Bigg v SAS Trustee Corporation - [2016] NSWCA 236

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bigg v SAS Trustee Corporation [2016] NSWCA 236
Hearing dates: 17 August 2016
Decision date: 01 September 2016
Before: Beazley ACJ;
Basten JA;
Macfarlan JA
Decision:
(1) Leave to appeal refused.
(2) The applicant to pay the respondent’s costs.
Catchwords:
SUPERANNUATION – police superannuation allowances under the Police Regulation (Superannuation) Act 1906 (NSW) – superannuation allowances where member of police hurt on duty – requirement that member have “resigned or retired” under s 10B – whether “resigned or retired” and “resignation or retirement” encompass unfair dismissal

APPEAL – application for leave to appeal – Industrial Relations Act 1996 (NSW), s 403B – Court to grant leave if, in its opinion, matter is of such importance that, in the public interest, leave should be granted – relevant principles where duty not engaged
WORDS AND PHRASES – “resigned or retired” – “resignation or retirement” – whether such words, as used in the Police Regulation (Superannuation) Act 1906 (NSW), s 10B, encompass unfair dismissal
Legislation Cited: Industrial Relations Act 1991 (NSW)
Industrial Relations Act 1996 (NSW)
Police Regulation (Superannuation) Act 1906 (NSW), s 10B(2)
Police Service Act 1990 (NSW), s 181B
Police Service Amendment (NSW Police) Act 2002 (NSW)
Police Service Amendment Act 1995 (NSW)
Superannuation Administration Act 1996 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Bigg v New South Wales Police Service (1998) 80 IR 434
Bigg v New Wales Police Service (1997) 72 IR 330
Carolan v AMF Bowling Pty Limited [1995] NSWCA 69
Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Category: Principal judgment
Parties: Malcolm Lorne Bigg (Applicant)
SAS Trustee Corporation (Respondent)
Representation:
Counsel:
In person (Applicant)
T Ower (Respondent)
Solicitors:
SAS Trustee Corporation (Respondent)

File Number(s): 2016/91861
Decision under appeal

Court or tribunal:

Industrial Court of NSW

Citation:

Bigg v SAS Trustee Corporation [2016] NSWIC 2

Date of Decision:

15 February 2016

Before:

Schmidt J

File Number(s):

IRC 467/2015

Headnote

[This headnote is not to be read as part of the judgment]

The applicant was dismissed from the New South Wales Police (the NSW Police) on 25 February 1996 pursuant to s 181B of the then Police Service Act 1990 (NSW). That section provided for the dismissal of a police officer where the Police Commissioner formed the opinion, based on information arising out of the Police Royal Commission, that the police officer had engaged in corrupt or criminal conduct and was no longer a fit and proper person.

An initial challenge to the dismissal in the Industrial Relations Commission was unsuccessful. However, the applicant succeeded on appeal to the Full Bench of the Industrial Relations Commission, the Full Bench finding that the dismissal was unjust and ordering the NSW Police to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWCA 236
Decision Date: 01 September 2016

CaseChat Overview and Summary

The applicant, Mr Bigg, sought leave to appeal a decision of the Industrial Relations Commission of New South Wales. The dispute concerned whether Mr Bigg was entitled to a superannuation allowance under section 10B of the *Police Regulation (Superannuation) Act 1906* (NSW). This section provided for allowances where a member of the police force was injured on duty and subsequently "resigned or retired". Mr Bigg had been dismissed from the police force, and the central question was whether this dismissal constituted a "resignation or retirement" for the purposes of the Act.

The Court of Appeal was required to determine whether the phrase "resigned or retired" in section 10B of the *Police Regulation (Superannuation) Act 1906* (NSW) encompassed an involuntary termination of employment, such as an unfair dismissal. In considering the application for leave to appeal, the Court also had to assess whether the matter was of such importance that, in the public interest, leave should be granted, applying the principles relevant to the engagement of a duty under section 403B of the *Industrial Relations Act 1996* (NSW).

The Court concluded that the plain meaning of "resigned or retired" indicated a voluntary cessation of employment. It reasoned that the Act distinguished between voluntary departures and involuntary terminations, and that to interpret "resigned or retired" as including dismissal would be to read words into the statute that were not present. The Court found that the matter was not of sufficient importance to warrant granting leave to appeal in the public interest.

Consequently, leave to appeal was refused, and the applicant was ordered to pay the respondent’s costs.

Orders

Orders of the court

(1) Leave to appeal refused.

(2) The applicant to pay the respondent’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bigg v SAS Trustee Corporation [2016] NSWCA 236
Hearing dates:	17 August 2016
Decision date:	01 September 2016
Before:	Beazley ACJ; Basten JA; Macfarlan JA
Decision:	(1) Leave to appeal refused. (2) The applicant to pay the respondent’s costs.
Catchwords:	SUPERANNUATION – police superannuation allowances under the Police Regulation (Superannuation) Act 1906 (NSW) – superannuation allowances where member of police hurt on duty – requirement that member have “resigned or retired” under s 10B – whether “resigned or retired” and “resignation or retirement” encompass unfair dismissal APPEAL – application for leave to appeal – Industrial Relations Act 1996 (NSW), s 403B – Court to grant leave if, in its opinion, matter is of such importance that, in the public interest, leave should be granted – relevant principles where duty not engaged WORDS AND PHRASES – “resigned or retired” – “resignation or retirement” – whether such words, as used in the Police Regulation (Superannuation) Act 1906 (NSW), s 10B, encompass unfair dismissal
Legislation Cited:	Industrial Relations Act 1991 (NSW) Industrial Relations Act 1996 (NSW) Police Regulation (Superannuation) Act 1906 (NSW), s 10B(2) Police Service Act 1990 (NSW), s 181B Police Service Amendment (NSW Police) Act 2002 (NSW) Police Service Amendment Act 1995 (NSW) Superannuation Administration Act 1996 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Bigg v New South Wales Police Service (1998) 80 IR 434 Bigg v New Wales Police Service (1997) 72 IR 330 Carolan v AMF Bowling Pty Limited [1995] NSWCA 69 Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Category:	Principal judgment
Parties:	Malcolm Lorne Bigg (Applicant) SAS Trustee Corporation (Respondent)
Representation:	Counsel: In person (Applicant) T Ower (Respondent) Solicitors: SAS Trustee Corporation (Respondent)
File Number(s):	2016/91861
Decision under appeal	Court or tribunal: Industrial Court of NSW Citation: Bigg v SAS Trustee Corporation [2016] NSWIC 2 Date of Decision: 15 February 2016 Before: Schmidt J File Number(s): IRC 467/2015