Re: Stephens v Cook - [1999] QSC 207

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane  No.6900 of 1996
Before the Hon. Mr Justice Shepherdson
[re: Stephens v Cook & Ors.]
BETWEEN:
  AARON FREDERICK STEPHENS
  Applicant
AND:
  BARRY ALLAN COOK THE DELEGATE OF THE BOARD
  OF TRUSTEES OF THE STATE PUBLIC SECTOR
  SUPERANNUATION SCHEME
  First Respondent
AND:
  THE BOARD OF TRUSTEES OF THE STATE PUBLIC SECTOR
  SUPERANNUATION SCHEME
  Second Respondent
REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 3 September 1999
CATCHWORDS: ADMINISTRATIVE LAW - JUDICIAL REVIEW ACT 1991 - application to review decision of respondent of 26 June 1996 that applicant not entitled to benefits under s 7.4 of Deed of the State Public Sector Superannuation Scheme - earlier decision of 17 May 1995 that he was so entitled “repealed” for reasons which were irrelevant - when applicant ceased to be a member of the Scheme - whether decision of 26 June 1996 should be set aside.

Deed of the State Public Sector Superannuation Scheme s 7.4
Superannuation (State Public Sector) Act 1990 Part 3

Counsel: Ms CE Holmes for the applicant
Mr RG Bain QC for the respondents

Solicitors: Macrossans for the applicant
Crown Solicitor for the respondents

Hearing date:          6 August 1999
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane  No.6900 of 1996
Before the Hon. Mr Justice Shepherdson
[re: Stephens v Cook & Ors.]
BETWEEN:
  AARON FREDERICK STEPHENS
  Applicant
AND:
  BARRY ALLAN COOK THE DELEGATE OF THE BOARD
  OF TRUSTEES OF THE STATE PUBLIC SECTOR
  SUPERANNUATION SCHEME
  First Respondent
AND:
  THE BOARD OF TRUSTEES OF THE STATE PUBLIC SECTOR
  SUPERANNUATION SCHEME
  Second Respondent
REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 3 September 1999

The applicant seeks review of the decision of the above named Barry Allan Cook, exercising as the delegate of the Board of Trustees of the State Public Sector Superannuation Scheme, a power, duty or function of the board communicated to the applicant by letter dated 26 June 1996, and in respect of which a Statement of Reasons pursuant to the Judicial Review Act 1991 was given to the applicant on 26 July 1996 under cover of a letter dated 24 July 1996. The decision was that the applicant is not entitled to benefits under section 7.4 of the Deed of the State Public Sector Superannuation Scheme.
The application sets out a number of grounds, but before turning to those I set out the letter and the Statement of Reasons. The letter dated 26 June 1996 was addressed to the applicant's solicitors and, omitting formal parts, reads:
"Re: Mr Aaron Frederick Stephens ...
I refer to previous correspondence and in particular to your letter of 17 October 1995 in relation to the Superannuation Entitlements due to above named.
After consideration of the submissions made on behalf of Mr Stephens, the provisions of the Superannuation (State Public Sector Act) 1990 and the Deed of the State Public Sector Superannuation Scheme, the decision of the Board's delegate is that he is not entitled to benefits under section 7.4 of the deed.
In these circumstances the benefit paid to Mr Stephens pursuant to section 7.10 of the Deed represents his full entitlement from the Scheme following his dismissal from the Education Department."
The Statement of Reasons reads as follows:
"STATEMENT OF REASONS PURSUANT TO THE JUDICIAL REVIEW ACT 1991 IN RELATION TO THE DECISION THAT MR AARON FREDERICK STEPHENS IS NOT ENTITLED TO BENEFIT UNDER SECTION 7.4 OF THE DEED OF THE STATE PUBLIC SECTOR SUPERANNUATION SCHEME.
BACKGROUND
Section 7.4(1) of the Deed provides:
Benefit on total and permanent disablement
7.4(1) Where a member becomes totally and permanently disabled before attaining the age of 55 years the Board shall credit to the member's voluntary contribution and preservation account a percentage of final salary comprised of -
(a) the member's compulsory contribution benefit;
(b) the member's prospective membership benefit if payable; and
(c) the member's basic benefit.
Section 7.10 of the Deed provides:
Benefits on withdrawal
7.10(1) Where a member ceases employment with the employer and is not entitled to any other benefit under this deed there shall be credited to that member's voluntary contribution and preservation account a benefit equal to the amount of the member's compulsory contributions, accumulated with interest at the applicable smoothed earning rates, compounded annually.
On 16 July 1996 the Government Superannuation Office received a letter dated 15 July 1996 from Hill & Taylor, Solicitors & Attorneys on behalf of Mr Stephens requesting a written Statement of Reasons in relation to the decision that Mr Stephens was not entitled to a benefit under Section 7.4 of the Deed.
EVIDENCE OR OTHER MATERIAL ON WHICH FINDINGS OF FACT WERE BASED.
In arriving at this decision, the Board's delegate took account of Mr Stephens' superannuation file including the following material:
An application from Mr Stephens received at the Government Superannuation Office on 5 September 1994.
A copy of a letter dated 22 February 1995 from the Director-General of Education to Mr Stephens advising of Mr Stephens dismissal on the grounds of misconduct.
FINDINGS ON MATERIAL QUESTIONS OF FACT.
Mr Stephens was a Teacher with the Department of Education prior to his dismissal on 22 February 1995.
Mr Stephens was convicted of a criminal offence for which he was imprisoned. He appealed the conviction but that appeal was dismissed on 12 August 1994.
In a letter received at the Government Superannuation Office on 5 September 1994, he applied for Total and Permanent disablement benefit stating that he suffered from 'a severe form of tinitis (sic) which has made it impossible for me to continue in my position as a primary teacher and renders it impossible for me to find work in another field ... '
On 17 May 1995, the Secretariat formed the opinion that Mr Stephens would be considered totally and permanently disabled in the event that he was retired on the grounds of ill health. Both Mr Stephens and the Education Department were advised of this decision on 18 May 1995.
On 22 May 1995, the Director, Superannuation Services, Government Superannuation Office was advised by an officer from the Townsville Regional Office, Department of Education that Mr Stephens had been suspended from duty in September 1993 and dismissed in February 1995 after being found guilty of a criminal offence.
By letter dated 9 August 1995 Mr Stephens was advised that the Secretariat's decision was not made with the full knowledge of the circumstances surrounding his employment with the Department of Education, namely, that he had been dismissed in February 1995. He was also advised that the decision of 17 May 1995 had been repealed in these circumstances and that it was intended to make a fresh determination.
REASONS FOR THE DECISION
It was determined that Mr Stephens was not entitled to disability benefits under section 7.4 of the Deed because:
his membership of the Scheme was considered a function of his employment; when that employment ceased in 22 February 1995, he ceased to be a member of the Scheme and became entitled to benefits under section 7.10 of the Deed;
the initial view concerning his entitlement under section 7.4 of the Deed, made in ignorance of his suspension and dismissal, was considered both irrelevant and nugatory."
The applicant was born on 23 July 1956, and in January 1977 began employment as a teacher with the Queensland Department of Education. He performed this employment until 22 February 1995, on which date he was dismissed by the Department of Education.
As the above Statement of Reasons says, by letter received by the Superannuation Office on 5 September 1994, the applicant applied for "total and permanent disablement" benefit, saying he suffered a severe form of tinnitus which made it impossible for him to continue in his position as a primary teacher and rendered it impossible for him to find work in another field. The letter went on to state the tinnitus was first noticed when starting races at school sports and swimming carnivals [where starting guns were used] in the early eighties and described side effects of the tinnitus.
It appears that in accordance with certain recommendations and suggestions of the Government Superannuation Office the applicant provided to that office a report dated 20 February 1995, from Dr Christopher Perry, a specialist in Otolaryngology, supporting the applicant's claim to be totally and permanently disabled.
By letter dated 18 May 1995 and addressed to the applicant, the applicant was notified by the Government Superannuation Board that:
"Following consideration of the medical evidence available it has been determined, under the terms of the Q-Super Trust Deed you be considered totally and permanently disabled."
The letter went on:
"Your Employing Authority has been advised of this decision to enable action to be taken for your retirement on the grounds of ill health.
Your Total and Permanent Disablement benefit will become effective as of 19 June 1995 or the earlier date of your retirement on the grounds of ill health. It should be noted that a withdrawal of funds cannot be made until after termination of employment ... ."
As the Statement of Reasons above set out shows, the Government Superannuation Board became aware on 22 May 1995 that in February 1995 the applicant had been dismissed from his employment with the Department of Education.
On 9 August 1995 the Government Superannuation Office wrote to the applicant referring to its letter of 18 May 1995 (see paragraph 6 (ante)). The letter went on:
"I advise that this decision was not made with the full knowledge of the circumstances surrounding your employment with the Department of Education. Enquiries made with the Department of Education have revealed that you were dismissed in February 1995 pursuant to disciplinary action taken under the provisions of the Public Service Management and Employment Act 1988. When the determination was made in 1995 that under the terms of the Q-Super Trust Deed you be considered totally and permanently disabled it was not known that you had been dismissed from your employment with the Department of Education in February 1995. In these circumstances the decision made in February 1995 is repealed and it is intended to make a fresh determination in the light of the knowledge that you have been dismissed from your employment with the Department of Education."
The letter then asked for submissions in writing concerning the question as to which benefit the applicant believed he was lawfully entitled to receive under the provisions of the Superannuation(State Public Sector) Act1990 and the Deed of the State Public Sector Superannuation Scheme.
The applicant consulted solicitors Hill & Taylor and on 17 October 1995 these solicitors made submissions to the Government Superannuation Office. The letter dated 26 June 1996 (paragraph 2 (ante)) ensued.
I mention now that on 30 March 1994 the applicant was convicted on one charge of indecently dealing with a child under the age of 16 years; he appealed against the conviction but that appeal was dismissed on 12 August 1994. It was after this date that he telephoned a Government Superannuation Officer and spoke to a Mrs Fiona Powell informing her, as he swears, that he would soon be dismissed from his employment with the department and making general enquiries as to benefits available from "Q-Super" because he had a severe hearing and ear disability. The contents of this telephone call, as I have set them out, are not disputed.
The above named first respondent Mr Cook, the director, Trustee Services of the Government Superannuation Office and delegate of the Board of Trustees pursuant to s 5 of the Superannuation(State Public Sector) Act 1990 with responsibility for making decisions in relation to entitlements under the Government Superannuation Scheme, made the decision on 17 May 1995 approving the applicant be considered totally and permanently disabled in the event of retirement on the grounds of ill health. He caused the letter dated 18 May 1995 informing the applicant of that decision to be sent to the applicant.
He swears that at the time he made this decision he did not know:
(a)that the applicant had been charged with several criminal charges;
(b)that the applicant was subsequently suspended from employment pending the outcome of the criminal proceedings;
(c)that the applicant was tried and subsequently convicted on a charge of indecently dealing with a child under the age of 16 years;
(d)that the applicant unsuccessfully appealed against the conviction;
(e)that the applicant was dismissed from his employment;
(f)that the applicant was imprisoned pursuant to the conviction.
He has sworn that he made his decision on 17 May 1995 in the belief (which he swears he now knows to be wrong) that the applicant was a serving officer in the Department of Education.
The application for judicial review has four stated grounds each relating to the decision stated in the letter of 26 June 1996. They are:
1.That the making of the decision involved an error of law in that the first respondent wrongly concluded that the applicant was not entitled to benefits under section 7.4 of the Deed.
2.That the making of that decision involved an error of law in that the first respondent wrongly considered that when on 22 February 1995 the applicant ceased to be employed, he thereby ceased to be a member of the scheme and was entitled only to benefits under s 7.10 of the Deed.
3.That the making of the decision involved an error of law in that the first respondent wrongly concluded that an earlier decision to the effect that the applicant was entitled to benefits under s 7.4 of the Deed had been made in ignorance of his suspension and dismissal and was therefore both irrelevant and nugatory.
4.That the making of the decision was an improper exercise of the power conferred by the enactment under which it was made in that the first respondent wrongly took into account an irrelevant consideration namely cessation of the applicant's employment on 22 February 1995.
The applicant seeks first an order quashing the decision that the applicant is not entitled to benefits under s 7.4 of the Deed and secondly, a declaration that the applicant is entitled to benefits under s 7.4 of the Deed.
Further or alternatively he seeks an order that the first respondent reconsider his decision taking into account relevant considerations only, and determining the matter according to law, and further alternatively there be such direction to the first respondent and/or the second respondent as the court considers necessary.
Exhibit 1 before me is a copy of the "Deed of the State Public Sector Superannuation Scheme" in force at the material times.
This Deed came into existence pursuant to PART 3 of the Superannuation (State Public Sector) Act1990. The Deed established a scheme for the provision of superannuation, retirement, provident or other similar benefits payable from a fund established and maintained in the Queensland Treasury under the title "State Public Sector Superannuation Fund" (see s 3.3(1) and s 3.1 of the Act).
By sub-s 3.3(2) of the Act the Deed is subordinate legislation and may be amended by the Board of Trustees.
Section 3.4 of the Act deals with membership of the scheme.
Section 3.5 of the Act specifies a number of matters for which the Deed might make provision. Matter (i) relevantly reads:
"(i) The level of and conditions relating to the payment of benefits under the scheme to and in respect of a member including -
(i) benefits on attaining the age of 55 years or older;
(ii) benefits for total and permanent incapacity;
(iii) benefits for permanent but partial incapacity;
(iv) benefits for short term incapacity;
(v) benefits on death prior to the age of 55 years;
(vi) benefits on -
(A)     compulsory retrenchment from employment;
(B)     involuntary termination of employment;
(C)     voluntary resignation from employment;
(D)     dismissal from employment;
(vii) benefits on the occurrence of such other eventuality as may be specified."
Turning to the Deed (Exhibit 1) the following matters in the Deed are relevant to the issues before me:
1.Definition of "member" - means a member of this scheme.
2.Definition of "disablement" - means any mental or bodily injury, illness disease or infirmity.
3.Definition of "involuntary termination" - means compulsory retrenchment which in the opinion of the Board is genuine retrenchment, or non-renewal by the employer or termination by the employer of a contract of employment, the employer being lawfully entitled so to retrench, fail to renew or terminate as the case may be, but does not include dismissal on account of misconduct.
(the emphasis is mine)
4."Employer" - in relation to a member means the unit of the State public sector of which the member is an officer, member or employee (howsoever described).
5."total and permanent disablement" - means disablement of a degree which, in the opinion of the Board after obtaining the advice of not fewer than two medical practitioners, is such as to render the member unlikely ever to be able to work again in the job for which the member is reasonably qualified by education, training or experience.
The above definitions all appear in section 1.4 of the Deed.
6.Part 4 of the Deed deals with "MEMBERSHIP". It contains three clauses. Section 4.1 deals with commencement of membership, section 4.2 deals with determinations of the Board in certain cases of doubt, and section 4.3 which deals with "cessation", reads:
"4.3(1) A member may not at the instance of that member cease to be a member so long as that person is employed by the same employer.
(2) Where a member changes employment or is to change employment from one employer to another employer and the period between ceasing employment with one employer and commencing employment with the other employer does not exceed 1 month the member may elect to continue membership in the scheme subject to such conditions as to the payment of contributions as the Board may determine.
(3) Where the Board determines that a member is entitled to a benefit under Part 7 which is other than a temporary disablement benefit, and the person has ceased employment with the employer, that person shall cease to be a member."
Part 6 of the Deed deals with "MEMBERS' ACCOUNTS". I note section 6.1 relevantly reads:
"6.1 There shall be established as the case may require, in respect of each person who is a member or who ceases to be a member a voluntary contribution and preservation account to which shall be credited -
..................................
(b) The amount of any benefits which are to be credited to this account pursuant to Part 7 ... ."
Section 6.3 deals with withdrawals from the voluntary contribution and preservation account and s 6.3(1) relevantly says:
"Withdrawals of all or part of a person's voluntary contribution and preservation account may be made by that person or that person's legal personal representative subject to such reasonable constraints as to times and frequencies of withdrawals as the Board may determine, but in any case no withdrawal shall be made before that person has ceased employment with the employer."
Part 7 deals with "BENEFITS". Section 7.1 deals with what is called "benefit on age retirement". It reads:
"7.1 Where a member retires or otherwise leaves the service of the employer on or after the member's 55th birthday the Board shall credit to the member's voluntary contribution and preservation account a percentage of final average salary comprised of-
(a)the member's compulsory contribution benefit; and
(b)the member's basic benefit."
Sections 7.2 and 7.3 deal with the member's compulsory contribution benefit and the member's basic benefit. Section 7.4 deals with "benefit on total and permanent disablement". This section relevantly reads:
"7.4(1) Where a member becomes totally and permanently disabled before attaining the age of 55 years the Board shall credit to the member's voluntary contribution and preservation account a percentage of final salary comprised of -
(a)the member's compulsory contribution benefit; and
(b)the member's prospective membership benefit if payable; and
(c)the member's basic benefit."
Section 7.5 - deals with member's prospective membership benefit.
Section 7.6 - deals with benefit on death.
Section 7.7 - deals with benefit on permanent and partial disablement.
Section 7.8 - deals with benefit on temporary disablement.
Section 7.9 - deals with benefit on involuntary termination or early retirement. (Note that according to definition of "involuntary termination" this section does not apply to dismissal for misconduct.)
Section 7.10 - is headed "Benefits on Withdrawal"
Section 7.10(1) reads:
"7.10(1) Where a member ceases employment with the employer and is not entitled to any other benefit under this deed there shall be credited to that member's voluntary contribution and preservation account a benefit equal to the amount of the member's compulsory contributions, accumulated with interest at the applicable smoothed earning rates, compounded annually."

Sections 7.11 and 7.12 are not relevant to the present matter.
Section 7.13 deals with contributory membership of persons who again become members and is not relevant to the present matter.
The resolution of the application before me turns in part on whether the applicant ceased to be a member of the Scheme when on 22 February 1995, he was dismissed from his employment with the Department of Education.
Mr Bain QC, contends that he was not a member after 22 February 1995 and therefore the decision of 18 May 1995 was of no effect. He contends that the applicant is entitled to benefits only under section 7(10) of the Deed.
There is no dispute that as at 22 February 1995 the applicant was a member of the Scheme established by the Deed.
Section 1.4 of the Deed which defines various terms did not define "dismiss" or "dismissal". That sub-section did define "involuntary termination" but expressly said that that definition did not include dismissal on account of misconduct.
In Part 4 of the Deed dealing with "membership" section 4.3 which deals with "cessation" states in s 4.3(3):
"(3) Where the Board determines that a member is entitled to a benefit under Part 7 which is other than a temporary disablement benefit and the person had ceased employment with the employer that person shall cease to be a member."
Thus, pursuant to s 4.3(3) for a person to cease to be a member two requirements have to be met. First, the Board must determine that a member is entitled to a benefit under Part 7, which is other than a temporary disablement benefit, and secondly, the person must have ceased employment with the employer.
As to the first of these requirements, in the present case, the Board, by its delegate Mr Cook, has on two occasions - 17 May 1995 and 26 June 1996 determined that the applicant was entitled to a benefit under Part 7 being a benefit other than a temporary disablement benefit. Thus, on each of these occasions the first requirement of section 4.3(3) appears to have been met.
As to the second, namely that the person has ceased employment with the employer, the evidence shows that on 22 February 1995, he ceased his employment with the Department of Education when dismissed for misconduct.
It may therefore be fairly said as at 18 May 1995, both requirements of section 4.3(3) had been met and that on that date the applicant ceased to be a member of this scheme. This is a view with which I agree.
I should at this stage say that while the provisions of sections 4.3(3) and 7.10 appear to be in conflict closer examination suggests this not to be so.
Section 4.3(3) speaks of the circumstances in which a person shall cease to be a member. Section 7.10 which appears in the Statement of Reasons (paragraph 2 (ante) and also at paragraph 26 (ante)) is headed "benefits on withdrawal" and commences:
"Where a member ceases employment with the employer and is not entitled to any other benefit under this deed ... ."
In the present case the applicant ceased his employment on 22 February 1995 and so one of the two requirements of section 7.10(1) was then met. The next requirement to be met before section 7.10(1) could operate to justify a benefit to the member under section 7.10 was that the member, at the time he ceased employment was not entitled to any other benefit under the Deed i.e. benefit other than under s 7(10).
On one view of the material which had been placed before Mr Cook, and on which he decided on 17 May 1995 that the applicant was entitled to a benefit under section 7(4), the applicant had by then ceased employment with the Department of Education but he had not ceased to be a member. In my opinion this view is correct. Being still a member on 17 May 1995, the applicant was in my opinion eligible to apply for a benefit under section 7.4 - indeed he had already done so. One notes the definition of "total and permanent disablement" (paragraph 22 supra). To satisfy the requirements of this definition the Board (or its delegate) has to form the requisite opinion after obtaining the advice of not fewer than two medical practitioners.
On the material before Mr Cook he formed that opinion on 17 May 1995 and on 18 May 1995 notified the applicant of that decision.
Mr Cook's Statement of Reasons for his decision of 26 June 1996 includes the following:
"It was determined that Mr Stephens was not entitled to disability benefits under section 7.4 of the Deed because:
His membership of the Scheme was considered a function of his employment; when that employment ceased on 22 February 1995, he ceased to be a member of the Scheme and became entitled to benefits under section 7.10 of the Deed
............................... ."
In my respectful view Mr Cook erred in law when he stated:
(a)The applicant's membership of the scheme was considered a function of his employment;
(b)When that employment ceased on 22 February 1995, the applicant ceased to be a member of the Scheme;
(c)When that employment ceased on 22 February 1995, the applicant became entitled to benefits under section 7.10 of the Deed.
The Deed does not state that a person's membership of the scheme is a function of that person's employment, and to say that it is, erroneously construes the Deed. Part 4 of the Deed deals with "MEMBERSHIP". Section 4.1 deals with the time at which membership of a member commences and section 4.2 enables the Board to determine certain aspects of membership if any doubt exists because of an order in council made under s 3.4(1) of the Superannuation (State Public Sector) Act 1990. Section 4.3 and especially sub-s 4.3(3) deals with cessation of membership.
As I have endeavoured to show, there is no provision in the Deed which causes a person's membership of the Scheme to cease simply when and because that person's employment ceases. Further, to say that cessation of the applicant's employment resulted in the applicant becoming entitled to benefits under section 7.10 of the Deed misconstrues section 7.10.
In my respectful view a member only becomes entitled to benefits under section 7.10 after three requirements are met.
First, he or she must be a member. Secondly, the member must have ceased his employment, and thirdly, the member must not be entitled to any other benefit under the Deed. In the applicant's case the applicant was not a member of the Scheme on 26 June 1996. He had ceased to be a member on 17 May 1995. Further, the third of these requirements has not been met. I emphasise the use of the word "other" before "benefit". As I have already indicated, Part 7 of the Deed headed "BENEFITS" states various types of benefits to be credited to a member's particular account in particular events. In each case (save for the benefit for temporary disablement in section 7.8), on the happening of the particular event the Board "shall credit" the specified benefit "to the member's voluntary contribution and preservation account". "Shall" is mandatory. Section 7.10, on which Mr Cook relied, recognises that if section 7.10 is relied on, the person concerned and to whose account credit is to be made must be a member. Mr Cook's decision that the applicant became entitled to benefits under s 7.10 of the Deed, if that decision is valid, must have recognised the applicant to be a member of the Scheme. This recognition conflicts with his Statement of Reasons in which he says the applicant ceased to be a member on 22 February 1995 (a view which I believe is incorrect).
Contrary to my views, I shall assume that the applicant was a member as at 26 June 1996. This still leaves the third of the above requirements.
Section 7.10(1) uses the phrase "not entitled to any other benefit". What is meant by "entitled"? As I have already mentioned, in each type of benefit specified in Part 7 (save for section 7.8) the occurrence of an event triggers the credit of the specified benefit to the member's voluntary contribution and preservation account.
In my opinion, once the particular event occurs justifying a credit to the member's stated account, the member then becomes entitled to the particular benefit.
For a member to be entitled to a benefit under section 7.4 a necessary precursor to the event specified in section 7.4 viz becoming totally and permanently disabled, is the formation by the Board of the opinion that the member is totally and permanently disabled. The Board can only form that opinion after obtaining advice of not fewer than two medical practitioners on the matters referred to in the definition of "total and permanent disablement".
In the present case, Mr Cook as delegate of the Board did form the necessary opinion and in my respectful view, once he did that the applicant became entitled to a benefit under section 7.4. I find that this entitlement occurred on 17 May 1995. There is no suggestion the opinion formed by Mr Cook on 17 May 1995 was incorrect.
In my view, it could not be said, as at 26 June 1996, that the applicant was not entitled to any other benefit under the Deed (as required by section 7.10 before that section could operate).
For reasons which I have given I decide that the applicant has made out grounds 1, 2 and 4 of his application and that the decision of 26 June 1996 should be quashed.
I must say something concerning ground 3 (see paragraph 14 ante).
In his reasons for the decision of 26 June 1996, Mr Cook said:
"It was determined that Mr Stephens was not entitled to disability benefits under section 7.4 of the Deed because:
...............................
The initial view concerning his entitlement under section 7.4 of the Deed, made in ignorance of his suspension and dismissal, was considered both irrelevant and nugatory."
In my respectful view the matters of the applicant's suspension and dismissal were irrelevant to the decision of 26 June 1996. When Mr Cook, as delegate, was deciding on 17 May 1995 whether the applicant was totally and permanently disabled, neither of these matters had any bearing on total and permanent disablement and neither should have been considered on 26 June 1996.
As already stated the applicant in my opinion ceased to be a member on 17 May 1995. Mr Cook, when considering whether the applicant suffered total and permanent disablement would not and could not have been concerned with reasons for the applicant's dismissal. He was concerned only with deciding whether he could form the opinion specified in the definition of "total and permanent disablement". Had Mr Cook known on 17 May 1995 of the applicants dismissal and reasons therefor he was required as a matter of law to ignore them as irrelevant.
In my respectful view Mr Cook erred in law in deciding on 26 June 1996 that the applicant was not entitled to disability benefits under s 7.4 because the initial view [decision 17 May 1995] concerning his entitlement under s 7.4 of the Deed made in ignorance of his suspension and dismissal was considered both irrelevant and nugatory.
The applicant has made out all his grounds stated in the application and the decision of 26 June 1996 should be quashed.
I have also concluded that the decision of 17 May 1995 notified to the applicant by letter dated 18 May 1995 should stand and was erroneously brushed aside as nugatory. I had considered returning this matter to the Board to be considered afresh. However, the events which have been placed before me will not change and cannot change. Mr Cook, in his affidavit says the decision of 17 May 1995 was "straightforward and based on a consideration of medical reports". I have reached the firm view that in this case the applicant is entitled to a declaration that he is entitled to benefit pursuant to section 7.4 of the Deed of the State Public Sector Superannuation Scheme.
I cannot leave this decision without making the following comments.
The respondent's attitude to this applicant, as evinced by the irrelevant matters which it has taken into account to justify its decision that the applicant is not entitled to a benefit under section 7.4 is disappointing. I say that in light of the following matters:
(1)Pursuant to a statute - the Superannuation (State Public Sector) Act 1990 - the Deed established a scheme for provision of superannuation, retirement, provident and similar benefits from the State Public Sector Superannuation Fund.
(2)The deed has not specifically dealt with "benefits on dismissal from employment" although this was one of the many matters for which it might make provision (see s 3.5 of the Act and paragraph 21 ante).
(3)The respondent's decision, if not set aside, has the effect of further punishing the applicant for criminal conduct for which he had already been punished by imprisonment.
(4)The applicant's total and permanent disablement of which Mr Cook was satisfied appears to have had its origins in his working for the Department of Education. One may ask - why should he not receive his just entitlement because the Board considered, for irrelevant reasons, that he should be deprived of it?
In making the comment in matter No.3 above, I have ignored the fact that the applicant was dismissed for misconduct, that misconduct being based on the facts leading to his conviction. On one view, depriving the applicant of benefit under s 7.4 compounds the dismissal in that not only has he lost his livelihood as a teacher, but he has also lost the extra financial benefit he gained under s 7.4 when compared with the benefit under s 7.10. I do not in any way criticise the decision to dismiss the applicant.
In summary then the orders I make are these:
1.I quash the decision set out in the letter of 26 June 1996 from the first respondent to the applicant.
2.I declare that the applicant is entitled to benefit pursuant to section 7.4 of the Deed of the State Public Sector Superannuation Scheme.
3.I order the respondents to pay the applicant's costs of and incidental to the application to be taxed or assessed.