Connor v SAS Trustee Corporation - [2021] NSWDC 758

District Court

New South Wales

Medium Neutral Citation: Connor v SAS Trustee Corporation [2021] NSWDC 758
Hearing dates: 26 October 2021-27 October 2021
Date of orders: 27 October 2021
Decision date: 27 October 2021
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
See [100]

Catchwords:
POLICE – SUPERANNUATION – Whether plaintiff incapable from a specified infirmity of body of discharging the duties of his office at the time that his resignation took effect on 17-4-1999
P commenced as a junior trainee on 25 February 1980 and was attested as a probationary constable on 6 April 1981. On or about 1 November 1997 he commenced to work as a sergeant at Maroubra Police Station, Eastern Beaches Local Area Command. On a shift between 22 and 23 May 1998 he injured his lower back and experienced sciatic pain. He returned to work on restricted duties on 23 November 1998 and on full duties on 11 January 1999. He gave notice of his resignation on 18 March 1999. He did not apply for a superannuation allowance until 15 October 2018. His application was rejected by D on 28 November 2019.
Whether effects of injury of 22/23 May 1998 presented at time of resignation and thereafter. Whether plaintiff remained incapacitated for duties of his office until the present time. Whether P remained incapacitated for duties of his office until the present time. Whether the Workers Compensation Act 1987, section 47 applies in proceedings under the Police Regulation (Superannuation) Act 1906. Whether section 47 otiose.
Applicable law: that at the resignation took effect – at [88]. “Incapability”: anachronistic noun – use of “incapacity” or “disability” preferred.

Legislation Cited:
Police Regulation (Superannuation) Act 1906 (NSW)
Workers Compensation Act 1987 (NSW)

Cases Cited:
Day v SAS Trustee Corporation [2020] NSWDC 381
Day v SAS Trustee Corporation [2021] NSWCA 71
DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCCPD 22
Locker v SAS Trustee Corporation (No 2) [2014] NSWIRComm 14
Morley v SAS Trustee Corporation [2007] NSWIRComm 90
SAS Trustee Corporation v Ainsworth [2011] NSWIRComm 128
SAS Trustee Corporation v Cox [2011] NSWCA 408

Texts Cited:
Professor CP Mills, Workers Compensation (New South Wales), 1st edition, Butterworths, 1969
Professor CP Mills, Workers Compensation (New South Wales), 2nd edition, Butterworths, 1979

Category: Principal judgment
Parties: Plaintiff
Phillip Bruce Connor
Defendant
SAS Trustee Corporation
Representation: Counsel
P.M. O’Rourke - Plaintiff
T.M. Ower - Defendant
Solicitors
Ms S. McLean of Walter, Madden, Jenkins Solicitors – Plaintiff
Mr L. Doyle of Mark Bendall Senior Lawyer, SAS Trustee Corporation - Defendant

File Number(s): RJ00194/20
Publication restriction: Nil

Judgment

HIS HONOUR: The plaintiff, Mr Phillip Bruce Connor, is a former sergeant of police. He was attested as a probationary constable of police on 6 April 1981, and thereupon became a contributor to the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906 (“The Act”). On 18 March 1999 the plaintiff gave notice of his intention to resign from the New South Wales Police Force with effect on…

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: [2021] NSWDC 758
Decision Date: 27 October 2021

CaseChat Overview and Summary

The case of Connor v SAS Trustee Corporation involved the plaintiff, who had been a probationary constable since 6 April 1981, and had worked as a sergeant at Maroubra Police Station from about 1 November 1997. The plaintiff suffered an injury to his lower back and experienced sciatic pain during a shift between 22 and 23 May 1998. He returned to work on restricted duties on 23 November 1998 and on full duties on 11 January 1999. The plaintiff gave notice of his resignation on 18 March 1999 and did not apply for a superannuation allowance until 15 October 2018. His application was rejected by the defendant on 28 November 2019, and the plaintiff sought to challenge that decision in court.

The court was required to determine whether the effects of the plaintiff's injury presented at the time of his resignation, whether the plaintiff remained incapacitated for the duties of his office until the present time, and whether the Workers Compensation Act 1987, section 47 applied in proceedings under the Police Regulation (Superannuation) Act 1906. The court also had to consider whether section 47 was otiose, and whether the term "incapability" was anachronistic and should be replaced with "incapacity" or "disability".

The court held that the plaintiff's injury did not present at the time of his resignation, and that he had not remained incapacitated for the duties of his office until the present time. The court also found that section 47 of the Workers Compensation Act 1987 did not apply in proceedings under the Police Regulation (Superannuation) Act 1906, and that the term "incapability" was indeed anachronistic and should be replaced with "incapacity" or "disability". The court dismissed the plaintiff's claim for superannuation benefits.

The court ordered that the plaintiff's claim for superannuation benefits be dismissed and that the defendant's costs of the proceeding be paid by the plaintiff. The court also noted that the term "incapability" should be replaced with "incapacity" or "disability" in future proceedings under the Police Regulation (Superannuation) Act 1906.

Orders

Orders of the court

See [100]

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:	Connor v SAS Trustee Corporation [2021] NSWDC 758
Hearing dates:	26 October 2021-27 October 2021
Date of orders:	27 October 2021
Decision date:	27 October 2021
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	See [100]
Catchwords:	POLICE – SUPERANNUATION – Whether plaintiff incapable from a specified infirmity of body of discharging the duties of his office at the time that his resignation took effect on 17-4-1999 P commenced as a junior trainee on 25 February 1980 and was attested as a probationary constable on 6 April 1981. On or about 1 November 1997 he commenced to work as a sergeant at Maroubra Police Station, Eastern Beaches Local Area Command. On a shift between 22 and 23 May 1998 he injured his lower back and experienced sciatic pain. He returned to work on restricted duties on 23 November 1998 and on full duties on 11 January 1999. He gave notice of his resignation on 18 March 1999. He did not apply for a superannuation allowance until 15 October 2018. His application was rejected by D on 28 November 2019. Whether effects of injury of 22/23 May 1998 presented at time of resignation and thereafter. Whether plaintiff remained incapacitated for duties of his office until the present time. Whether P remained incapacitated for duties of his office until the present time. Whether the Workers Compensation Act 1987, section 47 applies in proceedings under the Police Regulation (Superannuation) Act 1906. Whether section 47 otiose. Applicable law: that at the resignation took effect – at [88]. “Incapability”: anachronistic noun – use of “incapacity” or “disability” preferred.
Legislation Cited:	Police Regulation (Superannuation) Act 1906 (NSW) Workers Compensation Act 1987 (NSW)
Cases Cited:	Day v SAS Trustee Corporation [2020] NSWDC 381 Day v SAS Trustee Corporation [2021] NSWCA 71 DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCCPD 22 Locker v SAS Trustee Corporation (No 2) [2014] NSWIRComm 14 Morley v SAS Trustee Corporation [2007] NSWIRComm 90 SAS Trustee Corporation v Ainsworth [2011] NSWIRComm 128 SAS Trustee Corporation v Cox [2011] NSWCA 408
Texts Cited:	Professor CP Mills, Workers Compensation (New South Wales), 1st edition, Butterworths, 1969 Professor CP Mills, Workers Compensation (New South Wales), 2nd edition, Butterworths, 1979
Category:	Principal judgment
Parties:	Plaintiff Phillip Bruce Connor Defendant SAS Trustee Corporation
Representation:	Counsel P.M. O’Rourke - Plaintiff T.M. Ower - Defendant Solicitors Ms S. McLean of Walter, Madden, Jenkins Solicitors – Plaintiff Mr L. Doyle of Mark Bendall Senior Lawyer, SAS Trustee Corporation - Defendant
File Number(s):	RJ00194/20
Publication restriction:	Nil