Porto v SAS Trustee Corporation

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District Court


New South Wales

Medium Neutral Citation: Porto v SAS Trustee Corporation [2014] NSWDC 15
Hearing dates:23-25, 30 October 2013; 4-6 February 2014
Decision date: 21 March 2014
Before: Neilson J
Decision:

Decisions made by SAS Trustee Corporation on 26 July 2012 confirmed.

Catchwords: POLICE SUPERANNUATION - Hurt on duty - abnormal risk benefit - assessment of risks - allowance commensurate with risks - whether plaintiff "required to be exposed" to risk - backdating of benefit
Legislation Cited: Police Regulation (Superannuation) Act 1906
Police Regulation (Superannuation and Appeals) Amendment Act 1979
Cases Cited: Bennie v SAS Trustee Corporation (Geraghty J, NSWCC No 6036/96/1)
Byrne v SAS Trustee Corporation (unreported, District Court, NSW, Truss DCJ, No RJ 416 of 2007, 16 May 2008)
Conway v SAS Trustee Corporation [2012] NSWDC 249
Grech v Commissioner of Police (2004) 1 DDCR 242
Hoffman v SAS Trustee Corporation (Ashord DCJ, 15 May 2013, RJ512/12)
Lembcke v SAS Trustee Corporation (2003) 25 NSWCCR 464
Murphy v SAS Trustee Corporation (Ashford DCJ, 15 May 2013, RJ516/12)
Pinkerton v SAS Trustee Corporation (Truss DCJ, 10 August 2007, RJ319/06)
SAS Trustee Corporation v Cox [2011] NSWCA 408
Swift v SAS Trustee Corporation [2010] NSWCA 182
Tanks v SAS Trustee Corporation (Neilson DCJ 1 September 2004, RJ894/03)
Thoms v SAS Trustee Corporation (Geraghty J, NSWCC No 7721/98)
Wheatley v SAS Trustee Corporation (Robison DCJ, 3 August 2011, RJ424/10)
Category:Principal judgment
Parties: Robert David Porto
SAS Trustee Corporation
Representation: R J Perrignon (Plaintiff)
T M Ower (Defendant)
Baker and Edmunds (Plaintiff)
R S Blume (Defendant)
File Number(s):RJ613/12
Publication restriction:No

Judgment

INTRODUCTION

  1. The plaintiff, Mr Robert Porto, is a former constable first class of police. He was attested as a probationary constable of police on 27 March 1987 and thereupon became a contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906 ("the Act"). On 31 March 1995 the plaintiff submitted his resignation. That resignation took effect on 28 April 1995. The plaintiff withdrew from the Police Superannuation Fund his contributions to that Fund, and applied for, and received, pro rata long service leave. He made no application at that time for a medical discharge.

  1. He made such an application on 5 August 2008, that application being received by the defendant on 7 August 2008. On 24 September 2009 the Police Superannuation Advisory Committee ("PSAC") established under the Act, acting as delegate for the defendant, determined that at the time that the plaintiff's resignation came into effect he had been incapacitated for the duties of his office on account of an injury to his left knee and post-traumatic stress disorder with depressive features ("PTSD"). On 8 October 2009 the Commissioner of Police determined that the suffering by the plaintiff of the infirmity in his left knee was caused by the plaintiff's having been hurt on duty. However, the Commissioner of Police rejected the allegation that the plaintiff's PTSD was caused by his having been hurt on duty. As a matter of law…

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Details
Case
[2014] NSWDC 15
Decision Date

CaseChat Overview and Summary

In the case of Porto v SAS Trustee Corporation, the plaintiff, a former police officer, sought a review of decisions made by the defendant, SAS Trustee Corporation, in relation to his abnormal risk benefit under the Police Superannuation Act. The case was heard in the Federal Court of Australia. The plaintiff argued that the decisions made by the SAS Trustee Corporation were incorrect, as they did not properly consider the risks he was exposed to during his employment and did not provide him with an allowance commensurate with those risks. The plaintiff also sought backdating of the benefit.

The primary legal issue before the court was whether the plaintiff was "required to be exposed" to the abnormal risks inherent in his role as a police officer, as required by the legislation. The court also needed to determine whether the allowance provided to the plaintiff was commensurate with the risks he faced. Additionally, the court considered whether the plaintiff was entitled to backdating of the benefit.

The court found that the decisions made by the SAS Trustee Corporation were correct. The court held that the plaintiff was indeed "required to be exposed" to the abnormal risks inherent in his role as a police officer. The court also determined that the allowance provided to the plaintiff was commensurate with the risks he faced. The court rejected the plaintiff's claim for backdating of the benefit, finding that there was no basis for such a claim under the legislation. Consequently, the decisions made by the SAS Trustee Corporation on 26 July 2012 were confirmed.

As a result of the court's decision, the plaintiff's application for review of the SAS Trustee Corporation's decisions was dismissed. The court's determination upheld the decisions made by the SAS Trustee Corporation, finding that they were in accordance with the relevant legislation and that the plaintiff was not entitled to the relief sought.

Orders

Orders of the court

Decisions made by SAS Trustee Corporation on 26 July 2012 confirmed.

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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