Mackie v SAS Trustee Corporation

District Court

New South Wales

Medium Neutral Citation:

Mackie v SAS Trustee Corporation [2017] NSWDC 232

Hearing dates:

10 – 13, 20 April 2017

Date of orders:

20 April 2017

Decision date:

20 April 2017

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Set aside the decision of the Defendant made on 25 February 2016 and determine that the Plaintiff’s pension allowance be increased from 72.75% at the date of her medical discharge to 81.94%.

 

Determination that that pension become payable from 16 March 2012.

 Defendant to pay the Plaintiff’s costs.

Catchwords:

POLICE SUPERANNUATION – Application to increase superannuation entitlement – when should pension increase commence?

Legislation Cited:

Police Regulation (Superannuation) Act 1906

Cases Cited:

Carswell v SAS Trustee Corporation [2014] NSWDC 47
Daley v SASTC [2015] NSWDC 183; (2015) 20 DCLR(NSW) 362
Daley v SASTC [2016] NSWCA 111
Daley v SASTC (No 2) [2016] NSWDC 285
Lembcke v SASTC [2003] NSWCA 136; (2003) 56 NSWLR 736; (2003) 25 NSWCCR 464
Moss v SASTC (No 2) [2016] NSWDC 287
Swift v SASTC [2010] NSWCA 182

Category:

Principal judgment

Parties:

Virginia Suzanne Mackie (Plaintiff)
SAS Trustee Corporation (Defendant)

Representation:

Counsel:
P O’Rourke (Plaintiff)
T Ower (Defendant)

  Solicitors:
Walter Madden Jenkins (Plaintiff)
Lorianna Ower (Defendant)

File Number(s):

RJ 374/16

Publication restriction:

Nil

Judgment

1. HIS HONOUR: The plaintiff is a former senior sergeant of police. She was attested as a probationary constable of police on 7 November 1986 and thereupon became a contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906 ("the Act"). She ceased her work as a senior sergeant of police on 9 November 2009. On 23 February 2012, the Police Superannuation Advisory Committee (PSAC) determined that the plaintiff was incapable of discharging the duties of her office on account of these infirmities:

"Major depressive disorder of moderate severity;

Lumbar spondylosis;

Chronic soft tissue injuries to the neck, thoracic spine, lumbar spine and right knee".

On 6 March 2012, the Commissioner of Police, by his delegate, determined that each of those conditions was caused by the plaintiff’s having been hurt on duty. In essence, the Commissioner of Police determined that the injury to the plaintiff's right knee was caused on 12 March 1993, the injury to her neck was caused on 3 May 1995, the injury to her back was caused by incidents on 11 June 1997 and 15 January 2006, and that the psychiatric or psychological infirmity was caused by a disease of gradual process which attracted a deemed date of injury of 9 December 2009, the day on which the plaintiff last performed at work as a senior sergeant of police. On 15 March 2012, the plaintiff was medically discharged from the New South Wales Police Force. On the following day, she commenced to receive a superannuation allowance pursuant to s 10(1A)(a) of the Act.

2. On 25 August 2015, the plaintiff, by her solicitors, sent to the defendant an application form for an increase in her hurt on duty superannuation allowance, or pension,…