is the later. (1C) Where a former member of the police force who resigned or retired is granted an annual superannuation allowance under this section, the allowance shall, at the time it first becomes payable, be increased or reduced, as the case may require, by the total amount (if any) that it would have been increased or reduced under Division 2 or any other provision of this Act if it had been granted when the former member resigned or retired. (1D) STC may: (a) make a determination at any time of an additional amount of a superannuation allowance under this section, and (b) vary any such determination at any time, and may direct that the determination or variation take effect from such date as STC considers appropriate. …"
Section 10B of the Superannuation Act relevantly provides as follows: "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 … (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. … (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."
The word "injury" in s 10B(2)(a) of the Superannuation Act has been construed to include both a physical injury and a disease of gradual onset. [20] Thus a psychiatric disorder such as PTSD is capable of constituting an "injury" for the purposes of s 10B(2)(a).
Section 14(1) of the Superannuation Act applies to a member of the police force who has served for a period of less than 20 years and is discharged after having been certified under s 8(1) as incapable of personally exercising the functions of a police officer. If a member is not entitled to be granted a superannuation allowance under s 10, STC is to pay the member a gratuity of 24 months' pay. [21] If, however, a former member who has received a gratuity subsequently becomes entitled to a superannuation allowance by reason of having been hurt on duty when he or she was a member of the police force, the amount of the gratuity is to be deducted from the superannuation allowance. [22]
Section 21(1) of the Superannuation Act provides that a person who considers himself or herself aggrieved by a decision of STC on a matter arising by reason of a member of the police force being hurt on duty or by a decision of the Commissioner under s 10B(3)(a) may within six months of receiving notice of the decision, apply to the District Court for a determination in relation to the decision. On such an application, the District Court may confirm the decision or set it aside and replace it with a different decision (s 21(4)). In the latter case the decision is deemed to be made by STC or the Commissioner as the case may be, and shall be carried into effect (s 21(6)).

[3]

Primary Judgment

The primary Judge found that there had been no material change in the appellant's circumstances since the previous determination, so far as the four orthopaedic problems covered by the Commissioner's original certificate were concerned. [23] His Honour also found that the appellant suffered from a psychiatric condition that increased the extent of his incapacity for non-police work from 80 per cent to 90 per cent. [24]
The primary Judge rejected the appellant's submission that on an application for an increased superannuation allowance pursuant to s 10(1A)(b) of the Superannuation Act, the Court can take into account what his Honour described as a "supervening non-pensionable incapacity". [25] (This description might be thought to beg the question in dispute.) His Honour therefore concluded that the appellant was not entitled to rely on his psychiatric condition as a basis for increasing the superannuation allowance beyond the 82.55 per cent already granted.
The primary Judge was apparently influenced by his belief that "custom (or practice) is the best interpreter of the law". His Honour characterised the appellant's submissions as "novel" and observed that the appellant's counsel "could provide … no authority [for his argument] other than the words of the Act itself". [26] It is perhaps appropriate to observe, however, that the words of an Act usually are considered to be a good starting point in construing the legislation.
The primary Judge considered that it would be "inconsistent with the scheme of the Act" to permit a former member of the police force, who has an incapacity for work outside the police force, to obtain an additional 12.25 per cent by way of superannuation allowance, where the incapacity is not caused by the police officer being hurt on duty. [27] The words "incapacity for work" in s 10(1A)(b)(ii) of the Superannuation Act were therefore to be construed to mean "incapacity from a specified infirmity of body or mind", as referred to in the definition of "disabled member of the police force" in s 10(1). This was not only his Honour's understanding, "but the way [the provision] has always been interpreted". [28] In his Honour's view, construction of s 10(1A) was supported by the second reading speech for the Bill that became the 1979 Act. [29]

[6]

Principles of construction

There was no dispute about the general principles to apply in construing s 10(1) of the Superannuation Act. Those principles were stated by French CJ and Hayne J in Certain Lloyd's Underwriters v Cross (Lloyd's Underwriters) [30] in a frequently cited passage. For present purposes it is important to emphasise that the task of statutory construction begins with a consideration of the text itself. [31] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the Act. [32] Accordingly, the meaning of the text may require consideration of the context, including the general purpose and policy of a provision. However, the purpose of a statute "resides in its text and structure". [33] Moreover, the purpose of legislation must be derived from what the legislation says, not from any assumption about what is thought to be a desirable result. [34]
In Woollard, a case involving interpretation of the Superannuation Act, Bathurst CJ emphasised that: [35] "it is not up to courts in construing a statute to consider what is or is not a desirable policy and impute that to the legislature as a matter of construction". His Honour also emphasised, with particular reference to s 10B of the Superannuation Act that care must be taken in considering the purpose of the statute divorced from the words of the statute itself. [36] Bathurst CJ referred in this connection to Carr v State of Western Australia, [37] where Gleeson CJ pointed out that the principle requiring legislation to be construed so as to promote the underlying purpose or object may be of little assistance where the legislation strikes a balance between competing interests.
Having regard to the submissions made by STC in the present case, it is important to appreciate that a construction that gives effect to the words of a statute is not to be rejected simply because one party labels the result as "perverse" or, to use a less pejorative term, "anomalous". In Lembcke, for example, STC argued that it was perverse to construe s 10(1A) as permitting a disabled member of the police force to receive an additional superannuation allowance if the result was that the member's superannuation allowance, together with earnings from the member's residual earning capacity, could exceed the member's salary on discharge from the police force. According to STC's argument in that case, such a result would produce a "windfall gain" that Parliament could not have intended. [38]
STC's argument in Lembcke was rejected on the ground that no limitation could be read into s 10(1A) of the Superannuation Act, the terms of which were said to be "plain and clear". [39] Meagher JA observed that s 10(1A) requires: [40] "one question, and one question only, viz. what is the applicant's incapacity for work outside the police force?" Ipp JA pointed out that s 10(1A) provides for superannuation allowances that are "akin to pension payments … [which] are not ordinarily regarded as compensatory". [41] Accordingly, there was no basis for implying an unexpressed qualification to the statutory language.

[7]

The "Gateway" construction of s 10(1A)(b)

In the course of oral argument Mr Ower accepted that, if read literally, s 10(1A) of the Superannuation Act, read with s 10(1) is capable of being construed in the manner suggested by the appellant. That concession was properly made.
The text of s 10(1A)(b) of the Superannuation Act and the structure of s 10(1A) as a whole support the appellant's contention that a police officer or former police officer who satisfies the definition of "disabled member of the police force" is entitled to an additional superannuation allowance under s 10(1A)(b), provided that STC forms the opinion referred to in s 10(1A)(b)(ii) (that is, that an additional amount is commensurate with the member's incapacity for work outside the police force).
Section 10(1A) commences by providing that: "Subject to this section, the annual superannuation allowance for a disabled member of the police force is …" Three sub-paragraphs of s 10(1A) then specify the amount of superannuation allowance payable to the "disabled member of the police force" in three separate situations.
The expression "disabled member of the police force" is defined in s 10(1) and includes two categories of persons:

a member of the police force who is discharged after being certified pursuant to s 10B(1) as incapable of personally performing the functions of a police officer; or
a former member of the police force who resigned or retired and who obtained a certificate pursuant to s 10B(2) at any time after the resignation or retirement stating that the member was incapable of exercising the functions of a police officer at the time of the member's resignation or retirement.

In each of the cases the infirmity must have been determined, pursuant to s 10B(3) of the Superannuation Act, to have been caused by the member or former member being hurt on duty while a member of the police force. Thus the member or former member must have been: "injured in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act, entitle the member to compensation under that Act". [42]
It follows from the definition in s 10(1) of the Superannuation Act that a discharged member of the police force cannot be a "disabled member of the police force" unless he or she has been certified pursuant to s 10B(1) of the Superannuation Act as incapable, from a specified infirmity of body or mind of personally exercising the functions of a police officer. This ties in with s 10B(1), which states that an annual superannuation allowance must not be granted under s 10 to a member of the police force who is discharged unless STC has certified the member to be incapable from a specified infirmity of exercising the functions of a police officer.
In the case of a former member of the police force who has resigned or retired, no superannuation allowance can be granted under s 10(1A) even with a certificate from STC under s 10B(1)(a) unless the former member notified the Commissioner 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 (s 10B(2)(a)). [43]
Section 10(1A)(a) of the Superannuation Act states that the annual superannuation allowance for a disabled member of the police force is an amount equal to 72.75 per cent of the "member's attributed salary of office". The reference in this context to a "member" must be to a disabled member of the police force. This follows from the fact that the subject matter of s 10(1A) is the superannuation allowance to which a disabled member of the police force is entitled. The effect of s 10(1A)(a) is that the minimum superannuation allowance to which a "disabled member of the police force" is entitled is 72.75 per cent of the member's attributed salary of office. There is nothing in the language of s 10(1A)(a) to suggest that the entitlement of 72.75 per cent will be terminated or reduced if the member's specified "infirmity of body or mind" subsequently improves or even if the member no longer suffers from the infirmity. [44]
Section 10(1A)(b) of the Superannuation Act specifies an additional amount of superannuation allowance to which a disabled member of the police force may be entitled. The reference in s 10(1A)(b) to a variant of the word "member" again must be to a disabled member of the police force. The entitlement of such a member to an additional amount under s 10(1A)(b) arises if STC forms the opinion that the additional amount is commensurate with the member's incapacity for work outside the police force. The maximum additional amount payable under s 10(1A)(b) is 12.25 per cent of the member's attributed salary of office. However, as has been seen, the total of the increased superannuation allowance and the earnings the member can derive from exploiting his or her residual earning capacity may be greater than 100 per cent of the member's attributed salary of office.
STC's submission is that the language in s 10(1A)(b) of the Superannuation Act can be understood as providing for an increase in the superannuation allowance only if the member's greater incapacity for work outside the police force is attributable to the member's originally certified infirmity. Mr Ower, adopting the reasoning of the primary Judge, contended that the word "incapacity" in s 10(1A)(b) incorporates by reference the definition in s 10(1) of "disabled member of the police force". This conclusion was said to follow from the reference in the definition to a member who is discharged after being certified "to be incapable, from a specified infirmity of body or mind of personally exercising the function of a police officer".
In my opinion, the language in s 10(1A)(b) cannot be read in this way. Section 10(1A)(b) is concerned with a member's "incapacity for work outside the police force" at the time the member applies for an additional superannuation allowance (which may be at any time up to the age of 60). This is an entirely different concept from a member's incapacity by reason of infirmity of body or mind to exercise the functions of a police officer assessed shortly before the member is discharged or as at the date the member resigns or retires. The first concept may be entirely unrelated to the second.
Mr Ower also submitted that the expression "additional amount" in s 10A(1)(b) indicates that the amount payable is additional to the amount payable under s 10A(1)(a) by reason of a member's certified hurt on duty infirmity. The use of the expression, so he argued justifies requiring a causal link between the hurt on duty infirmity and the incapacity for work outside the police force. This submission reads too much into the words "additional amount". Those words in s 10(1A)(b) simply refer to the amount over and above the minimum superannuation allowance to which a disabled member of the police force is entitled. The words do not imply that the additional amount is payable only if the member's incapacity for work outside the police force is due to the same infirmity that created the entitlement to the minimum superannuation allowance.
For these reasons, the text of s 10(1A)(b) of the Superannuation Act, when read with s 10(1) and s 10B, supports the "Gateway" construction advanced by the appellant. On this construction, a member or former member of the police force who satisfies the definition of a "disabled member of the police force" also satisfies the threshold requirement for the payment of an additional superannuation allowance pursuant to s 10(1A)(b). The only other requirement is that STC must form the opinion that an additional amount is commensurate with the member's incapacity for non-police work. The member is not required to demonstrate that his or her incapacity for non-police work is caused by the specified infirmity of body or mind certified pursuant to s 10B(1) (in the case of certification prior to the member's discharge from the police force) or pursuant to s 10B(2) (in the case of certification after resignation or retirement from the police force).

[8]

Harmonious with the Act as a whole

It is necessary to consider whether the "Gateway" construction of s 10(1A)(b) of the Superannuation Act is harmonious with the structure of the Superannuation Act. In my view it is.
Section 10 must of course be read with s 10B. As has been seen, s 10B(1) precludes the grant of a superannuation allowance to a discharged member of the police force unless he or she has been certified in the manner required by that provision. Section 10B(1) does not say, however, that if a discharged member has been so certified, he or she cannot receive the additional amount of superannuation allowance payable under s 10(1A)(b) unless the incapacity for work outside the police force is attributable to the infirmity specified in the certificate.
If s 10(1A)(b) of the Superannuation Act is given its ordinary meaning, there is no inconsistency or lack of harmony with s 10B(1). The discharged member of the police force cannot receive a superannuation allowance unless he or she has received the necessary certification. That requirement applies to all three potential components of the superannuation allowance. To receive the additional allowance under s 10(1A)(b), the discharged member must also demonstrate that he or she is incapacitated for non-police work. Neither s 10B(1) nor s 10(1A)(b) imposes an additional requirement that the discharged member be incapacitated for non-police work by reason of the certified hurt on duty infirmity. To construe s 10B(1) as imposing such a requirement is to read the provision as though it contains the words "and the specified infirmity has caused the member's incapacity for work outside the police force". Those words are not present and in my view it goes beyond the scope and purpose of the legislation, as revealed in the text of the statute itself, to impute to Parliament an intention that the words should be read into s 10B(1).
At a more general level, the scheme of ss 7 and 8 of the Superannuation Act is to provide a superannuation allowance, calculated primarily by reference to years of service, to police officers who either retire at age 60 or are discharged earlier by reason of ill-health after being certified as unable to perform the functions of a police officer. These benefits are payable to police officers who are not hurt on duty - that is, police officers who do not suffer from an infirmity of body or mind that is caused by a work-related injury or illness.
Section 10 of the Superannuation Act provides for superannuation allowances for members or former members of the police force who satisfy the definition of a "disabled member of the police force". To satisfy that definition the member must be hurt on duty. Three levels of superannuation allowance are payable under s 10(1A), each of which has different eligibility requirements. The allowances payable under s 10(1A) are more generous and, in the case of superannuation allowances payable under s 10(1A)(b) and (c), potentially substantially more generous than those payable under s 7. This reflects a deliberate legislative choice to provide greater benefits to members and former members who have been hurt on duty.
Mr Ower submitted that there would be anomalies unless s 10(1A)(b) of the Superannuation Act is read as subject to an implied limitation that an additional superannuation allowance is payable only if the member's incapacity for work outside the police force is causally related to the certified infirmity of body or mind that rendered the member incapable of performing the functions of a police officer. The example he gave was of a former member of the police force who recovers completely from the incapacitating effects of a certified hurt on duty infirmity but then suffers an incapacitating post-discharge illness or injury unconnected with the original infirmity. Mr Ower characterised a construction of s 10(1A)(b) that allows the former member to claim an additional superannuation allowance in those circumstances as "absurd".
If this result is "absurd" other consequences of the legislative scheme are equally absurd. For example, as has been pointed out, a former member of the police force who completely recovers from a certified hurt on duty infirmity continues to receive the "standard" superannuation allowance of 72.75 per cent of the member's attributed salary of office. This is so even if the former member had been discharged from the police force at a very early age and, but for being hurt on duty, would have received only a modest superannuation allowance. The "standard" superannuation allowance is also payable even if the former member, having recovered from the hurt on duty infirmity, is capable of earning considerably more than his or her attributed salary of office.
The "absurdity" which Mr Ower identified does not provide a basis for construing s 10(1A)(b) of the Superannuation Act by incorporating an unstated qualification not justified by the statutory language. As has been noted, the Superannuation Act does not establish a compensation scheme for disability or incapacity. The legislation provides for the payment of persons in defined circumstances to members or former members of the police force who have contributed a portion of their pay to the Public Superannuation Fund. It is open to Parliament to make the policy choice to provide more generous benefits to members of the police force who are hurt on duty as opposed to those who resign or retire. It is also open to Parliament to provide benefits calculated by reference to a member's incapacity for work outside the police force independently of whether that incapacity is caused by the member's certified hurt on duty infirmity.
Mr Ower pointed out that if the Gateway construction of s 10(1A)(b) of the Superannuation Act is correct, there was no need for the appellant to have attempted to amend the original hurt on duty certificate issued by the Commissioner to include an additional hurt on duty infirmity. That is true, but it does not bear on the proper construction of s 10(1A)(b).
It is also true that the Gateway construction of s 10(1A)(b) allows a former member to rely on a hurt on duty infirmity in certain circumstances, even though the relevant injury was not notified to the Commissioner within the time limits specified in s 10B(2)(a). For example, on the Gateway construction a discharged member of the police force who suffered two separate injuries causing infirmities but who received a certificate in respect of only one infirmity, can rely on the other infirmity if it subsequently causes incapacity for non-police work. But that is because the statutory criteria governing the grant of the additional superannuation allowance of 12.25 per cent under s 10(1A)(b) are different from the criteria governing the grant of the "standard" superannuation allowance under s 10(1A)(a). In particular, the standard allowance does not depend on demonstrating any incapacity for non-police work, whereas the additional superannuation allowance is only available to a member or former member who can demonstrate to STC that he or she is incapacitated for non-police work.

[9]

The Gateway construction is harmonious with s 10(1A)(c)

Mr Ower submitted that the Gateway construction of s 10(1A)(b) of the Superannuation Act does not sit easily with s 10(1A)(c). He contended that an additional superannuation allowance is payable under s 10(1A)(c) only if the total incapacity of the disabled member of the police force is caused by the member's certified hurt on duty infirmity and that infirmity is causally related to the special risks experienced by the member. Mr Ower submitted that it is anomalous to limit the additional superannuation allowance payable under s 10(1A)(c) to a former member who can show that he or she is totally incapacitated by reason of a hurt on duty infirmity, yet grant the additional allowance payable under s 10(1A)(b) to a former member whose incapacity for work is unrelated to his or her hurt on duty infirmity.
Neither Mr Ower nor Mr Morris devoted close attention to the proper construction of s 10(1A)(c) of the Superannuation Act. Mr Ower's suggested construction is, however, arguably correct. The opening words of s 10(1A)(c), which have no counterpart in s 10(1A)(b), are capable of being read as requiring a causal link between the former member's total incapacity for non-police work and the certified hurt on duty infirmity. I am prepared to assume, without deciding, that Mr Ower's construction of s 10(1A)(c) is correct. Nonetheless, in my view, s 10(1A)(b) and (c) can operate harmoniously.
The opening words of s 10(1A)(b) make it clear that there is no overlap between s 10(1A)(b) and (c). Section 10(1A)(b) does not apply to a "disabled member of the police force" who is entitled to an additional superannuation allowance pursuant to s 10(1A)(c).
Nor is there any inconsistency between the two provisions. The additional allowance of up to 12.25 per cent of the member's "attributed salary of office" is payable under s 10(1A)(b) once STC forms the opinion that an additional amount is commensurate with the member's incapacity for non-police work. On the Gateway construction of s 10(1A)(b), the additional superannuation allowance is payable regardless of whether the member's incapacity for non-police work is causally related to the certified infirmity of body or mind that rendered the member incapable of performing the functions of a police officer.
On Mr Ower's construction of s 10(1A)(c), the additional allowance of a minimum of 12.25 per cent and a maximum of 27.25 per cent of the member's "attributed salary of office" is payable to a disabled member of the police force who is totally incapacitated for non-police work. However, in order to receive the more generous superannuation allowance, the former member's total incapacity must be causally related to the certified infirmity of body or mind that rendered the member incapable of performing the functions of a police officer. In addition, the former member must also show that he or she was hurt on duty because of particular risks associated with policing. The amount of the allowance is commensurate with the risks to which the member was required to be exposed.
There is nothing illogical, irrational or perverse in the two provisions operating in the way I have described. Parliament has made a policy decision to provide a limited additional superannuation allowance (up to an additional 12.25 per cent) to a disabled member of the police force by reference to the member's degree of incapacity for non-police work. This is payable regardless of whether the incapacity is causally related to the original certified infirmity of body or mind that rendered the member unfit for police work and of whether the former member is capable of earning more than his or her attributed salary of office.
On the assumption I have made, Parliament has also implemented a policy decision to provide a substantially more generous additional allowance to a totally incapacitated "disabled member of the police force" who can show that he or she was exposed to risks to which members of the general workforce are not exposed. However, the more generous superannuation allowance is payable (on the assumed construction of s 10(1A)(c)) only if the member or former member can show a causal relationship between the total incapacity and the certified infirmity of body or mind that rendered the member incapable of performing the functions of a police officer. The amount of the additional allowance under s 10(1A)(c) is assessed by reference to the risks to which the member was exposed, not to the extent of his or her incapacity (which must be total).
Whether or not the differential treatment is anomalous depends on the perspective of the observer. If there are anomalies, they result from choices reflected in the statutory language. Any such "anomalies" cannot justify interpreting the legislation otherwise than in accordance with its plain meaning.

[10]

Second reading speech

The primary Judge quoted passages from the second reading speech for the bill that became the 1979 Act. [45] His Honour considered that the passages were: [46] "consistent with the interpretation … that … to obtain a benefit under either pars (a), (b) or (c) of subs (1A) one must prove that the relevant incapacity was caused by the member's having been hurt on duty". Mr Ower supported the primary Judge's approach.
Some courts have expressed considerable scepticism about using statements in second reading speeches to assist in reading questions of statutory construction. Spigelman CJ expressed the view that such statements "are rarely, if ever, 'capable of assisting in the ascertainment of the meaning of the provisions' within s 34(1) of the Interpretation Act 1987". [47] In Lembcke, Meagher JA "deplored" that counsel took the "astonishing course" of quoting a second reading speech, since "second reading speeches have almost never any value in elucidating a legal problem". [48] Santow JA in the same case reiterated a warning that he had previously given against "drawing general conclusions from the limited exposition possible in a second reading speech". [49]
The High Court has made it clear that "[h]istorical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text". [50] This is because the words of the statute have "paramount significance", while non-statutory words seeking to explain the text do not. [51] While a second reading speech can be referred to in some circumstances, it is ordinarily for the limited purpose of identifying the object of the legislation. [52]
In my view, the language of s 10(1A)(b) of the Superannuation Act is sufficiently clear not to require resorting to the second reading speech as an aid to construction. [53] In any event, as is so often the case, the second reading speech is unhelpful on the issue of construction arising in this case.
Mr Ower relied on a brief passage in the second reading speech as follows: [54] "The bill would provide a statutory minimum superannuation allowance of 72.75 per cent of salary. A member of the police force whose disability also causes incapacity for work outside the police force would be paid an amount in addition to the disablement allowance." This passage does not actually say that only a member of the police force whose disability also causes incapacity for work outside the police force will receive the additional superannuation allowance. Even if read that way, there are two other statements in the second reading speech that can be read as implying that additional superannuation payments may be made to former police officers whose incapacity for non-police work is not necessarily related to the original certified infirmity. For example, the Minister stated that: "the new benefits apply only in respect of injuries received after the commencement of the hurt-on-duty provisions of the bill. However, the benefits would apply to a member of the police force who is hurt on duty after the commencement of these provisions but who does not suffer infirmity until he has left the police force". [55]
Even if the second reading speech for the Police Regulation (Superannuation and Appeals) Amendment Bill 1979 (NSW) can be taken into account in construing s 10 of the Superannuation Act, the Minister's observations do not assist on the question of construction that arises in the present case.

[12]

The statutory gateway

I do not consider that this submission reflects the statutory regime. There is a "gateway" to the superannuation benefits provided by the Act for members or former members of the police force who have been hurt on duty, but it is not the definition of "disabled member of the police force" appearing in s 10(1). It is rather the provisions made in s 10B "Medical examination of disabled member and determination of whether hurt on duty".
The construction of these sections must be approached in the way Bathurst CJ discussed in SAS Trustee Corporation v Woollard (2014) 86 NSWLR 367; [2014] NSWCA 75 at [58], namely: "... As was said by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47], the task of statutory construction must begin with the words of the statute itself considered in context, which includes the general purposes and policy of the provisions. Ascertainment of the statutory purpose may be based on an express statement of purpose in the statute, inference from the text and, where appropriate, reference to extrinsic material: Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]-[25], [68] and [88]. As was pointed out by Kiefel J in that case, the starting point is the words in question, read in the context of the statute."
Section 10B specifies that "an annual superannuation allowance or gratuity must not be granted under s 10 (my emphasis)", to either a member or former member of the force, unless the requirements specified in s 10B are met. That is the statutory "gateway", with those requirements being the preconditions imposed on the granting of such allowances: Woollard at [13]. In the case of a member of the police force the first requirement is: "(1) … 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.
In the case of former members of the police force the requirements are: "(2) … (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."
If the STC provides the necessary certification, s 10B(3) also requires that the Commissioner of Police must: "(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."
"Hurt on duty" is defined in s 1 to mean in the case of a member of the police force: "…injured in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987, entitle the member to compensation under that Act."
It follows that if the Commissioner does not form the requisite view and thus does not provide the required written notification of that decision, a member or former member must not be paid a "hurt on duty" superannuation allowance under s 10, unless the refusal to form that view is successfully challenged on appeal.
It is only if both the requirements imposed by s 10B are satisfied that a member or former member of the police force comes within the definition of "disabled member of the police force" provided in s 10(1), that definition itself referring to the various requirements of s 10B. It is only thereupon, that such a "disabled officer" becomes entitled to a superannuation allowance under s 10(1A).
It is thus the satisfaction of the requirements of s 10B which permits a superannuation allowance to be paid to the member or former member who has been hurt on duty. Otherwise, such an allowance "must not be granted" either to a member or former member: ss 10B(1) and 10B(2).

[18]

The requirements of the legislative scheme

Consideration of what was intended by this aspect of the legislative scheme must thus commence with the fact that while certification under s 10B may be sought in respect of any number of specified infirmities resulting from an injury or injuries, by both members and former members of the police force, it is only in relation to infirmities which have rendered them both incapable of personally exercising the functions of a police officer and which have resulted from the officer having been "hurt on duty", which may be certified.
It is thus only if any one or more infirmities are so certified by the STC, that the Commissioner is then called on to decide whether they have been caused by the member having been hurt on duty. If the Commissioner reaches that conclusion in respect of any such infirmity and thus gives the required notification, the member or former member of the police force thereupon becomes a "disabled member" as defined in s 10(1) and thereupon entitled to an allowance under s 10(1A).
The first time that the STC is called on to decide whether such a disabled member is entitled to an additional allowance under s 10(1A)(b) is on initial certification. That may be while the disabled member is still a serving member of the police force, or after resignation, retirement or discharge, depending on when the initial application under s 10B is made. The question of the amount of the additional allowance to which a disabled member is entitled can arise again, if an application for variation of under s 10(1D) is made subsequently.
On each occasion, however, the STC must determine the additional amount which, in its opinion, is then "commensurate with the member's incapacity for work outside the police force": s 10(1A)(b)(ii).
Thus in the appellant's case, he was initially certified in 2003 to be suffering from four identified infirmities, which the Commissioner concluded had been the result of him having been hurt on duty. In 2006, his application under s 10(1D) for a variation of his allowance was refused. However, on appeal to the District Court, it was increased to 82.55%, reflective of changes in the incapacity which had resulted from his certified infirmities.
In 2008, the appellant did not seek another variation of his allowance under s 10(1D), but sought to have a psychological condition added to his s 10B certificate. He was then a former member of the police force. Accordingly, the requirements of s 10B(2) and (3) applied to his application. Thus, he had to show that he had notified the Commissioner of Police of his injury, before his resignation or retirement and within six months of receiving the injury which had caused that infirmity of mind: s 10B(2)(a).
It was only if that requirement was met that the STC could have certified that the appellant was incapable, from that infirmity of mind, of personally exercising the functions of a police officer: s 10B(2)(b). His application was accordingly declined, he being unable to meet the statutory test. Without that certificate, s 10B precluded an allowance being granted to the appellant under s 10, in respect of that psychological condition.
If the certificate had been granted, it would then have been a matter for the Commissioner to decide whether that infirmity had been caused by the appellant having been hurt on duty, while he was a member of the police force. That certificate not having been issued, the Commissioner has never been called on to consider whether the appellant's psychological condition was caused by him being "hurt on duty".
However, on the appellant's present case as to the proper construction of s 10(1A)(b), his 2008 application under s 10B was unnecessary.
The appellant's most recent application under s 10(1D) was for a variation of the s 10(1A)(b) allowance he had received as the result of the District Court's determination in 2008. It was advanced on the basis that his certified physical injuries had deteriorated. That application was refused by the STC. On appeal in the District Court, he sought to rely in the alternative, on his uncertified psychological condition.
The appellant now being a disabled officer, as defined in s 10 and the STC having the power under s 10(1D)(b), to vary its determination as to the additional allowance to which he is entitled under s 10(1)(b) at any time, the appellant contends that the STC had to consider whether the amount of his additional allowance should be increased, to take into account his psychological condition, irrespective of whether that condition was related to his work as a police officer, or not.
In the result, his 2008 application for the addition of that infirmity to his s 10B certificate and its refusal were irrelevant, as was what had caused it. All that the STC had to determine under his s 10(1D) variation application, was the amount which was commensurate for his then "incapacity for work outside the police service", irrespective of the cause of the incapacity and that it had not been certified under s 10B.
On the appellant's approach to the construction of s 10(1A)(b), the result would have been the same, even if his claim in relation to that psychological condition had been made at the same time as his other infirmities were originally certified in 2003 by the STC under s 10B and it had then concluded that his psychological condition had not rendered him incapable of personally exercising the functions of a police officer and the Commissioner had thus not had to consider whether it had been caused by him being hurt on duty. Even if the Commissioner had decided that it had not been caused by him having been hurt on duty, the STC would have had to have taken that condition into account, when determining his allowance under s 10(1A)(b).
The obvious problem with that approach is that it would render the operation of the restrictions imposed by s 10B of but quite limited consequence. In my view that was not intended. The adoption of the restrictions of s 10B by the definition of "disabled officer" in s 10(1) supports that conclusion.
So to construe s 10(1A)(b), I consider, would also be contrary to the approach discussed in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70] - [71]: "70 A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. 71 Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'." (citations omitted)
The better view in this statutory scheme is that it is s 10B, not s 10, which is the "leading provision". The result is that the necessary interaction between the two sections cannot be approached in the way for which the appellant contended, even though that construction is available on a strictly literal interpretation of the words of s 10(1A)(b), as Sackville AJA has explained. That interpretation must in my view give way to the limitations imposed by s 10B, adopted as they have been by the definition of "disabled member of the police force" in s 10(1), it being only those who fall within that definition who are entitled to the additional allowance that s 10(1A)(b) provides for.
The conclusion that the construction for which the appellant contended is not what this already beneficial statutory scheme intended, is reinforced by the consideration that if an applicant under s 10B who is not already such a disabled member, cannot satisfy the limitation imposed by s 10B(2)(a) in respect of an incapacity, no entitlement to any benefit under s 10 can arise. That is so, even if the result is that he or she is thereby rendered incapable of personally exercising the functions of a police officer and it might be open to the Commissioner to conclude that the incapacity was the result of the former officer having been hurt on duty.
On the appellant's approach, however, even if in 2003 he had also applied for certification of a fifth condition, in respect of which he was refused certification, either because the STC concluded that it did not render him incapable of personally exercising the functions of a police officer, or because the Commissioner decided that it was not the result of him having been hurt on duty, his additional allowance would have been fixed under s 10(1A)(b) by reference to that condition. So, too, would any other condition for which he was not entitled to seek any certification at all.
Such results are plainly anomalous and in my view not intended by this statutory scheme.
I consider that the better view is that the additional amount which the STC determines under s 10(1A)(b) is "commensurate with the member's incapacity for work outside the police force", must be fixed by reference to the incapacity which has resulted from the specified infirmity of body or mind which has been certified under s 10B. That is so both when the STC is first called upon to consider the question of the amount of the additional allowance commensurate with the disabled member of the police force's incapacity for work outside the police force and on any subsequent application for variation under s 10(1D).
Any other infirmities which the disabled member has suffered as the result of injuries while a member of the police force, which have not resulted in favourable decisions under s 10B by both the STC and the Commissioner, are not relevant to the opinion which the STC must then form under s 10(1A)(b), as to the amount commensurate with the member's incapacity for work outside the police force. Nor are infirmities which the member has otherwise suffered, which are unconnected with his work as a police officer, relevant to the determination of the amount of that additional benefit.
Accordingly, I would not allow the appeal.

[19]

Endnotes

Miles v SASTC [2016] NSWDC 56; 22 DCLR(NSW) 223 (Primary Judgment).
This term is defined in s 10(1) of the Police Regulation (Superannuation) Act 1906 (NSW), which has to be read with a definition of the term in s 1(2).
District Court Act 1973 (NSW), s 142G(c).
Superannuation Act, s 21(1).
Primary Judgment at [76]-[82].
District Court Act 1973 (NSW), s 142N(1). "Award" includes an order, decision, determination, ruling and direction": s 142M(1). Leave is required if the appeal does not involve a claim for $20,000 or more: s 142N(4)(c). STC does not dispute that the appellant does not require leave.
This term is defined in s 10(1) of the Superannuation Act.
Miles v SAS Trustee Corporation [2010] NSWIRComm 69.
Miles v SAS Trustee Corporation [2011] NSWIRComm 15; 206 IR 164 (Boland P and Walton VP, Kavanagh J dissenting).
1979 Act Sch 1 (8), (10).
(2003) 56 NSWLR 736; [2003] NSWCA 136 at 30 (Santow JA, Meagher and Ipp JJA agreeing).
The key amendments brought about by the 1979 Act are summarised in SAS Trustee Corporation v Woollard (2014) 86 NSWLR 367; [2014] NSWCA 75 (Woollard) at [18]-[21] (Bathurst CJ, Tobias AJA agreeing).
Some of the legislative history is explained by McColl JA in SAS Trustee Corporation v Cox [2011] NSWCA 408; 285 ALR 623 at [12]-[24]; see also at [139]-[142] (Campbell JA, Sackville AJA agreeing).
Special provision is made for the superannuation allowance in the case of early retirement (under the age of 60): See Superannuation Act s 7AA.
Superannuation Act Pt 4 Div 2. Part 4 Div 3 of the Superannuation Act provides for the commutation of superannuation allowances to lump sums.
Section 14(1) of the Police Act 1990 (NSW) provides that: "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".
Interpretation Act 1987 (NSW), s 35(2)(a). The position is otherwise if the headings were in the Act before 1 February 1981: s 35(3). The headings to ss 7 and 10 of the Superannuation Act were not in the Act prior to 1 February 1981, having been introduced by the Police Regulation (Superannuation) Amendment Act 1985 (NSW), Sch 1 [1], [3].
See at [21] above for the definition of "hurt on duty".
Section 10(1BA) of the Superannuation Act was enacted by the Superannuation Legislation Amendment Act 2006 (NSW), Sch 1 cl 1.2 [8]. Section 10(1D) was enacted by the Police Regulation (Superannuation) Amendment Act 1987 (NSW), Sch 4 [2].
Woollard at [36]-[39].
Superannuation Act s 14(1).
Superannuation Act s 14(2).
Primary Judgment at [58].
Primary Judgment at [82].
Primary Judgment at [82].
Primary Judgment at [63].
Primary Judgment at [74], [76].
Primary Judgment at [76].
Primary Judgment at [78]-[81].
(2012) 248 CLR 378; [2012] HCA 56.
Lloyd's Underwriters at [23], citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 (Alcan) at [47] (Hayne, Heydon, Crennan and Kiefel JJ).
Lloyd's Underwriters at [24], citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] (McHugh, Gummow, Kirby and Hayne JJ).
Lloyd's Underwriters at [25], citing Lacey v Attorney-General for the State of Queensland (2011) 242 CLR 573; [2011] HCA 10 at [44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Lloyd's Underwriters at [26].
Woollard at [59].
Woollard at [60].
(2007) 232 CLR 138; [2007] HCA 47 at [5], approved in Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36 at [40]-[41] (per curiam).
Lembcke at [27].
Lembcke at [48].
Lembcke at [4].
Lembcke at [56].
See the definition of "hurt on duty" reproduced at [21] above.
As to what constitutes notification of PTSD as an "injury", see Woollard at [69]-[70].
The Superannuation Act provides for the reduction of benefits in certain circumstances, such as where STC incurs particular tax liabilities. The circumstances do not include an improvement in the member's physical or mental condition: see Pt 4 Div 1A.
Primary Judgment at [79].
Primary Judgment at [79].
Harrison v Melham (2008) 72 NSWLR 380; [2008] NSWCA 67 at [12].
Lembcke at [7].
Lembcke at [45] citing Re Goodyear Australia Ltd [2002] NSWSC 53; 167 FLR 1 at [59].
Alcan at [47].
Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529; [2006] HCA 11 (GLG) at [22].
GLG at [22]; cf Southern Han Breakfast Point Pty Ltd (In Liq) v Lewence Construction Pty Ltd [2016] HCA 52; (2016) 91 ALJR 233 at [4].
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 16 October 1979 at 1843-1849.
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 16 October 1979 at 1845.
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 16 October 1979 at 1865. 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: 04 May 2017

Parties

Applicant/Plaintiff:

Miles

Respondent/Defendant:

SAS Trustee Corporation

Legislation Cited (13)

Police Regulation (Superannuation and Appeals) Amendment Act 1979(NSW)

Police Regulation (Superannuation) Amendment Act 1985(NSW)

Police Regulation (Superannuation) Amendment Act 1987(NSW)

Superannuation Legislation Amendment Act 2006(NSW)

Workers Compensation Act 1926(NSW)

Police Regulation (Superannuation) Act 1906(NSW)

District Court Act 1973(NSW)

Interpretation Act 1987(NSW)

Police Act 1990(NSW)

Superannuation Administration Act 1996(NSW)

Workers Compensation Act 1987(NSW)

Acts Interpretation Act 1901(Cth)

Interpretation Act 1984(WA)

Cases Cited (29)

Solicitors: Harris Wheeler Lawyers (Appellant) SAS Trustee Corporation (Respondent) File Number(s): 2016/133796 Decision under appeal Court or tribunal: District Court of New South Wales Citation: [2016] NSWDC 56 Date of Decision: 11 April 2016 Before: Neilson DCJ File Number(s): RJ241/15

Judgment

PAYNE JA: I am grateful to have had the opportunity to read the judgments of Sackville AJA and Schmidt J in draft. While acknowledging the force of Schmidt J's judgment, I agree with the reasons of Sackville AJA and wish to add only a few remarks of my own.
This is a case where it was common ground that the appellant was a "disabled member of the police force" within the meaning of s 10 of the Police Regulation (Superannuation) Act 1906 (NSW) (the Superannuation Act). The question of construction raised is whether, in order to receive an "additional amount" under s10(1A)(b) of the Superannuation Act, the "incapacity for work outside the police force" referred to in that section must be attributable to the infirmity which gave rise to the determination that the member was a "disabled member of the police force". For the following reasons, in my view the entitlement to receive an additional amount under s 10(1A)(b) of the Superannuation Act is not so limited.
First, the language of the section does not suggest any such limitation. As Meagher JA said in Lembke v SAS Trustee Corporation (2003) 56 NSWLR 736 at [4], about a provision in near identical terms to the present, the section requires the answer to one question and one question only: "what is the applicant's incapacity for work outside the police force?".
As an ordinary matter of language, a person's "incapacity for work outside the police force" raises a different question to whether, by reason of an infirmity of mind or body, a discharged member of the police force is incapable of personally exercising the functions of a police officer, which infirmity has been determined under s 10B(3) to have been caused by the member being hurt on duty (see the s 10 definition of "disabled member of the police force"). Further, there are strict time limits governing determination of the latter question in the case of former members of the police force who have resigned or retired (s 10B(2)(a) of the Superannuation Act) whilst the former question may arise at any time until the member is 60 years old (or even later in some cases): s 10(1BA) of the Superannuation Act. The language of s 10(1A)(b) does not require demonstration each time a member applies for an increase in allowance based on a greater incapacity for work outside the police force that the infirmities which originally rendered the member a "disabled member of the police force" have deteriorated.

Cited By (6)

Boland v SAS Trustee Corporation

BSA Ltd v Chief Commissioner of State Revenue

Pascoe v SAS Trustee Corporation

Wilson v SAS Trustee Corporation

Workers Compensation (Dust Diseases) Authority v Cunha

Fourthly, so far as the respondent's appeal to extrinsic aids to construction is concerned, this is a case where there are competing policy considerations at play. There is no doubt that under the Superannuation Act members entitled to a superannuation allowance under s 10 are treated differently to those who are not. The fact that the Superannuation Act does not make provision for additional amounts to be payable for members who are not hurt on duty does not mean that the apparent generosity of s 10(1A)(b) should be read down. The remarks of Gleeson CJ in Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [5] are apposite: "[5] Another general consideration relevant to statutory construction is one to which I referred in Nicholls v The Queen. It was also discussed, in relation to a similar legislative scheme, in Kelly v The Queen. It concerns the matter of purposive construction. In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth). It is also required by corresponding State legislation, including, so far as presently relevant, s 18 of the Interpretation Act 1984 (WA). That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose."