SAS Trustee Corporation v Colquhoun - [2022] NSWCA 184

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: SAS Trustee Corporation v Colquhoun [2022] NSWCA 184
Hearing dates: 17 August 2022
Decision date: 20 September 2022
Before: Meagher JA at [1];
White JA at [2];
Griffiths AJA at [55]
Decision:
Appeal dismissed with costs

Catchwords:
ADMINISTRATIVE LAW – Public Sector – Police Regulation (Superannuation) Act 1906 (NSW) ss 9A(4) and 21(4) – where District Court on appeal de novo backdated respondent’s pension by ten years before date of application – where appeal lies in point of law – where pension may be backdated if decision-maker is satisfied that there are exceptional circumstances that merit its doing so – whether such circumstances are only those which explain the delay in filing an application

Legislation Cited:
District Court Act 1973 (NSW), ss 142G, 142N
Police Regulation (Superannuation) Act 1906 (NSW), ss 9, 10, 10B, 21
Superannuation Legislation Amendment Act 2006 (NSW)

Cases Cited:
Baker v The Queen (2004) 223 CLR 513; [2004] HCA 45
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456
Daley v SAS Trustee Corporation [2016] NSWCA 111
Day v SAS Trustee Corporation [2021] NSWCA 71
Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378
Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16
House v The King (1936) 55 CLR 499; [1936] HCA 40
NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509; [1956] HCA 80
R v Kelly [2000] QB 198
SAS Trustee Corporation v Arthur Cox [2011] NSWCA 408; (2011) 285 ALR 623
Swift v SAS Trustee Corporation [2010] NSWCA 182

Category: Principal judgment
Parties: SAS Trustee Corporation t/a State Super (Appellant)
Thomas Colquhoun (Respondent)
Representation:
Counsel:
G M Watson SC with S Palaniappan (Appellant)
D F Jackson QC with J M Morris SC and M N Hammond (Respondent)
Solicitors:
SAS Trustee Corporation (Appellant)
Cardillo Gray Partners (Respondent)

File Number(s): 2022/8500
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

16 December 2021

Before:

Kearns ADCJ

File Number(s):

RJ00116/2021

HEADNOTE

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

The respondent resigned from the police force on 14 December 1993. In 2012 he applied for an annual superannuation allowance pursuant to s 10 of the Police Regulation (Superannuation) Act 1906 (NSW). On 1 March 2019 a District Court judge determined that at the time of his resignation he was incapable of performing the duties of his office due to anxiety/depression. On 18 March 2020 the Commissioner of Police determined that that infirmity was caused by his having been hurt on duty. He was therefore entitled to be paid a pension under the Act. On 18 February 2021 the respondent (SAS Trustee Corporation, “STC”) decided that the commencement date for the pension should be the date it received the application.

Section 9A(4) of the Act provides that the pension is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWCA 184
Decision Date: 20 September 2022

CaseChat Overview and Summary

The SAS Trustee Corporation (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the District Court concerning the respondent, Mr. Colquhoun. The dispute centred on the date from which Mr. Colquhoun's pension should be backdated under the *Police Regulation (Superannuation) Act 1906* (NSW). The District Court had ordered that the pension be backdated by ten years prior to the date of Mr. Colquhoun's application, a decision the appellant argued was erroneous.

The primary legal issue before the Court of Appeal was the interpretation of sections 9A(4) and 21(4) of the *Police Regulation (Superannuation) Act 1906*. Specifically, the court had to determine whether the "exceptional circumstances" that would permit a pension to be backdated beyond the date of application were limited to circumstances that explained the delay in filing the application itself, or if they encompassed a broader range of circumstances justifying the retrospective payment. The appeal was brought on a point of law.

The Court of Appeal reasoned that the statutory language did not confine "exceptional circumstances" solely to those explaining a delay in application. Instead, it held that the decision-maker had a broader discretion to consider any circumstances that, in their satisfaction, merited the backdating of the pension. The court found no error in the District Court's approach, which had evidently considered circumstances beyond mere delay in reaching its conclusion.

The appeal was accordingly dismissed, and the SAS Trustee Corporation was ordered to pay the costs of the respondent.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	SAS Trustee Corporation v Colquhoun [2022] NSWCA 184
Hearing dates:	17 August 2022
Decision date:	20 September 2022
Before:	Meagher JA at [1]; White JA at [2]; Griffiths AJA at [55]
Decision:	Appeal dismissed with costs
Catchwords:	ADMINISTRATIVE LAW – Public Sector – Police Regulation (Superannuation) Act 1906 (NSW) ss 9A(4) and 21(4) – where District Court on appeal de novo backdated respondent’s pension by ten years before date of application – where appeal lies in point of law – where pension may be backdated if decision-maker is satisfied that there are exceptional circumstances that merit its doing so – whether such circumstances are only those which explain the delay in filing an application
Legislation Cited:	District Court Act 1973 (NSW), ss 142G, 142N Police Regulation (Superannuation) Act 1906 (NSW), ss 9, 10, 10B, 21 Superannuation Legislation Amendment Act 2006 (NSW)
Cases Cited:	Baker v The Queen (2004) 223 CLR 513; [2004] HCA 45 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456 Daley v SAS Trustee Corporation [2016] NSWCA 111 Day v SAS Trustee Corporation [2021] NSWCA 71 Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16 House v The King (1936) 55 CLR 499; [1936] HCA 40 NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509; [1956] HCA 80 R v Kelly [2000] QB 198 SAS Trustee Corporation v Arthur Cox [2011] NSWCA 408; (2011) 285 ALR 623 Swift v SAS Trustee Corporation [2010] NSWCA 182
Category:	Principal judgment
Parties:	SAS Trustee Corporation t/a State Super (Appellant) Thomas Colquhoun (Respondent)
Representation:	Counsel: G M Watson SC with S Palaniappan (Appellant) D F Jackson QC with J M Morris SC and M N Hammond (Respondent) Solicitors: SAS Trustee Corporation (Appellant) Cardillo Gray Partners (Respondent)
File Number(s):	2022/8500
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 16 December 2021 Before: Kearns ADCJ File Number(s): RJ00116/2021