Terry Swift v SAS Trustee Corporation

District Court of NSW|2009-06-05

CITATION: Terry Swift v SAS Trustee Corporation [2009] NSWDC 149

HEARING DATE(S): 5 June 2009 EX TEMPORE JUDGMENT DATE : 5 June 2009

DECISION: I order that the decision of the defendant dated 19 December 2007 backdating the plaintiff's superannuation pension to the date of his application on 1 March 2004 be confirmed.

CATCHWORDS: Police superannuation - backdating of plaintiff's superannuation allowance to date of medical retirement refused when application made some 20 years after date of resignation.

Police Regulation (Superannuation) Act 1906. LEGISLATION CITED: Superannuation Legislation Amendment Act 2006 Superannuation Legislation Amendment Regulation 2006. Superannuation Administration Act 1996

Maxwell v Murphy (1957) 96 CLR 261 Carr v Finance Corporation Australia Ltd [2] (1982) 150 CLR 139. CASES CITED: Hawkesley v May (1956) 1 QB 304 Corin v Patton (1990) 169 CLR 540 Hawkins v Clayton (1988) 164 CLR 539 Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSW LR 432

PARTIES: Terry Swift (Plaintiff) SAS Trustee Corporation (Defendant)

COUNSEL: Mr G Gemmell (plaintiff) Mr T Ower (defendant)

1 HIS HONOUR: By further amended statement of claim filed by leave in court today, without objection from the defendant, the plaintiff claims that the decision of the defendant in terms of s 9A(4)(a) of the Police Regulation (Superannuation) Act 1906 (the Act) dated 19 December 2007 be set aside and that an order in terms of s 9A(4) of the Police Regulation (Superannuation) Act 1906 (as amended currently as at 20 February 2004) be made to the effect that the plaintiff be awarded a superannuation allowance of 72.75 percent of his salary as at the date of discharge and that that payment be backdated from the date of his discharge, being 5 November 1981.

2 The decision of the defendant trustee corporation to which the plaintiff refers in the statement of claim is annexed to it and dated 19 December 2007 and is annexure "A", and relevantly it provides in a single paragraph that: "STC have further determined that your pension shall commence from date of application being 1 March 2004."

3 Counsel have provided me with written submissions and have spoken to them in such a way that has crystallised the issues and I thank them for that. It has enabled me to deliver ex tempore reasons at the conclusion of argument, which is always desirable in this court where much other business awaits a judge's attention.

4 The plaintiff's claim is of course resisted by the defendant by the contention that the decision to which I have referred, to backdate the plaintiff's superannuation pension to the date of his application for it, is correct. That question raises two matters. The first is the application of the Superannuation Legislation Amendment Act 2006 because, as the parties agree, that legislation came into effect between the date of the plaintiff's application for a retrospective medical discharge from the New South Wales Police Force under s 10B(2) of the Act on 20 February 2004 and the date of the defendant's decision to award him a superannuation allowance of 72.75 percent of his salary of office, payable from 1 March 2004, the date his application was received, that decision being made on 13 December 2007. Those matters are set out in paragraphs 27 and 30 of the statement of claim and are agreed between the parties, as are most of the other facts arising in this action. I shall refer to those other agreed facts where necessary.

5 The defendant agrees that jurisdiction to entertain the question to which I have referred arises under s 21 of the Act, which vests jurisdiction in this court, if it thinks appropriate, to replace the decision of the defendant with a different decision of its own. As the date from which the plaintiff's superannuation pension should be paid is part of the defendant's decision in this case, it follows, as the defendant concedes, that I have jurisdiction to determine that the plaintiff's superannuation pension be payable from another earlier date if I think it appropriate.

6 The first matter to consider is the application of the Superannuation Legislation Amendment Act 2006. As conveniently set out in the plaintiff's written submissions, subs (4) of s 9A of the Act, before the amending legislation I have just mentioned, read as follows: "(4) Where an annual superannuation allowance is granted under s 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."

7 STC was of course the statutory predecessor of the defendant, and it is agreed between the parties that the annual superannuation allowance referred to in the defendant's decision in this case was one granted under s 10 of the Act, so that section need not be examined.

8 The amending legislation to which I have just referred, however, in clause 1.2 of Schedule One at paragraph [4], inserted the following redrafted s 9A(4) in place of that which I have just recited. It reads as follows: "[4] An annual superannuation allowance granted under s 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 s 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."

9 The question arises whether that newly inserted version of s 9A(4) has retrospective effect, such as to catch applications for superannuation allowances, such as the plaintiff's, which were made before it came into effect, as was done in this case.

10 Mr Gemmell for the plaintiff in his submissions submits that absent a clear statement to the contrary, there is a common law presumption against retrospectivity, referring to Maxwell v Murphy (1957) 96 CLR 261 at 267 and Carr v Finance Corporation Australia Limited [No 2] (1982) 150 CLR 139 at 152. He later refined his submission to make it clear that he was submitting that the presumption applies only in cases where substantive rights are involved, not where procedural provisions are being interpreted. That is this case, he says, because the wording of the new s 9A(4) is such as to deprive applicants for superannuation allowances, except in "exceptional circumstances", of the right to have payment of them backdated to a date earlier than their application for them. He says that under the former s 9A(4) there was an open discretion in the defendant to provide for backdating of superannuation allowances to an earlier date beyond the date of application, unfettered by an "exceptional circumstances" requirement. His submission is obviously correct in that regard.

11 The defendant submits that in this particular case, because the findings of the police medical board under s 10B(2) as to the plaintiff's infirmity and of the Commissioner of Police under s 10B(3)(a) as to the infirmity resulting from the plaintiff's being hurt on duty both occurred after 30 June 2006, the date on which the amended legislation came into effect, the plaintiff did not have a vested right to a superannuation allowance before the date of the amendments and therefore the amendments apply to his application.

12 I disagree, because it seems to me that the effect of s 9A(4) is to make provision for the commencement date of any superannuation allowance by any person, and the fact is that the effect of the amendment is to restrict the defendant in its discretion as to when such payments should commence on either the date of application or an earlier date, but only in exceptional circumstances, whereas the effect of the former s 9A(4) is simply to confer on the defendant a discretion to determine when such payments should commence, unfettered by any exceptional circumstances requirement. That appears to me to affect the substantive rights of all persons who made applications before 30 June 2006 when the amendments came into effect, in that it affects an actual substantive right to payment of a superannuation allowance for a particular period, not merely the procedural mechanism of enforcement of that right. If the defendant is right, it is nothing in point that the determinations as to the infirmity suffered by such persons and as to whether such infirmity was caused by being hurt on duty occurred before or after the date when the amendments came into effect. According to the defendant's submission, they would still be caught by the amendments. It seems to me that had Parliament intended that result it ought, pursuant to the principles in Maxwell v Murphy and the cases which have followed it, to have made that intention clear in the transitional provisions of the Act. This it did not do, as pointed out by Mr Gemmell in his submissions for the plaintiff.

13 To the contrary, the transitional provisions in the amending legislation in 2006 provide in pt 1 as follows:

14 "1. Regulations (1) The regulations may contain provisions of a savings or transitional nature consequent upon the enactment of the following Acts: ... Superannuation Legislation Amendment Act 2006, but only to the extent to which it amends this Act. ... (2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day.

(3) To the extent to which any such provision takes effect on a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication."

15 There the legislation provides a clear indication that if any regulation affects the rights of any person in a manner prejudicial to them or impose liabilities on any person in respect of anything done or omitted to be done before the date of the publication of the regulation, the regulation is ultra vires the Act. It would seem to me incongruous, to say the least, if the Act itself were interpreted in a manner, so as to affect prejudicially any person, the rights of that person existing before the commencement of the Act, when the Act specifically provides that the regulations cannot have this effect. I do not think that is either the Parliamentary intention or the effect of the amended legislation.

16 It follows that I consider that the plaintiff's right to backdating of his superannuation and pension is to be determined according to s 9A(4) as it stood before the amending legislation commenced on 30 June 2006.

17 That is, of course, anything but the end of the matter. What I must consider, therefore, is whether it is appropriate to vary the decision of the defendant to backdate the plaintiff's superannuation allowance to the date of his application, having regard to the criterion in s 9A(4) as it stood before 2006, requiring simply that the allowance be payable "as from the date determined by STC for that purpose".

18 Mr Gemmell in his submissions says that that discretion is fettered in a number of ways. First, he says that s 3 of the Act states that the defendant must pay out of the fund the benefits provided by the Act, so there was an obligation to pay benefits under the Act to the plaintiff. Second, he says that when one construes s 9A(1) and (3) it is clear that the intention of Parliament is that the allowance be payable from the day following the member's retirement or death as applicable, and that there is no apparent reason why the benefit payable to one who has resigned or retired should be any different, particularly in circumstances where the plaintiff was incapable of carrying out his duties at the time of his resignation, as determined by the s 10B(2) certificate in this case. That is indeed what the certificate states, and it is not in controversy between the parties.

19 However, Mr Ower for the defendant points out that it is entirely logical that the superannuation allowance of a person who has been medically retired from the police service other than in circumstances involving being hurt on duty should be payable from the date of that person's resignation, whereas the position must be different in the case of persons who are hurt on duty, because persons may make application for a superannuation allowance as a result of an infirmity ultimately certified, many years after they leave the Police Force, to be the result of the person being hurt on duty, as indeed occurred in this case. It would be incongruous and unjust, he says, for the defendant to be required in these circumstances to exercise its discretion to backdate payment of a superannuation allowance to a date many years before a member of the police force even applied for such an allowance.

20 That does seem to me to answer Mr Gemmell's submission that it is incongruous that persons applying for a superannuation allowance as a result of being hurt on duty should be treated differently in the construction of s 9A from persons applying for superannuation allowances for reasons other than being hurt on duty.

21 Mr Gemmell further submits that the words of s 9A(4) where it is said that a benefit "is granted" and "is payable" and "for that purpose" do not support a capricious exercise by the defendant as to the date from which payment could be made.

22 That is certainly so, but is it a capricious exercise to determine that payment should be made from the date of application simply because of the words he quoted, i.e. "is granted" or "is payable" and "for that purpose", without more? I do not think so. So to hold would be to fetter the discretion conferred by the clear words of s 10(4) as it stood before the date of the 2006 amendments, as I have concluded that they apply to the present case, where the defendant is vested with a discretion to determine that the benefit or, to use the words of the subsection, the "allowance" is payable "as from the day determined by STC for that purpose". Had Parliament intended the defendant to apply certain specified criteria to the exercise of that discretion, I think it would have done so in the subsection itself.

23 The words "is payable" in subs (1) and (3) of s 9A as it stood at the time of the plaintiff's application refer firstly to the circumstance where a person retires for reasons other than being hurt on duty, and secondly to an allowance consequent upon the death of a member or former member of the Police Force. Clearly the scheme of the section is to apply subs (4) to an annual superannuation allowance "granted under s 10" which includes the superannuation allowance granted to the plaintiff in this case, and that subsection goes on to provide that the allowance is payable, not as in s 9A(1), "from the day that next succeeds the day on which the member retires", nor as provided by s 9A(3), "from the day that next succeeds the date of his or her death", referring to the member or former member of the Police Force but instead, in the case of what I might call s 10 allowances, as here, s 9A(4) provides that the allowance is payable "as from the day determined by STC for that purpose".

24 I do not see any fetter on that discretion. I disagree with Mr Gemmell's submission that the defendant's discretion in determining a date for commencement of the payment is constrained from determining a date other than that on which the police officer retired or resigned, whichever applies - in this case the date of resignation.

25 Mr Gemmell also submits the defendant's functions and duties are as set out in the Superannuation Administration Act 1996, and draws attention to s 49 of that Act which provides: "(1) STC is the trustee for the STC schemes and is to hold in trust for the persons who are or will be entitled to benefits under the STC schemes all assets held by, and all contributions and other money paid or payable to, STC under this Act or any Act under which an STC scheme is constituted or established.

(2) STC is a trustee for the purposes of the Trustee Act 1925. Accordingly, subject to this Act, and unless this Act, the Trustee Act 1925 or any other Act otherwise provides, STC has the obligations, rights and duties of the trustee under div 2 of pt 2 of the Trustee Act 1925."

26 Mr Gemmell adds that s 50 of the Superannuation Administration Act sets out the principal functions of the defendant, and provides in part in s 50(1)(d) that it is to ensure that benefits payable to the persons entitled to receive benefits are paid in accordance with the Acts under which the schemes are established. He further notes that s 51(1)(c) requires the STC to ensure that its functions are exercised "in the best interests" of members entitled to receive benefits under the STC schemes, and that s 51(2)(a) of the Act abovementioned requires the defendant to have regard to the interests of persons entitled to receive benefits under the STC schemes, and to inform them of their rights.

27 He refers in this respect to what was said in Hawkesley v May (1956) 1 QB 304, Corin v Patton (1990) 169 CLR 540 at 584, Hawkins v Clayton (1988) 164 CLR 539 at 553-554, and Hartigan Nominees Pty Limited v Rydge (1992) 29 NSWLR 432 regarding a trustee's duty to inform beneficiaries of their rights. He concedes that Deane J in Corin v Patton at 584 doubted whether Hawkesley should be followed in this country, but he refers to the fact that in Hawkins Brennan J at 554 indicated that the Hawkesley duty applied in that case. In any event he says, as I understand him, that the duty to inform arises under s 51(1)(c) or s 51(2)(a).

28 He notes also that s 63 of the Superannuation Administration Act requires a member of the STC board to exercise a reasonable degree of care and diligence for the purpose of ensuring the STC carries out the duties referred to in s 51 of the Superannuation Administration Act.

29 This brings me to the plaintiff's evidence, upon which Mr Gemmell relies to found a submission that the defendant did not discharge its statutory duty to inform the plaintiff in a timely and careful manner of his superannuation rights at the time when he resigned from the police force. The plaintiff said, and I accept it because there is no evidence to the contrary, that he was unaware, after the date when he resigned from the police force in 1981, that he had any right to claim a superannuation allowance on the basis of being hurt on duty until he met a fellow former policeman in a hotel, he thought at the end of 2003. There was earlier some hesitation in his evidence when he said that this occurred in 1983, but I am satisfied that he was confused and that 2003 is the correct date. He said as a result he went to Oates and Smith, the solicitors who act for him in these proceedings, and in short order made an application for a superannuation allowance.

30 That is indeed the case, as the plaintiff's agreed chronology, which is exhibit A, says, because he made his application on 1 March 2004, only a matter of a few months after his conversation in the Bangor Tavern with his fellow former police officer, who incidentally must have been somewhat of a colourful character, because he made his application for superannuation allowance after he got out of gaol. Be that as it may, it seems that this was the first time the plaintiff learned that he could make an application for a superannuation allowance based on being hurt on duty after he resigned from the police force.

31 That is not however the end of the matter, because the plaintiff conceded, in response to a clarificatory question by myself after something of a "blind alley" exchange occurring between himself and the defendant's counsel, that it was "possible" that he was aware before his resignation from the police force that a police officer could make an application to be medically retired from the police force, but that he did not take this course because, as he had earlier said, the culture of the police force was the younger officers were reluctant to make such applications for fear of being seen as weak, or something similar.

32 His evidence firmed up at the end of cross-examination on this subject when he conceded that he knew before his resignation that the option to be medically retired from the police service was "there for all of us", presumably referring to all members of the police force, including himself. He had earlier given evidence that he had indeed claimed hurt on duty benefits on occasions before he left the police force as a result of the very back injury on the basis of which he has now been granted a superannuation allowance, such injury, according to the plaintiff's agreed chronology, occurring on 1 December 1980.

33 The plaintiff did not at any stage give evidence that when he resigned he told anyone in the police service that he was resigning because of his back injury. In fact he said that he resigned because he wished to pursue a new opportunity in the form of a joint venture with his brother to run a transport truck, in which in fact he engaged after he left the police service.

34 In these circumstances I ask myself, what was the defendant's duty to inform the plaintiff of his possible right to make application for what I might loosely call a "hurt on duty" pension as a result of a certified infirmity? It is true that the plaintiff, as Mr Gemmell submits and as some certificates in his tender bundle establish, provided evidence of incapacity as a result of his back injury to the police service up to a date very closely approaching the date of his resignation. It is also true however that the plaintiff had pursued his right to be certified hurt on duty and had claimed financially for time off work as a result of his back injury before he left the police service. The police service had every reason, I think, to suppose that the plaintiff was aware of his right to be certified as "hurt on duty" in those circumstances, since he had already exercised it.

35 The plaintiff himself said that he was aware of the option to be medically retired from the police service. He said he did not exercise this option, as a result of a decision on his part not to do so because of the culture of the police service at the time, which was that younger police officers did not exercise this option for fear of being thought weak or something similar, as I have said. It seems to me that had the plaintiff decided differently and elected to do what he knew he could do, that is, to apply for a medical discharge from the police service, he would then have found out about the mechanism involved in receiving a superannuation allowance, first being certified to have an infirmity, and then having that infirmity certified to be the result of being hurt on duty. The fact that the plaintiff did not go down this path and learn of those rights lies ultimately at his own feet, not those of the police service, it seems to me.

36 I do not think the police service had a duty to inform the plaintiff of those rights in circumstances where, as he already has said in evidence, he knew he could be medically retired from the police service before he in fact resigned, and, by inference from the fact that he had in fact claimed for time off work as a result of being "hurt on duty" before then, he knew of the right to be certified "hurt on duty". As it seems to me, he would have found out about the right to have his infirmity certified if he applied for medical discharge, and would have found out also at that time about the right to have that infirmity certified to be the result of being "hurt on duty", a matter for which he had already claimed.

37 In those circumstances I do not think the defendant has failed to inform the plaintiff of his rights in the way contended for by Mr Gemmell in his written submissions for the plaintiff. That is to say, I do not think that s 51 or s 63 have been breached in the way alleged in those submissions by the defendant. To make it clearer, how, I ask myself, under s 51(1)(c), has the defendant failed to ensure that its functions are exercised in the best interests of persons entitled to receive benefits under the STC schemes, and how has it failed to have regard to the interests of persons entitled to receive benefits under the STC schemes under s 51(2)(a), and how has the STC board failed to exercise a reasonable degree of care and diligence, for the purposes of ensuring that the STC carries out the dealings referred to in s 51 of the Superannuation Administration Act pursuant to s 63, in circumstances where the plaintiff was aware already, at the time he resigned, of his right to be certified as suffering from the effects of being "hurt on duty"? I do not think that in these circumstances it can be maintained that the sections abovementioned were breached.

38 Mr Gemmell submits that because the explanatory note to the 2006 amendments says that the amendments were inserted to clarify "the circumstances in which a former police officer may claim a hurt on duty invalidity pension subject to retirement or resignation", the only proper inference to be drawn is that up to the amendment the defendant was paying some or presumably all former police officers who applied for the superannuation allowance from the date of resignation. I do not think that inference can be drawn from the amendment at all, particularly when one looks at the former terms of s 9A(4), which conferred in subs (4) on the defendant an unfettered discretion to determine the date from which superannuation allowances were to be paid, without the fetter imposed in the new subs (4) by the amendments that such date be the date of application, except in "exceptional circumstances".

39 For completeness, I do not think that the discretion ought to have been exercised by the defendant under the new version of s 9A(4), which I do not think applies for reasons I have already canvassed, for any of the reasons suggested in the plaintiff's submissions as being "exceptional circumstances", if that test in the new section 9A(4) applies, although I do not think it does.

40 These matters were firstly that the infirmity caused by the plaintiff being "hurt on duty" was certified as rendered him incapable of performing his duties as a police officer as at the date of resignation, and secondly that he had no knowledge of his entitlement to a superannuation allowance until shortly before seeing his solicitor more than twenty years after his resignation, and thirdly that there was an amendment to the Police Regulation (Superannuation) Act between the date of the plaintiff's application and the date of determination by the defendant, and fourthly that the amendments to the legislation were adverse to the interests of the plaintiff, and fifthly that the defendant, erroneously and contrary to its duties as a trustee, failed to process the plaintiff's application in a timely manner, and sixthly that the defendant failed to take into account that the plaintiff was not informed by the police of his rights under the Act at the time of his resignation or at any time prior to that date.

41 As to those submissions, firstly I think the fact that the infirmity caused by the plaintiff being hurt on duty rendered him incapable of performing his duties as a police officer as at the date of resignation is nothing in point if the plaintiff did not, for more than twenty years after the date of resignation, apply for benefits. It is true that the plaintiff believed during most of that period of time that he could not do so because he had resigned, but he did know, I think, for reasons already set out, that he had the right to be medically retired from the police force as at the day of his resignation, and yet chose to resign, because of the culture of the police force at the time.

42 That I think is the answer to the plaintiff's suggestion that the above is an "exceptional circumstance", and by implication a reason why in my discretion I should order that his benefit should be backdated to the date of his resignation, if "exceptional circumstances" are required, as I do not think they are. In any event I do not think the amendment to which the plaintiff refers applies to him, so the matters raised in respect of that do not apply.

43 I do not think the defendant, erroneously and contrary to its duties as a trustee, failed to process the plaintiff's application in a timely manner. I was at first disturbed by that, but examination of the plaintiff's agreed chronology, exhibit A, establishes that although the application occurred on 1 March 2004, considerable correspondence went back and forth between the plaintiff and the defendant until the determination was finally made on 19 December 2007. The delay, as can be seen from that chronology, occurred between 1 March 2004 and 19 December 2007, and it is fair to say that some of it certainly lies at the feet of the defendant. However it is also fair to observe, as pointed out by Mr Ower for the defendant, that for example, as at 18 May 2004 the plaintiff's solicitors were writing to the defendant to the effect that they intended to forward further medical reports and submissions to the defendant, and that various requirements were raised by the defendant and after a time supplied by the plaintiff, and that it was not until 22 March 2007 that the plaintiff's solicitors wrote to the defendant's solicitors requesting that a determination be made, notwithstanding non-provision of certain medical evidence required by the defendant. Those letters are in exhibit 1, the defendant's tender bundle, which was however tendered without objection by the plaintiff.

44 My assessment of the situation is that there was some degree of delay on the part of both the plaintiff's solicitors and the defendant, even if it can be said that a greater portion of the delay occurs as a result of the defendant's dilatory assessment of the plaintiff's claim, rather than as a result of the plaintiff's solicitor's difficulty in obtaining evidence sought by the defendant, predominantly of a medical kind. I do not think that delay, although as I have said I think it lies partly at the feet of the defendant, should justify the extraordinary consequence that the plaintiff's payments be backdated to the date of his resignation. That delay may have been a very good reason to order that the plaintiff's pension be backdated to the date of his application, a period over three years before the date of the defendant's determination, but in fact the determination provides for this in any event.

45 As for the alleged failure of the defendant to take into account that the plaintiff was not informed by the police service of his rights under the Act at the time of his resignation or any time prior to that date, I have already said that as at the day of his resignation in my view the plaintiff knew, as he conceded, that he was entitled to apply to be medically retired from the police service and, by implication from his previous claims in that regard, knew that he could make a "hurt on duty" claim. The one thing that he did not know is that he had the right to have an infirmity certified consequent upon an application to be medically discharged from the Police Force, and to have that infirmity in turn certified by the Commissioner of Police as being a result of his being hurt on duty. He would have found out about those rights, as I have already found, had he exercised the right he then knew he had, to seek to be medically discharged from the police service. He did not exercise that right at the time, he conceded, because of the culture of the Police Force, which was that one did not do that as a younger officer for fear of being regarded as weak or something similar, as I have already said.

46 In those circumstances, I do not think that the defendant's failure to inform the plaintiff of his rights was the cause of the fact that he did not make application to be medically discharged from the Police Force at the time he resigned. I fully accept that he did not know that he could make application of that kind retrospectively after he resigned, and until he had had the conversation with his fellow police officer in the Bangor Tavern and went to see his solicitors Oates & Smith in 2003, but exercise of his right to be medically discharged, which he conceded he had at the time he resigned, would have imparted to him the right to have an infirmity certified, and to have that infirmity certified as being the result of being "hurt on duty".

47 In those circumstances I do not think, despite the interpretation of s 9A(4) which I have reached as to the non-applicability of the amending legislation, in accordance with the plaintiff's submission, that I should determine that the defendant's decision to backdate the plaintiff's superannuation allowance to the date of his application for superannuation benefits should be disturbed.

HIS HONOUR: I ask the parties, is the appropriate order simply that I affirm that decision?

OWER: Just to confirm that decision, yes, your Honour.

HIS HONOUR: I don't need to find a verdict for the defendant even though the proceedings are commenced by a statement of claim?

GEMMELL: I do except this, your Honour. The decision as communicated to the plaintiff, which is p 127 of the plaintiff's tender, bundle says the decision was made in accordance with s 9A(4)(a) of the Act, and in the absence of exceptional circumstances that merit payment from an earlier date. Clearly that communication indicates, and indeed the submission of the STC delegate also makes it clear, that the STC was taking into account that the new legislation--

HIS HONOUR: Yes, I observed that. In other words, they made it purportedly under the new legislation and I've concluded that that step was incorrect. So a problem that occurs to me is if I've determined that the decision was correct but under different legislation from that applied by the defendant, what do I do? That's what you're raising.

GEMMELL: Yes. My first thought was that the communication of the decision is clearly in relation to the new legislation and therefore in those circumstances perhaps it should be varied to this extent, that the decision made in accordance with the 9A(4) of the Act as it applied at the time of application.

HIS HONOUR: When I think about it, Mr Ower, that would seem to be correct.

OWER: It's legally correct. It's technical and has no utility in terms of it doesn't affect the decision made. I would oppose any order being made in favour of the plaintiff or any consequential costs order as a result, which may be where that's leading.

HIS HONOUR: We'll come to that question in a moment.

OWER: So in terms of what is being asked for, I oppose it and I would ask your Honour to just simply confirm the decision.

HIS HONOUR: But the decision was made upon incorrect legislation.

OWER: The decision was attached to the original statement of claim and I'm not sure it's in exactly the same terms as the one that has been--

HIS HONOUR: Let me just have a look at that. As a matter of fact I think that's right, Mr Gemmell. It simply says - this is annexure A to the statement of claim - "on 14 November 2007 the Commissioner's delegate determined the specified infirmity was caused by you being hurt on duty with the nominated injury dated 1 December 1980," and then it goes on, "STC have further determined that your pension should commence from the date of application, being 1 March 2004. Advice regarding this has been sent to your solicitor." The decision itself doesn't cite which legislation it's made under, and that's the determination which in your statement of claim you seek be set aside, and that is the decision which I have held should not be set aside. So it follows that I should confirm that decision. Is that not correct?

HIS HONOUR: I thought you had a point for a minute.

GEMMELL: Yes, it is, your Honour, but what is concerning me is that the reality of, and I accept what your Honour is saying--

HIS HONOUR: In other words, you accept that that is the order I should make.

GEMMELL: Given the amended statement of claim, that's so. My concern is that as a matter of record, and the court is remaking a decision of the defendant--

HIS HONOUR: No, it's not. It's confirming the defendant's decision.

GEMMELL: I won't take that any further, your Honour. I don't think I can. What the defence says is that the defendant says on the decision of 13 December 2007, which is the one that I drew your Honour's attention to--

HIS HONOUR: I know, but the one that you in your statement of claim you seek be set aside is that of 19 December 2007.

GEMMELL: Yes. I won't take it any further, your Honour.

48 HIS HONOUR: I order that the decision of the defendant dated 19 December 2007 backdating the plaintiff's superannuation pension to the date of his application on 1 March 2004 be confirmed.

HIS HONOUR: Has anybody got anything to say on the question of costs?

GEMMELL: Your Honour, I submit that pursuant to s 21(9) that there should be no order as to costs.

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(1992) 29 NSW LR 432

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