Day v SAS Trustee Corporation

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New South Wales


Court of Appeal


CITATION: Day v SAS Trustee Corporation [2009] NSWCA 222
HEARING DATE(S): 3 July 2009
 
JUDGMENT DATE: 
31 July 2009
JUDGMENT OF: Giles JA at 1; Ipp JA at 75; Basten JA at 76
DECISION: (1) Appeal allowed; (2) Set aside the order made on 4 July 2008 confirming the Committee's decision; (3) Remit the matter to the District Court for new determination; (4) Respondent pay the appellant's costs.
CATCHWORDS: Police officer - widow's superannuation entitlement - Commissioner determined officer's death caused by being hurt on duty - hurt on duty meant injury in course of and substantially contributed to by employment - parties conducted case on basis hurt on duty by reason of archiving acitivities - application to District Court requiring determination concerning nature of risks to which officer exposed - judge not satisfied death suffered by reason of or in course of archiving duties or employment at all - not consistent with Commissioner's determination - also departed from common position in proceedings - gave grievances in point of law - appeal upheld and remission for new determination.
CASES CITED: Commissioner of Police v Kennedy [2007] NSWCA 328;
Commissioner of Police v SAS Trustee Corporation (2002) 131 IR 243;
Larson v Commissioner of Police [2004] NSWCA 126;
Murray v Commissioner of Police [2004] NSWCA 365;
Saad v Commissioner of Police (1995) 12 NSWCCR 70.
PARTIES: Jacqueline Louise Day - Appellant
SAS Trustee corporation - Respondent
FILE NUMBER(S): CA 40322/08
COUNSEL: B Gross QC & S Tzouganatos - Appellant
T Ower - Respondent
SOLICITORS: Walter Madden Jenkins - Appellant
SAS Trustee Corporation - Respondent
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): RJ 397/06
LOWER COURT JUDICIAL OFFICER: O'Toole DCJ
LOWER COURT DATE OF DECISION: 4 July 2009





                          CA 40322/08
                          DC RJ397/06

                          GILES JA
                          IPP JA
                          BASTEN JA

                          Friday 31 July 2009
DAY v SAS TRUSTEE CORPORATION
Judgment

1 GILES JA: The appellant is the widow of Mr Andrew Day, at the time of his death a Detective Inspector in the NSW Police Force. She appealed from the confirmation by O’Toole DCJ of the respondent’s decision that Mr Day’s being hurt on duty was not “because [he] 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” within s 12(1AA)(a)(ii) of the Police Regulation (Superannuation) Act 1906 (“the Act”). The decision denied to the appellant an annual superannuation allowance under the Act at a rate higher than that determined by the respondent.

2 The trial judge was exercising the jurisdiction conferred by s 21 of the Act. A person who considers himself or herself aggrieved by “a decision made by [the respondent] on a matter that arises under this Act by reason of a member of the police force being hurt on duty” can “apply to the District Court for a determination in relation to that decision” (s 21(1)). After considering the…

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Details
Case
[2009] NSWCA 222
Decision Date

CaseChat Overview and Summary

The appellant, the widow of a police officer, appealed to the Court of Appeal of New South Wales against a decision of the District Court which had confirmed a determination by the SAS Trustee Corporation. The dispute concerned the appellant's entitlement to a widow's superannuation benefit, which was contingent on the deceased officer's death being caused by being "hurt on duty". The parties had proceeded in the District Court on the basis that "hurt on duty" meant an injury sustained in the course of and substantially contributed to by the officer's employment, specifically relating to archiving activities.

The primary legal issue before the Court of Appeal was whether the District Court judge had erred in finding that the officer's death was not suffered by reason of or in the course of his archiving duties or employment at all. This finding was inconsistent with the Commissioner's prior determination that the officer's death was caused by being hurt on duty, and it also departed from the common position adopted by the parties in the proceedings. The appeal also raised grievances in point of law concerning the judge's approach to the evidence and the legal standard to be applied.

The Court of Appeal, comprising Giles JA, Ipp JA, and Basten JA, found that the District Court judge had erred in his determination. The court reasoned that the judge's conclusion was not supported by the evidence presented and that he had failed to properly consider the agreed basis of the proceedings and the Commissioner's prior finding. The court upheld the appeal, setting aside the District Court's order confirming the Committee's decision and remitting the matter to the District Court for a new determination. The respondent was ordered to pay the appellant's costs.

Orders

Orders of the court

(1) Appeal allowed; (2) Set aside the order made on 4 July 2008 confirming the Committee's decision; (3) Remit the matter to the District Court for new determination; (4) Respondent pay the appellant's costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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