SAS Trustee Corporation v Cameron

Industrial Relations Commission (NSW)|2011-12-13|Before: Walton J, Kavanagh J, Backman J, Marks J

Judgment 1The SAS Trustee Corporation (the appellant) makes application under s 188 of the Industrial Relations Act 1996 (the IR Act) for leave to appeal and, if leave be granted, appeal a judgment of Marks J in Cameron v SAS Trustee Corporation [2011] NSWIRComm 69 delivered on 25 May 2011 in Matter No. IRC 1430 of 2009. 2The appellant is the statutory authority responsible for the administration of the State Authorities Superannuation Scheme (SASS). The entitlement to benefits under the SASS is governed by the State Authorities Superannuation Act 1987 (the SAS Act). 3Bruce Malcolm Cameron (the respondent) was employed from 7 July 1983 to 4 May 2006 (some 23 years) by the NSW Maritime Authority. He was a contributor to the SASS. 4It is necessary to recite some history of the respondent's employment and termination given the nature of this appeal. The respondent was employed by the Maritime Services Board (later known as the NSW Waterways Authority and the NSW Maritime Authority) from 1983 until he was medically retired on 4 May 2006. From around 2000, the respondent made complaints about his treatment by a supervisor, alleging bullying and harassment. 5As a result of these events, he was diagnosed as suffering from a "work-related depressive illness" from around 2002. He was treated by various medical practitioners from 2002, including Dr J N Waks, Dr P Coorey, Dr T Newlyn, Dr M Robertson and, following the cessation of his employment, Dr H Morgan. The respondent ultimately ceased performing work from December 2005 and proceeded on periods of leave and received workers compensation payments until his retirement. 6On 27 March 2006, the respondent was certified by Dr Newlyn, his treating psychiatrist, as suffering from the medical condition "depression" which was likely to result in him being "unable ever to be employed in a capacity for which he was reasonably qualified by education, training or experience". After his medical retirement, the respondent was granted by the appellant a partial, permanent impairment benefit under s 39(1)(a) of the SAS Act. 7In early 2008, the respondent made application for a total and permanent impairment. That benefit is payable under s 39(1)(b) of the SAS Act, provided the respondent met certain statutory requirements. The claim was rejected by the appellant. 8The respondent notified a dispute to this decision and on 20 August 2008, the appellant, under s 67 of the Superannuation Administration Act 1996 (the SA Act) (which Act governs the procedures to be followed by the Trustees), upheld its initial decision and rejected the respondent's dispute of its determination. 9On 11 September 2009, the respondent filed an appeal against this "dispute" determination. The appeal was lodged pursuant to s 88 of the SA Act which allows such disputes to be heard under the appeals provision of the Industrial Relations Act 1996. The appeal came before Marks J. In the Judgment, his Honour reversed the appellant's "dispute" determination and found the respondent satisfied the statutory test for a total and permanent disablement payment. In effect, his Honour determined the respondent was incapable of performing "any remunerative occupation". 10His Honour also allowed the respondent's application for an extension of time for the lodging of the appeal. Both decisions of his Honour are the subject of the appeal. 11In this matter, Mr T M Ower, of counsel, appeared for the appellant and Mr M Gibian, of counsel, appeared for the respondent. By consent of the parties, a Stay was ordered on 17 June 2011, pending the outcome of the appeal or until further order.

The Appeal 12The Grounds of the appeal are as follows: 1.His Honour misapplied the onus of proof when deciding whether the respondent was unfit for "any remunerative occupation" within the meaning of s 39(1)(b) of the SAS Act. 2.His Honour erred in concluding that there was no evidence to support the view that the respondent was fit for a remunerative occupation at the relevant time. 3.His Honour erred in extending the limitation period prescribed by s.88 of the SA Act by: a)Taking into account the irrelevant consideration of the length of the period of time between the lodgement of the respondent's claim and the determination of the dispute. b)Taking into account the respondent's depressive condition despite the fact that this was rendered irrelevant by his acknowledgement that the respondent had the necessary capacity to take steps and make decisions on his own behalf. c)Failing to sufficiently weigh up the relevant factors against extending the limitation period including: i.The respondent consciously allowing the limitation period to expire. ii.The fact that the respondent had legal representation. iii.The fact that an extension required an effective doubling the statutory period. The Relief claimed is as follows: 1.The orders of Justice Marks be set aside. 2.The respondent's application be dismissed for being brought outside the time prescribed by s.88 of the SA Act, 1996. 3.Alternatively, should the order to extend time remain undisturbed, the matter be remitted to the Industrial Court to be determined according to law. 4.The respondent to pay the costs of this appeal and the proceedings below.

The Relevant Statutory Framework 13His Honour in his Judgment, firstly, outlined the rather complicated statutory framework which led to the appeal before the Court and considered particularly the provisions of the SA Act which empower the Trustees to allocate payments under the SA Act. His Honour at [62] acknowledged the role of the Trustee and the duties and obligations relating to the Trustee's functions (SA Act s 51). His Honour then addressed the SA Act's provisions for dealing with disputes (SA Act s 67) and the manner in which the matter came before the Industrial Court on appeal (SA Act s 88 and s 188 of the IR Act). His Honour then, correctly in our view, considered the conduct of the appeal and adopted the view expressed by Haylen J in McKenzie v SAS Trustee Corporation [2009] NSWIRComm 177 at [192]: [192]... By these provisions the legislature has given a clear direction that in effect, on appeal, the Court acts as if it were the STC and is to have regard to the obligations and functions imposed on the STC as well as the power that may be exercised by the STC. In this rather unusual appeal provision the Court, acting in place of the STC, makes a final determination ... Both parties, on appeal, accepted that the appeal before his Honour was a hearing de novo of the dispute between the respondent and the appellant as to whether the respondent was eligible for the payment of a total and permanent invalidity rather than the payment he was receiving for a partial permanent invalidity. 14His Honour then considered the relevant statutory provision under which such payments are determined - namely, s 39 of the SAS Act which relevantly states: 39 Benefit on total and permanent invalidity before early retirement age (1) The benefit provided by this section is payable by STC to a contributor where, before attaining the early retirement age, the contributor ceases to be employed by an employer and STC is satisfied: (a) that the contributor's cessation of employment was due, directly or indirectly, to the permanent physical or mental incapacity of the contributor (not caused by any act or default of the contributor intended to produce that incapacity), and (b) that the contributor is, when the contributor ceases to be employed by the employer, permanently unable, by reason of that incapacity, to be engaged, or to be employed, in any remunerative occupation in which, in the opinion of STC, it would otherwise be reasonable to expect the contributor to engage. 15It was common ground between the parties that the respondent met the criteria prescribed in s 39 (1)(a) of the SAS Act. 16Given the nature of the application made by the respondent (who met the essential criteria that he was no longer employed), his Honour then at [72] identified the statutory criteria that had to be considered in order to determine eligibility for a payment under s 39(1)(b) for a total and permanent incapacity as: 1)The nature and extent of any permanent inability to work of the applicant. 2)Such inability being caused by any permanent physical or mental incapacity. 3)That the inability to work is in any remunerative occupation. 4)In which it would "otherwise" be reasonable to expect the applicant to engage. 17His Honour correctly determined that to satisfy the statutory criteria in (1) and (2) above, findings had to be made based on the medical evidence, the respondent's evidence and that of the rehabilitation provider. 18As to the meaning of the issues raised in (3) and (4) above, his Honour gave consideration to a number of relevant authorities between [77] and [81] and then determined to follow the approach of Brereton J in Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913. In that matter, the Court considered at [26] whether a person was incapacitated to such an extent as to render him: "... unlikely ever to engage in or work for reward in any occupation or work for which he is reasonably qualified by education, training or experience ...". Brereton J (at [76]) was therefore considering a similar but differing legislative provision and identified the relevant considerations as follows. Whether an applicant was: (1) unlikely (meaning a probability of less than 50%); (2) ever to engage (meaning on a full-time regular basis); (3) in any occupation or work (meaning a recognised occupation, not a special light duties job for injured workers and being work which he was likely to be able to obtain). 19His Honour correctly, in our view, at [82]-[85] recognised and acknowledged the distinguishing features between the legislative provisions being considered in Halloran and in the matter before him and then determined: [83]... whereas, it seems to me, that the concept in s 39(1)(b) is one of permanent inability. I think that this is a significant difference and I propose to consider the matter on the basis that it is necessary to conclude that there is a permanent, that is indefinite, inability for the applicant to be employed in any remunerative occupation of the kind referred to in the concluding words of s 39(1)(b). (emphasis added) 20His Honour, from the authorities, then accepted "remunerative occupation" as referred to in (3) meant "a recognised occupation, not a special light duties job for injured workers" (Halloran at [76]; see also Cavill Power Products Pty Limited v Royle (1991) 42 IR 229). His Honour stated at [83]: ... I would exclude work of a casual nature or light work manufactured to suit the particular circumstances of the applicant in the absence of any compelling evidence that such work was available. 21As to the phrase (4) "it would otherwise be reasonable to expect the contributor (read respondent) to engage", his Honour held at [88] it must be work which the respondent was likely to be able to perform and which it was reasonable to expect him to perform. 22His Honour then at [82] determined, again correctly in our view, that the STC, as does the Court, must make a determination: "... that reflects a commonsense and realistic approach to a consideration of the availability of the benefit". 23Further, his Honour at [71] found the: "... state of affairs that is to be considered when dealing with s 39(1)(b) is that which existed as at the date that the applicant ceased to be employed by NSW Maritime, namely 4 May 2006". This is agreed between the parties. 24Therefore, on our reading of the statutory criteria under s 39(1)(b) of the SAS Act, it is necessary for the Court to consider whether a contributor (the respondent), once not employed, is, due to his level of incapacity, permanently unable to be engaged or employed in any remunerative occupation (meaning a recognised paid occupation/work) that he is likely to be able to perform and in which it is reasonable to expect him to perform. 25Further, at [94] the Court stated, correctly in our view, the appropriate procedure for the conduct of the inquiry as to whether the above statutory criteria are met requires: [94]... the Court ... to exercise the functions of the STC in determining the appeal ... will consider carefully all of the evidence before it and the submissions of the parties.

Appeal Ground 1 - The "Onus of Proof" 26Before embarking upon the consideration of the statutory criteria, his Honour raised and considered an issue identified as the "onus of proof". His Honour held: [95]Having regard to the fiduciary and other obligations that I consider are imposed on STC and that apply to determinations under s 39(1)(b), and having regard to the structure of the sub-clause in the context of a determination as to whether a total and permanent invalidity benefit is payable, the applicant should demonstrate, on a prima facie basis, that he is permanently unable by reason of his, relevantly, mental incapacity to be engaged in any remunerative occupation. Once this is established, it is necessary in my opinion for STC to have available to it some evidence or information which would justify a conclusion that notwithstanding the applicant's mental incapacity he could reasonably be engaged or employed in a remunerative occupation. Such an occupation must be a real occupation, not one that is manufactured, and must exist in the everyday world. It should either be a full time or at least a substantially part-time occupation. [96]Seen in this way, the burden in the context of these proceedings of establishing that there is any such remunerative occupation available to the applicant falls on the respondent. Such an approach is necessary to negative any suggestion that any opinion reached that is adverse to the applicant's interests has a basis that is either uninformed or arbitrary. To do otherwise would be to act in breach of the fiduciary and other duties imposed upon the STC. 27Mr Ower, on behalf of the appellant, conceded his Honour was required to determine whether the respondent had satisfied the statutory criteria for payment of the benefit but contended the onus of proving the entitlement remained with the respondent. His Honour, therefore, erred at [95], it was submitted, in finding that proof to a prima facie level from the respondent was sufficient and in concluding at [96]: ... the burden ... of establishing that there is any such remunerative occupation available to the applicant falls on the respondent. 28The appellant further submitted this error in "shifting" the onus from the respondent to the appellant was such that it "tainted" all the reasoning of his Honour and also led to his Honour's failure to give proper weight to all the evidence. 29In Purkess v Crittenden (1965) 114 CLR 164, the High Court considered, in a damages case, the "shifting" of the onus of proof but held (at 167): We do not regard that case as formulating the proposition that once a plaintiff has established a prima facie case that he has been incapacitated as a result of the injuries inflicted upon him by the defendant's negligence the burden of establishing that his incapacity is wholly or partially the result of, or that total or partial incapacity would, in any event, have resulted from, some pre-existing condition in the plaintiff passes to the defendant in the sense that, when the whole of the evidence in the case has been given, the onus of proof on this issue rests upon him. The expression "burden" or "onus" of proof, "As applied to judicial proceedings ... has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading-the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of introducing evidence" (Phipson on Evidence, 10th ed. (1963) par. 92). This is a proposition which has been frequently acknowledged (See e.g. Fitzpatrick v. Walter E. Cooper Pty. Ltd. (1935) 54 CLR 200 at p. 218 and Mummery v. Irvings Pty. Ltd. (1956) 96 CLR 99 at p. 118 et seq). The position is, we think, correctly stated by the learned author of the work to which we have referred when he says: "the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates" (ibid. par. 95) and it was with the meaning of this expression in its secondary sense that the case mentioned was concerned. 30Adopting the reasoning in this decision, the onus of proof may shift within a hearing as the evidence evolves. However, "when the whole of the evidence in the case has been given", the onus of proof is held by the respondent to prove the case he/she prosecuted. 31His Honour, in support of the proposition there was a shifting of the burden onto the appellant, relied upon the following reasoning in Gideon v First State Super Trustee Corporation [2005] NSWIRComm 62 at [32]: [32]In circumstances where an insured member asserts on the basis of supporting medical and other evidence that he or she is unable to follow any of the occupations described in the definition, then it falls to the party seeking to rebut the claim to adduce evidence designed to demonstrate that there is another occupation to which the claimant is reasonably suited ... In my opinion, it is not sufficient to make a bald assertion, or even to adduce "expert evidence" to the effect that a claimant is able to work ... In the "real world" to which McClelland CJ referred, it is necessary to demonstrate that there are specific occupations available to a claimant ... There needs to be some evidence about the circumstances of the employment, including the nature and conditions under which work is to be performed and whether there are any specific qualifications or requirements associated with the particular occupation. Mere ability to undertake some or all tasks in an intellectual sense may not determine that there is an ability, ... by reference to any medical or other condition to perform the work associated with that particular occupation. ... 32We find no error in the reasoning in Gideon and its application to the facts, however, Gideon is authority for the proposition that the test under s 39(1)(b) is not whether or not the contributor is able to perform any paid work but rather, as the respondent submitted, the statutory criteria requires an inquiry as to whether, given the level of incapacity, there is a remunerative occupation, in the sense of a recognised job or line of paid work, which it would be reasonable for the contributor (read respondent) to be able to perform (engage) or be employed. 33The respondent submitted: The way in which we read his Honour's decision is if the contributor comes forward with evidence that he or she is not capable of performing any remunerative occupation and there is nothing that comes forward from the trustee to suggest that there is by way of evidence or other information ... some remunerative occupation that it would be reasonable that the contributor is both able to perform and reasonable to expect the contributor perform, then the statutory criteria that is required to be satisfied would be met. The respondent, therefore, submitted his Honour, in his reasoning and judgment, applied the proper test as to the statutory requirements under s 39(1)(b), notwithstanding his "prima facie" comment. 34We reject the statement of his Honour that the respondent had only to establish his case on "a prima facie basis". Rather, given a proper reading of the decision in Purkess, the respondent carried the onus of proving he was permanently unable to perform any work and it would not be reasonable to expect him to so perform such work given his incapacity. In order to conclude whether the onus had been discharged, there had to be a weighing up of all the evidence, as his Honour acknowledged in his reasoning at [94]. 35As held in Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (at 479), the question must be determined on the evidence and the material must have "probative value". 36The question in the appeal therefore becomes, did his Honour's reasoning in the application of the facts, as established on the evidence, demonstrate his Honour applied the proper test as enunciated in [94] or did his Honour's erroneous view of the shifting of the onus cause a miscarriage in his Honour's finding that the respondent be eligible for a total and permanent incapacity payment? We will discuss this issue further below. 37We conclude that the appellant has established this ground of appeal.

Appeal Ground 2 -Erroneous finding of "no evidence" of remunerative employment 38Having mis-stated the "onus", his Honour then proceeded to examine the medical evidence and to determine the respondent's level of incapacity. The appellant contended this consideration was "tainted" by his Honour's error as to the onus carried by the respondent. 39His Honour first outlined in some considerable detail (see [32] - [60] ) the medical and expert evidence and considered the respondent's evidence before holding: [97]... a) That of the applicant to the effect that he is unable to perform any work at all. The applicant said that as at the date of his medical retirement he was unable to perform any work. He had previously indicated a desire to attempt work but had never expressed any conclusion that he would be able to perform that work. His previous intentions had been expressed as a willingness to try to perform such work. There is simply no suggestion that the applicant was untruthful in saying how he felt, feigning symptoms or malingering. The evidence of the applicant is to be taken at face value. b) The medical evidence and in particular that of Dr Morgan to the effect that the applicant is not able to work at all. I accept the opinion of Dr Morgan that as at May 2006 the applicant was totally and permanently disabled for work, albeit that Dr Morgan did not first see the applicant until November 2007. I accept Dr Morgan's opinion that the applicant's condition was chronic, had been so for some years, and represented the applicant's circumstances as at May 2006. c) The totality of the remainder of the medical evidence, which is to the effect that the applicant suffers from a chronic psychiatric condition that certainly renders him unfit for his former employment. There is no medical opinion that expresses a contrary view. d) The evidence of Drs Robertson and Newlyn. I have previously set out and analysed the evidence of both these doctors, the former being qualified by a workers' compensation insurer of the employer and the latter having treated the applicant for some considerable time. I have some difficulty in accepting the evidence of Dr Newlyn given his prima facie change of opinion. I do accept, however, that Dr Newlyn's opinion concerning the applicant's ability to perform work given in July 2006 has to be qualified by the fact that the work that he considered the applicant was fit to perform was not specified, and had to be specifically tailored by the employer for the applicant consistent with his symptoms under the guidance of a rehabilitation provider. The opinion of Dr Robertson is to the same effect and I have set out the relevant extract at [60] above. It is clear that each of these opinions, in that they are directed to any capacity for work, do not touch upon a remunerative occupation in the sense that that expression is used in s 39(1)(b). Their evidence refers to the ability to perform work of a kind to be specifically created by an employer with the assistance of a rehabilitation provider. This is work of a contrived or artificially created position. It is not work that, on the authorities, falls within s 39(1)(b). 40His Honour then concluded on the medical evidence as to the respondent's capacity for work: [98]My analysis of the totality of the evidence leads me to conclude that there is simply no evidence of any particular or, indeed, any general form of remunerative occupation in which, in the opinion of anyone, the applicant could reasonably be expected to engage. On this basis, the purported opinion of STC that there was a capacity of the applicant for employment in a remunerative occupation cannot be sustained on the opinions of Drs Robertson and Newlyn, notwithstanding that STC sought to do so. Those opinions, as expressed in their reports, simply do no justify the conclusion to which STC purported to come. 41Mr Ower, for the appellant, contended his Honour erred in his conclusion at [98] when his Honour found: ... there is simply no evidence of any particular or, indeed, any general form of remunerative occupation in which, in the opinion of anyone, the applicant could reasonably be expected to engage. 42The appellant, before his Honour and in this appeal, contended there was a weight of evidence contrary to this conclusion from Dr T Newlyn, Dr M Robertson and Mr D Pirie and from prior statements from the respondent, rather than "no evidence" on the issue of available "remunerative occupations". Given the "no evidence" finding, it was submitted his Honour could not have given proper weight to that evidence. Further, the effect of this error, it was contended, was that his Honour's conclusion as to the respondent being permanently incapacitated to perform in any paid work should be rejected and the appeal upheld.

The Medical Diagnosis 43To determine whether his Honour, given the error as to onus, had misconstrued the medical evidence or failed to give consideration to all the evidence and/or should not have given weight to Dr Morgan's opinion, it is necessary, on appeal, to examine firstly the medical evidence and then his Honour's associated findings. 44As to the medical condition suffered by the respondent, Dr Newlyn, his treating doctor, first saw the respondent in 2002. On 3 December 2005, the doctor sent a report to the rehabilitation provider, Mr Pirie. At that date his diagnosis was the respondent had an: Adjustment Disorder with Mixed Anxiety and Depressed Mood. Chronic. A major Depressive Disorder Single Episode Moderate. In October 2007, the doctor reconfirmed his medical diagnosis. 45Dr Robertson, on 25 January 2005, in a Report to GIO Workers Compensation, diagnosed a "dysthymic disorder" and opined the condition was likely to persist long-term and noted he suspected there would be long-standing psychological distress. The doctor stated: Mr Cameron appears to have evolved a chronic depressive illness, which may have been at the severity of a Major Depressive Disorder, although currently presents more as Dysthymic Disorder Pattern. The main differential diagnosis is chronic Adjustment Disorder with depressed mood. and further: The worker has Dysthymic Disorder, complicating a personality with narcissistic traits. 46Dr Morgan opined, on 30 November 2009, the respondent had a Major Depressive Disorder, moderately severe, Chronic GAD with a Health Anxiety. The appellant contended this opinion was a retrospective analysis as Dr Morgan did not see the respondent until after he was retired and, therefore, his opinion should not have been given any weight by his Honour. However, Dr Morgan's diagnosis was similar to that of Dr Newlyn. The appellant clearly accepted the diagnosis and has continued to pay the respondent for his partial, permanent incapacity since May 2006.

Incapacity: The Medical Opinion 47It was in that context that his Honour went on to consider whether the respondent's condition made him totally, not partially, permanently unfit for any paid work. It was contended by the appellant, it was reasonable to expect him to perform work or be employed. 48As to the "totality" of the permanent incapacity to perform work of a type that is a "remunerative occupation", in other words what would be considered a "real" job, his Honour went on to consider the medical opinions as to the level of the incapacity of the respondent to perform particular duties and also the evidence of the respondent on this issue. 49Dr Newlyn opined firstly on 3 December 2005 that, notwithstanding his diagnosis from a psychiatric view, the respondent could return to his pre-injury duties. On the same date, the doctor wrote to Mr Pirie, the rehabilitation provider, answering some queries as to the respondent's capacity to work as follows: Q.Comment on any potential side effects from Mr Cameron's medication that may impact upon his ability to perform work-related tasks. A.Mr Cameron has been prescribed venlalaxine since October 2003. At this time he does not have side effects that would interfere with his ability to perform work-related tasks. Q.What is the approximate and expected timeframe for return to suitable duties and hours? A.1 week. Q.Will Mr Cameron be able to return to his pre-injury duties and hours? A.From a psychiatric perspective the answer is yes. Q.What is the approximate timeframe for return to pre-injury duties and hours? A.2 weeks. Q.Current treatment requirements. A.Monthly psychiatric review. 50Mr Pirie revealed he had contacted Dr Newlyn on 9 November 2005 and the doctor had expressed the view the respondent should return to work as soon as possible. Mr Pirie recorded he told the employer, NSW Maritime, there was medical evidence the respondent could return to pre-injury duties but the employer determined it would not allow the respondent, who had been on and off performing some restricted duties, to return to his pre-injury employment. It was in this context the respondent was then asked by Mr Pirie were there other duties he could nominate at his employer's workplace. Mr Pirie (working for a rehabilitation provider known as Konekt) recorded in his Return to Work Interim Report of 7 December 2005 to GIO General Ltd: . . . Konekt discussed in further detail potential suitable duties with Mr Cameron as he felt there were several positions including boat detailing, workshop maintenance, car detailing, working with commercial vessels, or working within the Assets department that would be suitable. . . . 51When contacted by Mr Pirie again the employer refused to offer the respondent any such duties or any further modified duties. It appears from Mr Pirie's report the above conversations with the employer occurred in November 2005. The evidence reveals the respondent remained off work on workers' compensation payments and was retired in May 2006. 52Dr Newlyn then completed a Medical Certificate for the appellant in March 2006. The doctor, in that certificate, opined the respondent would never be able to be employed in his normal occupation due to his incapacity and noted on the certificate: I certify that the member named here is suffering from a medical condition which, in my opinion, is likely to result in their (sic) being unable ever to be employed in a capacity for which they are reasonably qualified by education, training or experience. I also certify that, in my opinion, the person has suffered from that condition for a period of three and three-quarter years. 53However, after completing this opinion the doctor in July 2006 reported to the appellant that the respondent was: ... 'fit to resume work similar to the work he was performing at NSW Maritime', was 'capable of working 30 or more hours per week' and was 'capable of working part-time'. but the doctor also noted the respondent believed he was unable to work at that time. 54The doctor's report did not identify any specific employment in which, in the doctor's opinion, the respondent could be employed, nor did he identify any type of employment which, in the doctor's view, the respondent could reasonably be expected to engage. This opinion is difficult to reconcile with the fact that, prior to expressing this opinion, Dr Newlyn had certified that the respondent was suffering from a medical condition which was likely to result in him being "unable ever to be employed in a capacity for which he was reasonably qualified by education, training or experience". 55His Honour gave a detailed analysis of all Dr Newlyn's various assessments from [34] - [50] of the Judgment and concluded: [48]The upshot of Dr Newlyn's evidence was that he thought it would be more productive for the applicant to return to work under the care of Konekt, a rehabilitation provider, than not being at work. He would leave it to the rehabilitation provider and to the employer to ensure that the work that was provided was suitable for the applicant. At that stage, he was also unaware that the employer was considering medical retirement for the applicant. [49]Dr Newlyn conceded that in expressing an opinion about the applicant's ability to return to work with NSW Maritime, he was not familiar with the jobs that were available with that organisation and that he was "not a workplace placement specialist". [50]In re-examination, Dr Newlyn was asked about his opinion as to the applicant's fitness for work in May 2006. He said: "My opinion in May 2006 was that Mr Cameron could work, albeit maybe not at Waterways, but he could work. 56When the appellant was considering the retirement of the respondent, a report held by the workers compensation insurers was also obtained. Dr Robertson, a Consultant Psychiatrist, expressed the view his diagnosis was similar to that identified by Dr Newlyn. As to that condition, the doctor opined: This condition is likely to persist long term. I suspect there will be longstanding psychological distress. and as to capacity the doctor held: I suspect that retraining and redeployment is the only credible option. I think he would be fit to return to work under a graded return to work program, with a rehabilitation provider, perhaps in a different field ... I do believe that ultimately this worker, if he is to return to full pre-injury hours, will need to be given a specific work description, subject to regular constructive performance reviews, although these are clearly industrial rather than clinical issues. 57His Honour accepted the doctor had opined the work had to be specifically tailored for the respondent consistent with his symptoms and his Honour found, as to that opinion, that it 97: "[does] not touch upon a remunerative occupation in the sense that that expression is used in s 39(1)(b)". 58His Honour preferred the view of Dr Morgan. Dr Morgan began treating the respondent in November 2007. On 27 May 2008, in a report prepared for the appellant (given the respondent challenged the decision that he had only a partial permanent incapacity), the doctor opined: I do not believe Mr Cameron is able to be employed in any remunerative occupation that is commensurable with his former employment. Nor do I believe he is fit for any productive part-time employment. I believe that he is totally and permanently incapacitated. 59The doctor faced rigorous cross-examination as to his "retrospective opinion". The doctor opined the respondent, as at May 2006, was permanently unable to be employed in any remunerative occupation in which it would be reasonable to expect him to engage but for his condition. The doctor said: My impression when I first saw Mr Cameron in November 2007 was that he was quite significantly depressed and anxious. On balance of probability from looking at previous reports, from his account of events, I suspect that he is correct that he probably began to be depressed before 2002 and in my experience this is not an uncommon scenario that people may begin to develop a depressive illness and take time before they seek help. In my opinion I think that he really didn't recover over that time, despite treatment that he started with Dr Newlyn and I think that with his partner separating that this would have further exacerbated his problems. 60On 5 November 2010, the doctor opined (to the insurer): Bruce continues to suffer symptoms of mixed depression and anxiety - he continues to ruminate and dwell on things. He recommended ongoing treatment. 61Given the views expressed by the doctors, his Honour found he prefered the view of Dr Morgan that the respondent's condition was "chronic" and this was so at the relevant date in May 2006.

Incapacity: The Respondent's Evidence 62The respondent was cross-examined on his capacity to work, particularly around the relevant date of May 2006. The appellant pressed that the weight of the evidence satisfied that the respondent, in November 2005, had told Mr Pirie that he was willing to perform work. The appellant, from this fact, developed a proposition that the Court should infer that the respondent therein had conceded he had the capacity to perform a remunerative occupation. Evidence in support of that proposition, it was contended by the appellant, was that, when asked to suggest some duties within NSW Maritime that were "potentially suitable" duties, the respondent suggested some NSW Maritime jobs. The respondent was cross-examined on the fact that he had said some duties such as a boat detailer, in workshop maintenance or car detailing working with commercial vessels or within the Assets Department were "potentially suitable". 63He was asked: Q.At that stage it is fair to say that you thought there were several positions within Waterways that you were capable of performing. Correct? A.That I thought I might be capable, yes. The respondent was also asked: Q.The position that you talked about with David Perie (sic) were the positions where you probably had an interest in, were they not? A.They were supposed to be an option, yes. Q.You were both capable of doing the jobs and you were interested in them, correct? A.I was interested in them and I thought I may be capable of doing them, yes. Q.You hesitated on that because you were not sure whether you would be able to do them? A.Well with the - I keep repeating myself here and I apologise for that but it would be the effect of the medication I think, yes. I was hoping that I would be able to perform them. and: Q.Now, when you went to see Dr Newlyn about this time in 2006, in fact you saw him on 31 May 2006, didn't you? A.That would be correct. Q.And that was for the specific purpose of getting a report from State Super. ... And you were at pains to point out to him at that stage that you were unable to work at present, but would be able to do so in the future. Is that right? A.Well, one hopes one's going to get better, and you try to think positive that, you know, you try, you are going to be better than the position that you are in. 64His Honour then asked for clarification: Q.Mr Cameron, when you were asked by Mr Ower whether you were still capable of doing work, you said it was very awkward. I am sorry, I just didn't understand. I am not being critical-- A.No. Q.--I don't understand what you mean by that? A.Well, with the condition that I have, its very hard to deal with people. I - as I said, I keep myself to myself. I find it awkward travelling. I find it awkward being in crowds. I have periods of anxiety. Probably, for want of a better word, you have panic situations. I have trouble relating to people. And that's why - that's - it's been one of those things that that's stopped me from progressing now further. As you know, one hopes one is going to get better and deal with things, but unfortunately it's - it just doesn't work that way. Q.Thank you. 65The appellant also contended the respondent could not rely upon the affect his medication had on him at the relevant date, May 2006, because the evidence was that problem had been addressed and at the relevant date his medication was not causing side effects. 66The respondent, in his answers, did raise the issue of his medication and how it had affected him. Dr Newlyn had commented at 3 December 2005: Mr Cameron has been prescribed venlafaxine since October 2003. At this time he does not have side effects that would interfere with this ability to perform work-related tasks. The doctor confirmed in a report in October 2007 the respondent had been prescribed Venlafaxine since October 2003 but he also added "he has not responded well to the other tried anti-depressants trialled". 67Mr Pirie's report confirmed the respondent's complaint as to side effects from his medication: ... Dr Newlyn advised Konekt that Mr Cameron had initially experienced side effects including dizzy spells from his medication, which had subsequently inhibited him from undertaking pre injury duties working onboard a vessel. Dr Newlyn advised Konekt that Mr Cameron's medication had since been altered and there should not be any medical restrictions as a result. ... 68Dr Morgan later also noted the respondent's medication had been varied. The doctor's ongoing reports revealed the doctor also tried different medications in his treatment of the respondent after his retirement. It is relevant to note Dr Morgan no longer prescribes venlafaxine.

Incapacity 69Having seen and heard the respondent, his Honour accepted there was "hesitation" on the part of the respondent in accepting the proposition he could perform some work in May 2006. His Honour accepted there was a concern by the respondent as to the affect of his medication on his ability to perform work. The appellant contended, in so finding, his Honour went against the weight of the evidence. We reject this contention. There was contemporaneous evidence, both in Dr Newlyn's reports and in Mr Pirie's reports, that the respondent's medication had caused side effects. Even after the retirement, Dr Morgan was adjusting his medication. A proper inference can be found that the suitability of medication necessary to treat the respondent's medical condition was an ongoing issue. There was, we accept, a weight of medical opinion to support the respondent's assertion he had suffered side effects from his medications. Further, we accept the medical condition suffered by the respondent, namely, depression, at the relevant date was chronic and he had, at times, side effects from his various medications. 70Although we have accepted his Honour erred in his reference to a "shifting onus", we do not accept his Honour ultimately erred in weighing the evidence before reaching his conclusions at [97] and [98]. 71The evidence does not establish, in our view, the respondent conceded he was able to perform work (at 97) when he was asked to name some "potential suitable" tasks within his employer's worksite. We do not consider that his answer to that question should be read as a concession he was able to perform such work. 72As to the respondent's work capacity, his Honour concluded there was "no evidence of any particular or general form of "remunerative occupation" in which it was reasonable to require the respondent to engage/perform. We find no error on the part of his Honour in reaching this conclusion given the context in which it was made. His Honour thoroughly considered the reports and evidence of Mr Pirie, Dr Newlyn and Dr Robertson and their opinions but rejected them. His Honour, in the use of his discretion, accepted the opinion of Dr Morgan that the respondent's condition at the relevant date was total and permanent. It was open to his Honour to so conclude and, in that context, he correctly found there was "no evidence" of a suitable remunerative occupation that the respondent could perform (see 97). The only evidence of any possible "remunerative occupation" was that suggested by the respondent himself but we are satisfied there was no persuasive evidence the respondent had the capacity to perform such work. We are persuaded the weight of the evidence falls the other way. There was "no evidence", given the respondent's incapacity to offset any "remunerative occupation", that the respondent was reasonably able to perform "work" at the relevant date. 73We do not think, therefore, that his Honour's erroneous conclusions as to "onus" resulted in him ultimately falling into error in finding there was no remunerative occupation that the respondent could be expected to engage in. His Honour correctly stated the ambit of his consideration at [94] and we are satisfied his Honour's conclusions at [97] to [98] were based upon a proper consideration of all the evidence. Whilst his Honour may have engaged in loose expression by the reference to "no evidence" being available, when taken as a whole, we conclude that his Honour properly weighed the evidence. Lest there be any doubt, we find those conclusions were not only open to his Honour but we have considered all the evidence and would come to the same conclusions. 74We therefore reject this ground of appeal.

Ground 3 - Extension of Time under s 88 of the SA Act 75The appellant contended his Honour erred in extending the limitation period prescribed by s 88 of the SA Act. It was common ground between the parties that the superannuation appeal was filed seven months after the expiry of the six month time limit prescribed by s 88 of the SA Act. 76The appellant submitted, while acknowledging his Honour had a clear statutory discretion to extend the time, this discretion was required to be exercised judicially and his Honour's decision to extend time was outside the bounds of a proper exercise of judicial discretion. 77It was the appellant's contention his Honour erroneously relied upon two factors in justifying the extension: the impact of the respondent's psychiatric condition and, secondly, the period of time which had elapsed from the time of the claim to the decision made by the Trustees to reject the application. The appellant contended both matters were irrelevant to a proper consideration of the application for extension and the judicial use of the discretion. Further, the appellant contended his Honour failed to give weight to relevant considerations such as the conscious decision of the appellant not to comply with known limitation periods. 78Section 88(2) of the SA Act provides an appeal of this nature: . . . must be made within 6 months after the appellant is notified of the determination or within such further period as the Commission allows. The Act, therefore, confers the broadest of discretions upon the Court to extend time. The exercise of the discretion requires consideration of all the circumstances and as said in Brady v Kennedy (t/as Sardines) (1999) 91 IR 258 (at 265): ... the ultimate exercise of discretion is governed by the requirements of justice in a particular case. 79A discretionary decision can only be challenged by showing error in the decision-making process of the type discussed in House v The King (1939) 55 CLR 499 as follows (at 505): If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. 80As was held in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, the respondent carries the legal onus of showing that the justice of the case requires the discretion to be exercised favourably and to do so the respondent must prove that extension beyond the limitation period does not result in significant prejudice to the appellant. The appellant fairly conceded it suffered no prejudice in the grant of the extension (Dawson J (at 544), McHugh J (at 554 - 556)). 81The first ground relied upon by the appellant on the extension of time issue is his Honour's consideration of the impact of the respondent's psychiatric condition: [119]My general impression of the evidence is that the applicant did not apply himself in an appropriate manner to ensure that the appeal was lodged in a timely fashion. There is no suggestion of any kind that despite his psychiatric condition he lacks mental capacity to undertake and pursue matters of this kind. However, even though the applicant possesses the necessary capacity to take steps and make decisions, there is psychiatric evidence that the applicant's depressive condition impacts upon his ability to lead a normal life. The evidence of the applicant is to the same effect. I take this into account in determining the matter. 82We do not accept error resulted from his Honour taking into account the impact of the respondent's psychiatric condition upon his ability to function on a day-to-day basis. Whilst finding fairly, given our view of the medical evidence, that the respondent's psychiatric condition fell short of causing him to lack the capacity to pursue the appeal, his Honour accepted evidence not only from the respondent but also the medical experts who opined in support of the proposition the respondent had ongoing difficulties in dealing with the demands of a normal life. 83Dr Morgan expressed the opinion that the respondent remained: substantially disabled by his condition and remains very vulnerable to exacerbations in his condition due to relatively minor stressors and continued to be: affected by depression and anxiety symptoms in the moderate to severe range. In a later report, Dr Morgan noted that the respondent: has a lot of difficulty making decisions and moving forward with his life. 84The respondent also gave evidence that he did not see another solicitor (after October 2008) for some time due to the state of his health and that, with his condition, he explained it was "very hard to deal with people". Evidence satisfies the respondent was then (and still is) suffering a major depressive illness which was likely to be exacerbated by minor stresses and which caused him to experience difficulty in making decisions and dealing with people. 85We accept the psychiatric condition suffered by the respondent was relevant in explaining why the respondent did not actually pursue the appeal as promptly as he may have at the relevant time. Evidence of a psychological state which impedes the respondent interacting with others in the normal way and which impairs the decision-making process is relevant to the consideration of an extension of time application in the circumstance. We find no error in this reasoning. 86The appellant further contended that his Honour erred in taking into account the fact that the respondent's case was "on foot for a long time" and, therefore, the appellant contributed to the delay. His Honour held at [120]: [120]Another matter which I take into account in determining whether leave should be granted under s 88(2) is the fact that the applicant's claim has been on foot for a long time. The initial application was originally lodged on 31 March 2006. It was almost 2 years later before it was finally determined by the respondent. In making this comment, I acknowledge that some delay would have been occasioned by the fact that the applicant sought a re-determination of the matter. Nevertheless, in the absence of any evidence to the contrary, it may be assumed that, for whatever reason, the ultimate determination of the claim took a considerable period of time. In this context, any public policy reason associated with the grant of leave by reference to the need to have claims determined quickly may be given less weight. In these circumstances, also, the impact of the applicant's claim on the resources of the relevant superannuation scheme may be said to be diminished. 87His Honour, therefore, found the time between the lodging of the initial claim and "... its ultimate rejection" was a factor for his consideration. 88The appellant contended, while the respondent did apply for the payment on 30 March 2006 and the appellant did not make its determination until 3 August 2008 and the respondent was not notified finally until 21 August 2008, that those facts are irrelevant to the extension of time consideration by the Court. The appellant contended the time taken by the appellant to consider the application was within the statutory time frame under s 54B of the SAS Act. 89Section 54B of the SAS Act is the provision dealing with disputes. Notice of a dispute of a decision by the STC must be filed within two years after notification of the decision (s 54B(3)). The appellant contended the legislation, therefore, allowed two years between the time of the decision and the determination of the dispute. We reject this reading of the clause. Rather, the statute dictates it is the contributor (read respondent) who has two years to consider/prepare/file a dispute of an STC decision. The statutory requirement, therefore, allowed the respondent two years to dispute an STC decision. 90Under s 88 of the SA Act the respondent had only six months in which to appeal to the Industrial Relations Commission in Court Session from the dispute determination. We, therefore, reject his Honour's consideration that the delay in the decision-making of the STC was relevant in the consideration of the extension of time application. 91However, other facts related to the delay in filing the appeal are relevant to whether an extension should be granted. In Hurrell and Others v Queensland Cotton Corporation Limited [2003] NSWIRComm 139; (2003) 125 IR 145 at [14]: [14]To arbitrarily adopt an approach that "ignorance of the law is no excuse" when dealing with an application for an extension of time may lead to a failure to consider potentially relevant issues, such as the reasons and circumstances as to the ignorance of the relevant time limitation, personal circumstances affecting or potentially affecting an applicant's knowledge or access to professional advice and the actual circumstances giving rise to late lodgment, including any attempts to lodge an application. The Commission needs only to be satisfied that there is a "sufficient reason" to accept the late application, having "particular" regard to the matters identified. When viewed in that way, the maxim concerning ignorance of the law emerges as even less relevant than otherwise may be the case. The use of the maxim in applications to extend time in unfair dismissal matters has the real potential for error, as this matter highlights. 92The respondent was legally represented when he notified of the dispute of the STC determination on or about 21 August 2008. He does not claim ignorance simpliciter. His solicitor, Mr Kristofferson, advised him to seek other representation as he did not feel that he held the necessary expertise. In October 2008, the respondent sought advice from another solicitor who did not inspire him with confidence and asked for more money "than I (he) had to spare". Ultimately, the respondent consulted solicitors, Messrs W G McNally Jones Staff, in March 2009. At the conference with Mr Trainor on 29 March 2009, a file note indicated the limitation period prescribed by s 88 of the SA Act was mentioned. Mr Trainor requested the previous file from Mr Kristoffersen and it was received on 9 April 2009. That file contained the report of Dr Morgan dated 27 May 2008, which supported the respondent's claim of a total permanent incapacity. No relevant steps were taken by Messrs W G McNally Jones Staff between receipt of Mr Kristoffersen's file on 9 April 2009 and Mr Trainor's further conference with the appellant on 2 June 2009. On 2 June 2009, the solicitors requested a further medical opinion from Dr Morgan. Dr Morgan's further report dated 10 August 2009 was received. Proceedings were not filed until early September 2009. At no stage prior to the filing of the superannuation appeal on 11 September 2009, did the respondent's solicitors notify the appellant of their intention to appeal. They did notify of a Freedom of Information request on 16 July 2009. 93Whilst we accept the delay between March 2009 and September 2009, during which time the respondent was represented by solicitors, is a significant factor weighing heavily against the granting of an extension of time (Schering-Plough Pty Limited v Page [2002] NSWCA 4 at [38] per Sheller JA), the facts also reveal the respondent clearly instructed solicitors he wanted to appeal the dispute determination and he was, through appointments with solicitors and then through the issue of the FOI and through attending medical appointments, under the impression his appeal of the dispute determination was advancing. While the file note mentions the time limit was raised with the respondent, there is no evidence the respondent understood the imperative or even the relevant date. In conjunction with the medical condition of the respondent and its affect upon his decision-making ability, we do not accept the various solicitors' failures should be held to be a ground for not allowing the respondent an extension of time in the circumstances. 94Contrary to the appellant's submissions, we do not accept this is a circumstance which is present in all claims for a total and permanent invalidity payment nor, contrary to the respondent's submission, do we accept it was open to his Honour to find that, having regard to the fact that the STC took a long period of time before determining the respondent's application, it would be inequitable to hold the respondent to the six month time limit for appeal. We reject both propositions. 95However, while in the use of the discretion his Honour erred in taking into account the delay occasioned by the appellant in making its original determination, with the agreement of the parties and taking into account both the medical condition of the respondent during the relevant period and the conduct of various solicitors who were clearly instructed by the respondent to file an appeal, the Full Bench does not consider, on balance, that the discretion to extend time miscarried. We would, in exercising the discretion, grant, upon the basis of our above reasoning, an extension of time to appeal.

Leave to Appeal 96Section 188 of the IR Act requires leave of the Full Bench to appeal. That provision provides: 188 Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister. 97The appellant submitted leave is only granted where substantial issues of law having wider implications for the jurisdiction of the Court are involved. In that regard, the appellant contended Marks J erred on two substantial issues of law that potentially have wider implications for superannuation appeals involving the SASS: regarding the question of statutory interpretation of s 39(1)(b) of the SAS Act involving the onus of proof on a litigant seeking benefits; and, secondly, his Honour was outside the bounds of "sound judicial discretion" with relation to the extension of the time limitation found in s 88 of the SA Act. 98The respondent submitted leave to appeal should be refused. No issues of general importance or principle, it contended, were raised in the appeal. With regard to the discretionary decision re the extension of time, the respondent submitted the applicable principles are well known and established and that no wider implications of jurisprudence arose, nor did his Honour's decision create a precedent applicable to other cases. 99The respondent further submitted, where leave to appeal is sought seeking clarification of a point of law relevant to the operation of the scheme generally and having wide implications, it should only be granted on condition that it pays the respondent's costs of the appeal and undertakes not to disturb the cost orders below: SAS Trustee Corporation v Hazlewood (No 2) [2010] NSWIRComm 8. Such an application for costs is made in the alternative. 100We consider that the principal issues on this appeal raise "substantial issues of principle or law or has wider implications for the jurisprudence of the Commission" (Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 (at 382); Strathfield Group Ltd v Hall [2002] NSWIRComm 373; (2002) 121 IR 158 at [45]; Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263 at [5]). 101There was a question of statutory interpretation raised in this appeal, given his Honour's expressed view of the shifting onus in the consideration of a s 39(1)(b) application. The issue is of such importance that we accept it was in the public interest for the Full Bench to grant leave to appeal. Further, the appeal has consequences for the proper administration of the State Superannuation Scheme. Leave to appeal is granted. 102We have found error in his Honour's findings as to onus and the exercise of the discretion to extend time. However, in our view, these errors did not result in his Honour reaching an incorrect view as to the merits of the application to extend time or the principal matter before him. In the result, it is inappropriate to uphold the appeal. 103We have considered the costs application made on appeal by the respondent. We accept the STC, being a statutory authority, is in a comparable position to the entities referred to by the High Court in Oshlack v Richmond River Council (1998) 193 CLR 72. As was held by McHugh J in that matter a party may be required to undertake the costs of the other party to an appeal where (at 100): ... the applicant is a person, such as the Commonwealth, the Commissioner of Taxation or a large insurance company, which itself has a direct interest in ascertaining the legal principle at issue in order to provide itself with guidance in respect of its future dealings. 104However, given the respondent has, as a result of this appeal, succeeded in sustaining the orders made by Marks J but we have found error in part of his Honour's reasoning as to the proper interpretation of a statutory provision, we consider that a proper balancing of the costs application should result in each party paying their own costs on appeal.

Orders 1.Leave to appeal is granted. 2.The appeal is dismissed. 3.The Orders of Marks J are confirmed. 4.Each party shall pay their costs of the appeal. 5.The stay ordered 17 June 2011 is lifted.

Amendments 26 March 2012 - Update counsel details Amended paragraphs: Representation 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: 26 March 2012

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Cases Cited (22)