Daley v SAS Trustee Corporation

[2015] NSWDC 183

District Court

New South Wales

Medium Neutral Citation:	Daley v SAS Trustee Corporation [2015] NSWDC 183
Hearing dates:	24 July 2015; 27 - 28 July 2015
Date of orders:	28 July 2015
Decision date:	28 July 2015
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Application dismissed  Decision of the defendant of 2 May 2014 confirmed
Catchwords:	POLICE SUPERANNUATION – Claim under s 10(1A)(b) or (c) of Police Regulation (Superannuation) Act 1906 – Defendant awarded an increase of pension commencing on date it received application for the benefit, 4 February 2014 – Plaintiff sought backdating to the date of commencement of his pension entitlement, 6 September 2003 – Section 10(1BA) only applies to a pension granted on or after that date and was inapplicable to the plaintiff’s entitlement – Section 10(1A) applied – Meaning of “appropriate” – Principles of construction of the Act – Review of earlier authorities – Consideration of delay – Plaintiff failed to seek backdating when he applied to the defendant – Plaintiff not aggrieved by any decision of the defendant since he had not sought backdating of the benefit
Legislation Cited:	Police Regulation (Superannuation) Act 1906 Superannuation Legislation Amendment Act 2006
Cases Cited:	Carswell v SAS Trustee Corporation [2014] NSWDC 47 Commissioner of Police v SAS Trustee Corporation [2002] NSWIRComm 31 Finch v Telstra Super Pty Ltd [2010] HCA 36 Hoffman v SAS Trustee Corporation (Ashford DCJ, 15 May 2013, RJ512/12) Lembcke v SAS Trustee Corporation [2003] NSWCA 136 Murphy v SAS Trustee Corporation (Ashford DCJ, 15 May 2013, RJ516/12) Norrie v New South Wales Registrar of Births, Deaths and Marriages [2013] NSWCA 147 Pinkerton v SAS Trustee Corporation (Truss DCJ, 10 August 2007, RJ319/06), Porto v SASTC [2014] NSWDC 15 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 SAS Trustee Corporation v Cox [2011] NSWCA 408 SAS Trustee Corporation v Patterson [2010] NSWCA 167 SAS Trustee Corporation v Woollard [2014] NSWCA 75 Swift v SAS Trustee Corporation [2010] NSWCA 182 Tanks v SASTC (unreported, 1 September 2004, RJ894/03) Wheadon v SASTC (unreported, 19 September 2014, RJ558/13) Wheatley v SAS Trustee Corporation (unreported, 3 August 2011, RJ424/10)
Category:	Principal judgment
Parties:	Paul Stephen Joseph Daley (Plaintiff) SAS Trustee Corporation (Defendant)
Representation:	Counsel: Mr P O’Rourke (Plaintiff) Mr T Ower (Defendant)   Solicitors: Walter Madden Jenkins (Plaintiff) Rodney Blume (Defendant)
File Number(s):	RJ531/14
Publication restriction:	No

Judgment

The Issue

1. HIS HONOUR: This is an application under s 21(1)(a) of the Police Regulation (Superannuation) Act 1906 ("the Act"). The issue for my determination is the date on which a superannuation benefit payable to the plaintiff pursuant to s 10(1A)(b) or (c) ought commence. The issue can be shortly described as “backdating”. I have been taken to a large number of authorities which in general terms discuss the issue of "backdating" but do so in respect of various entitlements under the Act.

2. The plaintiff is a former sergeant of police. He was attested as a probationary constable of police on 3 April 1978 and thereupon became a contributor to the Police Superannuation Fund established under the Act. In essence, the plaintiff ceased his duties as a sergeant of police on or about 14 August 2001. At the time he was a traffic sergeant at Campbelltown but was in the process of being transferred to Macquarie Fields to work in a special squad. This was to perform an operation code named "Streetsafe". He then came under the care of Dr Selwyn Smith, a specialist psychiatrist. Prior to ceasing work on or about 14 August 2001, the plaintiff had already been seeing a general practitioner concerning his psychiatric health. On 20 September 2002 the commander of the Campbelltown LAC made an application for the plaintiff to be medically discharged from the New South Wales Police Force.

3. For that purpose, the plaintiff was sent to see Dr Ramdoss Moorthy, a specialist psychiatrist, by the defendant, who is the administrator of the Police Superannuation Fund. The plaintiff saw Dr Moorthy on 4 August 2003. On 28 August 2003 the Police Superannuation Advisory Committee (PSAC) certified that the plaintiff was incapable of discharging the duties of his office on account of the infirmities of "post-traumatic stress disorder; major depressive disorder; generalised anxiety disorder; and organic amnestic syndrome." That led to the plaintiff’s being medically discharged from the New South Wales Police Force on 5 September 2003.

4. Because of his length of service, the plaintiff then became entitled to a superannuation allowance of 60.625% of the salary of his office. That superannuation benefit was not a "hurt on duty" pension. Whether the plaintiff were entitled to a HOD pension depended upon an appropriate certification by the Commissioner of Police or this Court that the suffering by the plaintiff of at least one of the certified infirmities were caused by his having been hurt on duty. On 8 December 2003 the Commissioner of Police, by his delegate, determined that none of the certified infirmities was caused by the plaintiff’s having been hurt on duty. Dissatisfied by that decision, the plaintiff brought proceedings in this Court seeking to set aside the Commissioner's decision and to replace it with one favourable to him. Those proceedings were eventually "settled". On 13 March 2006 the Commissioner of Police revoked his decision of 8 December 2003. He then made this decision:

"In terms of s 10B(3)(a) of the Police Regulation (Superannuation) Act 1906 (as amended), I have decided that the suffering by former Sergeant Daley of the infirmity of 'chronic post-traumatic stress disorder' as specified by the Police Superannuation Advisory Committee, on 28 August 2003, was caused by the member [sic] being hurt on duty.

Notional date of injury 24 May 2000.

It is further advised that the suffering of former Sergeant Daley of the infirmities 'major depressive disorder; generalised anxiety disorder; and organic amnestic syndrome' as likewise specified in the certificate of the Police Superannuation Advisory Committee, dated 28 August 2003, was [sic] not caused by the former member [sic] being hurt on duty."

Letter of 18 April 2006

5. On 18 April 2006 the defendant dated a letter addressed to the plaintiff at his post office box at Camden. A copy of that letter is exhibit 3. The first sentence of the first paragraph is this:

"We recently received a request to increase your Police Superannuation Scheme pension due to your exit reclassification to 'Hurt On Duty'."

The first sentence of the second paragraph told the plaintiff that the original base pension of $1,460.42 per fortnight had accordingly increased to $1,770.05 per fortnight. The paragraph went on to identify the plaintiff's new pension details, specifying the gross fortnightly pension, the necessary PAYE tax deduction, other deductions and specifying the net pension payment. The next paragraph went on to tell the plaintiff about the amount of pension arrears, including interest, which had been deposited in his Police Credit Union account. According to the letter, the net total arrears of pension amounted to $21,259.98.

6. The next three paragraphs provide certain further financial information to the plaintiff, which I need not recite. On p 2 then appears a heading "Increased pension benefits". The letter then sets out the text of s 10(1A) of the Act. After doing that it continues thus:

"Should you desire to lodge a claim for payment of additional pension as set out in s 10(1A), it will be necessary for you to submit a claim for increased benefits in writing, supported by current specialist medical evidence covering the following questions:

If, in the specialist's opinion, you are precluded from performing some types of employment activities, is it also his opinion that you are capable of performing some work in an open labour market situation?

What types of employment activity would he consider to be within your capability?

The types of work which you would be incapable of performing, having regard to your infirmity?

Would it be reasonable to expect further treatment to improve your condition?"

7. There is then a heading, "Commutation of part pension", which advises the plaintiff of his ability to make an application for such a benefit pursuant to s 10C of the Act. On p 3 there is then a heading "Age 60 Commutation" and then provides information to the plaintiff of his ability to seek such a benefit. The final paragraph of the letter invites the plaintiff, should he have any questions, to contact the defendant's customer service on a specified phone number during office hours between Mondays and Fridays.

8. The only real factual dispute in the current proceedings is whether the plaintiff received that letter. I admitted exhibit 3 because I was persuaded that the plaintiff must have received that letter. The grounds for finding that the plaintiff did receive that letter are these:

(i) The presumption of regularity: omnia praesumuntur rite esse acta donec probetur in contrarium. The only evidence adduced to rebut the presumption was the oral evidence of the plaintiff and his wife to which I shall shortly refer. The letter is one of a type which constantly comes before me in applications under this Act.

(ii) The plaintiff, through his solicitors, gave particulars to the defendant, admitting that the plaintiff received the letter. The request for particulars bears date 29 January 2015. The reply by the plaintiff's solicitors bears date 29 May 2015. The two letters are exhibit 2. The first question asked was this:

"Why is a date earlier than 4 February 2014 more appropriate pursuant to s 10(1D)?"

The reply is lengthy, but the second of the seven grounds provided is this:

"The Plaintiff received advice from the Defendant in a letter dated 18 April 2006 relating to the additional amounts. That letter made no reference to s 10(1D) of the Act, or any reference to a requirement for any application for the additional amounts to be made within 12 months of the Plaintiff's date of discharge from the NSW Police Force;".

The sixth question asked by the defendant was this:

"Is it alleged that the plaintiff was unaware at or prior to the application for increase, of the right to apply for an increase?"

The answer provided by the plaintiff's solicitor was, "No."

(iii) The plaintiff said that he would have remembered receiving exhibit 3 because it has on it handwritten amendments and he could not recall having received a letter with handwritten amendments. However, it is clear that exhibit 3 is an office copy of the letter held by the defendant and the handwritten amendments could have been made at any time after the original letter was dispatched to him. The letter contains a large number of ticks and increases the amount of "other deductions" and therefore reduces the net pension payment, but the increase in the deductions could have occurred at some stage well after 18 April 2006. In other words, it appears to me that the handwritten amendments might not have been on the original letter sent to the plaintiff. Furthermore, the plaintiff's wife said exactly the same thing as had the plaintiff in this regard, but again, the same observation must be made in respect of the plaintiff's wife's evidence.

(iv) The plaintiff told me that he had a large pile of correspondence that he had received from the defendant and he had looked through it but did not find the letter of 18 April 2006. However, no attempt was made to produce a file of correspondence from the defendant to the plaintiff from which I could readily infer that the plaintiff had kept all the correspondence he had received from the defendant in one file and therefore the absence of the letter of 18 April 2006 indicated that it had not been received. Again, similar evidence was given by the plaintiff's wife. The plaintiff's wife was also a member of the New South Wales Police Force. She was attested as a probationary constable of police on 23 August 1980 and thereupon became a contributor to the Police Superannuation Fund established under the Act. She was medically discharged from the New South Wales Police in early 2001, at which time she had been a senior constable. She was medically discharged with the condition of post-traumatic stress disorder. It was accepted that her PTSD was caused by her having been hurt on duty. The acceptance of the plaintiff's wife's PTSD as HOD occurred in either 2003 or 2004. She would have received similar correspondence from the defendant as had her husband. Again, no attempt was made to adduce from the plaintiff's wife her pile of correspondence that she had amassed to prove that she had kept the correspondence and therefore the absence of a similar letter to exhibit 3 indicated that she had not received such a letter herself.

(v) At the time of admitting exhibit 3 I pointed out to Mr O'Rourke, who appeared for the plaintiff, that it was open to him to call the solicitor who composed the letter providing particulars of 28 May 2015, to say that, for example, she had available to her a copy of exhibit 3 and merely assumed that the plaintiff had received it and composed the letter without specific instructions from the plaintiff. The letter was composed by Ms Sara McLean, who is well known to me. Ms McLean was at the relevant time present in Court instructing Mr O'Rourke. No attempt was made to call her. The inference to be drawn, therefore, is that her instructions were that the plaintiff had received a letter of 18 April 2006.

The Plaintiff’s Application

9. The plaintiff did not take up the invitation contained in the defendant's letter of 18 April 2006 to lodge a claim for an additional pension benefit pursuant to s 10(1A). The plaintiff's evidence is that he had been attending a support group with his wife for those suffering from PTSD or similar conditions at the St John of God Hospital under the overall supervision of Dr Selwyn Smith and that perhaps in 2011 or early 2012 a question was raised at a group meeting as to how to obtain lump sum compensation for a psychiatric injury. This was apparently discussed by the plaintiff and his wife with Dr Selwyn Smith, who suggested that they might make an application for an increase in their pension benefits.

10. On 8 February 2012 the plaintiff contacted Messrs Walter Madden Jenkins, his current solicitors, and spoke with, I infer, Ms McLean. However, it might have been another practitioner in the firm. I should indicate that the plaintiff had retained Messrs Walter Madden Jenkins to act for him in the application which he made to this Court challenging the determination of the Commissioner of Police made on 8 December 2003 which led to the "settlement" to which I have earlier referred. Messrs Walter Madden Jenkins helped the plaintiff to make an application to the Police Association for legal assistance. That appears to have been granted.

11. On 11 February 2013 Messrs Walter Madden Jenkins wrote to Dr Selwyn Smith requesting an up to date medico-legal report. Dr Selwyn Smith provided such a report, which bears date 10 July 2013 and was received by Walter Madden Jenkins on 15 July 2013. On 16 January 2014, six months later, the plaintiff signed a blank form, PSS Form 14, which is headed, "Application Form for an increase in a Hurt on Duty pension (s 10(1A))." The plaintiff said he signed and dated the form and sent it back to his solicitors with details to allow them to complete it. The details which he supplied to his solicitors have not been put into evidence but the form that was eventually submitted has been and it is exhibit 1. The form was received by the defendant on 4 February 2014.

12. The information supplied in the form includes details of the plaintiff's education, his work prior to joining the New South Wales Police Force, which was as a postal clerk with the Postmaster General's Department; of work which he did whilst a member of the New South Wales Police Force outside the Police Force, which was as a youth conference convenor for the Department of Juvenile Justice for a period of approximately 12 months; details of the plaintiff's treatment; a statement by the plaintiff that he had given up all of his interests, hobbies, pastimes or pursuits since being medically discharged, which included fine art painting, fishing, bushwalking, gardening and tennis. He also provided details of work he had tried to do since he was medically discharged; of an attempt to start his own property maintenance business, which failed; of work as a hire car driver, from which he was "let go"; and for work with the Australian Electrical Commission leading up to the 2013 federal election, but during which work he suffered symptoms, and it is clear from the plaintiff's oral evidence to me that if he was not dismissed, he resigned in order to avoid dismissal. The form also records that the plaintiff had applied for countless other jobs unsuccessfully. The form gives details of other illnesses but they are merely ones that one might expect: high cholesterol, for a middle aged man; and hearing loss, which is not uncommon for those who have seen active service in the New South Wales Police.

13. Question 28 of the form was this:

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

There are then two boxes which could be ticked or otherwise marked, one "yes" and the other "no," and a direction that if the box ticked were, "yes," to indicate the date from which the pension increase was sought and the reason for seeking the pension from that earlier date. The question has not been answered at all, neither has the box "yes" or the box "no" been ticked, and no reason has been given for seeking an earlier commencement date than the date of the application to the defendant. The rest of the form it is not necessary for me to describe. The plaintiff's solicitors appended to the form extracts from the report of Dr Selwyn Smith bearing date 10 July 2013. The inference to be drawn is that a copy of that report was submitted with the application.

The Defendant’s Decision

14. The defendant arranged for the plaintiff to be examined by Dr Mark Kneebone, a specialist psychiatrist, who examined the plaintiff on 14 March 2014 and prepared a report bearing that date. On 17 April 2014 the Police Superannuation Advisory Committee considered the plaintiff's application received on 4 February 2014. A letter from the defendant to the plaintiff's solicitors bearing date 5 May 2014 tells me this:

"After considering the application, the Committee recommended to the Chief Executive of STC that he approve an increase in pension from 72.75% to 85% of the salary of office at the date of medical discharge. On 2 May 2014 the Chief Executive accepted PSAC's recommendation."

15. The same letter told the plaintiff's solicitor and tells me that the "new pension" would be payable from 4 February 2014, which was the date on which the application was received. It is about that decision that the plaintiff brings this application.

16. The current form of s 10(1A) is this:

"(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% 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% 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% and not more than 27.25% 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."

The version of the subsection set out in the defendant's letter to the plaintiff of 18 April 2006 is somewhat different but there is no difference of substance. It can be seen that a decision to increase the plaintiff's basic pension of 72.75% to 85% indicates the grant of the whole of the benefit payable pursuant to par (b) or the basic amount payable under par (c). In essence, the defendant was conceding that the plaintiff was effectively totally incapacitated for all forms of work. Because of the argument presented in the current matter it is necessary to look at the information which was available to the defendant at various times.

Evidence Available to the Defendant

17. On 27 June 2003 the defendant's agent received a copy of a report from Dr Selwyn Smith dated 8 May 2003 addressed to the Police Medical Officer. As I have earlier mentioned, Dr Selwyn Smith was the plaintiff's treating psychiatrist. Under the heading "diagnosis" Dr Selwyn Smith said this:

"In my opinion, Sergeant Daley demonstrates diagnostic criteria for a Chronic Adjustment Disorder with Depressed and Anxious Mood. He has, in my view, developed significant emotional and behavioural symptomatologies, demonstrated by heightened levels of anxiety associated with panic and autonomic nervous system arousal. He has had difficulty focusing and concentrating. There has been accompanying irritability with outbursts of anger. He has also experienced a marked degree of depression to the point of suicidal ideation. Prior to coming under treatment, his alcohol consumption had increased. Overall, he had been decreasingly effective and productive. He became increasingly socially isolated and withdrawn. His memory had also been impaired.

It is further my opinion that the development of his Chronic Adjustment Disorder with Depressed and Anxious Mood was a direct outcome of a longstanding exposure to multiple traumatic events including deaths, fatalities, suicides and other traumas. These have been indelibly imprinted on Sergeant Daley's mind. They have resulted in him [sic] being psychiatric [sic] disabled.

It is further my opinion that his Adjustment Disorder with Depressed and Anxious Mood has significantly impacted his personal, social and occupational functioning."

Dr Selwyn Smith goes on to indicate that his opinion was that the plaintiff was not fit for operational police duties. He then said this:

"In my opinion, he would be able to engage at restricted duties. His emotional impairments, however, would render him unable to operate firearms or reliably respond to public emergencies.

In my opinion, Sergeant Daley would be fit to engage in work outside the police service provided he is not exposed to traumatic events and felt relatively safe in the work setting."

The doctor then expressed a guarded prognosis.

18. Dr Moorthy in his report of 6 August 2003 diagnosed the four conditions certified by PSAC on 28 August 2003. In short form, Dr Moorthy was of the view that the plaintiff was incapable of discharging the duties of a police officer. He then referred to the plaintiff's application for medical discharge, referring only to post traumatic stress disorder (PTSD). He then said this:

"I believe he suffers from a very serious ailment, possibly secondary to his long term alcohol dependence in terms of organic amnestic syndrome. This is usually a chronic condition, meaning that it lasted a long duration. The prognosis is usually poor."

The final two paragraphs of Dr Moorthy's report are these:

"I believe that his chronic post-traumatic stress disorder and depressive condition associated with anxiety could be attributed to his chronic stressors and life threatening experiences. As an extension of that, one usually finds alcohol abuse in individuals who suffer from post-traumatic stress experiences. This has resulted in his memory impairment. I believe in this sense that the psychological conditions that he suffers from could be attributed to his employment in the service.

If he is successful in getting his medical discharge, I do believe that he is incapable of working outside the police service in any form or manner. I believe that he would be unfit to be employed fulltime, part time or on a casual basis, largely due to the severe psychological problems outlined in the letter. Hence, I consider him to be totally and permanently incapacitated from becoming ever employed again successfully."

Clearly that opinion spoke as at the date of Dr Moorthy's examination of the plaintiff on 4 August 2003 and the prognosis clearly of Dr Moorthy was that that condition would remain indefinitely.

19. Since then, there was a report of Dr Selwyn Smith bearing date 5 December 2005, addressed to a general practitioner, but there is no evidence that it was sent to the defendant. There is also a copy of a letter from Dr Selwyn Smith addressed to the plaintiff's solicitors bearing date 9 January 2006. The substance of that report comments on a report of Dr Robert Lewin dated 22 June 2005. Clearly Dr Lewin was qualified by the Commissioner of Police to assist the Commissioner of Police in defending the application that had been made to this Court against the decision of the Commissioner of Police. The evidence does not disclose whether Dr Selwyn Smith's report of 19 January 2006 was ever put before the defendant. Under the heading, "Background information," amongst other things, Dr Selwyn Smith said this:

"I have previously diagnosed Mr Daley as demonstrating diagnostic criteria for a Major Depressive Episode associated with Chronic Alcohol Dependence. He has also demonstrated diagnostic criteria for a Chronic Adjustment Disorder with Depressed and Anxious Mood. He reveals symptomatologies of a Post-Traumatic Stress Disorder that are partially resolved."

20. In the earlier reports which I have read the doctor did not refer to either chronic alcohol dependence or a post-traumatic stress disorder in partial remission. However, they may represent additional diagnoses or differential diagnoses. The bulk of the report deals with the plaintiff's traumatic experiences which would be sufficient to establish PTSD. Dr Smith's report of 10 July 2013 says this about diagnosis:

"It was my initial impression that Mr Daley was experiencing a Chronic Adjustment Disorder with Depressed and Anxious Mood. Over time, however, my opinion altered and I concluded that he demonstrated diagnostic criteria for a Post-traumatic Stress Disorder. He also revealed significant symptoms of anxiety, depression and alcohol abuse. It was because of his significant symptoms that I arranged his attendance at the adult trauma program. I've also arranged for further treatment in regard to his alcohol abuse."

It is to be recorded that the plaintiff told me that on 23 August 2004, that is, after his medical discharge and after the initial decision of the Commissioner of Police and after the report of Dr Smith that the defendant received on 27 June 2003 and after Dr Moorthy's report of 6 August 2003, he was driving from his home at Camden towards the city. He stopped at the St John of God Hospital. He decided to admit himself there. He told me that it was "otherwise the Gap", the inference to be drawn, of course, being that if the plaintiff did not admit himself to the St John of God Hospital, he might commit suicide. At the St John of God Hospital the plaintiff could almost be said to have "stalked" Dr Smith and followed him, inter alia, to the lavatory. He was admitted for a period of between three and four weeks. The reason was essentially detoxification. The plaintiff has not taken any alcohol since. For that he is to be heartily commended. His abstention from alcohol removed some of his symptoms or impressions or views which he himself now describes as being weird, unusual or bizarre. However, most of his symptoms remain. One might expect from the detoxification and weaning himself from alcohol that the plaintiff's condition may have improved somewhat.

21. Since then the plaintiff has been attending both AA meetings and a support group at the St John of God Hospital under the supervision of Dr Smith as I have earlier mentioned. It was in 2004 that the plaintiff obtained a hire car driver's licence. The inference is that that was only after detoxification and abstention from alcohol. The plaintiff started getting some work from the proprietor of Macarthur Limousines. However, he only got work for a few months. That work was intermittent. He was unreliable. He would forget where he was going, go to the wrong place, and perhaps fail to keep appointments to pick up persons whom he was required to pick up. As his work became more erratic it became less and he was no longer offered that work.

22. In 2006 the plaintiff tried to start his own home maintenance business. He bought himself a tool shed of equipment and appliances to carry out such home maintenance work, such as lawn mowers, whipper snippers, blowers, edgers and like machinery. He had about six different patrons but he lost the work because he, again, was unreliable. He enjoyed the work because it involved his working in the fresh air and exercising, but he failed to turn up, failed to keep appointments and failed to complete the work. The business failed after a very short while.

23. The plaintiff's only other work was with the Australian Electoral Commission. His job was essentially storeman's work at Campbelltown. He would be called in to take receipt of materials sent to the electoral office in Campbelltown and to store it in order that it could be subsequently dispersed to the various polling stations in the local electoral district. He told me that he kept forgetting instructions and failed to turn up at times. He was in constant conflict with his supervisor, Gwen, and he thought she was "weird" and perhaps she thought much the same of him. The work was only casual and part time. He would have liked to have persisted with the work and believed that it might have gone on for six months and perhaps become fulltime, but again, he failed to complete his work and he was let go, or let himself go in order to save himself being sacked. The plaintiff told me in his oral evidence of attempts to find numerous other jobs, even menial jobs, but doing so quite unsuccessfully. What he told me about trying to find work is wholly consistent with what he stated in the application to the defendant with which I am concerned.

24. I return now to the contents of Dr Smith's report of 10 July 2013. In that report, after referring to the diagnoses which I earlier cited, Dr Smith pointed out the plaintiff underwent treatment for his alcohol abuse or alcohol dependence and that at the time of his writing the report had been alcohol free for nine years. In the next paragraph of his report Dr Smith observed the plaintiff could only rely upon the effects of chronic PTSD in assessing his employment capacity on the open labour market as the other three conditions had not been considered to be "hurt on duty". Commencing on p 4, Dr Smith said this:

"Mr Daly's psychiatric condition significantly restricts his capacity to undertake any activity of a meaningful kind. He has not been able to perform any functions consistently. His ability to relate to the public at large has been markedly compromised by his symptoms. He has not been able to engage in any remunerative employment since being discharged from the NSW Police Force. This is despite his efforts in doing so.

Because of his Post traumatic Stress Disorder, resulting in marked psychiatric disability, Mr Daley has been severely limited and restricted in undertaking work. It should be noted that he holds no qualifications outside the NSW Police Force to engage in alternative work. His work has been predominantly with the NSW Police Force and in my opinion would not generalise to alternative roles outside the NSW Police Force. He lacks the ability to focus and concentrate. He continues to prevaricate over [sic scil. 'dither over', 'persevere with', 'vacillate over'] most tasks that are required and which are important for the wellbeing of himself and family.

Mr Daley has applied for a large number of jobs outside the NSW Police Force. Each time he has applied he has been rejected or advised that he is "over qualified" and would not find the work challenging. He has applied for menial tasks but has been unsuccessful.

Mr Daley has also attempted to establish a small business of his own undertaking property maintenance, lawn mowing and other activities. This was unsuccessful and the business closed. It has added to his feelings if disillusionment and rejection.

The only activities that Mr Daley has undertaken since the NSW Police Force have been volunteer work with the local Lifeline Macarthur. He has become involved with other organisations where he has made quilts for local hospitals. He has continued to undertake voluntary work as a Justice of the Peace on a pro bono basis. He has continued to attend a group on regular occasions and also assisted in establishing a self-help Post traumatic Stress Disorder group in the Macarthur area. He has, however, withdrawn from that group."

The doctor goes on then to comment on the plaintiff's persisting symptoms and their interference with his recreational activities. The doctor then said this:

"In summary, it is my opinion that Mr Daley, because of his chronic Post traumatic Stress Disorder, is unable to engage at work on the open labour market. Given his advancing years and psychiatric symptomatologies, I would view him as disabled of reengaging in any remunerative employment on psychiatric grounds."

25. In a supplementary opinion in a report of 2 June 2015, clearly generated for the purpose of these proceedings, Dr Smith said this:

"It is my opinion that Mr Daley is totally incapacitated for any employment on the open labour market as a result of his infirmity of a chronic Post Traumatic Stress Disorder. He lacks the ability to focus and concentrate. His memory remains significantly impaired. He has significant difficulty relating to others. It is also my opinion that his psychiatric disability would be obvious to any prospective employer.

Mr Daley has been totally incapable of performing any paid employment since he has left the NSW Police Force. He has attempted to engage in some activities but has not had the capacity to obtain work commensurate with his training, education and experience."

The doctor went on to provide a poor prognosis.

26. The report of Dr Kneebone of 14 March 2014 is before me. He made three diagnoses: PTSD; major depressive disorder, being a single episode of it; and alcohol use disorder in sustained remission. The inference I draw is that the last two of those three diagnoses refer to conditions that occurred either in the past or no longer present a problem to the plaintiff. The history obtained by Dr Kneebone is consistent with the history recorded from time to time by Dr Smith and is consistent with the plaintiff's sworn evidence. Dr Kneebone accepted that the plaintiff had PTSD for the last 15 to 20 years. He accepted that it was caused by the plaintiff's having been hurt on duty and that such causation remained. The doctor went on to say this:

"His symptoms of mood disturbance, hyper arousal and re-experiencing of previously encountered traumatic scenes in his police work documented by Dr Moorthy, psychiatrist, in his report dated 6 August 2003, and Dr Selwyn Smith, psychiatrist, in his reports dated 6 and 8 May 2003, just 1 to 4 months prior to his retirement, are essentially the same as those documented by the author of this report."

27. The doctor was asked a large number of questions. I trust I will be forgiven if I “cherry pick” some of the answers, but they do give the gist of the doctor's opinion:

"Mr Daley's HOD conditions significantly impair his cognitive abilities, social judgment and interpersonal functioning. These impairments are thought to prevent him from undertaking any employment even on a part time basis."

"The author of this report formed the view that Mr Daley's future vocational options are extremely limited and was unable to identify what work he would be capable of undertaking any time in the future."

"Mr Daley was not thought to be capable of any employment, even on a limited part time basis."

"The author of this report is unable to see any action such as enlistment in vocational rehabilitation or additional training that Mr Daley could take to increase his work capacity."

"Mr Daley's HOD medical condition is felt to have changed only modestly since his medical retirement from the NSW Police Force on 5/09/2003 on the basis of the reports of Dr Smith and Dr Moorthy in 2003. Both Mr Daley's post-traumatic stress disorder and major depressive disorder continue to be of at least moderate severity. He has, however, been able to completely abstain from alcohol and reports an amelioration in his nightmares since the assessment of Dr Smith and Dr Moorthy."

"Dr Moorthy and Dr Smith in their 2003 reports concluded that Mr Daley was medically incapable of working inside or outside the police service in any formal manner or unable to engage in work on the open labour market respectively. Mr Daley's inability to maintain casual self-employment as a driver and lawn mower/home handyman since his medical retirement from the NSW Police Force is indicative of his severely impaired work capacity, having remained essentially unchanged since his medical retirement."

"The author of this report is in complete agreement with the description of Mr Daley's psychiatric symptoms and levels of impairment documented by both Dr Moorthy and Dr Smith in their reports. I assess Mr Daley, however, as having post-traumatic stress disorder rather than a chronic adjustment disorder, a diagnosis made by Dr Smith. With regard to Dr Moorthy's additional diagnosis of alcohol related organic amnestic syndrome, I am of the view that formal neuropsychiatric testing would be needed to confirm the diagnosis."

28. Although Dr Smith in his report of 8 May 2013 did not say in frank terms that the plaintiff was then totally unemployable, Dr Kneebone appears to have thought that he was so saying. It is clear that back in 2003 Dr Moorthy thought the plaintiff was totally incapacitated for all forms of work. As I read Dr Kneebone's report, he was saying that the plaintiff at the time he saw him was totally incapacitated for all forms of employment and had been ever since 2003. In those circumstances one can see that the defendant agreed to pay to the plaintiff a total pension of 85% of the salary of his office, that is, in essence, to accept that he was and is totally incapacitated for work.

Finding as to the Extent of Incapacity

29. The inference from all of the evidence before me, which is a little more clearer than that which was before the defendant, is that the plaintiff has been totally incapacitated for all forms of employment since he was medically retired. It appears to me that the defendant was likewise persuaded. The plaintiff therefore says that his increased pension should be paid to him not from the date that he applied for it or the date when his application for it was received by the defendant, but rather, from the date of the grant of the initial pension, essentially from the date after the day that the plaintiff was medically discharged, from 6 September 2003. This involves a question of statutory interpretation.

The Relevant Legislation

30. Section 10(1D) has been at all material times in these 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."

"STC" is the acronym assigned to the defendant in the definitions contained in s 1(2) of the Act.

31. On 30 June 2006 the provisions of the Superannuation Legislation Amendment Act 2006 came into force. Included in these amendments was a new s 10(1BA) of the Act. That is in these terms:

"(1BA) A superannuation allowance referred to in subsection (1A) or an additional amount of a superannuation allowance referred to in subsection (1D) is not payable to a disabled member of the police force unless an application for payment of the allowance or additional amount concerned is made:

(a) before the member reaches the age of 60 years, or

(b) not later than 5 years after the member resigns or retires,

whichever is the later."

That subsection introduced two new qualifying elements in s 10, firstly, the need to make an application for payment, and secondly, a time constraint on the making of the application.

32. That provision was considered by the Court of Appeal in SAS Trustee Corporation v Patterson [2010] NSWCA 167. It is clear from that decision that s 10(1BA) is not retrospective and does not apply to a person such as the present plaintiff, whose right to receive an HOD pension had accrued at least by the time of his medical discharge on 5 September 2003. I shall need to return to the decision of Patterson shortly.

The Principles of Construction

33. The plaintiff submits that in construing the Act I must construe it in its proper context and apply accepted principles of statutory construction. It is instructive perhaps to commence with what fell from the Chief Justice in SAS Trustee Corporation v Woollard [2014] NSWCA 75. Commencing at [58] his Honour said this:

"[58] Although the principles by which legislation is to be construed are relatively well established, because of the approach taken by the majority in the first decision and the parties on the appeal, it is desirable to reiterate them. As was said by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47], the task of statutory construction must begin with the words of the statute itself considered in context, which includes the general purposes and policy of the provisions. Ascertainment of the statutory purpose may be based on an express statement of purpose in the statute, inference from the text and, where appropriate, reference to extrinsic material: Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23] [25], [68] and [88]. As was pointed out by Kiefel J in that case, the starting point is the words in question, read in the context of the statute.

[59] Having regard to the majority's approach in the first decision, it is important to emphasise that it is not up to courts in construing a statute to consider what is or is not a desirable policy and impute that to the legislature as a matter of construction: See Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1 at [26] [28]; Certain Lloyd's Underwriters v Cross supra at [26].

[60] Further, care should be taken in considering the purpose of the statute divorced from the words of the statute itself. The present case affords an example. Mr Woollard submitted that as the purpose of the statute was to provide valuable benefits to police officers and former police officers in relation to retirement arising from "hurt on duty" situations, the section should be construed so as not to deprive a person of such benefits. However, the provision of the benefits in question is subject to the conditions in s 10B of the Act. In these circumstances the remarks of Gleeson CJ in Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at [5] are apposite:

'[5] Another general consideration relevant to statutory construction is one to which I referred in Nicholls v The Queen. It was also discussed, in relation to a similar legislative scheme, in Kelly v The Queen. It concerns the matter of purposive construction. In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act1901 (Cth). It is also required by corresponding State legislation, including, so far as presently relevant, s 18 of the Interpretation Act 1984 (WA). That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.'

(References omitted).

This passage was approved by the High Court in Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 87 ALJR 1009 at [40] - [41]."

34. In addition to that authority, Mr O'Rourke's written submissions direct my attention to certain dicta in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [69], a dictum of McHugh, Gummow, Kirby and Hayne JJ:

"[T]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute."

At [71] their Honours point out that it is necessary to give meaning and effect to every word used in the relevant provision.

35. Mr O'Rourke also drew to my attention the decision of Norrie v New South Wales Registrar of Births, Deaths and Marriages [2013] NSWCA 147 at [65] – [67], which is authority for the proposition that particular words should not be read in isolation but the structure of the provision should be interpreted as a whole. He also drew my attention to [66] of the same decision as authority for the proposition that in the task of statutory construction, context is to be considered at the outset and not only at some later stage if it is considered that ambiguity might arise. The "context" of the statute is to be broadly understood.

36. Mr O'Rourke then drew my attention to certain dicta which outline the purposes or objects of the Act. The first case to which he drew my attention was Commissioner of Police v SAS Trustee Corporation [2002] NSWIRComm 31, where Wright P said:

"[43] True it is in this case that the purpose or object of the complicated scheme itself presents some difficulties. As the appellant noted at p 9 of his submissions of 10 December, Cullen J observed in the unreported judgment of 3 November 1993 in Quinn v State Authorities Superannuation Board:

The right to such a pension is a valuable and expensive right and should not be granted unless the statutory requirements are met.

[44] However, the important cautionary observation of Cullen J does not necessarily mean that once the requirements are met there should be any greater burden imposed upon a person to establish the entitlement or there should be implied in the legislation an extraordinary means of challenge to a person's entitlement.

[45] I consider that the purpose or object of the legislation, or at least so far as is relevant to the present proceedings, is to provide valuable benefits to police officers and former police officers in relation to retirement arising from "hurt on duty" situations but to do so in a measured and careful way which allots certain responsibilities for the rather complex process involved, which are, and are to be seen to be, commensurate with the important rights and responsibilities granted to the STC and to the Commissioner of Police.

[46] It may be that the rather complex scheme attempts to achieve a balance, on the one hand, between the valuable rights and the need, on the other hand, for caution in too readily extending those rights if that might result in inappropriate receipt of the allowance. There seems also to be an attempt to balance the recognition of the valuable role of police officers for their service in the public interest (with the consequent entitlement for officers subject to an adverse decision to have certain rights of appeal), with corresponding rights of appeal by the relevant authorities in the case of a decision in favour of police officers. However, it would be expected that any mechanism for appeal would reflect the allocation of responsibilities earlier referred to and not be so great as to become burdensome to the officers concerned or involve a level of complexity beyond that which could be seen to be reasonable to protect the interests or roles allocated by the legislation."

37. He then drew my attention to a case with which I am heartily familiar, Lembcke v SAS Trustee Corporation [2003] NSWCA 136; (2003) 25 NSWCCR 464, where, most pithily, Ipp JA said:

"[55] There is nothing in s 10(1A) of the Police Regulation (Superannuation) Act 1906 that warrants construing it as if it were a part of the Workers Compensation Act 1987. The Police regulation (Superannuation) Act is an entirely separate and independent statute and phrases in it must be construed by reference to its own context, not the context of the Workers Compensation Act or any other statute. The fact that like phrases are used in parts of the two Acts does not necessarily result in those phrases bearing the same meaning.

[56] Section 10(1A) provides for a superannuation allowance. Superannuation allowances are akin to pension payments. Pension payments are not ordinarily regarded as compensatory even, for example, when they are conditional upon the beneficiary being blind: The National Insurance Company of New Zealand Limited v Espagne (1961) 105 CLR 569. Superannuation payments, like pension payments, are granted after a consideration of the applicant's position and are entirely for the applicant's use and benefit, but not to compensate the applicant for loss: see Espagne at 574 per Dixon CJ.

[57] Once it is recognised that s 10(1A) does not provide for compensation for loss, the foundation of the respondent's argument falls away."

38. The importance of superannuation generally was considered by the High Court in Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254, a joint judgment of French CJ, Gummow, Heydon, Crennan and Bell JJ, where their Honours said:

"[30] The Trustee was trustee of a trust. It had a duty to distribute to those who fell within the definition of 'Total and Permanent Invalidity' and a duty not to distribute to those who did not. That affected its role in relation to the forming of its opinion under limb (b). Forming that opinion was not a matter of discretionary power to think one thing or the other; it was an ingredient in the performance of a trust duty. That duty was owed to the Members, including the applicant. The applicant was not the object of a discretionary power of appointment. He was the beneficiary of a trust, and although the precise form and quantum of his beneficial interest was contingent on particular events, he did have a beneficial interest.

[31] That conclusion is supported by various aspects of the context.

[32] First, there is the factual context. The history of Telstra by which the telephone services provided by colonial governments were taken over by the Commonwealth, and run first by a Commonwealth government department, then by a quasi-autonomous body corporate subject to Ministerial direction, then by a company limited by shares wholly owned by the Commonwealth, and thereafter by that company but with the shares owned by the public and the Future Fund is discussed elsewhere. The applicant began employment with Telstra while it was wholly owned by the Commonwealth. By the time he left it was partly owned by the public. The Scheme was instituted in 1990, before Telstra was incorporated and before Telstra succeeded the then Principal Employer, the Australian Telecommunications Corporation. Amendments to the Deed since that time have reflected the advent of Telstra in 1991. At all stages Telstra and its predecessors have been very large employers of labour.

[33] Another aspect of the factual context is that the Deed is dealing with the superannuation of employees. For some people, superannuation is their greatest asset apart from their houses; for others it is even more valuable. Different criteria might be thought to apply to the operation of a superannuation fund from those which apply to discretionary decisions made by a trustee holding a power of appointment under a non-superannuation trust. Employer superannuation is part of the remuneration of employees. Membership of the employee superannuation fund may be compulsory. Superannuation, unsurprisingly, is a matter of trade union interest. The question of superannuation entitlements may form the subject of an industrial dispute within the meaning of s 51(xxxv) of the Constitution. Superannuation is not a matter of mere bounty, or potential enjoyment of another's benefaction. It is something for which, in large measure, employees have exchanged value their work and their contributions. It is 'deferred pay'. These are propositions which are not falsified by arguments advanced by the Trustee to the effect that the Death and Total and Permanent Invalidity benefits under the Deed involve in part an element of bounty. Superannuation is a method of attracting labour. The legitimate expectations which beneficiaries of superannuation funds have that decisions about benefit will be soundly taken are thus high. So is the general public importance of them being sound."

39. Mr O'Rourke's submissions then continue thus:

“50. As indicated, the Plaintiff was a contributor to the PSF. The PSF is comprised of funds from a number of sources including those contributions: s.3(2) PRS Act.

51. Critically, s.3(3) provides:

‘STC must pay out of the fund:

(a)    (a) the benefits provided by this Act…’

52. Section 10(1A)(b) and (c) require, in each case, the formation of an opinion as to the degree of the Plaintiff’s incapacity for work outside the Police Force and, in the case of s.10(1A)(c) only, if applicable, the assessment of the “special risks” to which the Plaintiff was exposed.

53. Although not in fact specifically stated, the assessment on incapacity and “special risk” required by s.10(1A) PRS Act can only be referable to those infirmities determined pursuant to s.10B(1) PRS Act and which form the basis of the Plaintiff being a disabled member of the Police Force.

54. The determination or variation of an “additional amount” must be as a consequence of an assessment made in accordance with s.10(1A)(b) or (c) PRS Act. It is the opinion formed as to the degree of relevant incapacity that is the basis for a determination or variation described in s.10(1D) PRS Act. The opinion is formed after an evidence-based inquiry.

55. The date from which the determination or variation of an “additional limit” is directed must be dependent upon the evidence based inquiry mandated by s.10(1A)(b) PRS Act.

56. In the present case, consistent with the purpose and object of the legislation, it is proper to look at evidence of the Plaintiff’s incapacity for work outside the Police Force cause by the relevant hurt on duty infirmity over time since the Plaintiff’s medical discharge. It is a misreading of s.10(1D) PRS Act and one inconsistent with the purpose or object of the PRS Act to determine the “appropriate” commencement date by reference to the date of the Plaintiff’s application for an increase of the allowance. This is especially so when, in the present case, there is no legislative requirement for the Plaintiff to make such an application.”

40. The last paragraph, which I have just cited, refers back to the decision of the Court of Appeal in Patterson, where Allsop ACJ said at [13]:

"[13] Prior to 30 June 2006, the terms of the Act, including the terms of 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; the allowance in (a) did not. The evidence before the primary judge was that in the administration of the Scheme, the STC generally only considered the question of an additional amount under s 10(1A)(b) if a member made an application for it."

A little later his Honour said this:

"[21] Mr Patterson was therefore entitled to an amount under s 10(1A)(a). He was entitled also to have the STC consider his position and form an opinion, according to law, under s 10(1A)(b). 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."

“Appropriate”

41. Bearing in mind what fell from the Acting Chief Justice, the submission made by Mr O'Rourke that there was no legislative requirement for the plaintiff to make an application under s 10(1A) is correct. Making an application cannot therefore be determinative of anything, per se. Mr O'Rourke laid emphasis on the meaning to be given to the word "appropriate" in s 10(1D). His submission was this:

"What is 'appropriate' to consider when the Court applies s 10(1D) of the Act is the relevant level of incapacity which may justify a determination or a variation of the 'additional amount'. What may be relevant to such a consideration would be:

the degree of incapacity;

whether the incapacity has changed;

whether there is added additional relevant infirmities so as to increase the relevant incapacity;

the date from which it can be established that the incapacity has changed."

To that list of criteria I would add the following:

the date when the incapacity was established;

whether there has been any improvement in the level of the incapacity;

whether one of the certified infirmities has ceased to play a part in the plaintiff's incapacity.

42. Mr O'Rourke's submissions then continue thus:

“58. It is a misreading of s.10(1D) PRS Act and the discretion provided by an assessment of what is “appropriate” to see the section as imposing time constraints or time limitations upon the commencement date of an “additional amount”.

59.This is particularly so when the Plaintiff’s right to have the assessment of an “additional amount” by the defendant accrued as at the time of the Plaintiff’s discharge and where otherwise PRS Act provided no requirement for the Plaintiff to make an “application” for an additional amount: Patterson.

60. It is submitted that it is contrary to the purpose and object of the legislation to consider the date of “application” for an “additional amount” as determinative of the exercise of discretion, considering:

(i) the legislation did not require the Plaintiff to make an “application”;

(ii) the “application” provided for by the 2006 amendments is only made relevant by the requirements imposed by s.10(1BA) PRS Act (which in any event do not apply to the Plaintiff):

(iii) the “application” is not otherwise defined in the legislation;

(iv) the “application” and the contents or form of the “application” is not made the subject of regulations.”

43. Mr O'Rourke then went on to consider certain previous decisions, to which I shall in due course turn. However, before I continue further, I should record the submission made by Mr Ower on behalf of the defendant that another appropriate matter to consider is the question of delay and relevant thereto is the reason for the delay.

Earlier Decisions

44. The case which each counsel thought was the starting point of the case law was my decision in Tanks v SASTC (unreported, 1 September 2004, RJ894/03). Tanks was an application under s 10(1A)(c). On 27 February 1997 Tanks was discharged from the NSW Police Force on account of the infirmity of "post traumatic bilateral severe tinnitus, bilateral-sensorineural deafness and severe associated headaches, neck and facial pain." That was accepted by the Commissioner of Police as having been caused by Tanks' having been hurt on duty. On 27 August 1997, six months after Tanks' discharge, the defendant approved an increase in his annual allowance to 85% of the salary of his office, on the basis that he was totally incapacitated for work outside the Police Force. More than six years later, on 16 June 2003, Tanks made an application under s 10(1A)(c) for what is usually described as the "special risk benefit" and perhaps should be more properly described as the "abnormal risk benefit". On 31 July 2003 the defendant declined to approve an increase in Tanks' pension beyond the rate of 85% of the salary of his office. I allowed Tanks' appeal. I determined that Tanks' superannuation allowance ought be 87.75% of the salary of his office. Commencing at [26] I then said this:

“26. The defendant now asks me to fix a date from which the increased allowance ought be payable. Section 10, subsection 1D, provides thus:

‘STC may:

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

(b) Vary such determination at any time,

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

27. Clearly the defendant has not made a determination as to when the variation ought take effect because it would allow no variation. However, it appears to me convenient that I make a ruling thereon to obviate further litigation and no submission was put that I do not have any power to make a consequential or ancillary order where I have made an order allowing an appeal, under section 21 of the Act.

28. I am told, without objection, that the plaintiff only made an application under section 10(1A)(c) on 16 June 2003. As I earlier stated, relying on the defendant’s notice of ground of defence, the plaintiff was discharged from the Police Force on 27 February 1997. He was granted a superannuation allowance for total incapacity under paragraph (b) on 27 August 1997. I am told, again without objection, that the defendant’s policy is to backdate any increased allowance to the date of the original grant provided that it is made within twelve months. One can accept therefore that the plaintiff has received 85 per cent of the salary of his office since 27 February 1997. However, it was not until more than six years later on 16 June 2013 that the plaintiff made an application under paragraph (c). He clearly made an application under paragraph (b) at some time prior to 27 August 1997 and one would infer within six months of being medically discharged. Clearly the plaintiff’s delay ought not provide him with a windfall or the defendant with a detriment. Like my retired colleague, his Honour Judge Burke, I agree that there is much in Mattew, Chapter 7, verse 7:

‘Ask, and it shall be given to you; seek, and you shall find; knock, and it shall be opened unto you.’

29. If the plaintiff fails to ask or fails to seek or fails to knock he ought not, in my view, have the benefit of his failure. It appears to me that the appropriate date from which the increased superannuation allowance ought be paid should be from 16 June 2003.

30. I therefore order that the increased superannuation allowance be payable from 16 June 2003.”

That judgment is not seminal. I was relying upon earlier decisions of Burke CCJ in which his Honour had quoted from Matthew chapter 7, verse 7, in determining cases of the like nature.

45. In Carswell v SAS Trustee Corporation [2014] NSWDC 47, a decision made on 20 February 2014, the plaintiff had been certified as incapable of discharging the duties of his office on account of lumbar degenerative disease on 18 December 2001. Two days later, on 20 December 2001, the Commissioner of Police, by his delegate, determined that the suffering by the plaintiff of that infirmity was caused by his having been hurt on duty. The plaintiff was discharged from the NSW Police Force on 4 January 2002. In [20] I recited that on 18 January 2002 the defendant wrote its standard letter to the plaintiff advising him that his pension entitlement was 72.75% of the salary of its office pursuant to s 10(1A)(a) and advising him of his ability to apply for an increased pension pursuant to s 10(1A)(b) and (c). The plaintiff in that case did not apply for an increased pension shortly after receiving the defendant's letter of 18 January 2002 but in fact delayed for over a decade. The plaintiff's application for increased pension bore the date 20 July 2012. Eventually at [79] I determined that the plaintiff's pension ought be increased to 73.36% of the salary of his office. As to the date of the commencement of the new pension benefit, I said this:

"[83] The remaining issue is when the increased pension benefit should commence. Under s 10(1D) the STC can direct the variation to take effect from such time as it considers, 'appropriate.' This is an area that is the subject of some authority. The first decision to which I should refer is my decision in Tanks v SAS Trustee Corporation (1 September 2004, RJ00894/03, unreported). Commencing at [28] I said this:

[see [44] supra]

[84] That dictum was cited by Truss DCJ in Pinkerton v SAS Trustee Corporation (10 August 2007, RJ00319/06, unreported). In that case the plaintiff had been medically discharged as hurt on duty on 12 August 1993. By letter dated 23 September 2005 the plaintiff's then solicitors applied for his existing superannuation pension rate to be increased from 72.75% to 85%. On 25 January 2006 the defendant in those proceedings advised that PSAC had approved an increase to 84% payable from 23 September 2005, the date of his application for increase. On 7 March 2006 that plaintiff's solicitors wrote to the defendant applying for the pension to be backdated to the date of medical discharge on 12 August 1993. At [10] her Honour said this:

'The defendant relies upon a judgment of Neilson DCJ in Tanks v SAS Trustee and says that if a plaintiff does not seek certain relief he ought not be entitled to complain if he does not get it. In Tanks the plaintiff's pension commenced from the date of discharge, 24 February 1997. An increase was approved six months later and he later applied for further increase on 16 June 2003 in respect of which Neilson DCJ allowed the appeal and ordered an increase from the date of application. His Honour referred to the plaintiff's delay which he said ought not provide him with a windfall or the defendant with a detriment. In this present case the delay was some 12 years. It was submitted on behalf of the plaintiff that Tanks is of limited assistance because the issue arose as an afterthought and was not properly argued. However, having regard to the judgment I am satisfied that the matter was properly considered by his Honour.'

[85] Her Honour then went on commencing at [14] to consider whether backdating of the pension was 'mandatory.' Her Honour held at [21] that the legislation did not mandate the additional allowance being backdated to the date of discharge. Her Honour then went on to consider the defendant's argument that the plaintiff was not entitled to the relief sought because in or about January 2007 he commuted the balance of his annual superannuation allowance after two earlier partial commutations. Having considered that submission, her Honour dismissed the appeal, as such an application was then called. There are three other decisions that are pertinent; two being decisions of Ashford DCJ and one being a decision of Robison DCJ. However, those decisions rely on their own facts.

[86] Here the plaintiff does not seek backdating to the date of the commencement of his pension, 5 January 2002, but to 12 April 2011. As I had earlier mentioned the plaintiff did not apply to the defendant for an increased pension until 20 July 2012. The defendant properly concedes that if there is to be an award it ought be backdated to at least 20 July 2012. The plaintiff seeks not that date but the date that he first consulted his present solicitors who assisted him in making the application to the defendant which gives rise to this application.

[87] I quoted earlier in these reasons the defendant's letter to the plaintiff of 18 January 2002 which advised him of his rights. One will note that the defendant itself required the plaintiff to lodge an application in writing supported by a specialist medical opinion. The plaintiff's solicitors for that purpose retained Dr James Bodel whose reports I have earlier quoted. Dr Bodel examined the plaintiff on 31 October 2011 and wrote a report bearing that date. There was a delay of just over six months between the plaintiff's consulting his present solicitors and his being examined by Dr Bodel. Such delays are usual when one finds it necessary to consult a specialist orthopaedic surgeon, and Dr Bodel, noted for his accurate diagnoses and his independent view, is a highly sought after consultant orthopaedic surgeon, providing opinions not only to plaintiffs but also to defendants. The delay between the plaintiff seeing his solicitors and being examined by Dr Bodel is wholly explicable. However, what is not wholly explicable is the delay of almost nine months between 31 October 2011 and 20 July 2012. No attempt was made in the plaintiff's case to explain the delay.

[88] In the course of argument I pointed out to learned counsel for the plaintiff that if I were to adopt as a matter of principle the date on which a plaintiff sought legal advice in order to enable him to make an application to increase a pension I would sometimes be permitting inordinate delay because sometimes some solicitors can take years 'to get their act together', so to speak, to assemble the evidence necessary to make an application to the defendant for an increased pension. It is clear from what I said in Tanks that the defendant's policy permits an applicant for an increased benefit a year to prepare his case and to put that case before it. However, in the current case the delay was over 15 months. However, some period is properly, in my view, allowable to enable a plaintiff to obtain the necessary evidence to put it before the defendant so that the defendant can reach a decision. It appears to me that the one year allowed by the defendant itself is appropriate and in the circumstances it appears to me that I ought backdate the pension to 20 July 2011; that is one year prior to the application actually being lodged. If the plaintiff's solicitors had been diligent and got it in within a year it would have been backdated even earlier."

46. The next decision of my own to which I ought refer is that of Porto v SASTC [2014] NSWDC 15, a decision of 21 March 2014. At [147] I said this:

"[147] The remaining issue concerns the date from which the increased pension ought to be paid. The relevant provision is s 10(1D) which is in the following terms:

'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 of variation take effect from such date as STC considers appropriate.'

That provision must be contrasted with s 9A(4) which provides this:

'An annual superannuation allowance granted under s 10 to a former member of the police force who resigned or retired is, subject to this Act, payable as from:

(a) the date the former member lodged the application for the allowance that was determined by STC certifying the matters referred to in s 10B(2)(b), or

(b) such earlier date as STC may determine if STC is satisfied that there are exceptional circumstances that merit STC doing so.'

In the Act 'STC' is the abbreviation for the current defendant. Authorities relevant to the interpretation of s 9A(4) are Swift v SAS Trustee Corporation [2010] NSWCA 182 and SAS Trustee Corporation v Cox [2011] NSWCA 408. Here of course the pension entitlement arose at the time of the plaintiff's resignation, 28 April 1995. On one view of the matter the plaintiff's pension ought to have commenced on 29 April 1995. However, the plaintiff did not seek that the pension commence at that time, but at the time he sought his medical retirement, namely 5 August 2008, or on the date on which it was received by the defendant on 7 October 2008.

[148] The plaintiff's increased pension was only granted from 14 December 2011, the time that the defendant received the plaintiff's application for his increased pension benefit. That is clear from exhibit B. There are a number of unreported authorities which may be relevant. The first is my decision in Tanks v SAS Trustee Corporation (1 September 2004, RJ894/03), Pinkerton v SAS Trustee Corporation (Truss DCJ, 10 August 2007, RJ319/06), Wheatley v SAS Trustee Corporation (Robison DCJ, 3 August 2011, RJ424/10), Hoffman v SAS Trustee Corporation (Ashford DCJ, 15 May 2013, RJ512/12) and Murphy v SAS Trustee Corporation (Ashford DCJ, 15 May 2013, RJ516/12).”

I then referred to Tanks and pointed out that the relevant dictum was obiter. It ought to be clear from [27] of my reasons that I made that observation to attempt to obviate further litigation between the parties in those proceedings. I then referred to Pinkerton and continued:

[151] The other three decisions to which I have referred in my view state no matter of principle. Indeed Wheatley may contain arguments which are inconsistent with principles adopted by the Court of Appeal in Swift and in Cox. In Wheatley Robison DCJ said on p 6 this:

'I repeat, the defendant is not an insurance company, it has a position of trust and should act accordingly. That is, of course, not to say that everybody who seeks benefits pursuant to the legislation or an increase in benefits or whatever the case may be should automatically be entitled to such benefits simply because of a relationship between the trustee and the potential beneficiary. That, of course, is not the case and could not possibly be so, every case needs to be determined on its own circumstances.'

In essence his Honour relied upon the facts of that case. The same reasoning process appears to have been adopted by her Honour Judge Ashford in Hoffman and Murphy, which were both delivered on the same day. It is clear from the decisions in Swift and Cox that delay is a relevant consideration.

[152] Here the plaintiff's entitlement to his pension crystallised on 8 October 2009 when the Commissioner of Police accepted that the infirmity in the plaintiff's left knee was caused by his having been hurt on duty. On 14 December 2009 the present defendant advised the plaintiff of his entitlement to seek an increased pension. However, he did not do so until his application was received by the defendant on 14 December 2011, two years later. There was a delay of two years in seeking an increased pension entitlement. As I have already pointed out, I do not accept the plaintiff's evidence that he did not receive the letter of 14 December 2009. Even if he did not, it is clear that he was relying upon the services of a solicitor and the advice of a solicitor with expertise in proceedings under the present Act. Initially I was drawn to the argument that it was proper for the plaintiff's solicitor to refrain from seeking an increased pension until the question of whether his PTSD was caused by the plaintiff's having been hurt on duty. That in essence was conceded by the Commissioner of Police on 15 November 2010. Nevertheless, there was still a delay of over a year before the plaintiff sought an increased pension benefit.

[153] Mr Ower for the defendant properly pointed out that it was common for former members of the NSW Police to apply for an increased pension, even if there were still outstanding proceedings such as occurred in the current case. Assuming that the current defendant maintained the policy to which I referred in [28] of Tanks then the plaintiff could have applied for an increased pension by 8 October 2010, and if granted it would have been backdated to 7 August 2008. If an increased pension had been sought within that timeframe, it probably would not have amounted to 85% of the salary of the plaintiff's office, but would most probably have been greater than 72.75% following upon the decision of the Court of Appeal in the Lembcke v SAS Trustee Corporation (2003) 25 NSWCCR 464.

[154] Assume for the moment that the defendant agreed to increase the plaintiff's pension to 80%, and had the application been made on or before 8 October 2010, it would have been backdated to 7 August 2008. Once the Commissioner of Police had accepted that the plaintiff's PTSD was caused by his having been hurt of duty, as he did on 15 November 2010, the plaintiff could have made a further application for an increased pension within one year of that date, and the defendant could well then have increased the pension to its current level of 90%. In those circumstances, given no undue or unexplained delay and the plaintiff's applications falling within the defendant's admitted policies, it would have been proper to backdate the increase to 90% to the date of application for medical discharge, 5 August 2008, or the date on which it was received by the defendant, two days later. Should there have been no relevant delay I would have so determined.

[155] However, the plaintiff elected not to seek an increased pension promptly after the decision of the Commissioner of Police of 8 October 2009, and indeed did not seek an increased pension promptly after the decision of the Commissioner of Police, embodied in the consent made by this Court on 15 November 2010, but delayed making any application to the defendant until 14 December 2011. Given this unexplained delay it appears to me that I should follow the principle which I enunciated in Tanks, which has the approbation of my more senior colleague, her Honour Judge Truss.

[156] Mr Perrignon for the plaintiff made much emphasis in his submissions on the plaintiff's protestations that he knew nothing about his ability to apply for an increased pension and relied wholly on his solicitor. However, a solicitor acts for a litigant and the solicitor is the litigant's agent. Not to attribute the solicitor's failure to advise the plaintiff to apply for an increased pension promptly denies the principle underlying the whole of the law of agency: qui facit per alium, facit per se: who acts through another acts himself. In these circumstances I am unable to make a determination that is other than the determination made by the defendant on 26 July 2012, as set out in exhibit B, the letter of the defendant of 27 July 2012. Accordingly the current application must fail."

47. It is appropriate in these circumstances for me to revisit the decisions of my colleagues. The first decision to which I ought refer is that of Truss DCJ in Pinkerton. What I said fell from her Honour is correct, however, her Honour at [8] of her decision set out a letter of 1 April 2006 sent by the defendant in those proceedings, the current defendant, to the plaintiff in those proceedings. It is this:

“We refer to your letter dated 7 March 2006 and the query raised regarding the date of pension commencement as determined by PSAC on 25 January 2006.

Our Trustees have clear policy guidelines on the effective date of PPS Pension Increase. An extract is quoted below:

An application for a pension increase is to be approved as payable from the date of the application:

However if:

(i) the application is made within one year of medical discharge;

or

(ii) the application is supported by appropriate medical reports; or

(iii) the delays in the application for pension increase have been caused by disputation and appeal action in relation to the decision that the member is entitled to a hurt on duty pension,

the pension increase is to be approved as payable from the date of commencement of the pension.

As your clients (sic) application did not met (sic) the criteria for a date other than date of application, the recommendation was approved to be effective from 23 September 2005 which is the date of application.”

Assuming that the defendant persists with the policy outlined in that letter, the defendant's policy is not merely to grant an increase from the date of the grant if the application is made within one year, but in other circumstances, including if the application is supported by appropriate medical reports. In [11] of her decision her Honour said that she did not accept that the medical evidence relied upon by the plaintiff in those proceedings was capable of constituting medical evidence which supported a backdating of the increase to the date of the commencement of the pension in 1993. Commencing at [14] her Honour considered whether backdating of the pension was mandatory and held otherwise. However, it is clear from the rest of her Honour's judgment that when her Honour looked at the facts of the case she did not consider that the plaintiff had discharged the onus which he bore in establishing the relevant increase of incapacity which would have enabled her to grant the appeal and her Honour therefore dismissed it.

48. The next decision is that of Robison DCJ in Wheatley v SASTC (RJ424/10). In that case the plaintiff had been medically discharged on 14 April 2007. He was granted an HOD pension commencing on 14 April 2007. The defendant received an application for an increased pension on 24 September 2009 and decided on 21 December 2009 to increase the pension to 88% the salary of his office. The defendant decided to award the increase from 24 September 2009, the date of receipt of the application for the increased pension. His Honour set aside that decision and determined that the pension increase should commence on 14 April 2007, the date of the grant of the initial HOD pension. I have read his Honour's decision a number of times, but I cannot discern any question of principle arising from it other than that his Honour decided it on its own facts.

49. The next two decisions were both made by Ashford DCJ on 15 May 2013. The first is Murphy v SASTC (RJ516/12). In that case PSAC granted a certificate of incapacity on 27 November 2008. The decision of the Commissioner of Police accepting the certified infirmity as HOD was made on 6 January 2009. The judgment does not disclose, on my reading of it, the date of actual discharge of the plaintiff from the NSW Police Force. On 5 March 2009 the defendant sent its usual letter to the plaintiff in that case. On 12 December 2011 Murphy applied for a pension increase pursuant to s 10(1A)(b). That application was received on 16 December 2011. On 31 May 2012 the defendant decided to increase the plaintiff's salary to 81.20% the salary of her office. The STC backdated the grant to 16 December 2011. On her application to this Court Ashford DCJ backdated the grant of the pension of 81.20% the salary of office to the date of the initial grant. Commencing at [48] her Honour said this:

“48 In relation to the commencement date of that increase pension entitlement clearly s 10(1D) does not impose time constraints. The plaintiff submits that once an application is made within the requisite time limit to make such application the date of application becomes irrelevant to the determination of the application unless the situation arose where the commencement date sought was so distant that relevant records or documents which may serve to corroborate assertions of incapacity are lost, misplaced or destroyed. The plaintiff submits that in such a case the defendant may not be satisfied evidence exists to justify the commencement date pursued. That does not apply in the present case as there is ample supportive material.

49 The defendant submits that judicial comity would dictate that the approach in Tanks & Pinkerton be followed unless there was a cogent reason not to do so in the circumstances of the case. In the present case there is clear medical evidence in support of the plaintiff’s incapacity outside the police force as previously noted.”

Her Honour did not give any reasons for ignoring any delay made by the plaintiff in that case.

50. The second case is Hoffman v SASTC (RJ512/12). In that case the plaintiff was certified as suffering from the infirmities of "capsulitis/frozen shoulder - left shoulder, patellofemoral osteoarthritis of both knees." Sometime thereafter the Commissioner of Police accepted that those infirmities were caused by Mr Hoffman's having been hurt on duty. He was medically discharged on 14 October 2010. He made an application for an increase in his pension on 11 November 2011. The application was received on 16 November 2011. The defendant made a decision on 26 April 2012 to increase the plaintiff's pension to 81.16% of the salary of his office. The defendant backdated that increased pension to 16 November 2011 but her Honour set aside that decision and backdated the increased pension to the day after the date of discharge, 15 October 2010. At [41] her Honour said this:

“On the facts of the present matter it seems to me the plaintiff has provided to the trustee adequate medical evidence substantiating his ongoing incapacity for employment outside the police force since the date of his discharge. It thus seems to me that at all relevant times the plaintiff has had an entitlement to such increase in his pension and for that to be paid from the date of discharge. Clearly a broad discretion is provided in s 10(1D). Clearly the plaintiff has made his application within the time limits imposed and I consider he has discharged the relevant onus.”

Her Honour did not deal with any submission on the question of delay. However, it should be pointed out that the delay can be looked at as being between 15 October 2011 and 16 November 2011, a delay of some 31 days.

51. The other decision is that of Gibb DCJ in Wheadon v SASTC (unreported, 19 September 2014, RJ558/13). Again, the factual scenario that concerned her Honour was different to the current matter. It appears that the plaintiff in that case was medically discharged on or about 17 March 1998. On 1 November 2001 the plaintiff in that case made an application to increase his pension to 100% the salary of his office. On 30 April 2002 the defendant increased Wheadon's pension to 81% the salary of his office, commencing the increased salary on 1 November 2001. No application was made by Wheadon at that time indicating that he was aggrieved by any part of the decision of the defendant. He made a further application on 18 January 2013, over ten years later, again for an increase to 100% the salary of his office. On 30 May 2013 the defendant increased the plaintiff's pension to 92% the salary of his office. The appeal to her Honour sought an increase in the pension to 100% the salary of office as well as backdating. Her Honour agreed with the decision of the defendant only to commence the increased pension from 18 January 2013, the date on which the defendant received the second application for increased pension. Accordingly, her Honour dismissed the plaintiff's application.

52. A significant difference between that case and the current case is that the case law considered by her Honour establishes that once a decision has been made by the defendant as to the appropriate pension under s 10(1A)(b) or (c), for a plaintiff to have an increase in that pension he must show a relevant change of circumstance. Her Honour was only persuaded that the change of circumstance was established by medical evidence obtained after 18 January 2013. Her Honour reviewed the case law to which I have referred. Her Honour adverted to the decisions of the Court of Appeal in Swift v SAS Trustee Corporation [2010] NSWCA 182 and SAS Trustee Corporation v Cox [2011] NSWCA 408. However, both of those cases concern the backdating of the initial pension entitlement itself and not the backdating of an additional benefit pursuant to par (b) or (c) of s 10(1A).

53. Swift concerned s 9A(4) before the amendments made by the Superannuation Legislation Amendment Act 2006. At the relevant time, as far as Swift was concerned, s 9A(4) was in these terms:

"Where an annual superannuation allowance is granted under s 10 to a former member of the police force who resigned or retired, the allowance is payable as from the date determined by STC for that purpose."

The STC had purported to act pursuant to s 9A(4) as it was from 30 June 2006. Armitage DCJ held that to be erroneous but did not grant the backdating which Swift had sought. At [49] Basten JA, with whom Allsop P agreed, said this:

"[49] The most likely options were the date of the determination, the date of the application or the date of the appellant's retirement. The primary judge adopted the second. It was not an arbitrary date, as the allowance could not have been granted absent an application from the appellant. The primary judge gave careful consideration to questions why no application had been made at the date of retirement. That was undoubtedly a permissible consideration. The choice was made on the basis of established fact and taking into account the submissions made on behalf of the appellant. The selection was not attended by legal error."

54. In Cox the same issue arose as in Swift. In Cox Ashford DCJ had backdated the grant of the pension to 9 June 1988, the date of Cox's retirement from the NSW Police Force. The principal judgment, which was lengthy, was delivered by McColl JA. Her Honour, commencing at [5] gave an overview of the legislative framework, and commencing at [12] the legislative framework prior to June 2006, and commencing at [17] the legislative framework after June 2006. At [32] her Honour recorded that on or about 9 July 2004, after receiving legal advice, Cox made an application to the appellant for a certificate of medical incapacity pursuant to s 10B(2) of the Act. The appellant notified the respondent's solicitors of the receipt of that application on 10 September 2004. Her Honour went on to say this:

"[38] As will be recalled the 2006 amendments took effect on 30 June 2006. On 14 December 2006 PSAC certified in terms of s 10B(2) of the Police Superannuation Act as then in force that 'on 9 June 1988 [the respondent] was incapable due to the infirmity of 'bursitis of the right hip joint; osteoarthritis of the left mid foot' of discharging the duties of office and any other office in the police force at the date of his discharge'. The submission to PSAC recommending the certification drew attention, relevantly, to the 2006 amendments and suggested there was 'a basis to certify [the respondent's] left foot condition as having contributed to his incapacity for full operational duties at the time of discharge.' On 20 April 2007 the Commissioner of Police's delegate certified for the purposes of s 10B(3)(a) that the respondent's left foot infirmity arising from the second Mount Panorama injury was caused by him being 'hurt on duty'.

[39] By letter dated 2 October 2007 the appellant advised the respondent that as a result of his left foot infirmity having been determined pursuant to s 10B(3) to be a hurt on duty injury, he was entitled to a 'pension benefit' (presumably meaning a superannuation allowance) which would commence as and from 10 June 1988, the day after his medical discharge. It appears the advice as to the commencement date was an error. On 29 April 2008 the appellant advised him that the commencement date of his superannuation allowance was 9 July 2004, the date of his s 10B(2) application. It apparent that the appellant added interest to the superannuation allowance."

At [88] her Honour said:

"[88] Accordingly, even accepting, as the respondent submits, that s 9A(4) as in force prior to 2006 conferred an unfettered discretion does not render her Honour's decision inscrutable. Such a discretion is 'unconfined except insofar as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view': Water Conservation & Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 (at 505) per Dixon J; see also Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (at [22]) Gaudron and Gummow JJ. It must be exercised in good faith and not arbitrarily, capriciously or so as to frustrate the legislative intent discernible from the context in which the discretion operates."

At [121] her Honour said this:

"[121] The primary judge appears to have based her 'duty' conclusion (at [58], [76]) on the fact that some sort of relationship would exist between the appellant and retiring police officers because the latter would be being paid monies from the Fund. That, with respect, begs the question as to how the appellant should deduce that any such individual might have an entitlement to a superannuation allowance falling within the s 10B criteria, which entitlement depends upon matters peculiarly within the police officer's knowledge and, possibly the Police Medical Service and the Commissioner of Police. Even that may be doubted in this case, bearing in mind the respondent's evidence that he did not discuss his left foot with the police medical officer at the time of his retirement (primary judgment (at [22])) and, as the historical documents reveal (see [28] above), had not apparently complained of it since 1985."

However, the appeal was allowed primarily because the trial judge applied the wrong test of incapacity. At [124] her Honour said this:

"The primary judge said (at [79]) that she accepted a submission that had the respondent 'applied at the date of his discharge a superannuation payment would have been made to him from that time'. There was, however, no evidence, in my view, to support the factual premise underlying the submission."

Campbell JA agreed in substance with the reasons of McColl JA and Sackville AJA agreed with the judgment of Campbell JA and therefore the orders proposed by McColl JA.

Consideration

55. One thing that is clear from Swift is that delay is a relevant consideration. That it can be a relevant consideration was conceded by the present plaintiff but only if the delay impeded the ability of a plaintiff to establish factually the degree of incapacity at any relevant time. For example, delay might make it very difficult for a tribunal of fact, whether it be the defendant or this Court, to establish the extent of the incapacity, say, ten years ago, where there may be no relevant medical or factual information available or where statements as to the medical position or factual position at that time might be regarded as unreliable.

56. Mr O'Rourke's submissions concentrate to a large extent on distinguishing what was said in Tanks by pointing out that there is no "windfall gain" to the plaintiff in the current circumstances and no real detriment to the defendant, and points out that the concept of "windfall gain" was rejected in Lembcke, in which he is quite correct. 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?

58. It must be recorded that on the date that the plaintiff settled his first set of proceedings in this Court under the current Act, an application against the Commissioner of Police to have the certified infirmity accepted as having been caused by his having been hurt on duty, the plaintiff was legally represented. He was represented by his current solicitors, Messrs Walter Madden Jenkins. He was then represented by Mr Leslie Nichols, a gentleman who, prior to joining the rank of solicitors, had been a member of the NSW Police Force and a gentleman who has now left the ranks of solicitors, having been called to the Bar. One might expect a person such as Mr Nichols, or anybody from Messrs Walter Madden Jenkins, to advise the plaintiff of his right to seek an increased pension pursuant to s 10(1A)(b) and/or (c). There is no evidence one way or the other.

59. The defendant itself advised the plaintiff of his ability to do so. He did not take up the invitation. I am asked to believe that the plaintiff did not know he had the ability to apply for an increased pension, but that I cannot accept. I can accept, however, that with the certified infirmity the plaintiff found it difficult to make decisions, to take in information, to peruse closely a letter such as the letter of 18 April 2006 sent to him by the defendant. I can also readily accept that the plaintiff probably would have been more interested in the financial information contained on the first page of the letter, namely the total net arrears which he was to receive, a sum of $21,259.98, rather than the information contained on the subsequent pages of the letter. I can also accept that the plaintiff was glad to be rid of the litigation in which he had been involved with the Commissioner of Police since 2004 up until the settlement that was reached on or about 13 March 2006. I find it difficult, however, to accept that Mr Nichols would merely have told the plaintiff that having won his case he could go out and find himself a job, rather than to draw his attention to his right to seek an increased pension entitlement.

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. Clearly a case of this nature is one which will invite scrutiny by the Court of Appeal. 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.

57. 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.

Disposal

63. Before I do so, however, I will invite the parties as to whether they want any particular findings of fact which I have not made which they would seek in the event that there is an appeal from this decision, so that all relevant findings of fact are before the Court of Appeal. Neither the solicitor for the plaintiff nor counsel for the defendant have asked me to make any further particular findings of fact.

64. The order of the Court is the application is dismissed.

65. I confirm the decision of the defendant made on 2 May 2014.

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Decision last updated: 28 August 2015