SAS Trustee Corporation v Colquhoun

HEADNOTE [This headnote is not to be read as part of the judgment] The respondent resigned from the police force on 14 December 1993. In 2012 he applied for an annual superannuation allowance pursuant to s 10 of the Police Regulation (Superannuation) Act 1906 (NSW). On 1 March 2019 a District Court judge determined that at the time of his resignation he was incapable of performing the duties of his office due to anxiety/depression. On 18 March 2020 the Commissioner of Police determined that that infirmity was caused by his having been hurt on duty. He was therefore entitled to be paid a pension under the Act. On 18 February 2021 the respondent (SAS Trustee Corporation, "STC") decided that the commencement date for the pension should be the date it received the application. Section 9A(4) of the Act provides that the pension is payable from the date of lodgement of the application or such earlier date as STC may determine if satisfied there are exceptional circumstances that merit its so doing. On further application STC declined to backdate the pension. On a de novo appeal from that decision to the District Court, a District Court judge held that he was satisfied exceptional circumstances existed that merited the backdating of the pension by ten years (approximately half the period of backdating sought). The STC appealed on a point of law contending that the only exceptional circumstances to which regard could be had were those which might explain the delay in lodging the application. The Court held (White JA (at [35]-[41]), Meagher JA and Griffiths AJA agreeing (at [1], [55])) that nothing in the text, context or purpose of the legislation warranted such a restricted meaning. In oral submissions the STC argued that the judge provided no logical basis for backdating the allowance by ten years. The Court held (White JA (at [50]-[53]), Meagher JA and Griffiths AJA agreeing (at [1], [55])) that the STC had not demonstrated an error in point of law.

JUDGMENT

1. MEAGHER JA: I agree with White JA.
2. WHITE JA: This is an appeal from a determination by a District Court judge (Kearns ADCJ) in the exercise of the District Court's compensation jurisdiction that the respondent's entitlement to an annual superannuation allowance under s 10 of the Police Regulation (Superannuation) Act 1906 (NSW) ("the Act") be backdated 10 years before the date of his application (Colquhoun v SAS Trustee Corporation, District Court (NSW) Kearns ADCJ,16 December 2021).
3. For the reasons which follow I would dismiss the appeal.
4. The respondent, Mr Thomas Colquhoun, is a former member of the NSW Police Force. He was attested a probationary constable on 19 September 1973 and resigned on 14 December 1993 with the rank of Senior Sergeant.
5. On 21 August 2012 the respondent applied for an annual superannuation allowance pursuant to s 10 of the Act as a "disabled member of the police force". The application was received by the appellant on 24 August 2012.
6. Section 10(1) relevantly defines a "disabled member of the police force" to include: "… (b) a former member of the police force who resigned or retired and who, according to a certificate given pursuant to section 10B (2) at any time after the member's resignation or retirement, was incapable, from an infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member's resignation or retirement" [1]
7. Section 10B(2) and (3) relevantly provide: "(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. … (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."
8. The "STC" referred to in s 10B(2)(c) is the appellant, SAS Trustee Corporation.
9. No issue arose in relation to the requirements under s 10B(2)(a) or (2)(b). On 30 or 31 July 2015 the appellant decided to decline the respondent's application on the basis that s 10(2)(c) of the Act was not satisfied.
10. Section 21(1) of the Act provides: "(1) A person who considers himself or herself aggrieved by: (a) a decision made by STC on a matter that arises under this Act by reason of a member of the police force being hurt on duty, or (b) a decision made by the Commissioner of Police under section 10A (1), 10B (3) (a), 12C (1), 12C (2) or 12D (4) (a), may, within the period of 6 months after the person is notified of that decision, apply to the District Court for a determination in relation to that decision. … (4) The District Court, after considering an application under this section, may make a determination that the decision of STC or the Commissioner of Police, as the case may be, in respect of which the application was made: (a) be confirmed, or (b) be set aside and replaced by a different decision made by the District Court."
11. The hearing under s 21 is a hearing de novo (Daley v SAS Trustee Corporation (2016) 92 NSWLR 525; [2016] NSWCA 111 at [50]). On 19 March 2019, Quirk ADCJ made the following orders: "1. I set aside the determinations of the defendant made on 31 July 2015 and 18 August 2016. 2. I replace those determinations with an order certifying that pursuant to s 10B(2) of the Act, that the plaintiff was incapable of performing his duties of office at the time of his resignation, due to the infirmity of anxiety/depression." (Thomas Colquhoun v SAS Trustee Corporation, 19 March 2019, Quirk ACDJ, no medium neutral citation). [2]
12. On 18 March 2020, the Commissioner of Police by his delegate determined, pursuant to s 10B(3) of the Act, that the respondent's infirmity of "anxiety/depression" was caused by the member's having been hurt on duty.
13. Section 9A of the Act provides: "9A Commencement of pension (1) Where an annual superannuation allowance is granted under this Act to a member of the police force who retires, the allowance is payable as from the day that next succeeds the day on which the member retires. (2) (Repealed) (3) Where an annual superannuation allowance is granted under this Act in consequence of the death of a member, or a former member of the police force, the allowance is payable as from the day that next succeeds the day of his or her death. (4) An annual superannuation allowance granted under section 10 to a former member of the police force who resigned or retired is, subject to this Act, payable as from: (a) the date the former member lodged the application for the allowance that was determined by STC certifying the matters referred to in section 10B (2) (b), or (b) such earlier date as STC may determine if STC is satisfied that there are exceptional circumstances that merit STC doing so."
14. In his application of 21 August 2012, the respondent marked the box "No" in answer to the question, "Are you seeking to have the pension commence from a date that is earlier than the date of the application?".
15. On 18 February 2021 the appellant decided that the respondent's pension commencement date was to be 24 August 2012, the date on which the appellant received the respondent's application.
16. The primary judge recorded that on 2 November 2020 the respondent applied to have his pension backdated to the day after his resignation, that is, 15 December 1993. That application was rejected. The appellant filed a further application under s 21 of the Act to the District Court to set aside the decision of the appellant refusing his backdating application. No issue was taken before the District Court as to whether the application for the backdating of the annual superannuation allowance was a new application under s 10 and out of time (s 10(1BA)). Nor was that issue raised on appeal.
17. On 16 December 2021 the primary judge made the following determination: "1. Set aside the decision of the defendant [appellant] made on 18 February 2021. 2. Determines pursuant to s 9A(4)(b) of the Act that the date from which the annual superannuation allowance granted to the plaintiff is to be 24 August 2002. 3. Orders the defendant to pay the plaintiff's costs as agreed or assessed."
18. The appellant appeals pursuant to s 142N of the District Court Act 1973 (NSW). The proceedings before the District Court were in what is now called its "compensation jurisdiction" (District Court Act 1973 s 142G(c)). The appeal lies to this court, relevantly, where the party "…is aggrieved by an award of the Court in point of law" (s 142N(1)). The point of law is the subject matter of the appeal (SAS Trustee Corporation v Arthur Cox [2011] NSWCA 408 at [82] and cases there cited; see also Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [3]-[6], [22]).

Primary Judge's Reasons

1. After setting out some of the history of the matter and referring to the reasons of Quirk ADCJ, the primary judge said that it was "useful to look at the plaintiff's working conditions that resulted in his medical condition and incapacity to perform his work duties". His Honour listed twenty such matters.
2. The first four concerned stress or trauma that the respondent suffered in the 1970s and early 1980s such as attending a fatal plane crash at Cooma, where the pilot, whom the respondent knew, and two passengers were killed in gruesome circumstances; and a period in the early 1980s when he was subjected to "five fatals in five days" which were highly stressful and resulted in his suffering nightmares, flashbacks, drinking heavily, smoking, and becoming dependent on codeine.
3. Matters five to 18 related to stress the plaintiff suffered following his making of complaints against two former police officers who were on the board of the Lake Macquarie Police Citizens Youth Club, where he was stationed to work. The directors in question were a Mr Richard Smith, a former police superintendent, and Mr Richard Face, a local Member of Parliament, and a Minister. The primary judge found that the respondent became the subject of persecution, harassment and false complaints. The persecution, harassment and false complaints were described by the primary judge in some detail to which it is unnecessary to refer. Mr Smith wrote to the Ombudsman complaining that the investigations into the Lake Macquarie Police Citizens Youth Club were vexatious but the Ombudsman declined to investigate that complaint, nor a complaint made by Mr Face. Rather, the Ombudsman advised Messrs Smith and Face that there were reasons to investigate the Lake Macquarie PCYC and there was no prima facie evidence to support their allegations against the respondent.
4. The matters identified by the primary judge included subsequent conduct by Mr Face, including the asking of questions in Parliament that the primary judge said could only be described as vindictive and part of a campaign conducted by Mr Face against the respondent and a highly critical and unfair article in the Newcastle Herald published on 19 November 1993 that Quirk ACDJ inferred was based on information provided to that newspaper from Mr Face and/or Mr Smith. (The article detailed complaints made by these two men but did not mention that the complaints had been investigated by a number of people including the Ombudsman and, as a result of the investigations, no action was taken against the respondent).
5. Also included in the twenty matters was that the respondent had been harassed after his resignation by being asked to attend the Charlestown Police Station to answer an allegation made by Mr Face that the respondent had falsely claimed to be a Justice of the Peace, whereas he was in fact a Justice of the Peace; and extensive delays in processing the respondent's application for a security licence which it could be inferred arose from a complaint made by Mr Face to the then Minister for Police and Emergency Services concerning the application.
6. The primary judge then dealt with the evidence as to the effect of these matters on the respondent's mental condition that led up to his making a snap decision on 14 December 1993 to resign. The primary judge recorded that, after he resigned, the respondent felt relieved but depressed. He felt he could not work for about eight months. Because of his changed financial circumstances he sold the family home. After resigning he continued to suffer from anxiety, feelings of shame and depression. His attempts to start work before August 1994 were unsuccessful. After 1994 he undertook some taxi driving. He put on weight and in 2003 he weighed 155kg. The primary judge found that, in 2007, the respondent stopped driving taxis and employed drivers. In 2010 he sold his taxi plates and commenced work driving special needs children. He did not think he was entitled to a pension because he had resigned and did not appreciate he could seek a pension until he saw a solicitor. The primary judge inferred that he saw a solicitor not long before the application was made on 21 August 2012.
7. The primary judge then addressed the question of whether there were exceptional circumstances that warranted the backdating of the superannuation allowance. He was satisfied that 16 of the 20 circumstances that he had previously identified were such exceptional circumstances. His Honour said: "I consider they are exceptional circumstances for the purposes of the section. They were exceptional circumstances that resulted in the plaintiff's medical condition that rendered him unfit for his duties. There were exceptional circumstances not simply in the fact that they caused the plaintiff's medical condition, but also in the timing of it. As the enquiry, or one of the enquiries, under the section concerns the time from which the annual superannuation allowance should be paid, it is relevant in my view to enquire when the special circumstances caused the entitlement to arise, if they did. That being the case, I am satisfied that there are exceptional circumstances that justify this Court determining a date earlier than when the application for the allowance was lodged."
8. Exceptional circumstances being established to his satisfaction, the primary judge then addressed the question as to whether the discretion to backdate the time from when the superannuation allowance should be paid should be exercised and, if so, to what earlier date. His Honour determined that the period for which the allowance should be paid should be backdated by 10 years (approximately half the backdating period sought).
9. None of the "exceptional circumstances" identified by the primary judge as justifying the determination of an earlier date were matters which might explain the respondent's delay in filing his application.

Grounds of appeal

1. The appellant's grounds of appeal are as follows: "1. The trial judge erred in law in the interpretation and application of s.9A(4)(b) of the Police Regulation (Superannuation) Act 1906: a) by interpreting the "exceptional circumstances" to apply broadly to various considerations; and b) by failing to interpret and apply the statutory provision in a way so that "exceptional circumstances" were only those matters which might explain the claimant's delay in filing an application. 2. The trial judge erred in law in the application of s.9A(4)(b) of the Police Regulation (Superannuation) Act 1906 by determining that an order should be made after applying the statutory power on the basis of irrelevant considerations."
2. In its written submissions the appellant said: "The error 44. The trial judge erred in law by interpreting "exceptional circumstances" to include a range of matters other than those which might explain Mr Colquhoun's delay in lodging his application for an allowance. By doing so, the trial judge took into account irrelevant considerations."
3. On the face of the notice of appeal, when read with the appellant's written submissions, the only point of law raised by the appeal is whether, in applying s 9A(4)(b) of the Act, the appellant (or a judge of the District Court standing in its place) can only have regard to matters which might explain the claimant's delay in filing an application. In raising a point of law the appellant must contend, and it does contend, that the circumstances identified by the judge were irrelevant, in the sense that they were considerations the primary judge was not entitled to take into account as exceptional circumstances because they did not explain the delay in filing the application: that is, they were forbidden.

Consideration

1. A judge, in exercising jurisdiction under s 21 of the Act, is placed in the position of the decision-maker (doubts about that question that arise from Swift v SAS Trustee Corporation [2010] NSWCA 182 were resolved by SAS Trustee Corporation v Arthur Cox). There is no doubt that circumstances explaining, or relevant to, the delay in making the application would be relevant and might be decisive. The issue raised by at least ground 1, and in my view by both grounds of appeal, is whether those are the only considerations the appellant or, on an application to the District Court, the District Court can consider.
2. To answer this question, the legislative history of s 9A(4) is relevant.
3. Section 9A(4) was amended in 2006 by the Superannuation Legislation Amendment Act 2006 (NSW) sch 1, item 1.2 [4]. Prior to that amendment s 9A(4) provided: "(4) Where an annual superannuation allowance is granted under section 10 to a former member of the police force who resigned or retired, the allowance is payable as from the day determined by STC for that purpose."
4. This was a wider discretion than that now provided for by s 9A(4). There were no constraining circumstances except those which would arise from the context and purpose of the Act considered as a whole. Under the former provision there would be no reason why the STC could not have considered matters such as the circumstances which gave rise to the former member's incapacity, or his or her financial circumstances, in deciding the date from which an allowance should be payable.
5. The 2006 amendments created a default position that unless the STC exercised the discretion provided by s 9A(4)(b), the allowance would be payable from the date of the application (s 9A(4)(a)). The amendment removed the potential for the STC to determine that the allowance might be payable only after the date of the application, but provided that the STC could only determine that the allowance would be payable at a date earlier than the date of the application if it were satisfied that there were exceptional circumstances. For a circumstance to be exceptional, it must not be a circumstance regularly, routinely or normally encountered, but it does not have to be unique, unprecedented or very rare (R v Kelly [2000] QB 198 at 208; Baker v The Queen (2004) 223 CLR 513; [2004] HCA 45 at [173]-[174] per Callinan J). It is the infrequency of the occurrence of the circumstance that renders it exceptional.
6. Having regard to the legislative history of s 9A(4) this suggests no narrowing of the range of circumstances that the appellant could consider in determining whether an application should be backdated from those that could be considered before the 2006 amendments, except by the requirement that the STC be satisfied that the circumstances meriting the backdating of the allowance be exceptional. We were not referred to any extrinsic material to suggest a legislative intention that the range of circumstances to be considered was to be narrowed, otherwise than by reason of the need for such circumstances to be considered to be exceptional.
7. The appellant did not challenge the judge's finding that the sixteen matters he identified were exceptional circumstances. [3] Rather the appellant contended that they were irrelevant circumstances.
8. There is nothing in the text of the legislation that warrants the restricted meaning of "exceptional circumstances" for which the appellant contends. The appellant submits that its proposed construction is preferable having regard to the context and purpose of the legislation.
9. The authority of STC, or the District Court standing in its place, under s 9A(4)(b) does not depend on whether, as a matter of objective fact, exceptional circumstances exist, but whether it is satisfied that exceptional circumstances exist that merit its determining that the allowance be payable from a date earlier than the date of lodgement of the application.
10. In Baker v The Queen, Gleeson CJ said (at [13]) that: "There is nothing unusual about legislation that requires courts to find 'special reasons' or 'special circumstances' as a condition of the exercise of a power. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors." (Footnote omitted).
11. The same can be said of the administrative discretion conferred by s 9A(4)(b) that the STC (or the District Court standing in its place) be satisfied that there are exceptional circumstances that merit the backdating of the allowance. For example, I see no reason why the STC could not consider the fact that a former member was injured in circumstances of exceptional heroism to be an exceptional circumstance that warranted backdating an allowance.
12. For these reasons I would reject the grounds of appeal.
13. In oral submissions, counsel for the appellant contended that ground 2 (quoted above at [28]) was not merely a corollary of ground 1 (as the appellant's written submissions indicated) but was a free-standing ground which challenged the primary judge's exercise of his discretion to backdate the allowance by ten years having found that exceptional circumstances existed that merited a backdating.
14. I do not read the grounds of appeal that way. If they are to be so read, the grounds conspicuously fail to identify the point of law that the appellant would seek to raise as the subject matter of the appeal.
15. Nor did the appellant's written submissions identify any such error.
16. The primary judge's reasons on the exercise of his discretion were: "Although the exceptional circumstances justify the determination of an earlier date, it does not necessarily follow that an earlier date must then be determined because there are other factors to be taken into account that affect the discretion that must be exercised in determining whether there should be an earlier date, and if so, what that date should be. I understood the parties to be in agreement on this position and it seems to me to arise from the wording of the section. The section does not demand that an earlier date be determined if exceptional circumstances are established. It provides that an earlier date may be determined. I take into account the following matters: 1. In SAS Trustee Corporation v Arthur Cox [2011] NSWCA 408 it was held That [sic] the current legislation provides a stricter regime than earlier legislation concerning the commencement of the allowance. 2. The exceptional circumstances caused the plaintiff's medical condition and its ongoing sequelae. 3. The sequelae include his inability to carry out any of his duties as a police officer and several other forms of occupation. 4. The sequelae prevented him from carrying out any meaningful occupation for a time after he resigned. 5. Had he applied for the allowance from the outset, he would have been eligible for it from his resignation or at least from the day he made [sic] application. In Cox, the Court of Appeal held that the trial judge was in error in taking that fact into account. This case is distinguishable from Cox. In Cox the evidence did not support the officer's entitlement to allowance from resignation and accordingly the trial judge got that fact wrong. The relevant legislation as to entitlement was different. In Cox when the officer resigned, he was fit for the restricted duties he was undertaking at that time. By reason of the unchallenged findings in the Quirk judgement, the plaintiff has at all times since his resignation been unfit for any of his duties as a police officer. 6. By reason of the changed financial circumstances following resignation, the plaintiff had to sell the family home, to which he and his wife were attached, and buy a cheaper home. 7. There has been extensive delay by the plaintiff in making his application. The plaintiff offers ignorance of his rights as the explanation for the delay. That explanation is not entirely satisfactory. It is not entirely satisfactory because the plaintiff says he was originally told of his rights by a former colleague, but he does not offer any evidence as to when that was. Further, having been told of his rights, he did not then act promptly. He says that was because he was sceptical of what he was told. That in itself does not justify inaction. 8. The plaintiff then offers no evidence of how long it was before his scepticism ceased to cause his inactivity, nor what it was that caused him to see a solicitor. The court has no way of knowing how long it was between being told of his rights by his former colleague and his then seeing a solicitor. Nor does the evidence reveal what it was that caused him to see the solicitor and why that could not have been done sooner. 9. Further, there is no explanation as to why, when the application was lodged, a retrospective commencement date was not sought. None of these matters is definitive or determinative. In the circumstances, I do not think a commencement date from the date of resignation is appropriate. That would give no weight at all to the long delay or the initial decision to not seek a retrospective date. The section does not require the fixing of a date that is referenced to some particular date in the evidence, such as the date of resignation, the date of changed medical or financial circumstances, the date of changed employment circumstances. It seems to me that the section allows for taking into account the whole of the circumstances and fixing a date that best accommodates all the circumstances. I think in this case it is appropriate that the allowance should reflect generally a period after resignation and after the plaintiff commenced driving taxis, but before he began to operate his taxi business. I think in the circumstances a period of ten years is reasonable. Accordingly, I propose a commencement for the allowance to be 24 August 2002."
17. The appellant challenged the adequacy of the findings at paras numbered 3 and 4 above. The appellant's evidence was that he took up work as a taxi driver, that he purchased his taxi plates in 1996 and that his taxi business evolved into a business in which he had a contract for transportation of special needs children that was profitable. This was a challenge to findings of fact and raises no point of law.
18. The appellant submitted that the primary judge's reasons provided no logical basis for backdating the allowance by ten years to 2002, as his Honour's reasons would only support a backdating for the period it took the respondent to re-establish himself in his taxi or later business, which was much less than ten years.
19. The submission is flawed for three principal reasons.
20. First, the submission does not identify a point of law. The appellant submitted that the primary judge's decision revealed a House v The King (1936) 55 CLR 499; [1936] HCA 40 error. If that be so, it is not necessarily on that account an error of law.
21. Secondly, on the basis of the determination of Quirk ADCJ, had the respondent applied for the allowance he would have been entitled to it from the time of his resignation. The fact that he later earned other income, even if it were substantial, would not have disentitled him from receiving the allowance. Therefore, the time from which he earned substantial income after his resignation would not be expected to be determinative of whether his allowance should or should not be backdated.
22. Thirdly, some of the matters listed by the primary judge were reasons for not backdating the allowance (reasons 7, 8 and 9), three were a reason for doing so (reasons 3, 4 and 6) and three were neutral (reasons 1, 2 and 5). Weighing up all of those matters the judge determined that the respondent's allowance should be backdated by ten years, which was about half of the period he sought. The primary judge did not assess the period of backdating by reference to the period the respondent was out of employment. Nor was he required to do so. The question is not whether the primary judge's determination would be reviewable on an appeal by way of rehearing, but whether he erred in point of law (if the appellant should be permitted to rely on the asserted error).
23. In my view, the appellant has not demonstrated any such error.
24. For these reasons I propose that the appeal be dismissed with costs.
25. GRIFFITHS AJA: I agree with the orders proposed by White JA and with his Honour's reasons.

Endnotes

1. Unless otherwise indicated, references to the Act are to its provisions as in force on 24 August 2012 (SAS Trustee Corporation v Arthur Cox [2011] NSWCA 408; (2011) 285 ALR 623 at [72]-[80] (McColl JA) and [141]-[144] (Campbell JA, Sackville AJA agreeing); Day v SAS Trustee Corporation [2021] NSWCA 71 at [2]).
2. The determination of Quirk ADCJ was made on the basis of the Act as it stood at the time of the respondent's resignation rather than at the time of his application for an annual superannuation allowance. No issue arises about that.
3. A challenge to that finding would not raise a question of law, if the finding were reasonably open: New South Wales Associated Blue-Metal Quarries Ltd v Commissioner of Taxation (1956) 94 CLR 509 at 512; [1956] HCA 80; Hope v Bathurst City Council (1980) 144 CLR 1 at 8; [1980] HCA 16; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FLR 280 at 288; [1993] FCA 456.

Amendments 21 September 2022 - Correction to coversheet under "Decision under appeal" 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: 21 September 2022