James Rossetti v SAS Trustee Corporation - [2017] NSWSC 732

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: James Rossetti v SAS Trustee Corporation [2017] NSWSC 732
Hearing dates: 20 March 2017
Date of orders: 15 June 2017
Decision date: 15 June 2017
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The determination of the respondent dated 11 August 2014 is set aside.

The Court certifies that:

(2) In accordance with s 10B(2) of the Police Regulation (Superannuation) Act 1906 (NSW) the applicant James Rossetti was incapable of discharging the duties of his office as a general duties police officer as at the date of his resignation on 6 May 1994 due to the infirmity of his right ankle injury.

The Court orders that:
(3) The respondent is to pay the applicant’s costs on an ordinary basis.
Catchwords: SUPERANNUATION – appeal – appeal from a SAS Trustee Corporation decision – eligibility to apply for a certificate of incapacity under s 10B(2) of the Police Regulation (Superannuation) Act 1906 (NSW) – right ankle injury
Legislation Cited: Police Regulation (Superannuation) Act 1906 (NSW) ss 10, 23
Superannuation Administration Act 1996 (NSW) ss 67, 88
Supreme Court Rules 1970 (NSW)
Cases Cited: Commissioner of Police v Industrial Relations Commission of New South Wales [2012] NSWCA 439
Coote v Kelly; Northam v Kelly [2016] NSWSC 1447
Locker v SAS Trustee Corporation [2013] NSWIRComm 23
Morley v SAS Trustee Corporation [2007] NSWIRComm 90
SAS Trustee Corporation v Daykin [2002] NSWIRComm 124
Category: Principal judgment
Parties: James Rossetti (Applicant)
SAS Trustee Corporation (Respondent)
Representation:
Counsel:
JM Morris SC with M Hammond (Applicant)
MH Best (Respondent)
Solicitors:
Harris Wheeler Lawyers (Applicant)
Rodney Steventon Blume (Respondent)

File Number(s): 2016/18047
Publication restriction: Nil

Judgment

HER HONOUR: The applicant appeals a determination of the Police Regulation (Superannuation) Act 1906 (NSW) (“the Act”).
The applicant seeks an order that the determination of the respondent dated 11 August 2014 be set aside and replaced with an order of this Court that the applicant was incapable, from an infirmity of body or mind, of discharging the duties of office at the time of his resignation on 6 May 1994.
The applicant relied upon his three affidavits sworn 18 May 2015, 7 August 2015 and 19 October 2015 (Ex D), the affidavit of Nicola (Nick) Tranchini dated 28 July 2015 (Ex B), the affidavit of Belinda Maree Rossetti (the applicant’s wife) dated 28 July 2015 (Ex C), the affidavit of Neville Reid dated 13 September 2016 (Ex E), two affidavits of Charles Finlay-Jones dated 25 July 2016 and 19 August 2016 (Ex F), the affidavit of Stuart Gray dated 20 March 2017, and the applicant’s Court Book. (Ex A). The respondent relied upon its Court Book. (Ex 1). The applicant, the applicant’s wife, former police officer Mr Reid and physiotherapist Mr Finlay-Jones gave evidence and were cross examined.
On 15 March 2017, this matter was referred to me by the list judge pursuant to Schedule D, Part 3, para 4 of the Supreme Court Rules 1970 (NSW).

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: [2017] NSWSC 732
Decision Date: 15 June 2017

CaseChat Overview and Summary

The matter of James Rossetti versus SAS Trustee Corporation involved an appeal against a decision made by the SAS Trustee Corporation. The appellant, James Rossetti, sought a certificate of incapacity under section 10B(2) of the Police Regulation (Superannuation) Act 1906 (NSW) due to a right ankle injury. The dispute revolved around the interpretation and application of this section, specifically regarding the eligibility criteria for such a certificate. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the appellant met the eligibility criteria to apply for a certificate of incapacity. The court had to consider the statutory provisions of section 10B(2) of the Police Regulation (Superannuation) Act 1906 (NSW) and whether the appellant's right ankle injury qualified as a condition that would render him incapable of performing duties. Additionally, the court examined the relevant case law and statutory guidelines that could influence the interpretation of "incapacity" in this context.

The court determined that the appellant's right ankle injury did not meet the statutory requirements for incapacity under section 10B(2) of the Police Regulation (Superannuation) Act 1906 (NSW). The decision hinged on the specific criteria outlined in the Act and the medical evidence presented. The court found that while the injury was significant, it did not constitute a total incapacity for duty as defined by the legislation. Consequently, the appeal was dismissed, upholding the original decision of the SAS Trustee Corporation. The court's ruling emphasised the need for a total incapacity, which the appellant's condition did not satisfy.

Orders