Dwyer v SAS Trustee Corporation - [2015] NSWDC 51

District Court

New South Wales

Medium Neutral Citation: Dwyer v SAS Trustee Corporation [2015] NSWDC 51
Hearing dates: 2 - 3 February 2015
Date of orders: 03 February 2015
Decision date: 03 February 2015
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
Motion allowed in part

Catchwords:
WORKERS COMPENSATION – Police Superannuation – Pleadings – Applicant sought to strike out a plea denying plaintiff’s ability to allege causation prior to commencement of legislative scheme and following notional date of injury – Court might be able to consider matters after the notional date if relevantly causative of capacity – Risk of estoppel by striking out the plea

WORKERS COMPENSATION – Police Superannuation - Meaning of “commensurate” – Triable argument – Reasonable defence pleaded
WORKERS COMPENSATION – Police Superannuation – Plaintiff diagnosed with cognitive impairment – Defendant sought examination by neuropsychiatrist – Plaintiff conceded onset of cognitive impairment not casually related to certified infirmity – Assessment unnecessary – Defendant sought examination by cardiologist – Plaintiff had a large number of medical conditions in different fields of medicine – Examination by general physician sufficient in circumstances
Legislation Cited: Police Regulation (Superannuation) Act 1906
Workers Compensation Act 1987
Cases Cited: Dive v The Commissioner of Police (1997) 15 NSWCCR 366
Lembcke v SASTC [2003] NSWCA 136; (2003) 25 NSWCCR 464
Poole v SASTC (2000) 20 NSWCCR 633
Smith v The Commissioner of Police [1999] NSWCC 4; (1999) 18 NSWCCR 105
Staples v The Commissioner of Police (1990) 6 NSWCCR 33
State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257
Category: Procedural and other rulings
Parties: Patrick Kenneth Dwyer (Applicant/Plaintiff)
SAS Trustee Corporation (Respondent/Defendant)
Representation:
Counsel:
Mr P O’Rourke (Applicant/Plaintiff)
Mr T Ower (Respondent/Defendant)
Solicitors:
Walter Madden Jenkins (Applicant/Plaintiff)
Rod Blume (Respondent/Defendant)

File Number(s): RJ330/14
Publication restriction: No

Judgment

HIS HONOUR: Before me is a motion, a notice of which was filed on 21 January 2015. The first two prayers for relief are in essence to strike out pleas numbered 6 and 7 in a second amended defence filed by the defendant on 20 November 2014. Plea numbered 6 was first pleaded in a first amended defence filed on 12 November 2014. It is so described in the notice of motion; however, it is more convenient for me to discuss it in the context of the second amended defence of 20 November 2014 in which plea 6 is repeated from the first amended defence.
I should point out that the defendant had not obtained leave at any time to file any amended defence and that was theoretically necessary. However I will overlook the irregularity.
The plaintiff moves to strike out pleas numbered 6 and 7 pursuant to UCPR 14.28. The third prayer for relief is that the plaintiff not be required to submit to a medical examination at the request of the defendant with either a neuropsychologist or a cardiologist.
The plaintiff was born on 27 March 1939. He is currently 75 years old. He was attested as a probationary constable of police on 26…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2015] NSWDC 51
Decision Date: 03 February 2015

CaseChat Overview and Summary

The plaintiff, Dwyer, brought a claim against the SAS Trustee Corporation in relation to his entitlement to superannuation benefits. Dwyer, a former police officer, argued that he was entitled to compensation on the basis that his cognitive impairment, diagnosed post-retirement, was related to his employment. The SAS Trustee Corporation denied this claim, arguing that Dwyer's cognitive impairment was not caused by his employment and, even if it was, it was not compensable under the relevant legislative scheme. The dispute reached the court, which was required to determine the admissibility of the plea, the interpretation of the term "commensurate," and the necessity of specific medical examinations.

The court examined whether the plea could be struck out, considering that it denied Dwyer's ability to allege causation prior to the commencement of the legislative scheme and after the notional date of injury. The court held that it might be able to consider matters occurring after the notional date if they were relevantly causative of the plaintiff's capacity, but striking out the plea carried the risk of an estoppel. Regarding the meaning of "commensurate," the court found that there was a triable argument on the point, and the defendant had pleaded a reasonable defence. The court also addressed the necessity of specific medical examinations, ruling that a general physician's assessment was sufficient given Dwyer's extensive medical conditions.

The court allowed the motion in part, permitting the plaintiff to proceed with certain aspects of his claim while denying others. The decision highlighted the complexities in interpreting legislative provisions and the importance of ensuring that the plaintiff's rights to a fair trial were preserved. The court's ruling allowed for a more comprehensive examination of the evidence while maintaining the integrity of the legislative framework governing superannuation entitlements.

Orders

Orders of the court

Motion allowed in part

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Dwyer v SAS Trustee Corporation [2015] NSWDC 51
Hearing dates:	2 - 3 February 2015
Date of orders:	03 February 2015
Decision date:	03 February 2015
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Motion allowed in part
Catchwords:	WORKERS COMPENSATION – Police Superannuation – Pleadings – Applicant sought to strike out a plea denying plaintiff’s ability to allege causation prior to commencement of legislative scheme and following notional date of injury – Court might be able to consider matters after the notional date if relevantly causative of capacity – Risk of estoppel by striking out the plea WORKERS COMPENSATION – Police Superannuation - Meaning of “commensurate” – Triable argument – Reasonable defence pleaded WORKERS COMPENSATION – Police Superannuation – Plaintiff diagnosed with cognitive impairment – Defendant sought examination by neuropsychiatrist – Plaintiff conceded onset of cognitive impairment not casually related to certified infirmity – Assessment unnecessary – Defendant sought examination by cardiologist – Plaintiff had a large number of medical conditions in different fields of medicine – Examination by general physician sufficient in circumstances
Legislation Cited:	Police Regulation (Superannuation) Act 1906 Workers Compensation Act 1987
Cases Cited:	Dive v The Commissioner of Police (1997) 15 NSWCCR 366 Lembcke v SASTC [2003] NSWCA 136; (2003) 25 NSWCCR 464 Poole v SASTC (2000) 20 NSWCCR 633 Smith v The Commissioner of Police [1999] NSWCC 4; (1999) 18 NSWCCR 105 Staples v The Commissioner of Police (1990) 6 NSWCCR 33 State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257
Category:	Procedural and other rulings
Parties:	Patrick Kenneth Dwyer (Applicant/Plaintiff) SAS Trustee Corporation (Respondent/Defendant)
Representation:	Counsel: Mr P O’Rourke (Applicant/Plaintiff) Mr T Ower (Respondent/Defendant) Solicitors: Walter Madden Jenkins (Applicant/Plaintiff) Rod Blume (Respondent/Defendant)
File Number(s):	RJ330/14
Publication restriction:	No