Conclusions
48 The appellant's entitlement to an allowance depended upon satisfying the STC that he qualified in the terms set out in the statutory criteria. He succeeded in that respect. As the primary judge held, the STC had an unfettered discretion in fixing the date from which the allowance should be payable. It erred in addressing that question, the legal error being corrected on appeal.
49 The most likely options were the date of the determination, the date of the application or the date of the appellant's retirement. The primary judge adopted the second. It was not an arbitrary date, as the allowance could not have been granted absent an application from the appellant. The primary judge gave careful consideration to the question why no application had been made at the date of retirement. That was undoubtedly a permissible consideration. The choice was made on the basis of established fact and taking into account the submissions made on behalf of the appellant. The selection was not attended by legal error. Accordingly, it is not necessary to consider whether error, if identified, would engage the powers of this Court under s 142N of the District Court Act. Nor is it necessary to consider the privative effect of s 142J.
50 The appeal must be dismissed with costs.
51 YOUNG JA: This is an appeal from a decision of His Honour Judge C Armitage of the District Court who dismissed the appellant's claim in that Court's Special Statutory Compensation list that his pension as a former police officer should be backdated to 5 November 1981 rather than the date of 1 March 2004 as determined by the respondent.
52 The Police Regulation (Superannuation) Act 1906 (to which I will simply refer as "the Act") by section 10B, in the events which have happened operates so that if a police officer retires after being injured at work and then, years later, makes application for a benefit under the legislation, if certain conditions are met, the most significant being that two government appointed medical officers give the appropriate certificate, the pension is payable to the officer.
53 It is common ground that the appellant is entitled to a pension. The question at issue is from what date should the pension be paid.
54 The respondent, as trustee of the relevant fund determined that the pension should be payable back dated to the date of application namely 1 March 2004.
55 Section 9A(4) of the Act as at 2004 relevantly provided that the respondent was to determine the date from which the pension was payable. A later amendment restricted the respondent's discretion so that it could back date the pension to the date of application but could only back date it to operate from an earlier date if it were satisfied that there were exceptional circumstances meriting that approach.
56 The respondent applied the later legislation and found that there were no exceptional circumstances.
57 The primary judge decided that the former legislation should have been applied. There is no appeal from that decision. However, the primary judge also held that in exercising the jurisdiction under the former provision, the trustee should have reached the same result. The decision of the respondent was confirmed. However, in view of the appellant's success on one of the major points argued, he made no order as to costs.
58 The appellant challenges that determination and again submits before this Court that the proper determination would have been to back date his pension to the date of his resignation, namely 5 November 1981.
59 The primary judge considered the evidence and submissions before him and confirmed the respondent's determination.
60 The appeal was heard on 15 April 2010, Mr P Dodson of counsel appearing for the appellant and Mt T Ower of counsel for the respondent. Mr Dodson did not appear before the primary judge.
61 Before dealing with the merits of the appeal, it is necessary to spend a little time dealing with the nature of the appeal.
62 These proceedings come before the District Court are under the residual jurisdiction of the District Court as a result of the operation of the Compensation Court Repeal Act 2002.
63 This appeal is pursuant to s 142N of the District Court Act 1973 which gives a right of appeal to a party who is aggrieved by an award of the District Court in point of law to appeal to this Court.
64 The first matter to consider is whether the appellant can properly be said to be a person aggrieved by the award made by the judge in point of law.
65 This formula is different to those used in other pieces of legislation governing appeals. It has been briefly examined in recent cases in this court, but never exhaustively explained; see eg Day v SAS Trustee Corporation [2009] NSWCA 222 and SAS Trustee Corporation v Pearce [2009] NSWCA 302.
66 In order to decide this point, one needs to see what the primary judge was asked to do and what was the ambit of his authority to look at appropriate material to decide the question.
67 Both counsel proceeded with this appeal on the basis that the judge was called upon to make the decision that the respondent as quasi trustee of the relevant fund should have made. The picture was that the judge was to stand in the shoes of the trustee.
68 I am not at all sure that this view is correct, it is artificial to consider that the respondent is a trustee in the pure sense or that the District Court is doing anything more than reviewing the discretion of a statutory authority or redeciding that matter. I will return to this issue.
69 The District Court is primarily a court of common law. However, over the ages, the court has been given some very peculiar grants of jurisdiction probably partly stemming from the days when it was also a Court of Quarter Sessions.
70 The Australian Digest, 3rd ed, Vol 40 "Procedure" [311] lists the few cases under either the special or residual jurisdiction of the District Court or equivalent courts where the ambit of the jurisdiction has been considered by a superior court. The commentators on the District Court Act usually content themselves by stating that each case depends on the terms of the statute conferring the power. That is a wise course.
71 In the instant case, s 21(4) of the Act confers power on the District Court to substitute its determination for that of the respondent, but does not give any guidance as to when it should so act.
72 The authorities, see particularly Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; 135 CLR 616 show that the hearing before the District Court in this sort of matter is a hearing de novo. This would seem to suggest that the Court must approach the matter in the same way as the original decision maker, in the present case, as if the judge were a trustee.
73 However, such an approach is contrary to the usual approach that courts have consistently taken to applications to review the decisions of trustees.
74 In Rapa v Patience (M H McLelland J, 4.4.1985, unreported) the judge determined that discretionary trustees' decision was ineffective. He held that he had power to substitute his own determination, but declined to do so ruling:
"the relevant functions are conferred by the trust instrument not on the Court, but on the trustees, and the Court can have no authority to usurp the functions conferred on the trustees except where such a course is shown to be necessary in order to give effect to the intention evidenced by the terms of the trust instrument."
75 In Queensland, there is legislation conferring jurisdiction on the Supreme Court to review certain decisions of trustees. In considering the ambit of that legislation in Re Whitehouse [1982] Qd R 196, Macrossan J said that whilst the legislation gave a wide power to the court, he must approach the review bearing in mind the traditional reluctance of courts to usurp the functions of trustees, particularly discretionary trustees, in whom the settlor must have had confidence. However, in the appropriate case, the court would do so. Macrossan J also said that it was a false analogy to consider reviews from liquidators or trustees in bankruptcy.
76 Turning now to s 21 of the Act, it can be seen that in sub-section (4) the District Court has power to do one of two things: (a) confirm the decision of the respondent; or (b) replace that decision with a different decision. There is no power to remit the decision to the trustee to reconsider it.
77 This tends to show that the District Court should not show the reluctance referred to in Whitehouse. However, it might consider that it should give due weight to the fact that the respondent is the primary authority to make decisions under the Act.
78 In SAS Trustee Corporation v Pearce [2009] NSWCA 302 [41], Basten JA pointed out that s142J of the District Court Act 1973 required the District Court on this application for review to make its decision on the real merits and justice of the case. That section also permits the judge to take in factual material more freely and with less emphasis on form than would be the case if he or she were sitting in an ordinary common law action.
79 With these matters in mind, I now turn to the merits of the appeal.
80 I have already noted that the primary judge held that the respondent applied the wrong legislation and so committed an error which meant that the primary judge had to redetermine the application. He did so, but confirmed the respondent's decision.
81 Mr Dodson put that the primary judge made an error of law in that he was in the position of a trustee and failed to give a fair and proper consideration to the real question which was in the case of a contributory superannuation scheme was there any reason why a contributor should not receive a pension for the entire period of his disability?
82 Furthermore the appellant alleges that the primary judge failed to take into account the purposes of the trust as found within the legislative scheme.
83 The appellant also complains that the primary judge distracted himself by considering factors of delay so that, without disclosing reasons, he confirmed the respondent's decision to back date the pension to the date of application.
84 There was discussion by members of the Court with Mr Dodson as to whether the present case should be approached as a review of a decision made by a quasi trustee or a decision made in administrative law.
85 Although the legislation makes the respondent a trustee, there is not a trust in the traditional sense, for instance, the fund is not vested in the respondent which only has obligations to manage the fund and the "beneficiaries" have legal rights, not just rights in equity against the "trustee".
86 I do not consider that it much matters how one deals with that question. If the decision is that of an administrator, it is the decision of an administrator who carries some fiduciary duties.
87 Mr Dodson says that the appellant in accordance with the legislation paid 6% of his salary into the fund over many years. The statutory scheme was that he was entitled to be paid his pension from the date of disability if that event occurred.
88 It is not too difficult to see that some of these submissions probably were inspired by Campbell JA's article, "Exercise by Superannuation Trustees of Discretionary Powers" (2009) 83 ALJ 156. Unfortunately that article does not provide a ready solution to the present problem.
89 However, as Mr Dodson conceded these matters as to a contributory pension scheme were not put directly to the primary judge.
90 Furthermore, it is clear that when the appellant left the police he was paid $7,000 being the amount of his contributions to the fund pursuant to s 17 of the Act.
91 The Black Book at pp 55-6 sets out the main matters which were troubling the primary judge. These were in summary:
(1) at the date of his leaving the police, the appellant knew he had a bad back and could apply to be medically discharged from the force: he did not do so, probably because of then prevailing culture. Had he done so, he would have found out about pension rights. In fact he did not actually know about his rights to a pension;
(2) his pension was backdated from the date of decision to award it to the date of application, three years earlier;
(3) the appellant had been working including running an hotel. Meanwhile 20 years went by.
92 The appellant says that the force of point 3 is diminished by the evidence that the appellant's condition had persisted and indeed had got worse over the period in question.
93 It should be noted that a considerable amount of time was spent before the primary judge on what is now of no significance, namely, whether there was any obligation on the authorities to inform the appellant of his pension rights.
94 The basal points made by the appellant were: