Daley v SAS Trustee Corporation

[2016] NSWCA 111

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Daley v SAS Trustee Corporation [2016] NSWCA 111

Hearing dates:

4 May 2016

Date of orders:

16 May 2016

Decision date:

16 May 2016

Before:

McColl JA at [1]
Basten JA at [63]
Ward JA at [137]

Decision:

(1)   Appeal allowed with costs.

 

(2)   Set aside the orders made by Neilson DCJ on 28 July 2015.

 

(3) Remit the matter to the District Court in its residual jurisdiction for determination in accordance with the judgment of this Court as to the appropriate date in terms of s 10(1D) of the Police Regulation (Superannuation) Act 1906 (NSW) that payment of the additional amount of superannuation to the appellant takes effect, noting:

(a) The finding of the District Court that at all relevant times the appellant was, in terms of s 10(1A)(b), relevantly incapacitated commensurate with payment of an ‘additional amount’ of superannuation of 12.25% of the appellant’s attributed salary of office is not disturbed by these orders;
(b)   These orders do not affect the entitlement of the parties to seek costs orders of the original hearing before Neilson DCJ or costs orders of any remittal hearing.

Catchwords:

APPEAL – statutory appeal – District Court Act 1973 (NSW), s 142N – whether appellant aggrieved by award in point of law – whether primary judge determined appellant not an aggrieved person within meaning of s 21(1), Police Regulation (Superannuation) Act 1906 (NSW)

 

STATUTORY INTERPRETATION – construing statute conferring jurisdiction on court – whether jurisdiction dependent on satisfaction of judge of court concerned – construing facultative provision

 

SUPERANNUATION – police superannuation – application to District Court for determination by person aggrieved by decision made by SAS Trustee Corporation (STC) – nature of jurisdiction – Police Regulation (Superannuation) Act 1906 (NSW), s 21(1)

 

SUPERANNUATION – police superannuation – entitlement to backdating of additional amount of annual superannuation allowance – where appellant did not seek backdating of additional amount in application for that payment – where STC determined additional amount payable from date application was received – application to District Court for determination in relation to STC’s decision as to commencement date of additional payment – Police Regulation (Superannuation) Act 1906 (NSW), s 10(1A)(b), s 10(1D)

WORDS AND PHRASES – “person aggrieved” – “decision” – “point of law” – “real merits and justice of the case” – Police Regulation (Superannuation) Act 1906 (NSW), s 21(1); District Court Act 1973 (NSW), s 142J, s 142N

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56
Commonwealth Electoral Act 1918 (Cth), s 364
Compensation Court Act 2004 (NSW) , s 32
Courts Legislation Amendment Act 2004 (NSW), Sch 7 [7]
District Court Act 1973 (NSW), ss 8, 142G, 142I, 142J, 142M, 142N; Div 8A
Police Regulation (Superannuation) Act 1906 (NSW), ss 10, 10B, 21
Small Debts Recovery Act 1912 (NSW), s 7
Superannuation Legislation Amendment Act 2006 (NSW)
Workers’ Compensation Act 1926 (NSW), s 36

Cases Cited:

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Attorney-General for the State of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653
Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126
Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280
Director of Public Prosecutions (Cth) v JM [2013] HCA 30; (2012) 250 CLR 135
Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 309;
Ex parte Australian Sporting Club Ltd; Re Dash [1947] NSWStRp 11; (1947) 47 SR (NSW) 283
Featherston v Tully [2002] SASC 243; (2002) 83 SASR 302
Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168
Lembcke v SAS Trustee Corporation [2003] NSWCA 136; (2003) 56 NSWLR 736
Maurici v Chief Commissioner of State Revenue [2003] HCA 8; (2003) 212 CLR 111
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 19 NSWLR 434
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
R v Berchet (1688) 1 Show KB 106; 89 ER 480
R v Brown [1996] AC 543
SAS Trustee Corporation v Patterson [2010] NSWCA 167
Sue v Hill [1999] HCA 30; (1999) 199 CLR 462
Swift v SAS Trustee Corporation [2010] NSWCA 182; (2010) 6 ASTLR 339
Tanks v SASTC (District Court (NSW), Neilson DCJ, 1 September 2004, unrep)
Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531
Thomas v Airlines of NSW Pty Ltd (1963) 81 WN (Pt 2) (NSW) 213
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439
Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547
Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446

Texts Cited:

Hon MJ Beazley, “The distinction between questions of fact and law: a question without answer?” (2013) 11 TJR 279
O Howard Beale, “Equity and Good Conscience” (1937) 10 ALJ 349
W Hutton, The Court of Requests: their nature, utility, and powers described, with a variety of cases determined in that of Birmingham (1787) at 74
N Rees, “Procedure and Evidence in ‘Court Substitute Tribunals’” (2006) 28 Aust Bar Rev 41
M Q Smye, “The Court of Requests in Birmingham 1752-1847” (1987) 12 Holdsworth L Rev 138 at 143
W H D Winder, “The Court of Requests” (1936) 52 LQR 369

Category:

Principal judgment

Parties:

Paul Stephen Joseph Daley (Appellant)
SAS Trustee Corporation (Respondent)

Representation:

Counsel:
Dr C Birch SC and P O’Rourke (Appellant)
T Ower (Respondent)

  Solicitors:
Walter Madden Jenkins Solicitors (Appellant)
Rodney Blume (Respondent)

File Number(s):

2015/247213

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2015] NSWDC 183

Date of Decision:

28 July 2015

Before:

Neilson DCJ

File Number(s):

RJ00531/14

Judgment

1. McCOLL JA: The appellant, Paul Daley, receives an annual superannuation allowance paid by the Police Superannuation Fund (“Fund”). The Fund was established under the Police Regulation (Superannuation) Act 1906 (NSW) (“Act”) and is administered by the respondent, the SAS Trustee Corporation (“STC”). On 4 February 2014 the appellant made an application to the STC for an additional hurt on duty (“HOD”) pension benefit pursuant to s 10(1A) of the Act (“s 10(1A) application”). On 2 May 2014 the STC approved that increase and determined that it would be payable from 4 February 2014, the date the STC received the s 10(1A) application.

2. This appeal concerns the appellant’s subsequent application pursuant to s 21(1)(a) of the Act for a determination by the District Court in relation to the STC’s decision. The appellant sought an order setting aside the STC’s decision to commence the increase from 4 February 2014 and an order that the STC commence the increase from 6 September 2003, being the day after the date the appellant was medically discharged from the NSW Police Force (“Police Force”), or such other date as the Court saw fit.

3. The application came before Neilson DCJ. His Honour gave an ex tempore judgment dismissing the appellant’s application and confirming the STC’s decision. [1] The appellant appeals against his Honour’s determination.

   1. Daley v SAS Trustee Corporation [2015] NSWDC 183.

4. The appeal is brought pursuant to s 142N of the District Court Act 1973 (NSW) (“DC Act”), from proceedings in the District Court’s residual jurisdiction under s 142G of the DC Act, by reason of proceedings heard by it under s 21 of the Act. The appeal to this Court is given to a party aggrieved by an award of the District Court in point of law. [2] An “award” is defined to include, amongst other things, an order, decision or determination. [3]

   2. DC Act, s 142N(1).

   3. DC Act, s 142M.

5. The appellant does not require leave to appeal as his solicitor has filed an affidavit demonstrating that, if successful, he believes the appellant would be entitled to arrears in pension in the amount of $80,037.74. [4]

   4. Cf DC Act, s 142N(4)(c).

6. For the reasons that follow, I am of the view that the appeal should be allowed and the issue of the appropriate date in terms of s 10(1D) of the Act that payment of the additional amount of superannuation to the appellant takes effect should be remitted to the District Court in its residual jurisdiction in accordance with the orders set out at [62] below.

Legislative framework

7. Section 10 of the Act establishes the circumstances in which, and the quantum of which, the annual superannuation allowance is payable to a disabled member of the Police Force. Section 10(1A) provides:

“10 Superannuation allowance where member hurt on duty

…

(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.

…

(1D)    STC may:

(a)   make a determination at any time of an additional amount of a superannuation allowance under this section, and

(b)   vary any such determination at any time,

and may direct that the determination or variation take effect from such date as STC considers appropriate.”

8. Prior to 30 June 2006, the terms of the Act, including 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, whereas the allowance in (a) did not. [5]

   5. SAS Trustee Corporation v Patterson [2010] NSWCA 167 (“Patterson”) (at [13]) per Allsop ACJ (Campbell JA and Handley AJA agreeing).

9. The Act was amended in 2006 (“2006 Amendments”) by the insertion of s 10(1BA), which 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. [6]

   6. Ibid (at [15]).

10. In Patterson, the Court held that the 2006 Amendments did not apply to a former member of the Police Force who “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)”. [7]

    7. Ibid (at [20] – [21]).

11. The primary judge accepted (and the STC does not dispute) that Patterson applied to the appellant, as his right to receive an HOD pension had accrued at least by the time of his medical discharge on 5 September 2003. [8]

    8. Primary judgment (at [32]).

12. Section 21 of the Act relevantly provides:

“21 Determination by District Court

(1)   A person who considers himself or herself aggrieved by:

(a)    a decision made by STC on a matter that arises under this Act by reason of a member of the police force being hurt on duty, or

(b)    a decision made by the Commissioner of Police under section 10A (1), 10B (3) (a), 12C (1), 12C (2) or 12D (4) (a),

may, within the period of 6 months after the person is notified of that decision, apply to the District Court for a determination in relation to that decision.

…

(4)   The District Court, after considering an application under this section, may make a determination that the decision of STC or the Commissioner of Police, as the case may be, in respect of which the application was made:

(a)    be confirmed, or

(b)    be set aside and replaced by a different decision made by the District Court.

…

(6)    Where the District Court makes a decision referred to in subsection (4)(b), that decision shall, for the purposes of this Act, be deemed to be made by STC or the Commissioner of Police, as the case may be, and shall be carried into effect.

…”

Factual background

13. The appellant is a former sergeant of police. He entered the Police Force on 3 April 1978 and on that date became a contributor to the Fund. On 28 August 2003 the Police Superannuation Advisory Committee (“PSAC”) certified that the appellant was incapable of discharging the duties of his office on account of infirmities including “post-traumatic stress disorder; major depressive disorder; generalised anxiety disorder; and organic amnestic syndrome.” The appellant was consequently medically discharged from the Police Force on 5 September 2003. [9]

    9. Ibid (at [2] – [3]).

14. Because of his length of service, the appellant became entitled to a superannuation allowance of 60.625% of the salary of his office. That superannuation benefit was not an HOD pension. Whether the appellant was entitled to an HOD pension depended on an appropriate certification by the Commissioner of Police or the District Court pursuant to s 10 of the Act that the appellant’s suffering of at least one of his certified infirmities was caused by his having been hurt on duty.

15. On 8 December 2003 the Commissioner of Police, by his delegate, determined that none of the appellant’s certified infirmities was caused by him having been hurt on duty. The appellant brought proceedings in the District Court seeking to set aside the Commissioner's decision. Those proceedings were ultimately settled. On 13 March 2006 the Commissioner of Police revoked his decision of 8 December 2003 and determined, pursuant to s 10B(3)(a) of the Act, that the appellant’s suffering of “chronic post-traumatic stress disorder” was caused by him being hurt on duty.

16. As a result of this determination, the appellant fell within the definition of a “disabled member of the police force” contained in s 10(1) of the Act. Accordingly, he was entitled to superannuation payments in an amount equal to 72.75% of his salary of office, payable from 6 September 2003.

17. On 18 April 2006 the STC sent a letter to the appellant advising him it had recently received a request to increase his Police Superannuation Scheme pension due to his exit reclassification to “Hurt on Duty”. The letter informed the appellant of the details of his new pension, and under the heading "Increased pension benefits", set out the text of s 10(1A) of the Act. It also advised him that if he wished to lodge a claim for payment of an additional s 10(1A) pension he would have to submit a claim for increased benefits in writing. The appellant’s evidence at trial was that he did not receive the letter. However, the primary judge was persuaded that he must have received it. [10]

    10. Ibid (at [8]).

18. In any event, the appellant did not seek legal advice in relation to lodging a claim for an additional pension benefit pursuant to s 10(1A) until 8 February 2012, when he contacted Walter Madden Jenkins, the firm from which he had previously sought assistance in relation to his “Hurt on Duty” classification.

19. The appellant’s claim was subsequently lodged on 4 February 2014. It was submitted on what is clearly the STC’s standard application form for an increase in HOD pension pursuant to s 10(1A). The appellant signed the application, but left it to his solicitors to complete. [11]

    11. Ibid (at [11]).

20. Question 27 of the application asked whether the applicant was “currently incapacitated for work outside the Police Force to any extent”, to which the applicant’s response was to direct the reader’s attention to an attachment which summarised a report from his psychiatrist. Relevantly, the summary stated:

“Mr Daley’s psychiatric condition significantly restricts his capacity to undertake any activity of a meaningful kind … He has not been able to engage in any remunerative employment since being discharge [sic] from the NSW Police Force…”

21. Question 28 of the application asked:

“Are you seeking to have the pension increase commence from a date that is earlier than the date of application?”(Emphasis in original)

22. The application the appellant submitted did not contain any mark in either the yes or no boxes provided to respond to that question. Question 28 also required reasons for seeking a pension increase from an earlier date. Nothing appeared in that part of the application. Accordingly, the primary judge held question 28 had not been answered at all. [12]

    12. Ibid (at [13]).

23. On 2 May 2014 the STC made a determination pursuant to s 10(1D) of the Act, approving an increase in the appellant’s pension from 72.75% to 85% in accordance with s 10(1A)(b).

24. The STC communicated its determination to the appellant by a letter dated 5 May 2014 (“determination letter”). The letter relevantly stated:

“The new pension will be payable from 4 February 2014, which is the date of receipt of the completed application.”

25. The letter also advised the appellant that if he was dissatisfied with “the Committee’s decision/s as detailed, including the date of the commencement of the pension increase” he had “a right to appeal that decision in the District Court … in accordance with section 21(1)(a) of the Act.”

26. The appellant filed a statement of claim in the District Court on 12 November 2014. He asked that the STC’s determination to commence the increase in his annual superannuation allowance from 4 February 2014 be set aside. He sought a determination that the STC commence the increase in his superannuation allowance from 6 September 2003, or such other date as the Court deemed fit.

27. In his statement of claim, the appellant recited that the STC had granted his application to increase his annual superannuation allowance and had increased it “payable on and from 4 February 2014”. He asserted that he was “aggrieved by that part of the decision made pursuant to s 10(1D) of the Act” and claimed that that decision was “not an appropriate date from which to commence payment of an increase in his annual superannuation allowance”.

28. In defence to that part of the statement of claim in which the appellant alleged that he had been “aggrieved” as set out above, STC pleaded:

“… the Plaintiff cannot be aggrieved by that decision because he did not seek to have the increase commence from a date that was earlier than the date of application.”

Primary judgment

29. The primary judge identified the central issue for determination as the date on which the superannuation benefit payable to the appellant pursuant to s 10(1A)(b) or (c) ought to commence. [13]

    13. Ibid (at [1]).

30. His Honour considered the medical material which the appellant had provided to the STC with his application and further medical material provided for the District Court hearing. Based on that evidence his Honour determined that the appellant had been “totally incapacitated for all forms of employment since he was medically retired”, and that the STC “was likewise persuaded.” This finding satisfied s 10(1A)(b)(ii) of the Act. His Honour considered that the remaining question, being the date from which the increased pension should be paid to the appellant, was one “of statutory interpretation”. [14]

    14. Ibid (at [29]).

29. The primary judge later set out paragraphs [13] and [21] of Patterson. [15] His Honour accepted the appellant’s submission that, having regard to that decision, there was no legislative requirement for the plaintiff to make an application under s 10(1A). Accordingly, his Honour said “[m]aking an application cannot therefore be determinative of anything, per se.” [16]

    15. Ibid (at [40]).

    16. Ibid (at [41]).

30. The primary judge then directed his attention to the meaning to be given to the word “appropriate” in s 10(1D) in the context of the STC’s submission that the question of delay was also relevant. [17]

    17. Ibid (at [42ff]).

31. His Honour referred to his decision in Tanks v SASTC, in which he held that a person’s delay in seeking an additional HOD pension pursuant to s 10(1A)(b) should not provide the applicant “with a windfall or the [STC] with a detriment”. [18] His Honour then embarked upon a consideration of other District Court decisions concerning s 10(1A)(b) applications in which the question of the date of commencement of any increased HOD pension was discussed, particularly by reference to the windfall concept. The relevance of that discussion is unclear. As his Honour later acknowledged, [19] the concept of “windfall gain” was rejected in Lembcke v SAS Trustee Corporation. [20]

    18. (District Court (NSW), Neilson DCJ, 1 September 2004, unrep) (at [28]).

    19. Primary judgment (at [56]).

    20. [2003] NSWCA 136; (2003) 56 NSWLR 736 (“Lembcke”) (at [4] per Meagher JA; at [48] per Santow JA; at [54] per Ipp JA).

32. His Honour accepted, by reference to Swift v SAS Trustee Corporation, [21] which concerned backdating of the initial pension entitlement, that delay was a relevant consideration. The appellant conceded the relevance of delay, “but only if the delay impeded the ability of a plaintiff to establish factually the degree of incapacity at any relevant time”. [22]

    21. [2010] NSWCA 182; (2010) 6 ASTLR 339 (“Swift”).

    22. Primary judgment (at [52] – [53], [55]).

33. The primary judge then said at [56] – [62]:

“[56]   … I have found as a fact that at all relevant times that is, since the date of his medical discharge from the NSW Police the plaintiff has been totally incapacitated for any form of work. Such, implicitly, was also the determination of the defendant. A decision not to commence the plaintiff's pension entitlement – that is, the 85% entitlement – on the date of his discharge on 5 September 2003 could be seen as a detriment to him, a failure to order to be paid out of the Fund moneys that might be thought to be properly payable by the Fund to the plaintiff.

Initial Failure to Seek Backdating

[57] However, the fact remains that I am asked to do what the STC was itself not asked to do. The plaintiff did not ask the defendant to backdate his pension to 5 September 2003, nor did the plaintiff give to the STC any reasons why that should be done. It must be remembered that s 21(1) of the Act gives a right of appeal to a person ‘who considers himself or herself aggrieved.’ I ask myself, rhetorically, how can one consider oneself to be aggrieved when one does not seek the relief from the STC which the plaintiff now seeks from this Court?

…

[60]   This is hardly a straight forward case. Things point to the plaintiff’s delaying and there being a decision made back in 2006 not to pursue further litigation or to pursue a further right which could involve further litigation, but then a decision made a large number of years later to try to obtain an increased benefit. The increased benefit was obtained but the plaintiff did not ask for it to be backdated. Having obtained the increased benefit from the defendant, the plaintiff now asks this Court to backdate it, although he did not ask the defendant to do so.

[61]   … I believe I should rest my decision on this consideration: if the plaintiff had in his application to the STC requested backdating to 5 September 2003 and given reasons why that should be done, then the defendant may have so backdated the decision. However, the plaintiff did not do so. He was legally represented. He may have left the filling in of the application form to his solicitors. They ought to have filled it out in the proper way. They did not do so. The plaintiff not having asked for a backdating, it was not granted by the defendant. The plaintiff now says he is aggrieved but the grievance really is with the way in which the form was filled out.

[62]   To me, everything points to some form of estoppel by conduct. However, neither party has argued the case on that basis. I have come to the view that the plaintiff cannot have been aggrieved by the decision of the current defendant when the plaintiff did not ask the current defendant to backdate his pension to the date to which he asks me to backdate the pension. No adequate explanation has been given as to why the application form was not completed. In the circumstances, I should dismiss the application.”(Emphasis added)

36. Accordingly, the primary judge dismissed the application and confirmed the decision of the STC made 2 May 2014. [23]

    23. Ibid (at [65]).

Issues on appeal

37. The appellant advances four grounds of appeal, all of which essentially turn on the contention that the primary judge erred in point of law in determining that the appellant was not an aggrieved person for the purposes of s 21(1) of the Act because the appellant had not expressly requested, in his application for the additional HOD pension, the backdating of the additional benefit to a date prior to the date of his application to the respondent.

38. The respondent filed, but abandoned, a notice of contention.

Consideration

39. It is necessary first to consider the nature of the jurisdiction the primary judge was exercising.

40. Although the determination letter advised the appellant of his “appeal rights” pursuant to s 21 of the Act, that provision is headed “Determination by District Court”. Section 21(1) permits a person who considers himself or herself aggrieved by a number of decisions identified in s 21(1)(a) or (b) to apply to the District Court for a determination in relation to that decision. The District Court is empowered by s 21(4) either to confirm the decision or set it aside and replace it with a different decision made by the District Court. [24]

    24. See [12] above.

41. It was common ground on appeal that an application to the District Court pursuant to s 21 of the Act is not an appeal in the strict sense, but rather in the nature of a hearing de novo. In such an appeal, the matter is heard afresh and a decision is given on the evidence presented at that hearing. [25] The appellate tribunal’s powers may be exercised regardless of error. [26] The party succeeding below enjoys no advantage, and must seek to win the case a second time. [27]

    25. Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 (“Coal and Allied Operations”) (at [13]) per Gleeson CJ, Gaudron and Hayne JJ.

    26. Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (at [23]) per Gaudron, McHugh, Gummow and Hayne JJ; see also Coal and Allied Operations (at [14]).

    27. Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 (at 297 – 298) per Glass JA.

42. Indications that an appeal to a court from an administrative authority will necessarily entail an exercise of original jurisdiction or a hearing de novo are that the court is not confined to the materials before the authority, there is no provision for a hearing at first instance or for a record to be made of what takes place there, the authority is not bound to apply the rules of evidence and the authority may not be required to furnish reasons for its decision. [28] The jurisdiction the District Court exercises and the nature of the applications the STC considers, and the decisions it makes pursuant to s 10 of the Act, exhibit all of these characteristics.

    28. Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 (“Sperway”) (at 621) per Mason J; see also Ex parte Australian Sporting Club Ltd; Re Dash [1947] NSWStRp 11; (1947) 47 SR (NSW) 283 per Jordan CJ.

43. The District Court’s jurisdiction is engaged by a person who considers himself or herself aggrieved, relevantly, by a decision made by the STC on a matter that arises under this Act by reason of a member of the Police Force being hurt on duty. [29] The appellant submits that the primary judge held he did not satisfy that description because he had not answered question 28 in the application for the additional HOD pension. He contends that in so holding, his Honour misconstrued s 21(1).

    29. Act, s 21(1).

44. The appellant submits that the reference in s 21(1) to a “person … aggrieved” seeks to identify those parties with locus standi to make an application, being persons who have an appropriate interest or stake in the outcome of a decision made by the STC. He contends that nothing in the Act suggests the phrase “person … aggrieved” in s 21(1) should be given a limited meaning, or that the phrase is other than a device for determining who has locus standi to make application to the Court. It is submitted that, properly construed, the phrase ought not to be found to have the effect of limiting the type or nature of the application, or preventing the raising by a person with appropriate locus of grounds not raised before the primary decision maker.

45. As I have said, as the appellant was not affected by the 2006 Amendments, he was not required by s 10(1BA) to make an application in the circumstances for which that section provides. The appellant submits that, accordingly, the effect of s 10(1A)(b) was that he was entitled to have the STC consider his position and form an opinion according to law in relation to whether the additional benefits to which it refers should be paid to him. He accepts that, practically, he had to submit an application to commence the process of the STC’s consideration of that issue. Nevertheless, he contends that the primary judge was required to decide the matter on the real merits and justice of the case, [30] and that what appeared on an application form could not be determinative of whether he was a person aggrieved.

    30. DC Act, s 142J(1)(a).

46. The appellant submitted that where his application neither waived nor rejected the backdating option, the STC was obliged to exercise the s 10(1D) discretionary power and give consideration to directing that the determination take effect from a date it considered “appropriate”. In circumstances where he considered the STC ought, in the exercise of its powers, to have commenced the benefit from a date earlier than that from which it did, he was “aggrieved” because he necessarily considered that the STC did not exercise its powers in the fashion that fairness and reasonableness required.

47. The appellant contended that the language of s 21 suggested it was intended to grant the broadest possible opportunity to seek a fresh determination from the District Court, not limited to evidence or material that was before the STC. Equally, there was no reason to conclude that the right to apply under s 21 was limited to the terms in which the original application was made to the STC.

48. The STC, on the other hand, submits it is unlikely the primary judge was using the term “person … aggrieved” to determine the appellant’s standing to sue, but rather that his Honour used it as part of the balancing exercise in which he engaged to determine whether to exercise the discretion to back-date the commencement of the additional HOD pension. Nevertheless, the STC also appeared to submit it was difficult to see how the appellant could be “validly” aggrieved by a decision that was consistent with the application it determined.

49. The words “person aggrieved” or like terminology to the phrase in s 21(1) of the Act are frequently used and their meaning discussed. While the meaning of the words must depend on the context of the particular statute, they are often used to connote a person with a legal grievance which prejudicially affects the person’s interests, are of wide import and should not be subjected to a restrictive interpretation, but do not include a mere busybody. [31] Regard may be had to the remedy the person said to be aggrieved may have secured if the challenged decision had not been made. [32]

    31. Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 (“Koowarta”) (at 184) per Gibbs CJ; see also Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 19 NSWLR 434 (at 437 – 438) per McLelland J (as his Honour then was).

    32. Koowarta (at 185).

50. I accept the appellant’s submission that s 21(1) should not be read restrictively. The text of the provision does not lend itself to such an interpretation, nor does the context. Section 21(1) is the gateway to a hearing de novo at which a person who satisfies the description of being a “person … aggrieved” is entitled to have the subject of his or her grievance with an STC decision determined afresh. The subject of the inquiry is whether an applicant should receive a financial benefit, as to which the nature of the hearing gives an applicant a complete “second go”. It is improbable that the legislature intended narrowly to confine the class of those who could satisfy the standing to apply provision.

51. In my view, the appellant was a person aggrieved by the STC’s decision to commence his additional HOD pension from the date on which his application form was received. He was entitled to have the STC consider whether his additional pension should be backdated. [33] The fact that question 28 was not completed, for whatever reason, did not indicate that he did not seek the backdating of any additional pension. It left that question at large for the STC’s exercise of its s 10(1D) discretion.

    33. Act, s 10(1D).

52. Further, the quantum of any additional amount the appellant received had to be determined as “commensurate … [with his] incapacity for work outside the police force”. [34] In circumstances where he had attached to the application a medical opinion that he had been unable to engage in remunerative employment since he left the Police Force by reason of the psychiatric disorder which had led to his medical discharge, the appellant was entitled to have a reasonable expectation, in my view, that STC would find an earlier date than that on which his application form was received was the “appropriate” date from which any additional HOD pension should commence.

    34. Act, s 10(1A)(b)(ii).

53. The STC’s decision to commence the additional HOD pension from the date the application was received, rather than from an earlier date, was a decision within s 21(1)(a) which gave rise to a legitimate grievance which prejudicially affected the appellant’s financial interests. Neither the formal decision, nor, I would add, the form of his application was the determinant. [35]

    35. Cf Koowarta (at 221) per Stephen J.

54. It is also apparent, in my view, contrary to the STC’s submission, that the primary judge disposed of the matter on the basis that the appellant failed to meet the s 21(1) criterion. His Honour commenced that part of his reasons in which he finally concluded the appellant’s application should be dismissed, by asking rhetorically “how can one consider oneself to be aggrieved when one does not seek the relief from the STC which the plaintiff now seeks from this Court?” [36]

    36. Primary judgment (at [57]).

55. His Honour then embarked upon a factual inquiry as to the significance for the purposes of the STC’s decision of the appellant’s failure to complete question 28. He rested his decision on his conclusion that the appellant’s “grievance really [was] with the way in which the form was filled out”, [37] and that “the plaintiff cannot have been aggrieved by the decision of the current defendant when the plaintiff did not ask the current defendant to backdate his pension to the date to which he asks me to backdate the pension.” [38]

    37. Ibid (at [61]).

    38. Ibid (at [62]).

56. That was, with respect, too narrow a construction of who satisfied the description of “a person … aggrieved” for the purposes of s 21(1). In my view, in so concluding, his Honour misconstrued that provision and erred in point of law.

57. I would add that, in my view, as a matter of fact, the primary judge appears to have treated the failure to answer question 28 as if the applicant had not sought, rather than left open, the question whether the additional HOD pension should be backdated.

58. His Honour also, with respect, did not specifically identify the nature of the s 21(1) jurisdiction as being a hearing de novo. His Honour focused on the fact that he was “asked to do what the STC was itself not asked to do” [39] and on what had occurred in relation to the application to the STC. His reasons gave no indication that his Honour appreciated that he was determining the matter afresh and that, in that context, the appellant was entitled squarely to raise the appropriate date of commencement of his additional pension.

    39. Ibid (at [57]).

59. As is apparent, I would reject the STC’s submission that, properly understood, the primary judge was engaged in making a discretionary decision as to whether the appellant’s additional HOD pension should be backdated. There is no indication his Honour was engaging in the balancing exercise one might think would be revealed if that was his Honour’s approach. Had his Honour been doing so, one might have expected him to have weighed, for example, the significance of his finding that the appellant had been “totally incapacitated” since he was medically discharged, [40] and, too, his finding that as the appellant was not subject to the 2006 Amendments, “[m]aking an application cannot therefore be determinative of anything, per se” against his concern that question 28 had not been answered. [41]

    40. Primary judgement (at [29]).

    41. Ibid (at [41]).

60. Even accepting that “reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”, [42] his Honour’s emphatic disposition of the case on the basis the appellant was not relevantly “aggrieved” militates against the interpretation for which the STC contends.

    42. Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280 (at 287) per Neaves, French and Cooper JJ.

61. I would suggest that the STC should amend its pro forma letter advising of the outcome of applications to make it clear that the rights s 21(1) confers are by way of a complete redetermination of the application, not a “right of appeal” as that letter currently states.

Orders

62. I propose the following orders:

1. Appeal allowed with costs.

2. Set aside the orders made by Neilson DCJ on 28 July 2015.

3. Remit the matter to the District Court in its residual jurisdiction for determination in accordance with the judgment of this Court as to the appropriate date in terms of s 10(1D) of the Police Regulation (Superannuation) Act1906 (NSW) that payment of the additional amount of superannuation to the appellant takes effect, noting:

1. The finding of the District Court that at all relevant times the appellant was, in terms of s 10(1A)(b), relevantly incapacitated commensurate with payment of an ‘additional amount’ of superannuation of 12.25% of the appellant’s attributed salary of office is not disturbed by these orders;

2. These orders do not affect the entitlement of the parties to seek costs orders of the original hearing before Neilson DCJ or costs orders of any remittal hearing.

63. BASTEN JA: On 5 September 2003 the appellant, Paul Daley, was discharged from the New South Wales Police Force, on medical grounds. On 13 March 2006 the Commissioner of Police accepted that he suffered chronic post-traumatic stress disorder, caused by him being “hurt on duty”. In the result, he fell within the definition of a “disabled member of the police force” for the purposes of s 10 of the Police Regulation (Superannuation) Act 1906 (NSW) (“the Superannuation Act”). He became entitled to an “annual superannuation allowance” equal to 72.75% of his salary. [43]

    43. The Act, s 10(1A)(a).

63. On 16 January 2014 the appellant applied to the respondent SAS Trustee Corporation (referred to in the Act as the “STC”) for an increase in his allowance, pursuant to s 10(1A) of the Superannuation Act. That provision allowed for an increase of the base allowance by an additional amount calculated as not more than 12.25% of the member’s salary, giving a total allowance of up to 85%. That calculation depended upon the additional amount being “commensurate, in the opinion of STC, with the member’s incapacity for work outside the police force”: s 10(1A)(b)(ii).

64. Having formed the relevant opinion, the STC had powers identified in s 10(1D) in the following terms:

(1D)   STC may:

(a)   make a determination at any time of an additional amount of a superannuation allowance under this section, and

(b)   vary any such determination at any time,

and may direct that the determination or variation take effect from such date as STC considers appropriate.

66. It was accepted by the parties that in directing from when the determination should “take effect” the STC was specifying the date from which the allowance was payable.

67. The provisions now found in s 10(1BA), regulating when an application must be made, were introduced by amending legislation on 30 June 2006, and do not apply to the appellant, who had become entitled to an allowance before that date. [44] As explained by Allsop ACJ in SAS Trustee Corporation v Patterson: [45]

“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.”

44. Superannuation Legislation Amendment Act 2006 (NSW), Sch 1.2 [7]-[10].

45. [2010] NSWCA 167 at [21] (Campbell JA and Handley AJA agreeing).

68. It is true that there was no express statutory obligation to make an application in any particular form, nevertheless the practical need for an application meant that there was always an implied requirement for that to be done, in order to engage the statutory function of the STC. In fact, the appellant lodged an application in the currently available form. The form contained 35 sections, three of which expressly dealt with a proposed increase on the basis that the claimant had been exposed in the course of his duties to what are described in the form as “special risks”, pursuant to s 10(1A)(c). The appellant did not apply under that provision and the relevant sections were ruled through. Of the other 32 sections, the applicant (or his solicitor) completed in handwriting all except one. The one not completed was question 28 which asked: “Are you seeking to have the pension increased from a date that is earlier than date of application?” The question contained two boxes for the applicant to mark “yes” or “no” and a further request, “If yes, please indicate the date and give the reason for seeking that earlier date.” This question was not answered, the date was not completed and relevant reasons were not supplied.

69. By letter dated 5 May 2014, the STC advised the appellant that it had approved the increase in pension from 72.75% to 85%. It further stated that the new pension would be “payable from 4 February 2014, which is the date of receipt of the completed application.” The letter also stated:

“Appeal rights

If your client is dissatisfied with the Committee’s decision/s as detailed above, including the date of commencement of pension increase, your client has a right to appeal that decision in the District Court within 6 months after the notification of this decision, in accordance with s 21(1)(a) of the Act.”

Application to District Court

70. Contrary to the indication in the letter that the appellant had a right of “appeal”, s 21 is somewhat differently worded:

21   Determination by District Court

(1)   A person who considers himself or herself aggrieved by:

(a)   a decision made by STC on a matter that arises under this Act by reason of a member of the police force being hurt on duty,…

…

may, within the period of 6 months after the person is notified of that decision, apply to the District Court for a determination in relation to that decision.

…

(4)   The District Court, after considering an application under this section, may make a determination that the decision of STC or the Commissioner of Police, as the case may be, in respect of which the application was made:

(a)   be confirmed, or

(b)   be set aside and replaced by a different decision made by the District Court.

(5)   The District Court shall not make a decision referred to in subsection (4)(b) unless STC or the Commissioner of Police, as the case may be, could pursuant to this Act make that decision.

(6)   Where the District Court makes a decision referred to in subsection (4)(b), that decision shall, for the purposes of this Act, be deemed to be made by STC or the Commissioner of Police, as the case may be, and shall be carried into effect.

71. On 12 November 2014 the appellant filed a statement of claim in the District Court seeking a determination in relation to the decision of the respondent, not directed to the increase in the allowance, but to the date of commencement. The summons sought an order that payment commence from 6 September 2003 (being the day after his discharge from the Police Force), or such other date as the court deemed fit.

72. The application was rejected by Neilson DCJ: Daley v SAS Trustee Corporation. [46] The judge stated the basis of his decision in the following passages:

“[61] … I believe I should rest my decision on this consideration: if the plaintiff had in his application to the STC requested backdating to 5 September 2003 and given reasons why that should be done, then the defendant may have so backdated the decision. However, the plaintiff did not do so. He was legally represented. He may have left the filling in of the application form to his solicitors. They ought to have filled it out in the proper way. They did not do so. The plaintiff not having asked for a backdating, it was not granted by the defendant. The plaintiff now says he is aggrieved but the grievance really is with the way in which the form was filled out.

[62] … I have come to the view that the plaintiff cannot have been aggrieved by the decision of the current defendant when the plaintiff did not ask the current defendant to backdate his pension to the date to which he asks me to backdate the pension. No adequate explanation has been given as to why the application form was not completed. In the circumstances, I should dismiss the application.”

Issues on appeal

46. [2015] NSWDC 183.

(a)   basis of judgment in District Court

73. The appellant submitted that the judge’s finding that the appellant “cannot have been aggrieved”, picking up the chapeau in s 21(1), constituted a refusal of jurisdiction. A wrongful refusal of jurisdiction constituted an error in point of law for the purposes of s 142N(1) of the District Court Act 1973 (NSW), requiring this Court to set aside the decision of the primary judge and remit the matter to the District Court for determination according to law.

74. The STC disputed that construction of the judgment. It submitted that the primary judge had in fact dealt with the substantive issue which the appellant sought to have determined, namely whether, pursuant to s 10(1D), it was “appropriate” to commence the payment of the increased allowance from the date on which the application was received, or some earlier date. The STC submitted that the judge had weighed the relevant discretionary factors, so that no error in point of law could be demonstrated and the appeal should be dismissed.

75. There are a number of aspects of the judgment which support the reading adopted by the STC. First, there was the way in which the proceedings were conducted. Although the defence filed by the STC stated that the appellant “cannot be aggrieved by that decision because he did not seek to have the increase commence from a date that was earlier than the date of application”, that issue was not squarely addressed by the parties. So much is reflected in the judgment itself, as, if the application were to be dismissed on jurisdictional grounds, most of the first 54 paragraphs of the 65 paragraph judgment were beside the point.

76. Secondly, in commencing his “consideration”, at [55], the judge said, “[o]ne thing that is clear from Swift is that delay is a relevant consideration.” The reference to Swift v SAS Trustee Corporation [47] was apparently a reference to a passage in the judgment of this Court, set out by the primary judge at [53] of his reasons, in which there was discussion as to whether the primary judge in that matter had erred in backdating the allowance to the date of the application, in circumstances where that date was earlier than the date of determination, but after the date of retirement. This Court said that the judge had not been in error, having given “careful consideration to the question why no application had been made at the date of retirement.” [48] Thus, the first factor taken into account by the primary judge went to the merit of the substantive issue raised under s 10(1D).

    47. [2010] NSWCA 182.

    48. Swift at [49].

77. In the next paragraph, the judge raised a further consideration relevant to the question of backdating, namely his own finding (said to have been, implicitly, also that of the STC) that the appellant had been totally incapacitated for any form of work since the date of his medical discharge. [49]

    49. Daley at [56].

78. Thirdly, the STC noted that both in the judgment at [65], and in the second order made by the Court, the decision of the STC was said to “be confirmed.” That would not have been an appropriate order if the application had been dismissed as falling outside the jurisdiction of the Court.

79. There are, nevertheless, countervailing indications. After setting out the two factors which clearly went to the merit of the application, the judge then continued under a separate heading, “Initial Failure to Seek Backdating”. The following six paragraphs commenced with the statement: [50]

“However, the fact remains that I am asked to do what the STC was itself not asked to do. The plaintiff did not ask the defendant to backdate his pension to 5 September 2003, nor did the plaintiff give to the STC any reasons why that should be done. It must be remembered that s 21(1) of the Act gives a right of appeal to a person ‘who considers himself or herself aggrieved.’ I ask myself, rhetorically, how can one consider oneself to be aggrieved when one does not seek the relief from the STC which the plaintiff now seeks from this Court?”

50. Daley at [57].

80. The next three paragraphs dealt with the absence of evidence as to why no application had been made to the STC to backdate the payment sought and what inferences might be drawn from the absence of evidence. [51] Although it is true that there was reference to factors which might be described as involving delay, or more accurately prevarication, there was no reference in these paragraphs to the finding of total incapacity throughout the relevant period. The period of full incapacity would have been an important consideration (though not necessarily decisive) in addressing the “appropriate” date from which the new allowance should be paid.

    51.    Daley at [58]-[60].

81. Furthermore, when the judge came to identify expressly the “consideration” on which he rested his decision (in the passage set out at [72] above), the explanation focused entirely upon the failure to apply to the STC to have payment of the increased allowance backdated. As the appellant submitted, by that stage in the reasons factors relevant to whether or not to backdate the payment had given way to factors directed to whether the application should be entertained at all.

82. To the extent that the “jurisdictional” challenge raised by the STC in its defence was not addressed in the course of the hearing, the appellant eschewed reliance on that factor and embraced the conclusion that the judge had in fact dealt with the matter in that way, but in doing so had acted erroneously in point of law.

83. To adopt the appellant’s understanding of the judgment it is necessary to treat the order confirming the decision of the STC as anomalous. Nevertheless, this issue should be resolved in favour of the appellant. The succinct conclusion that the appellant “cannot have been aggrieved by the decision” of the STC, not having asked the STC to backdate the allowance, invoked the language of s 21 and did not purport to be a resolution of the question arising under s 10(1D). However, that conclusion makes it necessary to consider whether the determination by the primary judge was indeed “jurisdictional”, as the appellant described it, and whether it was erroneous in point of law.

(b)   whether refusal to exercise jurisdiction

84. It may be inferred from the key passages set out at [72] above that there were two steps in the reasoning of the primary judge. The first step was the finding that the appellant was not entitled to seek a determination in the District Court of a decision on a matter which had not been raised before the STC. The second step was to treat the first finding as not insuperable, had the appellant provided an adequate explanation for the omission to raise the issue before the STC, although that course had not been taken.

85. The appellant emphasised that the primary judge considered that the appellant was not “a person… aggrieved” for the purposes of s 21(1)(a). However, that is to fail to read the critical passages as a whole. There was no grievance detached from the decision. The reasoning is more fairly reflected in the judge’s statement at [62] that the appellant “cannot have been aggrieved by the decision of [the STC]”. The subject-matter of the supposed grievance was a critical element. That was because, as the judge explained, there was no dispute or issue raised before the STC as to the commencement date for the increase in the allowance. The application form indicated that the commencement date would be the date on which the application was received, if no other date were sought and justified. No other date was sought. In other words, “decision” in s 21(1) was understood to refer to the resolution of an issue actually raised in the application.

86. There is an alternative construction, namely that the word “decision” refers to all aspects of the award made by the STC, which would incorporate both issues raised for determination and those which were not, and therefore would include the date from which the increase was to be paid. The distinction, though real, does not involve a bright line, but rather involves a degree of overlapping and allows for flexibility. For reasons discussed below, the broad reading should not be preferred, but the present discussion goes to a different point.

87. The second aspect of the judge’s reasoning, concerning discretion, is critical. If, as the judge clearly accepted, he had a discretionary power to address the new issue, but declined to do so in the absence of any adequate explanation as to why it was not raised below, it was wrong to describe the first step as a finding as to “jurisdiction”. In the conventional understanding of that term, a jurisdictional limitation cannot be waived or overridden on discretionary grounds.

88. The significance of the discretionary power to consider the issue may be illustrated by analogy with circumstances which commonly arise in appellate jurisdiction. There, we are familiar with arguments based on legal principles which were not raised at trial and applications to lead further evidence on appeal. Those matters may be distinguished from attempts to obtain relief which was not sought at trial. In broad terms, such applications are accorded a degree of flexibility, consistently with the obligation to adopt procedures designed to facilitate “the just, quick and cheap resolution of the real issues in the proceedings”. [52] Nevertheless, there will also be a question on appeal as to what were “the real issues” litigated at trial. If flexibility is appropriate in appellate jurisdiction, it should be accorded an equal or greater weight where there is to be a fresh hearing.

    52. Civil Procedure Act 2005 (NSW), s 56.

89. It may also be appropriate to distinguish between what may be described as primary issues and secondary or consequential issues. With respect to some issues, such as costs, the failure to make an express application may be overlooked, because such an order would be entirely consequential upon the primary relief and is addressed as a matter of course in ordinary civil cases. A different approach might be adopted with respect to a claim for interest on an award of damages, especially if there were a discretionary element as to the basis on which the interest was to be calculated. If additional primary relief is sought, such as an injunction in addition to damages (or vice versa), a wider range of issues would be in play and the likelihood of an appellant being permitted to seek a new form of relief on appeal would be diminished.

90. Had the primary judge treated the question of backdating as one which, not having been raised in the application before the STC, simply could not be raised before the Court, that might have involved legal error, depending on the correct construction of the word “decision”. On the other hand, to treat the new issue as requiring an exercise of discretionary judgment did not involve legal error. The application for backdating not having been made before any tribunal until more than a decade after the incapacity arose, it was open to the judge to weigh in the balance both the delay in making the application and the absence of an adequate explanation for that delay.

91. Once it was established that a balancing exercise was appropriate, there was no basis put forward by the appellant in this Court as to why the primary judge erred in law in carrying out that exercise.

(c)   effect of facultative provisions

92. On the understanding of the judgment accepted above, no question arises as to whether the refusal of the primary judge to exercise the jurisdiction of the Court involved any error in point of law. On the assumption that that analysis is wrong, the appellant’s case is that the primary judge erred in law, in concluding that the right of appeal under s 21 was not engaged. In order to address that question it is necessary to pay close attention to the statutory functions of the District Court in exercise of its residual jurisdiction.

93. The residual jurisdiction was vested in the District Court on the repeal of the Compensation Court Act 2004 (NSW). Somewhat awkwardly, s 142I of the District Court Act conferred on the District Court “the same powers, authorities, duties and functions as the Compensation Court had under the Compensation Court Act 1984 immediately before [its repeal].” Those powers were given precedence over any other provisions of Div 8A dealing with the residual jurisdiction of the District Court.

94. The awkwardness of that provision is twofold: first, it drives the reader back to the provisions of a repealed statute; secondly, the assertion of precedence is likely to give rise to questions of implied repeal where there is inconsistency by way of subsequent amendments. However, these problems are unlikely to be troublesome as, at least for present purposes, the relevant provisions are repeated in very similar terms in Div 8A of the District Court Act.

92. The first point of significance in considering the scope of the Court’s powers is the nature of the jurisdiction conferred by s 142G. With the exception of a right of appeal given under the Worker’s Compensation (Dust Diseases) Act 1942 (NSW), s 8I, the jurisdiction is not referred to by the term “appeal”, but envisages a determination of a claim first made by an administrative officer.

93. Secondly, the approach to be adopted by the Court in exercise of its functions is prescribed by s 142J of the District Court Act.

142J   Decisions of Court when exercising residual jurisdiction

(1)   The following apply in the exercise of the Court’s residual jurisdiction:

(a)   a decision of the Court in any matter is to be on the real merits and justice of the case,

(b)   the Court is not bound to follow strict legal precedent,

(c)   subject to Subdivision 3:

(i)   a decision or proceeding of the Court is not vitiated by reason of any informality or want of form, and

(ii)   a decision or proceeding of the Court is not liable to be appealed against, reviewed, quashed or called in question by any court, and

(iii)   no proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of any decision or proceeding of the Court relating to, or on the face of the proceedings appearing to relate to, any matter within its residual jurisdiction, and

(iv)   the validity of any decision or proceeding of the Court cannot be challenged in any manner.

(2)   Nothing in subsection (1) prevents the Court from reconsidering any matter that has been dealt with by it in its residual jurisdiction (or had been dealt with by the Compensation Court), or from rescinding, altering or amending any decision previously made or given by the Court in the exercise of that jurisdiction (or by the Compensation Court), all of which the Court has authority to do.

(3)   In this section, decision includes award, order, determination, ruling and direction.

97. The privative clause contained in s 142J(1)(c) is said to be “subject to Subdivision 3”, which provides for the right of appeal exercised in the present case, set out in the following terms:

142N   Appeal to Court of Appeal on question of law

(1)   If a party to any proceedings before the Court in its residual jurisdiction is aggrieved by an award of the Court in point of law or on a question as to the admission or rejection of evidence, that party may appeal to the Court of Appeal.

(2)   The Court of Appeal may, on the hearing of any appeal under this section, remit the matter to the District Court in its residual jurisdiction for determination by that Court in accordance with any decision of the Court of Appeal and may make such other order in relation to the appeal as the Court of Appeal sees fit.

(3)   A decision of the Court of Appeal on an appeal under this section is binding on the District Court and on all the parties to the proceedings in respect of which the appeal was made.

98. Provisions similar to s 142J, requiring the court to reach its decision “on the real merits and justice of the case” and providing that the court is “not bound to follow strict legal precedent”, have a long history, but their scope and operation has defied precise articulation. As explained by Gleeson CJ and Handley JA in Qantas Airways Ltd v Gubbins,[53] such language does not involve terms of art and the words “have no fixed legal meaning independent of the statutory context in which they are found”. [54] As further explained in Gubbins, to the extent that the statute also confers a right of appeal on a question of law, it would seem that the broad language describing the function of the court or tribunal cannot be read as freeing it from the obligation to apply the general law. [55] As the joint reasons continued, “[t]he apparently conflicting provisions must, as a matter of construction, be reconciled”.

    53. (1992) 28 NSWLR 26.

    54.    Gubbins at 30E.

    55.    Gubbins at 29G.

99. The provisions of s 142J(1)(a) and (b) were to be found in the Workers’ Compensation Act 1926 (NSW), s 36(3) dealing with the powers of the Commission. The effect of that provision was discussed by Sugerman J in Thomas v Airlines of NSW Pty Ltd: [56]

“The Commission, however, is a body of limited statutory powers. Let it be conceded, and no doubt to some extent and without attempting to define its limits this is true, that it may refuse to allow its processes to be availed of so as to bring about an ‘injustice’. … Section 36(3) may be taken as requiring that the commission shall proceed according to the real merits and justice of the case in applying the provision of the statute to each particular set of circumstances which comes before it for decision; perhaps the provision that it shall not be bound to follow strict legal precedent is a direction to it that in performing this task it is not to regard itself as bound by supposed rules derived from previous decisions on similar, but not identical, sets of circumstances. But s 36(3) does not, in my opinion, empower the commission to decline to give effect to the provisions of the Worker’s Compensation Act on such considerations as may appear to emerge from the circumstances of the case; nor does it authorise the commission to transcend the powers which are conferred upon it by the Act.”

56.    (1963) 81 WN (Pt 2) (NSW) 213 at 220.

100. Thomas was a case in which it was held that the Commission had transcended its powers; different questions may arise where the tribunal has declined to exercise powers which, according to the statute, were available on the facts as found or which were not in dispute.

101. The 1606 English statute creating the Courts of Requests directed that commissioners adjudicate between parties “as they shall find to stand with equity and good conscience”. [57] At the risk of anachronism, it seems that the commissioners were not to apply legal principles, in part no doubt because they were not qualified attorneys, although the clerks of the court were and were available to advise them on points of law. [58] The courts of requests were commonly called “the Court of Conscience”. [59] Courts of Requests were established in New South Wales in 1829; [60] an amending Act of 1842 [61] required them to determine matters “in a summary way and according to equity and good conscience.” That language was retained by the Small Debts Recovery Act 1912 (NSW), s 7. As noted by one commentator in 1937: [62]

“The exact meaning of these words has long been the subject of controversy. It would be impossible to say how often they have been cited to magistrates in small debts cases in support of a claim of good moral, but doubtful legal, right – a submission invariably denounced by the opposition on the ground that the Small Debts Court is a Court of law and not of morals.”

57. (1606) 3 Jac 1, c 15, s 2.

58.    W H D Winder, “The Court of Requests” (1936) 52 LQR 369, 370; W Hutton, The Court of Requests: their nature, utility, and powers described, with a variety of cases determined in that of Birmingham (1787) at 74; MQ Smye, “The Court of Requests in Birmingham 1752-1847” (1987) 12 Holdsworth L Rev 138 at 143.

59.    Winder at 370.

60.    10 Geo IV, c 3.

61.    6 Vic c 15, s 4.

62. O Howard Beale, “Equity and Good Conscience” (1937) 10 ALJ 349.

102. It is arguable that the meaning of the words has changed over time, although the fact that such language was re-enacted in 2004 [63] may suggest a different intention. It is also arguable that the use of that language may have a different effect when the tribunal so empowered is constituted by a person with legal training, especially where the language is applied to an established court, such as the District Court. [64]

     63. Courts Legislation Amendment Act 2004 (NSW), Sch 7 [7].

     64. See also N Rees, “Procedure and Evidence in ‘Court Substitute Tribunals’” (2006) 28 Aust Bar Rev 41; see also Featherston v Tully (2002) 83 SASR 302; [2002] SASC 243 at [152] (Bleby J).

103. On the other hand, the express, and it might have been thought otiose, statement that a decision of this Court on an appeal from the District Court under s 142N “is binding on the District Court and on all the parties to the proceedings in respect of which the appeal was made” [65] might suggest that there was some sense in which the District Court was not otherwise bound by statements of the law in judgments of higher courts.

     65. District Court Act, s 142N(3).

104. Such provisions may operate differently with respect to state and federal tribunals. Nevertheless, in Minister for Immigration and Multicultural Affairs v Eshetu, [66] Gleeson CJ and McHugh J noted that such provisions were “intended to be facultative, not restrictive” and said that their purpose was “to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals.” A provision of the Commonwealth Electoral Act 1918 (Cth) under which a justice of the High Court sits as the Court of Disputed Returns, and “shall be guided by the substantial merits and good conscience of each case”, [67] was said in Sue v Hill,[68] to be “not inimical to the exercise of the judicial power of the Commonwealth” and as not exonerating the court from “the application of substantive rules of law” and “the rules of procedural fairness”.

     66. (1999) 197 CLR 611; [1999] HCA 21 at [49].

     67. Commonwealth Electoral Act, s 364.

     68. (1999) 199 CLR 462; [1999] HCA 30 at [42] (Gleeson CJ, Gummow and Hayne JJ).

105. A number of propositions may be derived from these cases, being only a few of the many cases which have addressed facultative provisions in terms of, or similar to, s 142J(1)(a) and (b). First, although they should not be understood as freeing the court or tribunal from all constraints flowing from the fact that the statutory jurisdiction is granted for an identified purpose and in specific terms, constraints which might otherwise be implied should not be implied. By analogy with the operation of a privative clause, it will be an exercise in statutory interpretation to determine to what extent a facultative provision may limit or remove a legal restriction on the exercise of a statutory power. Indeed, a provision which seeks to expand the legitimate exercise by the tribunal of its functions is the obverse of a privative clause, which seeks to limit review of the tribunal in the supervisory jurisdiction of a superior court.

106. Secondly, one effect of a facultative provision, though not one directly relevant in the present case, may be to allow for broadly expressed standards to be applied by reference to community attitudes and moral values not specifically reflected in established legal principle. That may remove constraints on the exercise of a discretionary power, by expanding the available implications as to the purpose of the legislation.

107. Thirdly, such a provision may affect how a jurisdiction-conferring power is to be construed. As suggested above, the term “decision” in s 21(1) of the Act has a variable meaning, which could be described as a core and a penumbra. In that context, the question raised by s 142J(1) is whether the facultative provision allows the District Court to adopt either a narrower or a broader meaning of that term, in considering whether to exercise its powers.

(d)   error in point of law [69]

69.    For a valuable review of the cases addressing this topic, see the Hon MJ Beazley, “The distinction between questions of fact and law: a question without answer?” (2013) 11 TJR 279.

108. The alleged error of law of the primary judge in the present case was not to exceed his jurisdiction in the literal sense of making orders which were beyond power, but to fail to exercise a jurisdiction which was, in some sense, mandatory. On one view, the alleged error was to be found in construing the word “aggrieved” in a way necessary to support the finding that the appellant, not having sought a back-dated payment, could not be aggrieved by the failure to provide it. However, as explained at [85] above, the complaint is better articulated as an implicit error in giving meaning to the word “decision” in s 21(1) of the Superannuation Act..

109. “Decision” may be described as an ordinary English word with no technical legal meaning. In the past, identification of its meaning would have been treated as a question of fact, as explained by Jordan CJ in Australian Gas Light Co v Valuer-General. [70] However, in Collector of Customs v Agfa-Gevaert Ltd,[71] whilst acknowledging established authority supporting that view, the High Court cast doubt on the proposition that there was a useful distinction to be drawn between determining the ordinary meaning of a word and determining the effect or construction of the word in a statute, the latter exercise being accepted as raising a question of law. [72] The Court concluded: [73]

“If the notions of meaning and construction are interdependent, as we think they are, then it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent from the law.”

70. (1940) 40 SR (NSW) 126 at 137.

71. (1996) 186 CLR 389; [1996] HCA 36.

72.    Agfa-Gevaert at 396.

73.    Agfa-Gevaert at 397.

110. The Court was careful, however, to say that it was “not necessary to resolve this issue” and later remarked that, “[i]n the area of statutory interpretation and construction, courts must be wary of propounding rigid rules”, [74] a position described in Taylor v The Owners – Strata Plan No 11564 [75] as the “rejection of rigid rules in statutory construction”.

     74.    Agfa-Gevaert at 401;

     75. (2014) 253 CLR 531; [2014] HCA 9 at [37] (French CJ, Crennan and Bell JJ).

111. The Court also stated in Agfa-Gevaert: [76]

“The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated.”

76. Agfa-Gevaert at 394; see also Director of Public Prosecutions (Cth) v JM (2012) 250 CLR 135; [2013] HCA 30 at [38]-[39].

112. The proper approach is not to focus solely on the word “decision” and apply to it some rule of statutory interpretation, in order to determine whether its construction involves a question of law; rather the focus should extend to the statutory provision conferring a right of appeal in point of law, in the terms of s 142N(1) of the District Court Act. It is in that Act that we find the potentially conflicting language of s 142J(1)(a) and (b) and the right of appeal in s 142N(1). In the joint reasons in Project Blue Sky Inc v Australian Broadcasting Authority, [77] under the heading “Conflicting statutory provisions should be reconciled so far as is possible”, there appears the following statement of principle:

“[69]   The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. [78] The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. [79] In Commissioner for Railways (NSW) v Agalianos, [80] Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed. [81]

[70]   A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. [82] Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. [83] Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. [84] Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[71]   Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. [85] In The Commonwealth v Baume [86] Griffith CJ cited R v Berchet [87] to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.”

77. (1998) 194 CLR 355; [1998] HCA 28 at [69].

78. See Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213 per Barwick CJ.

79. Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320 per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617 per Lord Scarman, "in the context of the legislation read as a whole".

80. (1955) 92 CLR 390 at 397.

81. Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312 per Gibbs CJ, 315 per Mason J, 321 per Deane J.

82. Ross v The Queen (1979) 141 CLR 432 at 440 per Gibbs J.

83. See Australian Alliance Assurance Co Ltd v Attorney-General of Queensland [1916] St R Qd 135 at 161 per Cooper CJ; Minister for Resources v Dover Fisheries (1993) 43 FCR 565 at 574 per Gummow J .

84. Institute of Patent Agents v Lockwood [1894] AC 347 at 360 per Lord Herschell LC.

85. The Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ, 419 per O'Connor J; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 12-13 per Mason CJ.

86. (1905) 2 CLR 405 at 414.

87. (1688) 1 Show KB 106; 89 ER 480.

113. In Project Blue Sky, the question was whether the failure to comply with a statutory requirement led to the invalidity of a decision made in performance of a statutory function. Whether the intended result of non-compliance was invalidity or, possibly, the availability of injunctive relief, depended on the proper construction of the statute. As has been said in many contexts, “[q]uestions of law, fact and opinion do not always readily and neatly divide themselves into discrete matters”. [88] The same uncertainty was noted in Agfa-Gevaert in relation to the identification of errors of law in statutory construction. In accordance with Project Blue Sky, the correct approach is to ask whether, in the context of the relevant legislative scheme, the particular error was intended to constitute an error in point of law.

     88. A comment made in relation to valuation of land in Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111; [2003] HCA 8 at [8] (by the Court).

114. As explained by Spigelman CJ in Attorney-General (NSW) v X: [89]

“The determination of whether a particular alleged error in matters such as fact finding, the exercise of a discretion or a process of evaluation answers the description ‘question of law’, will depend on the scope, nature and subject matter of the statute, including the nature of the body making the relevant decision.”

89. Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [28].

115. After setting out the passage from Agfa-Gevaert quoted at [111] above, Spigelman CJ continued: [90]

“As this passage indicates, it is often the case that analysis of whether a particular matter answers the description of ‘question of law’ proceeds on the basis that those words are used in contra-distinction to ‘question of fact’ and that the combination of the two formulations exhausts the whole of the relevant sphere of discourse. It is usually, but not always, useful to proceed on this basis….”

90. Attorney-General v X at [32].

116. It may be seen that Agfa-Gevaert loosened the underpinnings of the traditional canons for distinguishing questions of fact and law in statutory interpretation; it did not, however, dislodge them. Rather, it provided two indicators as to future developments. First, as noted above, “rigid rules” have been rejected. Secondly, the observation of Lord Hoffmann in R v Brown,[91] that the building blocks of meaning are sentences, not individual words, is generally accepted.

     91. [1996] 1 AC 543 at 561; Agfa-Gevaert at 397.

117. Project Blue Sky dealt with a similar problem from a different angle, but adopting a consistent approach. Whether the decision of a statutory authority was invalid or not raised a similar question to that raised by asking did the authority err in law. (Invalidity will usually be the product of legal error.) The approach rejected involved characterising statutory requirements as mandatory or directory. The new approach required an holistic consideration of the legislation to find an unexpressed intention as to the consequence of non-compliance with the statutory requirement.

118. Interestingly, in this aspect of the law of statutory interpretation, there is no discussion in the cases of the assumption that the legislators understand the principles applied by the courts and the effect of applying a fresh approach to existing legislation. [92]

     92. Cf Bropho v Western Australia (1990) 171 CLR 1 at 23 and cases dealing with the principle of legality, eg, Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40 at [21] (Gleeson CJ); Zheng v Cai (2009) 239 CLR 446; [2009] HCA 52 at [28].

119. In Vetter v Lake Macquarie City Council [93] the High Court dealt with an appeal from a decision under the Compensation Court Act, s 32(1), which was available to a party “aggrieved by an award in point of law”. As succinctly explained by Hayne J: [94]

“… there was no dispute that ‘journey’ is used throughout s 10 of the Workers Compensation Act 1987 (NSW) (‘the Act’) in its ordinary meaning. There was no live question between the parties about the construction of the relevant provisions of the Act. The only question was whether it could be said that the appellant was on a journey between her place of abode and place of employment when she was injured. … In the circumstances of this case, that was a question of factual classification about which minds might differ. It was not a question which did not admit of the answer which was given by the primary judge. It was not a question which, if answered in the sense in which the primary judge answered it, inferentially revealed a misunderstanding of the proper construction of the section. As Mason J pointed out in Hope v Bathurst City Council, [95] when a statute uses words according to their common understanding and it is not unreasonable to conclude that the facts as found fall within those words, the conclusion that they do, is a conclusion on a question of fact. The contention which the respondent made, that the conclusion that the facts fell within the statutory words was not reasonably open, is a contention on a point of law. Once that question is resolved against the respondent, as I agree it should be, the remaining question of factual classification is a question of fact.”

93. (2001) 202 CLR 439; [2001] HCA 12.

94.    Vetter at [108] (references omitted).

95. (1980) 144 CLR 1 at 7.

120. The more extensive reasoning of the plurality was to similar effect. [96] Kirby J stated: [97]

“The primacy accorded to the Compensation Court's factual decisions, by limiting appeals from its awards, relevantly, to the establishment of a grievance in point of law, must be respected so long as what is involved is a finding of fact. The giving of meaning to straightforward statutory language, according to the facts as found, is such a finding.”

96.    Vetter at [24]-[27].

97. Vetter at [75].

(e)   error in point of law – application of principles

121. There are a number of factors which support the view that there was no error of law in requiring justification before undertaking a fresh hearing to deal with a matter not raised before the STC. First, it is clear from the structure of the Superannuation Act that the primary decision-maker is the STC. The right to invoke the jurisdiction of the District Court only exists in relation to “a decision made by STC”. That for which application may be made to the District Court is “a determination in relation to that decision.” Thus, the subject matter of the proceedings in the District Court must be the decision of the STC, which in turn will relate to the issues raised for determination by the STC. It would be inconsistent with this structure to allow an applicant to raise in the District Court, for the first time, an issue which had not been considered and addressed by the STC. (Whether there may be an implied decision in circumstances where a matter has been raised but not determined by the STC is not an issue to be decided in this case.)

122. Secondly, and by way of extrapolation from the first matter, to allow an issue to be raised for the first time before the Court, would deny the applicant the opportunity for an initial consideration by the STC, subject to a right of review by the Court. If the applicant were to be dissatisfied with the Court’s decision not to backdate, or to backdate for a limited period only, there would be no right of challenge to the merits of that decision. Of course, that response could not fairly be deployed against an applicant if the effect were to deny the applicant any chance of obtaining the backdating which he failed to seek before the STC. However, that is not this case: there was no suggestion that the appellant would be unable to make a further application to the STC for backdating of the increase in the award under s 10(1D). If rejected he would then have a right to apply to the District Court for a determination under s 21.

123. Thirdly, the language of s 21 of the Superannuation Act, identifying the subject matter of an application to the District Court as “a decision” of the STC, differs from, for example, the right of appeal to this Court from “an award of the Court in point of law”. [98] It should be noted that the term “decision” is widely defined in the District Court Act to include an award; however, that definition is limited to the word “decision” as used in s 142J, in which it means a decision of the District Court. A similar expansive definition is not included in the Superannuation Act, either for the purposes of s 21 or more generally.

     98. District Court Act, s 142N(1).

124. Fourthly, to the extent that the old canons remain apposite, the term “decision”, appearing in s 21(1) of the Act is not contained within a composite phrase, nor does it gain any particular colour from the surrounding language or the syntax of the provision. Further, the function is conferred by the statute on a judge of a court with powers identified in the broad terms of s 142J(1) of the District Court Act. This language should be given some effect and not simply disregarded because its precise operation is difficult to identify.

125. Finally, the underlying intention of s 142J(1)(a) and (b) is to confer a broader discretion on the District Court than that which it enjoys in the exercise of its ordinary civil or appellate jurisdiction. That is consistent with the function conferred, which is to deploy its powers and procedures to determine the application which had been determined by the STC. It is consistent with that conferral of power that the District Court should determine as a matter of fact whether there has been a decision of the STC and the extent of the issues decided. So long as that decision is reasonably open, it should not be characterised as an error in point of law and is thus not reviewable by this Court. [99]

     99. Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557 (Mason JA), cited with approval in the joint reasons in Vetter; Attorney-General v X at [55] (Spigelman CJ).

126. To read the judgment as concluding (despite reference to the absence of relevant explanations) that the jurisdiction of the District Court was not enlivened, was not to demonstrate jurisdictional error, or even error of law. That is because jurisdiction is often dependent, not on the objective existence of a fact, but on the satisfaction of the tribunal as to a fact. Which approach applies in a particular situation is to be determined by construing the jurisdiction-conferring statute. However, where a condition of engagement of jurisdiction is specified with respect to the jurisdiction of a court (especially a court proclaimed to be a “court of record” [100] ) the latter alternative is to be preferred. The reason for that conclusion was articulated by Dixon J in an oft- cited passage from Parisienne Basket Shoes Pty Ltd v Whyte: [101]

“It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.”

100. District Court Act, s 8(2).

101. (1937) 59 CLR 369 at 391.

127. Similarly, to characterise the decision in the present case as one relating to standing is not to resolve the question as to whether a point of law is raised; questions of standing may (and usually do) turn on findings of fact.

Costs

128. There is a live issue as to what order should be made with respect to the costs of the parties in this Court. On at least two occasions, consideration should have been given to making an application to the STC for an order backdating payment of the additional allowance. It must have been apparent to those advising the appellant that the determination of the STC had been made in circumstances where an application to backdate had not been made. Section 10(1D) of the Superannuation Act expressly allowed a variation of a determination of an additional amount to be made “at any time”. Further, when it became apparent that the District Court had refused the application on the very basis that no application had been made to the STC, the possibility of making such an application, rather than invoking the appellate jurisdiction of this Court, on a question of law, must have been considered. These factors favour an order against the unsuccessful appellant in this Court.

129. Two circumstances weigh against such an order. First, the letter from the STC of 12 May 2014 recording its decision expressly stated, as noted above, that there was a right of appeal to the District Court, which could include the date of commencement of the new allowance. That statement by the STC might well have militated against a costs order in its favour though it was successful in the District Court. That factor is no longer operative and can have little weight in relation to the costs in this Court.

130. Secondly, the submissions for the STC in this Court relied almost entirely upon an understanding of the reasoning of the primary judge which has been rejected. Furthermore, there was no evidence to suggest that, following the decision of the District Court and the lodgement of an appeal, the STC itself suggested the possibility of a further application for it to consider. For a statutory authority, that would have been an appropriate course to take, both before the hearing in the District Court and before the appeal to this Court was pursued.

131. In these circumstances, although the appellant has been unsuccessful, I would make no order as to the costs of the parties in this Court.

132. It is common ground that, if the appellant were successful, the costs in the District Court should be determined by that Court on remitter. In the event that the appellant were to be unsuccessful, there is no reason to adopt a different approach, namely that the issue should be determined by the District Court. So far, there appears to have been no order for costs in the District Court. No order is required from this Court.

133. One further issue should be noted in relation to costs. The appellant sought, in the event his appeal were to be upheld, an order expressly allowing him to make an application in the District Court for his costs of the first hearing there. Why that should be allowed is unclear. The appellant did not pursue this claim in 2006, three years after his medical discharge when he obtained the allowance under s 10(1A)(a). He was legally represented then. He made his further application eight years later and more than a decade after the incapacity arose. He did so with legal representation. Not only did he not seek to have the payment back-dated, he did not seek to explain the delay. He appealed to the District Court, again with legal representation, seeking no substantive relief other than back-dating. Again he gave no explanation for the delay. If there were to be a further hearing in the District Court, it is quite unlikely that the appellant would obtain a back-dated payment without seeking to give some explanation for the delay. Whether that should be permitted would be a matter for the District Court to determine. However, nothing was put before this Court to suggest there was an available justification for not taking that step on the earlier occasion. Accordingly, there is no basis for thinking that, even if he were to achieve some success on a further hearing, he should get his costs of the first hearing.

Conclusions

134. These reasons seek to demonstrate the following propositions:

1. the primary judge did not purport to determine, on the merits, whether the new allowance should be backdated beyond the date on which the application was received by the STC;

2. on the undisputed fact that the appellant had not raised before the STC the question of further backdating the claimed allowance, the judge determined that he was not “aggrieved by a decision made by STC”, within the meaning of s 21(1)(a) of the Act;

3. in reaching that conclusion, he did not further conclude that he had no jurisdiction or function to exercise;

4. rather, the judge concluded for discretionary reasons which were not alleged to demonstrate error of law, that he should not exercise the Court’s jurisdiction;

5. if, contrary to proposition (3), the judge did hold that he had no jurisdiction because there was no “decision made by STC”, that resulted from his conclusion that the ordinary meaning of the word “decision” did not extend to a failure to determine something which the STC had not been asked to determine;

6. the last finding (if made) did not reveal an error of law for the purposes of s 142N(1) of the District Court Act.

135. Nothing having occurred which can be characterised as an error in point of law in the decision of the District Court, the appeal should be dismissed. A decision to intervene would be hard to reconcile with the reasoning and the decision in Vetter.

136. Order (2), purporting to confirm the decision of the STC was, in these circumstances, anomalous and should be set aside. It will then be clear that a further application can be made to the STC, if the appellant wishes to take that step. There should be no order as to costs.

137. WARD JA: I have had the advantage of reading in draft the judgments of McColl and Basten JJA. The factual background to the present dispute and the primary judge’s reasons for determining the dispute as he did have been summarised in those judgments and I will not repeat those matters. I agree, for the reasons given by McColl JA, that the appeal should be allowed and the matter remitted to the District Court.

138. As Basten JA has concluded, the primary judge did not purport to determine, on the merits, whether the new allowance should be backdated beyond the date on which Mr Daley’s application was received by the STC. The primary judge made clear that he did not do so on the basis that Mr Daley had not, in his application to the STC, requested backdating to 5 September 2003 and had not given any reasons why that should be done ([61]); and that Mr Daley could not be said to have been aggrieved by the STC’s decision when he had not made such a request ([62]).

139. I accept that, when the primary judge went on (at [62]) to say that “[n]o adequate explanation has been given as to why the application form was not completed”, he appears to be referring to a matter that would not have been irrelevant to take into account in determining whether or not to backdate the new allowance. However, where I part company from Basten JA is that I do not read the primary judge’s conclusion as involving the exercise of the jurisdiction enlivened if Mr Daley was a person aggrieved by the STC’s decision for the purposes of s 21(1) of the Act. Thus I do not agree with the fourth of Basten JA’s propositions.

140. Although the primary judge made reference to various matters in the course of his ex tempore reasons, such as the delay in making the application and the lack of explanation for such a delay, in my opinion he made it clear (and should be taken at his word) at [61] that his decision rested on the consideration that Mr Daley had not requested, in his application to the STC, that the increase in his allowance be backdated. The primary judge also made clear that this was not a determination reached on the basis of some estoppel arising by reference to the manner in which the proceedings had been conducted. Thus I read the primary judgment as amounting to a conclusion (albeit not explicitly stated) that, in the circumstances, the District Court’s jurisdiction had not been enlivened because Mr Daley could not fall within the description of a “person who considers himself or herself aggrieved by … a decision made by STC” for the purposes of s 21(1) of the Act, not having applied for the decision to be backdated. In passing, I note the irony that the primary judge considered Mr Daley could not have been aggrieved by the decision because he had not requested that the allowance be backdated yet the STC’s own (presumably pro forma) letter itself contemplated that he might be dissatisfied with the decision for reasons including the date of commencement of the pension increase.

141. As to the fifth and sixth of Basten JA’s propositions, I do not read the primary judgment as encompassing a finding that there was no jurisdiction to determine the merits of the application because there was no relevant decision made by STC. The primary judge made orders including an order that the decision be confirmed, as Basten JA has noted. Rather, the primary judge was distinguishing (at [61]) between a grievance with the way in which the form was filled out and a grievance as to the decision in respect of the commencement of the increase in the allowance. That points in my view to the primary judge having determined the matter on the basis that the court’s jurisdiction had not (and could not have) been enlivened. The primary judge seems to have approached the matter not on the basis of a factual finding as to Mr Daley’s standing but on the basis that he could not have had standing at all since he had not requested that any increase in his pension be backdated. If that is the case, and there was a wrongful refusal to exercise jurisdiction, this would amount to an error of law and to intervene in those circumstances would not in my opinion trespass on the principles articulated in Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439.

135. The relevant decision made by STC in relation to the increased allowance was not confined to the order for payment of the increased pension but incorporated a decision as to the commencement date of that new allowance. In those circumstances, I do not accept that the failure to indicate one way or the other on the application form whether the applicant was seeking to have the pension increase commenced from a date earlier than the date of the application carries with it the necessary consequence (as the primary judge considered it did) that the applicant could not feel aggrieved at the determination as to the commencement date of the new allowance and hence could not be said to have standing to invoke the District Court’s jurisdiction under s 21(1) of the Act.

136. I therefore agree with the orders that McColl JA proposes.

137. For completeness, I should add that there was some concern raised at the hearing in this Court as to whether, if Mr Daley were to have made a further application to the STC for the pension increase to be backdated (as Basten JA has adverted to at [136]), he might have been met with some kind of abuse of process argument had the decision of the District Court remained on foot. If, as I consider to be the case, the primary judge (wrongly) proceeded on the basis that the jurisdiction to determine whether to backdate the commencement date of the pension allowance was not enlivened, then such an issue should not have arisen. Had I been of the view reached by Basten JA (that the primary judge’s reasoning involved a conclusion that, for discretionary reasons, the Court’s jurisdiction should not be exercised), then I would have agreed that it was appropriate to set aside order 2 of the primary judge’s reasons in order that there be no doubt that Mr Daley might now apply to the STC for his pension increase to be backdated.

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Endnotes

Decision last updated: 16 May 2016