Greig v SAS Trustee Corporation

[2023] NSWDC 669

District Court

New South Wales

Medium Neutral Citation:

Greig v SAS Trustee Corporation [2023] NSWDC 669

Hearing dates:

30 January 2023

Date of orders:

30 January 2023

Decision date:

30 January 2023

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Notice of Motion seeking dismissal of claim dismissed.

Catchwords:

POLICE – SUPERANNUATION – INCREASE OF BENEFITS – Application under s 10(1A)(c) – The Police Superannuation Advisory Committee made a decision under s 10(1A)(b) on 25 November 2021 and notified the Plaintiff on 9 December 2021, and backdated its decision to 14 June 2019 – On 16 December 2021 the Police Superannuation Advisory Committee made a decision under s 10(1A)(c) and certified the Plaintiff on 31 December 2021, repeating its decision to backdate the pension increase to 14 June 2019 – The Plaintiff commenced proceedings – Only issue to be litigated was date of commencement of the increased benefit – The Defendant argued that the Plaintiff was statute-barred as decision to backdate made on 25 November, notified 9 December and proceedings commenced more than 6 months later – Held: The Defendant had to make its decision under s 10(1A)(c) and decision under s 10(1A)(b) was otiose – Further letter of 25 November did not give adequate notice of decision to backdate.

Legislation Cited:

Police Regulation (Superannuation) Act 1906 (NSW)

Cases Cited:

Jennings v Commissioner of Police (1996) 13 NSWCCR 640

Richardson v SAS Trustee Corporation (1999) 18 NSWCCR 423

SAS Trustee Corporation v Miles [2018] HCA 55

Schinnerl v Commissioner of Police [1992] NSWCA 224

Texts Cited:

Nil.

Category:

Principal judgment

Parties:

Plaintiff – Stephen Paul George Greig
Defendant - SAS Trustee Corporation

Representation:

Plaintiff – Mr O’Rourke, P.
Defendant – Mr Ower, T.

File Number(s):

2022/00173020

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: By motion, notice of which was filed on 5 December 2022, the Defendant seeks an order dismissing the current proceedings as "Not justiciable pursuant to s 21 of the Police Regulation (Superannuation) Act 1906".

2. The Plaintiff, Mr Stephen Paul George Greig, who was born in August 1968, is currently aged 54 years old. He was attested as a probationary constable of police on 30 October 1987 and thereupon became a contributor to the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906 (‘the Act’). The Plaintiff was severely injured on 17 February 1992. Learned counsel for the Plaintiff summed up the injury in this fashion:

"Briefly, when involved in a police operation at Glenorie, the plaintiff was threatened by an alleged offender with a firearm and, otherwise, was viciously attacked by two large dogs. During this attack the plaintiff twice discharged his service revolver which, on the second occasion, accidentally caused substantial injury to the plaintiff's left hand."

3. The Plaintiff was dealing with an illegal marijuana plantation and the two large dogs were German Shepherds. On 7 November 1994 the Plaintiff applied for medical discharge from the NSW Police. On 26 October 1995, the Police Superannuation Advisory Committee (‘PSAC’) determined that the Plaintiff was incapable of discharging the duties of his office because of the infirmities of:

"Gunshot wound left hand, post traumatic stress disorder and depressive reaction."

4. The Plaintiff was then a Senior Constable of Police. That certification led to the Plaintiff’s being medically discharged on 9 November 1995. On 20 December 1995, the Commissioner of Police determined that the suffering by the Plaintiff of the infirmities specified by PSAC was caused by the Plaintiff's having been hurt on duty.

5. On the following day, the Defendant advised the Plaintiff in writing that, as a result of the certificate granted by the Commissioner of Police, the Plaintiff became entitled to an annual superannuation allowance or pension under the Act. That commenced to be paid to him at the base rate of 72.75% of the salary of his office, commencing on 20 November 1995. Between the date of the Plaintiff's discharge on 9 November 1995, and the commencement of the police pension he was entitled to certain accrued leave benefits.

6. After leaving the NSW Police, the Plaintiff had certain work for which he received income. He worked as a Rugby League referee here in New South Wales. He went on to commence his own business. He has his own construction, building, excavation, and heavy haulage company. A history given by the Plaintiff indicates that in that business the Plaintiff had about 30 employees and 50 subcontractors. The Plaintiff also said that he began to find it quite difficult to continue to drive trucks as a result of a number of medical conditions and ceased participating in that business on or about 1 July 2012. The Plaintiff has been unemployed since that time.

7. According to other histories, between 1998 and 2001 the Plaintiff obtained a Management Certificate II and IV at TAFE. In 2002, he obtained a Certificate III in Carpentry. In 2004, he obtained a Certificate IV in Building Works. He commenced a law degree in 2011 but gave up that in 2012 when he was beset, I assume, with the further medical problems.

8. The Plaintiff has given a history that since 2012 he has had visual impairment, weakness of his left upper limb, muscle spasms, cramps, pain, visual limitations, and a hemianopia and quadrantanopia, seborrheic cysts, falls, headaches, dizziness, vertigo, blood pressure fluctuations, photophobia, difficulty with functioning, and an unclear diagnosis. There is also a diagnosis of "Gastro-paralysis". The condition has been given a diagnosis of "Multiple system atrophy". Inter alia, this condition has been described as a terminal illness and it is clear that the Plaintiff is slowly going blind.

9. The Plaintiff was examined by Dr Smith, a consultant general surgeon, on 8 June 2021 on behalf of the Defendant. According to the evidence before me, Dr Smith said this about the Plaintiff's fitness for work:

"Mr Greig was incapable from a specified infirmity of body or mind of discharging the duties of his office. He was assessed to be not classifiable as total and permanently invalided. Since his injuries he has managed to run a construction company and undertake in various activities which have been remunerated, but currently he is undertaking part time activities on his farm where he tends to animals including sheep and cattle.

He would continue on restricted duties in relation to these activities because of his injuries to his left hand and his post-traumatic stress disorder, and these limitations were aggravated by his degenerative condition of progressive atrophy and his ocular problems with left homonymous hemianopia. He is only able to work in a limited part time capacity which would be unlikely to generate an adequate income."

10. In a report dated 2 July 2019, Associate Professor Watson, a consultant physician retained by the Defendant, pointed out that the Plaintiff was then living on a small block of land and running sheep but physically struggled to look after them and feed them.

11. In another report bearing date 17 April 2020, Associate Professor Watson pointed out that the problem that the Plaintiff had was that his current place of abode was in a reasonably isolated territory in the southwest of Western Australia. He also pointed out that because of his eyesight problems the Plaintiff was not safe to be driving anywhere other than locally in the Wagin area and that he is reliant on other people, including his closest support person, to take him to Perth or to anywhere else required for medical consultations. He pointed out that even getting into Wagin to do his shopping was difficult, and more often than not he was reliant on his neighbours. It would appear that since July 2012, the Plaintiff's condition has slowly deteriorated.

12. On 8 June 2019, the Plaintiff completed an application form for an increase in his hurt on duty pension pursuant to s 10(1A) of the Act. The form is known as PSS Form 14. On the first page of the form there is this instruction:

"If you are applying for an HOD [hurt on duty] pension increase in respect of the special risk element (over 85%), you are also required to answer part G."

13. The Plaintiff completed Part G. The part itself is on page 7 of the form and is headed "Special Risk (pension) increase over 85". The questions and answers are these:

"30. Describe the circumstances of the events which led to your HOD injury occurring.

Armed offender - rifle - two attack German Shepherd dogs - undercover job.

31. Describe the nature of the risks or physical injury to which you were required to be exposed which resulted in your HOD injury.

Attacked, alone, isolated, injured, career path ruined, pain associated coping.

32. Explain how the risk to which you were exposed, as described in your answer to Q 31, was one to which members of the general workforce are not normally exposed.

Huge risk. Armed offender plus two dogs to attack to avoid apprehension."

14. Part E of the same application, which can be found on page 6 of the form, contains two relevant questions. They are these:

"27. Are you currently incapacitated for work outside the police force to any extent?

Yes.

If yes, please provide details, including the symptoms of your current medical conditions.

Total permanent incapacitated and terminal condition.

28. Are you seeking to have the pension increase commence from a date that is earlier than the date of application?

Yes.

If yes, please indicate the date and give the reason for seeking that earlier date.

01.07.2012.

Not able in any manner due to illness to work in any role from 1/7/2012 with current condition that was listed terminal October 2017. 22 months later still here but in much worse condition and relisted terminal - 24 months at most."

15. This application was received by the Defendant on 14 June 2019. By letter dated 25 November 2021, the Defendant wrote to the Plaintiff at a post office box in Wagin, Western Australia. The substance of the letter is this:

"We write with respect to your application for increase in a 'Hurt on duty' invalidity pension under section 10(1A)(b) of the Police Regulation (Superannuation) Act 1906 which was received on 14 June 2019.

PSAC decision.

Your application was considered on 25 November 2021 by the Police Superannuation Advisory Committee (PSAC) which is constituted under s 2H of the Act pursuant to a delegation from the SAS Trustee Corporation under sections 2I and 2J of the Act.

After considering the application, PSAC decided to approve an increase in your pension from 72.75% to 85% of the attributed salary of office at the date of medical discharge. The increase to 85% was based on the balance of medical reports available to PSAC.

Date of pension increase commencement.

The increase in your pension will be payable effective from 14 June 2019, which is the date of receipt of the completed application.

Arrangements are currently being made to increase your pension and pay the arrears of pension. A letter will be sent advising details once the pension is adjusted.

We note that your application requested consideration in relation to Special Risk. As the Committee has classified you as being totally incapacitated for work outside the police force, you are now entitled to be considered for an additional increase to your pension under section 10(1A)(c) of the Act.

Accordingly, the application is now being processed under section 10(1A)(c) of the Act and you will be advised of the details in writing."

...

Application for determination

...

If you are aggrieved by the decision of PSAC as notified in this letter, you may apply to the District Court for a determination in relation to the decision. Section 21 of the Act provides that an application may be made to the District Court within six months after this notification of the decisions is received.

Should you have any queries in the meantime please contact Customer Service on [phone number redacted].

Yours sincerely,

The State Super team."

16. There is no contest that the letter was received by the Plaintiff on 9 December 2021. On 16 December 2021 the Defendant sent the Plaintiff another letter. The substance of this letter is this:

"We write with respect to your application in an increase in a 'Hurt on duty' invalidity pension under section 10(1A)(c) of the Police Regulation (Superannuation) Act 1906 which was received on 14 June 2019.

PSAC decisions

Your application was considered on 16 December 2021 by [PSAC]....

After considering the application, PSAC decided that:

1. Your pension is to increase further to 98% of the attributed salary of office because, in the opinion of PSAC, you were hurt on duty because you were 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, and the increase to 98% is commensurate with those risks (section 10(1A)(c));

2. Your pension increase is to be payable from 14 June 2019, which is the date of the increase to 85%.

Arrangements are currently being made to increase your pension and pay the arrears of pension. A letter will be sent advising details once the pension is adjusted.

...

Application for determination

...

If you are aggrieved by the decisions of PSAC as notified in this letter, you may apply to the District Court for a determination in relation to the decisions. Section 21 of the Act provides that an application may be made to the District Court within (6) months after this notification of the decisions is received."

17. The letter finishes in the same way as did the earlier letter. The current proceedings were commenced by the filing of a statement of claim dated 15 June 2022, which passed under the seal of the Court on that day. The letter of 16 December 2021 was received by the Plaintiff on 31 December 2021. The limitation period under s 21 of the Act is a limitation period, currently and at the relevant time, of six months. As I have earlier said, the letter of 25 November 2021 was received by the Plaintiff on 9 December 2021, six months from which, expired on 9 June 2022. The letter of 16 December 2021 was received by the Plaintiff on 31 December 2021, six months from which expired on 30 June 2022.

18. Accordingly, the application currently before this Court is out of time as far as the letter of 25 November 2021 is concerned but is within time in respect of the letter of 16 December 2021.

19. The only issue raised by the statement of claim, an amended form of which was filed on 7 November 2022, is the date of the commencement of the plaintiff's superannuation entitlement pursuant to s 10(1A)(c) of the Act. The defendant argues that because the pension was backdated by PSAC on 25 November 2021, and which was communicated by the defendant to the plaintiff by letter dated 25 November 2021, which was received by the plaintiff on 9 December 2021, the plaintiff's claim is "Statute barred".

20. The plaintiff argues that the letter of 25 November 2021 is defective and, in the alternative, that the decisions made by PSAC on 25 November 2021 were otiose.

21. Section 10(1A) of the Act 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 per cent of the member’s attributed salary of office,

(b)  except where paragraph (c) applies, an additional amount that is—

(i)  not more than 12.25 per cent of the member’s attributed salary of office, and

(ii)  commensurate, in the opinion of STC, with the member’s incapacity for work outside the police force, and

(c)  if the disabled member is totally incapacitated for work outside the police force and, in the opinion of STC, the member was hurt on duty because the member was required to be exposed to risks to which members of the general workforce would normally not be required to be exposed in the course of their employment, an additional amount that is—

(i)  not less than 12.25 per cent and not more than 27.25 per cent of the member’s attributed salary of office, and

(ii)  commensurate, in the opinion of STC, with the risks to which the member was so required to be exposed,

multiplied by the equivalent service ratio of the member as at the date of the member’s discharge, resignation or retirement.”

One will note immediately that s 10(1A)(b) commences with the chapeau "except where paragraph (c) applies, an additional amount..." It appears to me that unless an application is made under paragraph (c) then it is appropriate to consider an application under paragraph (b).

22. However, the plaintiff made an application under paragraph (c). That required the defendant, through its delegate PSAC, to consider whether the plaintiff was totally incapacitated from work outside the police force and, in its opinion the member was hurt on duty because he was required to be exposed to risks to which members of the general workforce would not normally be required to be exposed in the course of their employment. That entitled the plaintiff to a base pension of 72.75% plus 12.25%, or 85%, and not more than 27.25%, that is not more than 100% of the member’s attributable salary of office.

23. Section 10(1D) is this:

“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.”

In SAS Trustee Corporation v Miles [2018] HCA 55 the High Court of Australia considered the application of s 10 of the Act. The plurality, Kiefel CJ, Bell and Nettle JJ, at [23] said this:

“Turning next to s 10(1A)(c), the statutory exclusion of s 10(1A)(b) where s 10(1A)(c) applies, and vice versa, conveys that “incapacitated” in the expression “totally incapacitated for work outside the police force” in s 10(1A)(c) has the same meaning as “incapacity” in the expression “incapacity for work outside the police force” in s 10(1A)(b)(ii).”

In the same case Gageler J said this:

“[50] To that base level annual allowance an additional amount is then to be added under s 10(1A)(b) or (c) if and to the extent that the disabled member of the police force is incapacitated for work outside the police force.

1. For a disabled member or former member who is “totally incapacitated for work outside the police force” and who, “in the opinion of STC, … 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”, s 10(1A)(c)(i) provides for an additional amount which can take the annual allowance to a level between 85 per cent and 100 per cent of the member’s attributed salary at the time of retirement or discharge. The precise additional amount is required by s 10(1A)(c)(ii) to be “commensurate, in the opinion of STC, with the risks to which the member was so required to be exposed”.

2. For a disabled member or former member to whom s 10(1A)(c) does not apply, s 10(1A)(b)(i) provides for an additional amount which can take the annual allowance to a level up to 85 per cent of the member’s attributed salary at the time of retirement or discharge. The precise additional amount is required by s 10(1A)(b)(ii) to be “commensurate, in the opinion of STC, with the member’s incapacity for work outside the police force”. Section 10(1D) makes provision for STC to determine at any time an additional amount under s 10(1A)(b) or (c) and to vary at any time any such determination.”

The dictum of the plurality which I have cited points out clearly that to consider s 10(1A)(c) there is the statutory exclusion of s 10(1A)(b). One does not need to consider s 10(1A)(b) if one is to consider s 10(1A)(c).

24. The plaintiff did not ask the defendant to make a decision under s 10(1A)(b) but rather to make a decision under paragraph (c). It purported to do so on 16 December 2021, the notice of which was received by the plaintiff on 31 December 2021. It may have been administratively easier for the plaintiff to make a decision of total incapacity and apply paragraph (b) before considering paragraph (c), but that is not, in my view, the proper construction of the Act.

24. If an application is made under paragraph (c), then the defendant through its delegate PSAC, if it proceeds in that fashion, ought to make a decision under paragraph (c) before considering paragraph (b). It would be proper to consider paragraph (b) if an application under paragraph (c) were unsuccessful. For example, the defendant might not be able to find that the plaintiff was totally incapacitated.

25. It follows from what I have just said that the application currently before me is unsuccessful. I should, however, briefly rehearse other arguments placed before me by the plaintiff. The letter of 25 November 2021 refers to only one decision of PSAC, that increasing the pension rate to 85% under paragraph (b). The letter does not say that the decision to commence the pension increase on 14 June 2019 was made by PSAC. The notice at the end of the letter to the defendant about his right to appeal refers in the first clause to "The decision of PSAC", but in the last clause of the second sentence refers to "The decisions", which is apt to include a decision to date the pension increase from 14 June 2019. However, anyone reading the letter would be forgiven for thinking that perhaps the use of the plural noun in the final clause was a mistake, bearing in mind that it only referred to one decision of PSAC and only one decision of PSAC was communicated to the plaintiff.

26. The plaintiff argues that given the significance of the notification requirement described in s 21 of the Act, the notification involves a formal and serious act of notifying, and the act of notifying should at least convey enough information to the person notified to enable him or her to plead appropriately a claim before this Court under s 21. The plaintiff cited Schinnerl v Commissioner of Police [1992] NSWCA 224 (‘Schinnerl’) at [7]. In a vernacular touch, learned counsel for the plaintiff in his written submissions said this:

"It is no stretch to expect that the addition to the notification being formal and serious is also clear and accurate."

28. The plaintiff argues that this was not a clear communication that PSAC had made a decision under s 10(1D) of the Act. There is much to be said for that argument. The defendant's letter of 16 December 2021 cured that very difficulty.

29. In Richardson v SAS Trustee Corporation (1999) 18 NSWCCR 423, Campbell CJ of the Compensation Court pointed out that there is no provision in the Act for an application for an extension of time to appeal to that Court which then had the jurisdiction under the Act. In that case, a decision had been made on 28 February 1996. The applicant in that case did not lodge an appeal within the six-month period. By letter dated 13 May 1998, the applicant's solicitors made a fresh application for an increase in the plaintiff's pension. PSAC advised that it would not consider the application because it had dealt with the matter earlier on 28 February 1996. His Honour held that as the decision of 28 February 1996 was time barred that therefore the applicant was not entitled to make a further application for the same relief.

30. His Honour referred to the decision of Jennings v Commissioner of Police (1996) 13 NSWCCR 640. That decision itself is instructive. It was a decision of Geraghty CCJ. The matter is adequately summed up by the headnote, which is this:

“Held:

(1) If an application for determination under the Police Regulation (Superannuation) Act 1906 (the Act), section 21 is outside the 90-day period, there is no jurisdiction in the Compensation Court to hear the matter, nor is there any jurisdiction to extend the 90-day limitation period.

Schinnerl v. Commissioner of Police, Compensation Court, No. 11599-89, Egan J, 26 February 1990, unreported, Williams v. Commissioner of Police, Compensation Court, No. 5376/89, O’Meally J, 8 March 1990, unreported, Vanzino v. Commissioner of Police, Compensation Court, No. 1361/90, Herkes J, 5 April 1991, unreported, and Warren v. Commissioner of Police, Compensation Court, No. 12186/89, Burke J, 10 August 1995, unreported, followed.

Patterson v. Public Service Board (NSW) [1984] 1 NSWLR 237, Secretary of Department of Health v. Harvey, Court of Appeal, No. 40236/89, 5 October 1990, unreported, and Schinnerl v. Commissioner of Police, Court of Appeal, No. 40131/91, 3 December 1992, unreported, considered.

(2) The onus rests on the respondent to establish the failure of the applicant to move within 90 days of notification under section 10B(3) of the Act. Because of the severe consequences of any failure on the part of the applicant to move within that time, there is need for the respondent to establish the defence of no jurisdiction on reasonably strict – but not an absolute – basis; at least to establish that the letter containing the written notification was sent.

(3) Since there was no postal register evidence, since there was no one who came to say that he or she posted it or when, since it was admitted there were inefficiencies in the office, since there was no explanation of who had placed the letter in the envelope and when, who had put it in the “out” tray and when, who had stamped it and who had forwarded it, the rate on which the limitation period commenced to run could not be reliably established. Consequently, the defence of no jurisdiction failed.

R v. Harsant, Ex parte Guthrie (1886) 12 VLR 190 applied.”

As his Honour pointed out, the person seeking to establish that an application was time barred bore the onus of establishing adequate notification. His Honour did point out that because of the severe consequences of any failure on the part of a claimant to move within that time, that there was need for the person making the allegation to establish the defence of no jurisdiction on a reasonably strict but not an absolute basis.

31. There is evidence that the plaintiff did receive the letter of 25 November 2021, because it was signed by the plaintiff himself, on 9 December 2021. However, the confusion as to what could be the subject of an appeal to this Court in that letter, indicates to me that it was not an adequate notice, such that it did not comply with the requirements laid down in Schinnerl, to which I have referred.

32. I have inquired of the parties whether any further reasons for judgment are required. I am told that none is so required. For those reasons the notice of motion filed on 5 December 2022 is dismissed. I order the defendant to pay the plaintiff's costs thereof.

***************

Decision last updated: 08 August 2025