Pascoe v SAS Trustee Corporation

Case •

[2022] NSWCA 244

•

01 December 2022

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Pascoe v SAS Trustee Corporation [2022] NSWCA 244
Hearing dates: 9 November 2022
Date of orders: 1 December 2022
Decision date: 01 December 2022
Before: Ward P at [1];
Kirk JA at [2];
Basten AJA at [21].
Decision:

(1)   Dismiss the appeal.

(2)   Order that the appellant pay the respondent’s costs in this Court.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – public sector – police – medical discharge application –powers of State Authorities Superannuation Board delegated to Police Superannuation Advisory Committee – review of Committee’s decision by Board – whether Board had power to redetermine claim – whether Board validly notified claimant of decision

ADMINISTRATIVE LAW – obligation to notify claimant of decision – notification contained advice about right of appeal to Industrial Commission – 30 years later Court of Appeal determined the correct forum for an appeal was a workers compensation commissioner – whether notification failed to commence limitation period for appeal to correct tribunal (now the District Court)

Legislation Cited:

Industrial Relations Act 1991 (NSW), s 310

Migration Act 1958 (Cth), s 478

Police Regulation (Superannuation) Act 1906 (NSW), Pt 2A, ss 2H, 2J; Pt 4, ss 10, 10B; s 21

Superannuation Administration Act 1987 (NSW), ss 26, 27

Cases Cited:

Bayly v Municipal Council of Sydney (1927) 28 SR (NSW) 149

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26

Dranichnikov v Minister for Immigration and Multicultural Affairs (2000) 60 ALD 482; [2000] FCA 63

Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801

Doukmak v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 432; [2001] FCA 1821

Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299; [2007] FCA 591

Huth v Clarke (1890) 25 QBD 391

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Miles v SAS Trustee Corporation [2017] NSWCA 86

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Piening v Wanless (1968) 117 CLR 498; [1968] HCA 7

R v Unger [1977] 2 NSWLR 990

Re J Wigfall & Sons’ Trade Marks [1919] 1 Ch 52

Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995

SAS Trustee Corporation v Miles (2018) 92 ALJR 1064; [2018] HCA 55

SAS Trustee Corporation v Rossetti [2018] NSWCA 68

SAS Trustee Corporation v Woollard (2014) 86 NSWLR 367; [2014] NSWCA 75

Schinnerl v Commissioner of Police [1992] NSWCA 224

Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552; [2011] FCAFC 27

Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] 46 CLR 73; [1931] HCA 34

Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386; [1997] FCA 70

Texts Cited:

M Aronson, M Groves, G Weeks, Judicial Review of Administrative Action and Government Liability    (7th ed, Thomson Reuters, 2022)

Category:Principal judgment
Parties: Glenn Pascoe (Appellant)
Mark Bendall, SAS Trustee Corporation (Respondent)
Representation:

Counsel:
J M Morris SC / M N Hammond / M W Short (Appellant)
G M Watson SC / S Palaniappan (Respondent)

Solicitors:
Cardillo Gray Partners (Appellant)
SAS Trustee Corporation (Respondent)
File Number(s): 2022/00104639
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Date of Decision:
15 March 2022
Before:
Robison DCJ
File Number(s):
RJ 00302/2020

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 31 October 1988, the appellant, Mr Glenn Pascoe, sought a medical discharge from the Police Force for injuries sustained while undertaking police duties. Section 10 of the Police Regulation (Superannuation) Act 1906 (NSW) (“Police Regulation Act”) provided for payment of an annual superannuation allowance to an officer who was discharged after being certified to be incapable, from a specified infirmity of body or mind, of discharging the duties of his or her office.

Section 10B provided that the State Authorities Superannuation Board (the “Board”) was responsible for determining and certifying whether the officer was incapable of performing his or her duties. The Board had delegated those functions to the Police Superannuation Advisory Committee (PSAC).

On 31 October 1989, PSAC, by letter, notified the appellant that it was unable to certify his infirmity. The letter also stated that the appellant was entitled to “appeal” to the Board within 28 days pursuant to s 26 of the Superannuation Administration Act 1987 (NSW). The appellant took that step. On 27 August 1990 the Board redetermined the claim and on 3 September 1990 advised the appellant that it had reversed PSAC’s decision and was issuing a certificate that he was “incapable due to the specified infirmity of ‘generalised anxiety disorder’ of discharging the duties of his office”. The letter also advised the appellant that he had a right of appeal to the Industrial Commission within six months under s 27 of the Superannuation Administration Act.

The appellant commenced Industrial Commission proceedings, challenging the Board’s finding on the basis that the certified infirmity was unduly restricted. The appellant discontinued these proceedings on 22 June 1993.

In 2018, the Court of Appeal in SAS Trustee Corporation v Rosetti [2018] NSWCA 68 held that, in relation to claims for a superannuation allowance, an appeal from a Board decision lay to the District Court not the Industrial Commission. The District Court had been transferred the relevant jurisdiction of the workers compensation commissioner. In 2020, the appellant commenced District Court proceedings, seeking review of the Board decision pursuant to s 21 of the Police Regulation Act. The primary judge dismissed the application, finding that he did not have jurisdiction because the application was brought outside the time limitation.

The appellant challenged the primary judge’s finding that the District Court did not have jurisdiction. Since the appellant submitted that time would not have commenced to run if the Board’s decision or notification of the decision were invalid, the primary issues were:

  1. whether the Board had power to make the decision of 27 August 1990; and

  2. whether the Board’s notification of its decision of 3 September 1990 was adequate.

Held by the Court (Basten AJA, Ward P and Kirk JA), dismissing the appeal:

As to issue 1 – Board’s power to decide

per Basten AJA (Ward P agreeing):

In delegating its power to PSAC, the Board did not part with its power to determine whether an officer was incapable of performing his or her duties. The legislation did not prohibit the Board from reviewing PSAC’s decision. Accordingly, PSAC was not functus officio after it made and notified its decision and the Board could exercise its power to determine the claim: [49], [52], [55].

Huth v Clarke (1890) 25 QBD 391; Bayly v Municipal Council of Sydney (1927) 28 SR (NSW) 149, followed. Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11, referred to.

per Kirk JA:

It is not necessary to decide this issue: [4].

As to issue 2 – Board’s notification of decision

per Basten AJA (Ward P agreeing):

  1. Section 21(1) of the Police Regulation Act required notification of the Board’s decision, not of the appeal rights with respect to that decision. It should not be inferred from the legislation that the purpose of the notification is frustrated where actual notification is accompanied by factually incorrect advice as to the availability of review. The Board’s letter of 3 September 1990 provided sufficient notification of the decision: [62], [79]-[80].

    Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386; [1997] FCA 70, not followed.

  2. The appellant could not rely on a subsequent determination of a court that overturned an established understanding of the law on which he had relied. The former understanding as to the right of appeal did not preclude the appellant from undertaking an appeal to the Industrial Commission from the Board’s decision. The appellant did not show that he would have been prejudiced if his appeal was dealt with by the Industrial Commission and not the workers compensation commissioner. Similarly, the appellant did not suffer prejudice because the Board’s letter had accurately set out the understanding of the operation of the statutory provisions at the time. It would be contrary to the interests of justice to allow the appellant to reagitate medical questions some 30 years after the expiry of the time limitations: [63], [70], [72]-[74].

    Piening v Wanless (1968) 117 CLR 498; [1968] HCA 7; R v Unger [1977] 2 NSWLR 990, followed. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, distinguished. Miles v SAS Trustee Corporation [2017] NSWCA 86; SAS Trustee Corporation v Miles (2018) 92 ALJR 1064; [2018] HCA 55, referred to.

  3. The Board’s letter did not result in procedural unfairness. The letter offered the appellant the opportunity of review by the Industrial Commission. The letter also did not prevent the appellant from seeking legal advice, which would have revealed that the proper course was to appeal to a workers compensation commissioner: [81].

per Kirk JA:

  1. This Court held in Schinnerl that the Board was obliged to notify a claimant of its decision in a manner both serious and formal, so that the person notified would realise an act of legal significance had taken place. This case was distinguishable from Schinnerl because s 10B(1) of the Police Regulation Act did not expressly require the Board to notify the claimant of what, if any, injury had been certified. If the requirements stated in Schinnerl also applied to a decision made under s 10B, those requirements were satisfied. The letter was serious and formal, and provided enough detail to enable the filing of an application to the body that was then understood to be the relevant appeal body: [10].

    Schinnerl v Commissioner of Police [1992] NSWCA 224, distinguished.

  2. In any event, it cannot be said that the Board’s letter of 3 September 1990 was calculated to, or did, frustrate or negate the appellant’s entitlement to seek review. The letter merely conveyed what seems then to have been the generally understood position. The fact that a court decision nearly 30 years later suggested that the appellant could in fact have gone to a jurisdiction that might have been marginally more attractive to him did not mean that his entitlement to appeal was frustrated or negated: [16]-[17], [19].

    Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386; [1997] FCA 70 distinguished.

JUDGMENT

  1. WARD P: I agree with the reasons of Basten AJA and the orders his Honour proposes.

  2. KIRK JA: The facts and legislative provisions relevant to this matter are set out in the judgment of Basten AJA. Like his Honour, I would dismiss the appeal with costs. The primary judge was correct to conclude that the appellant’s claim was time-barred. It is not necessary to determine the other grounds, which only arose if the appellant succeeded in overcoming the limitation period.

  3. Under the Police Regulation (Superannuation) Act 1906 (NSW), as it stood at the relevant time in 1988-90, a police officer who sought a pension based on a claim that they had become incapable of carrying out their duties relevantly had to satisfy two criteria:

  1. that the State Authorities Superannuation Board certified that the claimant had become incapable, from a specified infirmity of body or mind, or discharging the duties of their office (s 10B(1)); and

  2. that the Commissioner of Police decided that the infirmity certified by the Board was caused by the person having been hurt on duty (s 10B(3)).

  1. The appellant’s submissions initially focused on a number of decisions made with respect to his claim for a pension. But in the course of oral argument attention narrowed to the decision of the Board which was notified to the appellant by letter dated 3 September 1990 (the letter is set out in full below at [57]). The appellant’s initial suggestion that the Board was functus when it made this decision fell away – not having been raised in terms in the notice of appeal in any event – and the focus became whether or not this Board decision had been duly notified. In that context it is not necessary in my view to address the functus issue. In its decision the Board certified that the appellant was incapable of discharging his duties, but the appellant’s position was and is that the Board took too narrow a view of what his physical and mental difficulties were. The Commissioner of Police subsequently determined that the condition certified by the Board had not been caused by having been hurt on duty. The appellant’s position is that if broader physical and mental difficulties had been certified by the Board then the Commissioner could and should have found that those conditions arose from having been hurt on duty.

  2. Section 21 of the Act, as it stood in September 1990, provided that a person who considered that they were aggrieved by a relevant decision of the Board or Commissioner “may, within the period of 90 days after the person is notified of that decision, apply to a workers compensation commissioner … for a determination in relation to that decision”. The appellant argued that he had not been “notified of that decision” within the meaning of this provision. He did not dispute that he had in fact been informed of the decision by the Board’s letter of 3 September 1990. But he argued that this was not due notification because, with the benefit of some 30 years of hindsight, its terms were misleading as to his appeal rights.

  3. It appears that at the time, and until this Court’s decision nearly 30 years later in SAS Trustee Corporation v Rossetti [2018] NSWCA 68, it was widely understood that the appeal right from a determination of the Board under s 10B(1) of the Act was to the Industrial Relations Commission, whereas an appeal right from the subsequent decision of the Commissioner under s 10B(3) was to a Workers Compensation Commissioner or, from 1992, to the Compensation Court. It was held in Rossetti that in fact appeals under both s 10B(1) and (3) lay to the Compensation Court and not to the Industrial Relations Commission.

  4. The Board’s letter of 3 September 1990 reflected the pre-Rossetti understanding. It stated that a person “aggrieved by a determination of the Board under section 26 may appeal against the determination to the Industrial Commission”, and that such an appeal “shall be made within six months after the date of determination or within such further period as the Industrial Commission may allow”.

  5. The question raised by the appellant is whether the nature of what was said in the Board’s letter of 3 September 1990 about appeal rights was such that the appellant had not been “notified” of the Board’s decision within the meaning of that notion within s 21. That is a difficult argument on the face of it given that it was not disputed that he had in fact been notified of the decision itself. However, there is some case law which has addressed this type of issue.

  6. In Schinnerl v Commissioner of Police [1992] NSWCA 224 this Court had to consider an issue about notification of an adverse decision made under s 10B(3) on behalf of the Commissioner of Police. The claimant was first notified of this decision by phone, with the person who rang him saying words to the effect that he was from the “Workers Compensation Unit” and that “the Commission has chosen not to accept your claim as being duty related”. The claimant’s appeal to the Compensation Court was commenced more than 90 days after this phone call, but less than 90 days after the claimant had received a letter setting out the decision more clearly and formally and informing him of his appeal right. This Court rejected an argument that the claimant was time-barred from bringing the appeal. Priestley JA, speaking for the Court, held that the duty of the Commissioner of Police under s 10B(3) to notify the claimant of the decision required the following, which had not been done by the phone call in question:

  1. provision of “enough detail to enable the filing of a claim in the Compensation Court, complying with that Court's rules”; and

  2. notification “in a manner both serious and formal, so that the person notified would realise an act of legal significance had taken place”.

  1. Section 10B(3) required the Commissioner of Police to “notify” the claimant of the decision relating to whether the infirmity was regarded as having arisen from being hurt on duty. The present case relates to a decision made under s 10B(1). There was no express requirement in s 10B(1) that the Board notify the claimant of what, if any, injury had been certified. It is not here necessary to consider the significance of that difference. If it is assumed that the requirements stated in Schinnerl also apply to a decision by the Board under s 10B(1), then those requirements were satisfied in substance by the letter of 3 September 1990. The letter was serious and formal. It provided enough detail to enable the filing of an appeal to the body that was then understood to be the relevant appeal body. The appellant in fact filed such an appeal in the Industrial Relations Commission.

  2. The Schinnerl decision outlines certain positive elements that must be met for there to be due notification. There is a line of cases from the immigration context which addresses negative aspects, that is, what a notification must not do. Those cases concern s 478(1)(b) of the Migration Act 1958 (Cth), which provided at relevant times that an application for judicial review of certain tribunal decisions had to “be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision”. In Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386; [1997] FCA 70, Merkel J held that there was no duty on the tribunal in question to notify the applicant of what rights there were to review the tribunal’s decision, and that estoppel could not operate to defeat the operation of the statutory provision (at 392). Nevertheless, he held that “a notification, for the purposes of s 478, must be a notification of the decision which does not or is not calculated to frustrate or negate the entitlement of the person notified of the decision to apply to the Court for its review” (at 393-4).

  3. That approach has been applied in two other Federal Court cases: Dranichnikov v Minister for Immigration and Multicultural Affairs (2000) 60 ALD 482; [2000] FCA 63 at [26]-[31] per Kiefel J; Doukmak v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 432; [2001] FCA 1821 at [37]-[39] per Moore J. Merkel J’s reasoning on the issue has also been referred to in other Federal Court cases without apparent disapproval: eg Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995 at [37]; Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299; [2007] FCA 591 at [11]; Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552; [2011] FCAFC 27 at [51]-[54].

  4. In Dranichnikov, having relied on the reasoning in Wang, Kiefel J went on to determine an application for judicial review that otherwise would have been out of time. Mr Dranichnikov appealed first to the Full Federal Court, where he did not succeed, and then to the High Court where he did: see, respectively, Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26. However, Kiefel J’s determination of the notification issue in favour of Mr Dranichnikov was not raised by the Minister in either appeal.

  1. The appellant also invoked notions of procedural fairness. There are some complexities in seeking to apply that notion here given that the notification occurred after the Board’s decision had been made. This is not a case where an administrator had some further decision to make after having made a representation as to the approach the administrator was going to take: cf eg Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [59]. That being said, it may be arguable that notions of procedural fairness could inform whether or not the duty to notify had been fulfilled, assuming that there was an implied duty to do so as regards s 10B(1) decisions.

  2. That a claimant might be time-barred from bringing an appeal in circumstances where they had been misled about their appeal rights, in some material way, by the decision-maker appealed from is not an attractive prospect. Yet there are also hurdles to overcome in making out such an argument. In my view these are questions better left for a case in which the facts raise the issue clearly, and where resolution of the issue matters. In this appeal it is not necessary to decide whether or not any such negative implication as suggested in Wang should be accepted as regards the notion of “notification” in s 21 of the Act, nor to address how, if at all, issues of procedural fairness may have some direct or indirect role to play.

  3. Let it be assumed in favour of the appellant that there would be no notification for the purposes of s 21 of the Act if such notice as was provided was calculated to or did frustrate or negate the entitlement of the claimant to exercise their appeal rights. The Board’s letter of 3 September 1990 cannot be characterised in that way.

  4. A premise of the appellant’s argument was that the prevailing view at the time, and until Rossetti, was that appeals from decisions of the Board made under s 10B(1) went to the Industrial Relations Commission. The appellant in fact brought such an appeal but chose to discontinue it. If he had maintained that appeal there is no reason to doubt that his appeal would have been heard and determined. In that context it cannot be said that the Board’s letter was calculated to, or did, frustrate or negate the appellant’s entitlement to seek review. It merely conveyed what seems then to have been the generally understood position.

  5. The appellant sought to argue that there was some difference between the costs regime that applied in the Industrial Relations Commission and that which would have been applicable before a Workers Compensation Commissioner or in the Compensation Court. The appellant argues that there was less risk of costs being awarded against him in the latter jurisdictions. He claims that if the option of going to those jurisdictions had been available to him, rather than going to the Industrial Relations Commission, then he would have maintained his appeal from the Board’s decision.

  6. Even if that claim about what he would have done is accepted – and there was evidence pointing in different directions – that is a complaint about the forensic attractions of one tribunal over another, where the differences are fine at best (see Basten AJA’s discussion of the costs position at [73], below). That a court decision nearly 30 years later suggests that he ought in fact to have gone to a jurisdiction that might have been marginally more attractive to him does not mean that his entitlement to appeal was frustrated or negated. Nor does it mean that he was in some way the subject of procedural unfairness.

  7. The appeal should be dismissed with costs.

  8. BASTEN AJA: This appeal from the District Court concerns a refusal of a claim by a former police officer who was seeking a superannuation allowance. The procedural background is unusual and should be explained before identifying the issues for determination by this Court. It is sufficient to note at this stage that review in 2020 of an adverse determination of the claim for a superannuation allowance first lodged in 1988 required that the limitation period of either six months or 90 days had not been engaged. (It was common ground both in the District Court and in this Court that the period could not be extended.) Because the limitation period commenced upon notification of the adverse decision, the appellant had to establish that he had not been validly notified in 1990, although he was advised of the precise terms of the decision within days of it being made. The description of the statutory scheme set out below therefore relates to provisions in force in 1988-1990.

Procedural background

  1. On 31 October 1988 the appellant, Constable Glenn Pascoe, sought a medical discharge from the Police Force on the basis of injuries sustained whilst undertaking police duties. A scheme of compensation for officers who were discharged on medical grounds was provided under Pt 4 of the Police Regulation (Superannuation) Act 1906 (NSW) (Police Regulation Act). Section 10 provided for payment of an annual superannuation allowance, based upon a percentage of the officer’s salary, if he or she was a “disabled member of the police force”. That term was defined in s 10(1) to mean “a member of the police force who is discharged after being certified, pursuant to section 10B(1), to be incapable, from a specified infirmity of body or mind, of discharging the duties of his office”.

  2. Section 10B(1) provided for certification, as required by s 10(1), by the State Authorities Superannuation Board (the Board) as constituted under the Superannuation Administration Act 1987 (NSW). The Board was thus responsible for determining whether the officer was incapable of performing his or her duties. However, to qualify for a superannuation allowance, the officer also had to establish that the infirmity specified by the certificate was caused by the member being “hurt on duty”. It was the function of the Commissioner of Police to determine that issue, having regard to the infirmity specified by the Board: s 10B(3)(a).

  3. Initially, Mr Pascoe fell at the first hurdle. Section 2H in Pt 2A of the Police Regulation Act established a Police Superannuation Advisory Committee (PSAC) to which the Board could delegate any of its functions under that Act: s 2J. The function of certifying that a member was incapable from a specified infirmity of discharging the duties of his or her office was, at the relevant time, delegated to the PSAC. Accordingly, Mr Pascoe’s application was provided to the PSAC which, by letter dated 31 October 1989, advised him that it was unable to certify his incapacity in the terms of s 10. The letter notifying him of that decision also advised that he was entitled to have the issue determined by the Board pursuant to s 26 of the Superannuation Administration Act. The letter stated that, should he wish to proceed under s 26, he should within 28 days of the date of the letter advise the PSAC which would refer his application and “notice of appeal” to the Board. Mr Pascoe took that step.

  4. On 27 August 1990 the Board redetermined the claim. On 3 September 1990, an officer of the Board wrote to Mr Pascoe advising that the Board had reversed the decision of the PSAC and was issuing a certificate stating that he was “incapable, due to the specified infirmity of ‘Generalised Anxiety Disorder’ of discharging the duties of his office”.

  5. Having obtained a favourable ruling from the Board, Mr Pascoe applied to the Commissioner of Police for a ruling that his infirmity was caused by him being hurt on duty. He then failed at this hurdle, the Commissioner responding on 11 October 1990 stating that he was not satisfied that the condition was sustained as a result of him being hurt on duty.

  6. Mr Pascoe was dissatisfied with the decision of the Commissioner of Police and exercised his right “within a period of 90 days after the person is notified of that decision, [to] apply to a workers compensation commissioner under the Workers Compensation Act 1987 for a determination in relation to that decision”: Police Regulation Act, s 21(1).

  7. Before the application to a workers compensation commissioner was determined, the function of hearing such appeals was transferred to the Compensation Court, established under the Compensation Court Act 1984 (NSW), although the particular functions under the Police Regulation Act were not transferred until 1992. The matter was disposed of by the Compensation Court on 25 June 1993, by affirming the decision of the Commissioner of Police.

  8. In the meantime, Mr Pascoe had commenced a challenge to the finding of the Board, on the basis that the specified infirmity was unduly restricted. Evidence had been placed before the Board which suggested a more serious psychiatric condition, namely post-traumatic stress disorder, and various orthopaedic injuries. The letter from the Board of 3 September 1990 had advised Mr Pascoe that he had a right of appeal from its determination under s 27 of the Superannuation Administration Act, such appeal being required to be made to the Industrial Commission, within six months after the date of the determination of the Board, “or within such further period as the Industrial Commission may allow”. That function of the Industrial Commission was performed by the Industrial Court.

  9. In fact, Mr Pascoe filed a notice of appeal with the Industrial Commission of New South Wales on 20 February 1991, comfortably within the six-month limitation period. That application was discontinued on 22 June 1993, that is three days before the determination of the Compensation Court.

  10. In the ordinary course of events, that would have been an end to Mr Pascoe’s claim for a superannuation allowance under the Police Regulation Act. However, some 30 years after the initial decisions were made, in 2020, he filed a summons in the District Court seeking review of the decision of the Board, pursuant to s 21 of the Police Regulation Act. The respondent submitted that the claim was indeed years out of time. Mr Pascoe’s response was that time had not commenced to run.

  11. The summons in the District Court was heard in March 2022, with judgment being delivered at the completion of the hearing on 15 March 2022. The judge, Robison DCJ, dismissed the application, primarily on the basis that he had no jurisdiction to consider it, but, in the alternative, if he were wrong in relation to lack of jurisdiction, on the ground that the Board’s decision that Mr Pascoe’s incapacity was due to a “generalised anxiety disorder” should be confirmed.

  12. The appeal to this Court challenged both the finding as to lack of jurisdiction and the contingent findings as to the merits of the application. The question of jurisdiction must be addressed first and, only if jurisdiction be established, will it be necessary to deal with the contingent findings made by the primary judge as to the merits of the claim.

Issues before the Court

Basis of appellant’s case

  1. The central tenet of Mr Pascoe’s claim that the District Court had jurisdiction to consider his application for a superannuation allowance rested upon a change in the law in 2018. As has been noted, when the Board dismissed his “appeal” from the PSAC, it advised him that he had a further right of appeal to the Industrial Commission. However, in 2018 in SAS Trustee Corporation v Rossetti [1] this Court held that, in relation to claims for a superannuation allowance under Pt 4 of the Police Regulation Act, there was no appeal to the Industrial Commission; rather, an appeal lay to the District Court under s 21 of the Police Regulation Act. That decision dealt with the legislation in force in August 2014, but there is no reason to doubt that a similar conclusion should be reached with respect to the legislation in force in 1989-1990. Indeed, it was at the heart of Mr Pascoe’s case that Rossetti was correct and applied to his circumstances. Nevertheless, it will be convenient to outline the reasoning in Rossetti by reference to the legislative provisions as they stood in 1988-1990. First, however, the structure of the argument should be outlined.

    1. [2018] NSWCA 68.

  2. At various points in the course of submissions, the argument was presented on different bases. In essence, however, each asserted that he had not had an opportunity to challenge the rejection of his claim of incapacity by the PSAC, nor its limited acceptance by the Board. The first submission (which may not ultimately have been pressed) was that, because the PSAC was a delegate of the Board, he had a right of appeal from the PSAC decision to an independent body, which was subverted by advice that he was required to appeal to the Board. The decision of the PSAC was the decision of the Board for the purposes of s 10B(1). The decision of the Board purporting to vary the decision of the PSAC was invalid.

  3. The second submission focused on the fixing of the commencement of the limitation period by reference to his receipt of notification of the Board’s decision. Mr Pascoe contended that the period did not start to run until he had been notified in terms which did not purport to refer to the limitation period under a different and irrelevant statute.

  4. The third proposition was that, assuming the decision of the Board was a valid decision in its own terms, the letter notifying him of the decision wrongly advised that a right of appeal lay to the Industrial Commission. Whether or not that was the general understanding of the law in 1990, this Court has since held that it was not correct. However, the right of appeal which he had to a workers compensation commissioner under s 21 of the Police Regulation Act was time-barred long before he discovered that the advice was erroneous. It was procedurally unfair for the respondent to rely upon the time bar in circumstances where his failure to comply was a consequence of its legally incorrect advice.

The reasoning in Rossetti

  1. It is convenient to start with the right conferred on a person claiming a superannuation allowance to seek a determination under s 21 of the Police Regulation Act. As in force 1990, that provision read:

21   Determination by workers compensation commissioner

(1)   A person who considers himself aggrieved by—

(a)   a decision made by the Board on a matter that arises under this Act by reason of a member of the police force being hurt on duty; or

(b)   a decision made by the Commissioner of Police under section 10B(3)(a) …,

may, within the period of 90 days after the person is notified of that decision, apply to a workers compensation commissioner under the Workers Compensation Act 1987 for a determination in relation to that decision.

…

(4)   A workers compensation commissioner, after considering an application under this section, may make a determination that the decision of the Board or the Commissioner of Police, as the case may be, in respect of which the application was made—

(a)   be confirmed; or

(b)   be set aside and replaced by a different decision made by the workers compensation commissioner.

  1. On its face, s 21 covers decisions made under both limbs of the bifurcated procedure established for the determination of claims for a superannuation allowance. That is, par (a) of s 21(1) dealt with decisions of the Board under s 10B(1), and par (b) with decisions of the Commissioner of Police under s 10B(3).

  2. The second legislative scheme involving appeals arose under the Superannuation Administration Act. Section 26(1) of that Act stated that the section applied to a dispute under the Superannuation Administration Act itself, or under any of a number of specified Acts, which did not include the Police Regulation Act. Section 26(2) was in the following terms:

26   Disputes

…

(2) This section also applies to a dispute under the Police Regulation (Superannuation) Act 1906 in relation to any matter, other than a matter relating to or arising from a question of whether or not a member of the Police Force or a former member of the Police Force was hurt on duty.

(3)   A dispute to which this section applies shall be determined by the Board.

…

27   Appeals

(1) A person aggrieved by a determination of the Board under section 26 may appeal against the determination to the Industrial Commission.

(2)   The appeal shall be made within 6 months after the date of the determination or within such further period as the Industrial Commission may allow.

  1. It appears to have been assumed over many years that the exception in s 26(2) of the Superannuation Administration Act was limited to disputes as to whether the claimant was “hurt on duty”, a matter to be determined by the Commissioner of Police under s 10B(3)(a) of the Police Regulation Act. However, the connecting words covering matters “relating to or arising from” whether the person was hurt on duty clearly could cover a dispute as to whether the claimant suffered from a specified infirmity, that being the subject matter which the Commissioner of Police was required to consider as causally connected to police duties. The relationship or connection between the two functions under s 10B was intimate. That reading was consistent with the vesting of both functions in a workers compensation commissioner under s 21 of the Police Regulation Act. Not only did the harmonious reading of the two provisions suggest that that was the preferable construction of s 26(2), but, as explained in Rossetti, the legislative history provided strong support for that conclusion. As first noted in SAS Trustee Corporation v Woollard,[2] s 21 was introduced into the Police Regulation Act in 1979; ss 26 and 27 of the Superannuation Administration Act were enacted some eight years later.

    2. (2014) 86 NSWLR 367; [2014] NSWCA 75 at [103].

  2. In substance, the Board had two functions with respect to police officers: one was to provide pension rights of a kind commonly described as superannuation, based on the length of service; the second function was to provide benefits of a kind commonly known as workers’ compensation, granted to officers who had been incapacitated as a result of being injured in the course of their duties. The legislative intention of the respective statutes was that appeals from decisions of the Board with respect to the former went to the Industrial Court, but decisions of the Board with respect to the latter went to a workers compensation commissioner. That dichotomy has remained in place through many iterations of the legislative scheme.

Grounds of appeal

  1. Mr Pascoe’s notice of appeal contained six grounds. The nature of the intended challenges was far from clear, although a degree of clarification was provided by the written submissions for the appellant. The question of jurisdiction was encompassed within grounds 1 and 2 which read as follows:

“1 The trial judge erred by determining that the trustee’s decision of 27 August 1990 was within the statutory power in s 26 Superannuation Administration Act 1987 (NSW) (SA Act) or was otherwise ‘valid’.

2 The trial judge erred by determining that the notifications of decisions by the PSAC on 26 October 1989 and the trustee itself on 27 August 1990 were in compliance with the statutory power of s 27 SA Act or otherwise legally valid.”

  1. Ground 6 was not specifically addressed in the written submissions but was in part picked up in oral submissions dealing with the question of jurisdiction. It read as follows:

“6   The trial judge erred by taking into consideration irrelevant matters including lack of judicial review or appeal by the appellant of the Compensation Court proceedings, finality of litigation and estoppel without making any relevant factual findings in relation to those matters.”

  1. Grounds 3, 4 and 5 fell into a second category of challenges to the trial judge’s findings (or failure to make findings) with respect to the merits of Mr Pascoe’s claim. As the judge was satisfied that he had no jurisdiction to consider the claim, arguably he should not have done so. Given the nature of the jurisdictional issue, there may have been an advantage in having that issue determined separately and before the merits were addressed. (That course was canvassed at the start of the hearing in the District Court, but eschewed by agreement of the parties and not pressed by the judge. [3] ) In any event, because, for the reasons set out below, the judge was correct to conclude that he had no jurisdiction, it is neither necessary nor appropriate for this Court to address the challenges to the merit findings.

    3. DC Tcpt, 07/03/22, pp 18(36)-19(28).

  1. The appellant’s written submissions identified the central issues as to jurisdiction in the following terms:

“A   Whether the notice issued by PSAC on 26 October 1989 discharged the statutory obligations and whether the correct appeal rights were sufficiently notified;

B   Whether the Board had any power to make the decision of 27 August 1990;

C   Whether the notification of the Board decision of 3 September 1990 was properly or sufficiently notified.”

  1. It is convenient to deal with each of these issues, but to deal first with issue B concerning the power of the Board.

Power of Board following decision of PSAC

  1. Mr Pascoe’s central proposition in relation to this issue was that, having delegated power to determine his claim of incapacity to the PSAC, the Board had no power to review that decision if the claimant were dissatisfied with the PSAC decision. In effect, there were two limbs to that proposition. The first was that, having delegated its function to the PSAC, the Board itself retained no decision-making power with respect to that function. The second was that, having purported to make a final decision, the PSAC foreclosed any possibility of reconsideration or review, otherwise than by the statutory avenue of appeal. Neither of these propositions should be accepted.

  2. The appellant’s case in this respect was put somewhat tentatively, without reference to principle or authority. Further, although the fact of delegation was not in dispute, there was no instrument of delegation before the Court. However, assuming that it was a simple delegation of the function of determining claims for certification of incapacity resulting from a specified infirmity, pursuant to s 10B(1) of the Police Regulation Act, there is no necessary inference that the Board thereby abandoned its own authority and power to decide such claims. As Wills J stated in Huth v Clarke:[4]

“Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise the person would have to do himself.”

4. (1890) 25 QBD 391 at 395.

  1. This principle was applied in Bayly v Municipal Council of Sydney. [5] After concluding that there was nothing in the statute authorising the Council to employ officers and staff, to prevent it delegating the power of appointment to a senior officer or officers, Street CJ continued:

“To talk however of a denudation of power or authority in connection with a delegation of authority such as we are dealing with in this case is, in my opinion, a misuse of language.”

5. (1927) 28 SR (NSW) 149 at 154 (Street CJ, Gordon and Ferguson JJ concurring).

  1. Referring to Huth and Bayly, the principle was stated by Aronson, Groves and Weeks as follows: [6]

“Although not all the cases are in accord, it is submitted that, in the absence of a contrary indication in the Act, a delegator retains power to act or decide concurrently with the power of the delegate, and may exercise that concurrent power at any time before the delegate acts or decides. This is consistent with the view that delegation involves a replication rather than a transfer of power.”

6. M Aronson, M Groves, G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, Thomson Reuters, 2022) at p 348, [7.80].

  1. It may be accepted that this proposition does not fully answer the appellant’s case because it is limited to an exercise of power “before” the delegate makes a decision. That raises a separate question as to whether the PSAC was functus officio after it made and notified its decision, or whether it might have been open to it to reconsider in any circumstances.

  2. The only matter which might lead to some doubt as to the power of a decision-maker to reconsider an initial decision is that such a course might interfere with time-limited appeal rights. Such an inference is possible but unattractive. Courts are not infrequently invited to reopen judgments, so long as orders have not been entered, in circumstances where there are time-limited appeal rights. The existence of rights of appeal is not relied upon as a basis for denying a power to reopen. (Entry of judgment is a different matter.) Further in an administrative law context, the High Court has rejected such a constrained approach to reopening or reconsideration. In Minister for Immigration and Multicultural Affairs v Bhardwaj [7] the High Court considered the power of the Immigration Review Tribunal, having dismissed an application to review a visa cancellation based on a mistaken belief that the applicant had failed to avail himself of an opportunity to give his explanation in support of his claim, to remedy its mistake by allowing him an opportunity to appear before it, give evidence and present argument. The Tribunal then purported to make a further decision (favourable to the applicant) accepting that his visa should not be cancelled. The Tribunal then revoked the cancellation order. The Minister contended that the later exercise of power was ineffective because the previous decision in respect of the same application rendered the Tribunal functus officio. In dismissing that argument Gleeson CJ observed:

    7. (2002) 209 CLR 597; [2002] HCA 11.

“5   There is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised, is necessarily spent. In Ridge v Baldwin, [8] Lord Reid said:

‘I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid.’

6   That general proposition must yield to the legislation under which a decision-maker is acting. And much may depend upon the nature of the power that is being exercised and of the error that has been made.

…

8   The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh?”

8. [1964] AC 40 at 79.

  1. The fact that the Tribunal was not functus in that case turned on the reasoning that the first decision was invalid as a result of procedural unfairness. However, in principle, the power of reconsideration need not be so limited.

  2. In the present case, the delegate (the PSAC) made a decision but offered the claimant an opportunity to have the decision reviewed by the primary authority, namely the Board. There is nothing in the legislation (and, as noted, the instrument of delegation is not before the Court) to suggest that such a process was legally unavailable. In any event, it sits ill in the mouth of the claimant, who accepted the offer, invited the Board to reconsider and presented material to the Board which then reconsidered and made a fresh decision, to state that the whole exercise before the Board was “invalid”. In any event, he did not do so at that time, nor does he allege that there has been any change in the law since 1990 which would affect the power of the Board to reconsider the claim. The challenge to the validity of the Board’s decision on this ground must be rejected.

  3. As senior counsel for the appellant accepted, if the operative decision was that of the Board which was notified on 3 September 1990, any question as to the validity of the notification of the decision of the PSAC fell away. Accordingly, it is convenient to deal with the argument, which became the principal issue debated on the appeal, namely the effectiveness of the Board’s notice to trigger the limitation period.

Effectiveness of Board’s notice of decision

  1. It is convenient to set out in full the content of the notice given to Mr Pascoe by letter dated 3 September 1990 from the Board. It read as follows:

“I wish to advise that on 27 August 1990, the Board considered your dispute in the light of all medical and other evidence available to it. The Board determined the dispute pursuant to section 26(3) of the Superannuation Administration Act 1987,

‘… by reversing the decision of the Police Superannuation Advisory Committee and issuing a certificate in terms of both sections 8(1) and 10B(1) of the Police Regulation (Superannuation) Act 1906, that Mr Pascoe is incapable, due to the specified infirmity of ‘Generalised Anxiety Disorder’ of discharging the duties of his office and any other office in the Police Service.’

I draw your attention to section 27 of the Superannuation Administration Act 1987 which provides:

‘(1) A person aggrieved by a determination of the Board under section 26 may appeal against the determination to the Industrial Commission.

(2)   The appeal shall be made within six months after the date of determination or within such further period as the Industrial Commission may allow.’

I have forwarded a copy of this letter to your solicitors Cohen Ajaka Walter. Should you require any additional information, please do not hesitate to telephone me.”

  1. Three days later, on 6 September 1990, the Board wrote to the Assistant Commissioner of Police noting the certificate it had issued and anticipating a determination by the Commissioner as to whether the certified infirmity was caused by the claimant being hurt on duty, as required by s 10B(3) of the Police Regulation Act.

  2. On 11 October 1990, the Commissioner determined that the specified infirmity which led to Mr Pascoe’s medical discharge was not sustained as a result of him being hurt on duty. On 26 October 1990, Mr Pascoe’s solicitor signed and filed in the Compensation Court an application for a determination in relation to the decision of the Commissioner of Police. That application was dismissed when that Court affirmed the Commissioner’s decision on 25 June 1993.

  3. There has been no challenge to the finding of the Compensation Court; rather, Mr Pascoe contends that a declaration setting aside the determination of the Board will render the decision of the Commissioner of Police (affirmed by the Compensation Court) irrelevant because it will have been based upon a specified infirmity materially different from that which he seeks as a result of a successful appeal from the decision of the Board. That was the appeal he sought to agitate in the District Court.

  4. The short point sought to be raised, based on the Board’s letter of 3 September 1990, is that, because it did not purport to provide notice of a right to appeal under s 21(1) of the Police Regulation Act, the period within which a claimant was entitled to apply to the Compensation Court for a determination in relation to the Board’s decision did not commence to run.

Resolution of the jurisdictional issue

  1. Mr Pascoe’s case on jurisdiction faces a number of difficulties. The first is that s 21(1) did not require notification of appeal rights with respect to the decision, but merely notification “of that decision”. There is no doubt that the letter notified him of the decision. On one view, that is sufficient to commence the period within which any appeal must be brought.

  2. Mr Pascoe seeks to avoid this conclusion by noting that, whether required or not, the letter did advise him of a right of appeal which, though understood at the time to be correct within the statutory scheme, was declared by this Court in Rossetti not to be correct. However, there is a difficulty for Mr Pascoe in now relying upon a subsequent determination of a court that overturns an established understanding of the law upon which he relied.

  3. The leading statement of the matter of principle is to be found in the judgments of the High Court in Piening v Wanless. [9] The plaintiff in that case was unsuccessful at trial, the jury having been instructed on the basis of a legal principle as to the scope of the doctrine of res ipsa loquitor which was shown to have been mistaken by a judgment of the High Court handed down after the jury verdict, but prior to the plaintiff’s appeal. Barwick CJ identified the issue in these terms: [10]

“It is true that the then expressed opinion of the Supreme Court was that [plaintiff’s counsel] must choose and could not endeavour to establish a case of negligence against the appellant by relying on the evidence which the occurrence itself provided, whilst at the same time relying on evidence of specific acts or omissions by the appellant. But the respondent was not obliged to accept that decision. He was entitled to press his claims to be lawfully entitled to endeavour to establish his case on the footing that the current decision of the Supreme Court was erroneous. It is true that the trial judge would have been bound to reject his submission: but the propriety in law as distinct from the propriety in point of precedent of that course on the part of the trial judge could then have been challenged. As the decisions of this Court have shown, it could have been successfully challenged. … Of course, a litigant faced with a decision of a court which is not a final court of appeal which lies across the path he wants to follow, must make up his mind whether he desires to accept the burden and possible expense of challenging that decision. He may lack the courage or the means to do so, or both, or he may see advantage in accepting the current view. But the remedy for the erroneous decision is by way of such a challenge and not, as the majority of the Supreme Court seems to have thought, in the prolongation of litigation by affording a litigant a second opportunity after the error has been put right in other proceedings by other litigants. In this case, the choice of the respondent’s counsel not to press the evidence of the occurrence in support of the respondent’s case of negligence was, in my opinion, in every relevant sense voluntary, and ought to be attended with the same consequences of responsibility as other voluntary decisions in the conduct of litigation.”

9. (1968) 117 CLR 498; [1968] HCA 7.

10. Piening at 505.

  1. Kitto J agreed; Menzies J expressed the same view succinctly in the following terms:[11]

“In my opinion the verdict in the trial which was conducted upon one basis cannot be set aside merely because the decision, upon which counsel presumably relied in determining how he would conduct his case, has been overruled subsequently.”

11. Piening at [509].

  1. Windeyer J was also of a similar view.

  2. Although not directly relevant, the principles expressed in Piening have been followed by the Court of Criminal Appeal in R v Unger,[12] a case involving an application for an extension of time within which to appeal a conviction. The issue was identified by the Chief Justice in these terms: [13]

“The extension of time is sought upon the basis that regulations forming an essential part of the Crown case and accepted as valid at the trial are, for the purposes of ruling on the extension of time, to be assumed to have been shown to be invalid. The point of time at which such invalidity is said to have been shown is the date when the decision in R v Lind was given, namely 10th March 1976. This date, it will be observed, was one year and nine months after the appellant was convicted. The application is presented by the appellant, not upon there having been a change in the law subsequently to the trial, but rather upon a defect in the Crown case existing at the date of the trial, but only exposed in the subsequent decision of R v Lind.”

12. [1977] 2 NSWLR 990 (Street CJ, Begg and Ash JJ agreeing).

13. Unger at 993B-C.

  1. After referring to English authorities, the Chief Justice stated:[14]

“… [I]t is not necessarily a ground for enlarging the time that in some subsequent case a different view is taken of the construction of an Act of Parliament.”

14. Unger at 994C, quoting Swinfen Eady MR in Re J Wigfall & Sons’ Trade Marks [1919] 1 Ch 52 at 58.

  1. Street CJ then referred to the decision in Piening and continued: [15]

“There is no difference in principle between a subsequent judicial decision which has the effect of exposing a prior misconception in relation to a principle of law which was wrongly regarded as well founded at the time of the trial, and a subsequent judicial decision exposing the invalidity of regulations that were wrongly treated as valid at the time of the trial. The trial having been concluded and the time for appeal having gone by, the general principle is that the matter is regarded as at an end … .

… This finality of decision in each individual case leaves the courts free to permit a judicious flexibility in the development of principle in later cases, free from inhibition lest such development may set at large disputes that have previously been resolved. The concept of merger in judgment, both in civil and in the criminal field, to which Dixon CJ referred [in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [16] ], equally with the doctrine of res judicata, serves this requirement of flexibility for potential development of the law.”

15. Unger at 995D.

16. (1931) 46 CLR 73 at 106; [1931] HCA 34.

  1. It is true that a somewhat different approach to an application for an extension of time was taken by the High Court in Kentwell v The Queen. [17] Kentwell involved a challenge to a refusal of the Court of Criminal Appeal to extend time to appeal a sentence assessed on an understanding of the significance of a standard non-parole period, which was overturned in Muldrock v The Queen, [18] at least in relation to sentences which were still on foot. Unger was referred to, but only in a footnote explaining that the position might be different in relation to a challenge to a conviction in circumstances where there had been a change in the law. [19]

    17. (2014) 252 CLR 601; [2014] HCA 37.

    18. (2011) 244 CLR 120; [2011] HCA 39.

    19. Kentwell at [29], fn (108).

  2. It is not open to this Court to conclude that the principles applicable in civil cases, as explained in Piening and other authorities discussed in Unger, were swept aside by Kentwell (without reference to them). The better view is that Kentwell provides a limitation on the scope of the principles in the particular circumstances with which it was concerned, and which have no relevance in the present case. However, assuming that some degree of flexibility may arise if it be shown to be in the interests of justice to allow the re-agitation of a decided case following a change in the understanding of a relevant legal principle, no such criterion is satisfied in the present case. The former understanding as to the right of appeal did not preclude Mr Pascoe pursuing an appeal from the decision of the Board. Indeed, he did so, filing an application in the Industrial Commission on 20 February 1991, within the time allowed under the Superannuation Administration Act. It is true that he prepared the application himself, but he identified his solicitors on the form, including their address for service. The matter did not proceed to a hearing, the solicitors filing a notice of discontinuance on 22 June 1993. It is clear that no objection was taken by the Board to the jurisdiction of the Industrial Court to hear the matter, and it may be accepted that the Industrial Court, as in other cases at that time, would have exercised its assumed jurisdiction and undertaken a review of the decision of the Board.

  1. The conventional thinking, prior to Rossetti, was so clearly established that, even when appeals in effect on the same issue were taken to both the Industrial Court and to the District Court at different times, the anomaly was not recognised. Thus, a former member of the police force, Mr Miles, having obtained a superannuation allowance calculated in accordance with s 10(1A)(a) of the Police Regulation Act, (being 72.75% of his salary) later sought an additional amount under par (b) of the same provision, because of an incapacity for work outside the police force. The initial incapacity, as certified by the Board under s 10B(1), related to an injury to his back; the additional benefit was sought on the basis of a further injury, not appreciated at the time he left the police force, namely PTSD. His first attempt to obtain the additional benefit was by way of an application to the Board (by then the STC) to vary its original certification to include PTSD. When it declined to do so, he took an appeal to the Industrial Commission and a further appeal to the Full Bench of the Industrial Court. He was unsuccessful at both stages. He then made a claim to the STC for the additional amount, apparently on the basis that the additional incapacity did not need to arise from his work as a police officer. When that application was refused, he brought an appeal to the District Court. The District Court rejected his argument, from which judgment he appealed to this Court, where he was successful. [20] However, the STC was successful in overturning that decision in the High Court. [21] The history set out above was recorded without comment in the reasons of Kiefel CJ, Bell and Nettle JJ at [15]-[16]. The point for present purposes is not that the alternative routes of appeal were not seen as anomalous in this Court or the High Court, but that Mr Pascoe would not have been excluded from the Industrial Commission nor from the Full Bench of the Industrial Court, had he pursued that course. It might also be noted that, whilst the Full Bench dismissed the appeal, it made no order as to costs.

    20. Miles v SAS Trustee Corporation [2017] NSWCA 86.

    21. SAS Trustee Corporation v Miles (2018) 92 ALJR 1064; [2018] HCA 55.

  2. It follows that no prejudice was caused to the applicant. Indeed, the interests of justice fell squarely on the other side. To allow the claimant a second bite of the cherry by filing an appeal some 30 years later, to reagitate medical questions as to his capacity to serve as a police officer, having been notified of the decision at the time it was made, and having taken advantage of the right of appeal which he then understood was available, would be to set at naught the statutory requirement under the Superannuation Administration Act that an appeal be lodged within six months of the time of notification of the decision, or, as provided by s 21 of the Police Regulation Act at the time, within 90 days of notification of the decision. [22]

    22. The current provision in s 21 permits an appeal to be lodged within six months.

  3. Mr Pascoe seeks to avoid this conclusion on two bases. One, as explained by his counsel both in the District Court and in this Court, was that the opportunity for an appeal to the Industrial Commission was less attractive than an opportunity to appeal to a workers compensation commissioner, because of the differing costs regimes in each jurisdiction. However, in either case costs could be awarded in favour of the successful party and against the unsuccessful party. The difference in principle was that the power of a workers compensation commissioner to award costs against an applicant was only available where the commissioner was satisfied that the application was “frivolous or vexatious or was made fraudulently or without proper justification”. [23] By contrast, the costs jurisdiction in the Industrial Court involved an open discretion. [24] How different the operation of the provisions would have been in practice is not known; there was no presumption that costs would follow the event in the Industrial Court, nor that an applicant with a reasonable claim supported by evidence would be ordered to pay costs if unsuccessful in obtaining a more advantageous decision from the Court than that provided by the Board. That difference, being the only difference relied upon, provided no basis for departing from the assessment set out above as to where the interests of justice lay.

    23. Police Regulation Act, s 21(9).

    24. Industrial Relations Act 1991 (NSW), s 310(1)(a).

  4. Further, Mr Pascoe relied upon the proposition that he was “misled” by the representation contained in the letter from the Board setting out his appeal rights. This, however, was a curious submission. It was not in dispute that the letter set out accurately the understanding as to the operation of the statutory provisions at that time. Had he sought advice from his solicitors as to where he should pursue his challenge to the Board’s determination, he would undoubtedly have been told to go to the Industrial Court. That inference may be drawn from the fact that the solicitors who acted for him at the time pursued an appeal from the decision of the Commissioner of Police to a workers compensation commissioner, but did not pursue a challenge to the determination of the Board in that jurisdiction. Further, although they filed a notice of discontinuance of the Industrial Court proceedings, there is no reason to suppose that they did so on the basis that the Industrial Court lacked jurisdiction to deal with the matter.

  5. There is an entirely separate problem with the claim of misrepresentation. Senior counsel had significant difficulty in articulating how it could affect the operation of the limitation period in the Police Regulation Act. He did, however, accept the assistance provided by the Court in referring him to a judgment of the Federal Court under the Migration Act 1958 (Cth) in Wang v Minister for Immigration and Multicultural Affairs. [25]

    25. (1997) 71 FCR 386; [1997] FCA 70 (Merkel J).

  6. Section 478(1) of the Migration Act imposed a limit on the lodging on an application for judicial review of a decision of the Tribunal by the Federal Court, stating that the application must be lodged “within 28 days of the applicant being notified of the decision”. A copy of the decision, with a letter advising him of his time-limited right of appeal was sent to his home address. However, the name on the envelope was not his full name. He did not open the envelope. The judge accepted that he had not received notification of the decision on or shortly after that letter was posted on 21 December 1995. However, on 5 February 1996, Mr Wang attended at the Tribunal offices and spoke with an officer who provided a copy of the decision and the covering letter but said that “as it had been 28 days since a decision was made he could no longer appeal the decision to the Federal Court”. The applicant returned to the Tribunal on 10 April 1996 and spoke to a Deputy Registrar who gave more complete advice suggesting that he might still be entitled to seek review in the Federal Court, which he did some 26 days later.

  7. The judge accepted three propositions which may be identified as follows:

  1. the Migration Act did not require that the applicant be notified of his right to review the decision of the Tribunal; [26]

  2. “… a person is notified of a decision … when the substance or outcome of the decision is actually communicated to the person adversely affected by it”; [27] and

  3. the representations by the officer on 5 February did not estop the Minister from contending that the application was lodged out of time. [28]

    26. Wang at 392B.

    27. Wang at 390E.

    28. Wang at 392C-E.

  1. Nevertheless, the judge concluded that “a notification of the decision … which includes or is accompanied by an incorrect or untrue statement that there is no right of review or that the time for review has expired, substantially frustrates or negates the primary statutory function of the notification”. [29] Thus, the judge found that a representation was made on 5 February by a member of the Tribunal’s staff which was incorrect to the extent that it frustrated the purpose of notification.

    29. Wang at 393F-G.

  2. With respect, it is not easy to see how that conclusion fits with the three propositions referred to above. In particular, if communication of the decision is the criterion for the commencement of the limitation period, it was satisfied on 5 February. Yet where actual notification is accompanied by a representation which may turn out to be factually incorrect advice as to the availability of review, the Minister is estopped from relying on the statute, until that advice has been corrected. It seems that, under the guise of purposive interpretation of the statute, the requirement of actual notification has been reformulated to require notification that is not accompanied by an incorrect or untrue statement as to rights of review.

  3. Whatever the status of Wang in relation to the operation of the Migration Act, in my view the reasoning should not be applied in the present context.

  4. The appellant submitted that the representation in the letter from the Board resulted in procedural unfairness. Procedural unfairness in this context must refer to the denial of an opportunity to take a step which should have been available to the appellant. That is the antithesis of what happened in the present case. The letter from the Board offered him the opportunity of review by appeal to the Industrial Court. If, on legal advice, he decided that the proper course was to appeal to a workers compensation commissioner, there was nothing in the letter of the Board which prevented him doing so.

Conclusion

  1. The obligation of the Board was to notify Mr Pascoe of its decision with respect to his claim. It did that. The statutory provisions with respect to appeals allowed him to lodge an application either with a workers compensation commissioner or with the Industrial Court. At the time, the respective periods were 90 days and six months. He commenced proceedings in what was then accepted to be the appropriate Tribunal, namely the Industrial Court, within that time period. The period expired more than 30 years ago. The change in the law by which this Court held that the appeal lay to a workers compensation commissioner rather than the Industrial Court did not undo any of these steps. In particular, it did not mean that he was never notified of the decision. He self-evidently was.

  2. It follows that the District Court had no jurisdiction to determine an application in its role as the successor to the workers compensation commissioners under s 21 of the Police Regulation Act, with respect to the decision of the Board notified on 3 September 1990. The application to the District Court was correctly dismissed. The appeal to this Court must be dismissed. The appellant must pay the respondent’s costs in this Court.

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Endnotes

Decision last updated: 01 December 2022

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