SAS Trustee Corporation v Learmont

The SAS Trustee Corporation appealed to the Court of Appeal of New South Wales against a decision of the District Court which had found in favour of the respondent, Mr Learmont, a former NSW Police Officer. Mr Learmont had resigned from the police force in 1999 and subsequently applied for a superannuation allowance under s 10B of the *Police Regulation (Superannuation) Act 1906* (NSW), alleging he suffered from a depressive illness. The Act had been amended between the date of his resignation and the date of his application.

The primary legal issues before the Court of Appeal were whether the primary judge had correctly considered the question of Mr Learmont's incapability in the requisite sense, and specifically whether he was permanently or persistently incapable of carrying out his police duties as at the date of his resignation. Further, the Court had to determine which version of s 10B of the Act was applicable – that in force at the time of resignation or at the time of application – and whether the primary judge had properly distinguished between an existing infirmity and a mere susceptibility to an infirmity when assessing incapability.

The Court of Appeal found that the primary judge had erred in their consideration of the relevant issues. The Court held that the question of whether Mr Learmont was incapable of performing his duties as a police officer needed to be assessed as at the date of his resignation, and that the applicable version of s 10B was that in force at that time. The Court also clarified that the assessment of incapability required a focus on an existing infirmity, rather than a predisposition or susceptibility to developing one.

Consequently, the Court of Appeal allowed the appeal, set aside the orders of the District Court, and remitted the matter back to the District Court for determination according to law. The parties were ordered to bear their own costs of the appeal, with the costs of the trial to abide the outcome of the remitted hearing. The respondent's notice of motion was dismissed.