SAS Trustee Corporation v Patterson

SAS Trustee Corporation v Patterson - [2010] NSWCA 167 - NSWCA 2010 case summary — Zoe

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(a) a member of the police force who is discharged after being certified, pursuant to section 10B (1), to be incapable, from a specified infirmity of body or mind, of discharging the duties of the member's office, or (b) a former member of the police force who resigned or retired and who, according to a certificate given pursuant to section 10B (2) at any time after the member's resignation or retirement, would have been incapable, from an infirmity of body or mind, of discharging the duties of the member's office at the time of the member's resignation or retirement, that infirmity being determined, pursuant to section 10B (3) or on appeal, to have been caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be. retired includes discharged as referred to in section 7 or 14. (1A) Subject to this section, the annual superannuation allowance for a disabled member of the police force is: (a) an amount that is equal to 72.75 per cent of the member's attributed salary of office, (b) except where paragraph (c) applies, an additional amount that is: (i) not more than 12.25 per cent of the member's attributed salary of office, and (ii) commensurate, in the opinion of STC, with the member's incapacity for work outside the police force, and (c) if the disabled member is totally incapacitated for work outside the police force and, in the opinion of STC, the member was hurt on duty because the member was required to be exposed to risks to which members of the general workforce would normally not be required to be exposed in the course of their employment, an additional amount that is: (i) not less than 12.25 per cent and not more than 27.25 per cent of the member's attributed salary of office, and (ii) commensurate, in the opinion of STC, with the risks to which the member was so required to be exposed, multiplied by the equivalent service ratio of the member as at the date of the member's discharge, resignation or retirement.

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10B Medical examination of disabled member and determination of whether hurt on duty (1) An annual superannuation allowance shall not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of discharging the duties of the member's office. (2) An annual superannuation allowance shall 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, (a1) where the regulations so require, the notification was in or to the effect of the prescribed form, and (b) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member would have been incapable, from that infirmity of body or mind, of discharging the duties of the member's office at the time of the member's resignation or retirement. (2A) STC may certify that a member of the police force is incapable of discharging the duties of the member's office only if the member is incapable of discharging the duties of the office in the police force in which the member is then employed and also any other office in the police force: (a) which is available to the member, (b) which is not lower in rank than the office in which the member is then employed, and (c) in which it would be reasonable to expect the member to be employed. (2B) STC may certify that a former member of the police force would have been incapable of discharging the duties of the member's office if the member would have been incapable of discharging the duties of the office in the police force in which the member was employed at the time of the member's resignation or retirement and also any other office in the police force: (a) which was available to the member at that time, (b) which was not lower in rank than the office in which the member was then employed, and (c) in which it would have been reasonable to expect the member to have been employed.

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(2C) In this section: medical advice means the advice of: (a) 2 members of the Police Medical Board, or (b) any one or more medical practitioners nominated by the STC. (3) Where a member or former member of the police force is duly certified under subsection (1) or (2), the Commissioner of Police shall: (a) decide whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be, and the date or dates on which the member or former member was hurt on duty, and (b) give the member or former member written notification of the decision." 9 Section 10 deals with superannuation allowances where the member was hurt on duty. Section 10B concerns the prerequisites for an allowance or gratuity under s 10 to a member or former member of the police force, including certification of hurt on duty. 10 It was common ground that once the Commissioner gave a certificate as to Mr Patterson's infirmities being caused by his being hurt on duty, subsections 10B(2) and (3) were satisfied and Mr Patterson fell within the definition of a "disabled member of the police force" for the purposes of s 10(1). 11 Following that certification, the STC commenced paying Mr Patterson a hurt on duty pension at the rate of 72.75 per cent of his attributed salary being the allowance provided for under the Act, s 10(1A)(a). 12 In November 2005, Mr Patterson gave instructions to his solicitor to make an application for an additional amount of the pension referred to in the Act, s 10(1A)(b). 13 Prior to 30 June 2006, the terms of the Act, including the terms of s 10, did not expressly require a member to apply for an additional allowance under s 10(1A)(b). Once a member fell within the definition of "disabled member of the police force", he or she became eligible and entitled to receive benefits under s 10(1A)(a) and (b), subject to the operation of those provisions. The allowance described by (b) involved the formation of an opinion by the STC; the allowance in (a) did not. The evidence before the primary judge was that in the administration of the Scheme, the STC generally only considered the question of an additional amount under s 10(1A)(b) if a member made an application for it. 14 On 30 June 2006, the Superannuation Legislation Amendment Act 2006 (NSW) ("the Amending Act") came into force inserting subsection (1BA) into s 10 after subsection (1B) and before subsection (1C). Section 10 (1BA) was in the following terms: "A superannuation allowance referred to in subsection (1A) or an additional amount of a superannuation allowance referred to in subsection (1D) is not payable to a disabled member of the police force unless an application for payment of the allowance or additional amount concerned is made: (a) before the member reaches the age of 60 years, or (b) not later than 5 years after the member resigns or retires, whichever is the later." 15 One can see immediately that s 10(1BA) introduced two qualifying elements not previously present in s 10: (a) the need to make an application for payment; and (b) a time constraint on making that application. 16 The decision of the primary judge and the issue on appeal centred upon the meaning of s 10(1BA) and whether its terms disentitled Mr Patterson from succeeding in any application for an additional amount under s 10(1A)(b). 17 The relevant facts which potentially brought s 10(1BA) into play can be shortly stated. Mr Patterson was born in early 1946. He turned 60 in early 2006. The fifth anniversary of the retirement of Mr Patterson from the force was 5 July 2006. It was not until 17 April 2008 that Mr Patterson applied for an additional amount of superannuation allowance under s 10(1A)(b). Thus, if s 10(1BA) applied to Mr Patterson's position, the additional allowance was not payable (he having turned 60 and more than five years having passed since he was discharged). This position was subject only to the operation of s 16A of the Act which gave the STC a discretion to accept a late application. The terms of s 16A were as follows: "16A Late elections, applications and choices

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(3) STC may deal with the election, application or choice accepted under this section as if it had been made or received within the required time." 18 The learned primary judge came to the conclusion that, by reason of his circumstances as at 30 June 2006, Mr Patterson had a form of accrued right to an allowance under the Act, s 10 such that if s 10(1BA) were to have the operation contended for by the STC that accrued right would be destroyed. Thus, her Honour concluded that the Amending Act should be construed in accordance with the Interpretation Act 1987 (NSW), s 30(1)(c) as not affecting any such right acquired or accrued before the date of its operation. Her Honour was of the view that the Amending Act and s 10(1BA) should not be taken as exhibiting an intention contrary to this and so the Amending Act should not be construed as intending to apply to persons in the position of Mr Patterson. 19 It was accepted by the STC in argument before us that Mr Patterson had a species of accrued right. 20 It is not necessary for the disposition of this appeal to deal with the nature and manner of acquisition or accrual of rights under the Act, s 10 beyond the position of Mr Patterson. Before 30 June 2006, he fully satisfied the definition of "disabled member of the police force" under s 10(1), having satisfied all the requirements of s 10B, there having been relevant certifications under s 10B(2) (as to infirmity) and s 10B(3) (as to hurt on duty). 21 Mr Patterson was therefore entitled to an amount under s 10(1A)(a). He was entitled also to have the STC consider his position and form an opinion, according to law, under s 10(1A)(b). The Act as it existed prior to 30 June 2006 did not require him to apply for either allowance under s 10(1A)(a) and (b). Given the matters the subject of s 10(1A)(b)(ii) it is understandable, however, that the STC would not embark on forming any opinion without having material from the member as to his or her incapacity. There was, however, no statutory requirement for the member to make application. The right of someone in Mr Patterson's position under s 10(1A)(b) was not one which gave him a present entitlement to receive any particular sum calculated by reference to any given percentage; but rather, such a person had an existing right to have the STC consider his or her circumstances and form an opinion as to the matters in s 10(1A)(b) and thereafter pay him any sum conformable with the opinion thus formed. 22 Section 30(1)(c) of the Interpretation Act is in the following terms: "30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not: …

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(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule …" 23 Mr Patterson undoubtedly had prior to 30 June 2006 a species of acquired or accrued rights sufficient to engage the Interpretation Act, s 30(1)(c); so that unless legislation revealed a contrary intention it would not be construed as affecting the accrued or acquired rights. See also the principles in cases such as Maxwell v Murphy [1957] HCA 7; 96 CLR 261 at 285; Rodway v The Queen [1990] HCA 19; 169 CLR 515 at 518-519; and Victrawl Pty Ltd v Telstra Corporation Ltd [1995] HCA 51; 183 CLR 595 at 615. 24 It was submitted on behalf of the STC that her Honour erred in failing to construe the Amending Act and s 10(1BA) as exhibiting a contrary intention sufficient to overcome the effect of the terms of the Interpretation Act, s 30(1)(c). It was submitted that s 10(1BA) was directed to retrospectivity. It was submitted that the conjunction "or" appearing twice in the section made it clear that s 10(1BA) covered persons such as Mr Patterson who had a base pension already, but who did not have, as yet, any additional allowance pursuant to s 10(1A)(b). 25 I reject the submission of the STC. The use of the word "or" and the general text and structure of the Amending Act are insufficient to indicate that Parliament was directing itself to the position of persons with a accrued entitlement to allowances under the Act. The use of the word "or" in particular is not conclusive. It can be taken as providing for the future and for persons who thereafter become otherwise entitled to apply for an allowance (the condition of application now being introduced). Nothing in the terms of the Amending Act or s 10(1BA) reveals an intention to affect accrued rights. I see nothing to the contrary of the position called for by the Interpretation Act, s 30(1)(c). 26 That s 10(1BA) does not operate and was not intended to operate in the manner contended for by the STC can be seen from the potentially capricious and arbitrary operation that would obtain if s 10(1BA) applied to persons in Mr Patterson's position. Mr Patterson only had 5 days after the commencement of the Amending Act on 30 June 2006 to lodge his application if s 10(1BA) applied to him.

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