Lembcke v SAS Trustee Corporation - [2003] NSWCA 136

Reported Decision:
(2003) 56 NSWLR 736

Court of Appeal

CITATION: Lembcke v SAS Trustee Corporation [2003] NSWCA 136

HEARING DATE(S): 06/05/2003

JUDGMENT DATE:
29 May 2003

JUDGMENT OF: Meagher JA at 1; Santow JA at 9; Ipp JA at 54

DECISION: 1. The appeal is allowed; 2. The orders of the trial judge are set aside as also the decision of the SAS Trustee Corporation; 3. Pursuant to s10(1A)(b), the Appellant should receive an additional amount by way of annual superannuation allowance of $20.74 per week which, when added to the amount presently received by way of additional amount of $47.06 totals $67.80 per week; 4. The Respondent to pay the Appellant's costs of the appeal and of the proceedings in the Compensation Court of New South Wales.

CATCHWORDS: POLICE REGULATION (SUPERANNUATION) ACT 1906 - approach to the assessment of additional entitlement to superannuation allowance under s10(1A) - whether proper to have recourse to the principles of s40 Workers Compensation Act 1987 - assessment of incapacity for work

LEGISLATION CITED: Compensation Court Act 1984 (NSW) s32(1)
Police Regulation (Superannuation) Act 1906 s10(1A)
Police Regulation (Superannuation and Appeals) Amendment Act 1979
Workers' Compensation Act 1987 s40

CASES CITED: Atkin v Goodyear Tyre & Rubber Co Austin (Ltd) (1945) 46 SR(NSW) 20
Carrette v SAS Trustee Corporation (2001) NSWCCR 586
Re Goodyear Australia Limited (2002) 167 FLR 1
Malcolm Towers v SAS Trustee Corporation (Bishop J, Compensation Court of New South Wales No 4223 of 2001, 10 July 2002, unreported)
The National Insurance Company of New Zealand Limited v Espagne (1961) 105 CLR 569
Pepper v Hart [1993] AC 593
Pira Pty Ltd v Tucker (1996) 14 NSWCCR 26
Poole v State Authorities Superannuation Board (2000) 20 NSWCCR 633
Shepherd v State Authority Superannuation Board (1996) NSWCCR 710

PARTIES :
Neil LEMBCKE (Appellant)
SAS TRUSTEE CORPORATION (Respondent)

FILE NUMBER(S): CA 40937/02

COUNSEL: R W Seton, SC/ K Sant (Appellant)
J D Hislop, QC/ T M Ower (Respondent)

SOLICITORS: Oates & Smith (Appellant)
Brian Matthews - SAS Trustee Corporation (Respondent)

LOWER COURTJURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S): CC5409/01

LOWER COURT
JUDICIAL OFFICER : Ashford J

CA 40937/02
CC 5409/01

MEAGHER JA
SANTOW JA
IPP JA
29 MAY 2003

Neil LEMBCKE v SAS TRUSTEE CORPORATION

Catchwords

1906 – approach to the assessment of additional entitlement to superannuation allowance under s10(1A) – whether proper to have recourse to the principles of s40 Workers Compensation Act 1987 – assessment of incapacity for work

Facts

The Appellant was a police officer who was medically retired from the NSW Police Force having received a medical discharge for serious back injuries on 12 October 2000.

Pursuant to s10(1A)(a) of the Police Regulation (Superannuation) Act 1906 the Appellant was entitled to a superannuation allowance equal to 72.75% of his salary of office at the date of discharge. This amounts to a weekly allowance of $805.62 per week.

Under s10(1A)(b)(i) the Appellant was entitled to apply for, and if thought justified by the Respondent, to obtain an additional superannuation…

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.

Keep reading for free

Create a free CaseChat account to read Lembcke v SAS Trustee Corporation and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] NSWCA 136
Decision Date: 29 May 2003

CaseChat Overview and Summary

The appeal before the Court of Appeal of New South Wales concerned the assessment of an additional superannuation allowance for the appellant, Mr. Lembcke, under section 10(1A) of the *Police Regulation (Superannuation) Act 1906*. The dispute arose from the SAS Trustee Corporation's calculation of this additional entitlement, which Mr. Lembcke contended was incorrect.

The primary legal issue before the court was how to properly assess an "additional entitlement to a superannuation allowance" under section 10(1A) of the *Police Regulation (Superannuation) Act 1906*. Specifically, the court had to determine whether it was appropriate to have recourse to the principles of section 40 of the *Workers Compensation Act 1987* when assessing the appellant's incapacity for work for the purposes of the superannuation allowance.

The Court of Appeal allowed the appeal, setting aside the orders of the trial judge and the decision of the SAS Trustee Corporation. The court reasoned that the principles of section 40 of the *Workers Compensation Act 1987* were indeed relevant to the assessment of incapacity for work under section 10(1A) of the *Police Regulation (Superannuation) Act 1906*. Consequently, the appellant was awarded an additional amount by way of annual superannuation allowance of $20.74 per week, bringing his total additional allowance to $67.80 per week. The respondent was ordered to pay the appellant's costs of the appeal and the proceedings in the Compensation Court of New South Wales.

Orders

Orders of the court

1. The appeal is allowed; 2. The orders of the trial judge are set aside as also the decision of the SAS Trustee Corporation; 3. Pursuant to s10(1A)(b), the Appellant should receive an additional amount by way of annual superannuation allowance of $20.74 per week which, when added to the amount presently received by way of additional amount of $47.06 totals $67.80 per week; 4. The Respondent to pay the Appellant's costs of the appeal and of the proceedings in the Compensation Court of New South Wales.

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.

CITATION:	Lembcke v SAS Trustee Corporation [2003] NSWCA 136
HEARING DATE(S):	06/05/2003
JUDGMENT DATE:	29 May 2003
JUDGMENT OF:	Meagher JA at 1; Santow JA at 9; Ipp JA at 54
DECISION:	1. The appeal is allowed; 2. The orders of the trial judge are set aside as also the decision of the SAS Trustee Corporation; 3. Pursuant to s10(1A)(b), the Appellant should receive an additional amount by way of annual superannuation allowance of $20.74 per week which, when added to the amount presently received by way of additional amount of $47.06 totals $67.80 per week; 4. The Respondent to pay the Appellant's costs of the appeal and of the proceedings in the Compensation Court of New South Wales.
CATCHWORDS:	POLICE REGULATION (SUPERANNUATION) ACT 1906 - approach to the assessment of additional entitlement to superannuation allowance under s10(1A) - whether proper to have recourse to the principles of s40 Workers Compensation Act 1987 - assessment of incapacity for work
LEGISLATION CITED:	Compensation Court Act 1984 (NSW) s32(1) Police Regulation (Superannuation) Act 1906 s10(1A) Police Regulation (Superannuation and Appeals) Amendment Act 1979 Workers' Compensation Act 1987 s40
CASES CITED:	Atkin v Goodyear Tyre & Rubber Co Austin (Ltd) (1945) 46 SR(NSW) 20 Carrette v SAS Trustee Corporation (2001) NSWCCR 586 Re Goodyear Australia Limited (2002) 167 FLR 1 Malcolm Towers v SAS Trustee Corporation (Bishop J, Compensation Court of New South Wales No 4223 of 2001, 10 July 2002, unreported) The National Insurance Company of New Zealand Limited v Espagne (1961) 105 CLR 569 Pepper v Hart [1993] AC 593 Pira Pty Ltd v Tucker (1996) 14 NSWCCR 26 Poole v State Authorities Superannuation Board (2000) 20 NSWCCR 633 Shepherd v State Authority Superannuation Board (1996) NSWCCR 710
PARTIES :	Neil LEMBCKE (Appellant) SAS TRUSTEE CORPORATION (Respondent)
FILE NUMBER(S):	CA 40937/02
COUNSEL:	R W Seton, SC/ K Sant (Appellant) J D Hislop, QC/ T M Ower (Respondent)
SOLICITORS:	Oates & Smith (Appellant) Brian Matthews - SAS Trustee Corporation (Respondent)

LOWER COURTJURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S):	CC5409/01
LOWER COURT JUDICIAL OFFICER :	Ashford J