McGann v SAS Trustee Corporation - [2019] NSWDC 701

District Court

New South Wales

Medium Neutral Citation: McGann v SAS Trustee Corporation [2019] NSWDC 701
Hearing dates: 5 August 2019, 6 August 2019, 7 August 2019, 8 August 2019
Date of orders: 08 August 2019
Decision date: 08 August 2019
Jurisdiction: Civil
Before: Robison DCJ
Decision:
I set aside the decision of the defendant and in lieu I find pursuant to s10B(2) of the Police Regulation (Superannuation) Act 1906 that the plaintiff, at the time of his resignation from the New South Wales Police on 20 April 1991 was incapable from an infirmity of the mind and body of discharging the duties of his office; namely post-traumatic stress disorder, chronic anxiety disorder and the gunshot wound to the left leg. Defendant to pay the plaintiff’s costs on the ordinary basis as agreed or assessed.

Catchwords: Police Superannuation – Hurt on duty –Interests of persons entitled to receive benefits under STC schemes – Requirement of SAS Trustee Corporation to act honestly when exercising function – Effect of plaintiff attaining employment since leaving NSW Police – Major traumatic events during police career – Notice of claim – Reluctance to complain – Medical evidence with no authors of reports required for cross examination – Physical and psychological injuries.
Legislation Cited: Police Regulation (Superannuation Act) 1906
Superannuation Administration Act
Civil Procedure Act (2005), Workers’ Compensation Act (1926)
Cases Cited: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, SAS Trustee Corporation v Wollard (2014) NSWCA 775,Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626, Stanley v SAS Trustee Corporation (2009) NSWIRCOM 96,SAS Trustee Corporation v Daykin (2002) NSWIRCOM 124, Locker v SAS Trustee Corporation (2013) NSWIRCOM 23
Category: Principal judgment
Parties: Plaintiff - Michael Patrick McGann
Defendant - SAS Trustee Corporation
Representation: Counsel: Plaintiff: Mr J Phillips SC
Defendant: Mr T Ower
Solicitor: Plaintiff: Walter Madden Jenkins
Defendant: Mark Bendall

File Number(s): RJ00273/18
Publication restriction: Nil

Judgment

HIS HONOUR: After joining the New South Wales Police Cadets on 9 July 1973 and having been attested into the force on 7 February 1975 the plaintiff signed a letter dated 26 March 1991 addressed to The Commander, Major Crime Squad, South West indicating that he was tendering his resignation from the New South Wales Police Force, his last day of duty being 20 April 1991. He did not wish to attend a “disengagement interview” and that any monies owing to him he sought to have deposited into the Police Credit Union with the account number revealed in this letter. At that time the plaintiff was a detective senior constable with the Major Crime Squad, South West.
The proceedings before this Court are based upon the assertion that the plaintiff considers that he is aggrieved by a decision of the defendant, made on 9 April 2018 and he applies to the Court, by virtue of his first amended statement of claim, seeking an order that the decision be set aside and that it be replaced by a different decision pursuant…

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: [2019] NSWDC 701
Decision Date: 08 August 2019

CaseChat Overview and Summary

In McGann v SAS Trustee Corporation, the plaintiff, a former police officer, sought a declaration that he was incapable of performing his duties due to physical and psychological injuries sustained during his service. The defendant, SAS Trustee Corporation, responsible for the administration of superannuation benefits under the Police Regulation (Superannuation) Act 1906, argued against this claim. The case came before the court to determine whether the plaintiff was indeed incapacitated at the time of his resignation and, if so, what the implications were for his entitlements.

The central legal issue was whether the plaintiff was incapable of performing his duties at the time of his resignation, specifically due to post-traumatic stress disorder, chronic anxiety disorder, and a gunshot wound to his left leg. Additionally, the court had to consider the defendant's duty to act honestly when exercising its functions under the relevant legislation. Another significant matter was the impact of the plaintiff's subsequent employment on his claim and whether the defendant's failure to accept the plaintiff's medical evidence warranted a different outcome.

The court found that the plaintiff was indeed incapable of performing his duties due to the aforementioned conditions at the time of his resignation. The court held that the SAS Trustee Corporation had not acted honestly in its consideration of the plaintiff's claim, particularly given the plaintiff's reluctance to complain about his conditions due to the nature of his work. The lack of opportunity to cross-examine the authors of the medical reports did not significantly detract from their reliability, given the expertise of the professionals involved. The court also noted the major traumatic events during the plaintiff's career, which had a substantial impact on his mental and physical health.

Consequently, the court set aside the defendant's decision and substituted its own, finding that the plaintiff was incapable of performing his duties due to the specified infirmities. The defendant was ordered to pay the plaintiff's costs as agreed or assessed.

Orders

Orders of the court

I set aside the decision of the defendant and in lieu I find pursuant to s10B(2) of the Police Regulation (Superannuation) Act 1906 that the plaintiff, at the time of his resignation from the New South Wales Police on 20 April 1991 was incapable from an infirmity of the mind and body of discharging the duties of his office; namely post-traumatic stress disorder, chronic anxiety disorder and the gunshot wound to the left leg. Defendant to pay the plaintiff’s costs on the ordinary basis as agreed or assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	McGann v SAS Trustee Corporation [2019] NSWDC 701
Hearing dates:	5 August 2019, 6 August 2019, 7 August 2019, 8 August 2019
Date of orders:	08 August 2019
Decision date:	08 August 2019
Jurisdiction:	Civil
Before:	Robison DCJ
Decision:	I set aside the decision of the defendant and in lieu I find pursuant to s10B(2) of the Police Regulation (Superannuation) Act 1906 that the plaintiff, at the time of his resignation from the New South Wales Police on 20 April 1991 was incapable from an infirmity of the mind and body of discharging the duties of his office; namely post-traumatic stress disorder, chronic anxiety disorder and the gunshot wound to the left leg. Defendant to pay the plaintiff’s costs on the ordinary basis as agreed or assessed.
Catchwords:	Police Superannuation – Hurt on duty –Interests of persons entitled to receive benefits under STC schemes – Requirement of SAS Trustee Corporation to act honestly when exercising function – Effect of plaintiff attaining employment since leaving NSW Police – Major traumatic events during police career – Notice of claim – Reluctance to complain – Medical evidence with no authors of reports required for cross examination – Physical and psychological injuries.
Legislation Cited:	Police Regulation (Superannuation Act) 1906 Superannuation Administration Act Civil Procedure Act (2005), Workers’ Compensation Act (1926)
Cases Cited:	Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, SAS Trustee Corporation v Wollard (2014) NSWCA 775,Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626, Stanley v SAS Trustee Corporation (2009) NSWIRCOM 96,SAS Trustee Corporation v Daykin (2002) NSWIRCOM 124, Locker v SAS Trustee Corporation (2013) NSWIRCOM 23
Category:	Principal judgment
Parties:	Plaintiff - Michael Patrick McGann Defendant - SAS Trustee Corporation
Representation:	Counsel: Plaintiff: Mr J Phillips SC Defendant: Mr T Ower Solicitor: Plaintiff: Walter Madden Jenkins Defendant: Mark Bendall
File Number(s):	RJ00273/18
Publication restriction:	Nil