Picker v SAS Trustee Corporation

Industrial Relations Commission (NSW)|2012-06-01|Before: Boland J

Judgment 1Terry Picker ("the appellant") is a former member of the NSW Police Force. He is presently 71 years of age. He was attested into the Police Force in 1961 and resigned with the rank of Inspector on 28 August 1996. On 26 July 2006, nearly 10 years after he left the Police Force and after he had turned 60 years of age the appellant applied for a certificate of infirmity under s 10B(2) of the Police Regulation (Superannuation) Act 1906 ("PRS Act"). On 2 April 2008, the Disputes Committee of the SAS Trustee Corporation ("the respondent") declined the appellant's application and in doing so relied on s 10(1BA) of the PRS Act, which provides: (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. 2The appellant appealed the respondent's decision. In Picker v SAS Trustee Corporation [2009] NSWIRComm 53 the Court found that the appellant did not have an accrued right under s 10(1BA) to apply for a superannuation allowance. However, after considering s 16A of the PRS Act the Court stated: [54] It follows from the Court's findings that the respondent should consider any application by the appellant for the payment of a superannuation allowance. The application would necessarily be a late application to be dealt with in accordance with s 16A. As I have already noted, under s 16A the respondent may accept an application that is not made or received within the time required under this Act if it is satisfied that in all the circumstances of the case it is desirable to do so and, secondly, STC may impose conditions on the acceptance of the application. Those are matters for the respondent to address, but I would have thought that if there are sound reasons why Mr Picker did not make his application in a timely way the respondent would take these into account and if satisfied of the desirability of doing so, proceed to determine whether it should certify that the appellant was incapable, from infirmity of body or mind, of personally exercising the functions of a police officer at the time of the appellant's resignation or retirement. 3The Court made the following order: (1) The SAS Trustee Corporation shall consider any application by Terry Picker for payment of a superannuation allowance in accordance with the provisions of s 16A of the Police Regulation (Superannuation) Act 1906. ... 4On 3 August 2011, relying on s 16A(1) of the PRS Act, the respondent's Disputes Committee determined not to consider the appellant's application on the basis that in all the circumstances of the case it was not desirable to do so. The appellant's appeal from that decision is the subject of these proceedings. The orders sought in the appeal are as follows: (1) That the Applicant should be issued with a Certificate of Medical Incapacity pursuant to s 10B(2) of the Police Regulation (Superannuation) Act 1906 (as amended). (2) In the alternative, pursuant to section 16A of the Police Regulation (Superannuation) Act 1906 it is desirable in all the circumstances of the case for the respondent to entertain the application to section 10B(2) of the Police Regulation (Superannuation) Act 1906 (as amended). 5As the appellant explained, the significance of the appeal is that in the event the Court makes the orders sought, the respondent will be obliged to determine, on its merits, the appellant's application for a certification of infirmity pursuant to s 10B(2) of the PRS Act. If this certification occurs, it will then be for the Commissioner of Police, pursuant to s 10B(3)(a) of the PRS Act, to determine whether or not the certified infirmities (or at least one of them) were caused by the appellant being hurt on duty. Potentially, the Commissioner's decision would be subject to an appeal to the District Court: s 21 of the PRS Act. 6It was further explained that in the event that the Commissioner or District Court on appeal determined one or more certified infirmity as being caused by the appellant being hurt on duty, the appellant would then satisfy the definition of "disabled member of the police force" in s 10(1) of the PRS Act. In doing so, the appellant would be entitled to: a. A superannuation allowance paid at the rate of 72.75 per cent of the appellant's attributed salary of office (s 10(1A)(a)); b. A potential increase over and above 72.75 per cent depending upon the degree of the appellant's incapacity as a result of the certified infirmities and the manner in which the appellant was relevantly hurt on duty: s 10(1A)(b) and (c). c. The commencement of the superannuation allowance from at least the date of application, if not earlier, depending upon the application of s 9A and s 10(1D) of the PRS Act. 7The appellant's current superannuation allowance, paid pursuant to s 7AA of the PRS Act, is 58 per cent of attributed salary of office.

Evidence 8The evidence in the proceedings consisted of an affidavit of the appellant. The appellant was required for cross-examination. An affidavit of Kim Howard Smith was tendered. Ms Smith is the solicitor with care and conduct of the matter for the appellant. 9In addition, the appellant tendered a bundle of documents that included medical reports and certificates relating to the appellant, relevant correspondence extending back to 1993 and other documentation. The respondent also tendered a bundle of documents, which included correspondence and medical reports.

Relevant legislation 10The scheme of the PRS Act provides in s 10 for the payment of a superannuation allowance to a former member of the Police Force who resigned or retired and who, according to a certificate given pursuant to s 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 at the time of the member's resignation or retirement, that infirmity being determined, pursuant to s 10B(3) or on appeal, to have been caused by the former member having been hurt on duty when he or she was a member of the police force. 11Pursuant to s 10B(2), the superannuation allowance is not to be granted 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. 12Pursuant to s 10B(3), where a former member is duly certified under s 10B(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. 13On 30 June 2006, the PRS Act was amended to incorporate s 10(1BA). Prior to that amendment there was no relevant reference in the legislation to an "application". Further, prior to the amendment there were no time constraints restricting the pursuit of the payment of a superannuation allowance pursuant to s 10 and s 10B(2) placed upon members of the police who had resigned or retired. 14Having passed the age of 60 years and not having made the application within 5 years after the appellant resigned from the Police Force, the respondent refused the application for a certificate of infirmity. The appellant contended in Picker v SAS Trustee Corporation that he had an accrued right to apply for a superannuation allowance, but that was rejected by the Court. Nevertheless, as it has been stated, the Court ordered the respondent to consider the appellant's application pursuant to s 16A of the PRS Act. Section 16A provides: 16A Late elections, applications and choices (1) STC may accept an election, application or choice that is not made or received within the time required under this Act if it is satisfied that in all the circumstances of the case it is desirable to do so. (2) STC may impose conditions on the acceptance of the election, application or choice. (3) STC may deal with the election, application or choice accepted under this section as if it had been made or received within the required time. 15The respondent duly gave consideration to the application, but declined to grant it. Accordingly, the central issue now in these proceedings is whether it is "desirable" in all the circumstances for the respondent to accept the appellant's application outside the time limits prescribed by s 10(1BA) of the PRS Act.

Section 16A - principles to be applied 16Section 16A of the PRS Act has not been the subject of any judicial consideration. However, the appellant helpfully referred to Commissioner for Superannuation v Boardman [1994] FCA 1159; (1994) 123 ALR 239 where von Doussa J considered the provisions of s 157 of the Superannuation Act 1976 (Cth). Relevantly, that section provided: General provisions applicable to elections under Act (1) Notwithstanding anything contained in this Act, where an election under this Act is made by a person after the expiration of the period allowed by or under this Act for the making of the election, and CSC is satisfied that in all the circumstances of the case it is desirable that the election should be recognized, CSC may direct that the election be treated as if it had been made within the period allowed and the election shall have effect accordingly. (emphasis added) 17Boardman involved an appeal from the Administrative Appeals Tribunal. The Federal Court was asked to consider the application of s 157(1) in circumstances where the respondent had failed to elect within the time prescribed to "preserve particular superannuation rights". The time limitation had existed as part of the legislative scheme at all times relevant to Mr Boardman's election. 18In his decision von Doussa J: (a) agreed that s 157(1) conferred a wide discretion upon the Commissioner; (b) agreed the discretion in its terms was unconfined except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (referring to Bond Corporation Holdings Ltd v Australian Broadcasting Tribunal [1998] FCA 433; (1988) 84 ALR 669 at 680); (c) found the connotation of "desirable" in the context of s 157(1) was that of being fair in order to do justice between the person who seeks to make the late election, and the requirements of the administration of the Fund and the Court should not seek to further define or expand the meaning of "desirable"; (d) found that in saying that the issue before the Tribunal involved a "determination as to what is fair in the circumstances of this case when the need of the applicant for the extension of time to be granted is weighed against the prejudice to the respondent if that extension is granted" the Tribunal did not apply a wrong test; (e) stated that whether a late election is "desirable" is to be judged objectively having regard to all the circumstances of the case; (f) referred to "guiding principles" regarding discretion to grant an extension of time that had been identified in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs & Environment [1984] FCA 176; (1984) 3 FCR 344. 19Hunter Valley Developments concerned an application pursuant to s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to extend time for applying to the Court, pursuant to s 5, for review of a decision that a film was not a qualifying Australian film for the purposes of Division 10BA of the Income Tax Assessment Act 1936 (Cth). 20Wilcox J stated the principles to be applied to the following effect (at [18]-[23]): (a) special circumstances need not be shown but the Court will not grant the application (to extend time) unless positively satisfied that it is proper to do so. The time limit is not to be ignored. Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained. It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time; (b) action taken by the applicant is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; (c) any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension; (d) however, the mere absence of prejudice is not enough to justify the grant of an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application; (e) the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted; (f) considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court's discretion. 21In my opinion, the relevant guiding principles to be applied by the Court in respect of s 16A are as follows: (a) section 16A confers a wide discretion such discretion to be exercised having regard to the subject matter, scope and purpose of the PRS Act. The purpose of the Act is to: [P]rovide valuable benefits to police officers and former police officers in relation to retirement arising from "hurt on duty" situations but to do so in a measured and careful way which allots certain responsibilities for the rather complex process involved, which are, and are to be seen to be, commensurate with the important rights and responsibilities granted to the STC and to the Commissioner of Police. It may be that the rather complex scheme attempts to achieve a balance, on the one hand, between the valuable rights and the need, on the other hand, for caution in too readily extending those rights if that might result in inappropriate receipt of the allowance. There seems also to be an attempt to balance the recognition of the valuable role of police officers for their service in the public interest (with the consequent entitlement for officers subject to an adverse decision to have certain rights of appeal), with corresponding rights of appeal by the relevant authorities in the case of a decision in favour of police officers. (Commissioner of Police v SAS Trustee Corporation [2002] NSWIRComm 31; (2002) 131 IR 243 at [45]-[46] per Wright J, President). (b) the time prescribed for the making of an election, application or choice under the PRS Act is not to be ignored. Prima facie, a late election, application or choice should not be accepted; (c) the connotation of "desirable" in the context of s 16A is that of being fair in order to do justice between the person who seeks to make a late election, application or choice under the PRS Act and the requirements of the administration of the Police Superannuation Fund; (d) whether it is desirable for STC to accept an election, application or choice that is not made or received within the time required under the PRS Act, is to be judged objectively having regard to all the circumstances of the case; (e) without limiting the circumstances to be taken into account, the following considerations are relevant: (i) action, or lack of it, taken by the appellant is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; (ii) any prejudice to STC, including any prejudice in defending proceedings occasioned by the delay, is a material factor militating against acceptance of a late election, application or choice. It is for STC to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned by granting a late election, application or choice and is then for the appellant to show that these facts do not amount to material prejudice: per Gowans J in Cowie v State Electricity Commission of Victoria [1964] VR 788 at 793, adopted by Toohey and Gummow JJ in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 547; (iii) the merits of the substantive application are properly to be taken into account in considering whether a late election, application or choice should be accepted. 22The appellant submitted that the circumstances making proper the late acceptance of his application were that: a. Between 28 August 1996 (the date of the Appellant's resignation) and 30 June 2006 (the date upon which the "time limit" amendments came into force), a period of almost 20 years, there was no legislative requirement for the Appellant to make an "application" for a superannuation allowance pursuant to s.10 and s.10B(2) PRS Act. b. At any time during this almost 20 years, the Appellant had an undeniable entitlement to make the application for the superannuation allowance. c. By 30 June 2006 the Appellant had already reached the age of 60 years and had already been more than 5 years retired from the NSW Police. d. The effect of the introduction of s.10(1BA), without more, was to immediately deny to the Appellant the entitlement to make an "application". e. The Appellant made "application" a mere 26 days after the sub-section was introduced. f. The Respondent's decision not to apply s.16A PRS Act favourably to the Appellant's position is "capricious and arbitrary": SAS Trustee Corporation v Patterson [2010] NSWCA 167 at paragraph 26. g. Such a "capricious and arbitrary" application of the sub-section would be contrary to the requirement placed upon the Respondent to act in the best interests of the Appellant. It would be contrary for the purpose or object of the Act as identified by Wright P. h. As the Court will appreciate, an application of s.16A favourable to the Appellant still would require the Appellant to satisfy the various requirements of s.10B PRS Act before his entitlement as a "disabled member of the police force" is realized.

Appellant's actions prior to 30 June 2006 23The appellant further submitted that given the "time limit" provisions introduced on 30 June 2006 fettered a previously unfettered entitlement, the appellant's actions prior to 30 June 2006 were irrelevant. However, if such actions were seen as relevant, the appellant submitted: a. The Appellant pursued medical discharge prior to resignation. b. The Appellant only withdrew that application at a time when the Appellant was being pressured to resign from the NSW Police. This withdrawal followed an earlier conversation with a person in the NSW Police Hurt on Duty Unit wherein the Appellant was advised that the "department" would not accept any claim for HOD for emotional or mental disorders. Further, having obtained no other advice, the Appellant acted on the misunderstanding that resignation from the NSW Police would mean that the Appellant was not entitled to any hurt on duty benefits. c. The advice provided to the Appellant prior to his resignation was wrong in fact and wrong in law. d. Having resigned, the Appellant received documentation from the Respondent. Meaning no criticism of the Respondent, the documents sent to the Appellant did not provide information relevant to a hurt on duty claim nor did they contain any information which may have corrected the Appellant's misunderstanding. e. Having resigned, the Appellant sought legal advice in relation to a number of matters from Messrs Kells, Solicitors. In turn, advice was provided by Counsel. With respect, the advice obtained and, presumably, provided to the Appellant, does not appear to have been entirely accurate or thorough. It is submitted that the Appellant's evidence is that despite retaining solicitors, the Appellant remained confused as to whatever the advice was that he was given and whatever causes of action were being pursued on his behalf. f. The Appellant, in approximately 2005, sought advice from and instructed Mr Jenkins of Messrs Walter Madden Jenkins, Solicitors. Regrettably, the Appellant's interests were not progressed during this time. g. It was not until the Appellant sought advice from and provided instructions to Messrs Oates & Smith (Ms Kim Smith, solicitor) that action was taken to pursue a superannuation allowance pursuant to s.10 and s.10B PRS Act. h. The Appellant took action which was reasonable and timely. The Appellant should not be disadvantaged if, at times, he was not best served by the legal advice provided or actions taken. 24As for the circumstances that the appellant contended made it proper to grant his late application, the Court agrees with the respondent that whilst being correct, they are essentially not relevant. The appellant could have but did not make application under s 10B(2) prior to 30 June 2006. Parliament changed the rules after that date and there is nothing to be gained in contending that because there was no time limit prior to 30 June 2006 the Court should treat the appellant's late application as if no time limit continued to be the case. The legislative change was aimed squarely at former officers in the position of the appellant. The second reading speech in the Legislative Assembly (Hansard, 24 May 2006), in relation to the Superannuation Legislation Amendment Bill 2006 stated in part: The bill also clarifies the circumstances in which a former police officer may claim a hurt-on-duty invalidity pension subsequent to retirement or resignation. New provisions will ensure that former police officers can only make valid claims for hurt-on-duty benefits, or increases to such benefits, if they are less than 60 years of age, or 5 years after retirement, whichever is later. Currently, there is no age or time limit. The proposed limits are supported by NSW Police and the Police Association. 25That the appellant made his application "a mere 26 days" after the legislative amendment took effect is not a basis for concluding that it is desirable for the late application to be accepted. The date of the 30 June 2006 was, subject to the operation of s 16A, the cut-off date and the amendment provided no scope for slippage. According to Ms Smith's affidavit she was involved in discussions with parties interested in the legislation regarding proposed amendments to the PRS Act at some time prior to 30 June 2006. Ms Smith had no memory of time limits being discussed in relation to applications under s 10B(2). Ms Smith said that if she had been aware of changes in the nature of s 10(1BA) she would have taken all reasonable steps to ensure the appellant's interests were protected and his application made prior to the commencement of the amending legislation. 26I note that the Superannuation Legislation Amendment Bill 2006 had its second reading on 24 May 2006. As noted above the second reading speech referred to the amendment in s 10(1BA). The Bill was passed on 7 June 2006 and assented to on 20 June 2006. 27The Bill was in the public domain by the time Ms Smith wrote to Mr Picker on 25 May 2006 explaining the PRS Act was likely to be subject to amendment and the pros and cons of pursuing his claim under the existing legislation or after expected amendments were made to it. The solicitors sought Mr Picker's instructions as to "whether it is more beneficial to you to have your matter interpreted under the old of (sic) legislation pre amendments (sic) or the amendments (sic)." 28No mention was made in the correspondence regarding time limits for making claims, presumably because Ms Smith was not aware time limits might be included amongst the amendments. However, it is surprising Ms Smith was not aware of the existence of the Bill given her involvement in discussions about proposed amendments. In any event, Mr Picker responded to the request for instructions in a letter received by Oates & Smith on 5 June 2006 by instructing his solicitors to pursue his claim under the amended legislation. 29The appellant relied on SAS Trustee Corporation v Patterson [2010] NSWCA 167 to contend the respondent's refusal to accept the application was "capricious and arbitrary". Patterson was an appeal from the District Court and concerned an application by the respondent made in 2008 for an additional amount of the pension referred to in s 10(1A)(b) of the PRS Act. Prior to 30 June 2006 the respondent had been entitled to a hurt on duty pension at the rate of 72.75 per cent of his attributed salary being the allowance provided for under s 10(1A)(a) of the PRS Act. STC refused the application. 30At [18]-[19] Allsop P, with whom Campbell JA and Handley AJA agreed, referred to the outcome in the District Court: [18] The learned primary judge came to the conclusion that, by reason of his circumstances as at 30 June 2006, Mr Patterson had a form of accrued right to an allowance under the Act, s 10 such that if s 10(1BA) were to have the operation contended for by the STC that accrued right would be destroyed. Thus, her Honour concluded that the Amending Act should be construed in accordance with the Interpretation Act 1987 (NSW), s 30(1)(c) as not affecting any such right acquired or accrued before the date of its operation. Her Honour was of the view that the Amending Act and s 10(1BA) should not be taken as exhibiting an intention contrary to this and so the Amending Act should not be construed as intending to apply to persons in the position of Mr Patterson. [19] It was accepted by the STC in argument before us that Mr Patterson had a species of accrued right. 31At [23] Allsop P stated: [23] Mr Patterson undoubtedly had prior to 30 June 2006 a species of acquired or accrued rights sufficient to engage the Interpretation Act, s 30(1)(c); so that unless legislation revealed a contrary intention it would not be construed as affecting the accrued or acquired rights. See also the principles in cases such as Maxwell v Murphy [1957] HCA 7; 96 CLR 261 at 285; Rodway v The Queen [1990] HCA 19; 169 CLR 515 at 518-519; and Victrawl Pty Ltd v Telstra Corporation Ltd [1995] HCA 51; 183 CLR 595 at 615. 32The reference to "arbitrary and capricious" appears in [26]: [26] That s 10(1BA) does not operate and was not intended to operate in the manner contended for by the STC can be seen from the potentially capricious and arbitrary operation that would obtain if s 10(1BA) applied to persons in Mr Patterson's position. Mr Patterson only had 5 days after the commencement of the Amending Act on 30 June 2006 to lodge his application if s 10(1BA) applied to him. 33It may be seen that the respondent in Patterson had an accrued right. As Allsop P observed at [20]-[21]: [20] Before 30 June 2006, he fully satisfied the definition of "disabled member of the police force" under s 10(1), having satisfied all the requirements of s 10B, there having been relevant certifications under s 10B(2) (as to infirmity) and s 10B(3) (as to hurt on duty). [21] Mr Patterson was therefore entitled to an amount under s 10(1A)(a). He was entitled also to have the STC consider his position and form an opinion, according to law, under s 10(1A)(b). The Act as it existed prior to 30 June 2006 did not require him to apply for either allowance under s 10(1A)(a) and (b). Given the matters the subject of s 10(1A)(b)(ii) it is understandable, however, that the STC would not embark on forming any opinion without having material from the member as to his or her incapacity. There was, however, no statutory requirement for the member to make application. The right of someone in Mr Patterson's position under s 10(1A)(b) was not one which gave him a present entitlement to receive any particular sum calculated by reference to any given percentage; but rather, such a person had an existing right to have the STC consider his or her circumstances and form an opinion as to the matters in s 10(1A)(b) and thereafter pay him any sum conformable with the opinion thus formed. 34The circumstances in the present proceedings are quite different to those that applied in Patterson. Mr Picker had no accrued right as at 30 June 2006. In circumstances where at the time of the application the appellant was 65 years old and almost 10 years had elapsed since his resignation without any prior application having been made by him, STC's decision to decline the application could not be described as "arbitrary and capricious".

Reasons for delay in making application 35I turn to the reasons for delay, which as I have indicated I consider to be relevant in determining whether the appellant's late application should be accepted. 36In 1993 Mr Picker indicated he was not happy with the work he was doing and in August 1993 he made an inquiry of the State Authorities Superannuation Board as to what "payout" he would receive. He said the inquiry was made for the purpose of "a Family Law Court settlement". The appellant said in 1993 he was considering retirement at 55. 37In early 1994 the appellant received death threats, which were also directed at his wife. 38It is correct that the appellant considered applying for a medical discharge from the Police Force. In 1994 the appellant had been diagnosed by his General Practitioner, Dr Kumar, with "acute anxiety with neurosis". This diagnosis continued in 1995 and in February 1996 Dr Kumar diagnosed "anxiety neurosis with depression". 39In April 1994 the appellant was diagnosed by Dr Chris McDowell with "Major Depression". In early 1994 the appellant had a period of time off work on sick leave and sought to be classified as hurt on duty. He was referred to Dr James Maguire by the Police Force. In May 1994 Dr Maguire concluded the appellant had developed a depressive illness at the beginning of 1994 but believed it was related to personal issues attributed to stress in the appellant's marital situation and not due to the nature of the appellant's work. Dr Maguire considered the appellant was "psychologically fit to continue with his duties". 40During 1995 and the first half of 1996 the appellant was absent from work on a lengthy period of sick leave. He had received a caution for drinking on duty in May 1995. After returning from a period of leave in about August 1995 the appellant was directed to "stay in the office" and not to go anywhere without telling someone. This was apparently in response to the appellant drinking on the job. There was a meeting between the appellant and his commander and he was advised to consider his position. The appellant said he was humiliated and stressed by what his commander had said to him and so he went to see Dr Kumar again. The appellant remained on leave until he resigned. 41The appellant's sick leave was exhausted by May 1996. The appellant consequently made a claim for hurt on duty benefits. On 30 May 1996, the appellant applied for a medical discharge. The medical conditions he claimed prevented him from continuing in the Police Force were, "anxiety neurosis" and "depression", conditions he claimed had resulted from being hurt on duty. The appellant attributed his conditions to work related stress during his 35 years as a police officer and a drinking problem as a "direct result of work related pressure and the police culture." 42After submitting his discharge application the appellant apparently had a discussion with a "male person in the Hurt on Duty Unit" who allegedly said to the appellant words to the effect: The Department will not accept any claim for HOD for emotional or mental disorders. The government is clamping down on this. The only claims are for debilitating physical conditions which might arise out of car accidents. 43By July 1996, the appellant understood his marriage was coming to an end and he was having discussions with his solicitor regarding property settlement. 44In August 1996, whilst he was still on leave, the appellant was summoned by the South Region Commander to attend the Hurstville Police Station "so that issues could be settled". The appellant stated that at the time of his attendance at the Station he still intended to pursue his medical discharge notwithstanding the advice he had been given and he had made an appointment to see the Police Medical Officer on 30 August 1996. 45At the Station, a matter was raised with the appellant concerning a failure to incinerate some material in accordance with a court order. It was allegedly put to the appellant: A new Police Commissioner will soon come out from England. I am concerned as to how he might treat you. The new Commissioner may well demote you. We've looked at this and if you get demoted you could lose $100,000 in your super. What do you want to do? You can take optional retirement at 55. 46The appellant replied that he wanted to get out. A resignation letter was typed up, which referred to the appellant withdrawing his hurt on duty claim. The withdrawal of this claim was not subject to any discussion, but the appellant said he presumed that having decided to resign he would not be entitled to any hurt on duty benefits. Nevertheless, the appellant knew of the medical discharge option and knew if he were successful with a hurt on duty claim it was worth more than his retirement pension. On 29 August 1996 the appellant wrote to "someone" (Mr Crellin) in the Police Force advising him of his decision to retire and thanked him for his "assistance with the medical discharge information", but that he "won't be proceeding with that now". 47Shortly after his resignation the appellant received a letter from the respondent regarding his superannuation contribution options. According to the appellant, the letter did not contain any advice regarding the appellant's "potential entitlement" to "any form of 'retrospective' medical discharge". 48The appellant's divorce and property settlement were concluded in August 1997. In the previous 12 months the appellant said he was feeling depressed and saddened with the loss of his career and marriage. 49In 1998 and 1999 the appellant lived in Nowra and felt isolated, not knowing anyone in the town. In January 2000, the appellant was charged with driving under the influence of alcohol. The appellant sought treatment and consulted Dr Liam Guilfoyle a forensic psychologist. In a report dated 7 March 2000 Dr Guilfoyle considered the appellant's level of anxiety and depression "noteworthy" and believed the appellant was "a mild to moderate suicide risk." 50Sometime in 2000 the appellant asked a solicitor at "Kells" as to whether he had a claim in relation to "medical discharge" from the Police Force. Kells The Lawyers, a firm of solicitors, had represented the appellant in his family law proceedings. The appellant sought to contend in his oral evidence that he did not mean that he was seeking advice about a medical discharge per se, but simply compensation for what happened to him whilst he was in the Police Force, not related to medical discharge for hurt on duty. I cannot accept that was the case. The appellant well understood in 2000 that if he were to be certified with an infirmity and declared hurt on duty he would receive higher compensation than his retirement pension. 51On 23 August 2000, Kells advised the appellant: "you have reasonable prospects of success in a hurt on duty claim". Kells also advised they had sent a brief to Peter Dalley to advise. There was no advice from Mr Dalley in evidence or any further mention of his advice. The appellant said he did not receive any advice from Mr Dalley regarding the hurt on duty claim. 52On 13 August 2001, the appellant's solicitors received an advice from Patrick Saidi, barrister, following a conference held with the appellant at his chambers on 10 August 2001. That advice, inter alia, touched upon the prospect of pursuing the hurt on duty claim. The advice was merely that "Mr Picker can attempt to further pursue such a [HOD] claim should he wish to do so." It seems that Mr Saidi was mainly concerned with a common law claim for damages. 53On 10 October 2001, the appellant was seen by Dr John Pickering a consultant psychiatrist who, at the request of Kells, provided a medico legal report. Dr Pickering diagnosed four separate but to some extent interrelated problems: alcohol related problems; generalised anxiety disorder; major depressive disorder, chronic type; and panic disorder without agoraphobia. Dr Pickering concluded in a supplementary report of 29 October 2002 that 20 per cent of Mr Picker's symptomatology was causally related to a motor vehicle accident in which he was involved in 1998 and 80 per cent related to his duties as a police officer. 54In September 2002, the appellant's solicitors wrote to NSW Police indicating they had instructions "to make a claim for benefits of full hurt on duty entitlements from 28 August 1996". Not surprisingly, no progress was made in relation to the claim it being the respondent's responsibility to first certify that the appellant was incapable of discharging the duties of his office before any issue arose for the Commissioner of Police to deal with. The initial approach to the Police indicates the lack of understanding on the part of the appellant's then legal advisers of the process of dealing with hurt on duty claims. 55On 4 December 2002, NSW Police wrote to Kells advising of the requirements of s 10B(2) of the PRS Act and the author of the letter offered the opinion that "the effluxion of time ... would render any application out of time and thus statute barred." The opinion, of course, was wrong at the time it was offered. 56In October 2003, the appellant made application to the Police Association of NSW for legal assistance in pursuing his claim. The application was declined. 57Nothing much appears to have occurred in 2004 regarding Mr Picker's claims and his dealings with Kells. On 9 June 2005, Ms Ens, a solicitor with Kells, wrote to Mr Picker regarding the outcome of a conference with counsel regarding a common law claim and reference was made to the possibility of a workers compensation claim, which was clearly not open. 58On 15 June 2005, Mr Picker received a further letter from Kells regarding Ms Ens' departure from the firm and that his file would be assigned to another solicitor in the firm. On 21 June 2005, Mr Picker advised Kells he had decided to engage another solicitor, Mr Ron Jenkins of Walter Madden Jenkins, to pursue his s 10B(2) claim and he subsequently did so. However, some time later in 2005 Mr Jenkins advised he was unable to assist. In 2006, Mr Picker approached his current solicitors, Oates & Smith, to pursue his claim. That firm then did so with far greater alacrity, it must be said, than Kells, although as I mentioned earlier, Oates & Smith did not appear to have been aware that a Bill to amend the PRS Act and impose time limits on the making of claims by former officers was in the parliament for about one month before it was assented to. If the firm had been aware of the Bill, presumably it would have advised Mr Picker to submit an urgent application before the amendments took effect and these proceedings may not have been necessary. 59In considering the delay by the appellant in making the application under s 10B(2) for a certificate one cannot simply take the period between his resignation on 28 August 1996 and the lodgement of his application on 26 July 2006 and conclude there was an unacceptable delay of 10 years, which taken together with his age at that time, being 65, necessarily meant that it was not desirable for STC to accept his late application. All of the circumstances of the case need to be considered. 60The appellant's evidence was that at the time he resigned - a resignation that he claimed he was "railroaded into" - he intended to pursue a medical discharge. He had earlier (in 1994) sought to be medically discharged having been diagnosed with "Major Depression", but a subsequent diagnosis by Dr Maguire considered the appellant was "psychologically fit to continue with his duties" and so the appellant did not proceed with his application. 61It may be accepted that in August 1996 Mr Picker's life was in a state of upheaval. He had been drinking heavily on and off, he had at least experienced a depressive episode, his marriage had failed and his wife had left him, he did not like the work he was doing in the Police Force, he was at odds with his superiors and he had been contemplating retirement at 55. 62Whilst I find it difficult to accept that a man of Mr Picker's experience and seniority in the Police Force would have signed away his right to pursue a medical discharge without question or without seeking advice and opt for a lower rate of pension, it may have been he was overborne by the state of his mental health and by the thought of a possible demotion, thus reducing his pension upon retirement or resignation. 63I do not think there was any calculated plan in Mr Picker's mind at the time he resigned to resign and pursue a later claim for hurt on duty in order to place himself in a better position regarding any property settlement negotiations. To some extent this belief is supported by the fact that Mr Picker did not raise a medical discharge until 2000, which was three years after the property settlement was concluded. 64Between 1996 and 2000 the appellant continued to feel depressed and saddened by the loss of his career and marriage and he had moved to Nowra where he felt isolated. He continued to drink regularly and heavily, was involved in a motor vehicle accident in which he was injured in 1998 and was charged with driving over the prescribed limit of alcohol in January 2000. Mr Picker sought help from a psychologist. On balance, I am prepared to accept that up to 2000 Mr Picker's psychological state was such that the notion of pursuing a certificate of infirmity under s 10B(2) of the PRS Act was not a matter to which he gave much thought or priority. 65In 2000, Mr Picker raised with his then lawyers "whether or not I had any claim to pursue in relation to a medical discharge from the NSW Police." There was no satisfactory explanation as to how Mr Picker suddenly decided this was a matter to be resurrected. However, I believe that Mr Picker always knew this option was available; it was just that his mental state had not enabled him to accord it any priority up until 2000. In March 2000, Dr Guilfoyle recorded the appellant as being "slow and emotional", "difficulty making decisions", "irritable, angry, distressed and frustrated" and seemed "to have trouble completing tasks because I keep getting sidetracked". In 2001 Dr Pickering described the appellant as having "poor concentration". 66In 2000, his lawyers advised Mr Picker that he had reasonable prospects of success in a hurt on duty claim. However, between 2000 and 2005 no concrete progress was made in pursuing that claim. Through a combination of pre-occupation by the appellant's lawyers with other causes of action (common law, workers compensation), mishandling of the claim by his lawyers, for example, making the claim on the Police rather than STC, lack of diligence on the part of the appellant's lawyers in pursuing the claim in a timely way and a benign attitude on Mr Picker's part regarding his lawyers' lack of progress, the claim languished. 67One may accept that Mr Picker may have been confused about which cause of action he should have instructed his lawyers to prioritise and may have been relying on his lawyers in that respect. However, as the client he should share some of the blame for the lack of progress regarding his claim between 2000 and 2005. The lion's share of the blame though, appears to me to lie with his lawyers. 68In respect of the period between 2005 and when he finally lodged his application in July 2006 Mr Picker did what reasonably could be expected. He changed solicitors. Unfortunately, Mr Jenkins was unable to assist him and he changed solicitors again where he was provided with advice and assistance that should have been forthcoming in 2000, except for the failure of his solicitors in 2006 to have been aware of impending changes to the legislation that were to Mr Picker's detriment. 69I find that whilst the appellant contributed to the delay in making his application pursuant to s 10B(2), it was not, of itself, of such a nature as to make it undesirable for STC to accept the appellant's late application.

Prejudice to the respondent 70The appellant submitted there was no prejudice to the respondent in accepting the appellant's late application. The respondent submitted otherwise. 71The respondent submitted there was no medical evidence currently confirming that the appellant was incapable of performing the duties of office as at 28 August 1996. Accordingly, further medical evidence would be required to address the question of whether the appellant was relevantly incapacitated 16 years ago. Such evidence, it was submitted, would be more speculative and less reliable than it would have been had the application been brought within time and the appellant assessed at an earlier point in time. 72Further, the respondent referred to SAS Trustee Corporation v Ainsworth [2011] NSWIRComm 128, where the Full Bench confirmed that the appropriate test for certification under s 10B(1) was that which applied as at the date of discharge. Similarly (though obiter), the Court of Appeal in SAS Trustee Corporation v Cox [2011] NSWCA 408; (2011) 285 ALR 623 found that the applicable law for certification under s 10B(2) was that version which applied as at the date of resignation. Having regard to s 10B(2) as at August 1996 the incapability of an officer to perform his or her duties is to be assessed with reference to the appellant's actual duties of office as distinct from the general duties of a constable (Boland v SAS Trustee Corporation (1999) 97 IR 127). 73The respondent submitted that, therefore, given the lapse of time, it was obviously more difficult and maybe impossible to obtain any independent evidence verifying the appellant's actual designated duties as at August 1996. On the appellant's evidence, he was working as directed by Superintendent Clive Small at Kogarah Police Station. The circumstances of the appellant ceasing duties, and the conversations with Mr Small and Mr Peat, the "South Region Commander", were unlikely to be verified after the passage of 16 years. On any view, it was submitted, the respondent was prejudiced by the delay in application. 74The respondent further submitted there was prejudice: (i) to the Commissioner of Police in determining whether any ultimately certified infirmity was hurt on duty and adducing evidence supporting any adverse decision should the appellant appeal; (ii) to the respondent in determining any "additional amount" of annual superannuation allowance for "incapacity outside the police force" in circumstances where the appellant is now 70 years old and unlikely to have been employed in the workforce at that age in any event; and (iii) to the respondent in determining and/or defending any "backdating" claim under s 9A(4) and s 10(1D) with respect to the annual superannuation allowance and additional amount payable. 75Limitation periods on the bringing of actions (or in this case an application to certify infirmity) have important purposes. In addressing their rationale McHugh J said in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 552-553 (citations omitted): The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out: "The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served." Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible. In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced." But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension. 76At 555 his Honour continued: When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underling limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action. 77In Commonwealth of Australia v Smith [2007] NSWCA 168, Giles JA referred to the test to be applied if an extension of a limitation period was to be granted: [50] The primary regard is to prejudice to the respondent if an extension of the limitation period is granted. If there would be significant prejudice, the extension should not be granted: Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 at [116]; Commonwealth of Australia v Smith at [127]; Commonwealth of Australia v Lewis at [29]; Commonwealth of Australia v Shaw at [36]. That does not mean that, absent a finding of significant prejudice, an extension must be granted, and the applicant must still discharge the persuasive onus: Parsons v Douglas (2001) 52 NSWLR 163; Commonwealth of Australia v Smith at [129]. ... 78I also note what Giles JA said in McLean v Sydney Water Corporation [2001] NSWCA 122 (in a judgment with which the other members of the Court concurred) at [27]: [27] I do not exclude as a consideration properly to be taken into account as part of, or together with considerations such as these, in appropriate cases, that there has been a particularly long lapse of time since the events material to the claim. In such circumstances there will commonly be an element of general prejudice, even if not such as to make a trial unfair, meaning thereby the dimming of memories and other such consequences of the passage of time. Fairness is a matter of degree. As Priestley JA said in Holt v Wynter at 142, the concept of a fair trial is a relative one, and must in a particular case mean a fair trial between the parties in the circumstances of that particular case. As well, for the trial to be fair it need not be perfect or ideal. That degree of fairness is unattainable, and that a trial may be held for which not all relevant evidence is before the court does not mean that it is not a fair trial. 79It is clear from Taylor that the discretion to extend a limitation period "must be exercised in the context of the rationales for the existence of limitation periods": at 551 per McHugh J. Hence the guiding principle I have adopted in construing s 16A of the PRS Act that the limitation period in s 10(1BA) cannot be ignored and, prima facie, a late application should not be accepted. 80I have also adopted as a principle that any prejudice to STC, including any prejudice in defending proceedings occasioned by the delay, is a material factor militating against acceptance of a late election, application or choice. The respondent has identified a number of ways in which it would be prejudiced. Whilst these might amount to presumptive prejudice I am not convinced they amount to real and significant prejudice against the respondent. The first was that there was no medical evidence currently confirming that the appellant was incapable of performing the duties of office as at 28 August 1996 and that medical evidence 16 years later could only be speculative. It is true there is no contemporaneous medical evidence regarding the appellant's fitness to work in August 1996. There are, however, a number of medical reports and/or certificates in 1994, 1995, 1996, 2000 and 2001 relevant to the state of the appellant's physical and mental health. There is no evidence that the medical practitioners who diagnosed the appellant's conditions in those years are not available to give evidence if it becomes an issue as to whether the appellant was incapable of performing the duties of office as at 28 August 1996. Moreover, the respondent is entitled to obtain its own medical advice in relation to the application (s 10B(2)(c) and s 10B(2C)). 81The respondent next submitted it was difficult and maybe impossible to obtain any independent evidence verifying the appellant's actual designated duties as at August 1996. There is no evidence that Mr Small and/or Mr Peat would not be available to give evidence or that other persons with knowledge of the appellant's duties in August 1996 could not give evidence. Further, as the appellant submitted, the legislature has provided the respondent with substantial powers to investigate and obtain information relevant to its determination (see, for example, s 57, s 66(4), s 67(3) and s 68 of the Superannuation Administration Act 1996). 82Next, it was submitted there would be prejudice to the Commissioner of Police in determining whether any ultimately certified infirmity was hurt on duty and adducing evidence supporting any adverse decision should the appellant appeal. There was no evidence that records normally held by the Commissioner of Police regarding the appellant's service and recording events that might have caused the appellant injury were missing or lost or that persons who might give evidence of injurious events were unavailable. 83The respondent submitted it would suffer prejudice in determining any "additional amount" of annual superannuation allowance for "incapacity outside the police force" in circumstances where the appellant is now 70 years old and unlikely to have been employed in the workforce at that age in any event. It does not seem to me this kind of prejudice is sufficient to deny the appellant the opportunity of applying for an infirmity certificate. 84Finally, it was submitted there would be prejudice to the respondent in determining and/or defending any "backdating" claim under s 9A(4) and s 10(1D) of the PRS Act with respect to the annual superannuation allowance and additional amount payable. Again, I do not consider this amounts to real and significant prejudice. 85I find there is no real and significant prejudice to the respondent in accepting the appellant's late application.

Merits of the substantive application 86These are not the proceedings in which to make any findings or observations regarding the appellant's prospects of success in having the late application accepted by STC. I confine myself to the observation that the appellant has, at least, an arguable case.

Statutory purpose 87As Wright J, President observed in Commissioner of Police v SAS Trustee Corporation [2002] NSWIRComm 31; (2002) 131 IR 243 the purpose of the PRS Act is to provide valuable benefits to police officers and former police officers in relation to retirement arising from "hurt on duty" situations but to do so in a measured and careful way which allots certain responsibilities which are commensurate with the important rights and responsibilities granted to the STC and to the Commissioner of Police. His Honour considered the objective might have been to achieve a balance, on the one hand, between the valuable rights and the need, on the other hand, for caution in too readily extending those rights if that might result in inappropriate receipt of the allowance. 88With respect, his Honour's observations would appear to be correct. In striking the balance the legislature has made it clear that a superannuation allowance 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. 89The arbitrariness of that limitation is softened by s 16A of the PRS Act, which allows STC to accept an application that is not made or received within the time required under s 10(1BA) if it is satisfied that in all the circumstances of the case it is desirable to do so. 90Where STC refuses to accept the late application the former officer may appeal to the Industrial Court: s 88 of the Superannuation Administration Act. 91I do have reservations about the desirability of having STC accept the late application, particularly because of the extent of delay in making the application and the difficulty I have had in ascertaining the appellant's degree of fault or lack of diligence in not pressing the claim earlier. I also accept there is a degree of prejudice to the respondent. However, having in mind the need to strike the balance identified by Wright J, the limitation in s 10(1BA) and the principles I consider should apply to the operation of s 16A, I am of the opinion it would not be inconsistent with the purpose of the legislation to order that it is desirable in all the circumstances of the case for the respondent to entertain the appellant's application to certify his claimed infirmity under s 10B(2) of the PRS Act.

Orders 92The Court makes the following order: (1) Pursuant to s 16A of the Police Regulation (Superannuation) Act 1906 it is desirable in all the circumstances of the case for the respondent to entertain the appellant's application that the respondent certify pursuant to s 10B(2) of the Police Regulation (Superannuation) Act 1906 that the appellant was incapable, from an infirmity of body or mind, of personally exercising the functions of a police officer at the time of the member's resignation, namely, 28 August 1996.

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 July 2012

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