SAS Trustee Corporation v Ainsworth

Whether leave to appeal should be granted 7Notwithstanding the manner in which the parties were permitted to put their cases, we have concluded that the issues identified above should be dealt with on a leave basis except for the question of whether her Honour applied the wrong version of s 10B(1) of the PRS Act . 8The judgment appealed from shows a careful consideration, after reserving judgment, of complex factual issues that were before the Court at first instance. In relation to the factual matters, there was no allegation in the submissions by the appellant that the findings of fact were glaringly improbable, or contrary to incontrovertible fact in the sense discussed in Fox v Percy [2003] HCA 22; (2003) 214 CLR 188 at [127] - [129] and Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179. 9The appellant initially raised the contention that there was "no relevant s 67 dispute". On its face, this would be an issue of law, however, the appellant accepted that the appeal before her Honour was able to be properly dealt with and, furthermore, conceded during the appeal before the Full Bench that a dispute existed pursuant to s 67 of the SA Act: see discussion by the majority regarding the existence of a dispute under s 67 of the SA Act in Miles v SAS Trustee Corporation [2011] NSWIRComm 15 at [13], [15], [20]. 10It is well settled that leave to appeal will not be lightly granted and will not be granted when the issues in the appeal have already been the subject of authoritative pronouncement, or when the issues raised on appeal were not argued at first instance. An appellate tribunal is ultimately concerned with the correction of error: see Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381; Perrott v XcelleNET Australia Ltd (1998) 84 IR 255 at 267; De Simone Consulting Pty Ltd v Ison [2000] NSWIRComm 91; (2000) 97 IR 478 at 482; Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264; Ace Business Brokers Pty Ltd v Phillips - Treby [2000] NSWIRComm 163; (2000) 100 IR 420 and Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263 at [5]. 11We consider that, in matters such as the present, unless there are errors of law or principle, or errors of fact of substance (in the sense that such errors of fact can reasonably be said to have affected the exercise of discretion under challenge), it would not be appropriate in the usual course to grant leave to appeal. 12We observe that the judgment of Backman J contains a careful analysis of the factual circumstances before the Court. Her Honour approached the matter in terms of the authorities binding on her and dealt with the matter in terms of the relevant principles. Her Honour's conclusions, seriatim on the various matters falling for decision, included the following: [25] The issue of which version, if any, of s 10B(1) should apply, will need to be considered at a later stage. Returning to the present issue under consideration, it is the Court's view that the appellant's request made on 7 July 2008 to add infirmities to the Certificate, without more, cannot, on the broadest characterisation, amount to a "dispute" (which must be determined) contemplated by the terms of s 67. [26] That is not, however, the end of the matter. The appellant relied on evidence tendered during the proceedings that, it was said, would provide support for a finding that the additional physical infirmities now sought to be added to the Certificate had been omitted from that Certificate because the appellant had been overwhelmed by his psychological infirmities at the time he completed his application for medical discharge. This evidence, if accepted, would, according to the appellant, provide a proper basis for the existence of a dispute between the parties within the terms contemplated by s 67. [27] The respondent conceded that if the evidence on this issue was accepted by the Court then that would provide a "cogent reason" for the respondent to "potentially revisit the terms of the original s 10B(1) Certificate". [28] I intend, therefore, to consider the evidence relied upon to establish whether or not the appellant was so overwhelmed by the extent of his psychological injuries at the time he completed his application for medical discharge that he omitted, at that time, to include his physical infirmities, namely, his knee injuries and his hearing loss and tinnitus. ... [41] The following exchange then took place between the Bench and the respondent: HER HONOUR: Isn't another way of looking at it that, yes, it is a very comprehensive application on the part of the appellant but it was done in circumstances where the uttermost (sic - uppermost) reason was the psychological symptoms and in circumstances where the appellant had no legal advice and those matters, together with the evidence, would not necessarily discount the fact that the physical injuries were also very real and also incapacitating at the same time. OWER: I accept the first part, your Honour, but in terms of the physical matters being incapacitating at the same time, we are talking about an Inspector of Police who was making application for medical discharge and he does not mention his knee operation within the context of his psychological condition. Although I take on board what your Honour says about, yes, he was focussed on the psychological condition, there is no doubt about that, to neglect to actually say anything about the knees when your Honour has heard quite strident evidence about the problems he was encountering at the time is a little inconsistent, with respect. HER HONOUR: His knees? OWER: Yes, your Honour. The submission I make is the one I place there, the more likely explanation is the knees were not incapacitating at that time. HER HONOUR: That would require me to make an assessment of reliability of the evidence on this issue, wouldn't it, the reliability of the appellant's evidence on that issue. OWER: Yes, your Honour - and indeed I don't suggest to your Honour in any way that Mr Ainsworth hasn't attempted to be truthful. It is simply the accuracy of what he says. [42] The acceptance by the respondent of the first limb of the proposition suggested by the Bench is consistent in one significant respect with the appellant's evidence that he was in fact focused primarily on his psychological injuries at the time he completed his medical discharge application. The respondent's primary contention on this issue was that the appellant's failure to mention his knee injuries was not consistent with the appellant's evidence that his knee injuries were incapacitating. The respondent accepted, however, that the appellant was a truthful witness, it was the accuracy of his evidence (or some of his evidence) that was in issue. [43] The effect of the appellant's evidence on the issue, therefore, is that he was primarily focused on his psychological injuries at the time he completed the application and the failure to include his physical injuries in his application may be attributed to an oversight on his part. Given this matter, a "cogent reason" (to use the respondent's terminology), in my view, exists to revisit the terms of the s 10B(1) Certificate. What falls next for consideration is whether the appellant was incapacitated by his physical injuries at the time of completing his medical discharge application. Which version of s 10B(1) applies? [44] This consideration raises the necessity to decide which version of s 10B(1) applies to the appellant. As indicated earlier, the appellant contended that the most recent version applied. The respondent contended for the earlier version. ... [53] In the present proceedings the Court has been asked to effectively "stand in the shoes" of the respondent and determine whether the application to amend the Certificate should be granted. There was no issue that the Certificate may be amended: Barnes at p4; Commissioner of Police v SAS Trustee Corporation [2002] NSWIRComm 31 at [23]. [54] The respondent submitted that, "one must be wary of ... interference with rights that have already crystallised and the rights so far as the s 10B(1) Certificate have well and truly crystallised". [55] No other submissions of substance were relied upon or advanced by either party on the issue. It is my view that the recent amendment to s 10B(1) (there was no contest that the relevant change to s 10B(1) constituted an amendment) involves a change to a procedure, that is, a procedure which prescribes how a police officer who is medically discharged may be granted an annual superannuation allowance or gratuity under s 10 of the PSR Act. It is a necessary pre-condition to the grant of a benefit under s 10 that the police officer be certified as incapable in accordance with the terms of the provision. The provision therefore has prospective, or future, operation and merely takes account of antecedent facts and circumstances as the basis for the determination as to whether or not to grant the certificate (as a pre-condition to the grant of a benefit). [56] The application and significance of procedural provisions to past events was considered by the High Court in Rodway v The Queen (1990) 169 CLR 515 at 518: The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. Was the appellant "incapable" by reason of his physical infirmities? [57] I return to consider the outstanding issue whether the appellant was "incapable" in accordance with the provisions of s 10B(1). Before embarking on an analysis of the facts, it is necessary to mention one further matter. In Woodlands v SAS Trustee Corporation (2001) 109 IR 132, Hungerford J formulated the test to be applied when considering whether to add a further specified infirmity or specified infirmities to a certificate granted under s 10B(1). According to Hungerford J, it is not open to add another infirmity unless that infirmity was causally connected to the incapability of the police officer to perform his or her duties (at [38]). The test was approved by a Full Court in SAS Trustee Corporation v Daykin (2002) 115 IR 172 at [29]. ... [74] In submissions, the appellant acknowledged that with regard to his tinnitus, he was, "on thinner ground than either the right or the left knee". The respondent submitted that in the absence of evidence in support, the appellant's evidence of the existence and extent of the condition while a serving member of the police force amounts to no more than, "he might have misunderstood people ... but that does not amount to an incapacity". ... [81] The medical evidence suggests ongoing problems in particular to the appellant's right knee (Dr Thomson, for example). Dr Scarf concluded in May 1994 that the appellant could perform police duties "of a fairly sedentary nature". Dr Scarf noted extensive pathology to the right knee. In his opinion, it was unlikely that the appellant would be able to jog, play active tennis or other sporting games. In January 1995, Dr Bryan concluded that the appellant would have difficulty "with the work he is normally expected to do, or if he had to engage in more strenuous activities of a police officer that is on routine duty". [82] This evidence, in combination with the appellant's evidence, is strongly supportive of a finding, consistent with the requirements of s 10B(1), that the appellant, at and prior to his medical discharge, was incapable because of his injured knees, of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act . I therefore determine, and certify under s 10B(1), that the appellant is incapable from the specified infirmity, namely, the injury to his right knee and the injury to his left knee, of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act . [83] This finding results in the appeal being allowed. I note, however, that the Certificate granted on 26 November 1997 did not, in terms, conform precisely to the words of s 10B(1), as it was then in force. Given my findings that the Certificate should be amended and that the most recent version of s 10B(1) should apply, there may be some uncertainty as to the form that the amendment should take. On my reading of the Certificate of 26 November 1997, it may reflect s 10B(1) in its most recent form where it certifies that the appellant is "incapable ... of discharging the duties of his office and any other office in the police force " (my emphasis). So there is no doubt about this, however, I intend to give the parties liberty apply in order to place before the Court, if it be thought necessary, any submissions that they may wish to make, on the precise wording of the amended Certificate which properly reflects and conforms to the current form of s 10B(1). 13It appears to have been accepted by both parties that a certificate under s 10B(1) of the PRS Act could be subject to amendment by the trustee: see Barnes v Commissioner of Police for New South Wales and Anor (unreported, Carruthers J, Supreme Court, 19 October 1994) at 4 and Commissioner of Police v SAS Trustee Corporation [2002] NSWIRComm 31 at [29]-[30]. 14The respondent did not seek to claim incapacity in respect of his injured knees at the time of his discharge. Moreover, the amendment to include a reference to knees was sought ten years after the original certificate under s 10B(1) was issued and the respondent had relied on the terms of the certificate for two increases in superannuation allowance in 1998 and 2007 respectively, and a part commutation in the intervening period. 15This did raise in our minds whether Backman J's finding that the respondent's failure to include knee injuries in the original certificate was an oversight was a finding that was "glaringly improbable". As the appellant submitted, an amendment to a certificate should not be lightly made, especially if it has been relied upon subsequent to when it was originally made to achieve increases in the superannuation allowance. 16However, having regard to her Honour's careful examination of the issue and the evidence relied upon by her Honour, including the medical evidence and the evidence of the respondent himself, we are unable to conclude other than that her Honour's findings were open to her. 17In this regard we also note what the High Court said in Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 at 378: Moreover, the order of McLelland J. was made with the advantage of having seen and heard the witnesses, and particularly the parties, as they were examined and cross-examined in the witness-box; and that was an advantage not only in considering the credibility of the witnesses but also in appreciating the character and personality of each of the three persons whose future relationship to the child the court had the responsibility of deciding. The case was pre-eminently one for the application of well-known words originally used by Lord Shaw and since approved by other learned lords: "In my opinion, the duty of an appellate court in those circumstances is for each judge of it to put to himself ... the question: Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment": Clark v. Edinburgh & District Tramways Co. Ltd. (1919) SC (HL) 35 , at p 37; see Powell v. Streatham Manor Nursing Home (1935) AC 243 , at p 250; Watt or Thomas v. Thomas (1947) AC 484 , at p 488. 18In respect of the three matters we earlier identified we are unable to conclude that the application for leave to appeal raises issues of such importance in the public interest that leave to appeal should be granted.

Which version of s 10B(1) is applicable? 19We have reflected on her Honour's finding that the version of s 10B(1) that was relevant to be applied to Mr Ainsworth's claim was the current version, that is the version that applied from 4 July 2008 following an amendment to the PRS Act by the Police Superannuation Amendment Act 2007 and not the version that was applicable at the time of Mr Ainsworth's original claim in 1997. It is this matter in respect of which we have granted leave because we consider it is an important issue and in the public interest should be addressed. 20It was not immediately apparent, either from her Honour's decision or the submissions of the parties at first instance and on appeal, what the significance was as to which version of s 10B(1) was applicable. It seems to have been the appellant's position that under the earlier version, as a consequence of the Full Bench decision in Morley v SAS Trustee Corporation [2007] NSWIRComm 90; (2007) 162 IR 177, Mr Ainsworth's knee injury would not have constituted a "specified infirmity of body or mind..." because the position and/or rank he held within the Police Force did not require him to engage in activities whereby his knees prevented him from discharging the duties of his office. Mr Ainsworth held the rank of Inspector and was performing the function of Patrol Commander. 21The 2008 amendment to the PRS Act was undoubtedly intended to overcome the effect of Morley. This is evident from the second reading speech. In Morley , the appellant was a Superintendent of Police. He was medically retired in 2002, having been certified by the Police Superannuation Advisory Committee ("PSAC") as having a specified infirmity of major depressive illness with melancholia. PSAC did not accede to Mr Morley's request to also include specified infirmities of "injury to the back", "injury to the right leg" and "injury to the left leg" in the certificate. In the appeal by Mr Morley before Staff J, his Honour dismissed the appeal on the basis that the appellant could not have satisfied the test that he was incapable of discharging the duties of office of a Superintendent because of his back condition and injury to his legs as at the date of his medical retirement. His Honour found as follows: [98] The appellant accepted that in respect of his example, the work was being performed, albeit not by him, but being done under his supervision. The appellant had under his command an authorised strength of 110 officers and the ability to delegate. In my view, the duties were clearly being performed and there was no real requirement for the appellant to carry out the physical work involved with a search because there were other officers there to do it. If the new section prevails, in any event, this would fall into the category of calling upon another officer to assist. On the evidence, looking at the practical necessities of the duties of a Superintendent, the physical aspect does not appear to me to arise, except in respect of the driving of a motor vehicle. It was agreed between the parties that the driving undertaken by the appellant was extensive, being somewhere in the range of approximately 8,000 kilometres a month. The appellant's evidence was that at the end of long trips and also during long trips, he would experience occasional back pain and discomfort. The appellant could drive and the evidence has to be considered in its totality. At no stage did he ever have to suspend his duties because of that pain. He could only recall one trip that he did not undertake because of his back pain. It was postponed to a later time. [99] Although the appellant adopted what he described as a high profile in his role, this did not necessitate a requirement for physical duties, apart from his presence. He acknowledged that this role did not involve arresting anyone. In the three years that he was Superintendent, he could only recall two occasions when he wore his Appointments and walked down the street with fellow officers as a show of force. I do not regard this as a physical duty that was beyond his capacity even accepting his back condition. [100] On the evidence, and I find, the relevant duties of office of the appellant did not have a significant physical component. Any potential physical component was within the appellant's capacity given the resources at his disposal. In light of the appellant's position of Superintendent, he was not required to use physical exertion to discharge the "functions conferred or imposed on a constable" as prescribed by s 14 of the Police Act . 22On appeal, the Full Bench upheld the first instance decision, stating: [31] Further, we agree with the respondent that in approaching the proper interpretation of s10B(2BA) it is necessary to have regard to how the duties of a constable would be performed and that this is done by reference to the particular rank or office of the police officer under consideration. In other words, we consider that the function of every police officer includes the common law obligations or functions of a constable but that the way in which those functions will be carried out in a particular instance and at a particular point in time will be determined by reference to the particular rank or position held by the police officer under consideration. [32] Accordingly, we do not consider that Staff J was in error when he found that to the extent the appellant had any physical limitations due to his back injury he could have effectively delegated the task to a subordinate. We consider that this is entirely consistent with the notion that the functions of a constable will be performed by a particular police officer in a manner consistent with their position or rank within the police service. This is not to say, as counsel for the appellant sought to do, that the functions of a constable will differ from applicant to applicant but rather that the manner in which those functions may be performed will differ. [33] We also do not consider that, as the appellant submitted, this means that regard is only had to the actual duties of a superintendent and not the duties of a constable. Rather, the functions of a constable are considered within the context of the performance of those functions being undertaken by a police officer in the position of a superintendent. We consider that this is the correct way to apply s10B(2BA). 23Under the amended version of s 10B(1) applicable from 4 July 2008, the trustee is not to base its determination on the member's or former member's actual rank or position or functions and is not to determine that a member or former member has the capacity to exercise a function unless it could be personally exercised (other than by delegation). Accordingly, although an Inspector undertaking the role of Patrol Commander might not be called upon to regularly engage in the physical side of policing that one would normally expect a constable of police to perform, in effect that fact is not to be taken into account by the trustee in determining claims. 24The current s 10B is in the following terms: (1) An annual superannuation allowance or gratuity must not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14(1) of the Police Act 1990. (2) An annual superannuation allowance or gratuity must not be granted under section 10 to a former member of the police force who resigned or retired unless: (a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, and (b) if the regulations so require, the notification was in the prescribed form, and (c) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member was incapable, from that infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14(1) of the Police Act 1990 at the time of the member's resignation or retirement. (2A) For the purposes of determining a member's or former member's incapacity under this section: (a) STC is not to have regard to the member's or former member's actual rank or position or any functions (other than the functions referred to in subsection (2)(c)) of the member or former member at the time to which the certification relates, and (b) the capacity to exercise a function by delegation is not taken to be a capacity to personally exercise the function. 2B), (2BA) (Repealed) (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. 25In the present appeal, the appellant contended that there was no indication of a legislative intention to have the current s 10B operate retrospectively. Moreover, it was submitted, applying the provision retrospectively would disturb rights that had already crystallised. In this respect, it was submitted the certificate that was sought to be amended was issued on the basis of the criteria prescribed by s 10B(1) as at 1997. That certificate gave rise to rights and liabilities including the payment of an annual superannuation allowance, increases in that allowance and litigation which all pre-dated the amendment of s 10B on 4 July 2008. Any amendment to the certificate would have an effect on those existing rights and, accordingly, would have retrospective effect. 26The respondent submitted Backman J was correct in deciding that the current version of s 10B(1) was applicable and that her Honour's reasons for doing so were also correct. It was further submitted the 2008 amendment was in respect of a certification as to the capacity to exercise the functions of a police officer only and what occurs with the use of that certificate was quite distinct from that amendment. Senior counsel submitted it has always been the case that police officers could return and seek increases in their pension entitlements at a later stage. Such pension entitlements may or may not date back to the date of discharge. The respondent submitted: The amendment to s.10B by Parliament, was always intended to operate in this fashion. The section itself has, in the past, always dealt with an issue that the police officer's fitness for work as at the date of discharge or resignation or retirement. The intention of Parliament was a reaction to the decision in " Morley " as it had always been assumed, until that decision that the section operated so that certification took into account all the functions of a police officer. 27It was further submitted that even if the earlier version of s 10B(1) was applicable, there was sufficient evidence so as to satisfy Backman J that the respondent was entitled to have the certificate amended to include injuries to left and right knees. According to the respondent, his unchallenged evidence was that there were substantial aspects of the duties of his office for which, because of the ongoing symptoms and incapacities flowing from his left and right knee injuries, he was unable to perform. 28Section 30(1)(c) of the Interpretation Act 1987 provides:

1. The amendment or repeal of an Act or statutory rule does not: ... (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or ... 29In Pearce and Geddes, "Statutory Interpretation in Australia", 6 th ed, the learned authors observe at [10.35] that: Finally it should be noted that the common law presumption against the retrospective operation of legislation has been supplemented and largely codified by the inclusion of appropriate provisions in the Interpretation Acts of the states and the Commonwealth... It does not appear that the courts regard the statutory test as leading to any result different to the common law presumption: Carr v Finance Corp of Australia Ltd (1982) 150 CLR 139 at 152; 42 ALR 29 at 39... 30The common law rule was stated by Dixon CJ in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267: The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish L.J. in Republic of Costa Rica v. Erlanger (1876) 3 Ch D 62 "No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done" (1876) 3 Ch D, at p 69 (at p267) 31As Backman J observed in her judgment at [56], the application and significance of procedural provisions to past events was considered by the High Court in Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515 at 518: The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. 32The first question is whether the Certificate of Incapacity issued to Mr Ainsworth on 26 November 1997 gave rise to rights and liabilities. If it did, the next question is whether the 2008 amendment to s 10B affected those rights and liabilities. If so, s 10B ought not be given retrospective operation unless " the language of the statute expressly or by necessary implication requires such construction." 33As Dixon CJ observed in Maxwell v Murphy , difficulties have always attended the distinction between whether a statutory provision is procedural in nature or affects rights and obligations. The 1997 Certificate certified Mr Ainsworth as "incapable, due to the specified infirmity of 'Post traumatic stress disorder; reactive depression and anxiety' of discharging the duties of his office and 'any other office in the police force'". Backman J determined that Certificate be amended from 26 November 1997, by the addition after the words "specified infirmity of", the words, "injury to the right knee and injury to the left knee". If s 10B(1) is determined to have retrospective effect it would mean that the test to be applied is whether Mr Ainsworth was incapable, due to his knee injuries, "of personally exercising the functions of a police officer..." as opposed to whether he was incapable, due to his knee injuries, of personally exercising the functions of a police officer having regard to his " actual rank or position or any functions". Backman J, having found that the amendment to s 10B involved a change to procedure and, therefore, there was no presumption against the amended version of s 10B(1) applying retrospectively, applied the former test, namely whether Mr Ainsworth was incapable, due to his knee injuries, "of personally exercising the functions of a police officer...." without taking into account his rank, position or function. That her Honour took this approach is most apparent from [79] of her Honour's judgment. 34In our opinion, Backman J erred in determining the amendment to s 10B was procedural. The Certificate of Infirmity issued to Mr Ainsworth on 26 November 1997 certified that he was "incapable, due to the specified infirmity of 'Post traumatic stress disorder; reactive depression and anxiety' of discharging the duties of his office and 'any other office in the police force'". Backman J added to the certificate "injury to the right knee and injury to the left knee". 35Under the earlier version of s 10B(1), and consistent with the decision in Morley , the appellant would have been required to determine whether the respondent was incapable, because of his knee injuries, of discharging his duties by reference to the particular rank or position held by him at the time of certification, namely, Inspector/Patrol Commander. In those circumstances a knee injury might not have constituted an infirmity for the purposes of s 10B(1) because of the relatively sedentary nature of the work of an Inspector/Patrol Commander. However, in adding the knee injuries to the Certificate of Infirmity, Backman J did so on the basis of applying the current version of s 10B(1). That had the effect of enlarging the scope of the appellant's liability because the test to be applied is whether the respondent was incapable of personally exercising the functions of a police officer, making it more likely that the necessary infirmity existed and thereby providing access to a superannuation allowance that might otherwise have not been payable. 36Under the terms of s 10B(1) that was applicable in 1997, a superannuation allowance was not payable to a member of the police force who had been discharged unless the trustee had certified the member to be incapable, from a specified infirmity of body or mind of the member at the time of the certification, of discharging the duties of the member's office. What the 2008 amendment did was to change the basis upon which the right to the superannuation allowance would be determined and the basis upon which the obligation to pay the allowance would be determined. 37In our opinion, the amendment to s 10B(1) affected an existing right or obligation. Accordingly, it ought not be given a retrospective operation unless the language of the statute expressly or by necessary implication requires such construction. There is nothing in the amending legislation that would indicate that it was to be given retrospective effect. 38The respondent submitted that even if the earlier version of s 10B(1) was applicable, there was sufficient evidence so as to satisfy Backman J that he was entitled to have the certificate amended to include injuries to left and right knees. Backman J did not, however, make this finding. 39The appropriate course in our view is to remit the matter to Backman J for the purpose of her Honour determining whether the knee injuries constituted a specified infirmity at the time of certification (26 November 1997) in accordance with the version of s 10B(1) that applied at that time and as that provision was construed by the Full Bench in Morley .

Orders 40We, therefore, make the following orders:

1. Except to the extent leave is granted in this judgment, leave to appeal is refused.
2. To the extent leave to appeal is granted, the appeal is upheld.
3. The matter of whether the knee injuries suffered by Mr Ainsworth constituted a specified infirmity in accordance with the version of s 10B(1) Police Regulation (Superannuation) Act 1906 that applied as at 26 November 1997 and as that provision was construed by the Full Bench in Morley, is remitted to Backman J for determination.
4. The appellant shall have 14 days from the date of this decision in which to file any submissions regarding the costs of the appeal and the respondent shall have a further 14 days in which to respond. Unless either party wishes to be heard orally costs will be determined on the papers.

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: 27 September 2011